Image: Live Law
A Single-judge bench of Justice A.K. Mohapatra of the Orissa High Court gave a remarkable judgment on May 20, 2022 that is bound to have far-reaching impact on the rights of transgender person to family pension. In the case of Kantaro Kondagari @ Kajol v/s. State of Odisha & Ors. (WP (c) No. 4779 of 2022), the Court ordered that family pension be granted to the transgender daughter of the deceased late Balaji Kondagari. The transwoman allegedly faced discrimination on the basis of gender when she applied for pensionary benefits after the death of her parents.
This Petition was filed before the Court seeking directions to the opposite parties to sanction the family pension in favour of the Petitioner, who is a transwoman, and an unmarried daughter of the late Balaji Kondagari within the stipulated time frame.
Brief Background of the case
Late Balaji Kondagari, father of the Petitioner, was a government servant working in the Rural Development Department under Executive Engineer RW Division, Rayagada. After the death of Balaji Kondagari, his wife Smt. Binjama Kondagari was sanctioned and disbursed with the family pension. On July 11, 2020, Smt. Binjama Kondagari died due to old age and related health issues.
Thereafter the daughter of the Late Balaji Kondagari (present Petitioner) applied for the family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 for sanction of family pension in her favour to the Executive Engineer RW Division, Rayagada. The present Petitioner and her sister come under the category of unmarried daughter, widow or divorced daughter and as such eligible to get family pension.
Following the Petitioner’s application, the Rural Development Department/Executive Engineer, RW Division, Rayagada, after scrutinizing the application of the present Petitioner, vide letter No.2855 dated June 29, 2021 written to the Principal Accountant General (A&E), Odisha, Bhubaneswar, found her eligible to receive family pension and accordingly recommended the case of the Petitioner for sanction of family pension amounting to Rs.8,995+TI per month in favour of the Petitioner.
The said letter further reveals that the family pension shall be payable to the petitioner w.e.f. July 12, 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. On further careful scrutiny of the letter under reference it is found that the authority has recommended the case knowing fully well that the petitioner is a transgender (daughter).
What does Odisha Civil Rules, 1992 states?
Rule 56(1) Odisha Civil Services (Pension) Rules, 1992 is concerned, the same 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 January 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 December 31, 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.
Contentions of the Petitioner
The Learned Counsel, Omkar Devdas for the Petitioner contended that the authorities have not considered the application of the Petitioner for grant of family pension although the Rule 56 of Orissa Civil Services (Pension) Rules, 1992 which provides for payment of family pension to the unmarried daughter. 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.
The Learned Counsel of the Petitioner further contended 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.
The Petitioner’s Counsel further highlighted that the Petitioner is a transwoman, and vide certificate dated December 02, 2021 issued by the District Magistrate under Rule 5 of the Transgender Persons (Protection of Rights) Rules, 2020 and read with Section 6 of the Transgender Persons (Protection of Rights) Act, 2019 has been given legal recognition as being a transgender (woman). 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.
The learned counsel for the Petitioner relied upon the judgment of the Supreme Court of India in the case of National Legal Services Authority (NALSA) v/s. Union of India wherein the Hon’ble Supreme Court of India has recognised the right of the transgender community as citizens of the country at par with other citizens. It was alleged by learned counsel for the petitioner that the petitioner has been treated in a way which is in violation of Articles 14 and 21 of the Constitution of India. The Judgment stated, “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 Learned Counsel for the Petitioner submitted that the family pension has already been sanctioned by the competent authority in favour of the petitioner vide letter No.2855 dated June 29, 2021. However, the Principal Accountant General (A&E), Odisha, Bhubaneswar had not been taking any step for disbursal of the family pension in favour of the Petitioner.
Contentions on behalf of the Respondent State
Learned counsel for the State – Additional Standing Counsel for the State, Mr. K.K. Nayak, submitted that it appears that the matter is not processed and the same is pending before the Accountant General (A&E), Odisha, Bhubaneswar for consideration. He further submitted that in the event this 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, R W division has already recommended the case of the petitioner, the same shall be considered by the opp. Parties in the light of the law laid down by the Hon’ble Supreme Court of India.
Court’s observation and Judgment
The Court after considering the submissions from both the side held, “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.”
The Court further held that such right has been recognised and legalised 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. It said, “Therefore, the present writ petition filed by the petitioner deserves to be allowed and the same is hereby allowed.”
The Court further directed, “The Principal Accountant General (A&E), Odisha, Bhubaneswar (Opposite Party No.5) is 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 this order. The Opposite Party No.5 is 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.”
The entire Judgment may be read here:
Related:
Delhi HC demands updates on separate toilets for Delhi’s trans community
Madras HC commends TN gov’t for new Police rules, glossary for referring to LGBTQIA+ persons
Pride and priorities: Gov’t should create reliable support systems for LGBTQIA+ persons in crisis
LGBTQIA+: Madras HC guidelines for sensitisation of stakeholders