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. 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