THE KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION versus THE STATE OF KERALA AND ORS.
[2018] 6 S.C.R. 1139, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Arguments
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THE KERALA ASSISTANT PUBLIC PROSECUTORS
ASSOCIATION
v.
THE STATE OF KERALA AND ORS.
(Civil Appeal No. 3792 of 2010)
MAY 17, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Service Law – Appellant-association claimed for grant of
parity to Assistant Public Prosecutors, in the matter of retirement
age, with Public Prosecutors in the State – Claim rejected by the
High Court – Appellant contended that maximum age for
appointment of public prosecutors, for term of 3 years, is 60 years;
whereas the age of retirement of Assistant Public Prosecutors
appointed prior to 31st March, 2013 is 56 years – As both act as
officers of the Court, Assistant Public Prosecutors are also entitled
to be treated at par with Public Prosecutors and other officers whose
age of superannuation is specified at 60 years – On appeal, held:
No infirmity in the conclusion arrived at by the High Court – The
method of appointment and conditions of service of Assistant Public
Prosecutors and Public Prosecutors are qualitatively different –
Assistant Public Prosecutors are appointed through a competitive
selection process conducted by the Kerala Public Service
Commission and entitled to all service benefits as are enjoyed by
the other government employees without any exception – Public
Prosecutors, however, are appointed from a panel of advocates
furnished by the Advocate General for a period of 3 years and they
are not considered as government employees and do not
derive any
service benefits as in the case of government employees – The fact
that the nature of duties and functions of Assistant Public
Prosecutors and Public Prosecutors are similar, per se, cannot be
the basis to claim parity with Public Prosecutors in respect of age
of superannuation – Code of Criminal Procedure, 1973 – ss.24
and 25 – Kerala Service Rules – r.60(b) to (d) – Kerala Government
Law Officers (Appointment and Conditions of service) and Conduct
of Cases Rules, 1978.
[2018] 6 S.C.R. 1139
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Service Law – Appellant-association contended that there are
Assistant Public Prosecutors appointed on or after 1st April, 2013
whose age of superannuation is 60 years; whereas there are Assistant
Public Prosecutors appointed prior to 31st March, 2013 whose age
of superannuation is 56 years – Appellant sought that the age of
superannuation  of Assistant Public Prosecutors appointed prior to
31st March, 2013 to be brought at par to 60 years – Further,
alternately it was pleaded that Assistant Public Prosecutors were
willing to forego the pension for the extra period of service which
will accrue from the age of 56 years till 60 years – Held: Conditions
of service of Assistant Public Prosecutors who were appointed on
or before 31st March, 2013 and who joined on and after 1st April,
2013 are different – In that, those appointed on or before 31st March,
2013 are governed by the statutory pension scheme under the
Service Rules as in the case of other government employees; and
those appointed on or after 1st April, 2013 are governed by the new
Contributory Pension Scheme made applicable to all the government
employees and not limited to Assistant Public Prosecutors – If the
alternate plea of appellant to forego pension is accepted, it will
create anomaly and also discrimination and hardship to the rest of
the government employees appointed prior to 31st March, 2013, as
they would retire at the age of 56 years – Further, it
is a policy
matter – It is open to the appellant to make a representation to the
concerned State authority who will be free to take an appropriate
decision as may be advised and permissible in law.
Dismissing the appeal, the Court
HELD:  1. There is no infirmity in the conclusion arrived
at by the High Court in rejecting the claim of the appellant to
accord parity in respect of age of superannuation at 60 years to
the Assistant Public Prosecutors appointed on or before 31st
March, 2013.  The High Court rightly opined that the method of
appointment and conditions of service of Assistant Public
Prosecutors and Public Prosecutors are qualitatively different.
