Promotion criteria requiring HIV-positive personnel to meet a Shape-I medical category is discriminatory and violates the HIV/AIDS Act and constitutional rights.

MRS. SUNITA AGARWAL, CJ.

1. By means of the present petition, the petitioner, who is an employee of the Central Reserve Police Force (CRPF), is raising a serious issue of blatant discrimination being carried out and unfair treatment being accorded to HIV/AIDS +ve persons in promotion and denial of promotion to the petitioner on Ministerial promotional posts, taking aid of the clauses 4.13 to 4.17 of the Standing Order No. 4/2008 as also Rule 5 of the Central Reserve Police Force, Assistant Commandant (Ministerial), Recruitment Rules, 2011, on the ground of falling in low medical category, i.e. not being in Shape-I.

2. The petitioner demonstrated discriminatory treatment accorded to her in the matter of promotion to the post of Inspector (Ministerial) from the year 2016 and further in rejection of her candidature for promotion to the post of Assistant Commandant (Ministerial) against the vacancy of the year 2024-25, in the promotion exercise which commenced vide communication dated 09.09.2024.

3. The validity of Rule 5 of the Central Reserve Police Force, Assistant Commandant (Ministerial), Recruitment Rules, 2011 (in short as the "Recruitment Rules' 2011") and the discriminatory clauses of the Standing Order No. 4/2008, is subject matter of challenge to the extent of requirement of being in Shape-I category for HIV/AIDS +ve persons for promotion to ministerial posts. The prayer is to declare these provisions ultra vires being inconsistent with the provisions of Section 3 of the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017 (in short as the "HIV/AIDS (Prevention & Control) Act' 2017") and also Sections 3 , 4 and 20 of the Rights of Persons with Disabilities Act, 2016, inasmuch as, the CRPF Rules and the Standing Order deny fair opportunity of being considered for promotion to the HIV/AIDS +ve incumbents in service and, thus, cause unfair treatment at the workplace.

4. The further prayer made in the Writ petition is to declare Rule 5 of the Recruitment Rules' 2011 and clauses 4.1 to 4.17 of the Standing Order No.4/2008 being contrary to the National HIV Counseling and Testing Guidelines, 2024 as also discriminatory and arbitrary being violative of Articles 14, 16 and 21 of the Constitution of India. A prayer is made to quash and set aside the decision of the Medical Board dated 03.02.2024, coming in the way of the petitioner seeking promotion to the post of Assistant Commandant (Ministerial) under the Recruitment Rules' 2011.

5. The, facts in brief, relevant to decide the controversy at hands are that the petitioner came to be appointed on the post of Assistant Sub Inspector (Ministerial) on 05.06.1991. In the year 2013-2016, she was diagnosed with HIV/AIDS +ve when she was in P1 Shape category condition having more than 200 CD4 blood cell counts. It is stated in the Writ petition that in the year 2013, the petitioner was subjected to Annual Medical Examination and was given a certificate of being in Shape II category. Thereafter, again the petitioner was recommended for review medical examination and even though she was having more than 200 blood counts in CD4 category, she was given P3 (Shape III) certificate in the year 2015. In the year 2016, the petitioner became eligible and entitled for being c