JUDGMENT V. Bhargava, J. - This is an appeal filed by the State of Uttar Pradesh against a judgment of a learned single Judge of this Court allowing a petition under Article 226 of the Constitution. By his judgment the learned single Judge quashed an order of compulsory retirement of the respondent. 2. The respondent, Madan Mohan Nagar, was first appointed in 1931 on one year's probation to the post of the Custodian, Sarnath Museum, Banaras, under the Archeological Department of the Government of India. In 1939 his services were lent to the U.P. Government, and he was appointed on the re-commendation of the Provincial Public Service Commission, as Curator of the State Museum, Lucknow, on a scale of pay of Rs. 250/- to Rs. 850/-. In the year 1953 the State Government decided to upgrade the post of Curator to a post of Director, State Museum, Lucknow, in the U.P. Educational Service (Senior Scale). After upgrading the post, the respondent was appointed to it. Thereafter, the respondent continued in service holding this post of Director, State Museum, Lucknow, until he was compulsorily retired by the order of the Governor dated the 28th July, 1960. The order directed his compulsory retirement with effect from the 1st September, 1960. Before this order was made, the respondent had applied for fixation of his seniority in the U.P. Educational Service (Senior Scale). That was in the month of June, 1954, but that request was rejected on the ground that he was holding an ex-cadre post in the U.P. Educational Service (Senior Scale) and was, therefore, not entitled to have his seniority determined with reference to the officers holding posts in the cadre of that service. The order of retirement dated the 28th July, 1960, purported to be under article 465-A and Note 1 of the Civil Service Regulations. On these facts, the petitioner-respondent approached this Court for the quashing of the order on several grounds. One ground was that the order of his compulsory retirement dated July 28, 1960, amounted to an order of punishment of removal covered by Article 311 of the Constitution, and, since that order had been made without giving him any opportunity to show cause against the action proposed, that order was void. One ground was that the order of his compulsory retirement dated July 28, 1960, amounted to an order of punishment of removal covered by Article 311 of the Constitution, and, since that order had been made without giving him any opportunity to show cause against the action proposed, that order was void. The second ground raised by the petitioner-respondent was that he was not a member of any of the services enumerated in article 349-A of the Civil Service Regulations and consequently the provisions of article 465-A, Note 1 thereto were not applicable to him as their operation was confined to members of the services mentioned in article 349-A. The third ground was that the order impugned had been passed mala fide at the instance of Sri Mohammad Zaheer, who was a Joint Secretary to the U.P. Government in the Department of Cultural Affairs and Scientific Research. 3. The learned single Judge, though allowing the petition of the respondent, did not base his order on any of the three grounds mentioned above. On the first ground about the applicability of Article 311 of the Constitution, the learned Judge was of the view that, though the respondent was given no opportunity to be heard before he was made to retire, it could not be said that there had been non-compliance with the requirements of Article 311 of the Constitution because no such compliance is needed in a case where the decision to retire is founded on a statutory or contractual right and is made in the exercise of some valid power. In this light, the learned Judge proceeded to examine the validity of the rule contained in article 465-A read with Note 1 appended to it, even though its validity had not been specifically challenged in the writ petition. The learned Judge came to the view that article 465-A with its Note 1 was ultra vires Articles 14 and 16 (1) of the Constitution. Thereupon, he held that the rule being invalid the order retiring the respondent compulsorily was void, though without specifically laying down that it was void on the ground of violating the provisions of Article 311 of the Constitution. Thereupon, he held that the rule being invalid the order retiring the respondent compulsorily was void, though without specifically laying down that it was void on the ground of violating the provisions of Article 311 of the Constitution. On the other hand, he proceeded a step further and held that, in the case of the petitioner-respondent, the procedure prescribed by the Civil Service Regulations for taking punitive action of removal or dismissal was not applicable, which implied that in his opinion Article 311 of the Constitution could not be resorted to by the respondent to challenge the validity of the order of his compulsory retirement. The learned Judge was, however, of the view that principles of natural justice required that an opportunity to show cause should have been given to the respondent, and in this case no such opportunity having been given the order of retirement was void. In this connection during the course of arguments by learned counsel, reliance was also placed by the State on the provisions of Article 310 of the Constitution for the dual purpose of urging that the provisions of article 465-A, Note 1, were valid because of being in line with the provisions of Article 310 of the Constitution, and could not be declared void on the basis of Articles 14 and 16 (1) of the Constitution which must be held to be inapplicable to the case of such a rule because of the special provisions contained in Article 310 of the Constitution. The second purpose for which reliance was placed on Article 310 of the Constitution was that, even if rule 465-A and its Note 1 be held to be ultra vires Articles 14 and 16 (1) of the Constitution, the order passed in the case of the respondent should still be held to he valid as being one protected by the provisions of Article 310 of the Constitution under which the Governor could make this order at his pleasure. The learned single Judge rejected all these arguments. 