Judgment Chandramauli Kr.Prasad, J. 1. On a difference of opinion between the Judges constituting the Division Bench, this case has been placed before me. 2. Facts lie in a narrow compass. Petitioners are the members of the Bihar Judicial Service and on the recommendation of the High Court, the State Government in exercise of its power under Rule 74 (b) (ii) of the Bihar Service Code (hereinafter to be referred to as the Code) made the petitioners to retire from service in public interest by giving an amount equal to three months pay and allowance in lieu of three months previous notice. The pay and allowance in lieu of notice, although have been paid, but not on the date or prior-to the termination of their services. 3. Honble Mr. Justice Aftab Alam finding the order of retirement of the petitioner in public interest to be bad in law on account of non payment of pay and allowance simultaneously or prior to the date of termination of their services, set aside the same and while doing so he observed as follows:- "27. To my mind the requirements of rule 74(b)(ii) are plain and simple. The Appointing Authority proceeding to require a government servant to retire in terms of the rule is obliged to give him a notice in writing, specifying the date of his retirement. In case the Appointing Authority opts to take the alternative of three months notice, the specified date of retirement must fall at least three months after the date of service of notice on the concerned government servant. In the other case the payment of three months pay and allowance in lieu of three months notice must be made to the concerned government servant either before or along with the service of retirement notice, failing which the purported retirement would be non-est and a nullity in the eyes of law. 28. Acceptance of three months pay and allowance by the concerned government servant on a date later than the one specified in the retirement order would also not alter the legal position and would not validate an action which was initially void." 4. Honble Mr. 28. Acceptance of three months pay and allowance by the concerned government servant on a date later than the one specified in the retirement order would also not alter the legal position and would not validate an action which was initially void." 4. Honble Mr. Justice Shiva Kirti Singh, however, declined to interfere with the order of retirement in public interest on the ground that the petitioners accepted the pay and allowance in lieu of three months notice without any protest and hence the petitioners have abandoned the right to challenge the impugned order on the principle or waiver. Singh, J. observed as follows :- "42. So far as the provisions in Rule 74(b)(ii) of the Code are concerned, as discussed earlier, the relevant part requiring notice or salary and allowances in lieu thereof have been inserted only for the benefit and protection of the individual government servant concerned who can dispense with the same without infringing any public right or public policy. So far as the relevant facts on this issue are concerned, it is clear that after service of impugned order of compulsory retirement the petitioners accepted the same without any protest to the concerned authorities; they however worked or attempted to work on their posts and subsequently accepted the pay and allowances in lieu of three months notice, again without any protest. In these facts in my view, although the petitioners had a right in law to get the salary and allowances in lieu of notice prior to their compulsory retirement but the said right being an individual and private rights of the petitioners, has been relinquished by them by their conduct and hence, their prayer before this Court on the basis of aforesaid right cannot be allowed on account of waiver." 5. It is relevant here to state that Alam, J. in categorical terms has held the provisions of Rule 74(b)(ii) of the Code to be mandatory in nature and breach thereof rendering the order of retirement in public interest illegal in the eye of law, but Singh, J. had reservation about the same and in the opinion of his Lordships it appears doubtful as to whether the requirement of prior notice or prior payment of requisite pay and allowance in lieu of such notice should be held to be mandatory, more so when the provision is not couched in negative words so as to prohibit use of the given power without complying with the prescribed condition and no consequence has been mentioned in the Code for any deviation or non-compliance." 6. However, Singh, J. did not express his concluded opinion and proceeded to examine the case assuming Rule 74(b)(ii) of the Code to be mandatory and finding that the petitioners having accepted the pay and allowance in lieu of three months notice, did not interfere with the impugned order observing that the petitioners have waived their right. 7. Mr. Tej Bahadur Singh appearing on behalf of the petitioner in C.W.J.C. No. 9989 of 1997 whereas Mr. Ashok Kumar Sinha appearing on behalf of petitioner in C.W.J.C. No. 11689 of 1987 submit that an amount equal to three months pay and allowance in lieu of three months notice has to be paid if not before but atleast simultaneously with the order of retirement in public interest and breach thereof shall render the impugned order illegal in the eye of law. 8. Mr. S.Alamdar Hussain appearing on behalf of the respondents, however, submits that the petitioners have accepted the amount equal to three months pay and allowance in lieu of notice without any protest and as such they cannot be permitted to question the order retiring them in public interest subsequently on the plea that the same was not paid to them simultaneously. Thus the learned counsel for the petitioners support the view taken by Alam, J. whereas Mr. Hussain made endeavour to show that view taken by Singh, J. is correct. 