Gujarat High Court
Isabella C.L vs Union Of India on 4 August, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/976/2025 CAV JUDGMENT DATED: 04/08/2025
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Reserved On : 01/07/2025
Pronounced On : 04/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 976 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
=============================================
Approved for Reporting Yes No
=============================================
ISABELLA C.L.
Versus
UNION OF INDIA & ORS.
=============================================
Appearance:
MR SWAPNESHWAR GOUTAM(9051) for the Petitioner(s) No. 1
MR NANDESH DESHPANDE, DEPUTY SOLICITOR GENERAL
assisted by MR HARSHEEL D SHUKLA(6158) for the
Respondent(s) No. 1,2,3
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. By means of the present petition, the petitioner, who is
an employee of the Central Reserve Police Force (CRPF),
is raising a serious issue of blatant discrimination being
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carried out and unfair treatment being accorded to
HIV/AIDS +ve persons in promotion and denial of
promotion to the petitioner on Ministerial promotional
posts, taking aid of the clauses 4.13 to 4.17 of the
Standing Order No. 4/2008 as also Rule 5 of the Central
Reserve Police Force, Assistant Commandant
(Ministerial), Recruitment Rules, 2011, on the ground of
falling in low medical category, i.e. not being in Shape-I.
2. The petitioner demonstrated discriminatory treatment
accorded to her in the matter of promotion to the post of
Inspector (Ministerial) from the year 2016 and further in
rejection of her candidature for promotion to the post of
Assistant Commandant (Ministerial) against the vacancy
of the year 2024-25, in the promotion exercise which
commenced vide communication dated 09.09.2024.
3. The validity of Rule 5 of the Central Reserve Police
Force, Assistant Commandant (Ministerial), Recruitment
Rules, 2011 (in short as the “Recruitment Rules’ 2011”)
and the discriminatory clauses of the Standing Order No.
4/2008, is subject matter of challenge to the extent of
requirement of being in Shape-I category for HIV/AIDS
+ve persons for promotion to ministerial posts. The
prayer is to declare these provisions ultra vires being
inconsistent with the provisions of Section 3 of the
Human Immunodeficiency Virus (HIV) and Acquired
Immune Deficiency Syndrome (AIDS) (Prevention and
Control) Act, 2017 (in short as the “HIV/AIDS
(Prevention & Control) Act’ 2017”) and also Sections 3,
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4 and 20 of the Rights of Persons with Disabilities Act,
2016, inasmuch as, the CRPF Rules and the Standing
Order deny fair opportunity of being considered for
promotion to the HIV/AIDS +ve incumbents in service
and, thus, cause unfair treatment at the workplace.
4. The further prayer made in the Writ petition is to
declare Rule 5 of the Recruitment Rules’ 2011 and
clauses 4.1 to 4.17 of the Standing Order No.4/2008
being contrary to the National HIV Counseling and
Testing Guidelines, 2024 as also discriminatory and
arbitrary being violative of Articles 14, 16 and 21 of the
Constitution of India. A prayer is made to quash and set
aside the decision of the Medical Board dated
03.02.2024, coming in the way of the petitioner seeking
promotion to the post of Assistant Commandant
(Ministerial) under the Recruitment Rules’ 2011.
5. The, facts in brief, relevant to decide the controversy at
hands are that the petitioner came to be appointed on
the post of Assistant Sub Inspector (Ministerial) on
05.06.1991. In the year 2013-2016, she was diagnosed
with HIV/AIDS +ve when she was in P1 Shape category
condition having more than 200 CD4 blood cell counts.
It is stated in the Writ petition that in the year 2013, the
petitioner was subjected to Annual Medical Examination
and was given a certificate of being in Shape II category.
Thereafter, again the petitioner was recommended for
review medical examination and even though she was
having more than 200 blood counts in CD4 category, she
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was given P3 (Shape III) certificate in the year 2015. In
the year 2016, the petitioner became eligible and
entitled for being considered for promotion to the post of
Inspector (Ministerial) and the name of the petitioner
was figured in the gradation list no. 449 as on
01.04.2015, whereas the DPC considered gradation list
no. 473.
6. In the year 2017, the petitioner was allocated to Group
center CRPF Battalion, Pune, wherein the petitioner was
having 550 cells CD4 and was categorised in P1 (Shape
I). Even at that point of time the petitioner’s
candidature for promotion to the post of Inspector
(Ministerial) was not sent to DPC with the remark
“medical category” and the petitioner was illegally
dropped out being an HIV/AIDS +ve person. Again in
the year 2018, her CD4 blood cells were 654 and the
petitioner was categorised under P1 (Shape I). In the
year 2018, the petitioner was allocated CRPF Neemuch.
There too, her CD4 blood cell counts were 30.88% and
the petitioner was categorised under P1 (Shape I) in the
year 2020 as CD4 cell count were 678-32.76%. In the
year 2022, the petitioner was categorised under P1
(Shape I). Again in the year 2024, the petitioner was
allocated Gandhinagar and on 03.02.2024 though CD4
cell counts were 562, the petitioner was placed under P2
(Shape II) category.
7. It is, thus, categorically stated in paragraph ‘3.7’ of the
Writ petition that the petitioner was having more than
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200 blood counts throughout, but has been put in
different Shape I or Shape II category by the CRPF
Doctors and there is no consistency in the medical
examination, which is being carried out by the same
Board governed by the Standing Order No. 04/2008,
notified on 15.12.2008.
8. The categorical statement made in the said paragraph is
that the petitioner has been superseded systematically
and juniors to her have been promoted though she was
always fit to work on the posts in question. The copies of
the medical reports between the year 2015-2024 are
appended as Annexure ‘B’ at pages ’76-85′ of the paper
book, which substantiate the submission of the
petitioner that the absolute CR4 was more than 200
throughout and on various aspects, such as
psychological, hearing, appendage, physical capacity,
eye sight, she was mostly in the category 1. The
petitioner though was referred to in Shape III, but in all
other aspects except physical capacity she was falling in
Category 1 as is evident from the medical report dated
16.04.2015. However, the medical report of the year
2017 (page ’80’ of the paper book) shows absolute CD4
cells count being 550 cells, but there is no detailed
analysis of all other parameters. In the reports dated
31.12.2018, 31.12.2019, 28.12.2020, 19.03.2022, the
petitioner has been throughout in Shape I category
being within the biological reference range and placed in
P1 category, insofar as the physical capacity is
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concerned, she was, thus, placed in Shape I category.
9. The medical report dated 03.02.2024 (page ’85’ of the
paper book) further indicates that though in all other
categories such as psycological, hearing, appendage,
and eye sight, the petitioner was in S1, H1, A1, and E1
category; respectively, but in physical capacity she was
placed in P2 category and, thus, brought in Shape II
category for a temporary period of 12 weeks, as a result
of the final categorisation. CD4 count dated 19.01.2024,
however, is 562, which can be seen from the medical
report, itself.
10. Taking note of the above, we are further required to
record that the petitioner came to be promoted to the
post of Inspector (Ministerial) on 08.01.2019 without
extending any benefits from the date of her entitlement,
i.e. the year 2017, as per the medical report dated
31.12.2018 (page ’80 of the paper book) when she was
placed in physical capacity P1. The categorical
statement in para ‘3.9’ of the Writ petition is that all
juniors to the petitioner have been granted promotion to
the post of Inspector (Ministerial) way back in the year
2017 and the petitioner has been discriminated only on
the ground of being HIV/AIDS +ve person. The copy of
the promotion order dated 08.01.2019 is at page ’86’ as
Annexure ‘C’ to the Writ petition.
11. A further submission has been made in paragraph ‘3.10’
of the Writ petition that the petitioner has been given
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financial upgradation by according benefit of 3rd MACP
scheme with effect from 05.06.2021 by an order dated
20.04.2023. On 09.09.2024, the respondent had
published a list of 206 incumbents to be considered for
promotion to the post of Assistant Commandant
(Ministerial) for the vacancy of the year 2025. On
28.09.2024, the petitioner made a representation
seeking for consideration of her case for promotion to
the said post of Assistant Commandant (Ministerial)
agitating that she was wrongly been declared unfit by
the Departmental Promotion Committee held in the year
2016-17, 2017-18 and 2018 based on the medical report
dated 16.04.2015. After the medical report of Shape I in
the year 2017-18, once the petitioner was found fit, she
could not have been denied promotion. The promotion
granted to the petitioner after the medical report dated
31.12.2018 bringing her in the category of Shape I,
declaring her fit by the Departmental Promotion
Committee constituted in the year 2019, to the post of
Inspector (Ministerial), resulted in denial of fair
treatment in the matter of promotion to the petitioner.
