JUDGMENT 1. - The petitioner by this writ petition seeks to quash the order-cum-notice of his compulsory retirement from the service, dated 24-2-1973 (Annexure 2) and also the order dated 5-2-1973 (Annexure 1) for treating him on duty during the period 8-8-1948 to 18-1.1951 for qualifying service for pension. 2. The facts giving rise to the present writ petition may be stated briefly as under : "The petitioner passed Intermediate (Science) Examination in the Near 1942 and secured admission at the Benaras Hindu University. After his admission the Bikaner State Government declared him a Stale Scholar. The petitioner obtained the degree of B. Sc. (Engineering) (Electrical and Mechanical) from Benaras Hindu University in the year 1946. Then the erstwhile Bikaner State started the foreign scholarship scheme, the petitioner applied for higher education in the United States of America in Railway Engineering. During the period the admission could be secured in the U.S.A. and formalities could be completed, the petitioner secured " a job and was appointed as Shift Engineer in the Electrical and Mechanical Department of the Bikaner Power House from 18-7-1946. The Government sanction for appointment was issued vide Order No. 5436/PW/1946 dated 30-8-1946. The order issued by the Public Works Minister selecting the petitioner as a candidate for higher technical training, is reproduced in pars 4 of the writ petition, which contains the term and conditions. Inter alia it contained that the candidates in service will he given the privilege leave due to them and the leave salary will be paid to them in advance before they proceed abroad. Each candidate will be required to serve the State at-least for a period of ten years. The candidates will be required to execute a bond. The normal scale of salary shall he fixed at Rs. 300-20-600. At the time of formal appointment of the scholar, the requirements of the State and the conditions then prevailing will be considered. It also provided for insurance of each candidate and the assignment of polity in favour of the Accountant General, Bikaner State and payment of premium on the policies to he made by the Accountant General. 300-20-600. At the time of formal appointment of the scholar, the requirements of the State and the conditions then prevailing will be considered. It also provided for insurance of each candidate and the assignment of polity in favour of the Accountant General, Bikaner State and payment of premium on the policies to he made by the Accountant General. However, it was provided that on the return of the candidates and after entering service, the amount of premium advanced will be recovered from their salaries by easy instalments and the recoupment of the amount of the premium, the policies will be re-assigned to the respective candidates. The petitioner obtained the foreign scholarship and executed the bond, which inter alia provided that on completion of the studies if the petitioner refuses M serve the Government. when he is required to do so for a minimum period of ten years, he shall forthwith refund to the Government on demand all moneys paid to him or on his behalf in respect of the stipend, tuition fees. insurance premium, travelling expenses or return passage or otherwise. By August, 1948, admission in the U. S. A. was secured and the petitioner was sent t) the U. S. A., for which he was relieved on 8-8-1949 and the salary for the privilege leave due from 18-7-1946 to 8-8-1948 was paid to the petitioner, as after return from the U.S.A. fresh appointments was to he given by the State as provided in the order of selection of the petitioner. After completing his studies and obtaining the Degree of Master of Science in Mechanical Engineering from Michigan State College, and, after receiving practical training with some of the reputed concerns in the U. S. A., the petitioner returned to India on 10-10-1950. the intimation whereof was sent to the concerned authorities and the Government of Rajasthan. The scholarship was first paid by the erstwhile Bikaner Government and after integration by the Government of Rajasthan and on formation of Part 'B' State, the financial responsibility was taken over by the Government of India in conjunction with the State of Rajasthan. The petitioner has reproduced letter No F. 16-1 /49-S-2 dated 19-12-1950 from the Government of India to the Chief Secretary to the Government of Rajasthan, Jaipur, in para 10 of the writ petition. The petitioner has reproduced letter No F. 16-1 /49-S-2 dated 19-12-1950 from the Government of India to the Chief Secretary to the Government of Rajasthan, Jaipur, in para 10 of the writ petition. In para 3 thereof it was provided that Ministry of Education will also supervise the progress of the scholars and will, if necessary, assist the State Government, in the matter of their employment on return. The Chief Secretary to the Government of Rajasthan then informed the Government of India vide letter dated 14-3-1951 that the Government of Rajasthan has been unable to employ the petitioner and since the petitioner is a scholar sponsored by the Central Government, the possibility may be explored for utilising his valuable services. As a result of the information of the Chief Secretary, the Government of India, Ministry of Education wrote to all Part A, B and C States to explore the possibilities of finding employment for the petitioner vide letter No. 37-8/49-S.I. (I.S.) dated 28-4-1951. It was stated in this letter that the petitioner is available for employment immediately. 3. The petitioner further averred that when attempts were being made for finding suitable job for the petitioner, a special Selection Board for selection of officers for permanent appointment in the various Departments, was appointed by the Government of Rajasthan. Thereupon, the petitioner applied. The Secretary of the Selection Board intimated the petitioner to appear for interview on 1-12-1950. The Selection Board made re-commendation of the petitioner for the post of Assistant Engineer and under Order No. F. 1 (16) Appeal (51) dated 19-1-1951, the Government of Rajasthan made substantive appointment in the Electrical and Mechanical Department in the cadre of Assistant Engineer. The Petitioner stated that in view of the above order of fresh appointment, the petitioner was posted as Assistant Engineer Grade A at Sri Ganganagar. He served there upto October 1954 and from November 1954 he was transferred as an Assistant Engineer (Projects) for the First Five-Year Plan. The Chief Engineer, recognising the services rendered by the petitioner, wrote to the Government for promotion of the petitioner as an Officiating Executive Engineer. Accordingly the Government promoted the petitioner vide letter dated 12-7-1956 as Officiating Executive Engineer. The petitioner has also reproduced the confidential letter No. 349 dated 28-1-1956 of the Chief Engineer to the Secretary to the Government, Public Works Department. Accordingly the Government promoted the petitioner vide letter dated 12-7-1956 as Officiating Executive Engineer. The petitioner has also reproduced the confidential letter No. 349 dated 28-1-1956 of the Chief Engineer to the Secretary to the Government, Public Works Department. It was stated in this letter that according to the seniority list, there are 12 Assistant Engineers above the petitioner, out of whom two have already been promoted, leaving ten. Out of these only the petitioner is suitable with requisite experience and knowledge to take up the above detailed job immediately. He has also high academic post graduate qualification having M. Sc. from Michigan U.S.A. The petitioner was initially appointed as a Officiating Executive Engineer for a period of six months ad thereafter the period to as extended till the selection of the Executive Engineer by the Rajasthan Public Service Commission. Thereafter six posts of the Executive Engineers were created temporarily for the Second Five-Year Plan, which were to be filled up through the Agency of the Rajasthan Public Service Commission and the petitioner was selected as an Executive Engineer, and the Government passed on order dated 28-6-1957 appointing the petitioner as an Officiating Executive ;Engineer in the Electrical & Mechanical Department on a temporary basis. Then promotion to the post of Executive Engineer was recommended by the Chief Engineer, R.S.E.B., on the basis of the suitability and merit and not on the length of service. Similarly, according to the petitioner, the selection by Rajasthan Public Service Commission for the post of Executive Engineer was made on the basis of suitability and qualification and not on the basis of the seniority, as indicated in the Government order dated 19-1-1951. After the constitution of the Rajasthan State Electricity Board, the services of employees of the Electrical and Mechanical Department were placed at the disposal of the Rajasthan State Electricity Board (hereinafter referred to as "the R.S.E.B.)" with effect from 1-7-1957. The petitioner's service were placed at the disposal of the R. S. E. B. in the capacity of Officiating Executive Engineer and confirmed Assistant Engineer. The petitioner worked as Executive Engineer from July 1956 to 27-6-1960 in different Divisions, Works and Projects. According to the petitioner, when he worked in the Distribution Division, Shri J. I. Bhatta was working as Executive Engineer (Generation). The petitioner worked as Executive Engineer from July 1956 to 27-6-1960 in different Divisions, Works and Projects. According to the petitioner, when he worked in the Distribution Division, Shri J. I. Bhatta was working as Executive Engineer (Generation). He wanted to unduly oblige some Overseers, which the petitioner did not allow and he was especially annoyed in connection with the release of connection to Shriram Talkies, Dausa. When a new circle for procurement was created, the petitioner was promoted as Officiating Superintending Engineer vide order dated 27-6-1960, and, the petitioner was confirmed on that post vide letter dated 21-11-1963 on the recommendation of the Government of Rajasthan, Power Department, with effect from 1-4-1961. The petitioner worked as Superintending Engineer on the various posts upto 28-1-1971. The petitioner was served with charge-sheet in June 1970 and certain adverse entries in the confidential Rolls for the years 1968/69 and 1969-70 were conveyed, against which the petitioner submitted the representations The petitioner's representation against adverse entries remained pending. He also represented for payment of salary for the period after his return from America till 18-1-1951 and for treating his service as continuous, but the said representation was turned down. However, during the month of May 1970, the post of the Additional Chief Engineer, Rana Partap Sagar and Jawahar Sager Dams, had fallen vacant and the petitioner had represented the Government of Rajasthan for posting him against this post. being the senior most Superintending Engineer. Thereupon, the Government issued orders for promotion of the petitioner as an Additional Chief Engineer vide No. F. 4 (95) Pow/61 dated 25-1-1971. The petitioner filed writ petition No. 1015/72 on 8-5-1972 in connection with his supersession for the post of Chief Engineer. After filing of the same the petitioner was rude to retire compulsorily vide order dated 24-2-1973. The writ petition was dismissed as having become infructuous in view of the compulsory retirement. It may also be stated that the petitioner made another representation dated 8-9-1969 for continuity of service and for payment of salary for the period after return from the U.S.A. till he was appointed, but the same was withdrawn by the petitioner on 10-11-1972. 4. The writ petition was dismissed as having become infructuous in view of the compulsory retirement. It may also be stated that the petitioner made another representation dated 8-9-1969 for continuity of service and for payment of salary for the period after return from the U.S.A. till he was appointed, but the same was withdrawn by the petitioner on 10-11-1972. 4. The petitioner has challenged his order of compulsory retirement and order relating to treating the period from 18-8-1949 to 18-1-1951 as the period for qualifying service for pension, on various grounds, which I need not mention here, as the same will be dealt with, while dealing with the arguments of both the sides. 