9. Neither on principle nor on precedent I am inclined to accept the submission of the learned counsel for the petitioners. Thus the learned counsel for the petitioners support the view taken by Alam, J. whereas Mr. Hussain made endeavour to show that view taken by Singh, J. is correct. 9. Neither on principle nor on precedent I am inclined to accept the submission of the learned counsel for the petitioners. It is common ground that the petitioners are governed by the Code and the Appointing Authority had exercised the power under Rule 74 (b) (ii) of the Code to retire the petitioners in public interest. Said rule reads as follows :- "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 age of on any date thereafter to be specified in the notice. 10. From a plain reading of the aforesaid provision it is clear that the appointing authority after giving atleast three months previous notice in writing require a Government servant to retire in public interest. Alternatively such a Government servant can be retired in public interest on payment of an amount equal to three months pay and allowance. 11. No hard and fast formula of universal application can be laid to test as to whether certain provision is mandatory or directory but this much is certain that language alone more often is not decisive and regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. The first question is as to whether Rule 74(b)(ii) of the Code is mandatory or directory or mandatory and directory provisions are lumped together. It is true that if provision is mandatory, act done in breach thereof will be invalid but if it is directory the act will be valid notwithstanding its non compliance. A mandatory enactment has to be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. It is also possible that in the Statute a part of the requirement may be mandatory and a part directory. 12. A mandatory enactment has to be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. It is also possible that in the Statute a part of the requirement may be mandatory and a part directory. 12. In my opinion, in a case in which the appointing authority exercises the power to retire a Government servant in public interest by making payment of an amount equal to three months pay and allowance in lieu of notice, such a payment is not required to be made simultaneously. Giving atleast three months previous notice may be mandatory but there is nothing in the Code to suggest that payment has to be made simultaneously when the order of retirement in public interest is served on the Government servant. In my opinion payment of an amount equal to three months pay and allowance in lieu of notice is directory in nature. I am further of the opinion that in Rule 74(b)(ii) mandatory and directory requirements are lumped together and the mandatory requirement of making payment of three months pay and allowance has been substantially complied with as it often said that if the directory requirement is fulfilled substantially same will not invalidate the action. 13. I do not know for what reason reference to the treatise of living persons are not made but the universal respectability the Principle of Statutory Interpretation (7th Edition, page 290) by Justice Guru Prasanna Singh had achieved. I am tempted to refer to the following passage to drive home my point :- "The correct position appears to be that substantial compliance of an enactment is insisted, where mandatory and directory requirement are lumped together, for in such a case, if mandatory requirements are complied with it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance of directory requirements. The point may be explained by taking an example of a set of service rules which provide that adverse remarks shall be communicated to the civil servant concerned ordinarily within seven months. The object of communicating the adverse remarks is to give an opportunity to the civil servant to improve his performance to make up the deficiency noticed in his work and to give him an opportunity to represent against the remarks, in case he disputes them, to the reviewing authority. The object of communicating the adverse remarks is to give an opportunity to the civil servant to improve his performance to make up the deficiency noticed in his work and to give him an opportunity to represent against the remarks, in case he disputes them, to the reviewing authority. In the light of this object and haying regard to the part adverse remarks play in the service career, the rules on a proper construction will require (i) communication of the remarks to the civil servant concerned; (ii) communication within a reasonable time; and (iii) communication ordinarily within seven months. The first two requirements will be construed as mandatory and non-compliance of either of them will make the remarks as also any adverse action on their basis invalid. The third requirement will be treated, as directory and its non-compliance alone will not make the remarks invalid if the first two requirements are satisfied. This