AP High Court upholds the fundamental right of HIV positive person to employment

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HIGH COURT OF ANDHRA PRADESH UPHOLDS THE FUNDAMENTAL RIGHT OF HIV POSITIVE

PERSON TO EMPLOYMENT

Recently, a Division Bench of the High Court of Andhra Pradesh pronounced a

judgment upholding the right of an HIV positive person to appointment as Sub

Inspector in Police Department. The right to employment of a person living with

HIV has been asserted by the Higher Judiciary in a number of cases right from

the decision of the Bombay High Court in MX v. ZY in 1997.

This judgment assumes even greater significance in that it recognises the

employment rights of people testing HIV positive in jobs where high physical

fitness is a pre-condition for employment.

The petitioner, a Reserve Police Constable, had applied for the post of

Sub-Inspector of Police (Civil). Though the petitioner qualified both the

physical and written tests and was provisionally selected as Sub-Inspector of

Police, he was later denied appointment on the ground that he had tested HIV

positive. The Police Department relied on Order 70(3) of the A.P.

Revised Police Manual which prohibits the appointment of, otherwise eligible,

HIV positive candidates as Sub-Inspector of Police.

On being denied appointment, the petitioner first approached the Andhra Pradesh

Administrative Tribunal but failed to get any relief. Against the order of the

Tribunal and challenging Order 70(3) of the A.P. Revised Police Manual, the

petitioner filed a Writ Petition before the Andhra Pradesh High Court through

the Lawyers Collective HIV/AIDS Unit. In support, the petitioner adduced medical

evidence that an HIV infected person is healthy, functional and productive

during the asymptomatic period which ranges from 3 to 18 years till the onset

of AIDS. Denial of employment to a person only on the ground of being HIV

positive infringed his right to life and

livelihood itself.

Affirming the petitioner's arguments, the High Court of Andhra Pradesh struck

down the impugned Order 70(3) as violative of the constitutional guarentee of

equality (Article 14) and non-discrimination in public employment (Article 16).

The Court directed the respondents to appoint the petitioner to the post of Sub

Inspector subject to the satisfaction of required standards. The Judgment

reiterates the right of the people living

with HIV to equal opportunity in employment.

Lawyers Collective HIV/AIDS Unit

1st Floor, 63/2, Masjid Road,

Jangpura,

New Delhi - 110 014

Phone - 011 - 2437 7101, 2437 7102, 2437 2237

Fax - 011 - 2437 2236

e-mail - aidslaw1@...