Judgment Radha Mohan Prasad, J. 1. In the writ application the petitioner has prayed for quashing of the notification dated 31-12-1994. contained in annexure-2 purported to have been issued with approval of the State government extending the service of the respondent No.4, who was to superannuate on 31-12-1994, by six months or until further order whichever is earlier. In this said order it is mentioned that in regard to the payment of salary to the said respondent No.4, a separate decision shall be taken with the approval of the Finance Department. 2. The case of the petitioner is that Rule-73 of the Bihar Service Code provides that the State Government be Public grounds to be recorded in writing, can retain a Government servant in service after attaining the age of 58 years on public grounds. Further, in this regard the State Government, vide Finance Department notification dated 1-4-1991 contained in annexure-5 issued a clarification that if necessary order to that effect is not issued after taking approval of the Council of Ministers through the Finance Department before the superannuation of government servant, than he shall unilaterally stead relieved from the service and if he still continues to work, then he shall himself be responsible and his continuance would be treated to be illegal for which he would not be entitled for any payment and also strict action would be taken against him for such continuance. In paragraph-18 of the writ petition it is stated that before issuance of the impugned notification, neither the. Finance Department has given its clearances, nor approval of the Cabinet (Council pf Ministers) has been taken. 3. On first occasion this writ application was heard on 9th March, 1995 when the notice was issued to the respondent No.4 and on the prayer of learned GPI who appears on behalf of the respondent No 1 to 3, time was granted till 20th March, 1995 to take full instructions in the matter and file counter affidavit after serving a copy of the same upon the learned counsel for the petitioner. By order dated 21-3-1995 the learned Counsel for the State was directed to take instructions in the matter and also to get the concerned file of extension of service of respondents No.4. By order dated 21-3-1995 the learned Counsel for the State was directed to take instructions in the matter and also to get the concerned file of extension of service of respondents No.4. In the meantime, by an ad-interim order respondent No.4 was restrained from continuing in the office of the civil Surgeon-cum-Chief Medical Officer, Hazaribagh, pursuant to the impugned notification contained in annexure-2. 4. A counter affidavit has been filed on behalf of respondent No.4, in which the fact aforementioned stated is paragraph 15 of the writ petition has not been denied. No counter affidavit has been filed on behalf of the respondent Nos.1 to 3. 5. However, the learned G. P. I. has produced the relevants file. After perusal of the file he contended that it is a fact that no "approval of the cabinet (Council of Ministers) through Finance Department has been taken till date. Further, the learned GPI contended that the whole matter is being-reconsidered. He, however, contended that considering that tomorrow (31-3-1995) is the last date of the financial vear and if funds are not utilised, then the same may lapse, respondent No.4 be permitted to function at least for a fortnight. 6. Mr. Sinha, learned Counsel for the respondent No.4 has raised a preliminary objection that the petitioner has no legal right to challenge the validity of the impugned notification in the present writ application as such on this ground alone the writ application is liable to be dismissed I am unable to accept this submission made by the learned Counsel for the respondent No 4. The learned Counsel for the petitioner has rightly pointed out that under the notification of the State Government contained in annexure 1 the petitioner has been transferred to the post in question in the consequential vacancy. It is true that in the said notification it is not clear that the consequential vacancy is the vacancv which was/is to occur due to retirement of respondent no, 4 on 31-12-1994. But at the same time, it is nobodys case that there is any other vacancy of Civil Surgeon-cum-Chief medical Officer at Hazaribagh to which post he has been transferred by the notification contained in annexure-1 in the consequential vacancy. There cannot be any doubt that the petitioner was transferred to the post in question in the consequential vacancy which was to occur after the superannuation of the respondent No, 4. There cannot be any doubt that the petitioner was transferred to the post in question in the consequential vacancy which was to occur after the superannuation of the respondent No, 4. Thus, it is difficult to hold that the petitioner had no legal right to challenge the validity of the impugned notification. 