Delhi HC orders reinstatement of HIV-positive BSF constable

New Delhi, Dec 18 The Delhi High Court has ordered the reinstatement of a Border Security Force (BSF) constable who was discharged from service solely on the ground that he was HIV-positive.

A bench of Justices C. Hari Shankar and Om Prakash Shukla held that such termination was in clear violation of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 and the Rights of Persons with Disabilities (RPwD) Act, 2016.

The Justice Hari Shankar-led Bench was hearing a petition filed by the constable (GD), appointed in April 2017, who was discharged from service in April 2019 after a medical board found him HIV-positive and undergoing Antiretroviral Therapy (ART).

In its order, the Delhi High Court noted that the petitioner was treated for HIV and abdominal tuberculosis between July 2017 and January 2018. Following a re-examination by a medical board in November 2018, the BSF issued a show-cause notice proposing his discharge on the ground that he was permanently unfit for service. His discharge order was later upheld by the appellate authority in October 2020.

Setting aside both orders, the Justice Hari Shankar-led Bench held that there was "not even an attempt" by the BSF to comply with the mandatory requirements under Section 3 of the HIV Act.

"Section 3 of the HIV Act contains an absolute proscription against termination, from employment, of a person suffering from HIV," it observed, unless the employer furnishes "a copy of a written assessment of a qualified and independent healthcare provider" establishing significant risk or unfitness, along with a written statement stating the "nature and extent of administrative or financial hardship for not providing reasonable accommodation".

Referring to the proviso to Section 3 of the HIV Act, the Delhi HC said that in the absence of such compliance, "it would be presumed that there is no significant risk to others if the person is allowed to work in the establishment, and that there is no undue administrative or financial hardship in that regard".

"The sequitur can only be, therefore, that the termination of the petitioner, on the ground that he was unfit to hold the post in the BSF, is in the teeth of Section 3(a) of the HIV Act," it held.

The Delhi High Court also endorsed the petitioner’s reliance on the RPwD Act, observing that an HIV-positive employee would fall within the definition of a "person with disability".

"An HIV positive employee would unquestionably be suffering long-term physical impairment, which would hinder his full and effective participation in society," it said, adding that Section 20 of the RPwD Act "does not permit any government establishment to discriminate against any person with disability in any matter relating to employment".

It further said that the RPwD Act specifically prohibits dispensing with the services of an employee who acquires a disability during service and mandates reasonable accommodation, including shifting the employee to an equivalent post or placing him on a supernumerary position if required.

Ultimately, the Delhi High Court quashed the discharge order dated April 9, 2019, and the appellate order dated October 9, 2020, directing that the petitioner "shall stand reinstated in service".

"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. The writ petition stands allowed in the aforesaid terms," it said.

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