Judgment :- 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. 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 High Court, are not Government servants in the ordinary signification of that expression In fact a High Court Judge has no employer he occupies a high constitutional office which is co-ordinate with the executive and the legislature. The independence of the judiciary is a fighting (sic) faith of our Constitution". They, the Judges of the High Court, are not Government servants in the ordinary signification of that expression In fact a High Court Judge has no employer he occupies a high constitutional office which is co-ordinate with the executive and the legislature. The independence of the judiciary is a fighting (sic) faith of our Constitution". (emphasis supplied) The argument that judges of the High Court hold 'posts' or that they are under the Government of India militate against a basic feature of the Constitution - independence of judiciary. 8. Art.16 makes a distinction between 'office' one one hand, and'posts and appointments' on the other. Art.16(1) guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to 'any office'. But, Art.16(4), unambiguously states that provision for reservation, could be made for 'appointments or posts', and not any'office'. Principles of reservation do not extend to all offices. 9. Counsel relied on two decisions of the Supreme Court, to support his contention that reservation is a constitutional mandate. Referring to the decision in K.C. Vasanth Kumar v. State of Karnataka (AIR 1985 SC 1495), he submitted that reservation is a matter of "parity and not charity". Reference was made to the decision in A.B.S.K. Sangh v. Union of India (AIR 1981 SC 298), also. These decisions are not authority for the proposition, that Art.16(4) imposes a duty on the State to make reservation or that it confers rights in any individual or class. I would understand Art.16(4), as enabling the State to make provision for reservation to posts or appointments in services under it, in favour of members of any backward class, if in the opinion of the State they are not adequately represented. Authority is clear that no right in any one is envisioned by Art.16(4). In M.R. Balaji v. State of Mysore (AIR 1963 SC 649) a Constitution Bench of the Supreme Court referring to Art.15(4) & 16(4) of the Constitution observed: "In this connection, it is necessary to emphasise that Art.15(4), like Art.16(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action if necessary". In C.A. Rajendran v. Union of India (AIR 1968 SC 507), another Constitution Bench reaffirmed the position. In C.A. Rajendran v. Union of India (AIR 1968 SC 507), another Constitution Bench reaffirmed the position. The Court stated: "Our conclusion therefore is that Art.16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make reservation for Scheduled Castes and Scheduled Tribes Art.16(4) is an enabling provision and confers a discretionary power on the State". In State of Kerala v. N.M. Thomas (AIR 1976 SC 490), while cautioning against carrying the principle of reservation beyond the limits of constitutional permissibility, the Court observed: "Reservation is not a constitutional compulsion, but is discretionary. Even where reservation is made, the degree is not indeterminate, as pointed out in General Manager v. Rangachary (AIR 1962 SC 68), M.R. Balaji v. State (AIR 1963 SC 649), Devadasan v. Union of India (AIR 1964 SC 179), Jaisinghani v. Union of India (AIR 1967 SC 1427), State of Kerala v. N.M. Thomas (AIR 1976 SC 490), Jagdish Saran v. Union of India (AIR 1980 SC 820), Pradeep Jain v. Union of India (AIR 1984 SC 1420) State of AP. v. Balram (AIR 1972 SC 1375) & Janki Prasad v. State of J & K (AIR 1973 SC 930). 10. Modulation in application is indicated in Jagdish Saran v. Union of India (AIR 1980 SC 820). The Court observed: "If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victim, in the long run, may be the people themselves. The first caution is that reservation must be kept in check by demands of competence". The observations of the Constitution Bench in State of J & K v. T.N. Khosa (AIR 1974 SC 1) bear repetition. "let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society, is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity". Compensatory discrimination or protective discrimination, to assuage historical deprivations, cannot erode the rule of equality and equal opportunities. 11.Referring to K.C. Vasanth Kumar's Case (AIR 1985 SC 1495) counsel submitted that the constitutional right to equality and social justice, must be achieved and "several bridges so that they may cross the rubicon". Compensatory discrimination or protective discrimination, to assuage historical deprivations, cannot erode the rule of equality and equal opportunities. 11.Referring to K.C. Vasanth Kumar's Case (AIR 1985 SC 1495) counsel submitted that the constitutional right to equality and social justice, must be achieved and "several bridges so that they may cross the rubicon". Counsel relied on passages from "Competing Equalities - Marc Galanter" and "Caste in India" by Dr.B.R. Ambedkar to contend that Courts must evolve principles to bring about socio economic changes. 