Holding

A "regular cadre of prosecuting officers" must comprise a hierarchy that includes Public Prosecutor and Additional Public Prosecutor; absent such a cadre, the State is not bound to appoint from Assistant Public Prosecutors, and tenure posts may be filled from the panel of advocates.

Summary

K.J. John, an Assistant Public Prosecutor Grade I in Kerala, filed a writ petition under Article 32 challenging the State's appointment of Public Prosecutors (PP) and Additional Public Prosecutors (APP) on the ground that Section 24(6) of the Code of Criminal Procedure (CrPC), as amended in 1978, obliges the State to appoint PPs and APPs only from a "regular cadre of prosecuting officers". The Kerala High Court dismissed the petition, holding that no such regular cadre existed in the State. The Supreme Court examined the meaning of "regular cadre" and the legislative intent behind sub‑section (6) and the deeming fiction in sub‑section (9). It held that a regular cadre must include a hierarchy that reaches up to the PP and APP levels; where such a cadre is absent, the State is not bound to appoint from Assistant Public Prosecutors. Moreover, PP and APP posts in Kerala are tenure contracts, not regular service posts, and therefore Assistant Public Prosecutors cannot claim a right to be appointed to them under Section 24(6). The Court dismissed both the civil appeal and the writ petition.

Issues considered

The meaning of "regular cadre of prosecuting officers" under Section 24(6) of the CrPC.
Whether the existence of tenure posts for Public Prosecutor and Additional Public Prosecutor precludes the applicability of Section 24(6).
Whether Assistant Public Prosecutors can be appointed to tenure posts on deputation and claim promotion rights.
Whether the State is bound to appoint Public Prosecutors and Additional Public Prosecutors only from a regular cadre when such cadre does not include those posts.

Legislation cited

Code of Criminal Procedure, 1973s. 24, s. 25, s. 9
Criminal Procedure Code (Amendment) Act, 1978s. 24(6), s. 24(9)

Subjects

Section 24(6) CrPCregular cadrepublic prosecutor appointmenttenure postsdeeming fictionpromotion rightsArticle 32Keralaassistant public prosecutor

Judgment

K.J. JOHN, ASSISTANT PUBLIC PROSECUTOR GRADE I,
A
PALAI ETC. ETC.
v.
STATE OF KERALA & ORS. ETC. ETC.

JULY 12, 1990
B
[M.H. KANIA AND N.M. KASLIWAL, JJ.]

Code of Criminal Procedure, 1973: Section 24(6)-State Govern-
ment whether bound to appoint Public Prosecutors and Additional
Public Prosecutors only from among persons constituting such 'regular
cadre of prosecuting Officers'-Interpretation of.
c
The appellant in the civil appeal was an Assistant Public
Prosecutor Grade I in the State of Kerala. The writ petition under
Article 32 of the Constitution has been ftled by the Uttar Pradesh Public
~-- Prosecutors' Association comisting of the membership of Assistant
Public Prosecuters, including Prosecuting Officers, senior Prosecuting D
Officers, Deputy Director of Prosecution serving under the Govern-
ment of Uttar Pradesh. 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 Addi-
tional Public Prosecutors only from among the persons constituting
such cadre in view of section 24(6) of the Code of Criminal Procedure, E
1973, as amended by the Criminal Procedure Code (Amendment) Act of
~--- 1978.

The appellant's writ petition ftled in the High Court of Kerala
was dismissed. The High Court was of the view that the provisions of
sub-section (6) of section 24 could have application in respect of States F
where there was a regular cadre consisting of hierarchy of Prosecuting
Officers with the Assistant Public Prosecutor at he lowest rung and
having at the top level Additional Public Prosecutors and Public
Prosecutors. The High Court held that there was no regular cadre of
Prosecuting Officers in the State of Kerala Comprising therein Public
Prosecutors and Additional Public Prosecutors. The High Court fur- G
ther observed that under the Kerala Government Law Officers
(Appointment and Conditions of Service) and Conduct of Cases Rules,
1978 the posts of Public Prosecutors and Additional Public Prosecutors
were tenure posts and as such the Assistant Pllblic Prosecutors who
were regular hands could not be appointed to the tenure posts.
H

319
320 SUPREME COURT REPORTS [1990) 3 S.C.R.