Assistant Public Prosecutors are appointed through a competitive
selection process conducted by the Kerala Public Service
Commission as per the rules in vogue. After appointment,
Assistant Public Prosecutors are entitled to all service benefits
as are enjoyed by the other government employees without any
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exception. Public Prosecutors, however, are appointed from a
panel of advocates furnished by the Advocate General and the
term of appointment of Public Prosecutors is for a period of 3
years only. They are not considered as government employees
and do not derive any service benefits as in the case of government
employees. They can even be terminated by the Government at
any time before the expiry of normal term of appointment, without
assigning any reason. The Government is also free to re-appoint
any person appointed as Public Prosecutor for a further period
subject to eligibility. The fact that the nature of duties and
functions of Assistant Public Prosecutors and Public Prosecutors
are similar, per se, cannot be the basis to claim parity with Public
Prosecutors in respect of age of superannuation.[Para 6][1144-
F-H; 1145-A-C]
2.  As regards the disparity in the age of superannuation of
the Assistant Public Prosecutors appointed on or before 31st
March, 2013 and those who joined on or after 1st April, 2013, the
said contention is also devoid of merits inasmuch as the conditions
of service of the concerned set of Assistant Public Prosecutors
is distinct. In that, those appointed on or before 31st March, 2013
are governed by the statutory pension scheme under the Service
Rules as in the case of other government employees; and those
appointed on or after 1st April, 2013 are governed by the new
Contributory Pension Scheme made applicable to all the
government employees and not limited to Assistant Public
Prosecutors. Assistant Public Prosecutors are only a small section
of the genre of State Government employees – be it appointed
prior to 31st March, 2013 or on or after 1st April, 2013, either
governed by statutory Pension Scheme or the new Contributory
Pension Scheme, as the case may be. [Para 8][1145-E-H]
3.  An alternative plea was made by the appellant Association
that the members of the appellant Association appointed on or
before 31st March, 2013 and who are still serving as Assistant
Public Prosecutors, if continued till 60 years, are willing to forego
their pension, without any demur, for the extra period of service
which will accrue from the age of 56 years till 60 years. Accepting
this offer would create anomaly, discrimination and hardship to
the rest of the government employees appointed prior to 1st April,
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION
v. STATE OF KERALA
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2013 as they all will retire at the age of 56 years. In any case, this
is a policy matter. It is best left to the State Government. It will
be a different matter if the Government accepts the offer given
by the appellant on behalf of its members. It is open to the
appellant to make a representation to the concerned State
authority who will be free to take an appropriate decision as may
be advised and permissible in law. [Para 9][1146-A-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3792
of 2010.
From the Judgment and Order dated 07.03.2008 of the High Court
of Kerala at Ernakulam in W.A. No. 514 of 2008.
R. Basant, Sr. Adv., P. S. Sudheer, Manu Krishnan G.,
Mrs. Nagenthera Roy, Nishe Rajen Shonker, Anu K. Joy, A. Anvar,
E.M.S. Anam, Liz Mathew, G. Prakash, Advs. for the appearing parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. The appellant Association has
assailed the judgment and order dated 7th March, 2008 passed by the
Division Bench of the High Court of Kerala at Ernakulam in Writ Appeal
No.514 of 2008, whereby the High Court rejected the claim for grant of
parity to Assistant Public Prosecutors, in the matter of retirement age,
with Public Prosecutors in the State.
2. According to the appellant, Assistant Public Prosecutors are
appointed to the Magistrate Court to conduct prosecutions as per Section
25 of the Code of Criminal Procedure (for short “the Code”).  The
Public
Prosecutors are also appointed to conduct prosecutions in the
Sessions Court under Section 24 of the Code. The nature of duties,
functions and powers of both Assistant Public Prosecutors and Public
Prosecutors are similar. The maximum age for appointment of Public
Prosecutors, for a term of 3 years, is 60 years; whereas the age of
retirement of Assistant Public Prosecutors appointed prior to 31st March,
2013 is 56 years.  It is stated that even the age of superannuation of
judicial officers in the State of Kerala is 60 years. The Public Prosecutors
as well as the Assistant Public Prosecutors act as officers of the Court
when appearing in Court and both have an important role in the criminal
justice system. On these assertions, the appellant claims that Assistant
Public Prosecutors are also entitled to be treated at par with Public
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Prosecutors and other officers whose age of superannuation is specified
at 60 years.
