IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WA.No. 2396 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33428/2006 Dated 24/07/2007 .................... APPELLANTS: PETITIONERS 4, 5 & 7: -------------------------------------------------------- 1. GIRISH S.KUMAR, "ASWATHY", KATTACHIRA, PALLICKAL P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. 2. SUNITHA DEVI M.S., MUTHAYIKARA HOUSE, VADAVUKODE, PUTHENCRUZ, ERNAKULAM DISTRICT. 3. MANOJKUMAR T.R., T.C.2/533, "ASWATHY", PATTURAIKKAL, THRISSUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT: RESPONDENTS & PETITIONERS 1 TO 3 AND 6: -------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE LAW SECRETARY, THE LAW (INSPECTION WING) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. Kss ..2/- ...2.... W.A.NO.2396/2007 4. A. SREEKUMAR, ACHUTHAMANDIRAM, PADA NORTH, KARUNAGAPPALLY, KOLLAM-690518. 5. M.S. JAYESH, MALIKAYIL, S.L. PURAM P.O., CHERTHALA. 6. S. ABDUL KHADER KUNJU, ANANTHATHARA, NEERKUNNAM, VANDANAM P.O., ALAPPUZHA DISTRICT. 7. BENZEER T.A., THOPPIL VADAKKETHIL, S.R.P. MARKET P.O., KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD- R1TOR3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- W.A. No. 2396 of 2007 --------------------------------------- Dated this the 29th day of May, 2008 Judgment Koshy,J. Appellants/Petitioners are included in the select list for the post of Assistant Public Prosecutor Grade II. The case of the petitioners is that as per the amendment to section 24 (6) of the Code of Criminal Procedure, 1973, by the Code of Criminal Procedure (Amendment) Act, 2005, (hereinafter referred to as the 'amending Act') a regular cadre of prosecuting officers has to be 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. According to them, Government is 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. But, the Government is filling up these 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 W.A.No.2396/2007 2 Rules, 1978 issued by the Government of Kerala invoking section 2 (1) of the Act. Thus, gist of the contention of the petitioners is that by the amending Act, the Government is 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. The issue was elaborately considered by the learned Judge in paragraphs 5 to 7 of the impugned judgment. We fully agree with the above reasonings. Hence, we are not repeating the same. As rightly held by the learned single Judge: "Sub-section (6) will show that the special provision will apply only to States where there exists a regular cadre of Prosecuting Officers. The existence of a regular cadre of Prosecuting Officers would depend upon the creation of such a cadre by the State Government. That could be done either in exercise of authority under the Public Services Act or otherwise. In so far as the State of Kerala is concerned, the Special Rules noticed above does not contain the creation of any cadre of Prosecuting Officers. In fact, there is also no case for the petitioners that there is such a cadre, going by the Special Rules. The contention that a cadre has been created by the amendment to the Code is wholly misconceived. It does not create of provide for the creation of a cadre. Nor does it mandate the creation of a cadre. All that happens is it takes care of the interest of the officers in a State where there may be a regular cadre of Prosecuting Officers." W.A.No.2396/2007 3 Sub-section (6) never mandate creation of such a cadre. Learned single Judge correctly held as follows: "....There is no obligation in section 24 on any State Government to create a regular cadre of Prosecuting Officers. If it were the intention of sub-section (6) to exclude other methods of recruitment in States where there is no regular cadre of Prosecuting Officers, and if it were the mandate of section 24 of the Code that a regular cadre of Prosecuting Officers shall be created by the State Government, the continuance of sub- sections (4) and (5) would become meaningless unless to meet an emergency where all persons in the regular cadre would be unsuitable to be appointed as a Public Prosecutor..............." Public Prosecutors and Additional Public Prosecutors can be appointed only as per Special Rules. So long as appointments are made as per Special Rules, this court cannot interfere. It is for the Government to amend the Special Rules, if so advised and petitioner can make representation in this regard. The learned single Judge has rightly dismissed the writ petition. Hence, the writ appeal is dismissed. J.B.Koshy Judge P.N.Ravindran Judge vaa W.A.No.2396/2007 4 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- W.A. No. 2396 of 2007 ------------------------------------- Judgment Dated:29th May, 2008