JUDGMENT 1. - Ravindra Nath Dubey, petitioner herein, filed the present writ petition nine years ago challenging the order dated 18.04.2002 passed by respondents by which he was compulsorily retired from service and the order dated 18.06.2004 by which the appeal filed by him against the said order was dismissed by the Rajasthan Civil Services Appellate Tribunal (for short, 'the Service Tribunal'). 2. The petitioner was appointed as Lower Division Clerk (for short, 'LDC') by the District Collector, Chittorgarh vide order dated 07.06.1975. He was later on transferred to the Government College, Chittorgarh and appointed there as Laboratory Assistant vide order dated 03.01.1976. He was transferred to the Government College, Nathdwara. Aggrieved by that order the petitioner filed a writ petition before the Principal Seat of this court at Jodhpur. This court vide order dated 09.09.1994 stayed operation of the transfer order. The respondents did not comply with the aforesaid stay order passed by this court. The petitioner filed a contempt petition in which notices were issued to the respondents where after he was allowed to join back in the Government College, Chittorgarh. The contempt petition was dismissed as having become infructuous. It was thereafter that a charge-sheet was served upon the petitioner on 05.06.1995. One of the charges against the petitioner was that he by not taking the charge in the chemistry department of the college on the pretext of the pendency of the litigation before this court at Jodhpur, failed to faithfully discharge his duties and thereby caused loss to the State exchequer of the emoluments paid to him for such period. There was another charge about filing of an affidavit by him before the court of Munsiff at Chittorgarh in which according to the respondent the petitioner gave a false affidavit on 14.02.1994 with regard to his appointment. Enquiry officer on 21.08.1995 found seven charges proved against the petitioner including above referred to charges. Disciplinary authority, vide order dated 21.08.1995, awarded penalty of reduction of pay to the minimum of pay scale. Petitioner filed an appeal against the aforesaid order of penalty. The appellate authority partly allowed his appeal vide order dated 31.03.2000 and substituted the penalty of reduction of his pay to the minimum of the pay scale by that of withholding of two grade increments with cumulative effect. It was thereafter that case of the petitioner for grant of second selection scale became ripe. The appellate authority partly allowed his appeal vide order dated 31.03.2000 and substituted the penalty of reduction of his pay to the minimum of the pay scale by that of withholding of two grade increments with cumulative effect. It was thereafter that case of the petitioner for grant of second selection scale became ripe. Since the next higher post was not available in the department for promotion of the petitioner, he was granted second selection scale on completion of 18 years of satisfactory service by order of the respondent dated 11.04.2001. The respondents then invoking the Rule 53 of the RSR, compulsorily retired the petitioner by order dated 18.04.2002. The appeal filed by the petitioner against the aforesaid order was dismissed by the Service Tribunal by order dated 18.06.2004. Both these orders are impugned in the present proceedings. 2. 1. When hearing of this writ petition was getting delayed, the petitioner approached the Supreme Court against the order dated 06.05.2011 passed in the writ petition. The Supreme Court by order dated 19.11.2012 requested this court to deal with the matter expeditiously and may not give any adjournment. 3. We have heard Shri Anupam Agarwal and Shri Neeraj Batra for petitioner as well as Shri Anant Bhandari, Deputy Government Counsel, for respondents State and also perused the material on record. 4. Shri Anupam Agarwal, learned counsel for the petitioner, has argued that the impugned order has been passed by the respondents for the reasons of mala-fide and in colourable exercise of powers. It is not only a mala-fide order but also arbitrary and discriminatory and is revengeful order to teach a lesson to the petitioner for filing a contempt petition against the respondents. It is contended that the selection scale as per the Circular of the Government dated 25.01.1992 is granted only on satisfactory completion of 18 years of service in lieu of promotion. Therefore it is as good as promotion based on consideration of the entire service record of the Government servant concerned. Since the second selection scale has been granted to the petitioner on completion of 18 years of service, it should be deemed that his service record was satisfactory and there was no adversity at least of the nature that would make him a liability to service. Since the second selection scale has been granted to the petitioner on completion of 18 years of service, it should be deemed that his service record was satisfactory and there was no adversity at least of the nature that would make him a liability to service. Learned counsel referred to the order of compulsory retirement dated 18.04.2002 and argued that this order suffers from malice in law and fact both. This order also suffers from non-application of mind and vice and arbitrariness. Apart from the order of penalty of withholding of grant of selection scale, another reason for compulsorily retiring the petitioner given in this order is that there are several adverse entries in the Annual Confidential Reports of the petitioner, whereas there are none. In none of the years of his career, the petitioner was conveyed any adverse entries. In fact, not in respect of single year is there any adverse remark recorded in his A.C.Rs. Learned counsel submitted that the respondents have failed to produce any such record before the Service Tribunal regarding adverse remarks. The A.C.R. dossier of the petitioner was never produced before the Tribunal despite specific plea to the contrary by the petitioner in the appeal. The Tribunal has mechanically dismissed the appeal. The order of compulsory retirement has been passed only because of the litigation initiated by the petitioner against the respondent at a time when he had already crossed the fifty years of age and was unable to find any job elsewhere. 