Judgment LALIT MOHAN SHARMA, J. 1. The petitioner was a Sub-Inspector of Police at Sasaram when he was served with an order as contained in Annexure 1 to the writ application retiring him compulsorily. He has challenged the same by the present application under Arts. 226 and 227 of the Constitution of India. 2. In the writ application, it has been mentioned that the service of the petitioner has been all through satisfactory and he was otherwise fit and was surprised to be served with Annexure 1. He was born in Feb., 1924 and is entitled to continue in service till Feb., 1982 when he would be 58 years of age. He was also served with extracts of adverse entries in his Confidential Character Roll for the years 1973 and 1974 and copies thereof have been annexed to the writ application as Annexures 2 and 3. The petitioner had no information about the entries earlier. The writ petition further states that the petitioner filed an application on 10-9-1974 before the Superintendent of Police asking for the information as to the basis on which the impugned order in Annexure 1 had been passed, and in response thereto, he was supplied with the extract of proposal of his compulsory retirement submitted by the Superintendent of Police. A copy of the petitioners said application is annexure 5 to his supplementary affidavit and a copy of the extract supplied to him is annexure 4 to the writ application. A perusal of annexure 4 indicates that the authority concerned was of the view that the petitioner was in the habit of realising money from the truck drivers openly, was taking eatables from small shops and had otherwise deteriorated. It has been averred that as no enquiry was held against the petitioner after giving him reasonable opportunity, the impugned order amounts to a punishment and is violative of Article 311 of the Constitution of India and is also otherwise arbitrary and illegal. 3. The application has been opposed on behalf of the State of Bihar and other respondents who have filed a counter- affidavit stating that the order of retirement has been passed under R. 74 (b) of the Bihar Service Code without assigning any reason and has not been passed by way of punishment. 3. The application has been opposed on behalf of the State of Bihar and other respondents who have filed a counter- affidavit stating that the order of retirement has been passed under R. 74 (b) of the Bihar Service Code without assigning any reason and has not been passed by way of punishment. It has been further stated that annexures 2 and 3 were not part of the order of retirement and had been served upon the petitioner separately and are irrelevant to the question of retirement. The petitioners plea of illegality and arbitrariness has been denied. 4. The case was heard on 28-11-1977 and immediately after close of arguments, a joint judgment was delivered in open court allowing the application. We, however, felt doubtful about the correctness of the judgment immediately thereafter, and directed the stenographer not to transcribe it. We felt that the matter should be examined further, and accordingly, passed an order on the next day, that is 29-11-1977 for further hearing of the case. The learned counsel for the parties prayed that some time should be given to them for getting ready for further arguments and in the circumstances we heard the learned advocates, later on two dates convenient to them. No opposition by either side was raised to this course, which does not appear to admit of any valid objection. The judgment becomes final only when it is pronounced and signed and so long these steps are not complete, it is open to modification. This principle has been recognised by R. 3 of O. XX of the Civil P. C. The present writ application relates to the claim of a civil right and is therefore, a civil proceeding to which the Civil P. C. must apply by virtue of its S. 141. I, therefore, proceeded to consider the merits of the case afresh and without reference to the view which we entertained on 28-11-1977. 5. I, therefore, proceeded to consider the merits of the case afresh and without reference to the view which we entertained on 28-11-1977. 5. The impugned order has been passed under R. 74 (b) of the Bihar Service Code, the relevant portion whereof is as follows: "74 (b) (ii) The appointing authority concerned may, after giving a Government servant at least three months previous notice in writing, or an amount equal to three months pay and allowance in lieu of such notice require him in public interest to retire from service on the (sic) years of qualifying service or attains (sic) fifty years of age or on any date thereafter to be specified in the notice (sic)." The order is in a single sentence, in Hindi, merely stating that the petitioner, who had completed the age of 50 years, was being retired under R. 74 (b) on the completion of a period of three months from the service of the order on him. No reasons have been mentioned in the order. Mr. Shreenath Singh, appearing for the petitioner, strenuously contended that in the circumstances of the case, it must be held that the real reason for passing the order of the petitioners retirement was the opinion of the authority concerned that the petitioner had turned dishonest and inefficient and this conclusion was reached without giving him any opportunity to dispute the assumption. Referring to several decisions including that in the State of Bihar v. Shiva Bhikshuk Mishra ( AIR 1971 SC 1011 : (1971 Lab IC 724), the learned counsel asserted, that it is wrong to suggest that so long as there are no express words of stigma attributed to the conduct