Before this Court it was contended on behalf of the appellant/
A
petitioners that Assistant Public Prosecutors Grade I and Grade II
together constitnted a cadre of Prosecuting Officers so as to attract the
applicability of sub-section (6) of section 24 of the Code. It was
urged that in case the meaning to the expression "regular cadre of
Prosecuting Officers'' under sob-section (6) of section 24 l"as given as to
B consist of a regular cadre of Prosecuting Officers going npto Public
Prosecutor at the top, then there was no benefit to such persons by
enacting sob-sections (6) and (9) in section 24, by the Amending Act of
1978. It was further urged that there was no bar for appointment of
Assistant Public Prosecutors against tenure posts as officers on
depntation.
c The State of U.P. in its counter has brought out the distinction in
these two kinds of posts in the manner and terms of their appointment,
discharge of dnties, emoluments etc. It was further urged that in Uttar
Pradesh there was no regular cadre of Prosecuting Officers within the
meaning of section 24(6) of the Code of Criminal Procedure and as such
D the petitioners were not entitled to appointment as Public Prosecutors
or Additional Public Prosecutors.

Dismissing the appeal and the writ petition, this Court,

HELD: (1) The intention of introducing sub-section (6) and the
E deeming fiction in sub-section (9) was in order to safeguard the promo-
tional rights of Prosecuting Officers in such of the States where there
was already in existence a regular cadre consisting of a hierarchy of
Prosecuting Officers going to the top level of Additional Public Pro- ) -
secntors and Public Prosecutors. [334E-F)

F (2) The Kerala High Court was 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 Pro-
secutors at the top. In case a regular cadre of Prosecuting Officers did
not go upto Public Prosecutor at the top, the State Government could
not be considered as bound to appoint Public Prosecutor or Additional
G Public Prosecutor only from among the persons constitnting such cadre
under the Code of Criminal Procedure for conducting cases in the
Sessions Court. [334G-H)

(3) It was within the competence of the State Government to keep
r--·
such posts of Public Prosecutor and Additional Public Prosecutor as
H tenure posts for some period based on contract and not to make such
K.J. JOHN v. STATE OF KERALA [KASLIWAL, J.] 321

posis as regular or permanent under any service rule. In this view
A
of the matter, till such posts were tenure posts, to be filled on con-
tract basis for some period, the Assistant Public Prosecutors who
were members of a regular service could not claim any right to he
appointed on such posts under sub-section (6) of section 24 of the
Code of Criminal Procedure. [33SA-C]
B
(4) The contention of the petitioners that Assistant Public Pro-
secutors can he appointed on such tenure posts on deputation and may
return hack to their parent service after completion of the period of
such tenure posts, was not acceptable. [33SC]

-- CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101
of 1981. c

On appeal by Certificate from the Judgment and Order dated
~- 8.10.80 of the Kerala High Court in O.P. No. 1026/79E.

WITH D

Writ Petition (Civil) No. 346 of 1988.

(Under Article 32 of the Constitution of India).

M.K. Ramamurthi, G. Vishwanathan Iyer, Shiv Pujan Singh, E
N. Sudhakaran and K. Prasantha for the Appellants .

. ;_ Anil Dev Singh, P.S. Poti, Ms. Mukta Sharma, Mrs. S. Dikshit,
K.R. Nambiar for the Respondents. ·

The Judgment of the Court was delivered by F
)_
KASLIW AL, 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 Emakulam dated October 8, 1980. The G
High Court has granted a certificate under Article 133(1) 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 B
322 SUPREME COURT REPORTS [1990] 3 S.C.R.

A 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
B such the State Government is bound to appoint Public Prosecutors and
Additional Public Prosecutors only from among the persons constitut-
ing such cadre in view of Section 24(6) of the Code of Criminal Proce-
dure, 1973 .

