THE KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATIONversusTHE STATE OF KERALA AND ORS.

                        [2018] 6 S.C.R. 1139                            1139


     THE KERALA ASSISTANT PUBLIC PROSECUTORS                            A
                   ASSOCIATION
                                 v.
              THE STATE OF KERALA AND ORS.
                  (Civil Appeal No. 3792 of 2010)                       B
                            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     C
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        D
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 –        E
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           F
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     G
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.
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                                1139
1140            SUPREME COURT REPORTS                        [2018] 6 S.C.R.


 A            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
 B
       31 st 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
 C     or before 31st March, 2013 and who joined on and after 1st April,
       2013 are different – In that, those appointed on or before 31 st 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
 D
       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
 E     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
 F     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 31 st
       March, 2013. The High Court rightly opined that the method of
       appointment and conditions of service of Assistant Public
 G     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
 H
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION 1141
               v. STATE OF KERALA

exception. Public Prosecutors, however, are appointed from a            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
                                                                        B
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    C
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 31 st
March, 2013 and those who joined on or after 1st April, 2013, the       D
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           E
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 31 st March, 2013 or on or after 1 st April, 2013, either      F
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          G
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,
                                                                        H
1142             SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A     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
 B
       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
 C     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
 D
              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,
 E
       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
 F     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,
 G     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
 H
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION 1143
    v. STATE OF KERALA [ A. M. KHANWILKAR, J.]

Prosecutors and other officers whose age of superannuation is specified         A
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,        B
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             C
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             D
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
                                                                                E
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        F
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
                                                                                G
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               H
1144            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


 A     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
 B
       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
 C     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
 D     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
 E     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.
 F            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
 G     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
 H
KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION 1145
    v. STATE OF KERALA [ A. M. KHANWILKAR, J.]

other government employees without any exception. Public Prosecutors,          A
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
                                                                               B
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         C
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               D
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.                                                                   E

       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      F
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            G
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             H
1146                SUPREME COURT REPORTS                          [2018] 6 S.C.R.


 A     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
 B     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
 C     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
 D     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.

 E
       Ankit Gyan                                                     Appeal dismissed.




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