5. The non-petitioners No. 1 to 3 filed reply to the writ petition, in which mostly the facts as stated by the petitioner, have not been disputed. However, it was refuted that the petitioner was to be given fresh appointment after higher studies and training from abroad. It was alleged that the petitioner's services have been treated right from 1946 and accordingly he has been given seniority actually from 18-7-1946. It was further stated that this controversy has been put to rest when the order dated 5-2-1973 has been issued, by which the Government has treated the period during the training and 'awaiting posting order of the petitioner as qualifying service for pension. Contents of para 11 of the writ petition were not admitted and it was stated that it is misconceived that the Chief Secretary could inform the Central Government with reference to the letter dated 26-3-1951 by his letter dated 14-3-1951 (the correct date is 26-2-1951). It was further stated that this is not possible that the Chief Secretary could write to the Government of India on 14-3-1951 that the petitioner could not be employed, as he had already been selected by the Integration Committee as an employee of the erstwhile Bikaner State and he had been actually posted on 19-1-1951. It may he mentioned here that it has not been specifically stated in this para that the Chief Secretary did not address the letter reproduced in para 11 to the Government of India. It is also note worthy that contents of para 12 regarding addressing the letter by the Government of India, Ministry of Education, to all Part A, B and C States, were not specifically answered. It is also note worthy that contents of para 12 regarding addressing the letter by the Government of India, Ministry of Education, to all Part A, B and C States, were not specifically answered. Simply it was stated that the reference to the reproduced letter in para 12 is irrelevant and has no hearing on the controversy. The non-petitioners case further is that the petitioner's case was considered by the Selection Board reckoning his service as continuous with effect from 18-7-1946 and seniority was accordingly given. His continuous Si rice should, therefore, be counted for all purposes, including seniority from 18-7-1946 This seniority has been acted upon throughout and it is based on this seniority that he has received all further promotions. The non-petitioners submitted the report Ex. R/2 of the Special Selection Board and also submitted the history of service signed by the petitioner himself as Ex. R/3. It was denied that the petitioner's appointment was a fresh appointment Had it been a fresh appointment, neither the petitioner would have been called by the Special Selection Board for the integration of the officers. who were already in service, nor he would have been given seniority from 18-7-1946. Thus, the appointment on the substantive post of the Assistant Engineer was in the process of integration and not as a fresh appointment. Had it been a fresh appointment, the petitioner would have been placed on probation and would not Dave been appointed substantively. In reply to para 53 it was stated that it is wrong to say that there was any discontinuity in service from 8-8- 1949 to 18-1-1951. The petitioner was paid from the consolidated fund of Bikaner State (luring the training period from 8-8-1948 to 10-10-1951) Rule 11 (b) of the Bikaner State Civil Service Regulations provides that a Government servant may be treated as on duty (i) during the course of training or instruction, and, (ii) in the case of student stipendiary or otherwise, who is entitled to be appointed to the service of Government on passing through a course of training at a University, College or School, during the interval between the satisfactory completion of the course and his assumption of duties. In the order of the Bikaner State, deputing the petitioner for training, there was a condition that he would be required to serve the State at least for ten years vide clause (6) read with clause (9) of the order. The period from 10-10-1950 to 19-1-1951, during which the petitioner remained under awaiting posting order, was treated as one spent on duty under rule 7 (8) (b) of the R. S. R. vide order dated 5-2-1973 issued by the Government in Power Department. Hence, the question of discontinuation of service does not arise. It was also stated that this period is also permitted to be counted as on duty under rule 11 (b) (ii) of the also Bikaner State Civil Service Regulation. The order dated 5-2-1973 clearly stipulates that the petitioner would be treated as on duty under Rule 7(8) of the R. S. R. and will be paid at the rate at which he started getting salary from 19-1-1951. It was further admitted that the petitioner sent the telegram dated 10-12-1972 followed by the letter of even date wherein he requested for withdrawal of the representation filed by him on 3-9-1969 on the subject. Since the question was under consideration of the Government, the Government felt that the petitioner had enjoyed the fruit of continuance of service from July, 1946, onwards, the Government, therefore, did not accept the withdrawal of the representation and passed the order dated 5-2-1973. It was further stated that the question whether the period from 8-8-1948 to 10-10-1950, when he was in training abroad, was not decided and was receiving the attention of the Government and it was ultimately decided that the relevant period should be treated for qualifying service and consequently an order to this effect was passed on 5-2-1973. The Government was competent to decide rightly that the period from 8-8-194 to 18-1-1951 be taken as qualifying service for pension. 6. As regards the order of compulsory retirement it was stated that the Committee considered the cases of only those officers, who had completed 25 years of qualifying service. As the petitioner had completed 25 years of qualifying Service, his case too was considered by the Committee. The registers showing the statements of services were maintained by the Administrative Department. The Committee scrutinised the A. C. Rs. As the petitioner had completed 25 years of qualifying Service, his case too was considered by the Committee. The registers showing the statements of services were maintained by the Administrative Department. The Committee scrutinised the A. C. Rs. and a list, as stipulated under sub-rule (2) of Rule 244 of the R. S. R . was prepared and recommended the officers for compulsory retirement. The Committee met in August 1972 to advise the Government regarding compulsory retirement or otherwise in terms of rule 244 (2) of the R. S. R. of these officers who had completed 25 years of qualifying service or shall complete the same by 31-12-1972. The Committee fully considered the service record of the petitioner and recommended for compulsory retirement of the petitioner, as it found that it is not in the public interest to retain him in service. The list prepared by the Administrative Department as well as by the R. S. E. B., contained the name of the petitioner amongst those who came within the range of consideration of rule 244 (2) of the R. S. R. The Committee was informed by the Secretary that some question regarding the determination of the period of qualifying service of the petitioner, was under consideration with the Government, as the Committee, while making its recommendations added that in case Government comes to a decision that he had already completed 25 years of qualifying service or will do so by 31-12-1972, he be compulsorily retired. It was denied that the inclusion and the consideration of the petitioner's name was under the influence or the pressure of Shri S. L. Khurana, Chief Secretary, non-petitioner No. 3. The Committee in fact was objective enough to make its recommendations regarding the petitioner's compulsory retirement subject to the final decision of tie Government of the petitioner's case regarding qualifying service. The Committee had given detailed reasons for considering that the petitioner's retention in the organisation was no longer useful. I need not mention reply to the grounds of challenge to the two orders dated 5-2-1973 and 24-2-1973, as the same will be dealt with by dealing with the arguments of the respective parties. The non-petitioners, however, prayed that the writ petition may be dismissed. 7. I need not mention reply to the grounds of challenge to the two orders dated 5-2-1973 and 24-2-1973, as the same will be dealt with by dealing with the arguments of the respective parties. The non-petitioners, however, prayed that the writ petition may be dismissed. 7. The petitioner also submitted rejoinder to the reply, in which the averments made in the writ petition, were reasserted and the grounds for defence taken by the non-petitioners were refuted. 8. I have heard Shri S.R. Singhi, learned counsel for the petitioner, Shri H. N. Calla, learned Additional Government Advocate, for the non-petitioners No. 1 to 3. 9. In this writ petition, the petitioner has challenged the Government orders dated 5-2-1973 and 24-2-1973 on various grounds. 10. On behalf of the petitioner, Shri S. R. Singhi, learned counsel for the petitioner vehemently urged that the petitioner had not completed 25 years of qualifying service as required under rule 244 (2) of the R. S. R. on the date of the order of compulsory retirement. Shri Singhi urged that the petitioner's relationship of master and servant had come to an end on 8-8-1948 and all his relationship with the Government of the erstwhile Bikaner State as its servant had served. The petitioner was relieved for proceeding to U. S. A. and he was paid his leave salary, which was due upto 8-8-1948. The petitioner proceeded to the U. S. A. under the terms and conditions of the bond. No guarantee of job was given to the petitioner, so he was not entitled a job, although the petitioner was under an obligation to serve the Government for a period of ten years or to make repayment of all benefits drawn by him. It was urged by Shri Singhi that bad there been continuous service of the petitioner, the petitioner would not have remained out of job and soon after iris return from U.S.A. he would have been absorbed in service and would have been paid for that period. It was urged by Shri Singhi that bad there been continuous service of the petitioner, the petitioner would not have remained out of job and soon after iris return from U.S.A. he would have been absorbed in service and would have been paid for that period. On the contrary when the petitioner submitted his representation, his request for payment of salary with effect irons 10-10-1950 to 18-10-1951 was turned down and it was stated that the demand for payment of salary for the period from 10-10-1950 to 18-1-1951, is not acceptable, as an officer can draw the pay of the post from the irate of joining, as evident from the Government Order F.4(5)Pow/67 dated 10-11-1967, reproduced in pars 56 of the writ petition. It was pointed out by Shri Singhi that the correspondence between the Government of Rajasthan and the Government of India would reveal that efforts had to be made to provide employment to the petitioner. Simply because the petitioner's case was taken up for consideration by the Special Selection Board at the time of integration of service and for giving seniority with effect from the date of his first appointment as a Shift Engineer in the Bikaner State, it cannot be taken that the petitioner's services were continues, with effect from 18-7-1946. In tact the Government did not consider We petitioner's service as continuous. It refused to make payment of his salary for the period from 10-10-1950 to 18-1-1951. It is true that the petitioner was given substantive appointment and was not kept on probation, but this consideration again will not in any way effect the question of discontinuity, of the petitioner's service. Besides that, the petitioner was appointed as officiating Executive Engineer vide order dated 12-7-1956, after considering the petitioner's case on merits. So the question of giving of alleged seniority from 18-7-1946 loses all its significance and the non-petitioner's case that the petitioner enjoyed the fruit of continuous of service throughout on the basis of commencement of service from 18-7-1946, is without any force. 11. Shri H.N. Calla, Additional Government Advocate, on the other hand canvassed the stance taken by the Government that the petitioner's case was considered to be a case of integration and not as a case of fresh appointment. The petitioner's name would not have been considered by the Special selection Board, had his cane would not have been a case of integration. The petitioner's name would not have been considered by the Special selection Board, had his cane would not have been a case of integration. Further the seniority of the officers recommending for appointment, was reckoned from the date of continuous service in Rajasthan and in the case of the petitioner 18-7-1946 was considered to be that date. Shri Calla urged that it is true that the petitioner was not paid salary for the period 10-10-1950 to 18-1-1951 and his demand for payment of salary for this period was not accepted, but on that basis it should not be found that the petitioner's services were not continuous. The matter was under consideration with the Government and the Government ultimately by its order dated 5-2-1973 treated this period as qualifying service for pension. 