New Delhi, Dec 18 (NationPress) The Delhi High Court has ruled for the reinstatement of a Border Security Force (BSF) constable who was discharged from his position solely because he was HIV-positive.

A bench comprising Justices C. Hari Shankar and Om Prakash Shukla determined that such termination clearly violated the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, as well as the Rights of Persons with Disabilities (RPwD) Act, 2016.

The petitioner, a constable (GD) who joined in April 2017, was dismissed in April 2019 after a medical board identified him as HIV-positive and undergoing Antiretroviral Therapy (ART).

In its ruling, the court highlighted that the petitioner received treatment for HIV and abdominal tuberculosis from July 2017 to January 2018. A subsequent medical board evaluation in November 2018 led the BSF to issue a show-cause notice suggesting his discharge due to being permanently unfit for service. This discharge was later confirmed by the appellate authority in October 2020.

Overturning these decisions, the court emphasized that the BSF failed to adhere to the necessary requirements outlined in Section 3 of the HIV Act.

“Section 3 of the HIV Act strictly prohibits the termination of an employee suffering from HIV,” the court stated, unless the employer provides “a written assessment from a qualified healthcare provider” showing significant risk or unfitness, along with a justification for not providing reasonable accommodations.

The Delhi HC noted that without such compliance, “it is presumed that no significant risk exists if the individual is allowed to work, and that no undue administrative or financial burden arises.”

Thus, it concluded that the discharge of the petitioner on the claim of unfitness was contrary to Section 3(a) of the HIV Act.

The court also acknowledged the petitioner's argument based on the RPwD Act, stating that an HIV-positive individual qualifies as a “person with disability.”

“An HIV-positive employee undoubtedly faces long-term physical challenges, impeding their full participation in society,” the court remarked, adding that Section 20 of the RPwD Act prohibits discrimination against any employee with a disability in matters of employment.

Moreover, the RPwD Act explicitly disallows terminating an employee who acquires a disability during service and requires reasonable accommodations, such as transferring the employee to a comparable position or assigning them to a supernumerary role when necessary.

Ultimately, the Delhi High Court annulled both the discharge order dated April 9, 2019, and the appellate order dated October 9, 2020, mandating that the petitioner “be reinstated in service.”

“The petitioner shall receive continuity of service and all associated benefits, including pay fixation, but will not receive back wages. The writ petition has been granted under these conditions,” it concluded.