The court was not satisfied with the government's stand that the "creamy layer" rule is applicable only in respect of article 16(4) of the constitution (dealing with reservation for backwards in government jobs) and not to article 15(5) (on reservation in the educational institutions). It was not based on any sound foundation, the entire scheme of the OBC reservation required to be examined in details, the court held, while posting final hearing on the PILs on all legal aspects for the third week of August.

The court was also not satisfied with the government stand that in the process of providing the reservation for OBC students those from the general category would not be affected because the number of seats had been increased in the proportion of the 27 per quota in these institutions. "By increasing the number of seats for the purpose of reservation unequals are treated as equals," it observed.

If there was any possibility of increasing the seats in the absence of reservation in these institutions, then they would have gone to the general categories, the court said, rejecting the centre's submission that the 27 per cent quota was not being implemented in one go but in "staggered" manner over a period of three years and it would not affect the students of the general categories.

"It could not be explained (by the government) as to why a firm data base could not be evolved first, so that the exercise (of reservation) could be undertaking thereafter," the court said. The centre was asked by the court to initiate or continue a process, if it has any, for determining a broad-based foundation for OBCs' population notwithstanding the pendency of the case.

It pointed out that the 1931 caste-based census to determine the percentage of OBC quota had been rendered "irrelevant" on the face of the national sample survey and the national health and family survey of the government itself had established a contrary picture than that of the Mandal commission report, which had put the OBC population at 52 per cent.