12. True, one cannot miss the ethos of the Constitution or its egalitarian philosophy or the gloss, that life has writ on the constitutional clauses. Nor, can one turn the Nelson's eye to the history of a people who have lived their lives in shadows of grief, under the yoke of disabilities, social and economic. Patterns woven, on the still roaring loom of time, by truths of history and experience of life cannot be overlooked. For them equality should not be a mere rainbow, on the distant sky. To discern the constitutional philosophy judges must look to the Constitution itself. They cannot make policies. "The judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will, in pursuit of his own ideal of beauty or of goodness. He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague, and unregulated benevolence". (Benjamin Cardozo) It is well to remember the caution indicated by Justice Burroughs, "Public policy is an unruly horse. If a judge gets upon it, he is very apt to be run away with". The Constitution itself is the best test, to determine constitutionality. The preamble, Art.14 & 16, the Directive Principles in Part IV, particularly Art.46 and Chap.16 illumine the area of search. As noticed earlier Art.16(4) creates no rights. Art.16(4) is an exception, which justifies departure from Art.14 & 16(1) to, create equality, by offsetting inequalities. 13. Art.335 relied on by counsel, requires claims of members of Scheduled Castes & Scheduled Tribes to be taken into consideration, consistent with maintenance of efficiency of administration. It makes no reservation unlike Art.330 to 334 in Chap.16. Art.16(4) is an exception, which justifies departure from Art.14 & 16(1) to, create equality, by offsetting inequalities. 13. Art.335 relied on by counsel, requires claims of members of Scheduled Castes & Scheduled Tribes to be taken into consideration, consistent with maintenance of efficiency of administration. It makes no reservation unlike Art.330 to 334 in Chap.16. These Articles make reservation in favour of members of Scheduled Castes and Scheduled Tribes by a constitutional device itself, in the House of People and in the Legislative Assemblies. But, Chap.16 makes no reservation in the matter of appointments to High Courts. The significant omission, is indication positive that in appointment of judges, the Constitution does not postulate reservation. It is impossible to think that the founding fathers, consisting of such luminaries like Dr.B.R. Ambedkar, omitted to notice the office of judges in the context of Chap.16. The Constitution identified areas, where reservation was called for, and left out areas where it was not called for. 14. There is one more contention in O.P.8991/89 and it is that, the 8th respondent is not eligible to be appointed as a judge of the High Court, by reason of retirement from service as a District Judge. Constitution does not visualise retirement from service, as a bar to appointment to the office of a judge. There is contra indication. Art.224A of the Constitution, envisions retired judges of High Court being called upon to sit and act as judges. 15. Turning to O.P. 9358/89, - counsel submits that the Minister of State of Law & Justice has made a policy statement and issued a circular to the effect that the Government has decided to appoint members of Scheduled Caste/Scheduled Tribes, as judges of High Courts, and that Chief Justices and Chief Ministers are bound by the circular. Counsel submits that the President is guided by advice of his Council of Ministers and that decisions of Central Government have binding force. Even so, it is difficult to see how the Chief justice of a High Court or the Chief Justice of the Supreme Court, is bound by such advice. Besides, there are areas exclusively in the domain of the President or Governor. Art.103 & 200 are instances in point. This is the state of law, recognised in Samsher Singh v. State of Punjab (AIR 1974 SC 2192). Besides, there are areas exclusively in the domain of the President or Governor. Art.103 & 200 are instances in point. This is the state of law, recognised in Samsher Singh v. State of Punjab (AIR 1974 SC 2192). It is useful to refer to the observation of the Supreme Court in S.P. Gupta v. Union of India (AIR 1982 SC 149). Considering the effect of a memorandum the court observed: "This memorandum cannot take the place of a Statute or Constitutional Document". There is no support in principle or precedent to justify the contention that a policy statement of this nature by a Minister or a circular binds either the Chief Justice of India or the Chief Justice of a High Court. To hold that the authority of such high constitutional functionaries is controlled by such policy decisions, would be to hold against the basic structure of the Constitution. 16. Besides, the whole argument based on a circular is conjectural and thus it has no factual basis. No circular has been produced or referred to, with any degree of precision. 17. Again, the assumption that the Chief Justice of the High Court did not consider those belonging to Scheduled Castes or Scheduled Tribes, is yet another conjecture and, a wild one at that. When asked about the basis for the submission, counsel stated no one belonging to Scheduled Castes or Scheduled Tribes figured among those appointed, and that this must be because the Chief Justice did not consider them. In the Supreme Court and in other High Courts those belonging to these communities have been appointed, submits counsel. There are two fallacies in the argument. One is that those appointed as judges in other High Courts or Supreme Court were appointed only on the basis of reservation. It will be unpardonable to think that no member of a community, which produced outstanding men like Dr.Ambedkar would attain the pinnacle, without reservation. The other fallacy lies in a facile assumption that the Chief Justice of the High Court or the Chief Justice of India or the Governor, did not consider anyone belonging to Scheduled Castes/ Scheduled Tribes. It will be unpardonable to