The Orissa High Court said that the petitioner as a transgender has every right to choose her gender.
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 Binjama kondagari was sanctioned and disbursed with the family pension. Binjama kondagari expired due to old age related health issues. Thereafter the present petitioner applied for 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. It is further stated that 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.
Advocate Omkar Devdas, appearing 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.
He 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.
He further submits 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.
Advocate K.K. Nayak, appearing for the state, 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 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, 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 Supreme Court of India.
The single judge bench of Justice A.K. Mohapatra viewed 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 apex court in Nalsa’s case and as such, the law laid down by the Supreme Court is binding on all.
The court allowed the writ petition filed by the petitioner.
The court directed the principal accountant general (A&E), Odisha, Bhubaneswar 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.
The opposite party 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/s State of Odisha and others
Citation: W.P.(C) No.4779 of 2022