.In order to appreciate the controversy, it would be necessary to
C give the background of the law and rules relating to the appointment of
public prosecutors. Sectioµs 24 and 25 of the Code of Criminal Proce-
dure, 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
D appointed by the Central Government or by the State Government or
by the District Magistrate or by the Sub-Divisional Magistrate subject
to the control of the District Magistrate. 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
E. conducted generally by Police Officers or by persons recruited from
the Bard styled as Police Prosecutors or Assistant Public Prosecutors
all of whom worked under the directions of the Police Department.
Moreover, no qualification was laid down in the old Code for the I
)·
Advocates being appointed as_ Public Prosecutors. In Section 24 of the
new Code for the first time such detailed provisions have been made.
F In Section 24 as originally framed there were only two categories of
public prosecutor-(!) 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 2(U). Provi-
sion was also for the first time made for appointment of Public Pro-

-
secutor in the High Court for conducting any prosecution in the said
G 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
H that in the case of Public Prosecutor and the Additional Public Pro-
K.J. JOHN v. STATE OF KERALA (KASLIWAL, J.] 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
A
the Bar should not be less than 10 years.

The original Section 24 has been amended by the Criminal Pro-
cedure Code (Amendment) Act of 1978 (hereinafter referred to as the
Amending Act of 1978) w.e.f. 18th December, 1978 and a new Section B
---{ 24 has been substituted for the original Section 24. It would be neces-
sary to reproduce Section 24 as it stood in the original Code of Crimi-
'+ nal Procedure, 1973 as well as Section 24 which stood after the Crimi-
nal Procedure Code (Amendlllent) Act, 1978.

Section 24 of the Code as it stood prior to the amendment intro-
duced by the Code of Criminal Procedure (Amendment) Act, 1978, c
reads as under:

"24. Public Prosecutors-(!) For every High Court, the
Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Pro- D
secutor for conducting, in such court, any prosecution,
appeal or other proceeding on behalf of the Central or
State Government, as the case may be.

(2) For every district the State Government shall appoint a
Public Prosecutor and may also appoint one or more Addi- E
tional 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 pro•
secutor or Additional Public Prosecutor for the District. F

(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 sub-
section (3). ' G

(5) A person shall only be eligible to be appointed as a
Public Prosecutor or an Additional Public Prosecutor
under sub-s. (1) or sub-section (2), if he has been in
practice as an advocate for not less than seven years.
H
324 SUPREME COURT REPORTS I 1990[ 3 S.C.R.

(6) The Central Government or the State Government
A
may appoint, for the purposes of any case or class of cases, -<f •
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:
B
"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 Pro- T
secutor and may also appoint one or more Additional
Public Prosecutors, for conducting in such court, any pro-
secution, appeal or other proceeding on behalf of the Cent-
c ral Government or State Government, as the case may be.

(2) The Central Government may appoint one or more
Public Prosecutors, for the purpose of concjucting any case
or class of cases in any district, or local area.
D
(3) For every district, the State Government shall appoint
a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for the district.

E
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 Pro-
secutor, 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
F are, in his opinion, fit to be appointed as Public Prose-
cutors 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
G names prepared by the District Magistrate under sub-
section ( 4).

(6) Notwithstanding anything contained sub-section (5), .X--
where in a State there exists a regular cadre of Prosecuting
Officers, the State Government shall appoint a Public
H Prosecutor or an Additional Public Prosecutor only from
K.J. JOHN v. STATE OF KERALA [KASLIWAL, J.] 325

among the persons constituting such cadre:
A
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 Prose-
cutor, as the case may be, from the panel of names pre- B
pared by the District Magistrate under sub-s. (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. c
(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. D
(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
commencement of this code) service as a Public Prosecutor
or as an Additional Public Prosecutor or Assistant Public E
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".

A perusal of the above provisions would show that the changes
that have been introduced in Section 24 by the Amending Act of 1978 F
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 controversy put forward hinges on the new provision now con-
tained in sub-s. (6) of Section 24. ifhe contention raised on behalf of
the petitioners is that sub-section (6) of Section 24 introduced by
amendment clearly lays down that notwithstanding anything contained G
in sub-section (5) where in a State there exists a regular cadre of Pro-
secuting Officers (emphasis 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 H
326 SUPREME COURT REPORTS [1990) 3 S.C.R.