12. The representations made by the petitioner have been
rejected vide orders dated 25.11.2024 and 14.12.2024
for the same reasons illegally and arbitrarily. The
copies of the Annual Performance Appraisal Report
(APAR) of the petitioner on the post of Sub-Inspector
(Ministerial) and Inspector (Ministerial) for various
years have been brought on record as Annexure ‘E’
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(Colly.) to demonstrate that the petitioner has always
received a positive assessment of performance of her
work and shown good qualities in performance of work
and has been reported as “very good” by the assessing
officer.
13. The contention, thus, is that the denial of promotion to
the petitioner on the post of Inspector (Ministerial) as
per her entitlement and further denial to the post of
Assistant Commandant (Ministerial), is a result of
discriminatory and unfair treatment given to the
petitioner solely for the reason of being HIV/AIDS+ve
person. All Rules referred to in the order of rejection of
the representation of the petitioner and the clauses of
the Standing Order are discriminatory in nature and
liable to be declared ultra vires.
14. On the factual aspects of the contentions made in the
Writ petition in paragraphs ‘3.1’ to ‘3.11’, the reply in
the affidavit of the respondents no.1 to 3 are as under :-
“21. With reference to the contents of para 3.1 to
para 3.6 of the Petition, the Respondent herein
reiterates the contentions taken in earlier
paragraphs.
22. With reference to the contents of para 3.7 of
the Petition, the said contentions are denied and it
is submitted that during the year- 2024, the
Petitioner categorized as SHAPE-2 (T-12) i.e.,
Temporary for 12 weeks as on 03.02.2024. Further,
the Petitioner was due for undergo the Review
Medical Examination on 03.05.2024. But the
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for the reasons best known to the Petitioner. It is
further stated that CD4 count is always in-
consistent which may give different readings even
though patient is on regular treatment. The
Petitioner mentioned in this para is different CD4
count values.
23. With reference to the contents of para 3.8 &
para 3.9 of the Petition, the Respondent herein
reiterates the contentions taken in earlier
paragraphs.
24. With reference to the contents of para 3.10 of
the Petition, the said contentions are denied and it
is submitted that MACP and Promotion are two
different stages. Medical category is not mandatory
in MACP whereas it is mandatory in promotion.
25. With reference to the contents of para 3.11 of
the Petition, the said contentions are denied and it
is submitted that the Petitioner was no coming
under the zone of consideration for assessing her
suitability for promotion from Inspector (Min) to
the rank of Assistant Commandant (Min) for the
vacancy for the year – 23015, her candidature could
not be assessed by the DPC.”
15. With regard to the challenge to the communication
dated 09.09.2024, it is stated in paragraph ’28’ of the
affidavit of the respondents that vide the said letter
issued by the CRPF, Headquarter, nomination in respect
of All SM/Min existing in the force and Inspector/Min
upto gradation list no. 369 as on 01.01.2023 of all
category and reserved category for SC upto the
gradation list 466 and ST category upto the gradation
list 480 as on 01.01.2023, were forwarded. The
petitioner falls under General category and was in
gradation list no. 694 as on 01.01.2023 and, as such,
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was not falling within the zone of consideration for
assessing her suitability for promotion from Inspector
(Ministerial) to the rank of Assistant Commandant
(Ministerial) for the vacancy of the year 2025 and, as
such, her candidature could not be assessed by the DPC.
16. As regards the denial of promotion to the petitioner on
the post of Inspector (Ministerial) in the year 2017, as
per her medical report, it is stated in paragraph ’20’ of
the affidavit of the respondents that owing to permanent
Low Medical Category since 16.04.2015, the petitioner
was due for Review Medical Examination on 16.04.2017
followed by Annual Medical Examination, but she had
appeared before the Medical Board only on 11.08.2017
and her medical category was upgraded from Shape P3
to P1. The contention is that the petitioner should have
appeared for Annual Medical Examination after Review
Medical Examination, but she did not do so inspite of
several directions issued by the GC, CRPF vide letters
dated 31.05.2018, 25.06.2018, 13.08.2018, 28.08.2018
and 11.10.2018. The petitioner got her Annual Medical
Examination done on 31.12.2018 after a gap of 1 year
and 4 months despite directions issued by GC, CRPF,
Pune when she was medically categorised as Shape I on
31.12.2018 and was due for promotion to the rank of
Inspector (Ministerial) for the vacancy of the year 2019.
Her candidature was, thus, considered and she was
assessed as fit by the DPC for the vacancy of the year
2019 and her promotion to the post of Inspector
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(Ministerial) for the vacancy of 2019 was released on
23.08.2019 considering the Annual Medical Report
dated 31.12.2018 for the petitioner being in the category
Shape I. The petitioner took over the charge of the post
of Inspector (Ministerial) on 11.09.2019.
17. From the above noted statement made by the
respondents in their counter affidavit, it is to be noted
that the medical category of the petitioner from the year
2014 to 2024 as indicated in paragraph ’15’ therein, was
as under :-
i) 2014-Shape-P3(T-24) as on 28.04.2014.
ii) 2015-Shape-P3(P) as on 16.04.2015.
iii) 2017-P-1 as on 11.08.2017.
iv) 2018-Shape-1 as on 31.12.2018.
v) 2019-Shape-1 as on 31.12.2019.
vi) 2020-Shape-1 as on 28.12.2020.
vii) 2022-Shape-1 as on 19.03.2022.
viii) 2024-Shape-2(Temporary-12 weeks) as on
03.02.2024
18. The denial of promotion to the petitioner on the post of
Inspector (Ministerial) is only on the ground that she
was in Shape P3 category as on 16.04.2015, whereas
from 2017 to 2022, she was falling in P1 (Shape I)
category and only on 03.02.2024 she was categorised in
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Shape II for a temporary period of 12 weeks.
19. Taking note of the above, suffice it to record that there is
no inconsistency in the statement made by the petitioner
in the Writ petition about her medical condition and her
Annual Assessment Performance Report and there is no
denial on the part of the respondents about the same.
20. In the rejoinder affidavit, it is reiterated by the petitioner
that she has been discriminated due to wrong
categorisation as a result of medical diagnosis as per the
Standing Order No. 04/2008, otherwise she would have
been in the list of promoted incumbents to the post of
Inspector (Ministerial) and consequently in the list for
consideration to the post of Assistant Commandant
(Ministerial). In paragraph ‘5’ of the rejoinder, there is
a categorical statement with regard to the juniors to the
petitioner who have been promoted to the post of
Assistant Commandant (Ministerial) and have been kept
in the list of consideration for promotion to the post of
Inspector (Ministerial), though they were appointed
together with the petitioner. It is, thus, categorically
submitted by the petitioner in the Writ petition and the
rejoinder that the petitioner has been discriminated all
throughout due to medical reason, which is an outcome
of the discriminatory provisions contained in clauses
4.13 to 4.17 of the Standing Order No. 04/2008 as well
as Rule 5 of the Recruitment Rules’ 2011.
21. We, therefore, proceed to examine the contention of the
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petitioner that the Standing Order and the Recruitment
Rules contain such provisions which are inconsistent and
are violative of Articles 14, 16 and 21 of the Constitution
of India as also HIV/AIDS (Prevention and Control) Act,
2017, which has been enacted to protect HIV/AIDS +ve
persons from discriminatory treatment in employment
and make them a productive part of the workforce.
22. Considering the above, we may note clauses 4.13 to 4.17
of the Standing Order No. 04/2008 & Rule 5 of the
Recruitment Rules’ 2011 :-
Clauses 4.13 to 4.17 of the Standing Order No.
04/2008 :-
“4.13 Mandatory for the purpose of promotion
Medical Category SHAPE-I will be an essential
condition for promotion of all combatised
personnel in all groups/ranks/cadres in the
CPMFs. In case of those whose illness is of
permanent nature and who are not SHAPE-I,
they will be considered for promotion by DPC
but will be declared unfit for promotion, even
if, they are otherwise fit for promotion. In case
of those personnel, whose illness is of
temporary nature, after considering their
cases for promotion along with others, if they
are otherwise fit, the DPC will grade them as
‘fit for promotion’ subject to attaining SHAPE-
I medical category. As and when they regain
the SHAPE-I medical category, they will be
promoted as per recommendations of DPC.