7. Mr. Sinha, learned Counsel for the respondent No 4 has also submitted that the writ application suffers from delay and gross lachas on the part of the petitioner and thus liable to be dismissed on this ground also. I do not find any substance in the said submission as well. The petitioner was specifically stated in the writ application that soon after retirement of respondent No 4 as submitted his joining report on 2-1-1995 in pursuance of annexure-1 but the same was not accepted on the ground that the service of respondent No.4 has been extended by the State Government in terms of notification dated 31-12-1994. It is true that this fact has been disputed by the respondent No.4 in the counter affidavit but further case of the petitioner is that he tried to find out the said latter/notification by which the service of the respondent No.4 has been extended. However, the petitioner on hectic search could get the said order dated 3j-12-1994, whereafter he filed a represei. tation before the State Government on 2-1-1995 disclosing the facts stated above, but till date no action has been taken on the said representation. In my opinion, in the said facts and circumastance the petition does not suffer from Any delay or laches. 8. The learned Counsel for the respondent No.4 submitted that noncompliance of the requirement as contained in Finance Department circular (annexure-5) would not invalidate the impugned notification inasmuch as. the government circular/instruction contained in annexure-5 cannot override rule 73 of the Bihar Service Code which is framed under Article 309 of the constitution of India. According to him, Rule 73 empowers the State Government whereas, by Finance Department circular the State Government vests power in the Council of Ministers through Finance Department. There has is no substance in the submission of the learned Counsel for the respondent No.4. According to him, Rule 73 empowers the State Government whereas, by Finance Department circular the State Government vests power in the Council of Ministers through Finance Department. There has is no substance in the submission of the learned Counsel for the respondent No.4. Under Rule 73 the State Government has been vested with the power to retain a Government servant in service after the date of his retirement and as per Government circular (annexure-5) the approval of Council of Ministers is required to be taken. It is well-settled that the State Government means council of Ministers unless there is any statutory rule under which the said power of the State Government has been delegated in any other authority. Learned Counsel for respondent No.4 has not been able to show that there is any such delegation in any other authority. Moreover, if the State government itself decided as to how the said power shall be exercised, in my opinion, there is no illegality in that. 9. Thus, if the notification regarding retention in service of respondent no.4 has been issued with the approval of the Council of Ministers through finance Department, the same cannot be sustained. 10. I fail to appreciate as to how it can be said, as has been argued by the learned Counsel for the petitioner that there has been substantial compliance in issuing the impugned notification, when in the Govt. decision, contained in annexure-5 it is absolutely clear that the approval of Council of ministers through Finance Department is to be taken before the notification regarding retention in service is issued. In my opinion, it is mandatory as is also evident from the very said Government decision (annexure-5) which further makes it clear that if no such order is issued, then the Goyt. service shall unilaterally stand relieved and his continuance thereafter would be unauthorised, illegal and serious action would be taken against such govt. servant. 11. Mr. In my opinion, it is mandatory as is also evident from the very said Government decision (annexure-5) which further makes it clear that if no such order is issued, then the Goyt. service shall unilaterally stand relieved and his continuance thereafter would be unauthorised, illegal and serious action would be taken against such govt. servant. 11. Mr. A. K. Sinba, learned Counsel for the petitioner, in support of the case of the petitioner has placed reliance on the order dated 10-1-95 in c. W. J. C No.3885 of 94, passed by a Division Bench at Patna of this court, a photo copy whereof has been annexed as annexure-6 to the writ application In the said case also the extension was grantion without the approval of the Cabinet through Finance Department and the Division bench held that such extension cannot be held to be valid or in confirmity with the Rules. Accordingly, the order impugned in the said case was quashed by their Lordships and it was held that it would be deemed as if the respondents were never re-appointed after their superannuation from service. 12. In the result, the writ application is allowed and the impugned notification, contained in annexure-1 is quashed. As it is nobodys case that since after the issue of the notification of transfer of the petitioner as Civil surgeon-cum-Chief Medical Officer, Hazaribagh contained in annexure-1 any change has been made in the area and also considering the urgency of the matter in view of ending of financial year, I consider it expedient to direct that the petitioner shall take ever charge and respondent No.4 shall band over charge of the office of Civil Surgeon-cum-Chief Medical Oflicer, hazaribagh forthwith. However, in the facts and circumstance, there shall be so order as to costs. petition allowed.