Promotion Can't Be Denied Because Employee Has HIV or AIDS: Allahabad High Court

The Allahabad High Court recently allowed an appeal filed by a Central Reserve Police Force (CRPF) constable against reversal of approval for promotion to the post of head constable for being HIV positive.

The bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla noted in a judgment passed earlier this month: “No one can be discriminated on the basis of his HIV/AIDS status in India…HIV/AIDS patients have a right of equal treatment everywhere and they cannot be denied job opportunity or discriminated in employment matters on the ground of their HIV/AIDS status.”

The Court referred to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act of 1995) which provides that no promotion shall be denied to a person merely on the ground of his disability.

The Court noted that the appellant in the present case was detected as HIV positive in 2008 and he was promoted in 2013 but the same was reversed in 2014, however, he continues to work as a constable with CRPF till date.

“Since the appellant has been found fit for duties, this Court also finds no reasons as to why his promotion could not have been granted,” the Court held.

On the issue at hand, the division bench further clarified that as a person, who is otherwise fit, could not be denied employment only on the grounds that he or she is HIV positive, so this principle also extends to the grant of promotion.

“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,” asserted the bench.

The appeal was filed against the judgment and order dated May 25, 2023, passed by a single judge bench. The appellant was aggrieved by an order dated May 17, 2021, issued by the Inspector General of Police, Central Sector, CRPF, Lucknow, whereby his name for promotion to the post of Head Constable made on February 26, 2013, had been removed from the approved list on the grounds of him being HIV positive.

The Court set aside the single judge bench order and declared that the appellant would be entitled to full benefits of promotions as is extended to those who do not suffer from HIV positive.