JUDGMENT : ( 1. ) BY this judgment Letters Patent Appeal No. 43 of 1985 State of m. P. vs. S. C. Vaish and another, is also disposed of, as both these appeals arise out of the order passed by a learned Single Judge, setting aside the compulsory retirement of respondent No. 1, S. C. Vaish under Rule 16 (3) of the All India Services (Death-cum-Retirement Benefits)Rules, 1958. ( 2. ) THE respondent No. 1, S. C. Vaish, was appointed in the Indian adiministrative Service in the year 1955 and was allotted to the State of Madhya pradesh. He was promoted in the Senior Time Scale of I. A. S. in November 1961. He was reverted back to the junior scale in August 1962. But he was again promoted to the senior scale on 9-8-1963 and was confirmed in the senior scale with effect from 10-8-1963 in 1968-69. He was given selection grade on 1-10-1976 and the super time scale on 1-10-1980. He was given increment in the super time scale on 1-10-1982. The adverse confidential remarks were communicated to him after his selection in the super time scale for the year 1981-82 and 1982-83. This was the period when the respondent No. 1 was working as Commissioner, Departmental Enquiries, in the Vigilance commissioners Office, i. e. from 1-7-1980 to 3-3-1983. He was then posted as Managing director of the M. P. Industries Corporation, Bhopal till he was compulsorily retired on 11-4-1984 by the Central Government after accepting the recommendation of the review Committee, endorsed by the State Government. This rule is as under :- "the Central Government may, in consultation with the State Government concerned and after giving a member of service at least three months previous notice in writing or three months pay and allowance in lieu of such notice, require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice. " This Rule is similar to F. R. 56 (j ). At the time of compulsory retirement, the respondent had attained the age of 51 years and he had put in over 25 years of service. So he could be compulsorily retired, provided the other conditions are fulfilled under this Rule. ( 3. " This Rule is similar to F. R. 56 (j ). At the time of compulsory retirement, the respondent had attained the age of 51 years and he had put in over 25 years of service. So he could be compulsorily retired, provided the other conditions are fulfilled under this Rule. ( 3. ) THE respondent No. 1s case is that he has been doing his duty honestly, diligently and faithfully and there was no allegation at any time about his integrity; he was promoted to the senior I. A. S. scale in 1962 and to the selection grade in 1976 and then finally to the super time scale on 1-10-1980; he was not served with any adverse entry after his promotion to the super time scale, and, in fact, he was given one increment in that scale; he received only one adverse entry that he is one of those officers who always remains unsatisfied and is prone to make complaints regarding various facilities being denied to them. He made a representation against his entry and such an entry does not warrant an action of compulsory retirement; the respondent no. 1 was given a certificate by the Chairman, M. P. Industries Corporation saying that he has been working and conducting as Mahaging Director satisfactorily and he had good relations with the members of the staff and public; in view of the fact that he was given super time scale in 1980, the previous adverse entries, if any, cannot be taken into consideration for his compulsory retirement. ( 4. ( 4. ) THE Union of India in its return submitted that the respondent No. 1 has been compulsorily retired in public interest and the order does not suffer from any infirmity; the Central Government arrived at and formed its opinion by independent application of mind to the relevant material; this decision was taken after careful consideration and after going through all the relevant facts and circumstances and after going through the report of the review committee which was endorsed by the state Government; in order to ensure uniformity all necessary instructions have been issued regarding compulsory retirement of I. A. S. Officers to the State Governments; the decision to retire respondent No. 1 was in public interest after assessment of overall performance and after the Central Government came to the conclusion that he was not fit for further retention in service as a member of the Indian Administrative service; it is denied that the respondent No. 1 was retired from service on the basis of certain adverse remarks recorded in his confidential reports before his promotion to the super time scale; and the respondent No. 1 was retired from service in public interest after following the prescribed procedure. ( 5. ) THE State Government in its return submitted that the respondent No. 1 was promoted to the senior scale in November 1961 while his batch-mates got the senior scale in March/june 1960, i. e. the respondent No. 1 got the senior scale nearly one year and five months after the rest of his batch-mates were promoted; the respondent no. ) THE State Government in its return submitted that the respondent No. 1 was promoted to the senior scale in November 1961 while his batch-mates got the senior scale in March/june 1960, i. e. the respondent No. 1 got the senior scale nearly one year and five months after the rest of his batch-mates were promoted; the respondent no. 1 was reverted to the junior scale in August 1962 but again got senior