HIV positive person falls under definition of "person with disability" under RPWD Act: Delhi High Court

The Delhi High Court has held that an HIV positive person falls within the definition of “person with disability” under the Rights of Persons with Disabilities Act, 2016 (RPWD Act) and is entitled to legal protection against discrimination in employment [Mr ABC v Border Security Force & Ors].

A Division Bench of Justices C Hari Shankar and Justice Om Prakash Shukla observed that an HIV positive employee would unquestionably be suffering long-term physical impairment which would hinder his full and effective participation in society. 

“Ergo, he would be a “person with disability” as defined in Section 2(s) of the RPWD Act,” the Court ruled.

Further, the Court said that if a person with HIV is unable to perform duties of the post to which he was originally appointed, then he should be provided reasonable accommodation by offering him an alternative appointment to any other equivalent post. 

“In the event that the medical condition of the petitioner  [a person found HIV positive] does not allow him to perform the duties of the post of Constable (GD) to which he was originally appointed, the respondents 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. If no such post is immediately forthcoming, he would have to be placed in an equivalent supernumerary position,” the Court said. 

The Bench rendered these findings while allowing a petition filed by an HIV-positive constable of the Border Security Force (BSF) who had been discharged from service on medical grounds. 

It was stated that the petitioner was appointed as a Constable (GD) in April 2017. A few months later, he was diagnosed as HIV-1 positive and underwent antiretroviral therapy along with treatment for abdominal tuberculosis. 

Following medical re-examination, the BSF issued a show cause notice proposing his retirement on the ground that he was permanently unfit due to an “immune compromised status”.

He was subsequently discharged from service in April 2019 and his appeal was dismissed in October 2020. 

However, the Court quashed BSF orders holding that it violated the RPWD Act and the HIV and AIDS (Prevention and Control) Act, 2017, which bars termination of employment of an HIV-positive person unless strict statutory conditions are met. 

“Thus, whether one views the case from the point of view of HIV Act or the point of view of 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 Court concluded. 

Advocates Anuj Aggarwal, Divya Aggarwal, Pradeep Kumar, Anjali Bansal, Lovekesh Chauhan, Kritika Matta, Shreya Gupta, Manas Verma, Nikhil Pawar, Shubham Bahl and Bhumica appeared for the petitioner. 

Advocates Virender Pratap Singh Charak, Shubhra Parashar and Pushpender Pratap Singh represented the BSF. 

[Read Judgment]