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.
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
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 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 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 31 st 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 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][1144F-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 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 31 st March, 2013 or on or after 1 st 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, 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.