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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 2 Constitution Bench in Ashoka Kumar Thakur v. Union of India – (2008) 6 SCC 1.

**NFHS Survey estimated only Hindu OBC populat...

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                                                                              Reportable

                     IN THE SUPREME COURT OF INDIA

                      CIVIL APPELALTE JURISDICTION

                       CIVIL APPEAL NO. 7084 OF 2011

                     [Arising out of SLP [C] No.27965/2010]

P.V. Indiresan                                                      ... Appellant

Vs.

Union of India & Ors.                                               ... Respondents

                                  J U D G M E N T

R.V.RAVEENDRAN, J.

       Leave granted.

2.     This   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 

                                                     2

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   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 

                                                   3

       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.

4.     The  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 category;

5.     The   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.

                                                           4

            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. 

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 

                                              5

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   held   on   10.6.2010, 

considered the ways  and means  to fulfill  27% quota for OBC students  for 

2010-11. 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:

                                                     6

         (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. 

                  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. 

                                               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 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 approved intake and offers. Further, in accordance with the 

       Ashok Kumar Thakur judgment after giving maximum possible relaxation, 

                                                7

       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."

8.     A 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 

                                              8

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   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 (Unreserved) category."

10.     The   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 

11.     The   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. 

                                              10

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.

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 

                                               11

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 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 

                                              12

to a large  disparity with the general  candidates affecting the excellence of 

higher education. Therefore, the 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 category candidates. 

14.    The   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 

                                                      13

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

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   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 

                                                      14

        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 

                                              15

entitled 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.

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, 

                                                 16

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). 

17.     The 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 

18.     In 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. We cannot mechanically apply all and every meanings given 

in a dictionary. Nor can we choose an inappropriate meaning that the word 

                                              18

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 block

                 We must cut off all escape routes

          *expiry, final deadline

                 Post your entry now, because the cut-off date is today"

                                                                 (emphasis supplied)

                                                   19

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 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) 

                                              20

What   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.

20.     The   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. 

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 

                                                     21

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 

                                                      22

       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?' : 

       "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:

                                             23

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 principles of  

both equity and excellence can be maintained. 

4.4.4. The Committee 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.

628.   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.

629. 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 this example. 

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)

                                                    24

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 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. 

                                              25

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 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 particular category. 

24.     We 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.                   

                                                   26

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 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:

                                                     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."

           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 : 

                                                   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   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 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."

25.    This   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.

                                                     30

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 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 

                                                   31

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, 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 eligibility marks. 

29.     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 

                                                      33

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   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 

                                                     34

for 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. 

31.    The 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)

                                              35

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 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. 

32.     Therefore,   the   context   in   which   Bhandari   J.   concluded   that   "cut-off 

marks   for   OBCs   should   be   set   no   lower   than   10%   marks   below   general 

                                              36

category"   (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 

category.   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%.             

33.     The 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 

                                                37

40% 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 

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 

                                              38

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 

                                               39

requirement for entrance examination.) When an eligible OBC candidate is 

available,   converting   an   OBC   reservation   seat   to   general   category   is   not 

permissible.

Alternative contention 

34.     The   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 

leave   petition].   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   OBCs.   In   other   words,   his   submission   is   that   all   OBC   candidates 

selected   and  admitted   to  a   course   of  study   should   be   counted  towards   the 

                                                     40

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 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 

                                                      41

          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. 

36.       The   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 competition candidates." 

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   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  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 

                                             43

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 against 27%.

38.    The 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 case.

Conclusions 

39.    The 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 

                                                 44

`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. 

                                               45

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   be  admitted   under 

general category.  

40.     The   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). 

41.     We   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 :

                                              46

(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. 

                                                                  ___________________J.

                                                                            (R. V. Raveendran)

New Delhi;                                                     ___________________J.

August  18, 2011.                                                            (A. K. Patnaik)

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