Order In the instant case the parties were heard at length at the time of admission. Respondent No.3 has filed his counter affidavit to which a rejoinder has also been filed on behalf of the petitioner and as such with the consent of the learned counsels appearing for the par. ties this writ petition is being disposed of at the time of admission itself. 2. In this writ petition the petitioner challenges the order of his compulsory retirement as communicated to him by letter bearing no. 1425 dated 30th. April, 1986 as contained in Annexure-'5' to the writ petition. 3. For the purpose of disposal of this writ application facts may not be stated in detail. Suffice it to say that by a letter dated 1-12-1984 as contained in Annexure-A to the counter affidavit the petitioner drew the attention of the authorities that as he fell down in the camp itself in September, 1983 resulting in a fracture caused in his leg, he had not been able to attend P. T. parade and was unable to do any hard work relating to his legs as the said fracture could not be set right by the doctor. The petitioner, therefore, by the said letter requested the authorities that a Medical Board be constituted for examining him physically and he be allotted light duties. Pursuant to and in furtherance of the aforementioned letter dated 1.12.1984 the respondent no. 3 by a letter addressed to the Deputy Director of Health Services while forwarding the aforementioned application of the petitioner requested the said authority to constitute a Medical Board. 4. It is a common ground that such Medical Board was constituted and the petitioner was directed to appear before Dr. S. N. Sharma, Civil Surgeon cum-Chief Medical Officer, Patna. The petitioner was also issued a letter to report before the Board and in compliance thereof the petitioner appeared before the Board for Medical Examination. 5. However, it appears that the decision of the Medical Board was forwarded to the concerned authorities which as stated was constituted in terms of the petitioner's own application dated 1.12.1984 and as contained in Annexure-" A" to the counter-affidavit, before the concerned authorities took a decision on 15.1.1986 to retire the petitioner compulsorily as would appear from Annexure-"A" to the petition. 6. 6. By an order dated 28.1.1986 the petitioner was directed to compulsorily retire for which he was given three months notice. Therefore, by the said order the petitioner would be compulsorily retired with effect from 31.4.1986. However, in the meanwhile the report of the Medical Board dated 12.9.1986 was sent to the respondent no. 3 by the Civil Surgeon-cum-Chief Medical Officer, Patna, by his letter 22.10.1906 as contained in Annexure-"7" to the writ petition. It is the case of the respondents that the report of the Medical Board was dated 12.9.1986 as contained in Annexure-"B" to the counter affidavit and the aforementioned letter dated 12.9.1986 as contained in Annexure-"7" to the writ application was merely a forwarding letter. The respondent contended that the petitioner was ordered to be compulsorily retired in terms of rule 74 of the Bihar Service Code as on his own showing he was unable to perform the duties of a Driver which post the petition held at the material time The respondent further contended that in view of the duties assigned to the petitioner it was obligatory on his part to take part in parade and it was not possible to allow him any light duties as suggested by the Medical Board. 7. The learned counsel appearing on behalf of the petitioner raised a very short question. He submitted that as from the facts aforementioned it is evident that a Medical Board was in fact constituted on the basis of the representation of the petitioner and the said Board sent its report, finding the petitioner to be medically fit, the order of compulsory retirement which was passed prior to the receipt of the report of the Medical Board must be held to be based on non-existent materials. The learned counsel further submits that in terms of Rule 809 of the Bihar Police Manual which was framed under section 8 of the Police Act, no order of enforced retirement could have been passed. Rule 802 of the Police Manual reads as follows:- "Enforced retirement-(a) (i) A Police Officer declared medically unfit shall be retired. An annual check-up before doctor should be done of all those who are above 53 years of age and those who are not physically fit should be retired. Officers suffering from venereal diseases should be dealt with departmentally, (ii) Rules for compulsory retirement are given in chapter 25. An annual check-up before doctor should be done of all those who are above 53 years of age and those who are not physically fit should be retired. Officers suffering from venereal diseases should be dealt with departmentally, (ii) Rules for compulsory retirement are given in chapter 25. (b) Apart from the provision contained in rule 854 (a) for compulsory retirement, any police officer may opt for voluntary retirement. He can be ordered by Government to retire from service after completion of 30 years of qualifying service as given in the liberalised Pension Rubs, Appendix v. Section 1 para 2 (a) or after attaining the age of 55 years as laid down in Bihar Service Code, rule 74 (b), whichever is earlier. There should be at least three months notice before the date on which the officer opts or is ordered by the Government to retire. Deputy Superintendent of Police, 25 years qualifying service is sufficient (See Bihar Pension Rule 135 and its schedule with rule 5". The learned counsel, therefore, submits that the petitioner was not declared medically unfit by any authority and really he was found fit by the Medical Board. 