JUDGMENT - DHABE H.W., J.:---The petitioner who is a candidate for the post of Clinical Assistant in the Government Dental College, Nagpur, i.e. the respondent No. 2, has challenged in this writ petition the selection of the respondent No. 3 in O.B.C. category for appointment to the said post. 2. The facts are that the petitioner passed Higher Secondary School Certificate Examination in 1984. The petitioner made an application for the course in the Bachelor of Dental Surgery (for short "B.D.S.") in the academic session 1984-85. She was admitted to the said course on 15-1-1985 in the O.B.C. category being Mali by Caste. She obtained the Bachelor's Degree in the B.D.S. course on 31-5-1989. The respondent N. 3 was likewise admitted to the B.D.S. course and obtained the said Degree on 31-5-1989. However, although the respondent No. 3 was O.B.C. being Teli by Caste he got admission in the open category. 3. On 2-7-1989, there was an advertisement issued by the respondent No. 2 for seven posts of Clinical Assistants which advertisement is enclose as Annexure 'A' to the petition. The petitioner as well as the respondent No. 3 applied for the said posts in O.B.C. category. It is clear from para 7 of the advertisement that out of the two posts reserved for the reserved categories, one post was for Scheduled Caste and the other one was reserved for O.B.C. It is not in dispute that the respondent No. 3 had obtained marks higher than the petitioner in the B.D.S. examination. The respondent No. 3 was, therefore, selected and appointed in the post of the Clinical Assistant reserved for the O.B.C. category by the order dated 26-7-1989 issued by the respondent No. 2 for the term commencing from 1-8-1989 to 31-1-1990. The petitioner addressed a representation dated 26-7-1989 in this regard to the Director of Medical Education and Research, Bombay, but without any effect. Hence the petitioner has preferred the instant writ petition in this Court challenging the selection and appointment of the respondent No. 3 in the post of Clinical Assistant reserved for O.B.C. category. 4. It is urged on behalf of the petitioner that since the respondent No. 3 was selected in an open category in his admission to the B.D.S. course it was not open to him to compete in the category of O.B.C. in appointment to the post of Clinical Assistants. 4. It is urged on behalf of the petitioner that since the respondent No. 3 was selected in an open category in his admission to the B.D.S. course it was not open to him to compete in the category of O.B.C. in appointment to the post of Clinical Assistants. It is then urged that the allotment of prescribed percentage of seats for all the reserved categories should be exclusive of the seats which the reserved category candidates have obtained in open merit competition. Finding, however, that there are specific rules framed in this regard in the G.R. dated 28-11-1983, relating to selection and appointment of Clinical Assistants, the learned Counsel for the petitioner has urged before us that Rule 12(d) and in particular its Note by which the percentage prescribed for O.B.C. category candidates is made inclusive of the candidates selected and admitted in the open merit category is arbitrary and discriminatory and is thus violative of Articles 14, 15(4) and 16(4) of the Constitution of India, since in the case of the three categories of Scheduled Castes, Scheduled Tribes and Denotified Tribes and Nomadic Tribes, Rule 12(b)(i) has made their total percentage inclusive of candidates appointed in open merit category up to the maximum percentage of 40 of the total number of posts available for selection. The last contention urged on behalf of the petitioner is that the prescribed 10% for O.B.C. has to be complied with during the period of one year in which the posts of Clinical Assistants are advertised twice and, therefore, by taking the total number of posts of Clinical Assistant in the whole year into consideration, the 10% posts reserved for O.B.C. category works out to two. As a result, the submission is that the petitioner should have been admitted in addition to the respondent No. 3. Since the last two contentions were not raised in the original petition, the petitioner has raised them by way of an amendment. The State Government has also accordingly filed its submissions in regard to the amendments proposed by the petitioner. We have allowed the amendment of the petitioner as well the submissions made by the State Government in reply to the proposed amendment. 5. The State Government has also accordingly filed its submissions in regard to the amendments proposed by the petitioner. We have allowed the amendment of the petitioner as well the submissions made by the State Government in reply to the proposed amendment. 5. To appreciate the submissions made on behalf of the petitioner, it may be seen that the selection and appointment of Clinical Assistants at Government Dental Colleges and Hospital is governed by the Rules framed under its G.R. dated 28-1-1983. For making selection, a Selection Committee is constituted as provided in Rule 2. Rule 4 shows that the applications for appointment to the post of Clinical Assistants are invited twice in each year, for which an advertisement is to be issued and the vacancies are to be notified specialitywise. Rule 4(C) in particular requires that the candidates belonging to the different reserved categories have to be notified at the time of inviting the applications. It is not necessary to refer to the Rules relating to eligibility because it is not in dispute that the petitioner as well as the respondent No. 3 were eligible for appointment to the post of the Clinical Assistant. What is material for the purpose of this petition is Rule 12 which provides for prescribed percentages for the reserved category candidates belonging to Backward Classes and the manner in which their claims are to be considered by the authority empowered to make admissions. Rule 