ACA Adityan
The applicant in this application, has filed W.P.No.4852 of 2008 before the Honourable High Court, Madras, which has subsequently been transferred to this Tribunal, after the formation of Armed Forces Tribunal under Armed Forces Tribunal Act 2007 and renumbered as T.A.No.27 of 2009.
2. This is an unfortunate case in which the applicant has been suffering from HIV (+) along with Tubercular Lymphadenitis. The applicant challenges the orders of the Respondents 6, 2, 3 and 4 passed in Ref.No.(a) Part II Order No.3/67/99 dated 17.11.1999, (b) Annexure-I dated 24.10.2000 of the second respondent, (c) letter No.B/40502/357/03/AG/PS-4(d) dated 04.04.2003 of the third respondent and (d) 1(90)/2007/D (Pen. A and C) dated 11.06.2007 of the fourth respondent and consequential relief of reinstatement of the applicant in a suitable alternative employment with backwages.
2(a) The applicant joined in the Army on 27.11.1989 as a âSAFAIWALA, in the rank of a SEPOY. After rendering 9 years 11 months and 21 days of Army service, the applicant was discharged from service on 13.11.1999. Even though in the discharge certificate dated 22.07.2000, the applicant was referred to as âSafaiwala, he was actually functioning as a Boxer throughout his stay of 9 years in the Army. During May 1999, when the applicant was an in-patient for fever, the Medical Authorities diagnosed him as suffering from AIDS with Tubercular Lymphadenitis. As per Part II Order dated 17.11.1999 passed by the 6th Respondent, the applicant was sent home invaliding him under the medical category on 13.11.1999. The applicants claim for disability pension was also dismissed by the Principal Controller of Defence Accounts (Pensions), Allahabad, holding his disease under which the applicant is suffering is due to his own negligence and is not related to military service. The first appeal preferred by the applicant to ACFA, Ministry of Defence, New Delhi, was also rejected. The second appeal preferred by the applicant to DMAC has also met with the same fate of the first appeal. The DG AFMS did not apparently go through them to find out if there is âany service source of infection. Through the appeal dated 30.03.2005, the applicant had brought to the notice of the DMAC, the liberal grant of disability pension by ACFA to another solder viz. T. Govindarajan, having similar disease of AIDS with TB. Even though the PCDA, Allahabad, had rejected the disability pension of the said T.Govindarajan, on appeal preferred by his wife Smt.Radha, the same was allowed by the appellate authority.
2(b) In the letter dated 18.09.2007, the Ministry of Defence has stated that the applicants disease was T.B. Lymphadenitis and that the said Tubercular Lymphadenitis âappeared after affected by HIV infection and that the Tuberculosis followed HIV-infection. It has also been stated that since Tuberculosis followed HIV, and HIV being not attributable to military service, the Tuberculosis was also held likewise. Tuberculosis is the most common opportunistic disease, the web site of National AIDS Control Organisation (NACO) says. If one is affected with Tuberculosis after the HIV-infection, then such Tuberclosis is called an opportunistic disease be fallen the patient already with HIV infection. The said T.Govindarajan did not put up the requisite minimum length of service to become eligible for service pension. But, the Artillery Records, vide letter dated 07.11.2005, granted service pension to him for the period he was alive, after his invalidation from Army ie., 21.12.2000 to 13.02.2001 and subsequently, his family also got family pension after his death. In the case of the applicant he was denied both the service pension and disability pension.
2(c) In their letter dated 18.09.2007, Ministry of Defence has solicited the applicants appreciation, as the DMAC had arrived at the conclusion âafter going through the opinion given by all the membersâ. It is ironical to find this information, as it is 100% false, if one makes a cursory look at the pages of said MOD file. None of the members have given their opinion individually. The DMACP (Service HQrs) and the JAG (Navy) have only stated that they agree to the views of competent medical authority. The Special Secretary went one step ahead and has apparently forced the Special Secretary for âhis approval since he proposed to reject the appeal. The Invaliding Medical Board had held the applicants disability at 60%, which calls for payment of disability pension @ 60% of Rs.1,550/- ie., Rs.930/- per month. Even this was not granted, whereas it was granted in the case of said Govindarajan. The applicants illness was noticed only during 1999. By 1999, this epidemic was not in alarming proportion in our country, since the Government organizations, National AIDS Control Organisation, itself was formed only in 1992 to control the AIDS in India.