But they will not be entitled to back wages.
However they will retain their seniority.
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4.14 The Force personnel above the age of fifty-five
years placed in the lower medical category of
S1H2A1PIE1(Without hearing aid), S1H1A1P1E2
(dominant eye should not be worse than 6/9 with
correction) and SIHIA1P2E1 (for dental reasons
only) will be treated at par with medical category
SHAPE-1 and will be eligible for promotion to the
higher ranks in a normal manner.
4.15 As regards officers, who have been put in
lower medical classification by the medical
board/review medical board of S1H1A2P1E1 and
S1H1A1P2E1, who are otherwise fit for promotion,
their suitability for promotion will be re-assessed
by a board consisting of the Home Secretary as the
Chairman, DG of the concerned Force, ADG(Med),
MHA and a Specialist nominated by DGHS, as
Members. The Board will assess the suitability of
the officer, who is otherwise fit for promotion, but
is in the above mentioned medical categories, in
consideration of the following parameters:-
a. The Officer is capable of performing the
normal duties of the rank to which he is being
promoted.
b. Any defect, disability or discomfort which
the officer is suffering from is not likely to be
aggravated by the service conditions.
c. The officers, assessed fit for promotion by
the Board will be promoted to the next higher
rank as per the recommendations of the DPC.
d. The Board’s assessment will be final.
4.16 If the actual promotion of Force Officer is
delayed because of his/her low medical category
and he/she is required to regain medical category
SHAPE-I, the person below him can be promoted,
but the officer will regain his/her seniority
immediately on his/her, promotion, if he regains
SHAPE-I medical category within the validity
period of the recommendations of the DPC.
4.17 Relaxation in SHAPE-I Medical Category.
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The relaxation in SHAPE-I Medical Category will be
admissible to the following two categories of
CPMFs personnel to the extent detailed below:-
a. Official/Personnel wounded/injured during war or
while fighting against the
enemy/militant/intruders/armed hostiles/insurgents
due to an act of these in India or abroad will be
eligible for promotion while placed in one of the
following medical classification
i) Individual Low Medical Factors
(aa) H2 or E2 or P2(Dental) which will be
considered at par with SHAPE-I; and
(ab) A2 or P2 or A3
ii) Combined Low Medical Factors
(aa) H2 and E2 combined and
(ab) H2 or E2 combined with A2,A3 or P2
b) Officers/men who are wounded/injured
during field firings/accidental firings/explosion
of mines or other explosive devices and due to
accidents while on active Government duty in
India or abroad will be eligible for promotion
in the following SHAPE Categories:-
i) SIH1A2PIE1 (ii) SIHIA1P2E1 (iii) SIH2A1PIE1
(iv) SIHIAIPIE2 (v) S1H2A1P1E2″
Rule 5 of the Recruitment Rules’ 2011 :-
“Rule 5. Medical Fitness – Notwithstanding any thing
contained in these rules, only those persons who are in
medical category SHAPE-I, shall be eligible for
appointment under the provisions of these rules”
23. We may also take note of the provisions of Section 3 of
the HIV/AIDS (Prevention & Control) Act’ 2017, which
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reads that :-
“3. Prohibition of discrimination.–No person shall
discriminate against the protected person on any
ground including any of the following, namely:–
(a) the denial of, or termination from, employment
or occupation, unless, in the case of termination,
the person, who is otherwise qualified, is furnished
with–
(i) a copy of the written assessment of a
qualified and independent healthcare provider
competent to do so that such protected person
poses a significant risk of transmission of HIV
to other person in the workplace, or is unfit to
perform the duties of the job; and
(ii) a copy of a written statement by the
employer stating the nature and extent of
administrative or financial hardship for not
providing him reasonable accommodation;
(b) the unfair treatment in, or in relation to,
employment or occupation;
(c) the denial or discontinuation of, or, unfair
treatment in, healthcare services;
(d) the denial or discontinuation of, or unfair
treatment in, educational, establishments and
services thereof;
(e) the denial or discontinuation of, or unfair
treatment with regard to, access to, or provision or
enjoyment or use of any goods, accommodation,
service, facility, benefit, privilege or opportunity
dedicated to the use of the general public or
customarily available to the public, whether or not
for a fee, including shops, public restaurants, hotels
and places of public entertainment or the use of
wells, tanks, bathing ghats, roads, burial grounds
or funeral ceremonies and places of public resort;
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(f) the denial, or, discontinuation of, or unfair
treatment with regard to, the right of movement;
(g) the denial or discontinuation of, or, unfair
treatment with regard to, the right to reside,
purchase, rent, or otherwise occupy, any property;
(h) the denial or discontinuation of, or, unfair
treatment in, the opportunity to stand for, or, hold
public or private office;
(i) the denial of access to, removal from, or unfair
treatment in, Government or private establishment
in whose care or custody a person may be;
(j) the denial of, or unfair treatment in, the
provision of insurance unless supported by
actuarial studies;
(k) the isolation or segregation of a protected
person;
(l) HIV testing as a pre-requisite for obtaining
employment, or accessing healthcare services or
education or, for the continuation of the same or,
for accessing or using any other service or facility:
Provided that, in case of failure to furnish the
written assessment under sub-clause (i) of clause
(a), it shall be presumed that there is no significant-
risk and that the person is fit to perform the duties
of the job, as the case may be, and in case of the
failure to furnish the written statement under sub-
clause (ii) of that clause, it shall be presumed that
there is no such undue administrative or financial
hardship.”
24. Section 2(d) & (s) of the HIV/AIDS (Prevention &
Control) Act’ 2017 define “discrimination” and
“protected person” in the following manner :-
“2..
(d) “discrimination” means any act or
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omission which directly or indirectly,
expressly or by effect, immediately or over a
period of time,–
(i) imposes any burden, obligation,
liability, disability or disadvantage on
any person or category of persons, based
on one or more HIV-related grounds; or
(ii) denies or withholds any benefit,
opportunity or advantage from any
person or category of persons, based on
one or more HIV-related grounds, and
the expression “discriminate” to be
construed accordingly.
Explanation 1.–For the purposes of this
clause, HIV-related grounds include–
(i) being an HIV-positive person;
(ii) ordinarily living, residing or
cohabiting with a person who is HIV-
positive person;
(iii) ordinarily lived, resided or cohabited
with a person who was HIV-positive.
Explanation 2.–For the removal of doubts, it
is hereby clarified that adoption of medically
advised safeguards and precautions to
minimise the risk of infection shall not amount
to discrimination;
“(s) “protected person” means a person who is
—
(i) HIV-Positive; or
(ii) ordinarily living, residing or
cohabiting with a person who is HIV-
positive person; or
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(iii) ordinarily lived, resided or cohabited
with a person who was HIV-positive;”
25. Section 55 of the Central Reserve Police Force Rules,
1955, which provides general rules for promotion in
Chapter IX, reads as under :-
“55. Merit.-(a) All promotions shall be governed by
merit. Other things being equal seniority shall
count for promotion. For promotion, a member of
the Force must be qualified and recommended by
the Commandant, Assistant Commandant or
Company Commander, as the case may be.
(b) For exceptional reasons, the Commandant may
promote an unqualified Head Constable to the rank
of Sub-Inspector or an unqualified Sub-Inspector to
the rank of Subedar (Inspector) with the prior
approval of the Deputy Inspector-General or
Inspector-General respectively, provided that such
promotions in either case do not exceed ten per
cent. of the sanctioned strength in such ranks.”
26. Clause 5 in Part II of the Standing Order No. 04/2008
provides procedure for medical categorisation. Clause
5.3, 5.4, 5.5 and 5.7 are relevant to be extracted
hereinunder :-
“5.3 CLASSIFICATION PRINCIPLES.
Medical classification/reclassification of combatised
serving personnel be made after assessing his/her
fitness under 5 sectors of health status, in terms of
the code letters SHAPE’ as under:
S – Psychological
H – Hearing
A – Appendages
P – Physical CapacityPage 19 of 50
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E -Eye sight.
5.4 FUNCTIONAL CAPACITY
Functional capacity for duties in the CPF under
each factor will be graded in the scale from 1 to 5
indicating declining functional efficiency and
increasing employability limitations (For detail
guidelines, please refer to Part-IV)5.5 Functional Capacity Scale
1. Fit for all duties any where
2. Fit for all duties except with limitations in duties
involving severe physical/mental strain. They would
also required perfect acuity of vision and hearing.