scale on 9-8-1963, i. e. three years alter the rest of his batch; the respondent No. 1 was confirmed in the senior scale from 10-8-1963 while his other batch-mates were confirmed in the year 1960; an I. A. S. Officer is liable for appointment in the selection grade after completion of 13 years of service and the respondent No. 1 was liable to the selection grade on 1-1-1968; though the respondent No. 1 was first in the batch of officers of 1955, he got the selection grade only on 1-10-1976, i. e. he had eight years of supersession, an I. A. S. Officer becomes liable for appointment in the super time scale after completion of 16 years of service; the respondent No. I was liable for appointment to the super time scale in 1972 but he was actually given the same on 1-10-1980, i. e. after eight years, in the meeting of the Joint Screening Committee held on 19-4-1980, the respondent No. 1 was not found fit on the basis of the record for Joint secretary level posts at the Centre; in fact, the attitude of the State Government has been sympathetic, expecting that the respondent No. 1 would improve one time or the other but there was no improvement; the Screening Committee was constituted as per the instructions of the Central Government; there adverse entries in his confidential records for the years 1981-82 and 1982-83 which was duly communicated to him; the respondent No. 1 had as many as 14 adverse entries in his service period, which were all communicated to him, his record more or less, throughout his career was highly unsatisfactory and he failed to show any improvement; the testimonials obtained from the Chairman of the M. P. Industries Corporation are subsequent to the compulsory retirement of respondent No. 1 and, therefore, has no relevance; the respondent No. 1 was communicated the displeasure of the State Government on three occasions and warnings on two occasions; the entire service record of the respondent No, 1 was evaluated before it was recommended to the Central Government for his compulsory retirement; and the petitioner has an efficacious remedy under Rule 25 (1) of the All india Services (Discipline and Appeal) Rules, 1969 of submitting a memorial to the President. ( 6. ) THE learned Single Judge found that it is the case of the Union of India that the respondent No. 1 was retired from service on the basis of certain adverse entries in his confidential reports after his promotion to the super time scale, but the State government has taken a contrary stand by saying that the entire service record of the petitioner from the date of his appointment in 1955 was taken into consideration while making recommendation for his compulsory retirement; the adverse entry of 1981-82 mentions that he has disposed of all old cases except one which was pending from the time of his predecessor; apart from that case, he had only five cases which are of 1981, but he is accustomed to enjoy adminstrative powers and he was unhappy in his present job. The learned Single Judge did not find anything adverse in the comment and a person who had taken pains to dispose of old pending cases cannot be normally accepted as a dead-wood needing compulsory retirement; the second part of the remark does not relate to his work and conduct but deals with his state of mind; this is not peculiar to the petitioner alone and almost all officers of the category can be said to have become accustomed to enjoy administrative powers; the confidential report for the year 1982-83 read that the respondent No. 1 is one of those officers who always remains unsatisfied and are prone to make complaints regarding various facilities being denied to them, the learned Single Judge felt that this remark is nothing but an honest commentary about respondent No. 1 being placed in adverse circumstances; this again is not an adverse commentary on the work, conduct or efficiency of the petitioner but is a commentary against the State Government and the unfair deals which it had given to him and others working like him in ex cadre posts; besides; it appears mat the Review Committee did not seem to have applied its mind and has not recommended the respondent No. 1s compulsory retirement but the State government has placed reliance on old and stale entries in the service record of respondent No. 1 is nothing but an act bordering on perversity to dig out old files to find out some material to make out a case of the respondent No. 1; the Central government also did not apply its mind and also did not consider whether the confidential reports subsequent to respondent No. 1s promotion to the super time scale are adverse so as to justify the order of compulsory retirement; the minutes of the so-called Review Committee have not been produced, as it should have been produced for perusal of the Court; the recommendation of the State Government was based on old and stale entries in service record which lost all its efficacy because of his subsequent promotion; between 1975 and the date of retirement, the respondent No. 1 was promoted twice, i. e. in the selection grade in 1976 and in the super time scale in 1980; the two adverse entries of 1981-82 and 1982-83 did not relate to the work and conduct of respondent No. 1, the Central Government has acted mechanically on the communication of the State Government ignoring the true legal position and acting on material which is wholly irrelevant for passing the order of compulsory retirement and therefore