Judgment Shiva Kirti Singh, J. 1. The petitioner in this writ application was a Judicial Officer who was appointed as a Munsif in Bihar Judicial Service on 15.4.1976 and joined his service on 8.9.1976. He was confirmed on the post of Munsif after two years and was promoted to the post of Sub-Judge in 1989 and joined as such at Dhanbad in May, 1989. Subsequently he was posted as such at Naogachhia within the district of Bhagalpur and lastly at Katihar. 2. While at Katihar the petitioner received a letter dated 15.4.1997 from District and Sessions Judge, Katihar as contained in annexure-8 through which he was communicated that in view of confidential letter dated 15.4.1997 of the Registrar General, High Court, Patna the petitioner was relieved of all judicial work forthwith. Thereafter petitioner found out details of High Courts letter dated 15.4.97 (annexure-9) by which the Registrar General of the High Court has communicated the recommendation of the High Court to retire the petitioner compulsorlly in public interest under Rule 74(b) (ii) of the Bihar Service Code (hereinafter referred to as the Code). Initially through this writ application filed on 15.5.97 the petitioner sought quashing of annexures 8 and 9 on the ground that his service record contained very limited adverse entries and it did not warrant any recommendation for his compulsory retirement in public interest. His other stand was that although he had completed 50 years of age but had completed less than 25 years of service and therefore by virtue of provisions in the Bihar Pension Rules 1950 he would not get his full pension and therefore any order of compulsory retirement in his case would amount to an order of. punishment and would therefore be violative of Article 311 of the Constitution of India. 3. It appears that the writ application was admitted for hearing on 18.11.97 and thereafter through I.A. 12681/98 filed on 3.2.98 the petitioner prayed for amendment in the writ application and brought on record a copy of the State Governments order dated 12.12.1997 as annexure-12 to the said interlocutory application. 3. It appears that the writ application was admitted for hearing on 18.11.97 and thereafter through I.A. 12681/98 filed on 3.2.98 the petitioner prayed for amendment in the writ application and brought on record a copy of the State Governments order dated 12.12.1997 as annexure-12 to the said interlocutory application. The petitioner, by way of amendment sought quashing of aforesaid order dated 12.12.1997 (annexure-12) on the grounds raised earlier in the writ application and also on the ground that the order of compulsory retirement was made effective against him by service of a copy thereof before 25.12.97 but the same was in violation of mandatory provision of Rule 74(b)(ii) of the Code which require that such order should be passed only after giving three months previous notice or an amount equal to three months pay and allowance in lieu of such notice; but petitioner was not given three months previous notice or three months pay and allowances in lieu of such notice. The amendment in the writ petition prayed for through the aforesaid I.A. was allowed on 2.4.98 and liberty was given to the respondents to file counter affidavit if they so desired. The record of this case, however, shows that a counter affidavit was filed on behalf of respondent no.2, the High Court, Patna on 12th November, 1999. Besides that no counter affidavit was filed by any of the respondents. 4. The record of this case, however, shows that a counter affidavit was filed on behalf of respondent no.2, the High Court, Patna on 12th November, 1999. Besides that no counter affidavit was filed by any of the respondents. 4. In the facts of the case and in view of amended writ application, learned counsel for the petitioner, at the stage of hearing, challenged the recommendation dated 15.4.97 (annexure-9) as well as the final order of compulsory retirement dated 12.12.1997 (annexure 12) mainly on the following three grounds : (i) Rule 74 (b) (ii) of the Code no doubt gives power to the appointing authority to retire a government servant in public interest on or after he completes 30 years of qualifying service or attains 50 years of age but this provision should be read along with Rules 134 and 135 of the Bihar Pension Rules, 1950 and on such reading it should be held that retiring pension is granted to a government servant only when he has completed 25 years of qualifying service or more and therefore, the order of compulsory retirement in case of a government servant who has not completed 25 years of qualifying service must be taken as a punishment and therefore in such cases the protection of Article 311 of the Constitution of India should be held to be applicable. Since such protection was admittedly not afforded to the petitioner hence the impugned order of compulsory retirement should be quashed, (ii) the Adverse material in the service record of the petitioner are not adequate and not of such nature as to warrant an order of compulsory retirement in public interest. The impugned orders are, therefore, arbitrary and mala fide, (iii) Rule 74 (b) (ii) of the Code contains a mandatory condition that the appointing authority may require a government servant to retire from service in public interest after giving a government servant atleast three months previous notice in writing, or an amount equal to three months pay and allowance in lieu of such notice. Since in the case of the petitioner no notice or an amount equal to three months pay and allowance in lieu of notice have been given hence the impugned order is illegal and fit to be quashed. 5. Since in the case of the petitioner no notice or an amount equal to three months pay and allowance in lieu of notice have been given hence the impugned order is illegal and fit to be quashed. 