S. M. SONI, J. ( 1 ) * * * * ( 2 ) KEEPING in mind these observations of the Supreme Court, it will be relevant to refer to Art. 15 (4) of the Constitution of India. It reads as under :-"15 (4 ). Nothing in this Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. "art. 29 (2) of the Constitution of India reads as under :-"29 (2) No citizen shall be denied admission into any educational institution maintained by the State of receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. "keeping in mind these provisions of the Constitution, which provides for making any special provision for advancement of any socially and educationally backward classes of citizens, it is to be considered whether in the light of this provision, Rule 6 stands the test of Art. 14 or not, i. e. , the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It is contended by Miss Shah as well as Mr. Girish Patel that Rule 6 hits Art. 14. The Government in one breath had made the law, i. e. , reservation for S. E. B. C. and in another breath has taken away the said benefit of reservation indirectly by providing Rule 6. To satisfy the radicals, the Government makes the law but to satisfy the conservatives, the Government does not implement the same. This indirectly suggests that though the reservation is made the same is not implemented by providing Rule 6, i. e. , by adding further requirement for admission of higher marks. They contended that by providing 55% marks as the minimum for admission, care has taken that the standard is not lowered down. It is also contended that providing difference of 5% or less to be eligible for admission from the last candidate admitted in the open merit indirectly takes away the right of the reserved candidates for admission. If one reads Rule 2. 4, it is clearly stated that the seats earmarked for admission of the particular category students under reserved seats for the cadidates from the category belonging to SC/st/nt/dnt/sebc, etc. If one reads Rule 2. 4, it is clearly stated that the seats earmarked for admission of the particular category students under reserved seats for the cadidates from the category belonging to SC/st/nt/dnt/sebc, etc. will be allotted for admissions of the students of the respective categories. For this purpose, merit lists will be prepared categorywise and admissions for each category will be regulated accordingly. Rule 2 provides that. . . . . . . . . . . . 27% of the total seats in Medical/dental college and in Physiotherapy Course shall be reserved for the candidates belonging to the socially and educationally backward classes provided that (i) widows and (ii) orphan children shall be in this 27% reserved for S. E. B. C. subject to the clarification that the reservation as applicable to Pramukhswami Medical College shall be computed with reference to the total number of seats available in the college although there shall be no reservation in the "payment seats" described hereunder in Rule 3. So by Rule 2, 27% of seats are reserved for the candidates of S. E. B. C. Rule 2. 4 provides for preparing merit lists categorywise and admission for each category will be regulated accordingly. If this be so, i. e. , 27% of seats are reserved for s. E. B. C. and minimum qualification for S. E. B. C. is like that of open merit candidates, what is the purpose of introducing Rule 6 and further qualifying admission of S. E. B. C. students ? Be as it may that S. E. B. C. students are not comparable with scs and STs students, but they are equally not comparable with open merit students also. As stated hereinabove, for arriving at the conclusion by Baxi commission to hold whether a particular community belongs to S. E. B. C. or not, several factors are considered. It is very clear from that Report as well as indra Sawhney v. Union of India, AIR 1993 SC 477 that they are not only comparable with SCs and STs, but they are also not comparable with communities other than S. E. B. C. In view of this fact, when minimum qualification of 55% is provided, what can be the reason to introduce Rule 6 as an additional qualification for admission ? When Rule 2 provides for 27% of total seats to be reserved for s. E. B. C. candidates and Rule 2. 