12. The question that emerges for consideration is as to whether the petitioner was given a fresh appointment with effect from 19-1-1951. In case it is found that the petitioner was given a fresh appointment, in that circumstance admittedly the petitioner's case could not have been considered for compulsory retirement. It would be a separate question as to whether the Government was competent to treat the period of the petitioner's service from 8-8-1948 to 18-1-1951, as qualifying service for pension. The validity of the order of the Government dated 5-2-1973 will be separately examined. If the period from 8-8-1948 to 18-1-1951 is not treated as qualifying for pension, the question of petitioner's compulsory retirement, would not arise. Even according to the Government, there was a break in service and so the Government felt the need of passing an order (Annexure 1) for treating this period as qualifying for pension. Shri Singhi, learned counsel for the petitioner, made reference to the letter of the Accountant General, when reference was made by the Government to his vide letter dated August 11/14, 1972 reproduced in para 68 f the writ petition. A doubt was expressed by Shri M.M. Bhatnagar, Deputy Secretary to Irrigation and Power Department, that the petitioner entered into the service of Bikaner State in 1946 and in 1984 be was sent to U.S.A on training and thereafter he was appointed as Assistant Engineer with effect from 19-1-1951. He added that from the record available, it is not clear as to from what date the qualifying service of the petitioner shall commence. He added that from the record available, it is not clear as to from what date the qualifying service of the petitioner shall commence. The Accountant General was requested to verify and intimate the qualifying service rendered by the petitioner upto date. In reply to the said letter the Accountant General by his letter dated 29-9-1972 informed that the petitioner worked as Shift Engineer in he former Bikaner State from 11-7-1946 to 8-8-1948. Thereafter, he proceeded on higher technical training as a stipendiary of the State and reported back for duty on 10-10-1950, though the petitioner stated that he simply gave intimation regarding his arrival to the concerned authorities and to the Government of Rajasthan.It was further informed that the Petitioner's service as Shift Engineer, were non-gazetted. After his return he was appointed as Assistant Engineer with effect from 19-1-1951 and he was not paid any thing for the period from 10-10-1950 to 18-1-1951. It was further stated that as on 8-8-1948 privilege leave for two months and eight days was due to the petitioner. He was paid salary in lieu thereof before he proceeded on training. His service was deemed to have been terminated. No study leave etc. was granted to him and no order of the State Government treating the training period as duty, are available. In view of this position the Accountant General informed that the qualifying service of the petitioner shall be treated normally as having commenced from 19-1-1951 only. The Accountant General made reference to rule 11(b) of the Bikaner State Civil Service Regulation and stated that no order of the Bikaner State Government treating the relevant period as duty appear to have been issued and it is for the Government to ascertain the same and decide whether the period of training and further period from 10-10-1950 to 18-1-1951 should be treated as duty or not, on which would depend the date of commencement of qualifying service. Shri Singhi submitted that from the opinion expressed by the Accountant General, it would appear that the petitioner's service stood terminated with effect from 8-8-1948 and the petitioner was given appointment with effect from 19-1-1951 and there was no order for treating this entire period as on Duty. Shri Singhi submitted that from the opinion expressed by the Accountant General, it would appear that the petitioner's service stood terminated with effect from 8-8-1948 and the petitioner was given appointment with effect from 19-1-1951 and there was no order for treating this entire period as on Duty. From the facts as narrated while stating the petitioner's case and as made mention thereof in the submissions of Shri S.R. Singhi, it would appear that the relations between the petitioner and the Bikaner State, were transformed from status to the domain of contract. The petitioner severed all his relations as servant of the Bikaner State when he proceeded to the U. S. A. He availed of foreign scholarship scheme and entered into the bond with the Government. It is only the terms and conditions embodied in the bond, which will govern the relationship between the petitioner and the Bikaner State or its successor State. By no strech of imagination it can be said that while undertaking higher studies and under going training in the U. S. A., the petitioner continued to remained service of the Bikaner State. He was neither treated as such, nor was paid as such . No study leave or extraordinary leave was granted to him. The discontinuance and termination of service, is clear patent and obvious. Where was the need of payment of salary of leave due, if the petitioner was to continue to remain in service. Admittedly, the petitioner was in temporary service at that time. What has been emphasised by the learned Additional Government Advocate, is that his case was considered by Special Selection Board, which was constituted for integration of services and his seniority was assigned with effect from 18-7-1946, so it should be found that it is not a case of fresh appointment. I am unable to agree with this submission of Shri Calla, learned Additional Government Advocate. In this connection it may be pointed out that the petitioner was not provided any employment and under the terms of the bond the petitioner was bound to serve for a period of ten years. When the petitioner was sent abroad at the State expense, it appears that the petitioner was given an opportunity to get Employment by allowing him to be considered by the Special Selection Board. When the petitioner was sent abroad at the State expense, it appears that the petitioner was given an opportunity to get Employment by allowing him to be considered by the Special Selection Board. On the basis of this mode of appointment that he was selected by a Special Selection Board constituted for integration of services and by giving him seniority with effect from 18-7-1946, it cannot be taken that the relations, which had severed on 8-8-1948, were restored. There is no substance in the argument that in case the petitioner would have been given a fresh appointment, he would not have been substantively appointed and would have been appointed only on probation. When a qualified person was available who had served the erstwhile Bikaner State and was sent on Foreign Scholarship Scheme, the petitioner could have been substantively appointed as Assistant Engineer. V4hen appointments Here being made on the recommendations of the Selection Board, for purposes of assigning seniority, his initial date of appointment in the Bikaner State Service, was taken into consideration, but on that basis it cannot be said that the petitioner's service was continuous. When once a particular seniority has been assinged, the same will continue for future, although so far as the petitioner is concerned, he got his promotion on his merit and not on the basis of seniority assingned to him originally. Further from the terms and conditions of the bond, it would appear that the petitioner had no right as such to claim any job from the Government. He was indeed under an obligation to serve the Government, but there was no corresponding right vested in him. It is only, because of the petitioner's non-existent right that he was not paid for the period 10-10-1950 to 18-1-1951 and his prayer for payment of salary of this period, was not accepted and turned own and it was asserted that the petitioner is entitled to salary only from the date of his joining, that is, from 19-1-1951. Further clause (8) of the order selecting the petitioner as a candidate for higher studies and training, clearly stipulates and contemplates formal appointment which reads that at the time of formal appointment of the scholar, the requirements of the State and the conditions then prevailing, will he considered and clause (5) also envisages recovery of premiums after entering service. Further clause (8) of the order selecting the petitioner as a candidate for higher studies and training, clearly stipulates and contemplates formal appointment which reads that at the time of formal appointment of the scholar, the requirements of the State and the conditions then prevailing, will he considered and clause (5) also envisages recovery of premiums after entering service. Thus from the facts and circumstances considered above, to my mind, it is clear that the petitioner was given a fresh appointment with effect from 19-1-1951, as the petitioner's service was not a continuous one. It is only because of this that a necessity arose to pass an order dated 5-2-1973, else there would have been no need to pass that older, and the petitioner would have been paid salary for the period 10-10-1950 to 18-1-1951. 13. Now the next question, which needs consideration, is as to whether the Government can treat this period from 8-8-1948 to 18-1-1951 as a period qualifying for pension, and whether the order dated 5-2-1073 is a legal and valid one. The Government proceeded to pass the aforesaid order on the basis that the petitioner proceeded for training to the U. S. A. under orders of the erstwhile Bikaner Government and reported back for duty on 10-10-1950, and that he could, be appointed as an Assistant Engineer, with effect from 19-1-1951 and his case regarding treatment of the period of training and awaiting posting orders thereafter, has been pending and his appointment on 19-1-1951 is not a fresh appointment and the petitioner has enjoyed the fruits of continuance of service from July 1946 and onwards. Taking this is to be the factual basis the following order was passed : "The Governor has therefore been pleased to order that the period of his service from 8-8-1948 to 18-1-1951 will be treated as qualifying for pension. The Governor has further been pleased to order that the period from 11-10-1950 to 18-1-1951, during which period Shri Bahadursingh had to await posting order on administrative grounds, will be treated as duty under rule 7(8)(b) of R.S.R. and will he paid for at the rate at which he started getting his salary from 19-1-1951." 14. The Governor has further been pleased to order that the period from 11-10-1950 to 18-1-1951, during which period Shri Bahadursingh had to await posting order on administrative grounds, will be treated as duty under rule 7(8)(b) of R.S.R. and will he paid for at the rate at which he started getting his salary from 19-1-1951." 14. It may he stated that the factual basis on which the order proceeds, has been considered while dealing with the question of fresh appointment, and so if the factual basis goes away, the order is bound to fall. I have considered that the petitioner's case is a case of fresh appointment and not a case of continuance of service. It is the continuance of service, which is the foundation of the order dated 5-2-1973. But it has been found that this support is not available to the non-petitioners. The question further requires consideration that under any of the existing rules, such an order could be passed by the Government even when fresh appointment has been made. The order does not refer to any rule under which the period from 8-8-1948 to 18-1-1951 has been treated as qualifying for pension. However, the order does make a reference to rule 7(8)(b) of the R.S.R. for treating the period from 11-10-50 to 18-1-1951 as on duty and the petitioner was ordered to be paid for at the rate at which he started getting his salary from 19-1-1951, for this period. 15. The validity of the aforesaid order is challenged by the petitioner on the ground : 1. That the Rajasthan Service Rules cannot be made applicable to the petitioner- retrospectively and even if made applicable, the order is not covered under any rule, as the petitioner was not permanent on the post of Shift Engineer in the former Bikaner State. He was also not under the service of the Government during the period from 6-8-1943 to 10-1-1951 and he was also not paid as servant of the Government from the consolidated fund ; 2. That the order was passed in violation of the principles of natural justice ; and 3. That the Government had no jurisdiction to pass the order in view of the rejection of the petitioner's first representation on 10-11-1967 and withdrawal of the second representation by the petitioner before the order dated 5-2-1973. 16. That the order was passed in violation of the principles of natural justice ; and 3. That the Government had no jurisdiction to pass the order in view of the rejection of the petitioner's first representation on 10-11-1967 and withdrawal of the second representation by the petitioner before the order dated 5-2-1973. 16. Shri Singhi, learned counsel for the petitioner, referred to rule 4-A and to the first pars of the note of the Rajasthan Service Rules, in which following decision of the Government of Rajasthan is mentioned : "The question whether service in a particular office or department qualifies for pension or not is determined by rules which were in force at the time such service was rendered and orders subsequently issued declaring service to be non-qualifying are not applied with retrospective effect." He also referred to rule 2 dealing with extent of application. Rule 4-A provides that the Government reserves to themselves the right of changing the rules regarding pay and acting allowances and leave and pension from time to time at their discretion. An Officer's claim to pay and allowances is regulated by rules in force at the time in respect of which the pay and allowances are earned ; to leave by the rules in force at the time the leave is applied for and granted, and to pension by the rules in force at the time when the officer resigns or is discharged from the service of Government. This rule makes it clear that as regards pension, those rules are applicable, which are in force at the time when the Government discharges the officer from service or the officer resigns. This rule does not in any way help the cause of the petitioner. As regards the decision referred to above, as urged by Shri Singhi, it may be pointed out that the above decision also is not helpful and does not support the contention of Shri Singhi. According to the above decision any service qualifies for pension or not, is determined by rules which were in force at the time such service is rendered, but if any orders are subsequently passed declaring service to be non-qualifying, then such orders are not applied with retrospective effect. It would appear that those rules and orders which be applicable to the petitioner when he was ordered to compulsory retire. It would appear that those rules and orders which be applicable to the petitioner when he was ordered to compulsory retire. The petitioner's case, in my opinion, is covered under rule 2, category (iii) of the R.S.R.. wherein it is provided that the Rajasthan Service Rules shall apply to all persons appointed to such posts or services on the basis of contract entered into by the Government of Rajasthan or by the Government of Covenanting State in respect of such matters covered by these Rules are as not specially provided for in their contracts for appointment. The petitioner's relations with the Government of erstwhile Bikaner State as servant were severed with effect from 3-8-1948 and a bond was entered into and under the terms of the bond the petitioner was required to serve the Government so the petitioner came to b: appointed as such by the Government under the bond. So the petitioner's case would fall under rule 2(iii). Thus, the Rajasthan Service Rules are applicable to the petitioner. 