Supreme Court of India
P.V. INDIRESANversusUNION OF INDIA & ORS.
- Citation
- 2011 INSC 591
- Decided
- 18 August 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
The phrase 'cut‑off marks' in the 14‑Oct‑2008 order denotes the minimum eligibility/qualifying marks for OBC candidates, not the marks secured by the last general‑category candidate, and OBC eligibility may be set up to 10% lower than that of the general category.
Summary
The Supreme Court examined the meaning of the phrase "maximum cut‑off marks for OBCs be 10% below the cut‑off marks of general category candidates" in the clarificatory order dated 14‑Oct‑2008 issued in P.V. Indiresan's case, in the context of the Ashoka Kumar Thakur judgment. The dispute arose from Jawaharlal Nehru University's admission policy, which linked OBC eligibility to the marks secured by the last general‑category candidate, leading to unfilled OBC seats being converted to general seats. The Court held that the term "cut‑off marks" in the order refers to the minimum eligibility or qualifying marks prescribed for each category, not to the marks of the last admitted candidate. Consequently, OBC eligibility may be set up to 10% lower than the general‑category eligibility, and institutions must fix such criteria in advance. The Court affirmed the High Court's order, with clarifications, and directed that vacant OBC seats be filled by eligible OBC candidates, extending the admission deadline where necessary.
Issues considered
- The proper interpretation of the phrase 'cut‑off marks' in the 14‑Oct‑2008 order.
- Whether OBC reservation seats can be allocated based on the marks of the last general‑category candidate.
- Whether institutions may fix OBC eligibility criteria after general seats are filled.
- The status of OBC candidates selected on open merit with respect to the 27% OBC quota (not decided).
Legislation cited
Subjects
reservationOBCcut‑off markseligibility markscentral educational institutionsinterpretation of statutesadmission criteriaAshoka Kumar Thakur
Judgment
[2011] 10 S.C.R. 384
A P.V. INDIRESAN
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 7084 of 2011)
AUGUST 18, 2011
B
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Central Educational Institutions (Reservation in
Admission) Act, 2006 - Central Educational Institutions under
C - Implementation of 27% reservation for other backward
classes (OBC) - Direction "the maximum cut-off marks for
OBCs be 10% below the cut-off marks of general category
candidates" in the clarificatory order dated 14. 10. 2008 passed
in *P. V. lndiresan's case, in regard to the decision of the
o Constitution Bench in **Ashoka Kumar Thakur's case -
Meaning and interpretation of - Held: Use of the words 'cut-
off-marks' in the order dated 14. 10. 2008, does not refer to the
marks secured by the last candidate to be admitted in general
category or in any particular category, or to the minimum
E marks to be possessed by OBC candidates, determined with
reference to the marks secured by the last candidate to be
admitted under general category - Order dated 14. 1o. 2008
means that where minimum eligibility marks in the qualifying
examinations are prescribed for admission, say as 50% for
F general category candidates, the minimum eligibility marks
for OB Cs should not be less than 45% (that is 50 less 10%
of 50) and the same is followed in case of qualifying marks
in the entrance examination.
Words and Phrases:
G
Cut-off marks' - Meaning of - Held: Term 'cut-off marks'
in academic and judicial vocabulary has several meanings
• P. V. lndiresan vs. Union of India 2009 (7) SCC 300; **Ashoka Kumar
Thakur v. Union of India (2008) 6 SCC 1: 2008 (4) SCR 1.
H 384
P.V. INDIRESAN v. UNION OF INDIA & ORS. 385
- Words 'cut off marks' to refer to 'eligibility marks' or A
'qualifying marks', and their meaning would depend upon the
context.
Words in dictionary - Use of - Held: Lies in choosing the
appropriate meaning to the word, with reference to the context 8
in which the word is used - All and every meanings given in
a dictionary cannot be applied mechanically nor an
inappropriate meaning that the word may carry can be
chosen.
The Constitution Bench of this Court in *Ashoka C
Kumar Thakur vs. Union of India (2008) 6 SCC 1, upheld
the constitutional validity of the Constitution (Ninety-third
/Amendment) Act, 2005 as also the constitutional validity
of the Central Educational Institutions (Reservation in
Admission) Act, 2006 providing reservation of 27% of D
,seats to Other Backward Classes in the Central
Educational Institutions.
