JUDGMENT : 1. Vide Government order impugned bearing No.906-GAD of 2015 dated 30.06.2015, in exercise of powers conferred by Regulation 226(2) of the Jammu and Kashmir Civil Service Regulations (hereinafter referred to as CSR), petitioner has been retired from service with effect from forenoon of 01.07.2015. The order impugned reads as under: Government of Jammu and Kashmir General Administration Department Civil Secretariat, Jammu/Srinagar Government Order No.906-GAD of 2015 Dated : 30-06-2015 Whereas the Government is of opinion that it is in public interest to do so. Now, therefore, in exercise of the powers conferred by Article 226(2) of the Jammu and Kashmir Civil Services Regulations, the Government hereby gives notice to Shri Parvez Ahmad Shah, Junior Engineer, PHE Division, Bandipora, that he having already rendered 22 years of service, shall retire from service w.e.f forenoon of 01/07//2015. He is allowed three months of pay and allowances in lieu of three months notice. By order of the Government of Jammu and Kashmir. Sd/- Commissioner/Secretary to the Government 2. Aggrieved thereof, instant petition has been filed wherein it is alleged that the petitioner was initially appointed as Sectional Officer vide Government order No.DC/PD/166 of 1984 dated 19.10.1984. For a long period of 31 years, he has served in various capacities and on the date impugned order was issued, he was working as Junior Engineer. It is also pleaded that he has all along served with utmost dedication, honesty and sincerity. He has been awarded certificate of merit on republic day 2013 as well as on the republic date, 2014 by District Development Commissioner, Bandipora and has been given a consolation prize on republic day 2015. In addition thereto, in the Annual Confidential Reports his performance has been appreciated and classified as “excellent” with the following break-up: APRs for the Year Rating 2009-2010 Excellent/good 2010-2011 Excellent/good 2011-2012 Excellent 2012-2013 Excellent 2013-2014 Excellent 2014-2015 Excellent/good 3. Petitioner has been given first and second grade promotion (in-situ) and then third grade promotion vide Chief Engineer PHE’s order No.51-PHE/Estt of 2014 dated 28.06.2014 but vide Government order dated 30.06.2015 impugned he has been given notice for compulsory retirement. Petitioner has been given first and second grade promotion (in-situ) and then third grade promotion vide Chief Engineer PHE’s order No.51-PHE/Estt of 2014 dated 28.06.2014 but vide Government order dated 30.06.2015 impugned he has been given notice for compulsory retirement. The grounds projected for quashing the impugned order, precisely, as projected are: (I) Impugned order is without any basis, therefore, is arbitrary and based on mala fides; (II) Regulation 226(2) of the CSR has been observed in breach because service record of the petitioner has not been considered which was imperative; (III) The tune and tenor of the impugned order is colourable. To fathom out true purport and colour of the impugned order, the veil has to be lifted; (IV) Registration of two criminal cases against the petitioner, until same end in conviction, could be made base for premature retirement. 4. The reply filed by respondent No.1 reveal that the government for providing clean and effective administration to the public is bound to have periodic review of all its officers with the object of encouraging honest and efficient government servants and simultaneously weed out inefficient and corrupt officers/officials in the public interest, therefore, recourse to Regulation 226(2) and (3) of CSR is a step in right direction. It is further pleaded that for effective implementation of Regulation 226(2) of CSR, vide Government order No.17-GAD (Vig) 2015 dated 20.05.2015, Committee of following officers was constituted; 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 for considering case of officers/officials for premature retirement. The Committee after having various deliberations and considering cases of officers/officials in the light of OM No.GAD(Vig) 19-Adm/2010 dated 25.10.2010 providing for screening of the record of the employees before making recommendation for premature retirement, considered the APRs but observed that the APRs are either not available or incomplete. 5. Member for considering case of officers/officials for premature retirement. The Committee after having various deliberations and considering cases of officers/officials in the light of OM No.GAD(Vig) 19-Adm/2010 dated 25.10.2010 providing for screening of the record of the employees before making recommendation for premature retirement, considered the APRs but observed that the APRs are either not available or incomplete. 5. The Committee in its meeting held on 26.06.2015 also considered the case of the petitioner and observed that: (1) He does not enjoy good reputation in the public due to his consistent conduct over a period of time; (2) The petitioner in league with others executed works on exorbitant rates as per opinion of the Engineering experts of the Vigilance Organization causing loss of Rs.42,33,143/- to the State exchequer while executing works related to NITs by manipulating records regarding which FIR No.21 P/S VOK for commission of offences under Section 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, Samvat 2006 and Section 468, 471, 120-B RPC, was registered and proved. The competent authority after according sanction for prosecution vide Government order No.14-GAD(Vig) of 2013 dated 11.02.2013 filed charge sheet (challan) (3) The petitioner while working as Liaison Officer to Executive Engineer had actually worked as Technical Officer who in normal course of business has to be Assistant Executive Engineer; (4) Petitioner has signed the documents which was the domain of the Technical Officer. (5) During investigation it was found that the petitioner had played a pivotal role in manipulation of records showing 189 works in so called Annexure “B” & “C” to NIT No.31, 32, 33 and 34 and paved way for allotting the works to the contractor on highly exorbitant rates. (6) The petitioner is alleged to have dishonestly and fraudulently drawn Rs.18.69/- lacs against different water supply schemes in Sub Division, Pulwama pertaining to which case FIR No.23/2010 P/S VOK has been registered. 