Delhi High Court: While hearing a petition filed by an HIV+ constable in the Border Security Force (‘BSF’) seeking quashing of order of termination of employment and reinstatement in service, the Division Bench of *C. Hari Shankar, J and Om Prakash Shukla, J, held that the petitioner could not have been treated as unfit to discharge his duties on the sole ground that he was HIV+. The Court also held an HIV+ person would be considered as a ‘person of disability’ under the Rights of Persons with Disabilities Act, 2016 (‘RPwD Act’).
Background
The petitioner had been appointed to the post of constable (GD) in the BSF in April 2017. In July 2017, he had been diagnosed with HIV and was undergoing Antiretroviral Therapy (‘ART’) from July 2017 to January 2018. The petitioner had been re-examined by the medical board in December 2018 and had been declared permanently unfit for recruitment to the BSF.
Vide the instant petition, the petitioner assailed the order dated 9-10-2020 through which the petitioner had been discharged from service.
Analysis, Law and Decision
The Court referred to Section 3 of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (‘HIV Act’) which contains an absolute bar against termination of an HIV+ employee unless he
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possesses a significant risk of transmission of HIV to other persons in the workplace, or is unfit to perform the duties of the job, and
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a written statement by the employer stating the nature and extent of administrative or financial hardship for not providing the petitioner reasonable accommodation is forthcoming.
The Court observed that there hadn’t been any attempt to even comply with Section 3 of the HIV Act. The proviso to Section 3 of the HIV Act makes it clear that, in the event of failure to comply with Section 3(a)(i) and (ii), it would be presumed that there is no significant risk to others if the person is allowed to work in the establishment, and that there is no undue administrative or financial hardship in that regard. The sequitur can only be, therefore, that the termination of the petitioner, on the ground that he was unfit to hold the post in the BSF, is in the teeth of Section 3(a) of the HIV Act.
The Court further opined that an HIV+ employee would suffer long term physical impairment which would hinder his full and effective participation in the society. Ergo, he would be a ‘person with disability’ as defined under Section 2(s) of the RPwD Act.
The Court also observed that Section 20 of the RPwD Act does not permit any government establishment to discriminate against any person with disability in any matter relating to employment and requires reasonable accommodation to be provided by the government to employees who suffer from disability.
The Court opined that if the medical condition of the petitioner did not allow him to perform the duties of the post of Constable (GD) to which he was originally appointed, the respondents would have to extend reasonable accommodation to the petitioner by offering him an alternate appointment in any other equivalent post to which he is suitable. If no such post is immediately forthcoming, he would have to be placed in an equivalent supernumerary position.
Accordingly, the Court ordered reinstatement of the petitioner along with continuity of service and fixation of pay and quashed and set aside the impugned order.
[ABC v. Border Security Force, W.P.(C) No. 3616 of 2021, decided on 16-12-2025]
*Judgement Authored by: Justice C. Hari Shankar
Advocates who appeared in this case:
For the Petitioner: Anuj Aggarwal, Divya Aggarwal, Pradeep Kumar, Anjali Bansal, Lovekesh Chauhan, Kritika Matta, Shreya Gupta, Manas Verma, Nikhil Pawar, Shubham Bahl, Bhumica, Advocates
For the Respondent: Virender Pratap Singh Charak, Shubhra Parashar, Pushpender Pratap Singh, Advocates