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Ordering Family Pension To Transwoman, Court States “Transgender Has Every Right To Choose Gender”: Orissa High Court

In Kantaro Kondagari @ Kajol v. State of Odisha & Ors., the Orissa High Court recently ruled a transwoman to be granted a family pension following the death of her parents, who was allegedly discriminated against for her gender.

Brief Facts Of The Case: Late Balaji Kondagari was a government employee in Rayagada’s Rural Development Department. Binjama Kondagari received the family pension after his death. Binjama Kondagari died of old age-related health concerns on 11.07.2020. The petitioner, a trans woman, then requested a family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992. She and her sister were entitled for a family pension as “unmarried daughters, widows, or divorced daughters.” In a letter dated 29.06.2021, the Rural Development Department/Executive Engineer, RW Division, Rayagada approved her case for a family pension of Rs.8,995+TI per month. The letter further said that the petitioner will get family pension from 12.07.2020 until her marriage or death, whichever comes first. The authority knew the petitioner is transsexual and nonetheless approved the case (daughter).

Omkar Devdas, the petitioner’s attorney, said that the authorities did not examine the petitioner’s plea for family pension, even though Rule 56 of the Orissa Civil Services (Pension) Rules, 1992 provides for family pension to the unmarried daughter. Since the petitioner is transgender, the authorities allegedly treated her unfairly and denied her the family pension following her parents’ deaths.

He also argued that the authorities’ actions are a gross violation of rule 56(5)(d) of the pension rules, which states that an unmarried daughter can receive a pension even after turning 25 until her marriage or death, whichever comes first, as long as her monthly income from government, semi-government, statutory bodies, or corporations does not exceed $4,440. The petitioner is a transgender (woman) and, per a 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 legally recognised as such (woman). He noted the authorities treated the petitioner’s case unfairly and didn’t follow the Rules, 2020.

Judgement: After analysing the Supreme Court’s legislation and the parties’ arguments, the court concluded that the petitioner as a transgender had every right to select her gender. She has since applied for a family pension under Section 56(1) of the Odisha Civil Services (Pension) Rules, 1992. Further, the Court recognised that this right was recognised and legalised by the Apex Court in NALSA’s Case, and as such, the Supreme Court’s legislation will be binding on all. Therefore, the petitioner’s writ petition was allowed. The Principal Accountant General (A&E), Odisha, Bhubaneswar (Opposite Party No.5) was ordered to process the petitioner’s case as quickly as possible, ideally within six weeks of receiving the order. It was also ordered to compute, sanction, and pay the petitioner’s family pension within the specified time.

JUDGEMENT REVIEWED BY PRAKIRTI JENA

Click Here To View Judgement

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