IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1782 of 2007. Date of Decision: 1st July, 2011. _______________________________________________________ Suresh Chand .. Petitioner. Versus Union of India and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Ramakant Sharma, Advocate. For the Respondents: Mr. Sandeep Sharma, Assistant Solicitor General of India. _________________________________________________________ Surinder Singh, J. (Oral). The petitioner by means of the present petition sought the following reliefs: “i) That the respondents may very kindly be directed to pay the disability pension w.e.f. the due date with all consequential benefits. ii) That the rejection of the disability pension conveyed at Annexure P-3, Annexure P-5 and Annexure P-6 may very kindly be quashed and set aside. iii) That the petitioner be granted the disability pension from the date of discontinuation i.e. 21.10.2003. iv) That the arrears be paid to the petitioner with interest and all other consequential benefits. 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - v) That the respondents may very kindly be directed to take the petitioner back in service if his disability is less than 20% with all consequential benefits. vi) That the respondents may be directed to re-employ the petitioner as civilian on rehabilitation in the equivalent rank with all consequential benefits.” 2. The brief facts giving rise to this petition are that on 31.12.1986 the petitioner was enrolled in the ‘Indian Coast Guard’ as “Navik”. He was medically fit at the time of his enrolment and was assessed in Medical Category S1A1 and later promoted as “Uttam Navik” in the year 1991, thereafter as “Pradhan Navik” in January, 1997. (ii) The petitioner during his service in the year 1997-98 suffered from ‘Pulmonary Tuberculosis’ and also tested positive for HIV, despite the fact, as disclosed by him that he did not have any extra-martial sexual contact. Consequently, medical-board was constituted by the respondents. The petitioner was found to have suffered 100% disability on account of two diseases i.e. Tuberculosis and 15-19% HIV+ infection. He was placed in Low Medical Category EEE/S5A5 and concurrently graded as aforesaid. The Board forwarded these proceedings to the Headquarters of the petitioner, they approved the same. On 4.2.1998 he was boarded out and discharged from the - 3 - service and granted invalid pension and also disability pension as Pulmonary Tuberculosis was graded attributable to service. (iii) On 30.12.2002 the petitioner was again asked to appear before the medical-board at Yol Camp for re-survey of the disability (Annexure P-2). (iv) The petitioner kept on receiving the pension till 4.2.2003. Vide letter dated 21.10.2003 (Annexure P-3), the case of extension of disability pension was forwarded to PCDA(P) Allahabad vide Buvik letter of even number dated 23rd June, 2003, but it was returned on the ground that as per specialist option recorded on AFMS-17, the disease Tuberculosis has been cured and presently no disability existed with respect to the Tuberculosis. The disability in respect of HIV+ was 40% and the combined disability was also assessed 40%. Since HIV+ was not listed in Schedule 1-A of CCS (EOP) rules, disability pension was not allowed. Thereafter the petitioner preferred a detailed representation on 14.8.2007, which was rejected. The petitioner alleged that two similarly situated persons namely Navik K. Raghu and Navik Balraj were also found HIV + but they - 4 - were retained in service, thus petitioner was discriminated. 3. Vide order dated 30.7.2010 the matter was ordered to be sent to Armed Forces Tribunal, as the Counsel for the parties submitted that the matter fell within the jurisdiction of the said Tribunal, but on the request of the respective Counsel it was sent back on the ground that it relates to Coast Guard and is covered under CCS Rules. 4. Heard. 5. Shri Sandeep Sharma, learned Assistant Solicitor General of India referred to a policy of HIV positive cases of Coast Guards Personnel circulated vide letter No.MD/2/21/Policy dated 15th May, 2000, which governs the matter. It is argued that so far as permanent disability qua Tuberculosis disease is concerned, the same stands fully cured and petitioner also got the pension so long as he was declared permanently disabled qua that disease. 6. I have gone through the records. The respondents in their reply did not controvert the averment made in para 12 of the petition that K. Raghu and Balraj “Naviks” despite HIV positive were retained in service, without mentioning their medical status. The Medical- Board observations are only recommendatory in nature and it is subject to review/ revision as per rules. The respondents have also placed on record “Policy on HIV - 5 - Positive Cases of Coast Guard Personnel” issued by the Coast Guard Headquarters on 15th May, 2000. Its Clause 4 is quite important and reads as follows: “Transfer/Employability:- HIV positive (asymptomatic) personnel are to be accommodated in sheltered or less strenuous billets where they will be employed in tasks within the limits of their medical category. They are to be transferred only to those duty stations where appropriate medical facilities exist. In addition, HIV positive personnel would be unfit for:- (a) Employment on diving duties. (b) Deputed for Foreign assignments. (c) Employments on flying duties. (d) Posting to high altitude areas.” 7. In the instant case, ithe petitioner was fully cured, for ‘Pulmonary Tuberculosis’ but was HIV positive and has been assessed 40% disability combined and as per the recommendation of the Board, dated 12.12.1997, this disability was not likely to affect the performance of secondary duties in civil life, but it does not say that the petitioner is unfit for light duties as ‘Coast Guard’ as per Clause 4 above. 8. Since the petitioner is fully cured from the disease of Tuberculosis, the respondents shall conduct re- survey medical-board of the petitioner and if the petitioner is found fit as per the policy aforesaid for his deployment within limits of his medical category, he shall be taken back in service as he is required to be - 6 - treated equally with other similar situated persons, failing which, in my opinion, on the basis of judgment of this Court passed in CWP No.453 of 2004 on 27.7.2007, Shankar Lal versus Union of India and others, if the said disease has caused disability to retain him in service, the petitioner would be entitled to the disability pension irrespective of the fact whether the disease stands listed or not for the reason athat the petitioner got the disease during his service at the time, when he was suffering from Pulmonary Tuberculosis. Thus, the respondents are directed to hold the re-survey medical board within a period of three months from the receipt of copy of this judgment and decide the matter qua the petitioner within two months thereafter, as ordered above. 9. The matter stands disposed of. July 1st, 2010. (Surinder Singh), J. (rc) Judge.