Can't deny job to HIV-positive: Landmark judgment of Madurai bench of Chennai High Court

[Guest guest]

Dear All,

New Year Greetings!

We are happy to share the group members that the Hon'ble High Court has

delivered a landmark judgment, yesterday. This victim who was refused

employment by the govt. transport corporation was referred to our Foundation by

the Virudhunagar District Welfare Society for the HIV positive through INSARD, a

NGO.

TIMES OF INDIA

Can't deny job to HIV-positive: HC

A Subramani, TNN, Jan 5,

2011, 04.32am IST

CHENNAI:

Can a public authority deny employment to a candidate who is HIV-positive? 'No'

is the emphatic answer of the Madras high court.

Justice K Chandru, flaying two state transport

corporation (STC) managements for their " pedestrian understanding of AIDS and

HIV " leading to denial of employment to two driver-aspirants who tested positive

during the medical test, said: " The action of the

state-owned transport corporations in driving the candidates to test for HIV

itself was totally repugnant to the national policy.

Their further attempt to deny employment to them is again not only unwarranted

but also contrary to the dictum laid down by various courts and the policy of

the Union of India. "

The matter relates to two candidates — identified

merely as 'Mr X' and 'Mr Y' — who were sponsored by the employment exchange

for driver posts.

While Mr Y had passed plus two, Mr X had served in

the Army for eight years. In October 2009 and November 2009, they were

considered for appointment and sent to panel doctors for the medical fitness

certificate. After their blood samples tested HIV positive, the doctors said

they were 'unfit' for appointment as drivers.

Interestingly, the blood test was not conducted in

any specialised laboratory; neither was it done with the consent of the

candidates. Also, no prior information or pre-test and post-test counselling was

provided by the laboratory. Without heeding to requests, the doctors forwarded

the 'report' to the transport corporations with findings that they were unfit

for employment.

Responding to the writ petition, the managements contended that the candidates

were HIV-positive and hence not of sound health. There was no fundamental right

guaranteed in the Constitution for being selected as driver, it was further

submitted.

Justice Chandru, expressing shock at the " layman apprehension " of the

authorities, dubbed the incident unfortunate. He said the issue had already been

answered by court decisions all over the world, including the Supreme Court of

India. Quoting extensively from

judgments in the US and South Africa and other courts in India, Justice Chandru

pointed out that the guiding principles of India's

national policy on HIV/AIDS was non-discrimination.

Noting that a test for CD4 count dropping below 350 cells per microlitre of

blood alone could be the scientific basis for turning down candidates, he said,

" This is the standard test adopted by

the Indian Army. " Every HIV-positive case could not be denied employment, he

said.

The judge then directed the managements to employ both the driver-aspirants

within a period of eight weeks as there was no other

disqualification against them.

http://timesofindia.indiatimes.com/india/Cant-deny-job-to-HIV-positive-HC/articl\

eshow/7220200.cms

Regards

S. Syed Ahamed

Foundation for Human Rights and Development

I Floor, Plot No. 241

K.K. Nagar, Madurai-625 020

Tamil Nadu, India

Mobile No. + 91 98438 45404

e-mail: <fohrd@...>