Mr. X v. Chairman, State Level Police Recruitment Board and Ors

2006 (2) ALD 513; 2006 (2) ALT 82
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Mr. X, the Petitioner,  was an armed reserve police constable and had applied for the post of stipendiary cadet trainee sub-inspector of police (civil). He passed the physical test and the written exam, on the basis of which he was provisionally selected for the post. During the medical examination, however, he tested positive for HIV. According to the Petitioner, he was not sent for training because he was HIV positive, even though he continued serving in the armed reserve police force. Respondents relied on Order 70(3) of the Andhra Pradesh Revised Police Manual to contend that persons who were HIV positive were ineligible for recruitment.

Petitioner filed the petition before the Andhra Pradesh High Court under Article 226 of the Constitution of India (original writ jurisdiction of High Courts). The petition was filed against the order of the Andhra Pradesh Administrative Tribunal, which held that Order 70(3) prohibiting employment of people living with HIV was legal and valid. The issue before the Court was whether Order 70(3) of the Revised Andhra Pradesh Police Manual Part I, Volume I, was in violation of Articles 14, 16 and 21 of the Constitution of India.

Regarding the maintainability of the writ petition, the Court acknowledged that the issue of unconstitutionality of Order 70(3) was being raised for the first time. The Court, however, held that the petition was primarily filed against the order of the administrative tribunal. It further held that the issue at hand was of great public interest. Such a matter, the Court held required expeditious adjudication since it dealt with the constitutional issue of whether persons living with HIV can, as a class, be denied public employment. Moreover, the Court held that under Article 226 of the Constitution, they were empowered to adjudicate on the vires of an administrative order or rule.

On the issue of fitness of people living with HIV (PLHIV), the Court held that only because a person has tested positive for HIV, does not mean that the person is terminally ill or will be soon. Undertaking a lengthy analysis of the medical information on HIV and its progression, the Court held that there is no certainty as to when a PLHIV will develop AIDS. Upholding the Petitioner’s argument, the Court held that a person living with HIV may live a healthy life for up to 18 years, which could be further extended through effective antiretroviral therapy.

As to the prejudice faced by PLHIV, the Court held that they formed one of the most vulnerable groups in society. It also held that the systemic discrimination against PLHIV was preventing them from seeking medical help. The Court also held that they were discriminated against in matters of employment even though their capability to perform their duty was not diminished. It further held that “any discrimination against them can be interpreted as a fresh instance of stigmatization and an assault on their dignity.”

Regarding the issue of denial of employment to the Petitioner, the Court held that the issue involved discrimination in matters of public employment (Article 16(1)) and therefore had to satisfy the rigours of Article 14 (right to equality). It held that Article 14 did not prohibit classification as long as the classification was (a) not arbitrary and had a reasonable basis and (b) had a rational nexus with the object sought to be achieved. Equality in Article 16, therefore, was to be between members of the same class and not between members of separate classes.

On the issue of valid classification, the Court held it could be said that people living with HIV “constitute a class distinct from others who are not so infected and to satisfy the first of the twin conditions for a valid classification.” The Court, placing reliance on MX of Bombay Indian Inhabitant v. ZY, (AIR 1997 Bom 406), however, went on to hold that grouping all PLHIV together did not take into consideration medical evidence that not all PLHIV are at the same level of physical and mental fitness. The Court, therefore, held that PLHIV did not form a homogenous class, based on mental and physical fitness, since that depended on the stage of disease. It, therefore, held that such a classification did not have any rational nexus with the object sought to be achieved, which was the recruitment of mentally and physically fit people in the police. The Court held that Articles 14 and 16 applied to administrative instructions and justification on grounds of executive policy could not be taken up when the policy was discriminatory and arbitrary.

As to what constitutes physical and mental fitness, the Court placed reliance on Anand Bihari And Ors v. Rajasthan State Road Transport, (1991 AIR 1003) wherein the Supreme Court had held that “ill health has to be construed relatively and in its context.”  The Court in that case held that if the health of a person does not affect the normal discharge of his duty, then grounds of ill health cannot be used for disqualification. Applying the same criterion, the Court held that denying the Petitioner employment only because he was HIV+ was arbitrary, unreasonable and in violation of Article 21 of the Constitution (right to life). The Court further held that strict medical evidence should be the sole criterion for judging the fitness of current and prospective employees.

The Court struck down Order 70(3) as being in violation of the Constitution. It also directed that within three months of the judgment, the Respondents should verify whether the Petitioner in his present state of health qualified for the job and to appoint him if he was fit.

“Grouping all persons with HIV positive together for denying employment on the erroneous presumption that they all lack the high standards of physical and mental fitness prescribed for appointment to posts in the police force does not satisfy the second of the twin conditions, for a valid classification, that the differentia must have a rational nexus to the object sought to be achieved. Since a valid classification would require segregation of a group of persons with common properties and characteristics, postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily, treating all HIV positive persons as one single homogenous class, irrespective of the stage of the disease, for being denied appointment in the police force is in violation of Articles 14 and 16 of the Constitution of India.” Para. 34.

“[T]he impugned rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and irrespective of the fact that he does not pose any threat to others at the workplace is clearly arbitrary and unreasonable and infringes the whole some requirement of Article 14 as well as Article 21 of the Constitution of India…Taking into consideration the widespread and present threat of this disease in the world in general and this country in particular, the State cannot be permitted to condemn the victims of HIV infection, many of whom may be truly unfortunate, to certain economic death. It is not in the general public interest and is impermissible under the Constitution. The interests of the HIV positive persons, the interests of the employer and the interests of the society will have to be balanced in such a case. If it means putting certain economic burden on the State or the public Corporations or the society, they must bear the same in the larger public interest.” Para. 36.

“It is not the case of the Respondents that it tests those already employed in the police establishment for HIV/AIDS. They may continue to work despite the infection, and regardless of the stage of the infection. Yet they may pose the same health, safety and operational hazards as prospective police officers. Apart from this, the practice also pays no attention to the window period. If a person happens to undergo a blood test during the window period, he would test negative and can thus secure employment. But if the same person undergoes the test outside of this period, he or she will test positive and not be employed.” Para. 44.

“The constitutional right of the Petitioner not to be unfairly discriminated against cannot be determined by ill-informed public perception regarding persons with HIV. It is only those whose CD4+ count has dropped below a certain level who may become unsuitable for employment. Having regard to all these considerations, denial of employment to the Petitioner, who had fulfilled the prescribed physical and other standards, only because he was tested HIV positive impaired his dignity and constituted unfair discrimination.” Para. 46.

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