P.V. Indiresan Vs. Union
of India & Ors.
J U D G M E N T
appeal raises a short but important question relating to the implementation of
the 27% reservation for other backward classes (for short `OBCs') in Central Educational
Institutions under the Central Educational Institutions (Reservation in
Admission) Act, 2006 (Act No.5 of 2007) (for short `CEI Act'). The question
relates to the meaning of the words "cut-off marks" used in the
clarificatory order dated 14.10.2008 in P.V. Indiresan & Ors. v. Union of
India - (2009) 7 SCC 300, in regard to the decision of the Constitution Bench
in Ashoka Kumar Thakur v. Union of India - (2008) 6 SCC 1. Background
constitutional validity of the Constitution (Ninety-third Amendment) Act, 2005
as also the constitutional validity of CEI Act were considered and upheld by a
Constitution Bench of this Court on 10.4.2008 reported in Ashoka Kumar Thakur vs.
Union of India (for short `A.K. Thakur'). Four separate opinions were rendered
in the said decision by the learned Chief Justice of India, Pasayat J. (for himself
and Thakker J), Raveendran J. (one of us) and Bhandari J.
On the basis of the
four opinions, the Constitution Bench formulated the following common order on which
there was unanimity :- "668. The Constitution (Ninety-third Amendment)
Act, 2005, is valid and does not violate the "basic structure" of the
Constitution so far as it relates to the State-maintained institutions and aided
educational institutions. Question whether the Constitution (Ninety-third Amendment)
Act, 2005 would be constitutionally valid or not so far as "private unaided"
educational institutions are concerned, is not considered and left open to be decided
in an appropriate case. Bhandari, J. in his opinion, has, however, considered
the issue and has held that the Constitution (Ninety- third Amendment) Act,
2005, is not constitutionally valid so far as private unaided educational
institutions are concerned. 669. Act 5 of 2007 is constitutionally valid subject
to the definition of "Other Backward Classes" in Section 2(g) of Act
5 of 2007 being clarified as follows:
If the determination of
"Other Backward Classes" by the Central Government is with reference to
a caste, it shall exclude the "creamy layer" among such caste. 670.
Quantum of reservation of 27% of seats to Other Backward Classes in the
educational institutions provided in the Act is not illegal. 671. Act 5 of 2007
is not invalid for the reason that there is no time-limit prescribed for its
operation but majority of the Judges are of the view that the review should be
made as to the need for continuance of reservation at the end of 5 years.
petitioner herein made an application in A. K. Thakur alleging that some central
educational institutions were interpreting the decision contrary to the law laid
down therein and sought the following directions/clarifications : (a) that the
limit of cut-off marks for admission of students in the OBC quota in Central Educational
Institutions be a maximum 10 marks below the cut-off for the general
category;(b) that all vacant seats in the reserved quota after the seats have been
filled in accordance with (a) above shall automatically revert to the general
said application was heard and disposed of by the Constitution Bench by the following
Order dated 14.10.2008 (record of proceedings reported in P V Indiresan Vs.
Union of India - 2009 (7) SCC 300) : "
1. The applicants
have prayed for two reliefs in this application. This application is an offshoot
of the judgment passed by the Constitution Bench of this Court on 10.4.2008.
2. A question had
been raised in this application as to what should be the extent of cut-off
marks for admission of students of OBCs in the Central Educational Institutions.
Having heard the learned Solicitor General of India and learned Senior Counsel on
both the sides and also having regard to the observations made in the judgments
pronounced by this Court, we make it clear that the maximum cut-off marks for OBCs
be 10% below the cut-off marks of general category candidates.
3. We are told that
in many of the Central Educational Institutions the seats which are to be filled
up by OBC candidates are still remaining vacant. These institutions may endeavour
to fill up these vacant seats by other eligible students at the earliest i.e at
least by the end of October 2008 observing inter se merit of the candidates.
All other rules and regulations regarding admissions shall be strictly followed.
The application is disposed of accordingly." (emphasis supplied)
The Government of India
by official memorandum dated 17.10.2008 directed that the said order dated
14.10.2008 be implemented by the Central Educational Institutions by ensuring that
the maximum cut-off marks of OBCs are not kept lower than 10% from the cut-off marks
for general category candidates as directed by this Court.
Jawaharlal Nehru University (for short `JNU'), second respondent herein,
interpreted the said order of this Court dated 14.10.2008 to mean that the minimum
marks for admission to be secured by an OBC candidate should not be less than the
marks secured by the last student admitted under general category less 10%. The
admissions for 2008-09 and 2009-10 were done on that basis. As a result, it
would appear considerable 5number of OBC seats got reverted to general category
for non-availability of eligible OBC students with the required marks. Therefore,
the standing committee on admissions of JNU, at its meeting held on 10.6.2010,
considered the ways and means to fulfill 27% quota for OBC students for
The Committee noted
the difference between eligibility, qualifying marks and cut-off marks as
under: "Eligibility for applying for admission refers to the pre- requisite
of the last qualifying examination such as school leaving, graduation, etc.
[Eg. : for admission to MA course, the applicant should have secured a minimum
of 50% marks in the BA Course]. Qualifying marks refer to the minimum marks in
the entrance examination decided by the University in advance which it deems fit
to preserve the academic standards. [Eg.: For admission, the candidate
possessing eligibility, should secure a minimum of 30% in the entrance
examination]. Cut-off marks for the merit list are decided on the basis of number
of seats available in each programme/division, in the merit list prepared of
all candidates having obtained equal to or above qualifying marks. [Eg.:
The marks secured by the
candidate allotted/admitted to the last of the General category seats, becomes
the cut-off marks for general category]."As there was some divergence in views
as to whether the procedure followed in 2008-09 and 2009-10 should be continued,
the following two proposals were placed before the Deans Committee: (i) The
current policy and procedure to consider the cut-off as per the definition given
above and to provide for OBC category (creamy layer excluded) a maximum relaxation
of 10% below the cut-off marks arrived for unreserved category candidates.
accordance with the Ashok Kumar Thakur judgment after giving maximum possible relaxation,
wherever the non- creamy layer OBC candidates fail to fill the reservation, the
remaining seats would revert to general category students. Or (ii) To consider the
minimum qualifying marks in the entrance examination approval by it as the cut-off
to provide maximum relaxation of 10% to OBC candidates (creamy layer excluded) below
the cut-off of general candidates as per the interpretation of the Supreme
Court judgment by fixing cut-off in advance for admission in various programmes
of study to OBC candidates (creamy layer excluded) to be implemented in this year,
i.e. 2010-11 admissions.
The merit list will be
drawn as per the admission policy of the University and approval intake and offers.
However, in accordance with the Ashok Kumar Thakur judgment after giving maximum
possible relaxation, wherever the non-creamy layer OBC candidates fail to fill
the reservation, the remaining seats would revert to general category
Deans Committee of JNU discussed the issue at its meeting dated 17.6.2010, considered
the proposals of the Standing Committee on Admissions and resolved as follows in
regard to the admissions of OBC candidates for the academic year 2010-2011: "The
Deans Committee after detailed discussion decided to accept the second proposal
of the Standing Committee on Admissions viz. to treat the minimum qualifying
marks in the entrance examinations as the cut-off to provide maximum relaxation
of 10% to OBC candidates (creamy layer excluded) below the cut-off of general
candidates as per the interpretation of the Supreme Court Judgment by fixing
cut-off in advance for admission to various programmes of study to OBC candidates
(creamy layer excluded) for inviting them for viva-voce as well as for admission
to various programmes of study to be implemented in this year i.e. 2010-11 admissions.
