Ori HC analyses Right of Transgender unmarried daughter to choose gender and avail family pension

Orissa High Court: A.K. Mohapatra, J. directed to process the application for grant of family pension to the transgender woman as expeditiously as possible preferably within a period of six weeks from the date of communication of a certified copy of the order.

The facts of the case are such that the father of the petitioner late Balaji Kondagari was a Government servant working in Rural Development Department under Executive Engineer RW Division, Rayagada. After the death of late Balaji Kondagari his wife was sanctioned the family pension but after she expired due to old age the present petitioner applied for family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 i.e Rules 1992 to the Executive Engineer RW Division, Rayagada as petitioner and her sister come under the category of unmarried daughter, widow or divorced daughter and as such eligible to get family pension. The present writ petition was filed by the petitioner with a prayer for a direction to the opposite parties to sanction family pension in favour of the petitioner, who is a transgender (women) and unmarried daughter of late Balaji Kondagari within a stipulated period of time.

Counsel for the petitioner submitted that since the petitioner belongs to transgender community, the authorities are treating the petitioner in a discriminatory manner and not sanctioning the family pension as is due and admissible to her after the death of her parents and is in gross violation of the pension rules as provided under rule 56(5)(d) Rules, 1992.

Rule 56(1) Odisha Civil Services (Pension) Rules 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 was a Government servant 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 the monthly income of the daughter does not exceed Rs.4,440/- per month from employment in Government, semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.

The Court relied on judgment NALSA v. Union of India, (2014) 5 SCC 438 has recognized the right of the transgender community as citizens of the country at par with other. It was further stated in the judgment

“135.2 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.”

The Court opined 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.

The Court directed the authorities to “consider and disburse the family pension within a stipulated period of time.” [Kantaro Kondagari v. State of Odisha, W.P. (C) No.4779 of 2022, decided on 20-05-2022]


Appearances

For Petitioner: Mr Omkar Devdas, S. Dash, A. Suhail and P. Ray

For Opp. Parties: Mr K.K. Nayak


Arunima Bose, Editorial Assistant has reported this brief.

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