( 1 ) THIS is an appeal by the petitioner against the judgment and order dated April 5, 1968 passed by Durga Das Basu J. in Civil Rule No. 1938 (W) of 1966 discharging the Rule obtained by the petitioner. The facts relevant for our purpose are as follows: ( 2 ) THE petitioner was initially a Sub-Inspector of Police appointed in 1937. He was sent on deputation to the Special Police Establishment, Government of India, sometime in 1947. He worked there for sometime as Sub-Inspector and even as Officiating Inspector upto 20th October 1951. He was thereafter reverted to West Bengal Police in his substantive rank of Sub Inspector of Police a year thereafter and had been officiating as Inspector of Police from December 4, 1952. The petitioner's case was considered for confirmation in the post of Inspector in the conference of Inspector General of Police with Deputy Inspector General of Police according to the respondents and the petitioner's work was never found satisfactory and as a result he was never enlisted in the State approved list for his confirmation. ( 3 ) BY a notification dated August 3, 1959, gazetted status was conferred on Inspectors of Police of West Bengal. It further appears that some disciplinary proceedings were initiated against the petitioner as Proceeding No. 12 of 1962, Purulia, for gross misconduct and dereliction of duty. The said proceeding continued till January 21, 1965. In spite of best efforts the enquiry could not be completed and this was due to, according to the respondents, the dilatory tactics adopted by the petitioner. Thereafter another disciplinary proceeding was started against the petitioner, being Proceeding No. 20 of 1964 which was also not completed, according to the respondents, on account of the petitioner's dilatory tactics. According to the respondents, these two proceedings were thereafter merged in Proceeding No. 1 of 1965 and this proceeding also could not be completed for the reasons stated above according to the respondents. These proceedings were subsequently dropped and thereafter another proceeding was initiated, being Proceeding No. 12 of 1966. It appears that sometime on May 21, 1966, the petitioner served a demand of justice asking for his confirmation in the post of Inspector of Police. These proceedings were subsequently dropped and thereafter another proceeding was initiated, being Proceeding No. 12 of 1966. It appears that sometime on May 21, 1966, the petitioner served a demand of justice asking for his confirmation in the post of Inspector of Police. No reply was given to the said letter and by notice dated June 10, 1966 the petitioner was given notice that he would retire from service on his attaining the age of 55 years on and from December 13, 1966. The Proceeding No. 12 of 1966 was thereafter filed on 1. 12. 1966. ( 4 ) THE petitioner being aggrieved by the said order moved this Court under the Article 226 (1) of the Constitution praying for a writ in the nature of Mandamus canceling the said order of June 10, 1966 retiring the petitioner and for other reliefs. ( 5 ) THE petitioner's allegations were that throughout his service career he has been treated improperly by the authorities and though he had been officiating in the post of Inspector of Police since 4th December 1952 he was never confirmed. It was further stated that one proceeding after another was being taken against him to his great prejudice and harassment and none of the proceedings were completed but were filed only to be followed up by subsequent proceedings. As a result throughout his career of service he had been practically under the shadow of some disciplinary proceeding or other. The petitioner submitted that the order retiring him was malafide and was not in accordance with the rules and for quashing the said order he had moved this Court as already stated and obtained the above Rule. ( 6 ) THE respondents appeared and contested the Rule. All the material allegations made in the petition were denied by the respondents. It was stated that there was no malafide in the passing of the order of retirement and all the actions that were taken were in accordance with law and the extent Rules. For these reasons, it was submitted, the petitioner was not entitled to any relief to any relief. It appears that the respondents filed another supplementary affidavit to which we shall have occasion to refer. It may be mentioned here that the affidavits on behalf of the respondents have been affirmed by the Inspector General of Police himself, who had passed the impugned order retiring the petitioner. It appears that the respondents filed another supplementary affidavit to which we shall have occasion to refer. It may be mentioned here that the affidavits on behalf of the respondents have been affirmed by the Inspector General of Police himself, who had passed the impugned order retiring the petitioner. Then the petitioner filed affidavits in reply to those affidavits on behalf of the respondents reiterating his contentions and allegations made in the petition. ( 7 ) THE Rule came up for hearing before Durga Das Basu J. It was held that as the order of retirement was passed by the competent authority, the order was not in violation of Rule 75 Note (4) of the West Bengal Service Rules, nor was it in violation of clause (a), proviso of Rule 73. The learned Judge further found that the impugned order was also not in violation of Rule 77 of the West Bengal Services Rules 1964 and the impugned order was not malafide. For all these reasons it was held that the petitioner was entitled to no relief. The Rule was accordingly discharged. The present appeal is against this order. ( 8 ) MR. Tapendra Kumar Pal, learned Advocate for the petitioner, has contended, firstly that the order of retirement was issued by the Inspector General of Police who was not the competent authority. He submitted that by the confinement of gazetted status of the Inspector of Police the appointing authority became the State of West Bengal and the Inspector General of Police was no longer the appointing authority. We have seen the gazette notification, whereby the Inspector