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PETITIONER: K.J. JOHN, ASSISTANT PUBLIC PROSECUTOR GRADE 1,PALAI ETC. ET

       Vs.

RESPONDENT: STATE OF KERALA & ORS. ETC. ETC.

DATE OF JUDGMENT12/07/1990

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KANIA, M.H.

CITATION:  1990 AIR 1902            1990 SCR  (3) 319  1990 SCC  (4) 191        JT 1990 (3)   163  1990 SCALE  (2)20

ACT:     Code  of Criminal Procedure, 1973: Section  24(6)--State Government  whether bound to appoint Public Prosecutors  and Additional  Public Prosecutors only from among persons  con- stituting    such    ’regular    cadre    of     prosecuting Officers’--Interpretation of.

HEADNOTE:     The  appellant  in  the civil appeal  was  an  Assistant Public  Prosecutor Grade I in the State of Kerala. The  writ petition under Article 32 of the Constitution has been filed by  the Uttar Pradesh Public Prosecutors’  Association  con- sisting  of the membership of Assistant Public  Prosecuters, including Prosecuting Officers, senior Prosecuting Officers, Deputy Director of Prosecution serving under the  Government of  Uttar Pradesh. In both the cases the controversy  raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint  Public Prosecutors  and  Additional Public  Prosecutors  only  from among the persons constituting such cadre in view of section 24(6) of the Code of Criminal Procedure, 1973, as amended by the Criminal Procedure Code (Amendment) Act of 1978.     The appellant’s writ petition filed in the High Court of Kerala  was dismissed. The High Court was of the  view  that the  provisions of sub-section (6) of section 24 could  have application  in respect of States where there was a  regular cadre  consisting of hierarchy of Prosecuting Officers  with the Assistant Public Prosecutor at he lowest rung and having at  the top level Additional Public Prosecutors  and  Public Prosecutors.  The High Court held that there was no  regular cadre  of Prosecuting Officers in the State of  Kerala  Com- prising  therein  Public Prosecutors and  Additional  Public Prosecutors. The High Court further observed that under  the Kerala  Government Law Officers (Appointment and  Conditions of  Service) and Conduct of Cases Rules, 1978 the  posts  of Public  Prosecutors and Additional Public  Prosecutors  were tenure  posts and as such the Assistant  Public  Prosecutors who were regular hands could not be appointed to the  tenure posts. 320     Before  this  Court it was contended on  behalf  of  the

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appellant/  petitioners  that Assistant  Public  Prosecutors Grade I and Grade II together constituted a cadre of  Prose- cuting  Officers so as to attract the applicability of  sub- section (6) of section 24 of the Code. It was urged that  in case the meaning to the expression "regular cadre of  Prose- cuting  Officers"  under sub-section (6) of section  24  was given as to consist of a regular cadre of Prosecuting  Offi- cers going upto Public Prosecutor at the top, then there was no benefit to such persons by enacting sub-sections (6)  and (9)  in  section  24, by the Amending Act of  1978.  It  was further  urged  that  there was no bar  for  appointment  of Assistant  Public Prosecutors against tenure posts as  offi- cers on deputation.     The  State  of U.P. in its counter has brought  out  the distinction  in these two kinds of posts in the  manner  and terms of their appointment, discharge of duties,  emoluments etc. It was further urged that in Uttar Pradesh there was no regular cadre of Prosecuting Officers within the meaning  of section 24(6) of the Code of Criminal Procedure and as  such the  petitioners were not entitled to appointment as  Public Prosecutors or Additional Public Prosecutors. Dismissing the appeal and the writ petition, this Court,     HELD:  (1) The intention of introducing sub-section  (6) and  the deeming fiction in sub-section (9) was in order  to safeguard the promotional rights of Prosecuting Officers  in such  of the States where there was already in  existence  a regular  cadre  consisting  of a  hierarchy  of  Prosecuting Officers going to the top level of Additional Public  Prose- cutors and Public Prosecutors. [334E-F]     (2)  The Kerala High Court was right in taking the  view that the expression "regular cadre of Prosecuting  Officers" comprised a service with Assistant Public Prosecutor at  the lowest  level and Public Prosecutors at the top. In  case  a regular cadre of Prosecuting Officers did not go upto Public Prosecutor  at  the top, the State Government could  not  be considered  as bound to appoint Public Prosecutor  or  Addi- tional Public Prosecutor only from among the persons consti- tuting  such cadre under the Code of Criminal Procedure  for conducting cases in the Sessions Court. [334G-H]     (3) It was within the competence of the State Government to  keep  such  posts of Public  Prosecutor  and  Additional Public  Prosecutor as tenure posts for some period based  on contract and not to make such 321 posts  as  regular or permanent under any service  rule.  In this view of the matter, till such posts were tenure  posts, to be filled on contract basis for some period, the  Assist- ant Public Prosecutors who were members of a regular service could  not  claim any right to be appointed  on  such  posts under sub-section (6) of section 24 of the Code of  Criminal Procedure. [33SA-C]     (4)  The  contention of the petitioners  that  Assistant Public Prosecutors can be appointed on such tenure posts  on deputation and may return back to their parent service after completion  of  the  period of such tenure  posts,  was  not acceptable. [335C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1101  of 1981.     On  appeal  by Certificate from the Judgment  and  Order dated 8.10.80 of the Kerala High Court in O.P. No. 1026/79E. WITH

