Judgment :- (Delivered by VEERASWAMI C.J.) The appeals are from an order of Venkatadri J. allowing the first respondents petitions to quash his compulsory retirement by an order G.O.Ms. No. 906, Home dated 15th March 1965. The learned Judge was of the view that though the order in form was a compulsory retirement, in effect, in the background of the circumstances, it amounted to an order of punishment without going through the procedure under Art. 311(2) of the Constitution. He was also of opinion that the order was but a cover and, in any case, the particular rule empowering the Government to compulsorily retire him in the circumstances provided for unguided power and it was therefore bad. No elaborate statement of the earlier facts relating to the service of the first respondent may be necessary, but briefly, in 1941, he entered the Army en a Kings Commission. But he was released from it in 1950 and joined the Indian Police Service. Inst as he was exacting his promotion in 1956 to the cadre of Deputy Inspector General of Police, certain charges were framed against him to which he submitted bis explanations between August 1958 and October 1959. A tribunal was constituted to enquire late the charges which made its report in September 1960. There were as many as 13 charges of which four were dropped Out of the remaining charges only a part of a charge and three ether charges were found to have been proved. On 7th November 1960, the first respondent was placed under suspension with effect from 20th October 1960. A provisional concision to dismiss the officer was arrived at in November 1960, but on receipt of representations from the first respondent, the matter was referred to the Union Public Service Commission, which recommended compulsory retirement as a punishment. The Solicitor General was later consulted. He disagreed with the Commission and opined that the whole procedure reflected a great deal of prejudice to the first respondent. Apparently, as a result of this opinion, the Union Government decided to drop the charges and this was conveyed to the State Government. Then followed the impugned order dated 15th March 1965. The Solicitor General was later consulted. He disagreed with the Commission and opined that the whole procedure reflected a great deal of prejudice to the first respondent. Apparently, as a result of this opinion, the Union Government decided to drop the charges and this was conveyed to the State Government. Then followed the impugned order dated 15th March 1965. By that order the first respondent was informed that the Government of Madras, with the approval of the Government of India, Ministry of Home Affairs, had decided to prematurely retire him from service under sub-rule (2) of rule 17 of the All India Services (Death-cum-Retirement Benefits) Rules 1958, with effect from 15th June 1965 afternoon, the date on which he attained the age of 55 years. He was accordingly by that order given notice under the said rule that he would be retired from service prematurely with effect from that date. On the same day there was another order G.O.Ms. No. 906, Home, which directed that the first respondent be released from suspension forthwith and reinstated in service with immediate effect. But in making that direction, the Government also said this: “The Government of India have decided to drop the charges, as a de novo enquiry on the existing charges will only cause hardship to the officer and is unlikely to result in discovery of new facts and that the charges which remain to be enquired into arc not about very major matters. The Union Service Commission has not agreed with this view. Having regard to the provisions of rule 9 of the All India Service (Discipline and Appeal) Rules 1955, and the decision of the Government of India, the Government consider that Sri K.S. Venkataraman has not been fully exonerated of the charges and that the suspensions of the officer is not unjustifiable. The Government, therefore direct that the period from the date of suspension of Sri K.S. Venkatareman to the date of his reinstatement in service be treated as duty and that he be allowed daring that period the pay and allowance limited to the subsistence allowances drawn by him daring that period.” The inspector General of Police gave effect to this order and posted the first respondent to a a station daring the notice period, it was this order of compulsory retirement that was sought to be gnashed. Pending the disposal of the petitions, the Government made another order G.O.Ms. No. 2523 Home, dated 5th September, 1967 and this hat been produced by the Advocate General after the hearing of the appeals and the first respondent had raised the point that in view of G.O.Ms. No. 906 Home dated 15th March, 1965, the compulsory retirement was as a punishment. This order (G.O.Ms. No. 2523) says that in modification of G.O.Ms. No. 906, the period from the date of suspension of the first respondent to the date of his release from suspension be treated as duty for purposes of increment, leave and pension and that he be allowed admissible pay and allowance in full during the period of suspension. It directed that arrears of pay allowances due to him on the terms of that order should be paid after deducting the subsistence allowance already drawn by him. On a careful consideration of the entire matter including the background of facts and the terms of G.O.Ms. 906 Home, dated 15th March 1965, we are inclined to agree with Venkatadri, J. that the compulsory retirement imposed on the first respondent was by way of punishment. It is true ex facie the order of compulsory retirement, does not purport to be one of punishment. But the form of the order does not conclude the question as to its character and effect. When an order of compulsory retirement is liable to be regarded as one of punishment has been dealt with in numerous cases and we do not think it necessary to make a detailed examination of them. It will suffice to say that their effect is that if what preceded an order of compulsory retires meat is not the foundation of the order but only the motive for It, it cannot be regarded as by way of punishment. But the crux of the test, in our view, lies in whether the impugned order gives rise to penal consequences. If it does, it would doubtless be one of punishment. Mora often that sot, in practice