B.N. Srikrishna, C.J.
1. These five writ petitions, though from different districts, raise same issues of facts and law, and hence, they can be conveniently disposed of by a common judgment.
2. These petitions are filed in public interest by the petitioners who are practising advocates in different districts of Thiruvananthapuram, Ernakulam, Wayanad and Trissur. The petitions impugn Rules 7 and 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 as also the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases (Amendment) Rules, 2002.
3. The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (hereinafter called the '1978 Rules') were prescribed by the Government of Kerala purportedly in exercise of its powers under Section 2(1) of the Kerala Public Services Act, 1968. These rules prescribe the manner of appointment, duties and responsibilities of Government Law Officers appointed by the Government to conduct Government cases in any court or tribunal in the State and include District Government Pleaders and Public Prosecutors. We are not concerned with the other categories of Government Law Officers. Rules 7 and 8, which are material for the present purpose, read as under:
'7. Set up in District Court Centres, Additional District Court Centres and Sub Court Centres.- (1) There shall be one District Government Pleader and Public Prosecutor at each District Court Centre. There may also be such number of Additional Government Pleaders and, Additional Public Prosecutors as may be considered necessary by the Government at each District Court Centre, Additional District Court Centre and Sub Court Centre.
(2) Notwithstanding anything contained in Sub-rule (1), the Government may, if deemed necessary at any time, separate the offices of Government Pleaders and Public Prosecutors at any Court Centre and make separate appointments accordingly.
'8. Method of appointment of Government Law Officers at District Court, Additional District Court and Sub Court Centres, - (1) A Government Law Officer at a District Court Centre, Additional District Court Centre or Sub Court Centre shall be appointed by the Government from a panel of names of Advocates furnished by the District Collector concerned:
Provided that the Government shall try to give adequate representation to members of Scheduled Caste/Scheduled Tribe Communities in the matter of appointment of Government Law Officers.
(2) The District Collector shall, while preparing the panel bear in mind the following:-
(i) a person included in the panel shall have at least seven years practice as an advocate;
(i) the panel shall be prepared in consultation with the District and Sessions Judge and only those persons who, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents, are in the opinion of the District Collector, fit to be appointed, shall be included therein;
(iii) the character and antecedents in all persons included in the panel shall be got verified through the concerned Superintendent of Police.
Provided that if members from the Scheduled Caste, Scheduled Tribe Community are qualified to be appointed as Government Law Officer the panel shall contain at least the name of one member from such community.'
Note. - It shall not be necessary to advertise the vacancies or invite applications for appointment.
4. The 1978 Rules were amended with effect from 15th March, 2002 by the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases (Amendment) Rules, 2002 (hereinafter referred to as '2002 Rules'). Rule 8(2) of the 1978 Rules was amended by the 2002 Rules and substituted by the following:-
'(a) A list of advocates from the roll of advocates of the Bar Council of Kerala having at least seven years of practice in the Bar and who having regard to their qualification, experience, integrity, reliability, reputation and character and antecedents, are in the opinion of the District Collector, fit to be appointed as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge shall return the list with his remarks within ten clear days from the date of receipt of the same by him:
Provided that in preparing the list it shall not be necessary to advertise the vacancies or invite applications for the appointment.
(b) After the expiry of the time limit mentioned in Clause (a) for return of the list from the District and Sessions Judge the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause.
(c) In preparing the panel, the District Collector shall not include the name of any advocate whose name was not included in the list prepared by him under Clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds.
(d) The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police.
Provided that if the members of the Scheduled Caste or Scheduled Tribe Communities are qualified to be appointed as Law Officer, the panel shall contain the name of one member from such community.'
5. The petitioners contend that Section 24 of the Code of Criminal Procedure, 1973 envisages the appointment of Public Prosecutors at the level of the High Court or in every District for conducting prosecutions before the courts. Sub-section (3) of Section 24 enjoins that, for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. Sub-sections (4) to (7) of Section 24 of the Code dealing with the manner of appointment of Public Prosecutors read as under:
'(4) The District Magistrate, shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4).
(6) Notwithstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under Sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (6), only if he has been in practice as an advocate for not less than seven years.'
