K. A. SWAMI, J. ( 1 ) THOUGH this petition is posted for orders, by consent ,of parties, it is taken up for final hearing. ( 2 ) IN this petition under Arts. 226 and 227 of the Constitution the petitioner has challenged the validity of the order dt. 10-2-1978 bearing No. INC/b2-9 Ittigegud (Annexure-A}, passed by the Sr. Superintendent of post offices, Mysore Dvn. , Mysore, placing the petitioner under suspension with effect from 8-5-1976. There was a penalty of compulsory retirement imposed on the petitioner, which was set aside on 8-5-1076 by the Appellate Authority and a de novo enquiry was ordered. Thereafter, the impugned order dt. 10-2-1978 (Annexure-A) came to be passed with retrospective effect from the date the penalty order was set aside by the appellate authority. ( 3 ) THE one and the only contention urged by the petitioner is that the case is not governed either by sub-rule (3) or (4) of Rule 10 of the Central ,civil services (CCA) rules, 1965 (hereinafter referred to as the Rules; 'there fore the order placing him under suspension with retrospective effect is without the authority of law. It was not disputed that the penalty order was set aside by the 2nd appellate authority prescribed under the rules, and it was not set aside by a decision, of a court of law. Further, during the course of disciplinary proceeding, the. petitioner was not placed under suspension. No doubt, the 2nd appellate authority has ordered de novo enquiry. I will point out very shortly that the aforesaid circumstances are not sufficient to apply either sub-rule (3) or (4) of rule 10 of the rules. 3. However, an objection is raised on behalf of the respondents that the impugned order is appealable, the petitioner has not availed the remedy by way of an appeal and there is also delay in approaching this court; therefore he is not entitled to invoke the jurisdiction under Art. 226 of the Constitution. No doubt, the petitioner has not availed the remedy of appeal and there is delay in approaching this court. These factors, no doubt, are required to be taken into account while considering the question as to whether the jurisdiction under Art. 226 of the Constitution is to be exercised or not; but they cannot prevail over in a case where the impugned order is, on the face of it, without jurisdiction. These factors, no doubt, are required to be taken into account while considering the question as to whether the jurisdiction under Art. 226 of the Constitution is to be exercised or not; but they cannot prevail over in a case where the impugned order is, on the face of it, without jurisdiction. Here is a case in which the order placing the petitioner under suspension with retrospective effect is passed without the authority of law, therefore in such a case if the petitioner is denied the relief, the injury "that will be caused to him will be irreparable. Therefore, the objection raised on behalf of the respondents is over-ruled. ( 4 ) SUB-RULES (3) and (4) of rule 10 of the rules, are as follows: sub-rule (3):"whether a penalty of dismissal, removal or compulsory retirement from service imposed up on a Government servant under suspension is set aside in appeal or on review under these rules and; the case is remitted for further inquiry or action or with any other directions, the order, of his suspension shall be deemed to havq continued in force on and from the date of the the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. Sub-rule (4): "where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him an the allegations on which the penalty of dsimissal, removal or compulsory retirement was originally imposed, the government servant shall be deemed to have been placed under suspension by the Appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. "from the aforesaid provisions, it is clear that it is only where a Government servant is placed under suspension during the course of inquiry and the enquiry results in imposition of any of one of the penalties mentioned, in sub-rule (3) thereof, and the delinquent official is continued to be placed under suspension at the time of imposing any of the aforesaid penalties and that penalty is set aside by the appellate or the review authority and the case is remitted for further enquiry or action, the order of suspension is deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and will continue in force until further orders. In the instant case, admittedly, the petitioner was not placed under suspension at the time of imposing the penalty of compulsory retirement. That being so, the fact that the 2nd appellate authority set aside the penalty and remitted the case for de novo enquiry, was not sufficient to attract sub-rule (3) of rule 10 of the rules. In addition to this, for the application of sub-rule (3) of rule 10, the delinquent official must have been placed under suspension at the time of imposing a penalty of dismissal or removal or compulsory retirement from service. Thus, this sub-rule was not at all applicable to the case of the petitioner. ( 5 ) SUB-RULE (4 ). was not applicable because in the instant case, the penalty of compulsory retirement imposed on the petitioner was not set aside or declared or rendered void in consequence of or by a decision of a court of law. The penalty order was set aside by the appellate authority provided under the rules which was not a court. Further, this was not a case in which after a decision of a court of law to the aforesaid effect the disciplinary authority had decided to hold; a further enquiry against the petitioner. The de novo enquiry was ordered by the appellate authority itself. Therefore, sub-rule (4) of ru]e 10 of the rules, also did not apply to the case of the petitioner. ( 6 ) THUS, it was a case in which the disciplinary authority or the authority falling under sub-rule (1) of rule 10, at the most ought to have invoked sub- rule (1) thereof to place the petitioner under suspension. Therefore, sub-rule (4) of ru]e 10 of the rules, also did not apply to the case of the petitioner. ( 6 ) THUS, it was a case in which the disciplinary authority or the authority falling under sub-rule (1) of rule 10, at the most ought to have invoked sub- rule (1) thereof to place the petitioner under suspension. As such, the authority was required to pass a fresh order placing the petitioner under suspension under rule 10 (1) of the rules. The order passed under rule 10 (1) of the rules, is operative only from the date on which it is passed. Therefore, the order placing the petitioner under suspension with retrospective effect is bad in law, and to that extent only it will have to be set aside,. But the impugned order can very well be held to be operative from the date on which it is made as the authority who has passed the order falls within one of the authorities mentioned in sub-rule (1) of Rule 10 of the rules. ( 7 ) ACCORDINGLY, it is held that the impugned order is effective from 10-2-1978 and to the extent it places the petitioner under suspension with retrospective effect from 8-5-1976 is declared to be. void and. in operative. The petitioner is entitled for the consequential benefits including the monetary benefits flowing from such a declaration. --- *** --- .