2(d) It was a cardinal duty for the Medical Authorities to try to investigate the presence of any possibility of infection through other source except illicit-sex. Instead, they have apparently acted cynically in the applicants case with a pre-set mind and have causally attributed its acquisition to the applicants character/fidelity resulting in the denial of disability pension to the applicant. In the only copy of the medical opinion (of October 1999) which the applicant had managed to get with the help of Hospital staff, it is noted that the applicant had a âsingle exposure of illicit sex with a CSW (Commercial Sex Worker). The Boxing competitors from both Army and Civil were not subjected to any screening test for HIV/AIDS prior to the tournaments. There are fair numbers of chances that the injections were made through unsterilised and contaminated syringes to treat the wounds of the boxers.
2(e) In Army, the Jawans are regularly subjected to Dental checkups. They are sent in batches to undergo the periodical tests and treatments like cleaning of cavities, roots, gums, removal of bad tooth, surgical removal of swollen gums, etc, if necessary. All these involve instruments capable of piercing and puncturing the mucous membrane of the mouth. This is another open and highly vulnerable point for easy HIV infection. There are cases where people got AIDS through Dentists, as they use skin-piercing instruments intended to penetrate the skin that results in bleeding. It is another source of the HIV-infection which the applicant passed through, twice a year during his entire service. During the applicants career as a Boxer, he had to get 3 upper molars on the left and 2 upper molars on the right (totally 5 teeth) intermittently removed from the Dental Clinics. So, apart from regular periodical check-ups, at least on five occasions, injections, cotton, medicines and piercing instruments were applied in side his mouth to remove his shaky teeth. As such, the applicant might have acquired HIV infection in these dental clinics too, through the infected instruments/syringes/medicines/cotton/water. Therefore, the acquisition of this disease was not due to any immoral act, but mainly owing to the live blood-to-blood contacts during the boxing combats, which was the applicants life time job allotted by his Army Units, and during dental and medical treatments.
2(f) The bone of contention between the applicant and the Army Authorities is about the source of infection of HIV-virus. Medical Authorities have held that there is absence of documentary service-source of infection and therefore have held it as acquired by the applicant through sexual route. The applicant had ever involved in any such immoral activity. The Specialist Medical Officer Lt Col Arunachalam made no enquiry whatsoever, while he was recording his opinion and spoke of it only after completing it. He also informed that the applicant would get 60% disability pension as per his recommendations. Even before the Medical Authorities the applicant has stated that he never had any exposure to any CSW in his life. But contrary to all medical ethics, the Medical Authorities have mentioned that the applicant got the disease due to exposure to CSW. The applicant learnt of his HIV infection only in May 1999 during his in patient treatment in Military Hospital at Dimapur. The applicant has been blessed with a daughter out of his wed-lock held in February 1996. The applicants daughter was born on 10.3.1998 and the second child, a boy, was also born on 11.12.1999. In August 2006, the applicants wife was surgically treated for her Piles problem. Only by then, they came to know that his wife too stands infected with HIV infection, as can be seen from the hospitals discharge summary dated 04.08.2006. But the children were not affected by HIV. Only on 12.02.2008, both the children were subjected to HIV test and the report revealed that they are not HIV (+), but HIV (-). Hence, the submission of the applicant of âhaving got the HIV infection only through the bleeding sport of Boxing or from the Dental Clinicsâ, withstands all kinds of scrutiny. As a natural corollary, the HIV infection becomes attributable to Military service resulting in payment of the attendant retirement benefits, with arrears, to the applicant.
