Delhi HC urges mercy, stays transfer of HIV Positive BSF jawan
“Justice to which mercy is alien is no justice at all,” said the Delhi High Court while delaying the transfer of an HIV+ Border Security Force (BSF) jawan from Delhi to Cachar in Assam.
A vacation bench of Justice C. Hari Shankar and Justice Subramonium Prasad also expressed displeasure with the BSF’s decision to oppose the jawan’s voluntary retirement application.
The court ruled on the request of the jawan, who is contesting the Force’s decision to transfer him to a Battalion in Cachar, Assam, near the Indo-Bangladesh border, on June 9, 2021.
The jawan said that as a result of his illness, he is receiving Mega Highly Active Retroviral Therapy at both the base hospital and the All India Institute of Medical Sciences (AIIMS) in New Delhi.
The High Court stated that it was “hopeful that the respondents (BSF) would have taken a more sympathetic approach, given the petitioner’s medical condition; nonetheless, the respondents have chosen to oppose the petition.”
The order further said that it was general knowledge that, because HIV is a progressive illness, the patient’s health normally deteriorates with time. In this context, the jawan mentioned that he had a CD4 level of 215, which is considered borderline between HIV and AIDS.
The Court while staying the transfer observed that: “Justice, it is well settled, has to be tempered wit mercy and compassion.Justice to which mercy is no mercy at all.”
It further referred to Ministry of Home Affairs instructions issued on September 28, 2017, which clearly state that P-3 medical category BSF personnel must be stationed in a location with a humidity level of less than 75% all year and access to specialised treatments nearby.
“The petitioner does not insist on continuing to work in Delhi. He has decided to voluntarily resign in line with the BSF Rules, quite equitably and at the expense of his career,” the High Court stated, suspending the transfer and relocation orders till the next date of hearing on September 6.