JUDGMENT : 1. Instant appeal under Clause 12 of the Letters Patent is directed against the judgment dated 13.12.2016 passed by learned Single Judge in SWP No.1381/2015 captioned “Shamim Ahmad Laharwal Vs. State of J&K & ors”. In terms of impugned judgment, Government order 870-GAD of 2015 has been quashed and the appellants (respondents therein) stand directed to reinstate the respondent (petitioner therein) and treat him in service, entitled to all the benefits. 2. Regulation 226(2) of the Jammu and Kashmir Civil Service Regulations (hereinafter referred to as CSR), clothes the Government of Jammu and Kashmir with a power to retire, at any time, a government servant having completed 22 years of qualifying service or on attaining 48 years of age subject to at least three month’s notice or three months’ pay and allowance in lieu of such notice. Such a government servant has to be granted pensionary benefits as admissible under rules on the basis of qualifying service put in by him. For facility of reference, Regulation 226(2) is quoted here-under: “226(2). Notwithstanding anything contained in these Regulations Government may, if it is of the opinion that it is in the public interest to do so, require any Government servant other the one working on the post which is included in schedule II of these rules, to retire at any time after he has completed 22 years/44 completed six monthly periods of qualifying service or on attaining 48 years of age; provided that the appropriate authority shall give in this behalf a notice (in one of the forms prescribed in annexures A and B hereto as the case may be), to the Government servant at least 3 months before the date on which he is required to retire or 3 months of pay and allowance in lieu of such notice. Such a Government servant shall be granted pensionary benefits admissible under these rules on the basis of qualifying service put in by him on the date of such retirement”. 3. Vide Government order No.17-GAD(Vig) 2015 dated 20.05.2015, Government constituted a committee to consider cases of officers/officials for premature retirement in terms of Regulation 226(2) and 226(3) of CSR. The said order is quoted here-under: Government of Jammu and Kashmir General Administration Department Civil Secretariat, Jammu/Srinagar Subject: Constitution of Committee to consider cases of officers/officials for premature retirement in terms of Regulation 226(2) and 226(3) of J&K CSRs. The said order is quoted here-under: Government of Jammu and Kashmir General Administration Department Civil Secretariat, Jammu/Srinagar Subject: Constitution of Committee to consider cases of officers/officials for premature retirement in terms of Regulation 226(2) and 226(3) of J&K CSRs. Government Order No.17-GAD(Vig) 2015 D a t e d : 20-05-2015 In supersession of all previous orders on the subject, sanction is accorded to the constitution of a committee, comprising the following, to consider the cases of officers/officials for premature retirement, in terms of Regulation 226(2) and 226(3) of J&K Civil Services Regulations: 1. Chief Secretary - Chairman 2. Principal Secretary to the Chief Minister - Member 3. Principal Secretary to the Government Home Department - Member 4. Commissioner/Secretary to the Government Member General Administration Department - Member-Secretary 5. Secretary to the Government, Department of Law, Justice & Parliamentary Affairs - Member The Chairman may also co-opt a Member for assisting the Committee in any particular meeting. By order of Government of Jammu & Kashmir Sd/- (Gazzanfar Hussain) Commissioner/Secretary to Government” 4. In the reply affidavit as filed to oppose writ petition, it has been stated that the constituted Committee held its deliberations on 21st May, 2015. Record note of the meeting of the committee would indicate that the committee considered the mandate of Regulation 226(2) of the CSR, OM No.GAD(Vig) 19-Adm/2010 dated 25.10.2010 and OM No.GAD(Vig) 19-Adm/2010 dated 25.10.2010 which envisages screening of the record of the employees before making recommendation for premature retirement. The records regarding involvement of the government employees in corrupt practices were placed before the Committee. The cases of trap where the employees were found demanding and accepting bribe and the cases relating to disproportionate assets vis-à-vis the known sources of income were also placed before the Committee. In addition, the cases in which FIRs have been registered and the investigation is either underway or has been completed were also placed before the Committee. Consequent to the extensive discussion in respect of each case, the Committee decided to have further deliberations in the next meeting which was held on 25.05.2015. 5. On 25.05.2015, the Administrative Secretaries of the concerned departments were co-opted as members with regard to cases pertaining to their departments. The Committee decided the cases of each department separately. Inputs with regard to service particulars were obtained from the Administrative Department. It was found by the Committee that in some cases, details are incomplete. 