The merit list will
be drawn as per the admission policy of the University and approved intake and
offers. Further, in accordance with the Ashok Kumar Thakur judgment after
giving maximum possible relaxation, wherever the non-creamy layer OBC
candidates fail to fill the reservation, the remaining seats would revert to
general category students. Hence to be eligible to be invited for viva voce
examination a candidate must secure following marks out of 70 in the written
examination. Programme General Category OBC SC/ST/PH categories M.Phil/Ph.D.M.Tech
35% i.e 24.50 31.5% i.e. 25% i.e. /Ph.d.Pre-Ph.D/Ph.D marks 22.05 marks 17.50
marks MPH/PH.D MA, BA and Part 25% i.e. 17.50 22.5% i.e. 15% i.e. time programmes
marks 15.75 marks 10.50 marks where viva-vice is prescribed
To be eligible for
admission a candidate must secure a minimum overall score out of 100 as given
in the table below: Programme General OBC SC/ST/PH Category categories M.Phil/Ph.D.M.Tech/
40% i.e 40 36% i.e. 36 30% i.e. 30 Ph.d.Pre-Ph.D/Ph.D marks marks marks MPH/PH.D
MA/M.Sc/MCA, BA 30% i.e. 30 27% i.e. 27 25% i.e. 25 (Hons.) 1st & 2nd Year marks
marks marks Part Time (COP & Advanced Diploma in Mass Media in Urdu) The
Committee further resolved that the above recommendations will be implemented
only for this year, i.e. 2010-2011 and admission policy will be reviewed after
the current admission process is over and statistics are available for
implementation from the next year i.e. 2011-2012."
legal notice dated 27.6.2010 was issued to the JNU on behalf of a students association
contending that the change in the procedure for admissions to the seats reserved
for OBCs proposed by the JNU was contrary to the clarificatory order of this Court
dated 14.10.2008, and 8threatening initiation of contempt proceedings, if the said
decision dated 17.6.2010 of the Deans Committee was implemented.
As a consequence, JNU
sought legal opinion. JNU was advised that while the procedure sought to be adopted
by JNU for 2010-2011, vide its resolution dated 17.6.2010 may not be contempt
of court, it may not stand judicial scrutiny and could be viewed as an attempt to
circumvent the law declared in A. K. Thakur and therefore, it should continue the
policy and procedure adopted during the previous two years.
As a consequence on
12.7.2010 the Deans Committee reviewed the earlier decision dated 17.6.2010 and
decided to restore/continue the procedure that was followed during the previous
year (2009-2010), that is to admit only OBC candidates who secure marks within
10% band below the marks secured by the last candidate admitted in the general
category and transfer all the unfilled OBC seats to general category.
revised decision dated 12.7.2010 of the Deans Committee was challenged by two OBC
students (respondents 3 and 4) in a writ petition [W.P.(C) No.4857/2010] filed in
the Delhi High Court. A learned Single Judge of the High Court allowed the writ
petition by impugned order dated 7.9.2010 holding as under: "Procedure
followed by the second respondent (JNU) and the stand of the first respondent
(UOI) regarding reservation for OBCs is thus declared to 9 be bad.
It is declared that the
first respondent UOI/Universities are entitled to only fix minimum eligibility criteria
for admission in the reserved category at maximum 10% below the minimum
eligibility criteria fixed for the General (Unreserved) category. The OBC
candidates to avail of reservation provided for them in the CEI Act are not required
to, in admission test or in the eligibility exam, secure marks within the bandwidth
of 10% below the cut-off marks of the last candidate admitted in the General
said order was challenged by the appellant herein, a non party before the High Court
with an application seeking leave to challenge the order of the learned Single
Judge directly before this Court, without filing a letter patent appeal. As the
matter involved interpretation of the words "cut-off marks" employed
by this Court in the order dated 14.10.2008, this Court granted such permission
on 27.9.2010 to the appellant.Contentions of Parties
appellant contends that `cut-off marks' refers to the marks secured by the last
candidate admitted to a particular course of study or under a particular
category. `Cut-off marks' are decided with reference to a merit list of candidates
prepared (with reference to the eligibility marks and/or where there is an entrance
examination, with reference to the qualifying marks) on the basis of number of
seats available in a programme.
The marks secured by
the last candidate admitted from such merit list to the programme denotes the `cut-off
marks' for admission to that programme. The appellant submitted that the words "10%
below the cut-off marks of general category candidates" would mean 10%
below the marks secured by the last candidate admitted under general category. That
is if the last candidate admitted under general category had secured 80% marks,
and the lowering of minimum marks was 10% for OBCs, then OBC candidates who
have secured marks in the band width of 79 to 72 marks (that is 80 less 10%)
would alone be entitled to claim admission.
This would also mean
that until admissions to general category seats are determined and the `cut
off' marks that is the marks secured by the last general category candidate is
ascertained, admissions to OBC reservation seats cannot be commenced, as the
bandwidth of marks to be possessed by OBC candidates for admission would depend
upon the marks secured by the last candidate admitted under general category.
the other hand, the learned counsel for the third and fourth respondents (the OBC
category candidates who were the writ petitioner before the High Court) contended
that the CEI Act does not stipulate or provide any minimum "cut off
marks" for OBC category candidates who are entitled to the benefit of 27%
reservation. It is also submitted that there is no mandatory direction either in
A K Thakur or Indiresan to fix the cut off marks for the general category or cut
off marks for OBC category candidates.
It is submitted that
the words "the maximum cut-off marks for OBCs be 10% below the cut-off marks
of general category candidates" in the order dated 14.10.2008 would mean
that the minimum eligibility marks (or minimum qualifying marks if there is an entrance
examination) for general category, can be lowered or reduced by not more than 10%
to prescribe the minimum eligibility marks for OBC candidates. That is, if 50%
was the minimum eligibility marks for admission to general category seats, the
maximum cut off marks for OBC being 10% below the general category candidates,
the minimum eligibility marks for OBC cannot be less than 45% (that is 50%
minus 10% of 50%).
respondents further submitted that neither the Constitution Bench which decided
A. K. Thakur which made the clarificatory order dated 14.10.2008, nor the
appellant at whose instance the order of clarification was issued, had proceeded
on the basis that cut off marks would refer to the marks secured by the last candidate
admitted to the general category. The object of appellant in making the application
seeking clarification of the order in A. K. Thakur was to ensure that the lowering
of the minimum eligibility/qualifying marks for admission of OBCs candidates
did not lead to a large disparity with the general candidates affecting the
excellence of higher education.
appellant wanted a ceiling for the lowering of the minimum marks for admission
of OBC candidates to be prescribed. It was in that context the Constitution
Bench ordered that the minimum marks for admission of OBC candidate should not be
less than 10% below the minimum eligibility/qualifying marks for general
grievance of OBC candidates was not in regard to the determination of minimum eligibility/qualifying
marks. For example, as noticed above, if the minimum eligibility marks for
general category is fixed as 60 for English or 70 for journalism, they have no grievance
if the minimum eligibility marks being fixed at 54 marks for English and 63 for
journalism in regard to OBC candidates.
