IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4347 of 2024 Date of Decision: 5.6.2025 _____________________________________________________________________ Rakesh Sharma ……...Petitioner Versus State of Himachal Pradesh and Ors. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. O.P. Sharma, Senior Advocate with Mr. Gurmeet Bhardwaj, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General and Mr. Ravi Chauhan, Deputy Advocate General. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Petitioner herein is aggrieved of order dated 23.12.2023 (Annexure P-6), whereby request made by him to change the candidature of one applicant to other i.e. brother of the petitioner, for compassionate appointment on account of death of his father, has been rejected. 2. Precisely, the facts of the case as emerge from the record are that father of the petitioner late Sh. Vasudev, who was working with respondent as Patwari died on 2.4.2005 in harness. In the same year, elder brother of the petitioner namely Ramesh Kumar applied for appointment of compassionate grounds. In the year 2013, no - 2 - decision, if any, was taken upon the application made by the brother of the petitioner. During pendency of the application before competent authority, elder brother of the petitioner crossed upper age limit of appointment i.e. 45 years, as such, petitioner, who is younger son of the deceased employee filed application (Annexure P-3), praying therein to consider his name in place of his brother for compassionate appointment. Interestingly, w.e.f. 2005 to 2023, respondent department kept on sitting over the matter and suddenly vide communication dated 23.12.2023 (Annexure P-6), rejected claim of the petitioner with remarks that “the change of candidature from one applicant to another at any stage is neither permissible under the policy guidelines of the government nor it happens in general”. In the afore background, petitioner has approached this Court in the instant proceedings, seeking therein direction to the respondents to consider and decide the application made by him in the year 2013 for compassionate appointment on account of death of his father. 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. O.P. Sharma, learned Senior Counsel appering for the petitioner is that once it is not in dispute that application filed by elder brother of the petitioner in the year 2005 was never considered and during subsistence of such application, petitioner herein having realized that his elder brother is going to attain age of 45 years, filed fresh application for - 3 - compassionate appointment on account of death of his father, there was no occasion, if any, for the respondents not to consider the same, rather they ought to have considered the same in terms of policy in vogue at the time of death of father of the petitioner. 3. To the contrary, Mr. Vishal Panwar, learned Additional Advocate General, while referring to the reply filed by the respondents vehemently argued that change of candidature from one candidate to another at any stage is neither permissible under the policy guidelines of the government nor it happens in general. While referring to para-7 sub-clause 2 of the Revised Compassionate Employment Policy circulated on 7.3.2019, Mr. Panwar, states that genuine case for relaxation in upper or lower age limit for providing employment on compassionate ground (in case of his elder brother) may be placed before the Cabinet for its decision. In nutshell, he states that in case elder brother was going to cross upper age limit of 45 years, he should have made representation for relaxation, which could be granted to him by the Cabinet, but in no eventuality, fresh application for compassionate appointment could have been considered during the pendency of the application filed by the elder brother. 4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that there is no dispute that late father of the petitioner was working as Patwari with the respondent, who died in harness in 2005 and immediately - 4 - thereafter, elder brother of the petitioner applied for appointment on compassionate grounds. Specific allegation with regard to pendency of the application w.e.f. 2005 to 2013 in the office of competent authority has not been denied by the respondents, meaning thereby, application filed by elder brother of the petitioner remained pending consideration for good eight years, by which time, he was set to attain the age limit of 45 years and upon realizing that on account of age bar, elder brother of the petitioner may not get compassionate appointment, petitioner being younger son of the deceased employee preferred application for compassionate appointment in the year 2013, but interestingly, even same was not considered for more than ten years. On 23.12.2023, application filed by the petitioner came to be considered and rejected with remarks that the change of candidature from one applicant to another is not permissible at any stage. 5. Though this Court finds no quarrel with the aforesaid rule/instructions issued by the Government of Himachal Pradesh but in the peculiar facts and circumstances, where no decision was ever taken by the respondents on the application filed by the elder brother of the petitioner for good eight years and in the year 2013, elder brother of the petitioner was about to cross the upper age limit of 45 years, there was otherwise no alternative for younger son of the deceased employee, but to apply afresh for compassionate appointment. Had prior to filing of the application by the younger son - 5 - (petitioner) of the deceased employee, respondents rejected the case of brother of the petitioner, they would have been right in contending that second application is not maintainable, but once it is not in dispute that first application filed by elder brother of the petitioner was not considered, rather remained pending till the filing of the fresh application by the petitioner, reasoning assigned in the communication dated 23.12.2013 (Annexure P-6) does not appear to be correct. Though elder brother of the petitioner was fully eligible to be considered for compassionate appointment, but for delay caused on account of non-consideration by the respondents for quite long, he became overage. Since family of the deceased employee was in indigent condition, his second son i.e. petitioner herein, rightly prayed from the respondents to change candidature of his brother to in his name, but such prayer of him came to be rejected for unjustifiable reasons. 6. Moreover, this Court finds that in genuine cases, power lies with the appropriate government for age relaxation. Learned Additional Advocate General attempted to argue that age relaxation, if any, could have been given in the case of elder brother of the petitioner had he applied for the same. He further submitted that option was given to the brother of the petitioner, but he failed to avail the same. Though reply filed by the respondents suggests that option was given to the petitioner, which he failed to avail, but there is nothing on - 6 - record that on afore ground, application made by the petitioner in the year 2005 for compassionate appointment was ever rejected, meaning thereby, during subsistence of the application filed by the petitioner, petitioner herein being second son of the deceased submitted fresh application for change of candidature. 7. Since it is not in dispute that petitioner is son of the deceased employee and application filed by his brother for compassionate appointment, could not be considered on account of the fact that he had become overage, this Court is of the view that reasoning assigned in the impugned order dated 23.12.2023 (Annexure P-6), rejecting the claim of the petitioner is wholly unjustifiable and as such, same deserves to be rectified in accordance with law. 8. During pendency of the petition, petitioner by way of CMP No. 9712 of 2025, placed on record certain documents, which are taken on record, suggestive of the fact that in similarly situate case, candidature of one person was permitted to be changed. If it is so, prayer made by the petitioner for change of candidature ought not have been rejected by the respondents. 9. Consequently, in view of the above, this court finds merit in the present petition and accordingly, same is allowed and respondents are directed to consider the application made by younger son of the deceased employee and decide the same in terms of policy in - 7 - vogue at the time of the death of the deceased employee. No doubt while considering application, if any, filed by the petitioner herein, he shall have to place on record NOC/affidavit, if any, tendered by all the family members, especially his elder brother and mother thereby certifying that they shall have no objection in case compassionate appointment on account of death of their father/husband is given to the petitioner. Since petitioner is fighting for his rightful claim for years together, this Court hopes and trusts that needful shall be done by the respondents, expeditiously, preferably, within four weeks after affording opportunity of hearing to the petitioner. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any. June 5, 2025 (Sandeep Sharma), (manjit) Judge