3. Except S Factor, fit for routine or sedentary
duties but have limitations of employability; both
job wise and Terrain wise as spelt out in
classification against each factor as specified in
Part-IV.
4. Temporarily unfit for duties in the force on
account of hospitalization/sick leave.
5. Permanently unfit for service for any type in the
force.
5.7 Demonstrated Physical capacity :
Physical capacity of performance of LMC individual
shall be suitably endorsed upon in the health
column of ACR by the initiating officer.
27. Clause 7 contained in Chapter II provides the manner in
which the medical board will record its proceeding in
proforma given in appendix ‘C’ and reads as under :-
7. Recording of medical board proceedings:
Due care should be taken in recording al types of
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medical board proceedings as prescribed in
proforma given in appendix-‘C’. The board will
ensure that all columns are appropriately and
completely filled in unambiguous terms. In
permanent LMC cases, assessment of disability
percentage shaft be reflected on each occasion,
including known aggravating or attributing factors,
findings of COI if any. In confirmed, fresh IHD
cases admitted to hospitals, last 14 days charter of
duties shall be obtained from the concerned unit
commandant immediately and placed before the
subsequent classification board. When ever any
personnel under going medical examination refuses
to sign on the report/ board papers, the contents
shall be read over to him/her by the PO in the
presence of two witnesses, different from board
members and their signatures obtained in
confirmation thereof. At the same time. The
Commanding Officer of the concerned unit shall be
informed in writing.
28. Part IV of the Standing Order No. 04/2008 contained the
Detailed guidelines on Technical Standards to Medical
Officers for Classification of Serving Combatised
Personnel in the CPFs. Clause 22 contains tables about
Functional Capacity and Employability pertaining to (i)
“S” Factor (Psychological); (ii) “H” Factor (Hearing); (iii)
“A” Factor (appendages); (iv) “P” Factor (Physical
Capacity); (v) “E” Factor (Eye Sight) acuity in clause
22.1 to 22.6. Relevant table pertaining to ” S” Factor
contained in clause 22.1, “H” Factor in clause 22.2, “A”
Factor in clause 22.3 and “P” Factor in 22.4, for our
purposes is to be extracted hereinunder :-
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“S” FACTOR (PSYCHOLOGICAL)
This factor denotes Psychological aspect and other
personality defects, mental acuity, emotional stability
and psychiatric diseasesNumeral Functional Capacity Employability
Grading limitations
S-1 Can withstand severe mental Fit for all duties any
stress. May have fully where
recovered from a
psychological condition with
no likelihood of further
breakdown.
S-2 Can withstand moderate Fit for all duties any
stress. Had suffered from where except at high
Psychoneurosis, but now fully altitude, solitary
stabilized. Likelihood of locations and
breakdown under severe operational duties
mental stress can not be ruled during IS duty and
out. hostilities. Not fit for
independent Command
and duty with live fire-
arms.
S-3 Has limited tolerance to Fit for only sedentary
stress, recently recovered duties with limited/
from Psychoneurosis or toxic/ restricted
confessional state; or acute responsibilities under
psychotic reaction of close supervision in
temporary nature as a result peace/ field area but
of external causes, un-related only where hospitals
to alcohol or drug addiction. with psychiatric
facilities are available
nearby. Not fit for
operational duties
during war or peace on
IS duty or duties with
arms.
S-4 On sick leave/ in hospital Temporary unfit for
force duties.
S-5 Mentally unstable on account Permanently unfit for
of psychological/psychiatric service.
disorders or having
psychopathic personality.
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22.2 "H" Factor (Hearing)
This factor covers auditory acuity, ability to hear spoken
voice or auditory signals often against considerable
background noise are important in certain trades and
operational situations.
Numeral Functional Capacity Employability
Grading limitations
H-1 Has excellent hearing in Fit for all duties any
both ears viz. With back to where
examiner can hear forced
whisper at a distance of 6
meters, each ear tested
separately.
H-2 Has excellent hearing in No limitations in physical
one ear with impaired capacity and fit for duties
acuity in the other, partial in peace or field areas
or complete. With back to including IS duties and
the examiner, can hear war any where except as
forced whisper at 6 meters under:-
with one ear (+/- 10 a) Not fit for patrol, scout
decibels) and and laying ambush.
conversational voice at 1.2 b) Not fit for duties which
meters or less with the demand keen hearing
other ear (60 decibels). acuity in both ears.
H-3 Is partially deaf in both No limitations in physical
ears. With back to the capacity and fit for duties
examiner can hear in peace or field areas
conversational voidce at 3 including duties during IS
meters with both ears (40 duty and war anywhere
decibels), each one tested except as under.
separately. a) Not fit for patrol, scout
and laying ambush in
noisy surroundings.
b) not fit for duties which
demand keen hearing
acuity of both ears.
H-4 On rest/Leave on medical Temporary unfit for Force
ground/in hospital duties
H-5 Hearing acuity below H-3 Permanently unfit for
standard Force duties.
‘A’ Factor (appendages)
This covers the functional efficiency of upper and lower
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limbs (including amputees, loss of fingers and toes)
shoulder girdle, pelvic girdle and associated joints and
muscles. A personnel who may be placed in Grade”2″ or
“3” of A factor, depending on whether their disability
pertains to upper limbs or lower limbs, totally difference
employability restrictions will be applicable. Hence the
person placed in grade 2 or 3 of this factor will be
further divided into classification A-2(U) or A-3(U) if this
disability is in the upper limb(s) and A-2(L)/A-3(L) if this
disability is in the lower limbs. This will give a clear
picture of the individual to the administrative authorities
to determine his/her suitable placement.
Numeral Functional Capacity Employability
Grading limitations
A-1 Has full functional capacity Fit for all duties any
though may be having minor where
impairments eg.-
A-1(U) (a) Loss or disability of the
terminal Phalanx of anyone of -do-
5th,4th or 3rd
fingers of dominant hand with
other hand being normal OR,
(b) Loss of terminal Phalanges
of 3rd, 4th fingers of non
dominant hand with grip in
same hand being very good and
other hand being normal
A-1(L) Loss of terminal Phalanges of Fit for duties any
3rd and 4th toe of any one foot where except
operational/IS
duties/during
hostility.
A-2(U) Has moderate defects in Fit for all duties which
function of upper limbs e.g.- do not involve
(a) Deformity/Disease/Loss of crawling, running,
index finger of dominant hand jumping long
leading to its functional marching, hill
disability, Or climbing and handling
(b) Loss terminal 2 Phalanges of of weapons.
3rd and 4th fingers of non-
dominant hand, with reasonable
grip retained, and the other
hand being normal OR,
(c) Any other minor
disease/disability in no
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dominant hand
A-2(L) Has a defect/disease or - do -
disability of a moderate nature
in one limb below knee capable
of marching up to 8 KM and
standing for 2 hours.
Note: In case the individual is placed in A2(L), each
person’s functional capacity in terms of employability
has to be assessed on the basis of his disability e.g. a
person having classical Symes operation with a good
prosthesis is fit for crawling but NOT for jumping.
An individual who is placed in this classification due to
an injury/disability/disease will be fit for duties
anywhere except at hilly terrain (Where he has to go up
and down the frequently).
A-3 Has major disability or disease Not fit for operational/
A-3 in upper limb like complete loss Counter insurgency
(U) of hand including fingers, or duties. Can do IS
amputation through duties without fire-
metacarpals, or a arm. Area restriction
disease/disability of shoulder in not applicable.
one side
A-3 (L) Has a disease or disability Fit for sedentary
above knee on one side, duties only.
including pelvic girdle but Not fit for high
should be able to walk up to 5 altitude/ operational /
Km at his own pace. CI / IS duties.
A-4 Sick in hospital/rest on medical Temporarily unfit for
ground Force duties.
A-5 Severe derangement of Permanently unfit for
functional efficiency Force duties.
22.4 “P” FACTOR PHYSICAL CAPACITY)
This factor shall cover to describe in details about the
physical capacity, strength, endurance, conditions and
those which are not covered under other factors.
Concessions are embedded as process without any
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obvious pathology being visible.
Numeral Functional Capacity Employability
Grading limitations
P-1 Has full functional capacity and Fit for all duties any
physical stamina Minor where
impairment fully under control,
but has full physical stamina. Fit for all duties any
where but under
medical observation,
having no
employability
restrictions.
