* THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.15981 OF 2005 % Dated 22-12-2005 # Mr. X, Indian Inhabitant, Vizianagaram, Andhra Pradesh. . …. Petitioner Vs. $ The Chairman, State Level Police Recruuitment Board, Lakadipool, O/o DGP, Hyderabad, Andhra Pradesh and five others. …. RESPONDENTS ! Counsel for the Petitioner: Mr.Anand Grover ^ Counsel for the Respondents: G.P. for Services <GIST: > HEAD NOTE: ? Cases referred AIR 1997 Bombay 406 2 Spl.Civil Appl.No.11766/2000, dt: 17.02.2001 of Gujarat High Court 3 CCT 17/2000 dt: 28.09.2000 of Constitutional Court of South Africa 4 L.C.No.24/98, dt: 10.05.2000, Labour Court of Namibia 5 Appln.No. 3386/1999, dt: 05.09.2005 of C.A.T. Karnataka 6 AIR 1997 SC 1125 7 (2003)6 SCC 581 8 (1979) 1 SCC 380 9 AIR 1960 SC 384 10 (1969)1 SCR 312 11 AIR 1956 SC 520 12 AIR 1962 SC 36 13 (1967)2 SCR 29 14 AIR 1974 SC 1 15 (2001)7 SCC 708 16 (2005)1 SCC 394 17 (1998)7 SCC 676 18 1995 Suppl. 4 SCC 584 19 (1961)2 SCR 931 20 AIR 1997 SC 128 21 (1998)8 SCC 296 22 (2003)6 SCC 611 THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.15981 OF 2005 JUDGMENT: (per Hon’ble Sri Justice Ramesh Ranganathan) Both Sri Anand Grover, learned counsel appearing on behalf of Sri Bhaskar Benny, learned counsel for the petitioner and the Learned Government Pleader for services, appearing on behalf of the respondents, agree that the writ petition itself be finally heard. The writ petition is filed against the order of the A.P. Administrative Tribunal, (hereinafter referred to as the Tribunal), in O.A.No.4174 of 2004 dated 23.2.2005, wherein it was held that in view of Rule 13 of the rules, issued in G.O.Ms.No.315 Home Department dated 13.10.1999, read with Order 70(3) of the A.P. Revised police manual prohibiting entry of persons, having HIV positive, into government service, the action of the respondents in not sending the petitioner for training, on his provisional selection as a stipendiary trainee cadet sub-inspector, was legal and valid. Among the reliefs sought for in this writ petition, is for a declaration that Order 70.3 of the Revised A.P. Police Manual Part I, Volume I, is in violation of Articles 14, 16 and 21 of the Constitution of India. Facts, to the extent necessary for this writ petition, are that on 7.12.2003 a notification was issued calling for applications from eligible candidates for the post of stipendiary cadet trainee sub-inspectors of police (civil). The petitioner, an armed reserve police constable, applied for the said post, since there was 14% reservation in favour of persons working in the police department. The petitioner qualified in the physical tests, completed the 5 km run within the stipulated 25 minutes and was thereafter permitted to appear in the written examination. Pursuant to the written examination held on 29.02.2004, the petitioner was provisionally selected as a sub-inspector of police. The 3rd respondent, vide letter dated 23.6.2004, directed the petitioner to be present, along with his certificates, on 24.6.2004, for verification and medical examination. Petitioner submits that he came to know later that he was not sent for training and was not appointed, as he had tested HIV sero positive, that he continues to perform his duties as an armed reserve police constable satisfactorily despite his HIV positive status and that he is fit to perform the duties assigned to a sub-inspector of police also. The petitioner, and another applicant, approached the A.P. Administrative Tribunal and filed O.A.Nos. 4174 and 4210 of 2004 respectively. Before the Tribunal, the respondents herein relied on Order 70(3) of the A.P. Revised Police Manual which requires candidates to undergo HIV test and renders persons with HIV positive ineligible for recruitment/appointment. The A.P. Police (Stipendiary Cadet Trainee) Rules, made in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, prescribe the qualifying standards for appointment in the police force. While several factors such as colour blindness, squint, morbid conditions of eye, knock knees etc., are among the disqualifications, the rules do not prescribe HIV as a disqualification. It is under Order 70(3) of the Revised A.P. Police Manual that this condition, of persons infected with HIV being rendered ineligible for appointment, is prescribed. Though the vires of Order 70(3) of the A.P. Revised Police Manual was not under challenge before the Tribunal, the petitioner would seek a declaration from this Court that Order 70(3) is in violation of Articles 14, 16 and 21 of the Constitution of India. Petitioner contends that a person, though found HIV sero positive, would be fit to perform normal functions for long durations throughout the asymptomatic period, and it is only in the last stage (known as AIDS) that a person may be unfit to perform the functions or duties in his/her employment. According to the petitioner a person’s job not only provides him or her with