The petitioner filed an application in *A. K. Thakur's
case alleging that some Central Educational Institutions E
were interpreting the said decision contrary to the law
laid down therein and sought certain directions/
clarifications. The Constitution Bench by an order dated
14.10.2008 (record of proceedings reported in ** P. V.
lndiresan Vs. Union of India 2009 (7) SCC 300) disposed
of the application holding that the maximum cut-off marks F
for OBCs be 10% below the cut-off marks of general
category candidates.
Second respondent-Jawaharlal Nehru University
interpreted the order dated 14.10.2008 to mean that the G
minimum marks for admission to be secured by an CBC
candidate should not be less than the marks secured by
the last student admitted under general category less
10%. On that basis the admissions for 2008-09 and 2009-
10 were done and as a result, considerable number of H
386 SUPREME COURT REPORTS [2011] 10 S.C.R.
A OBC seats got reverted to general category for non-
availability of eligible OBC students with the required
marks. T)lerefore, the standing committee on admissions
of JNU, considered the ways and means to fulfill 27%
quota for OBC students for 2010-11 and placed proposals
B before the Deans Committee. On consideration of the
said proposals, the Deans Committee of JNU resolved in
regard to the admissions of OBC candidates for the
academic year 2010-2011, to treat the minimum qualifying
marks in the entrance exttminations as the cut-off to
c provide maximum relaxation of 10% to OBC candidates
(creamy layer exclu~ed) below the cut-off of general
candidates. The Students Association issued notice to
JNU that the change in the procedure for admissions to
the seats reserved for OBCs proposed by the JNU was
contrary to the clarificatory order dated 14.10.2008. The
0
Deans Committee decided to restore/continue the
procedure that was followed during the previous year
(2009-2010), that is to admit only ClBC candidates who
secure marks within 10% band below the marks secured
E by the last candidate admitted in the general category
and transfer all the unfilled OBC seats to general
category. The two OBC students (respondents 3 and 4)
filed a writ petition challenging the decision of the Deans
Committee. The Single Judge of the High Court allowed
the same holding that the UOl/Universities are entitled to
F 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; and that the OBC candidates are not required
to secure marks within the bandwidth of 10% below the
G cut-off marks of the last candidate admitted in the General
(Unreserved) category. The appellant (non-party before
the High Court) challenged the said order.
The question which arose for consideration in the
H instant appeal is with regard to the implementation of the
P.V. INDIRESAN v. UNION OF INDIA & ORS. 387
27% reservation for other backward classes in Central A
Educational Institutions under the Central Educational
Institutions (Reservation In Admission) Act, 2006; and 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 clarificatory order dated B
14.10.2008 in **P. V. lndiresan's case, in regard to the
decision of the Constitution Bench in *Ashoka Kumar
Thakur's case.
The appellant contended that the "cut off marks of
general category candidates" refers to the marks secured C
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. D
The respondents contended 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. E
Disposing of the appeal, the Court
HELD: 1. The words 'cut off marks' has been used
thrice in the second para of the order dated 14.10.2008
containing the operative direction has three distinct and F
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 G
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/ H
388 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
C 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
D 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. The
E 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%
F 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
G general category candidates, the qualifying marks for
OBC candidates should not be less than 36% (that 40 less
10% of 40). [Paras 39 and 40] [433-E-G-H; 434-A-H]
**P. V. lndiresan vs. Union of India 2009 (7) SCC 300;
*Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1:
H 2008 (4) SCR 1 - Clarified.
P.V. INDIRESAN v. UNION OF INDIA & ORS. 389
2.1 In English language, many words have different A
meanings and a word can be m~ed 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. All and every B
meanings given in a dictionary cannot be applied
mechanically nor an inappropriate meaning that the word
may carry can be chosen 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 C
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. [Para
18] [410-A-D] D
The Reader's Digest Word Power Dictionary 1996 Edn.
p. 195; Collins Dictionary of the English Language 1. 979 Edn.
p. 369; The Illustrated Oxford Dictionary 2003 Edn~ p. 205 -
referred to.
E
2.2 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 F
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/ G
marks had not been selected or have no chance of being
selected. 'Cut-off mark!>' are also used to refer to the
minimum marks (either eligibility marks or qualifying
marks) required for admission to a course. [Para 20] [412-.
· F-H] H .
