The central legal point established in the judgment is the constitutional and statutory obligations of the State to appoint prosecutors to ensure the smooth conduct of criminal cases and the right to a speedy trial under Article 21 of the Constitution.

The appointment of Assistant Public Prosecutor Grade II is governed by Special Rules. The Government is the appointing authority and a revenue District is the unit of appoint. The rules of reservation, General rules 14 to 17 apply to those appointments. The selection is to be made by a committee consisting of the Director of Prosecution as Chairman, the District Collector (as Convenor) and the Superintendent of Police.

2. Applications were invited in 1983 for appointment as Asst. Public prosecutor Grade II in Kozhikode District. Out of the applications received, 9 candidates turned up and the selection committee prepared a panel of 5 names, including those of the petitioner and respondents 3 and 4.

3. The petitioner's grievance is that even though his name is included as serial number 1 in the list, even though there are vacancies in Kozhikode District, he is still not appointed. There is considerable force in this contention. According to the State, the list is not prepared according to merit and the Government are free to select and appoint from this panel, following the reservation principles and thus the petitioner cannot, as of right, claim to be appointed merely because his name appears at the top of the list, in the panel of names.

4. When once a select list has been prepared, the list guides the appointment; subject, of course, to the rules of reservation, when a person lower down in the list overtakes those above him in the same list in view of the quota reserved for a backward class. Outside this sphere of reservation, the appointing authority cannot pick and choose candidates from the select list, for, that would be plainly arbitrary, violative of Art. 14 of the Constitution. There is no case that the other candidates in the list have superior qualifications or can be better placed than the petitioner. Apart from the select list, the appointing authority has no other material. If so, to the first open merit vacancy, the petitioner, the candidate first in the list, at the top of the table alone has to be appointed. This has not been done. To that extent there is an infringement of Article 14.

5. The counter-affidavit proceeds to state that the first vacancy should go to a Muslim and thus the 3rd respondent was appointed and admitted to duty as per Government Order dt. 26-3-1985. To the next vacancy the 4th respondent was appointed and admitted to duty on 19-4-1985. The petitioner seeks to quash the order dt. 26-3-1985 (Ext. P3) also.

6. During the pendency of the O.P., it was brought to the notice of the court that there are no Asst. Public Prosecutors Grade II in the following courts: -

(1) Judicial Second Class Magistrate Court-I, Kozhikode.

(2) Judicial Second Class Magistrate Court-III, Kozhikode

(3) Sub Divisional Magistrate Court, Kozhikode

(4) Honorary Special Judicial Magistrate, 2nd Class, Kozhikode.

7. The District Collector, Kozhikode, sent proposals to the Government on 1-10-1985 to create sufficient number of posts of Asst. Public Prosecutor Grade II for "the efficient conduct of the prosecution" in these courts. No orders were passed by the Government.

8. Therefore, this court directed on 21-10-1985 thus :-

"in the circumstances the functioning of the criminal courts cannot suffer and justice cannot be delayed. The Government will immediately consider sanctioning the posts of A.P.Ps. far these courts and pass orders within two weeks from today. On the sanctioning of these posts, the petitioner who is serial No. 1 in the select list will be given appointment. Report compliance on 4-11-1985."

9. The State sought to vacate this order. Instead of passing interim orders, it was thought that the Original Petition itself could be disposed of.

10. The government have now informed the court thus :-

"Govt. received a proposal recently from the Dist. Collector, Kozhikode, requesting for creation of posts in four courts of which one is in Sub Divisional Magistrate Court, Class (sic) Kozhikode. Normally