4. The second ground which was taken in the petition by the respondent, that he was not a member of any of the services enumerated in article 349-A of the Civil Service Regulations and consequently article 465-A and its Note 1 did not apply to him, was not accepted by the learned single Judge. 4. The second ground which was taken in the petition by the respondent, that he was not a member of any of the services enumerated in article 349-A of the Civil Service Regulations and consequently article 465-A and its Note 1 did not apply to him, was not accepted by the learned single Judge. Thus the petition was decided in favour of the respondent on two grounds: first, on the ground that article 465-A and Note 1 thereto were ultra vires Articles 14 and 16 (1) of the Constitution, so that the compulsory retirement of the respondent was not under any rule, and secondly, on the ground that the order had been made without giving him an opportunity to show cause, which procedure violated the principles of natural justice. In this appeal before us the decision given by the learned single Judge has been challenged on behalf of the State of Uttar Pradesh, and by the Additional Solicitor-General appearing on behalf of the Union of India in support of the view urged on behalf of the State of Uttar Pradesh. 5. Arguments were addressed to us at great length by the learned Additional Solicitor-General on the scope of Articles 310 and 311 of the Constitution, the applicability of Articles 14 and 16 (1) to cases covered by Article 310 of the Constitution, and the effect of these two Articles on article 465-A and its Note 1 of the Civil Service Regulations. These submissions were made before us in view of the reasons given by the learned single Judge for allowing the petition of the respondent, but later on when we heard Mr. S.N. Kacker, learned counsel for the respondent, we found that it was not at all necessary to go into these questions in this case. The petition of the respondent, in our opinion, should have been allowed on a much shorter and simpler ground, and that is the ground we now proceed to deal with. 6. The ground that we are referring to is the first one mentioned by us as having been raised by the respondent in the petition, viz., that the impugned order had been passed in violation of the provisions of Article 311 of the Constitution and was, therefore, ultra vires. 6. The ground that we are referring to is the first one mentioned by us as having been raised by the respondent in the petition, viz., that the impugned order had been passed in violation of the provisions of Article 311 of the Constitution and was, therefore, ultra vires. The learned single Judge when dealing with this aspect of the case referred to the decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India, A.I.R. 1958 S.C. 36 = 1958 A.L.J. 372 and quoted the principle laid down in that case that, where a permanent servant has a right under the terms of his contract or the rules of his service to remain in service, any order removing him will be deemed to be penal in nature even if the order disclaims any intention to punish. He proceeded to lay down further that "in such cases the removal will be presumed to be penal in nature and Government, before taking any action against the servant, must comply with the procedure laid down by Article 311." Having enunciated this principle, the learned Judge dealt with the case of the respondent by noticing the fact that the respondent was a permanent Government servant when compulsory retirement was inflicted on him and he lost his right to continue in service till he reached the age of superannuation, and that he was given no opportunity to be heard before he was made to retire. Even on these facts, he did not apply Article 311 to the case of the respondent on the ground that the order of his compulsory retirement had been passed under a rule forming part of conditions of service of the respondent. While thus dealing with this matter, the learned single Judge overlooked the important effect of a clause in that order which occurs at the end of it. The order in the case of the respondent mentioned that the Governor had been pleased to make that order in public interest under article 465-A and Note 1 thereto of the Civil Service Regulations. The order in the case of the respondent mentioned that the Governor had been pleased to make that order in public interest under article 465-A and Note 1 thereto of the Civil Service Regulations. It further proceeded to lay down what the order was to be, viz., that the compulsory retirement was being ordered with effect from September 1, 1960, of Sri Madan Mohan Nagar, Director, State Museum, Lucknow, who had completed 52 years of age on July 1, 1960, and 28 years and 3 months of qualifying service on 31st May, 1960. Finally at the end of the order a reason was given by saying "as he has outlived his utility". It will thus be noticed that this order was not an order of compulsory retirement in public interest simpliciter, or an order of compulsory retirement without any reasons. The order purported to contain a specific reason why the retirement had been ordered, and that reason was described as being the fact that he had outlived his utility. In the various cases which came up for decision before the Supreme Court in connection with compulsory retirement, and that Court had occasion to decide whether the order of retirement amounted to an order of punishment under Article 311 or not, the order in question was an order directing compulsory retirement in public interest or on administrative grounds without containing any addition as to the reason for retirement, like the reason given in the case of the respondent. 