3. It is stated that there are 61 Assistant Public Prosecutors
appointed on or after 1st April, 2013 whose age of superannuation is 60
years;  whereas there are 90 Assistant Public Prosecutors appointed
prior to 31st March, 2013 whose age of superannuation is 56 years. Thus,
considering the nature of the duties and responsibilities of Assistant Public
Prosecutors and the fact that they discharge similar duties and functions
as that of Public Prosecutors and more particularly, the existing cadre
strength of 150 Assistant Public Prosecutors and 61 District Public
Prosecutors, and also the officers mentioned in Rule 60 (b) to (d) of the
Kerala Service Rules, whose age of superannuation has been fixed at
60 years, the age of superannuation of Assistant Public Prosecutors
appointed prior to 31st March, 2013 ought to be brought at par to 60
years. It is alternatively contended that as the age of superannuation of
Assistant Public Prosecutors who joined service on or after 1st April,
2013 is 60 years, the members of the appellant Association who have
been appointed prior to 31st March, 2013 and are still serving as Assistant
Public Prosecutors are willing to forego the pension for the extra period
of service which will accrue from the age of 56 years till 60 years without
any demur.
4. Per contra, the respondent State asserts that the mode of
appointment and conditions of
service of Assistant Public Prosecutors
and Public Prosecutors are entirely different. Assistant Public Prosecutors
are selected as per the advice given by the Kerala Public Service
Commission according to their merit and rules for reservation, after
conducting a competitive examination and preparation of rank list in
accordance with the rules.  The Assistant Public Prosecutors so appointed
are entitled to all service benefits which are enjoyed by any other
government employee and their service has no distinctive feature from
that of other government employees. Public Prosecutors are, however,
appointed by the Government under the Kerala Government Law
Officers (Appointment and Conditions of Service) and Conduct of  Cases
Rules, 1978, from a panel  of advocates furnished by the Advocate
General. The term of appointment of Public Prosecutors is for a period
of 3 years and they can be re-appointed by the Government for a further
period, subject to eligibility. The Government is free to terminate the
service of  Public Prosecutor at any time before the expiry of his normal
term of appointment without assigning any reason. Notably, Public
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION
v. STATE OF KERALA [ A. M. KHANWILKAR, J.]
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Prosecutors are not entitled to any service benefits since they are not
government employees. As regards the Assistant Public Prosecutors
appointed on or after 1st April, 2013, the age of superannuation is at par
with the other government employees and consequent to the introduction
of the new Contributory Pension Scheme, it is made applicable to all
appointees after the cut-off date. The Assistant Public Prosecutors
appointed on or before 31st March, 2013 are, however, entitled to the
benefit of statutory pension as in the case of other government employees,
whose age of superannuation has been fixed at 56 years. In the event,
the claim of the Assistant Public Prosecutors appointed on or before 31st
March, 2013, is to be accepted, it will create an anomaly and also
discrimination and hardship to the rest of the government employees
appointed prior to 1st April, 2013, as they would retire at the age of 56
years.
5. According to the respondents, Writ Petition (Civil) No.12703 of
2005, filed by the appellant was justly rejected by the learned Single
Judge on 8th June, 2006 and the Division Bench vide impugned judgment
affirmed that decision in Writ Appeal No.514 of 2008 on 7th March,
2008.  The learned Single Judge as well as the Division Bench have
noted that Public Prosecutors are not judicial officers and more
particularly, the terms and conditions of service of Assistant Public
Prosecutors and Public Prosecutors
are distinct.  Further, Assistant Public
Prosecutors are governed by the service conditions as per the Kerala
Service Rules in force, which are uniformly applicable to all government
employees. The respondent State submits that there is no infirmity in the
view taken by the learned Single Judge and the Division Bench of the
High Court and for which reason this appeal is devoid of merits.
