V RAMCHANDRA Vs. M C JAGADHODHARA GUPTA

JUDGEMENT

(1.) The petitioner, an Assistant Public Prosecutor, Gr. II, is assailing the validity of the appointment of the first respondent in the impugned G.O.Ms. No. 112, Law Department, dt. 13/04/1984 as Addl. Public Prosecutor for the Additional Sessions Court at Ananthapur as illegal and void and to declare the petitioner as having been appointed to the said post.

(2.) The facts are not in dispute. Though the petitioner had his practice as an advocate for some time, on 1/11/1965 he was appointed as Asst. Public Prosecutor Grade II of the General Subordinate Services under the State and he is a regular Government servant. Ever since, he has been the Prosecuting Officer. When a vacancy to the office of the Addl. Public Prosecutor, Ananthapur has arisen there is long chequered career for its filling up. It is needless to dilate with the entire details but suffice it to state that the District Magistrate, Ananthapur in consultation with the Sessions Judge, Ananthapur ultimately sent up a panel of three names inclusive of the petitioner and the first respondent for appointment as Additional Public Prosecutor and the Government had appointed the first respondent under the impugned G.O. for a period of three years. The first ground on which he mounted his attack is that the petitioner being a member of the regular cadre of Asst. Public Prosecutor, Gr. II constituted under G.O.Ms. No. 1466, G.A.D. dt. 12/10/1959, is entitled to be appointed as of right. Sub-section (6) of S. 24 of the Cr.P.C., 1973, for short, "the Code" denies to the first respondent the right to claim appointment to the office of the Additional Public Prosecutor. It would arise under the proviso thereto only when the State Government is of the opinion that the petitioner or the other person is not suitable for the appointment which is not the case of the Government. Therefore, the order is not only void but also illegal. It is also further contended that the appointment of the first respondent has been manoeuvred. Initially he was not in the panel. Pursuant to an application made by him to the Government, it was stage-managed to bring him on the panel so as to appoint him to the post of Addl. Public Prosecutor. He had no requisite experience in conducting sessions cases which is a pre-requisite under Rule IV, Note-2 of the Advocates Recruitment as Law Officers Rules, 1967, for short, "the Rules". Therefore, the appointment is in transgression of the Rules. In support of his contention, Sri Vada Rajagopala Reddy, learned counsel for the petitioner has relied upon not only the relevant statutory rules but also the judgment of this Court in K. Satyanarayana v. State of Andhra Pradesh, W.P. No. 6785/79 & 6320/801 dt. 8/02/1982. The learned Government Pleader, Sri Venkataramana and Sri Chandrasekhara Rao, learned counsel for the first respondent have refuted the above contentions. The learned Government Pleader has stated that the cadre of A.P.P. Gr. II or Gr. I are not regular cadres envisaged under sub-section (6) of S. 24 of the Code. The petitioner, therefore, has no right to claim the appointment. Despite the provisions of sub-section (5) of S. 24, Advocates, by operation of sub-section (7) of S. 24, have got a right for appointment as Public Prosecutor or Addl. Public Prosecutor. The petitioner, being a salaried Government servant, is ineligible for appointment as an Addl. Public Prosecutor. He sought support from K. J. John v. State of Kerala, 1981 Cri LJ 121 (Ker) Sri Chandrasekhara Rao, learned counsel further elaborated that the Assistant Public Prosecutors, Gr. I and Gr. II are two different cadres constituted by the Governor of Andhra Pradesh in exercise of the power under proviso to Art. 309 of the Constitution. There is no right therein given to them for entitlement to be considered for appointment as Addl. Public Prosecutor. The right given under Sub-section (6) of S. 24 is not an automatic right, unless there is a cadre assimilating the petitioner into the cadre. In support of his contention, he sought sustenance from three G.Os. issued by the Government. G.O.Ms. No. 1466 dt. 12/10/1959 relied on by the petitioner; G.O.Ms. No. 160 Home, dt. 31/01/1964 constituting Asst. Public Prosecutors, Gr. I, Police Prosecuting Officers and Chief Law Instructors; and G.O.Ms. No. 323 Home, dt. 26/05/1986 creating Directorate of Prosecutors. It is further contended that the Public Prosecutor or Addl. Prosecutor is only a part-time law officer under the rules for a tenure, but whereas the A.P.Ps. Gr. I and Gr. II are regular Government servants entitled to the pensionary benefits. Therefore, their cadres cannot be considered to be regular cadres for the purpose of S. 24(6) of the Code. Even on merits also he contended that the first respondent conducted number of sessions cases, as stated in his counter-affidavit and had requisite experience. Therefore, the appointment of him cannot be said to be illegal. That apart, ever since the date of his appointment he has been discharging the duties as Addl. Public Prosecutor. Therefore, it does not warrant interference by this Court. Upon the respective contentions, the first question that arises for consideration is whether the petitioner is a member of the regular cadre envisaged under S. 24(6) of the Code. For that purpose it is necessary to read the relevant provisions of the Code. S. 2(u) of the Code defines "Public Prosecutor" to mean, any person appointed under S. 24 and includes any person acting under the directions of a Public Prosecutor. S. 24 deals with the appointment of the Public Prosecutors. Sub-ss. (1) and (2) are not relevant for the purpose of this case; hence omitted. Sub-section (3) says that "for every District, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district". The proviso is not necessary for the purpose of this case, hence omitted. Sub-secs. (4), (5), (6), (7) and (9) read thus :- (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 Prosecutor or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Addl. Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from 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 District Magistrate, under sub-section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) Not necessary. Hence omitted. (9) For the purpose 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 commencement of this Code) 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.

