Kokje, J.This reference has come to me under Rule/61-A of the Rules of the High Court of Judicature for Rajasthan, 1952 on difference of opinion between Honble B.R. Arora, J. and Honble J.C. Verma, J, the learned Judges of the Division Bench which heard the petition on the same being withdrawn from a single Bench.

2. The petition came up before the Single Bench according to roster. On July 4, 1996 the learned Single Judge issued an ad interim writ directing the respondents to publish the result of the preliminary examination of Rajasthan State and Subordinate Services Combined Competitive Examination 1994 (hereinafter called The Examination) categorise for the Scheduled Caste Candidates, the Scheduled Tribes Candidates, the Other Backward Class Candidates and the rest of the candidates in general category separately. It was also directed that the number of candidates permitted to take the main examination should be fifteen times of the vacancies. It was further directed that the main examination be not held on the basis of the results of the preliminary examination already published which were under challenge. On August 1, 1996, the learned Single Judge by a detailed Order dismissed the application under Article 226 (3) of the Constitution of India filed by the respondents and confirmed the earlier ad-interim writ issued with a modification that if the Rajasthan Public Service Commission decides to publish the result of preliminary examination categoriwise then the main examination may be held but the result of the main examination so held should not be declared till the pendency of the writ petition.

3. The Rajasthan Public Service Commission (hereinafter referred to as Commission) filed a D.B. Civil Special Appeal (Writ) No. 427/96 against the order dated August 1,1996 before the Division Bench. On August 9, 1996 the Division Bench hearing the appeal withdrew the petition from the Single Bench and transferred the case to a Division Bench observing that there were sufficient questions of law of great importance involved in the matter and therefore the matter deserved to be heard and decided by a Division Bench. This is how the main S.B. Writ Petition went before the regular Division Bench and was heard along with D.B. Civil Special Appeal (Writ) No. 427/96.

4. The petitioners are candidates for recruitment to Rajasthan State and Subordinate Services Combined Competitive Examination 1994. Under the Scheme of the examination a preliminary examination is held and the candidates who successfully clear the preliminary examination only are allowed to take the main examination. Cut-off marks are applied for the preliminary examination on the basis of which success or failure of the candidates is decided. These marks are not counted for any other purpose than for qualifying to take the main examination. Out of the successful candidates in the preliminary examination candidates equivalent to fifteen times the number of posts available are allowed to take the main examination. It is also provided in the Scheme that if there is a short fall in the number of candidates available for the main examination according to the afore-said norms in the Scheduled Castes and Scheduled Tribes (for short SC and ST hereinafter) categories, the Commission may lower down the cut-off marks by five percent in case of SCs and STs candidates.

5. The petitioners belong to Other Backward Class (for short the OBC hereinafter) category. It is common ground that reservations have been provided by a general order in the Government employment to SC, ST and OBC. Reservation to the SC and ST candidates was available when initially the Rules were framed in the year 1962. Subsequently in the year 1994 reservations were also granted to OBCS. The petitioners contended that the results of the preliminary examination have to be declared separately categoriwise for the SC, ST and OBC and the general or unreserved class. It was also contended that the concession of lowering the cut-off marks by five percent in case of shortfall of candidates has also to be made available to the candidates belonging to OBCs as it is available to SC and ST candidates.

6. The learned Judges of the Division Bench unanimously turned down the contention that it was necessary for the Commission to publish the result of the preliminary examination categoriwise. They, however, differed on the point of availability of five percent concession in the cut-off marks to the OBC candidates on-par with SC and ST candidates. Honble B.R. Arora; J was of the view that since the Rules did not specifically provide for any such concession to be given to the OBC candidates, no such concession could be made available to them. Honble J.C. Verma, J. however, was of the opinion that the SC, ST and OBC candidates form one class and no distinction could be made in the treatment to be meted out to them. He was therefore of the opinion that the concession of lowering of the cut-off marks by five percent was available to OBC candidates also as it was available to SC and ST candidates. Because of this difference of opinion, the learned Judges of the Division Bench directed the matter to be placed before the Honble Chief Justice. Thereupon, Honble the Chief Justice nominated me as a Judge to hear the reference in accordance with Rule 61-A of the Rules of the High Court of Judicature for Rajasthan, 1952 (for short the Rules hereinafter).

