New Delhi: The Delhi High Court Tuesday ruled that HIV-positive persons fall under the category of persons with disabilities (PwDs), marking what could potentially be the first direct judicial equation of the two classifications.
The ruling came in the case of a Border Security Force (BSF) constable who was discharged from service in 2019 on grounds of being physically unfit after testing positive for HIV.
Directing his reinstatement, a two-judge bench of Justices C. Hari Shankar and Om Prakash Shukla held that an HIV-positive employee suffering from long-term physical impairment that hinders full societal participation falls under the definition of “person with disability” under Section 2(s) of the Rights of Persons with Disabilities (RPWD) Act.
Drawing parallels between the RPWD Act, and the HIV and AIDS Prevention and Control Act, 2017, both of which prohibit discrimination, the court noted, “The RPWD Act, in a vein similar to the HIV Act, does not permit any government establishment to discriminate against any person with disability in any matter relating to employment. Section 20(2) requires reasonable accommodation to be provided by the government to employees who suffer from disability.”
The court pointed out that Section 20(4) of the 2016 RPWD Act specifically restricts dispensing with the services of an employee who acquires a disability during service.
Although this could be the first case where the court has directly equated HIV-positive persons with PwDs, similar orders have been passed in the past. In March this year, a two-judge bench of the Delhi high court ruled that removing a BSF constable from service on grounds of contracting HIV would amount to discrimination under Section 3 of the HIV Act.
“To terminate the service of such a personnel only on the ground of him being detected as HIV positive, would result in discrimination, which is prohibited under Section 3 of the HIV Act,” the court had said while setting aside the BSF constable’s removal order.
The court also noted then that despite being HIV-positive, personnel can be deemed “fit” for duty performance, though there may be restrictions on posting locations or the nature of work they can perform.
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The latest order
In its 16 December order, the bench held that whether viewed from the perspective of the HIV Act or the RPWD Act, the petitioner could not have been treated as unfit to discharge BSF duties solely on grounds of being HIV-positive.
Setting aside the discharge order, the court relied on Section 3 of the HIV and AIDS Prevention and Control Act, 2017, which contains an absolute bar on terminating employment of HIV-positive persons.
“The petitioner would be entitled to continuity of service and all other benefits including fixation of pay, but would not be entitled to back wages,” it ruled.
The bench also noted a critical procedural lapse by BSF.
Although Section 3(a) of the 2017 Act specifies that an HIV-positive person can be terminated if an independent qualified healthcare provider assesses that the individual is unfit to perform duties and poses a significant transmission risk to others in the workplace. But BSF made no such attempt.
“There is, in the present case, not even an attempt to comply with Section 3(a) of the HIV Act,” the court observed, adding that without a written assessment by the healthcare provider, it must be presumed there is no significant risk to others and the constable is fit to perform duties.
In July 2017, the petitioner discovered he had contracted HIV and began undergoing antiretroviral therapy (ART) while also suffering from abdominal tuberculosis. After treatment, he was discharged from hospital in January 2018.
In November 2018, he was issued a show-cause notice, asking why he should not be retired from service.
Despite responding to the show-cause notice, the constable was issued a discharge order by BSF in April 2019 on the grounds that he was physically unfit. His appeal was dismissed by an appellate authority in October 2020, prompting him to approach the court, challenging both the 2019 discharge order and the 2020 appeal dismissal.
Court’s final direction
The court held that terminating the BSF personnel violated Section 3(a) of the HIV Act. It emphasised that an HIV-positive employee would unquestionably suffer from long-term physical impairment hindering full and effective societal participation.
The court also made clear that if the personnel’s medical condition does not allow him to perform constable duties—his original post—the BSF must extend reasonable accommodation by offering him “alternate employment in any other equivalent post to which he is suitable”. If no such post exists, he must be placed in an equivalent supernumerary or extra position.