390 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 2.3 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
B examination. As this Court has routinely used the words
'cut off marks' to refer to 'eligibility marks' or 'qualifying
marks', wh.enever 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
c 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. [Para 23) [417-G-H; 418-A]
Dr. Jeevak A/mast vs. Union of India 1988 (4) SCC 27:
D -1988 ( 2) Suppl. SCR 385;.Ajay Kumar Agrawal and Ors. v.
State of U.P. 1991 (1) sec 636: 1990 (3) Suppl. SCR 184;
State of Uttar Pradesh v. Dr. Anupam Gupta 1993 Supp (1)
SCC 594; Ombir Singh and Ors. v. State of U.P. 1993 Supp.
(2) SCC 64; Hemani Malhotra vs. High Court of Delhi (2008)
E 7 SCC 11: 2008 (5) SCR 1066; K. Manjusree vs. State of
A.P. (2008) 3 SCC 512: 2008 (2) SCR 1025; Parveen Jindal
v. State of Haryana 1993 Supp. (4) SCC 7'.0 - referred to.
2.4 The Oversight Committee on Reservation in
F 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. Para 4.4.3 of
the Report of the Oversight Committee refers to a
G 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
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 391
in A K Thakur's case, which is the fulcrum of the entire A
argument of appellant are made in the context of the said
observations of Oversight Committee and therefore,
when Bhandari J uses the words 'cut off marks', he is
also clearly referring to the eligibility marks. Even
Pasayat, J has also used the words 'cut-off marks' to refer s
to minimum eligibility marks. The words "cut-off marks"
are freely used to describe the prescribed minimum
marks even in academic circles and Central Educational
Institutions. Pasayat J. and Bhandari J. were concerned
about the standards of excellence in higher education. c
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
0
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 CBC, the disparity would affect higher education
standards. It is in that context, that Bhandari, J. observed E
that cut off marks for OBCs, should not be lower than 10
marks below that of general category thereby meaning
that minimum eligibility marks for CBC should be set no
lower than 10% below the eligibility marks for the general
category. Pasayat J in fact specifically stated that the F
minimum marks for OBCs should be 5 marks less than
the minimum eligibility marks for general category. [Paras
28, 29, 30) [423-D-E; 424-0-G; 425-E-H]
2.5 Neither Dr. Preeti Srivastava's case, nor A.K. G
Thakur's case 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 H
(
392 SUPREME COURT REPORTS [2011] 10 S.C.R.
A difference/disparity in regard to eligibility marks and
qualifying marks. Therefore, the context in which
· Bhandari J. concluded that "cut-off marks for OBCs
should be set no lower than 10% marks below g~neral
category" (vide Paras 535 and 629) of A K Thakur's case,
s 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's case. Pasayat J. observed that the cut off
c 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. It cannot
be understood as to how to the words "minimum
eligibility marks fixed for general categories of students'
used by Pasayat J can be read as 'cut off marks' of
0
general category, that is marks secured by the last
candidate admitted under general category. Therefore, it
is held 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
E 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%. [Para 31, 32] [427-D-H;
428-A·B]
F
2.6 The appellant canvasses the continuance of the
procedure adopted by JNU during 2008-09 and 2009-10.
During those years, JNU would fix the minimum eligibility
marks as say 40% when the admission programme is
G 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
H marks secured by the last candidate admitted under the
P.V. INDIRESAN v. UNION OF INDIA & ORS. 393
general category. If a OBC candidate secured the marks A
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 B
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 c
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 D
may be more than the per:centage 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 E
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 F
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, G
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 H
394 SUPREME COURT REPORTS [2011] 10 S.C.R
A 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
8 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.
c (subject to any requirement for entrance examination.)
When an eligible. OBC candidate is available, converting
an OBC reservation seat to general category is not
permissible. [Para 33] [428-B-H; 429-A-E]
3. The issue before the High Court was with reference
D to the meaning Qf 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
E matter of the writ petition from which this appeal arises.
Further, the said 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. Therefore the alternative contention
F which has wide ramifications is not decided, though it is
noted that the appellant has raised an important issue
which merits serious consideration in an appropriate
case. [Para 38] [433-B-D]
G Chattar Singh vs. State of Rajasthan 1996 (11) SCC 742:
1996 ( 6) Suppl. SCR 6; Indra Sawhney vs. Union of India
1992 Supp. (3) SCC 217; R.K. Sabharwal vs. State of Punjab
1995 (2) SCC 745: 1995 ( 2 ) SCR 35 - referred to.
