Supreme Court Urges Air Force To Accommodate Ex-Serviceman Who Allegedly Contracted HIV-AIDS During Blood Transfusion At Field Hospital

Having acknowledged that the Additional Solicitor-General Vikramjit Banerjee was dutybound to espouse the views of the air force, on behalf of whom he was appearing, Justice Bhat urged him to treat the issue compassionately and provide the petitioner a suitable job opportunity in any organisation under the aegis of the Indian Armed Forces, such as army canteens. “The petitioner has served in the air forces and participated in several operations. We should ensure that he feels like the part of the same family now.”

The judge also noted the petitioner’s plight, and said, “Under the Rights of Persons with Disabilities Act, 2016, the petitioner does not fall in the category of a ‘person with disabilities’. Till 2017, there was no specific law for him. Despite the equality clause in Article 14, he has not received equal opportunities from employers like the Food Corporation of India. Try and see where you can accommodate him.” Further, the court, while deciding to not pass any orders, verbally urged the forces to consider issuing the corporal a letter of recognition acknowledging what happened to him.

The top law officer promised to ‘take instructions’. “Give me some time. We may be able to work something out. I will also try to devise a way in which we can acknowledge that there was a mistake on our part,” he told the court. “This is not a question of a mistake. Use the appropriate term. We understand that you may not want to make an admission. But acknowledge the hardships he has undergone, and issue something to that effect.”

Senior Advocate and amicus curiae Meenakshi Arora informed the bench that the ex-serviceman was currently undergoing treatment at the army base hospital in Delhi, but “it was not going well”. “The other request I want to make is to shift him to AIIMS,” she submitted. “We will consider this request in the next hearing,” said Justice Bhat after the Additional Solicitor-General made his objection known. Also present was Advocate Vanshaja Shukla, the other amicus curiae appointed by the court.

The petitioner joined the Indian Air Force in May 1996 as a permanent employee after being found physically fit. At the time of his recruitment, he was placed under a high medical category, ‘A4 G1’, which made him eligible for promotions and extension of service. In 2002, he was deployed to Pathankot for ‘Operation Parakram’, which was the second major India-Pakistan military standoff, triggered by the 2001 terrorist attack on the Indian Parliament. In the course of his service, he fell sick and was admitted to 171 Military Hospital, Samba, where, in July 2002, the petitioner underwent blood transfusion. It has been alleged that the procedure was conducted in the absence of any pathologist or transfusion medical expert, and also without the petitioner’s consent. In May 2014, the corporal was diagnosed with the Human Immunodeficiency Virus (HIV) and after much effort, discovered that he had acquired HIV infection through the blood transfusion he underwent in 2002.

After detection of HIV, a Medical Evaluation Board was constituted that refused to attribute the disease to the petitioner’s service. His demand to be provided with the documents relating to his blood transfusion in July 2002 was refused on the pretext that they were unavailable. In his medical case sheet, which he managed to procure after considerable effort, the petitioner found no indication that an Enzyme Linked Immunosorbent Assay (ELISA) test was conducted to detect bloodborne diseases, nor any report of such a test. In subsequent medical boards, his disability was found as attributable to service due to transfusion of one unit blood in July 2002. However, in 2016, the petitioner’s request for extension of service was not granted and he was discharged. After his discharge, the petitioner applied for a job at the Food Corporation of India but was rejected only on medical grounds.

Curiously, no record pertaining to the blood transfusion has survived, Arora submitted before the bench. In response to the question of whether any attempt was made to screen for HIV and other bloodborne diseases at the time of transfusion, the lack of records has been cited time and again by the air force. “There are no records that have been maintained about this transfusion. No one has tested the suitability of the blood before using it for the procedure. But we know for a fact that he was given the blood which has resulted in his particular medical condition,” she said. The senior counsel also pointed out that the military hospital at Samba did not have any blood banks of its own and had to source the blood from another entity. A record of a transaction dated January 12, 2002, was produced, but it was ‘irrelevant’ since the shelf life of blood was about 21 days and the transfusion took place much later, in July. Furthermore, the blood group of the petitioner and the one mentioned in the record produced by the respondent were different, Arora explained.

The senior counsel also argued, “This is a disability that was acquired by the petitioner in the course of his service because of that particular transfusion. This has been accepted by the medical boards themselves. Then, this mere 30 per cent disability certificate that gives him a meagre amount of thirty thousand rupees per month is grossly inadequate. This is not a mere 30 per cent disability.”

The bench has agreed to take up the matter again after two weeks.