7. In view of Rule 61-A of the Rules, the point to be decided by me is the point on which Honble Judges have differed. Therefore, the scope of the arguments before me is limited to the point of difference viz. "Whether the five percent concession in cut-off marks which is available to SC/ST candidates is available or can be made available to OBC candidates also."

8. Shri Govind Mathur, learned counsel for Vijay Kumar and Others submitted that the SC/ST candidates and the OBC candidates form but one class of this Backward Class and as such the concession given to SC/ST in the proviso to Rule 13 of the concerned Rules would accrue to OBC also. He submitted that at the time when Rules were framed no reservation was available for OBC and that is the reason why the Rules did not provide specifically for lowering the cut-off marks by five percent in the case of OBC also. Pointing out that Article 16(4) of the Constitution does not speak of SC and ST separately but only speaks of any backward class of citizens as contacted distinguished from Article 15(4) of the Constitution which specifically uses the terms SC and ST along with any socially and educationally backward class citizens, the learned counsel contended that so far as Article 16(4) is concerned no distinction could be made amongst the categories falling within the backward class once backward class is found to be entitled to reservation by the Slate. He also contended that the criteria on the basis of which reservation are to be decided under Article 16(4) of the Constitution could not be different for different categories of backward class and therefore on the same considerations on which the concession was granted to SC and ST candidates, the OBC were also entitled to similar treatment as they form a single class for the purposes of Article 16(1) of the Constitution as members of the backward class of citizens.

9. The learned counsel further elaborated that the only criterian prescribed under Article 16(4) of the Constitution for deciding to make a provision for reservation in favour of any backward class of citizens is inadequacy of their representation in the services under the State. According to the learned counsel once it is decided to grant reservation to the OBC along with SC/ST candidates they are on par with them and form but a single backward class which is not adequately represented in the services under the State and they could not be treated differently for any purpose at all. The learned counsel therefore contended that to achieve the Constitutional goal of bringing backward classes on par with the advanced classes of society by employing corrective or compensatory discriminations, the OBC should be deemed to be included in SC, ST for the purpose of proviso to Rule 13 of the Rules.

10. The second limb of argument of title learned counsel for the petitioner is based on doctrine of equality. According to the learned counsel, the SC/ST candidates and the OBC candidates are parts of but one `backward class and therefore depriving the benefits which were available to the SC/ST candidates to the OBC candidates would be discriminatory and violative of Article 14 of the Constitution of India. The learned counsel further contended that SC, ST and OBC are similarly situated and are on par with each other in the matter of backwardness and inadequacy of representation in employment under the State. They cannot therefore be treated differently.

11. In reply Shri J.P. Joshi, learned counsel appearing for the Commission submitted that the proviso to Rule 13 of the concerned Rules is clear, unequivocal and unambiguous. It clearly provides the lowering down of the cut-off marks in the given contingency of the SC/ST candidates only. According to him when language of the provision is clear, it was not permissible to add something which is not there in it. The learned counsel submitted that according to the recognised canons of interpretation it was not permissible to add words where the makers of the provision have used clear and unequivocal language. He submitted that the OBC category could not be included in the beneficiaries of the proviso by a deeming fiction. The learned counsel also refuted the arguments based on the difference in language of Article 15(4) and 16(4) of the Constitution of India and pointed out that even that argument should not be available after the amendment of the Constitution of India in 1995 by which sub-clause 4 (A) to Article 16 was introduced in which SC and ST are specifically mentioned.

12. The learned counsel further submitted that all the backward classes cannot be clubbed together into one class so as to make it impossible to treat them separately in proportion to the degree of their backwardness. The learned counsel also pointed out that the SC/ST and OBC are being differently treated in many respects under various provisions of the Rules like the maximum age limit, the percentage of seats reserved, number of chances available at the examinations etc. It was also contended that after Indra Sawhneys case (1), there should be no dispute that even amongst the OBC, it was permissible to identify various sections or layers of OBC for the purpose of reservations. The learned counsel therefore, submitted that the SC/ST and OBC are two distinct categories of the backward class and therefore could be treated differently.

13. Shri K.L. Jasmatiya, learned Additional Advocate General appearing for the State supported the view taken by Honble B.R. Arora, J. and adopted the arguments advanced by Shri J.P. Joshi, the learned counsel for the Commission.