2(g) Both the first appellate and the second appellate Authorities have not passed any speaking order. The applicant is alive even after 9 years of detection of the disease, with the treatment the applicant could get from Civil Hospitals. Owing to the treatment given in the military hospitals, the applicant was fast recovering from the opportunistic disease, ie., TB. BY around October 1999, the applicant was almost free from Lymphadenitis with no swelling in the Lymph nodes. So, the Authorities would have retained the applicant in the Army for another 5 years and in the normal way, the applicant would have become eligible for service pension. Assuming that AIDS was obtained by the applicant through illicit means, then also the Army is responsible for providing relief to the applicant since he remained in continued isolation from his family for at least 10 months in every year. The applicants claim was sent by the Record Office to PCDA, Allahabad with their letter dated 29.09.2000 ie., after 10 months from the date of discharge of the applicant from the Army. Only on 7.3.2001 ie., after 5 months, the decision was taken by the PCDA and the same was communicated through the letter dated 17.4.2001. The applicants first appeal, dated 7.5.2001, was submitted to ACFA on 30.5.2001 and the decision was communicated through the letter dated 4.4.2003 ie., after nearly 2 years. The applicants original second appeal, dated 01.05.2003, was never decided. Therefore, a fresh second appeal, dated 30.3.2005, was submitted and a decision was taken only on 11.06.2007, after 26 months. As per the letter dated 11.6.2007, the applicants service was terminated without any pensionary benefits. Hence, the petition.
3. The respondents in their common counter would contend that the applicant M.Madheswaran, No.2594537K Ex Sep (Safai) was enrolled in The Madras Regiment on 27th November 1989 and invalided out of service under medical category âEEE due to âAIDS with Tubercular Lymphadenitis, after rendering 9 years, 11 months and 21 days service under Army Rule 13(3)III(iii) with effect from 12th November 1999. There is no record of his participation in boxing competition and his hospitalization as claimed due to injury in boxing is available in his service documents. As per entries in his service documents, he was hospitalized in military hospital, Meerut only for Invalid Medical Board on account of âAids with Tubercular Lymphadenitisâ.
3(a) The medical inspection in the Army is a regular feature. The applicant was initially detected as a case of HIV (+) while under investigation for LYMPADENOPATHY at 183 Military Hospital on 3rd May 1999 for further evaluation and disposal. Thereafter, he was transferred to Command Hospital (Eastern Command), Kolkatta on 7th May 1999 for detailed investigation and opinion of Classified Specialist. The applicant was admitted in Command Hospital (Eastern Command), Kolkatta from 9th May 1999 to 6th August 1999 and during the period, he was investigated thoroughly by different specialists and established as a case of HIV (+). It is pertinent to mention that HIV (+) samples were confirmed by National Institute of Cholera and Enteric diseases, Kolkatta vide their letter No.10-2/99 AIDS dated 20th May 1999. Accordingly, the applicant was recommended to be invalided out of service in medical category âEEE by Lt Col R.Arunachalam, Classified Specialist (Medicine and Rheumatologist) at Command Hospital, (Eastern Command), Kolkatta and subsequently he was transferred to Military Hospital, Meerut, where his unit was stationed for invaliding out of service.
3(b) The Principal Controller of Defence Accounts (Pension, Allahabad, had rejected the disability pension claim of the applicant vide their letter NO.G-3/59/137/10-2000 dated 7th February 2001 stating that the disability for which the individual was invalided out of service is neither attributable to nor aggravated by military service and the disability is constitutional in nature and not related to military service. The fact was communicated to the individual with an advise to prefer an appeal to Government of India, Ministry of Defence against rejection of his disability pension claim by Principal Controller of Defence Accounts (pension), Allahabad, if he so desires, within six months from 7th February 2001 vide letter No.259453/DP/39/PG-3 dated 17th April 2001. The applicant submitted an appeal to Government of India, Ministry of Defence vide his application dated 7th May 2001 and the same was forwarded to Principal Controller of Defence Accounts (pension), Allahabad vide letter No.2594537/DP/45/PG-3 dated 30th May 2001, who in turn submitted the appeal to Integrated Headquarters of Ministry of Defence (Army) vide their letter No.G3/1/59/137/10-2000 dated 3rd September 2001 for finalization/disposal. The Appellate Committee on First Appals (ACFA) at Integrated Headquarters of Ministry of Defence (Army) had carefully considered the appeal and intimated their decision direct to the applicant vide their letter No.B/40502/357/03/AG/TS-4(d) dated 4th April 2003 with direction to prefer second appeal to Defence Ministers Appellate Committee on pensions, through Record Office, if he is not satisfied with the decision of the ACFA. Accordingly, the applicant had preferred his second appeal vide his petition dated 30th March 2005, which was also rejected by Defence Ministers Appellate Committee vide Government of India, Ministry of Defence letter No.1(90)/2007/D(Pen.A and AC) dated 11th June 2007.
