Clear Discrimination: Gujarat High Court Orally Remarks After Woman Claims CRPF Denied Her Promotion For Being HIV+

While hearing a woman's plea alleging discrimination in promotion to higher post in CRPF on the ground that she has HIV-AIDS despite meeting all other eligibility criteria, the Gujarat High Court on Wednesday (February 12) orally remarked that promotion cannot be denied in ministerial posts because of health issues. 

The court further orally said that a person cannot be denied promotion if they are otherwise fit for the job, further questioning the Centre on the "logic" for "such discrimination", adding that this was not a case pertaining to "field work" where the authorities could have said that the incumbent cannot discharge their duties.

After hearing the matter for some time, the court asked the Additional Solicitor General in charge to appear in the matter on the next date noting that the plea questions the constitutional validity of the concerned recruitment rules. 

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its order dictated, "This case highlights clear instances of discrimination in the Central Reserve Police Force for the incumbents who are suffering from the disease known as HIV-AIDS. The challenge is to the validity of the Standing Order Number 4/2008 as well as Rule 5 of the Central Reserve Police Force, Assistant Commandant (Ministerial), Recruitment Rules 2011, on the ground that same is contradictory to the provisions of HIV and AIDS (Prevention and Control) Act, 2017 and the guidelines namely National HIV Counselling and Testing Guidelines 2024, as also being violative of Article 14, 16 and 21 of the Constitution of India in as much as the petitioner has been denied promotion to a higher ministerial post only on the basis of the decision of the medical board dated 03.02.2024, reporting that the petitioner is suffering from higher grade of the disease namely HIV-AIDS". 

The petitioner's counsel contended that she had been denied promotion to the higher post consistently despite being fit for promotion on all other aspects of eligibility, except the fact that she is suffering from HIV-AIDS and the disease is progressing.

The court further said, “Mr. Harshil D. Shukla, Ld. Advocate has put in appearance on behalf of the respondents no. 1-3. As the challenge is to the validity of recruitment rules, the matter be brought to the notice of In-charge Additional Solicitor General of India to appear before the Court on the next date fixed.The promotion if any, made on the post in question, shall be subject to the final decision of the present petition".

During the hearing the petitioner's counsel argued that the plea challenges the vires of CRPF Assistant Commandant (Ministerial), Recruitment Rules 2011 on the ground that it contradicts the HIV Aids Act. He submitted that the petitioner has been caused prejudice and denied promotion due to the rules. 

The Court then orally asked, “You have been denied promotion because of this rule? These are the Central Rules?”

At this stage the counsel appearing for the respondents, which includes the Union of India, contended that pursuant to the rules, the standing order was passed which stipulates that for the purpose of promotion, the candidate has to be in shape one.

At this stage the court orally said, “What do you mean by shape one? You cannot deny promotion because of the health issues, that is a basic issue. Unless and until, you are able to establish that he is incapacitated from working. Because of frailing health condition, no one can be denied promotion… and that is the only consideration and there are jobs which are less strenuous jobs. This is not a field job (it is a ministerial job). In ministerial jobs, how can you deny promotion on the ground of ill health? This is a clear discrimination Mr. Counsel. A person who is suffering from heart disease, a person who is suffering from any kind of ailment, is same as a person who is suffering from HIV-AIDS. This is nothing but an ailment. You cannot fix the grading and then say that since, 'if you are not falling in grade this (and that), you cannot be left to work the ministerial job'. Mr. Counsel it is about the promotion. You cannot deny promotion if he is otherwise fit for the job. Just because he is suffering from ill health (and) his health is deteriorating?”

The respondents counsel said that this was not the sole ground and in the past they have considered candidate's health conditions with regards to the promotion.

The court however orally said, “Mr. Counsel whatever you were doing in past, you cannot continue to do in future. We are asking you one question, please answer. This is an issue pertaining to health of the incumbent. There are other people who may be suffering from heart disease, who may be suffering from diabetes, severe diabetes so, will you also keep them in the same category? Please answer. And where is the logic for discrimination? Where is the rationale? It's not field work that you can say, because of the sufferance from the disease, they are not able to discharge their duties. What you have done is that you have prepared a criteria to exclude these persons specifically.”

At this stage the counsel contended that they have not excluded and in fact the petitioner has herself been promoted in the past.

To this court orally asked, “Now further promotion? On what basis you are restraining from further promotion? What is the logic for this? Please tell us the logic for the stage one and stage two. What is the logic for ministerial job? Tell us. If you are able to satisfy us that there is a logic a rationale for keeping these stages–one two, and three, for promotional in ministerial post, we will uphold the rules.”

The respondents counsel requested that he will file a response in the matter. To this the court asked the counsel to inform the concerned Additional Solicitor General about the matter and orally said “This is a purely constitutional issue, we are not giving you much time. You prepare it and we are going to decide it”.

Permitting the respondents to file a reply the court posted the matter on March 6.