( 1 ) THIS application has been filed to vacate the ex parte interim order dated 17-2-2003, passed by the Court in favour of the petitioner staying the operation of the impugned order dated 1-2-2003 by which the Principal of the college had passed the impugned order removing the petitioner from the post of the Head of the department.

( 2 ) FACTS and circumstances giving rise to this application are that petitioner had been removed from the post of the Head of the Department by the respondent No. 3 vide order dated 1st February, 2003 and this court vide order dated 17-2-2003 stayed the operation thereof. The applicant-respondent no. 3 filed an application on 12th March, 2003 to vacate the said order dated 17-2-2003. Petitioners counsel did not make any attempt to get the matter listed and at this stage we are considering the application dated 12th March, 2003. Learned counsel for the applicant has submitted that in view of the provisions of clause (3) of Article 226 of the Constitution if an application for vacating the ex parte interim order passed by the Court is not heard within a period of two weeks from the date of its filing, the interim order passed earlier stands vacated automatically, and therefore, this Court does not require to pass any formal order. Stay order passed earlier stands vacated by operation of law.

( 3 ) SUB-CLAUSE (3) of Article 226 of the constitution provides that if an interim order has been passed without giving an opportunity of being heard to the other side and the said party makes an application to the Court to vacate the interim order, the court should dispose of such application within two weeks from the date of its filing and if such application is not disposed of in the said stipulated period, the interim order shall stand vacated automatically on expiry of the stipulated period.

( 4 ) ISSUE involved herein came up for consideration before the Calcutta High Court in Krishna Kumar Agarwal v. Reserve Bank of India, AIR 1991 Cal 272, and after examining the entire scheme of the amendment act of the Constitution, the Court came to the conclusion that the provisions are mandatory and if the application for vacation of interim order is not disposed of within the stipulated period, the ex parte interim order shall automatically stand vacated. However, the Court further held that there is nothing in the constitutional provisions which prevents the Court to grant an interim order afresh after hearing the parties, if there are sufficient grounds to pass such fresh order. The Court further observed that interpreting the said provisions of the constitution as directory would be contrary to the intent of the legislature and the plain language of the statute does not suggest it. The court observed as under :". . . . . . . . INTERPRETING the provisions of the Constitution, inserted by a careful amendment thereof almost after three decades of the working of the Constitution and i must not construe any such provision as to render that provision almost meaningless with such clear word, staring at the face categorically providing for the consequences of non-compliance and enjoying that the interim order. . . . shall stand vacated. "

( 5 ) THE Court has further compared it with the provisions of Rules 3a of Order 39 of the Code of Civil Procedure inserted by the amendment Act of 1976 which provides that where an ex parte injunction is granted, the Court is duty bound to dispose of the application of interim relief within thirty days and if it is not so heard, the Court is under obligation to record the reasons for such inability. As the legislature did not put any such similar provision in Clause (3) of Article 226 and provides for a clear, specific categorical direction for automatic vacation of an ex parte interim order, it leaves an inescapable conclusion that the provisions of article 226 (3) are mandatory.

( 6 ) IN Gheesa Lal v. State of Rajasthan, air 1981 Raj 65, the same provision was held by Court to be

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