THE KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION versus THE STATE OF KERALA AND ORS. on 17 May 2018

[2018] 6 S.C.R. 1139

THE KERALA ASSISTANT PUBLIC PROSECUTORSASSOCIATION

v.

THE STATE OF KERALA AND ORS.

(Civil Appeal No. 3792 of 2010)

MAY 17, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Service Law – Appellant-association claimed for grant ofparity to Assistant Public Prosecutors, in the matter of retirementage, with Public Prosecutors in the State – Claim rejected by theHigh Court – Appellant contended that maximum age forappointment of public prosecutors, for term of 3 years, is 60 years;whereas the age of retirement of Assistant Public Prosecutorsappointed prior to 31[st] March, 2013 is 56 years – As both act asofficers of the Court, Assistant Public Prosecutors are also entitledto be treated at par with Public Prosecutors and other officers whoseage of superannuation is specified at 60 years – On appeal, held:No infirmity in the conclusion arrived at by the High Court – Themethod of appointment and conditions of service of Assistant PublicProsecutors and Public Prosecutors are qualitatively different –Assistant Public Prosecutors are appointed through a competitiveselection process conducted by the Kerala Public ServiceCommission and entitled to all service benefits as are enjoyed bythe other government employees without any exception – PublicProsecutors, however, are appointed from a panel of advocatesfurnished by the Advocate General for a period of 3 years and theyare not considered as government employees and do not derive anyservice benefits as in the case of government employees – The factthat the nature of duties and functions of Assistant PublicProsecutors and Public Prosecutors are similar, per se, cannot bethe basis to claim parity with Public Prosecutors in respect of ageof superannuation – Code of Criminal Procedure, 1973 – ss.24and 25 – Kerala Service Rules – r.60(b) to (d) – Kerala GovernmentLaw Officers (Appointment and Conditions of service) and Conductof Cases Rules, 1978.

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AService Law – Appellant-association contended that there areAssistant Public Prosecutors appointed on or after 1[st] April, 2013whose age of superannuation is 60 years; whereas there are AssistantPublic Prosecutors appointed prior to 31[st] March, 2013 whose ageof superannuation is 56 years – Appellant sought that the age ofsuperannuation of Assistant Public Prosecutors appointed prior toB31[st] March, 2013 to be brought at par to 60 years – Further,alternately it was pleaded that Assistant Public Prosecutors werewilling to forego the pension for the extra period of service whichwill accrue from the age of 56 years till 60 years – Held: Conditionsof service of Assistant Public Prosecutors who were appointed onCor before 31[st] March, 2013 and who joined on and after 1[st] April,2013 are different – In that, those appointed on or before 31[st] March,2013 are governed by the statutory pension scheme under theService Rules as in the case of other government employees; andthose appointed on or after 1[st] April, 2013 are governed by the new Contributory Pension Scheme made applicable to all the governmentDemployees and not limited to Assistant Public Prosecutors – If thealternate plea of appellant to forego pension is accepted, it willcreate anomaly and also discrimination and hardship to the rest ofthe government employees appointed prior to 31[st] March, 2013, asthey would retire at the age of 56 years – Further, it is a policyEmatter – It is open to the appellant to make a representation to theconcerned State authority who will be free to take an appropriatedecision as may be advised and permissible in law.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1. There is no infirmity in the conclusion arrivedFat by the High Court in rejecting the claim of the appellant toaccord parity in respect of age of superannuation at 60 years tothe Assistant Public Prosecutors appointed on or before 31[st]March, 2013. The High Court rightly opined that the method ofappointment and conditions of service of Assistant PublicGProsecutors and Public Prosecutors are qualitatively different.Assistant Public Prosecutors are appointed through a competitiveselection process conducted by the Kerala Public ServiceCommission as per the rules in vogue. After appointment,Assistant Public Prosecutors are entitled to all service benefitsas are enjoyed by the other government employees without anyH

KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATIONv. STATE OF KERALA

exception. Public Prosecutors, however, are appointed from apanel of advocates furnished by the Advocate General and theterm of appointment of Public Prosecutors is for a period of 3years only. They are not considered as government employeesand do not derive any service benefits as in the case of governmentemployees. They can even be terminated by the Government atany time before the expiry of normal term of appointment, withoutassigning any reason. The Government is also free to re-appointany person appointed as Public Prosecutor for a further periodsubject to eligibility. The fact that the nature of duties andfunctions of Assistant Public Prosecutors and Public Prosecutorsare similar, per se, cannot be the basis to claim parity with PublicProsecutors in respect of age of superannuation.[Para 6][1144-F-H; 1145-A-C]

2. As regards the disparity in the age of superannuation ofthe Assistant Public Prosecutors appointed on or before 31[st]March, 2013 and those who joined on or after 1[st] April, 2013, thesaid contention is also devoid of merits inasmuch as the conditionsof service of the concerned set of Assistant Public Prosecutorsis distinct. In that, those appointed on or before 31[st] March, 2013are governed by the statutory pension scheme under the ServiceRules as in the case of other government employees; and thoseappointed on or after 1[st] April, 2013 are governed by the newContributory Pension Scheme made applicable to all thegovernment employees and not limited to Assistant PublicProsecutors. Assistant Public Prosecutors are only a small sectionof the genre of State Government employees – be it appointedprior to 31[st] March, 2013 or on or after 1[st] April, 2013, eithergoverned by statutory Pension Scheme or the new ContributoryPension Scheme, as the case may be. [Para 8][1145-E-H]

