Supreme Court Upholds Different Retirement Ages for Assistant and Public Prosecutors: Kerala Case (2018)

Date of the Judgment: 17 May 2018

Citation: Civil Appeal No. 3792 of 2010

Judges: Dipak Misra, CJI, A.M. Khanwilkar, J., Dr. D.Y. Chandrachud, J.

Can the retirement age of government employees be different based on their date of appointment? The Supreme Court of India addressed this question in a case concerning Assistant Public Prosecutors in Kerala. The court examined whether Assistant Public Prosecutors, who retire at 56 years, should have the same retirement age as Public Prosecutors, who retire at 60 years. The bench comprised Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, with the judgment authored by Justice A.M. Khanwilkar.

Case Background

The Kerala Assistant Public Prosecutors Association filed an appeal against the High Court of Kerala’s decision, which had upheld that Assistant Public Prosecutors and Public Prosecutors have different retirement ages. The Association argued that both roles have similar duties and responsibilities in the criminal justice system, thus warranting equal treatment regarding retirement age. Assistant Public Prosecutors are appointed to Magistrate Courts under Section 25 of the Code of Criminal Procedure, while Public Prosecutors are appointed to Sessions Courts under Section 24 of the Code of Criminal Procedure. The appellant contended that since Public Prosecutors have a retirement age of 60 years, Assistant Public Prosecutors should also have the same retirement age.

The Association further highlighted that the retirement age for judicial officers in Kerala is also 60 years. They pointed out that while some Assistant Public Prosecutors appointed after April 1, 2013, have a retirement age of 60 years, those appointed before that date retire at 56 years. The Association proposed that its members appointed before March 31, 2013, would forgo pension benefits for the additional service period from 56 to 60 years, if their retirement age was increased.

Timeline

Course of Proceedings

The appellant had initially filed Writ Petition (Civil) No.12703 of 2005, which was rejected by a single judge of the High Court on June 8, 2006. This decision was then upheld by a Division Bench of the High Court in Writ Appeal No.514 of 2008 on March 7, 2008. The High Court noted that Public Prosecutors are not judicial officers and that the terms and conditions of service for Assistant Public Prosecutors and Public Prosecutors are distinct. Assistant Public Prosecutors are governed by the Kerala Service Rules, which apply uniformly to all government employees. The High Court found no reason to grant parity in retirement age between the two positions.

Legal Framework

The case references two key sections of the Code of Criminal Procedure:

• Section 24 of the Code of Criminal Procedure: This section deals with the appointment of Public Prosecutors in Sessions Courts.
• Section 25 of the Code of Criminal Procedure: This section deals with the appointment of Assistant Public Prosecutors in Magistrate Courts.

The judgment also refers to the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978, which govern the appointment of Public Prosecutors. Additionally, the Kerala Service Rules are mentioned, which apply to Assistant Public Prosecutors and other government employees in Kerala.

Arguments

Appellant’s Arguments:

• The appellant argued that the nature of duties, functions, and powers of Assistant Public Prosecutors and Public Prosecutors are similar.
• They contended that since Public Prosecutors have a retirement age of 60 years, Assistant Public Prosecutors should also have the same retirement age.
• The appellant highlighted that even judicial officers in Kerala have a retirement age of 60 years.
• The appellant pointed out the disparity in retirement ages among Assistant Public Prosecutors, with those appointed after April 1, 2013, retiring at 60 years, while those appointed before retire at 56 years.
• The appellant proposed that its members appointed before March 31, 2013, would forgo pension benefits for the additional service period from 56 to 60 years, if their retirement age was increased.

