HIV Positive Employee Would Be Considered As ‘Person With Disability’ Under RPWD Act: Delhi High Court Grants Relief To BSF Constable
The petition before the Delhi High Court was filed by an HIV-positive appointee to the post of Constable (GD) in the Border Security Force.
Justice C. Hari Shankar, Justice Om Prakash Shukla, Delhi High Court
While allowing an appeal of an HIV positive BSF Constable, the Delhi High Court has held that he could not have been treated as unfit to discharge his duties solely on the ground that he was HIV positive. The High Court also held that an HIV positive employee would be a “person with disability” as defined in Section 2(s) of the RPWD Act.
The petition before the High Court was filed by an HIV-positive appointee to the post of Constable (GD) in the Border Security Force.
The Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla held, “We also find substance in Mr. Aggarwal’s reliance on the RPWD Act. An HIV positive employee would unquestionably be suffering long term physical impairment, which would hinder his full and effective participation in society. Ergo, he would be a “person with disability” as defined in Section 2(s) of the RPWD Act.”
“Thus, whether one views the case from the point of view of HIV Act or the point of view of RPWD Act, the petitioner could not have been treated as unfit to discharge his duties in the BSF solely on the ground that he was HIV positive”, it added.
Advocate Anuj Aggarwal represented the Petitioner while Advocate Virender Pratap Singh Charak represented the Respondent.
Factual Background
On 6 July 2017, it was found that the petitioner had contracted HIV, was undergoing Antiretroviral Therapy and also had abdominal Kochs. The petitioner underwent ART and Anti-Tuberculosis Treatment from July 28, 2017 to January 31,2018 and was thereafter discharged from the hospital. The petitioner was re-examined by a Medical Board on November 15, 2018. Consequently, a show cause notice was issued to the petitioner. As per the show cause notice, he was permanently unfit for recruitment to the BSF, as he had been placed in medical category S1H1A1P2(T-24+24)E1.
The show cause notice, therefore, proposed to retire the petitioner from service and called upon him to show cause thereagainst. The petitioner responded, however, by an order dated April 9, 2019, the petitioner was discharged from service on the ground that he was physically unfit. An appeal was filed against the said decision, but the same was also dismissed by the appellate authority. Aggrieved thereby, the petitioner approached the High Court seeking the quashing of the orders passed against him.
Reasoning
The Bench, at the outset, explained that Section 3 of the HIV Act contains an absolute proscription against termination, from employment, of a person suffering from HIV, unless the person is furnished with a copy of a written assessment of a qualified and independent healthcare provider that he possesses a significant risk of transmission of HIV to other persons in the workplace, or is unfit to perform the duties. The Bench further noted that a written statement by the employer stating the nature and extent of administrative or financial hardship for not providing the petitioner with reasonable accommodation is forthcoming.
On a perusal of the facts, the Bench stated, “There is, in the present case, not even an attempt to comply with Section 3(a) of the HIV Act.”The Bench explained that as per the proviso to Section 3 of the HIV Act, in the event of failure to comply with Section 3(a)(i) and (ii), it would be presumed that there is no significant risk to others if the person is allowed to work in the establishment, and that there is no undue administrative or financial hardship in that regard.
The Bench noted that the RPWD Act, in a vein similar to the HIV Act, does not permit any government establishment to discriminate against any person with disability in any matter relating to employment. Section 20(2) requires reasonable accommodation to be provided by the government to employees who suffer from disability, and Section 20(4) specifically proscribes dispensing with the services of an employee who acquires a disability during his service.
Thus, allowing the petition and setting aside the impugned orders, the Bench ordered, “In the event that the medical condition of the petitioner does not allow him to perform the duties of the post of Constable (GD) to which he was originally appointed, the respondents would have to extend reasonable accommodation to the petitioner by offering him an alternate appointment in any other equivalent post to which he is suitable. If no such post is immediately forthcoming, he would have to be placed in an equivalent supernumerary position.”
Cause Title: MR. ABC v. Border Security Force & Ors (Neutral Citation: 2025:DHC:11494-DB)
Appearance
Petitioner: Advocates Anuj Aggarwal, Divya Aggarwal, Pradeep Kumar, Anjali Bansal, Lovekesh Chauhan, Kritika Matta, Shreya Gupta, Manas Verma, Nikhil Pawar, Shubham Bahl, Bhumica
Respondent: Advocates Virender Pratap Singh Charak, Shubhra Parashar, Pushpender Pratap Singh