The OBC candidates
have also no grievance if they are required to pass an entrance examination and
are required to secure the minimum qualifying marks in the entrance
examination. Their grievance is with reference to determining the minimum
eligibility/qualifying marks for admission of OBC students with reference to
the marks secured by the last candidate admitted under the general category.
Their grievance is to
linking of their admissions to an uncertain and fluctuating benchmark which would
depend upon the quality of the last student admitted under the general
category. According to the respondents by adopting the method of determining
the `cut off' marks for OBCs with reference to `cut off' marks of last general category
candidate defeats the purpose of reservation of 27% seats for OBC candidates
and denies the just and legitimate entitlement of OBCs for admission. It is
pointed out that the adoption of such a procedure in 2008-2009 and 2009-2010
had resulted in large number of seats meant for OBCs being transferred to
general category candidates. Question for consideration
problem or question for consideration arising out of the rival contentions may
be appreciated with reference to the following illustration: "A central
educational institution has 100 seats in its B.Com. programme. Eligibility for admission
is with reference to the marks secured in the qualifying examination [that is 10+2
or its equivalent]. The minimum eligibility prescribed for admissions is 50% marks
for general category, 45% for OBCs and 40% for SC/ST. Having regard to the reservation
policy applicable to the institution, out of 100 seats, 50 seats have to be filled
by general category candidates, 27 seats are to be filled by OBC candidates and
23 seats (15 + 7.5 rounded off to 23) are to be filled by SC/ST candidates. 300
candidates seek admission, of whom 160 belong to general category, 90 belong to
OBCs and 50 belong to SC/ST.
The college prepares a
common merit list and the first 50 candidates in the said common merit list are
granted admission under the general category. The first candidate in the merit
list has secured 98 marks and the 50th candidate in the merit list who is the last
candidate in the general category has secured 80 marks. The college also prepares
a separate list of 90 OBC candidates merit list, 30 SC candidates and 20 ST
candidates. Out of the OBC candidates list of 90 candidates, the first 15 have
found a place in the first 50 in the common merit list on their own merit and
are admitted and treated them as general category candidates, leaving 75
candidates in the OBC list.
Out of the said 75
OBC candidates, 20 candidates have secured marks ranging from 79 to 72, and the
remaining 55 have secured marks ranging 71 to 46." According to the
respondents (OBC candidates), the first 27 candidates from the OBC candidates
list, that is 20 candidates who have secured between 79 to 72 marks and the next
7 candidates in the order of merit (who have secured less than 72) are entitled
to be selected to the 27 seats reserved for OBCs.
According to the appellant
as the last candidate in the general category has secured 80 marks, and as the "maximum
cut off marks for OBCs should be 10% below the cut off marks of general category
candidates", the general category cut off marks should be 80 and the OBC
cut off marks should be 72% (80 minus 8); and only those OBC candidates who
have secured marks in the band of 79 to 72 are entitled to be selected under
the OBC category. Out of the list of 90 OBC candidates the first ten having
been admitted as general category candidates on their own merit, the next 20 OBC
candidates who have secured marks between 79 to 72 are 15entitled to be granted
admission under the OBC category.
The remaining 55
candidates having obtained less than the cut off marks 72 marks are not
entitled to admission. As a consequence, even though there were still 55
candidates in the OBC candidates merit list, who had secured more than the
required minimum of 45% in the qualifying examination, they are not entitled to
get admission; and the seven OBC seats which remain unfilled, would have to be
transferred as general category seats and will be filled by the general
category candidates from the common merit list in the order of merit.
appellant (and other intervenors who claim to be concerned about excellence in education)
contend that `cut off' marks' are different from `eligibility marks' or
`qualifying marks'. There is no dispute that eligibility marks refers to the
minimum marks a candidate is required to have in the last qualifying
examination (for example, 10+2 examination for admissions to a Bachelor's degree
programme or the graduation examination for admissions to a post graduate programme)
as a condition precedent for seeking admission to the higher course of study which
the appellant seeks admission.
Similarly, there is
no dispute that qualifying marks refers to the minimum marks required to be
secured in the special entrance examination, that may be held to determine the
inter-se merit of candidates from different universities/sources and to ensure
that candidates to be admitted possess the minimum academic standards required or
expected for a special course of study; and it is only those securing the qualifying
marks in the entrance examination, where it is a part of the admission process,
who will be included in the merit list for admission, or will become eligible for
being called for viva voce. [For example, it is stated that in Delhi University,
admissions to degree courses, except for English and Journalism Courses, are on
the basis of `eligibility marks' that is the prescribed minimum marks in 10+2 examination.
Those who seek admission in degree courses in English and Journalism will have to
participate in special entrance examinations.
A candidate seeking admission
to Bachelor's degree in Journalism is required to have eligibility marks of 70%
in 10+2 examination and also pass the entrance examination; and a candidate
seeking admission to Bachelor's degree in English is required to have
eligibility marks of 60% in 10+2 examination and also pass the entrance
examination]. In Dr. Preeti Srivastava vs. State of M.P. - (1999) 7 SCC 120,
this Court referred to the difference between eligibility and qualification,
thus : "At times, in some of the judgments, the words "eligibility"
and "qualification" have been used interchangeably, and in some cases
a distinction has been made between the two words - "eligibility"
connoting 17 the minimum criteria for selection that may be laid down by the
University Act or any Central statute, while "qualifications"
connoting the additional norms laid down by the colleges or by the
State."Eligibility Marks and Qualifying Marks are pre-determined, and
notified in the Admission Prospectus, so that a candidate intending to apply for
admission knows what eligibility marks he should possess in the qualifying
examination or what qualifying marks he should secure in the entrance
examination (if there is an entrance examination).
question for our consideration in this appeal by special leave is the meaning
to be assigned to the direction "the maximum cut-off marks for OBCs be 10%
below the cut-off marks of general category candidates" in the order dated
14.10.2008 of this Court. The Interpretation
English language, many words have different meanings and a word can be used in
more than one sense. Every dictionary gives several meanings for each word. The
proper use of a dictionary lies in choosing the appropriate meaning to the
word, with reference to the context in which the word is used.
mechanically apply all and every meanings given in a dictionary. Nor can we
choose an inappropriate meaning that the word may carry and then try to change
the context in which it is used. The context in which the word is used
determines the meaning of the word. A randomly chosen meaning for the word should
not change the context in which the word is used. This is the fundamental
principle relating to use of words to convey a thought or explain a position or
describe an event. We may demonstrate this with reference to the dictionary
meanings of the word `cut-off'.