7. The first of these cases was the case of Shyamlal v. State of U.P., A.I.R. 1954 S.C. 369 = 1954 A.L.J. 324. In that case their Lordships had to consider whether the order of compulsory retirement of Shyamlal under article 465-A and Note 1 thereto of the Civil Service Regulations did or did not amount to an order of punishment under Article 311 of the Constitution. Explaining the law their Lordships held: "There can be no doubt that removal generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer." Having laid down this test, their Lordships then proceeded to examine the validity of the order in the case of Shyamlal on the basis of the language used in that order. In the order in that case, there was a mention that Shyamlal was being compulsorily retired in public interest, but there was no additional clause about Shyamlal having been guilty of any misconduct or about his lacking in ability, capacity, or will to discharge the duties as he should do. Their Lordships in these circumstances had to consider the question whether the mere order of compulsory retirement with the mention that that order was being made in public interest was sufficient to convert that order into an order of punishment of removal under Article 311 of the Constitution. They held that, in the case of compulsory retirement, there is no element of charge or imputation of the nature mentioned earlier. They took notice of the fact that the two requirements for compulsory retirement were that the officer had completed twenty-five years of service and that it was in the public interest to dispense with his further services. They then proceeded to hold that, when an order is made in compliance with the directions in the last sentence of Note 1 to article 465-A of the Civil Service Regulations, no imputation or charge in terms is made a condition for the exercise of the power of compulsory retirement. On this basis, it was held that a compulsory retirement had no stigma or implication of misbehaviour or incapacity. This decision thus interpreted an order of compulsory retirement in public interest as an order containing no stigma or implication of misconduct or incapacity. That principle would certainly have been applicable to the case of the present respondent also, but there is the distinguishing feature that, apart from the mention of public interest in this particular order impugned before us, there was an additional reason specifically noted down for making the order of compulsory retirement, viz., that the respondent had outlived his utility. That principle would certainly have been applicable to the case of the present respondent also, but there is the distinguishing feature that, apart from the mention of public interest in this particular order impugned before us, there was an additional reason specifically noted down for making the order of compulsory retirement, viz., that the respondent had outlived his utility. This outliving of utility by the respondent was not merely the background reason or motive on account of which the Government proceeded to make the order of retirement. What the Government did in the case of the respondent was to mention the outliving of utility by the respondent as the reason for making the order of his compulsory retirement. The compulsory retirement was, therefore, based on it. In the case of Shyamlal also, there had been some charges of misconduct and in fact, before the order of compulsory retirement was made, he had been given an opportunity to explain his conduct. It was, however, found that that opportunity was given not for the purpose of complying with the requirements of Article 311 of the Constitution or as a preliminary to making any order of punishment, but simply for the purpose of enabling the Government to make up its own mind whether his was a suitable case for making an order of compulsory retirement under article 465-A of the Civil Service Regulations. Their Lordships held that, as long as the enquiry was merely to help the Government to make up its mind and was not made the basis of the order of compulsory retirement, it could not be held that the order of compulsory retirement became an order of punishment. In the case of the present respondent, as we have just mentioned above, there is the distinctive feature that the order of compulsory retirement gives, as the reason for making the order, the fact that the respondent has outlived his utility, so that the order of retirement is based on this charge against the respondent. The charge of outliving utility, in our opinion, is a charge of the same nature as a charge of lacking in ability or capacity or the will to discharge the duties. We have earlier quoted from the decision of the Supreme Court in Shyamlal's case to show that the Supreme Court held that in the case of removal the order is based on some such charge. We have earlier quoted from the decision of the Supreme Court in Shyamlal's case to show that the Supreme Court held that in the case of removal the order is based on some such charge. In accordance with that decision, therefore, we have to hold that in the present case the order made against the respondent amounted to an order of punishment of removal. This view of ours is further strengthened by the remarks of their Lordships of the Supreme Court in the subsequent cases relating to this very subject. 