Judgment S.K.JHA and S.NARAIN JJ. 1. In this application under Arts. 226 and 227 of the Constitution of India, the petitioner has challenged the order of compulsory retirement passed against him on 16-6-1978 by the appointing authority, namely, the Deputy Inspector General of Police, Saran Range, Chapra (respondent No. 4). A copy of the impugned order/notice of compulsory retirement has been marked annexure 6 to the writ petition. By this order the petitioner who was a sub-Inspector of Police at the relevant time was communicated that since he had completed 56 years of age and 36 years of service, therefore, he (the petitioner) did not need to remain in Government service any longer. He was accordingly informed that he would be treated as having compulsorily retired with effect from a date there months later than the date of receipt of this notice by the petitioner. Admittedly the petitioner received this notice on 2-7-1978. 2. The only relevant facts which need be stated for the disposal of this application are these. As I have already stated -earlier, the petitioner was a Sub-Inspector of Police on the date when the impugned order/notice of compulsory retirement was served on him. Even after the service of this notice, the petitioner was admittedly granted an ad hoc promotion as Inspector in the Criminal Investigation Department (C. I. D.). He was posted as such and drew his emoluments as an Inspector. Subsequently however, it came to the notice of the authorities concerned that such an order of ad hoc promotion of the petitioner had been passed in ignorance of the fact that the petitioner had already been served with a notice of compulsory retirement on 2-7-1978. Accordingly, the petitioner was reverted to his original post of Sub-Inspector of Police and was made to compulsorily retire with effect from 2-10-1978, i. e., three months from the date on which the petitioner received the notice. Curiously enough, from the second order which made him to retire compulsorily as is contained in annexure 11 to the second supplementary affidavit filed on behalf of the petitioner it appears that he was paid the emoluments of an Inspector up to the forenoon of 2-10-1978 and he was also treated as having retired with effect from the forenoon of 2-10-1978. 3. A contention was raised by Mr. 3. A contention was raised by Mr. S. C. Mishra, learned counsel for the petitioner, that the order of compulsory retirement as contained in annexpre 6 ought to be held as based on extraneous considerations and being vitiated in law by malice both in fact and in law because even after the date of service of the notice of compulsory retirement the petitioner was promoted to a higher rank. We are advisably lefraining from going into this question because, as contended by learned Government pleader No. 2, it may as well be that the petitioners promotion as ad hoc Inspector in the Criminal Investigation Department may have been based upon some misapprehension of fact. 4. But the second contention urged by Mr. Mishra in support of this petition is so well merited as to entitle the petitioner to the relief claimed in this application. The submission made is that the relevant rule which was in force when annexure 6 was issued was R. 74 (b) (ii) of the Bihar Service Code, 1952 which reads thus : "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 date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice." There were two Ordinances promulgated after the rule, as exrtacted above, originally stood. One was Bihar Ordinance 215 of 1976 published in the Bihar Gazette (Extraordinary) on 9-9-1976 made effective from 18-8-1975. This was followed by another Ordinance, namely, Bihar Ordinance 217 of 1976 published in the Gazette on 19-9-1976 repealing the previous Ordinance, namely, Ordinance 215 of 1976 and making the provisions of Ordinance 217 aforementioned effective retrospectively. It is, however, contended by learned Government pleader No. 2 that the two Ordinances aforementioned have lost their legal force by efflux of time since no further Ordinance has ever been promulgated nor any Act passed by the State Legislature. We, therefore, proceed upon the assumption, on the admitted case of the parties, that the rule in question is R. 74 (b) (ii) of the Bihar Service Code, 1952 which has already been extracted above. We, therefore, proceed upon the assumption, on the admitted case of the parties, that the rule in question is R. 74 (b) (ii) of the Bihar Service Code, 1952 which has already been extracted above. 5 The provision of law which ought to have been duly complied with being admittedly as aforesaid, it was contended by learned counsel for the petitioner that the impugned notice dated 16-6-1978 as incorporated in annexure 6 as also giving effect to such a notice by compulsorily retiring the petitioner from service after he had been given an ad hoc promotion are illegal as the notice nowhere speaks of the petitioner being retired from service in public interest. Only more so in view of the fact that the petitioner had made a grievance in para. 21 of the petition that the order of compulsory retirement is bad as it does not disclose that the retirement is in public interest and there is no counter-affidavit in this case in which the respondents may have asserted that the appointing authority of the petitioner required him in public interest to retire from service. In the absence of any such assertion made on behalf of the respondents any further investigation bv delving into secretariat files for finding out as to whether even the subjective satisfaction of the appointing authority was based upon valid or cogent reasons and not actuated by extraneous