X v. State Bank of India

Writ Petition No. 1856 of 2002
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X, the Petitioner, was a sweeper with the State Bank of India, the Respondent, for nine years on a contractual basis.  The Respondent considered the Petitioner for another job and required him to undergo some medical tests. The Petitioner was deemed fit for the job by the concerned doctor. His ELISA test, however, showed that he was “HIV asymptomatic.” The Petitioner was told orally by his superior that his application was rejected on medical grounds and that he should come back only if further tests reveal that his HIV negative. The Petitioner tested positive for HIV 1 and 2 antibodies. The Petitioner was not told that a medical fitness certificate was a pre-requisite for his recruitment.

The Petitioner, therefore, filed the petition before the Bombay High Court under Article 226 of the Constitution (original writ jurisdictions of High Courts). The Petitioner claimed that any rule disqualifying a person from a job based solely on that person’s HIV status was held to be unconstitutional in the case of MX of Bombay Indian Inhabitant v. M/s. ZY and another, (AIR 1997 Bom 406). The Respondent claimed that the Petitioner had not submitted the mandatory medical fitness certificate and therefore could not be recruited. The issue to be decided was whether the Respondent could disqualify the Petitioner from a job based solely on his HIV status.

Regarding rules disqualifying a person from employment based solely on their HIV status, the Court held that people living with HIV were entitled to continue working for as long as was possible. It held that such rules were irrational and unfair. The Court placing reliance on Court on MX of Bombay Indian Inhabitant v. M/s. ZY and another, (AIR 1997 Bom 406) held that the Petitioner could not be denied employment.

On the issue of permanent employment of the Petitioner, the Court held that he would have to submit himself to reasonably required medical tests including those for HIV. The Respondent should consider his employment based on medical opinion regarding the Petitioner’s fitness to work and his ability to satisfy his job requirements. The Court also issued directions that the Petitioner should be tested and a report be made by a panel of doctors, within four weeks of the judgment, to the Respondent regarding whether the Petitioner could be recruited. Until then, the Petitioner was to be considered casual labourer.

“It cannot be gainsaid that protection of human rights and dignity of HIV infected persons is essential to the prevention and control of HIV/ AIDS. The workers with HIV related illness including AIDS should be treated the same as any other worker with an illness. Most people with HIV/ AIDS continue working which enhances their physical and mental well being and they should be entitled to do so…HIV positive persons may have years of constructive, healthy service ahead of them. To exclude them lacks a rational foundation and is unfair.” Para. 8.

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