JUDGMENT : ( 1. ) PETITIONER was appointed Income Tax Inspector in the department of Income Tax on 4-2-1949. He was later on confirmed against this post. On 18-9-1958 he was promoted as officiating temporary Income tax Officer in Class II service. He was, however, not confirmed as Income tax Officer nor was permitted to cross efficiency bar in that grade. Petitioner made a visit to Kashmir, where he stayed with an assessee and presumably at his (assessees) cost. On this charge, an inquiry was held against the petitioner. Disciplinary Authority found him guilty and by order dated 15th november, 1969, imposed upon him penalty of reduction of his pay for four years. The petitioners appeal against this order before the Central Board of direct Tax of New Delhi succeeded and order passed by the Disciplinary authority was set aside. It was found that although the petitioner stayed with an assessee during his visit to Kashmir, the charges could not be proved beyond doubt. The petitioner then continued to serve as Income Tax Officer class II. By order dated 22/23-12-1975 passed by Commissioner of Income-Tax, M. P. (Appropriate Authority) (Annexure M), the petitioner was compulsorily retired from service in exercise of powers conferred under Fundamental Rule 56 (j) (Central ). The order recites that an amount equal to three months pay and allowances shall be paid to the petitioner. The petitioner was paid a sum of Rs. 2705 along with the order directing his compulsory retirement. A sum of Rs. 970 was further paid to the petitioner on 24-1-1976 during the pendency of this petition. The petitioners representations against his compulsory retirement did not bear any fruit. Petitioner then has come up before this Court and challenges the order of his compulsory retirement by this writ petition under Article 226 of the Constitution of India. ( 2. ) FIRST contention raised by Shri Nair, learned counsel for the petitioner, is that Fundamental Rule 56 applies only to permanent employees and since the petitioner was only officiating against the Class II post and was not thus "in Class I or Class II service", action could not be taken against him under Fundamental Rule 56 to compulsorily retire him from the post of income Tax Officer, Class II, against which post he was only officiating. He tried to support his submission by a decision of the Delhi High Court in K. R. Tahiliani v. Union of India and others, (Civil Writ No. 1311 of 1975 of Delhi High Court decided on the 23rd May 1977. ). We are unable to accept this contention advanced by the learned counsel. Fundamental Rule 56 in so far as is relevant for the purposes of this case is reproduced below :- "f. R. 56 (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. (e) A Government servant in Class IV service or post shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: provided that a Class IV employee of the Secretariat Security Force who initially enters service on or after the 15th day of September, 1969, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. (j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice; (i) if he is in Class I or Class II service or post and had entered government service before attaining the age of thirty-five years, after he has attained the age of fifty years; (ii) in any other case after he has attained the age of fifty-five years; provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966. (k) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years if he is in Class I or Class II service or post, and had entered Government service before attaining the age of thirty-five years, and in all other cases after he has attained the age of fifty-five years; provided that ;- (a) Nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966 and (b) it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. " Ordinarily a Government servant shall retire after the attainment of age of fifty-eight years in accordance with the Fundamental Rule 56 (a ). Sub-rule (j) of Fundamental Rule 56 creates an exception. It clothes the appropriate authority with an absolute right to retire any Government servant in class I or Class II service or post after he has attained the age of fifty years in case he had entered the Government service before attaining the age of thirty-five years. Before exercising such a right the competent authority should form an opinion that it is in public interest to so retire a Government servant. This sub-rule also envisages that such compulsory retirement should be by giving a notice of not less than three months in writing or three months pay and allowances in lieu of such notice. A reading of sub-rule (a) and sub-rule (j) of Fundamental Rule 56 shows that when a Government servant is retired from service, it is immaterial which post he was holding at the time of retirement. Equally immaterial is the capacity in which that post was held. There is nothing in Fundamental Rule 56 (a) to indicate that on attainment of the age of 58 years he shall be retired from his substantive post only. All that it says is that the Government servant shall be retired from service on attainment of the age of fifty-eight years irrespective of fact whether at that time he was temporary, officiating or permanent. Sub-rule (a)envisages retirement from service. All that it says is that the Government servant shall be retired from service on attainment of the age of fifty-eight years irrespective of fact whether at that time he was temporary, officiating or permanent. Sub-rule (a)envisages retirement from service. Sub-rule (j) permits retirement after the attainment of age of fifty years and before 58 years under certain circumstances and