AI Drafter 
TaxTMI 
TaxTMI 
2011 (8) TMI 1127
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....nsidered 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 constitut....
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....rliest 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 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 number 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....
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....e 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 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 approve....
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....nd 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 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 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 candi....
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....ed 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%). 13. The 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 a....
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....on 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 ....
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....ions 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 examinatio....
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....ctionary 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 block We must cut off all escape routes *expiry, final deadline Post your entry now, because the cut-off date is today" (emphasis supplied) The Collins Dictionary of the English Language gives the thirteen meanings to the word cut-off [1979 Edition, Page 369] : "1. to remove by cutting. 2. 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 c....
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....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." (emp....
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....htly 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 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 princi....
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....n 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 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 general category. 23. We 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 fo....
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....r 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. 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....
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....ertisement 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 for each candidate. 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....
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....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. 28. Even 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, beh....
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....te. 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. 30. Pasayat 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 ....
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....ust 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 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 Srivast....
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.... 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 fol....
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....rse 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 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 Schedu....
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....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 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 point....
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....ut-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 14.10.2008, 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 b....