5. On 25.05.2015, the Administrative Secretaries of the concerned departments were co-opted as members with regard to cases pertaining to their departments. The Committee decided the cases of each department separately. Inputs with regard to service particulars were obtained from the Administrative Department. It was found by the Committee that in some cases, details are incomplete. The Administrative Secretaries were to provide awaited details at the earliest. The Committee had also observed that the APRs of the officers/officials are also required to be examined. 6. The Committee again met on 11.06.2015. The APRs of the officers/officials were examined and it was observed that the APRs are either not available or incomplete. The Administrative Secretaries of the concerned departments were to furnish the remaining information/inputs about the concerned employees. 7. It is also stated in the reply affidavit that finally the committee met on 26.06.2015. Amongst others, case of the respondent herein (hereinafter referred to as the petitioner) was also considered. On considering record of the petitioner, it was observed that:- 1. He does not enjoy good reputation in the public due to his consistent conduct over a period of time; 2. Various complaints lodged against him are under verification before Vigilance Organization which pertains to release of payment to the supplier and making purchases at exorbitant rates; 3. He also figures in preliminary enquiries No.PE-C-13/99, in connection therewith as per report submitted by Deputy Inspector General of Police, Vigilance Organization, J&K, Srinagar, petitioner had appointed 25 persons as Class-IV employees during the year 1997-1998 illegally in his capacity as Director, State Motor Garages, J&K, Srinagar; 4. There were complaints filed against the petitioner in his capacity as Director, Urban Local Bodies, Kashmir; 5. He had indulged in corrupt practices and has been involved in several illegal acts during his tenure. 8. On aforesaid basis, it has been opined that the petitioner has outlived utility to the public. The Committee having come to the conclusion that the petitioner is generally known to have bad reputation and has indulged in corrupt practices while performing his duties, recommended his retirement under Regulation 226(2) of the CSR. 9. The recommendation of the Committee was accepted by the competent authority, as a result whereof impugned Govt. order No.870-GAD of 2015 dated 30.06.2015 was issued. 9. The recommendation of the Committee was accepted by the competent authority, as a result whereof impugned Govt. order No.870-GAD of 2015 dated 30.06.2015 was issued. Aggrieved thereof, petitioner filed writ petition wherein, amongst other grounds, it has been projected that: (I) No material was available before the respondents warranting compulsory retirement of the petitioner; (II) Neither any case of criminal nature is registered against the petitioner nor is he in possession of properties disproportionate to his known sources of income; (III) The meritorious position of the petitioner as reflected in ACRs has not been considered; (IV) The entire service record of the petitioner has not been considered in negation to the mandate of Regulation 14 and 16 and an irrational, arbitrary, unjust and unfair order has been passed; (V) The action of the respondents is colourable exercise of power; (VI) Non-application of mind by the Committee and then by the authority who has passed the impugned order is quite apparent. 10. Regulation 226(2) of CSR has a laudable object which can be achieved only when the power is exercised in a manner which, in all senses, may have trappings of its advancement. The corrupt and indolent persons having bad name, bad reputation and image, in effect, are not only eyesore but are a curse for the public. The officers/officials at every level have to discharge their duties to the best of their ability with integrity so as to exhibit their commitment for the public good. Once an officer/official (government servant) becomes corrupt and indolent, he automatically loses utility. Such a Government servant can safely be said to have outlived utility. To retire such a person by invoking powers under Regulation 226(2) of CSR has to be appreciated being in the public interest. 11. The retirement by invoking powers under Regulation 226(2) CSR is open to challenge on the following grounds: (I) That the requisite opinion has not been formed; or (II) That the decision is based on collateral grounds; or (III) That it is an arbitrary decision; or (IV) That it is based on mala fides; or (V) That it is perverse. 12. A three Judge Bench of Hon’ble Supreme Court in the case of “Baikuntha Nath Das and another Vs. 12. A three Judge Bench of Hon’ble Supreme Court in the case of “Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another” reported in (1992) 2 SCC 299 , has laid down following five principles: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (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 perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible only on the grounds mentioned in (iii). 