arbitrary and violative of Rule 16 (3 ). ( 7. ) THE learned Additional Advocate General, who argued the appeal of the state Government, contended that the order of compulsory retirement is in public interest and is based on overall performance of the incumbent on the basis of the material on record and there is, therefore, no ground for review of that order; in the absence of any plea about mala fide or bias, the order of compulsory retirement could not have been set aside; whether the confidential entries of 1982-83 and 1981-82 were adverse or not, the order of the Central Government is final under rule 8 (2) of All india Services (Confidential Rolls) Rules, 1970, which is as under : - "the question whether a particular remark recorded in the confidential report of a member of the service is an adverse remark or critical remark or not shall be decided by the Government : provided that in the event of any difference of opinion between the central Government and the Government of a State as to whether a particular remark is to be deemed an adverse remark or critical remark or not, the opinion of Central Government shall prevail. " The learned Single Judge has wrongly drawn an inference for non-production of the record when he never asked the State to produce the record of the Review committee, which was available during the course of the arguments; he also wrongly held that the Review Committee has not applied its mind and has not recommended compulsory retirement of respondent No. 1; he wrongly held that the decision of the state Government is based on old and stale entries in the service record of the incumbent; the overall performance of the incumbent has been very poor and he has to his credit 14 adverse confidential remarks during his career, including communication of displeasures and warnings; his promotion to the senior scale, then to selection grade and finally to the super time scale were over-delayed, years after the other incumbents of his batch were promoted; all these show that he was not fit to be retained in service in public interest. ( 8. ( 8. ) THE learned Standing Counsel for the Union of India adopted the arguments of the State Government and further contended that the opinion formed by the central Government that it is not in public interest to retain the incumbment in service; it is not open to the Court to question that finding, as the power has beea exercised bona fide and in good faith. ( 9. ) THE learned counsel for the respondent No. 1, on the other hand, supported the order of the learned Single Judge and submitted that it is a well considered order; every aspect of the case had been considered and there is no case for interference in this appeal. He also contended that the impugned order was passed on 25-3-1985 and the limitation expired on 24-4-1985 but the appeal was filed on 3-5-1985 without a certified copy of the order, under clause 13 of the Letters Patent the memo of appeal need not be accompanied by a certified copy of the order under appeal and even if a certified copy of the order was produced subsequently, in view of section 29 (2) of the limitation Act, 1962, that would not save limitation; the appeal of the Union of India is also barred by limitation since the period required for obtaining a certified copy cannot be excluded from the period of 30 days limitation prescribed for the Letters Patent Appeal. ( 10. ) IT will be necessary to consider at the outset the objection that the appeals having been filed after 30 days are barred by limitation inasmuch as under clause 13 of the Letters Patent, an appeal has to be preferred within 30 days and it is not necessary to file a copy of the order and so the period required in obtaining certified copy of the order cannot be exclued in view of section 29 (2) of the Limitation Act. Even if the period has to be excluded still the State appeal is clearly barred by limitation, since the appeal was filed beyond 30 days without the certified copy on 3-5-1985 and the filing of the certified copy later on 16-5-1985 is of no avail. The contentions are evidently misplaced. Even if the period has to be excluded still the State appeal is clearly barred by limitation, since the appeal was filed beyond 30 days without the certified copy on 3-5-1985 and the filing of the certified copy later on 16-5-1985 is of no avail. The contentions are evidently misplaced. Though Letters Patent is a special law as has been held by the Supreme court in Union of India vs. Ram Kumar, AIR 1962 SC 247 within the meaning of section 29 (2), but this sub-section provides that for the purposes of determining any period of limitation prescribed by any special or local law, the provisions of sections 4 to 24 of the Limitation Act shall apply, unless such application is expressly excluded by such special or local law. Section 12 (3) provides for exclusion of time required to obtain the copy. The Privy Council in Jijibhoy Supt. vs. T. S. Chettiar Firm, AIR 1928 pc 103 has held that the time required for obtaining a copy of the decree or judgment must be excluded, even though by the rules of the Court it is not necessary to obtain the copy. This has been reiterated by the Supreme Court that section 12 (3) applies even though copy is not required to be filed along with the memorandum of appeal or revision or review [ Collector. Customs vs. Best and Co. AIR 1966 SC 1713 ; S. A. Gaffar vs. Ayacha Begum AIR 1977 SC 523 and C. S. T. vs. Madanlal Das and Sons