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Petition against discrimination in employment under the article 16 of the Constitution: XZ vs. Union of India

Date : 16/07/2010

Discrimination against those living with HIV/Aids has been found in various public and private sectors in India. This includes dismissing employees from service as soon as the employer knows about their HIV positive status, even though they can live a normal and physically active life for an indefinite period.

The petitioner is an HIV positive person. He was dismissed from service in the Army in December 2001 and since then he has not held any other employment, save for a short period when he found employment with a private security firm.

The Army qualified his health status as a medical category P5 “gross limitation in physical capacity and stamina”. However, the medical report reveals that he is only HIV positive and does not have AIDS.

An HIV positive person cannot die from the infection and can live a normal healthy life on receiving appropriate healthcare. In this case the petitioner was, and remains, capable of performing his duties to the army in his post as a Clerk, General Duty, with the rank of Havaldar. Therefore the dismissal was not justified under the Army rules.

HRLN took up the case and filed a writ petition in High Court of Jabalpur in March 2007 seeking the recognition of the appropriate health status of the petitioner and his capacity to work normally. Under article 16, the petition urges equal opportunity for those in public employment. Further, it requests that the army rules be reconsidered and made compatible with this principle.

Under the article 136 of the Constitution of India, in August 2007 HRLN sought special leave against the wrongful order passed by the High Court of Jabalpur that did not make any distinction between the HIV positive status and AIDS.

This is an ongoing litigation. It is hoped that as an outcome of the case, the Supreme Judicial authorities will make an effort to focus on the needs of people living with HIV or AIDS relating to their conditions of employment and the many forms of discrimination they are subjected to.

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