People living with HIV can’t be denied promotion or appointment in central armed forces: Delhi HC

In two of the petitions, a constable with the Border Security Force (BSF) and another with the Central Reserve Police Force (CRPF) challenged the declaration that they were “unfit for promotion”.

The BSF constable was first declared unfit for promotion to the post of Assistant Sub-Inspector (ASI) in 2022, and the same was reiterated in 2023 on the grounds that he could not perform duties at difficult and solitary locations where facilities for anti-retroviral therapy (ART) are not available.

Similarly, the CRPF constable was denied promotion to the post of head constable owing to his medical ‘P2’ category condition after being on ART since 2017. Under ‘P2’ category, personnel are found to be “fit” for all duties anywhere except remote and solitary locations, and preferably where ART facilities are available.

The third petition was by a BSF constable who was appointed provisionally in 2022. He was first told to be “unfit” for basic training after his HIV diagnosis, and later in January 2023, he was declared “unfit” for retention. The BSF’s decision came “in view of the requirement of antiretroviral medications on a lifelong basis.”

For the two petitioners who were challenging the denial of promotion, the bench held that the same were “wrongly denied” and directed that their cases be reconsidered by a review Departmental Promotion Committee within eight weeks. In case they are found fit for promotion, orders to that effect shall follow, and they shall also be entitled to notional seniority and other consequential benefits from the date that they were denied promotion, except for the differential in salary for the two posts, the bench added.

For the BSF constable who was provisionally appointed, the court held that keeping in view how discrimination is defined under the HIV Act, the medical standards of the armed forces should equally apply to a person who has been given an Offer of Appointment, and even if detected as HIV-positive during their probation period.

“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 bench records.

In this case, the court directed that his medical condition shall be re-assessed by the BSF and, keeping in view the medical guidelines applicable to HIV-positive personnel, a fresh determination shall be made regarding his retention or removal from service.