John Mathew, J.

Whether Rule 8 of the Kerala High Court Service Rules, 1970 as substituted by notification dated 20-12-1985 is ultra vires the powers of the 1st respondent (Chief Justice, High Court of Kerala)? This common question arises in all these Original Petitions and the Writ Appeal. For the sake of convenience we are referring to the exhibits in O.P. No. 4626/1986.

2. The petitioners in these Original Petitions except O.P. Nos. 6210/86 and 4803/ 93 were applicants for the post of Assistant Grade II in the Kerala High Court Service. In O.P. NO. 4803/93 the petitioner is an advocate and social worker who has filed that O.P. as a public interest litigation. In O.P. No. 6210/86 the petitioner was an applicant. for the post of Typist-Copyist Grade II in the Kerala High Court Service, The petitioners belong to backward communities as defined in Kerala State and Subordinate Services Rules, 1958 (k.s.&s.s.r.). The Kerala High Court Service Rules, 1959 (1959 rules) which came into force on 15-3-1960 were made by the then Honble Chief Justice in exercise of the powers conferred on him by Art.229 of the Constitution of India. The State Government has not made any rule in exercise of the powers conferred by the proviso to Art.229(1) of the Constitution. The Rules as framed in 1959 did not contain any provision for reservation of appointments in favour of any category of applicants. The 1959 Rules were replaced by the Kerala High Court Service Rules, 1970 (1970 rules ) which came into force on 19-1-1971. Rule 8 of the 1970 Rules read as follows:

"8. Reservation of Appointments for Scheduled Castes and Scheduled Tribes._

Subject to suitable candidates being available, the rules for the time being in force in the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958, regarding reservation of appointments for Scheduled Castes and Scheduled Tribes shall apply to direct appointments to the service:

Provided that the cycle and the order of rotation shall be as prescribed by the Chief Justice from time to time and that if suitable candidates from Scheduled Castes and Scheduled Tribes are not available for appointment in the turns allotted to them, the vacancies will be otherwise filled up, the reservation being given effect to as early act as far as possible in the same cycle but not being carried forward to the next cycle".

This rule continued without any change for more than 13 years when by Ext. P2 notification the rule was amended. Ext. P2 notification is as follows:

"THE HIGH COURT OF KERALA

No. A1-19644/84/ C.S.No. 65 NOTIFICATIONS

Cochin - 682031 Dated 28-6-1984

In exercise of the powers conferred by Art.229 of the Constitution of India, the Acting Chief Justice hereby makes the following amendment to the Kerala High Court Service Rules, 1970, namely: - AMENDMENT CNo. C.S.65

In the said rules, the following shall be substituted for the existing Rule 8.

8. Reservation of Appointments for Scheduled Castes, Scheduled Tribes and Other Backward Classes - Subject to suitable candidates being available, the rules for the time being in force in the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958 regarding the reservation of appointments for Scheduled Castes, Scheduled Tribes and Other Backward Classes shall apply to direct appointments to the Service.

(By Order)

M.C. Madhavan, Registrar".

3. On 20-12-1985 the 1st respondent issued Ext. P3 notification substituting Rule 8. Ext. P3 is as follows:

"HIGH COURT OF KERALA

No. R.12/85 (SS)

Cochin-682 031

Dated : 20-12-1985.

NOTIFICATION

In exercise of the powers conferred by Art.229 of the Constitution of India, the Chief Justice hereby makes the following amendment to the Kerala High Court Service Rules, 1970, namely: -

AMENDMENT (C.S.No. 68)

In the said rules, the following shall be substituted for the existing Rule 8. 8. Reservation of Appointments for Scheduled Castes and Scheduled Tribes:

Subject to suitable candidates being available, the r