2024 INSC 236 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1666 OF 2015

SATYANAND SINGH …APPELLANT

VS.

UNION OF INDIA & ORS. …RESPONDENT S

J U D G M E N T

DIPANKAR DATTA, J.

THE CHALLENGE

1. The present civil appeal lays a challenge to the judgment and order dated

05

th

September, 2012 (“impugned judgment”, hereafter) of the Principal

Bench of the Armed Forces Tribunal at New Delhi (“AFT”, hereafter),

whereby the AFT rejected the appellant’s prayer seeking reference of his

diagnosis as AIDS inflicted, to a fresh Medical Board.

2

BRIEF RESUME OF FACTS

2. The factual matrix of the case, insofar as is relevant for the purpose of a

decision on this appeal, is noted hereinbelow:

(i) The appellant was enrolled in the Indian Army on 30

th

October, 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. For treatment he was referred to

the Jabalpur Military Hospital. Here, the appellant tested positive for

HIV.

(ii) On 9

th

January, 2000, the Army Headquarters issued a Notice

(“Notice”, hereafter) stating that all persons who are HIV+ve and are

suffering from pulmonary or extrapulmonary tuberculosis, would be

considered as AIDS cases.

(iii) Thereafter, on 20

th

August, 2001, the appellant developed similar

symptoms yet again, for which he was referred to the Jabalpur Military

Hospital. The doctors there 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.

(iv) In view of the appellant’s ocular afflictions, the doctors, suspecting

the same to be a symptom of neuro-tuberculosis, began treating him

for the same. Vide Medical Report dated 14

th

September, 2001

(“Medical Report” hereafter), 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. Per the medical categorisation of the Army, “P5” referred to

those persons who were suffering from “gross limitations in physical

capacity and stamina”.

(v) As a consequence of the report dated 14

th

September, 2001, the

appellant was referred to the Invaliding Medical Board (“IMB”

hereafter), which confirmed his diagnosis of suffering from AIDS.

(vi) On 26

th

December, 2001, after 8 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

1

(“Rules” hereafter)

on the ground of having been found medically unfit for further service.

(vii) On 23

rd

May 2003, the “Guidelines for Management and Prevention of

HIV/AIDS Infection in the Armed Forces” (“2003 Guidelines”

hereafter) came into force. In a shift from the Notice, the said policy

included into its consideration the CD4 cell count of the personnel,

and that the condition for invalidment would be, inter alia, a CD4 cell

count below 200 cells/mm

3.

(viii) The appellant approached the Madhya Pradesh High Court , seeking

quashing of the discharge order dated 26

th

December, 2001 and

reinstatement with all consequential benefits. A learned Judge of the

High Court, vide order dated 20

th

April, 2006, allowed the appellant’s

writ petition.

1

An enrolled person under the Army Act who has been attested on the ground of being found

medically unfit for further service could be discharged by the Commanding Officer, to be carried

out only on the recommendation of an invaliding Board.

4

(ix) However, in exercise of intra-court appeal jurisdiction, an Hon’ble

Division Bench of the High Court vide its order dated 28

th

March, 2007

reversed the order under appeal. The Division Bench observed that in

accordance with Para 355 (f)

2

of the Regulations for the Army, 1987

(“Regulations”, hereafter), the appellant was not discharged solely on

the ground of having contracted a sexually transmitted disease. The

appellant’s discharge from service was held to be valid on the ground

that AIDS would incapacitate his physical capacity, thus coming within

the ambit of Rule 13 of the Rules. An application for review of the said

order was also dismissed vide order dated 27

th

August, 2007.

(x) The appellant challenged both the orders before the Supreme Court.

A 3-Judge Bench of this Court vide order dated 01

st

April, 2009

allowed the appellant to withdraw his appeal, while directing that he

could avail of the available statutory remedies.

(xi) The appellant availed of his statutory remedy by making an

application to the Director General Armed Forces Medical Service

(“DGAFMS” hereafter) seeking a Review Medical Board. The DGAFMS,

vide order dated 20

th

October, 2009, rejected the appellant’s prayer

on the ground that the criteria for discharge was satisfied in terms of

the Army’s prevailing policy at the time, i.e., the “Guidelines for

2

"355. 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:

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 the table annexed

to Army Rule 13 item III if attested, and under item IV if not attested.

