‘Denial discriminatory': HC directs CRPF to promote HIV/AIDS +ve woman staffer
A division bench of Chief Justice Sunita Agarwal and Justice DN Ray, in its August 5 order, noted that the denial or discontinuation or unfair treatment in relation to employment is 'clearly prohibited' under the HIV/AIDS (Prevention & Control) Act, 2017.
While stating that the Act has been enacted to ensure equal opportunity of employment and with the need to protect and secure the human rights of persons who are HIV/AIDS positive, the court directed the CRPF to grant promotion to the petitioner with effect from the date her juniors were promoted.
The court said, 'The petitioner shall be entitled to full benefits including continuity of service to the post of Inspector (Ministerial) from the date the juniors to the petitioners were/was promoted. The petitioner shall also be considered for promotion to the (subsequent) post of Assistant Commandant (Ministerial) by placing her in the gradation list along with her juniors and a special DPC (Department Promotional Committee) be conducted to consider the candidature of the petitioner to the said post…'
Granting time of two months, the court said, 'Upon consideration, if the petitioner is found fit on all other aspects, she shall be given promotion to the post of Assistant Commandant (Ministerial) from the date the junior(s) to her have been promoted against the vacancies of the year 2024-25… (The respondent is) required to revise pay and re-fix the pay-scale of the petitioner from the date of her entitlement to promotion on the post of Inspector (Ministerial) and further on the post of Assistant Commandant (Ministerial) and shall pay the arrears including all consequential benefits to the said posts.'
The bench considered the arguments put forth by the petitioner as well as the advocates representing the respondents and stated that the case 'presented a very sorry state of affairs at the ends of the respondent authorities including the Ministry of Home Affairs, Government of India in perpetuating discrimination by not bringing necessary amendments in the Standing Order No.04/2008 and the recruitment/appointment Rules, which prescribe blanket restriction for promotion or appointment to persons who are not kept in medical category Shape I, specifically HIV/AID +ve personnel.'
The court order stated that the court has reached 'an irresistible conclusion' that the petitioner has been discriminated in denial of promotion to the post of Inspector (Ministerial) from the date of her entitlement on the premise that she was in Shape III category in the medical report dated April 16, 2015. The petitioner had contended that she was promoted to the post of Inspector (Ministerial) only on August 23, 2019, and therefore also denied the subsequent promotion to the post of Assistant Commandant (Ministerial).
The court noted that 'no efforts seem to have been made' to bring the Standing Order and the Rules governing the services of CRPF personnel in line with the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017 so as to remove 'discrimination' against the 'protected persons' within the meaning of the Act.
Declaring the 2008 Standing Order as well as the Rule 5 of the Central Reserve Police Force, Assistant Commandant (Ministerial), Group 'A' Post, Recruitment Rules, 2011, as 'ultra vires', the court said that it was 'contrary to the National HIV Counseling and Testing Guidelines, 2024 as also discriminatory and arbitrary, being violative of Articles 14, 16 and 21 of the Constitution of India.'
The court order stated that the clauses are 'required to be suitably amended to remove any kind of discrimination, directly or indirectly, expressly or by effect which denies or withholds any benefit, opportunity or advantage from any person or category of persons being HIV/AIDS +ve person(s)… by bringing suitable amendments as early as possible. For the purpose of medical assessment of HIV/AIDS +ve person.'
'SHAPE-1' signifies that a combatised serving personnel is fully fit for all duties. The acronym SHAPE represents: S (Psychological), H (Hearing), A (Appendages), P (Physical Capacity), and E (Eyesight). A SHAPE-1 rating indicates that all these aspects are assessed as being in good condition. Functional capacity for duties in the CPF under each factor is graded in the scale from 1 to 5, indicating declining functional efficiency and increasing employability limitations.
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