Judgment :- 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. 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 Asst. Public Prosecutors are not posted in the above two courts. There is a ban on creation of new posts due to the present financial constraints of the Government. The mere fact that a proposal has been sent to Govt. by the Collector does not cast any obligation on the part of the Government to sanction it. It can be considered only with reference to the administrative necessity and the financial constraints of Government. The chance of creating the post in this case is very little. The mere fact that a proposal has been sent to Govt. by the Collector does not cast any obligation on the part of the Government to sanction it. It can be considered only with reference to the administrative necessity and the financial constraints of Government. The chance of creating the post in this case is very little. It is further informed to you that of the two persons already appointed from the select list and deputed for training only one person (Sr. B. M. Assu, the 3rd respondent in the O.P.) can be given posting after training as there is only one open vacancy at present. The other person (Smt. C. Sreeja, the 4th respondent) has not been given posting after training for want of open vacancy". "Even if a post of Asst. Public Prosecutor Gr. II is created it can be filled up only by observing rules of communal reservation and hence the petitioner in O.P. 2926 of 1985 cannot be straightway appointed to that post. In this connection reference may also be made to the judgment of the Hon'ble High Court in O.P. Nos. 4085/83 and 5043/83 wherein the High Court has specifically ordered that the appointment of Asst. Public Prosecutors Gr. II are to be made subject to the special rules and general rules and in particular to rules 14 to 17 of the general rules". Subsequently the Government have again informed thus :- "Govt. have created some posts even after the issue of the ban orders. A procedure has been laid down to consider such issue of creation of posts in consultation with planning department and finance department and then later placing them before a committee of secretaries. If the committee of Secretaries recommends creation of any new post then the case is placed before the council of Ministers for final decision. A suggestion of the Hon'ble High Court to create 12 more posts of APPs. for the State is being processed accordingly. In the meanwhile Govt. do not consider the proposal of District Collector Kozhikode to have priority enough to be taken up during this financial year. Government are keenly desirous of smooth conduct and disposal of cases in courts. All administrative steps including creation of posts of APPs. subject to financial constraints experienced by Government will be taken to enable such smooth conduct of cases. 11. Government are keenly desirous of smooth conduct and disposal of cases in courts. All administrative steps including creation of posts of APPs. subject to financial constraints experienced by Government will be taken to enable such smooth conduct of cases. 11. There can be no dispute that the special rules govern the appointment to the posts of Asst. Public Prosecutors Gr. II and that rules of reservation apply. 12. If so, it is clear that the rules of reservation apply to each unit of appointment, the revenue District. If applying these rules of reservation, the petitioner cannot be appointed, this court cannot grant him any relief. The only question now is whether there are vacancies in the Kozhikode District, which the Government are bound to fill up and whether the Government can keep these posts vacant on the ground of "administrative necessity and financial constraints". This has to be considered in the light of the statutory provisions, the constitutional guarantees and other relevant factors. 13. The Criminal P.C. enjoins in S. 25 that the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducing prosecutions in the court of Magistrates. And when no Assistant Public Prosecutor is available for the purpose of any particular case, the Chief Judicial Magistrate may appoint any other person to be the Asst. Public Prosecutor in charge of the case. Thus an Asst. Public Prosecutor is an integral part in the functioning of a criminal court, charged with the duty of conducting prosecutions. 14. Article 21 of the Constitution guarantees "no person shall be deprived of his life or personal liberty except according to procedure established by law". Though Art. 21 is, of course, silent about speedy trial of criminal cases, it is, still, implicit in the "broad sweep and content" of that Article. 15. The sixth Amendment to the American Constitution provides :- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial". 16. Article 3 of the European Convention on Human Rights says :- "every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial". 17. 15. The sixth Amendment to the American Constitution provides :- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial". 16. Article 3 of the European Convention on Human Rights says :- "every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial". 17. Referring to these provisions, the Supreme Court in Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036) observed thus :- "We think that even under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art. 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597). We have held in that case that Art. 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law far depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." 18. Moreover, in a Circular issued on 26th October 1961, the High Court directed thus :- "The High Court considers that in the Magistrates' Courts preliminary inquiries, appeals, revisions and miscellaneous petitions should ordinarily be disposed of within six weeks of their institution and all other cases within three months. Moreover, in a Circular issued on 26th October 1961, the High Court directed thus :- "The High Court considers that in the Magistrates' Courts preliminary inquiries, appeals, revisions and miscellaneous petitions should ordinarily be disposed of within six weeks of their institution and all other cases within three months. In the Court of Session all cases should be disposed of within six weeks of their institution, the date of commitment being taken as the date of institution in sessions cases. Accordingly it directs that cases pending for longer periods should be regarded as old cases in respect of which explanations should be furnished in the calendar statements and in the periodical returns". 