Ex. Const. Badan Singh v. Union of India and Anr.

2002 VIIIAD Delhi 553; 97 (2002) DLT 986
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The Petitioner, Ex. Const. Badan Singh, was an employee of the Border Security Force (BSF). While in employment he found out that he was living with HIV. Being considered unfit for employment by the Medical Board and the competent authority, he was discharged from service with a 70% disability.

The Petitioner filed the petition in the Delhi High Court under Article 226 of the Constitution (original writ jurisdiction of High Courts) praying to the Court that he either be reinstated or be provided alternative employment or be given all “pensionary benefits as admissible to persons with 100% medical disability attributable to service.” The Respondent placed reliance on Rule 25 of the Border Security Force Rules (the Rules) which states that if the Commandant on the recommendation of the Review Medical Board and approval of the Competent Authority finds certain categories of employees to be not fit for service, “he may order the retirement of such a person.” The Respondent also relied on Rule 49 of the Rules regarding amount of pension to be given to the Petitioner. The Petitioner contended that on the date of his dismissal he was still capable of performing his duties but this aspect was never considered by the authorities.

On the issue of pension, the Court held that the Petitioner was entitled to get “Invalid Pension” under Rule 38 of the Rules. The Court said that the BSF had voluntarily dismissed the Petitioner from service based on his medical condition by putting him in the “EEE” category. It further held that there being no statement to the contrary, it would be concluded that the Petitioner suffered form 100% disability. The Court also held that the grant of invalid pension is irrespective of the degree of disability. It went on to hold that regardless of whether the disability was contracted during the course of the service or not “all that the rule envisages is that the person should be incapacitated for service.”

As to the role of the state, the Court held that the state was under an obligation to extend medical benefits to its citizens and the grant of invalid pension was in discharge of that obligation.

Regarding the remedy, the Court directed the Respondent to pay invalid pension with 6% interest p.a. calculated from the day the Petitioner was boarded out of service and within 60 days of the judgment.

“[T]he prejudice against the victim of AIDS is easily discernible form 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.” Para. 1.

“The fact is that this disease is spreading like wildfire in the developing countries, and in India it has assumed alarmingly epidemic proportions. This indicates that it may be the consequence Governmental failure, albeit for paucity of adequate funds, to bring about social awareness on the risks and dangers endemic in careless conjugation.” Para. 8.