The bench stated that the petitioners were “wrongly denied” their promotions. It ruled that promotions cannot be refused just because a person is not in the SHE-1 medical category due to HIV.
New Delhi: The Delhi High Court has ruled that government authorities must provide “reasonable accommodation” in employment to people suffering from HIV. The court rejected the decision to deny promotion and appointment to three paramilitary personnel who tested positive for the virus.
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A bench led by Justice Navin Chawla, along with Justice Shalinder Kaur, ruled in favor of the petitioners. The court said that the HIV Act protects HIV-positive individuals from discrimination in employment. Authorities can refuse reasonable accommodation only if they can “certify” that doing so would cause administrative or financial hardship.
The bench stated that the petitioners were “wrongly denied“ their promotions. It ruled that promotions cannot be refused just because a person is not in the SHE-1 medical category due to HIV.
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Background
The case involved three petitioners who were serving in paramilitary forces:
- Two of them were constables in the Border Security Force (BSF) and the Central Reserve Police Force (CRPF). They were denied promotion because they were HIV positive.
- The third petitioner was a probationary constable in BSF who was denied appointment in 2023 due to his HIV status.
The petitioners argued that they were unfairly denied promotion and appointment solely because they had HIV. They claimed this was a violation of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) Act.
The court emphasized that such denials go against the protections given by the HIV Act. It ordered the authorities to review the petitioners’ promotion cases.
Regarding the third petitioner, the court ruled that terminating his services just because of HIV status would be discrimination. It instructed the authorities to reassess whether he should be retained or removed from service.
The judgment, dated March 28, further explained:
“We have, hereinabove, considered various categorizations of the medical categories relating to HIV-positive personnel. We have also noticed that in spite of being HIV positive, such personnel can be deemed ‘fit’ for the performance of duties, in some cases at all places, while in some cases there may be restrictions for the place of their posting or the nature of the work/duties that they can perform.”
The court clarified that only those placed in the P5 Medical Category are considered permanently “unfit” for any type of service and can be discharged. It ruled that the government is legally bound to provide reasonable accommodation for HIV-positive individuals.
The judges also directed that the 2008 office memorandum, which requires personnel to be in SHE-1 medical category for promotion, must be “read down” for HIV-positive individuals. The authorities must show that giving promotion would make accommodation impossible.
The court made it clear that if the petitioners, upon reassessment, are found “fit,” they will receive notional seniority and all consequential benefits from the date they were denied promotion. However, they will not get the salary difference between the two posts.
“It is only the personnel who are placed in the P5 Medical Category, who are deemed permanently ‘unfit’ for any type of service and can be invalidated out from the service. We have also held that the respondents are under a legal obligation to provide reasonable accommodation to persons suffering from HIV.”
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