ORDER R.K. CHHABRA, MEMBER(A).-This case has come before us by way of transfer under section 34 of the Armed Forces Tribunal Act, 2007 from Uttaranchal High Court at Nainital. 2. The applicant was enrolled in the Indian Army on 29.2.1996 and was posted in 3rd Battalion, The Parachute Regiment (Special Forces) on 28.4.1997. He served with the Battalion in various duty stations including in Kargil during Operation VIJAY. 3. The applicant was granted two months annual leave from 10.2.2000. He developed chronic cough and mild chest pain during the said leave and was admitted in 161 Military Hospital (M.H.), Pithragarh near his home station. He was finally referred to M.H. (Cardio Thoracic Centre (CT.C) at Pune and was under treatment there from 23.7.2000 to 19.9.2000. He was diagnosed as a case of "A.I.D.S. 042-A (H.I.V. Infection with Disseminated Tuberculosis Lymph Nodes + Pleural)" (Annexure-1) and placed in medical category P-5 and recommended to be invalid out of service. He was invalidated out of service with effect from 1.11.2000 and directed to be discharged D.T.H. (Direct to home). 4. The applicant was informed on 5.11.2001 (Annexure-3) by respondent No.4 that his disability pension claim had been rejected by CD.A (Pension) as his disability was neither attributable to nor aggravated by the Army service. The applicant not satisfied by the said order submitted his first appeal on 27.12.2001 (Annexure-4) which was rejected on 31.10.2003 (Annexure-5). He submitted his second appeal on 21.2.2004 (Annexure-6) which was rejected by respondent No.1 on 8.6.2005 (Annexure-7). Not satisfied with the rejection of the second appeal, the applicant served a legal notice dated 23.9.2005 on the respondents Nos. 1 to 5 (Annexure-9). Respondent No.4 replied to the legal notice on 11.11.2005 (Annexure-10) stating that the applicant had contacted A.I.D.S. (H.I.V.) infection due to his own negligence and he thus cannot be considered for disability pension. 5. The applicant in the meanwhile reported for monthly Medical Review at 161 M.H., Pithoragarh from 12.12.2005 to 15.12.2005. A detailed medical examination of his ailment was carried out during the said period. The x-ray report was found to be normal and all other related parameters were found to be N.A.D. Accordingly, the applicant submitted another application on 27.12.2005 (Annexure-18), however, he did not receive any response from the respondents. The applicant, aggrieved by inaction of the respondents filed Writ Petition No. 96 (S/S) of 2006. The x-ray report was found to be normal and all other related parameters were found to be N.A.D. Accordingly, the applicant submitted another application on 27.12.2005 (Annexure-18), however, he did not receive any response from the respondents. The applicant, aggrieved by inaction of the respondents filed Writ Petition No. 96 (S/S) of 2006. The applicant has made following prayer: (i) "To issue a writ order in the nature of certiorari to quash the impugned LM.B. invalidating out the petitioner out of the Army Service due to H.I.V./ A.I.D.S. w.e.f. 23rd October, 2000 along with direction in the nature of mandamus directing the respondents to re-instate the petitioner into army service with full arrears of pay and allowances and consequential service benefits from the date he was wrongly invalidated out of army service i.e., 23.10.2000 afternoon by the respondent No.3 for the disease 042-A Disseminated Tuberculosis (Pleura + Lymphs Nodes) as per the alleged Medical Board at the earliest in view of the related blood tests and x-ray reports on record as carried out by 161 M.H., Pithoragarh from 12.12.2005 to 15.12.2005 under the monthly medical review (O.P.D.) under the disease in respect of the petitioner, have been found N.AD./normal. (ii) To pass such further or other reliefs to the petitioner as the Court considers for ends of justice. (iii) To allow this writ petition and award the cost of it in favour of the petitioner." 6. We have heard Shri Gopal Dutt Joshi learned Counsel for the applicant as also Col. (Retd.) R.N. Singh Senior Central Government Counsel for respondents. 7. Learned Counsel for the applicant vehemently argued that M.H. (C.T.C.), Pune has made a manifest error of judgment in declaring the applicant as a case of A.I.D.S.-042-A (H. LV. Infection with Disseminated Tuberculosis Lymph Nodes + Pleural) and based on the said recommendation, respondent No.5 has illegally and unlawfully discharged the applicant from the service' without giving him any opportunity of hearing. 