Judgment Untwalia, J. 1. The petitioner has obtained a rule from this Court against the Stale of Bihar and the Secretary to the Government of Bihar, Department of Labour and Employment, to show cause why the departmental proceedings pending against the petitioner for dismissal from service be not quashed on the ground that the petitioner retired from service with effect from the 4th of August, 1961, and any action taken or order made thereafter for retaining him in service for the purposes of departmental action are illegal and void. Cause has been shown by the learned Advocate-General on behalf of the respondents. 2. The petitioner was at the relevant time serving as Inspector of Boilers under the Government of Bihar. His case is that he retired from service on the 2nd of August, 1901, upon attaining the age of superannuation, i.e., 55 years. For the purposes of this case, it has been conceded on all hands that somehow or other the petitioner was treated as having completed the age of 55 years not on the 2nd of August, 1961 as it ought to have been according to the date of his birth, which was 2nd of August, 1906, but on the 4th of August, 1961, and that will be the date which will be referred to hereinafter as the date on which the petitioner completed his age of superannuation. It appears that sometime prior to the petitioners retirement the Government of Bihar in the Department of Labour and Employment decided that an enquiry should be made into the resources of the petitioner as there were reasons to believe that the petitioner had accumulated wealth by unfair means while he was in the service of the State Government as Inspector of Boilers. Annexure 1 to the counter- affidavit filed on behalf of the respondents is a copy of the resolution and the charge- sheet dated 15th of February, 1961, initiating the departmental enquiry against the petitioner. That enquiry was held by a special Officer, Political and Appointment Department, Government of Bihar, Shri K. P. Singh, who submitted a report on the 17th of August, 1961. Thereupon on 26th of October, 1961, the Government made an order suspending the petitioner from service with effect from the date on which the order was to be served on him which, according to the petitioners case, was served on 4th November, 1961. Thereupon on 26th of October, 1961, the Government made an order suspending the petitioner from service with effect from the date on which the order was to be served on him which, according to the petitioners case, was served on 4th November, 1961. A copy of the order is annexure A to the writ application and reads thus: "On conclusion of the enquiry on the charges framed in the departmental proceedings drawn up against Sri Section K. Chowdhury, Inspector of Boilers, in this Departments Resolution No. Con-35/60-954 dated 15-2-1961 he has been found to be in possession of pecuniary resources or property disproportionate to his known sources of income. The Governor of Bihar is, therefore, pleased to order that Sri S. K. Chowdhury shall be placed under suspension with effect from the date this order is served on him. During the period of suspension, Sri Chowdhury will draw subsistence grant at the rates mentioned in Rule 96 of the Bihar Service Code." Thereafter the Government of Bihar, in a letter addressed to the Accountant-General of Bihar, informed him that the petitioners service had been extended on ground of public service for a period of 4 months with effect from the 5th August, 1961. This order was communicated to the petitioner by Memo No. 8277 dated 2nd November, 1961, by the Under-Secretary to the Government of Bihar, a copy of which is Annuxure B to the writ application. The order communicated is in these terms: "I am directed to convey the sanction of the State Government, under Rule 73(a) of the Bihar Service Code, to the extension on grounds of public service of the services of Sri Susil Kumar Chowdhury, Inspector of Boilers for a period of four months with effect from the 5th August, 1961." The petitioners case further is that he has not made any application for extension of his service after the age of superannuation nor has he been paid any salary or subsistence allowance for any period after the 31st of July, 1961. On the 9th of December, 1961, the petitioner received a letter dated 1st December, 1961, from the Government of Bihar, Department of Labour and Employment, asking him to show cause "against the punishment of dismissal from Government service proposed to be Inflicted upon him within 15 (fifteen) days of receipt of this order or by the 25th December, 1961 whichever is later." A copy of this letter is Annexure C to the writ application. The petitioners contention is that the proposed punishment of dismissal from service mentioned in Annexure C is ultra vires and void as the petitioner must be deemed to have retired on attaining the age of superannuation on 4th August, 1961, and the order of suspension passed on the 26th of October, 1961, and the order dated 2nd November, 1961, extending his service retrospectively with effect from 5th of August, 1961, under Rule 73(a) contained in the Bihar Service Code are illegal and ultra vires. 3. I shall state a few more facts with reference to the counter-affidavit filed on behalf of the respondents and the rejoinder to it filed by the petitioner before I proceed to discuss and decide the points urged on his behalf. In the 7th paragraph of the counter-affidavit, it is stated that the petitioner had applied to Commissioner of Labour, Government of Bihar, by his petition dated 18th of October, 1960, a copy of which is Annexure 2 to the counter-affidavit, praying for extension of his service for a period of 2 years after superannuation. In the 6th paragraph of the counter-affidavit it is stated that "due to certain sanctioned posts of Inspector of Boilers having remained vacant it had been considered necessary to retain the petitioner in service beyond the date of his compulsory retirement in the interest of public service as contemplated under Rule 73(a) of the Bihar Service Code, verbal intimation had already been given to the petitioner and the Chief Inspector of boilers to this effect which was subsequently confirmed by a telegram dated 4th September, 1961." It is thus claimed that the petitioner continued in Government service and did not make over charge of his duties on the 4th of August, 1961. In the rejoinder of the petitioner, the facts stated in the 6th and 7th paragraphs of the counter-affidavit have been refuted, and copies of series of letters exchanged between the petitioner and