every order of compulsory retirement is preceded by disciplinary action. Where an order of compulsory retirement is by way of punishment, no question can arise. But where the disciplinary proceedings are abortive or are such that the charges are not proved, still the State may consider that the officer concerned should be continued in service. Where an order of compulsory retirement is by way of punishment, no question can arise. But where the disciplinary proceedings are abortive or are such that the charges are not proved, still the State may consider that the officer concerned should be continued in service. Where the officer has get the right to continue, but still he is compulsorily retired that will lead to civil consequence. Such an order will naturally be in the nature of punishment. Where, however, as in his case, beyond the period of superannuation the service under the rules is extended but subject to termination by notice for the prescribed period, it may be open to the State to rely on it and terminate the service by an order of compulsory retirement. But even in such a case if the order is preceded by disciplinary proceedings and the facts and circumstances relating thereto show that though the order of compulsory retirement under the rules, on service of notice, purports to be on the face of it not one of punishment, still if it leaves a stigma against the officer or involves civil consequences as reduction in the pay due during the period he was in service, the order may amount to one of punishment. In our opinion these principles are fairly deducible from the numerous decided cases both of the Supreme Court and of this court. State of Bihar v. Shiv Bhikshuk Mishra (1970) 2 S.C.W.R. 606 referred to Union of India v. R.S. Dhaba, Incometax Officer, Hoshiarpur (1964) 5 S.C.R. 190 more especially to the following observations: “The test for attracting Art. 311(2) of the Constitution, in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (see the decision of this court in Champaklal Chimanlal Shah v. Union of India (1964) 5 S.C.R. 190 . In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct or the respondent, and, therefore, It cannot be held that the order of reversion was made by of punishment and the provisions of Art. 311 of the Constriction are consequently attracted,” and observed. In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct or the respondent, and, therefore, It cannot be held that the order of reversion was made by of punishment and the provisions of Art. 311 of the Constriction are consequently attracted,” and observed. “We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a Government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether It was the very foundation of that order.” Factually in that case it appears that the reversion was made on the basis of a note of the Deputy Inspector General of Police following the report of a Commandant as to the conduct of the delinquent and It was held that the order operated as a punishment. State of Assam v. Premadhar Baruah and others (1970) 2 S.C.W.R. 197, related to the scope of fundamental rule 56(a) which extended the age of superannuation from 55 to 58 years. A later order curtailed the original extension and the question was whether this was violative of Art. 14. Dealing with that aspect, the Supreme Court held that compulsory retirement under the fundamental rule by giving three months notice without assigning any reason was not violative of the Article. The basis for this view was that a Government servant has so right to continue in service beyond the age of superannuation and the retention beyond that period depended on the exigencies of public service and consideration of physical fitness and efficiency: There was some controversy as to whether the court would be entitled to go into the records preceding the order of retirement. For instance in I.N. Saksena v. State of Madhya Pradesh A.I.R.1967 S.C. 1264, the view was expressed that to find whether there was express stigma or not the court would not delve into secretarial file. For instance in I.N. Saksena v. State of Madhya Pradesh A.I.R.1967 S.C. 1264, the view was expressed that to find whether there was express stigma or not the court would not delve into secretarial file. But it would appear that this view has been somewhat subsequently modified, and in R.K Bhat v. Union of India (1970) 2 S.C.W.R. 667, the Supreme Court set aside the High Courts order and remitted the matter for fresh disposal on the ground that the High Court did not appear to have gone fully into all the circumstances and matters which required determination and investigation for finding whether the termination of services of the appellant had been ordered in the ordinary course because his services were no longer required or whether it was by way of punishment that that action was taken. The coast while disposing of the matter in that manner recalled: “In two recent decisions of this court, i.e. the Union of India v. R.S. Dhaba Incometax Officer, Hoshiarpur , (1970)2 S.C.W.R. 606 and the State of Bihar v. Sihva Bhikshuk Misra (1969) 1 S.O.R. 922 the tests laid down by this court for decision of cases of the present kind have been restated and reiterated. It is for the High Court to reconsider the entire matter in the light of those tests and other relevant eases and give a fresh decision.” Whether an order of compulsory retirement is by way of punishment or not cannot be decided merely by reference to the order itself, but the circumstances in which it was made should be taken into account, which besides contributing to the decision may be decisive by themselves. In the instant case, though, as we observed, ex facte the order of compulsory retirement, it did not appear to be one by way of punishment and in fact it purported to have been made under sub-rule (2) of rule 17 of the All India Services (Death-cam-retirement Benefits) Rules 1958, the circumstances do show, especially the excerpt we have made above from G.O.Ms. 906 Home dated 15th March 1965, that the order of compulsory retirement had penal consequences in the sense that the first respondent had not only been fully exonerated of the charges and the suspension of the officer was not found to be not justifiably, but his pay during the period of suspension was limited to the subsistence allowance drawn by