Reader's Digest Word Power Dictionary gives the following meanings and
illustrative uses with reference to such meanings, for the word `cut-off' [1996
Edition, Page 195] : "Cut Off *to remove Cut off the thorns on the stem
otherwise you will pick yourself *to prevent from leaving or reaching a place;
to be isolated The village was cut off by floods I feel so cut off when I stay
on my parents' farm *to disconnect or stop supplying something He was cut off
before he could finish his telephone conversation *to disinherit He was cut off
without a cent *to block We must cut off all escape routes *expiry, final
deadline Post your entry now, because the cut-off date is today" (emphasis
Dictionary of the English Language gives the thirteen meanings to the word
cut-off [1979 Edition, Page 369] : "1. to remove by cutting. . to
intercept or interrupt something, esp. a telephone conversation. 3. to
discontinue the supply of : to cut off the water. 4. to bring to an end. 5. to
deprive of rights; disinherit : she was cut off without a penny. 6. to sever or
separate : she was cut off from her family. 7. to occupy a position so as to prevent
or obstruct (a retreat or escape). 8. (a) the act of cutting off; limit or
termination. (b) (as modifier) : the cut off point. 9. Chiefly U.S. a route or
way that is shorter than the usual one; short cut. 10. a device to terminate
the flow of a fluid in a pipe or duct. 11. the remnant of metal, plastic, etc.,
left after parts have been machined or trimmed.
12. Electronics. (a) the
value of voltage, frequency, etc., below or above which an electronic device cannot
function efficiently. (b) (as modifier) : cut off voltage. 13. a channel cutting
across the neck of a meander, which leave an oxbow lake. 14. another name for
oxbow (the lake)." (emphasis supplied)The Illustrated Oxford Dictionary
gives the following meanings to the word cut-off [2003 Edition, Page 205] : "1.
The point at which something is cut off. 2. A device for stopping a flow. 3. (US)
a short cut. 4. (in plural) shorts, esp. made by cutting the legs off jeans. (emphasis
supplied) 20What is appropriate for our purpose are the meanings `the point at which
something is cut off' in Oxford, `limit' or `the cut off point' in Collins and
the meaning `final deadline' in Reader's Digest.
term `cut-off marks' in academic and judicial vocabulary has several meanings. When
rejecting a person's request for selection on the ground that his marks are
less than the marks secured by the last candidate who was selected, by
describing the marks secured by the last candidate as `cut-off marks'.
The words `cut-off
marks' are also used while notifying a body of applicants who form part of a
merit list or the general public, the marks secured by the last selected candidate
so that they can know that persons with lesser merit/marks had not been
selected or have no chance of being selected. `Cut-off marks' are also used to
refer to the minimum marks (either eligibility marks or qualifying marks) required
for admission to a course.
sides relied upon certain observations of Pasayat, J. and Bhandari J, in A K
Thakur in support of the interpretation put forth by them. While appellant argued
that the said observations clearly indicated that minimum marks for admission of
OBC candidates should be a prescribed percentage below the marks secured by the
last candidate under general category (cut off marks for general category), the
respondents argued that the observations clearly meant that the minimum marks for
admission of OBC candidates should be a prescribed percentage below the minimum
eligibility/qualifying marks prescribed for general candidates. We may
therefore refer to the said observations. Pasayat J stated in his summing up : "358.
To sum up, the conclusions are as follows:
(1) For implementation
of the impugned Statute creamy layer must be excluded.
(2) There must be periodic
review as to the desirability of continuing operation of the Statute. This
shall be done once in every five years.
(3) The Central Government
shall examine as to the desirability of fixing a cut off marks in respect of the
candidates belonging to the Other Backward Classes (OBCs). By way of illustration
it can be indicated that five marks grace can be extended to such candidates below
the minimum eligibility marks fixed for general categories of students.
This would ensure
quality and merit would not suffer. If any seats remain vacant after adopting
such norms they shall be filled up by candidates from general categories."
(emphasis supplied)In the course of his judgment, Bhandari, J. referred to
cut-off marks at two places (vide paras 371 and 535). They are extracted below
: "If we want to really help the socially, educationally and economically backward
classes, we need to earnestly focus on implementing Article 21A. We must
provide educational opportunity from day one. Only then will the
casteless/classless society be within our grasp. Once children are of college-going
age, it is too late for reservation to have much of an effect.
The problem with the Reservation
Act is that most of the beneficiaries will belong to the creamy layer, a group for
which no benefits are necessary. Only non-creamy layer OBCs can avail of reservations
in college admissions, and once they graduate from college they should no
longer be eligible for post-graduate reservation. 27% is the upper limit for OBC
reservation. The Government need not always provide the maximum limit. Reasonable
cut off marks should be set so that standards of excellence greatly effect. The
unfilled seats should revert to the general category. x x x x x
The best universities
are the best, in part, because they attract the best students. The same can be
said for almost any organization. In the case of higher education, the
universities that admit the best will likely churn out the best. The precise
extent to which the university made the best so good cannot be qualified. The point
is that universities alone cannot produce qualified job candidates. Forced to
admit students with lower marks, the university's final product will not be as strong.
Once the creamy is excluded, cut-off marks would likely drop considerably in
order to fill the 27% quota for non creamy layer OBCs.
When the creamy layer
is not removed, as in the case of Tamil Nadu, the difference in cut off marks
for the general and backward categories may be insignificant. (See para 408 of
Indira Sawhney). Of course, the extent to which standards of excellence would
suffer would vary by institution. As I mention below, I urge the Government to
set OBC cut off marks no lower than 10 marks below that of the general
category. This is only a recommendation. (emphasis supplied)In his judgment,
Bhandari, J. observed thus in regard to the question `would it be reasonable to
balance OBC reservation with societal interests by instituting OBC cut off
marks that are slightly lower than that of the general category?' : "
27. Balaji (supra) concluded
that reservation must be reasonable. The Oversight Committee has made a recommendation
that will ensure the same. At page 34 of Volume I of its Report, the Oversight Committee
recommended that institutions of excellence set their own cut off marks such that
quality is not completely compromised. Cut offs or admission thresholds as
suggested by the Oversight Committee are reproduced: 234.4.2.
recognizes that those institutions of higher learning which have established a
global reputation (e.g. IITs, IIMs, IISc, AIIMS and other such exceptional quality
institutions), can only maintain that if the highest quality in both faculty
and students is ensured. Therefore, the committee recommends that the threshold
for admission should be determined by the respective institutions alone, as is
done today, so that the level of its excellence is not compromised at
all.4.4.3. As regards 'cut-offs' in institutions other than those mentioned in para
7, these may be placed somewhere midway between those for SC/ST and the
unreserved category, carefully, calibrated so that the principles of both
equity and excellence can be maintained. 4.4.4.
strongly feels that the students who currently tend to get excluded must be given
every single opportunity to raise their own levels of attainment, so that they can
reach their true potential. The Government should invest heavily in creating
powerful, well designed and executed remedial preparatory measures to achieve
this objective fully.
28. Standards of
excellence however should not be limited to the best aided institutions. The Nation
requires that its citizens have access to quality education. Society as a whole
stands to benefit from a rational reservation scheme.
29. Finding 68%
reservation in educational institutions excessive, Balaji admonished States that
reservation must be reasonable and balanced against other societal interests.
