HIV Act Overrides SHAPE‑I Barrier: Non‑Discrimination and Reasonable Accommodation in CAPF Promotions

Introduction

This judgment arises from three writ petitions before the Delhi High Court challenging denial of promotion and cancellation of appointment in the Border Security Force (BSF) and Central Reserve Police Force (CRPF) solely on the ground of HIV‑positive status. Petitioners Hoshiar Singh and “X” were twice denied advancement under the Accelerated/Mid‑Career Progression (ACP/MACP) schemes because they were placed in “low medical” or SHAPE‑II categories on account of retroviral infection. Petitioner Sachin was enrolled as a Constable (GD) but had his probation terminated after an HIV diagnosis. All three petitions raise a common legal issue: whether the requirement that all combatised personnel be in SHAPE‑I medical category for promotion or retention is permissible as against the non‑discrimination mandate of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (“HIV Act”) and constitutional guarantees.

Summary of the Judgment

The Court consolidated the three petitions and held that categorically denying promotion or terminating service of HIV‑positive personnel violates Section 3 of the HIV Act and Articles 14, 16 and 21 of the Constitution.
It read down paragraph 4.13 of Standing Order 04/2008 (requiring SHAPE‑I for all promotions) so that P2‑category HIV‑positive personnel, who remain fit for most duties, are not automatically excluded.
Petitioners in W.P.(C) 4736/2023 and W.P.(C) 13547/2023 were directed to be reconsidered for promotion by a Review DPC within eight weeks; if found fit, promotions (and seniority/consequential benefits) were to follow within twelve weeks.
In W.P.(C) 4556/2023 (appointment cancelled), the removal order was set aside and the petitioner’s medical status was to be re‑assessed under HIV‑specific categorization within eight weeks; if fit, his retention would be regularized within twelve weeks.

Analysis

1. Precedents Cited

Bishamber Dutt v. Union Of India & Ors. (P&H HC, 2010) – Held that asymptomatic HIV‑positive BSF personnel placed in P2 category are fit for most duties and cannot be denied promotion for that reason alone.
Shailesh Kumar Shukla v. Union of India & Ors. (Allahabad HC, 2023) – Interpreted Standing Order 04/2008 to allow P2‑category personnel for promotion subject to posting restrictions, and read down blanket SHAPE‑I requirement in line with non‑discrimination.
Pancham Singh v. Union of India & Ors. (Uttrakhand HC, 2018) – Directed Government to consider exercising its rule‑relaxation power and Section 50(1) HIV Act “power to remove difficulties” to lift SHAPE‑I barrier for HIV‑positive CAPF recruits.
Devendra Kumar Pant & Ors. v. Union of India & Ors. (SC, 2009) – Clarified that disability per se (including HIV) does not bar promotion unless the disability plus its impact undermines the person’s ability to perform higher duties or risks safety.
Ravinder Kumar Dhariwal & Anr. v. Union of India & Ors. (SC, 2023) – Emphasized the sacrosanct duty of “reasonable accommodation” for persons with disabilities (including HIV), subject only to “undue hardship” or objective safety concerns.
Tinku v. State of Haryana & Ors. (SC, 2024) – Confirmed that state policy cannot be used to perpetuate illegality or override statutory protections.
Air Commodore Naveen Jain v. Union of India & Ors. (SC, 2019) – Upheld policy‑based medical standards but did not address HIV discrimination issues, thus distinguishable.

2. Legal Reasoning

a) Primacy of HIV Act Non‑Discrimination: Section 3 of the HIV Act prohibits denying “employment or occupation” or “benefits, opportunities or advantages” on HIV grounds unless an independent medical opinion demonstrates significant transmission risk or inability to perform the job, and a cost/administrative hardship statement is furnished.

b) Reading‑Down Standing Order 04/2008: While paragraph 4.13 mandates SHAPE‑I for promotion, the Court held that P2‑category HIV‑positive personnel—who remain fit for most duties—must be deemed SHAPE‑I for promotion purposes unless the employer justifies that no reasonable accommodation is possible.

c) Reasonable Accommodation Obligation: Drawing on Dhariwal, the Court stressed that HIV‑positive individuals are entitled to minor workplace adjustments (“reasonable accommodation”) to enable performance of essential functions. A blanket exclusion without assessing accommodation violates both the HIV Act and constitutional equality.

d) Constitutional Backdrop: Articles 14, 16 and 21 guarantee equality, non‑discrimination in public employment and protection of personal liberty and dignity, reinforcing statutory protections against HIV stigma.

3. Impact on Future Cases and Policy

CAPFs must revise promotion and retention policies to align with the HIV Act, conducting individual assessments and documenting undue hardship before excluding HIV‑positive personnel.
Standing orders and SOPs imposing strict SHAPE‑I bars will be read down or re‑notified to incorporate reasonable accommodation clauses and non‑discrimination safeguards.
Other security and government services will follow suit, ensuring HIV‑positive recruits and employees are not summarily invalidated or denied career progression.
Judicial scrutiny will focus on whether administrative or financial hardship justifies exclusion, demanding transparent medical certification and hardship analysis.

Complex Concepts Simplified

SHAPE Categories: Standardized medical grading in CAPFs—SHAPE‑I means fully fit; SHAPE‑II (P2) means fit for most duties except remote postings with no ART support; SHAPE‑V (P5) denotes permanent unfitness.
ACP & MACP: Two upward financial progression schemes granting pay‑grade upgradation after fixed service periods, distinct from cadre promotions which require SHAPE‑I.
Reasonable Accommodation: Minor workplace or duty adjustments (e.g., posting near ART center) enabling HIV‑positive employees to perform essential functions without undue hardship.
Power to Remove Difficulties (Section 50 HIV Act): Enables government to relax or amend rules within two years of enactment to remove any conflict with HIV Act non‑discrimination provisions.

Conclusion

The Delhi High Court has established a landmark precedent that the SHAPE‑I medical requirement for promotion or retention in CAPFs must yield to the non‑discrimination mandate of the HIV Act and the Constitution. HIV‑positive personnel in P2 category—fit for most duties—cannot be summarily excluded. A case‑by‑case assessment, coupled with reasonable accommodation and documented hardship analysis, must guide any decision to deny career progression. This judgment harmonizes public safety requirements with fundamental rights and statutory protections, ensuring that HIV‑positive members of the security forces receive equal opportunity and dignity at work.