in the manner provided therein. We fail to see any reason why sub-rule (j) cannot be made applicable to any temporary or officiating government servant in the same manner as would apply sub-rule (a ). In k. R. Tahiliani v. Union of India, the learned single Judge while holding that fundamental Rule 56 (j) would not apply to a case of Government servant who did not belong to Class I or Class II service or permanently hold such a post, has laid emphasis on the use of the word "in" appearing in clause (i)in sub-rule (j) of Fundamental Rule 56. In the opinion of the learned Judge deciding that case a concept of retirement would be wholly foreign for a temporary Government servant and, therefore, in his opinion the Fundamental Rule 56 (j) could apply only to a permanent Government servant in class I or Class II service. With due respect to the learned Judge, we find ourselves unable to agree with the view taken. We have already shown above that Fundamental Rule 56 (a) would apply to all classes of Government servant-temporary, officiating or permanent and we see no reason to restrict the scope of Fundamental Rule 56 (j), as has been done by the Delhi High court. We are of opinion that sub rule (j) shall apply to an officiating or temporary Government servant also holding a Class II post. ( 3. ) LEARNED counsel for the petitioner then urged that if applied to officiating or temporary Government servant, Fundamental Rule 56 (j) (ii)can be misused. According to the learned counsel, it shall give a handle to the appropriate authority to discriminate. We do not agree. Sub-rule (j)requires an appropriate authority to first form an opinion that retention of government servant after he has attained the age of fifty years or fifty-five years but before fifty-eight years is in the public interest. It is the formation of such opinion that clothes the authority with a right to exercise powers under Fundamental Rule 56 (j ). Sub-rule (j)requires an appropriate authority to first form an opinion that retention of government servant after he has attained the age of fifty years or fifty-five years but before fifty-eight years is in the public interest. It is the formation of such opinion that clothes the authority with a right to exercise powers under Fundamental Rule 56 (j ). The contention of the learned counsel, therefore, is without any foundation. Learned counsel then submitted that fundamental Rule 56 lays no guidelines for its application. In absence of guidelines, according to the learned counsel, instructions issued from time to time by the Government shall be binding. He referred to us certain instructions for application for Fundamental Rule 56 (j ). Relying upon instruction No. 3 (iii) learned counsel urged that since the petitioner was being compulsorily retired on the ground that he was not found suitable to continue on his officiating post, he should not have been made to retire from his service. The relevant instruction reads as follows : " (3) In amplification of the instructions referred to above, it is here by clarified that the aforesaid rules should not be used- (i) * * * (ii) * * * (iii) On the ground that the Government servant may not be suitable to continue in his officiating post or for promotion to a higher post for which he might be eligible after his attaining the age of 50/55 years, or completing 30 years service, as the case may be. " These instructions do not advance the petitioners case any further. The petitioner is being retired from service as it was not in public interest to retain the petitioner in service, any further. It has not been demonstrated nor it is the case of the Department that the petitioner is being retired as he was not found suitable to continue in his officiating post as Income-Tax officer, Class II. Reference made by the learned counsel to certain Newspaper reports reflecting that certain Income-Tax Officers were compulsorily retired due to inefficiency or other reasons is wholly irrelevant. The contention raised by the learned counsel thus holds no water. ( 4. Reference made by the learned counsel to certain Newspaper reports reflecting that certain Income-Tax Officers were compulsorily retired due to inefficiency or other reasons is wholly irrelevant. The contention raised by the learned counsel thus holds no water. ( 4. ) SHRI Nair, developing his arguments further on this aspect of exercise of powers under Fundamental Rule 56 (j), submitted that before action to premature retirement of a Government servant is taken, a review committee ought to examine the case of the Government servant concerned six months before he attains the age of fifty years. Ii once decision is taken to retain him beyond the age of fifty years then second review cannot take place unless he completes the age of fifty-five years. For this submission, reliance was placed on instructions issued by the Government of India in memorandum No. F. 33/13/61-ESTS (A) dated 23-6-1969. Relying upon the decision of the Supreme Court in State of U P. v. Chandra Mohan, ( AIR 1977 SC 2411 .), it was submitted that in absence of guidelines and Rules, such instructions have a binding effect and cannot be ignored to the prejudice of the Government servant. These instructions contained in Government of India, ministry of Home Affairs letter dated 23-6-1969, have been issued with a view to ensure fair and impartial exercise of powers vested in the "appropriate authority" under Fundamental Rule 56 and do require that before exercise of powers under sub-rule (j) of Fundamental Rule 56, the case of Government servant concerned must be scrutinised by a Committee at least six months before the attainment of