Bombay High Court says denial of permanency to HIV-positive employee violates equality rights

The Bombay High Court has ordered Bombay Hospital to grant permanency to a sweeper who was denied regular status for nearly two decades after being declared HIV-positive, terming the denial “arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.”

Justice Sandeep V. Marne, in a judgment pronounced on December 23, set aside an Industrial Court order dated May 3, 2023, and directed the hospital to declare the petitioner, Kumar Dashrath Kamble, permanent from December 1, 2006, the date of a settlement that regularised 150 temporary employees.

Mr. Kamble, employed since 1994, was initially found HIV-negative in 1999 but declared “unfit” during a medical examination in 2006 under the settlement terms. While his peers were confirmed permanent, he continued as a temporary sweeper until January 2017, when he was regularised on “humanitarian grounds.” His plea for parity was dismissed by the Industrial Court in May 2023.

Justice Marne strongly criticised the denial and the Industrial Court’s approach, “Denial of benefit of permanency to the Petitioner on the ground of his status as HIV+ is clearly arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.”

“If Petitioner could be continued in service for the last 19 long years after being detected HIV+, I do not see any reason why the benefit of permanency needs to be denied to him when his coworkers were made permanent,” the order said.

“What has happened in the present case is that the HIV+ status of the Petitioner is being used by the Hospital to extract the same work from him by paying him lesser wages. “Rather than adopting a pedantic and hyper-technical approach, the Industrial Court ought to have considered the real grievance of the Petitioner in denial of benefit of permanency on account of failure in the medical examination test,” the order read.

The judge added, “Petitioner is a poor sweeper who is wrongfully denied the benefit of permanency on account of his status of being HIV+, and the hospital has extracted the same work from him by denying him the benefits admissible to permanent workers.”

The High Court declared Mr. Kamble permanent from December 1, 2006, but restricted financial benefits to July 5, 2018—90 days before he filed his complaint—citing delay and limitation principles under the MRTU & PULP Act, “Respondent-Hospital cannot be saddled with the financial burden of paying difference in wages for an unduly long period of 12 long years.”

The hospital must pay arrears within three months, failing which interest at 8% per annum will apply, the court said.

Justice Marne referred to the HIV-AIDS (Prevention and Control) Act, 2017, which prohibits discrimination in employment, noting that while its provisions are prospective, its principles cannot be ignored. The court also cited the Allahabad High Court’s ruling in Shailesh Kumar Shukla vs Union of India, which held that HIV status cannot justify denial of employment or promotion.