Punjab-Haryana High Court
Bhishamber Dutt vs Union Of India & Ors on 6 December, 2023
Neutral Citation No:=2023:PHHC:155558
CWP-25250-2013 1 2023:PHHC:155558
110
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-25250-2013
Date of Decision:06.12.2023
BHISHAMBER DUTT ......... Petitioner
Versus
UNION OF INDIA & ORS ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Amtiaz Sandhu, Advocate for
Mr. Nilesh Bhardwaj, Advocate
for the petitioner.
Ms. Anita Balyan, Senior Panel Counsel
for the respondents- UOI.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of order
dated 07.07.2011 (Annexure P-6) and order dated 03.07.2013 (Annexure
P-12) whereby petitioner has been denied promotion to the rank of ASI
(GD).
2. The petitioner was recruited as Constable (GD) on
11.07.1987. On 21.01.1992, he was promoted to the rank of Lance Naik.
The next promotion was to the post of Naik (GD). The petitioner was
empanelled for promotion vide order dated 16.11.1995, however, he was
not promoted as he was found HIV positive. The petitioner preferred
CWP No.5153 of 2001 which came up for consideration before a
Coordinate Bench of this Court. Vide judgment dated 11.11.2009, the
petition was allowed and respondents were directed to promote the
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petitioner to the post of Naik (GD) w.e.f. 12.12.1995 i.e. the date when
juniors to petitioner were promoted. The relevant extracts of the
judgment dated 11.11.2009 are reproduced as below:
"This fact has not been disputed in the reply filed. The
Government instructions reproduced here-in-above
and the policy of the Government of India clearly
provides for continuance of HIV Positive personnel in
the job in Para Military Forces, except those falling in
unfit category. From the reply of the Minister of State
for Ministry of Defence in the Rajya Sabha and the
Government instructions, no room is left to say that
mere HIV Positive itself is not sufficient to deny
service or even promotion to a member of the Para
Military Forces. To the contrary, the service and
promotions are protected in such cases where the
ailment is Asymptomatic. The petitioner also appeared
in person before this Court today. He appears to be
quite young, hale and hearty and apparently, a healthy
person. In any event, he has been retained in service.
Even though he was detected HIV Positive in the year
1995, but he continues to be in service till date. There
is no reason to deny him the promotion.
In view of the, above, this petition is allowed.
Respondents are directed to promote the petitioner to
the post of NK (GD) w.e.f. 12.12.1995, the date when
persons junior to him were promoted. He shall be
entitled to all the consequential benefits, including the
emoluments of the promotional post, seniority etc. and
to be considered for further promotion, if any."
3. Learned counsel for the petitioner submits that petitioner is
entitled for promotion to the post of ASI (GD), however, claim of the
petitioner has been rejected vide order dated 03.07.2013 (Annexure P-
12). The respondent in view of order dated 11.11.2009 passed by this
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Court in the case of petitioner itself as well as order dated 05.07.2023
passed by this Court in CWP No.14495 of 2021 titled as Kamaljit Singh
Vs. Union of India were bound to extend benefit of promotion to the
petitioner.
4. Faced with the judgment dated 11.11.2009 passed by this
Court in CWP No.5153 of 2001 and order dated 05.07.2023 passed by
this Court in Kamaljit Singh (supra), learned counsel for the respondent
expressed her inability to controvert the applicability of aforesaid
judgments to the facts of the present case.
5. In the wake of afore-cited judgments, the petition stands
disposed of with a direction to respondents to consider claim of the
petitioner for promotion as per his entitlement.
( JAGMOHAN BANSAL )
JUDGE
06.12.2023
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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