IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1037 of 2001 MD. BADIUZZAMA, S/O LATE MD. NAZIRUDDIN, R/O VILLAGE-SAKRAMA, P.S. SANHAULA, DISTRICT-BHAGALPUR. ……………………PETITIONER. Versus 1.THE STATE OF BIHAR. 2.THE COMMISSIONER-CUM-SECRETARY, PRIMARY, SECONDARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT BUILDING, PATNA. 3.THE SECRETARY-CUM-COMMISSIONER, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA. 4.THE DIRECTOR, PRIMARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 5.THE DISTRICT MAGISTRATE-CUM-CHAIRMAN, DISTRICT ESTABLISHMENT COMMITTEE, BHAGALPUR. 6.THE DEPUTY COLLECTOR, ESTABLISHMENT, BHAGALPUR. 7.THE DISTRICT SUPERINTENDENT OF EDUCATION, (D.S.E), BHAGALPUR. …………………….RESPONDENTS. ----------- 06/ 28.03.2011 Heard counsel for the parties. There is no dispute that the father of the petitioner died on 19.01.1980, at a point of time when the petitioner was aged about four years (his date of birth being 15.02.1976) and date of death of his father being 19.01.1980. Once this very fact of the date of birth of the petitioner is admitted, there would be no question of considering the case of the petitioner for his appointment on compassionate ground, inasmuch as, in terms of the Circular of the State Government dated 2 12.07.1977, the limitation under the relevant Government policy in vogue at that point of time was only two years. The petitioner, therefore, even after extended period of limitation of five years in 1989 did not acquire majority inasmuch as the petitioner at that point of time was aged about four years in 1980 when his father had died in harness and therefore his application could not have been entertained for appointment on compassionate ground. The petitioner infact became major and thus eligible for appointment only in the year 1994 i.e. after 14 years of death of his father therefore, this Court does not find any error in the impugned decision taken by the authority on 17.01.1999, rejecting the case of the petitioner being disqualified and ineligible on the ground of his being minor at the time of death of his father. This aspect of the matter is well settled by the judgment of the division Bench in the case of Anil Kumar Singh Vs. The State of Bihar & Anr. reported in 1993(1)PLJR 414. Counsel for the petitioner however 3 has made his effort to distinguish the aforementioned division Bench decision by relying on a judgment of the learned Single Judge dated 3.4.2000 in C.W.J.C. No. 289 of 2000 Md. Anwar Sadat Vs. State of Bihar and others. In the considered opinion of this Court, the view taken by the learned Single Judge in the case of Md. Anwar Sadat (supra) in ignorance with the binding precedent of the division Bench in the case of Anil Kumar Singh (supra) must be held per incurium and therefore, this Court would find it difficult to follow the ratio laid down by the learned Single Judge. As with regard to the submission that the mother of the petitioner was eligible in the year 1980 and she could have been appointed, had the respondents rejected the case of petitioner in time, is also wholly misconceived, inasmuch as, the scheme of compassionate appointment itself lays down that only the person seeking appointment has to file an application under the scheme and thus if the petitioner or her mother had 4 consciously decided to file application for employment of only the petitioner without staking claim for appointment of his mother, the Government or competent authority cannot be blamed for not considering the mother of the petitioner. In that view of the matter, a very weak right of compassionate appointment relating to death in harness which took place on 19.01.1980, cannot be now sought to be agitated, especially when the family of the deceased employee has survived for more than last 30 years without such compassionate appointment. That being so, this application is wholly misconceived and is accordingly dismissed. Ranjan (Mihir Kumar Jha, J.)