BISHAMBER DUTT Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) Denial of promotion to the petitioner HIV+ has persuaded him to file this petition for seeking justice against the alleged discriminatory treatment meted out to him by the authorities on mere apprehensions. The petitioner was initially recruited as a Constable (GD) on 11.7.1987. He was allocated to 2nd Battalion Dehradoon. On the basis of merit and seniority, he was promoted to the rank of L/NK on 21.1.1992. The next promotion is to the post of Naik (GD) for which the petitioner was eligible. On consideration alongwith other eligible candidates, he was empanelled for promotion vide Director General Order No. 1. 19012/3/95 Estt. B. 21705 dated 16.11.95, w.e.f. 14.11.95 giving effect of promotion from 14.11.1995 in the pay scale of 950-1150-EB-25-1400 plus original, special pay and other allowances admissible from time to time. The empanelled promotees were granted actual promotion vide the order of respondent No. 4 dated 12.12.1995 and the petitioner's name did not figure in this promotion order, though some empanelled juniors to him were promoted. This promotion order has reference to the order of Director General, ITBP dated 16.11.1995. Prior to his empanelment, the petitioner was examined by one Dr. M.V.K. Rao on 13.7.1994 and the said doctor declared the petitioner unfit for further job in ITBP on the ground that he was found HIV positive. On the basis of the aforesaid report of Dr. M.V.K. Rao, the petitioner was not considered for promotion, as is evident from Annexure P-3. The petitioner has referred to another report of one Dr. Sunil Chaudhary, Base Hospital, ITBP, Delhi who declared the petitioner fit for service and to be kept in category 'AYE'. It is also stated that later on, the petitioner was again examined by Dr. M.V.K. Rao on 6.6.1996 and declared him for further service, but under medical surveillance as is evident from Annexure P-5. The petitioner claims that he is fully fit for force service and does not suffer from any physical or mental infirmity, notwithstanding HIV positive. The petitioner made a representation dated 17.10.1996 for his retrospective promotion to the post of Nayak (GD). Receiving no response, legal notice was served through his Advocate. Since no action was taken on the representation/legal notice, the petitioner filed this petition seeking a direction for his promotion to the post of Nayak (GD) from the date persons junior to him were promoted on the basis of approval for promotion.

(2.) The respondents have filed written statement. Approval of petitioner's promotion by the Directorate General, ITBP vide order dated 16.11.1995 is not only admitted, but a copy of the same has also been placed on record as Annexure R-1 which clearly shows that the petitioner has been approved for promotion and his medical category has been depicted as 'AYE'. It is further mentioned in Annexure R-1 that no departmental vigilance enquiry is pending against the petitioner. The name of the petitioner figures at Sr. No. 58 of the Promotional Panel. It is stated that the petitioner is a case of HIV+ and his case was sent to the Headquarters for decision and in the light of medical branch Memo dated 6.1.2.1995 (Annexure R-3), his name was not included in the formal promotion order dated 12.12.1995. It is, however, admitted in the reply that four persons senior to the petitioner and two persons junior to the petitioner have been promoted being in medical category 'AYE' and no departmental/vigilance case was pending or contemplated against them. Exclusion of the petitioner from promotion is only on the ground that he is a HIV positive case. The assertions of the petitioner that he has been found medically fit for further job by two doctors of the ITBP is also not denied.

(3.) During the course of the arguments, learned counsel for the petitioner has placed on record Government instructions issued by the Ministry of Home Affairs, Department of Personnel regarding Health Care System in Central Para Military Forces. This instruction relates to classification of the personnel serving in Central Paramilitary Forces and norms for their promotion. Following norms have been laid down for various medical categories for the purpose of promotion in the ranks of Paramilitary Forces:-