AIR 1941 lah. 257]. This section applies to Letters Patent Appeals also [punjab Co-operative bank vs. PIC Press Co. AIR 1947 Pat. 329 FB; Lalit vs. Mahaprasad 1970 UJSC 789 SB; m. Ahmed Sharif vs. Board of Revenue 1959 JLJ SN 19 DB\. Therefore, the time required for obtaining the certified copy of the order has to be excluded in computing the period of limitation of 30 days for filing Letters Patent Appeal provided the copy is annexed with the memorandum of appeal. So after excluding the period in obtaning the certified copy of the order, the appeal filed by the Union of India is well within time. The appeal of the State Government was filed on 3-5-1985. The impugned order was passed on 25-3-1985. Technically speaking the appeal was filed beyond 30 days without the certified copy of the order. So after excluding the period in obtaning the certified copy of the order, the appeal filed by the Union of India is well within time. The appeal of the State Government was filed on 3-5-1985. The impugned order was passed on 25-3-1985. Technically speaking the appeal was filed beyond 30 days without the certified copy of the order. This was perhaps because the State government was in a hurry to file appeal to obtain stay, though the application for the certified copy was already made on 24-4-1985. It was obtained on 16-5-1985 and was filed on that very day in this Court. So excluding the period for obtaining the certified copy; the appeal is well within time. As such, this objection is over-ruled. ( 11. ) THE nature and extent of the power of compulsory retirement and the principles to be followed have been considered by the Supreme Court in series of cases. In Union of India vs. J. N. Sinha, AIR 1971 SC 40 the Supreme Court held that fundamental Rule 56 (J), gives absolute right to the appropriate authority to retire a government servant if it is of the opinion that it is in the public interest to do so. If the authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. It is in the public interest to chop off dead wood. F. R. 56 (J) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, to government is given power to energize its machinery and make it more efficient and compulsorily retire those who in its opinion should not be there in public interest. The supreme Court in State of U. P. vs. Chandra Mohan AIR 1977 SC 2411 has held that rule 16 (3) of the All India Services (Death-pum-Retirement Benefits) Rules, 1958, being a rigorous rule, visa-a-vis Government servant, not himself willing to retire under rule 16 (2), has to be invoked in a fair and reasonable manner. The supreme Court in State of U. P. vs. Chandra Mohan AIR 1977 SC 2411 has held that rule 16 (3) of the All India Services (Death-pum-Retirement Benefits) Rules, 1958, being a rigorous rule, visa-a-vis Government servant, not himself willing to retire under rule 16 (2), has to be invoked in a fair and reasonable manner. Since Rule 16 (3)itself does not contain any guidelines, directions or criteria, the instructions issued by the Government furnish an essential and salutary procedure for the purposes of the rule. Rule 16 (3) is a constant reminder to the slacker, the sluggish and inefficient, not to speak of those who may be dishonest or unscrupulous by reputation beyond redemption. The Supreme Court in Swami Saran vs. State of U. P. AIR 1980 SC 269 has held that on the perusal of the entries in the personal file and character roll of the appellant there was nothing to show that suddenly there was such deterioration in the quality of the appellants work or integrity after his crossing the second efficiency bar so as to deserve compulsory retirement. The order was, therefore, uncalled for and has to be quashed. In Union of India vs. M. E. Reddy AIR 1980 SC 563 the Supreme court held that it is not any entry here or an entry there which has to be taken into consideration by the Government by the overall picture of the Officer during the long years of his service that he puts in has to be considered from the point of achieving higher standard of efficiency and dedication so as to be retained even after the Officer has put in the requisite number of years of service. ( 12. ) THE Supreme Court in Brij Beharilal vs. High Court of M. P. AIR 1981 SC 592 has held that confidential reports of the later years are of utmost importance. The confidential reports made by the successive Chief Justices in respect of the appellant for overlapping periods, did not agree with each other, so compulsory retirement is set aside. ) THE Supreme Court in Brij Beharilal vs. High Court of M. P. AIR 1981 SC 592 has held that confidential reports of the later years are of utmost importance. The confidential reports made by the successive Chief Justices in respect of the appellant for overlapping periods, did not agree with each other, so compulsory retirement is set aside. The Supreme Court in D. Ramaswami vs. State of Tamil Nadu AIR 1982 SC 793 has held that where the charges framed on basis of adverse entry in the confidential roll of an officer were dropped and he was subsequently not only promoted to a selection post but was appointed to a very responsible post on such promotion his compulsory retirement shortly after such promotion was invalid and unsustainbale when there was nothing even mildly suggestive of inaptitude or inefficiency thereafter and there was no entry in the service book to his discredit or hinting even remotely that he had outlived his