‘HIV+ paramilitary personnel cannot be denied promotion’

The petitioner,would also be entitled to seniority and all consequential benefits illegally denied,and be considered for further promotion if any.

The official will be allowed to avail of all consequential benefits,including seniority,emoluments and promotional posts,the order reads.

The petitioner had contended that he was denied promotion on the grounds that he had tested HIV positive. He was initially recruited as a constable (general duty) in 1987 and was allocated the 2nd Battalion in Dehradun. He was then promoted as Lance Naik in 1992 and his next promotion was supposed to be that of Naik.

He submitted that he was empanelled for promotion,vide the order of the Director General and that all those empanelled,except him,were granted promotion on December 12,1995. But his name did not figure in the list. The petitioner also stated that even his junior was among those promoted.

Prior to the empanelment,the petitioner was examined by one Dr M K Rao in July 1994 and the doctor had declared the petitioner unfit for further service in ITBP on the ground that he was found HIV positive. It was on the basis of the report of the doctor,the petitioner submitted,that he was not considered for promotion.

The court also referred to the Union government’s instructions that clearly provides for continuance of HIV positive personnel in service in the paramilitary force,except those falling in the unfit category.

The court also pointed out that it was clear from the reply of the then Minister of State for Defence in the Rajya Sabha,that HIV positive status by itself was not sufficient to deny service or even promotion to a member of the paramilitary service.

On the contrary,the court pointed out,the service and promotions are protected in such cases where the ailment is symptomatic.

The petitioner,who tested HIV positive in 1995,is still in service.