Jitender Singh vs Union Of India And Others

The instant Original Application has been filed by the applicant, under Section 14 of the Armed Forces Tribunal Act, 2007 seeking following reliefs :

(a) Quash and set aside the impugned letter No. B/38046A/31/2016/AG/PS-4 (2nd Appeal) dated 24.08.2016. And/or

(b) Direct the respondents to treat the disabilities of the applicant as attributable to or aggravated bymilitary service and grant him disability

element of pension with benefits of rounding off/broadbanding of the disability element. And/or

(c) Direct respondents to pay the due arrears of disability pension with interest (a 129w p.a. from the date of his discharge. And/or

(d) Any other relief which the Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.

Briefly stated facts of the case are that the applicant was enrolled in Indian Army in the trade of Musician, on 24.04.1995 and was discharged from

service on 30.04.2015 on completion of his terms of engagement of service under the provisions of item 13(3) III (i) of the Army Rules, 1954, after

completion of 20 years of service. At the time of release from service, the applicant was in low medical category. The Release Medical Board

(RMB) held on 26.12.2014 assessed his disabilities (i) IMMUNE SURVELLIANCE g 20% (ii) REACTION PULMONARY TUBERCULOSIS g

20% and (iii) HIV ASSOCIATED CRYOGLOBULINEMIA g 30% with composite assessment of disabilities @ 60% for life, but opined the

disabilities to be 'neither attributable to nor aggravated (NANA) by military service. Net assessment of the same has been recorded as 'Nil % for life'.

Hence, disability pension to the applicant was denied. The applicant's First appeal in 2015 as well as a Second Appeal on his behalf in 2016, have been

rejected. In the rejection letter of second appeal, the respondents have mentioned that the applicant was suffering from HIV since 1994 i.e. before

enrollment, therefore his disease is neither attributable to nor aggravated by military service. However, since the applicant was discharged after

rendering 20 years and 7 days' service, he is in receipt of service pension. Hence, against the impugned order denying him the disability pension, the

applicant has preferred the present OA.

Learned Counsel for the applicant pleaded that, at the time of his enrolment in service, the applicant was found mentally and physically fit for

service in the Army and there is no note in the service documents that he was suffering from any disease at the time of enrolment in Army. It is

submitted that the applicant was diagnosed with Tuberculosis disease in March, 2006 and treated at BASE Hospital, Delhi Cantt. In the year 2008, the

applicant developed fever, cough, loosemotions and suffered significant weight-loss and altered sensorium, and was diagnosed to have HIV and placed

in low medical category P2 (T). The Categorisation Medical Board held on 17.10.2014 placed the applicant in low medical category of P2(P).

Thereafter, RMB held in December 2014 opined all his disabilities as NANA and assessed the same as NIL % for life.

The learned council for the applicants further countered the claim of respondents that the applicant was detected to be HIV positive in 1994 i.e.

before being enrolled, by producing a laboratory report dated 21.07.2008 of his daughter, who was born in 2001, and son, who was born in 2003,

stating that they are not infected with HIV and that he was detected as HIV positive in 2008 only and not earlier. Learned counsel concluded by

stating that the applicant's disease has arisen after joining service hence his disease is attributable to military service. He prayed for grant of disability

element of pension to the applicant.

Per contra, the learned counsel for the respondents pleaded that this is a simple case of a soldier in low medical category being discharged after

completion of service as per his terms of engagement. At the time of discharge the RMB opined that all the three diseases of the applicant, as

indicated hereinabove, as NANA and since the disabilities/diseases of the applicant have been opined as NANA, therefore, he is not entitled to

disability pension. Hence, his claim for disability pension has rightly been rejected. Learned counsel submitted that the first appeal filed by the applicant

was rejected on 23.09.2016. Thereafter, wife of the applicant submitted second appeal on his behalf. After examining the same and the office records

of the applicant, the Second Appellate Committee rejected the claim of disability pension vide tter dated 24.08.2017 on the ground that the individual

was detected to be HIV positive in 1994 when he was evaluated at a civil hospital at Jaipur. It was further stated that as the applicant was detected to

be HIV positive in 1994 i.e. before joining the service, referring to Para 1 of Guide to Medical Officers (Medical Pension), 2002 Amended 2008, all

the diseases of the applicant were assessed as NANA because they are a consequence of being HIV positive and are not related to military service.

Learned counsel further contended that the applicant was a musician by trade and during his entire service, there was no history of blood

transfusion/surgical intervention and as, at the time of enrolment, no specific tests are carried out to detect HIV status, this very disease was missed

out initially. Based on the above, learned counsel for the respondents pleaded for the OA to be dismissed.

Having heard the counsels and perused the records the question before us is straight and simple i.e. are all the diseases of the applicant, apparently

caused by HIV, attributable to or aggravated by military service?

We have noted that the primary disability of the applicant is related to his getting infected by HIV (Human Immune Deficiency virus). Contracting

HIV can lead to the development of AIDS (Acquired Immunodeficiency Syndrome). In fact AIDS is also known as stage-3 HIV and develops when

HIV has caused serious damage to the immune system. We have noted that the RMB has opined that the diseases are not connected to service and

are neither attributable to nor aggravated by military service. We have also noted that while responding to the applicant's second appeal, the

respondents have informed the applicant that he was detected to be HIV positive in 1994 at a civil Hospital in Jaipur for a febrile illness with altered

sensorium and was treated for one month. On detailed examination of the medical records, relevant portion of which is being reproduced below, we

find that the applicant's treating doctor, at Base Hospital Delhi has annotated these facts about his being detected as being HIV positive in 1994 at a

civil hospital at Jaipur. He was suspected to be HIV positive for the first time in military service around December 2008, and was under treatment at

the Base Hospital Delhi. Since the treating doctor relies on information about the disease as given by the patient and as available from old treatment

prescriptions, we have no reasons to suspect the treating doctor's report.

Relevant extract of the Medical Case Sheet (attached along with counter affidavit) reads as under:

30 yrs old soldier.

Detected to be HIV + in 1994 when he was evaluated in a civil hospital in Jaipur for febrile illness & altered sensorium. Received i for lm.

Presented a cervical and axillary lymphadenopathy + hepatosplenomegaly in Jan 2005. FNAC 0 cervical L'node revealed features of TB -

ATT from Jan-Sep 05. Detected to be HIV + then but not categorized for it.

HIV is known to be primarily a sexually transmitted disease which can also be spread through contamination during surgical interventions or blood

transfusion; however since the applicant has no history of surgical intervention or blood transfusion in military service hence we have no reasons to

doubt the opinion of RMB about the disease not being connected to military service and being opined as NANA. Additionally the opinion of the

treating docter of the applicant, at Base Hospital Delhi makes it very clear that the applicant was aware about his disease since 1994, yet he

concealed it and joined Indian Army as a musician in 1995. Despite detecting his disease in December 2008, the respondents have kept him in service

till 30.04.2015, thereby enabling him to complete 20 years of service as per his terms of engagement. Presently, the applicant is in receipt of service

element of pension for life, this pension also entitles his wife for Family pension.

In the above circumstances, we are of the opinion that the applicant has absolutely no case for claiming disability pension, hence his petition is liable

to be dismissed. Ordered accordingly.

There is no order as to costs.

Pronounced in open Court on this 27th day of August, 2020.