5

Prevention and Control of HIV Infections in the Armed Forces” dated

30

th

November, 1992 (“1992 Guidelines” hereafter). Furthermore, the

appellant was also denied disability pension, AIDS being categorised

as a self-inflicted condition.

(xii) The order passed by the DGAFMS was subjected to challenge by the

appellant before the AFT which, vide the impugned judgment,

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 IMB, which confirmed the findings of the Medical Report, was

held to have been rightly constituted with the required experts. The

appellant argued that he was misdiagnosed with AIDS, his CD4 cell

count being 379 cells/mm

3

till as late as 05.08.2012 as opposed to

the benchmark of 200 cells/mm

3

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.

CONTENTIONS OF THE PARTIES

3. Learned counsel for the appellant, Ms. Kawalpreet Kaur, relied on the 1992

Guidelines to argue that in terms thereof, all personnel with HIV infection

were to be retained in service, the only restriction on their employment

being, inter alia, that they would not be posted to high altitude areas. Ms.

Kaur further contended that there had been an error in diagnosis in the

6

Medical Report itself, since the appellant never suffered from tuberculosis

which was taken as a defining illness for AIDS. It was urged that the

appellant was merely suffering from double vision, which cleared up by

15

th

November, 2001. However, the doctors misdiagnosed the appellant’s

double vision for a tuberculosis related symptom of blindness .

Consequently, in view of the Notice, the appellant having been found to be

both HIV+ve and suffering from tuberculosis, was invalided from service.

Ms. Kaul further argued that as per the Army’s 2003 Guidelines, the

appellant was fit for service since his CD4 cell count remained above

200/mm

3

till as late as 2012. This defining indicator for AIDS was argued

to have been erroneously disregarded by both, the IMB and the AFT. In

support of the same, it was further argued that the appellant was

asymptomatic till date, without undergoing any anti-retro viral therapy as

would have been prescribed for a person suffering from AIDS ; thus,

establishing without a doubt, that the appellant never developed AIDS to

begin with. Ms. Kaur concluded by arguing that the appellant’s case was

one of wrongful discharge, based on a wrong diagnosis.

4. Per contra, Mr. Balasubramanian, learned senior counsel for the

respondents contended that the appellant had never been discharged

solely on the basis of his HIV+ve status, the same being evident from his

uninterrupted service from 1999 till April 2001. The doctors at the time,

on the basis of their best professional judgment and giving due regard to

the medical knowledge prevalent in 2001, diagnosed the appellant with

neuro-tuberculosis, which led to a change in status of the appellant from

HIV+ve to “AIDS related complex”. It was further argued that the appellant

7

responded well to anti-tuberculosis treatment, thus confirming the

diagnosis of the time. It was further contended that his survival ought to

be attributed to be a natural variation in the course of the disease rather

than a misdiagnosis on the part of the medical professionals. With respect

to the appellant’s allegation that his double vision was mistaken for

blindness, Mr. Balasubramanian further argued that the appellant had

placed no documents on record to prove such a claim, and that the

tuberculosis diagnosis was made only after detailed investigations. It was

also argued that AIDS would expectedly lead to a deterioration in the

health of the appellant, which is why he was discharged under the P5

category, having been found grossly unfit for medical service.

ANALYSIS

5. We have heard learned counsel for the parties and perused the impugned

judgment as well as the other materials on record.

6. The AFT, in the impugned judgment, has referred to extensive medical

literature citing the hazards of HIV and how it can lead to a deterioration

in the physical condition of those who get detected as HIV+ve. However,

while the medical literature contemplates myriad infirmities which

accompany such a disease and consequently render an individual unfit for

military service, the AFT failed to observe that the appellant in the present

case was not diagnosed with any such symptoms. The appellant was

treated by the Command Hospital at Pune in 2001, and by the respondents’

admission, successfully responded to the treatment administered. Nothing

8

has been brought on record to indicate that the appellant was thereafter

unfit to continue in service as a Clerk.