the Government have been annexed as Annexures D to D/12, showing that the petitioners service was not extended under Rule 73(a) of the Bihar Service Code upon his application filed in October, 1960. It is further stated that on the 5th August, 1961, the petitioner telephonically informed the Commissioner of Labour that, since he had already retired from service, arrangements should be made for taking over charge from him. The Commissioner replied that he was sending a man for taking over charge from the petitioner. Since nobody turned up to take charge, formal charge could not be made over, but the petitioner did not receive any salary or other emoluments after the 31st of July, 1961. I may state at this stage that, although a paper from the records received by the Advocate-General from the Department of Labour and Employment showing the formal making over of charge by the petitioner on the 4th of November, 1961, was shown to us at the time of the hearing of this case, nothing was shown as to whether he did any work on or from the 5th of August, 1961, or was paid any emolument after the 31st of July, 1961, either by way of salary or subsistence allowance after the order of suspension was made against him. 4. From the facts stated above, it is clear that although the proceedings were started against the petitioner in February, 1961, no order of suspension was made against him prior to the 26th October, 1961. The petitioner was anxious to make over charge on the 5th of August, 1961--on the date of his compulsory retirement--on attaining the age of superannuation, may be, because departmental proceedings were pending against him, and the Government were not prepared to relieve him obviously for the same reason. In such a situation, can it be said that retention of the petitioner in service under Rule 73(a) of the Service Code was on public grounds, i.e., in the interest of public service as mentioned in the order of retention dated 2nd November, 1961 or as stated in the 6th paragraph of the counter-affidavit that the petitioners services were necessary to be retained? I am doubtful whether power under Rule 73(a) can be unilaterally exercised by the Government without the consent of the Government servant. Even assuming that it could be so, the facts glaringly speak out that it was a colourable exercise of this power not for purposes of public service as mentioned in the order dated 2nd November, 1961, and further elucidated in the 6th paragraph of the counter-affidavit but for the purpose of bringing the departmental proceedings initiated at the time when the petitioner was in service to a conclusion even after his retirement. Rule 73(a) says : "Except as provided in other clauses of this rule the date of compulsory retirement of a Government servant, other than a ministerial or inferior government servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds which must be recorded in writing." Again, assuming in favour of the Government that the expression public grounds in view of Rule 73(a) would include a ground for bringing the departmental enquiry to a conclusion against a delinquent Government servant, it is difficult to hold in this case on the face of the impugned order dated 2nd November, 1961, and the statements made in the 6th paragraph of the counter-affidavit that the petitioner was retained in service after the date of compulsory retirement on those grounds. Rule 73(f) says: "Notwithstanding anything contained in foregoing clauses, a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by the competent authority." This rule in terms could be availed of and applied to the case of the petitioner only if he would have been placed under suspension on a charge of misconduct prior to his date of compulsory retirement, i.e., 5th of August, 1961, and then he could be retained in service until the enquiry into the charge was completed and a final order was passed thereon by a competent authority. It is undisputed that the Government could place the petitioner under suspension when a departmental enquiry was contemplated or pending against him, and having failed to do so, it seems to me, they proceeded to suspend him on the 26th of October, 1961, when there was no order of extension of his service under Rule 73(a) of the Code. The Government thereafter proceeded to extend his service by order dated 2nd of November, 1961, retrospectively from the 5th of August, 1961, in order to patch up and cover their own negligence of not having taken any action against the petitioner by complying with the requirements of Rule 73(f) of the Service Code. In that view of the matter I have no hesitation in holding that the order of extension of service made on the 2nd of November, 1961, under Rule 73(a) was, in law, mala fide and a colourable exercise of power and consequently the order is vitiated. That being so, it is manifest that the order of suspension made against the petitioner on the 26th of October, 1961, cannot be held to be valid and consequently it follows that the petitioner could not be retained in service in exercise of the powers under Rule 73(f) of the Service Code until the enquiry into the charge was concluded and final order was passed thereon by the competent authority. I may also add that no specific order seems to have been passed under Rule 73(f) of the Service Code retaining the petitioner in service in exercise of the powers of the Government under the said rule. Be that as it may--and very much as I wish that a delinquent Government servant should not be allowed to escape the consequences of the departmental proceedings if charges be found to have been proved against him--but with greatest reluctance, I have got to hold in this case that the Government having failed to take appropriate action at the appropriate time as required by the rules of the Service Code cannot now punish the petitioner as a result of the departmental enquiry. 5. 5. In the result, the application is allowed and it is held that the petitioner retired from service on and from the 5th of August, 1961, on attaining the age of superannuation and that the order of suspension dated 26th October 1961 contained in Annexure A, the order of Extension of service dated 2nd of November, 1961, contained in annexure B and the second notice under Article 311(2) of the Constitution of India dated 1st December, 1961, contained in Annexure C to the writ application are ultra vires, illegal and void and must be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. In the circumstances of the case, I would make no order as to cost. V.Ramaswami, J. 6 I agree.