States have "to take reasonable and even generous steps to help the
advancement of weaker elements; the extent of the problem must be weighted, the
requirements of the community at large must be borne in mind and a formula must
be evolved which would strike a reasonable balance between the several relevant
considerations." To strike such a balance, Balaji slashed the impugned
reservation from 68 to less than 50%. Balaji thus serves as an example in which
this Court sought to ensure that reservation would remain reasonable. We heed
There should be no
case in which the gap of cut off marks between OBC and general category
students is too large. To preclude such a situation, cut off marks for OBCs should
be set no lower than 10 marks below the general category. To this end, the
Government shall set up a committee to look into the question of setting the
OBC cut off at not more than 10 marks below that of the general category. Under
such a scheme, whenever the non-creamy layer OBCs fail to fill the 27%
reservation, the remaining seats would revert to general category
students." (emphasis supplied)
In his summary of
findings also, Bhandari, J., again referred to cut-off marks as under : "11.
Would it be reasonable to balance OBC reservation with societal interests by
instituting OBC cut-off marks that are slightly lower than that of the general
category ? It is reasonable to balance reservation with other societal interests.
To maintain standards of excellence, cut off marks for OBCs should be set not more
than 10 marks out of 100 below that of the general category." (emphasis
clarificatory order dated 14.10.2008 in P.V. Indiresan vs. Union of India [2009
(7) SCC 300] which stated that the "maximum cut off marks for OBCs be 10%
below the cut off marks of general category candidates" is sought to be
interpreted differently by the appellant and respondents, with reference to the
The appellant contends
that the "cut off marks of general category candidates" refers to the
marks secured by the last candidate who secures a seat under general category
and therefore only such OBC students who have secured marks in the bandwidth of
10% below the marks secured by the last general category candidate, will be entitled
to admission. On the other hand the respondents contend that the words
"cut off marks of general category candidates were used to refer to the
minimum eligibility/qualifying marks prescribed for admission to the course under
find that this court has been regularly and routinely using the words `cut off
marks' to describe the minimum marks required to be secured in the qualifying
examination for being eligible for admission or to describe the minimum
qualifying marks to be obtained in an entrance examination. As this court has routinely
used the words `cut off marks' to refer to `eligibility marks' or `qualifying
marks', whenever this Court uses the words `cut off marks', their meaning would
depend upon the context. The words may refer to either the minimum marks to be secured
in the qualifying examination or the entrance examination to be eligible for
admission, or to the marks secured by the last candidate admitted in a
may refer to some of the cases where this court has used the term `cut off
marks' to refer to the eligibility marks or qualifying marks.
24.1) In Dr. Jeevak
Almast vs. Union of India [1988 (4) SCC 27] this Court observed : "The scheme
contained the provision that the cut-off base for selection for admission shall
be 50 per cent marks", while referring to the All India Entrance Examination.
This clearly demonstrates that the words `cut-off' base was used to refer to the
qualifying marks the minimum eligibility marks in the qualifying examination.
24.2) In Ajay Kumar
Agrawal and Ors. v. State of U.P. [1991 (1) SCC 636] this court while referring
to the minimum marks required for being eligible for admission to post graduate
course described the minimum qualifying marks in the qualifying examination, as
`cut off base' marks. We extract below the relevant portion as follows :- "11.
It is not disputed that in Uttar Pradesh the prevailing practice was a 50 per
cent base for allowing Post Graduate Study to doctors with MBBS qualifications
but taking their University examination as the base without any separate
selection test, it is not the case of any of the parties before us that the
selection is bad for any other reason. We are of the view that it is in general
interest that the 50 per cent cut-off base as has been adopted should be
24.3) In State of
Uttar Pradesh v. Dr. Anupam Gupta [1993 Supp (1) SCC 594], this court extracted
the following provision from a Government order relating to eligibility marks
for admission which was minimum of 50% for general category candidates and 40%
for reserved category candidates :- "(2) This examination shall have 100 per
cent objective type questions. The eligibility criteria for admission to
post-graduate courses shall be 50 per cent minimum qualifying marks for
candidates of general category and 40 per cent minimum qualifying marks for candidates
of reserved categories (SC/ST).
used the words cut off marks to refer to the minimum eligibility marks for
general category candidates and reservation category candidates: 27 "...
Thus it could be seen that this Court consistently laid down the criteria for conducting
entrance examination to the post graduate degree and diploma courses in
Medicine and the best among the talented candidates would be eligible for
admission. 50% cut off marks was also held to be valid to achieve excellence in
post graduate speciality.
Accordingly we uphold
the prescription of 50% cut off marks to general candidates and 40% to SCs and
STs together with 1.65% weightage of total marks i.e. 50 marks in total in
entrance examination as constitutional and valid." (emphasis supplied)
24.4) In Ombir Singh
& Ors. v. State of U.P. [1993 Supp. (2) SCC 64] this court while upholding
the prescription of 50% and 40% respectively as the minimum eligibility marks in
the qualifying examination followed the decisions in Ajay Kumar Agarwal and Dr.Anupam
Gupta by relying upon and reiterating the passages in those decisions which use
the words cut-off marks to refer to qualifying marks.
We extract below the
relevant portions of the said decision: "So far as the validity of the admission
rules fixing 50% marks for the general category candidates and 40% marks for the
SC/ST category candidates to be obtained at the entrance examination as minimum
qualifying marks for being eligible for admission to the Post-Graduate medical
courses, the same are not subject to any challenge ........ "....
It may be further
mentioned that this Court in Ajay Kumar Agrawal and Ors. v. State of U.P. [1991
(1) SCC 636] observed as under:- "It is not disputed that in Uttar Pradesh
the prevailing practice was a 50 per cent base for allowing Post Graduate Study
to doctors with MBBS qualifications but taking their University examination as
the base without any separate selection test, it is not the case of any of the
parties before us that the selection is bad for any other reason. We are of the
view that it is in general interest that the 50 per cent cut-off base as has
been adopted should be sustained." 28 3. The matter again came up for consideration
before this Court and in State of Uttar Pradesh and Ors. v. Dr. Anupam Gupta
[1993 Supp. 1 SCC 594], it was held as under:-
"Thus it could
be seen that this Court consistently laid down the criteria for conducting entrance
examination to the post graduate degree and diploma courses in Medicine and the
best among the talented candidates would be eligible for admission. 50% cut off
marks was also held to be valid to achieve excellence in post graduate speciality.
Accordingly we uphold the prescription of 50% cut off marks to general candidates
and 40% to SCs and STs together with 1.65% weightage of total marks i.e. 50 marks
in total in entrance examination as constitutional and valid."
Thus, we further hold
that any challenge to the above rule laying down minimum percentage of marks for
eligibility for admission to Post- Graduate courses is no longer
reintegra."24.5) In Hemani Malhotra vs. High Court of Delhi - (2008) 7 SCC
11, we find that this Court has used the words `cut-off marks' to refer to
describe `minimum qualifying marks' following Justice Shetty Commission Report
which also used the term `cut-off marks' while referring to `minimum qualifying
marks'. In that case, the advertisement inviting applications stated that
"minimum qualifying marks in the written examination shall be 55% for
general candidates and 50% for SC and ST candidates".
resolution of the full court provided that the "minimum qualifying marks
in viva voce will be 55% for general candidates and 50% for SC/ST candidates.