5. The petitioner made an application to the Public Information Officer i.e. the Joint Director (Academic) in the Directorate of the College Education, Rajasthan, Jaipur with the specific query whether there exists any adverse in the A.C.Rs. of the petitioner for the period from 20.01.1976 to 18.04.2002. In response to which, he has been conveyed that there is no adverse entry in his A.C.Rs. during the aforesaid period. It has been further conveyed that because there was no adverse entry in the A.C.Rs. of the petitioner, he was granted first and second selection scale respectively on completion of 9 and 18 years of service. Learned counsel therefore submitted that the review committee has not considered the entire record of the petitioner or the complete information has been withheld from the review committee. of the petitioner, he was granted first and second selection scale respectively on completion of 9 and 18 years of service. Learned counsel therefore submitted that the review committee has not considered the entire record of the petitioner or the complete information has been withheld from the review committee. The order of the compulsory retirement has been mechanical passed without application of mind and in the facts of the case, only for the reasons of mala-fide of the respondents, who wanted to get rid of him. Learned counsel submitted that despite being required by this court by order dated 17.04.2013, the respondents have failed to produce the original service record of the petitioner so as to show adverse remarks recorded in any of his A.C.Rs. 6. Learned counsel for the petitioner, in support of his argument, has, in support of his arguments, relied on the judgments of the Supreme Court in National Aviation Company of India Limited v. S.M.K. Khan - (2009) 5 SCC 732 and M.P. State Co-operative Dairy Federation Ltd. And another v. Rajnesh Kumar Jamindar and others - (2009) 15 SCC 221 , and Division Bench judgment of this Court in State of Rajasthan and Another v. Tej Singh Shekhawat - 2008 (4) WLC (Raj.) 135 . 7. Per Contra, Shri Anant Bhandari, learned Deputy Government Counsel, appearing for the respondents State, opposed the writ petition and submitted that the decision of the competent authority to compulsorily retire the petitioner has nothing to do with the writ petition and contempt petition filed by him with regard to order of his transfer. There were several such adversities in the service record of the petitioner that furnished sufficient ground to the competent authority to hold the view that he has become liability to service and dead-wood to be chapped off. Learned Deputy Government Counsel referred to the proceedings under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, initiated against the petitioner and ultimately the order of penalty of reduction to the minimum of the pay scale which penalty, on appeal, was subsequently converted into the penalty of stoppage of two grade increments with cumulative effect. It was contended that penalty of stoppage of two grade increments with cumulative effect was also major penalty and this penalty was awarded on 09.08.2000 two years before the order of compulsory retirement. It was contended that penalty of stoppage of two grade increments with cumulative effect was also major penalty and this penalty was awarded on 09.08.2000 two years before the order of compulsory retirement. It was argued that as per the settled proposition of law, wash out theory does not apply to the case of compulsory retirement where for the entire service record of the Government servant concerned has to be looked into to determine whether or not he should be compulsorily retired. Learned Deputy Government Counsel submitted that the information that was supplied to the petitioner also contained that though there was no adverse entry in the years 1993-94 and 1994-95, but his work in those years was only satisfactory, which means that he was rated as ordinary worker. It was in response to the specific query to the petitioner in question no.5 as to whether the information regarding adverse entries was given based on wrong facts and if yes then who is responsible for that and what action would be taken against the erring official, it was informed that the information regarding adverse entries appears to have been mentioned on account of typographical error, therefore no case is made out for taking action against anyone. Learned counsel submitted that the Service Tribunal has rightly dismissed the appeal filed by the petitioner. It is contended that the conduct of the petitioner as reflected in his A.C.Rs. of the years 1993-94 and 1994-95 coupled with the penalty of stoppage of two grade increment, furnished sufficient ground for his compulsory retirement. 8. It is argued that the scope of interference in the matter by this court is quite limited and this court does not act as appellate court in the matter of compulsory retirement. If material on record form requisite opinion, this court would not be justified in interfering with the matter. 