Allowed

Miss B. Kavitha v. the Chennai Port Authority

Madras HC21 Mar 2024WP/3819/2024

Case brief

AI extract

What is this about?

The Court allowed the writ petition, quashing the order denying family pension to a transgender petitioner. The Court directed the Port Authority to treat the petitioner as an unmarried daughter based on Supreme Court precedents and State Government orders, directing sanction of pension with arrears and interest from the date of the mother's death.

What did the court decide?

Quashed the rejection order. Directed respondents to sanction family pension with effect from 22.11.2021, pay arrears with 6% interest, and continue pension for lifetime.

Miss B. Kavitha Vs the Chennai Port Authority — Pension and Retirement Benefits | Madras HC (2024)

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W.P.No.3819 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.03.2024

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CORAM :

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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W.P.No.3819 of 2024 and W.M.P.Nos.4124 & 4125 of 2024

B.Kavitha

...Petitioner

-Vs-

Chennai Port Authority, Rep. by the Chairperson, No.1, Rajaji Salai, Chennai-600 001.

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The Secretary, Chennai Port Authority, No.1, Rajaji Salai, Chennai-600 001. ...Respondents

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Prayer : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the Order No.ICM3/2665/2022/GA dated 12.01.2023 issued by the 2nd respondent, quash the same as illegal and consequently direct the Respondents to consider the unmarried certificate dated 24.07.2022 of the petitioner and to sanction family pension to the petitioner with effect from the date of death of her mother with arrears and interest for delayed payment of family pension.

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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For petitioner : Mrs.S.Meenakshi For respondents : Mr.P.Ulaganathan, Standing Counsel

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ORDER

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This writ petition has been filed challenging the order passed by

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the 2nd respondent dated 24.07.2022 thereby rejected the request made by

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the petitioner seeking family pension.

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The petitioner's father who was employed under the first respondent as RP TINDAL and retired on 07.10.1995. He was disbursed with all retirement benefits and he had received pension. After his demise the petitioner's mother was granted family pension. The petitioner's father died leaving behind petitioner's mother, three sons and 4 daughters. The petitioner's brothers and sisters already got married. Insofar as the petitioner is concerned she was born on 01.06.1969 as a male child and he was named as B.Kanthinathan. During his teenage he was identified himself as a female. Therefore, the petitioner became Trans women. Accordingly, she changed her name as B.Kavitha. She did not get married to anybody. However, while issuance of legal heirship certificate the petitioner was 2/10

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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mentioned as B.Kanthinathan and in the column of marital status as married. It was mistakenly entered as ditto mark. After demise of her mother no one is there to take care of her life in her family. All her brothers and sisters got married and live separately. Since the petitioner is trans women no one is ready and willing to take care of the petitioner. Therefore, the petitioner approached the respondents for family pension on demise of her father and subsequent to her mother. It was denied on the ground that the rule does not permits for any family pension for the petitioner since the petitioner is not eligible for family pension. Further stated that the petitioner's name was already delinked from the dependents list of Mr.D.Balakrishnan.

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On perusal of the counter filed by the 3rd respondent revealed

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that the petitioner was originally named as B.Kanthinathan and his name was mentioned in the legalheirship certificate and his age was mentioned as 24 years and his marital status shown as married. Thereafter, he had undergone surgery (Transplantation of Sexual Organs) and the petitioner was certified as trans women dated 04.01.2010. The petitioner had

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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undergone surgery on 13.02.2002 at Multi-Specialty Hospital, Kadappa for sex Reassignment Surgery. Further, the Chennai Port Trust (Pension) Regulation, 1987 Rule 46 says that son including legally adopted son who has not attained the age of 21 years and unmarried daughter including legally adopted unmarried daughter who has not attained the age of 24 years alone entitle for family pension. In case of son until he attains the age of 21 years and in the case of unmarried daughter, until she attains the age of 24 years or gets married whichever is earlier. Therefore, the petitioner is not entitle for family pension. That apart, as per legal heirship certificate the deceased employee declared his wife, 18 year old daughter and this petitioner as son as his dependents. After the demise of the petitioner's father, the mother of the petitioner furnished the legal heirship certificate wherein the name of the petitioner is given as married son. The petitioner was declared as trans women. In fact, no proof furnished by the petitioner that she was a Dependant female of the family. On her conversion of the gender status, it is necessary to prove that she was unmarried and dependent on the family.