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Writ Petition (Civil) No. 346 of 1988. (Under Article 32 of the Constitution of India).     M.K. Ramamurthi, G. Vishwanathan Iyer, Shiv Pujan Singh, N. Sudhakaran and K. Prasantha for the Appellants.     Anil  Dev  Singh, P.S. Poti, Ms. Mukta Sharma,  Mrs.  S. Dikshit, K.R. Nambiar for the Respondents. The Judgment of the Court was delivered by     KASLIWAL, J. As identical questions of law are  involved in both the above cases, they are disposed of by one  single order.     Civil  Appeal No. 1101 of 1981 is directed  against  the Judgment of High Court of Kerala at Ernakulam dated  October 8,  1980.  The High Court has granted  a  certificate  under Article 133(1) of the Constitution of India certifying  that the  case involved a substantial question of law of  general importance consisting the interpretation of Sub-section  (6) of Section 24 of the Code of Criminal Procedure, 1973. The  Writ Petition under Article 32 of the Constitution  has been 322 filed  by the Uttar Pradesh Public Prosecutors’  Association consisting  the membership of Assistant Public  Prosecutors, including Prosecuting Officers, Senior Prosecuting Officers, Deputy Director of Prosecution serving under the  Government of  Uttar Pradesh. Petitioner No. 2 is the President of  the Association.  In  both the cases the controversy  raised  is that  there exists a regular cadre of  Prosecuting  Officers and as such the State Government is bound to appoint  Public Prosecutors  and  Additional Public  Prosecutors  only  from among the persons constituting such cadre in view of Section 24(6) of the Code of Criminal Procedure, 1973.     In  order  to appreciate the controversy,  it  would  be necessary to give the background of the law and rules relat- ing  to the appointment of public prosecutors.  Sections  24 and 25 of the Code of Criminal Procedure, 1973 correspond to Section 492 of the Old Code and deal with the appointment of Public  Prosecutors, Additional Public Prosecutors,  Special Public  Prosecutors and Assistant Public Prosecutors.  Under the Old Code there could be any number of Public Prosecutors appointed by the Central Government or by the State  Govern- ment or by the District Magistrate or by the  Sub-Divisional Magistrate  subject  to the control of the  District  Magis- trate.  Under  Section 495 of the Old  Code  any  Magistrate enquiring into or trying a case could permit the prosecution to be conducted by any person who may do so personally or by a pleader. In the courts of Magistrates the prosecution  was conducted  generally  by Police Officers or by  persons  re- cruited  from the Bard styled as Police Prosecutors  or  As- sistant  Public  Prosecutors all of whom  worked  under  the directions of the Police Department. Moreover, no qualifica- tion  was laid down in the old Code for the Advocates  being appointed  as Public Prosecutors. In Section 24 of  the  new Code  for the first time such detailed provisions have  been made. In Section 24 as originally framed there were only two categories of public prosecutor--(1) those appointed by  the Central  or  State Government under this  Section,  and  (2) those engaged by the Public Prosecutor to act under his  own direction,  vide  Section 2(U). Provision was also  for  the first time made for appointment of Public Prosecutor in  the High Court for conducting any prosecution in the said  court on behalf of the Central Government or the State  Government by the concerned Government after consultation with the High Court.  The appointment of Public Prosecutor  or  Additional Public Prosecutor of the State Government in every  District could  be made only from the panel of names of  the  persons

