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TMI Blog2011 (8) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 3. The 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. 6. The 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff 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 students. 7. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions to the seats reserved for OBCs proposed by the JNU was contrary to the clarificatory order of this Court dated 14.10.2008, and threatening 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. 9. The revised decision dated 12.7.2010 of the Deans Committee was challenged by two OBC students (respondents 3 and 4) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 12. On 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 15. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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. 16. The 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in which the word is used. We cannot 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'. 19. The 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 bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 21. Both 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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?' : 627. 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: 4.4.2. The Committee recognizes that those institutions of higher learning which have established a global reputation (e.g. IITs, IIMs, IISc, AIIMS and other such exceptional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 supplied) 22. The 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 said observation. 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 bandwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral interest that the 50 per cent cut-off base as has been adopted should be sustained. 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). Thereafter it used the words cut off marks to refer to the minimum eligibility marks for general category candidates and reservation category candidates: ... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid. 4. 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 . The subsequent 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 : 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings/branches in the Public Works Department. (emphasis supplied) 26. In 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) 27. In 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t- 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 unreasonable. The Constitution Bench was of the view that prescribing different minimum qualifying marks for general category and reservation category was permissible so long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e marks secured by the last candidate admitted under the general category. 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 OBCs. In other words, his submission is that all OBC candidates selected and admitted to a course of study should be counted towards the 27% reservation for OBCs including those OBC candidates who get selected on their own merit without the benefit of reservation. 35. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 backward class. 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 supplied) 37. The appellants' counsel replied by contending that the observations in Indra Sawhney and R.K.Sabharwal will not help the contention of the OBC can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, `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. The use of the words `cut-off-marks' in none of the three places in para 2 of the order dated 14.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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