The Supreme Court on 17th May, 2018 said that Assistant Public Prosecutors are not entitled to be treated at par with Public Prosecutors and other officers whose age of superannuation is specified at 60 years. This judgement was given by the bench of Hon’ble Chief Justice Dipak Misra and Hon’ble Justices A.M. Khanwilkar and Dr. D.Y. Chandrachud in the case of THE KERALA ASSISTANT PUBLIC PROSECUTORS ASSOCIATION V. THE STATE OF KERALA AND ORS.[CIVIL APPEAL NO.3792 OF 2010]
The appellant Association had appealed against the judgment 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 ofretirement age, with Public Prosecutors in the State.
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.
Per contra, the respondent State asserted that the mode of appointment and conditions of service of Assistant Public Prosecutors and Public Prosecutors are entirely different.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 submitedthat 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.
The Supreme Court in its final judgment said “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 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.”
The court further added “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.”