6. It is urged by the petitioners that the Public Prosecutor holds a statutory office of significance and is not merely an advocate engaged at the whim and fancy of the State Government. The special role assigned to the Public Prosecutor under the Code of Criminal Procedure is emphasised by the provisions of the Code of Criminal Procedure. The provisions of the Code of Criminal Procedure pointed out to the public element attached to the office of the Public Prosecutor inasmuch as Public Prosecutor alone is entitled to conduct prosecutions before courts and a prosecution once launched cannot be withdrawn without his consent. It is pointed out that it is a special feature of administration of justice in the field of criminal law in the court that an accused before a Sessions Court is conferred with the privilege of being prosecuted only by a Public Prosecutor as reflected in the mandate contained in Section 225 of the Code of Criminal Procedure which has no exception. Any private counsel engaged by the injured or any advocate by the relatives of a deceased, however influential they may be, are not so entitled to conduct the prosecution in the Sessions Court. This system is a glaring acknowledgment of the special status and position conferred on the office of the Public Prosecutor and the role assigned to a Public Prosecutor under the criminal justice system. It is on account of this special role assigned to the Public Prosecutor that the Code of Criminal Procedure lays down an elaborate manner of appointment of Public Prosecutors. See in this connection the judgment of this Court in Abdulkhader v. Government of Kerala, 1992 (2) KLT 948. The petitioners contend that the 1978 Rules and the 2002 Rules are in direct conflict with the statutory provisions of the Code of Criminal Procedure contained in Sub-sections (4) to (7) of Section 24 and hence they must be deemed to be overridden and, therefore, invalid.
7. A reference to the 1978 Rules shows that they have been prescribed in purported exercise of powers derived from Section 2(1) of the Kerala Public Services Act, 1968. The Kerala Public Services Act, 1968, as its title indicates, is an Act to regulate the recruitment and conditions of service of persons 'appointed to public services and posts in connection with the affairs of the State of Kerala'. The preamble of the said Act also makes this clear. Section 2(1) empowers the State Government to make rules to regulate the recruitment, and conditions of services of persons appointed, to public services and posts in connection with the affairs of the State of Kerala.
8. The learned Additional Advocate General appearing for the State straightaway conceded that the office of the Public Prosecutor is not a 'public service or post in connection with the affairs of the State of Kerala and that it was not possible to contend that the Kerala Public Services Act was referable to Entry 41 of List II (State List) of the 7th Schedule to the Constitution. The learned Additional Advocate General was, perhaps, forced to concede this for he realised that if the State Government were to take the stand that the Public Prosecutors were covered by the ambit of the expression 'service under the State' or 'civil posts under the State', then Article 311 would apply to their case. The learned Additional Advocate General, therefore, attempted to sustain the 1978 Rules and 2002 Rules by urging that they are referable to Entry 2 of List II in Schedule 7 of the Constitution.
9. Though learned Counsel for the petitioners urged that Article 254(2) would come into play, in our view, it is not necessary to go into the said question. We agree with the contention of the petitioners that, though purported to have been prescribed by deriving power from Section 2(1) of the Kerala Public Services Act, in actuality, Section 2(1) of the Kerala Public Services Act does not empower the Government to prescribe any rules with regard to the appointment of Public Prosecutors for the reason that Public Prosecutors are not employed in any public service or civil post under the State with reference to which along the State Government is empowered to prescribe rules under Section 2(1) of the Kerala Public Services Act. (See in this connection the judgment of this Court in Aboobacker v. M. Ratna Singh, 1992 (1) KLT 41.
10. The learned Additional Advocate General then attempted to sustain the 1978 and 2002 Rules as executive instructions or guidelines issued by the State for convenient implementation of the provisions of Section 24 of the Code of Criminal Procedure in the matter of appointment of Public Prosecutors. Even if it is assumed that the 1978 and 2002 Rules are merely of such nature without any statutory backing, we are of the view that, if there be conflict between the express provisions of law made by the Parliament and executive instructions or guidelines, then the latter have to yield.