17. Now the question as to whether the Government was justified in passing the order dated 5-2-1973 under any of the rules for treating any period as qualifying for pension or for purpose of compulsory retirement under rule 244(2). The Government has treated the period from 10-10-1950 to 18-1-1951 as on duty under rule 7(8)(b)(ii) and whole of the period, that is, from 8-8-1948 to 13-1-1951 has been treated by the Government as qualifying for pension, but no rule has been referred in the Government order under which this period has been treated as qualifying for pension. The learned Additional Government Advocate, in this connection, has referred to rules 180, 196 and 212 of the Rajasthan Service Rules, though in the return reference has also been made to Bikaner State Civil Service Regulations, but at the hearing no reliance has been placed on the Regulations. It is to be seen as to whether rule 7(8),b)(ii), rules 180, 196 and 212 can be made applicable to the petitioner's case for treating this entire period as qualifying for pension and treating the period from 10-10-1950 to 18-10-1951 as on duty. Chapter XVIII of the Rajasthan Service Rules deals with the conditions of qualifying service. It is to be seen as to whether rule 7(8),b)(ii), rules 180, 196 and 212 can be made applicable to the petitioner's case for treating this entire period as qualifying for pension and treating the period from 10-10-1950 to 18-10-1951 as on duty. Chapter XVIII of the Rajasthan Service Rules deals with the conditions of qualifying service. Rule 179 lays down three requisite conditions for qualifying service for pension,-(1) the service must be under Government; (2) the employment must be substantive and permanent; and (3) the service must be paid by Government. Under rule 180 the Government has power to declare any specified kind of service or the service rendered by a Government servant shall qualify for pension, subject to such conditions as Government may think fit to impose. The Government may make such a declaration even in a case where either or both of conditions (1) and (2) to rule 179 are not fulfilled, but the condition that the service must be paid from the consolidated fund, is required to be fulfilled, that is, for making any declaration under rule 180, the condition that the service must be paid from the consolidated fund, has to be fulfilled, though the service may not be under the Government and that the employment may not he substantive and permanent. Rule 196 lays down that the service paid from the consolidated fund qualifies. The fact that arrangements are made for the recovery on the part of Government, of the whole, or part, of the cast of an establishment, or officer, does not affect the operation of this principle, provided that the establishment or officer is appointed, controlled and paid by the Government. From perusal of rules 179, 180 and 196 it is clear that service is a prerequisite condition and it is service, which should be paid from consolidated fund If payment from consolidated fund is not made for service, then none of these rules will apply. Thus rendering of a service is a must and if for any period no service is rendered, then in respect of such period no order can be passed to treat such period as qualifying for pension The petitioner did not render any service during the period from 8-8-1948 to 10-10-1950, so this period cannot be ordered to be treated as period qualifying for pension. Apart from that even period prior to 8-8-1948 does not satisfy the requirement of rule 179. Condition No. 2 is absent and is not fulfilled even in respect of that period. The petitioner was holding the post of Shift Engineer on temporary basis and his appointment was not substantive and permanent. Rule 212, no doubt confers very wide powers on the Government for condonation of interruption in service. Rule 212, provides that upon such conditions as it may think fit in each case to impose the Government may, condone interruption in service of a Government servant. Even for acting under rule 212, the service of the Government must be permanent and substantive, that is, condition No. 2 of rule 179 has to be fulfilled and it is only when the case is covered under rule 180, that the second condition of rule 179 can be disposed with. 18. The learned Additional Government Advocate referred to a decision of this Court in Kana Ram v. State of Rajasthan and others (1971 W.L.N. (U. C.) 499) . In that case the petitioner was appointed a3 a Nakedar in the Excise and Customs Department on 22-1-1948. His services were subsequently transferred to the Irrigation Department. On 3-3-1958 he resigned from his post and he again applied as a Patwari in the Revenue Department. Thereafter on the request of the petitioner himself, the State Government condoned the interruption in his service from 4-3-1958 to 25-12-1958 under rule 212 of the Rules by an order dated 3-7-1967 and an entry in respect of the condonation of break in the service of the petitioner was made in his service book. On 16-5-1973 notice under rule 244 (2) was given to him. A contention was advanced that the period of his 'qualifying service', for the purposes of rule 244 (2) of the Rules, should be counted from 26-12-1958, when he was employed "afresh" as a Patwari. On 16-5-1973 notice under rule 244 (2) was given to him. A contention was advanced that the period of his 'qualifying service', for the purposes of rule 244 (2) of the Rules, should be counted from 26-12-1958, when he was employed "afresh" as a Patwari. This contention was negatived and it was observed that the power of condonation of interruption in service conferred upon the State Government under rule 212, carries with it also the power of reviving the service rendered by such Government servant prior to the interruption, but which otherwise would have stood forfeited under rule 208, and thus, the affect of the order passed by the State Government under rule 212, condoning the interruption in the service of the petitioner, was that there was no break in service of the petitioner and his entire service beginning from 22-1-1948 became one and continuous, until he was compulsorily retired from Government service under rule 244(2). It was considered in that case chat the qualifying service must conform the three tests laid down in rule 179 and it was found that the service rendered by the petitioner as Nakedar in the Excise and Customs Department and later on in the Irrigation Department was no doubt service under the Government of Rajasthan and was also paid for by the State Government and it was also not in dispute that the service of the petitioner ante his appointment on 22-1-1948 was in a substantive capacity and was thus permanent. Thus, all the three prerequisite conditions were fulfilled in respect of the petitioner's service prior to 8-3-1958, when he resigned This contention was also repelled that for purpose of rule 244 (2) condonation of interruption in service, cannot be taken into consideration and condonation can only be considered for qualifying service for pension. In this connection it was observed that the fact that the petitioner was not paid any salary or emoluments for the period during which he was not actually in service, is not material, so far as the question of counting the 'qualifying service' of the petitioner is concerned It was further observed:- "I am firmly of the view that after the break in service was condoned by the State Government under Rule 212, the service rendered by the petitioner cannot be compartmentalised. The period of service rendered by him upto the date of his resignation and the period of his service after his reappointment cannot be kept as separate and distinct services. But on account of the order of condonation of break in his service, both these periods were linked together, i. e., to one and continuous service.................................................. ................... Thereafter by a fiction of law, the petitioner should be considered to have been in Government service during the aforesaid period, in which he did not actually render any service. PF The contention of interruption cannot have any other effect". 19. There is no quarrel with the principle enunciated in this decision, but on facts, the case is distinguishable. The Government undoubtedly has power under rule 212 to condone interruption in service. But for the past service prior to the period of condonation. conditions laid down in rule 179 have to he fulfilled. These conditions existed in Kanaram's case, but it is not so in the present case. Another most distinguishing feature of that case with the present case, is that in that case the condonation was on the request of the petitioner. The Government exercised its power under rule 212 on the request of the petitioner In the instant case it is not so Admittedly in the present case the petitioner's request for being paid for the period from 10-10-1950 to 18-1-1951 was turned down and the petitioner withdrew his second representation before passing of the order dated 5-2-1971. Thus, it cannot be said that the petitioner in the instant case sought condonation of any interruption in service. As a matter of fact rule 212, will not at all be attracted in the present case, in view of the non-existence of conditions of rules 179, 180 and 196. Besides that during the period from 8-8-1948 to 10-10-1950, the petitioner was not at all in service of any Government. Had the petitioner's employment been substantive and permanent upto 8-8-1948 and had there been any request pending with the Government, the Government could have acted under rule 212, but in the absence of both these conditions power under rule 212, in my opinion, could not be exercised by the Government and there was no occasion for the Government to exercise that power. 20. 20. Shri Calla as well as Shri Singhi also referred to another decision of this Court in Deengarsingh v. State of Rajasthan & Anr., (1979 W.L.N. (U.C.) 17) . In that case the petitioner challenged his order of compulsory retirement from service. He joined the service of the former State of Jodhpur as Ameen Audit in the Jagir Settlement Department with effect from 1-2-1948. The post of Ameen was a non-pensionable and temporary post. He continued to work as an Ameen even after the formation of the State of Rajasthan. Thereafter with effect from 4-1-1953 he was appointed as Patwari and was confirmed on that post. On 18-10-1972 a notice was issued under rule 244(2) of 'the Rajasthan Service Rules, 1951. The said notice was followed by the order of compulsory retirement dated 9-1-1973. A contention was raised by the petitioner that he had neither completed 25 years of qualifying service nor he had attained the age of 55 years on 1-2-1973. His submission was that the qualifying service of the petitioner has to he counted from the date of his first appointment as Patwari with effect from 4-1-1955 and his earlier service on the post of Ameen in the former State of Jodhpur as well as in the State of Rajasthan could not be taken into consideration. As the relevant rule 194 was not amended, as it was held that the position was that the services rendered as Ameen in Survey and Settlement Department did not qualify for pension and, therefore, the same could not be taken into consideration for the purpose of computing the qualifying service for the purpose of Rule 244(2) of the R.S.R and it has, therefore, to be held that the service rendered by the petitioner on the post of Amen in the former State of Jodhpur as well in the State of Rajasthan prior to 1-4-1951, could not be taken into consideration for the purpose of computing the 25 years qualifying service. That case related to rule 194 and the decision in that case turned on its facts and the rule applicable to that case and cannot be pressed into service in this case. 21. Thus, as considered above, the order dated 5-2-1973 has no valid sanction under rules 179, 180, 196 and 212. 22. Now I may refer to rule 7(8) (b) (ii). 21. Thus, as considered above, the order dated 5-2-1973 has no valid sanction under rules 179, 180, 196 and 212. 22. Now I may refer to rule 7(8) (b) (ii). Rule 7 (8) (b) (i) (ii) is as under :7(8) Duty.- (a) xx xx xx xx xx xx xx (i) xx xx xx xx xx xx (ii) xx xx xx xx xx xx (iii) xx xx xv xX xx xx (b) Government may issue orders declaring that in the following circumstances, or in circumstances similar thereto, a Government servant may be treated as on duty. (i) During a course of instruction or training in India. (ii) In the case of a student, stipendiary or otherwise, who is entitled to be appointed in the service of Government on passing through a course of training at a University, College or School in India, during the interval between the satisfactory completion of the course and his assumption of duties " xx xx xx xx xx xe xxSub-clauses (iii), (iv) and (v) have not been referred to by the learned Additional Government Advocate and reliance has only been placed on sub-clause (ii) for the period from 10-10-1950 to 18-1-1951 for which it has been ordered that the petitioner will be paid for this period and he will be treated on duty during this period. 