Delhi HC relief to HIV-positive men in promotion, appointment in paramilitary forces

The Delhi High Court has held that authorities are under legal obligation to provide “reasonable accommodation” in employment to those suffering from Human Immunodeficiency Virus (HIV) while giving relief to three HIV-positive men in the paramilitary forces over denial of promotion and appointment.

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

The petitioners contended that they were denied 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, or HIV Act.

Granting relief, a Bench of Justice Navin Chawla and Justice Shalinder Kaur said the 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 held that two of 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. It said such a denial would defeat the protection granted to them under the HIV Act and directed the authorities concerned to review their issues.

Similarly, it ruled that termination of service of the third petitioner 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 or removal 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.