11. The provisions of Section 24 of the Code of Criminal Procedure came to be interpreted by the Supreme Court in Harpal Singh Chauhan v. State of U.P., AIR 1993 SC 2436. In that case also a Manual issued by the State dealt with the manner of appointment of Public Prosecutors. Interpreting Section 24 of the Code of Criminal Procedure, the Supreme Court held that the Code prescribes the procedures for appointment of Public Prosecutor and Additional Public Prosecutor for the High Court and District Courts by the State Government. The framers of the Code were conscious on the fact that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting on behalf of the State accused persons, who are alleged to have committed one or the other offence. The Supreme Court said, 'it is for the Sessions Judge to assess the merit and professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of persons so recommended from the administrative point of view'. Referring to Section 24(5) of the Code, the Supreme Court held: 'the aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an Additional Public Prosecutor. That is why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge'. The Court categorically rejected the contention of the respondent - State of U.P. - that the expression 'in his opinion' used in Sub-section (4) of Section 24 of the Code left the matter to the subjective satisfaction of the District Magistrate and put it beyond the pale of judicial review. In the judgment of the Supreme Court, 'the quality of the counsel's work has to be judged and assessed by the District and Sessions Judge. The District Magistrate is required to consider the suitability of such person, from the administrative point of view.' Even when referring to Sub-section (4) of Section 24, which deals with the preparation of panel of names of persons, the Supreme Court held: 'the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions 'panel of names of persons', do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names.' According to the Supreme Court, the statutory mandate ought to be complied with by the District Magistrate and. the Sessions Judge in its true spirit, and this will be done only if there is an effective and real consultation between them. Anything less would amount to infraction of the provisions of Section 24. The judgment of the Supreme Court in State of U.P. v. U.P. State Law Officers Association (AIR 1994 SC 1654) and Srilekha Vidyarthi v. State of U.P. (AIR 1991 SC 537) also emphasise the important role assigned to Public Prosecutors under the Code and the paramount necessity of appointing them purely on merits without resort to other considerations.
12. Turning to the 1978 Rules we find that the Rules are directly in conflict with the provisions of Section 24 as interpreted by the Supreme Court in Chauhan's case (supra). Section 24(2) requires the District Collector to prepare a panel of prospective appointees in consultation with the District and Sessions Judge. What is of relevance is that in preparation of the panel regard must be had to the qualifications, experience, integrity, reliability reputation, character and antecedents of the persons. As laid down by the Supreme Court in Chauhan's case (supra) in the matter of qualifications, experience, integrity, reliability, and reputation it is the Sessions Judge alone who is the best Judge of these factors for the reason that the advocates would be appearing before him or his brother Judges day in and day out. The District Collector would have no access to any material on these facets. That is why Rule 8(2)(iii) of the 1978 Rules requires the character and antecedents of the persons included in the panel to be verified through the concerned Superintendent of Police. Even under the 1978 Rules as they exist, there is a distinction made between the manner of verification of the character and antecedents and the other factors to be considered. The law laid down by the Supreme Court in Chauhan's case (supra) clearly is that if the District and Sessions Judge has affirmed the suitability of a person with regard to qualifications, experience, integrity, reliability and reputation, it is only the suitability of such persons for being appointed as Public Prosecutors on administrative grounds that can be decided by the District Magistrate. In other words, the remaining issue is one of verification of the character and antecedents. To the extent the procedure prescribed in Rule 8(2) deviates from the procedure prescribed under Section 24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan's case (supra), it must be held to be bad and invalid.
13. The amendment made in 2002 by the 2002 Rules makes the matter worse. Rule 8(2)(a) requires the District Collector to prepare a list of advocates keeping in mind their qualifications, experience, integrity, reliability, reputation and character and antecedents and send it to the concerned District and Sessions Judge for consultation. The District and Session Judge has a limited role to play of returning the list with his remarks within ten clear days from the date of receipt. The panel of names is thereafter prepared by the District Collector by excluding all persons whose names were specifically disapproved by the District and Sessions Judge on specific grounds. Sub-rule (2)(c) of Rule 8 as amended provides that in preparing the panel the District Collector shall not include the name of any advocate whose name was not included in the list prepared by him under Clause (a). In other words even if the District and Sessions Judge is satisfied about the overall suitability with regard to qualifications, experience, integrity, reliability, reputation and character of an advocate to be recommended for appointment as Public Prosecutor, his name will not be included in the panel merely because the District Collector had not included it in the list sent to the District Judge. In our view, this provision is an objectionable provision directly contrary to the provisions of Section 24(4) of the Code as interpreted by the Supreme Court in Chauhan 's case (supra). As the Supreme Court pointed out, the effective consultation contemplated under Sub-section (4) of Section 24 of the Code of Criminal Procedure requires the meeting of minds of both the functionaries at the time of preparation of panel. This meeting of mind is not achieved if the District Collector forwards a list which is closed and gives the option to the District Judge only of adversely commenting upon the list without the option of adding to the names in the list. Hence to that extent, the 2002 Rules are also contrary to the provisions of Section 24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan's case (supra) and must be held to be bad.
