Union of India and Others vs Satyanand Singh

Dipak Misra, J.

Questioning the legal acceptability and presentableness of the order dated 20/04/2006 passed by the learned Single Judge in W.P. No. 6555/2001 the Appellants have invoked jurisdiction of intra court appeal envisaged u/s 2(1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth of Appeal) Adhiniyam, 2005 [for brevity the Act''].

The essential facts in a nutshell are that the Respondent, the original writ Petitioner, was serving on the post of Havildar and as he suffered from illness a Medical Board was constituted which examined him and on the recommendations of the Medical Board steps were being taken to discharge him from service. At that stage he invoked the extraordinary jurisdiction of this Court and during the pendency of the writ petition the order of discharge dated 26/12/2001 came into existence. The said Respondent prayed for quashment of both the orders and issue of a direction in the nature of mandamus to reinstate him in service with all consequential benefits.

It was contended before the learned Single Judge that the provisions of Army Act, 1950 are applicable to the writ Petitioner and Section 192 of the said Act empowers the Central Government to make regulation other than those specified u/s 191 of the aforesaid Act. In pursuance of the power conferred on the Central Government it framed regulations, namely, Regulations for Army, 1987 [hereinafter referred to as the Regulations]. It was urged that the Respondent as discharged from service relying on para 355 of the Regulations though the said para is not attracted to the case at hand. It was put forth that the Respondent, according to the Medical Board had developed Acquired Immune Deficiency Syndrome (AIDS) which is a sexually transmitted disease (STD) for which an order of discharge could not be passed. The stance was founded on the proposition that unless the regulations provide a particular ground, the same cannot be taken recourse to by any kind of instructions/policy.

On behalf of the Respondent it was contended that the writ Petitioner had developed blindness which has nexus with AIDS and, therefore, he has been incapacitated and hence, the order of discharge has been passed against him. It was also put forth that he had incurred the disability as provided under the Army Rules.

4A. The learned Single Judge expressed the opinion that the blindness having not been really pleaded in the return and no document having been filed that he was suffered from any blindness the said ground cannot be taken recourse to and AIDS being a sexually transmitted disease cannot be taken aid of in view of the language used in the Regulations to pass an adverse order against the writ Petitioner. Being of this view the learned Single Judge quashed the order of discharge dated 26/12/2001 and directed the Respondents therein to reinstate him with all consequential benefits.

We have heard Mr. Dharmendra Sharma, learned Asst. Solicitor General for the Appellants and Mr. K.C. Ghildiyal, learned Counsel for the Respondent.

Questioning the validity of the order impugned it is submitted by Mr. Sharma that the learned Single Judge has failed to appreciate the import and purport of para 355 (f) that it does not prohibit to discharge a person on account of sexually transmitted disease, but so is not the envisagement, if he has been absented from duty for a period of four months and in the case at hand the Respondent had been absent from his routine duty on account of illness for a period of more than six months. It is his further submission that even if the said paragraph is not taken recourse to, the Respondent would be discharged from service under Rule 13 item III and item IV of on conditions being satisfied. It is also further urged by Mr. Sharma that plea of blindness though not pleaded, has been noted, as consequential fall out of AIDS and hence, the strict interpretation placed by the learned Single Judge to para 355(f) of the Regulations is neither correct nor sound. The learned Counsel further submitted that the Medical Board had given adverse report against the Respondent and a person who is not fit to remain in Army cannot serve the Army and, therefore, the authorities were absolutely justified in discharging him. Quite apart from the above, it is propounded by him that the Respondent would fall in one of the medical categories which warrants a discharge.

Mr. K.C. Ghildiyal, learned Counsel appearing for the Respondent supporting the order passed by the learned Single Judge argued that when a specific stand had been taken by the Respondents before the learned Single Judge a different stand cannot be taken as that would defeat the principles of audi alteram partem in the sense the Respondent is taken unaware. It is proponed by him that the plea of medical unfitness is a figment of imagination and the Appellants inasmuch as he had not suffered any physical incapacity. It is canvassed by him that the issue of blindness is a contrived idea having no legs to stand upon but to make out a case of medical unfitness by putting the Respondent in one of the categories though it is factually not acceptable. The learned Counsel also contended that as the initial reliance placed on para 355(f) of the Regulations has been collapsed like a pack of cards, the Appellants have efforted and endeavoured to pyramid an alternative ground which is imprescriptible in law.