(3.) A reading of these provisions would indicate that a Public Prosecutor or one or more Addl. Public Prosecutors for every district may be appointed by the State Government from a panel of names of Advocates sent by the District Magistrate drawn in consultation with the Sessions Judge. Advocates having practice for not less than seven years obviously on criminal side as prescribed in R. 6(1) Note II, are eligible for consideration for appointment as Public Prosecutor or Addl. Public Prosecutor and the panel shall consist of the names of Advocates only. For the purpose of computation of the period of practice under sub-section (7) or sub-section (8) the temporary service rendered Public Prosecutor or Addl. Public Prosecutor or other prosecuting officer by whatever designation they may be called, they shall be construed to be practising as an Advocate. By Amendment Act 1978, sub-section (6) was incorporated. It started with non obstinate clause, namely, notwithstanding the inhibition imposed on the State Government to appoint any advocate outside the panel sent by the District Magistrate, where there exists in a State a regular cadre of Prosecuting Officer, the State Government shall appoint a Public Prosecutor or Addl. Public Prosecutor only from among the persons constituting such cadre. The proviso left out its rigour to enable the State Government to travel behind it and to fall back upon sub-section (5) of S. 24 to appoint an advocate whose name is found mentioned in the panel drawn under S. 24(4) and sent by the District Magistrate in consultation with the Sessions Judge and of the views Presiding Officer of the Court under R. 6(1)(a) 1st Proviso, as a Public Prosecutor or an Addl. Prosecutor, only where the State Government is of opinion that no suitable person from among the regular cadre is available for appointment. In that event the State Government has power, under sub-section (5) of S. 24, to appoint an advocate from the panel. A resume of these provisions thus indicates that there is dichotomy in the matter of appointment of a Public Prosecutor or an Addl. Public Prosecutor in a district. First the Advocates having not less than seven years of standing at the Bar of the District are eligible for appointment to the office of a Public Prosecutor or Addl. Public Prosecutor. But where there exists in a State a regular cadre of Prosecuting Officer, the said right of the advocate is taken away and conferred for consideration on the persons belonging to the regular cadre of the Prosecuting Officers. This construction of mine gains support from the construction put up by the Rajasthan and Tamil Nadu State Legislatures by making necessary amendments to S. 24(6) and conferring simultaneous right on the advocates as well. The amendments to S. 24(6) by the Rajasthan and Tamil Nadu Legislatures read thus :