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prepared  by the ,District Magistrate in  consultation  with the Sessions Judge. It was for the first time provided  that in  the case of Public Prosecutor and the Additional  Public Pro- 323 secutor  he  should be an Advocate of not  less  than  seven years standing at the Bar and in the case of Special  Public Prosecutor  the standing at the Bar should not be less  than 10 years.     The original Section 24 has been amended by the Criminal Procedure Code (Amendment) Act of 1978 (hereinafter referred to  as the Amending Act of 1978) w.e.f. 18th December,  1978 and  a new Section 24 has been substituted for the  original Section 24. It would be necessary to reproduce Section 24 as it stood in the original Code of Criminal Procedure, 1973 as well as Section 24 which stood after the Criminal  Procedure Code (Amendment) Act, 1978.     Section  24 of the Code as it stood prior to the  amend- ment  introduced by the Code of Criminal  Procedure  (Amend- ment) Act, 1978, reads as under: "24.  Public  Prosecutors--(1)  For every  High  Court,  the Central  Government  or the State  Government  shall,  after consultation with the High Court, appoint a Public  Prosecu- tor  for conducting, in such court, any prosecution,  appeal or  other proceeding on behalf of the Central or State  Gov- ernment, as the case may be. (2) For every district the State Government shall appoint  a Public Prosecutor and may also appoint one or more Addition- al Public Prosecutors for the district. (3) The District Magistrate shall, in consultation with  the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the public prosecutor or Additional Public Prosecutor for the District. (4) No person shall be appointed by the State Government  as the  Public Prosecutor or Additional Public  Prosecutor  for the  district unless his name appears on the panel of  names prepared by the District Magistrate under subsection (3). (5)  A  person shall only be eligible to be appointed  as  a Public  Prosecutor or an Additional Public Prosecutor  under sub-s. (1) or sub-section (2), if he has been in practice as an advocate for not less than seven years. 324 (6)  The  Central  Government or the  State  Government  may appoint, for the purposes of any case or class of cases,  an advocate  who  has been in practice for not  less  than  ten years, as a Special Public Prosecutor" The  Section as amended by the Amendment Act, 1978 reads  as under: "24.  Public Prosecutors--(1) For every High Court the  Cen- tral Government or the State Government shall, after consul- tation with the High Court, appoint a Public Prosecutor  and may also appoint one or more Additional Public  Prosecutors, for  conducting  in such court, any prosecution,  appeal  or other  proceeding  on behalf of the  Central  Government  or State Government, as the case may be. (2)  The Central Government may appoint one or  more  Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Addition- al Public Prosecutors for the district. Provided  that  the Public Prosecutor or  Additional  Public Prosecutor appointed for one district may be appointed  also to  be a Public Prosecutor or an Additional Public  Prosecu- tor, as the case may be for another district.

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(4) The District Magistrate shall, in consultation with  the Sessions  Judge,  prepare a panel of names of  persons,  who are, in his opinion, fit to be appointed as Public  Prosecu- tors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government  as the  Public Prosecutor or Additional Public  Prosecutor  for the  district unless his name appears in the panel or  names prepared by the District Magistrate under subsection (4). (6)  Notwithstanding  anything  contained  sub-section  (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government shall appoint a Public Prose- cutor or an Additional Public Prosecutor only from 325 among the persons constituting such cadre:         Provided  that  where, in the opinion of  the  State Government,  no suitable person is available in  such  cadre for such appointment that Government may appoint a person as Public  Prosecutor or Additional Public Prosecutor,  as  the case  may be, from the panel of names prepared by  the  Dis- trict Magistrate under sub-s. (4). (7)  A person shall be eligible to be appointed as a  Public Prosecutor or an Additional Public Prosecutor under  subsec- tion (1) or sub-section (2) or sub-section (3) or subsection (6), only if he has been in practice as an advocate for  not less than seven years. (8)  The  Central  Government or the  State  Government  may appoint,  for the purposes of any case or class of cases,  a person who has been in practice as an advocate for not  less than ten years as a Special Public Prosecutor. (9) For the purposes of sub-section (7) and sub-section (8), the  period during which a person has been in practice as  a pleader,  or has rendered (whether before or after the  com- mencement of this code) service as a Public prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecu- tor  or other Prosecuting Officer, by whatever name  called, shall  be deemed to be the period during which  such  person has been in practice as an advocate".     A  perusal of the above provisions would show  that  the changes  that  have  been introduced in Section  24  by  the Amending Act of 1978 are the addition of the new  provisions now  contained  in sub-section (2), proviso  to  sub-section (3),  sub-section (6) and sub-section (9). The main  contro- versy put forward hinges on the new provision now  contained in sub-s. (6) of Section 24. The contention raised on behalf of  the  petitioners is that sub-section (6) of  Section  24 introduced by amendment clearly lays down that notwithstand- ing  anything contained in sub-section (5) where in a  State there exists a regular cadre of Prosecuting Officers (empha- sis added), appointment to the post of Public Prosecutor  or Additional  Public  Prosecutor shall be made  by  the  State Government  only  from among the persons  constituting  such cadre. So  far  as the State of Kerala is concerned,  it  has  been contended 326 on behalf of the appellant that the appointment of Assistant Public  Prosecutors  was  governed by  the  Statutory  Rules framed  under Article 309 of the Constitution.  These  Rules were  published  on 7th September, 1962 and dealt  with  the posts of Legal Advisor to the vigilance division. Additional Legal Advisor to the Vigilance division and Assistant Public Prosecutors Grade I & II. As regards Assistant Public Prose- cutors Grade I, the appointment was to be made by  promotion from  Assistant  Public Prosecutor Grade II. So far  as  the Assistant  Public  Prosecutor  Grade II  is  concerned,  the