Before we proceed to deal with the rival contentions raised at the Bar, it is thought condign to refer to certain orders passed at various stages in this appeal. On 16/10/2006 this Court noted the submission of Mr. Dharmendra Sharma, who had submitted that the Respondent had been discharged from service under Rule 13 of the Army Rules having been found medically unfit in service on the basis of recommendations and report of the Medical Board. A Division Bench of this Court had asked Mr. Dharmendra Sharma to produce material to explain the S1, H1, A1, P1 and E1 categories mentioned in the Medical Board proceedings.

On 16/11/2006 the learned Counsel for the Appellants produced the records and this Court proceeded to record as under;

Pursuant to the said direction, Mr. Sharma produced before us copy of the Army Order which in Part-Ill contains medical categorization of serving JCOs/OR and we find therefrom that Category P5 is described as a person who is considered permanently unfit for further military service due to gross limitations in physical capacity and stamina. Mr. Sharma, learned Counsel for the Appellants submitted that since the Respondent was found by the Medical Board permanently unfit for further Military service, the discharge order was passed.

First we shall refer to para 355 of the Regulations. The said paragraph reads as under:

55 Contraction of Sexually transmitted disease. - The following principles will be observed in dealing with OR including reservists and non-combatants, who contracts sexually transmitted disease:

(a) The actual contraction of sexually transmitted diseases is not a military offence and cannot be punished as such. Nor must the failure to attend a prophylactic treatment room, for treatment, within a specified period after exposure to venereal infection, be treated as an offence against discipline. It is, however, perfectly legitimate to debar men suffering from sexually transmitted disease from sharing privileges granted to other personnel such as shooting passes, short leave of absence, and the like, while they may be called upon to take part in extra parades solely for the purpose of restoring their physical fitness, or their efficiency, if either has suffered through their absence from duty.

(b) OR including non-combatants, who are undergoing treatment for sexually transmitted disease will not ordinarily be granted furlough or leave, until the treatment is completed. If not completed, furlough or leave will be granted only after reference to the medical authorities, in consultation with whom the period of furlough or leave should be fixed, due regard being aid tot (sic)e date on which patients may be required for resumption of treatment.

(c) So long as the standing order enjoining the reporting of sexually transmitted disease has been published by the unit concerned, concealment, of sexually transmitted disease is a breach of discipline, and may be dealt with under AA, Section 42(e).

(d) In all cases of admission to hospital on account of sexually transmitted disease the stoppages under P & A Regulations/ Regulations for the Medical Services of the Army in India will be enforced.

(e) A NCO is not to be reduced to the ranks solely on account of having contracted sexually transmitted disease. If, however, he has been absent from duty on account of sexually transmitted disease for a total period of four months, whether continuous or not, his case may be brought to the notice of the authority empowered summarily to reduce him, for consideration as to whether any reduction in rank for inefficiency should be approved.

(f) An OR is not to be discharged from service solely on account of his having contracted sexually transmitted disease. If however, he has been absent from duty on account of sexually transmitted disease for a total period of four months, whether continuous or not, his case may be brought to the notice of the authority empowered to order his discharge from the service, for consideration as to whether he should be discharged from the service under table annexed to Army Rule 13 item III if attested, and under item IV if not attested.

The learned Single Judge has held that service of the writ Petitioner had been discharged as he has been suffering from AIDS which is sexually transmitted disease and the same cannot be a ground of discharge of the Petitioner inasmuch as the blindness pleaded by the Respondent therein was not proved. In course of hearing we categorically asked Mr. Ghildiyal whether the Respondent is suffering from AIDS as per examination of the Medical Board. The learned Counsel for the Respondent, we must state with appreciation fairly stated that as per the medical reports available on record the Respondent is suffering from AIDS. In this context we think it seemly to refer to medical categories. Category 5 reads as under:

Category 5. Person who are considered permanently unfit for further military service under any of the SHAPE factor will be placed in medical category ''5''.

S5 - Mentally unable on account of Psychological/Psychiatric/disorders/ Psychopathic personality.

H5 - Hearing acuity below E3 steps.

A5 - Severe derangement of functional efficiency.

P5 - Gross limitations in physical capacity and stamina.

E5 - Visual acuity below E - 3 grade, Bilateral aphakia.

Note: Some terminologies used in the above schedule are amplified below:

(a) "Hilly Terrain" - Denotes such areas where a person has to climb up and down the heights which is likely to aggravate or put to difficulty persons with cardiac, respiratory, arthritic or such disabilities.

(b) "Extreme Cold Climate" - Where temp, remains below 7 degrees for 6 months or more.

