IMPORTANT POINT
Every employee is governed by the governing service rules and service conditions. Mere similarity in nature of duties cannot be a basis for equating them with others whose rules for appointment an service conditions are entirely different.

JUDGMENT

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. 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. 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 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 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 app