utility as a Government servant. If there was some entry, not wholly favourable to the officer after his promotion, one might hark back to similar or like entries in the past, read them all in conjunction and conclude that the time had arrived for the Government servant to quit Government service. The Supreme Court in J. D. Shrivastava vs. State of M. P. AIR 1984 SC 630 has held that the confidential reports relating to a remote period would not be relevant for the purpose of determining whether a person should be retired compulsorily or not. Reports for the earlier period of about ten years were scrutinised. It was further held that it would be arbitrary to base the decision to eompulsorily retire a person on the entries that were made about 20 years before the date on which the decision was taken. Dependence on such stale entries cannot be placed for retiring a person eompulsorily, particularly when the officer concerned has been promoted subsequent to such entries. ( 13. ) AS per return of the Union of India, a review committee was constituted by the State Government under the guidelines issued under Rule 16 (3) of All India service (Death-cum-Retirement Benefits) Rules for compulsory retirement of I. A. S. Officers. ( 13. ) AS per return of the Union of India, a review committee was constituted by the State Government under the guidelines issued under Rule 16 (3) of All India service (Death-cum-Retirement Benefits) Rules for compulsory retirement of I. A. S. Officers. The review committee had recommended compulsory retirement of the respondent No. 1 in public interest and agreeing with the recommendation the State government had forwarded the same to the Union Government which in turn after careful consideration has eompulsorily retired the respondent No. 1, on assessment of his over all performance. However, it was denied that the respondent No. 1 was retired from service on the basis of certain adverse remarks recorded in his confidential reports recorded before his promotion to the super time scale of I. A. S. The learned single Judge therefore held that the two confidential reports after his promotion were not at all adverse, they were not adverse comments on his work, conduct or efficiency but dealt with his state of mind, which was but natural under the circumstances. However, the learned Single Judge erred in assuming that the review committee did not apply its mind nor it recommended the respondent No. 1s compulsory retirement because the State Government in its return has not stated anything about the constitution and recommendation of the review committee, it merely relied on the old and stale adverse confidential reports in support. The minutes of the so called review committee were also not produced for perusal of the Court. It does not appear that any demand was made by the learned Single Judge for production of the record. ( 14. ) THE original record was produced before us. The review committee had met on 29-9-83 and recommended compulsory retirement of the respondent No. 1 in public interest after perusing his entire service record. The committee concluded:- "the preceding summary of Shri Vaishs ACRs shows that out of his acrs for 28 years, CRs for as many as 19 years have adverse comments. It is noteworthy that over a span of 28 years or so, Shri Vaish has not even once earned an unreserved very good confidential report, though one or two of the reports may verge on good plus. Shri Vaish was communicated displeasure or warnings of the State Govt. as many as four or five times. It is noteworthy that over a span of 28 years or so, Shri Vaish has not even once earned an unreserved very good confidential report, though one or two of the reports may verge on good plus. Shri Vaish was communicated displeasure or warnings of the State Govt. as many as four or five times. Most of the officers who worked as Chief Secretary in the State have given him adverse reports at one time or the other. Right from the period of training, when he first earned a number of adverse comments, he showed little or no inclination to improve. His traits of incompetence, lack of application, inability to get on well with colleagues and non-officials have persisted. One can reasonably suspect that even when Shri Vaish was not given adverse comments it was because he was tolerated and the superior officers did not feel it worth-while to record adverse comments. " The committee also noted that his promotions to selection grade and super time scale were made after having been superseded for 6-7 years for the selection grade and for 8 years for the super time scale. Also the joint screening committee of the Centre and the State had observed in 1980 : -"not found fit on the basis of record for Joint Secretary level costs at the centre. However, he was cleared for holding super time scale post in the state Govt. wanted to try him in assignments of a judicial or quasi-judicial nature. " therefore, it is not correct to say that the review committee did not apply its mind and did not recommend compulsory retirement of the respondent No. 1. ( 15. ) NOW we may also refer to certain adverse entries in the annual confidential record of the respondent No. 1 annexed with the return of the State Government. Nevertheless, it is to be mentioned that there is no allegation about his integrity nor in any one of these entries, there is any doubt expressed about his integrity. On 18-7-1964, the respondent No. 1 was told