4 provides for preparing categorywise merit lists, which are earmarked for admission of S. E. B. C. candidates, providing of Rule 6 does not stand to reason. Thus, if the Rules provide for a separate merit list categorywise to be prepared, then I fail to understand what is the logic behind introducing Rule 6. From the data provided to me for the years 1992-93; 1993- 94 and 1994-95, it can be inferred that because of Rule 6 of the Rules, all reserved category seats of S. E. B. C. are not filled up despite there may be candidates who had qualified themselves for admission to first M. B. B. S. /b. D. S. /first B. Physio courses. In the year 1994, though 17% supernumerary seats were created, none could be filled up, may be because of Rule 6. Thus, when a minimum qualification is prescribed for admission in the first year course, providing of Rule 6, in my opinion, not only discriminates the petitioner or the candidates of S. E. B. C. with SCs/sts candidates in absence of any rule like Rule 6 for them, but also contravenes the provisions of Art. 14 of the Constitution of India. Rule 6 makes unreasonable and arbitrary classification amongst reserved category students as well as open merit students also. ( 3 ) LEARNED Counsel Mr. A. J. Patel appearing as Intervenor has relied on a judgment in the case of Miss Rita Kumar v. Union of India ( AIR 1973 SC 1050 ) to justify such a classification. In that case, the petitioners were denied admission on the ground that though the petitioners were repatriates and duly qualified, they could not be accommodated in the reserved seats as the Central Selection Committee had to draw the line somewhere. According to the affidavit, the committee decided to set a time limit of five years. Thus, the repatriates who came within five years prior to the selections were preferred to those who had been repatriated more than five years before the selection. Both the petitioners had migrated more than five years before the selection and, therefore, they were left out. It was considered there that there were no statutory rules governing the matter. The Supreme Court held :"4. Both the petitioners had migrated more than five years before the selection and, therefore, they were left out. It was considered there that there were no statutory rules governing the matter. The Supreme Court held :"4. It is true that the petitioners are repatriates like some of the respondents but there is a difference between the two categories as the petitioners had come to India earlier while the respondents had immigrated much later. The former were more resettled than the latter and since the object of the rule creating reservations of seats was rehabilitation and re-settlement, it cannot be said that the classification so made administratively had no reasonable nexus to the object in view. The respondent candidates were also repatriates though, it is true, they received a lesser percentage of aggregate maks than the petitioners. If both the categories had been placed in similar circumstances, it would have been possible to urge that there has been discrimination. But since the petitioners and their families have been better settled and rehabilitated than the respondents and their families, it was open to the selection Committee to decide administratively how best the purpose of rehabilitation of repatriates could be served. In our view, therefore, the discrimination is not invalid and the petitions must fail. "thus, from this judgment of Miss Rita, it is clear that in case of discrimination, if it is found to be reasonable, it would not hit Art. 14 of the Constitution of India. Here, in the instant case, though the Rules provide for earmarked seats for S. E. B. C. candidates to the extent of 27% and also provide for minimum qualification for admission to the first year courses, introduction of Rule 6 does not appear to be reasonable. There is an element of arbitrariness in Rule 6, as it does not show that but for that rule, the merits will not be advanced and but for that rule, the merits or standards of education will be required to be compromised. ( 4 ) IT was argued on behalf of the respondent No. 1 that the Rule 6 is introduced with a view to make them compete with the open merit candidates. If such a rule is not introduced, they will be competing inter se in their own class and their standard may not raise. ( 4 ) IT was argued on behalf of the respondent No. 1 that the Rule 6 is introduced with a view to make them compete with the open merit candidates. If such a rule is not introduced, they will be competing inter se in their own class and their standard may not raise. With the increase in population and with the increase in percentage of education, they may become eligible for making an application if they qualify, but for admission they shall require to get higher marks if they want to remain within 27% of the reserved seats and if they want to have a college of their choice. From the Rules, it does not appear that after entry in the professional course, there is any compromise in the imparting of education and standard of passing. May be that they will be admitted with 55% of marks, but they will be required to clear the examinations of the professional course with minimum marks required for passing there in that course. They may try to compete with those students after entry in the course. Restricting their entry by asking them to compete by raising the standard of educational qualification in the professional course, in my opinion, becomes illusory