12(a) prescribes various percentages for the four categories of Backward Class candidates. Rule 12(b), which is more important for our purpose, shows that in regard to the three categories of Backward Class candidates viz. Scheduled Castes, Scheduled Tribes and Denotified Tribes and Nomadic Tribes whose total percentage is 24, their total percentage of 24 should be exclusive of the number of candidates belonging to these three categories who are selected on merit, provided the total number of candidates of these three categories of Backward Classes who secure selection on merit and who secure selection against the prescribed total percentage of 24 does not exceed 40% of the total number of posts available for selection. Rule 12(c), which is also material, provides that the candidates belonging to Backward Class Community recognised by the Maharashtra Government and who were admitted for the B.D.S. course against the reserved seats for the groups of subjects in the Government Dental Colleges in Maharashtra State only are considered as eligible for selection against the respective reserved posts. 5-A. Rule 12(d), in particular its note, which the petitioner seeks to challenge in this writ petition, then provides that the candidates whose castes are included as O.B.C. in the G.R. dated 10-7-1969 as amended from time to time are entitled to the benefit of 10% reservation of seats for one O.B.Cs. The note however, makes it clear that 10% reservation prescribed for O.B.Cs. is not an overall ceiling for the O.B.C. candidates and it is open to them to secure more than 10% of seats on the basis of merit. However if the admissions they secure on merit are less than 10% there should be reservation for them to the extent of the shortfall below 10 percent. Rule 12(f) provides that it is open to the eligible candidates to compete for both the reserved and the unreserved seats if there is no candidate available in the seat reserved for a particular reserved class category candidate. It is provided in Clause (i) that the said reserved seat can be converted into seat for the other categories of reserved class candidates subject to the maximum limit of reservation provided for each of them. However, if the reserved seats are still vacant either for want of eligible candidates or because their prescribed percentages are fulfilled, the vacant seats are thrown open for merit candidates. It is, however, clearly provided that since these are tenure posts the reservation would not be carried forward. It is in the conspectus of the Rules for selection and appointment in the posts of the Clinical Assistants that we have to consider the contentions raised on behalf of the petitioner. 6. It is, however, clearly provided that since these are tenure posts the reservation would not be carried forward. It is in the conspectus of the Rules for selection and appointment in the posts of the Clinical Assistants that we have to consider the contentions raised on behalf of the petitioner. 6. In support of the first contention that it is not open to the respondent No. 3 to compete in the reserved category of O.B.C. candidates because his admission to the B.D.S. course was in the open category candidates, heavy reliance is placed on behalf of the petitioner on Rule 12(c) of the aforesaid Rules which, according to the learned Counsel for the petitioner, is an express provision which prohibits Backward Class candidates being considered for selection in his particular reserved Backward Class Category if his admission to the B.D.S. course is as a merit candidate because according to him, Rule 12(c) provides that only those candidates admitted to the B.D.S. course in the reserved categories can only be considered for selection against the respective reserved posts. The learned Counsel appearing for the respondent No. 3 faced with some difficulty in regard to Rule 12(c) has by way of abundant precaution sought an amendment of his return any by amendment he has challenged the validity of Rule 12(c) on the ground that it is arbitrary, discriminatory and is violative of Articles 14 and 15(4) of the Constitution of India as it has the effect of adversely affecting and/or restricting the constitutional right of the Backward Classes candidates of being considered in the reserved class categories for which a post is reserved in selection to the post of the Clinical Assistants. We have allowed the above amendment proposed by the respondent No. 3. Before however, considering the question of interpretation of Rule 12(c) and/or its validity, we may first refer to the facts in the instant case so that if really the question arises for consideration of the above question we may be required to do so. 7. Perusal of Rule 12(f) would show that it is open to the eligible candidates to compete for both the reserved and the unreserved seats. Perusal of the advertisement incorporated as Annexure 'A' to the writ petition shows that the applications for the post of the Clinical Assistants have to be made in the prescribed form. 7. Perusal of Rule 12(f) would show that it is open to the eligible candidates to compete for both the reserved and the unreserved seats. Perusal of the advertisement incorporated as Annexure 'A' to the writ petition shows that the applications for the post of the Clinical Assistants have to be made in the prescribed form. Annexure 'B' to the petition gives the prescribed form of the said application. We have perused the original form filled in by the respondent No. 3 for his admission to the B.D.S. course. The said form is also a prescribed form in which similar information is sought from the candidate. It is, however, nowhere provided in the said form that the candidate is required to state whether he has claimed admission in the open category or in the reserved category or in both. In fact on the top of the form of the respondent No. 3, both for admission to the B.D.S. course as well as for appointment to the post of