23. It may he mentioned that sub-clauses (i) and (ii) quoted above are applicable when the Government servant receives course of instruction or training in India and sub-clause (ii) can be attracted only when a student, stipendiary or otherwise, who is entitled to be appointed to the service of Government on passing through a course of training. In case he is entitled to be appointed then the interval between the satisfactory completion of the course and assumption of duties by him, can be treated as on duty. For the applicability of sub-clause (ii), the requirement is that the student should be entitled to be appointed to the service of Government. In the present case the petitioner did not receive any training at a University, College or School in India and further, as already considered, he was not entitled to be appointed to the service of Government. For the applicability of sub-clause (ii), the requirement is that the student should be entitled to be appointed to the service of Government. In the present case the petitioner did not receive any training at a University, College or School in India and further, as already considered, he was not entitled to be appointed to the service of Government. He was only under a duty to render service, but had no corresponding right to claim a job under the conditions of the bond Sub-clause (ii) would not apply to the case of the petitioner. Clause (b) of rule 1(8) no doubt is and can be attracted to circumstance similar to the circumstances enumerated therein and considering as such, the provision of clause (h) can be made applicable to a case of a scholar, who has been sent abroad for higher studies or training. But still, in my opinion, clause (b) cannot be applied when such a scholar is not entitled to he appointed to the service of Government. If clause (b) is made applicable, even when the scholar is not entitled to be appointed, for the period between the satisfactory completion of the course and assumption of duty by him, still the petitioner's period prior to 10-10-1950 commencing from 8-8-1948, cannot be treated as a period of qualifying service, as examined above Besides that, power under rule 7(8)(b)(ii) can be exercised by the Government when so requested. In the absence of any such request, the Government would not be justified to exercise that power. Thus, viewed from any point, the order under rule 7(8)(b) in respect of the period from 10-10-1950 to 18-1-1951 is not sustainable under the rule, for the reasons dealt herein above. 24. I now proceed to consider the second ground, on which the order dated 5-2-1973 is challenged that the said order is violative of principles of natural justice. It is urged by Shri Singhi that the petitioner was not given any opportunity of hearing before passing of the order dated 5-2-1973. The order on the face of it may be considered innocuous and unharmful, and is rather advantageous and beneficial to the petitioner that the period during which he even did not serve, has been treated as a period of qualifying service and was also ordered to be paid for the period from 18-10-1950 to 10-1-1951. The order on the face of it may be considered innocuous and unharmful, and is rather advantageous and beneficial to the petitioner that the period during which he even did not serve, has been treated as a period of qualifying service and was also ordered to be paid for the period from 18-10-1950 to 10-1-1951. But the background in which the order came to be passed, unveils and unmasks the real nature of the order. This administrative order has resulted into consequence in the nature of compulsory retirement. So before passing of this order the petitioner ought to have been heard. He submitted that it is well settled that the order of compulsory retirement is not punitive in character and attaches no stigma and does not attract Article 311(2) of the Constitution. But for passing of the order of compulsory retirement. It is necessary for the Government servant to have completed qualifying service and if any order is passed for treating any period as period for qualifying service, so as to take action of compulsory retirement, then before passing such an order of treating the period as a period for qualifying service. the Government servant must be heard, as such an order is nothing, but an adverse order affecting him by depriving him of service thereby loss of pay and other benefits. Shri Singhi substantiated his arguments by referring to some case law. 25. Shri Calla, learned Addl. Government Advocate, on the other hand, submitted that for treating any period as qualifying service, it was not necessary for the Government to give any opportunity of hearing. In exercise of its executive powers, the order under challenge could have been passed. According to Shri Calla it is purely an administrative order. The Govt. did not consider it proper to allow the petitioner to withdraw his representation and considering the matter as pending the Government proceeded to pass the order and it is immaterial that the screening committee made a recommendation prior to the order. The recommendation of the Screening Committee was a conditional one and depended on the Government's decision for treating the disputed period as period of qualifying service. 26. I have considered over the rival submissions and, I am unable to agree with the submissions of Shri Calla. It is the background in which the impugned order came to be passed, that assumes great significance. 26. I have considered over the rival submissions and, I am unable to agree with the submissions of Shri Calla. It is the background in which the impugned order came to be passed, that assumes great significance. The petitioner's case was sent for scrutiny by the Screening Committee without examining the question of qualifying service and when the recommendation for compulsory retirement was made, it was all the more essential, imperative and obligatory to have given the petitioner an opportunity to have his say in the matter as to why the disputed period not treated as a period for qualifying service. Undoubtedly the order will adversely effect the petitioner, in case the disputed period is treated its a period for qualifying service It is true that the order is purely an administrative order, but it is equally true that the order will adversely affect the petitioner and that being so, in my opinion, the petitioner ought to have been heard before passing of this impugned order. 27. In State of Orissa v. Dr. (Miss) Binapani Dei and others ( AIR 1967 S.C. 1269 ) , the order compulsory retirement was passed on certain disputed date of birth. An enquiry was conducted,but the report of the Enquiry Officer was never disclosed to the first respondent After t1 report the first respondent, was required to show cause why 16-4-1907 should not be accepted as the date of birth and without recording any evidence, the order was passed. It was held that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value, it was further observed that it is true that the order is administrative in character, but even an administrative order which involved civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof an I after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken there and it was held that the High Court was right in setting aside the order of the State. 28. In Passa Ram v. State of Rajasthan, (1975 R. L. W. 56) , relying on Dr. No such steps were admittedly taken there and it was held that the High Court was right in setting aside the order of the State. 28. In Passa Ram v. State of Rajasthan, (1975 R. L. W. 56) , relying on Dr. (Miss) Binapai Dei's case (supra) the order of the compulsory retirement was set aside, as the date of birth originally written in service record, was altered unilaterally without giving any opportunity to servant. 29. It cannot be disputed that even administrative order, which affects a person adversely, cannot he passed, without giving the person concerned an opportunity to meet the charges, as the distinction between administrative and quasi judicial orders is fast vanishing and is almost on the verge of total obliteration. Reference may be made to A. K. Kripak and others v. Union of India and others, (A.I.R. 1970 S.C. 150) and Chandra Bhawan Boarding and Lodging, Bangalore v. State of Mysore and another, (A.I.R. 1970 S.C. 2042) . 30. I have already considered the real nature of the order which in the context and circumstances of the case, is nothing, but an order adversely effecting the petitioner. Thus, viewed from this point, as well, the order being violative of principles of natural justice, is liable to be quashed. 31. The third ground, I have already considered, while dealing with the first ground and does not enquire further consideration. 32. In the light of the foregoing discussion, the petitioner's qualifying service can only commence with effect from 19-1-1951 and thus, the petitioner's case could not have been considered for compulsory retirement, as he had rot completed 25 years of qualifying service at the time of his compulsory retirement. The petitioners order of compulsory retirement is, therefore, liable to be quashed and the present writ petition can be disposed of by quashing both the orders, namely, orders dated 5-2-1973 and 24-2-1973. However, in view of the fact fiat elaborate arguments have been advanced even on the merits of the order dated 24-2-1973, I consider it proper to deal with the question of validity of the order dated 24-2-1973. 33. However, in view of the fact fiat elaborate arguments have been advanced even on the merits of the order dated 24-2-1973, I consider it proper to deal with the question of validity of the order dated 24-2-1973. 33. I need not deal with and refer to the jurisprudential philosophy behind the action of compulsory retirement and the nature of such order, for it is well settled by catena of decisions that order of compulsory retirement is not by way of punishment and Article 311(2) of the Constitution is not at all attracted. Similarly, the object and purpose of the rule of compulsory retirement have also been considered in series of decisions by the Supreme Court. The object of compulsory retirement is only to remove such personnel from the Government service, who is found lax, corrupt and inefficient or not upto the mark or has out-lived his utility and the object of compulsory retirement is not to victimise the service personnel. It stay also be pointed out that it is an absolute power vested with the State Government or the appointing authority to resort to an action of compulsory retirement in all cases, which warrant such an action and it is equally we1 settled that the courts cannot sit upon the judgment of the administrative authority and the reasons for compulsory retirement are not justiciable Sufficiency of material is not to be considered by the court and it will he for the authority taking action to form its opinion regarding the existence of the material. But where there is no material or the competent authority has proceeded on consideration of extraneous material or the material is far fetched and has no nexus with he object and purpose of the rule of compulsory retirement or where the action is arbitrary or some such similar grounds exist, then the courts are certainly competent to strike down and quash such orders. Thus, it would depend on the facts and circumstances of such individual case as to whether the order sought to be challenged calls for interference and is fit for judicial review. 34. Before dealing with the contention advanced on the merits of the order of compulsory retirement. I may first refer to what has been considered in the petitioner's case by the Screening Committee. 34. Before dealing with the contention advanced on the merits of the order of compulsory retirement. I may first refer to what has been considered in the petitioner's case by the Screening Committee. A meeting of the Committee appointed by the Government of Rajasthan to review the cases of the employees in the Power Department, who have completed 25 years of qualifying service or shall complete the case on 31-12-1972, with a view to advise the Government regarding their compulsory retirement or otherwise in terms of rule 144(2) of the R. S. R., was held on 9-8-1972, and the petitioner's case was considered in that meeting The Committee recorded the following brief reasons for its recommendations in case of the petitioner : "1. Shri Bahadur Singh:- The Officer is officiating as Additional Chief Engineer at present. This officer has an unsatisfactory record from 1965-66 onwards Even otherwise he has been described only as an average officer and has occasionally been held even below average. His bona fides in his dealings with the staff have also been suspected and he has been held to be an Officer who will defer important decisions. In the opinion of the Committee, his retention is no longer useful to the organisation Committee were informed by the Secretary that same question regarding the determination of the period of qualifying service in his case is under the consideration of the Government. In case Government comes to a decision that he has already completed 25 years of qualifying service or will do so by the 31st of December, 1972. Committee recommend that he be compulsorily retired." 35. It would appear from the brief reasons for the recommendations that the Committee found the petitioner's record unsatisfactory from 1965-56 onwards. Generally he was found to be an average officer and occasionally even below average and two more reasons persuaded the Committee to make recommendations for compulsory retirement, which are that the petitioner's bona fides in his dealings with the staff were suspected and the petitioner used to defer important decisions. 36. It would be essential to look into the A. C. Rs. of the petitioner from 1965-66, onwards. 37. In the A.C.R. for the year 1965-66 in most of the columns the remark given is Average" and in the columns of "Personal Character" ,"Constitution'. 'Physical energy', Mental alertness", the remark recorded is "good". 36. It would be essential to look into the A. C. Rs. of the petitioner from 1965-66, onwards. 37. In the A.C.R. for the year 1965-66 in most of the columns the remark given is Average" and in the columns of "Personal Character" ,"Constitution'. 