Key Takeaways:
- Bombay High Court ruled that denial of permanency to Kumar Dashrath Kamble was arbitrary and discriminatory.
- The court cited Articles 14 and 16 and the HIV-AIDS (Prevention and Control) Act, addressing HIV discrimination in India.
- Kamble is to be declared permanent from 1 December 2006 but financial arrears are limited to 5 July 2018.
The Bombay High Court has ordered Bombay Hospital to grant permanency to a sweeper who was denied regular status for almost two decades after being declared HIV-positive, calling the denial arbitrary and discriminatory. Justice Sandeep V. Marne set aside an Industrial Court order and directed the hospital to declare Kumar Dashrath Kamble permanent from 1 December 2006, the date when a settlement regularised 150 temporary employees.
HIV discrimination in India: court finds denial unlawful
Mr Kamble, who had worked at the hospital since 1994, was initially found HIV-negative in 1999. Under the 2006 settlement, he was declared unfit in a subsequent medical examination and left out of the cohort of employees confirmed as permanent. While his colleagues were regularised that year, Kamble remained a temporary sweeper until January 2017, when the hospital regularised him on humanitarian grounds. An Industrial Court rejected his plea for parity in May 2023.
Delivering the judgment on 23 December, Justice Marne criticised both the hospital and the Industrial Court for using the employee’s HIV status to deny him the benefits of permanency. The judge noted that Kamble had continued in service for 19 years after the HIV diagnosis and saw no justification for withholding permanent status when his co-workers had been confirmed.
“Denial of benefit of permanency to the Petitioner on the ground of his status as HIV+ is clearly arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India,” the judgement states. The court said the hospital had effectively extracted the same work while paying lower wages to a worker who performed identical duties to permanent staff.
While the High Court declared Kamble permanent from 1 December 2006, it limited financial relief to 5 July 2018—90 days before he filed his complaint—citing delay and limitation principles under the MRTU & PULP Act. The court observed that the hospital could not be made to bear the financial burden of paying difference in wages for an undue period of 12 years. The hospital has three months to pay arrears, failing which interest at 8% per annum will apply.
The judgment refers to the HIV-AIDS (Prevention and Control) Act, 2017, which prohibits employment discrimination against people living with HIV. Although the court acknowledged that certain provisions of that Act are prospective, it said the law’s principles were relevant to the case. Justice Marne also cited a ruling by the Allahabad High Court in Shailesh Kumar Shukla vs Union of India, which held that HIV status cannot justify denial of employment or promotion.
Legal experts said the decision reinforces the principle that medical status alone cannot be used to deprive workers of employment rights. Labour advocates welcomed the ruling as a reaffirmation of constitutional equality and equal opportunity, noting it may influence similar disputes where medical assessments have been applied selectively.
The Bombay High Court’s order highlights the intersection of labour law, constitutional guarantees and health-related discrimination. For workers and employers alike, the judgment serves as a reminder that employment decisions must rest on objective criteria and must not penalise individuals for a protected health condition.