13. The principle No.(iv) as quoted above, mandates that before taking decision, the entire record of service of a government servant has to be considered, more importance to record of and performance during the later years is also imperative. The record includes the entries in the confidential records/character rolls, both favourable and adverse. 14. 13. The principle No.(iv) as quoted above, mandates that before taking decision, the entire record of service of a government servant has to be considered, more importance to record of and performance during the later years is also imperative. The record includes the entries in the confidential records/character rolls, both favourable and adverse. 14. In the judgment rendered in the case of “S. Ramachandra Raju Vs. State of Orissa” reported in 1994 Supp (3) SCC 424, it has been held as under:- “……On total evaluation of the entire record of service if the government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bonafide exercise of power but the court has power and duty to exercise the power of judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised Or is arbitrary or vitiated either by malafide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service.” 15. Reverting back to the case on hand, question is as to whether the constituted Committee, in effect, has considered the entire service record including APRs of the petitioner so as to derive subjective satisfaction for recommending his premature retirement? 16. The petitioner has placed on record APRs for the below mentioned periods: 1. For the period 1997-98(when he posted as Deputy Director, State Motor Garages, Kashmir), the Initiating officer i.e. Director, State Motor Garages, in various columns has recorded him “very good” “excellent” “good” and regarding integrity as “good”. In the final analysis, he has been graded as “very good”, however, the Reviewing and Accepting Authority have not recorded anything. 2. For the period 1998-99 (when petitioner was posted as Director, Motor Garages) the Initiating Authority regarding integrity has recorded him as “above board”. 3. For the period 2000-2001 (when petitioner was posted as Managing Director, J&K Social Welfare Department), again for integrity, he has been recorded as “above board” but same does not contain signature of Initiating, Reviewing or Accepting Authority. 4. For the period 2001-2002 (when petitioner was posted as OSD, Transport, the Initiating Authority on overall assessment has rated him as “outstanding” whereas the Accepting Authority (Minister) has accepted the same. 5. 4. For the period 2001-2002 (when petitioner was posted as OSD, Transport, the Initiating Authority on overall assessment has rated him as “outstanding” whereas the Accepting Authority (Minister) has accepted the same. 5. For the period 2002-2003 (when again petitioner was posted as OSD Transport) on overall assessment, he has been graded as “outstanding” by the Initiating Authority which has been accepted by the Accepting Authority (Minister transport). 6. For the period 2003-2004 (when again petitioner was posted as OSD Transport), he has been graded as “outstanding” and the Accepting Authority has recorded as under: “The performance of the officer remained very good”. 7. For the period 2005-2006 (when petitioner was posted as Director Geology & Mining), as against column integrity, he has been rated “very good” by the Initiating Authority. Same has been approved by the Accepting Authority i.e. Minister Industries. 8. For the period 2009-2010, when petitioner remained posted as Director General, State Motor Garages, J&K, he has been rated as “very good” by the Initiating Authority, however, no remarks have been made by the Reviewing/Accepting Authority. 9. For the period 2013-14, when petitioner remained posted as State Project Director, J&K RMSA, Initiating Authority has rated him as “outstanding” and as against the column integrity, it has been recorded as “beyond doubt”. 17. These APRs have not been considered by the constituted Committee. Noticing so, the learned Single Judge had directed the respondents to file an affidavit to clarify the position vis-à-vis said APRs which has been filed by General Administration Department. In the said affidavit, the position of the APRs with reference to the years from 1997-98 till 2014-15 and the position of grading by the Initiating Authority has been reflected. In the remarks column, it has been recorded that the APRs for the period 1997-98, 1998-99, 2000-2001, 2009-2010 and 2013-2013 were incomplete whereas for the period 1999-2000, 2004-2005, 2006-2007, 2007-2008, 2008-2009, 2010-2011, 2011-2012, 2012-2103, 2014-2015, in the remarks column, it has been record as “not available” whereas for the period 2001-2002, 2002-2003, 2003-2004, 2005-2006, in the remarks column, same have been recorded as “complete”. To say “not available” has