The appointment of Special Public Prosecutors under the POCSO Act is validly within the purview of the State Government despite the absence of central rules, following state procedural law.

JUDGMENT

Petitioner is an applicant to the post of Special Public Prosecutor under the Protection of Children from Sexual Offences Act , in short “POCSO Act”.

2. Petitioner claims to be an advocate practicing in Idukki District Centre, mainly in the criminal courts and also the Courts established under the POCSO Act. Ext.P1 notification was issued by the third respondent dated 06.06.2017 regarding the preparation of a list of persons qualified to be appointed as Special Public Prosecutor under section 32(2) of POCSO Act in the Special Court at Idukki. Ext.P2 is the gist of Ext.P1 issued to the District Court and the notice was published as Ext.P3. Pursuant to Ext.P2, petitioner submitted his bio-data enclosing the certificates evidencing his duration of practice. Subsequently, he came across Ext.P5 dated 14.06.2017 addressed to the District Government Pleader and Public Prosecutor ,Thrissur requesting him to submit a panel of advocates for considering them for appointment as Special Public Prosecutor under section 32(2) of the POCSO Act. Petitioner contends that section 45 of the POCSO Act enables the Central Government to make Rules for carrying out the purposes of the Act.

No Rule has been framed by the Central Government for appointment of Special Public Prosecutor under section 32(2) of the POCSO Act. It was contended that, in the absence of any procedure for selection contemplated under the POCSO Act and its Rules, 6th respondent, Union of India, may be directed to frame Rules under section 45(1) of the Act, prescribing the procedure for appointment to the post of Special Public Prosecutor under section 32(2) of the Act. It was further contended that the present procedure adopted for preparing the list of advocates for appointment to the post of Special Public Prosecutor under section 32(2) of the POCSO Act evidenced by Exts.P1, P2 and P5 are arbitrary and illegal, being in violation of Articles 14 and 19(1)(f) of the Constitution of India. It was contended that the Commissioner under the Protection of Child Rights Act 2005 was not consulted. He sought a writ of mandamus or other writ order or direction compelling respondents 1 to 4 to make appointment to the post of Special Public Prosecutor under section 32(2) of the Protection of Children from Sexual Offences Act .

3. The first respondent has filed a detailed counter affidavit traversing the various allegations in the petition. It was contended that no writ or other direction can be issued commanding the authorities vested with the power of legislation to frame Rules. It was also contended that the contention set up by the petitioner, that the State Government is not competent to appoint the Special Public Prosecutors under section 32(2) in the absence of Rules framed by the Central Government in that regard is also not sustainable. It was further contended that the petitioner, being an applicant to the selection process, cannot challenge the selection process as such, during the pendency of its processing. According to the first respondent, POCSO Act does not contemplate framing of any Rules for the purpose of appointment of Special Public Prosecutor. Like in many statutes, appointment of Public Prosecutor and Special Public Prosecutor, as the case may be, is vested under the State government, being an item included in the concurrent list of the Constitution of India r/w section 32(2) of the POCSO Act, empowering the State Government to appoint Special Public Prosecutor. It was stated that the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, is in force regarding the appointment and other factors relating to the appointment of Government Law Officers other than the Advocate General and Additional Advocate General. According to the first respondent, Rules provided for the appointment of Government Pleader, Public Prosecutor, and Special Public Prosecutor to defend the State and to conduct criminal prosecution.

4. I