While awarding an Indian army havaldar discharged from duty at the young age of 27 for being unfit for service ₹50 lakh for wrongful diagnosis of AIDS, the Supreme Court has underlined the deep-rooted bias against such patients in the armed forces.
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IN a significant judgment, the Supreme Court on Wednesday awarded a compensation of ₹50 lakh to a person who was discharged from the Indian army on account of a wrongful diagnosis of acquired immunodeficiency syndrome (AIDS).
A Bench comprising Justices Sanjiv Khanna and Dipankar Dutta was ruling on a petition filed by Satyanand Singh challenging an Order passed by the principal Bench of the Armed Forces Tribunal at New Delhi (AFT), whereby the AFT rejected the appellant's prayer seeking reference of his diagnosis as AIDS inflicted, to a fresh medical board.
The Bench also declared that Singh would be entitled to pension in accordance with law as if he had continued in service as a havaldar and on completion of the required years of service retired as such without being invalided.
Singh was enrolled in the Indian army on October 20, 1993 as a havaldar. He continued discharging his duties on a clerical post without impediment until the year 1999 when he began suffering from fever, headache and vomiting.
“Singh was enrolled in the Indian army on October 20, 1993 as a havaldar.
For treatment, he was referred to the Jabalpur Military Hospital. Here, the appellant tested positive for human immunodeficiency virus (HIV). On January 9, 2000, the Army headquarters issued a notice stating that all persons who were HIV positive and were suffering from pulmonary or extrapulmonary tuberculosis, would be considered as AIDS cases.
On August 20, 2001, the appellant developed similar symptoms yet again, for which he was referred to the Jabalpur Military Hospital. The doctors at the hospital prescribed certain medicines to the appellant, which he claims led to his developing double vision.
The appellant was referred to the Command Hospital at Pune for further treatment. In view of the appellant's ocular afflictions, the doctors, suspecting it to be a symptom of neuro-tuberculosis, began treating him for the same.
As per the medical report dated September 14, 2001, the appellant was reported to be suffering from "AIDS-defining illness in the form of neuro-3 tuberculosis", and thus was officially diagnosed with AIDS.
The appellant was then recommended to be invalided out in the 'P5' category. As per the medical categorisation of the army, 'P5' referred to those persons who were suffering from "gross limitations in physical capacity and stamina".
As a consequence of the medical report, the appellant was referred to the invaliding medical board, which confirmed his diagnosis of suffering from AIDS. On December 26, 2001, after eight years and 58 days of service, at the young age of 27, the appellant was discharged from service under Rule 13 (3), Item III (iii) of the Army Rules, 1954 on the ground of having been found medically unfit for further service.
On May 23, 2003, the Guidelines for Management and Prevention of HIV/AIDS Infection in the Armed Forces came into force. In a shift from the notice dated January 9, 2000, the 2003 policy included into its consideration the CD4 cell count of the personnel, and provided that the condition for invalidment would be a CD4 cell count below 200 cells/mm3.
The appellant filed a petition in the Madhya Pradesh High Court, seeking quashing of the discharge Order dated December 26, 2001 and reinstatement with all consequential benefits.
“In view of the appellant's ocular afflictions, the doctors, suspecting it to be a symptom of neuro-tuberculosis, began treating him for the same.
On April 20, 2006, a single judge allowed the petition. However, on March 28, 2007, a division Bench under appeal quashed the single-judge Order. The review petition was also dismissed by the division Bench.
The appellant challenged both the Orders before the Supreme Court. On April 1, 2009, the Supreme Court allowed the appellant to withdraw his appeal, while directing that he could avail of the available statutory remedies.
The appellant availed of his statutory remedy by making an application to the director-general of the Armed Forces Medical Service seeking a review medical board.
On October 20, 2009, the director-general rejected the appellant's prayer on the ground that the criteria for discharge were satisfied in terms of the army's prevailing policy at the time, i.e., the Guidelines for Prevention and Control of HIV Infections in the Armed Forces, dated November 30, 1992 adding that the appellant was also denied disability pension, AIDS being categorised as a self-inflicted condition.
The appellant challenged the Order issued by the director-general before the AFT. On September 5, 2012, the AFT rejected his prayer on the ground that the medical report had concluded after sufficient investigation and detail that he was suffering from (i) CNS tuberculosis and (ii) Immune surveillance for HIV.
“The appellant filed a petition in the Madhya Pradesh High Court, seeking quashing of the discharge Order dated December 26, 2001 and reinstatement with all consequential benefits.
The appellant had argued that he was misdiagnosed with AIDS, his CD4 cell count being 379 cells/mm3 till as late as August 8, 2012 as opposed to the benchmark of 200 cells/mm3 set by the World Health Organisation.
The AFT rejected this argument on the ground that such a CD4 cell count was "marginal" and would not entitle the appellant to be declared AIDS-free, thus obviating the need for referring him to a review medical board.
It was this Order which was the subject matter of the challenge before the Supreme Court.