3(c) There is no record of his participation in boxing competition in his service documents. The respondent further submit that the contention of the applicant that he never had any illicit sexual relationship with any one, before and after his marriage is known to him only, on the other hand he married on 23rd February 1996 as per his service records. As per medical case sheet dated 5th August 1999 the applicant has given a history of single exposure to CSW (Commercial Sex Worker) in 1992 ie., before his marriage.
3(d) The HIV / AIDS is well known to even laymen to be a sexually transmitted disease. From the medical documents and service documents it is clear that there was no evidence of any documented injury referable to military service that could have lead to his disability. In the Armed Forces there is a provision to declare any hazardous injury, which is investigated and the concerned individual is kept under surveillance. No such injury was declared by the applicant. There was no history of blood transfusion with untested blood. The applicant was not a health care worker to get exposed to HIV hazard during the course of duty. At the same time there was history of high risk behaviour of the applicant as recorded in the medical documents (AFMSF-16). Hence, under medical rationale the disability cannot be attributed to any cause other than sexual exposure on the basis of scientific evidence. There is no scope to entertain any fanciful, vague and remote possibilities when sufficient evidence exists for sexual transmission.
3(e) The applicant is claiming now that his disability was acquired due to boxing. In medical literature no case of transmission of HIV due to any sports has ever been reported from anywhere in the world. Transmission of HIV by close contact sporting activities like boxing, wrestling, rugby or soccer is only a theoretical possibility but chances are so remote as to be considered as negligible as casual contact. HIV can get transmitted theoretically through such contact with body fluids mainly when the patient is harbouring the virus in very high number (viral load) like in full blown AIDS stage of during the first acute HIV illness. At both stages no human would be fit enough to carry out even daily chores leave alone taking part in a bout of boxing. On the other hand AIDS surveillance data from 1986 onwards in India shows that sexual transmission is the main mode of transmission accounting for up to 86% of cases. Hence, contention of the applicant that his disability was acquired through boxing ignoring his high risk behaviour is illogical. While conceding attributability, evidence to be accepted should be of a degree of cogency which even if no reaching certainty, nevertheless carries a high degree of probability. Benefit of doubt is conceded when the evidences are evenly balanced as to render impracticable a determinate conclusion one way or the other. In such a situation benefit is given to the appellant. However, in this instant case keeping in mind the scientific probabilities, transmission of HIV due to his sports activity is of course theoretically possible but not in the least probable while transmission of HIV by heterosexual route is eminently possible and highly probable. Hence, the opinion of DGAFMS is given on medical rationale weighing all the possibilities and after considering all the factors and grounds presented by the appellant in his appeal. Acquiring an infection through sexual contact cannot be held as attributable to nor aggravated by military service under terms of Rule 15 of Entitlement Rules for Casualty Pensionary awards 1982 and also Para 1 of Chapter VI of Guide to Medical Officers (Military Pensions) 2002. It has no causal relation whatsoever with military service. Giving eloquent sermons on unconnected issues does not justify the grounds on the applicant. Conceding the applicants claim would amount to accepting that any casual contact would lead to transmission of HIV, which is against accepted medical knowledge. It would also lead to a paradoxical situation whereby no HIV positive personnel could be retained in service, due to risk to other serving soldiers
3(f) n medical literature there has never been a case of confirmed transmission of HIV due to any sports from anywhere in the world. Transmission of HIV by close contact sporting activities like boxing, wrestling, rugby or soccer is only a theoretical possibility but probabilities are extremely remote. Persuasively discoursing on remote possibilities does not merit the applicants case for acceptance. In the Armed Forces Medical Services only disposable syringes and needles are used and there is no chance of transmitting HIV through contaminated syringes. Accepting the applicants claim would amount to defying all medical rationale. It would also lead to situation where by all HIV positive persons would become a risk to other serving soldiers as well as society. Hence, the applicants arguments are illogical and do not merit consideration.
