1    

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)    

J U D G M E N T  

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    

 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.  

3    

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.   

10    

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.   

11    

 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.