IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4355 of 2007 DINANATH CHOUDHARY Versus THE STATE OF BIHAR & ORS ----------- 3. 15.4.2010. Heard Mr. Ashok Kumar Singh, learned counsel for the petitioner, Mr. Debanjan Choudhary, Assisting counsel to S.C.-3 and learned counsel representing the Accountant General, Bihar. This writ petition was filed by the husband of Hiramani Devi seeking direction to the respondent authorities for recalculation of the pension and gratuity amounts(s), as also for grant of ACP after counting the service rendered by her as a contingent manual. Brief facts of the matter is that the wife of the original petitioner was appointed as Ward Attendant on 9.7.1974 and was regularized in regular establishment of T.B.Hospital, Koilwar in the district of Bhojpur with effect from 1.7.1988 and she died in harness on 29.8.2004 and whereafter the original petitioner was drawing family pension. The grievance raised by the original petitioner was for counting the services rendered by his wife as Contingent Menual with effect from 2 9.7.1974 until her regularization on 1.7.1988 i.e a period of 14 years. Learned counsel for the petitioner, in support of his contention relies upon three bench decision of this Court passed in C.W.J.C.No.7317 of 2003 (Md. Feku Vrs. The State of Bihar and others) on 11.8.2004 (Annexure-2), C.W.J.C.No.5980 of 2005 (Ram Ishwar Singh vrs. The State of Bihar and ors) rendered on 7.12.2005 (Annexure-2/1) and C.W.J.C.No.5085 of 2005 (Nand Kishore Prasad Vrs. The state of Bihar and others) rendered on 22.1.2010. During the pendency of the proceedings, the original petitioner expired and has been substituted by his legal heirs. Learned counsel for the petitioner submits that the issues advanced on behalf of the petitioner is same and similar to the issues raised in the aforesaid writ petitions and keeping in view the orders passed by this Court in the said writ petitions, the petitioner herein is also entitled to the reliefs prayed in the writ petition. Mr. Debanjan Choudhary, learned Assisting counsel representing the State and its authorities, with reference to the statements made 3 in the counter affidavit, submits that the case of the present petitioner is not the same and similar to the petitioners of the aforesaid writ petitions as in their case, there was no break in service. He, with reference to the statement made in para-6 of the counter affidavit, submits that the deceased employee was absent for 99 days and thus her service was not continuous and which relevant factor has been noted in the order passed in the cases relied upon by the learned counsel for the petitioner. Mr. Choudhary, with reference to the provisions of Rule 61 of the Bihar Pension Rules, submits that admittedly if a continuous service is followed by regularization then an employee becomes entitled for counting of the past services but the case of the deceased employee as raised in the present writ petition is distinguished from such cases as there is an admitted break of 99 days and thus, as her services was not continuous, she was not entitled for counting the past service. The order relied upon by the learned counsel for the petitioner placed at Annexure-2 of the writ petition passed in the case of Md. Feku manifestly has been passed in the back drop of the 4 continuous service rendered by him until his regularization. Indisputedly the relevant factor is missing in the case in hand. On the other hand, the learned counsel for the State further submits that the ACP benefit has since been sanctioned and a letter has been sent to the Accountant General for issuing necessary orders of authorisation vide office memo no.274 dated 28.9.2005. Having regard to the distinguishing feature of the present case where the deceased employee was not in continuous service, I am unable to accept the contentions advanced on behalf of the petitioner and accordingly this writ petition is dismissed. ahk (Jyoti Saran, J.)