3. An alternative plea was made by the appellant Associationthat the members of the appellant Association appointed on orbefore 31[st] March, 2013 and who are still serving as AssistantPublic Prosecutors, if continued till 60 years, are willing to foregotheir pension, without any demur, for the extra period of servicewhich will accrue from the age of 56 years till 60 years. Acceptingthis offer would create anomaly, discrimination and hardship tothe rest of the government employees appointed prior to 1[st] April,

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A2013 as they all will retire at the age of 56 years. In any case, thisis a policy matter. It is best left to the State Government. It willbe a different matter if the Government accepts the offer givenby the appellant on behalf of its members. It is open to theappellant to make a representation to the concerned Stateauthority who will be free to take an appropriate decision as mayBbe advised and permissible in law. [Para 9][1146-A-D]CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3792of 2010.

From the Judgment and Order dated 07.03.2008 of the High CourtCof 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 byD

A. M. KHANWILKAR, J. 1. The appellant Association hasassailed the judgment and order dated 7[th] March, 2008 passed by theDivision Bench of the High Court of Kerala at Ernakulam in Writ AppealNo.514 of 2008, whereby the High Court rejected the claim for grant ofparity to Assistant Public Prosecutors, in the matter of retirement age,Ewith Public Prosecutors in the State.

2. According to the appellant, Assistant Public Prosecutors areappointed to the Magistrate Court to conduct prosecutions as per Section25 of the Code of Criminal Procedure (for short “the Code”). ThePublic Prosecutors are also appointed to conduct prosecutions in theFSessions Court under Section 24 of the Code. The nature of duties,functions and powers of both Assistant Public Prosecutors and PublicProsecutors are similar. The maximum age for appointment of PublicProsecutors, for a term of 3 years, is 60 years; whereas the age ofretirement of Assistant Public Prosecutors appointed prior to 31[st] March,G2013 is 56 years. It is stated that even the age of superannuation ofjudicial officers in the State of Kerala is 60 years. The Public Prosecutorsas well as the Assistant Public Prosecutors act as officers of the Courtwhen appearing in Court and both have an important role in the criminaljustice system. On these assertions, the appellant claims that AssistantPublic Prosecutors are also entitled to be treated at par with Public H

KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATIONv. STATE OF KERALA [ A. M. KHANWILKAR, J.]

Prosecutors and other officers whose age of superannuation is specifiedat 60 years.

3. It is stated that there are 61 Assistant Public Prosecutorsappointed on or after 1[st] April, 2013 whose age of superannuation is 60years; whereas there are 90 Assistant Public Prosecutors appointedprior to 31[st] March, 2013 whose age of superannuation is 56 years. Thus,considering the nature of the duties and responsibilities of Assistant PublicProsecutors and the fact that they discharge similar duties and functionsas that of Public Prosecutors and more particularly, the existing cadrestrength of 150 Assistant Public Prosecutors and 61 District PublicProsecutors, and also the officers mentioned in Rule 60 (b) to (d) of theKerala Service Rules, whose age of superannuation has been fixed at60 years, the age of superannuation of Assistant Public Prosecutorsappointed prior to 31[st] March, 2013 ought to be brought at par to 60years. It is alternatively contended that as the age of superannuation ofAssistant Public Prosecutors who joined service on or after 1[st] April,2013 is 60 years, the members of the appellant Association who havebeen appointed prior to 31[st] March, 2013 and are still serving as AssistantPublic Prosecutors are willing to forego the pension for the extra periodof service which will accrue from the age of 56 years till 60 years withoutany demur.

4. Per contra, the respondent State asserts that the mode ofappointment and conditions of service of Assistant Public Prosecutorsand Public Prosecutors are entirely different. Assistant Public Prosecutorsare selected as per the advice given by the Kerala Public ServiceCommission according to their merit and rules for reservation, afterconducting a competitive examination and preparation of rank list inaccordance with the rules. The Assistant Public Prosecutors so appointedare entitled to all service benefits which are enjoyed by any othergovernment employee and their service has no distinctive feature fromthat of other government employees. Public Prosecutors are, however,appointed by the Government under the Kerala Government LawOfficers (Appointment and Conditions of Service) and Conduct of CasesRules, 1978, from a panel of advocates furnished by the AdvocateGeneral. The term of appointment of Public Prosecutors is for a periodof 3 years and they can be re-appointed by the Government for a furtherperiod, subject to eligibility. The Government is free to terminate theservice of Public Prosecutor at any time before the expiry of his normalterm of appointment without assigning any reason. Notably, Public A

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AProsecutors are not entitled to any service benefits since they are notgovernment employees. As regards the Assistant Public Prosecutorsappointed on or after 1[st] April, 2013, the age of superannuation is at parwith the other government employees and consequent to the introductionof the new Contributory Pension Scheme, it is made applicable to allappointees after the cut-off date. The Assistant Public ProsecutorsBappointed on or before 31[st] March, 2013 are, however, entitled to thebenefit 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 31[st]March, 2013, is to be accepted, it will create an anomaly and alsoCdiscrimination and hardship to the rest of the government employeesappointed prior to 1[st] April, 2013, as they would retire at the age of 56years.

