Delhi High Court Orders Reinstatement of HIV-Positive BSF Constable

The Delhi High Court has mandated the reinstatement of a Border Security Force (BSF) constable who was discharged from service in April 2019 due to his HIV-positive status. This decision arose from a plea submitted by the constable, who sought to overturn the discharge order issued by the BSF, which claimed he was physically unfit for duty.

In a ruling delivered on December 16, 2023, a bench comprising Justices C Hari Shankar and Om Prakash Shukla emphasized the need for reasonable accommodation for the constable. The court stated that if his medical condition hindered him from fulfilling the duties of a Constable (General Duty), the BSF should consider offering him an alternative position instead of outright dismissal.

The court noted that the constable could have been assigned to an “equivalent supernumerary position,” which is a temporary post created to accommodate employees unable to take on their original roles. The judges pointed out that, aside from his HIV status, there were no valid reasons for his discharge, such as complaints regarding his job performance or suitability for the role.

According to the ruling, the Rights of Persons with Disabilities (RPWD) Act, 2016 prohibits discrimination against individuals with disabilities in employment matters. The court remarked, “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 constable was diagnosed with HIV on July 6, 2017, and after receiving treatment, he was discharged from the hospital in November 2018. Despite his recovery, he was declared unfit to serve following a reexamination later that month. The discharge from the BSF occurred on April 9, 2019, and an appeal against this decision was subsequently rejected by the BSF’s appellate authority on October 9, 2020.

This ruling represents a significant step in the ongoing conversation about the rights of individuals living with HIV and the responsibilities of employers in accommodating their needs. The court’s decision underscores the importance of equitable treatment within the workplace, aligning with global standards for human rights and disability advocacy.

The reinstatement of the constable not only brings relief to him personally but also reaffirms the commitment of the judiciary to uphold the rights of individuals facing discrimination based on health conditions. This case serves as a reminder of the imperative to foster inclusive environments that allow all individuals to contribute meaningfully to society.