ivil Appeal No 1101 of 1981
On appeal by Certificate from the Judgment and Order dated 81080 of the Kerala High Court in OP No 102679E WITH Writ Petition Civil No 346 of 1988
Under Article 32 of the Constitution of India
MK Ramamurthi G Vishwanathan Iyer Shiv Pujan Singh N Sudhakaran and K Prasantha for the Appellants
Anil Dev Singh PS Poti Ms Mukta Sharma Mrs section Dikshit KR 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 1331 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 246 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 2U
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 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 wef
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 section
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
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 section
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 section
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 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
KJ 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 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 KJ 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 sections
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 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 posts 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 UP 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 244 and 245 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 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 ie 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 8501720 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 feesdaily 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 ProsecutorDistrict Rs2700 Rs300 Govt
Counsel Gr 2 Additional Public Prosecutor Rs2550 Rs250 Gr
IAddl
District Govt
Counsel Gr 3 Addl
Public Prosecutor Rs 1800 Rs200 Gr
IIAsstt
Distt
Counsel Gr 4 Addl
Public Prosecutor Rs 50 as daily fees
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 246 of the Code of Criminal Procedure and as such the petitioners are not entitled to appointment as Public Prosecutors or Additional 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 wef
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 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
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 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 UP 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 order as to costs
RSS Appeal and Petition dismissed


Summary:
Ms Dabur India Limited petitioner in one set of peti tions is a public limited company engaged in the manufac ture of Ayurvedic as well as Allopathic medicaments along with cosmetics
It used to manufacture for and on behalf of Ms Sharda Boiren Laboratories The petitioner in the second set of petitions a Homeopathic tooth paste called Homeo dent  out of the raw materials supplied by Ms Sharda on job basis
It accordingly manufactured Homeodent during 1985 to 1988 duly paying duties of excise on Homeodent under the Central Excises  Salt Act 1944
The Superintendent of State Excise visited the factory of Ms Dabur on 18th January 1988 and enquired about the excisability of Homeodent under the Medicinal  Toilet Preparations Excise Duties Act 1955
He was told that Homeodent had been classified under the 1944 Act in view of the orders passed by the Central Excise authorities
Howev er when it was revealed that the Homeodent tooth paste was toilet preparation containing alcohol within the meaning of section 2k read with Item 4 of the Schedule referred to in section 3 of the 1955 Act the District Excise Officer caused a common notice dated 1731988 to be served on Ms Dabur requiring it to pay duty aggregating to Rs681333420 under the provisions of the 1955 Act on such 295 goods manufactured and cleared between January 1985 and January 1988
This order was passed without issuing any notice to show cause and without affording any opportunity of hearing to the petitioner
The Petitioner sent a representation requesting for compliance with the principles of natural justice and also disputing the amount claimed as duty
On 18th March 1988 the Superintendent of State Excise modified the earlier order and confirmed the demand of duty amounting to Rs4667 lakhs on provisional basis
On that day the petitioner deposited a sum of Rs 1166 lakhs and further executed a bank guarantee for the balance
Simultaneously the peti tioner appealed against the order dated 18th March 1988
The Excise Commissioner dismissed the appeal
No appeal was filed by Ms Sharda against the demand notice of excise duty under the 1955 Act
The petitioner moved the High Court
On 13th May 1988 the High Court directed the petitioner to file a revision petition with the Central Government
Both the petitioners then approached the Central Government in revision
On 22nd September 1988 the Additional Secretary to the Government of India in exercise of his revisional powers allowed the revision filed by Ms Dabur and declared the orders of the District Excise Officer and the Excise Commissioner as null and void having been passed in violation of the principles of natural justice
The revision filed by Ms Sharda was not entertained by the Central Government on the ground that a right of appeal was vested in Sharda which was not availed of
The High Court dismissed Sharda s petition challenging the order of the Central Government declining to entertain its review
Against the order of the High Court Ms Sharda have filed the special leave petition in this Court
On the basis of the revision order the petitioners called upon the District Excise Officer to refund the amount of Rs4667 lakhs recovered from it by way of cash payment and encashment of bank guarantee
The State Excise authori ties however failed to grant the refund and instead issued a fresh show cause notice to the petitioners jointly on 2nd November 1988