daily sustenance but also helps to define his or her life and that most people, who are HIV positive, are fully capable of carrying out their job responsibilities and find comfort in continuing their employment, that persons with HIV positive would not put other employees at risk and as long as an HIV infected person is able to perform his job he should be treated as any other employee. A counter affidavit is filed, on behalf of respondents 1 to 4, by the Chairman, State Level Police Recruitment Board wherein reference is made to the fact that the notification dated 17.12.2003 was issued pursuant to the A.P. Police (Stipendiary Cadet Trainee) Rules issued in G.O.Ms.No.315 dated 13.10.1999 and amended in G.O.Ms.No.48 dated 24.2.2001. It is admitted that the petitioner was provisionally selected for the post of stipendiary sub- inspector (civil) and that the rules require antecedent verification and medical examination of the provisionally selected candidates before finalizing their selections. It is stated that the petitioner underwent medical examination, along with other provisionally selected candidates, and as per the medical report given by the Resident Medical Officer, King George Hospital, Visakhapatnam, the petitioner is HIV reactive. Reference is made to Order 70(3) of the Revised A.P. Police Manual Part I, Volume I, approved in G.O.Ms.No.201 dated 8.9.2001, whereby all candidates selected provisionally as stipendiary cadet trainees, by direct recruitment, are required invariably to undergo medical examination for the HIV test and to produce the certificate and that Order 70(3) renders persons with HIV positive ineligible for appointment. Reference is also made to the automax message dated 6.7.2004 whereby all unit officers were informed that candidates having HIV positive should not be finally selected and should not be sent for training and that the provisional selection of such candidates should be cancelled. While admitting that the special rules, issued in G.O.Ms.No.315 dated 13.10.1999, are silent regarding HIV positive being a disqualification, it is stated that since there is a specific provision in this regard in the A.P. Revised Police Manual, such a provision has necessarily to be taken into account and read along with the special rules in G.O.Ms.No.315 dated 13.10.1999, as long as there is no contradiction between the two. It is contended that persons infected with HIV would become weak and not be able to effectively perform the rigorous duties required of a police officer, and since the HIV test was not prescribed, at the time when the petitioner underwent selection for being appointed to the post of armed reserve police constable, it was not known as to whether he was HIV positive at the time of such selection itself. It is contended that mere selection does not confer any right for appointment and since the present rules prohibit appointment of persons with HIV positive, the petitioner cannot be appointed. It is contended that the guidelines issued by the Ministry of Health and Family Welfare, Government of India, relating to HIV infected persons, are general guidelines and cannot be applied for recruitment and appointment in the police department where persons appointed are required to satisfy the high standards of physical fitness and health prescribed. Reference is also made to certain press reports indicating that the armed forces have also decided to make HIV test mandatory for candidates to enter the service. Since the constitutional validity of Order 70(3) of the Revised A.P. Police Manual was not the subject matter of challenge before the Tribunal and is put in issue for the first time in the present writ petition filed before this Court, and inasmuch as the counter affidavit, filed on behalf of respondents 1 to 4, is silent on this issue, this court, even after conclusion of submissions of both the Counsel on 15.11.2005, adjourned the matter by a week to enable the respondents to file an additional counter affidavit. Since no additional counter affidavit was filed, even by 28.11.2005, the writ petition, including the challenge to the vires of Order 70(3) of the A.P. Revised Police Manual, is being decided on the basis of the material available on record. Sri Anand Grover, learned counsel appearing on behalf of Sri Bhaskar Benny, learned counsel for the petitioner, would contend that the object of excluding persons with HIV positive, as a class, has no rational nexus with the object sought to be achieved i.e., the fitness of persons to discharge the duties and functions of officers in the police force. Learned counsel would submit that the petitioner had qualified in the physical endurance test and written examination and was found fit to discharge the duties of a sub-inspector of police. Learned counsel would state that the presumption that all persons infected with HIV are unfit, to discharge the onerous duties of police officers, has