Delhi HC directs reinstatement of BSF constable discharged for being HIV positive

The Delhi High Court has ordered the reinstatement of a BSF constable who was discharged from service on the grounds of being HIV positive in July 2017.

A bench of justices C Hari Shankar and Om Prakash Shukla was hearing the BSF personnel’s plea for reinstatement in service by setting aside the discharge order of April 9, 2019, and the order by which the appeal against it was also quashed.

In an order dated December 16, the court said, “If the medical condition of the petitioner does not allow him to perform the duties of the post of Constable (General Duty) to which he was originally appointed, the respondents (BSF and others) would have to extend reasonable accommodation to the petitioner by offering him an alternate appointment in any other equivalent post to which he is suitable.”

The court said that the constable could have been posted in an “equivalent supernumerary position” rather than being relieved from his services.

A supernumerary post is an extra position created temporarily to accommodate an employee who cannot be given a regular posting.

It said that, except for the fact that he was suffering from HIV, there were no grounds for his discharge, such as being unsuitable for the job or there being any complaint regarding the manner in which he was discharging his functions.

The court underlined that the Rights of Persons with Disabilities (RPWD) Act, 2016, did not allow any Government establishment to discriminate against any person with disability in any matter relating to employment.

“Whether one views the case from the point of view of the HIV Act or the point of view of the RPWD Act, the petitioner could not have been treated as unfit to discharge his duties in the BSF solely on the ground that he was HIV positive,” the judge said.

On July 6, 2017, the constable was found to be HIV positive, but after undergoing treatment, was discharged from the hospital in November 2018.

He was reexamined the same month and declared unfit to serve.  On April 9, 2019, the next year, he was discharged from service on the grounds of being physically unfit. An appeal against the order was also dismissed by the BSF’s appellate authority on October 9, 2020.