14. It would be necessary to quote relevant portion of Rule 13, the proviso to which is the basis on which the relief has been sought in the petition. It reads as under :

"13. Scheme of Examination, personality and Viva-voce Test : - The Competitive Examination shall be conducted by the Commission in two stages i.e. preliminary Examination and Main Examination as per the scheme specified in Schedule-III. The marks obtained in the preliminary Examination by the candidates, who are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies to be filled in the year in the various services and posts; provided they are otherwise eligible, but in the said range all those candidates, who secure the same percent age of marks as may be fixed by the Commission for any lowest range will be admitted to the Main Examination: Provided further that if adequate number of Candidates belonging to the Scheduled Castes/Scheduled Tribes are not available amongst the candidates to be declared qualified for admission to the Main Examination, the commission may at their discretion keep the cut off marks upto 5 (five) percent less than the General candidates....... ."

15. It is contended that the words SC/ST in the proviso that also include OBC. It is submitted that in view of the difference in language used in Article 15(4) and Article 16(4), SC and ST could be a separate category of backward class for the purposes of Article 15(4) of the Constitution but not for the purpose of Article 15(4) of the Constitution. As the words SC and ST are not specifically used in Article 16(4) of the Constitution it was contended that there could only one backward class for the purposes of Article 16(4) and once it was decided to grant reservation to any category of candidates under Article 16(4) of the Constitution, it was available to all of them and not to some of them alone. It was thus contended that once the State made reservation in favour of OBC under Article 16(4) of the Constitution of lndia, they have to be treated on par for all purposes as a single backward class and there could not sub-classification amongst the backward class. It was therefore contended that the State was not free to grant concession in cut-off marks by five percent only to the members of the SC and ST and therefore the same concession should be deemed to be available to OBC also.

16. The argument is exfacie falacious. The expression any backward class of citizens used in Art. 16(4) of the Constitution does not suggest a single class of citizen. The very use of the word any before the word backward class of citizens suggests that the framers of the Constitution were alive to the situation that there is no single backward class of the citizens in the country but there were many categories and layers in the backward classes themselves. If the framers of the Constitution were of the view that the entire backward classes of the society were but one single unit, they would have used the words the backward class of the citizens and not any backward class of the citizens. Moreover after the addition of Cl. 4(A) to Article 16 of the Constitution in the year 1995, it has become clear that for the purpose of Article 16 also SC and ST are recognised as a distinct and separate entity. After Indra Sawhneys case (supra), it is clear that there could be sub-classification amongst the backward class and SC and ST are but one category of backward classes constitutionally recognised. There is therefore no force In the contention that the words SC and ST used in the proviso to Rule 13 include OBC also.

17. There is considerable force in the contention of the respondents that the plain language of the proviso is not capable of any other interpretation and the concession which has been specifically granted to SC and ST could not be extended to OBC by a deeming fiction. What the petitioners are asking the Court to do is read the word OBC which is not there in the proviso.

18. In Kanailal Sur v. Paramnidhi Sadhu Khan (2), Gajendragadkar, J. observed that "if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act". The same view was taken in Rananjaya Singh v. Baijnath Singh (3), Senior Superintendent, RAM Cochin v. K.B. Gopinath (4). In Pakala Narayanaswami v. Emperor (5), Lord Atkin observed that "when the meaning of the words is plain, it is not the duty of courts to busy themselves with supposed intentions." In Rananjaya Singhs case (supr1) which was referred in Dibya Singh Malana v. State of Orissa (6), S.R. Das has observed that "the spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act."

19. Justice G.P. Singh in his celebrated book "Principles of Statutory Interpretation" (Fifth Edition 1992), has succinctly dealt with the case law on the topic at Page 42 onwards. Several decisions have been quoted by him under the Sub-Head: Cause omissus. It would be useful to reproduce some of the excerpts quoted by him. On Page 47, the learned author has dwelled upon the liberal view of construction propounded by Lord Denning and it would be appropriate to quote the author himself.

20. "Before leaving the topic, a reference is necessary to certain observations of Denning, L.J. which have been cited with approval by the Supreme Court. Denning, L.J. said : "When a defect appears a Judge cannot simply fold his hands and blame the drafts-man. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give `force and life to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. In a subsequent case he re-stated the same thing In a new form: "We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. Both these observation of Denning, L.J. came up for severe criticism at the hands of the House of Lords and were plainly disapproved. "It appears to me", said Lord Simonds "to be a naked usurpation of the legislative function under the thin disguise of interpretation". Lord Morton (with whom Lord Goddard entirely agreed observed : "These heroics are out of place" and pointed out Lord Tucker: "Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., were to prevail." It does not seem, however, reasonable to infer that Lord Denning was intending to lay down a rule permitting usurpation of legislative function by courts and it is more proper to infer that he was emphasising in somewhat unconventional manner that when object or policy of a statute can be ascertained, imprecision in its language should not be readily allowed in the way of adopting a reasonable construction which avoids absurdities and incongruities and carries out the object or policy. The difference, if at all, is regarding the extent of the limited creative role which the Judges can play."

