Centre Perpetuated Discrimination Against HIV Positive CRPF Personnel By Not Amending Standing Order, Recruitment Rules: Gujarat High Court

The Gujarat High Court declared provisions of a 2008 Standing Order and CRPF Assistant Commandant (Ministerial) Recruitment Rules 2011 as "ultra-vires" to the Constitution and the 2017 HIV/AIDS (Prevention & Control) Act, for being discriminatory to HIV/AIDS positive persons in CRPF in matters of promotion. 

In doing so the court expressed its disappointment with the Centre for not aligning its standing order and 2021 recruitment rules in consonance with the 2017 Act calling it a "sorry state of affairs".

The court remarked that respondent authorities including the government had "perpetuated discrimination" by not making amendments to the Standing Order and the recruitment Rules which prescribe blanket restriction for promotion of persons who are not assigned Shape -1 medical category, specifically HIV/AIDS +ve personnel. As per the 2008 standing order Shape-1 category is stated to be a pre-requisite for promotion.

The court passed the order in a plea by a woman alleging discrimination in promotion to higher posts in CRPF despite meeting all other eligibility criteria, solely on the ground of being an HIV/AIDS+ve person. 

No amendments till date

A division bench of Chief Justice Sunita Agarwal and Justice DN Ray in its order noted that HIV/AIDS (Prevention & Control) Act 2017 completely prohibits "discrimination" against a "protected person" i.e., HIV/AIDS positive persons, in employment or occupation.

It said:

"The denial or discontinuation or unfair treatment in relation to employment is clearly prohibited under Section 3...With the commitment made by the Parliament to the people of India suffering discrimination at the hands of employers or any other person, with the enactment of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017 with effect from 20.04.2017, there was an imminent requirement to amend the Rules and Regulations as also the Standing Order prevailing in the matter of governing service conditions of CRPF personnel. No such exercise has been conducted till date..."

The bench noted the arguments of respondents–which includes the Union of India–that Rule 5 of 2011 Recruitment Rules are framed to ensure that the persons who are in combat forces have to be in perfect medical state and reliance on HIV/AIDS Act' 2017. It was argued that the CRPF Act, Rules and Standing Order operate in a very specialised field which require special provisions.

The court said:

"This type of response where the validity of the statutory provisions and rules framed are subject matter of challenge being violative of Articles 14, 16 and 21 of the Constitution of India, cannot be appreciated. The affidavit dated 25.03.2025 jointly filed on behalf of respondents no. 1 to 3, without bringing any specific response of the Union of India inspite of the specific order dated 12.02.2025 passed in the present petition highlighting the importance of the matter, is really disappointing"

The bench referred to Delhi High Court's decision in which had "read down" clause 4.13 of the Standing Order No. 04/2008 insofar as HIV Positive personnel are concerned.

For context, the Delhi High Court had in Hoshiar Singh vs. Union of India (2025) held that once medical condition of the HIV personnel is confined only to his/her placement for the performance of the duty, it should be considered as SHAPE-1, and such persons cant be denied promotion only because "technically" they are not in the SHAPE-1 Medical Category because of them suffering from HIV.

Due to inaction by Ministry, HIV/AIDS +ve CRPF personnel faced discrimination

The bench observed that respondents had resorted to the 2008 Standing Order and accorded "repeated discrimination" to HIV/AIDS +ve persons employed in CRPF by responding that Standing Order was made in "consultation with the Ministry of Home Affairs" and is "binding in nature". 

The court remarked that no efforts seem to have been made to bring the Standing Order and the Rules governing the services of CRPF personnel in line with the 2017 Act so as to remove "discrimination" against the "protected persons" within the meaning of act.

The bench said that nothing was brought to its notice regarding any efforts made by the MHA, as there was no response by the Union on the validity of the Rule 5 of the Rules' 2011 and the offending clauses of the Standing Orders, which were under challenge. 

"This case, thus, presented a very sorry state of affairs at the ends of the respondent authorities including the Ministry of Home Affairs, Government of India in perpetuating discrimination by not bringing necessary amendments in the Standing Order No.04/2008 and the recruitment/appointment Rules which prescribe blanket restriction for promotion or appointment to persons who are not kept in medical category Shape I, specifically HIV/AID +ve personnel. As a result of this inaction on the part of the concerned Ministry, the HIV/AIDS +ve CRPF personnel have faced consistent discrimination, which is sought to be justified with the response in their affidavit that the Standing Order No.04/2008 have been framed in consultation with the Ministry of Home Affairs and being in place, are binding in the matter of governing services of the CRPF personnel"

Discrimination to be completely removed by amendments

It thus declared Clause 4.13 of 2008 Standing Order dated 18.11.2008 and Rule 5 of the 2011 Recruitment Rules as "ultra vires to Articles 14, 16 (equality in employment) and 21 (right to life) and being in contravention of the HIV/AIDS (Prevention & Control) Act' 2017 insofar as the matter of employment (appointment and promotion) of the HIV/AIDS +ve persons are concerned in the Central Reserve Police Force (CRPF)".

The bench said that the other clauses 4.15 to 4.17 of the Standing Order are also required to be suitably amended to remove any kind of discrimination, which denies or withholds any benefit, opportunity or advantage from any person or category of persons being HIV/AIDS +ve persons.

"Such a discrimination is to be completely ruled out from the provisions of the Recruitment Rules' 2011 as well as the Standing Order by bringing suitable amendments as early as possible," the court added and directed compliance of its order to be reported to the Registrar General. 

Protected persons can't be denied promotion

The court further perused Rule 55 of the Central Reserve Police Force Rules, and said that it indicated that all promotions shall be governed by merit and other things being equal, seniority shall count for promotion. It then said,

"On a comprehensive reading of the Standing Order No. 04/2008, once it is clear that even the personnel categorised in S-2, H-2, A-2, P-2 category are fit for all duties not requiring much stress, it is difficult to comprehend that promotion can be denied to "protected persons" being HIV/AIDS +ve persons on the ground that they are not in Shape I category. The blanket directions contained in Clause 4.13 of the Standing Order 04/2008 and Rule 5 of the Rules for promotion to the post of Assistant Commandant (Ministerial) Group A in CRPF are clearly discriminatory, being violative of Articles 14, 16 and 21 of the Constitution of India as also the provisions contained in the HIV/AIDS (Prevention & Control) Act' 2017".

The court said that clause 4.13 of the Standing Order and Rule 5 of the 2011 Recruitment Rules in CRPF, make it clear that applying the medical category Shape-I as an "essential (pre-requisite) condition for promotion" of the force personnel in all groups/ranks/cadres and thus denying promotion to HIV/AIDS +ve persons amounts to arbitrary exercise of powers by respondents. 

The court thereafter said:

"It seems that HIV/AIDS +ve persons are being treated in the force as the persons suffering from illness of permanent nature and, as such, they are either being declared unfit by DPC even though they are otherwise fit for promotion or not even included in the list placed before the DPC for consideration for promotion on the ground that they do not fall in Shape-I category. This is what has exactly happened with the petitioner herein"

The bench directed the respondent authorities to grant promotion to the petitioner to Inspector (Ministerial) with effect from the date her junior(s) were promoted. It further said that she shall also be considered for promotion to Assistant Commandant (Ministerial) by placing her in the gradation list along with her juniors and a special Departmental Promotion Committee be conducted to consider her candidature.

The plea was allowed.

Case title: X vs Union of India and Others

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 125