CRPF | Denying Employment/Promotion To HIV-Positive Person Is Violative Of Articles 14, 16 And 21: Allahabad High Court

In a significant verdict, the Allahabad High Court has held that a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive and this principle also extends to grant of promotion.

"In any case, a person’s HIV status cannot be a ground for denial of promotion in employment as it would be discriminatory and would violate the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution of India," the bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla observed.

The bench was also of the view that protection against discrimination is a fundamental right guaranteed to all the citizens of India and that no one can be discriminated on the basis of his HIV/AIDS status in India.

The Court further stressed that HIV/AIDS patients have a "right of equal treatment everywhere" and they "cannot be denied job opportunity or discriminated in employment matters on the grounds of their HIV/AIDS status".

The bench observed thus while dealing with the intra-court appeal of the Appellant challenging the single-judge order of May 2023. Essentially, he had moved the writ plea before the single judge for grant of promotion, however, the said plea was dismissed. Challenging the same, he moved the instant special appeal.

The case in brief

The case of the appellant was that he was recruited as a constable (General Duty-GD) in the Central Reserve Police Force in the year 1993 and even after completing 13 years of service and also undergoing a promotional course of section commander course (SCC) successfully, he was not promoted to the post of Head Constable in the year 2006, albeit the Standing Order No. 06/1999 prescribed 8 years of completed service as Constable to be promoted to the post of Head Constable.

Now, in February 2008, he was diagnosed with HIV positive and sent for anti-retroviral therapy and was also apparently given medical categorization SHAPE-2 in the year 2009. However, his Annual Medical Examination (AME) was conducted in the year 2011 by which he was declared to be in the SHAPE-I category.

Therefore, considering the nature of the disease and service record of the appellant, vide order dated February 26, 2013, he was promoted to the rank of Head Constable (General Duty) and was posted in Jammu & Kashmir Zone, Srinagar Sector.

However, at that time, since the appellant was posted at 183 Battalion, therefore, on account of non-relieving from Amethi, the appellant was again sent for an Annual Medical Examination in May 2013, wherein he was medically categorized as SHAPE-2 (T-24) and advised for regular treatment for the said ailment.

Now, here it may be noted that as per the Annual Medical Examination, the grading of the medical condition of the appellant was S-I, H-I, A-I, P-2, E-I, which reflected that the appellant was found to lack only ‘P’ factor relating to physical capacity, however, it did not mean that he was not unfit for duties not requiring severe stress.

In other words, the examination revealed that although he had been placed in SHAPE-2, but he was physically fit for duty and the employability limitation indicates that he may have restrictions in employability at high altitude.

Court's observations

Taking into account the facts of the case, the Court, at the outset, noted that CRPF was sensitive and alive to the fact that HIV-positive recruits could not be treated differently from their other recruits, who did not suffer from this disability as far as promotion and other conditions of the service were concerned.

Further, taking into account Clause 22.5 (g) of the Standing Order No. 04/2008, the Court observed thus:

"(it) deals with the case of HIV/AIDS cases, which invariably says that “P2” category of HIV Positive recruit would be fit for all duties anywhere except at difficult and solitary locations, preferably where ART facilities are available."

The Court also observed that Standing Order No. 06/2006 issued by the Director General CRPF on September 03, 2006, laying down the action plan on HIV/AIDS for awareness, prevention, detection, treatment and rehabilitation of the members of the force provides that adequate policy should be made in consultation with the Government of India, so that there is no discrimination in posting/ promotion and social activities of these HIV infected employees.

Further, the Court also noted that the appellant's medical category ‘P-2’ does not in any manner affect the promotional avenue of the person but "only prescribes for employability limitations, keeping in mind that promotion is nothing but an incidence of employment".

In this regard, the Court observed that it is common knowledge that once a personnel moves higher up in the hierarchy in the service, the requirement of his physical endurance relatively reduces and in that sense, the Court added, "it could be well construed that the appellant who is presently performing and is found fit physically for the post of Constable can be always be found fit for a less physically enduring duties of Head Constable".

In view of this, stressing that no one can be discriminated on the basis of his HIV/AIDS status in India, the Court observed thus:

"Even the CRPF Standing Orders issued from time to time reverberate their belief to provide equal status and opportunity to these affected personnel. HIV/AIDS patients have a right of equal treatment everywhere and they cannot be denied job opportunities or discriminated in employment matters on the grounds of their HIV/AIDS status. Even in the case of promotion, the said non-discrimination is echoed in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act of 1995).

Consequently, the Court set aside the impugned order passed by the Single Judge and declared that the appellant would be entitled to full benefits of promotions as is extended to those who do not suffer from HIV positive.

All the directions and orders impugned in the present case which denied or deprived the appellant the chance or right to occupy the promotional posts were also quashed. The respondents were directed to issue consequential orders with effect from the date the appellant’s junior(s) were/was promoted.

Appearances

Advocates Sameer Kalia and Srideep Chatterjee appeared for the appellant 

Senior Advocate/Deputy Solicitor General of India Surya Bhan Pandey assisted by Advocate Sudhanshu Chauhan appeared for the respondents

Case title - XYZ vs. Union Of India Thru. Secy. Ministry Of Home Affairs New Delhi And Others 2023 LiveLaw (AB) 218 [SPECIAL APPEAL DEFECTIVE No. - 430 of 2023]

Case Citation: 2023 LiveLaw (AB) 218

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