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Meghalaya High Court · body

2014 DIGILAW 65 (MEG)

Y S/o Shri. LV Thamtit Lamkang v. Union of India

2014-04-15

S.R.SEN

body2014
Order (Oral) This instant petitioner is directed against the Message dated 15.11.12 which is at Annexure-V and a translated copy is at Annexure-V-A. 2. The petitioner’s case in nut shell is that, “on 19.12.01, the petitioner was recruited in BSF as constable and has completed about 11 years of service. Thereafter, in response to the advertisement floated by the Ministry of Home Affairs as a departmental candidate, the petitioner applied for the post of Head Constable (Ministerial). Subsequently, the petitioner cleared the written and typing test and further the medical officer of the recruitment board declared him fit for the post of head constable (Ministerial) on 29.11.11. Finally on 23.03.12, the petitioner was adjusted to 07 Bn. BSF (Talliguri), West Bengal and the petitioner in compliance with the new posting reported to 07 Bn. BSF after submitting his technical resignation from the post of constable. Surprisingly, the petitioner was not issued with any appointment order nor asked to assume his charge. Further, after a lapse of 7 months, the respondent No. 2 and respondent 3 issued the impugned orders of reversion without following due process of law nor affording any opportunity of hearing to the petitioner. Being aggrieved and deprived of the fundamental rights, the petitioner preferred this instant writ petition.” 3. Mr. R Gurung, the learned counsel appeared for on behalf of the petitioner submits that, the petitioner joined service on 19.12.01 as constable in BSF. On 29.11.11 a post of head constable (Ministerial) was advertised and the petitioner accordingly applied for the said post and appeared in the written examination, physical test etc and found to be qualified. Thereafter, the petitioner tendered his technical resignation vide Annexure-IV which is at Page-30 and proceed to the new place of posting to join his new assignment but surprisingly, he was denied from joining the post for almost 7 months without any rhyme or reason. Ultimately, the petitioner has been sent back to the original post on the ground that he was suffering from HIV positive. The learned counsel further contended that, none should be discriminated on the ground of HIV positive, so necessary direction may be passed as this Court deemed fit and proper. 4. Mr. Ultimately, the petitioner has been sent back to the original post on the ground that he was suffering from HIV positive. The learned counsel further contended that, none should be discriminated on the ground of HIV positive, so necessary direction may be passed as this Court deemed fit and proper. 4. Mr. R Debnath, the learned counsel appeared for on behalf of the respondent submitted that, it a fact that the petitioner was found to be qualified for the post of head constable (Ministerial) and also found otherwise fit but he could not be allowed to join the said post as he was suffering from HIV positive. The learned counsel further contended that the petitioner was suffering from HIV positive P-2 category since 31.08.10. The learned counsel further contended before this Court that a person cannot be dismissed from service until and unless he reaches the stage of HIV positive P-5. 5. After hearing the submissions advanced by the learned counsel and after going through the record placed before me, I find that the crux issue involved in this instant writ petition is that, when the petitioner is found otherwise fit, such as written examination, physical standard examination etc. can he be deny to join any higher post or promotion? Before coming to any conclusion, I would like to reproduce the different stages of HIV as under: “HIV infection has a well-documented progression. If you are infected with HIV and don’t get treatment, HIV will eventually overwhelm your immune system. This will lead to your being diagnosed with Acquired Immune Deficiency Syndrome (AIDS). However, there’s good news: when used consistently, antiretroviral therapy (ART) prevents the HIV virus from multiplying and from destroying your immune system. This helps keep your body strong and healthy by helping you fight off life-threatening infections and preventing HIV from progressing to AIDS. In addition, research has shown that taking ART can help prevent the spread of HIV to others. (Read more about HIV treatment.) Below are the stages of HIV infection. People may progress through these stages at different rates, depending on a variety of factors. ACUTE INFECTION STAGE Within 2-4 weeks after HIV infection, many, but not all, people develop flu-like symptoms, often described as “the worst flu ever”. Symptoms can include fever, swollen glands, sore throat, rash, muscle and joint aches and pains, fatigue, and headache. People may progress through these stages at different rates, depending on a variety of factors. ACUTE INFECTION STAGE Within 2-4 weeks after HIV infection, many, but not all, people develop flu-like symptoms, often described as “the worst flu ever”. Symptoms can include fever, swollen glands, sore throat, rash, muscle and joint aches and pains, fatigue, and headache. This is called “acute retroviral syndrome” (ARS) or “primary HIV infection,” and it’s the body’s natural response to the HIV infection. During this early period of infection, large amounts of virus are being produced in your body. The virus uses CD4 cells to replicate and destroys them in the process. Because of this, your CD4 count can fall rapidly. Eventually your immune response will begin to bring the level of virus in your body back down to a level called a viral set point, which is a relatively stable level of virus in your body. At this point, your CD4 count begins to increase, but it may not return to pre-infection levels. It may be particularly beneficial to your health to begin ART during this stage. It is more important to be aware that you are at particularly high risk of transmitting HIV to your sexual or drug using partners during this stage because the levels of HIV in your blood stream are very high. For this reason, it is very important to take steps to reduce your risk of transmission. For more information, see NIH’s Guidelines for the Use of ART in HIV-1-Infected Adults and Adolescents: Acute and Recent (Early) HIV infection. CLINICAL LATENCY STAGE After the acute stage of HIV infection, the disease moves into a stage called the “clinical latency” stage. “Latency” means a period where a virus is living or developing in a person without producing symptoms. During the clinical