The Lucknow bench of Allahabad High Court has held that a person suffering from HIV, who is otherwise fit, cannot be denied employment or promotion.
The bench comprising Justice D K Upadhyaya and Justice Om Prakash Shukla passed the order on a plea by a CRPF constable challenging a single-judge bench's May 24 order, which rejected his appeal against the order issued by the CRPF that denied him promotion on the ground that he was tested HIV positive.
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, observed the two-judge bench in its order passed on July 6.
Setting aside the single-judge bench order which had expressed favour with the CRPF that the appellant was not entitled to the promotion after having been tested HIV positive, the two-judge bench also directed the central government as well as the Central Reserve Police Force (CRPF) to consider the constable's promotion on the post of head constable from the date of his juniors were promoted.
The bench also directed that all consequential benefits should be extended to him like a head constable who is not HIV positive in the CRPF.
While passing the order, the bench considered the persuasive effect of a judgment rendered by the Punjab and Haryana High Court, which had passed a similar order in favour of an ITBP jawan suffering from HIV in 2010.
In his appeal, the CRPF constable had stated that he was appointed as constable in 1993 and was initially posted in Kashmir. Later, in 2008 he was diagnosed with HIV positive.
The appellant said he was fit to perform his duty and was promoted in 2013 but suddenly he was reversed from the promotion in 2014 and even today after close to nine years, he continued to be employed as constable in CRPF and is in the same medical condition.
Considering the facts of the case, the bench observed, 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.
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