'Physical energy', Mental alertness", the remark recorded is "good". As regards maintenance of touch with and control over his subordinates and whether he leaves work unduly in their hands, the remark is "adequate" and for touch with the general public in the area under his charge, the remark given is "Yes" The Reporting Officer Shri S. Padmanabhan, C.E., R.S.E.B., has not given any adverse remark in this A.C.K., and the report of the Head of the Department, that is, Chairman Shri S.L. Kakkar, R. S. E.B., is that : "In my opinion Mr. Bahadur Singh is an Officer much above average. He never failed in completing the job entrusted to hint through he was handicapped due to inefficient staff " It also bears the signatures of Shri K. C. Satsangi, Technical Member. 38. In the A.C.R. for the year 1966-67, is the column regarding "Impartiality in his relations with the public and subordinate or superior staff with whom he comes in contact", the remark given is "Medicore" and in the column of "Power of application", it is remarked:- "Implementation of instructions is obstructed dilatory procedures adopted." In the column 6 relating to "Has the Officer any special characteristics and/or any outstanding merits or abilities which would justify has advancement and special selection for higher appointment in the service ? the remark is:- "Nil. Not anxious to follow standard procedures or commercial methods". And as against the column "Does he maintain adequate touch with and control over his subordinates or does he leave work unduly in their hands." It is remarked:- "Main technical aspects are left to the subordinates officers". The reporting officer Shri Padmanabhan in the column of "General Remarks" stated:- "He has given the impression of lack of uniformity and lack of planning in his purchase and project works and of undue tossing of the suppliers on irrelevant and inapplicable points." The Technical member of R.S.E.B. Shri K. C. Satsangi, reported:- "His reputation for integrity has been very poor". The Chairman Shri S. L. Khurana of the R.S.E.B., remarked:- "The report of Shri Padmanabhan is biased and the remarks made by T. M. have not been substantiated. On the whole, I found Shri Bahadur Singh an official hardworking and well-mannered officer" In connection with the remarks given by the Technical Member sonic correspondence was exchanged between the Chairman and the Technical Member and the Technical Member by his letter dated 1st January, 1964, wrote to the Chairman that the remarks were not conveyed to the petitioner as it was felt that conveying of the adverse remarks to the officer concerned might create adverse effect on his health. He further stated:- "Anyhow the fact mentioned about the integrity is an open secret." Shri Satsangi further stated that:- "You had also shared my views/impression through the various informal talks I had with you. You had also once informed me during the course of informal talks that the Chief Secretary was also having the same view." He further stated that : "It is felt that these remarks should not be kept on the confidential report of Shri Bahadur Singh, Superintending Engineer, in spite of the, position explained by me. I have no objection to that." On this letter the Chairman remarked:- "It is a pity that Shri Satsangi has not been able to substantiate his remarks. In the letter he has attempted to shift the responsibility, which is hardly helpful. Under the circumstances these should not remain on record as mentioned by Shri Satsangi himself." 39. In the A.C.R. for the year 1967-68, the Reporting Officer Shri Prithvi Singh, Chief Engineer, R.S.E B., made entries "Satisfactory". "Good", and stated that the petitioner maintains adequate touch with and control over his subordinates and does not leave work unduly in the hands of subordinates. In the Column of "General Remarks", he reported:- "The officer has good understanding of work and disposal to quick. He has very good control. His performance has been good." After the report of the Chief Engineer. R.S.E.B., the Chairman, R.S.E.B., Shri S. L. Khurana remarked:- "Performance satisfactory." 40. In the A.C.R. for the year 1968-69, the Reporting Officer Prithvi Singh, Chief Engineer, R.S.F.B , gave remarks as "Satisfactory." "Good", "Average" and in the column of General Remarks the entry is "Performance good". His performance has been good." After the report of the Chief Engineer. R.S.E.B., the Chairman, R.S.E.B., Shri S. L. Khurana remarked:- "Performance satisfactory." 40. In the A.C.R. for the year 1968-69, the Reporting Officer Prithvi Singh, Chief Engineer, R.S.F.B , gave remarks as "Satisfactory." "Good", "Average" and in the column of General Remarks the entry is "Performance good". The Technical Member reported him- "An average type of officer only", but the Chairman Shri S. L. Khurana remarked:- "I am inclined to agree with the Technical Member's assessment. Committed irregularities and created embarassing situation for the Board while functioning as S. E. (J C.) Enquiries pending." 41. In the A. C. R. for the year 1969-70, it was reported by the Reporting Officer, Shri J I. Bhat, Additional Chief Engineer, R.S.E.B , that the petitioner's "manner of discharging duties has been below average", and he has been partial as reported to T. M. vide Conf. letter dated 4-12-69." In other columns he has been remarked as:- "Fair", "Good", "Very Good", "Average". In General Remarks it is stated:- "His reports are generally not very dependable. In handling labour he has been showing high handedness as reported to T. M. on 4-12-69." "The impression I have gathered after seeing his various activities and actions, is that the interest of Board is not very safe in his hand". In the entry meant for "Integrity Certificate", the Reporting Officer Additional Chief Engineer Shri J. I. Bhatt, stated:- "In one of the enquiries made of Jaipur Circle and submitted by me to the Board I have come across many cases where it was found that lie chose to treat some type of consumers differently. Hence I find it difficult to certify his integrity." The Technical Member reported:- "while I any inclined to suspect the bona fides of the officer as reported by the A.C.E : the matter has to be proved after giving opportunity to explain etc. as per C. C. A. Rules." The Chairman of the R.S.E.B., Shri S. L. Khurana, reported:- "I chose to give Shri Bahadur Singh benefit of doubt despite the strong views held by the then Technical Member when he commented upon his lack of integrity in the A.C.E. for 1966-67. as per C. C. A. Rules." The Chairman of the R.S.E.B., Shri S. L. Khurana, reported:- "I chose to give Shri Bahadur Singh benefit of doubt despite the strong views held by the then Technical Member when he commented upon his lack of integrity in the A.C.E. for 1966-67. Certain specific instances have since come to notice which lend full support to the views held by A.C.R. I am therefore inclined to agree with him and endorse his other remarks." 42. The A.C.R. of 1968-69 and 1969-70 were conveyed to the petitioner, against which the petitioner submitted his representations. 43. In the A.C.R. of 1970-71 it was reported by the Reporting Officer Shri J. K. Bhatt, Chief Engineer, that:- "He makes decisions where convenient to him others tor small matters he makes reference to others, e. g. He sought advice for deciding the span of a 33 K. V. Unit of Rajiasar. S. E. is expected to decide himself such small natter " The Reporting Officer, the Chief Engineer J. K. Bhatt, in column 13 regarding integrity, reported:- "Yes, one such instance is narrated in the enclosed copy of the letter No. R.S.E. B./A.C.R./Tech./Conf./72, 2nd/3rd September, 1970. (As per his own admission he had removed 58 clerks, when he took them back only when the Chairman had intervened. In context of this, not only practice of the S E. (AC), but the Bikaner M.L.A. too felt similarly. I, therefore, cannot but doubt his ability to honestly execute his duties." Shri A. K. Roy, Chairman, reported:- "The statement made in A above is correct. I had sent the enclosed telegram to Shri Bahadur Singh. It was aliaged that he had retrenched a large number of clerks for reasons which H ere not bona fide. His taking them back on my telegram proves the mala fide." "Technical performance-Slightly better than average." 44. In the A.C.R. for the year 1971-72, the petitioner has been given remarks as "Satisfactory", "Impartial". "Average" in all columns and in the General Remarks the observation is, "Work Satisfactory". These remarks were given by the Reporting Officer G. S. Shastri, C.E.R.P.S. & J.S. Dev, Kota. 45. Having extracted the A.C.R. in brief, as above, a few facts concerning the petitioner's service career also need mention. "Average" in all columns and in the General Remarks the observation is, "Work Satisfactory". These remarks were given by the Reporting Officer G. S. Shastri, C.E.R.P.S. & J.S. Dev, Kota. 45. Having extracted the A.C.R. in brief, as above, a few facts concerning the petitioner's service career also need mention. The petitioner, after having been appointed as Assistant Engineer on acquiring high qualifications from abroad, was given a higher start and thereafter was given out of turn promotion by superseding 10 Assistant engineers. He was promoted as officiating Superintending Engineer on 27-6-1960 and was confirmed as Superintending Engineer on 20-11-1963. Thereafter be was promoted as Officiating Additional Chief Engineer on 25-1-1971. When he was so officiating, he was made to prematurely retire. 46. Shri Singhi, learned counsel for the petitioner, submitted that the petitioner having been given promotion as Officiating Additional Chief Engineer, all his adverse entries stood washed out and the same could not be taken into consideration for any action under rule 244(2). Shri Singhi urged that the A.C.R. for the year 1965-66 was favourable to him and as regards the A.C.R. for the Fear 1966-67 the adverse entry regarding his integrity stands expunged. Even A.C.R. for the year 1967-68 cannot be considered to be in any way adverse to the petitioner and If considered as adverse, the same has not been communicated. The adverse entries for the A.C.Rs for the years 1968-69 and 1969-70 were conveyed to him, but he had submitted representations against the same, which remained pending and undecided. The adverse entries in the A.C.R. 1970-71 were not communicated to the petitioner and there is a favourable A.C.R. for the year 1971-72. He argued that the un-communicated adverse A.C.Rs. could not be made the basis of the petitioner's compulsory retirement, nor the communicated adverse A.C.Rs. could be made the basis, as his representations remained undisposed. He also urged that the Screening Committee also considered the fact that inquiries are pending against the petitioner and this must have influenced the Screening Committee to make the recommendations of the petitioner's compulsory retirement. could be made the basis, as his representations remained undisposed. He also urged that the Screening Committee also considered the fact that inquiries are pending against the petitioner and this must have influenced the Screening Committee to make the recommendations of the petitioner's compulsory retirement. The petitioner was served with charge-sheets on 3-6-1970 and 10-6-1970 and in the A.C.R. for the year 1968-69 an endorsement was made by the Chairman R.S.E.B Shri S.L. Khurana on 18-8-1970 that inquiries are pending, in the background of pendency of charge-sheets, the order of compulsory retirement should he taken as disguised dismissal and the true nature and character of the order of compulsory retirement is nothing, but penal and punitive attracting Article 311(2) of the Constitution so the order of compulsory retirement becomes bad in law and is liable to be quashed. 47. I shall be examining the above contentions of Shri Singhi one by one. I shall take first the contention as to whether the adverse entries stand washed off on account of promotion having been given to the petitioner on 25-1-1971. 48. There is no denying the fact that the petitioner was given officiating promotion on the post of the Additional Chief Engineer. It is to be seen as to what is the effect of this officiating promotion. 49. In the Regional Manager and another v. Pawan Kumar Dubey (A I.R. 1976 S.C. 1966) there was an order of reversion The background of the order of reversion was examined, and spirit and substance, and the material on record prior to the order of reversion was considered. In that case there were fulsome praise in testimonials given to the respondent by his superior officers for meritorious work done by him, but simultaneously proceeding the order of reversion dated 20-2-1973, there was a spurt of warnings and very vague complaints and adverse remarks of 30-9-1972, 4-10-1972, 21-10-1972 and 25-1-1973 and there was an order on a complaint that the respondent had misused the services of a Chokidar. Although, the complaint was dismissed, but the respondent was admonished and was advised to conduct himself more respectfully towards superior officers and to be "sweet tempered". There were some old adverse entries also against the respondent. Although, the complaint was dismissed, but the respondent was admonished and was advised to conduct himself more respectfully towards superior officers and to be "sweet tempered". There were some old adverse entries also against the respondent. Their Lordships then observed that the adverse entries must be deemed to have been washed off by orders of his promotions on an "ad hoc" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy ,Transport Commissioner of Uttar Pradesh, as required by the rules. The respondent had asked for particulars to meet the vague allegations of insubordination and disobedience which has found their way into his service record for 1972 to 1973. It has not been shown that the respondent was applied with these particulars, and, he preferred ignorance of occasions on which he had beer disrespectful or of existence of any orders which had been disobeyed by him. It was also considered that the respondent's representation against the last adverse entry of 25-1-1973, was pending when the reversion order was passed. In these circumstances the order of reversion was considered to be punitive and contrary to rules of natural justice embodied in Article 311(2) of the Constitution. 