the age of fifty years. Instruction No. 3 further provides that once a decision has been taken to retain the Government servant in Class II service after the age of fifty years, he would continue in service till he attains the age of superannuation subject to review at the age of fifty-five years. The instructions further envisage that if, however, the appropriate authority considers at any time after a review as aforesaid that the retention of the Government servant will not be in the public interest, that authority may take necessary action to retire the Government servant after following the due procedure. The instructions further envisage that if, however, the appropriate authority considers at any time after a review as aforesaid that the retention of the Government servant will not be in the public interest, that authority may take necessary action to retire the Government servant after following the due procedure. Considering similar instructions in respect of holders of posts in Indian Administrative Service, the Supreme court in Chandra Mohans case (supra) held thus : "once review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of fifty years upto the next barrier of 55 and, if he is again cleared at that point, he is free and untrammelled upto fifty eight years which is his usual span of service carrier. " A reading of these instructions makes it manifest that what is necessary is a decision by the appropriate authority on recommendation made by the committee appointed to review the case. So long as no review is made by a Committee and no decision is taken before the Government servant attains the age of fifty years, it cannot be said that simply because he had crossed the age of fifty years, he cannot be retired before he attains the age of fifty-five years and upon a review. What is necessary is a review by the committee and a decision by the appropriate authority, before various clauses of the said instructions become applicable. If there is no such review and consequently no decision to retain beyond the age of fifty-years, it cannot be said that the Government servant would earn the lease upto the next barrier at fifty-five. In the present case, the petitioner has made no averment that his case was reviewed by any such committee before he attained the age of fifty years, nor is there any plea raised that a decision was taken by the appropriate authority to retain him after the age of fifty years. Shri khirwadkar, standing counsel for the Department produced concerned record before us and stated that no such review was made before the petitioner attained the age of fifty years. Shri khirwadkar, standing counsel for the Department produced concerned record before us and stated that no such review was made before the petitioner attained the age of fifty years. There is no warrant in the suggestion made on behalf of the petitioner that in absence of any review as contemplated by the aforesaid instructions, he should be deemed to have been found fit to be retained in service beyond the age of fifty years. There is nothing in these instructions to draw any such inference. Shri Khirwadkar, however, drew our attention to another instruction contained in Government of India, department of Personnel and Administrative Reforms, New Delhi, dated 8-8-1975 which says that the cases of those who have attained the age of fifty/fifty-five years or who have already completed thirty years of service, should be reviewed afresh irrespective of whether the review at the appropriate time has been earlier carried out before 10th July, 1975 or not. We are, therefore, of opinion that the petitioners case could well be reviewed before he attained the age of fifty five years and after he completed the age of fifty years and it was open to the appropriate authority to form an opinion if it was not in public interest to retain him in service any further. ( 5. ) LEARNED counsel for the petitioner next contended that Order dated 22-12-1975 directing the petitioners premature retirement is bad inasmuch as it was not accompanied by three months pay and allowances in lieu of notice required under Fundamental Rule 56 (j ). Submission made is that under this sub-rule a Government servant can be retired by giving him notice of not less than three months notice in writing or three months pay and allowances in lieu of such notice. " Admittedly the petitioner was paid rs. 2,705,along with the notice and another sum of Rs. 970 on 24-4-1976. The order Annexure -M is in the prescribed form appended to Fundamental rule 56. What was sought to be paid to the petitioner along with the order was an amount calculated to be his three months pay and allowances. According to the respondent, honest efforts were made at that time to calculate the sum thus payable to the petitioner. The figures were to be ascertained from the Indore office. What was sought to be paid to the petitioner along with the order was an amount calculated to be his three months pay and allowances. According to the respondent, honest efforts were made at that time to calculate the sum thus payable to the petitioner. The figures were to be ascertained from the Indore office. It was, however, later on discovered that certain allowances were admissible to him and an additional sum of Rs. 970 was found payable. This was accordingly paid to the petitioner. Learned counsel for the respondent, therefore, contends that honest and bona fide efforts were made to comply with the statutory provisions in that regard. We are satisfied that the rule in regard to service of notice or payment of three months pay and allowances in lieu thereof has been complied with. An