example illustrates the lumping of mandatory and directory requirements at one place and substantial compliance with them if mandatory part is complied with even if the directory part is not complied with." 14. In my opinion the point in issue is not res-integra and the Supreme Court had the occasion to consider this question in Civil Appeal No. 1734 of 1968 (State of U.P. V/s. Dinanath Rai) disposed of on 11.10.1968. In the said case the rule which was the subject matter of discussion, reads as follows :- "6(1) Notwithstanding anything to the contrary in any existing rules and orders on the subject, the services of Government servant in temporary service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. (2) The period of such notice shall be one month given either by the appointing authority to the Government servant, or by the Government servant to the appointing authority, provided that in the case of notice of the appointing authority the latter may substitute for the whole or part of this period of notice pay in lieu thereof, provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period, without requiring the Government servant to pay any penalty in lieu of notice." 15. On consideration of the aforesaid rule the Supreme Court observed as follows:- "The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Knowing the way the Governments are run, it would be difficult to ascribe this intention to the rule-making authority. There is no doubt that the Government servant would be entitled to the pay in lieu of notice but this would be in the ordinary course." 16. It is relevant here to state that Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 contemplates of termination of temporary service, rule 5 thereof reads as follows :- "5. Termination of temporary service" 1(a).The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. (b) the period of such notice shall be one month : Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice fails short of one month." 17. The aforesaid rule came up for consideration before the Supreme Court in the case of Senior Superintendent R.M.S. Cochin and another V/s. K.V. Gopinath, Sorter (A.I.R. 1972 S.C. 14187) and taking note of the provision of the rule that service of "Government servant may be terminated forthwith by payment to him a sum equivalent to amount of his pay plus allowance for the period of notice immediately before the termination of his service" observed as follows :- "In this case, as we have already noted, "termination forthwith" is to be "by payment to the Government servant" of the sum mentioned. Payment is a condition of the termination of service forthwith. The facts of this case show that the circular which formed the basis of the order of termination was issued on the 12th September, the employee, it would appear, had absented himself from duty on the 19th September. Payment is a condition of the termination of service forthwith. The facts of this case show that the circular which formed the basis of the order of termination was issued on the 12th September, the employee, it would appear, had absented himself from duty on the 19th September. The appointing authority had at least six days within which time the amount due to the respondent could have been calculated." 18. It seems that after the aforesaid judgment Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 was amended, which reads as follows :- "5. Termination of temporary service (1) (a) The services of temporary Government servant who is not in quasi- permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) The period of such notice shall be one month: Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services of as the case may be for the period by which such notice falls short of one month." 19. The Supreme Court in the case of Raj Kumar V/s. Union of India and others (A.I.R. 1975 S.C. 1116) considered the effect of amendment and held that it was not obligatory to pay to the Government servant a sum equivalent to the amount of his pay and allowances for the period of the notice simultaneously. In the said case it has been observed as follows:- "The effect of this amendment is that on 1st May, 1965 as also on 15.6.1971, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (A.I.R. 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established, that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be dismissed." 20. The effect of non payment of pay and allowances for the period of notice as provided under rule 5(i)b of the Central Civil Service (Temporary Service) Rules also fell for consideration before the Supreme Court in the case of Union of India and others V/s. Arun Kumar Roy (A.I.R. 1986 S.C. 737) and has concurred that the view taken by the Supreme Court in the case of Raj Kumar (supra). 21. Regulation 12 of the National Co-operative Development Corporation Service Regulation which also contemplates termination of service of an employee by notice or pay in lieu thereof reads as follows:- "12. Termination of service of an employee:- (1) The service of temporary employee other than a probationer terminated by giving him one months notice or salary in lieu thereof. (2) The services of a permanent employee may be terminated by giving three months notice or salary in lieu thereof if he is declared medically unfit on account of any ailment which he develops while in service disabling him from discharging his normal duties or if the post is abolished. (3) The power to terminate the services of an employee may be exercised by the appointing authority." 