Assistant Public District attorneys not on par with Public Prosecutors in regards to retirement age, SC

The Supreme Court has dismissed an appeal seeking parity in the retirement age of Assistant Public Prosecutors and Public Prosecutors.

A Bench of Chief justice of India Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud rejected the appeal filed by Kerala Assistant Public Prosecutors Association against a Kerala High Court judgment passed in 2008.

The Court ruled that ruled that Assistant Public Prosecutors and Public Prosecutors cannot be placed at par in terms of retirement age, merely on the basis of similarity in the nature of duties and functions. The judgement penned by Justice AM Khanwilkar reads,

“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.

The appellant association had claimed that Assistant Public Prosecutors are appointed to the Magistrate Court while the Public Prosecutors (PP) are appointed to the Sessions Court. The nature of duties and functions prescribed for these posts under Sections 24 and 25 of the Code of Criminal Procedure (CrPC) are by and large similar.

Despite this similarity, the appellant claimed, the age of retirement for an Assistant Public Prosecutor stands at 56, whereas a Public Prosecutor is allowed to continue service till the age of 60.

The respondent, State of Kerala, however, submitted that the mode of appointment for both these posts are different. While the Assistant Public Prosecutors are appointed after a competitive exam and on the recommendations of the Kerala Public Service Commission, Public Prosecutors are appointed under the Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978.

The respondent also pointed out that the terms of service vary largely, given that Public prosecutors are not entitled to any pension since they are not government employees. Assistant Public Prosecutors appointed after March 31, 2013, on the other hand, are eligible for the Contributory Pension Scheme. The state highlighted that those Assistant Public Prosecutors who were appointed prior to March 31, 2013, are eligible for a statutory pension.

The biggest difference, as noted by the Single Judge as well the Division Bench of the High Court, is that Assistant Public Prosecutors are governed by Kerala Service Rules which are applicable for all government employees, while Public Prosecutors are not considered government employees.

Conforming with the view taken by the High Court, the Supreme Court Bench ruled that owing to the vast difference in the mode of appointment as well as terms of service, the appeal does not hold merit. The Court noted that merely because Assistant Public prosecutors are considered officers of the Court, they cannot be equated with judicial officers.

The appellants also contended that those members of the appellant association who are still serving as Assistant Public Prosecutor are willing to relinquish their pension for the extra service period of 4 years between the age of 56 to 60.

Addressing this question, the Court said,

“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.”

The Court consequently dismissed the appeal, finding no merit in it.

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