(c) "Cold Climate" p Climate like that prevailing in Punjab or other areas in Western Command, where an individual in category ''2'' or ''3'' should normally be able to work

Submission of Mr. Sharma learned Senior Counsel for the Appellants is that a stand was taken before the learned Single Judge that though a plea was taken to blindness even if, that fails the Appellants are at liberty to place reliance upon the category ''P5'' which deals with gross limitations in physical capacity and stamina. The learned Single Judge has held that the Annexure-P/5 has been passed placing reliance upon para 355(f) and other aspects cannot be taken note of. He discarded the submission that the Respondent was discharged from service on a policy-decision.

The thrust of the matter is whether the order of discharge passed against the Respondent on the basis of report of the Medical Board is valid or the same is sensitively susceptible. The Medical Board has expressed an unequivocal opinion that the Petitioner would fall in the category P5 which stipulates the persons who are considered permanently unfit for further military service due to gross limitations in physical capacity and stamina. In this context we may refer with profit as regards the effect and impact of AIDS on the human body. It is well known that HIV stands for human immune deficiency virus (HIV) and infection with HIV underlines the cause of AIDS. HIV is a retrovirus which affects the cells of the human immune system and destroys or impairs the functions, causing progressive depletion of the immune system, leading to immunodeficiency. This acquired deficiency leads to collection of various symptoms and infections. A HIV infected person is highly infectious and can transmit virus to another person. There is no cure of HIV/ AIDS but progression of disease can be slowed down but cannot be cured completely. EHy T. Katabira in his Article HIV infection in the Tropics while dealing with neurological problems of late HIV disease has observed as under:

HIV infected patients develop and/or acquire a multitude or neurological problems with increasing immunodeficiency (Table 11.2). The prevalence of HIV-related dementia increase with improvement of general management of all various opportunistic infections as then patients leave longer to develop severe immune suppression. Dementia is characterized by cognitive dysfunction and is usually accompanied by behavioral and motor symptoms and signs. Forgetfulness, loss of concentration, mental slowing and reduced performance on complex mental activities are early cognitive symptoms. Early behavoural symptoms include apathy, reduced spontaneity, and emotional responsivity, and social withdrawal. Depression irricubility or emotional lability, agitation and psyenosic symptoms may also occur. Loss of balance and coordination, clumsiness and e.g. weakness are also early motor symptoms.

After so staring the learned author proceeded as under:

... Pedal paraesthesias and hypersensitivity may appear due to concurrent sensory necropancy. The level of consciousness is usually preserved, except for occasional hyprsomolence. The course of HIV-associated demantia is variable, and no predictor of the pace of progression in currently available. The syndrome often progresses rapidly to severe deteioration and death, especially inpatients with advanced systemic disease, but also it may have prolonged stable phases, or may fluctuate, with reversible deterioration occurring in concomitance with opportunistic infections.

Maurice Victor Allah and H. Ropper in their book Principles of Neurology while dealing with clinical features of AIDS have described thus: "Infection with HIV produces a spectrum or disorders, ranging from clinically inevident seroconversion to widespread lymphadenopathy and other relatively benign systematic manifestations ranging from diarrhea, malaise, and weight loss (the so called AIDS-related complex, or ARC) to ful-blown AIDS, which comprises the direct effects of the virus on all organ systems as well as the complicating effects of a multiplicity or parasitic, fungal, viral, and bacterial infections and a number of neoplasms (all of which require cell-mediated immunity for containment)." Thereafter the authors have opined that AIDS may be complicated by several forms of peripheral neuropathy. They have also referred to Johns Hopkins study to highlight that about 11 per cent of AIDS patients develop a primary CNS lymphoma. The learned authors have also expressed the opinion that in addition to the direct neurological effects of HIV infection, a variety of opportunistic disorders, both focal and non-focal, occur in such patients.

If the aforesaid study by experts are appreciated, there can be no scintilla of doubt that it is not an ordinary sexually transmitted disease and it causes gross limitations in physical capacity and stamina. Quite apart from the above, para 355(f) stipulates that he is not to be discharged from service solely on account of his having contracted sexually transmitted disease. But if the sexually transmitted disease affects the immune system, corrodes stamina, incapacitate a man, a person working in the Army, in our considered opinion, would come within the ambit and sweep of Rule 13 of the Army Rules and no fault can be found with the discharge.

In view of our aforesaid analysis, we are unable to persuade ourselves to agree with the order passed by the learned Single Judge and accordingly we set aside the same.

Consequently, the writ appeal is allowed. However, there shall be no order as to costs.