3(g) laiming 100% chance of transmission of HIV by boxing is preposterous when the ground reality is that no case due to any sports activity has ever been reported in world medical literature. The applicant is intentionally exaggerating such chances to misguide the Court. Admission of high risk behaviour involving heterosexual contact with commercial sex workers is documented in the medical documents. The classified specialist [Medical and Rheumatologist of Command Hospital (Eastern Command)], Kolkatta has recorded his medical opinion in medical case sheet that the applicant has given history of single exposure to Commercial Sex Worker (CSW) in 1992. Based on this recorded information, the invalid medical board has arrived at the conclusion that ibid âsingle exposure could be the cause of disability which is not connected to his military service. Therefore, the applicant is not entitled to disability pension. It is reiterated that conceding the applicants claim of contacting HIV through boxing amount to accepting that any casual contact with a HIV positive individual would lead to transmission of HIV, which is against accepted medical knowledge. As a corollary it would also amount to an untenable view that all HIV positive individuals should be ostracised. Hence, the applicants averments are against all accepted norms. Dental treatment in Armed Forces is delivered under complete Universal Safety Precautions using only disposable or sterilized equipment. Hence, transmission of HIV through dental instruments is so extremely remote as to be improbable. The contention of the applicant is not correct since the appeals against rejection of disability pension are considered by an Appellate Committee and not by any single individual competent authority. All relevant service and medical documents containing opinions of classified medical specialists are perused independently and carefully by the Appellate Committee before arriving at a decision. Appeals are never disposed off by the Appellate Authority in a jiffy manner. Accordingly the first and second appeals of the applicant were duly considered thoroughly by an Appellate Committee and rejected as the cause of disability is not connected to military service. The second appeal was disposed on 11th June 2007. The applicant tries to justify his admitted immoral activity. Jawans are authorized sufficient leave to go home. One or two exception in cases of suicides happened in few units and few such shooting incidents occurred cannot be the rule applicable for whole Indian Army. The causes are factually not due to denial of leave.
3(h) he applicant is invalided out of service because of HIV positive. Only those individuals who develop AIDS are invalided out in the interest of service as well as of the individual. In this instant case the applicant was HIV positive and had developed AIDS defining opportunistic infection ie., Tubercular Lymphadenitis. Hence, he had to be invalided out in his own interest and in the interest of the service. A soldier is not an ordinary citizen. He is entrusted with the guardianship of freedom and sovereignty of the motherland, which he has to protect at all costs. He is expected to be disciplined warrior having a high morale character. Visiting Commercial Sex Worker or out of bound areas for physical gratification is not only considered an act in violation of good order and military discipline but also as an immoral act by the society. A soldier is expected to have sufficient control over his emotions and biological drives. The applicant is trying to justify his immoral behaviour blaming the service conditions. Falling prey to such urges would make such a soldier a serious security hazard. Such an individual who has no control over his biological needs would be a welcome opportunity for enemies of the nation to exploit. Debating on unconnected imagined issue does not change the fact that his case does not merit disability pension in terms of Entitlement Rule 15 as well as Para 1 of Chapter VI of Guide to Medical Officers (Military Pensions) 2002.
3(i) The following terminal benefits have already been paid to the applicant_
a) Credit balance in his pay account: Rs.11,346/- (IRLA) paid in Aug 2000
b) Army Group Insurance Regular: Rs.1,16,582/- disability paid on 14 Sep 2000
c) AFPP Fund accumulations: Rs.67,821/- paid on 09 Oct 2000
d) Army Group Insurance Regular: Rs.16,276/- maturity benefit. Paid on 25th Jan 2001
e) Death-cum-retirement Gratuity: Rs.33,240/- paid on 25 Apr 2001
f) Invalid gratuity: Rs.44,320/- paid on 25 Apr 2001
The applicant has been invalided out of service rightly as per prevailing orders as he was unfit for further retention in service on being placed in low medical category âEEEâ. He is not eligible for disability pension as his disability is not connected to military service. As per his medical records, he had a single exposure to a Commercial Sex Worker during 1992 (prior to his marriage), which could be the cause of his disability as per medical opinion. Hence, the petition is liable to be dismissed.
4. The applicant has filed a rejoinder and another additional rejoinder denying the averments in the counter filed by the respondents. The respondents have filed a reply statement to the rejoinders of the applicant reiterating their stand taken in the counter.
5. Now the point for determination in this application is whether the orders of the Respondents 6, 2, 3 and 4 vide in Part II Order No.3/67/99 dated 17.11.1999 (passed by R6), order under Annexure-I dated 24.10.2000 (passed by R2), under letter No.b/40502/357/03/AG/PS-4(d) dated 04.04.2003 (of R3), under No.1(90)/2007/D (Pen. A and C) dated 11.06.2007 (of R4) in discharging the applicant from service on medical ground, are liable to be set aside and consequently the applicant is entitled to reinstatement in suitable alternative employment with pay protection, continuity of service, backwages as prayed for?
