Constable Serving Since 1985 Denied Promotion Allegedly On Ground Of Being HIV+, Punjab & Haryana High Court Directs Centre To Take Decision

The Punjab & Haryana High Court has directed the Union government to pass a speaking order on a Constable's demand for promotion to Head Constable General Duty post. The Constable, who is with a Central Armed Police Force, said he was being denied promotion only because he is a patient of HIV+.

Justice Jagmohan Bansal took note of the high court's decision in Bishamber Dutt vs. Union of India and others and provisions of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, and said:

“The petition stands disposed of with a direction to the respondents to pass a speaking order qua entitlement of the petitioner to promotion. The competent authority shall pass order after considering 2017 Act as well as afore-stated judgment of this Court and grant opportunity of personal hearing to the petitioner. The needful shall be done within 06 weeks from today.”

Advocate J.S Mahal, representing the petitioner submitted that the petitioner has been working as a Constable General Duty since 1985 and has not been granted promotion only on the ground that he is patient of HIV+.

As per the 2017 Act, the authorities cannot make discrimination on the ground that the petitioner is a HIV+ person, he added.

In support of his contention, he relied upon the high court's judgment in Bishamber Dutt vs. Union of India and others wherein it has been held that benefit of promotion cannot be denied merely on the ground that a candidate is a HIV+ person.

"The petitioner, at present, is working and he is medically fit. Had he been unfit, he must have been discharged," the counsel said.

The counsel representing the government said that as per conditions of promotion enumerated in 2015 standing order, an “employee must be SHAPE-One whereas the petitioner is SHAPE-2(P), thus, he cannot be considered for the purpose of promotion.”

However, the court said, "on being confronted with the aforesaid 2017 Act, as well as judgment of this Court, learned counsel for the respondents submits that respondents would pass speaking order after considering statutory provision as well as judgment of this Court."

Case Title: X v. Union of India and others

Advocate J.S.Mahal for the petitioner.

Advocate Amit Sharma for UOI.