no meaning. The position of APRs as referred to above, photocopies of which have been placed on record, has not been denied. The constituted Committee (Review Committee) was under a legal obligation to consider all these APRs. To say “not available” has no meaning. The position of APRs as referred to above, photocopies of which have been placed on record, has not been denied. The constituted Committee (Review Committee) was under a legal obligation to consider all these APRs. Either these APRs have not been placed before the Committee so have been withheld with some design or have been placed before the Committee but not considered, whereas, Committee in its recommendation has recorded that the APRs were not available. As noticed, the APRs have been totally ignored when for weeding out the deadwood it was necessary to take into consideration performance of the petitioner, at least for last five years. In this behalf it shall be advantageous to quote para 41 of the judgment rendered in the case of “Madhya Pradesh Cooperative Dairy Federation Limited and another Vs. Rajnesh Kumar Jamindar and others” reported in (2009) 15 SCC 221 : “41. We have noticed hereinbefore that although criteria adopted by the State were required to be considered for the purpose of determining the suitability or otherwise of the employees to continue in service, the necessity to give special consideration to the performance of the employees for the last five years before the order was passed had been given a complete go-by. The learned Single Judge as also the Division Bench, as noticed hereinbefore, clearly held that for the purpose of weeding out the dead wood, it was absolutely necessary to take into consideration the performance of each of the employees at least for the last two years. Each case, thus, was required to be considered on its own merit”. {Emphasis added} 18. Another situation which emerge from the perusal of records, is that, the entire service record of the petitioner has not been considered by the constituted Reviewing Committee. Petitioner has risen from the ranks. In the year 2008, a High Level Establishment Committee headed by the Chief Secretary while considering case of the petitioner for promotion to the post of Director Motor Garages in the pay scale of Rs.14300-18300, has recorded, that, it has assessed the service record of Shri S.A. Laherwal and on the basis of performance recorded in his APRs, graded him as “very good” and recommended him for promotion as Director, Garages in the pay scale of Rs.14300-18300/- with effect from 01.02.2006. The other members of the said Committee were: 1. The other members of the said Committee were: 1. Principal Secretary to Government, General Administration Department; 2. Principal Secretary to Hon’ble Chief Minister; 3. Financial Commissioner, Home Department; 4. Financial Commissioner, Planning and Development Department. When such responsible officers (members of the Committee) have categorically recorded in the minute of the meeting that the APRs of the petitioner were assessed and he has been graded “very good” how could respondents now before this Court say that APRs were not available or that the same were incomplete. It appears that the minutes of the said High Level Committee have not been placed before the Review Committee which has recommended premature retirement of the petitioner. 19. Then again Establishment-cum-Selection Committee in its meeting held under the Chairmanship of Chief Secretary on 02.09.2008 considered case of the petitioner for filling the post in the Common Pool in the pay scale of 18400-22400. In the minutes it has been recorded as under: 1. The Committee was informed that the officer was clear from vigilance angle and that no criminal or departmental proceedings were pending against him; 2. The Committee assessed the service record of the officer and on the basis of performance and merit as reflected in his APRs found suitable for promotion to the common pool of posts. The Committee accordingly recommended the promotion of Shri S.A. Laherwal to the common pool of posts in the pay scale of Rs.18,400-22,400/ prospectively”. The other members of the said Committee were: 1. Commissioner/Secretary to Government, General Administration Department; 2. Principal Secretary to Government, Forest Department; 3. Principal Secretary to Government, Home Department; 4. Financial Commissioner, Planning and Development Department. 20. Based on the recommendations of said Establishment-cum-Selection Committee, the State Administrative Council took a decision on 24.09.2008, as a result whereof, Government order No.1268-GAD of 2008 dated 25.09.2008 was issued, in terms whereof sanction has been accorded to the promotion of Shri Shamim Ahmad Laherwal, Director, State Motor Garages (petitioner), to a Common Pool post in the pay scale of Rs.18400-22400/ with immediate effect and he has been re-designated as Director General, State Motor Garages. 