5. According to the respondents, Writ Petition (Civil) No.12703 of2005, filed by the appellant was justly rejected by the learned SingleDJudge on 8[th] June, 2006 and the Division Bench vide impugned judgmentaffirmed that decision in Writ Appeal No.514 of 2008 on 7[th] March,2008. The learned Single Judge as well as the Division Bench havenoted that Public Prosecutors are not judicial officers and moreparticularly, the terms and conditions of service of Assistant PublicProsecutors and Public Prosecutors are distinct. Further, Assistant PublicEProsecutors are governed by the service conditions as per the KeralaService Rules in force, which are uniformly applicable to all governmentemployees. The respondent State submits that there is no infirmity in theview taken by the learned Single Judge and the Division Bench of theHigh Court and for which reason this appeal is devoid of merits.F

6. We have cogitated over the rival submissions and afterexamining the records, we find no infirmity in the conclusion arrived atby the High Court in rejecting the claim of the appellant to accord parityin respect of age of superannuation at 60 years to the Assistant PublicProsecutors appointed on or before 31[st] March, 2013. The High CourtGrightly opined that the method of appointment and conditions of serviceof Assistant Public Prosecutors and Public Prosecutors are qualitativelydifferent. Assistant Public Prosecutors are appointed through acompetitive selection process conducted by the Kerala Public ServiceCommission as per the rules in vogue. After appointment, Assistant PublicProsecutors are entitled to all service benefits as are enjoyed by the H

H

other government employees without any exception. Public Prosecutors,however, are appointed from a panel of advocates furnished by theAdvocate General and the term of appointment of Public Prosecutors isfor a period of 3 years only. They are not considered as governmentemployees and do not derive any service benefits as in the case ofgovernment employees. They can even be terminated by the Governmentat any time before the expiry of normal term of appointment, withoutassigning any reason. The Government is also free to re-appoint anyperson appointed as Public Prosecutor for a further period subject toeligibility. The fact that the nature of duties and functions of AssistantPublic Prosecutors and Public Prosecutors are similar, per se, cannot bethe basis to claim parity with Public Prosecutors in respect of age ofsuperannuation.

7. Reliance placed by the appellant on the factum of officers inKerala 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 availto the appellant. The fact that Assistant Public Prosecutors areconsidered as officers of the Court as in the case of Public Prosecutors,can be no basis to equate them with the judicial officers whose methodof appointment and conditions of service are distinct. The issue on handcannot be decided merely on the basis of comparison of the nature ofduties and functions of Public Prosecutors and Assistant PublicProsecutors.

8. As regards the disparity in the age of superannuation of theAssistant Public Prosecutors appointed on or before 31[st] March, 2013and those who joined on or after 1[st] April, 2013, the said contention isalso devoid of merits inasmuch as the conditions of service of theconcerned set of Assistant Public Prosecutors is distinct. In that, thoseappointed on or before 31[st] March, 2013 are governed by the statutorypension scheme under the Service Rules as in the case of othergovernment employees; and those appointed on or after 1[st] April, 2013are governed by the new Contributory Pension Scheme made applicableto all the government employees and not limited to Assistant PublicProsecutors. Assistant Public Prosecutors are only a small section ofthe genre of State Government employees – be it appointed prior to 31[st]March, 2013 or on or after 1[st] April, 2013, either governed by statutoryPension Scheme or the new Contributory Pension Scheme, as the casemay be. Be it noted, the cut-off date of 1[st] April, 2013 for introducing thenew Contributory Pension Scheme by the State Government is not the ABCDE

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Asubject matter of challenge in the present case.

9. Realising this position, an alternative plea has been taken bythe appellant Association that the members of the appellant Associationappointed on or before 31[st] March, 2013 and who are still serving asAssistant Public Prosecutors, if continued till 60 years, are willing toBforego their pension, without any demur, for the extra period of servicewhich 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 StateGovernment. We agree with the respondent State that accepting thisoffer would create anomaly, discrimination and hardship to the rest ofthe government employees appointed prior to 1[st] April, 2013 as they allCwill retire at the age of 56 years. In any case, this is a policy matter. It isbest left to the State Government. It will be a different matter if theGovernment accepts the offer given by the appellant on behalf of itsmembers. We express no opinion in that behalf. It is open to the appellantto make a representation to the concerned State authority who will beDfree to take an appropriate decision as may be advised and permissiblein law. We say no more.

10. This appeal, in our opinion, is devoid of merits and hence thesame is dismissed with no order as to costs.

E

Ankit Gyan

Appeal dismissed.

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