JUDGMENT : 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a former Government Servant, has prayed for the following reliefs; “(A) Your Lordships maybe pleased to quash and set aside the action of the respondents of pre-maturedly retiring the petitioner from the services, and be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction to achieve the said purpose and...... (B) Your Lordships may be pleased to grant all the consequential reliefs in terms of back wages from the date of prematured retirement till normal date of superannuation 31.1.1996, on account of granting prayer A as above. (C) Your Lordships may be pleased to direct the respondents to take the full salary of the petitioner for calculating pension of the petitioner instead of taking subsistence allowance as last drawn pay and refix pension and other benefits and arrange to pay accordingly to the petitioner revised pension as an affective interim relief during the pendency and final disposal of this petition. (D) Your Lordships may be pleased to grant any other and further reliefs as may be deemed fit. (E) Your Lordships may be pleased to grant costs of this petition.” 2. It appears from the materials on record that while the writ applicant was in service, he was served with a departmental charge sheet dated 28th May, 1986, containing the following charges; “(a) Shri Chauhan, Dy. Executive Engineer had committed irregularities in the purchase of the following store materials; Sr. No. Item Agreement No. City Amount Rs. M.B. No. Page No. 1. 12 ¾ “ ERW Pipes D-34/82-83 2594.24 Rmt. 15,57,328.00 5603 280121 2. 8” ERW Pipes D-1/82-83 4099.57 Rmt. 19,17,418.00 355 017742. 3. 8” ERW Pipes D-4/82-83 4065.76 Rmt. 19,01,605.00 5601 280003 4. Flanges for ERW Pipes 12.3/4” D-9/81-82 320 Nos. 2,04,080.00 353 017627 5. “ “ D-10/81-82 470 Nos. 2,99,742.00 360 017954 6 “ “ D-15/81-82 470 Nos. 2,99,742.50 359 017988 7 “ “ D-3/82-83 470 Nos. 2,99,742.50 353 017650 8 “ “ D-5/82-83 470 Nos. 2,99,472.50 355 017746 9. Flanges for 8” ERW Pipes D-29/82-83 680 Nos. 2,93,420.00 5694 280168 10 “Flanges for 8” ERW Pipes D-29/82-83 680 Nos. 2,93,420.00 5694 280168 11 Steel Tabular Platforms D-27/82-83 222.75 Sq. Mt. 65409 5601 280023 12. -do- D-28/82-83 228.75 Sq. Mt. 65705 5601 280023 13. -do- LCB-38 222.75 Sq. Mt. 2,99,472.50 355 017746 9. Flanges for 8” ERW Pipes D-29/82-83 680 Nos. 2,93,420.00 5694 280168 10 “Flanges for 8” ERW Pipes D-29/82-83 680 Nos. 2,93,420.00 5694 280168 11 Steel Tabular Platforms D-27/82-83 222.75 Sq. Mt. 65409 5601 280023 12. -do- D-28/82-83 228.75 Sq. Mt. 65705 5601 280023 13. -do- LCB-38 222.75 Sq. Mt. 67012 360 017989 14. -do- LCB-40 222.75 Sq. Mt. 64553 360 017980 He had recorded the measurements of sub-standard materials without checking the specifications laid down therefore, and recommended the payment of the bills to the Executive Engineer. Thus he has violated the provisions contained in Government Resolution, PWD-M- 2478(95) dated 6.4.1981 and paragraph 198 of PWD Manual Vol I. (b) Shri Chauhan had irregularity recommended to the Executive Engineer for purchase of materials like 8” dia ERW pipes, 12” dia ERW pipes and flanges as indicated at Sr. No.s.2,4,5,7,8,9 and 10 mentioned in charge No.1 above and thereby violated the provisions of Rule 3 of Gujarat Civil Services (Conduct) Rules 1971. (c) Shri Chauhan had not asked for specification and test results from the Executive Engineer before recording the measurements in the measurement book and thereby he has shown utter negligence in discharging government duties and he has breached provisions of Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971.” 3. An Inquiry Officer was appointed and while the inquiry was in progress, the State Government, all of a sudden, thought fit to pass an order of compulsory retirement dated 9th November, 1989. Thus, pending the departmental inquiry, the writ applicant was made to retire compulsorily in public interest in accordance with the provisions of rule 161 of the Bombay Civil Services Rules, 1959 (for short the “BCSR”). The order of compulsory retirement reads as under; “Government of Gujarat, Water Resources Department, Order No.CSS/1287/10/E.S. Sachivalaya, Gandhinagar. Dated : 9 November, 1989. ORDER:- Shri S.D. Chauhan, Deputy Executive Engineer (Civil) was suspended vide Government in Narmada Development Department order No.S-9284-122-Part-II-E.4, dated 6.5.1986. As per existing government orders the cases of Government servants for continuance in Government Service beyond the age of 50/55 years are required to be reviewed. Accordingly the Government have reviewed the case of Shri S.D. Chauhan, Deputy Executive Engineer © and has decided that in accordance with the clause (aa) (I) (1) of rule 161 (1) of the B.C. S.R.S 1959, as amended from time to time. Accordingly the Government have reviewed the case of Shri S.D. Chauhan, Deputy Executive Engineer © and has decided that in accordance with the clause (aa) (I) (1) of rule 161 (1) of the B.C. S.R.S 1959, as amended from time to time. Shri S.D. Chauhan, Deputy Executive Engineer (Civil) who is currently under suspension and placed under the Administrative control of the superintending Engineer, Narmada Project Main Canal Circle No.1, Vadodara should retired from Government service at once in the interest of public service. 