In December 1988 Ms Dabur moved the High Court under Article 226 of the Constitution for quashing and setting aside the showcase notice dated 2111988 and for refund of duty amounting to Rs4667
The High Court dismissed the writ petition
The High Court was 296 of the opinion that the question whether Homeodent tooth paste was sans alcohol could not be adjudicated upon under the extraordinary writ jurisdiction
The High Court however came to the conclusion that both the 1944 and 1955 Acts operated in different fields and there was no overlapping between the two
The High Court further observed that where the parties fully acquiesced with the matter and subjected themselves to the statutory procedure no action should be allowed to be taken under Article 226 of the Constitution unless the case was patently without jurisdiction
In this connection it was emphasised by the High Court that once the parties chose the statutory procedure they must go to the logical end
It was inter alia urged before this Court on behalf of the petitioner that it was not seeking to circumvent the alternative remedy provided under the Act but in view of the conflicting claims of the Central and State Excise authori ties seeking to classify Homeodent tooth paste under the respective Acts of 1944 and 1955 the petitioner was left with no other alternative but to challenge the actions by way of writ petition under Article 226 of the Constitution
It was further contended that Homeodent did not contain alcohol but contained ingredient mother tincture contain ing alcohol which had a tendency to evaporate during the process of manufacture of Homeodent that no test result as required under the 1955 Act was obtained to establish wheth er Homeodent contained alcohol or not and that on 31st August 1987 the Assistant Collector of Central Excise had already passed an order classifying Homeodent under the Act of 1944 which order had been upheld by the Collector of Central Excise Appeals
The main point that the petitioner sought to emphasis was that the High Court ought to have appreciated that Homeodent tooth paste having been subjected to duty under the provisions of the 1944 Act the question of levying and recovering duty under the 1955 Act did not and could not arise
Dismissing the petitions this Court HELD 1 Homeodent is a homeopathic preparation but it is also a tooth paste
Therefore it is a toilet prepara tion
Whether or not such Homeodent would not be dutiable under the Medicinal  Toilet Preparations Excise Duties Act 1955 would depend upon whether it contained alcohol or not
315E 2 It is undisputed that mother tincture was one of the components that was used in the preparation of Homeodent and it has been found that alcohol was there and mother tincture was added in the 297 medicinal preparation as its component
315G Ms Baidyanath Aryurved Bhawan Pvt Ltd Jhansi vs The Excise Commissioner UP  referred to
3 The authorities charged with the duties of enforcing a particular Act are enjoined with the task of determining the question whether alcohol is contained therein or not
310D 4 It has been determined by the authorities enjoined to enforce the 1955 Act that Homeodent was a medicinal and toilet preparation and liable to excise duty and such finding has not been assailed on any cogent ground in any proper manner
If that is the position then it must be upheld that Homeodent was dutiable
317D Union of India vs Bombay Tyre International Ltd   Mohanlal Magan Lal Bhavsar vs Union of India and NB Sanjana Assistant Collector of Central Excise Bombay vs The Elphinston Spinning and Weav ing Mills Co Ltd   referred to
5 Provisions for rebate of duty on alcohol contained in section 4 of the 1955 Act show that multipoint tax on medicinal preparations containing alcohol was within the contemplation otherwise there was no purpose in incorporat ing section 4 into the Act
316B 6 Justice requires that provisions for claiming refund of this duty should be made more clear
However in the view of the facts and the circumstances that have happened it is directed that if the petitioners are entitled to any refund of the duty already paid to the Central Government in view of the duty imposition now upheld against them in favour of the State Government such refund application should be entertained and considered in accordance with law
316E F 7 In a case of this nature where there is some doubt as to whether duty was payable to the Central Government under the 1944 Act or whether the item was dutiable under the 1955 Act it would be just and proper and in consonance with justice infiscal administration that the Central Gov ernment should consider in the light of the facts found if an application is made under section 11B of the 1944 Act and circumstances of this case the limitation period under section 11B of the 1944 Act should not apply
This direction must be confined in the facts and the circumstances of this case only
316G H 317A 298 Citadel Fine Pharmaceuticals Pvt Ltd vs DRO 1973 Mad
Law Journal 99 Union of India vs Bombay Tyre Interna tional Ltd  and Assistant Collector of Central Excise vs Madras Rubber Factory Ltd 1986 supp
SCC 751 referred to
8 Government should consider feasibility of a machin ery under a Council to be formed under Article 263 of the Constitution to adjudicate and adjust the dues of the re spective Governments
318D 9 This Court would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment which the litigant is contend ing not leviable
Government of course is entitled to enforce payment and for that purpose to take all legal steps but the Government Central or State cannot be permitted to play dirty games with the citizens to coerce them in making payments which the citizens were not legally obliged to make
If any money is due to the Government the Government should take steps but not take extra legal steps or manoeu vre
Therefore the right of renewal of the petitioner of licence must be judged and attended to in accordance with law and the occasion not utilised to coerce the petitioners to a course of action not warranted by law and procedure
318A C