V N ANILKUMAR Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) The petitioners are functioning as Special Public Prosecutors for the conduct of cases instituted by Delhi Special Police in the Trial Court and appeals and revisions before the Revisional and Appellate Courts. They were enrolled as Advocates on 12/10/1985 and 02/02/1987 respectively. While so, they were appointed as Public Prosecutors by the Central Government in exercise of its powers Under S.24 of the Code of Criminal Procedure (for short 'the Code'). The first petitioner was practising as an Advocate in various Courts, civil and criminal, until 1991 from 12/10/1985 to 18/04/1991 and the second petitioner was practising as an Advocate from 19/3/1987 to 15/04/2001. The respondent invited applications for appointment as District and Sessions Judges in the Kerala State Higher Judicial Service by direct recruitment. Clause 3 of Ext. P7 notification reads as follows:

(2.) The petitioners submitted applications and originally hall tickets were issued. On further scrutiny, it was found that they were not eligible. Therefore, the hall tickets were withdrawn. Such withdrawal was intimated to the petitioner by Exts. P12 and P13 communications issued by the Registrar (Subordinate Judiciary). The reason given therein is that the petitioners have been in permanent employment of the Government, functioning as Public Prosecutors with the Central Bureau of Investigation and since they were not practising Advocates on the date of application, they were not eligible for being considered for appointment as District and Sessions Judges in the Kerala State Higher Judicial Service. It is the said stand taken by the respondent that is challenged by the petitioners in this writ petition.

(3.) In the counter affidavit filed by the respondent, it is contended that the petitioners, even according to them, are holding substantive posts of Public Prosecutors in regular full time service and therefore, they are not practising Advocates. Reference is made in the counter affidavit to R.49 of the Bar Council of India Rules (for short 'the Rules'). It is contended that a Bench of this Court in the decision reported in Biji v. Registrar, 2001 KHC 672 : 2001 (2) KLJ 305 : ILR 2001 (3) Ker. 237 : 2001 (3) KLT 99 held that Assistant Public Prosecutors Grade II appointed by the State Government, are not practising Advocates and that consequently, they were not eligible to be considered for appointment as Munsiff Magistrates. The same principle applies in the case of District Judges also.