8. The next case that we may refer to is that of The State of Bombay v. Saubhagchand M. Doshi, A.I.R. 1957 S.C. 892. In that case the views expressed in Shyamlal's case were confirmed. In Doshi's case also, the order of compulsory retirement was made without including in it any reason which might have cast any stigma or implication of incapacity on Doshi. It was also a case where the order of compulsory retirement was made merely in public interest. When dealing with that case, their Lordships clearly brought out the distinction between cases where the charge of misconduct or inefficiency is the "motive" for making the order of compulsory retirement and cases where the charge is the "basis" of the order of retirement. It was held :- "The fact to be noted is that while misconduct and inefficiency are factors that enter into the accounts where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held and there is no duty to hold an enquiry - is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311(2)." The case of the respondent is clearly covered by the second of the principles laid down here because, as we have mentioned earlier, in the order impugned the Governor proceeded to mention that the order of compulsory retirement of the respondent was being made "as he has outlived his utility". The use of this expression at the end made the reason contained in it the basis of the order of retirement. 9. The next case of compulsory retirement decided by the Supreme Court that may be mentioned is that of P. Balakotaiah v. Union of India, A.I.R. 1958 S.C. 232. In that case the compulsory retirement of a railway servant was ordered under Rule 3 of the Security Rules which permitted such an order being made if in the opinion of the competent authority the servant concerned was engaged in or was reasonably suspected to be engaged in subversive activities or was associated with others in subversive activities in such manner as to raise doubts about his reliability. In that case also, when the order for compulsory retirement was made, the order itself was not based on any finding recorded that the railway servant concerned had done one of the acts mentioned in Rule 3 of the Security Rules. The order was based on the opinion of the competent authority and it was held that the order of compulsory retirement did not amount to an order of punishment. 10. In view of these cases and their applicability to the case of the respondent, it was urged on behalf of the appellant in the appeal before us that, simply because there was a charge of the respondent having outlived his utility as the basis of the order for compulsory retirement, we should not hold that the order amounted to an order of punishment because the respondent by that order was not made to lose any of the benefits which he had already earned prior to that order and all that he lost was the mere right to continue in service up to the age of superannuation. For this purpose, reliance was placed on behalf of the appellant on the circumstance that their Lordships of the Supreme Court in the case of Shyamlal v. State of Uttar Pradesh, A.I.R. 1954 S.C. 369 = 1954 A.L.J. 324 laid down two tests for determining whether an order of compulsory retirement will be an order of punishment of removal or not. One was the test that we have already mentioned earlier, viz., whether the order was based on any charge containing a stigma or implication of misbehaviour or incapacity. One was the test that we have already mentioned earlier, viz., whether the order was based on any charge containing a stigma or implication of misbehaviour or incapacity. The second was the test whether the order had the effect of taking away any benefits from the Government servant which might have already accrued to him. In this connection, their Lordships took notice of rule 49 of the Civil Services (Classification, Control and Appeal) Rules which indicated that dismissal or removal was a punishment because it was imposed on an officer as a penalty and involved loss of benefits already earned. The officer dismissed or removed could get no pension which he had earned. He could be granted a compassionate allowance but that, under Art, 353 of the Civil Service Regulations, was always less than the pension actually earned and was even less than the pension which he would have got if he had retired on medical certificate. Notice was then taken of the fact that an officer who had compulsorily retired did not lose any part of the benefit that he had earned. On compulsory retirement, he would be entitled to the pension etc. that he had actually earned. There was no diminution of the accrued benefit. Further, their Lordships took notice of the argument that compulsory retirement, like dismissal or removal, deprived the officer of the chances of serving and getting his pay till he attained the age of superannuation and thereafter to get an enhanced pension and that certainly should be held to be punishment. Dealing with this argument their Lordships said that it was true that, in that wide sense, the officer might consider himself punished, but there was a clear distinction between loss of benefit already earned and loss of prospect of earning something more. This view was further explained by noticing the fact that in the case of dismissal or removal there is a present and certain loss, so that it is a case of punishment, but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and consequently it could not be regarded in the eye of law as a punishment. It was added that the more important thing to be seen was whether, by compulsory retirement, the officer lost the benefit he had earned