8. Learned Counsel for the applicant informed us that the applicant submitted Amendment Application No. 1642 of 2007 before Uttrakhand High Court at Nainital which was allowed by Hon'be Single Judge on 28.6.2007. The learned Counsel drew our attention to the letter dated 5.3.2007 addressed to respondent No.6 by Ministry of Health and Family Welfare, Government of India, "National A.I.D.S. Control Organization" (Annexure No. 1 to the amendment application). The learned Counsel drew our attention to the letter dated 5.3.2007 addressed to respondent No.6 by Ministry of Health and Family Welfare, Government of India, "National A.I.D.S. Control Organization" (Annexure No. 1 to the amendment application). This report is based on medical evaluation of the applicant in R.M.L. Hospital, New Delhi on 11.1.2007. The extracts from the said letter are reproduced below: "I am forwarding you a representation from Mr. Jagdish Singh Mahara resident of Village : Baligarh, Post : Legem, The Didihat Distt. Pithoragarh (U.AY. He has been dismissed from his service in Army in October 2003 because he was suffering from A.I.D.S. He was found to be H.I.V. positive (2000) during his treatment for tuberculosis and was subsequently treated by Army hospital and later dismissed from army services because he was having A.I.D.S. During recent evaluation of patient at RM.L. Hospital his C.D. 4 count was found to be 291 (11.1.2007) which does not place him in category of A.I.D.S. but in category of H.I.V. only. He at present does not have any other opportunistic infection and is otherwise healthy. Based on this he has submitted a representation challenging his dismissal from ARMY. As H.I.V. infection is not a criteria for dismissal from service, his petition may kindly be reviewed by your organization, keeping in view the national policy of not discriminating people infected with H.I.V. A.I.D.S." 9. The learned Counsel vehemently argued that when National A.I.D.S. Control Organization .which is a national level policy making authority had given a clean chit to the applicant, there is no justification for respondent No.6 to remain silent on the issue. 10. The learned Counsel for the applicant argued that a person cannot be denied his livelihood merely on the grounds of being infected by a contagious disease. He relied upon the judgment of the Divisional Bench of the Bombay High Court in the case of M.X. of Bombay Indian Inhabitant v. M/s. Z. Y. and• another.1 Para 53 of the said judgment is reproduced as under: "53. Thus, no person can be deprived of his right to livelihood except according to procedure established by law. Obviously, such procedure established by law has to be just, fair and reasonable. In other words, such procedure also must pass the rigour of Article 14. Thus, no person can be deprived of his right to livelihood except according to procedure established by law. Obviously, such procedure established by law has to be just, fair and reasonable. In other words, such procedure also must pass the rigour of Article 14. The rule providing that person must be medically fit before he is employed or to be continued while in employment is, obviously, with the object of ensuring that the person is capable of or continues to be capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the workplace. The persons who are rendered incapable, due to the ailment, to perform their normal job functions or two pose a risk to other persons at the work place, say like due to having infected with some contagious disease which an be transmitted through the normal activities at the workplace, can be reasonably and justifiably denied employment or discontributed from the employment inasmuch as such classification has an intelligible differentia which has clear nexus with the object to be achieved to ensure the capacity of persons to perform normal job functions as also to safeguard the interests of other persons at the workplace. But the person who, though has some ailment, does not cease to be capable of performing the normal job functions and who does not pose any threat to the interests of other persons at the workplace during his normal activities cannot be included in the aforesaid class. Such inclusion in the said class merely on the ground of having an ailment is, obviously arbitrary and unreasonable." 11. He also relied on a judgment of Hon'ble Single Judge of Gujarat High court in the case No. S.C.A./18783/2006. of Nikum Ramesh Indian Inhabitant v. Union of India Through and 4 (not reported) wherein relying on the judgment of the Divisional Bench of the Bombay High Court in the case of M.X. (supra) the Court directed the Director General of F order Security Force, New Delhi to instate the B.S.F. personal who was said to be H.I.V. infected and had been dismissed from B.S.F. service earlier on this count. 12. 12. The learned Counsel for the applicant concluded his submissions by stating that since it was established beyond doubt that the applicant suffered from H.I.V. and not A.I.D.S. and that the former was not a criteria for dismissal, the applicant should be re-instated in the service in view of the national policy of not discriminating people infected with H.I.V. A.I.D.S. 13. In opposition learned Counsel for the respondents argued that primarily the said disability was due to his own negligence and was, therefore neither attributable to nor aggravated by the military service. Therefore, the applicant was not entitled for disability pension as per paragraph 173 of Pension Regulations, 1961 (Part I). 14. He further argued that as per the opinion of Classified Specialist (Medical and Chest Diseases), M.H. (CT.C), Pune which is a premier cardio thoracic hospital of the Armed Forces he had opined on 13.7.2000, that he was a case of "A.I.D.S. (H.I.V. Infection with uisseminated Tuberculosis (Pleura + Lymph Nodes)". After investigating the patient thoroughly, they recommended that the patient is not fit to be retained in service and recommended him to be invalid out in low medical category S1H1A1P5E1 vide Army Order 150/75 and other existing instructions. 