21. To conclude the discussion on the topic, it is necessary to refer to the decisions of the Supreme Court in Peron Engineering Construction Pvt. Ltd. v. Central Board of Direct Taxes (7) and P.K. Unni v. Nirmala Industries (8), wherein it has been observed that if a matter, provision for which may have been desirable, has not been really provided for by the legislature, the omission cannot be called a defect of the nature which can be cured or supplied by recourse to the mode of construction advocated by Lord Denning in the case of Seaford Court Estate Ltd (9).

22. In the present case the question is of adding the word OBC to the words SC and ST. In the light of the aforesaid discussion, it can certainly be said that SC and ST are but a category of backward classes quite distinct and separate from OBC. They cannot be deemed to include OBC and the benefit under the proviso cannot be extended to OBC without reading the words OBC after the words SC and ST in the proviso to Rule 13 referred to above. Such adding of the words in the circumstances of the case is not permissible as it would amount to legislation rather than interpretation. This contention raised by the petitioners therefore, has no force.

23. The next question for determination is whether not extending the benefit of lowering of cut-off marks to the OBC would amount to discrimination against them violative of the equality clauses of the Constitution. To my mind the question really does not arise in the case because what is being asked by the petitioners is the benefit at par with SC and ST and not the striking out of the provision giving concession to the SC and ST. If the provision is discriminatory, the consequence would be depriving the SC and ST also of the benefit of lowering of the cut-off marks. It cannot result in automatic grant of the benefit to other categories to whom the benefit has not been extended. The maximum which could be asked from this Court is a declaration that in this matter the SC, ST and OBC have to be treated similarly and the State could either give the benefit to the SC, ST and the OBC taken as a whole or not at all. Normally, mandamus cannot be issued to further legislate in order to bring the earlier legislation in conformity with the Constitution. If it is possible, an interpretation which would tend to uphold the provision can be adopted but the State cannot be asked to legislate or to make provision in the Rules one way or the other. In the peculiar circumstances of this case, the petitioners have prayed for being treated at par with the SCs and STs in the matter of grant of lowering of cut-off marks by extending the benefit to OBC.

24. Even assuming that it was possible for this Court to grant such a relief, it is difficult to accept the contention of the petitioners that SCs, STs and OBCs are similarly situated and they cannot be classified separately on rational basis. The provisions of the Constitution recognise the SC and ST each as a separate entity. There is no doubt about it. Not only that Art. 15(4) and Art. 16(4) A use the specific words SC and ST but Arts. 341 and 342 provide for specifying particular castes, races or tribes as SC and ST. Art. 330 provides for reservation of seats for SC and ST in the House of People and Art. 332 provides for reservation of seats for them in the State Legislative Assemblies. Article 335 of the Constitution specifically provides that claim of the members of the SC and ST shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of State. The fact that no such parellel provisions have been made for the OBC is sufficient to separate it from the SC and ST and a distinct class. Not only this, Art. 338 provides for a National Commission for the SC and ST as a separate Article 340 provides for appointment for a Commission to investigate the conditions of back-ward classes. A comparison of Articles 338 and 340 of the Constitution shows that whereas it is mandatory to have a National Commission for SC and ST, it is not so in the case of a Commission for Backward Classes. All these provisions clearly show that the Constitution recognised SC and ST as a distinct class independent and separate from the OBC. The term backward class includes SC and ST but the terms .SC and ST do not include OBC. The use of expression Other Backward Class clearly indicates that they are apart from SC and ST which also are a part of the backward class. The word Other signifies other than SC and ST.

25. The conclusion therefore is that SC and ST are distinct and separate from OBC and provision could be made separately for SC/ST without violating the principle of equality.

26. In fact in many respects SC and ST have been differently treated from OBCs in the Scheme of the recruitment procedure itself. They differ in percentage of seats reserved, in the eligibility criteria and so there cannot be any objection to their being treated differently in the matter of grant of the concession of cut-off marks.