P-2 Has moderate physical capacity Fit for duties not
and stamina. Suffered from requiring severe
constitutional stress. May have
metabolic/infective restrictions in
disease/operative procedures, employability at high
but now well stabilized. altitude (above 2,700
meters/9,000 feet in
hilly terrain and
extreme cold areas).
P-3 Has major disablement with Fit for sedentary
limited physical capacity and duties not involving
stamina undue stress. May
have restricted
employability as
advised by medical
authorities such as:-
a. To avoid places with
high humidity level
75% round the year.
b. Have access to
specialist services
near by.
c. To avoid
driving/handling of
weapons near water,
fire or heavy
machinery.
d. Restricting physical
excess, work in
desert/snow bound
areas etc.
e. Restricting active
participation in
hostilities, counter
insurgency operations
etc. (excluding staff,
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logistics and allied
support duties.)
P-4 On sick/ leave on medical Temporarily unfit for
ground in hospital force duties
P-5 Gross limitations on physical Permanently unfit for
capacity and stamina Force Service.
29. There is a separate table in clause 22.4 (g) for
HIV/AIDS+ve persons, which reads as :-
P-1 HIV Positive Asymptomatic Fit for all duties
Not on ART anywhere
CD4,CD8 Count normal
Other Parameters like Viral
load Normal
P-2 HIV Positive Fit for all duties
Weight Loss more than 10% anywhere
CD4(Above 200 except at difficult and
Cells/Microlitre) solitary locations,
CD8, Count within normal preferably where ART
range facilities are available
Total Lymphocyte Count above
1200/mm3
Minor Mucocutaneous
Manifestations/minor infections
With or without ART
P-3 HIV Positive Fit for sedentary
Weight loss more than 10% duties only and only at
CD4 Count less than 200 locations where
Cells/Microlitre advance medical
Viral load more than 50,000 facilities are available.
copies, Unexplained chronic,
Diarrhea/fever more than 1
month.
Opportunistic infections:-
(1) Pulmonary TB (2) Oral
thrush (3) Herpes Zoster more
than 1 month (4) Leukoplakia
etc on ART
P-4 Hospitalization/leave due to Temporary UNFIT for
HIV related diseases/AIDS Force duties.
P-5 Unsatisfactory response to Permanently UNFIT
ART, (CD4 count less than 200 for any type of service,
cells/microlitre with ART) invalidation.
HIV wasting syndrome
Disabiling
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Neurological/Psychiatric
problems
Disseminated Tuberculosis
Poor Physical endurances
Malignancies associated with
AIDS
Functional disability more than
50%
30. A perusal of the said tables indicate that the persons
diagnosed with HIV/AIDS +ve, on psychological aspect,
including those with hearing capacity, appendages etc.
who are kept in category P5 only, are permanently unfit
for force services, whereas, the persons categorised in
S-4, H-4, A-4, & P-4 category who are on sick or on
medical leave or in hospital are temporarily unfit for
force duties. The HIV/AIDS +ve persons categorised in
S-3 and P-3 are fit for sedentary duties only at locations
where advance medical facilities are available.
However, all those kept in S-1, S-2 or H-1, H-2 or P-1,
P-2, are fit for all duties anywhere except at difficult and
solitary locations, i.e. such duties would not require
severe stress and at locations preferably where ART
facilities are available. There is absolutely no restriction
for P1 category as they are fit for all duties anywhere.
31. We may also note that the ‘combatised personnel’ in the
CRPF mean personnel who are posted in field duties.
However, on a query made by the Court, it was
submitted by the learned counsel for the respondents
that the same criteria is being adopted for the personnel
employed in the CRPF on ministerial posts, though they
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may not have to be posted in the field duties. It was
contended that it would be difficult for the forces to
distinguish between the ministerial staff and combatised
personnel (employed for field duties), as there may be
some requirements of posting of the ministerial staff at
difficult positions.
32. Be that as it may, from a reading of the detailed
guidelines contained in Part IV of the Standing Order
No. 04/2008 itself, at least it is clear that HIV/AIDS +ve
persons who are facing some psychological or physical
limitations and kept even in category S-2, A-2, P-2 or H-2
cannot be denied employment as they are otherwise fit
for all duties except few limitations such as solitary
location and preferably where ART facilities are
available.
33. A perusal of the clauses 4.14 to 4.17 further indicates
that there is some relaxation in Shape I medical
category admissible to certain categories of persons and
some criteria has been adopted for placing officers/force
personnel in the lower medical category.
34. Be that as it may, a reading of clause 4.13 of the
Standing Order and Rule 5 of the Recruitment Rules’
2011 in CRPF, noted hereinbefore, makes it clear that
applying the medical category Shape I as an essential
(pre-requisite) condition for promotion of the force
personnel in all groups/ranks/cadres in the CPMF and,
thus, denying promotion to HIV/AIDS +ve persons who
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are “protected persons” within the HIV/AIDS (Prevention
& Control) Act’ 2017 resulted in arbitrary exercise of
powers at the ends of the respondents.
35. A perusal of Rule 55 of the Central Reserve Police Force
Rules, 1955, noted herein above, indicates that all
promotions shall be governed by merit and other things
being equal, seniority shall count for promotion. A
member of the Force must be qualified and
recommended by the DPC to be entitled for promotion.
On a comprehensive reading of the Standing Order No.
04/2008, once it is clear that even the personnel
categorised in S-2, H-2, A-2, P-2 category are fit for all
duties not requiring much stress, it is difficult to
comprehend that promotion can be denied to “protected
persons” being HIV/AIDS +ve persons on the ground
that they are not in Shape I category. The blanket
directions contained in Clause 4.13 of the Standing
Order 04/2008 and Rule 5 of the Rules for promotion to
the post of Assistant Commandant (Ministerial) Group A
in CRPF are clearly discriminatory, being violative of
Articles 14, 16 and 21 of the Constitution of India as also
the provisions contained in the HIV/AIDS (Prevention &
Control) Act’ 2017.
36. Upon reading of clause 4.16, it is further pertinent to
note that if the actual promotion of a Force Officer is
delayed because of his/her low medical category and
he/she is required to regain medical category Shape-I,
the person below him can be promoted, but the officer
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will regain his/her seniority immediately on his/her
promotion, if he/she regains Shape-I medical category
within the validity period of the recommendations of the
DPC. This provision, thus, shows that on regaining of
the better medical condition, the person who has been
recommended by the DPC for promotion, but actual
promotion could not be given to him/her will be able to
regain his seniority on promotion, once he/she regains
Shape-I medical category within the validity period
recommended by the DPC.
37. Reading of the above provisions clearly show that they
are contradictory to each other. Clause 4.13, makes it
mandatory for the medical category Shape-I being an
essential condition (pre-requisite) for promotion to all
combatised personnel in all groups/ranks/cadres for the
CRPF and further provides that whose illness is of
permanent nature and who are not in Shape-I, they will
be considered for promotion by DPC, but will be
declared unfit for promotion, even though they are
otherwise fit for promotion. This provision itself puts an
embargo upon the discretion to be exercised by DPC in
the matter of assessment of performance of a candidate
not in Shape I category, for promotion purposes. It
seems that HIV/AIDS +ve persons are being treated in
the force as the persons suffering from illness of
permanent nature and, as such, they are either being
declared unfit by DPC even though they are otherwise fit
for promotion or not even included in the list placed
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before the DPC for consideration for promotion on the
ground that they do not fall in Shape-I category. This is
what has exactly happened with the petitioner herein.
38. As noted hereinabove and is clear from the affidavit filed
on behalf of the respondents, the petitioner was in
Shape-I category throughout from the year 2017 till
2022. In the medical examination held on 16.04.2015,
she was placed in Shape III being in P-3 category and
was denied promotion to the post of Inspector
(Ministerial) in the DPC held for the vacancy of the year
2016-17 and also 2017-18 and 2018-19. It is clear from
the contents of the affidavit filed by the respondent and
page ’73’ of the paper book, which is the communication
dated 14.12.2024 of rejection of the case of the
petitioner that the petitioner was denied promotion in
three DPCs held in the years 2016-17, 2017-18 and
2018-19 only on the basis of the medical report dated
16.04.2015 wherein she was kept in Shape III category,
whereas subsequent medical reports of the year 2017,
2018, 2019 puts her in Shape I category. There is an
admission on the part of the respondents that in the
medical report dated 03.02.2024, the petitioner was
kept in Shape II category for a temporary period of 12
weeks.