him under the rules. It is true that this conclusion flowed from a separate order, G.O.Ms. No. 906, but it was made on the same day as was the order of compulsory retirement. They should, in our view, in the circumstance, be read together. There can be no doubt, therefore, that on the date of order of compulsory retirement was made, it was one of punishment. If that be the case, as we hold it was, it was clearly invalid as it offended the provisions of Art. 311. But, as we mentioned earlier, the learned Advocate General at this late stage has produced before as G.O.Ms. 2523 Home dated 5th September, 1967. Does it make any difference to the character of the order of compulsory retirement when it was made? This order was made after the first respondent had filed a petition in this court under Art. 226 of the Constitution to quash the impugned order. If of the date it was passed the order of compulsory retirement was one of punishment, we fall to see how by the subsequent order the impugned order was rendered innocuous and as one not by way of punishment and without penal consequences. Whether an order is one of punishment or not will have to be determined in the light of the circumstances existing at the time the order was pissed. If we may guess G.O.Ms. No. 2523 Home dated 5th September 1967 was an after thought after the first respondent had filed a petition questioning the validity of the order of compulsory retirement and with a view to make it appear that what was an order of punishment was not really so even in the counter affidavit filed by the appellant, the existence of this order was not mentioned. Apparently, it was made subsequent to the filing of the counter affidavit. The other ground of the first respondent which was accepted by Venkatadri J. was that the order of compulsory retirement was not made with the approval of the Government of India. Apparently, it was made subsequent to the filing of the counter affidavit. The other ground of the first respondent which was accepted by Venkatadri J. was that the order of compulsory retirement was not made with the approval of the Government of India. Rule 16 of the All India Services (Death-cam-retirement Benefits) Rules 1958, provides by sub-clause (1) that a member of the service should be required to compulsorily retire from the service with effect from the date on which he attains the age of 58 years. It contained a proviso which enabled the Government to retain a member in service after the date of compulsory retirement on a public ground. Rule 17(1) provides that a member of the service may, after giving at least three months previous notice in writing to the State Government retire from the service after completing 30 years of qualifying service or after attaining the age of 55 years, or any date thereafter to be specified is the notice. Correspondingly by sub-clause (2) of the rule the State Government is also given the option of retiring the Government Servant. That sub-clauses is: “The State Government may, with the approval of the Central Government and after giving him at least three months previous notice in writing, require a member of the service to retire from service on the date on which he completes 30 years of qualifying service or attains the age or 55 years or any date thereafter to be specified in the notice.” These rules have been amended in 1965, but we are not concerned with the amended rules. The Government of India while communicating its decision in the light of the opinion of the Solicitor General conveyed to the State Government that if it so desired, it may compulsorily retire the first respondent. This it evidently the basis for the recital In the impugned order of compulsory retirement that it was made with the approval of the Central Government, for, it is not the case of the appellant that before or at the time of making the order, the State Government referred the matter again to the Central Government for its approval for the proposed order of compulsory retirement. It is contended that, in such circumstances, the impugned order does not comply with the retirement of rule 17(2). There appears to be substance in the contention. It is contended that, in such circumstances, the impugned order does not comply with the retirement of rule 17(2). There appears to be substance in the contention. It may be that if the matter had been referred by the State Government to the Union Government, the latter would have given its approval. But that is not the point. Nor do we think that because the Union Government had stated in its earlier order that in case the State Government decided to retire the first respondent compulsorily, it would have no objection, that would amount to satisfaction of the requirement of rule 17(2). What that provision requires is that the actual order to be made by the State Government should have the approval of the Central Government. If we may speculate, if the order of compulsory retirement were to have the effect of punishment, the Central Government might as well have withheld its approval. It does not appeal that the Central Government was made aware of the fact that on the same day the order of compulsory retirement was passed, another order was made withholding the full pay due to the first respondent daring the period of the suspension. We, therefore, agree with Venkatadri J. that the impugned order has been vitiated on this ground too. The last ground is as to the validity of rule 17 itself. It is said that classes (2) of the rule confers unfettered and arbitrary power on the Government without providing for guide lines. On the view, we have taken already, it is not necessary to consider this question. However, the argument is pressed upon us especially in the light of the corresponding amended provision which says that the Government In exercising this power should be guided by public interest. But even without that guide, we are inclined to think that sub-rule (2) of rule 17 will he exercised in the manner pointed out by the decisions of the Supreme Court and of this court. The effect of them in that it is the exigency of service that would bear on whether a Government servant has to be retired by notice under that rule. We are enable to accept the view of Venkatadri, J. that rule 17(2) is invalid. The appeals are dismissed with costs, one set. Counsels fee Rs. 250.