JUDGMENT
M. Karpaga Vinayagam, C.J.
1. The present letters patent appeals have been filed by the writ petitioners-appellants against the common order passed by the learned single Judge on 24.10.2007 dismissing the writ petitions filed by the petitioners challenging the common notification bearing Memo No. 2839 dated 22.6.2007 whereby the private respondents working as Assistant Public Prosecutors were allowed to function as in-charge Public Prosecutors in the concerned district Courts.
2. The short facts are as follows:
(i) The petitioners-appellants were appointed as public prosecutors of different districts on the basis of the recommendations sent by the respective Deputy Commissioners for the post of Public Prosecutors on tenure post. The notifications were issued appointing them on the said post for three years.
(ii) When the said period was about to expire, the Deputy Commissioners of the respective districts sought consent from the petitioners-appellants for recommending them for a further period for the said post and accordingly consents were given and recommendations were sent.
(iii) In the meantime, without taking final decision on the recommendations, the Government came out with the notification contained in Notification No. 2389 dated 22.6.2007 whereby the private respondents, who were working as Assistant Public Prosecutors, were asked to function as Public Prosecutors at their respective district Courts.
(iv) Challenging the said notification dated 22.6.2007, the writ petitions were filed by the petitioners-appellants.
(v) Learned single Judge, quoting the amendment in Section 24 through Sub-section (6) held that Public Prosecutors cannot be appointed directly and the said posts have to be filled up only by promotion from Assistant Public Prosecutors and that moreover the impugned notification of the State Government is only by way of stopgap arrangement till and regular Public Prosecutor is appointed, and, therefore, there is no merit in the writ petitions. Accordingly, the petitions were dismissed.
(vi) Being aggrieved by this order, these letters patent appeals have been preferred before this Court.
3. The main contention urged by the counsel for the petitioners-appellants is as follows:
(I) The notification issued by the State Government, dated 22.6.2007 has totally ignored the relevant provisions contained in Sections 24 and 25 of the Code of Criminal Procedure. The mode of appointment of Public Prosecutor as contained in Section 24 of the Code of Criminal Procedure is entirely different from Section 25. which relates to the Assistant Public Prosecutor. Both cannot be merged with each other.
(II) By the amendment in Section 25-A, the State Government has to constitute a regular cadre and to establish the directorate of prosecution, which shall function under the administrative control of the head of the Home Department of the State. This has not been done yet. Till date, the State of Jharkhand has not constituted any cadre as per amended section of the Code of Criminal Procedure. Therefore, the said notification has to be quashed and the final decision has to be taken by the Government on the recommendations sent by the District Judges for considering the names of the petitioners-appellants after following the procedure.
(III) So, the appointment of Assistant Public Prosecutors as Public Prosecutors of districts is against the said provisions as well as against the principles laid down in the case of K.J. John v. State of Kerala and Ors. and in the case of State of U.P. v. Johri Mal .
4. In reply of the same, the Advocate General would contend that the petitioners-appellants have no legal right to be appointed on the post of Public Prosecutors. In the absence of any legal right, the writ petitions filed by the petitioners-appellants are not maintainable.
5. It is also submitted by the learned Advocate General that the notification dated 22.6.2007 has been issued only by way of stop gap arrangement making the senior most Assistant Public Prosecutor as Incharge Public Prosecutors of the respective districts keeping in view the intention of the Legislature pursuant to amendment made in Sections 24 and 25 of the Code of Criminal Procedure till the permanent arrangement is being made.
6. We have carefully considered the submissions made by the counsel for the parties on either side.
7. The main grievance of the petitioners-appellants is that they have not been appointed even though their names were recommended by the respective District Judges and respective Deputy Commissioners and therefore, they must be allowed to continue in the job and direction must be given to the Government to consider their names on the basis of the recommendations made.
8. At the outset, it shall be mentioned that this Court cannot compel the Government to take decisions on the basis of the alleged recommendations in view of the fact that there is an amendment in Section 24 of the Code of Criminal Procedure.
9. Under those circumstances, the objection raised by the learned Advocate General with regard to the maintainability of the writ petitions, especially when all the petitioners-appellants were appointed on the post of Public Prosecutors for a tenure of 3 years and when that period had already expired, has to be upheld in the light of the fact that the petitioners-appellants have no legal right to continue on the post of Public Prosecutors and also to maintain these appeals.
10. It is also pointed out by the learned Advocate General that after amendment of Section 24 of the Code of Criminal Procedure, the Public Prosecutors cannot be directly appointed, but the said posts have to be filled up by way of promotion from the Assistant Public Prosecutors, It is mainly contended by the learned Counsel for the petitioners-appellants that unless any regular cadre of prosecuting officers is constituted by the State of Jharkhand, as per the amended provisions of the Code of Criminal Procedure, they; cannot be promoted under Section 24(6) of the code of Criminal Procedure
11. With reference to this point, it is contended by the learned Advocate General that in the State of Jharkhand, there exists regular cadre of Assistant Public Prosecutors and gradation list of Assistant Public Prosecutors has been finally published by the Home Department vide Memo No. 594 dated 15th February, 2008 and the Administrative Post Creation Committee of the Finance Department, Government of Jharkhand has recommended the proposal of the Department of Home for creation of Prosecution Directors under Section 25(A) of the Code of Criminal Procedure (Amendment) Act. 2005 as also for creation of different categories of posts for the Directorate and at field level. The said recommendation of the Committee is likely to be placed for the approval of the council of Ministers in its next meeting.
12. So, in view of this development, it is clear that the notification dated 22.6.2007 is issued pending the constitution of a cadre of public prosecutors. It is submitted by the learned Advocate General, already Committee has been constituted and recommendations for creation of different categories of posts for the Directorate and at field level will be placed for approval of the council of Ministers in its next meeting and in the meantime, by way of stop gap arrangement, this notification dated 22.6.2007 has been issued, therefore, the ground, on the basis of which the writ petitions have been dismissed by the learned single Judge, is perfectly Justified. This submission of the learned Advocate General has got force as this appointment is not a permanent appointment and the Assistant Public Prosecutors have been merely asked to function as Incharge Public Prosecutors as stop gap arrangement through this notification. It is also to be noted that regular appointment will be made as soon as regular cadre is created as per the recommendations of the Administrative Post Creation Committee as submitted by the learned Advocate General.
13. Hence, these LPAs are liable to be dismissed. Accordingly, they are dismissed. There shall be no order as to cost.
D.G.R. Patnaik, J.
14. I agree.