39. From the above, it is more than evident that the
petitioner being HIV/AIDS +ve person, has been
discriminated throughout in the matter of grant of
promotion to the post of Inspector (Ministerial) and
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consequent promotion to the post of Assistant
Commandant (Ministerial). This was made possible
because of the flaw in the Recruitment Rules and the
Standing Order, which are the guidelines framed in
consultation with the Central Government governing the
service conditions of the CRPF personnel.
40. Section 3 of the HIV/AIDS (Prevention & Control) Act’
2017 completely prohibits “discrimination” against a
“protected person” in employment or occupation. The
“discrimination” and denial of employment opportunities
to the “protected persons” within the meaning of
Sections 2(d) and 2(s) of the Act’ 2017 resulted in unfair
treatment to such persons. The denial or
discontinuation or unfair treatment in relation to
employment is clearly prohibited under Section 3 of the
HIV/AIDS(Prevention & Control) Act’ 2017. The Act‘
2017 has been enacted to ensure equal opportunity of
employment and with the need to protect and secure the
human rights of persons who are HIV/AIDS +ve. India
being signatory of the Declaration of Commitment on
Human Immunodeficiency Virus (HIV) and Acquire
Immune Deficiency Syndrome (AIDS) (2001) passed in
the General Assembly of the United Nations to address
the problems of HIV/AIDS in all its aspects and to secure
a global committent to enhancing coordination and
intensification of national, regional and international
efforts to combat it in a comprehensive manner, the
Parliament has enacted the Act named as Human
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Immunodeficiency Virus (HIV) and Acquired Immune
Deficiency Syndrome (AIDS) (Prevention and Control)
Act, 2017, to give effect to the said declaration.
41. With the commitment made by the Parliament to the
people of India suffering discrimination at the hands of
employers or any other person, with the enactment of
Human Immunodeficiency Virus (HIV) and Acquired
Immune Deficiency Syndrome (AIDS) (Prevention and
Control) Act, 2017 with effect from 20.04.2017, there
was an imminent requirement to amend the Rules and
Regulations as also the Standing Order prevailing in the
matter of governing service conditions of CRPF
personnel. No such exercise has been conducted till
date. Even in the joint affidavit filed on behalf of
respondents no.1 to 3 (including on behalf of Union of
India), assertions have been made by the deponent who
is Deputy Inspector General of Police, Group Centre,
CRPF, Gandhinagar that the Standing Order No.
04/2008 was issued in consultation with the Ministry of
Home Affairs and the object of the same is for timely
detection of any disease and infirmity that may still be in
a latent stage for early intervention and preventive and
curative measures to promote positive health.
42. It is sought to be stated that Rule 5 of the Recruitment
Rules’ 2011 for Assistant Commandant (Ministerial)
Group ‘A’ post are framed to ensure that the persons
who are in combat forces have to be perfect in medical
state and reliance placed by the petitioner on the
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provisions of the HIV/AIDS (Prevention & Control) Act’
2017 is of no aid. The CRPF Act and Rules framed
thereunder as also the Standing Order operate in a very
specialised field which require special provisions and
they cannot be said to be contrary to the statute, viz, the
HIV/AIDS (Prevention & Control) Act’ 2017. This type
of response where the validity of the statutory provisions
and rules framed are subject matter of challenge being
violative of Articles 14, 16 and 21 of the Constitution of
India, cannot be appreciated. The affidavit dated
25.03.2025 jointly filed on behalf of respondents no. 1 to
3, without brining any specific response of the Union of
India inspite of the specific order dated 12.02.2025
passed in the present petition highlighting the
importance of the matter, is really disappointing.
43. Mr. Nandesh Deshpande, learned Deputy Solicitor
General of India appearing for the Union of India could
not dispute the above noted facts and the law laid down
in the decision of the Allahabad High Court in Shailesh
Kumar Shukla vs. Union of India [2023 SCC OnLine
All 429] decided on 06.07.2023, further relied by the
Delhi High Court in Hoshiar Singh vs. Union of India
in its judgment and order dated 13.01.2025. Both the
matters before the Allahabad High Court and Delhi High
Court have dealt with the similar issues of denial of
promotion to the HIV/AIDS +ve CRPF personnel on the
basis of clause 4.13 of the Standing Order.
44. The observations made by the Allahabad High Court in
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Shailesh Kumar Shukla (supra) on the provisions of
the Standing Order No.04/2008 are relevant to be
extracted hereinunder :-
55. Perusal of the Annual Medical Examination
dated 17.05.2013 reveals that the grading of the
medical condition of the appellant was S-I, H-I, A-I,
P-2, E-I, which reflects that the appellant was found
to lack only ‘P’ factor relating to physical capacity.
However, ‘P-2’ as contained in Clause 22.4 of Part-
IV of the Standing Order No. 04/2008, which deals
with procedure for medical categorization,
corresponds to “Fit for duties not requiring
severe stress” in the tabular chart. The said
categorization is extracted as follows:
Numerical Functional Capacity Employability
Grading limitationsP-2 Has moderate physical Fit for duties not
capacity and stamina. requiring severe
Suffered from stress. May have
constitutional restrictions in
metabolic/infective employability at
disease operative high altitude
procedures, but now (above 2,700
well stabilized. meters/9,000 feet
in hilly terrain
and extreme cold
areas)
56. The aforesaid grading of medical condition of
the appellant indicates that although he has been
placed in SHAPE-2, but he is physically fit for duty
and the employability limitation indicates that he
may have restriction in employability at high
attitude.
57. This Court finds that CRPF was sensitive and
alive to the fact that HIV positive recruits could not
be treated differently from their other recruits, whoPage 36 of 50
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did not suffer from this disability as far as
promotion and other conditions of the service were
concerned. Clause 22.5 (g) of the Standing Order
No. 04/2008 deals with the case of HIV/AIDS cases,
which invariably says that “P2” category of HIV
Positive recruit would be fit for all duties
anywhere except at difficult and solitary
locations, preferably where ART facilities are
available. Although, Clause 4.13 and Clause
22.5(g) are borne out of the same Standing Order,
however they are at stark difference, as on the one
hand the General Clause 4.13 prescribes a recruit
to be in SHAPE-1, whereas the special provisions
related to HIV positive says that a personnel having
even SHAPE-2 medication conditions is fit for
duties.
58. Further, this Court finds that the Director
General CRPF has also issued a Standing Order No.
06/2006 on 03.09.2006, laying down the action plan
on HIV/AIDS for awareness, prevention, detection,
treatment and rehabilitation of the members of the
force. Under the caption ‘Management of HIV/AIDS
cases’ in the aforesaid Standing Order No. 06/2006,
it has been specifically stated in Clause (b)
that adequate policy should be made in
consultation with the Government of India, so
that there is no discrimination in
posting/promotion and social activities of
these HIV infected employees.”
“60. This Court cannot be oblivious to the fact that
it is common knowledge that once a personnel
moves higher up in hierarchy in the service, the
requirement of his physical endurance relatively
reduces and in that sense it could be well construed
that the appellant who is presently performing and
is found fit physically for the post of Constable can
be always be found fit for a less physically enduringPage 37 of 50
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duties of Head Constable. The said analogy has
been drawn keeping in mind the peculiar fact that
in the AME of the appellant, only the physical
endurance of the appellant has been categorized as
‘P-2’, whereas all other requirements in SHAPE
have been given one (1) and most importantly the
said medical conditions has been consistent as can
be found from medical examination held on
30.01.2016, 13.04.2019 and 24.06.2021.
61. Further, this Court is of the view that
protection against discrimination is a fundamental
right guaranteed to Citizen of India. No one can be
discriminated on the basis of his HIV/AIDS status in
India. Even the CRPF Standing Orders issued from
time to time reverberate their belief to provide
equal status and opportunity to these affected
personnel. HIV/AIDS patients have a right of equal
treatment everywhere and they cannot be denied
job opportunity or discriminated in employment
matters on the ground of their HIV/AIDS status.
Even in case of promotion, the said non-
discrimination is echoed in Section 47 of
the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 (Act of 1995), which inter-alia states:
“47. Non-discrimination in Government
employments-
(1) No establishment shall dispense with, or
reduce in rank, an employee who acquires a
disability during his service.