2. Shri Chauhan, Deputy Executive Engineer (Civil) is hereby paid three month’s pay and allowance in lieu of the notice period as laid down under the clause (aa) (I) of the aforesaid rules. 3. The pending enquiries against him shall however, be continued against him under the relevant rules of B.C.S.R even after his retirement. By order and in the name of the Governor of Gujarat. (Kantilal Gohil) Under Secretary to the Government of Gujarat. Water resources Department. 4. The writ applicant, being dissatisfied with the impugned order of compulsory retirement, has come up with this writ application. 5. Mr. R.D. Raval, the learned counsel appearing for the writ applicant, vehemently submitted that the impugned order of compulsory retirement in public interest is erroneous and illegal. He submits that the order of compulsory retirement came to be passed without any application of mind and contrary to the materials on record. He submits that there was not a single adverse entry or remark in the confidential reports of the writ applicant maintained by the respondents. He submits that his client would have otherwise retired in the year 1996 on attaining the age of superannuation. He also submitted that although the order of compulsory retirement was passed, yet the departmental inquiry was continued and in the said inquiry, the disciplinary authority held the writ applicant guilty of the alleged acts of misconduct and imposed the penalty of cut of Rs.500/- per month from the pension for all times to come. He also submitted that although the order of compulsory retirement was passed, yet the departmental inquiry was continued and in the said inquiry, the disciplinary authority held the writ applicant guilty of the alleged acts of misconduct and imposed the penalty of cut of Rs.500/- per month from the pension for all times to come. He submits that the continuation of the departmental inquiry and the consequential order of penalty was made a subject matter of challenge in the Special Civil Application No.1212 of 1995, and this Court, vide judgment and order dated 12th September, 2016, allowed the said writ application holding that the State Government, having once passed the order of compulsory retirement, could not have thereafter continued with the inquiry and punish the delinquent in the absence of any rule or regulation permitting the State to do so. 6. In such circumstances referred to above, Mr. Raval prays that there being merit in this writ application, the same may be allowed and the impugned order be quashed. 7. In support of his submission, he has placed reliance on the decision of the Supreme Court in the case of State of Gujarat Vs. Umedbhai M. Patel; 2001 (3) GLR 2461 and a Division Bench judgment of this Court dated 08/06/2016 rendered in the Letters Patent Appeal No.1190 of 2015. 8. On the other hand, this writ application has been vehemently opposed by Mr. Goutam, the learned AGP appearing for the State-respondent. The learned AGP would submit that the State Government is empowered and entitled to compulsorily retire the writ applicant in public interest with a view to improve the efficiency of the administration of the Board. He submits that the charges levelled against the writ applicant were quite serious and that precisely was for continuing the departmental inquiry even after the impugned order of compulsory retirement was passed. The learned AGP would submit that the order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. He would submit that there being no merit in this writ application, the same be rejected. 9. In support of his submissions, reliance has been placed on a decision of the Supreme Court in the case of Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir; (2013) 10 SCC 551 . 10. He would submit that there being no merit in this writ application, the same be rejected. 9. In support of his submissions, reliance has been placed on a decision of the Supreme Court in the case of Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir; (2013) 10 SCC 551 . 10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the State Government committed any error in passing the impugned order. 