Respondent’s Arguments:

• The respondent argued that the mode of appointment and conditions of service for Assistant Public Prosecutors and Public Prosecutors are entirely different.
• Assistant Public Prosecutors are selected through a competitive examination conducted by the Kerala Public Service Commission, while Public Prosecutors are appointed by the Government from a panel of advocates furnished by the Advocate General.
• Assistant Public Prosecutors are entitled to all service benefits enjoyed by other government employees, while Public Prosecutors are not considered government employees and do not receive such benefits.
• Public Prosecutors have a term of appointment of 3 years and can be terminated by the Government at any time, while Assistant Public Prosecutors have a more stable employment status.
• The respondent argued that accepting the appellant’s claim would create an anomaly and discrimination against other government employees who retire at 56 years.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue addressed by the Court was:

1. Whether Assistant Public Prosecutors appointed before 31st March, 2013, are entitled to parity with Public Prosecutors regarding the age of superannuation (retirement).
2. Whether the disparity in retirement ages of Assistant Public Prosecutors based on their date of appointment is valid.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court did not cite any specific cases or books in its judgment. The Court primarily relied on the distinct service conditions and appointment procedures of Assistant Public Prosecutors and Public Prosecutors, as well as the provisions of the Code of Criminal Procedure and the Kerala Service Rules.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court considered Section 24 of the Code of Criminal Procedure* to understand the appointment of Public Prosecutors in Sessions Court.
• The Court considered Section 25 of the Code of Criminal Procedure* to understand the appointment of Assistant Public Prosecutors in Magistrate Court.
• The Court considered Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978* to understand the appointment and service conditions of Public Prosecutors.
• The Court considered Kerala Service Rules* to understand the service conditions of Assistant Public Prosecutors and other government employees.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the differences in the appointment processes and service conditions of Assistant Public Prosecutors and Public Prosecutors. The Court emphasized that while both roles have similar duties, the method of appointment, the nature of employment (government employee vs. contractual appointment), and the benefits associated with each position are significantly different. The Court also considered the potential for creating anomalies and discrimination among other government employees if the appellant’s plea was accepted. The fact that Assistant Public Prosecutors appointed before 31st March 2013, are governed by a statutory pension scheme while those appointed after are governed by a contributory pension scheme also weighed in the mind of the court.

Logical Reasoning

Judgment

The Supreme Court dismissed the appeal, upholding the High Court’s decision. The Court reasoned that the method of appointment and conditions of service for Assistant Public Prosecutors and Public Prosecutors are qualitatively different. Assistant Public Prosecutors are appointed through a competitive selection process and are entitled to all service benefits as government employees, whereas Public Prosecutors are appointed from a panel of advocates for a fixed term and are not considered government employees. The Court also noted that the disparity in retirement ages among Assistant Public Prosecutors is due to the introduction of a new Contributory Pension Scheme, which is not the subject matter of the present challenge. The Court rejected the appellant’s offer to forgo pension for the extra period of service, stating that it would create anomaly, discrimination, and hardship to other government employees.

The Court stated, “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 Court further observed, “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.”

The Court also noted, “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.”

The bench was unanimous in its decision, with all three judges concurring.

Key Takeaways

• The Supreme Court affirmed that the retirement age of government employees can differ based on their method of appointment and conditions of service.
• Similar job duties alone are not sufficient to claim parity in retirement age if the appointment process and service conditions are different.
• The Court emphasized that policy matters, such as retirement age, are best left to the State Government.
• The judgment highlights that the introduction of new pension schemes can lead to different service conditions for employees based on their date of appointment.

Directions

The Supreme Court did not give any specific directions. However, it stated that 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.

Development of Law

The ratio decidendi of this case is that the retirement age of government employees is not solely determined by the nature of their duties but also by their method of appointment and conditions of service. The judgment reinforces that parity cannot be claimed based on similar functions alone if the appointment process and service conditions are different. This case clarifies that the introduction of different pension schemes can justify variations in retirement ages for employees based on their date of appointment.

Conclusion

The Supreme Court dismissed the appeal, upholding the High Court’s decision that Assistant Public Prosecutors appointed before March 31, 2013, are not entitled to the same retirement age as Public Prosecutors. The Court emphasized that the method of appointment, service conditions, and pension schemes are crucial factors in determining retirement age. The judgment underscores the principle that similar duties do not automatically warrant equal treatment in service matters, especially when the nature of employment and associated benefits are different.