JUDGMENT :

DIPANKAR DATTA, J.

THE CHALLENGE

1. The present civil appeal lays a challenge to the judgment and order dated 05th 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.

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 30th 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 9th 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 20th 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 14th September, 2001 (“Medical Report” hereafter), the appellant was reported to be suffering from “AIDS defining illness in the form of neuro3 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 14th September, 2001, the appellant was referred to the Invaliding Medical Board (“IMB” hereafter), which confirmed his diagnosis of suffering from AIDS.

(vi) On 26th 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[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.]] (“Rules” hereafter) on the ground of having been found medically unfit for further service.

(vii) On 23rd 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/mm3.

(viii) The appellant approached the Madhya Pradesh High Court, seeking quashing of the discharge order dated 26th December, 2001 and reinstatement with all consequential benefits. A learned Judge of the High Court, vide order dated 20th April, 2006, allowed the appellant’s writ petition.

(ix) However, in exercise of intra-court appeal jurisdiction, an Hon’ble Division Bench of the High Court vide its order dated 28th March, 2007 reversed the order under appeal. The Division Bench observed that in accordance with Para 355 (f) 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 transm