no rational basis and is not based on medical evidence. According to him, since the asymptomatic period ranges from 3 to 18 years, it must be presumed that at least for a period of 18 years, during the asymptomatic period, HIV infected persons would be more than able to effectively discharge their duties. While conceding that persons unfit, physically or mentally, to discharge the duties of an officer in the police establishment, cannot be appointed or continued in service, learned counsel would urge that periodical medical examination, once a year, to determine the fitness of HIV infected persons to continue in police service would ensure that the object of having persons fit to discharge the duties, prescribed for officers in the police force, is achieved. Learned counsel would submit that even among persons with HIV positive there are different categories, some of whom are in the early stages of the asymptomatic period, and others in the final stages and have AIDS. According to the learned counsel, it is only persons with AIDS who may not satisfy the high standards of physical and mental fitness required of police officers, and that grouping all HIV infected persons as one single class, though they are not all similarly situated, is an arbitrary and irrational classification in violation of Articles 14 and 16 of the Constitution of India. Learned counsel would submit that Order 70(3) of the Revised A.P. Police Manual is also discriminatory as only persons infected with HIV positive are excluded from consideration for employment in the police force while persons suffering from other debilitating diseases such as T.B., Cancer etc., who may, at advanced stages of such diseases, also not be physically fit to discharge the duties required of a police officer, are not excluded from consideration. According to the learned counsel while the stigma attached to this disease (HIV) is on account of the fear that it is contagious, it is in fact caused only under four circumstances and does not otherwise spread to others. In terms of the physical and mental abilities of the persons infected, this disease, according to the Learned Counsel, compares favourably with other diseases, such as T.B. and Cancer. Learned Counsel would submit that excluding persons infected with HIV from consideration for appointment by direct recruitment, while permitting persons, already appointed, to continue in service despite their being infected with HIV, is discriminatory and is in violation of Articles 14 and 16 of the Constitution of India. Learned counsel would also refer to the National Aids Control Organization (NACO), Ministry of Health and Family Welfare, Government of India guidelines in support of his submission that persons infected with HIV cannot be excluded from consideration for employment under the State. Learned counsel would submit that the petitioner successfully completed the prescribed physical endurance test and the written examination, that as an armed reserve police constable he has been and as a sub-inspector he will be able to perform his duties, that HIV is treatable and with a healthy and nutritious diet a person need not even start taking medicines for 10 to 15 years and thereafter medicines are available to prolong the healthy and functional life, that the prohibition, under the Revised A.P. Police manual, rendering persons, with HIV positive, ineligible for appointment is only a guideline, has no statutory basis and cannot be enforced in law, that NACO guidelines of the Central government will prevail over the guidelines issued by the State government in the A.P. Police Revised Manual, that Rule 12 of the A.P. State and Subordinate Service Rules, relating to qualifications for direct recruitment, provides that a person should be of sound health, active habits and free from bodily defect or infirmity rendering him unfit for such service and since the petitioner is of sound health and does not suffer from any bodily defect or infirmity, he is fit to perform his duties as a stipendiary trainee cadet sub-inspector of police, that formation of opinion by the respondents, that the petitioner was unfit, is without any basis since he had successfully completed the physical tests, that being tested HIV positive would not by itself render the petitioner unfit for employment and that disabling all persons, with HIV positive, from being considered for appointment as sub-inspectors violates their fundamental right to life and liberty under Article 21 and to pursue an occupation of their choice under Article 19(1) (c) of the Constitution of India. Learned counsel would contend that there is no rational nexus between the policy enunciated in Order 70(3) of the A.P. Revised Police Manual and the object sought to be achieved and since the object of the rules is to have able persons in the police force, the petitioner, having satisfied the prescribed criteria, is a person fit