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appointment  was  to be made by direct recruitment.  It  was pointed  out that under the above rules for  appointment  as Assistant  Public  Prosecutor Grade II a candidate  was  re- quired  to be a member of the Bar having not less  than  two years active practice in criminal courts. After selection he was  to  be  kept on probation for two years  and  was  also required  to undergo a training for a period of six  months. It was also pointed out that District was considered as unit for the appointment of Assistant Public Prosecutors Grade II and  so  far  as Assistant Public Prosecutors  Grade  I  are concerned  they  belonged to the State Cadre.  It  was  thus urged  on  behalf of the appellant that a regular  cadre  of Prosecuting Officers in the State of Kerala was existing and in  this  view  of the matter the appointment  of  a  Public Prosecutor  or  Additional Public Prosecutor could  only  be made  from  amongst the persons constituting such  cadre  as envisaged under sub-section (6) of Section 24 of the  Crimi- nal Procedure Code after amendment.     It may be pointed out at this stage that Sh. K.J.  John, Assistant Public Prosecutor Grade I filed a writ petition in the  High Court of Kerala and a Division Bench  by  Judgment dated  5th  October, 1980 dismissed the writ  petition.  The High  Court considered the meaning and scope of the  expres- sion  "regular  cadre of Prosecuting Officers"  occuring  in sub-section (6) of Section 24 of the Code. According to  the High Court sub-section (9) of Section 24 provided a clue  to the  intention of the Parliament in using the  said  expres- sion.  It held that from sub-section (9) it would  be  clear that the expression "Prosecuting Officers" has been used  in sub-section  (6) as meaning any persons holding the post  of Public  Prosecutor, Additional Public Prosecutor,  Assistant Public Prosecutor or any other Prosecuting Officer by  what- ever  name  called. Thus in the opinion of the  High  Court, sub-section  (6) contemplated a prerequisite  condition  for its applicability the existence of a regular cadre  consist- ing of officers holding all the aforementioned posts with  a regular  framework of service consisting of a  hierarchy  of such officers. The provisions of sub-section (6) of  Section 24  can,  therefore, have application in respect  of  States where there is a 327 regular  cadre  consisting  of a  hierarchy  of  Prosecuting Officers with the Assistant Public Prosecutor at the  lowest rung and having at the top level Additional Prosecutors  and Prosecutors. According to the High Court admittedly no  such cadre of such officers existed in the State of Kerala and as such  there  was no question of applying the  provisions  of sub-section (6) of Section 24.     It  may  also be pointed out that the  High  Court  also noticed  the  provisions of Kerala Government  Law  Officers (Appointment and Conditions of Service) and Conduct of Cases Rules,  1978 which dealt with the method of  appointment  of Government  Law  Officers at District Court  level  and  the duration of their appointment. These Rules specifically laid down that Government Law Officers at District Court Centres, Additional  District  Court  Centres,  inclusive  of  Public Prosecutors  and  Additional Public Prosecutors were  to  be appointed  by the Government from a panel of advocates  fur- nished  by  the District Collector who was to  prepare  such panel in consultation with the District and Sessions  Judge. The  appointment of a person as Public Prosecutor  or  Addi- tional  Public Prosecutor shall only be for a term of  three years.  The High Court considered that the posts  of  Public Prosecutors  and  Additional Public  Prosecutors  under  the above  Rules  were tenure posts and as  such  the  Assistant

