HIV-Positive person cannot be denied employment in Police Department solely on the ground of HIV

[Guest guest]

The

Chairman, State Level Police Recruitment Board v. X, Indian Inhabitant

An HIV-Positive person cannot be denied employment in Police

Department solely on the ground of HIV

Mr. X, a Reserve Police

Constable, had applied for the post of Sub-Inspector of Police (Civil). He

qualified both the physical and written tests and was provisionally selected as

Sub-Inspector. But he was denied employment when he tested HIV-positive. The

Police Department relied on Order 70 (3) of the A.P. Revised Police Manual which

prohibited the appointment of, otherwise eligible HIV-Positive candidates as

Sub-Inspector of Police.

Mr. X first approached

the A.P. Administrative Tribunal, which held that he was not entitled to any

relief as the Order 70(3) of the A.P. Police manual permitted the State to deny

employment to HIV-positive candidates.

Aggrieved by the

judgement of the Tribunal, Mr. X filed a Writ Petition in the A.P. High Court

challenging the constitutionality of the Order 70(3) for its blanket ban on

employing HIV-Positive candidates. Mr. X adduced cogent evidence that an

HIV-Positive person is healthy, functionally fit and productive during the

asymptomatic period, which can range from 3 to 18 years till the onset of AIDS.

Hence denial of employment Mr. X only on the ground of HIV infringes his right

to life and livelihood. The High Court, relying on MX v. ZY AIR 1997 Bom 406

held:

Ø That

a person who was fit, otherwise qualified and posed no substantial risk to others, cannot be

denied employment in a public (state) sector entity.

Ø The

impugned Order 70(3) was unconstitutional and the same was struck down.

The High Court directed

the State to appoint Mr. X as a stipendiary cadet Trainee Sub-Inspector within

a period of three months.

Challenging the judgement

of the High Court, the State filed a Special Leave Petition (SLP) in the

Supreme Court. The Supreme Court issued notice to the Solicitor General to get

the opinion of the Union of India on board. Interestingly, the opinion of the

government was divided. The Health Ministry filed an Affidavit stating that

denial of employment to Mr. X amounts to discrimination. The Home Ministry, on

the other hand, stated in its affidavit that HIV-positive people should be

barred not only from police department but also the Armed Forces. This brought

into focus the larger issue of recruitment of HIV-positive people in the Armed

Forces.

On 16th July

2008, the Supreme Court dismissed the SLP and upheld the judgement of the High

Court of A.P affirming that HIV-positive status cannot be the sole ground for

denying employment in police department. It however did not pass any judgement

on the larger issue of recruitment of HIV-positive persons in the Armed Forces

and para military forces.

Lawyers

Collective HIV/AIDS Unit

63/2,

first Floor,

Masjid

Road,

Jangpura

ND-14