Authored By:Dhanishtha Gupta
Date of JUdgement-20 May 2022
Bench- Justice A.K. Mohapatra
Court – Orissa High Court
Citation- [W.P.(C) No.4779 of 2022]
INTRODUCTION
The freedom of transgender people to choose their self-identified gender was supported in this case, and the Centre and state governments were ordered to recognize their gender identity as male, female, or third gender.
FACTS
·Balaji Kondagari, the petitioner’s father, worked for the Rural Development Department’s Executive Engineer RW Division in Rayagada as a government employee.
·Following his death, Smt. Binjama Kondagari, the late BalajiKondagari's wife, was sanctioned and earned the family pension.
·Smt. Binjama Kondagari died on July 11, 2020, as a result of old age-related health problems. Following that, the current petitioner filed to the Executive Engineer RW Division, Rayagada for the issuance of a family pension in her favour under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992. It’s also worth noting that the present petitioner and her sister are both single, widowed, or divorced daughters, and therefore qualify for a family pension.
ISSUE
Whether or not a transgender daughter has the right to claim the family pension?
RULE
Articles 14 and 21 of the Constitution of India, Rules 56(1), 56(5)(d) Odisha Civil Services (Pension) Rules, 1992, 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.
BACKGROUND
Balaji Kondagari, the petitioner's father, worked for the Rural Development Department's Executive Engineer RW Division in Rayagada as a government employee. Following his death, Smt. Binjama Kondagari, the late BalajiKondagari's wife, was sanctioned and earned the family pension. Smt. Binjama Kondagari died on July 11, 2020, as a result of old age-related health problems. Following that, the current petitioner filed to the Executive Engineer RW Division, Rayagada for the issuance of a family pension in her favour under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992. It's also worth noting that the present petitioner and her sister are both single, widowed, or divorced daughters, and therefore qualify for a family pension.
CONTENTION OF PETITIONER
Despite the fact that Rule 56 of the Orissa Civil Services (Pension) Rules, 1992 permits for the payment of a family pension to an unmarried daughter, the petitioner's counsel, Mr OmkarDevdas, alleged that the authorities dismissed the petitioner's request for a family pension. It was also argued that the authorities had treated the petitioner unjustly because she was a transsexual woman and had failed to provide her with the family pension she was entitled to when her parents died. The petitioner's counsel further claimed that the petitioner was a transsexual woman, as proven by a certificate issued by the District Magistrate on December 2, 2021.
CONTENTION OF THE RESPONDENT
The State's lawyer, on the other hand, said that the matter looked to be unprocessed and that it was awaiting consideration at the Accountant General (A&E), Odisha, Bhubaneswar. He further stated that the petitioner's case had previously been approved by the relevant authority, namely the Ex. Engineer, R W division.
JUDGEMENT
Considering the previously mentioned verifiable position and the examination of the regulation set somewhere near the Hon'ble Supreme Court of India and thinking about the entries made by the individual gatherings, this Court is of the considered view that the candidate as a transsexual has each option to pick her orientation and in like manner, she has presented her application for the award of family benefits under Section 56(1) [A1] of Odisha Civil Services (Pension) Rules, 1992. Further such right has been perceived and sanctioned by the judgment of the Honorable Apex Court in The National Legal Services Authority herein referred to as NALSA[A2] ’[A3] s Case and in that capacity, the law set somewhere around the Hon'ble Supreme Court is restricting on all. Subsequently, the current writ appeal documented by the applicant should be permitted and the equivalent is thus permitted.
PRECEDENT
The NALSA case judgment prompted the acknowledgement of transsexual individuals as the 'third orientation' by the Supreme Court of India, confirming that the principal privileges conceded under the Constitution of India will be similarly pertinent to them, and gave them the right to self-ID of their orientation as male, female or third orientation.
This case left a mark on the world and is a milestone choice which got a beam of light on the existence of transsexuals as it was a significant lawful advance to roll out an improvement towards the torment looked by one that segment of society which was the same despite everything confronted separation, since years. It was noticed the 'third orientation' character and maintained the essential freedoms of the LGBTQ people group in India. The judgment likewise guided State to do whatever it may take to elevate them financially and secure transsexual people's freedoms in all structures whether monetary, social, clinical, instructive or political and bring government assistance plans for them.
ANALYSIS
· In the case of NALSA vs. Union of India, the petitioner references the Supreme Court of India's ruling. All human beings are born free and equal in dignity and rights, according to Article 1 of the Universal Declaration of Human Rights, which was established in 1948. According to Article 3 of the Universal Declaration of Human Rights, everyone has the right to life, liberty, and personal security.
· Article 14 of The Constitution of India, 1950 states that the state must not deny equality before the law or equal treatment under the law to "any individual" within India's territory.
· The Principal Accountant General has been ordered by the Court to give a family pension to an unmarried transgender kid of a deceased State government employee within six months, defending the legal rights of transgender people in accordance with the Supreme Court's decision in NALSA (supra).
According to the Court, the petitioner has the right to choose her gender as a transgender person, and she has asked for a family pension prescribed under the rules, [A5] 56(1) of the Odisha Civil Services (Pension) Rules, 1992. A right like this has also been recognized and legalized by the Supreme Court. As a result, the current writ petition of the petitioner ought to be granted. The analysis can be further critically analyzed in these cases where rights of the LGBTQ community are discussed, Naz Foundation vs Government of NCT Of Delhi[2], (WP(C) No.7455/2001) Justice (Retd) K S Puttaswamy vs Union of India[3](2017) 10 SCC 1, AIR 2017 SC 4161, Navtej Singh Johar v Union of India[4], (AIR 2018 SC 4321) and Arun Kumar v Inspector General of Registration[5](W.P. (MD) NO. 4125 OF 2019) etc.
CONCLUSION
Transgender people's freedom to self-identify as male, female, or third gender was also protected, with the federal and state governments obligated to recognize their gender identity as male, female, or third gender. The petitioner's plea was directed to be processed by the Principal Accountant General (A&E), Odisha, Bhubaneswar, within six weeks of the date of transmission.
BIBLIOGRAPHY
· Naz Judgement, 2009
· Justice (Retd) K S Puttaswamy vs Union of India
· Navtej Singh Johar v Union of India
· Arun Kumar v Inspector General of Registration
[1]NALSA vs Union of India Case, 2014 (AIR 2014 SC 1863)
[2]Naz Foundation vs Government of NCT Of Delhi, (WP(C) No.7455/2001)
[3]Justice (Retd) K S Puttaswamy vs Union of India (2017) 10 SCC 1, AIR 2017 SC 4161
[4]Navtej Singh Johar v Union of India, (AIR 2018 SC 4321)
[5]Arun Kumar v Inspector General of Registration (W.P. (MD) NO. 4125 OF 2019)
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