50. In the State of Punjab v. Dewan Chuni Lal, (1970 S.L.R. 375 : A.I.R. 1970 S.C. 2086) , the Sub-Inspector of Police was called upon to answer charges setting forth extracts from his confidential Character Roll showing his inefficiency and lack of probity while in service from 1941 to 1948. He was allowed to cross his officiency bar in the year 1944. It was observed that the reports earlier to 1944 should not have been considered at all inasmuch as he was allowed to cross the officiency bar in that year. It was further observed that it is unthinkable that if the authorities took any serious view of the charge of dishonesty and in officiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. 51. In Shri J.R. Jain. v. Union of India, ( 1973(2) S.L.R. 309 ) V.D. Misra, J. considered the decision in Union of India v. Col. J.N. Sinha and Anr., (1970 S.L.R. 748) : Col. 51. In Shri J.R. Jain. v. Union of India, ( 1973(2) S.L.R. 309 ) V.D. Misra, J. considered the decision in Union of India v. Col. J.N. Sinha and Anr., (1970 S.L.R. 748) : Col. J.N. Sinha v. Union of India and Anr., (1971 S.L.R. 470) : R.L. Butail v. Union of India, (1970 S.L R. 926) and State of Punjab v. Dewan Chuni Lal (supra), and it was observed that admittedly the order allowing the petitioner to cross the officiency bar is dated 25-9-1967 and the penalty of withholding of two increments was passed on 6-7-1966. If the authorities were taking serious note of the punishment they would not have allowed the petitioner to cross the officiency bar later on. By certifying him as fit for crossing the officiency bar the conclusion was that he was efficient enough to claim the higher pay. These facts could not later on be taken into consideration for the purpose of taking decision wider fundamental Rule 56(j) (parallel to Rule 244(1) of the R.S.R.). It was further observed in that case that, "it is true that in Dewan Chuni Lal case their Lordships of the Supreme Court were concerned with a case where the employee was charge-sheeted on the basis of the adverse remarks given to him before he was allowed to cross the officiency bar. That will not make any difference". It was further observed as under:- "The observations of their Lordships reproduced above leave no doubt that the earlier reports could have been considered at all. Again it is true that in Shankar Rao case the Madras High Court was concerned with a case where the employee has been promoted from a lower service to a higher service. But the reason was that it was not permissible to take into consideration the antecedents before he was promoted to the higher service. This is based on the very good reason that in spite of these antecedents the person was found to be fit to be promoted and so they could not be said to be relevant in forming the opinion under Fundamental Rule 56(j). This is based on the very good reason that in spite of these antecedents the person was found to be fit to be promoted and so they could not be said to be relevant in forming the opinion under Fundamental Rule 56(j). In the instant case, therefore, in my opinion the punishment of with- holding two increments could not be taken into consideration by the appropriate authority while forming the requisite opinion " Thus, it would appear that the effect of crossing of the officiency bar on the antecedents were considered in the case of compulsory retirement. 52. In Shri M. N. Valend v. The State of Gujarat and another, (19781) S. L. R. 489), there was an officiating promotion given on 21-9-1971. In the report for the period 1-1-1970 to 31-12-1970 an entry about the doubtful integrity of the plaintiff had been made on 5-3-1971. It was observed that it is, therefore, obvious that the Director of Prohibition and Excise had given promotion to the plaintiff after this entry had been made. It was further observed that the only inference, which can be drawn from the established facts, is that even the Director of Prohibition and Excise, who was the Reviewing Authority, himself ignored this entry and granted officiating promotion to the plaintiff, because, he must have found that there was no material to support this entry. It was a case of premature retirement. 53. In Md. Mohmed Hussain v. Osmania University and another, (1978 (1) S. L. R. 721) , there was a compulsory retirement. It was observed that adverse remarks earlier to promotion were washed off by order of promotion. 54. In Swami Saran Saksena v. State of Uttar Pradesh, (A. I. R. 1980 S.C. 269) , it weighed with their Lordships, after considering the material on record including the entries in personal file and character roll, that the appellant was found worthy of being permitted to cross the second efficiency Bar only a few months before compulsory retirement. Their Lordships observed that:- "But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. Their Lordships observed that:- "But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed." 55. In Prem Chand Sanghi v. State of Rajasthan and others, D. B. Special Appeal No. 144 of 1975, decided on 11-3-1980 , a contention was advanced that the appellant was promoted inspite of the adverse entries and as such the adverse entries should be deemed to have been washed out. This contention was upheld and reliance was placed on Pawan Kumar Dubey's case (supra), J.R. Jain's case (supra), Med. Hussain's case (supra), M. M. Valands case (supra) and the decision in Swami Swart v. State of U. P., (1979 (2) S. L. R. 781) . The State filed Special Leave Petition (Civil) No. 6820/80- State v. Prem Chand Sanghi and others, in the Supreme Court against the D. B. decision. However, the same was dismissed on 29-9-1980, as such, the D. B. decision became final. 56. Reference may also he made to a decision of this Court in An Raj Joshi v. The State of Rajasthan an others, S. B. Civil Writ Petition No. 1391 of 197 decided on 3-4-1980 . It 'was observed in that case that the adverse entries could not have been taken into consideration for the purpose of compulsory retirement in view of the petitioner having been allowed to cross an efficiency bar and has been given further promotions. 57. Shri Calla learned Aduitional Government Advocate submitted that the case of compulsory retirement stands on a different footing from cases of promotion reversion and crossing of the efficiency bar. 57. Shri Calla learned Aduitional Government Advocate submitted that the case of compulsory retirement stands on a different footing from cases of promotion reversion and crossing of the efficiency bar. He urged that in a case of compulsory retirement, the entire service record can looked into for forming the opinion as to whether the official is fit to be retained in service in public interest or not. Reliance was placed by him on a decision of this Court in Kishan Chand Mathur vs. The State of Rajasthan , 1977(1) S. L. R. 609) . In that case after referring to the cases Deep Chand Jain vs. The State of Rajasthan (1972 W. L. N. 1015) . Prem Chand Sanghi v. State of Rajasthan (1975 W. L. N. 891) and Dr C. L. Pathak v. State of Rajasthan 1976 S. L. W. 38) , it was observed that:- "In view of the aforesaid decision, I am of the view that the adverse entries made in the service rolls of the petitioner were not completely wiped out for all purposes, merely because the Departmental Promotion Committee, which met on July 19, 1972 approved the petitioner for appointment as a regular officiating Assistant Engineer in the Public Works Department, which post he was already holding in a temporary capacity since September 11, 1959." 58. It may be mentioned that Kishan Chand Mathur's case (supra) no doubt supports the contention advanced by Shri Calla, but, in my opinion, this view does not held good in the light of fact that the view taken in Prcm Chand Sanghi's case (supra), on which reliance has been placed in Kishan Chanel Mathur's case (supra), has not been upheld by the Division Bench of this Court. Apart from that, there is no warrant for the proposition, as put forward by Shri Calla, that adverse entries do not stand washed out in a case of compulsory retirement, when pro motion is given, in view of the dictums laid down by the Supreme Court in the cases cited supra, namely, Pavan Kumar's case, Dewan Chuni Lal's case and Swami Saran Saksena's case. 59. Reliance was also placed by Shri Calla on Col. J. N. Sinha's case (supra), R. L. Butail's case (supra) and Union of India etc. 59. Reliance was also placed by Shri Calla on Col. J. N. Sinha's case (supra), R. L. Butail's case (supra) and Union of India etc. v. N. E. Reddy and another, A.I.R. 1980 S.C. 563) and also on S. S. S. Venkatarao vs State of Orissa, 1974(2) S. L. R. 899) . 60. In Col. J. N. Sinha's case (supra) the effect of promotion on adverse entries did not arise for consideration. What was laid down in that case was that it is an absolute right of the Government to retire a Government servant, if it is found that it is in public interest to do so and the order of compulsory retirement involves no civil consequences. The philosophy behind the action of compulsory retirement was also considered and it was further considered on what grounds the order of compulsory retirement is open to challenge. 61. In R. L. Butail v. Union of India and others (supra), the reports in the year 1964-65 were neither altered nor set aside in spite of the representations by the appellant, and the representations were rejected. It was not a case of giving of promotions despite adverse entries. Their Lordships in this case considered the question of giving specific instances in the A. C. R. and giving of opportunity of hearing before making the entry and whether any adverse entry amounts to censure. The petitioner was not given promotion due to adverse entries of the years 1955, 1958 and 1959 and the D.P.C. and P. S.C. had no occasion to consider the entries for the years 1965 and - 1965 and question of review by D. P. C. did not arise as the A. C. Rs. of these two years were not changed after consideration of representations. Thus, the case is distinguishable on facts. 62. N. E. Reddy's case (supra) also does not deal with this aspect of this case and it turned on its own facts. In that case the contention was that the order of compulsory retirement was passed on the materials which were non-existent, inasmuch as, there was no adverse remarks against Reddy, who had a spotless career throughout and if such remarks would have been made in his confidential reports they should have been communicated to him under the rules. It was repelled by showing that it is based on a serious misconception. It was repelled by showing that it is based on a serious misconception. Firstly, it was observed that it is not every adverse entry of remark that has to be communicated under the various rules. Their Lordships took into consideration the entire confidential personal file of Reddy and found that the entry that was sought to be expunged through a representation and other entries made before that, it appeared that the integrity of Reddy was not above board. Their Lordships took into account the clear averment of the Union of India that the integrity of Reddy was not beyond suspicion and the remarks were not expressly expunged by the Chief Minister It appears that this question did not come up for consideration as to what is the effect of adverse entries, if promotion is given to the Government servant. What weighed heavily in N. E. Reddy's case was his doubtful integrity. That case does not lay down expressly that an order of compulsory retirement can be founded solely on the uncommunicated entries how soever bad or adverse they may be or it can be founded even on communicated adverse entries against which representations may be pending or disciplinary proceedings may be pending. Besides that, the observations made in R. L. Butail's case (supra), extended an that case, have to he read in the context of the facts of that case, as considered above. 63. The Full Bench case of Orissa High Court in S.S.S. Venkatrao vs. State of Orissa and others, (1974 (2) S. L. R. 899) , no doubt supports the contention of Shri Calla, but it was a case of crossing of efficiency bar and not a case of promotion. Their Lordships themselves observed that:- "The scales for allowing the crossing of E. B. and for giving promotion are different. What is sufficient for the former may be wholly insufficient for the later. Adverse character roll not construed as a deterrent for crossing efficiency bar is not obliterated. It can he taken into consideration for negativing a claim of promotion." 64. In that case this contention was negatived that the adverse entry prior to the crossing of the Efficiency Bar is wiped out. The present is a case of promotion and not a case of crossing of Efficiency Bar. On this ground alone, this case is distinguishable. 65. It can he taken into consideration for negativing a claim of promotion." 64. In that case this contention was negatived that the adverse entry prior to the crossing of the Efficiency Bar is wiped out. The present is a case of promotion and not a case of crossing of Efficiency Bar. On this ground alone, this case is distinguishable. 65. I may simultaneously consider the other contention of Shri Singhi, learned counsel for the petitioner, with regard to the effect of non-communication of the entries, pending of representation against the communicated adverse entries, and the effect of pending enquiry against the petitioner in respect of the two charge-sheets. 