This Court while considering the correctness of the said resolution observed
thus : 29 "This Court further notices that Hon'ble Justice Shetty Commission
has recommended in its Report that 'The vive- voce test should be in a thorough
and scientific manner and it should be taken anything between 25 to 30 minutes for
What is recommended by
the Commission is that the vive-voce test shall carry 50 marks and there shall be
no cut off marks in vive-voce test.- This Court notices that in All-India Judges
Association and Ors. v. Union of India - (2002) 4 SCC 247, subject to the various
modifications indicated in the said decision, the other recommendations of the
Shetty Commission (supra) were accepted by this Court.
It means that
prescription of cut off marks at vive-voce test by the respondent was not in
accordance with the decision of this Court."24.6) In K. Manjusree vs.
State of A.P. - (2008) 3 SCC 512, this Court used the words `cut-off
percentage' to refer to minimum qualifying marks. The relevant portion is
extracted below : "The sub- committee was also of the view that apart from
applying the minimum marks for the written examination for determining the eligibility
of the candidates to appear in the interview the same cut off percentage should
be applied for interview marks, and those who fail to secure such minimum marks
in the interview should be considered as having failed."
Court also used the word `threshold marks' to describe the minimum qualifying marks.
In Parveen Jindal v. State of Haryana [1993 Supp. (4) SCC 70] this court
referred to Rule 7 of the Haryana Service of Engineers Class I, PWD (Irrigation
Branch) Rules, 1964 which prescribes the qualifying marks, relevant portion of
which is extracted below: "Provided that a candidate shall not be considered
qualified for appointment, unless he obtains not less than forty per cent marks
in each subject and also not less than fifty per cent marks in the aggregate,
and no candidate who does not obtain the qualifying marks shall be called for interview
by the commission.
This Court, while
referring to the contentions of the appellant therein, used the word `threshold'
marks to refer to the qualifying marks, as is evident from the following
passage: "Whereas the Rules say that a candidate obtaining 50% marks in the
written test is entitled to be called for viva-voce, the Commission has arbitrarily
prescribed a threshold of 65% which it had no jurisdiction to do. As a result of
the said arbitrary stipulation several of the appellants have been denied the
opportunity of selection. The Commission must not be directed to make selections
afresh for all the three wings/branches in the Public Works Department." (emphasis
A K Thakur, while referring to the observations of the Report (Vol.II) of the
Oversight Committee (Planning Commission, Govt. of India) on Reservation in Higher
Educational Institutions, Bhandari, J. used the words `cut offs' or `admission thresholds'
as interchangeable words by observing. "Cut-offs or admission thresholds
as suggested by the Oversight Committee are reproduced" (vide : Para 627)
A K Thakur, Pasayat, J. has also used the words "cut-off marks" to
refer to minimum eligibility marks. While summing up his conclusions (in para
358 extracted above) he observed that the "Central Government shall
examine as to the desirability of fixing cut off marks in respect of the candidates
belonging to the Other Backward Classes (OBCs.)", and proceeded to observe
"By way of illustration it can be indicated that five grace marks can be
extended to such candidates below the minimum marks fixed for general
categories of students." The suggestion made is that if the minimum
eligibility marks for general category students is 50, the minimum eligibility
marks for OBC candidates should be 45. This clearly shows the words "cut off
marks" have been used to refer to minimum eligibility or qualifying marks.
the Oversight Committee on Reservation in Higher Educational Institutions, Government
of India (Planning commission) in its Interim Report and Final Report uses the words
`cut off marks' and `threshold marks' to refer to minimum eligibility marks. We
extract below the relevant portions: "Interim Report The Oversight
Committee considers expansion, inclusion and excellence as the moving spirit,
behind the new reservation policy. The institutions of higher leaning should keep
these three principles in view while determining threshold marks for admission to
OBC students............ (vide para 6 of the Preamble).
As regards `cut offs'
in institutions other than those mentioned in para 7, these may be placed
somewhere mid way between those for SC/ST and the unreserved category, carefully
calibrated so that the principles of both equity and excellence can be
maintained (vide para 8 of Preamble). Final Report (Vol.II) 4.4 Cut offs or
admission thresholds: 4.4.1 The issue of threshold levels or cut offs for OBC
candidates has already been addressed in the Interim Report (paras 7 and 8) as
under : 32 x x x x x x x x x 4.4.3
As regards `cut offs'
in institutions other than those mentioned in para 7, these may be placed
somewhere mid way between those for SC/ST and the unreserved category,
carefully calibrated so that the principles of both equity and excellence can
be maintained. Para 4.4.3 of the Report of the Oversight Committee obviously
refers to a situation where if the minimum eligibility marks for general category
candidates is 50% and the minimum eligibility marks for SC/ST candidates are 40%,
the minimum eligibility for OBC should be somewhere midway that is 45%.
It should be noted that
the observations of Bhandari J in para 729 of the decision in A K Thakur, which
is the fulcrum of the entire argument of appellant are made in the context of
the aforesaid observations of Oversight Committee and therefore, when Bhandari
J uses the words `cut off marks', he is also clearly referring to the
words "cut-off marks" are freely used to describe the prescribed
minimum marks even in academic circles and central educational institutions.
For example, the prospectus of MBBS admissions in All India Institute of Medical
Sciences (AIIMS) provides in Para 2 (dealing with eligibility) that a candidate
should have obtained a minimum aggregate of 60% marks in the case of general
and OBC candidates and 50% in the case of SC/ST candidates in aggregate.
It also provides that
all candidates who are so found eligible, have to appear for a competitive
entrance examination and Clause 4.1 refers to the minimum marks required to be
secured in the MBBS Entrance Examination who could be admitted. "4.1
Minimum cut-off marks in the MBBS Entrance Examination : As per the decision of
the governing body and institute body at it meeting held on 26.11.2009 with regard
to cut-off marks in the MBBS entrance examination, the candidate belonging to
general category will be required to have 50% minimum cut-off marks.
Those belonging to
OBC category will be required to have 45% minimum cut-off marks and those belonging
to SC/ST will have to ensure at least 40% minimum marks in the MBBS entrance
examination."It will be seen from the above that the words `cut-off marks'
are used as the minimum marks required in the entrance examination.
J and Bhandari J. were concerned about the standards of excellence in higher
education. Having regard to the fact that OBCs were far better placed
economically and socially than SCs/STs, they wanted to ensure that the minimum percentage
for OBCs was somewhere between the minimum marks for SC/ST and minimum marks for
general category candidates. They did not want the minimum eligibility marks for
OBCs should be the same as the minimum eligibility marks for Scheduled Castes
and Scheduled Tribes.
They were of the view
that if very low eligibility marks were provided for OBC, the disparity would
affect higher education standards. It is in that context, that Bhandari, J.
observed that cut off marks 34for OBCs, should not be lower than 10 marks below
that of general category thereby meaning that minimum eligibility marks for OBC
should be set no lower than 10% below the eligibility marks for the general
category. Pasayat J in fact specifically stated that the minimum marks for OBCs
should be 5 marks less than the minimum eligibility marks for general category.
Constitution Bench of this Court in Dr. Preeti Srivastava (supra) observed as
follows : "29. The submission, therefore, that there need not be any qualifying
marks prescribed for the common entrance examination has to be rejected. We
have, however, to consider whether different qualifying marks can be prescribed
for the open merit category of candidates and the reserved category of
candidates. Normally passing marks for any examination have to be uniform for
all categories of candidates.
