The main legal point established in the judgment is that the office of a High Court Judge is not a 'post' under the Government of India, and the exercise of power by a Chief Justice under Art.217 is not subject to judicial review.

1. These writ petitions relate to appointment of High Court Judges; and reliefs sought are similar to a measure. Petitioners profess to sponsor the cause of members of Scheduled Castes and Scheduled Tribes.

2. Petitioner in O.P.8991/89 seeks to restrain appointment of four individuals named in Ext.P9 (since appointed as additional judges) alleging that such appointments, would be violative of Art.14, 16, 217, 224(1) & 335 of the Constitution of India. 8th respondent is ineligible for appointment, according to petitioner.

3. Petitioner in O.P.9358/89 seeks to compel respondents, 'to take due note of the request made by the Minister of State for Law & Justice to Chief Justices to locate members of Scheduled Castes and Scheduled Tribes for appointment as judges of the High Court of Kerala, and implement the policy of the Government of India in this matter'.

4. Petitioner in O.P.8991/89 submits that seven places of additional judges, are available in the High Court of Kerala and that ten organisations made representations, including Exts.P3 to 6 to the Chief Justice of the High Court of Kerala to appoint members of Scheduled Castes and Scheduled Tribes - to no avail -. According to counsel, Chief Justice, Chief Minister of Kerala, Chief Justice of the Supreme Court and the President, are bound to extend preferential treatment to members of the aforesaid communities. It is further submitted that Government of India, have taken a decision to appoint members of Scheduled Castes and Scheduled Tribes as judges of High Court as seen from a reported statement made by Minister of State for Law & Justice (Ext.P2). At present there are only six judges belonging to Scheduled Castes and one belonging to the Scheduled Tribe, against 401 posts of permanent judges and 31 posts of additional judges in the 18 High Courts in India, and this reveals an attitude of neglect on the part of the authorities instrumental in making appointments, submits counsel.

5. According to him, Art.16(4) & 335 of the Constitution mandate reservation to be made in appointment of judges of the High Courts. Counsel submits further that Art.217 makes no reference to merit and only a given length of service or standing at the Bar are conditions of eligibility. As the Article is silent about merit, irrespective of merit, reservation must be made - so, submits counsel. This ingenious argument, overlooks that Art.217 makes no mention of reservation either. Counsel for petitioner in O.P.9358/89 does not contend that Art.16(4) or Art.335 impose obligations in the nature contended for, by counsel in O.P.8991/89. He is candid in his submission that those Articles have no relevance, in the context. In his submission, for a different reason respondents are bound to appoint members of Scheduled Castes & Scheduled Tribes, as judges of the High Court. The reason is that a policy decision has been taken by the Government of India to appoint such persons, as judges and the decision has to be implemented by the Chief Justice.

6. Back to O.P.8991/89 - counsel submits that the Office of a Judge of a High Court is a 'post' under the Government of India, that Exts.P7 & P8 brochures mandate reservation in all posts and that Art.16(4) & 335 of the Constitution vest enforcible rights in members of Scheduled Castes & Scheduled Tribes.

7. It is not possible to assent to the submission, that the Office of a Judge of the High Court, is a "post in the service under the State". Constitutional Offices, such as that of judges of the Supreme Court or High Courts, or Comptroller & Auditor General, are not'posts' nor, are they'in the services under the State'. If authority is needed for this proposition, such is found in Union of India v. Sankalchand Himatlal Sheth & another (AIR 1977 SC 2328). The Supreme Court held that a judge does not hold office under the State:

"Judges of the High Court owe their appointment to the Constitution and hold a position of privilege under it. They, the Judges of the