JOSHY NAMBUDAKAM Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners in the second among the captioned writ petitions are included in the select list for appointment as Assistant Public Prosecutor Grade-II, while the petitioners in the other writ petitions are Assistant Public Prosecutors Grade-I.

(2.) As per the Special Rules for the posts of Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor Grade-I and Assistant Public Prosecutor Grade-II, hereinafter referred to as the 'Special Rules", issued by the Government of Kerala, invoking the power under Section 2(1) of the Kerala Public Services Act, 1968, hereinafter, the "Act", for short, Assistant Public Prosecutor Grade-II is the feeder category for promotion to the post of Assistant Public Prosecutor Grade-I, which, in turn, is the feeder category for promotion to the category of Deputy Director of Prosecution and Senior Assistant Public Prosecutor.

(3.) The case of the petitioners is that as per the amendment to Section 24(6) of the Code of criminal Procedure, 1973, hereinafter referred to as the "Code", by the code of Criminal Procedure (amendment) Act, 2005, hereinafter referred to as the "amending Act", a regular cadre of prosecuting officers has been created, which includes the post of Public Prosecutors as well as Additional Public Prosecutors. According to the petitioners, the post of Assistant Public Prosecutor, by the said amendment, could be feeder category for promotion to the post of Public Prosecutor and Additional Public Prosecutor. They contend that the Government have not made any appointment against those posts and that in terms of the aforesaid amendment to the Code, the Government are bound to fill all posts of Public Prosecutors as well as Additional Public Prosecutors by promoting and posting qualified persons from the category of Assistant Public Prosecutors. The petitioners allege that instead of doing the needful as contended by them, the Government are taking steps to fill up the posts of public Prosecutors and Additional Public Prosecutors by recourse to Rule 8 of the Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, hereinafter, the "GLO Rules", for short, issued by the Government of Kerala invoking section 2(1) of the Act. Thus, in its gist, the contention of the petitioners is that by the amending Act, the Government are obliged to follow section 24 of the Code as it stands amended and thereby make promotions to the category of Public Prosecutors and Additional Public prosecutors from the category of Assistant Public Prosecutors.