that he is lacking in drive and initiative, unmethodical besides not straight-forward. On 19-6-1965, the Chief Secretary depricated the tendency on his part to exaggerate his achievements and project himself better than what he really is. On 15-4-1966 he was told that a large number of revenue cases were disposed of by cyclostyled order. On 19-6-1965, the Chief Secretary depricated the tendency on his part to exaggerate his achievements and project himself better than what he really is. On 15-4-1966 he was told that a large number of revenue cases were disposed of by cyclostyled order. While rejecting his representation it was stated on 5-9-1967 that the language in which his representation was couched, only goes to prove his incompetence. On 21-3-1968, the respondent No. 1 was communicated by the chief Secretary that the Government has come to the conclusion that his behaviour as collector is immature, indiscreet and improper. If he does not correct the faults, a departmental enquiry will be held against him. In 1975 the adverse remarks were that he has very little ability of original drafting, practically everything he did had to be redone, mediocrity is his hall mark, in him God hath joined conceit and incompetence and what God hath joined no man can put asunder; lacking in discrimination between the important and the unimportant; and though he had light charge but he could not come to grip with the problem, it is doubtful whether he can take up any position of responsibility. On 19-9-1975 he was told that he has not grown in competence, behaviour, understanding and performance to a level that his senority would require and his posting is unwelcome in every part of the State. After promotion of respondent no. 1 to the super time scale on 1-7-1980, the following adverse entries were communicated to him, while he was working as Commissioner of Departmental enquiries under the Vigilance Commissioner, 1982-83 it was said : "as to his general behaviour, I may say that he is one of those officers who always remain unsatisfied and are prone to make complaints regarding various facilities being denied to them. " In 1981-82 it was said : "with some pressure on my part, he has disposed of old cases except one which was pending from the time of his predecessors. Apart from that case, he had only five other cases which are of 1981. I have however noted that he is accustomed to enjoy administrative powers and he was unhappy in his present job. " ( 16. Apart from that case, he had only five other cases which are of 1981. I have however noted that he is accustomed to enjoy administrative powers and he was unhappy in his present job. " ( 16. ) THE learned Single Judge has observed that these two entries do not show that the respondent No. 1 is a dead-wood requiring compulsory retirement and he did not refer to the earlier adverse entries, on the ground that they were stale and washed away after his promotion to super time scale. This aspect we will consider in the following paragraph. According to him, such behaviour is not peculiar to respondent no. 1 alone, all officers of the category can be said to have become accustomed to enjoy administrative powers and became unhappy with a job with no administrative powers. But in fact this is a commentary against the State for denying him the facilities which he is entitled otherwise. We are unable to agree with these comments. It is clear that the respondent No. 1 had no job satisfaction and he was more interested in matters of his personal welfare and administrative powers. The State Government cannot help if certain ex-cadre posts to be manned by senior I. A. S. do not carry any administrative powers normally exercised while working as executive officers. ( 17. ) IN spite of what has been narrated earlier, we are of the opinion that the review committee had erred in recommending and the Union Government in compulsorily retiring the respondent No. 1. The Supreme Court in State of U. P. vs. Chandra Mohan (Supra) has stated that since rule 16 (3) under which the respondent no. 1 has been retired, does not contain any guidelines, directions or criteria, the instructions issued by the Government furnish an essential and salutary purpose of the rule. Some of the clauses of instructions issued by the Government of India on 9-2-1978 under Rule 16 (3) to the State Governments are as under : - (xiii) An Officer with a satisfactory record of service should not be retired. Officers are often described as average. By definition the majority of officers in any service cadre would be average. It is only where an officer falls below the average standard he should be proposed for retirement in public interest. Officers are often described as average. By definition the majority of officers in any service cadre would be average. It is only where an officer falls below the average standard he should be proposed for retirement in public interest. (xiv) While the entire service record of an officer should be considered at the time of review, no official should ordinarily be retired on the ground of ineffectiveness if his service during the preceding five years or where he has been promoted to the higher post during 5 years, his service in the higher post, has been found satisfactory. The Supreme Court has also said in Brij Biharilal vs. High Court (supra) that confidential reports of later years are of utmost importance. In J. D. Shrivastava vs. State of M. P. (supra) the Supreme Court scrutinised confidentials of ten years only and did not approve dependence on stale entries. The review committee was manned by three senior I. A. S. Officers of Chief Secretarys cadre and they were alive to this aspect, but while recommending compulsory retirement of the respondent No. 1, did not consider this matter. We quote from the report of the Review Committee about the assessment of the confidentials for the last few years -1983- The report from the reporting authority (Up-Lok Ayukt) has just been received and is yet to be seen by the C. M. as the accepting authority the reporting authority has refrained from commenting on his work but commented adversely about his conduct. 