Allahabad High Court: In a special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment and order passed by Single Judge, wherein the Court did not find any illegality or perversity or violation of Constitutional rights in cancellation of the promotion order of the appellant on the ground that he is Human Immunodeficiency Virus (‘HIV’) positive, the division bench of Devendra Kumar Upadhyaya and Om Prakash Shukla, JJ. has held that a person, who is otherwise fit, could not be denied employment or promotion only on the ground that he or she is HIV positive, and this would be a violation of Articles 14, 16, 21 of the Constitution of India. Thus, the Court set aside the impugned order and all directions depriving the appellant’s right to occupy promotional post. Further, it declared that the appellant would be entitled to full benefits of promotions as extended to those who do not suffer from HIV Positive.
The Bench also directed the Union Government to issue consequential orders with effect from the date the appellant’s juniors were promoted.
The appellant was recruited as a Constable (General Duty) in the Central Reserve Police Force (‘CRPF’) in 1993. The Post of Lance Naik and Naik came to be abolished by the Union, and a constable in CRPF, if found eligible was directly promoted to the post of Head Constable on or after the said date. The appellant has been promoted to the said post of head Constable, even after two decades of service. The appellant was aggrieved by the order passed by the Inspector General of Police, whereby the appellant’s name for promotion to the post of head constable has been removed from the approved list on the ground that he has HIV, which according to him was not just, proper and legal. Thus, he filed the writ petition.
The appellant had completed 13 years of service and had undergone the Selection Commander Course successfully, however he was not promoted to the Head Constable in the year 2006, although there was a Standing Order prescribing 8 years of completed service as Constable to get promoted.
The Court took note of Central Police Force Act, 1949, Central Police Force Rules, 1955, Establishment Manual and all the Standing orders, and said that two things are mandatory for promoting to the post of head Constable, the first is passing the senior cadre course and second being class certificate of education or a matriculation or equivalent or higher academic qualification certificate.
After perusing the Annual Medical Examination report, the Court noted that the appellant has been placed in SHAPE-2 category, but he is fit for duty.
The Court said that the CRPF was sensitive and alive to the fact that HIV positive recruits could not be treated differently from their other recruits. The Court took note of Clause 22.5(g) of the Standing Order delas with the case of HIV/AIDS cases which says that P2 category of HIV Positive recruit would be fit for all duties anywhere except in difficult and solitary locations, preferably where Anti-Retroviral Therapy is available.
The Court further noted that the Director General CRPF has also issued a Standing order, laying down the action plan on HIV/AIDS for awareness, prevention, detection, treatment and rehabilitation of the members of the force. It has been specifically stated in Clause (b) 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.
The Court also noted from the records that the 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. However, Clause 4.13 of the Standing order merely prioritises by saying that medical category SHAPE-1 would be an essential condition for promotion of all combatised personnel, i.e., personnel involved in actual fighting duty. Personnel can come to the combatised post as per his medical evaluation.
The Court viewed that the said Clause does not relate to promotional avenue, especially when there is no similar embargo/restriction in the Act, 1949 or the Rules, 1995 for HIV positive personnel.
The Court said that once personnel move higher up in the hierarchy in the service, the requirement of his physical endurance relatively reduces. Thus, the appellant who is presently performing and is found physically fit for the post of Constable can always be found fit for the less physically enduring duties of Head Constable, as only his physical endurance has been categorised as P-2.
The Court further viewed that the protection against discrimination is a fundamental right guaranteed to citizen of India. No one can be discriminated based on his HIV /AIDS Status in India. Even the CRPF Standing Orders issued from time-to-time reverberate this belief to provide equal status and opportunity to these affected personnel.
The Court said that HIV/AIDS patients have a right of equal treatment everywhere and they cannot be denied job opportunity or discriminated against in employment matters.
Further, the Court took note of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates that no promotion shall be denied to a person merely on the ground of his disability.
[X v. Union of India Through Secretary, Ministry of Home Affairs, 2023 SCC OnLine All 429, Order dated 06-07-2023]
Advocates who appeared in this case :
Counsel for Appellant: Advocate Sameer Kalia, Advocate Srideep Chatterjee;
Counsel for Respondent: Additional Solicitor General of India.