Point of Law : Imposing a condition of minimum Bar practice in Criminal Courts on the Assistant Public Prosecutors cannot stand the scrutiny of law.

JUDGMENT :

The petitioners are Advocates enrolled by the Bar Council of Kerala and are actively practising Law in courts. They have approached this Court seeking to quash the stipulation of three year Bar experience as Advocates for applying to the post of Assistant Public Prosecutor Grade-II, under Exts.P3 and P4 notifications.

2. The petitioners state that they are having active practice of two years and seven months in criminal courts in Kerala. On 31.12.2021, the Kerala Public Service Commission issued Ext.P3 notification for recruitment to the post of Assistant Public Prosecutor Grade-II. The notification stipulated that the applicants should hold a Degree in Law conferred or recognized by Universities in Kerala, must be members of Bar and must have had not less than three years practice in Criminal Courts as on 01.01.2022.

3. The petitioners would urge that the requirement of experience prescribed in Ext.P3 notification is discriminatory since for appointment as Presiding Officers of the Courts to which the Assistant Public Prosecutor candidates intend to prosecute cases, no such Bar experience is prescribed. Therefore, the stipulation of three years experience in Bar as mandated in Ext.P3 is in violation of Articles 14 and 16 of the Constitution of India.

4. It is further contended that the Union Public Service Commission, for recruitment to the post of Assistant Public Prosecutor, Central Bureau of Investigation (CBI), is not prescribing any Bar practice as eligibility condition. Therefore, the respondents cannot take a different yardstick.

5. The Code of Criminal Procedure makes a distinction in qualification between the posts of Assistant Public Prosecutors and Public Prosecutors. When the Criminal Procedure Code mandates 7 years Bar practice for appointment as Public Prosecutors, the Code does not prescribe any minimum qualification for the post of Assistant Public Prosecutors. For all the above reasons, Ext.P3 and Rule 7 of Ext.P4 Special Rules for the post of Director of Prosecution (Administration), Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor (Senior Grade), Assistant Public Prosecutor Grade-I and Assistant Pubic Prosecutor Grade-II, 2018 are liable to be quashed.

6. Counsel entered appearance on behalf of the 2nd respondent and submitted that the State has a right to prescribe qualifications for appointment to the post of Assistant Public Prosecutor. The Assistant Public Prosecutors are expected to prosecute criminal cases in the Magistrate Courts. Therefore, the stipulation of a minimum Bar practice of three years cannot be said to be arbitrary.

7. The Standing Counsel for the 2nd respondent further pointed out that the issue came up for consideration before a Division Bench of this Court in OP(KAT) No.176/2014. This Court considered the matter and rejected similar arguments of the petitioners therein.

8. I have heard the learned counsel for the petitioners, the learned Government Pleader representing the 1st respondent and the learned Standing Counsel for the 2nd respondent.

9. The arguments of the petitioners for impugning the Bar practice prescribed in Exts.P3 and P4 are two pronged. Firstly, the petitioners would contend that the Cr.P.C. does not prescribe a minimum period of practice in Section 25 for appointment as Assistant Public Prosecutors. Therefore, the 1st respondent is not justified in stipulating a minimum Bar practice of three years for appointment to the post of Assistant Public Prosecutor.

10. The second ground is that the Presiding Officers of the Courts, in which the Assistant Public Prosecutors are proposed to be appointed, do not require any actual Bar practice for appointment as Presiding Officers. Therefore, the imposition of a condition of Bar practice on the Assistant Public Prosecutors would infringe Article 16 of the Constitution of India.

11. Section 25 of the Code of Criminal Procedure, 1973 reads as follows : -

“25. Assistant Public Prose