11. Before adverting to the rival submissions canvassed on either sides, let me look into the provisions of the Rule 161 of the B.C.S.R. 12. Rule 161 of the B.C.S.R reads as under; “161(1)(a) Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV servant, is the date of which he attains the age of 58 years. Provided- (I) Deleted. (II) Deleted. (III) He may be retained in service after the date of compulsory retirement only with the previous sanction of Government on public grounds which must be recorded in writing. (aa) Notwithstanding anything contained in clause (a)- (I) An appointing authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom clause (a) applies by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice; (1) If he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years, and (2) if he is in any other service or post, the age limit for the purpose of direct recruitment to which is below 40 years, on or after the date on which he attains the age of 55 years. (ii) any government servant to whom clause (a) applies may, by giving notice of not less than three months, in writing to the Appointing Authority, retire from service after he has attained the age of 50 years, if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of recruitment to which is below 35 years and in any other case, after he has attained the age of 56 years. Provided that it shall be open to the Appointing Authority to withhold permission to retire to a Government servant who is under suspension, or against whom Departmental proceedings are pending or contemplated and who seeks to retire under this sub-clause. (b) A Government servant in Class IV service should be required to retire at the age of 60 years. He may not be retained in service after that age except with the sanction of Government. (c) The following rules are applicable to particular services; (I) Except as otherwise provided in the sub-clause, a holder of the post of the Chief Judge of the Court of Small Causes, Ahmedabad, whether he is recruited directly or is promoted from subordinate post, should ordinarily be retained in service till the age of 60 years, if he continues efficient upto that age otherwise he may be required to retire at the age of 58 years or at any time thereafter. (ii)(1)Except as otherwise provided in this sub-clause, Government servants in the Bombay Services of Engineers, Class I, must retire on reaching the age of 58 years and may be required by Government to retire on reaching the age of 50 years if they have not attained to the rank of Superintending Engineer. (2)Subject to the requirements of this sub-clause as to reappointment Government may, in special circumstances, which should be recorded in writing, grant an extension of service nor exceeding three months, to a Chief Engineer. (2)Subject to the requirements of this sub-clause as to reappointment Government may, in special circumstances, which should be recorded in writing, grant an extension of service nor exceeding three months, to a Chief Engineer. (3) No Chief Engineer shall, without re-appointment, hold the post for more than five years, but reappointment to the post may be made as often and in each case for such period not exceeding five years, as Government may decide, provided that the term of reappointment shall not extend more than three months beyond the date on which he attains the age of 58 years (Officiating service, unless followed by confirmation without interruption in such service, does not count towards the period of five years mentioned in this subclause). (iii) Stipendiary patels appointed under section 16 of the Land Revenue Code 1879, and section 5 of the Village Police Act, 1867 may be required to retire at the age of 58 years but should ordinarily be retained in service if they continue efficient up to the age of 60 years. Extension of service after that ager should not be granted except in cases where no other suitable person is available or when a patel’s work is specially good provided the patel concerned is considered to be still fit for service. (iv) The Principal Judge, Ahmedabad City Civil and Sessions Court, should be required to retire on attaining the age of 60 years. (v) The Chief Metropolitan Magistrate for metropolitan area of the city of Ahmedabad should ordinarily be retained in service till the age of 60 years if he continues efficient up to that age, otherwise, he may be required to retire at the age of 58 years or at any time thereafter.” 13. Let me also look into the resolution of the State Government dated 28th July, 1987, which lays down the guidelines for premature retirement of the Government Servants under Rule 161 of the B.C.S.R. The Appendix-A attached to the resolution reads as under; “I. REVIEW: when it should be done? Let me also look into the resolution of the State Government dated 28th July, 1987, which lays down the guidelines for premature retirement of the Government Servants under Rule 161 of the B.C.S.R. The Appendix-A attached to the resolution reads as under; “I. REVIEW: when it should be done? (1) A table showing categories of posts and age at which review will be necessary in terms of sub-clause (I) of the clause (aa) of Rule 161 (1) of the B.C.S.R is annexed at statement-I. (2) In the case of gazetted officers including officers drawing pay scale of Rs.100-5300 