27. There are well recognised limitations to the doctrine of equal protection. The principles of equality do not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, as the varying needs of different classes of persons often require separate treatment. The principle does not take away from the State the power of classifying persons for legitimate purposes. It is also true that every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would include within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out if would not render the legislation in any manner discriminatory and violative of Art. 14.

28. It is also to be noted that Article 14 does not prevent the Legislature from introducing a reform gradually, that is to say, at first applying the legislation to some of the institutions or objects hating common features or particular areas only, according to the exigencies of the situation. In Sainik Motors v. State of Raj. (10), it was observed that where the Constitution itself makes a classification, the charge of discrimination cannot be levelled against such separate treatment. In this case therefore when the Constitution itself makes a distinction between the SC and ST on the one hand and OBC on the otherhand it cannot be said that if they are treated separately in the matter of grant of concession in cut-off marks it would amount to impermissible discrimination under the Constitution of India.

29. In Budlian v. State of Bihar (11) and Hanif v. State of Bihar (12), Harakchand v. Union of India (13) and Pathunma v. State or Kerala (14), it was held that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that, that differentia must have a rational relation to the object sought to be achieved by the statute in question. In Kedar Nath v. State of W.B. (15), P.B. Roy v. Union of India (16), it was held that Article 14 does not insist that legislative classification should be scientifically perfect or logically complete. In Re Special Courts Bill (17), it was observed that a classification would be justified if it is not palpably arbitrary. In Venkateswara v. State of A.P. (18) and Khandige v. A.I.T.O. (19), it was observed that if there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortutious circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment.

30. Moreover, after the decision of the Supreme Court in Indra Sawhany v. Union of India (supra), there can be little doubt that subclassifications amongst the backward classes on a rational basis is permissible-and there can be a reasonable classification amongst backward and more backward. Honble B.R. Arora, J. has aptly quoted the relevant passage from this decision in his opinion.

31. There is on more important aspect of the case. Charge of discrimination is by a group claiming special treatment and not by persons challenging special treatment to be given to a particular class. It is easier to decide a question between the pro-reservationist and anti-reservationist but the same problem of classification becomes complex when the charge of discrimination is levelled by a group claiming reservation. It is the basic principle under Article 15(1) or Art. 16(1) of the Constitution of India that all are equal before the law and all are entitled to equal protection. To these basic rules exceptions can be made in favour of backward class if the State is of the opinion that it was so necessary. The expanse and the extent of such exception is to be determined by the State and not by any one else. When the State is of the opinion that exception to the Rule of equality is necessary to a particular extent in favour of a particular backward class, it cannot be said that such reservation or special treatment as an exception to the Rule of equality is not permissible. However, when the State is of the opinion that though a class or community of the society is in fact backward but it is not of further opinion that an exception deserves to be made in respect of such community it cannot be said that not forming of an opinion in favour of a class or community amongst the backward classes that it requires special treatment by making an exception to the general rule of equality, it cannot be said that holding of such an opinion by the State amounts to discrimination. When it is left to the State for what section of backward class of people it shall make reservations by way of exception to the principle of equality a mandamus cannot be issued to ask the State to include a certain backward class in the pale of exception. Under the Scheme of Art. 15(4) and Art. 16(4) such a direction cannot be issued to the State to create exception in favour of particular community even if such communities are recognised by the State as Backward.

32. The learned counsel for the petitioners relied on a decision of the Supreme Court in State of Kerala v. Kum. T.P. Roshaa (2) and I.T.C. Ltd. v. State of Karnataka (21), in support of the proposition that in suitable cases, the Court can mould the relief to suit the situation and in fact the Court is duty bound to do so in certain cases. In answer to this, the learned counsel for the Commission, cites a Full Bench decision of this Court in Shanker v. UOI (22), and contends that in case of under inclusion in a reservation category, no challenge can be sustained.

33. In the facts and circumstances of this case, I find that there is no scope for moulding the relief in favour of the petitioner, as what they are asking for is not within the jurisdiction of this Court to grant. To mould the relief by increasing seats in Colleges is quite different than asking the State to raise the percentage of reservation or grant reservation or special benefits where the State is not of the opinion that any such reservation or concession deserves to be granted. The question in the present case is not of moulding relief to do justice all around but is of usurping the jurisdiction and interfering in the field reserved by the Constitution for the Legislature and the Executive. The decisions therefore have no application to the present case.

