The Odisha High Court recently held that transgender persons have the right to choose their own gender and are entitled to avail family pension benefits that accrue accordingly [Kantaro Kondagari @ Kajol v State of Odisha & Ors].
Justice AK Mohapatra held so in consonance with the law laid down by the Supreme Court in NALSA v. Union of India which recognised the rights of the transgender community.
“…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 and as such, the law laid down by the Hon’ble Supreme Court is binding on all,” the order said.
The Court was hearing a petition moved by a trans woman seeking orders to the authorities to sanction family pension in her favour.
After her father, who was a government servant, passed away, her mother was sanctioned and disbursed family pension. However, her mother passed away in 2020, following which the petitioner applied for family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992.
As per the Rules, family pension is payable to 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 ₹4,440 per month.
The petitioner and her sister claimed that as both of them come under the category of unmarried daughter, widow or divorced daughter, they are eligible for said pension.
Their application was first recommended by the relevant authority with the full knowledge of the gender identity of the petitioner. However, the pension was not sanctioned and disbursed.
Advocate Omkar Devdas, appearing for the petitioner, argued that the petitioner had been discriminated against merely for being a transgender person, and that such conduct of the authorities was in gross violation of the Pension Rules, the Transgender Persons (Protection of Rights) Rules, 2020 and the Transgender Persons (Protection of Rights) Act, 2019.
Devdas also relied on the landmark judgment of the Supreme Court in NALSA and contended that the treatment meted out to the petitioner violated her rights under Articles 14 and 21 of the Constitution of India.
Additional Standing Counsel for the State, KK Nayak, submitted that the application is pending before the Accountant General (A&E), Odisha, Bhubaneswar and that if the Court directs the authorities to consider and disburse the family pension within a stipulated period of time, the same shall be considered.
The Court concurred with the arguments of the petitioner, especially in view of NALSA, and quoted several portions of the judgment, some of which are as follows:
Article 14 does not restrict the word “person” and its application only to male or female. Hiraj/transgender persons who are neither male/female fall within the expression “person” and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country
State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. Transgender persons are also entitled to enjoy economic, social, culture and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.
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.
In view of NALSA, and the provisions of the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, the Court ordered the Principal Accountant General to process the application of the petitioner for family pension within a period of six weeks.