6. Point: Admitted facts are that the applicant had joined in Army as a Safaiwala, in the rank of Sepoy, on 27.11.1989 and after putting up 9 years, 11 months and 21 days of service, the first respondent had discharged the applicant by passing an order dated 22.07.2000 on the ground that the applicant was suffering from AIDS with Tubercular Lymphadenitis. The applicant was subjected to Medical Invaliding Board. As per part III of the opinion of the Medical Board, the disability under which the applicant was suffering (AIDS with Tubercular Lymphadenitis) is not attributable to service during peace or under field service condition and it was not aggravated by Army service and the disease is not connected with service. According to the learned counsel appearing for the applicant, the stand of the applicant is that the applicant was a Boxer in the Army service and if at all he would have infected AIDS, it is only due to the injury he had sustained in the boxing or through the injury of the competitor while contacting to the injury of the competitor and that it is attributable to the Army service and not otherwise as opined by the Medical Board. At para 34 to the affidavit to the application, the applicant would contend that he had in more than one occasion attended the Dental Clinic and through the infected instruments/syringes/medicines/cotton/ water, he might have acquired HIV infection. But absolutely there is not an iota of evidence produced by the applicant before any of the Authorities below, who have conducted the enquiry, in support of his contention that he had attended Dental clinic prior to his appearance before the Medical Invaliding Board and had treatment for his dental disease.
6(a) The applicant would also rely on a case of similar nature in a Sepoy by name Govindarajan, who was invalided out by the Army Medical Board, which was later set aside by the Court of Law for the same ailment, holding that the disease was attributable to Army service.
6(b) The learned JAG Officer has also produced the opinion of the Medical Invaliding Board relating to the said Govindarajan, No.15123816 (Ex-Gunner). The medical case sheet pertaining to the Gunner Govindarajan reads that he was suffering from TB Meningitis from September 1999 and he was treated at Vodupur and was sent on sick leave and he was medically categorized as âBEEâ and only in April 2000 he was diagnosed that he was suffering from AIDS-Dementia. Medical Report Part-II pertaining to the Said Govindarajan reads as follows:_
â(1) 24 years old serving soldier has been unwell since late 9 when he developed features of headache, fever, vomiting, admitted to MH Jodpur, evaluated and diagnosed as TBM Clinically and corroborated by LP-CSF. Patient improved. Sent on sick leave and in review at CHAF detected to be HIV +ve and was sent to CH (SC) for NARI confirmation which was done. In view of complete disease clearance, he was just given a category BEE physical permanent for HIV +ve IMMUNE SURVELILI. However he was not given a category for TBM at the time individual was exhibited 6 months STC. On completion of STC he was given category CEE physical permanent for TBM in Apr 2000.
(2)In October 2000 while returning from A/L he fell sick and has since had a rapid general and nerological deterioration. Admitted to MH Nasirabad and transferred to CH(SC) for neurology opinion.
(3)CLINICAL EVALUATION at CH(SC) showed an emaciated individual with gross AIDS-DEMENTIA STATE in that he has had an MMSE oft 1/30â
Thereafter, he was brought before the Medical Board. The opinion of the Medical Board reads that both Acquird Immune Deficiency Syndrome and Tubercular Meningitis were attributable to service during peace and under field service. But the Board has opined that the diseases are not aggravated to due to the military service and are also not connected with the service. It is the well settled proposition of law that once the Medical Board comes to a conclusion that the disease under which the individual is suffering is not attributable to Army service or not aggravated by Army Service and it is constitutional in nature, then he is entitled to disability pension. So on the basis of the opinion of the Medical Board only the said Govindarajan (Gunner) was granted disability pension.
6(c) But the opinion of the Medical Invaliding Board pertaining to the applicant herein reads that the disease HIV +ve along with Tubercular Lymphadenitis is not attributable to the Army service and also not aggravated to the service and is also not connected with service. Only under such circumstances, on the basis of the opinion of the Medical Board, the order of discharge, which is under question in this application, was passed by the first respondent communicated by the sixth respondent. So, the contention of the learned counsel for the applicant that a similar personnel of Army, who was suffering from the disease as to that of the applicant was given disability pension cannot hold any water.
