D.N. Patel, J. - (1.) THE present writ petitions have been preferred by the Petitioners, who are working as Assistant Public Prosecutors, for appearing in the examination to be held on 19th June, 2011 by the Respondents for the post of Additional District Judges. Upon mentioning the matter before Hon'ble the Acting Chief Justice, these matters have been taken for hearing.
(2.) COUNSEL for the Petitioners in all the aforesaid writ petitions have submitted that the only duty Petitioners are performing is to argue out the matters in the trial court as an Assistant Public Prosecutors. Secondly, they have been appointed in exercise of powers under Section 25 of the Code of Criminal Procedure, 1973 and therefore, looking to the duties of the present Petitioners, they have to work only as Advocates in the trial court and they are not performing any other duties whatsoever of the State Government and therefore, as per Article 233 of the Constitution of India, it cannot be said that they are in service of the Government and therefore, they are eligible and qualified to appear in the examination to be held by the Respondents for the post of Additional District Judges. It is further submitted by the counsel for the Petitioners that Rule 49 of the Bar Council of India Rules, 1995 was initially had a proviso which was omitted in the year, 2001, but, as per the Rules framed by the Bar Council of Bihar under Section 28 of the Advocates Act, 1961, the Law officers are still Advocates and the names of the present Petitioners are on the role of Bar Council of Bihar/Jharkhand.
(3.) IT is further submitted by the counsel for the Petitioners that unlike State of Karnataka, there are no Rules in the State of Jharkhand for the cadre of the Assistant Public Prosecutor and therefore, it is submitted by the counsel for the Petitioners that the decisions rendered by the Hon'ble Supreme Court in Civil Appeal Nos. 947956 of 2003 dated 18th May, 2009 is based upon different facts. The facts of the case is reflected in paragraph No. 3 of the aforesaid decision rendered by the Hon'ble Supreme Court. In the State of Jharkhand as per Jharkhand Bar Council Rules, which have been adopted as Bihar Bar Council Rules, the Law Officers are permitted to be continued on the role of Advocates, despite the fact that they are getting salary. The only duty which is performed by the present Petitioners is to plead the cases on behalf of Government of Jharkhand before the trial court. As the cadre rules for the Assistant Public Prosecutor have not been drafted in the State of Jharkhand, Petitioners are not knowing about any promotional avenues.;