BADAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Despite the passage of a quarter-century since the AIDS/HIV infection was diagnosed, the stigma that surrounds it has not subsided. The number of persons who have become victims of this affliction has swelled to such staggering sums, that its pestilential proportions have caused a global effort to be made to combat it. However, the prejudice against the victim of AIDS is easily discernible from the indurate stand that is most often taken by the Authority concerned, in terms of its lack of alacrity to grant relief, as also in the extent or amount of relief allowed to the sufferer. The present petition is an example of this apathy, which is the result of a belief that HIV is the consequence of an immoral act. In this case it is admitted that the Petitioner's wife is HIV; and that the parties have a child. Innocence, therefore, loses all relevance.

(2.) The facts in this unfortunate case are that the Petitioner was enrolled in the Border Security Force on 12.6.1990. In March 1997 it was discovered by the Respondents that the Petitioner was suffering from HIV Infection (Tuberculosis of Lungs and Abdomen with Infective Hepatitis). The Petitioner had undergone medical examination, inter alia, at the AIIMS, New Delhi, and at the National Institute of Communicable Diseases, New Delhi. He appeared before a Medical Board on 16.4.1998 and was considered unfit for further service. A Review Medical Board was also convened on his request on 24.9.1998 which also arrived at the conclusion that the Petitioner was unfit for further service. It will be relevant to record that by letter dated 16.6.1998 the Commandant of the Battalion had issued a notice for medical board out to the Petitioner with 40 per cent disability. The Petitioner was medically boarded out from service with effect from 15.2.1999 with seventy per cent (70%) disability, on the recommendations of the Review Medical Board and the approval of the Competent Authority under Rule 25 of the BSF Rules. Although it has been averred by the Petitioner that he was not suffering from any medical problems at the time of the termination of his services, which would impede him in the performance of his duties, this issue has not been pressed. It is also mentioned in the petition that "the petitioner vouchsafes that he has not been possibly given HIV Infection by any other woman, because no opportunity had occurred in which he could have contracted HIV Infection from some other woman. The BSF Authorities, who had carried out the investigations against the Petitioner have never made any allegation of attributing any blame on the Petitioner for alleged HIV Infection suffered by him". There appears to be an oblique accusation in the writ petition that the HIV Infection has been contracted by the Petitioner as a consequence of any of his personal acts, but this plea has also rightly not been pressed during the course of arguments. It is, however, asserted by him that on the date of the termination of his services, although he was placed in category 'EEE', he was capable of performing the duties assigned to him. No effort was made by the Respondents to consider this aspect. Unquestionably, the Respondents have also not made any effort to even investigate whether he could be allotted alternate duties. It is the Petitioner's contention that by virtue of his having been placed in category 'EEE', the BSF has declared him hundred percent (100%) invalid, and it is thus illogical that his disability was assessed at the lower figure of 70%. Indubitably, the existence of some bias cannot be ruled out completely. The impugned Order dated 9.2.1999 reads as follows:

(3.) It has been prayed in the writ petition that (i) the petitioner be reinstated with continuity of service, or (ii) that he be provided alternative employment to enable him to earn his livelihood and pension on attaining the age of superannuation and or (iii) alternatively that he be granted all pensionary benefits as admissible to persons with 100% medical disability attributable to service.