Denial of promotion based on HIV status violates the HIV Act and constitutional rights, necessitating reconsideration of promotion eligibility for affected personnel.

JUDGMENT :

1. These petitions have been filed by the respective petitioners, challenging the Impugned Orders by which the petitioners, as far as the W.P.(C) 4736/2023 and W.P.(C) 13547/2023 are concerned, have been denied promotion, while in W.P.(C) 4556/2023, the petitioner‟s appointment has not been confirmed and has been cancelled.

2. Since all the three petitions are based on common submissions by the learned counsels for the parties, and raise similar questions of law, they are being disposed of by way of this common judgment.

3. In W.P.(C) 4556/2023, however, certain additional issues also arise, which shall be dealt with separately in this judgment.

W.P.(C) 4736/2023

4. As far as W.P.(C) 4736/2023 is concerned, the brief background of facts in which the present petition arises is that the petitioner was enrolled in the Border Security Force ("BSF") as a Constable (RO) on 28.08.1989. He underwent Basic Training at STC BSF Jodhpur (Rajasthan) with effect from 03.10.1989 to 23.12.1989, however, he failed to clear the ORL Grade-III Course and was subsequently remustered/appointed in the Communication Setup with effect from 19.10.1990. After passing the ORL Grade-III Course (Serial No.03) with a "C" grading from STS BSF Bangalore, he was remustered as NK (RO) with effect from 16.08.1991. The rank of NK (RO) was later merged with the rank of HC (RO) with effect from 10.10.1997. The petitioner also qualified the following essential career courses while being in the SHAPE-I Medical Category: -

5. The petitioner was also granted the following financial upgradations in the higher pay grade admissible to him under the ACP and the MACP Schemes: -

(i) 1st Financial up gradation under ACP Scheme w.e.f. 27.03.2005 in the pay scale of Rs.4000-100-6000/- i.e. pay of ASI (RO).

(ii) 2nd Financial up gradation under MACP Scheme w.e.f. 16.08.2011 in the pay scale of Rs.9300-34800/- plus Grade pay Rs.4200/- i.e. pay of SI(RO).

(iii) 3rd Financial up gradation under MACP Scheme w.e.f. 16.08.2021 in the Pay Matrix Level -7 i.e. Pay Level of INSPR (RO).

6. The petitioner, while being posted at the SHQ BSF Cooch Behar, was referred to SSKM Hospital, Kolkata, where he was diagnosed with “Mediastinal Tuberculosis with Acquired Immunodeficiency Syndrome ("AIDS") and oral candidiasis” and was advised to continue Antiretroviral Therapy ("ART") and regular follow-ups. On 05.02.2007 and 06.02.2007, the petitioner‟s sputum sample for the Acid Fast Bacillus ("AFB") test was found to be negative for three consecutive samples. He remained under regular review at the ART Centre at his respective place of posting and had no complaints of fever, diarrhoea, oral candidiasis or loss of weight. However, on 01.04.2016, during a routine investigation by the Medical Board, the Fasting Blood Sugar ("FBS") of the petitioner was found to be 136 mg/dI, and he was diagnosed with Diabetes Mellitus ("DM") Type-II. The HbA1C test was conducted on 05.08.2021, and recorded a result of 5.5%, with no symptoms of diminished vision or other organ damage.

7. The petitioner was initially placed by the Chief Medical Officer, Ftr HQ BSF Hospital, Kadamtala under a Temporary Low Medical Category of S1H1A1P3(T-48) E1, with effect from 21.12.2005, as a case of suffering from “Human Immunodeficiency Virus Infection” (in short, "HIV"). During the Review Medical Board, the petitioner was placed under a Permanent Low Medical category of S1H1A1P3(P)E1 with effect from 26.04.2007 for a period of 96 weeks. The petitioner was again categorized as S1H1A1P3(P) E1 with effect from 25.03.2010 for another 96 weeks as a case of “Retroviral Disease”. In the next Review Medical Board, the petitioner was placed under a temporary Low Medical category of S1H1A1P2(T-48)E1 for a period of 48 weeks. He was later placed under permanent Low Medical Category of SIH1A1P2E