INDIA BUSINESS WORLD - FEBRUARY 2007
The Month that was ...

HIV TEST NOT MANDATORY FOR EMPLOYMENT, GOVT TELLS SC

THE Centre has told the Supreme Court that a mandatory testing for HIV/AIDS as a precondition for employment will be discriminatory and counterproductive. The apex court is hearing a petition moved by the state of Andhra Pradesh which has said that as per its revised Police Manual rule, HIV positive candidates are not eligible for appointment. The state has challenged the high court's setting aside its revised Order 70 (3) of the Police Manual as being violative of Article 14 (Equality before law) and Article 16 ( Equality of opportunity in matters of public employment) of the Constitution.

The Centre's stand, in the form of an affidavit, came in response to the notice issued by the Supreme Court on January 11, 2007. In its notice, the apex court had said that "considering the importance of the issues involved, it would be appropriate to have the view of the Union of India".

The latter, in its affidavit, said there should be no discrimination against an HIV positive person in matters of employment, and that they should be put on a par with other members of the society. In the armed and police forces, however, HIV testing may be carried out voluntarily with the provision of pre and post-test counselling, the results of which should be kept confidential.

Andhra Pradesh, on the other hand, maintains that it is mandatory for persons to undergo HIV tests for recruitment into its police force as per its rules. The state is contesting the Andhra Pradesh high court ruling saying that no person can be denied employment solely on the basis of having tested positive for HIV.

The centre has informed the apex court that its stand on a very crucial issue has been taken after considerable thought. "The government feels that there is no public rationale for mandatory testing of a person for HIV/AIDS. On the other hand, such an approach could be counterproductive as it may scare away a large number of suspected cases from being detected and treated," said the affidavit filed on behalf of the Ministry of Health and Family Welfare.

Zeroing in on the constitutional right to equality, the affidavit said an HIV positive person should be guaranteed equal rights to education and employment. "HIV staus of a person should be kept confidential and should not in any way affect the rights of a person to employment, his or her position at the workplace, marital relationship and other fundamental rights," the affidavit stated.

THE Supreme Court has ruled that officers facing disciplinary proceedings could be provisionally included in promotion lists. Justice S B Sinha and Justice Markandey Katju have set aside the order of both the Central Administrative Tribunal and Madras high court, which had said that pending departmental proceedings, officers should be ineligible for promotion. "Under the promotion regulations, an officer who is included in the zone of consideration has to be considered by the selection committee even if disciplinary proceedings are pending against him," said Justice Katju allowing an appeal of the Union Public Service Commission. Overturning the tribunal order, which was upheld by the high court, the bench said that the names of such officers could be included provisionally in the select list, if they are otherwise found suitable for inclusion. The commission had said that two officers of the state cadre, Shenabagamurthy and T Srinivasan, were included provisionally in the select list of 1998 for promotion into the Indian Forest Service subject to their clearance in pending disciplinary cases, and their inclusion was in consonance with promotion regulations. It was argued that the names of such officers were included in terms of the proviso to Sub-Regulation (4) of Regulation 5 of the Indian Forest Service Regulations, 1966. The court said, "the findings of the high court and tribunal are without noticing (sic) the provisions of the statutory Regulations, in accordance with which the selection committee prepared the select list. Hence, in our opinion these orders are vitiated."