JUDGMENT

1. Through this writ petition, the petitioners herein being aspiring candidates seeking appointment as Assistant Public Prosecutors, have assailed the vires/validity of Rule 12 of the Rajasthan Prosecution Subordinate Service Rules, 1978 (for short, 'the Rules of 1978') and the Schedule appended thereto, to the extent the same stipulates two years' experience at bar or as a Prosecuting Sub-Inspector, as the case may be.

2. Mr. Paramveer Singh Champawat, learned counsel representing the petitioners, vehemently and fervently urged that requirement of experience for recruitment as Assistant Public Prosecutor has been done away in the States of Bihar, Uttarakhand and many more. He placed reliance on the Hon'ble Supreme Court judgment in the case of All India Judges Association and Ors. v. Union of India [2002 (2) SCR 712], wherein the requirement of 3 years' standing as an Advocate for selection in judicial service was struck down. He, thus, urged that the unwarranted criterion of experience at the bar or in service as a Prosecuting Sub-Inspector for staking claim for the post of Assistant Public Prosecutor is totally unjustified. He urged that the Assistant Public Prosecutor would be performing the duties in the court of Judicial Magistrate at the base level in the judiciary and would gain experience by working in the courts over a period of time. Thus, ignoring merit in the garb of experience is not at all justified. On these submissions, Mr. Champawat implored the court to accept the writ petition and strike down the vires of Rule 12 of the Rules of 1978 and the Schedule appended thereto to the extent it prescribes experience as a qualifying criteria.

3. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material placed on record.

4. This court is least impressed with the submission of Mr. Champawat that the criterion of experience prescribed as qualifying criterion under Rule 12 of the Rules of 1978 and the Schedule appended thereto imposes unreasonable restriction on the aspiring candidates desirous of being selected as Assistant Public Prosecutors. The Assistant Public Prosecutor would be required to represent the State in criminal cases in the Courts of Magistrate, which would include presentation of accused for remand, examination of witnesses, advancing final arguments before the court etc. The contention of Mr. Champawat questioning the logic behind the criterion of experience for selection to the post of Assistant Public Prosecutor on the ground that the same requirement has been struck off by Hon'ble Supreme Court for the post of Civil Judge does not hold water for the simple reason that judicial officer has to undertake mandatory training of one or two years, as the case may be, in judicial academy before being provided posting in the courts. Furthermore, we cannot lose sight of the fact that the error occurring in the trial of a case, if attributable to the Presiding Officer, i.e. Judicial Magistrate, can be rectified in appeal. However, it would be very difficult, if not impossible, to rectify a fundamental error occurred in the trial of a criminal case owing to lack of experience of the Assistant Public Prosecutor. The lack of previous experience is duly compensated by the rigorous training, which is provided at the judicial academy. In the case of Assistant Public Prosecutor, no such training is stipulated. An Assistant Public Prosecutor is appointed by the State Government to represent it in criminal cases. The Government being the engaging entity, would have absolute discretion of fixing qualification criterion of the officers who should represent it in the courts at the foundation level. Hence, the aspiring candidates cannot be permitted to dictate the terms of selection criterion and would have to abide by the same unless it can be demonstrated that the same are absolutely arbitrary or dehors the provisions of the Constitution of India or the rules.

5. A