as he did by dismissal or removal, and the answer to this must be clearly in the negative. It was, therefore, held that the second element for determining whether a termination of service amounts to dismissal or removal is also absent in the case of termination of service brought about by compulsory retirement. This very principle was further explained by their Lordships in the case of The State of Bombay v. Saubhagchand Doshi, A.I.R. 1957 S.C. 892. In that case their Lordships considered the argument that the principle to be deduced from the observations made in Shyamlal's case should be that "where the retirement involved a stigma or imputation of misconduct or incapacity, then it must be treated as dismissal, and that, on that principle, an order of retirement under R. 465-A must be held to be one of dismissal or removal". Their Lordships in dealing with this argument explained the import of what had been decided in Shyamlal's case and they again brought out clearly the distinction between a case where the order of compulsory retirement is made because of a background motive relating to misconduct or incapacity and a case where the order is made on the basis of a charge of misconduct or incapacity. They also, in the same connection, laid down a second test, viz., the criterion whether the order involves any loss of benefits previously earned or not. It appears to us that in applying these two cases we must keep in view that two different tests were being discussed by their Lordships of the Supreme Court for deciding whether a particular order amounted to an order of punishment of dismissal or removal or not. At no stage in.any of these two cases did their Lordships go to the extent of saying that an order cannot be an order of punishment of dismissal or removal unless both the tests are simultaneously satisfied. In both those cases, the two tests were applied and neither of the two tests came into operation so as to convert the order of compulsory retirement into an order of punishment of dismissal or removal. In both those cases, the two tests were applied and neither of the two tests came into operation so as to convert the order of compulsory retirement into an order of punishment of dismissal or removal. The mere fact that both tests were being taken into account cannot, therefore, in our opinion, be interpreted as containing any decision by the Supreme Court that for an order of compulsory retirement to be an order of punishment both these elements must simultaneously exist. The views expressed in these cases were examined in detail by their Lordships of the Supreme Court themselves in the latter case of Parshotamlal Dhingra v. Union of India, A.I.R. 1958 S.C. 36 = 1958 A.L.J. 372. In dealing with the principles to be applied for determining whether a particular order of termination of service amounts to an order of punishment of removal or dismissal or not, their Lordships held : "It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally, acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment. Again, where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Article 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Article 311(2)." The case of Dhingra was a case of reduction in rank and their Lordships laying down the test for determining whether reduction in rank will amount to a punishment proceeded to hold : "The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression `terminate' or `discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the. kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant, have. not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." These views expressed by the Supreme Court in Dhingra's case make it clear that the two tests envisaged in the earlier cases of Shyandal and Saubhagchand Doshi were two alternative tests, the satisfaction of either one of which would convert an order of termination of service into an order of punishment of removal or dismissal. The termination of service may be either by the Government servant ceasing to hold that post, or by reduction in rank consequent on an appointment or reversion to a lower post, or by compulsory retirement, when also he ceases to continue to work in that post. The two main elements to be seen are whether he had a right to continue in the post and whether he has been visited with evil consequences of being deprived of the benefits already earned. Where, therefore, a Government servant under his terms and conditions of service or under his contract of service has a right to continue in a post and his service is terminated by an order of compulsory retirement on the basis of a charge of misconduct or inefficiency or incapacity, it would be a case of punishment of removal or dismissal, even though there may be no loss of benefits already earned. The other case of punishment of removal or dismissal would be where there may be no charge of misconduct or inefficiency or incapacity forming the basis of the order of termination of service, but the result of the termination by itself is that the Government servant concerned loses the benefits already earned by him. These tests are thus to be applied in the alternative, and, on even one of them being satisfied, the order of termination of service would become. an order of punishment or removal. This view of ours is also in line with a number of decisions given by the Supreme Court in the case of temporary Government servants. Temporary Government servants, when their services are terminated, do not lose any benefits which might already have accrued to them as no such benefits in fact accrue. an order of punishment or removal. This view of ours is also in line with a number of decisions given by the Supreme Court in the