1982- Up-Lok Ayukt was unhappy with the conduct of the respondent No. 1 and he was prodded to discharge his light work. 1981- The remark is fair, there is no assessment of his work. 1980- The remark can be treated as a good or adverse. 1979- The remark is good. 1978- The grading of reporting officer is fair, though contains number of adverse remarks. 1977-76- The reports contained number of adverse remarks, but were expunged. 1975- Remark below average but tolerated on account of kindness of superiors 1974- The report is fairly satisfactory. So during the last five years, i. e. upto 1978 (excluding 1983, that was yet to be affirmed by the reporting authority), 3 remarks are of average and two of fair and as such it cannot be said that the performance of the respondent No. 1 was below average during last five years, or even last 10 years. So during the last five years, i. e. upto 1978 (excluding 1983, that was yet to be affirmed by the reporting authority), 3 remarks are of average and two of fair and as such it cannot be said that the performance of the respondent No. 1 was below average during last five years, or even last 10 years. ( 18. ) THE respondent No. 1 was appointed to the selection grade in 1976 and ther appointed to the super time scale in 1980 and was given first increment in that scale in 1982. He has been ordered to be compulsorily retired on 9-4-1984. Under rule 2a of the All India Services (Pay) Rules, 1954, appointment to the selection grade and to posts carrying pay above the time scale of pay of Indian Administrative Service shall be made by selection on merit with due regard to seniority. Under Government of india instructions dated 27-12-1974 suitability to hold super time scale posts may be judged by evaluating their character roll recorded as a whole and general assessment of their work. That is why there was considerable delay in appointing the respondent no. 1 to the selection grade and to the super time scale. But once given these grades, then it has to be taken that the respondent No. 1 got promotions in 1976 and 1980. Since the appointments were on merit, the decision of the Supreme Court Dayaram asanand vs. State of Maharashtra AIR 1984 SC 850 has no application because there in appointing Judicial Officers to selection grade, no element of selection was involved. The Supreme Court in D. Ramaswamy vs. State of Tamil Nadu (supra) has held that once a person is promoted to the selection grade, his compulsory retirement shortly after such promotion is invalid and unsustainable, when there is nothing even mildly suggestive of inaptitude or inefficiency thereafter. The respondent No. 1 was given first increment in the super time scale in 1982. The Supreme Court in Swami saran vs. State of U. P. (supra) has held that there was nothing to show that there was sudden deterioration after crossing the second efficiency bar as to deserve compulsory retirement. After his appointment to the selection grade on 1-7-1980, it can be said that though he was given first increment in 1982 his confidential was adverse in that year. After his appointment to the selection grade on 1-7-1980, it can be said that though he was given first increment in 1982 his confidential was adverse in that year. The confidential of 1983 was yet to be approved by the accepting authority. Even if this is taken as adverse about his conduct but not of work. So if we hark back to his past confidentials for the last five years, the same were not below average. Of course his confidentials and performances prior to 1974 were poor. It may be as suggested in the return of the State Government, that it has been very sympathetic expecting that the respondent No. 1 would improve at one time or other. It also appears from the report of the Joint Screening Committee that the State government wanted to try him in works of judicial or quasi-judicial nature. But even as Commissioner of Departmental Enquiries under the Vigilance Commissioner, his performance was unsatisfactory. But he could not have been compulsorily retired as his confidentials for the last five years were not below average. Under the circumstances, the learned Single Judge committed no error in quashing the order of the Union of India compulsorily retiring the respondent No. 1 under Rule 16 (3) of the all India Services (Retirement-cum-Benefits) Rules, 1958 when ordinarily he could not be compulsorily retiredlooking to past five years confidentials. The respondent no. 1 ought to show improvement and better performance now because it will be open to the authorities to review his case again after watching his further performance. ( 19. ) WITH the result, both the appeals fail and are dismissed. Parties to bear their own costs of these appeals. Appeals dismissed.