of Police were given the gazetted status but we have not been shown any rule whereby the appointing authority under the relevant Rule of the Police Regulations was altered by conferment of such status. Under Rule 858 of the Police Regulations the Inspector General of Police is the competent authority to dismiss any Police Officer of and below the rank of Inspector and this Rule is based on section 243 of the Government of India Act, 1935 and section 7 of Police Act, 1861 and there is no dispute in regard to the validity of the same. That being the position, we are of opinion that the Inspector General of Police was the appointing authority and was fully competent to pass the impugned order on the petitioner. Mr. That being the position, we are of opinion that the Inspector General of Police was the appointing authority and was fully competent to pass the impugned order on the petitioner. Mr. Pal has drawn our attention to another explanatory memorandum dated July 29, 1960 stating that in spite of conferment of gazetted on the Inspectors of Police, they will be continued to be governed by the existing provisions of the Police Act 1861 and the Police Regulations, 1943. This Memorandum, in our view, was really not necessary and was really a clarification, as in the absence of any other rules, the Inspectors of Police were continued to be governed by the said Police Regulations. It has also been rightly pointed out by the learned Judge that the statutory basis of these Regulations as indicated in the margin of such Regulation cannot be altered by mere administrative notification by the Government. In any event, there can be no dispute that the Inspector General of Police was the appointing authority of the petitioner, even as Inspector of Police. ( 9 ) MR. Pal next contended that under Rule 77 notwithstanding anything contained in the entire rule a Government servant against whom disciplinary proceedings are pending on a charge of misconduct cannot be retired until termination of the proceedings. The Rule provides that the date of termination of the proceedings shall be the date when the original orders of punishment or exoneration are passed. In this case, as we have seen, the petitioner was to retire on December 13, 1966 while the disciplinary proceedings were dropped on December 1, 1966. So, on the date the order of retirement was to take effect there was no disciplinary proceeding pending. Accordingly, in agreement with the learned Judge it must be held, as contended by Mr. Biswas, learned Advocate appearing for the respondents that Rule 77 has got no application. ( 10 ) MR. Pal has next contended that under rule 75 the Government servant can only be retired after he attains the age of 55 years, after giving at least three months' notice. Mr. Biswas, learned Advocate appearing for the respondents that Rule 77 has got no application. ( 10 ) MR. Pal has next contended that under rule 75 the Government servant can only be retired after he attains the age of 55 years, after giving at least three months' notice. Mr. Pal wanted to interpret that these three months' notice can only be given after the Government servant attains the age of 55 years, and in support of his contention he has referred to a decision in (1) Sri Vishwa Mitra v. State of Bihar and others, reported in AIR 1967 Pat 30 . On a careful consideration of the relevant provisions, it appears to us that a Government servant can be retired immediately after he attains the age of 55 years and it does not mean that the notice only can be given after he has attained the age of 55 years. The notice only requires three months' time and accordingly the notice can be served well ion advance before the age of retirement, the only condition being that the retirement can only take effect on completion of the age of 55 years. On his view, in agreement with the learned Judge, we are unable to accept the contention as made by Mr. Pal on this issue. ( 11 ) THE last contention urged by Mr. Pal is that the order was passed malafide and accordingly should be set aside, Under Rule 75 Note 4 clause (5) which has since been framed under Article 309 of the Constitution by the Governor it has been laid down that a Government servant with a satisfactory record of service should not be retired. Accordingly, it is obvious that in considering the question of retirement of a Government servant his service record forms an important factor for consideration. In this case it may be mentioned here that the allegations of malafide should not be bare allegations without any positive material and for this reason Mr. Biswas referred to the decision in (2) E. P. Royappa v. State of Tamil Nadu and Ors. , reported in 1974 (1) Services Law Reporter 497, and it has been observed therein at Page 534 as follow: ?we must not overlook that the burden of establishing malafide is very heavy on the person who alleges it. Biswas referred to the decision in (2) E. P. Royappa v. State of Tamil Nadu and Ors. , reported in 1974 (1) Services Law Reporter 497, and it has been observed therein at Page 534 as follow: ?we must not overlook that the burden of establishing malafide is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility?. It has been held that the right to retire of a public servant for public interest is an absolute power of the Government and its propriety is not justiciable in any court of law. There could be no dispute about the proposition, but such orders come under scrutiny if there are allegations of malafides or colourable exercise of powers, behind such orders even though they are free from violation of any statutory provisions. Such orders may be interfered with or are liable to be interfered if the allegations noted above are established or evident on materials on record in the absence of rebuttable evidence. ( 12 ) COMING now to the facts of this case, it will appear that on November 20, 1962 a disciplinary proceeding was initiated for misconduct, gross negligence and serious dereliction of duty. There were as many as eight charges and this proceeding is numbered as proceeding No. 12 of 1962 Purulia (hereinafter referred