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. 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. reported in : 1990CriLJ1777 and in the case of State of U.P. v. Johri Mal reported in : AIR2004SC3800 .
(3.) 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.;