Terminating Service Of Personnel Only On Ground Of Him Being Detected As HIV Positive Results In Discrimination: Delhi High Court
The Delhi High Court was deciding Writ Petitions filed against the Orders by which two personnel were denied promotion and one’s appointment was not confirmed and was cancelled.
Justice Navin Chawla, Justice Shalinder Kaur, Delhi High Court
The Delhi High Court held that terminating the service of a personnel only on the ground of him being detected as HIV (Human Immunodeficiency Virus) positive, results in discrimination.
The Court held thus in a batch of Writ Petitions filed against the Orders by which the two Petitioners-personnel were denied promotion and one’s appointment was not confirmed and was cancelled.
A Division Bench comprising Justice Navin Chawla and Justice Shalinder Kaur observed, “Though we are cognizant of the fact that these medical standards may apply to personnel who have already been confirmed in service, keeping in view the mandate of Section 3 of the HIV Act, the same should equally apply to a person who has been given an Offer of Appointment, however, was detected as being HIV positive during his probation period. To terminate the service of such a personnel only on the ground of him being detected as HIV positive, would result in discrimination, which is prohibited under Section 3 of the HIV Act.”
Advocates Abhay Kr. Bhargava and Ankita Gautam represented the Petitioners while SPCs Ajay Jain, Kavindra Gill, and Vivekanand Mishra represented the Respondents.
Factual Background
In the lead case, the Petitioner was enrolled in the Border Security Force (BSF) as a Constable (RO) in the year 1989. He underwent Basic Training at STC BSF Jodhpur (Rajasthan), however, he failed to clear the ORL Grade-III Course and was subsequently remustered/appointed in the Communication Setup. After passing the said Course with a ‘C’ grading from STS BSF Bangalore, he was remustered as NK (RO). The rank of NK (RO) was later merged with the rank of HC (RO) and the Petitioner also qualified the essential career courses while being in the SHAPE-I Medical Category. He was also granted the financial upgradations in the higher pay grade admission to him under the ACP and MACP Schemes. While being posted at the SHQ BSF Cooch Behar, he was referred to a hospital where he was diagnosed with “Mediastinal Tuberculosis with Acquired Immunodeficiency Syndrome (AIDS) and oral candidiasis” and was advised to continue Antiretroviral Therapy (ART) and regular follow-ups. He was placed in a low medical category and despite this, he continued to serve and was considered for promotion to the post of ASI(RO). However, in 2022, the Departmental Promotion Committee (DPC) declared him ‘unfit’ for promotion due to his low medical category. He challenged this decision, and the Court directed the Respondents to consider his representation. The Respondents rejected his representation, stating that he was not entitled to relaxation due to his low medical category.
In the second Petition, the Petitioner was enlisted in the Central Reserve Police Force (CRPF) as a Constable (CT/Bug) in 2005. He completed the Head Constable Promotional Course and was declared passed. However, he was not promoted due to his permanent low medical category. His medical examination revealed that he was HIV positive and was undergoing ART. He was declared ‘unfit’ for promotion due to his medical condition.
In the third Petition, the Petitioner was offered appointment to the post of Constable (GD) in the BSF in 2022. During his basic training, he was diagnosed as HIV positive and was declared medically ‘unfit’ for the training. A Review Medical Board examined the Petitioner and declared him ‘unfit’ for retention in the BSF due to his medical condition. The Respondents issued a show-cause notice to him, and after considering his response, removed him from service under Section 11(2) of the BSF Act. The petitioner challenges the respondents' decision, arguing that his medical condition does not render him unfit for duty. Being aggrieved by the decisions of the Respondents, the Petitioners approached the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “The learned counsels for the petitioners have contended that merely because the petitioners have been found to be HIV positive, the same cannot be a ground for denying promotion to them or removing the petitioners from service.”
The Court said that the first Petitioner was wrongly denied promotion from the post of HC(RO) to the post of ASI (RO) and similarly, the second Petitioner was wrongly denied promotion from the post of Constable to Head Constable.
“The petitioners would be reconsidered by a Review DPC, to be constituted by the respondents within a period of eight weeks from the date of this judgment, for their respective promotions. In case they are found ‘fit’ for promotion, consequential orders for the same shall be passed by the respondents within a period of twelve weeks”, it ordered.
The Court further directed that in case the Petitioners are found ‘fit’ for promotion, they would also be entitled to the notional seniority and other consequential benefits from the date that they were denied promotion, except for the differential in salary for the two posts.
“As far as W.P.(C) 4556/2023 is concerned, the petitioner therein could not complete the basic training for his appointment to the post of Constable (GD), as he was found to be suffering from HIV. … It is only the personnel who are placed in the P5 Medical Category, who are deemed permanently ‘unfit’ for any type of service and can be invalidated out from the service”, it also noted.
The Court held that the Respondents are under a legal obligation to provide reasonable accommodation to persons suffering from HIV.
“We direct that the medical condition of the petitioner shall be re-assessed by the respondents, keeping in view the above medical guidelines applicable to HIV-positive personnel, and a fresh determination shall be made regarding his retention/removal from service. This exercise must be completed by the respondents within a period of eight weeks from today”, it directed.
Accordingly, the High Court, disposed of the Petitions, set aside the impugned Orders, and issued necessary directions to the Respondents.
Cause Title- Hoshiar Singh v. Union of India & Ors. (Neutral Citation: 2025:DHC:2071-DB)
Appearance:
Petitioners: Advocates Abhay Kr. Bhargava, Ankita Gautam, Satyarth Sinha, and Harsh Gautam.
Respondents: SPCs Ajay Jain, Kavindra Gill, Vivekanand Mishra, Advocates N. Mishra, Manoj Kr. Gautam, and Harshit Batra.