or above and Heads of Departments, the review should be done SIX MONTHS BEFORE the officer attains the age of 50 years or 55 years as the case may be. (3) In the case of Non-gazetted employees, the review should be done SIX MONTHS BEFORE the Government servant attains the age of 55 years. In the case of non-gazetted Government servants, review at the age of 50 years is not necessary. The case of non-gazetted Government servants for retention/premature retirement at the age of 55 years, the Appointing Authority has to review and take a decision in their case. II. REVIEW COMMITTEE AND THEIR CONSTITUTION; (1) For reviewing the cases of officers drawing pay in the scale of Rs.4100-5300 or above and Heads of Departments for their retention in service or premature retirement on or after their attaining the age of FIFTY as well as FIFTY FIVE years, the following review committee is constituted; (1) Chief Secretary to Government (2) Secretary in charge of Home Department (3) Secretary of the Administrative Department concerned. (2) For reviewing the cases of Class I officers, (excluding (i) officers drawing pay scale of Rs.4100-5300 or above, and (ii) Heads of Departments) for their retention in service beyond the age of FIFTY as well as FIFTY FIVE years or premature retirement, the Committee should comprise of- (1) Secretary to Government (2) Head of the Department concerned. (3) For reviewing the cases of Class II officers for their retention in service beyond the age of 50 years or premature retirement, the Committee consisting of- (1) Heads of Department concerned; and (2) Senior Class I Officer from the Administrative Secretariat Department concerned should be constituted. (3) For reviewing the cases of Class II officers for their retention in service beyond the age of 50 years or premature retirement, the Committee consisting of- (1) Heads of Department concerned; and (2) Senior Class I Officer from the Administrative Secretariat Department concerned should be constituted. It is not necessary to constitute a Review Committee to consider the cases of officers mentioned in (3) of this para of for retention or otherwise on attaining the age of FIFTY FIVE years. The case is to be reviewed only by the secretary of the Administrative Department. (4) For non-gazetted employees, a Review Committee is not necessary to consider their cases at 55 years. The case is to be reviewed only by the Appointing Authority. III. CRITERIA TO BE FOLLOWED; (1) While reviewing the cases of officers attaining the age of FIFTY years, the following points should be taken into consideration; (i) whether any disciplinary proceedings are pending or contemplated against the officers? In case of a Government Servant whose integrity is in doubt, it would be appropriate to consider him for premature retirement irrespective of the assessment of his ability or efficiency in work. In other words, even if an officer’s performance is good, he is efficient and physically and mentally fit, he can be prematurely retired, if Competent Authority comes to conclusion that his integrity is doubtful. (ii) whether the officer is physically as well as mentally fit for retention in service. (iii) whether the WHOLE service record of the officer is at least SATISFACTOR? If an officer is physically and mentally fit, and has earned SATISFACTORY confidential reports, i.e. not below the average standard, he should not be prematurely retired. (2) The following criteria should be followed to review the case of an officer attaining the age of FIFTY years. (i) Same as item (I) and (ii) of Para III above. (ii) A record of service i.e. C.Rs for the last eight to ten years should be good. (3) The physical and mental condition of officer could be known from the C.R.s of concerned officer. The competent authority may call for a special report on this point from the officers under whom he was working at that time. It is not necessary to refer the concerned officer for medical examination for this purpose. (3) The physical and mental condition of officer could be known from the C.R.s of concerned officer. The competent authority may call for a special report on this point from the officers under whom he was working at that time. It is not necessary to refer the concerned officer for medical examination for this purpose. However, where the officer may be known or reported to be suffering from any serious disability, infirmity or deceases which makes it desirable to have a medical opinion, the competent authority may use its discretion to refer such officer for medical examination. IV. PROCEDURE TO BE FOLLOWED FOR PREMATURE RETIREMENT OF GOVERNMENT OFFICERS ATTAINING THE AGE OF FIFTY YEARS. (I) In case of gazetted officers where the Committee concerned comes to a conclusion that the officer should be retired prematurely, the Committee should record fully and clearly the points taken into consideration and reasons for their conclusion. The