Breaking: "Transgender Has Every Right To Choose Gender": Orissa High Court Orders Family Pension To Transwoman

"…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon'ble Apex Court in NALSA's Case (supra) and as such, the law laid down by the Hon'ble Supreme Court is binding on all."

Factual Background:

The father of the petitioner late Balaji Kondagari was a government servant working in Rural Development Department under Executive Engineer RW Division, Rayagada. After his death, his wife Smt. Binjama Kondagari was sanctioned and disbursed with the family pension. On 11.07.2020, Smt. Binjama Kondagari died due to old age-related health issues. Thereafter the present petitioner, who is a transwoman, applied for sanction of family pension in her favour under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 to the Executive Engineer RW Division, Rayagada. It was claimed that she and her sister come under the category of "unmarried daughter, widow or divorced daughter" and as such eligible to get family pension.

Notably, the Rule 56(1) Odisha Civil Services (Pension) Rules, 1992 provides for pension to specific class of family members of deceased government employee entering into government service and was holding a post in a pensionable establishment on or before 01.01.1964 and family pension to specific class of family members of the deceased government servant, who served and retired/died on or before 31.12.1963.

Further the Pension Rules, 1992 under Rule 56(5)(d) provides that family pension is also payable in case of any unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that if the monthly income of the daughter does not exceed Rs. 4,440/- from employment in government, semi-government, statutory bodies, corporation, private sector, self-employment, she shall be eligible to receive family pension.

Subsequent to her application, the Rural Development Department/Executive Engineer, RW Division, Rayagada in a letter dated 29.06.2021 had written to the Principal Accountant General (A&E), Odisha, as he had found her eligible to receive family pension and accordingly recommended her case for sanction of family pension amounting to Rs.8,995+TI per month.

The said letter further revealed that the family pension shall be payable to the petitioner with effect from 12.07.2020 and shall be subject to the provisions of Rule 56(5) of the Odisha Civil Services (Pension) Rules, 1992 and further it was stipulated that the petitioner shall get family pension till her marriage or death whichever is earlier. It was also found that the authority had recommended the case knowing fully well that the petitioner is a transgender (daughter).

Contentions of the Petitioner:

Mr. Omkar Devdas, the counsel for the petitioner contended that the authorities did not consider the application of the petitioner for grant of family pension, although the Rule 56 of Orissa Civil Services (Pension) Rules, 1992 provides for payment of family pension to the unmarried daughter. It was also submitted that since the petitioner belongs to transgender community, the authorities had treated her in a discriminatory manner and had not sanctioned the family pension as is due and admissible to her after the death of her parents.

He further submitted that such conduct of the authorities are in gross violation of the pension rules as provided under rule 56(5)(d) which states that in case of an unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed four thousand four hundred and forty per months from the employment in Government, Semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.

It was further highlighted that the petitioner is a transgender (woman) and vide certificate dated 02.12.2021 issued by the District Magistrate under Rule 5 of the Transgender Persons (Protection of Rights) Rules, 2020 read with Section 6 of the Transgender Persons (Protection of Rights) Act, 2019, has been given legal recognition as being a transgender (woman). He stressed that the authorities have dealt the case of the petitioner in a discriminatory manner and they have failed to apply the provisions of law as provided under the aforesaid Rules, 2020.

In course of argument, he relied upon the judgment of the Supreme Court of India in the case of National Legal Services Authority (NALSA) v. Union of India, (2014) 5 SCC 438 wherein the Supreme Court of India has recognized the right of the transgender community as citizens of the country at par with other citizens. It was argued that the petitioner had been treated in a way which is in violation of Articles 14 and 21 of the Constitution of India. He cited the following observation from the judgment, wherein the Supreme Court had granted liberty to transgender people for self-identification.

"Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender."

At this stage, Mr. Devdas further submitted that the family pension has already been sanctioned by the competent authority in favour of the petitioner through a letter dated 29.06.2021. However, he regretted that the Principal Accountant General (A&E), Odisha, Bhubaneswar (Opposite Party No. 5) has not been taking any step for disbursal of the family pension in favour of the petitioner.

Contentions of the Respondents:

Mr. K.K. Nayak, Additional Standing Counsel for the State, on the other hand, submitted that the matter was not processed and the same is pending before the Accountant General (A&E), Odisha, Bhubaneswar for consideration. He further submitted that in the event the Court directs the authorities to consider and disburse the family pension within a stipulated period of time as the competent authority i.e. Ex. Engineer, RW division has already recommended the case of the petitioner, the same shall be considered by the opposite parties in the light of the law laid down by the Supreme Court.

Court's Observations:

After analysing the law laid down by the Supreme Court and taking into consideration the submissions made by the respective parties, the Court took the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

Further, the Court acknowledged that such right has been recognized and legalized by judgment of the Apex Court in NALSA's Case (supra) and as such, the law laid down by the Supreme Court will be binding on all. Therefore, it held that the present writ petition filed by the petitioner deserves to be allowed.

Accordingly, the Principal Accountant General (A&E), Odisha, Bhubaneswar (Opposite Party No.5) was directed to process the application of the petitioner as expeditiously as possible preferably within a period of six weeks from the date of communication of certified copy of the order. It was further directed to immediately calculate, sanction and disburse the family pension as is due and admissible to the petitioner within the aforesaid stipulated period of time.

Case Title: Kantaro Kondagari @ Kajol v. State of Odisha & Ors.