by introduction of Rule 6. The statistics supplied to me show that in the year 1994, open merit admission at B. J. Medical College, Ahmedabad closed at 391 marks and at Karamsad College, it closed at 374 marks. There is difference of 17 marks between the last candidate of B. J. Medical College, Ahmedabad and the last candidate of Karamsad Medical College. Thus, it may happen that in view of this neck to neck competition with the higher standard of securing marks, students of s. E. B. C. may not even get admission, despite their being qualified for admission and despite making provision for reservation, in view of Rule 6. Thus, it is clear that Rule 6 does not show any nexus for reservation of S. E. B. C. students, even though they are qualified for admission, and it frustrates and nullifies the real scheme of reservation. The scheme of reservation does not provide for any further qualification than the one minimum required for admission. Thus, it is clear that Rule 6 does not show any nexus for reservation of S. E. B. C. students, even though they are qualified for admission, and it frustrates and nullifies the real scheme of reservation. The scheme of reservation does not provide for any further qualification than the one minimum required for admission. Thus, difference of 5% than the last open merit student admitted is contrary to the scheme of reservation and there does not appear to be any justification or need for introduction of such rule providing for difference of 5%. If one looks at the ground reality, there does not appear to be any nexus for framing of Rule 6. It can be loosely said : add 5% of marks to S. E. B. C. students and they will be out of reserved category and will be required to compete with the open merit students. This cannot be the purpose of reservation. Purpose of reservation is to bring about real equality by empowering them firstly by education which will empower them administratively and politically. As stated in Sanskrit : vidya Dadhati Vinayam : is learning gives modesty vinayat Yati Patratam : is worthiness by modesty worthiness means capacity to sit with, stand by and equate with the persons of unreserved category. ( 5 ) IF it was not intended to make reservation for specific seats, then, as referred above, some concessions, preferences, exemptions and relaxations could have been given to the candidates belong to S. E. B. C. Rule 6 cannot be said to be either concession or relaxation or exemption, but is to the contrary. It not only is likely to enhance the purpose, but is likely to destroy the purpose of reservation. Thus, in my opinion, if Rules 2, 2. 4 and 4 are read together, they provide for a reservation for S. E. B. C. candidates to the extent of 27% but Rule 6 either abridges or takes away that right. Therefore, in my opinion, Rule 6 is ultra vires Art. 14 of the Constitution of India. It equally destroys the policy of the reservation adopted by Government so far as it relates to S. E. B. C. ( 6 ) SUPREME Court in the case of Indra Sawhney (supra) has observed as under with regard to the purpose of reservation :-"111. . . . . . . It equally destroys the policy of the reservation adopted by Government so far as it relates to S. E. B. C. ( 6 ) SUPREME Court in the case of Indra Sawhney (supra) has observed as under with regard to the purpose of reservation :-"111. . . . . . . It cannot also be ignored that the very idea of reservation implies section of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases, excel - members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are antimeritian. Merit there is even among the reserved candidates and the small difference, that may be allowed at the stage of initial recruitment is bound to disappear in course of time. These members too will compete with and impove their efficiency along with others". ( 7 ) THIS brings us to the defence raised by learned Counsel Mr. S. N. Shelat that Rule 6 being framed in view of the policy of the Government of reservation based on the report of Baxi Commission, this Court will have no justification to interfere with the same. He has contended that wisdom in a policy decision of the government as such is not justiciable unless such policy decision is wholly capricious, arbitrary and whimsical, thereby offending the rule of law as enshrined under Art. 14 of the Constitution of India or any other provision of the Constitution. He contended that save as aforesaid, the Court need not embark on unchartered ocean of public policy. He relied on a judgment in the case of State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti JT 1995 (1) SC 315 : [ 1995 (2) SCC 117 ]. He also relied on the judgments in the case of Sitaram Sugars v. Union of India, air 1990 SC 1277 and also in the case of Indra Sawhney (supra ). He relied on a judgment in the case of State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti JT 1995 (1) SC 315 : [ 1995 (2) SCC 117 ]. He also relied on the judgments in the case of Sitaram Sugars v. Union of India, air 1990 SC 1277 and also in the case of Indra Sawhney (supra ). Para 300 of indra Sawhneys case reads as under :-"300. The action of the Government in making provision for the reservation of appointments or posts in favour of any backward class citizen is a matter of policy of the Government. What is best for the backward class and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by catena of decisions of this Court. . . . " ( 8 ) THERE can be no dispute to this proposition laid down by the Supreme Court in Indra Sawhneys case as well as other cases referred, but the present case stands on a different footing. In the present case, the policy of the Government for reservation of the seats for S. E. B. C. candidates is not under challenge. What is under challenge is Rule 6, which does not show any nexus with the reservation policy. It is not known as to how Rule 6 is going to subserve the purpose of implementation of reservation. Rule 6 does not appear to be rational inasmuch as how it is relevant with the policy of reservation is not shown. As referred earlier in the case of Indra Sawhneys case, "the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases excel - members of open competitor candidates". Reservation is provided to give them an opportunity to overcome their initial disadvantages which they have suffered since ages. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases excel - members of open competitor candidates". Reservation is provided to give them an opportunity to overcome their initial disadvantages which they have suffered since ages. Then in para 113 of Indra Sawhneys case, it is observed by the Supreme Court as under :-". . . there is no particular or special standard of judicial scrutiny in matters arising under Art. 16 (4) or for that matter, under Art. 15 (4 ). The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State under Art. 16 (4) do not enjoy any particular kind of immunity. At the same time, we must say that Court would normally extend due deference to the judgment and discretion of the Executive - a co-equal wing - in these mattters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight". When this Rule 6 has no rational with the reservation and appears to be arbitrary, capricious and whimsical as even the Report of Baxi Commission does not disclose the reason why difference of 5% marks is provided for, this Court can look into the same. ( 9 ) IT will be important and relevant to state that purpose of reservation is to uplift the candidates who are bracketed in reserved category, S. E. B. C. in the instant case. No doubt, they are required to compete with the candidates of open merit category, but they are also required to compete inter se. The manner and method of raising of their standard by way of competition should not be such that they get frustrated. Reservation and conditions, therefore, should not be such as to lead to frustration and disappointment to the candidates of that category, instead of infusing courage and confidence to compete. The manner and method of raising of their standard by way of competition should not be such that they get frustrated. Reservation and conditions, therefore, should not be such as to lead to frustration and disappointment to the candidates of that category, instead of infusing courage and confidence to compete. By keeping difference of 5% if they [b are asked to compete with open merit students, it is clear from the statistics that all the seats are never filled up till date. In the year 1992-93, 33. 82% seats were filled up; in the year 1993-94, 43. 47% of the seats were filled up; and in the year 1994-95, 80% seats were filled up, but when the percentage of reservation was raised, 17% seats were created supernumerary, but none of it was filled up as it was not necessary to do so. This suggests that the students of S. E. B. C. category are not able to compete with the open merit student and Rule 6 provides that they can only be admitted if the difference of percentage is not less than 5% from the last student admitted in open merit. This indirectly takes away their right of reservation. Hence, Rule 6, in my opinion, is bad and ultra vires Art. 14 of the Constitution of India and is liable to be struck down. ( 10 ) MR. Shelat, learned Counsel, contended that the State Government, in view of the policy of reservation, has accepted the Report of Baxi Commission in toto and when Baxi Commission has recommended for addition of Rule 6 along with Rule 2, Rule 6 is not separable from Rule 2 and if Rule 6 is held ultra vires, then Rule 2 will not exist and Rule 2 also should be held ultra vires. It is the rule of interpretation of statute that as far as possible, statute should