of a Government servant in the impugned order, it cannot be held to have been made by way of punishment, and the assumption against the petitioner in the present case was not merely a motive for passing the order but was the very foundation. It has been strongly urged that so far as this aspect of the matter is concerned, the cases of retirement are on the same level as the cases where the services of Government servants are terminated and the cases dealing with the termination of service are relevant in the present contest. It has been strongly urged that so far as this aspect of the matter is concerned, the cases of retirement are on the same level as the cases where the services of Government servants are terminated and the cases dealing with the termination of service are relevant in the present contest. Reliance was placed on the decisions in Parshotam Lal Dhingra v. Union of India ( AIR 1958 SC 36 ), State of U. P. v. Madan Mohan Nagar ( AIR 1967 SC 1260 ) and State of U. P. v. Sughar Singh ( AIR 1974 SC 423 ) : (1974 Lab IC 358). After considering the cited cases as also some other cases of the Supreme Court, which I am going to refer to, and hearing the learned counsel at some length, I do not find myself in a position to accept the proposition. 6. In the case of P. L. Dhingra v. Union of India ( AIR 1958 SC 36 ) (supra), the Supreme Court had to decide whether an order of reduction of the appellant in rank had been passed by way of punishment so as to attract the provisions of Art. 311 (2) of the Constitution and while discussing the general principle it was observed that it is only in those cases where the Government intends to inflict those three forms of punishment (i.e. dismissal, removal and reduction in rank) that Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The words in brackets are mine. Mr. Shreenath Singh placed paras 26 and 28 of the judgment and submitted that since retirement cases also have been referred to in para 26, the observations made in the judgment with reference to the order of reduction in rank must be applied to retirement cases also. I do not find myself in agreement with the learned counsel. The decision distinguishes between the two classes, one where an order of dismissal, removal or reduction in rank is passed, and another where the service of a Government servant is terminated in accordance with a contract or under rules in this regard. The distinction has been emphasised towards the end of para 27 as also in para 28. The decision distinguishes between the two classes, one where an order of dismissal, removal or reduction in rank is passed, and another where the service of a Government servant is terminated in accordance with a contract or under rules in this regard. The distinction has been emphasised towards the end of para 27 as also in para 28. The motive or the inducing factor for terminating the service under a contract or rules may be misconduct, negligence or other disqualification of the servant, but so long the order is founded on the right flowing from the contract or service rules, Art. 311 of the Constitution is not attracted. It was further pointed out in the judgment that even in such cases, it was open to the Government to inflict the punishment of dismissal or removal on the servant, but if this course is chosen, the procedure under Art. 311 must be followed. Such an order is a punishment for it operates as a forfeiture of his right, and he is visited with evil consequences. Proceeding further, it was emphasised that the real test for determining whether an order in such cases is or is not by way of punishment is to find out if the order also visits the servant with any penal consequences. In a case of (sic) (omission) considering whether the benefits available to the Government servant on his superannuation, payable under the rules, are denied either wholly or partly. In the present case, the petitioners right to his pension and other benefits has not been affected at all. 7. The next case cited on behalf of the petitioner is the State of U. P. v. Madan Mohan Nagar ( AIR 1967 SC 1260 ) where, in para 7 of the judgment, the court was considering whether the order of retirement of the respondent contained a stigma. There was a clear statement appearing on the very face of the order that the respondent outlived his utility, in other words, that he was incapacitated from holding the post. In that background, the Supreme Court held that the order clearly attached stigma to him and any person who read the order would immediately consider that there was something wrong with him or his capacity to work. In that background, the Supreme Court held that the order clearly attached stigma to him and any person who read the order would immediately consider that there was something wrong with him or his capacity to work. For reen forcing the conclusion that the language of the order attached stigma, an earlier decision of the Supreme Court in Jagdish Mitter v. Union of India ( AIR 1964 SC 449 ) was referred to and the order in that case was quoted. There also, it had been stated in the order that the retention of Mr. Mitter in service had been found undesirable. Mr. Shreenath Singh contended that since the case of Mr. Mitter was that of discharge of temporary servant and since that case was referred to in the State of U. P. v. Madan Mohan Nagar, where the respondent had been retired, it follows that the case of retirement and discharge stand on the same footing. I am afraid, the conclusion attempted to be drawn appears to be uncalled for. The case of Jagdish Mitter was referred to in the latter case for a very limited purpose, namely, for interpreting the language of the impugned order and it was not suggested that any other principle in that case was relevant. Sughar Singhs case ( AIR 1974 SC 423 ): (1974 Lab IC 358) was one of reversion to a lower post in which the principle applicable to cases of termination of service was applied. That does not lead to the conclusion that retirement cases also have to be considered with the same approach. 