considerations does not arise. We are not concerned in this case as to whether it is the subjective satisfaction of the appointing authority which is sufficient to require a Government servant in terms of the rule referred to above to retire from service in public interest for we are proceeding upon the assumption as learned counsel for the petitioner did, that such formation of opinion may be said to be a subjective one. Even so, in face of the challenge made even to such a subjective satisfaction in the writ petition and in complete absence of any counter-affidavit or assertion on behalf of the respondents that the appointing authority had such a subjective satisfaction to require the petitioner to retire in public interest, the requirement of law under the relevant rule has not even been formally complied with. It is well settled that the Court must interfere with the orders of compulsory retirement where the Government is not in a position to place any material on the basis of which the order of compulsory retirement is made. An order of compulsory retirement is liable to be struck down if it is shown to be mala fide, capricious, arbitrary or based without any material or on extraneous material. It is also well settled that while exercising the writ jurisdiction this Court cannot be the Judge of the correctness or propriety of the action or sufficiency or adequacy of the material but the Court shall have to satisfy itself that there existed some material and that the impugned order is not actuated by any irrelevant consideration. 6. Rule 74 (b) (ii) of the Bihar Service Code, 1952 itself lays down a limitation that such power can be exercised when it is necessary in the public interest. Formation of the opinion in this respect is a condition precedent to the exercise of the power. The opinion again is to be formed with reference to an objective review but it is always open to the Court to see that the order is based on an appropriate opinion and that opinion is again based on consideration of relevant and not collateral and extraneous materials. In the case of Mayengbam Radhamohan Singh v. Chief Commr. (Adm.) Manipur, Civil Appeal No. 2022 (N) of 1969 decided on 1-11-1976 : (Reported in 1976 Lab IC 1713) by the Supreme Court, the Government servant concerned was asked to retire after the age of 55 years. On challenge being made by the Government servant concerned in that case it was observed by Ray, C. J. "The Government affidavit is that the Chief Commissioner made the order because he was of opinion that it was in public interest to do so. On challenge being made by the Government servant concerned in that case it was observed by Ray, C. J. "The Government affidavit is that the Chief Commissioner made the order because he was of opinion that it was in public interest to do so. Whether the order is correct or not is not to be gone into by the Court." The Supreme Court went on further to say "The order in the present case is made bona fide and nothing is on the record to show that the affidavit is unbelievable." In the instant case before us, there being no Government affidavit that the appointing authority made the impugned order because he was of opinion that it was in public interest to do so, any further question as to whether the order was made bona fide or as to whether the secretariat files could show that any such affidavit was unbelievable or not does not arise. In the case of P. Radhakrishana Naidu v. Government of Andhra Pradesh, AIR 1977 SC 854 : (1977 Lab IC 537) it was held that such provisions with regard to compulsory retirement in Service Rules were based upon equality of opportunity for all citizens in matters relating to employment which was not violated by such provisions of compulsory retirement of Government servants in public interest (emphasis is mine) after the completion of a certain period of qualifying service or attainment of a certain age. In such cases, as the instant one, therefore, the least that the Court expects is an affidavit by or on behalf of the appointing authority or the Government asserting categorically that the order of compulsory retirement was really made in public interest. Then only in the event of such an assertion being contradicted by materials in the shape of affidavits or otherwise can the Court go on further to examine as to whether such an assertion made was bona fide or really actuated by extraneous considerations. An analogy can well be drawn from a decision of the Judicial Committee of the Privy Council in Gokulchand Dwarkadas Morarka v. King (AIR 1948 PC 82) where the question mooted was as to whether a valid sanction contemplated under the Cotton Cloth and Yarn (Control) Order, 1943, Cl. An analogy can well be drawn from a decision of the Judicial Committee of the Privy Council in Gokulchand Dwarkadas Morarka v. King (AIR 1948 PC 82) where the question mooted was as to whether a valid sanction contemplated under the Cotton Cloth and Yarn (Control) Order, 1943, Cl. 23, simply naming the persons to be prosecuted and specifying the provision of the Order which an accused is alleged to have contravened was a sufficient compliance with the legal provisions or not. It was held by Sir John Beaumont that the sanction to prosecute is an important matter. It constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not concerned merely to see that the evidence discloses a prima facie case or against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous considerations that they were placed before the sanctioning authority, the sanction is invalid. Similarly, in cases like the instant one either the fact with regard to the satisfaction of the appointing authority regarding the requirement of a Government servant to be retired in public interest must be referred to on the face of the order or, in the alternative, the least that the Court expects in such cases is a categorical assertion by the respondents concerned that such requirement of retirement in public interest was not motivated by any extraneous considerations of the appointing authority. Only in the later event, can in certain justifiable cases the Court examine objectively as to whether such a subjective satisfaction was based upon matters genuinely requiring the Government servant concerned to retire in public interest or whether such a prima facie order communicating satisfaction was really affected by either malice in fact or by extraneous considerations amounting to malice in law. 7. 