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Public Prosecutors who were regular hands cannot be appoint- ed to the tenure posts. The High Court ultimately, held that there  was no regular cadre of Prosecuting Officers  in  the State  of Kerala comprising therein Public  Prosecutors  and Additional Public Prosecutors.     Learned  counsel  appearing on behalf of  the  appellant K.J.  John in Civil Appeal No. 1101 of 1981  contended  that under the Old Code the qualification and method of  appoint- ment  for Public Prosecutors did not require  any  condition for  a candidate to be an advocate. In order to remove  such unsatisfactory state of affairs the Legislature provided the qualification and the method of appointment of Public Prose- cutors and Additional Public Prosecutors by making elaborate provisions  in  Section 24 of the Criminal  Procedure  Code, 1973.  Under Section 24, as it stood before the 1978  amend- ment, provision was made for appointment of Public  Prosecu- tors and Additional Public Prosecutors from a panel of names of  advocates  to be submitted by  the  District  Magistrate inconsultation with the Sessions Judge to the State  Govern- ment. A provision was made for the first time that a  period Of  seven  years of practice at the Bar  was  necessary  for appointment  of  Public Prosecutors  and  Additional  Public Prosecutors. 328     It was further contended that this scheme of appointment of Public Prosecutors and Additional public Prosecutors  was again  found to be unsatisfactory because the  selection  of persons  for for appointment as Public Prosecutors from  the Bar was not found to be satisfactory. Further the  Assistant Public Prosecutors with required experience and ability  and who  were amenable to the disciplinary jurisdiction  of  the Government  and  had no avenues of  promotion,  were  denied promotion  as Public Prosecutors. The Legislature wanted  to rectify  this  defect  and, therefore,  amended  Section  24 suitably  to promote Assistant Public Prosecutors as  Public Prosecutors  and Additional Public Prosecutors at  the  Dis- trict level. The amendment in Section 24 by Amending Act  of 1978 was thus made with the above purpose and intention.  It was thus contended that under sub-section (6) of Section  24 introduced  by the amendment, it was never intended  to  in- clude the posts of Public Prosecutors and Additional  Public Prosecutors  within the expression "exists regular cadre  of Prosecuting  Officers". It was urged that the regular  cadre of  Prosecuting Officers as mentioned in sub-section (6)  of Section 24 is dehors the cadre of Public Prosecutors/  Addi- tional Public Prosecutors otherwise sub-section (6)  becomes meaningless. It was thus submitted that the High Court  com- mitted an error in construing the expression "regular  cadre of Prosecuting Officers" to comprise a service with  Assist- ant Public Prosecutor at the lowest level and Public  Prose- cutor  at  the  top. If Public  Prosecutors  and  Additional Public  Prosecutors are necessary in the existing  cadre  as interpreted by the High Court then there was no question  of granting any benefit by the Legislature by introducing  sub- section (6) in Section 24 by way of amendment.     It was next contended that the High Court  misunderstood the -scope of sub-section (9). A combined reading of sub-ss. (6),  (7) & (9) is necessary to understand the intention  of the  Legislature. According to the learned counsel  sub-sec- tion (6) provided for appointment of Public Prosecutors from a  regular  cadre of Prosecuting  Officers,  subsection  (7) provided  that  a person to be eligible for  appointment  as Public Prosecutor must have been in’ practice as an advocate for not less than seven years and therefore sub-section  (9) was  necessary  to  create the fiction that  the  period  of

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service  as a Public Prosecutor or as an  Additional  Public Prosecutor or Assistant Public Prosecutor or other Prosecut- ing Officer, by whatever name called, shall be deemed to  be the period during which such person has been in practice  as an  advocate. As regards the reason given by the High  Court that  the post of’ Public Prosecutor and  Additional  Public Prosecutor  were tenure post.s for three years, it was  sub- mitted by learned counsel for appellant 329 that  the  Kerala Government Law Officers  (Appointment  and Conditions  of Service) and Conduct of Cases Rules, 1978  as notified in the Kerala Gazette No. 25 dated 20th June,  1978 was made before the coming into force of the Criminal Proce- dure Code (Amendment) Act, 1978 on December 18, 1978. It was thus contended that the above Kerala Rules making the  posts of  Public Prosecutors and Additional Public Prosecutors  as tenure  posts  cannot  stand in the face of  Section  24  of Criminal Procedure Code after Amendment Act of 1978. In  the alternative it was also contended that even if the posts  of Public  Prosecutors  and Additional  Public  Prosecutors  in Kerala may be allowed to continue as tenure posts, there  is no  bar for appointment of Assistant Public  Prosecutors  on such posts. The Assistant Public Prosecutors will be in  the same  position as officers on deputation and will come  back to their parent posts after the period of such tenure  posts is over. It is contended that this cannot be considered as a circumstance  or  a ground to construe  sub-section  (6)  of Section  24  to mean that the expression "regular  cadre  of Prosecuting  Officers" does not enable the Assistant  Public Prosecutors to claim appointment as Public Prosecutor.     Learned  counsel appearing on behalf of the  petitioners in  the Writ Petition have also made identical arguments  as made  in the Kerala case. The State of U.P. in  its  counter affidavit  has  pointed out that the  cadre  of  Prosecuting Officers  working in lower district courts in criminal  side is wholly different and it cannot include Public Prosecutors who  work  exclusively  on contract basis  in  the  Sessions Courts.  Assistant Prosecuting Officers are appointed  under Section  25 of the Code of Criminal Procedure.  After  1980, the  Assistant Prosecuting Officers have been  appointed  by the State Government through the Public Service  Commission, on  the basis of competitive written examination and  inter- view of Law Graduates. On the other hand Public  Prosecutors are  appointed  in  terms of  professional  contracts  under Section 24(4) and 24(5) of the Code of Criminal Procedure. A panel of names of advocates with seven years working experi- ence is prepared by the District Magistrate in  consultation with  the District & Sessions Judge and sent to Law  Depart- ment  of the State Government for approval. Public  Prosecu- tors  are  thus  appointed by the Law  Department  of  State Government,  whereas  Assistant  Prosecuting  Officers   are appointed by the Home Department of the State Government  as regular  Government servants. It has been further  submitted in the reply that Assistant Prosecuting Officers are regular Government  servants and they get monthly salary  and  other allowances  as admissible to other regular Government  serv- ants.  The  services of Assistant Prosecuting  Officers  are pensionable, while Public Prosecutors are 330 appointed purely on the basis of contract, on a fixed  fees. Assistant Public Prosecuting Officers work under the  admin- istrative  control of Home Department and  Director  General (Prosecution)  is  Head of the Prosecution  Department.  The work  and performance Of Public Prosecutors is  assessed  by the  District Magistrate at the District level and they  are

