Written By – Stuti
The Delhi High Court bench comprising of C.J. DN Patel and J. Jyoti Singh heard the matter of Mr ABC v BSF & Ors. on Wednesday. The bench issued notice to the Border Security Force (BSF) and Central government on a petition filed by a former BSF constable alleging that he was discharged from service after he was found HIV positive. The case has been listed for further hearing on January 12.
Advocate Anuj Aggarwal, representingthe man whose name has been withheld, presented detailed facts before the Bench.
The petitioner had joined the force in April 2017. In a span of three months, he was eventually diagnosed HIV positive and had also contracted abdominal kochs ( a form of TB). He was treated at the BSF hospital and discharged after six months on 31 January, 2018. In December 2018, He was issued a show cause notice opined by the medical board.
However in December 2018, he was issued a show cause notice in the opinion of the medical board. Despite his reply stating the job being his only source of livelihood, he was discharged from the service in April 2019 on the grounds of being physically unfit. His department appeal against the order was also dismissed.
The petitioner argued that the BSF’s order is in violation of Section 3(a) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention And Control) Act, 2017.
A copy of the assessment of an independent health provider wherein it was declared that the petitioner was at significant request of transmuting disease or unfit to perform the duty was not made available. The petitioner was not provided an alternative reasonable accommodation/job in case of him being medically unfit to perform his duty, as required under Section 3 of this HIV Act, 2017.
It added that though the petitioner is HIV positive but he is asymptomatic and fit to perform all duties of a constable.
The petition also challenged Rule 18(Retirement on grounds of physical unfitness) of the Border Security Force Rules 1969 as ultra vires, unconstitutional and violative of Article 14, 16, 21 and 311 of the Constitution of India as well as procedures prescribed in Section 3 of the HIV Act 2017.
“The petitioner is completely unemployed since the date of his illegal termination from service and, despite his best efforts, has not been able to procure any employment whatsoever. It is, therefore, submitted that the petitioner is entitled to be reinstated in service with continuity of service and with full back wages,” the petitioner contended.
Border Security Force’s response is now awaited.