be saved and in that case, if Rule 6 goes, Rule 2 should also go, as both the Rules are based on the recommendation of Baxi Commission and are integral part of each other. Mr. Girish Patel has contended that if both the Rules are severable and can exist without each other, they cannot be said to be integral part of each other. Mr. Girish Patel has contended that if both the Rules are severable and can exist without each other, they cannot be said to be integral part of each other. Rule 6 cannot be said to be integral part of Rule 2 and to see that real objective of framing of the Rule 2 is achieved and to achieve the real purpose of reservation, Rule 6 is not an integral part of Rule 2. There can be no dispute of the fact that if two rules or a part of the section itself is severable and on severing such a part, rest of the section exists that part can be held ultra vires and can be struck down. Here, in the instant case, Rule 6 only applies to the candidates of S. E. B. C. It does not apply to candidates of SCs and STs. Rule 2 can independently exist in absence of rule 6. Rule 2. 4 suggests the existence of Rule 2 even without Rule 6. Thus, Rule 6, cannot be said to be integral part of Rule 2 and that part of Rule 6 can be struck off. Rule 6 has nothing to do with the policy of reservation. Rule 6 does not show as to why said Rule came to be introduced. Whether Baxi Commission had in its mind to limit the applicability and extent of reservation or whether the Baxi commission had in its mind the saving of merits or whether Baxi Commission had in its mind the reason of means test, is not known. On the contrary, in my opinion, rule 6 defeats the purpose of reservation inasmuch because of this Rule 6 S. E. B. C. candidates will not get the advantage, much less full advantage, of reservation and the main purpose of reservation shall stand frustrated. This indirectly defies the command of Art. 15 (1) to be carried out through Art. 15 (4 ). ( 11 ) IN Article 15 (4), it is provided that making of any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes by the State will not be unconstitutional. Article 46 provides for promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. Article 46 provides for promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. Part xvi of the Constitution provides for special provisions relating to certain classes and it provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People, in the Legislative Assemblies of the States, etc. When it is permissible under the Constitution to make a special provision for advancement of any socially and educationally backward classes of citizens or for the Scheduled castes and the Scheduled Tribes and the policy of reservation is adopted, which is based on some Commissions Report, in absence of any nexus of Rule 6 or like nature with policy of reservation, it will defeat the policy itself. Therefore, when rule 6 is separable and can be read and struck down and rest of the Rules and Rule 2 in particular do exist, this Court is not refrained from striking down Rule 6. ( 12 ) THE Rules are framed by the Government. Authority to frame the Rules is not challenged in this petition. Supreme Court in the case of Indra Sawhney (supra) has held that the Rules for resevation can be framed by the executive. The rule, if framed contrary to the main purpose of reservation and if it acts contrary to the purpose of reservation, whether it is framed by the executive or not, is liable to be struck down. The contention of Mr. S. N. Shelat is that Rules 2 and 6 cannot be separated. However, Rule 2 and Rule 2. 4 can exist without Rule 6. In view of this fact, Rule 6 can be struck down without doing any harm or violence to other rules and in particular Rule 2 and Rule 2. 4. ( 13 ) IT may be stated that in view of the fact that high percentage of marks are obtained by the stundents of the open merit seats and there is likelihood of vast difference of percentage of marks with the students of reserved category, the State, to maintain standard of education and raise merits, may, keeping in mind the present raised standard, raise reasonably the percentage of minimum qualifying marks, which is 45% for SCs and STs and 55% for all other categories which includes S. E. B. C. vide Rule 4. 1 (a), (b) and (c ). 1 (a), (b) and (c ). ( 14 ) IN the result, the petition is allowed. Rule 6 of the Rules for admission to 1st M. B. B. S. /1st B. D. S. /1st B. Physio Course at the Government Medicial Colleges - P. S. Medical College, Karamsad - Govt. Dental Colleges - Schools of physiotherapy in the Gujarat State, 1995-96 is held ultra vires Art. 14 of the constitution of India and is declared null and void and is hereby struck down. The respondents are directed not to implement the said Rule 6 for considering admission in 1st M. B. B. S. Course. Rule is made absolute with costs. .