6. The Committee taking note of the report furnished by PHE, I&FC Department dated 11.06.2015 to the effect that ACRs of the petitioner are not available and also taking note of the FIRs registered against the petitioner, observed that the petitioner has indulged in corrupt practices so has misappropriated government money by fraudulent means, as such, has outlived utility as Government servant. Finally, Committee came to the conclusion that the petitioner is generally known to have bad reputation and has misappropriated government money fraudulently, as such, has recommended his retirement under Regulation 226(2) of the CSR which has been accepted by the competent authority, as a result whereof, impugned order providing for retirement has been issued. 7. Regulation 226(2) of CSR has a laudable object. If positive steps are taken for betterment of the administration, for better services to the public and in the process any officer/official found to be a hurdle on the grounds of indolence, corruption, administrative disturbance etc. then for such a situation remedial provision i.e. Regulation 226(2) of the CSR has to be resorted to. Resort to such a provision has not to be arbitrary, baseless or tainted with malice. A strong foundation has to be laid for taking action under the said Regulation. 8. Premature or compulsory retirement has its own impacts not only on the officer/official but on his family as a whole, therefore, all pros and cons are required to be taken care of and in the process all the prescribed norms have to be meticulously followed. On completion of evaluation of the material, if an officer/official is found not satisfying the norms, then it shall be in the larger interests of the public to show him the exit door. Once a person has opted to take poison, he has to face the consequences and the family has to bear it. 9. 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. 10. 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. 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) 11. 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. 12. In the judgment rendered in the case of “S. Ramachandra Raju Vs. The record includes the entries in the confidential records/character rolls, both favourable and adverse. 12. 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.” 13. 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? 14. The petitioner has placed on record APRs for the below mentioned periods: (1) For the period 2009-2010, the Initiating officer i.e. Assistant Executive Engineer, PHE Sub Division, Budgam, as against columns of APR form has rated petitioner “good” and for integrity as “good”. The Reviewing Officer i.e. Executive Engineer, PHE Division, Budgam, has recorded his remarks as under:- “The official is a hard worker, knows his job. He is an excellent engineer”. The Accepting Officer i.e. Distt. Superintending Engineer, Hydraulic Circle, Budgam, has recorded as under: “Remarks of the Xen are endorsed in full”. (2) For the 2010-2011, the Initiating Officer i.e. Assistant Executive Engineer, PHE Sub Division, as against various items of APR form has rated him as “excellent” and “good”. For integrity he has been rated as “excellent”. The Reviewing officer has recorded his remarks as under: “He is an excellent engineer. He knows his job well and is a hard worker indeed”. The Accepting Authority i.e. Disttt. Superintending Engineer, Hydraulic Circle, Budgam, has recorded as under: “Remarks of Xen are endorsed in full.” (3) For the period 2011-12, again for integrity, he has been rated as “excellent” by the Initiating officer. The Reviewing and Accepting Authorities have not recorded any remark. He knows his job well and is a hard worker indeed”. The Accepting Authority i.e. Disttt. Superintending Engineer, Hydraulic Circle, Budgam, has recorded as under: “Remarks of Xen are endorsed in full.” (3) For the period 2011-12, again for integrity, he has been rated as “excellent” by the Initiating officer. The Reviewing and Accepting Authorities have not recorded any remark. (4) For the period 2012-2013, the Initiating Authority has rated him as “excellent” as against all entries including the integrity. The Reviewing Authority i.e. Executive Engineer, PHE, Division, Bandipora, has recorded as under: “The performance of the official has remained outstanding during this period.” The Accepting Authority i.e. Distt. Superintending Engineer Hydraulic, District has recorded as under: “Remarks of the Ex. Engineer are endorsed”. (5) For the period 2013-2014, the Initiating Officer against all items of APR form including integrity has rated the petitioner as “excellent” The Reviewing Officer i.e. Executive Engineer, PHE Hydraulic Division, Bandipora, has recorded as under: The performance of the official has remained quite satisfactory.” The Accepting Authority has recorded as under: “The remarks of the Xen are fully endorsed”. (6) For the period 2014-15, The Initiating Authority has rated the petitioner as “good” as against all columns except for integrity. For integrity, he has been rated as “excellent”. The reviewing Authority has recorded as under: “The performance has remained remarkable.” The Accepting Authority has recorded his remarks as under: “The remarks of the Xen are fully endorsed. However, the JE is hardworking, punctual and job knowing person. I wish him success in future.” 15. Said remarks have been recorded by the Accepting Authority i.e. District Superintending Engineer (Hydraulic) District Baramulla/Bandipora H.Q. Sopore, on 28.05.2015. 