8. The learned counsel appearing on behalf of the State, however, submitted that in the instant case the provisions of Rule 74 of the Bihar Service Code 1952 are applicable in view of the provisions of Rule 854 (A) of the Police Manual. Rule 854 (A) which reads as follows :- "Compulsory retirement.-(1) Under rule 74(a) of Bihar Service Code, compulsory retirement of Government servants on account of inefficiency or misconduct can be done for those who have rendered 21 years of active service (excluding leave etc.) or 25 years of total service. (2) Under rule 7 (b) of Bihar Service Code, 1952, the appointing authority concerned may after giving a Government servant at least three months notice in writing or three months salary in lieu thereof require him in public interest to retire from service on the date on which such a Government servant completes 30 years of continuous service or attains 60 years of age (See Govt. of Bihar, Personnel Department memo no. 3RI-101/73p-5948, dated the 20th April 1976)”. 9. In the instant case the fact, stated hereinbefore are not in dispute. The authorities obviously proceeded on the basis as if rule 74 of the Bihar Code would apply in the case of the petitioner. of Bihar, Personnel Department memo no. 3RI-101/73p-5948, dated the 20th April 1976)”. 9. In the instant case the fact, stated hereinbefore are not in dispute. The authorities obviously proceeded on the basis as if rule 74 of the Bihar Code would apply in the case of the petitioner. For the purpose of attracting rule 74 of the Bihar Service Code it was necessary for the State to divulge the facts as to why the order of compulsory retirement should be passed against him in public interest. In the instant case the question is as to whether the petitioner should have been ordered to compulsorily retire only on the ground of his alleged inefficiency or not could not have been adjudged unless and until the Medical Board constituted for the purpose of examining the petitioner medically declared him unfit to hold the post. 10. It is a common ground that the impugned order has been passed before the report of the Medical Board was obtained. The respondents have categorically admitted in the counter affidavit that on the basis of representation made by or on behalf of the petitioner a Medical Board was constituted and in that view of the matter there was absolutely no reason as to why the order impugned could no have awaited the submission of report by the Medical Board. In fact in paragraph 6 of the counter affidavit it has specifically been admitted that the impugned order was passed in view of the communication from Inspector General of Police (Administration) as contained in his letter dated 21. 9.1985 as also the reminders received from Inspector General (Administration) in his wireless messages sent in this regard. From the aforementioned admission made in paragraph 6 of the counter affidavit it is clear that the order impugned in this writ petition was passed in haste without waiting for the report of the Medical Board only because the Inspector General of Police (Administration) required that the matter should be disposed of at an early date. 11. In our opinion, therefore, there is absolutely no material before the authorities concerned to pass the impugned order. 12. In the case of Smt. S. R Venkataraman v. Union of India and another (A.I R. 1979, S. C., 49) the Supreme Court quoted with approval the speech of Lord Esher H. R. on the question on the prosecution of Richard Storock Vs. 12. In the case of Smt. S. R Venkataraman v. Union of India and another (A.I R. 1979, S. C., 49) the Supreme Court quoted with approval the speech of Lord Esher H. R. on the question on the prosecution of Richard Storock Vs. The Vestry of St. Pan eras (l890) 24 QBD 371 at page 375 "If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion then in the eye of the law they have not exercised their discretion." The Hon'ble Supreme Court while agreeing with the aforementioned view further held that there will be an error of fact where a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstances. 13. In the instant case, from the perusal of the application filed by the petitioner and as contained in Annexure-A to the counter affidavit it would appear the petitioner never suggested that he was not in a position to discharge the function but he merely submitted that he had been facing difficulties in relation thereto. The learned counsel appearing on behalf of the petitioner categorically stated that now the petitioner is fit to discharge his duties. 14. The learned counsel appearing on behalf of the petitioner has relied upon a decision in the case of H. C. Gargi v. State of Haryana (A.I.R. 1987 S. C. 65) wherein their lordships have held that in absence of material to pass the order of compulsory retirement there could not have been any justification to pass such order in Public Interest. 15. In the instant case also as found here-in-before the authorities did not have any material before purpose of coming to the conclusion that the petitioner should be compulsorily retired in public interest. We have, therefore, no other option but to quash the order no. 1425 dated 30th April, 1986 as contained in Annexure-5 to the writ petition and further directed that in the event the authorities concerned consider that the petitioner should not be retained in service in public interest in terms of rule 74 of the Bihar Service Code they may get the petitioner medically examined by a duly constituted Medical Board and take such steps in that regard as is permissible in accordance with law. 16. 16. In the result the order dated 30th April, 1986 as contained in Annexure-5 is quashed and the writ application is allowed. Let an appropriate writ be issued. There will be no order as to costs.