The Bench opined that it was a case of wrong diagnosis and false alarm with imperiling consequences for the appellant. It rejected the contention of the army that the doctors in 2001 had used their best professional judgment to opine that the appellant was HIV positive, citing the absence of any medical literature to show that the test results as per then prevailing medical standards justified the diagnosis that the appellant was suffering from AIDS-defining illness.
The Bench noted that the appellant was diagnosed with neuro tuberculosis, which diagnosis was without examination by a neurologist whose opinion would seem to be elementary. It disagreed with the view taken by the AFT that the need for a medical specialist was fulfilled by placing an oncologist on the medical board.
It said that the appellant, while serving in the army, was being prematurely discharged, an action that required extreme caution and care in ensuring correct diagnoses.
“The AFT rejected this argument on the ground that such a CD4 cell count was "marginal" and would not entitle the appellant to be declared AIDS-free, thus obviating the need for referring him to a review medical board.
"The respondents have deliberately tried to cover up the wrong diagnosis in spite of the 2003 guidelines and the test reports of the appellant. The respondents had the opportunity from 2007 onwards to rectify and correct themselves after the Order of the single judge of the high court dated April 20, 2006.
"The medical board, which was constituted upon the appellant availing the statutory remedy, arbitrarily, wrongly and in our opinion deliberately vide Order dated October 20, 2009 rejected the appellant's prayer on flimsy and wrong grounds by applying the 1992 guidelines. Even the disability pension was denied by categorising the appellant as suffering from AIDS, a self-inflicted condition," the Bench observed.
The Bench also noted that the appellant had submitted as many as four diagnostic reports between the period of 2007 and 2012 showing that his CD4 cell count was above 300 cells/mm3, as opposed to the respondents' 2003 guidelines defining an AIDS illness to be one where the CD4 cell count is below 200 cells/mm3.
"The apathetic attitude of the respondents to the appellant's plight is evident in the repeated submission that has been made before all fora, i.e., the appellant's case had been re-examined several times and thus did not merit another look.
It is borne out from the record that other than the medical report, which the appellant alleges was made by a doctor who did not treat him, and the review of such report by the invaliding medical board, his case was never again considered on its merits.
"The dismissal of the appellant's application by the director-general vide an Order dated October 20, 2009 can only be called perfunctory at best, since it did not take into account any of the material subsequently produced by the appellant," the Bench held.
The Bench observed that the appellant, who was trained to live a disciplined life since the tender age of 19, was unnecessarily and without cogent reason thrust into civilian life with little warning or preparation.
"The psychological trauma that such displacement can bring about needs no elaboration. However, the cruel passage of time has unfortunately rendered the appellant's original hopes of reinstatement an unrealised dream," the Bench added.
Going back to the notice under which the appellant was discharged, the Bench highlighted that the notice reveals that in terms of Para 6A, a person who has been diagnosed as HIV positive was expected to develop AIDS within six–eight years, and thereafter, have a limited lifespan of only one–two years.
"We cannot help but record reservation as the policy reflects the systemic discriminatory practice and predisposition treating HIV as aggravation of sexually transmitted disease and AIDS as self-inflicted.
"In arguendo, even going by the respondents' own policy, the appellant could not be said to be suffering from AIDS since, in flagrant defiance of the policy assessment, the appellant is reportedly still alive and suffering from no serious ailment," the Bench observed.
“"We cannot help but record reservation as the policy reflects the systemic discriminatory practice and predisposition treating HIV as aggravation of sexually transmitted disease and AIDS as self-inflicted," the Bench observed.
Commenting on the policy of the army, the Bench said that though AIDS was always deemed to be a self-inflicted disease, there was still a provision for conferring disability status to those afflicted with it. Yet, time and again, the army had mechanically denied the appellant's request for disability status in a most arbitrary and unreasonable manner.
"It is pertinent to note that in yet another instance of the deep-rooted bias against individuals diagnosed as HIV positive, the notice allows for sheltered appointments to those diagnosed with such a condition, while in the same breath stating that the provision of such sheltered appointments is an unlikely possibility," the Bench said.
The Bench said that the discriminatory sentiment of deeming persons who are HIV positive to be unfit for employment is starkly evident from the way in which the appellant had been responded to and treated by the various authorities.
"By misdiagnosing the appellant with AIDS, the respondents indubitably subjected the appellant to further misery in not only combating social stigma against a disease which the appellant never suffered from but also from the dreadful thought of an imminent death resulting from an incurable disease," the Bench said.
The Bench said the appellant was subjected to extreme mental agony in not only facing the apathetic attitude of the army but in facing the concomitant social stigma and the looming large death scare that accompanied such a discharge from the armed forces.
The Bench thus awarded a lumpsum compensation of ₹50 lakh to the appellant on account of wrongful termination of services, leave encashment dues, non-reimbursement of medical expenses and the social stigma faced, to be paid by the Indian army.
Click here to read the order.