15. In paragraph 36 of the counter-affidavit the respondents have denied contends of paragraph 24 of the writ petition and reiterated that 161 M.H. clearly mentioned that the applicant failed to report for his monthly medical check ups regularly and that he had gone there in December 2005 after a gap of 3 months. But not mentioning about the discontinuation of the monthly checkups, the applicant was trying to mislead the Court by giving false facts. It has been averred that any improvement in the periodic check up is no indication to the main diagnosis i.e. A.I.D.S. 16. Having considered the rival contentions of the parties at length, there is broadly no dispute with regard to initial unfolding of events and subsequent aspects relating to applicant developing chest pain, dry cough and breathlessness during leave in January-March 2000. There are a few issues with regard to date of admission and discharge in various hospitals but none that would have an over bearing impact on the issue at hand and could be ignored in the interest of overall justice. 17. There are a few issues with regard to date of admission and discharge in various hospitals but none that would have an over bearing impact on the issue at hand and could be ignored in the interest of overall justice. 17. It also needs to be highlighted that albeit service in Operation VIJAY required a soldier to serve in high altitude and that getting a medal in the said area is neither something out of the ordinary nor does it have a direct corelation to the disease per se and issues relating to A.I.D.S./H.I.V. at hand. We have taken note of the fact that the applicant belongs to Uttrakhand which is primarily a hilly area and as such his deployment in a high altitude would not have a profound effect on his medical condition. 18. The aspect germane to the issue at hand lies in the report of the Ministry of Health and Family Welfare, Government of India which is a nodal agency for A.I.D.S. in the country i.e., National A.I.D.S. Control Organization. The letter highlights the national policy towards AI.D.S./H.I.V. patients. We have also taken into account the international opinion on the subject of AI.D.S. and the workplace as revealed from various recommendations in the international conventions co-sponsored by U.N.E.S.CO., W.H.O., I.L.O., the Council of Europe and the European Communities. Even in India, as quoted in the judgment of the Divisional Bench of the Bombay High Court in the case of M.X. (supra), "has published a National H.I.V. Testing Policy under the auspices of the Government of India. The said policy states that since during the prolonged asymptomatic carrier stage of H.I.V. infection, one remains fully active physically and mentally which demands an appropriate intervention which maintains the life style, dignity and rights of the patient and at the same time reduces or eliminates transmission. In the ultimate recommendations, it is stated that any testing procedure without explicit consent of the patient/mandatory testing must be discouraged when it tends to identify an individual except in exceptional situations............" 19. In the ultimate recommendations, it is stated that any testing procedure without explicit consent of the patient/mandatory testing must be discouraged when it tends to identify an individual except in exceptional situations............" 19. On the issue whether or not the applicant contracted the infection due to his own negligence and thus could not be considered or disability pension, in our considered opinion we are of the view that the Armed Forces are a microcosm of the national mainstream and it cannot divorce itself from the National A.I.D.S. Control policy laid down by Ministry of Health and Family Welfare Government of India and as such the respondents need to comply by the said policy. 20. We feel that if the national policy contemplates rehabilitating personnel afflicted by H.I.V., the applicant must be given a fair chance in the spirit of such policy and the Armed Forces cannot be straight jacketed in the interpretation of rules and regulations which are variance with the National A.I.D.S. Control Policy. 21. We in the circumstances allow the transferred application and direct the competent authorities to review the medical categorization of the applicant in light of the Ministry of Health and Family Welfare, Government of India (National A.I.D.S. Control Organization) report dated 5.2.2007 (Annexure No.1 to the Amendment Application) within a period of three months from date a. certified copy of this order is served. If after re-assessment, the applicant is found to be in an acceptable medical category and other eligibility criteria, he should be re-instated in service. If, however, the applicant cannot be re-instated because of age or other related factors, all consequential benefits, thereof should be admitted in his favour. 22. The invalidating Medical Board proceedings of dated 3.10.2000 are set aside. 23. No order however as to costs. Appeal Disposed of.