Can't deny job to HIV-positive: HC Justice K Chandru

CHENNAI: Can a public authority deny employment to a candidate who is
HIV-positive? 'No' is the emphatic answer of the Madras high court.

Justice K Chandru, flaying two state transport corporation (STC) managements
for their "pedestrian understanding of AIDS and HIV" leading to denial of
employment to two driver-aspirants who tested positive during the medical
test, said: "The action of the state-owned transport corporations in driving
the candidates to test for HIV itself was totally repugnant to the national
policy. Their further attempt to deny employment to them is again not only
unwarranted but also contrary to the dictum laid down by various courts and
the policy of the Union of India."

The matter relates to two candidates - identified merely as 'Mr X' and 'Mr
Y' - who were sponsored by the employment exchange for driver posts.

While Mr Y had passed plus two, Mr X had served in the Army for eight
years.In October 2009 and November 2009, they were considered for
appointment and sent to panel doctors for the medical fitness certificate.
After their blood samples tested HIV positive, the doctors said they were
'unfit' for appointment as drivers.

Interestingly, the blood test was not conducted in any specialised
laboratory; neither was it done with the consent of the candidates. Also, no
prior information or pre-test and post-test counselling was provided by the
laboratory. Without heeding to requests, the doctors forwarded the 'report'
to the transport corporations with findings that they were unfit for
employment.

Responding to the writ petition, the managements contended that the
candidates were HIV-positive and hence not of sound health. There was no
fundamental right guaranteed in the Constitution for being selected as
driver, it was further submitted.

Justice Chandru, expressing shock at the "layman apprehension" of the
authorities, dubbed the incident unfortunate. He said the issue had already
been answered by court decisions all over the world, including the Supreme
Court of India. Quoting extensively from judgments in the US and South
Africa and other courts in India, Justice Chandru pointed out that the
guiding principles of India's national policy on HIV/AIDS was
non-discrimination.

Noting that a test for CD4 count dropping below 350 cells per microlitre of
blood alone could be the scientific basis for turning down candidates, he
said, "This is the standard test adopted by the Indian Army." Every
HIV-positive case could not be denied employment, he said.

The judge then directed the managements to employ both the driver-aspirants
within a period of eight weeks as there was no other disqualification
against them.