BSF Constable claims he was discharged from service after contracting HIV: Delhi High Court issues notice to Centre

The Delhi High Court on Wednesday issued notice to the Border Security Force (BSF) and Central government on a petition filed by a former BSF constable alleging that he was discharged from service after he was found HIV positive (Mr ABC v BSF and Ors)..The bench of Chief Justice DN Patel and Justice Jyoti Singh issued the notice and listed the case for further hearing on January 12..According to the petition filed through advocate Anuj Aggarwal, the man whose name has been withheld had joined the force in April 2017. After three months of training he was transferred to Bhondsi in Gurgaon. In the same month, he was sent for a medical examination where he was found to have contracted HIV and abdominal kochs (a form of TB). His treatment began at the BSF Hospital New Delhi and after completion of the six month course, he was discharged from the hospital on 31 January, 2018.However in December 2018, he was issued a show cause notice in the opinion of the medical board. He replied to the notice arguing that his entire livelihood is dependent on the job and that he had no other source of income. However, he was discharged from the service in April 2019 on the grounds of being physically unfit. Though he preferred a department appeal against the order, the same was also dismissed..The petitioner has now argued before the High Court that the BSF’s order is in violation of Section 3(a) of the Human Immunodeficiency Virus And Acquired Immune Deficiency Syndrome (Prevention And Control) Act, 2017.“It is submitted that the petitioner was never provided a copy of the assessment of an independent health provider wherein it was declared that the petitioner was at significant request of transmuting disease or unfit to perform the duty. It is further submitted that the petitioner was not even provided an alternative reasonable accommodation/job in case of him being medically unfit to perform his duty, as required under Section 3 of this HIV Act, 2017,” the petition said..It added that though the petitioner is HIV positive but he is asymptomatic and fit to perform all duties of a constable.The petition also challenged Rule 18 of the Border Security Force Rules 1969 as ultra vires, unconstitutional and violative of Article 14, 16, 21 and 311 of the Constitution of India as well as procedures prescribed in Section 3 of the HIV Act 2017.“The petitioner is completely unemployed since the date of his illegal termination from service and, despite his best efforts, has not been able to procure any employment whatsoever. It is, therefore, submitted that the petitioner is entitled to be reinstated in service with continuity of service and with full back wages,” the petitioner contended.