Y Vs. UNION OF INDIA

JUDGEMENT

(1.) 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. 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.