latency stage, people who are infected with HIV experience no HIV-related symptoms, or only mild ones. (This stage is sometimes called “asymptomatic HIV infection” or “chronic HIV infection.”) During the clinical latency stage, the HIV virus continues to reproduce at very low levels, although it is still active. If you take ART, you may live with clinical latency for several decades because treatment helps keep the virus in check. (This stage is sometimes called “asymptomatic HIV infection” or “chronic HIV infection.”) During the clinical latency stage, the HIV virus continues to reproduce at very low levels, although it is still active. If you take ART, you may live with clinical latency for several decades because treatment helps keep the virus in check. (Read more about HIV treatment.) For people who are not on ART, the clinical latency stage lasts an average of 10 years, but some people may progress through this stage faster. It is important to remember that people in this symptom-free stage are still able to transmit HIV to others, even if they are on ART, although ART greatly reduces the risk of transmission. If you have HIV and you are not on ART, then eventually your viral load will begin to rise and your CD4 count will begin to decline. As this happens, you may begin to have constitutional symptoms of HIV as the virus levels increase in your body. AIDS This is the stage of HIV infection that occurs when your immune system is badly damaged and you become vulnerable to infections and infection-related cancers called opportunistic infections. When the number of your CD4 cells falls below 200 cells per cubic millimeter of blood (200 cells/mm3), you are considered to have progressed to AIDS. (In someone with a healthy immune system, CD4 counts are between 500 and 1, 600 cells/mm3.) You are also considered to have progressed to AIDS if you develop one or more opportunistic illnesses, regardless of your CD4 count. Without treatment, people who progress to AIDS typically survive about 3 years. Once you have a dangerous opportunistic illness, life- expectancy without treatment falls to about 1 year. However, if you are taking ART and maintain a low viral load, then you may enjoy a near normal life span. You will most likely never progress to AIDS. FACTORS AFFECTING DISEASE PROGRESSION People living with HIV may progress through these stage at different rates, depending on a variety of factors, including their genetic makeup, how healthy they were before they were infected, how soon after infection they are diagnosed and linked to care and treatment, whether they see their healthcare provider regularly and take their HIV medications as directed, and different health- related choices they make, such as decisions to eat a healthful diet, exercise, and not smoke.” 6. Further, medical science made it clear that HIV cannot be spread through air or water, as such; the said disease cannot be considered as airborne or waterborne disease but HIV can be spread or accelerated to others only by way of sexual intercourse or through blood transfusion. Mr. X, Indian inhabitant vs Chairman, State Level Police in reported in 2006 (2) ALD 513 , 2006 (2) ALT 82 (Division Bench), Andhra Pradesh High Court was pleased to observed that: “46. The fact that some people found to be HIV positive may, under certain circumstances, be unsuitable for employment in the police force does not justify the exclusion from employment of all people who are living with HIV. Were this to be the case, people who are HIV positive would never have the opportunity to have their medical condition evaluated in the light of current medical knowledge for a determination to be made as to whether they are suitable for employment in the police force. On the contrary, they would be vulnerable to discrimination on the basis of prejudice and unfounded assumptions. This is manifestly unfair. The constitutional right of the petitioner not to be unfairly discriminated against cannot be determined by ill- informed public perception regarding persons with HIV. Prejudice can never justify unfair discrimination. People who are living with HIV must be treated with compassion and understanding. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. Not all people who are living with HIV are unsuitable for employment. 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. (Jacques Chart Hoffmann (3 supra)). Since Order 70 (3) is patently arbitrary, irrational and discriminatory. It is ultra vires Articles 14 and 16 of the Constitution of India. As a result no person can be denied employment solely on the ground that he has tested HIV positive.” 7. (Jacques Chart Hoffmann (3 supra)). Since Order 70 (3) is patently arbitrary, irrational and discriminatory. It is ultra vires Articles 14 and 16 of the Constitution of India. As a result no person can be denied employment solely on the ground that he has tested HIV positive.” 7. After considering the submissions advanced by the learned counsel, it is clear that the petitioner was found otherwise fit for the post of head constable (Ministerial) but he has been denied to join the said post just because he was found to be suffering from HIV P-2. It is also apparent from the submission of the learned counsel for the respondent that, unless a person reaches the stage of HIV P-5, he cannot be dismissed from service. Since in this instant case, the petitioner is only at the stage of HIV P-2 but otherwise fit to serve, hence, I do not see any reason that he should be deprived or discriminated only on the ground that he is suffering from HIV P-2. Further, if he is deprived or discriminated, definitely the right of the petitioner as vested under Article, 14 & 16 of the Constitution of India is infringed and such discrimination is not encourageable at all. Furthermore, we should also understand that, a person suffering from HIV needs more care and support from the society and he to be treated with compassion and understanding. 8. Accordingly, the impugned order dated 15.11.12 is hereby set aside and the respondent is directed to allow the petitioner to join the post of head constable (Ministerial) for which he has been selected within a period of 1(one) month from the date of receipt of this order and he to be treated with compassion and understanding. 9. Before I part with this case record, I observe that the name of the petitioner should not be disclosed in the Judgment & Order so as to avoid further social damage but instead his name should be marked as Mr. X or Mr. Y. 10. With these observations and directions, this instant petition is allowed and the matter stands disposed of.