to as Annexure D Charges ). According to the respondents evidence on behalf of the prosecution was taken, but the proceedings could not be completed owing to the dilatory tactics of the petitioner. No materials or records have been placed before us to show how it was possible for the petitioner to frustrate an enquiry by the tactics alleged. ( 13 ) THEN again, on September 5, 1964 proceedings for misconduct and gross negligence of serious dereliction of duty was again started against the petitioner under three serious charges and the proceeding was numbered as Proceeding No. 20 of 1964 (hereinafter referred as Annexure G charges ). It does not appear from the record how far, if any progress is made in regard to this enquiry. But it appears that on September 10, 1965 both these proceedings were cancelled and filed. We have not been told the exact reasons which led to the filing of these proceedings. It does not appear from the record how far, if any progress is made in regard to this enquiry. But it appears that on September 10, 1965 both these proceedings were cancelled and filed. We have not been told the exact reasons which led to the filing of these proceedings. Again before these proceedings were dropped sometime in February 17, 1965, the disciplinary proceedings were initiated against the petitioner, being Proceeding No. 1 of 1965 (hereinafter referred as annexure H Charges ). These charges are the same as G Charges, though in his affidavit-in-opposition the Inspector General of Police has said that these proceeding was the combination of 'd' and 'g' Charges which is not correct. These proceedings were again filed on February 2, 1966 and we do not know the reasons thereto nor the progress that was made in that proceeding. ( 14 ) THE petitioner served a demand of justice in regard to his confirmation May 21; 1966 and in rely he was served with the impugned order of retirement on June 10, 1966. It would appear, according to the affidavit-in-opposition that this last Proceeding no. 12 of 1966 was started on June 1, 1966 an the 'd' charges framed again were repeated, which we have seen, were filed as early as September 10, 1965 and it may be of interest to note that these charges were framed, according to the respondents, as early as January 9, 1966, which were served on the petitioner as late as June 1966 and there is no reason to explain why for all these months this charges was kept pending in the records of service of the petitioner. After the notice of retirement was given, the last charge was again filed on December 1, 1966. ( 15 ) A recount of the proceedings would clearly show that the respondents were never serious in concluding the disciplinary proceedings stated against the petitioner. If the petitioner was recalcitrant there was enough power for the respondents to conclude the proceedings but that was not done and the result has been that throughout his career of service from June 1962 till almost the date of retirement the petitioner was under the dark shadow of disciplinary proceedings seriously prejudicing his career of service. If the petitioner was recalcitrant there was enough power for the respondents to conclude the proceedings but that was not done and the result has been that throughout his career of service from June 1962 till almost the date of retirement the petitioner was under the dark shadow of disciplinary proceedings seriously prejudicing his career of service. As we have already seen, under Sub-Rule (5) of Note 4 of Rule 75 of the West Bengal Service Rules, a Government servant with a satisfactory record of service could not be retired. If these proceedings were pending all these years and the petitioner was not confirmed in the officiating appointment which he was holding from December 12, 1952 nor reverted to his substantive post to a reasonable mind it would appear that for some reason or other not disclosed, the authorities were bent on keeping the disciplinary proceedings pending against the petitioner to his ultimate prejudice and loss. If the petitioner was found unsuitable in the officiating post which he was holding uninterruptedly from December 4, 1952, there was nothing to prevent the respondents to put him to his substantive grade. Further, by the imposition of the disciplinary proceedings one after another and one overlapping the other, withdrawing one after another for unknown reason and again commencing the same allegations for undisclosed reason, we have no doubt in our mind that the impugned order with which the petitioner was visited and made during pendency of last disciplinary proceeding was malafide and was meant for collateral purposes undisclosed to the court and it was not for public interest. For all these reasons, it is not possible for us to sustain this order of premature retirement of the petitioner passed by the Inspector General of Police, West Bengal in purported exercise of power under Rule 75 (a) proviso (i) and in disagreement with the trial court the said order must be set aside. ( 16 ) THE petitioner, it is told, has in the meantime attained the age of 58 years, so that we can only issue a Declaratory Writ stating that the order of retirement of the petitioner dated June 10, 1966 (Annexure 'n' to the petition) was mala fide. ( 17 ) IN the result, this appeal is allowed and the judgment and order under appeal are set aside and the Rule is made absolute. ( 17 ) IN the result, this appeal is allowed and the judgment and order under appeal are set aside and the Rule is made absolute. Let a Writ issue declaring that the impugned order dated June 10, 1966 (Annexure N to the petition) is mala fide. Let also a Writ issue quashing the same. Following the decisions in Saksena I. N. v. State of Madhya Pradesh, reported in 1967 (2) SCA 305 : AIR 1967 SC 1264 , it is declared that the petitioner will be entitled to such benefits as may accrue now to him by virtue of the success of the Writ petition. ( 18 ) THERE will be no order to costs. As prayed for by Mr. Lahiri, appearing for the respondents operation of this order will remain stayed for eight weeks from date. Ray J, I agree. Appeal allowed.