Delhi High Court rejects decision denying HIV positive personnel promotion, appointment in paramilitary forces

New Delhi: The Delhi High Court has held that authorities are under a legal obligation to provide "reasonable accommodation" in employment to those suffering from HIV, and rejected the denial of promotion and appointment to three men in the paramilitary forces who were found positive for the virus.

In the present case, two petitioners -- constables in Border Security Force and Central Reserve Police Force -- were denied promotion while the third petitioner, a constable on probation in the Border Security Force, was denied appointment in 2023.

The petitioners contended that they were denied their respective promotions and appointment solely on the ground of their HIV positive status, which was in violation of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control), Act (HIV Act).

Granting relief, a bench headed by Justice Navin Chawla said the HIV Act protected HIV-positive persons against discrimination in matters of employment unless the employer was able to "certify" the administrative or financial hardship for not providing such a person a reasonable accommodation.

The bench, also comprising Justice Shalinder Kaur, held the petitioners were "wrongly denied" promotion and the same could not be refused to them only because they were not in the "SHAPE-1" medical category on account of being HIV positive.

The court said such a denial would defeat the protection granted to them under the HIV Act and directed the authorities concerned to review the issue of their promotion.

Similarly, it ruled that termination of service of the third personnel on probation only on the ground of him being HIV positive would also result in discrimination and directed that a fresh determination shall be made regarding the retention/removal of the third petitioner from service.

"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 said in the judgement dated March 28.

"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," it further said.

The court said the 2008 office memorandum, which mandates that personnel are required to be in 'SHAPE-I' medical category for promotion has to be "read down" for HIV-positive personnel and there was an obligation cast on the authorities to show that such persons, on being granted promotion, would not be able to be accommodated in any other work.

It clarified in case the petitioners, who were "wrongly denied" promotion, were found "fit" in reassessment, they would be entitled to notional seniority and other consequential benefits from the date they were denied promotion, except for the differential in salary for the two posts.