K N REDDY Vs. UNION OF INDIA

JUDGEMENT

(1.) YET another case where a person infected with HIV complains of inherent prejudice against him, in matters of promotion to higher echelons of service, though he was found to be no less meritorious than those who had been promoted. As is evident from the facts stated hereinafter, the prejudice, against those unfortunately infected with this dreaded disease, is prevalent even among the educated sections of society. This prejudice is more often than not sub - conscious, the fear of the unknown. While the fear which existed earlier, of the disease spreading by mere proximity, is slowly giving way, the deep and underlying prejudice against the HIV infected continues to thrive, even in the general perception of persons holding high office, regarding their inability to discharge the onerous duties which senior officers of the Armed forces are required to perform. This underlying prejudice is, more often, not explicit and can only be inferred from surrounding circumstances.

(2.) THE petitioner joined the Navy as a Commissioned Officer on 16. 8. 1981. He was promoted as Lieutenant on 16. 10. 1984. He was shifted from the electrical branch to the executive branch (provost cadre) in the year 1986 and was, thereafter, promoted as Lieutenant Commander on 16. 10. 1992. The petitioner claims to have contracted HIV in the year 1989 when he underwent blood transfusion in a civil hospital after a road accident. Later, when he volunteered to donate blood at the Navy Hospital in Mumbai, in November, 1995, his blood was screened and the test showed that he was "hiv positive". The petitioner was eligible for promotion to the rank of Commander in the year 1997. In order to select candidates, for being conferred the said rank, a promotion board, (called "promotion Board No. 3/97"), was constituted in May, 1997.

(3.) THE petitioner, thereafter, filed a statutory complaint wherein he detailed his excellent career record and his achievements. He requested that the reasons for his being rejected by the Promotion Board be intimated to him. He also stated that, in case he had been rejected on any ground other than merit, he may be considered for promotion on the basis of the available records. The petitioner was informed by the 2nd respondent, vide proceedings dated 24. 3. 1998, that his representation was thoroughly examined with a view to ensure that ends of justice were not denied to him, that an in-depth review of his performance and profile, and other related aspects, revealed that he was not select listed purely on account of inter-se merit and limited number of vacancies and that no injustice had been done to him. Aggrieved thereby, the present writ petition. The petitioner specifically averred, in paragraph 6 of his affidavit, that, on the eve of the sitting of the Promotion Board No. 3/97, the 2nd respondent issued letter dated 9. 5. 1997 to the Commanding Officer asking for the results of the Western Blot Test in connection with the petitioner being detected as HIV positive and the reference therein to the HIV return of November 1995 sent to the 2nd respondent on 11. 9. 1995. The petitioner asserts that more than a year and half after he was tested HIV positive in November 1995, the 2nd respondent had called for the results of the blood test in May, 1997 which itself showed that persons inimical to him had influenced the selection process.