honest mistake discovered later and resulting in short payment at the time of retiring a Government servant under Fundamental Rule 56 (j), cannot be said to vitiate the retirement. Too rigid and literal interpretation as the learned counsel for the petitioner wants us to make of the said provisions, would be against the spirit of that term. Learned counsel for the petitioner sought to support his contention by the decision of the Supreme court in Sr. Superintendent R. M S, Cochin v. K. V. Gopinath, ( A I R 1972 S C 1487 ). The provision sought to be interpreted in the decision ran as follows : "provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month. " In para 3 of the report it is observed that the Order of the termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order. The Supreme Court has further observed that to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. The Supreme Court has further observed that to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. It has further been observed : "we need not pause to consider the question as to what would be the effect if there was a bona fide mistake as to the amount which is to be paid. " This observation itself makes it clear that in such a rule scope for bona fide mistake is always there. As the return in the present case speaks for a bona fide mistake in calculating the amount so payable, the authority Sr. Supdt. R. M. S. , Cochins case (supra) is clearly not applicable. A Division Bench of this Court in U. K. Narayanan v. State of M. P. and others, (1975 M P L J 404), considered a similar provision contained in Fundamental Rule 56 (3) (as applicable to the State) which Rule is in no way different from Fundamental Rule 56 (j) (Central) and distinguished the decision of the Supreme Court in Sr. Supdt. R. M. S. , Cochin v. K. V. Gopinath (supra) on the phraseology used in the rule which their Lordships of the Supreme Court were interpreting in that case. The absence of the word forthwith and by payment to him in fundamental Rule 56 (j), according to the Division Bench, lessened the rigor in the case before the Supreme Court. We are not inclined to take a view different from the one taken in U. K. Narayanans case by the Division bench of this Court. We are, therefore, of opinion that the attack to validity of the order of retirement is groundless. This contention of the petitioner is accordingly rejected. ( 6. ) IT was next urged that there was no material with the authorities to form the requisite opinion that it was in the public interest to retire the petitioner in terms of Fundamental Rule 56 (j ). It was, therefore, contended that the Order (Annexure -M) is arbitrary. Learned counsel for the petitioner drew our attention to evaluation of the petitioners work which was always found satisfactory by the Department. Monthly reviews of the petitioners work was shown as good or very good. At our instance, the department produced the entire service record of the petitioner. It was, therefore, contended that the Order (Annexure -M) is arbitrary. Learned counsel for the petitioner drew our attention to evaluation of the petitioners work which was always found satisfactory by the Department. Monthly reviews of the petitioners work was shown as good or very good. At our instance, the department produced the entire service record of the petitioner. Petitioners work was reviewed by a committee on 27-9-1975, 3-10-1975 and again on 10-10-1975. The petitioner has been found to be a person of doubtful integrity right from the year 1966. The confidential records produced before us show that the petitioner was just an average worker and could not even pull his weight. The disciplinary proceedings taken earlier in the year 1968-69 terminated in petitioners favour in appeal only because the charges could not be proved beyond doubt. From the record produced before us, we are satisfied that the Department was possessed of sufficient materia! to enable the appropriate authority to form the requisite opinion under Fundamental rule 56 (j ). We do not find anything to conclude that the action of his premature retirement was the result of bias of any individual officer. We are also not satisfied that the action was mala fide. The return filed by the department and the record produced before us at the time of hearing completely demolish the petitioners stand in this behalf. The records do demonstrate that the opinion formed is bona fide and is not influenced by any extraneous matters. It also cannot be said that the authority has acted in abuse of the power which was vested in it The decision in S. R. Venkataraman v. Union of India, ( AIR 1979 SC 49 .) relied on by the petitioner, renders no assistance to him inasmuch as there it was found that the authorities forming such an opinion did take into consideration non-existing facts and circumstances. It was observed that an administrative order which is based on reasons of fact which do not exist must be held to be infected with an abuse of power. We have shown above that there was ample material before the competent authority to form an opinion to attract the provisions of Fundamental rule 56 (j ). This contention advanced on behalf of the petitioner also fails. ( 7. ) THE petition is dismissed. There shall, however, be no order as to costs. We have shown above that there was ample material before the competent authority to form an opinion to attract the provisions of Fundamental rule 56 (j ). This contention advanced on behalf of the petitioner also fails. ( 7. ) THE petition is dismissed. There shall, however, be no order as to costs. Security amount be refunded to the petitioner. Petition dismissed.