IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7615 of 2006 VIJAY KANT TIWARY s/o late Shyam Sundar Tiwary, resident of village- Jasauli, P.S. Kathaiyan, District- Muzaffarpur. Versus 1. THE STATE OF BIHAR . 2. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. ----------- For the Petitioner : Mr.Dilip Kumar Tiwary For the State : Mr. Krishna Ranjan and Mr. Vasant Vikas. 8 12.5.2011 The petitioner by this Writ application challenges the order by which selection and appointment of the petitioner as a teacher by the Regional Deputy Director, Education, has been cancelled. The facts are not in dispute. The petitioner’s father was a teacher and died in harness in the year 1983. The petitioner’s mother had pre -deceased the father and the petitioner was the only son but at the time of death of his father, he was a minor. On attaining the majority, in the year 1986,he applied for compassionate appointment. As per petitioner’s statement, the application was processed but nothing came out it. In 1994, he sent a reminder to the Regional Deputy Director, Education, stating that in 1986, he had applied and till date his case was not considered. The Regional Deputy Director then, in 1985, appointed him as an Assistant Teacher on compassionate appointment. He was paid his remuneration for a couple of months but thereafter he was not paid his remuneration and as such he moved this Court. While the matter was pending in this Court, the petitioner’s appointment was cancelled. That writ petition was accordingly disposed of giving liberty to the 2 petitioner to challenge that order and that is why this writ petition was filed. On behalf of the petitioner , Mr. Dilip Kumar Tiwary, learned counsel places reliance on Circular no. 12754, dated 12.7.1977 of the State Government by which the right of compassionate appointment was introduced by the State Government and in particular clause 4 thereof. The English version thereof is as follows :- “ benefits of this scheme shall ordinarily be available for a period of two years from the date of death of the government servant.” He submits that the State Government advisedly used the expression ordinarily, which applies to the present case. He submits that when his right to seek compassionate appointment arose, he was a minor. He applied immediately upon attaining the majority but that period of two years had expired. He further submits that if this two years period is interpreted rigidly and apply to the present case, it would give rise to absurdity and perversity inasmuch as in relation to people in whose family only minors are left and who are in most urgent need of support would get excluded and to the contrary persons, who had major member available in the family, who could even otherwise make an earn would get a support. I am afraid I cannot go into this question under virtually the same fact. The matter has already been dealt with by a Division Bench and once the Division Bench has spoken, it is not upon for this Court to take a different view. The Division 3 Bench judgment is in the case of Arun Kumar Mishra –v- State of Bihar since reported in 1998 (1)PLJR 4. It may be noted that this Division Bench has been followed by subsequent Division Bench in the case of State of Bihar & ors. –v- Bivekanand Singh since reported in 2009(1)BBCJ 215. In the case of Arun Kuamr Mishra (supra) the facts were virtually the same. The father of the writ petitioner died in 1982 when he was a minor. He applied upon becoming a major in 1986. His appointment having not made, he moved this Court. The writ petition was dismissed but later he applied again. This time the writ petition was entertained. The matter was taken up before a Division Bench in the intra court appeal. This Court held apart from the fact that the second writ petition was barred that even on the fact and the merit of the matter the two years period have expired for whatever reason, the right stood extinguished. Mr. Tiwary, learned counsel for the petitioner submits that State itself realizing the aforesaid absurdity result, in 1989 extended the period for making the application for compassionate appointment to a period of five years and subsequently in 1991 removed the bar altogether. In my view, this subsequent action would not revive the right, which stood extinguished in view of the judgment of Division Bench in the case of Arun Kuamr Mishra. With the aforesaid observation , the writ petition is dismissed. Singh ( Navaniti Prasad Singh, J.)