to take up appointment as a sub-inspector of police. According to the learned Counsel, the petitioner is medically fit to perform his duties and does not pose a significant risk of transmitting HIV to any other person in the work place and that grouping all HIV sero positive persons together as a class as being unfit, apart from being discriminatory is arbitrary and irrational. Learned counsel would place reliance on MX of Bombay Indian Inhabitant v. M/s ZY, Chhotubhai Shambai Salve v. State of Gujarat, Jacques Charl Hoffmann v, South African Airways, N Applicant v. Minister of Defence and R.Ramesh Rao v. The Superintendent of Police, Shimoga. On the other hand, Learned Government Pleader for services submits that since the vires of Order 70(3) of the A.P. Revised Police Manual was not in issue before the A.P. Administrative Tribunal, it was not open for the petitioner to raise this plea for the first time before this Court and that it is not open for this Court, in the absence of adjudication by the Tribunal in this regard, to examine this issue. Learned Government Pleader would place reliance on L.Chandra Kumar v. Union of India. Before examining the rival contentions, it is necessary to refer to the rules, regulations and guidelines governing appointment of sub-inspectors in the Police Establishment of the State of Andhra Pradesh. Rule 12 of the A.P. State and subordinate service Rules relates to qualifications for direct recruitment and reads thus:- Qualifications for direct recruitment:- (1)(a). No person shall be eligible for appointment to any service by direct recruitment unless he satisfies the selection authority as well as the appointing authority, that: i. he is of sound health, active habits and free from any bodily defect or infirmity rendering him unfit for such service; ii. his character and antecedents are such as to qualify him for such service; iii. he possess the academic and other qualifications prescribed for the post; and iv. he is a citizen of India: Provided that no candidate other than a citizen of India; may be appointed except with the previous sanction of the State Government and except in accordance with such conditions and restrictions as may be laid down. Such sanction shall not be accorded unless the State Government are satisfied that sufficient number of citizens of India, who are qualified and suitable are not available; v. No person shall be eligible for direct recruitment if he is less than 18 years of age and unless otherwise specified in the special or adhoc rules and if he is more than 28 years of age as on the 1st day of July of the year in which the notification for selection to the relevant post, category or class or a service is made: In exercise of powers conferred under the proviso to Article 309 of Constitution of India, the A.P. Police (Stipendiary Cadet Trainee) Rules were made in respect of appointment by direct recruitment of members of various non- gazetted executive ranks in the police department in the government of Andhra Pradesh. These Rules were notified in G.O.Ms.No.315, Home (Police-C) dated 13.10.1999. Rules 13, 14 and 15 thereof are relevant for the purpose of the present case and read as under: “Rule 13: General: 1. The stipendiary Trainee shall be subject to the regulations of the Police Training Manual and other administrative instructions issued from time to time which are not covered under the Special Rules. 2. Nothing in these rules shall apply to the personnel who were appointed by direct recruitment in the Andhra Pradesh Police Subordinate Services, A.P. Special Armed Special Police Service and Andhra Pradesh Police (Finger Print Bureau/Police Transport Organization/Communications), Service prior to the issue of these rules. 14. Visual Standard: Visual Standards for the selection of all categories of Stipendiary Trainee Cadets mentioned in these rules shall be as follows: a. Standard-I Right Eye Left Eye (i) Distant Vision 6/6 6/6 (ii) Near vision 0/5 0/5 Standard – II Better Eye Worse Eye Distant Vision V V. Without glasses not below 6/24 and after Correction with glasses not below 6/12 Near Vision – Read 0.8 Read – 1 b. Each eye must have a full field of vision c. Colour blindness, squint or any morbid condition of the eye or lids or either eye, knock-knees, pigeon chest, flat foot, varicose veins, Hammer toes, fractured limbs and decayed teeth shall be deemed to be a disqualification 15. Saving: Nothing contained in the Andhra Pradesh Police Subordinate Service Rules issued in G.O.Ms.No.1263, G.A. (Rules) Department, dated 26.8.1959 and as subsequently amended in G.O.Ms.No.270, Home Department, dated 2.4.1990 shall affect the operation of these rules regarding recruitment, academic qualification, age and Physical standards prescribed for various categories included in these rules. The Government, vide G.O.Ms.No.261, Home (Police-C) Department dated 8.9.2001, approved the revised A.P. Police