Denial of Permanency to HIV Positive Employee

Source: Bombay High Court

Why in News?

Justice Sandeep V. Marne of the Bombay High Court in the case of Kumar Dashrath Kamble v. Bombay Hospital (2025) held that denial of permanency to a workman solely on the ground of HIV-positive status is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India, 1950(COI).

What was the Background of Kumar Dashrath Kamble v. Bombay Hospital (2025) Case?

• The petitioner was employed as a sweeper with Bombay Hospital since 1994.
• The petitioner's name was included in the list of temporary workmen eligible for permanency.
• During medical examination under the settlement, the petitioner was detected as HIV positive and declared medically unfit.
• The petitioner was denied permanency solely on the basis of HIV-positive status.
• Despite the denial, the petitioner continued to perform the same duties as colleagues who were made permanent.
• In 2017, after intervention by the Mumbai District AIDS Control Society, the petitioner was granted permanency prospectively.
• The petitioner approached the Industrial Court seeking declaration of permanency and consequential benefits from 2006.
• The Industrial Court dismissed the complaint, leading to the filing of the present writ petition.

What were the Court's Observations?

• The Court held that the Industrial Court adopted a hyper-technical approach in applying the principle of res judicata and failed to examine the real grievance of denial of permanency solely due to HIV status.
• The Court noted that merely because a Memorandum of Settlement dated 1 December 2006 had been arrived at, the petitioner was not precluded from raising the issue of denial of permanency.
• The Court observed that the petitioner's ailment never came in the way of discharge of his duties and that he had continued to work for nearly two decades after being detected HIV positive.
• The Court emphasized that when a workman continues to discharge the same duties as co-workers without any impediment, his HIV status cannot be used as a ground to deny permanency while extracting the same work for lower wages.
• The Court stated that such denial amounts to hostile discrimination and is contrary to constitutional values of equality and dignity.
• Referring to the HIV and AIDS (Prevention and Control) Act, 2017, the Court noted that discrimination against HIV-positive persons in matters of employment is expressly prohibited.
• On the issue of arrears, the Court held that the principle of delay and laches would apply, as the petitioner slept over his rights for over 12 years.
• The Court set aside the Industrial Court's order and directed Bombay Hospital to grant permanency to the petitioner with effect from 1 December 2006.
• Applying the principle of delay and laches, the Court restricted actual monetary benefits to a period commencing 90 days prior to the filing of the complaint.
• The Hospital was directed to pay all admissible arrears within three months, failing which interest at 8% per annum would be payable.

What is Human Immunodeficiency Virus (HIV)/AIDS?

About:

• HIV is a virus that attacks the immune system, primarily damaging CD4 cells (white blood cells), weakening the body and making it vulnerable to infections and cancers.

Transmission:

• Occurs via direct contact with infected bodily fluids (blood, semen, breast milk, vaginal fluids) like unprotected sex, shared needles, or unsterilized tattooing. It is not spread through casual contact.

Symptoms:

• Early signs include fever and rash. Later stages may involve swollen lymph nodes, weight loss, and diarrhea. Severe HIV can lead to opportunistic illnesses such as tuberculosis, meningitis, and cancers like lymphoma.

Treatment:

• There is no cure. However, lifelong daily Antiretroviral Therapy (ART) effectively controls the virus.

HIV and AIDS (Prevention and Control) Act, 2017:

• The HIV and AIDS (Prevention & Control) Act, 2017 is a central legislation protecting and promoting the rights of persons infected with and affected by HIV and AIDS.
• The Act came into force on September 10, 2018 with the objective to prevent and control the spread of HIV and AIDS and for reinforcing the legal and human rights of persons infected with and affected by HIV and AIDS.
• It also seeks to protect the rights of healthcare providers.
• The Act addresses stigma & discrimination and strives to create an enabling environment for enhancing access to services.
• It provides for diagnostic facilities related to ART and opportunistic infection management to people living with HIV and AIDS.
• The Act also provides for a robust grievance redressal mechanism in the form of Ombudsman at the State level and Complaints Officer at the establishment level aiming to provide speedy redressal.

What are Articles 14 & 16 of the COI?

Article 14 of the COI: Equality Before Law

• Two-Part Provision: Article 14 contains two distinct but complementary concepts.
  • Equality before law (negative concept)
  • Equal protection of the laws (positive concept)
• Equality Before Law: Prohibits discrimination and ensures no person is denied equal treatment before the law within Indian territory.
• Equal Protection of Laws: Requires the State to give special treatment to persons in different situations to establish equality among all.
• Core Principle: Equals must be treated equally, while unequals must be treated unequally to achieve true equality.
• Scope of Application: Extended to all persons, including:
  • Citizens and foreigners
  • Statutory corporations
  • Companies
  • Registered societies
  • Any other type of legal person

Article 16 of the COI: Equality of Opportunity in Public Employment

• Primary Guarantee: Ensures equality of opportunity for all citizens in matters of employment or appointment to any public office.
• Prohibition of Discrimination: Prevents the State from discriminating on grounds of:
  • Religion
  • Race
  • Caste
  • Sex
  • Descent
  • Place of birth
  • Residence
• Special Provisions Permitted: The State has autonomy to grant special provisions for:
  • Backward classes
  • Under-represented States
  • Scheduled Castes (SC) and Scheduled Tribes (ST)
  • Local candidates for certain posts
• Religious/Denominational Exceptions: Reservation of posts for people of a certain religion or denomination in religious or denominational institutions is not deemed illegal.
• Economically Weaker Sections (EWS) Reservation: Article 16(6), added by the 103rd Amendment in 2019, enables the State to provide up to 10% reservation in public employment (and education) for Economically Weaker Sections.