The Bombay High Court has held that denying permanency to a long-serving workman solely on the ground that he was HIV positive was arbitrary, discriminatory and violative of the constitutional guarantees of equality and equal opportunity in public employment. The Division Bench, presided over by a judge of the High Court, was addressing a writ petition filed by a sweeper employed by a major hospital in Mumbai who had worked continuously since the early 1990s. The petitioner’s name had been included in a list of temporary workmen deemed eligible for permanency under the terms of an industrial settlement, but when he underwent a medical examination as part of that process, he was found to be HIV positive and declared medically unfit. As a result, he was denied the benefit of permanency despite performing the same duties as his colleagues, who were subsequently made permanent. The High Court noted that the petitioner continued to carry out his work with no impediment arising from his HIV status and that he worked alongside his co-workers who had already been regularised. The court emphasised that such differential treatment, based solely on the petitioner’s HIV status, was discriminatory and hostile to constitutional values, entitling him to the benefit of permanency that had been denied. The court observed that the denial of permanency constituted discrimination expressly prohibited under the HIV and AIDS (Prevention and Control) Act, which forbids discrimination against HIV-positive persons in matters of employment. In scrutinising the case, the High Court rejected the view of the Industrial Court, which had earlier dismissed the petitioner’s complaint on technical grounds of res judicata, arising from a Memorandum of Settlement that had dealt with permanency. The High Court found that the Industrial Court had failed to consider the substantive grievance—that the petitioner had been denied permanency because of his HIV status—and instead adopted a hyper-technical approach that ignored the real issue before it. The High Court reiterated that when a workman continues to discharge the same duties as his co-workers without any hindrance, his medical condition cannot be used as a ground to deny him the benefit of permanency while requiring him to perform the same work for lower wages. The court held that such denial amounted to hostile discrimination, contrary to constitutional values of dignity and equality, as reflected in Articles 14 and 16 of the Constitution. The matter arose after the petitioner, having been excluded from permanency in 2006 because of his HIV status, continued in service for many years. It was only in 2017, following the intervention of a district AIDS control society, that the petitioner was granted permanency prospectively. Aggrieved that he had not been made permanent from the original date when eligible, the petitioner had approached the Industrial Court seeking a declaration of permanency from the date on which he was initially denied the benefit and consequential monetary entitlements. When the Industrial Court dismissed the complaint, the petitioner filed the writ petition before the High Court, challenging the denial of his rights.
In its judgment, the Bombay High Court also addressed the question of arrears arising from the grant of permanency from the year 2006 onwards. The court noted that although the petitioner was entitled to be declared permanent from that date, the principle of delay and laches would have to be considered in assessing entitlement to monetary benefits for the entire period. The High Court observed that the petitioner had not raised the grievance promptly after the denial of permanency, allowing more than a decade to pass before approaching the court with the claim. In applying the principle of delay and laches, the High Court held that while the declaration of permanency would operate from the earlier date, the petitioner’s entitlement to monetary benefits would be limited. Accordingly, the court directed that actual monetary benefits attributable to the grant of permanency would be calculated from a period commencing ninety days prior to the filing of the writ petition. The court ordered the hospital to pay all admissible arrears within three months of the order, and in the event of default, directed that interest at a specified rate per annum would be payable on the amount due.
The High Court’s ruling underscored that discrimination against an employee on the basis of his HIV status, in circumstances where he was fit to discharge duties, was not permissible and violated fundamental constitutional safeguards. It clarified that the right to permanency, once recognised and denied due to impermissible grounds, could be vindicated through judicial review, and that relief could extend to consequential benefits subject to equitable principles such as delay and laches. The judgment highlights that constitutional protections extend to ensure that employees living with HIV are not deprived of employment benefits solely due to their health status when their ability to perform duties is unimpaired. (Based on reporting of High Court judgment.)
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