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Allahabad High Court says cancellation of appointment of a person due to their sexual choices/preferences is vindictive & in violation of Navtej Singh Johar judgment

In the case of P vs. State of U P And 2 Others, Writ A. No. 8399 of 2020, the Allahabad High Court on 2nd February 2021, said that cancellation of appointment of a person based on their sexual choices / preferences is vindictive and in Violation of Navtej Singh Johar judgment and directed the District Commandant of Home Guards, Bulandshahar to take the petitioner back in service with immediate effect.

A petition was filed by P in Allahabad High Court stating that the appointment of the petitioner to the post of Home Guard was cancelled on account of some video of the petitioner which was made viral by someone. It appears that in this video the petitioner was engaged in public displays of affection with another person of the same sex. The cancellation of appointment on grounds of the individual’s sexual orientation was challenged.

The Bench of Justice Sunita Agarwal relied on Navtej Singh Johar v. Union of India reported in (2018) 10 SCC 1, where it was held that the sexual orientation of the person is his individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned. The Apex Court had also held that any display of affection amongst the members of the LGBT community towards their partners in the public, so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception.

The Judge noted that the assertion in the Counter Affidavit filed by the officer who had passed the order of cancellation shows his perception – wherein, the sexual orientation of the petitioner was stated to be indulgence in untoward activity.

It was held that the cancellation of appointment is vindictive and in violation of the observations in Navtej Singh Johar. On 2 February 2021, the Allahabad High Court directed the District Commandant of Home Guards, Bulandshahar to take the petitioner back in service with immediate effect. The Court also ordered that the petitioner should be entitled to all admissible dues and the honorarium be paid regularly as and when the same falls due.

– Adv. Shivangi Prasad, Corporate Lawyernb External Member & Trainer Head – Legal & Compliance, Partner POSH at Work & Aakriti Chokhani, Advocate & Associate, POSH at Work

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