4. The decision dated 07 .09.201 O of the Single Judge
H of the High Court is affirmed subject to the aforesaid
P.V. INDIRESAN v. UNION OF INDIA & ORS. 395
clarifications/observations and subject to the following A
conditions :
(i) In regard to the admissions for 2011-2012, if any
Central Educational Institution has already determined
the 'cut-off marks' for OBCs with reference to the marks 8
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 C
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 D
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 E
last date for admissions shall be extended till 31.8.2011
as a special case, to enable admissions to the vacant
OBC seats. [Para 41] [435-A-E]
Case Law Reference:
F
2008 (4) SCR 1 Clarified Para 21, 26,
27, 28, 30, 31, 32
1988 (2) Suppl. SCR 385 Referred to Para 24.1
1990 (3) Suppl. SCR 184 Referred to Para 24.2
G
1993 Supp (1) SCC 594 Referred to Para 24.3
1993 Supp. (2) SCC 64 Referred to Para 24.4
2008 (5) SCR 1066 Referred to Para 24.5
396 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 2008 (2) SCR 1025 Referred to Para 24.6
1993 Supp. (4) sec 10 Referred to Para 25
1996 (6) Suppl. SCR 6 Referred to Para 35
1992 Supp. (3) sec 211 Referred to Para 36
B
1995 (2) SCR 35 Referred to Para 36
2009 (7) sec 300 Clarified Para 39, 40
CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
c 7084 of 2011.
From the Judgment & Order dated 07.09.2010 of the High
Court of Delhi at New Delhi in W.P. No. 4857 of 2010.
K.K. Venugopal, Prof. Ravi Varma Kumar, A.
D Mariarputham, P.P. Rao, Sanjay Parikh, Mamta Saxena, A.N.
Singh, Gopal Sankaranarayanan, Rohit Bhat, Vikas Mehta,
M.L. Lahoty, Paban K. Sharma, Sukumar Agarwal, Yusuf Khan,
Megha Gaur, Annam D.N. Rao, Mohinder Jit Singh, A. Subba
Rao, Gargi Khanna, D.S. Mahra, Kiran Suri, Puneet Jain,
E Apeksha Sharan, Utsav Sidhu, Filza Moorie for the appearing
parties.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Leave granted.
F
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
G (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. lndiresan & Ors. v. Union of India - (2009)
7 SCC 300, in regard to the decision of the Constitution Bench
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 397
[R.V. RAVEENDRAN, J.]
in Ashoka Kumar Thakur v. Union of India - (2008) 6 SCC 1. A
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 B
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 Thakkar J), Raveendran J.
(one of us) and Bhandari J. On the basis of the four opinions, C
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 D
the Constitution so far as it relates to the State-maintained
institutions and aided educational institutions. Question
whether the C9nstitution (Ninety-third Amendment) Act,
2005 would be constitutionally valid or not so far as "private
unaided" educational institutions are concerned, is not E
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.
F
669. Act 5 of 2007 is constitutionally valid subject to the
definition of "Other Backward Classes" in Section 2(g) of
Act 5 of 2007 being clarified as follows: If the determination
of "Other Backward Classes" by the Central Government
is with reference to a caste, it shall exclude the "creamy G
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.
H
398 . SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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.
B
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 :
C (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;
0 (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
E (record of proceedings reported in P V lndiresan 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
F passed by the Constitution Bench of this Court on
10.4.2008.
2. A question had been raised in this application as to
what should be the extent of cut-off marks for admission
of students of OBCs in the Central Educational
G 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
H cut-off marks of general category candidates.
P.V. INDIRESAN v. UNION OF INDIA & ORS. 399
[R.V. RAVEENDRAN, J.]
3. We are told that in many of the Central Educational A
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 B
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 C
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. o
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 E
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 F
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:
G
"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]. H
400 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c 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
D procedure followed in 2008-09 and 2009-10 should be
continued, the following two proposals were placed before the
Deans Committee: ·
(i) The current policy and procedure to consider the cut-
off as per the definition given above and to provide for
E 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 Tha~ur judgment after giving
maximum possible relaxation, wherever the non-creamy
F 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
G entrance examination approval by it as the cut-off to
provide maximum relaxation of 10%Jo 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
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 401
[R.V. RAVEENDRAN, J.]
various programmes of study to OBC candidates (creamy A
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, B
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 C
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 D
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 E·
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 F
implemented in this year i.e. 2010-11 admissions. The
merit list will be drawn as per the admission policy of tt)e
University and approved intake and offers. Further, in
accordance with the Ashok Kumar Thakur judgment after
giving maximum possible relaxation, wherever the non- G
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
402 SUPREME COURT REPORTS [2011] 10 S.C.R.
A written examination.