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controlled by the Law Department of the State Government. It has  been further submitted in the reply that the  Assistant Prosecuting  Officers  main work is to  prosecutre  criminal cases  in the lower District Courts i.e. courts of  Judicial Magistrates, Chief Judicial Magistrate, Metropolitan  Magis- trates, Chief Metropolitan Magistrates, Munsif  Magistrates, Executive  Magistrates,  District  Magistrates  and  special Courts  under  the Terrorist Act and the Gangster  Act.  The Assistant  Prosecuting  Officers  also  help  the  Executive Magistrate  to  conduct  the identification  of  accused  in criminal  cases and also report on bail applications of  the accused.  Assistant  Prosecuting  Officers  also  check  the records of Sessions cases before their committal to Sessions Court  and they also deal with the finger print  branch  and Malkhana of case properties. They are Legal Advisors of  the Superintendents of Police in matters pertaining to  investi- gation.  The Public Prosecutor’s main work is  to  prosecute the criminal cases in the Sessions Courts.     The  State Government in its counter affidavit has  fur- ther  given  the following chart showing the  hierarchy  pay scales and strength of cadre: ---------------------------------------------------------- Name of Post   Pay scale    Permanent Temporary.Total No.                                                 of Posts ----------------------------------------------------------- Joint Director    Rs. 1840-2400   -        1      1 Legal Joint Director    Rs. 1840-2400   -        1      1 (Admn.) Dy. Director     Rs. 1250-2050    5        6     11 Sr. Prosecuting   Rs. 1250-2050   -       17     17 Officer (Gr. I) Sr. Prosecuting   Rs. 850.1720   13       70     83 Officer (Gr. II) Prosecuting      Rs. 770-1600   84       114    198 Officer 331 Asstt. Prosecuting Rs. 625-1240   704    174    878 Officer ------------------------------------------------------------     As against the aforesaid cadre and pay scales the Public Prosecutors  are retained on monthly fees/daily fees as  the case  may  be. They are paid library  allowances  also.  The rates in their cases have been indicated as under: ------------------------------------------------------------                                      Monthly   Library                                      Fees      Allowance (1) Public Prosecutor/District       Rs.2700   Rs.300  Govt. Counsel (Gr.) (2) Additional Public Prosecutor     Rs.2550   Rs.250   Gr. I/Addl. District Govt.   Counsel (Gr.) (3) Addl. Public Prosecutor          Rs. 1800  Rs.200   Gr. II/Asstt. Distt. Govt.   Counsel (Gr.) (4) Addl. Public Prosecutor          Rs. 50   as daily fees. Gr. III ------------------------------------------------------------     It  has  been further submitted in the  reply  that  the petitioners  have several promotional avenues in  their  own cadre  and  cannot claim any post outside  their  cadre.  In Uttar  Pradesh  there  is no regular  cadre  of  Prosecuting Officers within the meaning of Section 24(6) of the Code  of Criminal  Procedure  and  as such the  petitioners  are  not entitled to appointment as Public Prosecutors or  Additional