respective Secretariat Department on receipt of the recommendation of the Committee should obtain the decision of Government in such cases after consulting the General Administration Department. It is necessary that this process should be completed in each case in about three months’ time so that in the event of retirement being finally decided upon, it is possible to serve a notice on the Government servant concerned at least three months before the date on which he attains the age of 50 years and his retirement thus given effect as soon as possible. (ii) In case of Class I officer when it is finally decided not to retain him in service beyond the age of 50 years, he should be informed in the first instance by a consideration letter that Government proposes to retire him prematurely with effect from a particular date and that he can himself tender, if he so desires, a notice to Government asking for voluntary retirement. A notice for premature retirement be issued to such Government officer only after the opportunity is given to him to opt for voluntary retirement. (iii) In a case where it is decided to retire Class I Government Officer, IMMEDIATELY and a decision is taken to do so, option as referred to in para II above need not be given. V. PROCEDURE TO BE FOLLOWED PREMATURE RETIREMENT OF GOVERNMENT SERVANT ATTAINING AGE OF FIFTY FIVE YEARS. (iii) In a case where it is decided to retire Class I Government Officer, IMMEDIATELY and a decision is taken to do so, option as referred to in para II above need not be given. V. PROCEDURE TO BE FOLLOWED PREMATURE RETIREMENT OF GOVERNMENT SERVANT ATTAINING AGE OF FIFTY FIVE YEARS. (i) Where the appointing authority in respect of non-Gazetted Government servants and the Secretary of the Administrative Department in respect of the officers referred to in para-II(1) and (2) comes to the conclusion as a result of this examination that a Government servant should be retired prematurely, they should record fully and clearly the points taken into consideration and reasons for coming to the conclusion. Where it is necessary to obtain the previous approval of the next superior authority or Government, the reference in this regard should give details of the case and reasons for the proposal. It is necessary that this process should be completed in about three months time, so that in the event of retirement being finally decided upon, it is possible to serve a notice on the Government servant concerned at least three months before the date on which he attains the age of FIFTY FIVE years and his retirement thus given effect soon as possible. (ii) Government servants (irrespective of class) who are officiating in higher posts and are substantive in lower posts should be given an option to avail of reversion to a lower post as an alternative to his impending premature retirement. Government servant who are substantive in the higher posts should also be given an option for retention in lower post, provided they had been promoted thereto from the lower post. (iii) If such Government servant does not give the option referred to in para (ii), a notice of premature retirement should be issued to him. (iv) When it is decided to retire a Government servant IMMEDIATELY it is not necessary to give the option referred to above to such officer. (3) NOTICE PAY AND ALLOWANCE IN LIEU OF NOTICE. When it is decided to retire a Government servant immediately, i.e. three months notice is not to be given, then three months pay and allowance should be paid to him in lieu of such notice. (3) NOTICE PAY AND ALLOWANCE IN LIEU OF NOTICE. When it is decided to retire a Government servant immediately, i.e. three months notice is not to be given, then three months pay and allowance should be paid to him in lieu of such notice. In such cases, the Appointing Authorities may make the payment to the officer concerned immediately by drawing the requisite amount on ABSTRACT CONTENGENCY BILL which can be readjusted later by adopting the usual procedure. VI. MISCELANEOUS. (1) A table showing the levels for submission of cases and decision taking with regard to premature retirement or continuance of Government servants attaining age of 50/55 years is annexed as statement-2. (2) No government servant should be retired prematurely on the ground of ineffectiveness if he is due to superannuate within a period of one year from the date of consideration of his case. (3) Procedure for consideration of representation against order of premature retirement is laid down vide GC GAD No.CRA-1284-36-G.2 dated 22.3.84. (copy enclosed). (4) Once it is decided to retain a Government servant in service beyond the age of 50/55 years, it is not necessary to issue formal order to that effect. (5) If in any case the review is not done at the age of 50/55 years, it can be done even after that age (i.e. at the age of 51,52 years and so on) and in such cases as well as in a case where the review is done but a decision is kept pending in view of a departmental inquiry, a Government servant can be retired any time after his attaining the age of 50/55 years. (6) It is clarified that in the case of section officer and Gazetted Officer in the Secretariat the decision should be taken by the General Administration Department.” 