on behalf of the appellant that the appointment of Assistant Public
A Prosecutors was governed by the Statutory Rules framed under Article
309 of the Constitution. These Rules were published on 7th Septem-
ber, 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
B Prosecutors 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 candi-
date was required to be a member of the Bar having not less than two
years active practice in criminal courts. After selection he was to be
c 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 Pro-
secutors Grade II and so far as Assistant Public Prosecutors Grade I
are concerned they belonged to the State Cadre. It was thus urged on
D 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 Criminal Proce-
dure Code after amendment.
E
It may be pointed out at this stage that Sh. K.J. 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 expression "regular cadre of Prosecuting Officers"
F occuring in sub-section (6) of Section 24 of the Code. Accordmg to the
••
High Court sub-section (9) of Section 24 provided a clue to the inten-
tion of the Parliament in using the said expression. 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,
G 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 exis-
tence of a regular cadre consisting of officers holding all the afore-
mentioned posts with a regular framework of service consisting of a
hierarchy of such officers. The provisions of sub-section (6) of Section
H 24 can, therefore, have application in respect of States where there is a
K.J. JOHN v. STATE OF KERALA [KASLIWAL, J.] 327

regular cadre consisting of a hierarchy of Prosecuting Officers with the
A
>- )..- 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 5ection 24.
B
It may also be pointed out that the High Court also noticed the
provisions of Kerala Government Law Officers (Appoi_ntment and
Conditions of Service) and Conduct_ of Cases Rule_s, 1978 which dealt
with the method of appointment of Government Law Officers at Dis-
trict 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 Pro-
c
secutors and Additional Public Prosecutors were to be appointed by
~ the Government from a panel of advocates furnished 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 Additional Public Prosecutor shall only be for a term of D
three years. The High Court considered that the posts of Public Pro-
secutors and Additional Public Prosecutors under the above Rules
were tenure posts and as such the Assistant Public Prosecutors who
were regular hands cannot be appointed 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 E
and Additional Public Prosecutors.

Learned counsel appearing on behalf of the appellant K.J. John
in Civil Appeal No. 1101of1981 contended that under the Old Code
the qualification and method of appointment for Public Prosecutors
did not require any condition for a candidate to be an advocate. In F
order to remove such unsatisfactory state of affairs the Legislature
provided the qualification and the method of appointment of Public
Prosecutors and Additional Public Prosecutors by making elaborate
provisions in Section 24 of the Cr_iminal Procedure Code, 1973. Under
Section 24, as it stood before the 197S amendment, provision was
made for appointment of Public' Prosecutors and Additional Public G
Prosecutors from a panel of names of advocates to be submitted by the
District Magistrate inconsultation with the Sessions Judge to the State
Government. 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 SUPREME COURT REPORTS l 1990] 3 S.C.R.

It was further contended that this scheme of appointment of
A
Public Prosecutors and Additional Public Prosecutors was again found
to be unsatisfactory because the selection of persons 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 am~nabie to the disciplinary jurisdiction of the
B Government and had no avenues of promotion, were denied promo-
tion 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 District 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
c 24 introduced by the amendment, it was never intended to include 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/
D Additional Public Prosecutors otherwise sub-section (6) becomes
meaningless. It was thus submitted that the High Court committed an
error in construing the expression "regular cadre of Prosecuting Offi-
cers" to comprise a service with Assistant Public Prosecutor at the
lowest level and Public Prosecutor at the top. If Public Prosecutors and
Additional Public Prosecutors are necessary in the existing cadre as ~
E 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-ss. (6), (7) & (9)
F is necessary to understand the intention of the Legislature. According
to the learned counsel sub-section (6) provided for appointment of
Public Prosecutors from a regular cadre of Prosecuting Officers, sub-
section (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
G create the fiction that the period of 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. As regards the reason given by the High Court that the post
of Public Prosecutor and Additional Public Prosecutor were tenure
H posts for three years, it was submitted by learned counsel for appellant
K.J. JOHN v. STATE OF.KERALA [KASLJWAL, J.] 329

that the Kerala Government Law Officers (Appointment and Condi- A
~ ~ tions of Service) and Conduct of Cases Rules, 1978 as notified in the
Kerala Gazetfe No. 25 dated 20th June, 1978 was made before the
coming into force of the Criminal Procedure 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 B

~'-1
24 of Criminal Procedure Code after Amendment Act of 1978. In the
alternative it was also contended that even if the posts of Public Pro-
secutors and Additional Pnblic 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 Pro-
secutors 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
c
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.
D
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 U.P. 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 Pro-
- -"secutors who work exclusively on contract basis in the Sessions Co"rts. E
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 exami-
nation and interview of Law Graduates. On the other hand Public
Prosecutors are appointed in terms of professional contracts under F
~ Section 24(4) and 24(5) of the Code of Criminal Procedure. A panel of
- .rnmes of advocates with seven years working experience is prepared
by the District Magistrate in consultation with the District & Sessions
Judge and sent to Law Department of the State Government for
approval. Public Prosecutors are thus appointed by the Law Depart-
ment of State Government, whereas Assistant Prosecuting Officers G
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 admissi-
ble to other regular Government servants. The services of Assistant
Prosecuting Officers are pensionable, while Public Prosecutors are
330 SUPREME COURT REPORTS [1990] 3 S.C.R.

