- (1.) The question posed for consideration in the writ petitions is whether full time salaried employees, Assistant Public Prosecutors are entitled to count the period, which they have spent as Assistant Public Prosecutor, towards seven years experience or in other words, they can be treated to be an Advocate for the purpose of appointment by direct recruitment to the post of District Judge, as provided under Article 233(2) of the Constitution of India.
(2.) It is submitted by the petitioners that they have been enrolled as advocate by the Bar Council of Rajasthan; thereby they started practicing as advocate and their names have been mentioned on the rolls of Bar Council of Rajasthan. They were appointed after their due selections by the Rajasthan Public Service Commission as Assistant Public Prosecutor. Since then petitioners have been working as Assistant Public Prosecutor Grade-II in different Courts in the State of Rajasthan. They are appearing in criminal Courts and contesting cases on behalf of the State of Rajasthan as Assistant Public Prosecutor, as contemplated under Section 25 of the Code of Criminal Procedure, 1973. The work of the petitioners, inter-alia, includes the job of arguing the cases in the Courts of Magistrates.
(3.) The High Court of Rajasthan issued a Notification dated 19.07.2011 inviting applications from the advocates for filling up the vacant posts in the cadre of District Judge by direct recruitment in the Rajasthan Judicial Service in accordance with the provisions of the Rajasthan Judicial Service Rules, 2010 (for short 'the RJS Rules, 2010'), as amended in the year 2011. Pursuant to the said notification, the petitioners submitted applications, however, their applications have been disallowed under Rule 33 of the RJS Rules, 2010. It appears that applications have been disallowed in view of the fact that High Court has not treated the Assistant Public Prosecutors as an advocate. The District Judge has also not issued experience certificate on the basis that Assistant Public Prosecutors are not treated as an advocate. The petitioners further submitted that decision disallowing their application is contrary to the provisions contained in Article 233(2) of the Constitution of India, which provides that only judicial services are excluded, not other services. They have placed reliance on the decision of the Hon'ble Apex Court in Sushma Suri Vs. Govt. of National Capital Territory of Delhi And Another, 1999 1 SCC 330, and submitted that rejection of applications is illegal. It was further submitted that other High Courts have also taken a view that Assistant Public Prosecutors are entitled to appear in the examination and to stake their claim. Thus, the decision of rejecting applications of the petitioners is discriminatory, arbitrary and illegal. Hence, the writ applications have been filed with the prayer to direct the respondents to accept the application forms and to consider the candidature of petitioners for the post of District Judge, to be filled by way of direct recruitment.;