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Public  Prosecutors  in Sessions Courts. It  has  also  been pointed out that at present the total strength and posts  of Assistant Prosecuting Officers is 878 out of which 66 1 have been  filled  and the rest are vacant. The total  number  of posts  of Prosecuting Officers is 198 out of which 191  have been filled up and the rest are vacant. At present the posts of  Senior  Prosecuting  Officer Gr. II & I are  83  and  17 respectively.  Thus there is ample opportunity of  promotion open to the petitioners.     The main controversy hinges on the scope of  sub-section (6) of Section 24 and specially the words "regular cadre  of Prosecuting  Officers" existing in this provision. Prior  to coming  into force of the Code of Criminal Procedure,  1973, the Prosecuting Officers were under the 332 control  of Police Department. It-was not necessary at  that time that the Public Prosecutor or Additional Public  Prose- cutor should have any experience as an advocate. In order to remove such unsatisfactory state of affairs, the Legislature made  an  elaborate provision under Section 24 for  the  ap- pointment of Public Prosecutors and Additional Public Prose- cutors  in  the Criminal Procedure Code,  1973.  Under  this provision it was laid down that practice as an advocate  for not  less than seven years was necessary for appointment  of Public  Prosecutor and Additional Public  Prosecutor.  After sometime,  it  was considered by the  Legislature  that  the above provision does not take into consideration the working experience  of Prosecuting Officers and pleaders for  eligi- bility  for appointment as Public Prosecutor and  Additional Public Prosecutor. The Legislature as such substituted a new Section  24 by the Criminal Procedure Code (Amendment)  Act, 1978  brought into force w.e.f. 18th December,  1978.  Under sub-section (9) of this new Section 24 it was provided  that the  period during which a person has been in practice as  a pleader,  or has rendered service as a Public Prosecutor  or as  an  Additional  Public Prosecutor  or  Assistant  Public Prosecutor  or other Prosecuting Officer, by  whatever  name called,  shall be deemed to be the period during which  such person  has been in practice as an advocate. This  provision thus granted benefit of the period of service to the persons mentioned  in the above provision and by a  deeming  fiction such  period  of  service was considered as  the  period  in practice  as an advocate. Thus the above provision made  the Prosecuting  Officers such as Public Prosecutor,  Additional Public  Prosecutor,  Assistant Public  Prosecutor  or  other Prosecuting Officer, by whatever name called, also  eligible for  being included in the panel to be prepared by the  Dis- trict Magistrate in consultation with the Sessions Judge fit to  be appointed as Public Prosecutors or Additional  Public Prosecutors for the district.     In  this background we have to understand the  scope  of subsection (6) of Section 24 which gives a clear mandate  to appoint a Public Prosecutor or an Additional Public Prosecu- tor  only  from amongst the persons constituting  a  regular cadre  of Prosecuting Officers. According to this  provision any  person  from  the advocates or from  any  other  source cannot be appointed as a Public Prosecutor or an  Additional Public Prosecutor if there already exists a regular cadre of Prosecuting  Officers in a State. So far as the  proviso  to sub-section  (6)  of Section 24 is concerned  it  would  not apply in the normal circumstances and would only be attract- ed where in the opinion of the State Government no  suitable person  is  available in such regular cadre  of  Prosecuting Officers for appointment as Public Prosecutor or Addi- 333

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tional  Public Prosecutor. Admittedly the regular  cadre  of Prosecuting  Officers in the State of Kerala as well  as  in the  State of U .P. does not include Public  Prosecutors  or Additional Public Prosecutors. The case of the appellants is that Assistant Public Prosecutors Gr. I and Gr. II  together constitute a cadre of Prosecuting Officers so as to  attract the  applicability of sub-section (6) of Section 24  of  the Code. It has been contended on their behalf that unless  the Government  formed  the requisite opinion that  no  suitable person  is  available in the said cadre for  appointment  as Public  Prosecutor  or  Additional  Public  Prosecutor,  the appointments  to the posts of Public Prosecutor,  and  Addi- tional  Public  Prosecutor  can be made  only  from  amongst persons  holding the posts of Assistant  Public  Prosecutors Gr. I & Gr. II.     A  combined reading of sub-section (6)  and  sub-section (9)  of  Section  24 gives a clue to the  intention  of  the Legislature  in  determining  the scope  of  the  expression "regular  cadre of Prosecuting Officers" occurring  in  sub- section  (6). The intention of introducing  sub-section  (6) and  the deeming fiction in sub-section (9) was in order  to safeguard the promotional rights of Prosecuting Officers  in such  of  the  States where there is  already  in  existence regular  cadre  consisting  of a  hierarchy  of  Prosecuting Officers going to the top level of Additional Public  Prose- cutors  and Public Prosecutors. In Sub-sectiOn (9)  the  ex- pression  "Prosecuting Officers" has been used as taking  in any persons holding the post of Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by  what- ever name called. Sub-section (6) independently can grant no benefit  to  the Prosecuting Officers unless the  clause  of deeming  fiction  contained in sub-section  (9)  makes  them eligible  for appointment1 as a Public Prosecutor  or  Addi- tional  Public  Prosecutor. Sub-section (9)  clearly  speaks with  regard to the service rendered as a Public  Prosecutor or  as  Additional Public Prosecutor,  or  Assistant  Public Prosecutor  or other Prosecuting Officer, by  whatever  name called  to  be counted as the period as if such  person  had been in practice as an advocate for the purposes of  subsec- tion (7) & sub-section (8). Thus we are clearly of the  view that the expression "regular cadre of Prosecuting  Officers" contained  in subsection (6) of Section 24 must  comprise  a regular cadre of Prosecuting Officers going up to the  level of  Additional Public Prosecutor and Public  Prosecutor.  It may be important to note that so far as the State of  Kerala is  concerned  under Rule (5) of the Kerala  Government  Law Officer (Appointment & Conditions of Service) and Conduct of Cases Rules, 1978, it has been stated that the Legal Advisor to the Vigilance Department, Additional Legal Advisor to the Vigilance  Department and Assistant Public Prosecutor Gr.  I shall belong to the State Cadre 334 in the sense that for the purpose of appointment, probation, seniority, discharge of probationers and approved probation- ers for want of vacancy, the State shall be the unit whereas in  the  case  of Assistant Public Prosecutor  Gr.  II,  the District concerned shall be the unit for all such  purposes. Thus  if  we take the argument of learned  counsel  for  the appellant  to  its logical conclusion, the result  would  be that  in  a State if there existed a  cadre  of  Prosecuting Inspectors or Assistant Public Prosecutors only in that case also  the State Government would be bound to appoint  Public Prosecutor and Additional Public Prosecutor only from  among such cadre under sub-section (6) of Section 24. It could not have  been the intention of the legislature  while  enacting