6(d) Relying on Section 47 of PWD Act 1995 ie., The Persons With Disabilities Act, which reads_
â47(1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability;
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
the learned counsel for the applicant would contend that as per the above said provision of law, the applicant ought not to have been discharged on the ground of disability. In support of his contention the learned counsel for the applicant would also rely on the judgment rendered by the learned Single Judge of the Allahabad High Court in Mohd. Yasin Ansari Vs. Union of India, through the Secreatry, Ministry of Defence and others, dated 06.02.2006, wherein reliance was placed on paras 17 and 52, which runs as follows:-
âCol (Retd) R.A.Pandey, learned Counsel for the petitioner has amended the writ petitions challenging the notification dated 28.03.2002 on the ground that it is biased, arbitrary, discriminatory and ultra vires to tbe Act NO.1 of 1996, and is thus violative of Article 14, 16 and 21 of the Constitution of India. He submits that the Ministry of Social Justice and Empowerment, Government of India without making any alternative provisions for nearly 25 Lacs combatant personnel of the three Armed Forces of the Union of India, has not only violated the provisions of Act No.1 of 1996 in letter and spirit but has also arbitrarily denied the benefits of the Act as also the benefits of Army Order No.46 of 1980, Army HQ letter dated 15.3.2000 to these unfortunate personnel who acquire disabilities during service, without any justification.
â¦â¦â¦â¦
The Writ petitioner NO.17585 of 2003, Sep.2991576 K.Mohd.Yasin Ansari Vs. Union of India and Ors. 25959 of 2004, No.1534947N Ex Recruit Gyanendra Singh Vs. Union of India; 11212 of 2002 No.4272650M Ex. Sep Inder Deo Oraon Vs. Union of India and 18136 of 2004, NO.144363384P Ex Recruit Ishu Narayan Vs. Union of India as amended are consequently allowed. The notification dated 28.3.2002 under the proviso to Sub-Section (2) of Section 47 of the Persons with Disabilities (Equal Opportunities, Protections of Rights and Full Participation) Act, 1995, issued by Central Government exempting all categories of posts of combatant personnel of the Armed Forces from the provisions of the Section is held to be violative of Article 14, 21 of the Constitution of India and the Act No.1 of 1996, and is quashed. The respondents in these writ petitions which are allowed, and in which the orders of discharge and rejection of statutory petitions have been set aside, are directed to re-consider the medical category of these petitioners and if they are still found to be placed in permanent lower medical category, to consider them for sheltered appointed under Army Order No.46 of 1980, Army Rule 13 and Army HQ letters dated 9.6.1999 and 5.3.2000. They shall be reinstated in service with back wages and seniority before such consideration. They are also entitled to costs of writ petitions filed by them.â
Per contra, the learned JAG Officer submits that the said dictum of the Single Judge was challenged before the Honourable Division Bench of the Allahabad High Court and the same was set aside. The said judgment was reported in Mil LJ 2006 ALL 177 (Union of India and Ors Vs. Mohd Yasin Ansari). The relevant observation of the Division Bench of the Allahabad High Court runs as follows:-
âOur judgment is not to be interpreted as either approving or disapproving the impugned notification. The issue does not arise before us and we are bound by the above principle not to give our opinion on the academic issue simply because it is academic. With this clarification the quashing of the impugned notification by the Honble single Judge is set aside and the notification is to be treated as not affected in any manner either positively or negatively by any order or observations made by us or any order or observations made in the Court below.â
6(e) Another attempt was made by the learned counsel by contending that the notification exempting Section 47(1) and (2) was published only on 28th March 2002, hence this will not be applicable to the present facts of the case because the order of discharge of the applicant on the ground of medical disability was originaly passed by the first respondent on 17.11.1999. But the notification does not say whether it has got prospective effect or retrospective effect. Even if the applicant has got any grievance in respect of this notification it cannot be challenged before this forum. Under such circumstances, we are of the considered opinion that whenever a notification is published in the Gazette that will have both prospective as well as retrospective effect and it cannot be said that it has only prospective effect, unless and otherwise the same is provided in the notification itself.
