C BABU Vs. JAYAKUMAR

JUDGEMENT

(1.) A question which has incidentally sprouted from this contempt proceeding is whether the application contemplated in Art.226(3) of the Constitution should necessarily be a numbered Civil Miscellaneous Petition. We have realised that further proceedings in this contempt matter would depend up the answer to the above question.

(2.) We shall presently state how the said question has surfaced to the fore in this case. A chauffeur in the Kerala Tourism Development Corporation (the petitioner now) has been counting the days ahead for the superannuation of his immediate senior (one Shri V.P. Kunhirama Kurup who will be referred to hereinafter as Shri Kurup) so that the petitioner would get promotion to the next grade (Head Chauffeur). The said exercise was founded on the hope that Shri Kurup would bow out of office on 30-4-1995 on attainment of 5 years of age. But his hopes went awry as the Government passed an order extending the period of service of Shri Kurup to the age of sixty in relaxation of R.60(a) of Part-I of the Kerala State and Subordinate Services Rules.

(3.) On 2-5-1995 the petitioner has filed an Original Petition in this Court under Art.226 of the Constitution for quashing the said Government Order. Petitioner also moved for an interim order of stay of operation of the extension granted to Shri. Kurup. On 5-5-1995 learned single Judge, before whom the Original Petition came up, passed an order: "Notice and interim stay". Shri Kurup, on receipt of notice of the original petition, had filed a counter affidavit on 8-5-1995. In the final portion of the counter affidavit Shri Kurup made the following prayer: "Under the circumstances it is most humbly prayed that the C.M.P. may be dismissed and the interim order of stay may kindly be vacated." Copy of the said counter affidavit was served on petitioner's counsel on 8-5-1995 itself. However, no further orders have been passed on the Civil Miscellaneous Petition till now. This is the first stage of the facts in this case.