Manual, subject to the condition that the manual does not supersede any statutory rules, service rules, regulations and other orders issued by the government from time to time, that if there is any contradiction or conflict, the latter would prevail, and that the manual envisages only guidelines and procedures in accordance with the provisions of laws, Acts and Rules for all police officers. Order 70.1 relates to verification of antecedents and 70.2 and 70.3, which relate to medical examination, read as under: “Medical examination: 2. All those found suitable in antecedents verification shall be sent to the Superintendent of the Headquarter Hospital of the District. In respect of Units located in Hyderabad City, they shall be sent to the Superintendent of Osmania General Hospital or Gandhi Hospital or Police Medical Officer, Amberpet for medical examination. Arrangements should be made in advance at these hospitals so that the medical examination is completed in one spell spread over a few days depending on the number of candidates. While forwarding the cadets for medical examination, the appointing authority/officer nominated by the SLPRB should forward proforma indicating the prescribed standards of medical fitness applicable to each category of the candidates and obtain Certificates of fitness with reference to these standards. The specifications for medical fitness are in Annexure-4. 3. All candidates selected as Stipendiary Cadet Trainees by direct recruitment shall have to undergo medical examination at their own cost for screening of H.I.V. test invariably and produce the certificate. The candidates having H.I.V. positive will not be eligible for appointment. Before examining the merits of the challenge to Order 70(3) of the A.P. Revised Police Manual and to the order of the A.P. Administrative Tribunal in O.A.No. 4174 of 2004 dated 23.02.2005, it is necessary to take note of certain facts, relating to the Human Immuno-deficiency Virus (HIV), and the Acquired Immuno – Deficiency Syndrome (AIDS). From the moment scientists identified HIV and AIDS, social responses of fear, denial, stigma and discrimination have accompanied the epidemic. Discrimination has spread rapidly, fuelling anxiety and prejudice against the groups most affected, as well as those living with HIV or AIDS. The global epidemic of HIV/AIDS is associated with stigma, repression and discrimination, as individuals affected by HIV have been rejected by their families, their communities, and the society at large. Human immunodeficiency virus (HIV) is a condition found in some human beings which predisposes a person with HIV to, and culminates in, acquired immunodeficiency syndrome (AIDS) within a period, on an average, of approximately 12 to 18 years. The immune system, a defence against diseases caused by foreign organisms, consists of white cells, including T-helper cells (also known as CD4 cells), in the blood as well as in the lymphatic systems. The immune system, recognizes foreign organisms (antigens) and to defend against the foreign bodies, manufactures anti-bodies which attack and destroy the antigen. In the case of persons found to be HIV positive, a virus known as the Human Immuno Deficiency Virus enters the human body and destroys the immune system itself, replicating in and later destroying the T Helper (CD-4) cells produced by the immune system. AIDS is the terminal stage of HIV infection. AIDS, however, is not a single disease but a collection of illness which affects people infected with HIV. Infection with the HIV virus initiates a process which causes a slow, steady destruction of those cells known as CD4 T-Lymphocytes. These cells, an important component of the human immune system, become progressively weaker, destroying the body’s ability to fight infections and certain cancers. When the CD4 T-4 Lymphocytes cell count is severely depleted, the immune system becomes so weak that the body succumbs to certain infections and cancers. Collectively these are called “opportunistic diseases”. When this occurs the person is said to have AIDS. If a person tests HIV positive, that does not mean that such person has AIDS nor does it mean that such person is terminally ill or will become terminally ill soon. It may take several years, for the HIV to completely damage the immune system. Information placed before this Court, on behalf of the petitioner, would show that within 3 to 8 weeks about 15% patients develop Acute Seroconversion illness with symptoms like flu, etc. and thereafter is a long asymptomatic period which can last between 3 to 18 years. While 3% of HIV positive patients are said to develop AIDS after three years of the entry of the virus, 20% do so within five years, 50% within 10 years, 65% within 12 years and 85% within 18 years. As at present it cannot be predicted with certainty, either by clinical, biochemical or immunological methods, as to who will develop AIDS and