14. The learned Additional Advocate General urged that even if the provisions of the 1978 Rules and 2002 Rules make a departure from the procedure prescribed in Section 24 of the Code of Criminal Procedure in the matter of appointment of Public Prosecutors they are saved by reason of Section 5 of the Code of Criminal Procedure which provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. It is not possible to accept this contention for more than one reason. In the first place, we are unable to accept the contention that executive instructions or guidelines are contemplated by the expression 'special or local law' used in Section 5 of the Code. Neither of these expressions is defined in the Code of Criminal Procedure. Section 2(y) of the Code of Criminal Procedure provides that the words and expressions not defined in the Code but defined in the Indian Penal Code shall have the meanings respectively assigned to them in the Indian Penal Code. Section 41 defines the expression special law as the law applicable to a particular subject and Section 42 defines the expression local law as the law applicable only to a particular part of India. In our view, these expressions do not contemplate executive instructions or guidelines. Otherwise, it would be easy to defeat the elaborate provisions of the Code of Criminal Procedure, 1973 by means of executive instructions or guidelines. Secondly, the Judgment of the Supreme Court in Ajmer Singh v. Union of India, AIR 1987 SC 1646, suggests that the effect of Section 5 of the Code of Criminal Procedure is to render the provision of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law, where the special law has prescribed the procedure for detention and custody of offenders, investigation and trial of the offenders such as by Courts Martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. If there are enactments which constitute a special law conferring special jurisdiction and powers on Courts Martial and prescribing a special form of procedure for the trial of the offences under the said Acts, the Supreme Court was of the view that Section 5 would operate and the general provisions prescribed in the Code of Criminal Procedure, 1973 would not. We are therefore, unable to accept the contention of the learned Additional Advocate General based on Section 5.
15. Mr. Ramakumar, learned Counsel appearing for the third respondent in O.P. No. 12897 of 2002 placed strong reliance on the judgment of the Supreme Court in S.R Gupta and Ors. v. President of India and Ors., AIR 1982 SC 149 and contended that the 'consultation' could never amount to concurrence, but must amount to a meeting of minds. There is no difficulty in accepting the contention. The petitioners are not contenting that the consultation contemplated in Sub-section (4) of Section 24 means concurrence. In any event, it is unnecessary for us to address ourselves to the concept of consultation, for Section 24(4) of the Code was itself the subject matter of interpretation by the Supreme Court in Chauhan 's case (supra) which has elaborately considered the meaning and content of the said section. The learned Counsel for the third respondent also relied on a Judgment of the Supreme Court in Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC 1018 at paragraph 26, and Indian Administrative Service (S.C.S.) Association v. Union of India, 1993 Supp. (1) SCC 730 at paras. 16 and 26 with regard to the concept of consultation. In our view, neither judgment advances the case of the respondent any further, for we are not concerned with the general concept of consultation under different statutes. Fortunately for us, the statute, with which we are concerned, namely Section 24(4) of the Code of Criminal Procedure has itself been interpreted by the Supreme Court in Chauhan 's case (supra) wherein it is indicated as to what the word 'consultation' means.
16. Mr. Ramakumar also relied on a Division Bench judgment of the court in Balakrishna Piliai v. State of Kerala, 1999 (1) KLT 1 to contend that the Government like any other private party can choose and appoint any advocate to appear on their behalf in any court of law. With respect, this Judgment do not hold the field in view of the subsequent pronouncement of the Supreme Court in Srilekha v. Vidyarthi (supra) and U.P. State Law Officers' case (supra). Hence, the above judgment is not good law to the extent of conflict with the view taken in the aforesaid two Supreme Court judgments
17. Learned Counsel for the petitioners relied on K.J. John, Asst. Public Prosecutor, Grade I, Palai v. State ofKerala, AIR 1990 SC 1902 at paragraph 10 wherein the view of the High Court that there was no regular cadre of prosecuting officers in the State of Kerala was upheld . Finally, in In Re: Director General of Prosecution, 1993 Crl. L.J. 760, a Division Bench of this Court also interpreted Section 5 of the Code of Criminal Procedure and held that if an act creating an offence does not prescribe any special form of procedure, the provisions contained in the Code will be applicable for the trial for such offences.
18. In the result, we are of the view that the 1978 Rules and 2002 Rules, in so far as they deviate from the procedure prescribed for appoint of Public Prosecutors under Section 24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan's case (supra) are bad. To that extent, therefore, they are declared to be invalid and unenforceable. The procedure prescribed under Section 24(4) for appointment of Public Prosecutors is required to be followed in the manner as interpreted and envisaged by the Supreme Court in Chauhan's case (supra).
19. Respondents 1 and 2 are hereby directed to expeditiously complete the appointment of Public Prosecutors/District Government Pleaders in different Districts strictly in the manner contemplated by Section 24 of the Code of Criminal Procedure as interpreted by the Supreme Court in Chauhan's case (supra) with in a period of two months from today.
Original Petitions are accordingly allowed. No order as to costs.