case of temporary Government servants. Temporary Government servants, when their services are terminated, do not lose any benefits which might already have accrued to them as no such benefits in fact accrue. The Supreme Court held in their cases also that, if the service is terminated on the basis of a charge casting a stigma or implying inefficiency, the act of termination of service will amount to punishment of removal. The case of the respondent must be held to be very similar. He will not have lost the benefits already accrued to him but he was entitled to continue in service under his service rules. That right was taken away on the basis of the charge that he had outlived his utility which amounted to a charge of his being lacking in capacity to continue to do his work as he was expected to do. 11. Even the other cases of the Supreme Court to which we have been referred, in our opinion, confirms the same principle. In the case of Dalip Singh v. State of Punjab, A.I.R. 1960 S.C. 1305 the same two tests were laid down and applied. Referring to the two tests their Lordships of the Supreme Court held : "The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal." These principles were applied to the case of Dalip Singh and it was held that, in that case, the order of the Raj Pramukh did not purport to be based on a charge of misconduct or inefficiency and it was merely stated that his compulsory retirement was ordered for administrative reasons. The second test also did not affect the validity of the order as it was held that the officer had not lost any benefit that he had earned. The second test also did not affect the validity of the order as it was held that the officer had not lost any benefit that he had earned. It is again to be noticed that in this case also the two tests were separately applied and relief was refused to Dalip Singh when it was found that neither of the two tests was applicable to his case. If the submission made on behalf of the appellant before us were correct that both tests must be simultaneously satisfied, it would have been unnecessary for their Lordships of the Supreme Court to examine whether the second test was or was not satisfied after they came to the view that the first was not satisfied. The need to examine the applicability of both the tests arose only because, if either of the two tests had been satisfied, the order of compulsory retirement would have become an order of punishment of removal. Thus, this case also supports the view we have taken above that even if one test was satisfied viz. that the order of compulsory retirement was made on the basis of a charge containing an implication of incapacity, it became a case of intuition of punishment of removal from service. 12. We may again at this stage mention that at no stage in this case was any plea put forward on behalf of the appellant that the respondent was in fact given any opportunity to show cause as required by Article 311 (2) of the Constitution, and in fact the whole case on behalf of the appellant was that there was no need to give any such opportunity because the order impugned was not an order of removal at all and was an order of mere compulsory retirement which did not attract the provisions of Article 311 (2) of the Constitution. On the view we have arrived at that the language of the order itself makes it clear that the order was an order of punishment under Article 311 (2) of the Constitution, the order becomes void for failure by the State to afford an opportunity to the respondent to show cause against the action which was taken against him of compulsorily retiring him from service and thus terminating his further employment in the post that he was holding. On this ground alone the order of the State Government now impugned is liable to be quashed. 13. The arguments that were advanced with reference to Article 310 of the Constitution, it appears to us, need not be considered at all when we have held that, on the language of the order itself, the order is one governed by Article 311 (2) of the Constitution. It was, at no stage, contended that, if a particular order is hit by the provisions of Article 311 (2) of the Constitution, its validity can still be protected under Article 310 of the Constitution because Article 310 is clearly governed by the overriding provision contained in Article 311 of the Constitution which, as held by the Supreme Court in the case of Parshotamlal Dhingra v. Union of India, A.I.R. 1958 S.C. 36 = 1958 A.L.J. 372, is in the nature of a proviso to Article 310 of the Constitution. In this light, it is quite unnecessary for us to go into the general question whether if an order is made under Article 310 of the Constitution which is not hit by the provisions of Article 311, the validity of that order would have to be tested on the basis of Articles 14 and 16 (1) of the Constitution or not, nor is it necessary for us to go into the question whether rule 465-A and Note 1 thereto of the Civil Service Regulations are ultra wires Articles 14 and 16 (1) of the Constitution. In these circumstances, we refrain from examining the correctness of the views expressed by the learned single Judge on these points, as we do not think that we need decide these points in this appeal when they are not necessary for giving the relief claimed. 14. The result of our decision is that the order of the learned single Judge allowing the petition of the respondent must be upheld, though on a different ground. The appeal, therefore, fails and is dismissed with costs. In view of the fact that arguments in this case had to be heard at some length we direct that, for purposes of assessing the costs, fee of learned counsel for the respondent shall be taken to be Rs. 300/-.