Provided that, if an employee, after acquiring
disability is not suitable for the post he was
holding, could be shifted to some other post
with the same pay scale and service benefits;
Provided further that if it is not possible to
adjust the employee against any post, he may
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be kept on a supernumerary post until
suitable post is available or he attains the age
of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person
merely on the ground of his disability:
Provided that the appropriate Government
may, having regard to the type of work
carried on in any establishment, by
notification and subject to such conditions, if
any, as may be specified in such notification,
exempt any establishment from the provisions
of this section.”
62. A perusal of the aforesaid section reveals that
sub-section (2) of Section 47 mandates that no
promotion shall be denied to a person merely on
the ground of his disability.”
“65. This Court is of the view that since a person,
who is otherwise fit, could not be denied
employment only on the ground that he or she is
HIV positive and this principle also extends to grant
of promotion. In any case, a person’s HIV status
cannot be a ground for denial of promotion in
employment as it would be discriminatory and
would violate the principles laid down in
Articles 14 (right to equality), 16 (right to non-
discrimination in state employment) and 21 (right
to life) of the Constitution of India.”
45. The Allahabad High Court has relied upon the judgment
of the Punjab and Hariyana High Court in Bishamber
Dutt v. Union of India[(2010) 2 LLR 228], in
paragraphs ’63’ and ’64’ as under:-
“63. Appellant has relied upon a judgment passed
by the Hon’ble Punjab & Haryana High Court inPage 39 of 50
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“Bishamber Dutt v. Union of India” reported in
(2010) 2 LLR 228 Punjab & Haryana, wherein a
Single Judge of Punjab & Haryana High Court was
called upon to decide the issue of promotion of an
identically placed personnel of ITBP as that of the
appellant herein. The learned. Single Judge in that
judgment after recording the various contention as
well as the departmental instructions as applicable
to ITBP, observed that the policy and the rules
provided for continuance of HIV positive personnel
in the job of Para Military forces except those
falling in unfit category. The learned. Single Judge
found in that case that although the petitioner had
been detected with HIV positive in the year 1995,
he continued to be in service till the passing of the
order on 2010 and as such concluded that there
was no reason to deny him the promotion.
64. In the facts of the present case, this Court does
not have even an iota of doubt that the aforesaid
judgment has a persuasive effect. The appellant
was detected with HIV positive in the year 2008
and he was promoted in the year 2013 and he was
reversed from the promotion in 2014 and even
today after close to 9 years, the appellant continues
to be employed as Constable with the respondents
and is in the same medical condition of SHAPE-2.
This Court finds that the aforesaid judgment relied
upon by the appellant contains a similar chart of
physical endurances similar to clause 22.4 of Part-
IV of the Standing Order No. 04/2008, which deals
with procedure for medical categorization. Since,
the appellant has been found for fit for duties, this
Court also finds no reasons as to why his promotion
could not have been granted.”
46. The Delhi High Court in its judgement and order dated
13.01.2025, relying upon the Allahabad High Court
Judgement in Shailesh Kumar Shukla (supra), Punjab
and Hariyana High Court in Bishamber Dutt (supra),
has further noted the judgment of the High Court of
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Uttarakhand in Pancham Singh v. Union of India &
Ors. [Special Appeal No.911/2018], wherein again
while dealing with a case where promotion had been
denied to the petitioner therein as he was placed in the
P2(P) Medical Category, directed the Government of
India to exercise its power under Section 50(1) of the
HIV Act and to consider if the same can be exercised to
remove the difficulties in effecting the promotion to the
Assistant Sub- Inspectors, who have tested HIV positive,
to the post of Sub-Inspector (GD). We quote from the
Judgment as under: –
“43. The High Court of Uttarakhand in Pancham
Singh (supra), while again dealing with a case
where promotion had been denied to the petitioner
therein as he was placed in the P2(P) Medical
Category, directed the Government of India to
exercise its power under Section 50(1) of the HIV
Act and to consider if the same can be exercised to
remove the difficulties in effecting the promotion to
the Assistant Sub- Inspectors, who have tested HIV
positive, to the post of Sub-Inspector (GD). We
quote from the Judgment as under: –
“―14. Shri Vinay Kumar, Learned counsel for
the petitioner, would submit that, while the
petitioner has achieved SHAPE-I physical
fitness with ART, the Medical Board
recommendation, for SHAPE-I physical fitness
without ART, is impossible to comply as the
petitioner must continue Anti-Retroviral
Therapy (ART) for his survival. As the
petitioner claims to have achieved SHAPE-I
medical fitness with ART, we consider it
appropriate to direct the Government of India-
respondent no.1 to examine the petitioner’s
case, and to consider whether the power to
remove difficulties, under Section 50(1) of thePage 41 of 50
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2017 Act, and the power to relax the rigor of
the 2009 Rules under Rule 11 of 2009 Rules,
can be exercised with respect to the category
of persons, to which the present petitioner
belongs. i.e. Assistant Sub-Inspector suffering
from HIV. As the power to remove difficulties,
under Section 50 (1) of the 2017 Act, can only
be exercised within two years from the date
on which 2017 Act came into force, i.e. on or
before 24.04.2019, the first respondent shall
consider whether or not the 2009 Rules
should be relaxed, and power under Section
50(1) of the 2017 Act, should be exercised to
remove the difficulties in effecting promotion
of Assistant Sub-Inspectors. who have tested
HIV-Positive, to the post of Sub-Inspectors
(GD). This exercise shall be undertaken, and a
decision shall be taken with utmost expedition
and, in any event, not later than 31.03.2019.”
47. Noticing the judgment of the Apex Court in Union of
India v. Devendra Kumar Pant & Ors. [2009 SCC
OnLine SC 1273], while considering Section 47 of the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995, it
was noted by the Delhi High Court that the prescription
of a minimum medical standard for promotion should be
considered as such, and should not be viewed as denial
of a promotional opportunity to a person with disability.
A person who is otherwise eligible for promotion shall
not be denied promotion merely on the ground that he
suffers from disability.
48. It was noted that even disabled persons who are in
employment are required to be accommodated on the
principle of reasonable accommodation based on their
individual capacity, which is one of the means for
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achieving substantive equality. The Apex Court in
Ravinder Kumar Dhariwal & Anr. v. Union of India
& Ors. [(2023) 2 SCC 209] has held that reasonable
accommodation should be provided to such persons to
comply with the full scope of the equality provisions
under the Constitution of India. The relevant paragraph
’45’ of the Delhi High Court Judgment which takes note
of the decision of the Apex Court in Ravinder Kumar
Dhariwal (supra) is to be noted hereinunder :-
“45. The provision of the above Act also came up
for consideration before the Supreme Court in
Ravinder Kumar Dhariwal & Anr. v. Union of India
& Ors., (2023) 2 SCC 209. The Supreme Court
highlighted that the principle of reasonable
accommodation is one of the means for achieving
substantive equality, pursuant to which a person
with a disability must be reasonably accommodated
based on their individual capacities. Reasonable
accommodation should be provided to such persons
to comply with the full scope of the equality
provisions under the Constitution of India. It
further held as under: – ―“125. On the basis of our discussion of the
above-mentioned jurisdictions, the following
conclusions emerge:
xxx
125.2. The duty of providing reasonable
accommodation to persons with disabilities is
sacrosanct. All possible alternatives must be
considered before ordering dismissal from
service. However, there are accepted
defences to this principle. The well-recognised
exception to this rule is that the duty to
accommodate must not cause undue hardship
or impose a disproportionate burden on thePage 43 of 50
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employer – the interpretation of these
concepts may vary in each jurisdiction. In the
US, the duty to accommodate is also to be
balanced with ensuring the safety of the
workplace (the direct risk defence) provided
that the threat to safety is based on an
objective assessment and not stereotypes. In
Canada, the PART C minority concurring
opinion in Stewart (supra) observed that
accommodating a person with substance
dependency would cause undue hardship to
the employer in a safety-sensitive workplace.
The Court of Justice of EU also recognised
workplace safety as a legitimate occupational
requirement for imposing certain occupational
standards. However, it ruled that the standard
should be proportionate to the objective of
workplace safety that is sought to be
achieved. In this context, it will be useful to
refer to the minority opinion in Stewart
(supra) which emphasizes that the duty to
accommodate is individualized. The employer
must be sensitive to how the individual’s
capabilities can be accommodated. The
Committee on the Rights of Persons with
Disabilities in General Comment Six expressly
notes that the duty to accommodate is an
―individualised reactive duty‖ and ―requires
the duty bearer to enter into dialogue with the
individual with a disability‖. Thus, a blanket
approach to disability-related conduct will not
suffice to show that the employer has
discharged its individualized duty to
accommodate. It must show that it took the
employee’s individual differences and
capabilities into account.”
