MX OF BOMBAY Vs. ZY

JUDGEMENT

(1.) IS it permissible for the State, under our Constitution, to condemn a person infected with H. I. V. to virtual economic death before he must eventually meet his death due to the ailment is the question before us. The question is of great contemporary significance and importance.

(2.) THE petitioner was working as a casual labourer with respondent No. 1 - Corporation, through a contractor in the year 1982. In 1984, the petitioner was interviewed for a vacancy against a regular post by the respondent-Corporation. However, the petitioner was not selected. In the year 1986, the petitioner was interviewed again by the Corporation and, thereafter, was employed as a casual labourer from 1986 till about 1994. The petitioner was required to sign a register/muster and was issued a muster card. In the year 1990, the petitioner was directed to go for a medical examination. The petitioner submitted himself to medical examination conducted by one Dr. V. S. Kulkarni who is a panel Doctor for the respondent-Corporation said Dr. Kulkarni referred the petitioner to various other specialists like Pathologist, Eye Specialist and also for lung test. There was nothing adverse revealed in the pathological report. The Eye Specialist certified that from the ophthalmic point of view, the petitioner is fit to do any work. The Doctor who examined the petitioner for lungs certified that no significant abnormality is detected in the examination of the petitioner. Although, the petitioner was not appointed in a regular vacancy, he was included in the select list of persons to be appointed on a regular basis. It is the case of the petitioner that during 1991 to 1993, persons above as well as below the petitioner in the selection list were appointed in regular vacancies. On 1-9-1993, the petitioner was asked again to go for a medical test. Dr. Bhide certified after test for Australia Antigen that HBs Ag was absent. Dr. Bhide further certified that test for H. I. V. (1 and 2) antibodies, revealed that H. I. V. (1 and 2) antibodies were present. In respect of other tests like lung function, eyes, etc. , the petitioner was found to be normal. The petitioner was also examined in the J. J. Hospital, Mumbai. The report of ELISA test showed H. I. V. (1 and 2) positive for antibodies. The certificate of Dr. Alka Deshpande of J. J. Hospital states that the patient is fit for duty. However, she advised follow-up once a year. The certificate further mentions that the disease is a prolonged one. The patient after acquiring the infection can remain a symptomatic for a long time extending upto one to twelve years and the patient (petitioner) is presently a symptomatic. The Doctor further mentioned that as per the Governments policy, an employee cannot be discontinued because of his seropositivity. Dr. Gokhale, the panel Doctor of the respondent-Corporation, relying on the report of the J. J. Hospital stated that the petitioner was examined at the J. J. Hospital. His H. I. V.-1 and H. I. V.-2 tests are positive for antibodies. As per the remarks of Professor of Medicine, Grant Medical College (Dr. Alka Deshpande), he is physically fit for duty and was advised repetition of blood test every year.

(3.) IT appears that as the petitioner tested positive for H. I. V. (1 and 2), the Senior Manager (Lube Compex), Trombay Unit of the respondent-Corporation, by notice dated 16-2-1994 deleted the name of the petitioner from selection panel of casual labourers with immediate effect. The petitioner wrote letters to the respondent-Corporation stating that otherwise he is fit for performance of his job, viz. , loading drums on the truck and that it will take 8 to 10 years before he develops AIDS and he should be continued to be employed at least as a casual labourer. The petitioner submitted in that correspondence that he is the only earning member of the family and if he is not offered work, the whole family will find it difficult to survive. The petitioner also wrote to the Addl. Director of Health Services (AIDS), Government of Maharashtra, Mumbai, on 7-5-1994. After narrating all the facts, the petitioner stated that he is physically fit to do the duty. The petitioner submitted that he is the only earning member of the family, he is very poor, having wife and two children to look after. He requested the authority to direct the respondent-Corporation to allow the petitioner to continue to work as a casual labourer, if not as a regular employee of the Corporation. The Addl. Director of Health Services (AIDS), Government of Maharashtra, wrote a letter dated 7-3-1994 to the respondent-Corporation regarding the case of the petitioner. In the said letter, the Addl. Director of Health Services pointed out that though the petitioner is at present H. I. V. positive, he may take 8 to 10 years to develop symptoms of AIDS. The director mentioned that, as a matter of fact, it cannot be emphatically stated as to when he will develop the symptoms, but it is not likely to be earlier than 8 to 10 years. The Director drew the attention of the respondent-Corporation to the fact that H. I. V. /aids is not transmitted by casual contact or by working together. . It is transmitted only if blood of H. I. V. positive is transfused to other person or if there is sexual intercourse with another person. The letter states that barring these two modes of transmission, the petitioner is not going to pose any risk to any of his colleagues where he is working or where he is likely to work in future. The letter further mentions that the guidelines of the Government of India under the National AIDS Control Programme are not to sack or remove anybody from the services, whether private or public, only because of H. I. V. status. The letter further states that keeping this scientific views in mind and also the need of support to the H. I. V. positive person, the Director requested the Corporation to allow the petitioner to work in his capacity as a drum casual labourer as he was working previously. The Director specifically enclosed a copy of Health Education material for the perusal of the Corporation. The last para records the gratitude of Dr. Salunke, Addl. Director of Health Services (AIDS), Government of Maharashtra, for the promise given by the Director of the respondent-Corporation that he will issue necessary instructions to take back the petitioner on job to avoid hardship to the petitioner only because of his H. I. V. status.