"Justice To Which Mercy Is Alien Is No Justice At All": Delhi High Court Stays Transfer Of HIV Positive BSF Jawan

The Bench of Justice C. Hari Shankar and Justice Subramonium Prasad specifically observed thus:

"Justice, it is well settled, has to be tempered with mercy and compassion. Justice to which mercy is alien is no justice at all."

The matter before the Court

The Court was hearing a plea filed by HIV+ Jawan (diagnosed with HIV in 2007) who was aggrieved by an order dated 9^th June, 2021 which directed him to join the 134 Battalion of the BSF at Cachar, Assam, located on the Indo-Bangladesh Border.

He submitted that in view of the fact that traveling to Cachar, Assam and discharging duties would be severely deleterious to his health, and could also imperil his life, he applied for voluntary retirement with effect from 30th September 2021.

He also addressed a separate representation on 16^th June, 2021, seeking suspension of the order transferring him to Cachar, Assam.

However, he further submitted that instead of receiving any response, on 22^nd June, 2021, a movement order was issued, relieving him of his duties at Delhi with effect from 21^st June, 2021 and directing him to report at his new place of posting on or before 5th July, 2021.

Further, referring to the guidelines issued by the Ministry of Home Affairs (MHA) laying down the criteria for the posting of personnel who are in the P-3 medical category [i.e. persons who have major disablement with limited physical capacity and stamina], his counsel argued that he can't be posted in a place which has humidity levels of 75% round the year which does not have access to nearby specialist services.

He also submitted that since he was detected HIV+ in 2007, he had always been posted in a place — Delhi, Gandhinagar and Kolkata — which had nearby access to specialist HIV treatment facilities.

Court's order

The Court, at the outset, observed that within the confines of the law, compassion must inhere in the approach of every court which practices equity.

During the course of the last hearing, the Court had hoped that keeping in view the medical condition of the petitioner, a more compassionate approach would have been adopted by the respondents, however, the Court remarked that the respondents have chosen to contest the petition.

The Court also noted that over a period of time, HIV being a progressive disease, the condition of the patient usually deteriorates and that the Jawan had a CD4 count of 215, which is a borderline count between HIV and AIDS.

Further, finding no fault with the actions of the Petitioner, the Court noted that he wasn't insisting on retaining posting at Delhi, instead, at the cost of his career, he wanted to voluntarily retire, in accordance with the BSF Rules and the procedure.

In this backdrop, the Court noted:

"We cannot appreciate the insistence of the respondent on the petitioner joining duty at Cachar, in his precarious medical condition, even while keeping the application pending."

In view thereof, the Court opined that till the next date of hearing, the petitioner was entitled to a stay of operation of the impugned order transferring him to Cachar as well as the movement order relieving him for the said purpose.

Further, noting that the petitioner's "replacement" had been posted, the Court asked as to whether this took place even before issuance of movement order to the petitioner, however, the Counsel for the respondent had n answers to the same.

Accordingly, the Court issued a notice in the writ petition to show cause as to why rule nisi be not issued.

Case title - Kavendra Singh Siddhu v. Union of India & Anr.

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