14. At this stage, it may not be out of place to take note of the following averments made in the affidavit-in-reply filed on behalf of the State Government, duly affirmed by the Under Secretary, Narmada & Water Resources Department. “5.1 On scrutiny of the confidential records of the petitioner, it was found that the petitioner’s performance was satisfactory and satisfied the criteria of SATISFACTORY service record for being continued on attaining the age of 50 years.” 15. “5.1 On scrutiny of the confidential records of the petitioner, it was found that the petitioner’s performance was satisfactory and satisfied the criteria of SATISFACTORY service record for being continued on attaining the age of 50 years.” 15. I may also take note of the averments made in para-5.2 of the affidavit-in-reply, which reads as under; “5.2 The material regarding departmental inquiry pending against the petitioner, was also placed before the Review Committee. Accordingly, the petitioner was facing one departmental inquiry in which he was suspended under Government order dated 6.5.86 and he was charge sheeted on 28.5.86. Having taken into consideration the charges levelled against the petitioner, regarding huge purchase of inferior materials, negligence towards his duties and lack of integrity, the Review Committee had come to the conclusion that the integrity of the petitioner was not beyond the doubt. Therefore, the Review Committee had come to the conclusion that the petitioner should not be continued in service and had recommended to retire him from service on attaining the age of 50 years in the interest of public service. The recommendation of the Review Committee were considered by the Government and after careful consideration, the Government had decided to retire the petitioner prematurely from Government service in the interest of Public Service. Pursuant to the decision, he was made to retire prematurely by giving him three months pay and allowances under Govt. order dated 9.11.89. The above order was effected on and from 10.11.89. In view of the facts narrated above, it is submitted that the action taken by the Government to retire him is within the scope of Rule 161(1) of the B.C.S.R. 16. It is very depressing to note that the State Government acted in a very callous manner or rather without any application of mind. On one hand, in the affidavit-in-reply, the Government says that the performance of the writ applicant was satisfactory and his confidential reports were also clean and on the other, it says that the integrity of the writ applicant was doubtful. For the purpose of arriving at the conclusion as regards the integrity of the writ applicant, the State Government relied on the allegations levelled in the departmental charge sheet. It is important to note that when the order of compulsory retirement came to be passed in the year 1989, the inquiry was pending. For the purpose of arriving at the conclusion as regards the integrity of the writ applicant, the State Government relied on the allegations levelled in the departmental charge sheet. It is important to note that when the order of compulsory retirement came to be passed in the year 1989, the inquiry was pending. The Government could not have continued with the inquiry after passing the order of compulsory retirement. I fail to understand what was the need for the State Government to pass an order of compulsory retirement when the Departmental Inquiry was already in progress and the Government was very keen to proceed with the inquiry and take it to its logical end. 17. If the State to cast aspersions or stigma on a compulsory retired servant, continues the disciplinary proceedings and thereby discloses the alleged acts of misconduct or lack of integrity as against him, then can it be held that the order of compulsory retirement was not punitive and passed in the bonafide exercise of powers?. 18. As held in R.S. Sial V. State Of U.P., 1974 1 LLJ 513 SC, it is not the form of the order which would be conclusive as to its true nature, but the entirety of circumstances preceding or 'attendant' on the impugned order must be examined by the Court, and the overriding test will always be to find out whether the misconduct is the real motivation or is the very foundation of the order. The decision in Shamsher Singh's Case, 1974 (2) LLJ 465 SC , already referred to is to the effect, that, in respect of the departmental enquiry having been contemplated but not proceeded with, Article 311 will not be attracted, unless it be shown that the order though unexceptional in form was made following a report based on the misconduct. 