Delhi High Court
Mukesh Kumar And Ors vs Indo Tibetan Border Police Force ... on 24 July, 2023
Neutral Citation Number 2023:DHC:5147-DB
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24th July, 2023
+ W.P.(C) 8887/2023 & CM APPL. 33597/2023
MUKESH KUMAR AND ORS ..... Petitioner
versus
INDO TIBETAN BORDER POLICE FORCE AND ANR
..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Ajay Garg, Ms. Tripti Gola & Mr. Arvind Sardana,
Advocates
For the Respondents: Mr. Jitesh Vikram Srivastava, Senior Panel Counsel with
Mr. Deeptiman Yadav, DC/JAG & Ms. Kamlesh Rani,
DC/JAG
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioners seek a direction to the respondents to allow
relaxation of upper age limit and seek grant of minimum three years
age relaxation to all categories for being eligible to appear in
examination/selection process for recruitment to the post of Constable
(driver) in Indo-Tibetan Border Force issued vide advertisement dated
26.06.2023 and further seek a direction to the respondents to fix a cut-
off-date of upper age limit as per vacancy year of 2019, 2020, 2021 &
2022.
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
2. Learned counsel for the petitioners submits that respondents
have issued an advertisement on 26.06.2023 inviting online
applications for the post of Constable (driver). Learned counsel
submits that no selection process was undertaken on account of
pandemic between the period 2019 till subject advertisement and as
such the petitioners who have become overage, as per the
advertisement, have been deprived of an opportunity to participate in
the selection process.
3. Learned counsel for petitioners submits that relaxation of age of
minimum three years is liable to be granted to all categories so that an
equal opportunity of participation is granted to them. Learned
counsel submits that in other appointments, such relaxation of three
years has been granted to the candidates on the ground of the
pandemic of Covid-19.
4. Learned counsel further relies on decision of Supreme Court in
High Court of Delhi Vs. Devina Sharma (2022) 4 SCC 643 as also the
decision of the Co-ordinate Bench of this Court dated 28.01.2023 in
W.P. (C) 19/2022 titled Sachin & Others Vs. Central Reserve Police
Force wherein age relaxation of three years has been granted as a one-
time measure.
5. Per contra, learned counsel for the respondents submits that
respondents are seeking to appoint drivers and the Units of the
respondents are mostly posted on high altitude areas, fitness of a much
higher level is required from the drivers. He further submits that the
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
age limit prescribed for the subject advertisement is 21 to 27 for the
general category. He submits that in terms of various OMs of the
Government and different statutory provisions, relaxation in age has
been given to prescribed categories of individual belonging to SCT/ST
& OBC, Ex-servicemen and Government Servants.
6. Learned counsel, under instructions, further submits that
examination for recruitment of driver is not conducted on an annual
basis but it is normally conducted after 3-4 years, depending on
availability of sufficient number of vacancies as well as the number of
vehicles in the respective Units.
7. He submits that intake of young drivers is necessary as the
drivers have to serve in very harsh extreme climate of high altitude
areas like Leh-Ladakh, Jammu & Kashmir, Uttarakhand, Sikkim,
Arunachal Pradesh and Left Wing Extremism areas etc. and enhancing
the upper age by three years in the rank of Constable (driver) is likely
to affect the morale, physical alertness, fitness of the individual and
would not be in the interest of the organization.
8. No doubt the pandemic was an issue which affected several
recruitment processes and some organizations have taken a view of
granting extension as a 'one-time measure' for the purposes of
recruitment. However, there is no decision of the Government making
an across the board extension applicable to all recruitment processes.
9. In the instant case, respondents are seeking to appoint Constable
(driver) in the respondent force i.e. Indo-Tibetan Border Force. Most
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
of the Units of the said force are stationed for a substantial period of
time in high altitude and extreme area where fitness level is prime
consideration for all individual posted there.
10. An inter-office note dated 13.07.2023 of the Recruitment
Branch of the respondents has been produced and same is taken on
record. DIG (Recruitment) has explained the circumstances in which
the recruitment process could not take place between 2019 to 2022.
11. It is open to the recruiting authority to fix an age limit for the
purposes of recruitment. In the instant case, the rational provided by
the respondent that high fitness level requires that the drivers are
recruited at a younger age for the serving the respondent force is a
plausible rational. Drivers, who are sought to be recruited, are to
serve in very harsh extreme climate and high altitude areas.
Enhancing the age limit for recruitment of such a post is likely to
affect the fitness and performance level of the recruited individuals.
12. It is pointed out by learned counsel for the respondents that the
recruitment for the post of drivers is not an ongoing regular yearly
process and advertisements are issued at a gap of 3-4 years depending
on the vacancy position and availability of vehicles. Since the
recruitment process for drivers is not on an annual basis and is only on
the basis of availability of vehicles and vacancies, petitioners cannot
be permitted to contend that they will be excluded from the
recruitment process because they have become overage. In case there
is no vacancy advertised or sought to be filled on an annual basis,
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
there is no legitimate expectation of an individual to participate in the
selection process. There is a possibility that some individuals may
become overage between one advertisement and another. On that
ground alone, impugned notification cannot be interfered with.
13. Merely because somebody has lost out an opportunity does not
imply that the rational of the respondents in fixing the upper age
should be inferred with or an opportunity should be granted to
petitioners to participate simply because the respondents did not issue
any advertisement for a substantial period of time.
14. Subject advertisement has been issued by the Ministry of Home
Affairs, Government of India and the same Ministry has issued several
other advertisements for other posts in other organisations. Some of
the advertisements which have been placed on record show that the
Ministry has duly considered and granted relaxation for the period of
pandemic. However, for the subject post there is no such relaxation
granted. Presumption has to be drawn in favour of the respondents
that they have duly taken into account the pandemic position and
consciously decided not to grant relaxation for the subject post of
Indo- Tibetan Boarder Police Force.
15. The judgement sought to be relied on the learned counsel for the
petitioner are applicable to the facts for the present case. In Devina
Sharma (supra) the recruitment was to the Delhi Higher Judicial
Services and the Supreme Court had referred to the judgements as
well as the judgment in Malik Mazhar Sultan (3) vs. UP Public
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
Services Commission (2008) 17 SCC 703 which stipulated the time
schedule for conducting recruitment process for judicial posts and held
that the same has to be conducted on an annual basis.
16. In the instant case, there is no annual recruitment process for the
post of Constable (driver) in the ITBP as such the ratio of the said
judgement in Devina Sharma (supra) would not be applicable to the
facts of the present case.
17. The other judgment referred to by learned counsel for
petitioners of the Co-ordinate Bench Sachin (supra) is also not
applicable for the reason that the recruitment in that case was for ASI
(steno), Head Constable (Ministerial) in CRPF. It is not in dispute that
the Units of CRPF are posted not only in high-altitude and high-terrain
areas but are also posted in soft areas as distinct from ITBP where
most of the Units are posted in hard areas. There can be no
comparison between the two posts and the requirement of fitness level
for the said posts.
18. It may also be noticed that the last date for making an online
application is 26.07.2023.
19. Accordingly, we find no ground to interfere with the decision of
the respondents in not granting any relaxation for the period of
pandemic.
20. We find no merits in the petition. The petition is accordingly
dismissed.
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
Neutral Citation Number 2023:DHC:5147-DB
21. Order dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
MANOJ JAIN, J
JULY 24, 2023/dr/swati
Signature Not Verified
Digitally Signed
Signing Date:25.07.2023
17:26:51