8. On the other hand, the vital difference between the two categories of cases has been expressly pointed out by the Supreme Court in several decisions. One of the main points of difference is that in case of compulsory retirement, the officer does not lose the benefit he has already earned as he does by termination of service. In Shyamlal v. State of Uttar Pradesh ( AIR 1954 SC 369 ), three charges were raised against the appellant and a show cause notice was served on him. After the receipt of the appellants explanation, the Public Service Commission considered the matter and came to the conclusion that the charges were substantially true. In Shyamlal v. State of Uttar Pradesh ( AIR 1954 SC 369 ), three charges were raised against the appellant and a show cause notice was served on him. After the receipt of the appellants explanation, the Public Service Commission considered the matter and came to the conclusion that the charges were substantially true. Instead of starting a disciplinary proceeding under the Civil Services (Classification, Control and Appeal) Rules, the petitioner was compulsorily retired and he challenged the order. In para 17 of the judgment, the Supreme Court observed that there was no doubt some imputation against the appellant which he was called to explain but the impugned order being an order of retirement simpliciter could not be charactetrised as a punishment attracting the courts interference. The observations in paras 16 and 17 of the judgment clearly bring out the distinction between the case of termination of service and those of compulsory retirement. This case was considered and followed in the State of Bombay v. Subhagchand M. Doshi ( AIR 1957 SC 892 ). It was pointed out that misconduct and inefficiency are factors that enter into account in both categories of cases, but in the case of termination of service, they form the very basis on which the order is made while in cases of retirement from service, they merely furnish the background. The court meant to say that the same kind of misconduct and inefficiency play different roles in two kinds of cases because of their separate and distinct nature, scope and effect, and because they have been so dealt with by the law applicable. The principle was reiterated in Dalip Singh v. State of Punjab ( AIR 1960 SC 1305 ). When the rule provides that a Government servant can be retired prematurely in the public interest, it ordinarily means that the retention of the officer in the service is not beneficial due to some shortcoming on his part. This aspect is an essential feature of such orders. No occasion can arise for compulsorily retiring a servant if he is fit, efficient and otherwise suitable. It, therefore, follows that an order of retirement passed under service rules, without condemning the servant and without depriving him of the earned benefits, cannot be held to be punishment, merely for the reason that his inefficiency or misconduct had been taken into account for passing the order. It, therefore, follows that an order of retirement passed under service rules, without condemning the servant and without depriving him of the earned benefits, cannot be held to be punishment, merely for the reason that his inefficiency or misconduct had been taken into account for passing the order. In such cases, inefficiency or misconduct must be held to have merely furnished the background and not to have been the (sic) dismissal, discharge or removal from service. I am, therefore, of the view that the principle applicable to cases of termination of service is not applicable to retirement cases and the entirety of circumstances preceding or attendant on the impugned order are not relevant for interpretation of the nature of the order. It follows that for interpreting such an order, what is relevant is the order itself and nothing else; subject however to some exceptions which I propose to deal hereafter. I, therefore, do not consider it useful to discuss the cases cited on behalf of the petitioner which are all relating to either termination of service or of reversion to lower post. 9. Mr. Singh strenuously contended that the question whether the petitioner has been retired according to the rules or has been illegally punished cannot be decided on the sole basis of the language of the impugned order and placed reliance on a large number of decisions, none of which deals with the case of retirement. As I have found above that those cases are not relevant, I do not propose to discuss them. In I. N. Saksena v. State of Madhya Pradesh ( AIR 1967 SC 1264 ) the counsel for the appellant advanced an argument similar to that made before us, as mentioned towards the end of paragraph 6 of the judgment which was repelled by the Supreme Court in the following terms "It may be mentioned that the order assigns no reason. In the circumstances, we hold that as the order does not expressly contain any words from which any stigma can be inferred, it cannot amount to an order of removal." In the State of Uttar Pradesh v. Shyamlal Sharma, AIR 1971 SC 2151 : (1971 Lab IC 1369) it was mentioned that (at p. 1373 of LIC) "Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal, in