Orissa High Court orders child support for transexual

The Orissa High Court recently ordered the award of a family pension to a transgender woman, who was allegedly discriminated against on the basis of her sex while receiving pension benefits after the death of her parents. A single bank of Judge Aditya Kumar Mohapatra tenuous,

“…this Court is of the opinion that the applicant, as transgender, has every right to choose her sex and, therefore, she has submitted her application for the award of a family pension under Article 56 (1) Odisha Civil Service (Pension) Rules, 1992. Further, this right was recognized and legalized by the judgment of the Honorable Apex Court in NALSA (supra) and as such , the law enacted by the Honorable Supreme Court is binding on all.”

Factual background:

The Claimant’s father, the late Balaji Kondagari, was a government official working in the Department of Rural Development under Executive Engineer RW Division, Rayagada. After his death, his wife Smt. Binjama Kondagari was sanctioned and disbursed with the family pension. On 11.07.2020, Smt. Binjama Kondagari died due to health problems related to old age. Subsequently, the present petitioner, who is a transgender woman, applied for the sanction of a family pension in her favor under Rule 56 of the Odisha Civil Service (Pensions) Rules, 1992 to Executive Engineer RW Division, Rayagada. It has been claimed that she and her sister fall under the category of “single girl, widow or divorced girl” and as such eligible for family pension.

Notably, Rule 56(1) of the Odisha Civil Service (Pension) Rules 1992 provides for a pension for a specific category of family members of a deceased government employee entering the civil service and occupying a position in a pensionable establishment no later than 01.01.1964 and family pension to a specific category of family members of the deceased official, who served and retired/deceased no later than 31.12.1963.

In addition, the Pensions Regulations 1992, under Article 56(5)(d), provide that child support is also payable in the case of an unmarried daughter, even after reaching the age of 25 years until her marriage or death, whichever comes first, provided that if the daughter’s monthly income does not exceed Rs. 4,440/- from employment in government, semi-government , statutory bodies, business, private sector, self-employment, she will be eligible to receive a family pension.

Following her application, the Department of Rural Development/Executive Engineer, RW Division, Rayagada, in a letter dated 29.06.2021 wrote to the Principal Accountant General (A&E), Odisha as he deemed her eligible for receive child pension and hence recommended his case for sanction of child pension amounting to Rs.8,995+TI per month.

The said letter further revealed that the family pension will be due to the petitioner from 12.07.2020 and will be subject to the provisions of Rule 56(5) of the Odisha Civil Service (Pensions) Rules, 1992 and in addition it was stipulated that the applicant would receive a family pension until her marriage or her death, whichever came first. It was also found that the authority recommended the case knowing full well that the applicant is a transgender (girl).

Arguments of the Applicant:

Mr. Omkar Devdas, the applicant’s lawyer argued that the authorities failed to consider the applicant’s application for a family pension, although section 56 of the Orissa Civil Service (Pension) Rules 1992 provides the payment of a family pension to the unmarried daughter. It was also alleged that since the applicant was from the transgender community, the authorities had treated her in a discriminatory manner and had not sanctioned the family pension which was due and receivable to her after the death of her parents.

He further contended that such conduct by the authorities constitutes a flagrant violation of pension rules, as provided for in Rule 56(5)(d) which states that in the case of an unmarried daughter, even after have reached the age of 25 until marriage or death whichever occurs first, provided that the monthly income of the daughter does not exceed four thousand four hundred and forty per month from government employment, the semi-governmental, statutory bodies, society, private sector, self-employed will be eligible to receive Child Benefit Pension.

It was further pointed out that the applicant is a transgender (female) and an empty certificate dated 02.12.2021 issued by the District Magistrate under Rule 5 of the Rules relating to transgender people (protection of rights), 2020 read with Section 6 of the Transgender Persons (Protection of Rights) Act 2019, has been legally recognized as transgender (female). He pointed out that the authorities treated the applicant’s case in a discriminatory manner and failed to apply the provisions of the law provided for by the aforementioned 2020 regulations.

In his argument, he relied on the judgment of the Supreme Court of India in the case National Legal Services Authority (NALSA) v. union of india, (2014) 5 SCC 438 in which the Supreme Court of India recognized the right of the transgender community as citizens of the country equal to other citizens. It has been argued that the petitioner has been treated in a manner which is in violation of Articles 14 and 21 of the Constitution of India. He cited the following observation from the judgment, in which the Supreme Court granted transgender people the freedom to identify themselves.

“The right of transgender people to decide their self-identified gender is also upheld, and Central and state governments are required to grant legal recognition of their gender identity, such as male, female or third gender.”

At this stage, Mr. Devdas further indicated that the family pension had already been sanctioned by the competent authority in favor of the petitioner by a letter dated 29.06.2021. However, he regretted that the Senior Accountant General (A&E), Odisha, Bhubaneswar (opposing party no. 5) did not take any action for the disbursement of child support in favor of the petitioner.

Arguments of the defendants:

Mr. K. K. Nayak, the State’s Additional Permanent Advocate, on the other hand, argued that the case has not been dealt with and is pending before the Accountant General (A&E), Odisha, Bhubaneswar for consideration. He added that in case the Court orders the authorities to consider and pay the child support within a specified period, the competent authority that’s to say Ex. The Engineer, RW Division has already recommended the petitioner’s case, it will be considered by the opposing parties in the light of the law established by the Supreme Court.

Court’s observations:

After analyzing the law established by the Supreme Court and taking into consideration the arguments presented by the respective parties, the Court found that the applicant, as a transgender, had every right to choose her sex and, therefore, she submitted his application for the award of a family pension under Section 56(1) of the Odisha Civil Service (Pensions) Rules, 1992.

Furthermore, the Court recognized that this right had been recognized and legalized by the judgment of the Supreme Court in The case of NALSA (supra) and as such, the law enacted by the Supreme Court will be binding on all. Accordingly, he determined that the present written motion filed by the Applicant deserves to be granted.

Accordingly, the Senior Accountant General (A&E), Odisha, Bhubaneswar (opposing party #5) has been instructed to process the claimant’s claim as expeditiously as possible, preferably within six weeks from the date of communication of the certified true copy of the order. It was also ordered to calculate, sanction and pay immediately the family pension due and admissible to the applicant within the aforementioned period.

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