7. In the case of Smt. S. R. Venkataraman v. Union of India ( AIR 1979 SC 49 ): (1979 Lab IC 1641), R. 56 (j) (i) of the Fundamental Rules with regard to compulsory retirement in public interest was being considered and it was held that where a public servant was ordered to be retired prematurely in public interest and the relevant record did not reveal that the premature retirement was in public interest, the order of compulsory retirement amounted to abuse of the power which was vested in the authority concerned and this was liable to be set aside. In the case of Venkataraman (Supra) it is true that after the perusal of the relevant records it was conceded by Government counsel that the relevant record did not reveal the order to be in public interest. The instant case stands on a stronger footing from the point of view of the petitioner for it is not even alleged or asserted that the order of compulsory retirement of the petitioner was in public interest at all. 8. On this ground alone I think the order impugned by the petitioner is liable to be quashed. The application accordingly succeeds and is allowed and the impugned orders as contained in annexure 6 is quashed and the respondents are restrained from giving effect to the order as contained in annexure 6 or to the order of retirement of the petitioner from the forenoon of 2-10-1978 subsequently passed. shall, however, make no order as to costs. As, however, no direct decision on the point has been. brought to our notice, I wish to add a few words of my own. shall, however, make no order as to costs. As, however, no direct decision on the point has been. brought to our notice, I wish to add a few words of my own. The decision of the Supreme Court in Smt. S. R. Venkataraman v. Union of India ( AIR 1979 SC 49 ): (1979 Lab IC 1641) is a clear authority for the proposition that even where an authority has the absolute right to retire any Government servant by following the prescribed procedure if it is of the opinion that it is in the public interest to do so, the order of compulsory retirement passed by the authority is liable to be quashed by the Court; even in a case where the order of compulsory retirement recites that the authority is of the opinion that it is in the public interest to retire compulsorily the Government servant, if admittedly there is nothing in the records on the basis of which the public authority could have formed the opinion that the retirement of the Government servant was in the public interest. The existence of opinion of the appointing authority that it is in the public interest to compulsorily retire the Government servant is, therefore, in such cases, a condition precedent to the exercise of the power of compulsory retirement. R. 74 (b) (ii) of the Bihar Service Code confers upon the appointing authority, in the circumstances and subject to the conditions specified therein, power to retire compulsorily a Government servant, in public interest. Even assuming that the existence of public interest is a matter of the subjective satisfaction of the authority, on a parity of reasoning it must be held that the existence of the opinion of the authority that it is in the public interest to retire the Government servant concerned is a condition precedent for the exercise of the power under R. 74 (b) (ii) aforesaid. In a case like the present one where the order of compulsory retirement passed under R. 74 (b) (ii) aforesaid is impugned on the ground of mala fide, that is to say, on the allegation that the retirement was not ordered because of the authority being of the opinion that it was in the public interest to do so, but because of extraneous considerations, it must be shown that the condition precedent for the exercise of the power of compulsory retirement was fulfilled. Usually, the Court would be satisfied that the condition precedent was fulfilled if the order of compulsory retirement recites that the authority was of the opinion that the retirement of the servant was in the public interest. Such a recital would throw a heavy burden on the Government servant who challenged the correctness of the aforesaid recital. In a case like the present one, however, where there is no such recital and it is merely stated in the order that as the Government servant had completed a certain age and a certain period of service there was no necessity for his continuing in Government service and the order is impugned as mala fide, it is the duty of the authority to satisfy this Court that actually it was of the opinion that the retirement impugned was in the public interest. That can be done, as my learned brother has shown, by filing an affidavit etc. But that has not been done in this case. Therefore, the Court is driven to the conclusion that the condition precedent for the exercise of the power of compulsory retirement does not exist and, consequently, the order is null and void. 9. I agree.