Transgender persons’ inclusion in OBC without separate reservation is a mere facade; 3% marks weightage granted: Raj HC

Jodhpur: The Rajasthan High Court has held that the State Government’s notification dated 12 January 2023 — which classified transgender persons at Entry No. 92 of the Other Backward Classes list without providing any distinct, meaningful reservation — is “a mere facade and an eyewash” that confers no real reservation whatsoever and falls short of the mandate of the Supreme Court in National Legal Services Authority v. Union of India [(2014) 5 SCC 438] (NALSA).

A Division Bench of Justice Arun Monga and Justice Yogendra Kumar Purohit, pronouncing judgment on 30 March 2026, directed that transgender persons across all categories be granted 3% additional weightage in the maximum prescribed marks for selection, appointment, and admission to educational institutions under the State Government, its instrumentalities, public sector undertakings, and State-funded or aided institutions, pending formulation of a comprehensive policy by the State.

The petitioner, Ganga Kumari, a transgender individual from Jalore district, filed this class action writ petition on behalf of the transgender community challenging the 2023 notification and seeking horizontal reservations in public employment and educational institutions. The proceedings have a long history before this Court. In an earlier writ petition (D.B. Civil Writ Petition No. 10672/2021), a Division Bench had on 14 February 2022 directed the State to complete the exercise of providing reservation to transgender persons within four months and allowed the petitioner to participate in the ongoing selection process without her candidature being rejected on account of being third gender. In compliance with that direction, the State issued the notification dated 12 January 2023 adding transgenders at Entry No. 92 in the OBC list. A contempt petition (No. 1211/2022) was subsequently filed and was dismissed by this Court on 18 August 2023 on the basis that the notification had been issued in compliance with the earlier direction. The petitioner then filed D.B. Civil Writ Petition No. 8242/2024 directly challenging the 2023 notification, which was dismissed as withdrawn with liberty to file a fresh petition with better particulars including population data and the extent of OBC reservation in the State. The present petition was filed accordingly.

As per the 2011 Census, Rajasthan’s total population is 6,85,48,437, of which the OBC population is estimated at 3,24,23,410 (approximately 52%). The OBC reservation stands at 21%. The transgender population in Rajasthan as per the 2011 Census is 16,517, constituting a mere 0.024% of the total population and 0.046% of the OBC segment. During the pendency of this petition, the Court directed the State by order dated 20 November 2025 to provide data on how many transgender individuals had benefited from the 2023 notification since its issuance. The State’s candid response in its additional affidavit was that not a single transgender person has benefited from the impugned circular till date.

Mr. Vivek Mathur, counsel for the petitioner, with Mr. Prakash Kumar Balout and Mr. Dhirendra Singh Sodha, argued that the impugned notification is discriminatory and violative of fundamental rights because it merely subsumes transgender persons within the OBC category instead of granting them horizontal reservation as a distinct class. Counsel pointed to a critical anomaly: a transgender person born into an SC/ST/SEBC family must choose between claiming their birth-based reservation or the OBC/transgender classification — and in either case receives no additional affirmative benefit for being transgender. Transgender persons from SC or ST families, who earlier enjoyed more beneficial protections, are in effect worse off under the impugned notification. The circular thus creates a dichotomy and extinguishes pre-existing entitlements without even affording an option to choose.

Mr. Mathur further argued that transgender identity cannot be reduced to a caste-based classification, and that the NALSA judgment recognised transgender persons as a distinct class entitled to reservations on the basis of gender identity — not merely as a sub-group of OBC. The notification, he submitted, is nothing but a meaningless illusion: it merely reiterates what the Supreme Court had already declared and adds no concrete affirmative action. The States of Karnataka and Tamil Nadu were cited as positive models that have taken steps to grant horizontal reservation in public employment and educational institutions, and it was urged that similar directions be issued to Rajasthan.

Mr. Praveen Khandelwal (Additional Advocate General) for the respondents, along with Mr. Deepak Chandak for Mr. B.L. Bhati (AAG), Mr. Piyush Bhandari, Mr. Mahesh Thanvi, and Ms. Pragya Thanvi, contended that the petitioner had failed to present compelling statistical evidence that separate horizontal reservation would actually benefit transgender persons under the existing roster system. The structuring of reservations — vertical or horizontal — lies exclusively within the legislative and executive domain; judicial intervention under Article 226 does not extend to redesigning or creating new reservation classes. Transgender persons have already been classified as OBC pursuant to the NALSA direction to treat them as socially and educationally backward classes. The State has also issued the Transgender UtthanKosh Guidelines, 2021 and provided vocational training to 44 transgender persons, 22 of whom were subsequently employed.