We are, however,
informed that at the stage of admission to the M.B.B.S. course, that is to say,
the initial course in medicine, the Medical Council of India has permitted the reserved
category candidates to be admitted if they have obtained the qualifying marks
of 35% as against the qualifying marks of 45% for the general category
candidates. It is, therefore, basically for an expert body like the Medical Council
of India to determine whether in the common entrance examination viz. PGMEE, lower
qualifying marks can be prescribed for the reserved category of candidates as
against the general category of candidates; and if so, how much lower.
There cannot, however,
be a big disparity in the qualifying marks for the reserved category of
candidates and the general category of candidates at the post- graduate level.
This level is only one step below the apex level of medical training and education
where no reservations are permissible and selections are entirely on merit. At only
one step below this level the disparity in qualifying marks, if the expert body
permits it, must be minimal. It must be kept at a level where it is possible for
the reserved category candidates to come up to a certain level of excellence
when they qualify in the speciality of their choice.
It is public interest
that they have this level of excellence." (emphasis supplied) In Dr.
Preeti Srivastava, the Constitution Bench held that if the qualifying marks for
reserved category was 20% and the qualifying marks for general category was
45%, the disparity was too great to sustain the public interest at the level of
postgraduate medical training and education. This Court noticed that for MBBS
the difference in qualifying marks was only 10% that is 45% for general
category and 35% for reserved category and that difference was not
Bench was of the view that prescribing different minimum qualifying marks for general
category and reservation category was permissible so long as the difference was
not too great; and that at post graduate level, the disparity in the qualifying
marks between general category and reservation categories should be narrower than
the disparity between the two categories at graduate level. It should be noted
that neither Dr. Preeti Srivastava, nor A.K. Thakur nor any other decision of
this Court required that the reservation category candidates should possess
marks which are within a narrow bandwidth below the cut off marks for the last student
admitted in the general category. All the decisions spoke of
difference/disparity in regard to eligibility marks and qualifying marks.
the context in which Bhandari J. concluded that "cut-off marks for OBCs should
be set no lower than 10% marks below general 36category" (vide Paras 535 and
629) of A K Thakur, he meant that eligibility/qualifying marks for OBCs should be
set not lower than 10% below the eligibility/qualifying marks of general category.
Similar is the position regarding the observation of Pasayat J. in Para 358 of
A K Thakur. Pasayat J.
observed that the cut
off marks for OBCs should be fixed by extending 5 grace marks, that is 5 marks below
the minimum eligibility marks fixed for general categories of students. We fail
to understand how the words "minimum eligibility marks fixed for general categories
of students' used by Pasayat J can be read as `cut off marks' of general
category, that is marks secured by the last candidate admitted under general
We, therefore, hold that
the words "maximum cut-off marks for OBCs be 10% below the cut off marks
of general category candidates" in the order dated 14.10.2008 of the
Constitution Bench meant that if the minimum eligibility/qualifying marks prescribed
for general category candidates was 50%, the minimum eligibility/qualifying marks
for OBCs should be 45%.
appellant canvasses the continuance of the procedure adopted by JNU during 2008-09
and 2009-10. What in effect was that procedure? During those years, JNU would fix
the minimum eligibility marks as say 740% when the admission programme is
announced. JNU would apply it only to general category candidates. It would not
say what was the minimum eligibility marks for OBC candidates, but would decide
the same, only after all the general category seats were filled, by fixing a band
of marks upto 10% below the marks secured by the last candidate admitted under the
If a OBC candidate
secured the marks within that band, he would be given admission. Otherwise even
if he had secured 70%, as against the minimum of 40% he would not get a seat, if
the band of marks was higher. Such a procedure, was arbitrary and
discriminatory, apart from being unknown in regard to admissions to educational
institutions,. The minimum eligibility marks for admission to a course of study
is always declared before the admission programme for an academic year is commenced.
An institution may
say that for admissions to its course, say Bachelor's degree course in science,
the candidate should have successfully completed a particular course of study,
say 10+2, with certain special subjects. Or it can say that the candidate should
have secured certain prescribed minimum marks in the said qualifying examination,
which may be more than the percentage required for passing such examination. For
example if a candidate may pass a 10+2 examination by securing 35% marks, an
institution can say at its discretion that to be eligible for being admitted to
its course of study, the candidate should have passed with at least a minimum
of 40% or 50% or 60%.
Whatever be the marks
so prescribed, it should be uniform to all applicants and a prospective
applicant should know, before he makes an application, whether he is eligible for
admission or not. But the `cut-off' procedure followed by JNU during those days
had the effect of rewriting the eligibility criteria, after the applications were
received from eligible candidates. If the minimum eligibility prescribed for an
admission in an institution was 50% and a candidate had secured 50%, he could
not be denied admission, if a seat was available, based on a criterion ascertained
after the last date for submission of applications. No candidate who fulfils
the prescribed eligibility criteria and whose rank in the merit list is within
the number of seats available for admission, can be turned down, by saying that
he should have secured some higher marks based on the marks secured by some other
category of students.
A factor which is neither
known nor ascertained at the time of declaring the admission programme cannot
be used to disentitle a candidate to admission, who is otherwise entitled for
admission. If the total number of seats in a course is 154 and the number of
seats reserved for OBCs is 42, all the seats should be filled by OBC students
in the order of merit from the merit list of OBC candidates possessing the
minimum eligibility marks prescribed for admission. (subject to any 39requirement
for entrance examination.) When an eligible OBC candidate is available, converting
an OBC reservation seat to general category is not permissible. Alternative
appellant also urged that there is a marked distinction between scheduled castes
and scheduled tribes who have faced historical discrimination and social handicap
apart from being socially and educationally backward and the Other Backward Classes
who were only socially and educationally not forward, but did not suffer from such
historical discrimination and social handicap [vide ground `G' of the special
The appellant contended
all benefits associated with reservations for SCs/STs need not, and in fact, cannot,
be extended to reservations for OBCs. Expanding the said submission, the appellant
contended that the principle that when candidates belonging to a reserved
category get selected in the open competition field on the basis of their own
merit, they will not be counted against the reservation quota, but will be
treated as open competition candidates, will apply only to SCs/STs and not to the
In other words, his submission
is that all OBC candidates selected and admitted to a course of study should be
counted towards the 4027% reservation for OBCs including those OBC candidates
who get selected on their own merit without the benefit of reservation.
appellants relied upon the decision of three Judge Bench of this court in
Chattar Singh vs. State of Rajasthan [1996 (11) SCC 742] wherein this court held
that by a process of interpretation, OBCs cannot be treated or declared to be
similar to SCs/STs. This court also held that Scheduled Castes and Scheduled Tribes
on one hand and the OBCs on the other are to be treated as distinct classes for
the purpose of reservation. This Court observed: "Though OBCs are socially
and economically not forward, they do not suffer the same social handicaps inflicted
upon Scheduled Castes and Scheduled Tribes. .....
