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Allahabad High Court allows appeal of petitioner, says HIV no ground for denial of promotion

The Lucknow Bench of the Allahabad High Court while allowing the appeal said that a person’s HIV status cannot be a ground for denial of promotion in employment as it would be discriminatory and would violate the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution of India.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla passed this order while hearing a Special Appeal filed by an HIV positive person.

The intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by the appellant/writ petitioner whereby the order dated 24.05.2023 passed by the Single Judge in Writ petition has been sought to be interdicted.

Apparently, the appellant is aggrieved by an order dated 17.05.2021 issued by the Inspector General of Police, Central Sector, Central Reserve Police Force, Lucknow, whereby the appellant’s name for promotion to the post of Head Constable made on 26.02.2013 has been removed from the approved list A/GD-11/2009 on the ground of him having been found Human Immunodeficiency Virus (HIV) Positive, which according to him was not just, proper and legal. Since, the appellant’s proposition did not find any favour with the Single Judge, his writ petition (supra) was dismissed/rejected and as such the appellant is before us in special appeal.

The appellant was recruited as a Constable (General Duty-GD) in the Central Reserve Police Force (CRPF) on 28.08.1993. He was initially allocated to 16th Battalion, Jammu & Kashmir Zone.

The post of Lance Naik and Naik came to be abolished by the respondents on 10.10.1997 and as such any Constable in CRPF, if found to be eligible, was directly promoted to the post of Head Constable on or after the said date.

The appellant having not been promoted to the said post of Head Constable, even after two decades of service, approached the Court by instituting the writ petition.

The appellant, although had completed 13 years of service and also had undergone the section commander course (SCC) successfully, however, he was not promoted to Head Constable in 2006, albeit the Standing Order prescribed 8 years of completed service as Constable to be promoted to the post of Head Constable.

Nevertheless, in the year 2006, a Standing Order was issued laying down the action plan on HIV/AIDS for awareness, prevention, detection, treatment and rehabilitation of the members of the force.

However, the provision for medical examination and classification of members of the force is contained in the Standing Order, which invariably lays down the instructions/procedure for carrying out annual medical examinations.

Further, there also exists an Establishment Manual which provides for various procedures and modalities to be followed with respect to grant of promotion and other conditions of service of the members of the force, wherein it is mandatorily required that in order to be eligible for being considered for inclusion in the approved list for promotion, the medical category should be SHAPE-I.

In the intervening period, on or about 18.02.2008, the appellant was diagnosed with HIV positive and put on Antiretroviral therapy (ART) and subsequently on 21.01.2009 was given medical categorization as SHAPE-2. However, in terms of the aforesaid Standing Order, the appellant was made to undergo annual medical examination in the year 2011, in which he was declared to be in SHAPE-I category and as such his name was brought in the Special Approved List-A/ GD(Male) (11 of 2009) on 04.01.2011 and he was granted the seniority, which was communicated to the appellant vide office order dated 14.07.2011.

Apparently, the medical examination of the appellant was again conducted on 04.01.2012, wherein his case was categorized as ‘SHAPE-I’. Thereafter, on due consideration along with other eligible candidates, the Deputy Inspector General of Police (Establishment), vide letter dated 26.02.2013, promoted the appellant along with other eligible candidates to the post of Head Constable (General Duty), subject to the condition that all affected personnel ought to be free from vigilance angle and no departmental inquiry, prosecution for criminal charge was pending against them and were not undergoing punishment of withholding of increment and were ‘SHAPE-I’ as per Standing Order. The name of the appellant in the aforesaid letter dated 26.02.2013 was at Serial No 2094. Therefore, the appellant was promoted and posted at 183 Battalion by the order of Deputy Inspector General, South Srinagar dated 06.04.2013.

However, as per the facts of the case, the appellant was not relieved from his duties while working at Amethi and on 17.05.2013, he was made to undergo another annual medical examination wherein on having been found HIV Positive, he was medically categorized in SHAPE-2 (T-24) and was further advised regular treatment for the said ailment. Coincidently, the grading of SHAPE-2 was acquired on the basis of factor-P i.e physical as ‘2’, whereas the other factors were mentioned as ‘1’ only.

Counsel for the appellant has contended that the denial of promotion to the appellant on the solitary ground of being HIV positive is arbitrary and discriminatory as two similarly situated persons, who were recruited and junior to the appellant are working on the post of Assistant Sub-Inspector, whereas the appellant is working on the post of Constable for no fault on his part. According to him, as per the Standing Orders/Circulars/ CRPF Manual, the only requirement for posting of a recruit like the appellant, who suffered from HIV positive is to the place where ART facility is available and not to any difficult and solitary locations.

On the other hand, Senior Counsel representing the Union of India, has opposed the aforesaid submissions of the counsel for the appellant and has argued that the essential eligibility condition for promotion from the post of Constable (General Duty) to Head Constable (General Duty) in CRPF is that the individual should be in the medical category of SHAPE-1.

According to him, in the case, the appellant falls in the medical category of SHAPE-2 and as such the appellant lacks requisite eligibility of promotion to the post of Head Constable (General Duty). Therefore, the Single Judge has rightly dismissed the writ petition.

The Court found that CRPF was sensitive and alive to the fact that HIV positive recruits could not be treated differently from their other recruits, who did not suffer from this disability as far as promotion and other conditions of the service were concerned. Clause 22.5 (g) of the Standing Order deals with the case of HIV/AIDS cases, which invariably says that “P2” category of HIV Positive recruit would be fit for all duties anywhere except at difficult and solitary locations, preferably where ART facilities are available. Although, Clause 4.13 and Clause 22.5(g) are borne out of the same Standing Order, however they are at stark difference, as on the one hand the General Clause 4.13 prescribes a recruit to be in SHAPE-1, whereas the special provisions related to HIV positive says that a personnel having even SHAPE-2 medication conditions is fit for duties.

Further, the Court found that the Director General CRPF has also issued a Standing Order on 03.09.2006, laying down the action plan on HIV/AIDS for awareness, prevention, detection, treatment and rehabilitation of the members of the force. Under the caption ‘Management of HIV/AIDS cases’ in the aforesaid Standing Order, 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.

In the facts of the case, the Court does not have even an iota of doubt that the aforesaid judgment has a persuasive effect. The appellant was detected with HIV positive in the year 2008 and he was promoted in the year 2013 and he was reversed from the promotion in 2014 and even today after close to 9 years, the appellant continues to be employed as Constable with the respondents and is in the same medical condition of SHAPE-2.

The Court also found that the aforesaid judgment relied upon by the appellant contains a similar chart of physical endurances similar to clause 22.4 of Part-IV of the Standing Order, which deals with procedure for medical categorization. Since, the appellant has been found fit for duties, the Court also finds no reasons as to why his promotion could not have been granted.

The Court is of the view that since a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive and this principle also extends to grant of promotion. In any case, a person’s HIV status cannot be a ground for denial of promotion in employment as it would be discriminatory and would violate the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution of India.

Accordingly, the Court allowed the appeal.

“As a consequence of the above discussion, while we set-aside the impugned order dated 24.05.2023 passed by the Single Judge, it is declared that the appellant would be entitled to full benefits of promotions as is extended to those who do not suffer from HIV Positive. All the directions and orders impugned in the case which denied or deprived the appellant the chance or right to occupy the promotional posts are hereby quashed. The respondents are directed to issue consequential orders with effect from the date the appellant’s junior(s) were/was promoted”, the Court ordered.

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