The respondents also raised two preliminary objections: first, that the dismissal of the contempt petition in August 2023 constituted a finding that the State had complied with the Court’s earlier order, leaving no further indulgence warranted; second, that since Writ Petition (Civil) No. 461/2025 (Kiran A.R. & Ors. v. Union of India) raising an identical issue was pending before the Supreme Court, the present petition was liable to be dismissed.

The Division Bench, per Justice Arun Monga, rejected both preliminary objections. On the contempt dismissal, the Court observed that the August 2023 order dismissed the contempt petition on the narrow ground that the notification had been issued, without examining whether the notification was in true compliance with the NALSA mandate — a question that was neither the prayer in contempt jurisdiction nor adjudicated therein. On the SC pendency objection, the Court found that the Supreme Court matter (Kiran A.R.) concerned the legality of the NEET-PG 2025 admission notice — a distinct subject matter — whereas the present petition challenged the State Government’s 2023 notification on an entirely different footing.

Turning to the merits, the Court examined the two-limbed direction issued by the Supreme Court in NALSA: (A) treat transgender persons as socially and educationally backward classes, and (B) extend all kinds of reservation. The Court noted that the State had addressed only the first limb by the 2023 notification. The second limb — extending all kinds of reservation — remained conspicuously unaddressed. The notification, the Court held at paragraph 30, “is a mere facade and an eyewash. As it seems to be an exercise in form without substance. It confers no real reservation whatsoever; it simply parrots what already stands declared by the Supreme Court in NALSA, namely, the recognition of transgender persons within the fold of socially and educationally backward classes. Such reiteration, devoid of any concrete affirmative action, is merely illusory and falls short of the reservation mandated by the Supreme Court.”

The Court further identified a serious anomaly caused by the notification: transgender persons born into SC/ST/SEBC families were previously entitled to their birth-based reservation benefits, which in many cases are more advantageous than placement within OBC. By subsuming all transgender persons under Entry No. 92 of the OBC list, the notification effectively extinguishes these pre-existing entitlements without affording any option to choose. Even if such a choice were offered, the Court noted, the notification confers no tangible additional benefit — it merely compels a choice between two regimes without enhancing substantive entitlements. Those born into SC or ST or SEBC categories thus face a compounded and intersecting disadvantage.

The Court, however, accepted the respondents’ submission that the creation of horizontal reservation is within the exclusive domain of the legislature and executive, and that Article 226 jurisdiction does not extend to framing or redesigning reservation policies. At the same time, the Court considered quantitative data: the transgender population at 16,517 persons constitutes 0.024% of Rajasthan’s total population and only 0.046% of the OBC segment. A separate horizontal reservation proportionate to this fraction would be virtually illusory in practice — reserved roster points would arise only at long and irregular intervals, rendering the promise of reservation largely symbolic and operationally ineffective.

The Court noted with approval the Karnataka Civil Services (General Recruitment Amendment Rules, 2021) as a model statute, which mandates 1% reservation for transgender candidates within each vertical category (General Merit, SC, ST, OBC), with unfilled vacancies to be filled by candidates of other genders from the same category. Tamil Nadu was noted as another State that has taken positive steps. The Court called upon the Rajasthan legislature to replicate such a framework, mutatis mutandis.

In a notable Epilogue authored by Justice Arun Monga, the Court took note of the Transgender Persons (Protection of Rights) Amendment Bill, 2026, passed by Parliament just before the judgment was released but pending Presidential assent. The Bill proposes to omit Section 4(2) of the 2019 Act, which recognises the right to self-perceived gender identity. The Court observed that this marks “a departure from that said constitutional baseline” established in NALSA. It issued a caveat that any policy framework evolved by the State pursuant to the Court’s directions must, to the fullest extent possible, preserve the principle of self-identification within the contours of the amended law, and must ensure that statutory developments are not implemented in a manner that dilutes constitutional guarantees.

The petition was disposed of with two principal directions. First, the State Government was directed to constitute a Committee, preferably headed by the Principal Secretary, Department of Social Justice and Empowerment, along with eminent social activists and representatives of the transgender community, to conduct a detailed inquiry into the extent of compounded marginalization suffered by transgender persons across all categories — SC, ST, SEBC, OBC, and Open — and to recommend appropriate measures or a workable framework for substantive equality in public employment and educational admissions. The State Government was directed to take an informed and appropriate policy decision based on the Committee’s recommendations, in accordance with Section 8 of the Transgender Persons (Protection of Rights) Act, 2019 read with the NALSA judgment. Second, pending such policy decision, transgender persons belonging to all categories are henceforth to be granted 3% additional weightage in the maximum prescribed marks for purposes of selection and appointment to posts and admission to educational institutions under the State Government, its instrumentalities, public sector undertakings, and State-funded or aided institutions.

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