In a significant ruling, the Delhi High Court has held that dismissing Central Armed Police Forces (CAPF) personnel solely because they are HIV positive is discriminatory and goes against the HIV Act.
A division bench comprising Justice Navin Chawla and Justice Shalinder Kaur stated that the authorities have a legal duty to reasonably accommodate individuals living with HIV instead of outright termination.
"Though we are cognizant of the fact that these medical standards may apply to personnel who have already been confirmed in service, keeping in view the mandate of Section 3 of the HIV Act, the same should equally apply to a person who has been given an Offer of Appointment, however, was detected as being HIV positive during his probation period." – Delhi High Court
The court clarified that termination based solely on HIV status amounts to discrimination, which is prohibited under Section 3 of the HIV Act.
Relief for Three CAPF Personnel Denied Promotion & Appointment
The ruling came as a relief for three CAPF personnel who were denied promotion and appointment due to their HIV status. They were not placed in the SHAPE-I Medical Category, which is a requirement for career advancement.
However, the court held that the Office Memorandum (OM) issued in 2008, which mandates SHAPE-I medical classification for promotions, must be interpreted in alignment with the HIV Act.
“To give effect to the objectives of the HIV Act and its prohibition against discrimination, Para 4.13 of the OM dated 18.11.2008 has to be read down as far as HIV-positive personnel are concerned, in a narrow sense, and an obligation is cast on the respondents to show that such person, on being granted promotion, would not be able to be accommodated in any other work.” – Delhi High Court
The court further emphasized that HIV-positive personnel should be considered SHAPE-I for the purpose of promotion if their condition does not hinder their job performance.
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Protection Under the HIV Act
The High Court firmly stated that if the only medical issue affecting an HIV-positive CAPF personnel is their classification in SHAPE-I, then this should not be a reason for denial of promotion or employment.
Denying career progression based on technicalities would defeat the protection granted under the HIV Act.
Next Steps for the Affected Personnel
For the two petitioners who were denied promotion, the court directed that a Review Departmental Promotion Committee (DPC) be set up within eight weeks to reconsider their cases. If found fit for promotion, they would also receive notional seniority and other related benefits.
For the third petitioner, who was denied appointment, the court ordered a fresh medical assessment based on HIV-specific guidelines to determine whether he should be retained in service.
Title: HOSHIAR SINGH v. UNION OF INDIA & ORS and other connected matters