49. The Delhi High Court, thus, has read down the
provisions of clause 4.13 of the Standing Order No.
04/2008 dated 18.11.2008, insofar as HIV Positive
personnel are concerned, to give effect to the objectives
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of the HIV/AIDS(Prevention and Control) Act, 2017, and
its prohibition against ‘discrimination’ in the following
manner :-
“46. Applying the above precedents to the facts of
the present cases, we find that the petitioners in
W.P.(C) 4736/2023 and W.P.(C) 13547/2023 have
been placed in the P2 Medical Category. The P2
Medical Category is one where the personnel are
found to be „fit‟ for all duties anywhere, except at
remote and solitary locations, and preferably where
ART facilities are available. Therefore, the
petitioners can perform all works and duties, with
the only limitation being on their posting. Although,
in terms of para 4.13 of the Office Memorandum
dated 18.11.2008 (O.M.), the personnel are
required to be in SHAPE-I Medical Category for
promotion, the said provision has to be read in
consonance with the HIV Act and its objectives.
Section 3 of the HIV Act states that no person shall
be discriminated against in matters of employment,
which would, inter alia, result in the denial of a
benefit, opportunity or advantage based on one or
more HIV-related grounds. The exception is where
the employer can certify the administrative or
financial hardship for not providing such person
reasonable accommodation in terms of other work.
47. To give effect to the objectives of the HIV Act
and its prohibition against discrimination, Para
4.13 of the OM dated 18.11.2008 has to be read
down as far as HIV-positive personnel are
concerned, in a narrow sense, and an obligation is
cast on the respondents to show that such person,
on being granted promotion, would not be able to
be accommodated in any other work. Once the
medical condition of the HIV personnel is confined
only to his/her placement for the performance of
the duty, it should be considered as SHAPE-1 for
the purposes of para 4.13 of the above O.M., and
they cannot be denied promotion only because
technically they are not in the SHAPE-1 MedicalPage 45 of 50
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Category because of them suffering from HIV. To
hold otherwise, will defeat the protection granted
under the HIV Act. A narrow reading of Para 4.13
of the above O.M. is, therefore, required to make it
withstand the challenge that it would otherwise
face of being violative of Section 3 of the HIV Act
and the Constitution of India.”
50. Considering the above, we find that ignoring the
statement of law made by various High Courts of the
country in the matter of discrimination in promotion to
the HIV/AIDS +ve persons, from time to time, taking
recourse to the provisions of the Standing Order No.
04/2008, repeated discriminatory treatment is being
accorded to the HIV/AIDS +ve persons employed in
CRPF and the response before us is that the Standing
Order No. 04/2008 made in consultation with the
Ministry of Home Affairs, Government of India are
binding in nature. No efforts seem to have been made to
bring the Standing Order and the Rules governing the
services of CRPF personnel in line with the Human
Immunodeficiency Virus (HIV) and Acquired Immune
Deficiency Syndrome (AIDS) (Prevention and Control)
Act, 2017 so as to remove “discrimination” against the
“protected persons” within the meaning of Sections 2(d)
and 2(s) read with Section 3 of the HIV/AIDS (Prevention
and Control) Act, 2017.
51. No such efforts having been made on the part of the
Ministry of Home Affairs, Government of India, has been
brought before us, inasmuch as, there is no response of
the Union of India though it is impleaded through the
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Secretary, Ministry of Home Affairs on the question of
the validity of the Rule 5 of the Rules’ 2011 and the
offending clauses of the Standing Orders, which are
subject matter of challenge herein being violative of
Article 14, 16 and 21 of the Constitution of India.
52. This case, thus, presented a very sorry state of affairs at
the ends of the respondent authorities including the
Ministry of Home Affairs, Government of India in
perpetuating discrimination by not bringing necessary
amendments in the Standing Order No.04/2008 and the
recruitment/appointment Rules which prescribe blanket
restriction for promotion or appointment to persons who
are not kept in medical category Shape I, specifically
HIV/AID +ve personnel. As a result of this inaction on
the part of the concerned Ministry, the HIV/AIDS +ve
CRPF personnel have faced consistent discrimination,
which is sought to be justified with the response in their
affidavit that the Standing Order No.04/2008 have been
framed in consultation with the Ministry of Home Affairs
and being in place, are binding in the matter of
governing services of the CRPF personnel.
53. With the above, we reach at an irresistible conclusion
that the petitioner has been discriminated in denial of
promotion to the post of Inspector (Ministerial) from the
date of her entitlement on the premise that she was in
Shape III category in the medical report dated
16.04.2015. The consequent denial for consideration for
promotion on the post of Assistant Commandant
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(Ministerial) in view of Rule 5 of the Recruitment Rules’
2011, which provides for the incumbent being in Shape I
category for consideration for appointment on the post
of Assistant Commandant (Ministerial), is
discriminatory. The juniors to the petitioner have been
promoted to the post of Inspector (Ministerial) and have
been kept above the petitioner in the seniority list, as
she was promoted to the post of Inspector (Ministerial)
only on 23.08.2019 with the recommendation of the DPC
on the basis of the medical report dated 31.12.2018.
54. We, therefore, direct the respondent authorities to grant
promotion to the petitioner to the post of Inspector
(Ministerial) with effect from the date the junior(s) to the
petitioner were/was promoted. The petitioner shall be
entitled to full benefits including continuity of service to
the post of Inspector (Ministerial) from the date the
juniors to the petitioners were/was promoted. The
petitioner shall also be considered for promotion to the
post of Assistant Commandant (Ministerial) by placing
her in the gradation list along with her juniors and a
special DPC be conducted to consider the candidature of
the petitioner to the said post. Upon consideration, if
the petitioner is found fit on all other aspects, she shall
be given promotion to the post of Assistant Commandant
(Ministerial) from the date the junior(s) to her have been
promoted against the vacancies of the year 2024-25 as
mentioned in the communication dated 09.09.2024.
55. It is further clarified that the respondent authorities
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shall be required to revise pay and re-fix the pay-scale of
the petitioner from the date of her entitlement to
promotion on the post of Inspector (Ministerial) and
further on the post of Assistant Commandant
(Ministerial) and shall pay the arrears including all
consequential benefits to the said posts. The entire
exercise shall be completed within a period of two
months from the date of filing of the copy of this order,
failing which the petitioner shall be at liberty to bring
her action before this Court.
56. The Clause 4.13 of the Standing Order No. 04/2008
dated 18.11.2008 and Rule 5 of the Central Reserve
Police Force, Assistant Commandant (Ministerial), Group
“A” Post, Recruitment Rules, 2011, are hereby declared
ultra vires to Articles 14, 16 (equality in employment)
and 21 (right to life) and being in contravention of the
HIV/AIDS (Prevention & Control) Act’ 2017 insofar as
the matter of employment (appointment and promotion)
of the HIV/AIDS +ve persons are concerned in the
Central Reserve Police Force (CRPF). The other clauses
4.15 to 4.17 of the Standing Order No. 04/2008 are also
required to be suitably amended to remove any kind of
discrimination, directly or indirectly, expressly or by
effect which denies or withholds any benefit, opportunity
or advantage from any person or category of persons
being HIV/AIDS +ve person(s). Such a discrimination
is to be completely ruled out from the provisions of the
Recruitment Rules’ 2011 as well as the Standing Order
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No. 04/2008 by brining suitable amendments as early as
possible. For the purpose of medical assessment of
HIV/AIDS +ve persons, the amendments shall be
brought in the relevant clauses of the Standing Order
keeping in mind the National HIV Counselling and
Testing Guidelines’ 2025.
57. The compliance of this order to bring the amendments in
the relevant Rules and the Standing Order to remove
any kind of discrimination within the meaning of Section
2(d) of the HIV/AIDS (Prevention & Control) Act’ 2017
to the “protected persons” within the meaning of Section
2(s) of the HIV/AIDS (Prevention & Control) Act’ 2017,
shall be reported to this Court through the Registrar
General of the High Court. The compliance report shall
be submitted on the administrative side to the High
Court by the Registrar General, as soon as the same is
received.
58. With the above observations and directions, the present
Writ petition stands allowed. No order as to costs.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
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