34. Before parting with the case I feel compelled to make certain observations which are not strictly necessary for the purpose of the reference of which the scope is limited to the point of difference amongst the learned Judges of the Division Bench. But I feel so compelled because it was vehemently argued by the learned counsel for the petitioners that this Court should not remain a dumb spectator to the palpable injustice being done to the members of the OBC. It was contended that the spirit behind providing 21% reservation to the OBC is to see that they really get adequate representation in the service by occupying the posts reserved for them. By depriving them of an opportunity to appear at the main examination, the very purpose of the reservation was being defeated as per the learned counsel for the petitioners. The answer to all these pleas is very simple. If the petitioners wanted to canvass that point, it was open to them to challenge the very basis of providing cut-off marks for the preliminary examination. A preliminary examination is essentially a screening test for short-listing candidates to a reasonable and practical extent so that in the main examination, the confusion and disorder likely to be created because of large number of candidates is avoided. In these days of ever increasing unemployment, hundreds of applications are received for one post. To allow all the candidates holding minimum qualifications for the post to appear at the written test or the interviews is simply not only impracticable but almost an impossible task. It also involves tremendous wastage of time, money, any energy. The short-listing procedure has therefore gained wide acceptablity. Short listing can be made in two ways (i) by prescribing the maximum number of candidates in order of merit who could be allowed to take the main examination or (ii) or fixing minimum qualifying marks which may be called cut-off marks for deciding as to who can appear at the main examination. All this becomes necessary when the number of candidates is large as compared to the seats available. When the number of qualifying candidates available is less, problem of short-listing should not arise. In the present case, when the number of candidates available in the categories of SC and ST, and OBC are not even fifteen times the number of posts available for them, there is in-deed no rationale behind prescribing cut-off marks at the preliminary examination. It is true that because of Article 335 of the Constitution of India, the power under Art. 16(4) is subject to the order of maintenance of efficiency in the administration and therefore, it is necessary for the State to fix certain minimum standard even for the reserved categories. But this rider cannot apply to preliminary examination and could apply to the main examination because only because some one is allowed to compete at the main examination he does not get automatically inducted in the Government Service and giving a chance to appear in the main examination does not interfere with or lower down the standard of administrative efficiency.

35. Actually the Rules also do not prescribe specifically, cutoff marks for the preliminary examination as they prescribe for the main examination. Rule 13 prescribes that number of candidates to be admitted in the main examination will be fifteen times of approximate number of the vacancies to be filled in the year in the various services and posts provided they are otherwise eligible and all those candidates who secure the same percentage of marks as may be fixed by the Commission, as the lowest range will be admitted to the main examination. This means the number of candidates will be fifteen times the total number of vacancies subject to the candidates being otherwise eligible and also subject to a condition that all those candidates who have secured equivalent percentage of marks to the candidate who becomes eligible as the last candidate in the range of candidates fixed on the basis of fifteen times of the total number of vacancies shall be entitled to participate. The main Rule does not speak of cut-off marks for the preliminary examination at all. It is only in the proviso that there is a mention of cut-off marks for preliminary examination. The whole Scheme is therefore confused and has created difficulties giving rise to this petition. However, the petitioners cannot derive any benefit out of the aforesaid situation in this case firstly, because they have not chosen to challenge the applicability of cut-off marks in preliminary examination and secondly, because the scope of this reference is very limited and confined to only the point of difference between the learned Judges of the Division Bench.

36. For the aforesaid reasons, I am of the opinion that the OBC cannot be deemed to be included in the SC and ST for the purpose of lowering down the cut-off marks for the purpose of proviso to Rule 13 of the Rules and that the SC and ST are distinct and separate class as compared to the OBC. The classification for the purposes of lowering the cut off marks in favour of the SC and ST candidates only and not extending the benefit to OBC candidates is therefore reasonable and is not violative of Article 14 and 15 or 16 of the Constitution of India.

37. In the result I agree with the conclusions drawn by Honble B.R. Arora, J and regret my inability to concur with the opinion of Honble J.C. Verma, J. The opinion of Honble B.R. Arora, J with which I have agreed shall prevail in view of Rule 61-A of the Rules of the High Court of Judicature for Rajasthan, 1952 and the petition has to be decided accordingly.

38. Consequently, the petition shall stand dismissed per majority in terms of the opinion rendered by Honble B.R. Arora, J.