Is an HIV positive soldier entitled to disability pension meant for army men who get injured while performing an official duty?
The government has raised this issue before the Supreme Court while defending its decision denying financial benefit to an army jawan who braved a volley of bullets in 1999 to flush out Pakistani infiltrators during the Kargil war.
It says the army is not bound by the national policy on AIDS under which a government employee detected with the disease ought to be reinstated with all consequential benefits.
The government has said the Armed Forces Tribunal’s order (AFT) has failed to examine the service rules applicable to the forces while determining disability pension. Further, the disease suffered by the soldier had nothing to do with his official duties.
The soldier was invalidated out of service in October 2000 - a year after Operation Vijay - after the Army Medical Board declared that his was a case of AIDS (HIV infection and disseminated tuberculosisis, pleural lymph nodes). He had spent more than four years in service before the army discharged him.
The army man – in early thirties - had first filed a petition before the Uttarakhand High Court and attributed his disease to the inhospitable conditions in snow-bound areas in Kargil when he fought the enemy. His case was transferred to AFT, Lucknow, where drew support from the national policy on AIDs. He said he was only HIV infected and only those with full blown AIDS cannot continue in service.
The jawan had produced another medical report from the government Ram Manohar Lohia Hospital, New Delhi which had said that he was suffering from HIV and had not reached the stage of AIDS.
The AFT concurred with the jawan’s plea that the ministry of defence cannot negate the national policy on AIDS and ought to reinstate him with all consequential benefits. It observed “In our considered opinion we are of the view that the armed forces are a microcosm, of the national mainstream and it cannot divorce itself from the National AIDS Control policy laid down by ministry of health and family welfare. But the Army chose to drag the jawan to the SC challenging the tribunal’s order.
On hearing the appeal, a bench headed by justice TS Thakur directed the Union government to conduct a fresh medical test on the jawan to determine whether he has AIDS or HIV. The Centre is expected to respond on the issue within a month.
The Centre in its appeal has submitted …: “the entire approach of the hon’ble tribunal is erroneous in granting relief to the respondent and therefore is not sustainable in law and substantial question of law arises in the present matter.”