Clinical Assistant in question, at the top there is a rubber stamp of O.B.C. Column 6 of the form requires the candidate to stated whether he belongs to any of the reserved categories mentioned therein. Clause (ii) in the said Column (6) then requires the details and attested copies of the documents for showing that the candidate belongs to any of the reserve categories. Clause (iii) requires him to state in which reserved category he is claiming admission. It is, however, clear from the said form that the candidate is not required to state therein whether he is claiming selection in open category or in the reserved category or in both. 7-A. We have perused the original application form of the respondent No. 3 brought by the respondent No. 2. The said application merely gives the information as required in the aforesaid prescribed form. It is true that as submitted by the petitioner which stand is also support by the respondent No. 2, the respondent No. 3 was given admission by the respondent No. 2 in the open category candidates in the B.D.S. course. The said application merely gives the information as required in the aforesaid prescribed form. It is true that as submitted by the petitioner which stand is also support by the respondent No. 2, the respondent No. 3 was given admission by the respondent No. 2 in the open category candidates in the B.D.S. course. It is, however, clear that from the information supplied by the respondent No. 3 as also understood by the respondent No. 2, i.e. the Dean, who had admitted his claim as Backward Class candidates the application of the respondent No. 3 can be construed as for his admission in the reserved category of O.B.C. At any rate, there is nothing to show that by his own desire the respondent No. 3 has claimed and was given admission in the open category seat. If that is so, the rigour of Rule 12(c), in our view, cannot affect the subsequent claim of the respondent No. 3 for his admission and/or selection in the reserved category to which he belongs, as it has the effect of depriving him of his valuable rights of claiming admission and/or selection in his reserved category. 7-B. It is not in dispute that the respondent No. 3 has secured more marks as compared to the petitioner and, therefore, in the post of the Clinical Assistant reserved for O.B.C. category he was entitled to be selected in preference to the petitioner. However, the consideration of the above question has become academic because even assuming that the case of the respondent No. 3 could be considered only in the open category candidates, in view of the notice below Rule 12(d) of the Rules for Admission, the reservation of 10% for O.B.C. have to be made only if the number of candidates belonging to O.B.C. category selected on merit basis are less than 10 percent in which event the reservation is to be made to the extent of shortfall of 10%. The requisite percentage of 10 would stand fulfilled as per the above note below Rule 12(d) even if the selection of the respondent No. 3 is made on merit because admittedly he is an O.B.C. candidate. The above contention raised on behalf of the petitioner deserved to be rejected on this ground also. The requisite percentage of 10 would stand fulfilled as per the above note below Rule 12(d) even if the selection of the respondent No. 3 is made on merit because admittedly he is an O.B.C. candidate. The above contention raised on behalf of the petitioner deserved to be rejected on this ground also. In this view of the matter it is not necessary for us to consider the validity of Rule 12(c) which is challenged by the respondent No. 3 by amendment. 8. Faced with this difficulty, the learned Counsel for the petitioner has challenged the validity of the above note below Rule 12(d) itself the effect of which is to lay down the prescribed percentage of 10 for O.B.Cs., inclusive of the candidate admitted on open merit basis. The submission on behalf of the petitioner is that there is a constitutional guarantee of reservation for Backward Classes under Article 15(4) of the Constitution which cannot be curtailed by any Rule framed by the State. It is further urged that the action of the State Government in framing the Rule in the note below Rule 12(d) in respect of the other Backward Class candidates only is highly arbitrary and makes invidious discrimination when for the other classes of reserved category candidates, viz. Scheduled Castes, Scheduled Tribes, Denotified Tribes, and Nomadic Tribes, the total percentage of 24 prescribed for them is exclusive of the number of candidates selected on merit subject to the maximum percentage of 40. He has also sought to challenge the percentage of 40 as restricting the right of the candidates belonging to these reserved categories being selected on merit which is also purely academic as it is not involved in the instant case. 9. As regards the constitutional guarantee which is alleged to be contained in Article 15(4) and/or Article 16(4) of the Constitution, apart from the debate whether the said provisions themselves prescribe a fundamental right or are exceptions to the fundamental rights enshrined in Articles 15(1) and 16(1) as the case may be, it is pertinent to see that what the said provisions contemplates is that the State can make special provisions for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Thus, what is provided therein is that if any such special provision is made in favour of the socially and educationally Backward Classes or for the Scheduled Castes and the Scheduled Tribes such a provision would be immune from challenge of discrimination under the said Articles. What has to be seen is that the State has to make such provision and the manner and the mode in which the said provision is made is not controlled by the said Articles. While considering the question of the validity of the note below Rule 12(d), we have to bear in mind the above aspect. 