V. Ramaswami, J.
1. In the State of Tamil Nadu, the Assistant Public Prosecutors, in the City of Madras are governed by the Madras General Service Rules and they form a separate Class; the Assistant Public Prosecutors in the mofussil are governed by the Madras General Subordinate Service Rules. Prior to the coming into force of the Code of Criminal Procedure, 1973, there were two categories of Assistant Public Prosecutors. They were designated as Chief Assistant Public Prosecutors and Assistant State Prosecutors. Since the new Code of Criminal Procedure provided for appointment of Assistant Public Prosecutors and no category as Chief Assistant State Prosecutors, in G.O. Ms. No. 977, Home, dated 31st May, 1977, the rules were amended to the effect that wherever 'Chief Assistant State Prosecutor' is referred to in the Madras General Service Rules, it shall be read as 'Assistant Public Prosecutor-I (Metropolitan)' and where ever 'Assistant State Prosecutor' is mentioned it should be read as 'Assistant Public Prosecutor II (Metropolitan). There were two categories of Assistant Public Prosecutors in the mofussil, viz., 'Assistant Public Prosecutor, Grade I' and 'Assistant Public Prosecutor, Grade II'.
2. The Madras General Service Rules, as amended in G.O. Ms. No. 2575, Home, dated 13th October, 1969, provided three methods of recruitment for Assistant Public Prosecutors II (Metropolitan). They are--
(i) appointment from among the Assistant Public Prosecutor, Grade I;
(ii) recruitment by transfer from among the Assistant Public Prosecutors, Grade II, and
(iii) direct recruitment.
3. It is seen from the impugned Government Order that though there is no specific rule in the Madras General Service Rules or in the Madras General Subordinate Service Rules, the Government, as a working rule, has adopted so far one direct recruitment for every three appointments made by transfer from Assistant Public Prosecutors Grades I and II. The qualification prescribed for appointment as Assistant Public Prosecutor II (Metropolitan) is that the candidate must be a member of the Bar and shall have on the date of appointment not less than five years' active practice in criminal Courts and must not have completed the age of thirty-five years on the first day of August of the year in which the appointment is made.
4. Sometime in the year 1977, on the basis that certain Assistant Public Prosecutors, Grades I and II in the districts have given their willingness to be considered for appointment as Assistant Public Prosecutors, II (Metropolitan) their names were considered with reference to the recommendation made by the respective Collectors and ten persons, of whom seven have been impleaded as respondents 3 to 9 in W.P. No. 1403 of 1977, were selected by the Government for appointment as Assistant Public Prosecutors II (Metropolitan) in and by G.O. Ms. No. 1364, Home (Courts VI) Department, dated 7th May, 1977. Three candidates who were selected and who have not been impleaded are stated to have expressed their unwillingness and have not taken charge. It appears that at the time when this recruitment was made by the Government, there were seven permanent and ten temporary posts of Assistant Public Prosecutors, II (Metropolitan), in Madras city. Of these seventeen posts, one post was held by an approved probationer in the category of Assistant Public Prosecutor II. The remaining sixteen posts of Assistant Public Prosecutors, II (Metropolitan) were being held by temporary personnel from varying dates, the earliest being from April, 1971.
5. Of the temporary personnel, six persons were stated to have been regularised in the six permanent posts and they have been shown as respondents 10 to 15 in W.P. No. 1403 of 1977. It is for the remaining ten temporary posts, in the impugned G.O. the recruitment was made from among the Assistant Public Prosecutors Grades I and II in the districts. As already stated, the three persons who were recruited did not join and it is stated at the Bar that these vacancies also were filled up by regularising the seniormost three of the personnel who had not been regularised.
6. Thus, of the seventeen posts of Assistant : Public Prosecutors, II (Metropolitan) available in the City of Madras, the seven permanent posts were filled one by an approved probationer and six by Assistant Public Prosecutors II (Metropolitan) who were holding the posts temporarily. For the ten temporary posts, appointments were made from among the Assistant Public Prosecutors, Grades I and; II in the districts, but three of them have not joined; and the remaining seven are stated to have joined as Assistant Public Prosecutor, II (Metropolitan).
7. The learned Counsel for the petitioners; contended that though the petitioners in this batch of petitions have been holding the posts of Assistant Public Prosecutors, II (Metropolitan) from 1974, without regularising their services the Government have recruited Assistant' Public Prosecutors from the districts and therefore the selection and appointment of respondents 3 to 9 in W.P. No. 1403 of 1977 are invalid.
8. As admitted by the petitioners, they were recruited temporarily under Rule 7 of the Madras General Service Rules relating to the Class 'Assistant Public Prosecutor, I (Metropolitan) and Assistant Public Prosecutor, II (Metropolitan)'. They were not regular recruits and though they might be considered as having the requisite qualification for regular appointment, they cannot claim to have any rights to be considered for appointment as Assistant Public Prosecutors. They will be eligible if they satisfy the qualification for the post of Assistant Public Prosecutors for direct recruitment, but they will not be eligible for appointment under the other two sources, viz., Assistant Public Prosecutors, Grades I and II from the districts. The petitioners can have no grievance, therefore, when the Government appointed Assistant Public Prosecutors, from the districts as Assistant Public Prosecutors, II (Metropolitan). They may be aggrieved only if anybody has been appointed as a 'direct recruit' without following the prescribed procedure. Since nobody has been appointed as a direct recruit, the petitioners have no legal right to Question the appointments made in the impugned G.O.
9. Even so, the learned Counsel for the petitioners contended that as stated in the G.O. itself one direct recruitment should have been made for every three appointments made by transfer from Assistant Public Prosecutors, Grades I and II and this working rule had been contravened in the appointment of the ten candidates at a stretch. In other words, the argument is that of the sixteen posts available for appointment, the fourth, the eighth, the twelfth, and the sixteenth vacancies should have been filled by direct recruitment. Since no applications were called for, those vacancies could not have been filled up by the Government .
10. I think the learned Counsel for the petitioners is well-founded in this contention. As already stated, among the three sources for selection of Assistant Public Prosecutors, one is direct recruitment and the ratio is to be 3 : 1 between appointments by transfer and direct recruitment. The fourth vacancy could not have been filled by recruitment by transfer. Therefore, the fourth vacancy, the eighth vacancy, the twelfth vacancy and the sixteenth vacancy shall be deemed to have not been filled up.
11. The learned Counsel for the respondents pointed out that six temporary personnel have already been regularised prior to the writ petitions and three others were regularised during the pendency of the writ petitions and that there is no direct recruitment post vacant at this stage. This argument cannot be accepted at all because these vacancies which are to be filled by 'direct recruitment' could not have been filled up except by following the procedure prescribed for direct recruitment. Therefore, they shall be deemed to be vacant still and if the Government have already filled up those vacancies without following the procedure, it should be taken as 'supernumerary posts' and the personnel will have to be appointed in order to satisfy the rules made under Article 309 of the Constitution which can-not be violated by the Government.
12. The result, is, though the petitions are liable to be dismissed on the ground that the petitioners have no right to question the G.O., but they are entitled to get a declaration that the fourth, the eighth, the twelfth and the sixteenth vacancies will have to be filled by the Government only by direct recruitment. With this declaration, the writ petitions are dismissed. But there will be no order as to costs.