16. On 30th June, 2015, petitioner has been declared to be a deadwood, as such, weeded out by ordering his premature retirement. Now serious question which emerge for consideration is as to why these APRs for the period 2009 to 2015 have been ignored. Only two inference can be drawn, either these APRs have not been placed before the Screening Committee or the said Committee has deliberately ignored the same. To say in the reply that the APRs were not available gives rise to a million-dollar question. In the rely, it is nowhere said that the photocopies of the APRs as placed on record are fake or fraudulent. The genuineness of referred APRs has not been challenged. To say in the reply that the APRs were not available gives rise to a million-dollar question. In the rely, it is nowhere said that the photocopies of the APRs as placed on record are fake or fraudulent. The genuineness of referred APRs has not been challenged. Simply to say that the APRs were not available gives rise to so many inference, more particularly, it appears that these APRs have been deliberately withheld, perhaps realizing that such APRs would not persuade the Screening Committee to order premature retirement of the petitioner. The Initiating Officer, Reviewing Officer and the Accepting Authority are rating the petitioner as “excellent” and “good” and appreciable remarks have been recorded. On 28.05.2015, Accepting Authority has remarked that the petitioner is hardworking, punctual, job knowing and has wished him success in future, then what happened on 30th June, 2015, he has been prematurely retired. The entire service record of the petitioner, more particularly APRs, could give clear insight to the Screening Committee as to whether petitioner had become a deadwood to be weeded out. 17. APRs for the last five years have a meaning otherwise what is object of recording APRs. The immediate officers of the petitioner have a clear idea about functioning of the petitioner which they have reflected in the APRs. Either it can be said that they have committed some fraud but that is not the case set up by the respondents or it can be said that these officers have committed any mistake while recording APRs. Nothing in that directing is forthcoming from the records. Ignoring such APRs without any justified cause would suggest that the action of the Screening Committee recommending premature retirement is without any basis, as such, arbitrary. It shall be quite advantageous to quote para 41 of the judgment rendered by the Hon’ble Apex Court in the case captioned “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. 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. Noticing the importance of APRs, learned AAG was asked to produce the record of the Screening Committee so as to show on what basis they have formed opinion for recommending premature retirement of the petitioner. He has produced the photocopy of the record. In the record so produced what has been shown “the APRs were not available”. How the Screening Committee has formed opinion that in view of consistent conduct over a period of time, petitioner does not enjoy a good reputation in the public, is absolutely perverse. There is no supporting material for the same. Instead APRs for the period 2009 till 2015 present, a rosy picture, of the service record of the petitioner which has been totally ignored to the detriment and disadvantage of the petitioner. 19. Now the question is as to whether only on the basis of two criminal cases premature retirement was warranted. 20. From the judgment rendered by the Hon’ble Apex Court in the case of “State of Gujarat and another Vs. Suryakant Chunilal Shah” reported in (1991) 1 SCC 529. Paras 27 is advantageous to be quoted: “27. The whole exercise described above would, there for, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee. {Emphasis added} 21. The criminal cases are registered against number of officers/officials of the department. If it will be only yardstick for dealing with such officers/officials, then all such officers/officials will be prematurely retired. Applying the law as referred above, the nature of circumstances and the nature of the offences, then alleged commission of offences in the year 2009 and 2010 was to be looked into in the context of action proposed in the year 2015 which has not been done 22. Two cases have been registered against the petitioner, one FIR No.21/2009 P/S VOK and another FIR No.23/2010. Regarding FIR No.21/2009, Government has granted sanction for prosecution in the year 2013, as such, petitioner is facing trial for the same. In 2013 what is allegation against the petitioner is that he was a Junior Engineer but acted as a Technical Officer. In that capacity he had signed the papers and in the process allegedly some NITs were issued and in execution of works, loss has been caused to the State exchequer. The case is under trial. Regarding 2nd case, sanction for prosecution as yet has not been granted. 23. Allegations in the two criminal cases registered in the year 2009 and 2010 were to be read together with the entire service record, more particularly the APRs for the period 2009 to 2015 which has not been done. The case is under trial. Regarding 2nd case, sanction for prosecution as yet has not been granted. 23. Allegations in the two criminal cases registered in the year 2009 and 2010 were to be read together with the entire service record, more particularly the APRs for the period 2009 to 2015 which has not been done. In isolation of the service records, on the basis of the two criminal cases registered in the year 2009 and 2010, petitioner is retired in the year 2015, same is inconsistent with the norms adopted for premature retirement. 24. The APRs for the period 2009 to 2015, as referred above in para14, do not suggest that the petitioner did not enjoy good reputation. 25. In the final analysis, for the stated reasons, facts and the position of law as stated, petition is allowed. Order impugned bearing No.906-GAD of 2015 dated 30.06.2015 is set aside. Petitioner is directed to be re-instated forthwith and shall be paid all consequential service benefits. 26. Petition succeeds, shall stand disposed of as above.