5. Before adverting to consider the aforesaid submission it is deemed relevant to quote Rule 74 (b) (ii) and (iii) of the Code :- Rule 74 (b) (ii) The appointing authority concerned may after giving a government servant atleast 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 30 years of qualifying service or attains 50 years of aqe or on any date thereafter to be specified in the notice. (iii) A government servant who retires voluntarily or is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity. So far as the first contention raised on behalf of the petitioner is concerned, the same is apparently misconceived and devoid of merit. The provisions in Rule 74 (b) (ii) & (iii) of the Code are clear and hence there is no necessity to refer to provisions of the Bihar Pension Rules, 1950 for the purpose of finding out whether retiring pension will be available to the petitioner or not. Rule 74(b) (ii) is clear that a government servant may be required to retire in public interest on or after completing 30 years of qualifying service or on attaining 50 years of age. Use of the word "or" clearly signifies that if any of the two conditions are fulfilled, the appointing authority has the power to require a government servant to retire from service in public interest. Rule 74(b) (iii) which was substituted in place of earlier provision by G.S.R. 19 dated 12.2.1973 creates entitlement for retiring pension to a government servant who is required to retire in public interest under this rule. 6. Rule 74(b) (iii) which was substituted in place of earlier provision by G.S.R. 19 dated 12.2.1973 creates entitlement for retiring pension to a government servant who is required to retire in public interest under this rule. 6. On behalf of petitioner reliance was placed on a judgment of the Supreme Court in the case of Shyam Lal V/s. State of U.P. ( AIR 1954 S.C. 369 ) to support the argument that loss in pension would render an order of compulsory retirement penal in nature. There is nothing in, the said judgment to support the aforesaid contention rather paragraphs 18 and 19 fully clarify that on compulsory retirement a government servant will be entitled to the pension etc. that he has actually earned. Unlike in the case of dismissal or removal there is no loss of any accrued benefit and the loss of future prospect is too uncertain to be regarded as a punishment in the eye of the law. On behalf of the respondents also it was submitted that petitioner would be entitled to pension already earned by virtue of his service rendered before compulsory retirement as per provisions in Rule 145 of the Bihar Pension Rules which shows that minimum qualifying service for pension etc. is only 10 years. For the aforesaid reasons, I find no merit in the first contention raised on behalf of the petitioner and the same is accordingly rejected. At the same time, it is apparent from undisputed averments in some of the interlocutory applications filed on behalf of the petitioner that till date he has not been paid any pension. On behalf of the respondents it was urged that it is not clear whether the petitioner has filed application for pension and submitted necessary paper for the same or not. Keeping in view the stand of the petitioner and his apprehension, it is made clear that government servant who is made to retire in public interest under Rule 74(b) (ii) of the Code is entitled for retiring pension in accordance with law. 7. The second contention on behalf of the petitioner is that there is only one adverse remark against the petitioner which was not expunged by the High Court inspite of his representation, besides a punishment of censor. All these materials, according to the petitioner, are not sufficient for passing an order of compulsory retirement. 7. The second contention on behalf of the petitioner is that there is only one adverse remark against the petitioner which was not expunged by the High Court inspite of his representation, besides a punishment of censor. All these materials, according to the petitioner, are not sufficient for passing an order of compulsory retirement. According to him several complaints against his integrity and inefficiency were engineered by some persons inimical towards him and hence those materials should also not be taken into consideration. 8. On the aforesaid issue on behalf of respondent, High Court, it was contended that the entire relevant materials relating to petitioners service as indicated in paragraphs 8 and 9 of the counter affidavit, were taken into consideration by the Standing Committee of the High Court as well as by the Full-Court before a decision was taken to compulsorily retire the petitioner. It was further submitted that since an order for compulsory retirement does not amount to an order of punishment hence the scope of judicial review is quite limited and only to the extent of finding out that the order must be based upon some material. If there are some relevant materials available against the concerned government servant then the court is not required to substitute its own judgment in place of judgment of appointing authority. It is only when there is no material to justify an order of compulsory retirement then a court can interfere on account of arbitrariness or mala fide. The aforesaid submissions appeared to be well founded as is apparent from judgments of the Apex Court in the case of Chief General Manager, State Bank of India V/s. Suresh Chandra Behera, reported in (1995) 3 S.C.C. 608 , and in the case of Madan Mohan Choudhary V/s. State of Bihar ( AIR 1999 S.C. 1018 ). 