9. 8. It is argued that the scope of interference in the matter by this court is quite limited and this court does not act as appellate court in the matter of compulsory retirement. If material on record form requisite opinion, this court would not be justified in interfering with the matter. 9. Learned counsel for the respondents, in support of his argument, has relied on the judgments in R.C. Chandel v. High Court of M.P. - (2012) 8 SCC 58 , Shiv Dayal Gupta v. state of Rajasthan and Another - (2005) 13 SCC 581 , State of Orissa and Others v. Ram Chandra Das - (1996) 5 SCC 331 , Jiwan Mal Kochar v. Union of India and others - (1983) 4 SCC 148 , Collector, Allahabad and Another v. Chhote Lal - 1995 Supp (1) SCC 184 and Union of India and Others v. Dulal Dutt - (1993) 2 SCC 179 . 10. Having hard learned counsel for the parties and perused the material on record, I have given my anxious consideration to rival submissions. 11. It is no doubt true that entire service record and overall performance of a Government servant has to be considered while deciding his case for compulsory retirement. Service record of a Government servant, which includes the A.C.Rs. and any misconduct leading to penalty or pending disciplinary proceeding, considered as a whole, may lead the reviewing authority to the conclusion that the employee in question is not fit to remain in continuous service and is of no utility to the employer. It is trite that an order of compulsory retirement is not open to be interfered with unless shown to be mala-fide or arbitrary or not based on any background material at all relating to unsatisfactory service justifying the premature retirement, as held by the Supreme Court in National Aviation Company of India Limited v. S.M.K. Khan , supra. The judgment of the Supreme Court in R.C. Chandel v. High Court of M.P. , supra,relied on by the learned counsel for the respondents, dealt with the compulsory retirement of judicial officer in public interest. The judgment of the Supreme Court in R.C. Chandel v. High Court of M.P. , supra,relied on by the learned counsel for the respondents, dealt with the compulsory retirement of judicial officer in public interest. The Supreme Court, while dealing with the argument of wipe out theory in respect of adverse remark in a case of a confirmed judicial officer, got lower selection grade and awarded super time scale and also given above super time scale, has held that confirmation, grant of selection grade and super time scale do not wipe out the earlier adverse entires which have remained on record and continue to hold the field. The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to assess a judicial officer's continued utility to the judicial system. Those of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age. 12. In Rajendra Singh Verma v. Lt. Governor (NCT of Delhi), (2011) 10 SCC 1 , the Supreme Court held that the judicial service is not a service in the sense of an employment as is commonly understood. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Thus making a distinction between ordinary and judicial services, it was held that nature of judicial service is such that High Court cannot afford to suffer continuance in service of a persons of doubtful integrity. Thus, while making a distinction, the Supreme Court held that judicial review is open for extraordinary reason when the Court is convinced that some real injustice is caused thereby, which ought not to have taken place, but has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by punishing authority. In that case, the Supreme Court laid down that interference in the matter of compulsory retirement, would be permissible only in the following grounds, namely, (a) that the requisite opinion has not been formed, or (b) that the decision is based on collateral grounds, or (c) that it is an arbitrary decision. 13. In that case, the Supreme Court laid down that interference in the matter of compulsory retirement, would be permissible only in the following grounds, namely, (a) that the requisite opinion has not been formed, or (b) that the decision is based on collateral grounds, or (c) that it is an arbitrary decision. 13. In the present matter, the petitioner was a Laboratory Assistant, therefore, perhaps this matter will have to be approached from a slightly different angle and will not be subjected to as much rigid scrutiny as has been applied by the Supreme Court in above referred to two cases of judicial officers. In this connection, a recent judgment of the Supreme Court in M.P. State Co-operative Dairy Federation Ltd. and another v. Rajnesh Kumar Jamindar and others , supra, is worth noticing. In that case, the High Court quashed the order of compulsory retirement of 16 employees where-against the Federation approached the Supreme Court. The Supreme Court upheld the judgment of the High Court and held that the power of judicial review of a superior court, although a restricted one, has many facets. Its jurisdiction is not only limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law. An order which is passed for unauthorized purpose would attract the principles of malice in law. It was held that an order of compulsory retirement being not ordinary in nature can be subjected to judicial review, inter-alia, on the grounds that (i) when it is based on no material; (ii)when it is arbitrary; (iii) when it is without application of mind; and (iv) when there is no evidence in support of the case. 14. In the present case, no doubt, an order of