The appellant, although had completed 13 years of service and also had undergone the SCC successfully, however, he was not promoted to Head Constable in the year 2006, 

During this period the appellant was diagnosed with HIV positive and put on Anti-Retroviral therapy (ART) and subsequently on 21.01.2009 was given medical categorization as SHAPE-2. 

As the appellant was advised to remain under observation beyond the permissible period of 24 weeks i.e. 6 months, he was placed in permanent low medical classification and his name was removed from the approved list and as per the rules, it could only be reconsidered for the approved list after expiry of one year from the date of removal of low medical category under sub-clause 6 of clause 11.2 of the CRPF Manual, 1976.

According to the appellant, there was no impediment in granting him promotion to the post of Head Constable as he had been till date performing all his duties attached to his post without any kind of assistance.

It is the case of the appellant that he had been sending several representation to the competent authority to consider his case favorably, as he was promoted to Head Constable when he was placed in medical category of SHAPE-1 earlier. 

Shri Sameer Kalia and Shri Srideep Chatterjee, counsels for the appellant submitted that the denial of promotion to the appellant on the solitary ground of being HIV positive is arbitrary and discriminatory as two similarly situated persons, who were recruited and junior to the appellant are working on the post of Assistant Sub-Inspector, whereas the appellant is working on the post of Constable for no fault on his part.

Shri Surya Bhan Pandey, counsel for the respondent submitted that the essential eligibility condition for promotion from the post of Constable (General Duty) to Head Constable (General Duty) in CRPF is that the individual should be in the medical category of SHAPEI. According to him, the appellant falls in the medical category of SHAPE-2 and as such the appellant lacks requisite eligibility of promotion to the post of Head Constable (General Duty).

Furthermore, as the appellant was placed in the temporary low medical classification (LMC), he was to undergo Review Medical Examination after 24 weeks as per Para-9 of Standing Order No. 4/2008. Thus, the said review examination was conducted wherein the appellant was again granted the medical category of ‘SHAPE-2’ falling in the category ‘P2’ under the factor of physical capacity. 

As the appellant was advised to remain under observation beyond the permissible period of 24 weeks i.e. 6 months, he was placed in permanent low medical classification and his name was removed from the approved list and as per the rules, it could only be reconsidered for the approved list after expiry of one year from the date of removal of low medical category under sub-clause 6 of clause 11.2 of the CRPF Manual, 1976.

According to the appellant, there was no impediment in granting him promotion to the post of Head Constable as he had been till date performing all his duties attached to his post without any kind of assistance.

It is the case of the appellant that he had been sending several representation to the competent authority to consider his case favorably, as he was promoted to Head Constable when he was placed in medical category of SHAPE-1 earlier. 

He had also represented before the authorities that about 81 incumbents junior to the appellant had already been promoted from Constable to Head Constable on 13.10.2000 and it was not fair that he continued to be working as Constable for the reason that being HIV positive, could not be the solitary reason for his discrimination.

Shri Sameer Kalia and Shri Srideep Chatterjee, counsels for the appellant submitted that the denial of promotion to the appellant on the solitary ground of being HIV positive is arbitrary and discriminatory as two similarly situated persons, who were recruited and junior to the appellant are working on the post of Assistant Sub-Inspector, whereas the appellant is working on the post of Constable for no fault on his part.

Shri Surya Bhan Pandey, counsel for the respondent submitted that the essential eligibility condition for promotion from the post of Constable (General Duty) to Head Constable (General Duty) in CRPF is that the individual should be in the medical category of SHAPEI. According to him, the appellant falls in the medical category of SHAPE-2 and as such the appellant lacks requisite eligibility of promotion to the post of Head Constable (General Duty).

The bench observed that CRPF was sensitive and alive to the fact that HIV-positive recruits could not be treated differently from their other recruits, who did not suffer from this disability as far as promotion and other conditions of the service were concerned. Clause 22.5 (g) of the Standing Order No. 04/2008 deals with the case of HIV/AIDS cases, which invariably says that the “P2” category of HIV Positive recruit would be fit for all duties anywhere except at difficult and solitary locations, preferably where ART facilities are available. 

High Court stated that Clause 4.13 of the Standing order No. 04/2008 merely prioritizes by saying that medical category SHAPE-1 would be essential condition for promotion of all combatised personnel. The word “Combatised Personnel” is of great significance as the word loosely means personnel who are involved in actual fighting duty, which generally involves handling and using weapons of various types and actual engagement with people causing unrest or disturbing public peace and tranquility. Whereas holders of non-combat posts are those that facilitate the work of the combatants, which include services like supply, administration, transport, general logistics, intelligence gathering etc. The said Clause 4.13 primarily relates to ‘combatised’ personnel and it cannot be construed to be applicable to all across the board, keeping in view of Clause 22.5 (g) of the Standing Order No. 04/2008.

The bench opined that protection against discrimination is a fundamental right guaranteed to Citizen of India. No one can be discriminated on the basis of his HIV/AIDS status in India. Even the CRPF Standing Orders issued from time to time reverberate their belief to provide equal status and opportunity to these affected personnel. HIV/AIDS patients have a right of equal treatment everywhere and they cannot be denied job opportunities or discriminated in employment matters on the ground of their HIV/AIDS status. 

High Court stated that since a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive and this principle also extends to 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. 

In view of the above, the bench allowed the appeal and set aside the impugned order. 

Case Title: xxxx v. Union Of India

Bench: Justices Devendra Kumar Upadhyaya and Om Prakash Shukla

Case No.: SPECIAL APPEAL DEFECTIVE No. – 430 of 2023

Counsel for the appellant: Shri Sameer Kalia and Shri Srideep Chatterjee

Counsel for the respondent: Shri Surya Bhan Pandey