66. In T. K. Das v. Union of India and others, (1980 (i) S. L. R. 416) , the Division Bench of the Calcutta High Court held that the uncommunicated adverse remarks do not constitute relevant material for the purpose of compulsory retirement and the Review Committee of the State Government acted illegally in relying on the uncommunicated adverse remarks. It was also observed that the object of communication of the adverse remarks is to give the officer concerned an opportunity to rectify his deficiencies and improve his conduct. In that case disciplinary proceedings were also started for the purpose of imposing punishment. After the findings were made, in the Disciplinary proceedings the State Government did not proceed against the appellant, as the Review Committee had considered the findings and recommended the premature retirement of the appellant. The report of the Enquiry Officer was not communicated to the officer, but the same was considered by the Review Committee and the order of compulsory retirement was recommended. It was held that the order of retirement was violative of rules of natural justice and was by way of punishment. 67. In Brijendra Singh, I.P.S. v. The Union of India and others, (1980(1) S. L. R. 433), it was observed that the rules require that when a Confidential Roll contains adverse remark or a critical remark, it shall be communicated to the employee together with the substance of the entire confidential Roll ordinarily within the three months of the receipt of the confidential Roll. After considering the object of communication it was held that the whole purpose of the statutory provision for communication of the adverse entries is defeated if the entries are not conveyed within a reasonable time. After considering the object of communication it was held that the whole purpose of the statutory provision for communication of the adverse entries is defeated if the entries are not conveyed within a reasonable time. There is a statutory right of representation which cannot be availed of because of non-communication and yet adverse entry may be used against the member of the service causing serious prejudice as in this case, compulsory retirement was based on these entries. It was also observed that the concept of revision of adverse remarks on representation incorporates the principles of natural justice. Further in that case there were confidential adverse reports, but thereafter President's Police Medal was awarded. It was held that the adverse remarks prior to the award of Police Medal, were not a valid material which can be taken into consideration for formation of opinion for compulsory retirement. It was also observed that these remarks were washed off or superseded by the grant of police medal for meritorious service certifying that the petitioner had consistently commendable and outstanding work and his integrity was above suspicion. 68. In K.M.L. Sharma v. The General Manager, Central Railway, Bombay and others, (1980 Lab. I. C. 1071), the Division Bench of the Allahabad High Court held that the order of compulsory retirement pending enquiry into serious charge of misconduct, without giving an opportunity of hearing was by way of punishment and not simply an order of compulsory retirement and was liable to be quashed. 69. In Gurdial Singh Fijji v. State of Punjab and others, ( AIR 1979 S.C. 1622 ) , their Lordships considered the question of non-consideration of explanation offered by a servant against the adverse report in Confidential Roll. It was held that it is difficult to support the non-issuance of the integrity certificate to the appellant. It was observed that the chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that retort was justified. 70. Reference may further be made to a Full Bench decision of Delhi High Court in Union of India ant others v. Shyam Shiva Prasad, ( 1979(2) S.L.R. 425 ) . In that case the Full Bench considered the question as to what is the effect of non-communication to the officers of the adverse remarks ? 70. Reference may further be made to a Full Bench decision of Delhi High Court in Union of India ant others v. Shyam Shiva Prasad, ( 1979(2) S.L.R. 425 ) . In that case the Full Bench considered the question as to what is the effect of non-communication to the officers of the adverse remarks ? Does such non-communication vitiate the material consisting of tic adverse remarks. which can be taken into consideration by the Government for forgoing the opinion whether the compulsory premature retirement would be in public interest within the meaning of Fundamental Rule 56(j). This question was also considered whether the material on which disciplinary inquiry is to be held against the officer can be taken into account in passing an order of compulsory premature retirement ? The Furl Bench considered the observations made by the Supreme Court in Gurdial Singh Fijji's case (supra), R. L. Butail's case (supra) and J. N Sinha's case (supra). Their Lordships observed that adverse remarks should be communicated expeditiously in all cases and the representation against the adverse entries should be decided expeditiously. It is then that it would be found either the adverse remarks stand or they are modified or entirely deleted. The material to be taken into consideration to form the opinion as to whether an officer should be retired would be that material which will contain not only the adverse entries in Character Roll, but also the subsequent decision taken on the representation made by the officer concerned against the communication of such adverse entries. Natural justice has to be observed even in respect of the adverse entries in the Character Roll It consists in the communication of the adverse remarks to the officer, hearing the representation and then retaining, modifying or deleting adverse remarks. It is only then that these remarks can he the basis of the opinion that [Editor's Note:- (Sic) as few lines are missing from original judgment] 71. From the whole body of case law, discussed and considered above, principles, which can be deduced, are that the adverse entries should be communicates and an opportunity of making representation against the adverse entries should be given to the Government servant and the representation should be considered and it should be decided as to whether the adverse entry is to be maintained, altered, modifies, changed or deleted. It is only after deciding the representation, that material can be made use of against the Government servant. These principles are in accord with the principles of natural justice. Even where there may be no statutory rules, the Government instructions have to be followed and they are required to be followed all the more, because these instructions are nothing, but observance or rules of natural justice. It is true that only adverse entries have to be communicated, which may have adverse effect on the career of the Government servant. Further, from the discussion of the case law, it also follows that where charge-sheet has been served and the inquiry is pending and if that has been taken into consideration by the Screening Committee or the Review Committee, then the order of compulsory retirement shall be vitiated, as it would be by way of punishment aid will attract Article 311(2) of the Constitution. In the present case, firstly, the petitioner was given promotion, the consequence whereof is that the adverse entries stood washed off. Secondly, the representations submitted by the petitioner against the adverse remarks communicated to him in respect of A.C.Rs. for the two years, i.e., 1968-69 and 1969-70, were not decided and adverse remarks in the A.C.R. for the year 1970 71 were not communicated. Thirdly, two charge sheets had been served on the petitioner, which were pending at the time of compulsory retirement, which fact itself came to the notice of the Screening Committee. Thus, it would appear that the Screening Committee proceeded to make the recommendations for compulsory retirement on the basis of the material, which could not have been taken into consideration and it cannot be said that in the present case there was any other material, which was made the basis for the recommendation of compulsory retirement. The A.C.Rs. for the years prior to 1968-69, in my opinion, do not constitute any material for formation of opinion with regard to compulsory retirement of the petitioner in public interest It is not the case of the State that the petitioner's efficiency is in any way impaired or there is any other justifiable reasons for compulsory retirement. On the contrary he was considered fit for shouldering greater and higher responsibility and was promoted to the post of Additional Chief Engineer. On the contrary he was considered fit for shouldering greater and higher responsibility and was promoted to the post of Additional Chief Engineer. What follows from the above discussion is that the petitioner's order of compulsory retirement, cannot be in any way sustained and has to be quashed and set aside. 72. There is one more aspect of the case on which as well great stress and emphasis has been laid by Shri Singhi, learned counsel for the petitioner. It was urged by his that the Screening Committee acted without jurisdiction in considering the petitioner's case inasmuch as it could not consider the petitioner's case, unless the Government had decided the question of petitioner's qualifying service. He submitted that the Screening Committee could have considered only such cases, where the Government servants have completed twenty five years of qualifying service or would complete on 31-12-1972. He pointed out that it had come to the notice of the Screening Committee that the petitioner's question of completion of qualifying service, is pending with the Government. Despite that, it proceeded to consider the petitioner's case and made a conditional recommendation. Such a course adopted by the Screening Committee, was not justified and the Screening Committee went beyond the instructions of the Government, which were binding on it. 73. Shri Calla, learned Additional Government Advocate, on the other hand, submitted that the instructions are only administrative in nature. Simply because the question of qualifying service was pending with the Government, the recommendations made by the Screening Committee, cannot be said to be without jurisdiction. 74. I have considered the rival submission and I find force in the submission of Shri Singhi. The Screening Committee was empowered only to consider those cases of Government servants, who have completed 25 years of qualifying service and it was not competent and had no authority land jurisdiction to consider the cases, where the Government servants have not completed 25 years of qualifying service. When the matter had come to the notice of the Screening Committee, the question should have been referred back to the Government and after communication of the decision of the Government as to qualifying service, it should have considered the petitioner's case. But instead of doing so, it proceeded to make a conditional recommendation. When the matter had come to the notice of the Screening Committee, the question should have been referred back to the Government and after communication of the decision of the Government as to qualifying service, it should have considered the petitioner's case. But instead of doing so, it proceeded to make a conditional recommendation. In case such a recommendation would not have been made, it can be said that it is not known what would have been the Government's decision, on the question of qualifying service. So far the recommendation has affected the decision of treating the period 8-8-1948 to 18-1-1951 as period qualifying for pension, is not known. It may have affected, it may not have affected that decision. In any case the Screening Committee had no authority to consider the petitioner's case. Perhaps the position could have been otherwise, if it had not come to the notice of the Screening Committee that the question of qualifying service is pending consideration with the Government. 75. In the State of Uttar Pradesh v. Chandra Mohan Nigam and other, (A I R 1977 S C. 2441) , it has been held that the rule 16(3), itself does not contain any guidelines, directions or criteria the instructions issued by the Government furnish an essential and solutary procedure for the purpose of securing uniformity in application or the rule. These instructions really fill tip the yawning gaps in the provisions, and are exbaded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government servant. In that case the question was as to whether there was a warrant for the second Review Committee under the scheme of rule 16(3) read with instructions to reassess the case on the same materials. Condition of completion of qualifying service of 25 years was a prerequisite condition or a condition precedent authorising the Screening Committee to consider the case. Such a condition precedent, in my opinion, could not be disregarded and jurisdiction cannot be assumed by making a conditional recommendation. If the recommendation is vitiated, the order of compulsory retirement would also be rendered illegal, void and shall stand vitiated. 76. Shri Singhi also attacked the adverse remarks in the A.C.Rs. on the ground of mala fides and personal bias. If the recommendation is vitiated, the order of compulsory retirement would also be rendered illegal, void and shall stand vitiated. 76. Shri Singhi also attacked the adverse remarks in the A.C.Rs. on the ground of mala fides and personal bias. These are questions of fact and it is not necessary go into the same in the present writ petition, as it can be disposed of on other grounds. 77. Thus, so far as the present case is concerned, viewed from different aspects and angles, as dealt with above, it necessarily follows that the order of compulsory retirement has to be quashed. 78. In the result, the writ petition is allowed, the order dated 5-2-1973 (Annexure 1) and the order dated 24-2-1973 of compulsory retirement (Annexure 2) are quashed and set aside and the petitioner shall be deemed to have been reinstated in service. In the facts and circumstances of the case, I leave the parties to bear the own costs of the writ petition.Petition allowed. *******