19. Further more, the continuance of disciplinary proceedings in spite of passing of the impugned order, would result in the public forming an opinion as regards the conduct and character of the writ applicant. I am not impressed by the submission of the learned AGP that only the impugned order must be looked at, and the other follow-up actions taken by the Government, may be overlooked. 20. I am not impressed by the submission of the learned AGP that only the impugned order must be looked at, and the other follow-up actions taken by the Government, may be overlooked. 20. It is well settled that the form of an order is not conclusive of its true nature and many a time the form of order is merely a cloak or camouflage for an order founded on misconduct (See. S.R. Tewari v. District Board, Agra, AIR 1964 SC 1680 ). I am therefore of the opinion that merely because the order does not contain any stigma or express any word which may show that the order was passed by way of punishment is not sufficient to uphold the validity of the order. In a case where the order is innocuous on its face and it does not contain any impultation of misconduct and if challenge is made that in substance the order is an order of punishment, in that event it is necessary that the circumstances which led to the passing of the order are necessary to be investigated to ascertain the true nature of the order. It is further well settled that the entirety of circumstances preceding or attendant to the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (See State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 ). 21. In the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 the Supreme Court laid down the principles for determining the question as to under what circumstances Article 311 (2) is attracted in a case of termination of service. The principles laid down in that case were again reiterated by the Supreme Court in AIR 1971 SC 1011 . One of the tests laid down by the Supreme Court was in the following words:- “If there be a full scale departmental inquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered any order of termination of service made thereafter will attract the operation of the said article.” 22. One of the tests laid down by the Supreme Court was in the following words:- “If there be a full scale departmental inquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered any order of termination of service made thereafter will attract the operation of the said article.” 22. In The State Of Bihar V. Shiva Bhikshukmishra, 1970 (2) LLJ 440 SC, it was held that the entirety of proceeding and 'attendant' circumstances can be looked into if the order is camouflaged or appears innocuous in form. Formation of bona fide opinion is a condition precedent. So is the view taken in Shamshar Singh's case, (1974) II LLJ 465 SC, holding that the substance of the order be considered in the deserving cases. 23. In such circumstances referred to above, the impugned order lacks “bonafide” and could be said to have been passed in the colourable exercise of powers as reflected by the followup conduct of the State. The continuance of the departmental proceedings and the consequential order of penalty has vitiated the impugned order, and hence on this ground itself, it deserves to be set aside. 24. When a catena of decisions have held that an order of compulsory retirement would be vitiated, if it is to result in casting on the Government servant aspersions or reflections on his character or integrity or constitute a stigma, would these factors be relevant only to test how the form of the order exists or should they be considered also with reference to how he is affected by the actions taken by the State following the Order? The contention of the learned AGP is that, if the words used in the impugned order do not bring about any of these reflections on the Government servant, whatever other acts done or actions taken by the State cannot in any manner vitiate the Order. The contention of the learned AGP is that, if the words used in the impugned order do not bring about any of these reflections on the Government servant, whatever other acts done or actions taken by the State cannot in any manner vitiate the Order. If such is the restricted approach to be made, then, if for instance the State is to come forward immediately or later on with a press note or a statement being made by persons in charge of the affairs of the Government, that the order of compulsory retirement passed was issued because of his lack of integrity and that such a corrupt officer had been relieved of the post; can it then be held by a Court that the petitioner had not been stigmatised by the action under Rule 161 of the B.C.S.R? What is pertinent and to be assured for the ejected Government servant is that, in the eyes of the public, he should not figure out, as a person, who has been relieved of the office because of