think that no member of a community, which produced outstanding men like Dr.Ambedkar would attain the pinnacle, without reservation. The other fallacy lies in a facile assumption that the Chief Justice of the High Court or the Chief Justice of India or the Governor, did not consider anyone belonging to Scheduled Castes/ Scheduled Tribes. It will be a negation of faith in the Constitution, by which petitioner swears, to assume that The Chief Justice of a High Court or The Chief Justice of India who hold positions of unparalleled dignity would forget their constitutional responsibilities in the matter of considering eligible individuals. It eludes comprehension how such a contention could be put forward, with any sense of awareness of the constitutional scheme. It is much more so, when the allegation is that as many as three representations Exts.P3 to P6 were before the Chief Justice of the High Court. The contention has to be rejected. 18. The next question is whether action taken under Art.217 by the Chief Justice of a High Court or the Chief Justice of the Supreme Court of India is subject to judicial review. Counsel for petitioner submits, it is. The decision in S.P. Gupta v. Union of India (AIR 1982 SC 149) is relied on to support this contention. The question is one of tremendous impact on the constitutional system. The power vested by Art.217 in the Chief Justice of a High Court or The Chief Justice of the Supreme Court is in the nature of a trust, in an area of great sensitivity. It is in the realms of personal judgment of the functionaries in whom the Constitution has set its faith. Institutional perspectives and traditions must prevail in these regions. 19. I do not understand the decision in S.P. Gupta v. Union of India (AIR 1982 SC 149) to lay down that the power or prerogative exercised by the Chief Justice of a High Court or The Chief Justice of the Supreme Court of India is open to judicial review. It is the functioning of the executive Government that was held liable to judicial review, and not the functioning of the Chief Justice of a High Court or of the Supreme Court. It is the functioning of the executive Government that was held liable to judicial review, and not the functioning of the Chief Justice of a High Court or of the Supreme Court. In Gupta's case, the Court observed: "In assessing such factors, the Chief Justice of the High Court would not be expected to hold a judicial or quasi judicial inquiry for the purpose of determining whether the person concerned does, in fact, possess honesty and integrity. The test which must be applied for the purpose of assessing the suitability of a person for appointment as a judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied The opinion given by any such constitutional authority may be mistaken or erroneous, but the corrective for such mistake or error is to be found in the Constitution itself, and it cannot be provided by judicial intervention" (emphasis supplied) 20. It must be held on principle, precedent and judicial policy, that the exercise of the Constitutional prerogative vested under Art.217 in the Chief Justice of a High Court or The Chief Justice of the Supreme Court of India, cannot be called in question. The laudable principles advocate at the bar would, but be poor justification for review or interference with powers vested in functionaries who are beholden by an oath, to uphold and protect the Constitution. It will be sacrilege and negation of basic articles of faith to challenge a trust and an abiding faith, that the Constitution places in the highest judicial dignitaries. One cannot disown a constitutional trust. If floodgates of review are opened, that will submerge the value system on which the Constitution itself rests. These Authorities must exercise their mind according to their lights, informed by constitutional duties, as they are. They are not to be persuaded or prevailed upon by other agencies, or by representations by suitors. It is apt to recall the words of President Jackson: "Every public officer who takes an oath to support the Constitution swears that, he will support it as he understands it, and not as others understand it." When the last word is left with someone and it is spoken, it must be respected. 21. The decision of The Chief Justice is thus not amenable to judicial review. 21. The decision of The Chief Justice is thus not amenable to judicial review. That is the reason for the Supreme Court to observe in Anandkumar v. K. Bhaskaran (1988 (2) SCC 50), when a matter under Art.217(3) was called in review, that: "The High Court should have thrown out the petition at the very threshold, as the matter complained of was one to be decided in the manner indicated in Art.217(3) of the Constitution of India". 22. The office of a High Court Judge is not a post, or appointment under the service of the State. Art.217 is not controlled by Art.16(4) of the Constitution and even that Article does not create a right in a citizen or a duty in the Government. Chap.16 of the Constitution which makes constitutional provision for reservation in favour of members of Scheduled Caste/Scheduled Tribes or Anglo Indians, significantly omits the office of High Court Judges from the pale of reservation. The exercise of power by a Chief justice in the contemplation of Art.217 is not subject to judicial review. Nor, does the Article locate any authority, in any functionary other than the four dignitaries enumerated thereunder. For these reasons, the writ petitions are without merit and are dismissed. No costs. I record appreciation of the help rendered by Shri T.R. Govinda Warrier as Amicus Curiae.