appointed purely ·on the basis of contract, on a fixed fees. Assistant
A Public Prosecuting Officers work under the administrative control of ~ ~
Home Department and Director General (Prosecution) is Head of the
Prosecution Department. The work and performance cif Public Pro-
secutors is assessed b~ the District Magistrate at the District level and
they are controlled by the Law Department of the State Government.
B It has been further submitted in the reply that the Assistant Prosecut-
ing Officers main work is to prosecutre criminal cases in the lower ~
District Courts i.e. courts of Judicial Magistrates, Chief Judicial
Magistrate, Metropolitan Magistrates, Chief Metropolitan Magistra- f"
tes, 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
c 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
D Police in matters pertaining to investigation. The Public Prosecutor's
main work is to prosecute the criminal cases in the Sessions Courts.

The State Government in its counter affidavit has further given
the following chart showing the hierarchy pay scales and strength of
cadre:
E
....._
Name of Post Pay scale Permanent Temporary. Total No.
of Posts

Joint Director Rs.1840-2400 1 1
Legal
F
Joint Director Rs.1840-2400 1 1
(Admn.)

Dy. Director Rs.1250-2050 5 6 11

G Sr. Prosecuting Rs.1250-2050 17 17
Officer (Gr. I)

Sr. Prosecuting Rs. 850.1720 13 70 83 >':--
Officer (Gr. II)

H Prosecuting Rs. 770-1600 84 114 198
Officer
K.J. JOHN v. STATE OF KERALA (KASLIWAL, J.) 331

Asstt. Prosecuting Rs. 625-1240 704 174 878
A
... ).- Officer

As against the aforesaid cadre and pay scales the Public Pro-
secutors are retained on monthly fees/daily fees as the case may be.
They are paid library allowances also. The rates in their cases have
been indicated as under: B

~~ ( 1) Public Prosecutor/District
Monthly
Fees

Rs.2700
Library
Allowance

Rs.300
Govt. Counsel (Gr.)
~
c
(1) Additional Public Prosecutor Rs.2550 Rs.250
Gr. I/Addi. District Govt.
~-
Counsel (Gr.)

(3) Addi. Public Prosecutor Rs.1800 Rs.200 D
Gr. Il/Asstt. Distt. Govt.
Counsel (Gr.)

(4) Addi. Public Prosecutor Rs.50 as daily fees.

- Gr. III

It has been further submitted in the reply that the petitioners
have several promotional avenues in their own cadre and cannot claim
E

any post outside their cadre. In Uttar Pradesh there is no regular cadre
of Prosecuting Officers within the meaning of Section 24(6) of the
Code of Criminal Procedure and as such the petitioners are not en-
titled to appointment as Public Prosecutors or Additional Public Pro- F
secutors 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 661 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 Pro-
secuting Officer Gr. II & I are 83 and 17 respectively. Thus there is G
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 Offi-
cers" existing in this provision. Prior to coming into force of the Code
of Criminal Procedure, 1973, the Prosecuting Officers were under the H
332 SUPREME COURT REPORTS [1990] 3 S.C.R.

control of Police Department. lt was not necessary at that time that
A the Public Prosecutor or Adpitional Public Prosecutor 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 appointment of Public Prosecutors and Additional
Public Prosecutors in the Criminal Procedure Code, 1973. Under this
B 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 considera-
tion the working experience of Prosecuting Officers and pleaders for
eligibility for appointment as Public Prosecutor and Additional Public
Prosecutor. The Legislature as such substituted a new Section 24 by
c the Criminal Procedure Code (Amendment) Act, 1978 brought into
force w.e.f. 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
D 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
E Prosecuting Officers such as Public Prosecutor, Additional Public Pro-
secutor, Assistant Public Prosecutor or other Prosecuting Officer, by
whatever name called, also eligible for being included in the panel to
be prepared by the District Magistrate in consultation with the
Sessions Judge fit to be appointed as Public Prosecutors or Additional
Public Prosecutors for the district.
F
In this background we have to understand the scope of sub-
section (6) of Section 24 which gives a clear mandate to appoint a
Public Prosecutor or an Additional Public Prosecutor only from
amongst the persons constituting a regular cadre of Prosecuting Offi-
cers. According to this provision any person from the advocates or
G 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 attracted where in the opinion of the
State Government no suitable person is available in such regular cadre
H of Prosecuting Officers for appointment as Public Prosecutor or Addi-
•

