The Delhi High Court has asked the Centre to
consider giving an alternate job to a transgender Sailor who was removed from
service after sex change, terming it an “out of the box situation”.
You can punish her for indiscipline, but at the
same time you can accommodate her,” a bench of Justices GS Sistani and VK Rao
suggested to additional solicitor general Sanjay Jain, who appeared for the
Centre and Navy.
Calling for a change in mindset, the bench said
the instant case was probably the only one of its kind in the armed forces and
asked the Navy to consider the transgender for some other job.
Here is an opportunity to look at it from a
different perspective. It is an out of the box situation. It maybe a first of
its kind situation.
Here is a person struggling with gender identity.
Had she suppressed the condition and continued, it would have been dangerous.
It could have been fatal. Think about it and come back,” the bench said and listed
the matter for further hearing on November 23.
The court said that while the person deserved to
be punished for indiscipline for being absent without leave, but where there
was a medical condition of this sort, it may be seen from a different perspective.
During the course of the hearing, the bench said,
“the mindset should change. In today’s situation, a medical condition like this
cannot be suppressed.”
The court was of the view that the petitioner,
who was posted onboard INS Eksila at Visakhapatnam, can give up claim for the
job of sailor and may accept a clerical position so that the family, comprising
aged parents, the individual’s wife and child, need not suffer.
Additional Solictor General Jain and central government standing counsel
Anil Soni, who also appeared for the Navy, told the court that the individual
in question “had a chequered history of indiscipline” for being absent without
leave several times.
However, they agreed to take instructions on
whether the instant matter can be taken up as a special case.
They also told the bench that the Sailor had got
badly infected after undergoing sex reassignment surgery and it was the Navy
which treated her humanely and provided treatment and counselling to her.
They further argued that since the petitioner was
a female now, she cannot be employed as a sailor in the Navy as that position
is not open for women.
The ASG said the simple question before the bench
was whether a woman, and not a transgender, can be appointed as a sailor on a
ship as the petitioner was now a female.
The petitioner had challenged the October 6 order
of the Navy removing her from service.