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The learned counsel for the petitioner relied upon the judgment

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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of the Hon'ble Supreme Court of India in the case of National Legal

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Services Authority vs Union of India & ors reported in 2014 (5) SCC 438 in which the Hon'ble Supreme Court of India held as follows:

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''120. Further, there seems to be no reason why a transgender must be denied of basic human rights which includes right of life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights of transgenders. Now, it is time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people. All this can be achieved if the beginning is made with the recognition of TG as third gender.

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121. In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper ''sex''. As is stated earlier, at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only

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W.P.No.3819 of 2024

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improper as it is far from truth, but undignified to these TGs and violates their human rights.''

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Now the petitioner is recognized as trans women. She was also

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certified as trans women by the certificate dated 04.01.2010 and she was also certified as unmarried by the certificate dated 24.07.2022 by the Tahsildar it revealed that the petitioner is unmarried as on 24.07.2022. The petitioner also changed her name from Kanthinathan to Kavitha and it is duly published in the Tamilnadu Government Gazette. In pursuant to the order passed by the Hon'ble Supreme Court of India the Government of Tamilnadu passed an order in G.O.Ms.No.180, Finance (Pension) Department of Government of Tamilnadu thereby ordered to treat the transgender/Eunuch (Thirunangai/Aravani) child of the government servant/Pensioners as woman child for grant of family pension even beyond the age of 25 years as that of the unmarried daughters subject to the fulfillment of the other conditions. The Human Rights Commission also recommended in respect of the welfare of the transgender that single trans child of a deceased Government employee or pensioner, may be treated as an unmarried daughter for the family pension and other benefits. However, the

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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respondents have not amended the rules so far. It is relevant to extract the

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Rule 46(c) and 48(2) of Chennai Port Trust (Pension) Regulations, 1987

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''(c) Son including legally adopted son who has not attained the age of 21 years and unmarried daughter including legally adopted unmarried daughter who has not attained the age of 24 years.

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48(ii) In the case of son until he attains the age of 21 years and in the case of unmarried daughter, until she attains the age of 24 years or gets married whichever is earlier.''

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In which it does not mentioned about transgender/Eunuch (Thirunangai/Aravani). The said rule is not applicable to the petitioner she is being a trans women as per Hon'ble Supreme Court of India and the Government order passed by the State of Tamilnadu the petitioner has to be treated as unmarried daughter and she is entitle for family pension even beyond the age of 25 years.

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W.P.No.3819 of 2024

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In view of the above, the order passed by the 2nd respondent

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dated 12.01.2023 cannot be sustained and liable to be quashed. Accordingly, the order passed by the 2nd respondent dated 12.01.2023 is quashed. The respondents are directed to sanction family pension to the petitioner with effect from the date of her mother's demise i.e., on 22.11.2021 and disburse the arrears with interest at the rate of 6% per annum and continue family pension till her life time.

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With the above direction, this writ petition is allowed.

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Consequently, connected miscellaneous petitions are closed. No costs.

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21.03.2024

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Index : Yes/No Speaking/Non Speaking Order Neutral citation : Yes/No gvn

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https://www.mhc.tn.gov.in/judis

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W.P.No.3819 of 2024

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Chennai Port Authority, Rep. by the Chairperson, No.1, Rajaji Salai, Chennai-600 001.

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The Secretary, Chennai Port Authority, No.1, Rajaji Salai, Chennai-600 001.

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G.K.ILANTHIRAIYAN,J.

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W.P.No.3819 of 2024

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W.P.No.3819 of 2024

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Miss B. Kavitha v. the Chennai Port Authority

Case brief

What is this about?

What did the court decide?

Miss B. Kavitha v. the Chennai Port Authority

Case brief

What is this about?

What did the court decide?

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