21. In the year 2012, vide Government order No.238-GAD of 2012 dated 24.02.2012, petitioner has been posted as Director, Local Bodies, Kashmir. Then vide Govt. order No.1447-GAD of 2013 dated 10.10.2013, petitioner has been posted as Project Director, Rashtriya Madhyamik Shiksha Abhiyan. Again vide Govt. 21. In the year 2012, vide Government order No.238-GAD of 2012 dated 24.02.2012, petitioner has been posted as Director, Local Bodies, Kashmir. Then vide Govt. order No.1447-GAD of 2013 dated 10.10.2013, petitioner has been posted as Project Director, Rashtriya Madhyamik Shiksha Abhiyan. Again vide Govt. order No.98-GAD of 2015 dated 27.01.2015, petitioner has been posted as Director General, Libraries, J&K. 22. If the petitioner had a bad reputation, how could he have been given such important assignments. Said records appear not to have been placed before the Review Committee or that the Committee has ignored the same. When an onerous job is assigned to the Committee to weed out the deadwood, they were supposed to exercise great care while making any recommendation for premature retirement. Such a highly placed Review Committee constituted vide Government order No.17-GAD(Vig) 2015 dated 20.05.2015 consist of: 1. Chief Secretary - Chairman, 2. Principal Secretary to the Chief Minister - Member 3. Principal Secretary to the Government Home Department - Member 4. Commissioner/Secretary to the Government General Administration Department - Member-Secretary 5. Secretary to the Government, Department of Law, Justice & Parliamentary Affairs - Member should not have ignored the entire service record of the petitioner, more particularly APRs as referred to above, the decision of the High Level Committee promoting the petitioner to the post of Director, State Motor Garages, then again decision of the High Level Establishment Committee promoting the petitioner to the post of Director General, State Motor Garages and then giving him important postings as referred to above. Why they have ignored the same and how could they say that the petitioner did not possess good reputation. Wasn’t it a bounden duty for them to look into the aforesaid details of the service records of the petitioner. The laudable object of weeding out the deadwood has been misused. Least said about Committee is better. Rosy picture of the service record of the petitioner has been totally ignored, perhaps realizing that same will escape the focus of judicial lens. 23. Normally premature retirement so as to weed out deadwood is not interferable and the scope for intervention is very limited. When it is so, the authorities concerned entrusted with the job of weeding out the deadwood have to be more serious and cautious. Scope of judicial review is very limited but is not totally excluded. 23. Normally premature retirement so as to weed out deadwood is not interferable and the scope for intervention is very limited. When it is so, the authorities concerned entrusted with the job of weeding out the deadwood have to be more serious and cautious. Scope of judicial review is very limited but is not totally excluded. Fairness of action must be such which can withstand the test of judicial scrutiny. 24. At the first blush, when it is stated that the Government servant has become dead wood, indolent, corrupt, does not enjoy good reputation hence weeded out, it appears to be very attractive and encouraging. When looked into under judicial review, if emerges to be correct, same is appreciated but when on judicial scrutiny it is found to be only in the name of saying that the dead wood is weeded out by targeting a particular government servant, it becomes very shocking. After all, to judge a Government servant to be a dead wood is the domain of government authorities who are assigned the job of screening but they are supposed to be alert, their action must survive the judicial scrutiny. For holding that a particular Government employee is a bad person, there must be a solid foundation which is missing in the instant case. Nothing in that directing is forthcoming from the records. To say that a particular person is bad person without any solid foundation is sin. 25. The service record of the petitioner and the position of his promotion and posting, as referred to above, clearly suggest that an essential component for forming base so as to assess the actual position for invoking powers under Regulation 226(2) of CSR has been given go by. The recommendation and the consequent acceptance thereof, then the order of premature retirement is absolutely arbitrary so unsustainable. 26. Learned Single Judge has meticulously examined the record which was warranted because of the fact that the entire service record of the petitioner was not considered or was ignored by the Review Committee who recommended his premature retirement. The law referred to and relied upon by the learned Single Judge and the conclusions drawn, for the reasons recorded in the judgment impugned and for the reasons recorded hereinabove, do not call for any interference, so is upheld. 27. Viewed thus, appeal being devoid of merit is dismissed along with connected MP.