K J JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner before us is holding the post of Assistant public Prosecutor Grade I and he has brought this writ petition seeking the issuance of a writ of quo warranto calling upon respondents 2 and 3 to show cause under what authority they are functioning as Additional Public prosecutors. THEre is a further prayer for calling for the records leading up to the orders Exts. P. 2 and P. 3 passed by the State Government appointing respondents 2 and 3 as Additional Public Prosecutors at Parur and Ernakulam respectively for the periods mentioned therein and to quash those two orders on the ground that those orders have been passed in violation of the provisions been passed in Section 24 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 1978 (Act 45 of 1978), THE contention of the petitioner is that under the provisions of Section 24 of the code of Criminal Procedure, 1973 - hereinafter called the 'code' - as amended by Act 45 of 1978, the State Government is forbidden from effecting appointments to the posts of Public Prosecutors and Additional Public prosecutors otherwise than in the manner specified in these provisions. According to the petitioner, provisions of sub-section (6) of Section 24 are applicable in this State inasmuch as a regular cadre of prosecuting officers exists in Kerala and hence the State Government can effect appointments to the post of Public Prosecutors or of Additional Public Prosecutors only from amount persons constituting such cadre. THE case of the petitioner is that Assistant public Prosecutors Grade I and Grade II together constitute a cadre of prosecuting officers in this State so as to attract the applicability of sub-section (6) of Section 24 of the Code. On this basis it is contended that unless the Government have formed the requisite opinion that no suitable person is available in the said cadre for appointment as Public Prosecutor or additional Public Prosecutor so as to entitle them to avail of the exceptional procedure laid down in the proviso to sub-section (6), the appointments to the posts of Public Prosecutor and Additional Public Prosecutor can be made only from amongst persons holding the posts of Assistant Public Prosecutors Grade I and Grade II.

(2.) IT is on this basis that the aforementioned reliefs by way of quo warranto and certiorari have been sought by the writ petitioner.

(3.) IT is not, therefore, possible for us to accept the contention put forward by the petitioner that in view of the fact that by the special Rules referred to above, posts of Legal Advisor to the Vigilance division, Additional Legal Advisor to the Vigilance Division and Assistant Public prosecutors Grade I and Grade II have been declared to form a special class in the general service, a regular cadre of prosecuting officers has been brought into existence in this State so as to render the provisions of sub-section (6)of Section 24 of the Code applicable here.