22. Considering the aforesaid rule the Supreme Court in the case of Bachi Ram V/s. Union of India and ors. (3) The power to terminate the services of an employee may be exercised by the appointing authority." 22. Considering the aforesaid rule the Supreme Court in the case of Bachi Ram V/s. Union of India and ors. (A.I.R. 1986 S.C. 999) observed as follows:- "As the ratio in Gopinaths case ( AIR 1972 SC 1487 ) has been held to be not good law in Raj Kumars case ( AIR 1975 SC 1116 ) it goes without saying that the decision in the Textile Committee case (1983 (1) Serv LR 416) is not a correct one and consequently the appellants reliance on that decision to contend that his termination of service without simultaneous payment of "notice salary" (is invalid) is misconceived. For the limited purpose for which leave was granted for the appeal the enunciation of law made above will serve the purpose. Even so, we feel persuaded to refer to a recent decision of this Court in Union of India -v.- Arun Kumar Roy (1986) (1) SCC 675; ( AIR 1986 SC 737 ) to which one of us was a party (A.P.Sen, J.) to make the judgment complete and the enunciation of law up-to-date." Fundamental Rule 56 (j) which contemplates retirement in public interest reads as follows :- 56. (i)"Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice; (i) If he is in Group A or Group B service or post in a substantive, quasi permanent or temporary capacity, or in a Group C post or service in a substantive capacity, but officiating in a Group A or Group B posts or service and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years: (ii) in any other case after he has attained the age of 55 years. 23. A Division Bench of the Delhi High Court had the occasion to consider the aforesaid rule in the case of L.C. Bawa V/s. V.K.Kapoor and anr. (1987 Lab. 23. A Division Bench of the Delhi High Court had the occasion to consider the aforesaid rule in the case of L.C. Bawa V/s. V.K.Kapoor and anr. (1987 Lab. I.C. 1878) and held as follows :- "On the plain reading of F.R. 56 (j) it is unmistakably clear that the order of retiring prematurely an official can be passed only by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice which would mean that the giving of notice of not less than three months has to be atleast three months prior to the passing of such an order or in the alternative in lieu of such a notice three months pay and allowances have to be paid to the official sought to be retired prematurely either prior to the passing of such an order or atleast simultaneously with the passing of such an order and if this is not done the order of premature compulsory retirement cannot be passed and in this view of the mater such an order would be invalid." 24. On a review of the decision of the Supreme Court I am of the considered opinion that the effect of non payment of pay and allowances simultaneously or prior to the order of termination shall depend upon the wording of the rule. In the case of K.B.Gopinath (supra) the Supreme Court taking into consideration the expression used in the rule "Government servant may be terminated forthwith by payment" came to the conclusion that the payment has to be simultaneous. Rule 74(b)(ii) of the Code under which the petitioners have been retired in public interest does not contemplate of payment forthwith but contemplates payment of an amount equal to three months pay and allowances in lieu of such notice. The rule under consideration is somewhat similar to the rule which was a subject matter of discussion by the Supreme Court in the case of Raj Kumar (supra) and in the said case non-payment of pay and allowances was not held to be fatal. In the case of Bachi Ram (supra) the Supreme Court was considering Regulation 12 of the National Co-operative Development Corporation Service Regulation which has been quoted in the preceding paragraph of this judgment and Rule 74(b)(ii) of the Code under which the power had been exercised has also been quoted above. In the case of Bachi Ram (supra) the Supreme Court was considering Regulation 12 of the National Co-operative Development Corporation Service Regulation which has been quoted in the preceding paragraph of this judgment and Rule 74(b)(ii) of the Code under which the power had been exercised has also been quoted above. While considering Rule 12 of the Regulation the Supreme Court held that non-payment of the salary simultaneously shall not invalidate the order. 25. A comparison of the aforesaid rules clearly show that in sum and substance their effect is one and the same. Thus on principle as also precedent I am of the opinion that the non-payment of the pay and allowance simultaneously or before the order of retirement in public interest takes effect shall not render the order illegal in the eye of law. 26. Hence I agree with my noble and learned brother Alam, J. to the extent that giving three months notice is mandatory. In my opinion requirement of payment is directory in nature and the non-payment of the pay and allowance for the period of notice simultaneously or prior to the order of retirement taking effect shall not invalidate the order of retirement in public interest and to this extent I regret to disagree with his view. 27. Accordingly, I am of the opinion that both the writ applications deserve to be dismissed and they are accordingly dismissed. No costs.