Lucknow: In a significant development, the Lucknow Bench of Allahabad High Court has said that denial of promotion to a person on the basis of being HIV positive is discrimination in public employment and violation of fundamental rights enshrined under the Constitution. A bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla made the observation while hearing a plea by a CRPF constable challenging the order of the single bench, in which his petition seeking promotion was rejected.
"In any case, 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," the bench observed.
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With this observation, the Court set aside all the orders which were against the promotion of the appellant. In his plea, the appellant said that he was recruited in the Central Reserve Police Force on Aug. 28, 1993 as a constable. In the year 2008, he was found to be HIV positive. Although he was also given a place in the promotion list of the year 2013, but in the second medical examination held in the same year, his name was removed from the promotion list due to his being kept in the medical category, he said.
The court, after hearing all aspects of the case, said that no one in India can be discriminated against on the basis of being HIV positive. The court said that the standing order of CRPF also talks about giving equal rights to HIV positive personnel. The court further said that HIV or AIDS patients have the right to equality everywhere and cannot be discriminated against because of their HIV or AIDS.
The Court said that in the present case, the appellant with the medical condition of 2013 is working as a constable and has also been found fit for duty, so there is no reason why the appellant cannot be promoted.