6(f) The applicant infact challenges the Medical Invaliding opinion of the Board. What sanctity can be attached to the opinion of the Medical Board has been dealt with in a latest Judgment of the Honourable Apex Court reported in 2009(8) MLJ 1475 (Secretary, Ministry of Defence and others Vs. Damodaran A.V (Dead) through LRs and others). The brief facts of the said case relevant for the purpose of deciding this application are as follows:- The petitioner therein A.V.Damodaran was enrolled in the Indian Army as Sapper in the Madras Engineers Group on 28.11.1979. After completion of basic training he was posted to 1st Engineer Regiment. A.V.Damodaran was admitted to MI Allahabad and was diagnosed to be suffering from Malaria B.T. on 24.6.1984 and he was discharged from the hospital on 30.6.1984 and was again admitted in the Air Force Hospital, Jhansi because he was suffering from Hallucination. A.V.Damodaran was transferred to the Command Hospital, Lucknow for management by a psychiatrist on 5.7.1984. The disability of A.V.Damodaran was diagnosed as Schizophrenia (295) in peace station in July 1984. On 17.1.1985 the Medical Board recommended him to be invalided out of service in medical category âEEE with 60% disability for a period of two years due to the disease Schizophrenia (295). The Medical Board had opined that the disability of A.V.Damodaran was not attributable to the military service nor has it been aggravated thereby and it is not connected with the service as Schizophrenia is a constitutional disease. The opinion of the Medical Board reads as under_
OPINION
This is a case of Schizophrenia in a young officer with 5 years service with no disorder of through peruption, behaviour and irrational incongruity. He also exhibited impairment of judgment and might onset July 84. He has been treated with neuroleptis, electroplexy and psychotherapy. Response to therapy has been satisfactory. There is no evidence of active present features of illness at present.
However, in view of early onset of the illness, a short period of service and chances of relapse in future under stress and strain of military service, he is considered unfit for further service. Recommended medical category EEE
(Psychological).
He has been reviewed by the medical specialist and no physical contributory factor elicited for his psychiatric breakdown. In abetment assessed is 60% (sixty percent) disability neither attributable nor aggravated by service.
Langevity : Average
AFMSF 16281 along with related documents.
The writ petition filed by the legal heir of the said A.V.Damodaran for the relief of grant of disability pension was ordered by a single judge of the High Court, Kerala. The Department filed a Writ Appeal before the same High Court. The said Writ Appeal was also dismissed. Against which the said Civil Appeal was preferred before the Honourable Apex Court. The moot point that arose before the Honourable Apex Court was that whether the petitioners therein are entitled to the grant of disability pension under the provisions as contained in Regulation 173 of the Pension Regulations for the Army, 1961 and such other enabling provisions? After elaborately discussing several citations on the point their Lordships have ultimately held at para 7, 8 and 9 (Judgment of Honourable Dr.Mudundakamsharma, J.,) as follows:-
â7. The aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of Section 173 of the Pension Regulations including other relevant provisions came to be considered by the Supreme Court. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure, guidelines and principles as to under what circumstances a person could be said to be medically unfit and disabled and is to be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension.
8. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than âAYE (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. The said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease / injury has a causal connection with military service or not. On the basis of the same, they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. The second aspect which is also examined is the extent to which the function capacity of the individual is impaired. The said is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual.
9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries / illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service.â
So, in the present case also the opinion of the Medical Invaliding Board is to the effect that the disease suffered by the applicant is neither attributable to nor aggravated by the Army service and is constitutional in nature. Only on the basis of the Medical Boards opinion, the sixth respondent issued the discharge certificate, which in our considered opinion cannot be interfered with. Point is answered accordingly.
7. In fine, taking into consideration the services of 9 years, 11 months and 21 days of the applicant and the plight of the applicant and his sufferings to which the applicant would have undergone from the date of discharge, We are of the considered view that the applicants case is a fit one for considering for the grant of invalid pension to which he is short of 9 days (as per Pension Regulations). So, We recommend the fifth respondent to sympathetically consider the case of the applicant for grant of invalid pension under Rule 198 of the Pension Regulations Act, 1960. In other respects, this application is dismissed. No costs. We record with appreciations the valuable services rendered by the learned JAG Officer Lt Col Sandeep Kumar and also the learned Counsel for the applicant Mr.S.Vaidyanathan.