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

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

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:

Lawyers Collective HIV/AIDS Unit

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.    



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