7. We have no doubt in our mind that this is a case of wrong diagnosis and

false alarm with imperilling consequences for the appellant. The

respondents’ contention that doctors in 2001 have used their best

professional judgment to opine that the appellant was HIV+ve, in our

opinion, should be rejected, in the absence of any medical literature to

show that the test results as per then prevailing medical standards justify

the diagnosis that the appellant was suffering from AIDS defining illness.

On the other hand, there are lapses galore on the part of the respondents.

They were, in spite of being aware of the adverse and pernicious impact

on the appellant, grossly careless and negligent.

8. The appellant was diagnosed with neuro tuberculosis, which diagnosis was

without examination by a neurologist whose opinion, according to us ,

would seem to be elementary. The AFT’s opinion that the need of the

medical specialist was fulfilled by placing an oncologist on Board is

something with which we cannot agree. The appellant while serving in the

army was being prematurely discharged ; thus extreme caution and care

in ensuring correct diagnoses was required. 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 20

th

April, 2006. The

Medical Board, which was constituted upon the appellant availing the

statutory remedy, arbitrarily, wrongly and in our opinion deliberately vide

9

order dated 20

th

October, 2009 rejected the appellant’s prayer on flimsy

and wrong grounds by applying the 1992 Guidelines. Even disability

pension was denied by categorising the appellant as suffering from AIDS,

a self-inflicted condition.

9. Significantly, the appellant had submitted between the period of 2007 and

2012, as many as four diagnostic reports, showing that his CD4 cell count

was above 300 cells/mm

3

, as opposed to the respondents’ 2003 Guidelines

defining an AIDS illness to be one where the CD4 cell count is below 200

cells/mm

3.

10. 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 IMB, his case was never

again considered on its merits. The dismissal of the appellant’s application

by the DGAFMS vide order dated 20

th

October, 2009 can only be called

perfunctory at best, since it did not take into account any of the material

subsequently produced by the appellant.

11. The respondents’ submissions, as elaborate as they may be, in defence of

the AIDS diagnosis which was used to discharge the appellant from

service, are rendered unworthy of acceptance on the face of his existence

today, as an asymptomatic HIV+ve individual without the intervention of

any anti-retroviral therapy.

10

12. The severance of the employer – employee relationship can never be said

to be an easy choice, for it not only results in the employee losing his

livelihood, but also affects those who depend on him for their survival. And

if the employer happens to be the Indian Army, the loss is even greater,

since it has the effect of suddenly displacing a soldier from the regimented

lifestyle of the military. 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 ha s unfortunately

rendered the appellant’s original hopes of reinstatement an unrealised

dream.

13. The appellant, as an alternative relief, has consistently prayed for disability

pension but was denied the same on the ground that the disease is self-

inflicted.

14. At this juncture, we consider it apposite to refer to certain provisions of

the Notice published by the Army:

“4. Pulmonary Tuberculosis and HIV infection will not be

assessed separately for attributability / aggravation. HIV

aggravation is a 'STD' and hence AIDS is self-inflicted, neither

attributable nor aggravated.

5. The policy on awarding long evity and percentage of

disability for HIV+ve service personnel brought before

release medical Board is as follows :-

‘As per existing instructions, JCOs/ORs or their equivalent

in the Navy/Air Force placed in permanent low Medical

category are permitted to continue in service only in case

the Unit COs render a certificate to the effect that sheltered

appointment shall be provided. Otherwise such individuals

are brought before Release Medical Board for releasing

11

from service. It is unlikely that HIV positive cases in perm

low Medical Category would be given sheltered

appointment and recommended for retention in service by

unit cos'.

6. Following procedure will be followed in HIV+ve service

personnel brought before Release Medical Board.

a) Longevity: By the time HIV+ve case is brought before

Release Medical Board, it is likely that he had acquired the

infection about 1-2 years earlier. Therefore, it is likely that he

would develop AIDS within next 6-8 years. After development

of AIDS the average life span is only 1-2 years. Therefore

loading of age by 2 years at the time of Release Medical Board

is considered appropriate.

b) Percentage of disability: In fact viral multiplication during

this period is average and the immune system being

systematically destroyed. Apart from infection, HIV+ve cases

will suffer emotionally, psychologically and socially. Taking all

these factors in consideration, 40% disability for

asymptomatic cases and upto 100% for symptomatic cases

will be awarded.”