K.J. JOHN v. STATE OF KERALA [KASLIWAL, J.] 333

tional Public Prosecutor. Admittedly the regular cadre of Prosecuting A
• ~- 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 B
requisite opinion that no suitable person is available in the said cadre

J-1 for appointment as Public Prosecutor or Additional Public Prosecutor,
the appointments to the posts of Public Prosecutor, and Additional
Public Prosecutor can be made only from amongst persons holding the
posts of Assistant Public Prosecutors Gr. I & Gr. II.

A combined reading of sub-section (6) .and sub-section (9) of
c
Section 24 gives a clue to the intention of the Legislature in determin-
ing 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 D
where there is already in existence regular ca!lre consisting of a
hierarchy of Prosecul)ing Officers going to the top level of, Additional
Public Prosecutors and Public Prosecutors. In sub-sectii:ili (9) the
exprersion "Prosecuting Officers" has been used as taking in any

- persons holding the post of Public Prosecutor, Assistant Public Pro-
secutor or any other Prosecuting Officer by whatever name called.
Sub-section ( 6) independently can grant no benefit to the Prosecuting
E

Officers unless the clause of deeming fiction contained in sub-section
-~ (9) makes them eligible for appointment· as a Public Prosecutor or
Additional Public Prosecutor. Sub-section (9) clearly speaks with
regard to the service rendered as a Public Prosecutor cir as Additional
Public Prosecutor, or Assistant Public Prosecutor or other Prosecuting F
-)... 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 sub-
section (7) & sub-section (8). Thus we are clearly of the view that the
expression "regular cadre of Prosecuting Officers" contained in sub-
section ( 6) of Section 24 must comprise a regular cadre of Prosecuting
Officers going up to the level of Additional Public Prosecutor and G
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 H I
334 SUPREME COURT REPORTS I 1990] 3 S.C.R.

in the sense that for the purpose of appointment, probation, seniority,
A
discharge of probationers and approved probationers 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
B there existed a cadre of Prosecuting Inspectors or Assistant Public
Prosecutors only in that case abo 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
c "regular cadre of Prosecuting Officers" under sub-section (6) of Sec-
tion 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 -"'I"
Code. We find no force in this contention. The basic intention of the
D 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 Prosecutor prior to
1973 as eligible for being appointed as Public Prosecutor or Additional

E
Public Prosecutors, they were made eligible by substituting Sec. 24 by
the Amending Act of 1978 by introducing a new provision under sub- -
section (9) of Section 24. In this background when we consider the
provision of sub-section (6) of Section 24 which makes it incumbent to
--
appoint Public Prosecutor and Additional Public Prosecutors only
7
from a regular cadre of Prosecuting Officers, it can only be applied in
case of such regular cadre which may go upto the level of Public
F 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 Pro-
secutor at the lowest level and Public Prosecutors at the top. In case a
regular cadre of Prosecuting Officers did not go into Public Prosecutor
.. G 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.

H There is another insurmountable difficulty which exists in the
K.J. JOHN v. STATE OF KERALA [KASLIWAL, J.) 335

way of the appellant and the petitioners in as much as the State A
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 Addi-
tional 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 ofthe matter till such posts are tenure posts, B
to be filled on contract ba,•is 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 con-
sidered with any advocate of seven years standing if willing to join. such
post on tenure basis by the District Magistrate in consultation with the c
Sessions Judge. We cannot accept the contention of the learned
counsel for the petitioners in this regard that Assistant Public Pro-
secutors 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 U.P. in its counter has clearly brought
out the distinction in these two kinds of posts in the manner and terms D
of their appointment, discharge of duties, emoluments etc. The As-
sistant Public Prose~utors have avenues 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.
E

'
·( R.S.S. Appeal and Petition dismissed.