penalty against the petitioner of stoppage of two grade increments exists but the petitioner has also been able to demonstrate that although two charges for which aforesaid penalty was imposed on him were pertaining to direction for approaching the court first the court of Munsiff and thereafter the High Court against the order of his transfer and that the High Court passed the stay order which the respondents failed to comply with. The petitioner had to then file contempt petition. It was thereafter that they complied with the order. The petitioner had to then file contempt petition. It was thereafter that they complied with the order. It would have been entirely different case, if the order of compulsory retirement was to be passed only on the basis of penalty of stoppage of two grade increment with cumulative effect. But here this court is inclined to scrutinise the impugned order for a different reason and that reason in the present case is that the order of compulsory retirement is founded not on aforesaid solitary penalty but also on the assumption that there are several adverse entries in his A.C.Rs. The petitioner has been able to successfully demonstrate before this court that in fact in none of the years of his service career exist any adverse entry ever recorded, communicated or even un-communicated. The petitioner submitted an application dated 23.10.2006 to the Public Information Officer/Commissioner, Directorate of College Education, Rajasthan, Jaipur, asking for information on seven specific points, first of which was to provide certified photo copy of total adverse entries with date and year for the period from 20.01.1976 to 18.04.2002. The Joint Director (Academic) College Education & Public Relation Officer, Rajasthan, Jaipur, vide U.O. Note dated 06.01.2007 conveyed to the petitioner that during the period from 20.01.1976 to 18.04.2002 the petitioner has no adverse entry in his Annual Confidential Report of any of the years. Second query was to the effect as to on what basis he was granted benefit of selection scales on completion of 9 and 18 years of service despite adverse entries, the information supplied was that the petitioner was given the benefit of selection scales on completion of 9 and 18 years of service as there was no adverse entry in his Annual Confidential Reports. Third query was to the effect as to on what basis the information of adverse entries was sent to the competent authority, in response to which the information supplied was that though the petitioner has no adverse entries in his Annual Confidential Reports, but his performance in respect of the years 1993-94 and 1994-95 has been rated as satisfactory only. Third query was to the effect as to on what basis the information of adverse entries was sent to the competent authority, in response to which the information supplied was that though the petitioner has no adverse entries in his Annual Confidential Reports, but his performance in respect of the years 1993-94 and 1994-95 has been rated as satisfactory only. Fourth query was whether benefit of selection scales on completion of 9 and 18 years of service is granted only on finding the service to be satisfactory and if yes, then on what basis the selection scales were granted; and if it has been wrongly granted then whether any action would be taken against the erring official/officer and if yes then within what time. The answer given to that query was that the benefit of selection scales on completion of 9 and 18 years of service is granted only on satisfactory service, which has been given to the petitioner in time and while granting so, there is no fault found of any employee/officer, therefore no occasion arises for any disciplinary action against any employee/officer. Fifth query was whether the information regarding adverse entries was given based on wrong facts and if yes then who is responsible for that and what action would be taken against the erring official, answer given to that query was that the information regarding adverse entries appears to have been furnished on account of typographical error, therefore no case is made out for taking any action. 15. After the order of the Supreme Court dated 19.11.2012 in Petition for Special Leave to Appeal (Civil) No.3682/2012, filed by petitioner, whereby this Court was requested to deal with the matter expeditiously and not to give any adjournment, this court vide order dated 17.04.2013 required the respondents to produce original service record of the petitioner so as to find out as to whether adverse remarks exist against him or not. Despite aforesaid opportunity granted to the respondents, when the matter was taken for hearing on the next date, the respondents failed to produce any record so as to substantiate if at all any adverse remark was recorded in the service record of the petitioner. There is thus no reason to disbelieve that the Review Committee as also the competent authority were misled on a very significant aspect. There is thus no reason to disbelieve that the Review Committee as also the competent authority were misled on a very significant aspect. And there is every reason therefore to infer that if the reviewing authority and/or the competent authority were not led into believing that there are several adverse remarks against the petitioner in the A.C.Rs., which means that none of the years of his service career, he suffered adverse entires in A.C.Rs., the formation of opinion by those authorities would have been difficult. In the absence of such incorrect information, they would have perhaps not formed the opinion, which they ultimately formed to compulsorily retire the petitioner. The formation of opinion by review committee/competent authority was thus vitiated by consideration of extraneous material as also non-application of mind. Respondents despite being required by this court, did not produce the original record. Facts, which the petitioner has been able to prove before this court, would not have perhaps seen the light of the day, but for solitary provision of Right to Information Act. 16. The Supreme Court in State of Gujarat v. Umedbhai M. Patel - (2001) 3 SCC 314 , summarised the law in respect of compulsory retirement thus, "(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even un-communicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." 17. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." 17. In the aforesaid judgment, it was held by the Supreme Court that the order of compulsory retirement shall not be passed as shortcut to avoid departmental enquiry when such course is more desirable and in clause (vii) and (viii) aforesaid, it was held that if the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. Compulsory retirement shall not be imposed as a punitive measure. 18. Charge no.1 against the petitioner was that while he remained posted as Laboratory Assistant in the Government College, Chittorgarh, during the period from 14.02.1994 to 05.06.1995, he filed a wrong affidavit on 14.02.1994 in the court of Munsiff, Chittorgarh, with regard to his appointment. Charge No.5 is that during the aforesaid period the petitioner did not assume the charge of Laboratory Assistant in the the Chemistry Department of the College at the place of transfer on the pretext of the order of this Court at Principal Seat, Jodhpur, thereby causing loss to the State exchequer. For this period, admittedly there was an interim order passed by this Court in favour of the petitioner and compliance was not made by the respondents of the court's order till notice of the contempt petition was served upon them and ultimately they complied with the order when the contempt petition was filed. Thereafter on compliance of the order, the contempt petition became infructuous. Although, this court is not considering challenge to the order of penalty passed in the said disciplinary proceedings, nonetheless sequence in which these events took place, ultimately led to compulsory retirement of the petitioner, and the order of penalty awarded to him in those proceedings in the solitary basis on which such order of compulsory retirement has been passed, this is a relevant factor in favour of petitioner to substantiate his argument of malice in law. 19. In these facts, there is sufficient material available on record of this court to hold that the order of compulsory retirement was passed for ulterior motives and therefore would attract the principles of malice in law. 19. In these facts, there is sufficient material available on record of this court to hold that the order of compulsory retirement was passed for ulterior motives and therefore would attract the principles of malice in law. Reference in this connection may be made to the judgments of the Supreme Court in K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 (Para 68) and P. Mohanan Pillai v. State of Kerala and Others - (2007) 9 SCC 497 (Para 16) 20. In Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada and Another - (1992) 2 SCC 299 , the Supreme Court, while laying down various principles to be kept in view while considering the challenge to the order of compulsory retirement, held that the principles of natural justice have no place in the context of an order of compulsory retirement. However, that does not mean that judicial scrutiny is excluded altogether. It was held that the High Court or the Supreme Court would not examine the matter as an appellate court. They may interfere if they are satisfied that the order passed is - (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. 21. The cited judgment of the Supreme Court in Shiv Dayal Gupta, supra, also arose out of a dispute relating to compulsory retirement of judicial officer and is distinguishable on facts. Similar is the position with regard to cited judgments of the Supreme Court in State of Orissa and Others v. Ram Chandra Das , Jiwan Mal Kochar v. Union of India and others , Collector, Allahabad and Another v. Chhote Lal and Union of India and Others v. Dulal Dutt , supra. In those judgments the facts were different than the present case and thus those judgments are distinguishable on facts, therefore, possibly cannot be applied to the facts of the present case. 22. In the present case, the very fact that the complete material was not placed before the Review Committee and/or Competent Authority and rather it was misled into believing that adverse remarks were there in the A.C.Rs. 22. In the present case, the very fact that the complete material was not placed before the Review Committee and/or Competent Authority and rather it was misled into believing that adverse remarks were there in the A.C.Rs. of the petitioner, not only in respect of one year but several years, whereas in fact there were none, the order of compulsory retirement definitely suffers from the vice of non-application of mind, having been passed in colourable exercise of powers and in that sense, it would be a perverse order. 23. In view of above, the writ petition succeeds and is, therefore, allowed with all consequential benefits with interest at the rate of 6% per annum. Compliance of this order be made within three months from the date a copy of this order is produced before the respondents.Petition Allowed. *******