9. So far as the facts of this case are concerned, there are admitted materials available against the petitioner by way of reports, adverse remarks and order of censor and in the facts of the case, it cannot be said that the order of the High Court for petitioners compulsory retirement is based upon no material or is arbitrary or mala fide. 9A. 9A. While still on second contention in fairness to learned counsel for the petitioner, it must be noted that he faintly suggested that since by orders dated 25.7.96 (annexure-7) and 15.4.97 (annexure-7/a) the petitioner was allowed first level and second level respectively of need based higher scales, hence it should be deemed that all the adverse reports and entries existing till day were wiped out. On its face, his argument looks attractive but it cannot be accepted for the reason that by annexure-7 the higher scale was granted with effect from 1.1.1986 and by annexure 7/a with effect from 2.8.1991 and therefore the High Court could have considered the adverse materials available against the petitioner only till the aforesaid relevant dates of 1986 to 1991. Apparently whatever was lawfully due to the petitioner from the relevant date was granted to him after the Standing Committee of the High Court in its meeting dated 28.3.1997 had already taken a d cision for making a recommendation for compulsory retirement of the petitioner and the Full-Court had approved the said decision on 5th April, 1997. Allegations of mala fide were also sought to be raised against some Judicial Officers but they have not been made party to this writ application and as per counter affidavit of respondent no.2 the said officers had no role to play in the decision taken by the Standing Committee of the High Court and also by the Full Court. 10. Thus, there is no substance in any of the aforesaid contentions and there is no legal infirmity in the order contained in annexure-9 which contains recommendation by the High Court for compulsory retirement of the petitioner in public interest under Rule 74 (b) (ii) of the Code after giving him three months salary in lieu of three months notice. Annexure-8 is only the consequence of annexure-9 and hence the same also suffers from no legal infirmity. 10A. So far as impugned order dated 12.12.97 contained in annexure-12 is concerned, it does not suffer from any infirmity on account of the earlier contention noticed above with regard to annexures 8 and 9 but its validity remains to be decided with regard to third contention based upon averments made in paragraph-8 of the I.A. No. 1268/98 to the effect that the petitioner has not been given three months notice or salary in lieu of such notice. As noticed earlier, the contention on behalf of the petitioner is that on account of such dis-regard of provisions in Rule 74 (b) (ii) of the Code the order of compulsory retirement actually passed against the petitioner is bad in law and fit to be quashed. So far as the facts relating to aforesaid contention are concerned, there is no counter affidavit by any of the respondents to deny the aforesaid fact nor any statement in this regard was made even at Bar. Thus, it appears to be an admitted fact that till date the State of Bihar has neither given a notice nor salary in lieu of such notice as required by Rule 74 (b) (ii) of the Code. 11. The provisions in rule 74(b) (ii) are clear in requiring that an order of compulsory retirement contemplated by the said rule should be passed after giving the requisite three months notice or three months salary in lieu of such notice. In this case the respondents have not pleaded or argued any case of substantial compliance with the aforesaid requirement of Rule 74 (b) (ii) or a case of waiver by subsequent acceptance or requisite amount by the petitioner without protest etc. Hence, I am left with no option but to hold that the impugned order of compulsory retirement of the petitioner as contained in annexure-12 is bad in law for total want of requisite three months notice or three months salary in lieu of such notice and lor this reason alone the impugned order contained in annexure-12 is found fit to be quashed and is hereby quashed. 12. A perusal of annexure-9 shows that the High Court had duly recommended to compulsorily retire the petitioner under public interest under Rule 74(b) (ii) of the Code on giving him three months salary in lieu of three months notice. From annexure-2 it is further clear that the State of Bihar accepted the aforesaid recommendation but the concerned officials while carrying out the valid recommendation of the High Court duly accepted by the State of Bihar, failed to perform their duty as enjoined by Rule 74 (b) (ii) of the Code and also recommendation of the High Court followed by the decision of the State of Bihar and as a result the petitioner was not paid three months salary in lieu of notice. Hence, while quashing annexure-12 on the aforesaid ground it is deemed necessary to direct all the concerned officials of the State of Bihar to forthwith carry out their aforesaid duty and pay to the petitioner all the dues of salary etc. from the date of his compulsory retirement by virtue of annexure-12 till a fresh order is served upon him in accordance with taw after paying the requisite three months salary in lieu of notice. The aforesaid exercise must be completed as expeditiously as possible and in any case within two months from today. Since the aforesaid liability of payment of salary to the petitioner till passing of a fresh order of compulsory retirement has arisen on account of obvious lapses on part of concerned officials hence the State of Bihar is directed to hold an enquiry in this matter and fix responsibility in accordance with law and thereafter it would be open to the State to realise the amount in question from the concerned officials found responsible for such obvious and apparent lapse. Let a copy of this judgment be sent to the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna for necessary compliance in this case and also for future guidance. He is directed, in public interest as well as in the interest of justice, to get the necessary inquiry completed within six months from today and send a copy of the report along with intimation of the action, to this Court within the aforesaid time. 13. With the aforesaid observations/directions this writ application is allowed to the extent indicated above. In the facts and circumstances of the case, there shall be no order as to costs. N.Pandey, J. 14 I agree.