19. "Justice delayed is Justice denied" is the cry of the century. A speedy trial of criminal cases is a constitutional requirement - the content of the fundamental right guaranteed under Article 21. The State cannot stop or stay a criminal trial by refusing to appoint a prosecutor. The appointment of a prosecutor is a compelling constitutional necessity, obligatory under the Code of Criminal Procedure also. The State is therefore wrong if it ever assumed that there is no administrative necessity to make appointment of prosecutors now. 20. "Financial constraints" seem to be the second reason advanced for not making the appointments. Financial constraints cannot absolve the State of its constitutional obligations. Moreover, there is no case that the Government have not created posts in recent times in spite of financial strain. The Government can create posts; the Government do create posts. But it shall be so done with due regard to financial commitments. That seems to be the principle underlying the temporary ban on making appointments. It does not mean that when there is a compelling necessity, when there is a constitutional demand, when there is a statutory obligation, the Government cannot create posts. If functioning of criminal courts is a necessity, the post of a prosecutor to conduct the prosecutions is an absolute necessity. Just as abolition of all courts due to "financial constraints" cannot even be visualised, so also, the non-appointment of a Prosecutor to conduct cases in criminal courts cannot be tolerated. Moreover, if no Prosecutor is appointed, Chief Judicial Magistrate may have to direct the appointment of a Prosecutor for each case. This is the mandate of S. 25 of the Code. This will only be an additional financial burden. 21. Moreover, if no Prosecutor is appointed, Chief Judicial Magistrate may have to direct the appointment of a Prosecutor for each case. This is the mandate of S. 25 of the Code. This will only be an additional financial burden. 21. It is now said, "the system of Asst. Public Prosecutors attending to work in more than one court is a decade old practice. Realising that delay in the disposal of criminal cases is an open infringement of Art. 21, it is high time that this practice is stopped. Considering the heavy pendency in each of these criminal courts, a Prosecutor shuttling from one court to another does scant justice to either court. Probably this also weighed with the District Collector when he recommended a Prosecutor for each court. To say that this proposal cannot have priority in this financial year in the face of the constitutional mandate and when posts have admittedly been created in other departments, is to defeat the very object to be secured under Art. 21 and amounts to a clear violation of the law declared by the Supreme Court. The functioning of the criminal courts cannot even temporarily be paralysed by the non-appointment of Prosecutors. 22. The reasons advanced for not making appointments of Asst. Public Prosecutors Grade II in Kozhikode District are thus unsustainable, irreconcilable under the Constitution and clearly-untenable. 23. Thus the State is bound to make appointments to the existing vacancies of Asst. Public Prosecutors Grade II Kozhikode District without delay. A list is available. The counter-affidavit itself states "It is up to the Government to make a selection from the above panel with due regard to the reservation of appointment as provided in the special rules". Thus appointment has to be from this list having regard to the reservation principles. 24. Regarding the vacancies, from the pleadings and from the facts disclosed at the time of hearing the position seems to be that the following vacancies existed, on and after, applications were invited, in the courts mentioned below :- (1) Judicial Second Class Magistrate Court, Kunnamangalam. (2) Addl. Judicial First Class Magistrate Court, Thamarassery. (3) Judicial Second Class Magistrate Court-I, Kozhikode. (4) Judicial Second Class Magistrate Court-III, Kozhikode. (5) Sub Divisional Magistrate Court, Kozhikode. (6) Honorary Special Judicial Magistrate 2nd Class, Kozhikode. 25. The State has a case that Asst. (2) Addl. Judicial First Class Magistrate Court, Thamarassery. (3) Judicial Second Class Magistrate Court-I, Kozhikode. (4) Judicial Second Class Magistrate Court-III, Kozhikode. (5) Sub Divisional Magistrate Court, Kozhikode. (6) Honorary Special Judicial Magistrate 2nd Class, Kozhikode. 25. The State has a case that Asst. Public Prosecutors are not usually posted to the Sub Divisional Magistrate Court and Hon. Special Judicial Magistrate Court. The Sub Divisional Magistrate is an executive Magistrate exercising, mainly, jurisdiction under Ss. 107, 145, Criminal P.C. etc. The Honorary Special Court disposes mainly petty cases. At present, therefore, no direction need be issued from this court to appoint Asst. Public Prosecutors Grade II for these two courts. 26. But regarding the other four courts, mentioned above, the State will take immediate steps to appoint Asst. Public Prosecutors Grade II, if not already done, from out of the list prepared by the selection committee. The State shall bear in mind the principles of reservation after taking note of the last vacancy filled in Kozhikode District when the applications were invited. The State, while making the appointments, can also review appointments made during the pendency of the O.P. The 1st respondent will make the appointment of Asst. Public Prosecutor Grade II in Kozhikode District in accordance with the directions and observations contained in this judgment and according to law within two weeks from the date of receipt of this judgment. Communicate a copy of this judgment to the Secretary to Government. Home Department, immediately at petitioner's expense. Issue carbon copy to counsel for all the parties on usual terms. Ordered accordingly.