In a landmark decision, the Delhi High Court has asserted the rights of HIV-positive individuals within the paramilitary forces, striking down the denial of promotion and appointment to three men due to their HIV status. The ruling, handed down by a bench led by Justice Navin Chawla, underscores the legal requirement to provide “reasonable accommodation” in employment settings for those living with HIV.
The case involved two constables, one from the Border Security Force and the other from the Central Reserve Police Force, who were denied promotions, and a third constable from the Border Security Force on probation whose appointment was rescinded in 2023 because of their HIV-positive status. The petitioners argued that their career setbacks were solely based on their health condition, a stance that the court found was in direct violation of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV) Act.
Justice Chawla, together with Justice Shalinder Kaur, articulated that the HIV Act shields HIV-positive individuals from discrimination in employment contexts unless the employer can demonstrate significant administrative or financial difficulties in providing the necessary accommodations. The court’s judgement emphasized that promotions could not be withheld merely because the individuals did not meet the “SHE-1” medical category requirements due to their HIV status.
Furthermore, the court addressed the termination of the probationary constable, decreeing that such action constituted discrimination. It ordered a reevaluation concerning the continuation or termination of his service, insisting on fair treatment and adherence to the legal protections afforded under the HIV Act.
The ruling also tackled the broader implications of medical categorizations for HIV-positive personnel, clarifying that while some may face restrictions regarding their posting or duties, they should not be deemed unfit for service unless categorized under the P5 Medical Category, which indicates permanent unfitness.
Moreover, the court directed that the 2008 office memorandum, which mandates personnel to be in the ‘SHE-I’ medical category for promotion, should be “read down” in cases involving HIV-positive personnel. This means that there is an obligation on the authorities to demonstrate that such individuals, when promoted, cannot be accommodated in alternative roles.
In a significant nod to the rights of the petitioners, the court stated that if they are found “fit” in a reassessment, they would be entitled to notional seniority and other related benefits retroactively from the date their promotions were initially denied, though without the salary differential between the two posts.
