The Kerala Assistant Public Prosecutors Association vs The State of Kerala and Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3792 OF 2010

THE KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION …..Appellant(s)

:Versus:

THE STATE OF KERALA AND ORS. ....Respondent(s)

JUDGMENT

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 Signature Not Verified Digitally signed by

parity to Assistant Public Prosecutors, in the matter of DEEPAK GUGLANI Date: 2018.05.17 15:43:57 IST Reason:

retirement age, with Public Prosecutors in the State. 2

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 Prosecutors and other officers whose age of

superannuation is specified at 60 years.

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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 4

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 5

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 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 6

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 7

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 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 8

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 9

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 subject matter of

challenge in the present case.

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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.

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10. This appeal, in our opinion, is devoid of merits and hence

the same is dismissed with no order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J. (A.M. Khanwilkar)

…………………………..….J. (Dr. D.Y. Chandrachud) New Delhi;

May 17, 2018.