15. A perusal of the Notice reveals that in terms of Para 6A, a person who has

been diagnosed as HIV+ve was expected to develop AIDS within 6-8 years,

and thereafter, have a limited lifespan of only 1-2 years. We cannot help

but record reservation as the policy reflects the systemic discriminatory

practice and predisposition treating HIV as aggravation of STD and AIDS

is 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.

16. A further examination of the respondents’ policy reveals 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 the same. Yet, time

and again, we find the respondents here have mechanically denied the

12

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+ve, 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.

17. We may note here that in CPL Ashish Kumar Chauhan v. Commanding

Officer

3

, the concerned member of the Air Force was diagnosed as HIV+ve

because of a blood transfusion that did not proceed along laid down

protocol and went awfully wrong for which this Court had to award

appropriate quantum of compensation. Reference is made to the said

decision at this stage only to highlight that AIDS is not always a self-

inflicted disease and there appears to have been no worthy attempt on the

part of the respondents to ascertain the root cause of the appellant’s

physical distress.

18. The Constitution, through its Preamble, guarantees to all its people

‘Justice’, in the deliverance of which, the Courts of the land have developed

a nuanced compensatory jurisprudence through a catena of judgments ,

for a wide compass of situations.

19. This Court, towards the end of the last century held in D.K. Basu v. State

of West Bengal

4

that:

“54. Thus, to sum up, it is now a well-accepted proposition in

most of the jurisdictions, that monetary or pecuniary

compensation is an appropriate and indeed an effective and

sometimes perhaps the only suitable remedy for redressal of

the established infringement of the fundamental right to life

3

2023 SCC OnLine SC 1220

4

(1997) 1 SCC 416

13

of a citizen by the public servants and the State is vicariously

liable for their acts.”

20. In P.S.R. Sadhanantham v. Arunachalam

5

, this Court while

emphasising its power to do full and complete justice, ruminated:

“6. The jural reach and plural range of that judicial process to

remove injustice in a given society is a sure index of the

versatile genius of law-inaction as a delivery system of social

justice. By this standard, our constitutional order vests in the

summit Court of jurisdiction to do justice, at once

omnipresent and omnipotent but controlled and guided by

that refined yet flexible censor called judicial discretion. This

nidus of power and process, which master-minds the broad

observance throughout the Republic of justice according to

law, is Article 136.”

21. While discussing award of ‘just compensation’ in a personal injury case,

this Court in K. Suresh v. New India Assurance Co. Ltd.

6

had the

occasion to observe that:

“10. It is noteworthy to state that an adjudicating authority,

while determining the quantum of compensation, has to keep

in view the sufferings of the injured person which would

include his inability to lead a full life, his incapacity to enjoy

the normal amenities which he would have enjoyed but for

the injuries and his ability to earn as much as he used to earn

or could have earned. Hence, while computing compensation

the approach of the Tribunal or a court has to be broad based.

Needless to say, it would involve some guesswork as the re

cannot be any mathematical exactitude or a precise formula

to determine the quantum of compensation. In determination

of compensation the fundamental criterion of “just

compensation” should be inhered.”

22. Not too long ago, in CPL Ashish Kumar Chauhan (supra), this Court

while awarding compensation to a person discharged from the Indian Air

Force, ruled:

“103. ***People sign up to join the armed forces with

considerable enthusiasm and a sense of patriotic duty. This

entails a conscious decision to put their lives on the line and

be prepared for the ultimate sacrifice of their lives. A

5

(1980) 3 SCC 141

6

(2012) 12 SCC 274

14

corresponding duty is cast upon all state functionaries,

including echelons of power within the armed forces to

ensure that the highest standards of safety (physical/mental

wellbeing, medical fitness as well as wellness) are

maintained. This is absolutely the minimum required of the

military/air force employer for not only assuring the morale of

the forces but also showing the sense of how such personnel

matter and their lives count, which reinforces their

commitment and confidence. Any flagging from these

standards - as the multiple instances in the present case have

established, only entails a loss of confidence in the personnel,

undermines their morale and injects a sense of bitterness and

despair not only to the individual concerned but to the entire

force, leaving a sense of injustice. When a young person,

from either sex (as is now a days the case) enrols or joins

any armed forces, at all times, their expectation is to be

treated with dignity and honour. The present case has

demonstrated again and again how dignity, honour and

compassion towards the appellant were completely lacking in

behaviour by the respondent employer. Repeatedly the record

displays a sense of disdain, and discrimination, even a hint of

stigma, attached to the appellant, in the attitude of the

respondent employer. Although this court has attempted to

give tangible relief, at the end of the day it realizes that no

amount of compensation in monetary terms can undo the

harm caused by such behaviour which has shaken the

foundation of the appellant's dignity, robbed him of honour

and rendered him not only desperate even cynical.”

23. It has been submitted by the counsel for the appellant that he is presently

aged 50 years and is into a small business of his own. Having considered

the plight of the appellant, which his employer failed to address, as well as

the social stigma attached to persons who are diagnosed as HIV+ve

patients, coupled with the position that the appellant’s reinstatement in

service is not an available option now and also that direction for grant of

pension, which we propose to make, cannot be considered an equitable

restitution of what the appellant has suffered by reason of psychological,

financial and physical trauma, we deem it fit to additionally award him

monetary compensation.

15

24. Having been discharged from the services of the Indian Army at the prime

age of 27, the appellant was robbed of the opportunity of further serving

the nation for many more years on account of a most unfortunate turn of

events, the responsibility for which can lie on no shoulders other than the

respondents 2 to 4. It is also borne from the record that the appellant

neither received his leave encashment, nor received reimbursement for the

expenses incurred by him in medical tests.

25. We would be remiss in not recognising the particular circumstances of the

appellant’s discharge from service which compounded the agony of the

process, i.e., a wrongful diagnosis of AIDS and subsequent termination of

services on the same ground. It is no secret that despite the enactment of

the Human Immunodeficiency Virus and Acquired Immune Deficiency

Syndrome (Prevention and Control) Act, 2017, and the slew of awareness

measures taken by Governments in recent times, the stigma and

discrimination which lamentably accompanies an HIV+ve diagnosis is still

an illness that afflicts the minds of society today. The discriminatory

sentiment of deeming persons who are HIV+ve to be unfit for employment,

is starkly evident from the way in which the appellant has 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.

26. In view of the extreme mental agony thus undergone by the appellant, in

not only facing the apathetic attitude of the respondents 2 to 4 but in facing

16

the concomitant social stigma and the looming large death scare that

accompanied such a discharge from the armed forces, we deem it fit to

award a lumpsum compensation of Rs.50,00,000/- (Rupees fifty lakh only)

towards compensation 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 respondents 2 – 4 to the appellant within

eight weeks from the date of this judgment without fail. In addition to the

above, the appellant shall be entitled to pension in accordance with law as

if he had continued in service as Havaldar and on completion of the required

years of service retired as such, without being invalided. We make it clear

that since the appellant had not continued in service beyond 26

th

December,

2001 and there was no occasion to assess his performance for securing a

promotion, he shall not be entitled to raise any plea in relation thereto.

However, in computing the quantum of pension payable to the appellant,

the respondents shall take into account allowances / increments that the

appellant would have been entitled to, had he continued in service till the

date of his retirement as Havaldar.

27. For the reasons aforesaid, the impugned judgment is set aside and the civil

appeal stands allowed.

28. We are conscious that whatever amount by way of compensation has been

directed to be paid to the appellant, by the respondents 2 to 4, can in no

manner compensate for the ordeal he had to face over the years; there

could never be an appropriate substitute for such adversity but such

financial compensation might act as a balm to soothe the mind and steady

the future. Now that we have been informed that the appellant is active and

17

involved in a business of his own, our prayers are with him to lead a long

and healthy life.

……………………………………J

(SANJIV KHANNA)

……………………………………J

(DIPANKAR DATTA)

New Delhi;

20

th

March, 2024.