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Delhi High Court Stays the Order of Transferring HIV+ve Jawan, Says Justice Has To Be Tempered With Mercy

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The Delhi High Court while acknowledging the severity of the disease stayed the order which had relieved the HIV+ Jawan and had instructed him to report to Cachar, Assam in spite of filing an application for voluntary retirement. The Court observed that “compassion must inhere in the approach of every Court which practices equity.

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Delhi High Court

The Petitioner, BSF Jawan, detected HIV Positive

The petitioner is a Border Security Force (BSF) Jawan. In December 2007 he was detected HIV+ and since then he has been posted at Gandhinagar, Kolkata and Delhi. Owing to the onset of the Covid-19 Pandemic he was permitted to work from home.

On June 9th, 2021, an order posting him to the 134 Battalion of the BSF at Cachar, Assam, located on the Indo-Bangladesh Border was served. The petitioner applied Aggrieved by this order, he applied for voluntary retirement. However, the application was returned to him on the ground that there were formal defects.

The petitioner re-applied for voluntary retirement. The applications made by the petitioner were according to the rules applicable to the BSF. The petitioner did not receive any response to his application; instead, he received a movement order relieving him from his duties at Delhi and directing him to report to Cachar, Assam. Aggrieved by this, the petitioner filed a petition.

Arguments before the Court

The petitioner submitted that he had applied for voluntary retirement because

discharging duties would be severely deleterious to the petitioner’s health, and could also imperil his life.

The Counsel for the respondent contended that the petition deserves to be dismissed as the petitioner was aware that his posting at Delhi was for a specific tenure and that he has already been granted an extension.

Additionally, the Counsel also submitted that there were other BSF personnel too who are suffering from chronic diseases and are posted at stations where they do not have regular access to specialist facilities to treat the ailment.

In response, the counsel appearing for the petitioner, brought to the notice of the Court, the guidelines that were issued by the Ministry of Home Affairs (MHA) on 28th September 2017 which laid down the criteria prescribed for the posting of personnel who are persons who have major disablement with limited physical capacity and stamina.

One of the criteria states that personnel who are in the P-3 medical category cannot be posted to places with a high humidity level of 75% around the year.

Delhi High Court’s Observations

The Bench of Justice C. Hari Shankar and Justice Subramonium Prasad observed that the petitioner was not insisting on staying in his post at Delhi; instead, he had applied for a voluntary retirement according to the BSF rules and the procedure.

The Court stated that “We cannot appreciate the insistence of the respondent on the petitioner joining duty at Cachar, in his precarious medical condition, even while keeping the application pending.”

Furthermore, the only submission made by the counsel appearing for the respondent in response to the query of the Court, “whether the place to which the petitioner is posted has a high humidity level of 75%”, was that there is a governmental hospital within 10 kilometres to where he has been posted.

Court’s Decision

The Court observed that “Justice to which mercy is alien is no justice at all.”

Taking note of the fact that the petitioner had been HIV+ since 2007 and the common knowledge that HIV, being a progressive disease will only deteriorate the condition of the petitioner; the Court stayed the order relieving the petitioner from Delhi and directing him to report to Cachar till the next hearing.

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