15 Sep 2023 5:45 AM GMT
The Kerala High Court has recently held that a person cannot be denied employment opportunities in the civil or public sector merely on account of Hepatitis- B or HIV infection.Justice Devan Ramachandran declared that the denial of employment to an infected person was discriminatory and that such practice in this era shocks the collective conscience of the society. “One can certainly...
The Kerala High Court has recently held that a person cannot be denied employment opportunities in the civil or public sector merely on account of Hepatitis- B or HIV infection.
Justice Devan Ramachandran declared that the denial of employment to an infected person was discriminatory and that such practice in this era shocks the collective conscience of the society.
“One can certainly not countenance, particularly in this age and time, that a person be kept out of Civil/Public employment solely because he is suffering from “Hepatitis B” or “HIV” infection. This is contrary to ethos of the times and militates against the collective conscience of the civilized world.”
The Court added that while there were internationally adopted protocols to deal with HIV-infected persons, no such protocols were in place to deal with Hepatitis-B infected persons. Thus, the Court requested the government to come up with protocols to deal with Hepatitis B infected persons to prohibit discrimination against them.
“This Court is also fully aware that the Government of India has placed protocols in operation, with respect to persons who are suffering from “HIV” infection, making it apodictic that no such person can be discriminated in being considered for Civil/Public employment; and I fail to understand how a person suffering from “Hepatitis B” could be considered differently or on a lesser basis.”
The Court made the following observation in a writ petition filed by a person who was denied employment in the Fertilizers and Chemicals Travancore Limited (FACT), a Public Sector Undertaking citing him as medically unfit due to Hepatitis B infection.
The petitioner was offered an appointment to the post of Assistant General at FACT. During medical tests, he was diagnosed with Hepatitis B. The respondents cancelled the offer letter based on the recommendation of the medical officer that he was medically unfit for employment due to Hepatitis B infection.
The petitioner submitted that denial of employment was grossly illegal and violative of constitutional rights guaranteed under Articles 14 and 16 of the Constitution.
During an earlier hearing on August 16, the Court had passed an interim order finding that the decision of the Medical Board stating that Hepatitis B infection was “a communicable disease through blood and body fluids” and “a progressive pathological condition” was untenable and against the principle of inclusiveness.
Justice Ramachandran observed thus:
“Prima facie, to keep a person away from employment merely because he is suffering from Hepatitis B infection, does not augur well with the public policy.”
The Court observed that the report of the Medical Board that Hepatitis B was a progressive pathological condition spreading only through blood and body fluids was a matter of common knowledge. It stated that the significant aspect that the Medical Board should have considered was the eligibility and capability of the petitioner to perform the job in that medical condition. The Court held that the Medical report does not provide a proper assessment as to his capacity or ability to discharge the obligations of the post to which he has applied.
“Needless to say, this opinion of the Medical Board is with respect to the infection and not with respect to the petitioner who is suffering from it.”
The Court held that if public sector undertakings were denying employment opportunities in like manner, then it would lead to a situation where persons will be denied jobs due to the attributes of their disease without proper medical assessment.
On the above findings, the Court directed the FACT to conduct further medical examination of the petitioner and to obtain a medical opinion from an independent Medical Board. It directed FACT to consider the petitioner’s appointment based on his qualifications and credentials and disposed of the plea accordingly.
Counsel for the Petitioner: Advocates Anjaly T.A., Arun Chandran and Harimohan
Counsel for the respondents: Advocates M. Gopikrishnan Nambiar, John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham, Raja Kannan, Jai Mohan and Central Government Counsel K.S.Prenjithkumar
Citation: 2023 LiveLaw (Ker) 482
Case name: Shaik Zakir Ahmed V The Fertilizers And Chemicals Travancore Limited
Case number: WPC No. 29693 Of 2022
Click Here to Read/Download the Judgment