The Uttarakhand High Court recently refused to come to the rescue of an HIV positive Assistant Sub Inspector in matters of promotion, noting that he did not satisfy the fitness criteria and hence, was not being discriminated against.
The observation was made by Justice Alok Singh while hearing a petition filed by an Assistant Sub Inspector (General Duty) in Shashastra Seema Bal. While the petitioner had completed the training for the post of Combatised Sub Inspector (GD), he had not been promoted because he belonged to medical fitness status P2 (P) i.e. SHAPE – 2, instead of the prescribed, SHAPE-1.
He had now placed reliance on Section 3 of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, which prohibits discrimination against an HIV positive person in matters of employment.
The authorities, on other hand, had relied on Rule 8 of the Shashastra Seem Bal Combatized Sub Inspector (General Duty) Group B Non Gazetted Posts Recruitment Rules, 2009, which states that only those people who fall under the medical category SHAPE – 1 shall be eligible for appointment under the provisions of these Rules.
The Court agreed with the authorities, opining that the petitioner was not being discriminated against as he did not satisfy the medical fitness criteria. It explained, “Rules itself provide that persons, who are in medical category SHAPE 1 shall be eligible for promotion. Admittedly, the petitioner’s medical fitness category is SHAPE 2. This Court cannot grant concession to petitioner.
So far Section 3 of Act No. 16 of 2017 is concerned, this Section itself mandates that a person cannot be discriminated, if he is otherwise qualified. Medical fitness is mandatory requirement for promotion on the post of Combatized Sub Inspector (GD), which petitioner does not fulfil, therefore, it cannot be said that petitioner is discriminated on the basis of his disease.”
The Court, therefore, dismissed the petition for the lack of merit.