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sub-section  (6)  of  Section 24 of the Code.  It  was  also contended  on  behalf of the petitioners that  in  case  the meaning  to  the expression "regular  cadre  of  Prosecuting Officers" under sub-section (6) of Section 24 is given as to consist  of  a regular cadre of Prosecuting  Officers  going upto Public Prosecutor at the top, then there is no  benefit to  such  persons  by enacting sub-section (6)  and  (9)  in Section 24 of the Code. We find no force in this contention. The basic intention of the Legislature was to appoint Public Prosecutors  and  Additional  Public  Prosecutors  from  the advocates having atleast seven years practice. Section 24 as initially  contained in Section 24 of the Code did not  make any Prosecuting Officer even of the cadre of Public Prosecu- tor prior to 1973 as eligible for being appointed as  Public Prosecutor or Additional Public Prosecutors, they were  made eligible by substituting Sec. 24 by the Amending Act of 1978 by  introducing  a  new provision under  subsection  (9)  of Section  24. In this background when we consider the  provi- sion of sub-section (6) of Section 24 which makes it  incum- bent  to  appoint Public Prosecutor  and  Additional  Public Prosecutors  only from a regular cadre of Prosecuting  Offi- cers,  it can only be applied in case of such regular  cadre which may go upto the level of Public Prosecutor.     In  view of these circumstances we find that the  Kerala High  Court is right in taking the view that the  expression "regular cadre of Prosecuting Officers" comprised a  service with  Assistant  Public Prosecutor at the lowest  level  and Public  Prosecutors at the top. In case a regular  cadre  of Prosecuting  Officers did not go into Public  Prosecutor  at the top, the State Government cannot be considered as  bound to appoint Public Prosecutor or Additional Public Prosecutor only  from among the persons constituting such  cadre  under the. Code of Criminal Procedure for conducting cases in  the Sessions Court. There  is another insurmountable difficulty which exists  in the 335 way  of the appellant and the petitioners in as much as  the State Government has made the posts of Public Prosecutor and Additional  Public  Prosecutors  as tenure  posts-  It  lies within  the competence of the State Government to keep  such posts of Public Prosecutor and Additional Public  Prosecutor as tenure posts for some period based on contract and not to make  such posts as regular or permanent under  any  service rule. In this view of the matter till such posts are  tenure posts,  to be filled on contract basis for some period,  the Assistant  Public Prosecutors who are members of  a  regular service cannot claim any right to be appointed on such posts under sub-section (6) of Section 24 of the Code of  Criminal Procedure. They are also eligible to be considered with  any advocate  of  seven years standing if willing to  join  such post on tenure basis by the District Magistrate in consulta- tion  with the Sessions Judge. We cannot accept the  conten- tion  of  the learned counsel for the  petitioners  in  this regard that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts. The State of U.P. in its counter has clearly  brought out  the  distinction  in these two kinds of  posts  in  the manner and terms of their appointment, discharge of  duties, emoluments  etc. The Assistant Public Prosecutors have  ave- nues  of  promotion in their own cadre and no  argument  can however  be advanced in interpreting the provision  of  sub- section (6) of Section 24 on this basis. In  the  result both the above cases are dismissed  with  no

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order as to costs. R.S.S.                     Appeal and Petition dismissed. 336