the nature of penalty or punishment" (The word itself has been underlined by me). Mr. Singh attempted to distinguish this case on the ground that on the facts the court was of the view, as expressed in para 16 of the judgment, that there was no word of stigma in the relevant letter. The law declared by the Supreme Court cannot be explained away as obiter as is being, in substance, suggested. The principle has been expressed in clear terms and is law and binding throughout the country. In Tara Singh v. State of Rajasthan, AIR 1975 SC 1487 : (1975 Lab IC 1046) the Supreme Court again emphasised this aspect and rejected a similar argument. It was held that (at p. 1051 of LIC)- "There is no stigma in any of the impugned orders of compulsory retirement ......... The order does not say so. The order does not contain any stigma." The case of Dalip Singh v. The State of Punjab ( AIR 1960 SC 1305 ) referred to above, also may be examined on this point. The facts of the case have close resemblance to the case before me. The order of retirement did not contain any words of stigma and merely stated that the appellant was retired for administrative reasons. He requested that the Government should let him know the grounds which had impelled it to take such a decision and then "the Government mentioned charges against him on the basis of which! the Government had decided to retire him", (Underlining is by me) (sic). He requested that the Government should let him know the grounds which had impelled it to take such a decision and then "the Government mentioned charges against him on the basis of which! the Government had decided to retire him", (Underlining is by me) (sic). It was argued that the order amounted to punishment which was rejected by the Supreme Court holding that (at p. 1308) "In the case before us, the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All it states is that the compulsory retirement is for administrative reasons. It was only after the appellants own instance to be supplied with the grounds which led to the decision that certain charges were communicated to him. There is, therefore, no basis for saying that the order of retirement contained any imputation or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion, whether any action should be taken under R. 278 does not amount to any imputation or charge against the officer." Proceeding further, the Supreme Court applied the other test whether the officer had lost the benefit he had earned and the answer was in the negative. This case appears to be on all fours with the case before me. 10. The position in substance is that the right of a Government officer to continue in service is subject to the rules in this regard and since the rules provide for his compulsory retirement, he cannot challenge the order passed thereunder. Such a servant does not lose any benefit which he has earned as a result of such an order. It is not only legitimate for the authority concerned to take into account misconduct and inefficiency of the Government servant as relevant factors for passing such an order, it is his duty to do so; and it cannot be held for that reason, that the order is founded on a condemnation of the servant. The question whether the order of retirement is based on stigma has to be answered on a consideration of the express language of the order itself and If it does not contain any words to that effect, the officer cannot be permitted to urge the point with reference to other attending circumstances. The question whether the order of retirement is based on stigma has to be answered on a consideration of the express language of the order itself and If it does not contain any words to that effect, the officer cannot be permitted to urge the point with reference to other attending circumstances. The order, then is not open to challenge except on two grounds, namely, mala fide and arbitrariness. Bad faith vitiates all solemn acts; and where an order in exercise of a specific power is passed arbitrarily, it is in substance, not passed under that authority at all. These two points must, therefore, be available to be urged by a dissatisfied officer and have been so recognised by the decision of the Supreme Court in State of Uttar Pradesh v. Chandra Mohan Nigam, AIR 1977 SC 2411 : (1977 Lab IC 1923) and Union of India v. J. N. Sinha. AIR 1971 SC 40 : (1971 Lab IC 8); but subject to these exceptions, which are of general application, an order of retirement is not open to challenge unless it expressly contains any imputation against the retired servant. 11. During the course of argument, we enquired from the learned counsel whether there was any reported case in which the Supreme Court or this Court has interfered on the ground urged by the petitioner before us and he could not, in spite of his diligent search, cite one. He said that this is absolutely an irrelevant consideration and the Court should not be affected by the absence of a case on the point. He is right that a point cannot be rejected for that reason, but it is permissible to take note of the situation. In para 6 of the judgment in I. N. Saksena v. State of Madhya Pradesh ( AIR 1967 SC 1264 ) referred to above, the Supreme Court observed as follows: "This Court has consistently held that where the order directing compulsory retirement expressly contains words which cast a stigma on a Government servant, the order is equivalent to an order of removal and action under Article 311 is necessary. But we asked learned counsel for the appellant to point out any case of this court where in the absence of any express words in the order itself casting stigma on a Government servant, this court has held that the order of compulsory retirement amounts to removal. Learned counsel was unable to refer to any such case." The situation in favour of the petitioner has not improved even after 10 years. 