The object of
reservation for the Scheduled Castes and Scheduled Tribes is to bring them into
the mainstream of national life, while the object in respect of the backward classes
is to remove their social and educational handicaps......The Founding Fathers of
the Constitution, having been alive to the dissimilarities of the
socio-economic and educational conditions of the Scheduled Castes and Scheduled
Tribes and other segments of the society have given them separate treatment in the
Constitution. The Constitution has not expressly provided such benefits to the OBCs...
"The appellant also
relied upon the following observations of one of us (Raveendran, J.) at para
653 of Ashoka Kumar Thakur (supra) : "I agree with the decision of the
learned Chief Justice that reservation of 27% for other backward classes is not
illegal. I would however leave open the question whether members belonging to
other backward classes who get selected in the open competition field on the
basis of their own merit should be counted against the 27% quota reserved for other
backward classes under an enactment enabled by Article 15(5) of the Constitution
for consideration in an appropriate case."
The appellant therefore
contended that unlike in the case of Scheduled Castes and Scheduled Tribes, the
OBC candidates who get selected in the open competition field on the basis of
their own merit, should be counted against the 27% OBC quota under an enactment
enabled by section 15(5) of the Constitution.
respondents on the other hand contended that the following observations in
Indra Sawhney vs. Union of India [1992 Supp. (3) SCC 217] were intended to
apply not only to Scheduled Castes and Scheduled Tribes, but also to OBCs : - "811.
In this connection it is well to remember that the reservations under Article 16(4)
do not operate like a communal reservation. It may well happen that some
members belonging to, say, Scheduled Castes get selected in the open
competition field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will be treated as open
The respondents also relied
upon the following observations of a Constitution Bench in R.K. Sabharwal vs. State
of Punjab [1995 (2) SCC 745] : 42 "When the State Government after doing
the necessary exercise makes the reservation and provides the extent of
percentage of posts to be reserved for the said backward class then the
percentage has to be followed strictly.
The prescribed percentage
cannot be varied or charged simply because some of the members of the backward class
have already been appointed/ promoted against the general seats. As mentioned above
the roster point which is reserved for a backward class has to be filled by way
of appointment/promotion of the member of the said class. No general category
candidate can be appointed against a slot in the roster which is reserved for the
The fact that considerable
number of members of a backward class have been appointed/promoted against general
seats in the State Services may be a relevant factor for the State Government
to review the question of continuing Reservation for the said class but so long
as the instructions/Rules providing certain percentage of reservations for the
backward classes are operative the same have to be followed. Despite any number
of appointees/promotes belonging to the backward classes against the general
category posts the given percentage has to be provided in addition." (emphasis
appellants' counsel replied by contending that the observations in Indra Sawhney
and R.K.Sabharwal will not help the contention of the OBC candidates. According
to him, para 811 of Indra Sawhney refers only to Scheduled Castes and therefore
extendable to Scheduled Tribes but not to OBCs. He submitted that the
observations in Sabharwal did not apply to an enactment enabled by Article 15(5).
He also pointed out that the CEI Act merely provides a reservation of 27% seats
for OBCs. but is silent as to whether those OBCs. who get selected in the open
competition field on the basis of their own merit, should be counted against
the quota reserved for OBCs. or not.
It was submitted that
the principles evolved with reference to SCs and STs or reservations in employment,
cannot be applied to reservations under section 3 of the CEI Act enabled by
Article 15(5). A plain reading of this provision, it is submitted, would mean that
all persons belonging to OBCs admitted to the institution shall be counted
issue before the High Court was with reference to the meaning of the words
cut-off marks. The submissions in regard to the question whether OBC candidates
who are selected on the basis of their own merit without the benefit of
reservation, should be counted towards 27% reservation, was not the subject
matter of the writ petition from which this appeal arises. Further, this issue
was not directly raised, but was referred only in an indirect manner in the
pleadings before this Court and Union of India had no occasion to deal with
this larger issue. We therefore do not propose to decide the alternative
contention which has wide ramifications except to note that the appellant has
raised an important issue which merits serious consideration in an appropriate
words `cut off marks' has been used thrice in the second para of the order
dated 14.10.2008 containing the operative direction. It is used in the first
sentence of the para while posing the question for decision, that is `what should
be the extent of cut off marks for admission of students of OBCs in CEIs'. It
is used in the second sentence of the para while giving the answer to the
question posed, that is "we make it clear that the maximum cut off marks for
OBCs be 10% below the cut off marks of general category candidates.
The words `cut off marks'
occurring in three places in the second para of the order dated 14.10.2008 has three
distinct and different meanings: (i) the use of the words, `extent of cut off marks'
in the first sentence refers to the `minimum eligibility marks' (or to the `minimum
qualifying marks' if there is entrance examination), for admission of OBC
candidates. (ii) The use of the words, "maximum cut-off marks for
OBCs" in the first part of the second sentence refers to the percentage of
marks by which the eligibility/qualifying marks could be lowered from the minimum
eligibility/qualifying marks prescribed for general category students. In other
words, it refers to the difference between the minimum eligibility/qualifying
marks for general category and minimum eligibility/qualifying marks for OBCs
and directs that such difference should not be more than 10% of the minimum eligibility/qualifying
marks prescribed for general category candidates.
(iii) The use of the
words, "cut off marks of general category candidates" in the latter part
of the second sentence, refers to the minimum eligibility marks (or to the minimum
qualifying marks if there is an entrance examination) prescribed for general
category candidates. 45The use of the words `cut-off-marks' in none of the
three places in para 2 of the order dated 14.10.2008, refers to the marks
secured by the last candidate to be admitted in general category or in any particular
category, or to the minimum marks to be possessed by OBC candidates, determined
with reference to the marks secured by the last candidate to be admitted under
order dated 14.10.2008 means that where minimum eligibility marks in the qualifying
examinations are prescribed for admission, say as 50% for general category candidates,
the minimum eligibility marks for OBCs should not be less than 45% (that is 50
less 10% of 50). The minimum eligibility marks for OBCs can be fixed at any
number between 45 and 50, at the discretion of the Institution. Or, where the
candidates are required to take an entrance examination and if the qualifying marks
in the entrance examination is fixed as 40% for general category candidates,
the qualifying marks for OBC candidates should not be less than 36% (that 40
less 10% of 40).
therefore, dispose of this appeal, affirming the decision dated 7.9.2010 of the
learned Single Judge of the High Court, subject to the
clarifications/observations above, and subject to the following conditions : (i)
In regard to the admissions for 2011-2012, if any Central Educational
Institution has already determined the `cut-off marks' for OBCs with reference
to the marks secured by the last candidate in the general category, and has converted
the unfilled OBC seats to general category seats and allotted the seats to
general category candidates, such admissions shall not be disturbed. But where the
process of conversion and allotment is not completed, the OBC seats shall be
filled by OBC candidates. (ii) If in any Central Educational Institution, the OBC
reservation seats remain vacant, such institutions shall fill the said seats
with OBC students. Only if OBC candidates possessing the minimum eligibility/qualifying
marks are not available in the OBC merit list, the OBC seats shall be converted
into general category seats. (iii) If the last date for admissions has expired,
the last date for admissions shall be extended till 31.8.2011 as a special
case, to enable admissions to the vacant OBC seats.
(R. V. Raveendran)
(A. K. Patnaik)