10. Perusal of Rule 12(a) itself would show that there are varying percentages for different categories of reserved category candidates. The difference in these percentages would thus indicate that certain relevant factors such as the degree of backwardness or the extent of population of each reserved category etc. are taken into account while laying down these different percentages for these reserved categories. It is, therefore, clear that all the four categories cannot be placed on equal footing in the matter of reservation. It is for these reasons that the scheme of 10% reservation for O.B.C. is different from the scheme of reservation for the other three categories of candidates covered by Rule 12(b)(i) for whom the total prescribed percentage of 24 is made exclusive of candidates selected on merit. Care is, however, taken to prescribe in this regard the maximum percentage which is 40% for admission of the candidates in these three reserved categories which percentage includes such candidates selected in their prescribed reserved quota plus those selected from amongst them on open merit. 11. It appears that so far as the O.B.Cs. are concerned, taking into consideration the relevant factors and, in particular the degree of backwardness as compared to the degree of backwardness of the first three categories, the percentage of 10 prescribed for them is made inclusive of the candidates belonging to this category selected on merit. There is thus a rational classification for framing Rule 12(b)(i) and Rule 12(d) read with its note. The contention raised on behalf of the petitioner that Rule 12(d) and in particular the note below it is arbitrary and discriminatory and is violative of Articles 14, 15(4) or 16(4) of the Constitution of India cannot, therefore be accepted. 12. There is thus a rational classification for framing Rule 12(b)(i) and Rule 12(d) read with its note. The contention raised on behalf of the petitioner that Rule 12(d) and in particular the note below it is arbitrary and discriminatory and is violative of Articles 14, 15(4) or 16(4) of the Constitution of India cannot, therefore be accepted. 12. The last contention raised on behalf of the petitioner is that the prescribed percentage of reservation is made for a period of one year and, therefore, the said percentage has to be satisfied during the period of one year although the applications are invited twice during one year by the respondent No. 2. The submission is that the total number of posts of Clinical Assistants for the whole year should be taken into consideration as advertised twice and the reservation for Backward Class candidates should be carved out of the same. If thus calculated, the further submission is that the O.B.Cs. would be entitled to two posts of Clinical Assistants, during the year 1989. There is, therefore, no question, according to the learned Counsel for the petitioner of application of the Rule which prohibits carry forward of vacancies in the subsequent term or year. The basis of the above submission itself does not survive for consideration because the calculation given by the respondent No. 2 at internal page 3 of his reply to the application for amendment would show that not more than one seat can be reserved for O.B.C. even if the total number of seats for the whole year are taken into consideration because otherwise, according to the respondent No. 2, the total percentage of 34 itself would exceed. It may be seen that it is not in dispute that the total number of posts of the Clinical Assistants for the whole year 1989 as advertised in the two advertisements issued in the said year would be 15 out of which it is also not in dispute that the reserved seats can be 5. The distribution of seats in the various reserved categories in their prescribed percentages would thus work out to two seats for Scheduled Castes, one seat for Scheduled Tribe, one seat for VJNT and only one seat would remain for O.B.C. The learned Counsel for the petitioner has not been able to demonstrate before us how the above calculation given by the respondent No. 2 is erroneous. The above contention thus fails on merit and it is, therefore, not necessary to consider any other submission made by rival parties regarding the contention. 13. The learned Counsel for the petitioner, has, however, be searched us that on compassionate ground particularly when, but for our view in the instant case Rule 12(c) would have prohibited the respondent No. 3 from competing in the O.B.C. category since he was selected in the open merit category for the B.D.S. course, the petitioner should be accommodated in the post of Clinical Assistant by directing the State to create a supernumerary or additional post for her. In considering the above submission made on behalf of the petitioner it has to be seen that the number of posts of the Clinical Assistants are fixed according to the norms laid down by the All India Dental Council and also as per the requirements in the various subjects in the Dental Colleges. It may further be seen that merely on compassionate ground an additional or supernumerary post cannot be directed to be created. It is only where the action of the State is illegal and normally when the candidate whose selection is challenged has continued in the post or seat for some years that this Court has is exceptional cases directed the State to create a supernumerary or additional seat or post without disturbing the selection of the candidate which is found to be illegal. The additional or superanumerary post cannot thus be created as a matter of course. We do not think that this is a fit case for directing the State to create an additional or supernumerary post for the petitioner when we do not find any illegality in their action. The above submission made on behalf of the petitioner deserves to be rejected. 14. In the result, the instant writ petition fails and is dismissed. However, in the circumstances, there would be no order as to costs. Petition dismissed. -----