Finding on preliminary objection

The petitioner is a citizen of India. He is a resident of Cochin lying within the jurisdiction of this court. He approached this court to vindicate what he called public interest. According to him, respondent No. 3 herein, who is unfit to hold the post of Director General of Police in the State, is sought to be appointed to that post by the Government of Kerala. He has sought the issue of a writ of mandamus directing the government not to appoint the third respondent as Director General of Police (Law and Order) and in the alternative, for a further direction to respondents 1 and 2 to comply with all the requisite formalities before appointing the third respondent. In the light of the allegation contained in the Original Petition this court admitted the Original Petition on 24.11.1993 directing the issue of urgent notice to the respondents. Urgent notice was ordered also on the application for interim direction made by the petitioner.

2. Respondent No. 3 entered appearance and filed a counter affidavit with a prayer that the question of the maintainability of the Original Petition under Art.226 of the Constitution may be considered and decided as a preliminary issue. The court having acceded to that prayer, the preliminary issue of the maintainability of the Original Petition was heard. Meanwhile the learned Advocate General had entered appearance on behalf of respondents 1 and 2. All were heard. This order is confined to that question and it is made clear that no other aspect is intended to be dealt with by this order,

3. Mr. M.R. Rajendran Nair, the learned counsel appearing for the third respondent submitted that the third respondent was an officer in the Indian Police Service. According to him the third respondent was the seniormost Additional Director General of Police in the State. Earlier he was suspended by the State Government and he appealed to the central Government questioning the said order of suspension. There was delay on the part of the central Government in dealing with the appeal. The third respondent therefore moved the central Administrative Tribunal, Ernakulam Bench (hereinafter called the Tribunal) complaining of the delay. The Tribunal directed the central Government to dispose of the appeal expeditiously. The central Government thereafter allowed the appeal and revoked the suspension of the third respondent. The State Government did not promote the third respondent. But during the period of suspension of the third respondent the State Government promoted one T.V Madhusoodanan, who was junior to the third respondent. The third respondent thereupon moved the Tribunal by O.A No. 766 of 1993 seeking appropriate reliefs on the allegation that the third respondent was entitled to be promoted at least from 29.4.1992. There was an interim direction by the Tribunal to the effect that for any position above the level of Inspector General of Police the third respondent also should be considered. The government issued orders promoting the third respondent as Additional Director General of Police with effect from 29.4.1992 and posted the third respondent as the Chairman and Managing Director of the Kerala Industrial Enterprises Limited. On 1.5.1993 ex-cadre post of the Director General of Police became vacant. According to the third respondent he should have been appointed in that post. Claiming that on Mr. Jayaram Padickal, the Director General of Police being posted as Chairman, Travancore Titanium Products, the post of Director General of Police had become vacant and he is entitled to be posted as Director General, the third respondent moved the Tribunal by O.A.No.1957 of 1993 praying for the issue of a direction to the State Government to appoint the third respondent to the rank of Director General of Police. It is clarified by Mr. M.R. Rajendran Nair that the third respondent did not ask for being posted as Director General of Police or Inspector General of Police (Law