12 Even on merits, I do not feel satisfied that the misconduct and inefficiency of the petitioner are the foundation of the order of the State Government. The allegations against him, as mentioned in Annexure 4 were made by the Superintendent of Police in his proposal for compulsorily retiring the petitioner and there is no indication as to the degree of reliance placed by the State Government on this part of the recommendation for passing the order in Annexure 1. In para 13 of the counter affidavit, it has been asserted on behalf of the State that the order was passed after due consideration of all the relevant matters on the point. 13. Lastly, Mr. Singh urged that the order is vitiated on the ground of arbitrariness. He wanted to place the facts and circumstances leading to the adverse entries in the petitioners character roll. He wanted us to hold that the service of the petitioner has been all through very satisfactory and he should have been permitted to continue in service and that the decision taken by the authority concerned was utterly wrong. I am afraid, this writ application cannot be converted into an appeal for (sic) the materials and come to a decision on the point. This much is certain that there were materials pertinent to the question whether discontinuance of the petitioner in service was in the public interest and a decision was taken against him on the relevant materials. This ground also must, therefore, fail. 14. For the reasons mentioned above, I dismiss this writ application, but without costs. S.ALI AHMAD, J. 15 My learned brother has mentioned the facts in some details. It is, therefore, not necessary to repeat them. It should be sufficient to say that the petitioner, who was Sub-Inspector of Police, was compulsorily retired from service by an order contained in Annexure 1 and it is this order which is sought to be quashed. 16. S.ALI AHMAD, J. 15 My learned brother has mentioned the facts in some details. It is, therefore, not necessary to repeat them. It should be sufficient to say that the petitioner, who was Sub-Inspector of Police, was compulsorily retired from service by an order contained in Annexure 1 and it is this order which is sought to be quashed. 16. According to the petitioner, the basis of the order was the recommendations of the Superintendent of Police to the I. G. of Police wherein it was mentioned that the petitioner was in the habit of extorting money from truck drivers openly and used to take eatables from small shop owners and had also otherwise deteriorated. This according to the petitioner was the foundation for the order retiring the petitioner compulsorily from service and as such, punitive in nature. Admittedly the Superintent of Police, who made recommendations for compulsory retirement of the petitioner on the basis of the fact I have mentioned above, is not the authority which passed the order retiring the petitioner compulsorily from service. The order was passed by the Inspector General of Police. There is nothing to show as to what fact prevailed upon the Inspector General of Police to pass the order as contained in Annexure 1. Maybe that he did not base his order on the report of the Superintendent of Police as contained in annexure 4 to the writ application In that view of the matter, in my opinion, it cannot be said that the basis of the order passed by the Inspector General of Police as contained in Annexure 1 is the report submitted by the Superintendent of Police (Annexure 4). I am, therefore, unable to hold that Annexure- 4 is the foundation for the order retiring the petitioner compulsorily from service. For these reasons, I respectfully agree with the order passed by Sharma J. that the application should be dismissed without costs. 17. It was argued on behalf of the petitioner that in the circumstances of the case, it must be held that the real reason for passing the order of retirement was that in the opinion of the authority concerned, the petitioner had turned dishonest and inefficient and that this conclusion was reached without giving him any opportunity to dispute the assumption. It was argued on behalf of the petitioner that in the circumstances of the case, it must be held that the real reason for passing the order of retirement was that in the opinion of the authority concerned, the petitioner had turned dishonest and inefficient and that this conclusion was reached without giving him any opportunity to dispute the assumption. It was also urged that the cases of retirement are on the same level as the cases where the services of the Government servants are terminated. Sharma, J. in his judgment has rejected these two submissions and has held that nothing beyond the order retiring an employee from service can be looked into to see as to what was the foundation, of the order. He has also held that the cases of retirement are not on the same level as the cases where the services of the Government servants are terminated. It is not necessary to decide these two questions in this case as the application has to be dismissed on the ground that the petitioner has not been able to prove that the order as contained in Annexure 1 is founded upon the report of the Superintendent of Police as contained in Annexure 4. I, therefore, express no opinion on these questions. 18. In the result, I agree that the application be dismissed but without costs.