6. We have cogitated over the rival submissions and after
examining the records, we find no infirmity in the conclusion arrived at
by the High Court in rejecting the claim of the appellant to accord parity
in respect of age of superannuation at 60 years to the Assistant Public
Prosecutors appointed on or before 31st March, 2013.  The High Court
rightly opined that the method of appointment and conditions of service
of Assistant Public Prosecutors and Public Prosecutors are qualitatively
different. Assistant Public Prosecutors are appointed through a
competitive selection process conducted by the Kerala Public Service
Commission as per the rules in vogue. After appointment, Assistant Public
Prosecutors are entitled to all service benefits as are enjoyed by the
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other government employees without any exception. Public Prosecutors,
however, are appointed from a panel of advocates furnished by the
Advocate General and the term of appointment of Public Prosecutors is
for a period of 3 years only. They are not considered as government
employees and do not derive any service benefits as in the case of
government employees. They can even be terminated by the Government
at any time before the expiry of normal term of appointment, without
assigning any reason. The Government is also free to re-appoint any
person appointed as Public Prosecutor for a further period subject to
eligibility. The fact that the nature of duties and functions of Assistant
Public Prosecutors and Public Prosecutors are similar, per se, cannot be
the basis to claim parity with Public Prosecutors in respect of age of
superannuation.
7. Reliance placed by the appellant on the factum of officers in
Kerala Judicial Service and other officers referred to in Rule 60 (b) to
(d) regarding their age of superannuation at 60 years, is also of no avail
to the appellant.  The fact that Assistant Public Prosecutors are
considered as officers of the Court as in the case of Public Prosecutors,
can be no basis to equate them with the judicial officers whose method
of appointment and conditions of service are distinct.  The issue on hand
cannot be decided merely on the basis of comparison of the nature of
duties and functions of Public Prosecutors and Assistant
Public
Prosecutors.
8. As regards the disparity in the age of superannuation of the
Assistant Public Prosecutors appointed on or before 31st March, 2013
and those who joined on or after 1st April, 2013, the said contention is
also devoid of merits inasmuch as the conditions of service of the
concerned set of Assistant Public Prosecutors is distinct. In that, those
appointed on or before 31st March, 2013 are governed by the statutory
pension scheme under the Service Rules as in the case of other
government employees; and those appointed on or after 1st April, 2013
are governed by the new Contributory Pension Scheme made applicable
to all the government employees and not limited to Assistant Public
Prosecutors. Assistant Public Prosecutors are only a small section of
the genre of State Government employees – be it appointed prior to 31st
March, 2013 or on or after 1st April, 2013, either governed by statutory
Pension Scheme or the new Contributory Pension Scheme, as the case
may be. Be it noted, the cut-off date of 1st April, 2013 for introducing the
new Contributory Pension Scheme by the State Government is not the
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION
v. STATE OF KERALA [ A. M. KHANWILKAR, J.]
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subject matter of challenge in the present case.
9. Realising this position, an alternative plea has been taken by
the appellant Association that the members of the appellant Association
appointed on or before 31st March, 2013 and who are still serving as
Assistant Public Prosecutors, if continued till 60 years, are willing to
forego their pension, without any demur, for the extra period of service
which will accrue from the age of 56 years till 60 years. The argument,
though attractive, cannot be the basis to issue such direction to the State
Government. We agree with the respondent State that accepting this
offer would create anomaly, discrimination and hardship to the rest of
the government employees appointed prior to 1st April, 2013 as they all
will retire at the age of 56 years. In any case, this is a policy matter. It is
best left to the State Government. It will be a different matter if the
Government accepts the offer given by the appellant on behalf of its
members. We express no opinion in that behalf.  It is open to the appellant
to make a representation to the concerned State authority who will be
free to take an appropriate decision as may be advised and permissible
in law. We say no more.
10. This appeal, in our opinion, is devoid of merits and hence the
same is dismissed with no order as to costs.
Ankit Gyan
Appeal dismissed.