misconduct or due to lack of integrity etc. The power under Rule 161 of the B.C.S.R has to be strictly adhered to, so that, on being relieved from service, the concerned person is given, 'a chance to make good in other walks of life without a stigma at the time of termination", as held in Shamshar Singh's Case, (1974) 2 LLJ 465 SC . If this prospect, which is ensured, is in any manner transgressed by the deliberate acts of the State following the order of compulsory retirement, it would result in the order being vitiated, as having been passed in the colourable exercise of such powers. In the instant case, as stated earlier, the pending disciplinary proceedings continued, and the petitioner was compelled to participate in it. By holding of such proceedings, the public have been made known that there are serious acts of misconduct committed by the petitioner, for which he was being proceeded with. The follow-up or attendant steps taken have certainly resulted in a stigma being cast on the petitioner. 25. In Shamashar Singh's Case, 1974 2 LLJ 465 SC , it was held that holding an enquiry is not conclusive, and though the order is unexceptionable in form, the substance of it can be looked into to find out whether the action was taken following a report based on misconduct. 25. In Shamashar Singh's Case, 1974 2 LLJ 465 SC , it was held that holding an enquiry is not conclusive, and though the order is unexceptionable in form, the substance of it can be looked into to find out whether the action was taken following a report based on misconduct. In Oil And Natural Gas Commission Case, 1980 2 LLJ 155 SC, it was held that even if misconduct and negligence, inefficiency formed the motive or inducing factor, still an order of termination simplicitor can be sustained. In S.B. Mishrd's Case, 1970 2 LLJ 440 SC , it was held that in each case the entire range of facts has to be carefully considered to find out whether the authority intended to punish him. If a strong case is made out the files have to be looked into was the view taken in V. R. Sabaji's Case, (1979) 2 LLJ 393 SC. Therefore, if the materials taken into account only relate to the charges framed in respect of which regular disciplinary proceedings have been already initiated even though they be dropped and if the delinquent is compulsorily retiree, then he is entitled to claim that he has the constitutional right of protection under Article 311 to defend against the charges assailed against him, and establish to what extent they are without substance 26. If the order had been passed taking into account the character, nature of service rendered, and the suitability to the post to which he may be promoted in future etc., the outcome of the order would be different; but if it is based on the pending charges alone, it would be unsafe to hold that they form the materials because Government itself had not yet decided whether they are true or not. A charge framed by itself does not result in an opinion being formed about inefficiency, incapacity, inability or corrupt conduct of a Government servant. A charge framed by itself does not result in an opinion being formed about inefficiency, incapacity, inability or corrupt conduct of a Government servant. Unless it be established by a process known to law, and on which he should have an opportunity to disclose how far they are baseless or non-existent, the charges by themselves cannot be treated as sufficient materials for forming the requisite opinion under Rule 161 of the B.C.S.R. For instance, if in respect of a particular charge of corruption, he is straightaway able to show that the complainant is a fictitious person and on the relevant day mentioned therein, he was at a different place discharging his public duties, and if on such sort of a frivolous charge framed, but not pursued with, if the authority is to drop the proceedings, but relying upon that material alone pass an order of compulsory retirement, it will be tantamount to an opinion being formed on 'no material' whatsoever. As held in V. R. Sabaji's Case, (1979) 2 LLJ 393 SC, if the petitioner produces sufficient materials for delving into the files, then in exercising powers under Article 226, the petitioner will have the benefit of demonstrating to the Court about the futility of the order and to what extent opinion had been formed either on collateral grounds or on 'no materials' or arbitrarily arrived at. 27. In view of the aforesaid discussion, this writ application succeeds and is hereby allowed. The impugned order of compulsory retirement dated 9th November, 1989, Annexure-A to this writ application is hereby quashed and set aside. The consequence of the setting aside of the order of compulsory retirement is that the petition will be treated as on duty upto his normal date of superannuation. He would be entitled to full pay and allowances as also the annual increments till that date. Direct service is permitted.