Programme General Category OBC SC/ST/PH
categories
B
M.Phil/Ph.D.M.Tech/ 35% i.e 24.50 31.5% i.e. 25% i.e.
Ph.d.Pre-Ph.D/ marks 22.05 17.50
Ph.D MPH/ marks marks
PH.D
c MA, BA and Part 25% i.e. 17.50 22.5% i.e. 15% i.e.
time programmes marks 15.75 10.50
where viva~vice is marks marks
prescribed
To be eligible for admission a candidate must secure a minimum
D overall score out of 100 as given in the table below:
Programme General Category OBC SC/ST/PH
categories
E M.Phil/Ph.D.M.Tsech/ 40% i.e 40 36% i.e. 30%i.e.
Ph.d. Pre-Ph. D/Ph. D marks 36 marks 30 marks
MPH/PH.D
MAIM.Sc/MCA, BA 30% i.e. 30 21% Le. 25% i.e.
(Hons.) 1st & 2nd marks 27 marks 25 marks
F Year Part Time
(COP & Advanced
Diploma in Mass
Media in Urdu)
G 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."
P.V. INDIRESAN v. UNION OF INDIA & ORS. 403
[R.V. RAVEENDRAN, J.]
8. A legal notice dated 27.6.2010 was issued to the JNU A
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 threatening initiation of
contempt proceedings, if the said decision dated 17.6.2010 of B
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 C
' 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 D
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. E
9. The revised decision dated 12.7.2010 of the Deans
Committee was challenged by two OBC students (respondents
3 and 4) in a wril 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 F
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 G · ·
first respondent UGI/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 H
404 SUPREME COURT REPORTS [2011] 10 S.C.R.
in the CEI Act are not requir~d 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,
8
· 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
C 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
,0 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 elif!i_bility marks and/or where
there is an entrance examination, with reference to the qualifying
E marks) on the basis of number of seats available in a
programme. The marks secured by the last candidate admitted
from such merit list to the programme denotes the 'cut-off
marks' for admission to that programme. The appellant
submitted that the words "10% below the cut-off marks of
general category candidates" would mean 10% below the
F 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
G less 10%) would alone be entitled to claim admission. This
would also niean 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,
H
P.V. INDIRESAN v. .UNION OF INDIA & ORS. 405
[R.V. RAVEENDRAN, J.]
as the bandwidth of marks to be possessed by OBC candidates A
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
8
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 lndiresan to fix the cut off
marks for the general category· or cut off marks for OBC C
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) D
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 E
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 F
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 . G
seeking clarification of the order in A. K. Thakur was to ensure
that theiowering of the minimum eligibility/qualifying marks for
admission of OBCs candidates did not lead to a large disparity
with the general candidates affecting the excellence of higher
education. Therefore, the appellant wanted a ceiling for the
lowering of the minimum marks for admission of OBC H
406 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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.
B
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,.
C 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
D 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
E · the quality of the last student admitted under the general
category. According to the respondents by adopting the method
of determining the 'cut off marks for OBCs with reference to
'cut off marks of last general category candidate defeats the
purpose of reservation of 27% seats for OBC candidates and
F 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 2009-201 O had resulted in large
number of seats meant for OBCs being transferred to general
category candidates.
G 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:
H
P.V. INDIRESAN v. UNION OF INDIA & ORS: 407
[R.V. RAVEENDRAN, J.]
"A central educational institution has 100 seats in its A
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, 4.5% for OBCs and 40% for SC/ST. B
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 c
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
0
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 E
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 F
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 G
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 H
408 SUPREME COURT REPORTS [2011] 10 ~.C.R.
A 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
B 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
entitled to be granted admission under the OBC category. The
remaining 55 candidates having obtained less than the cut off
c 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
0 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
E 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
F graduation examination for admissions to a post graduate
programme) as a condition precedent for seeking admission
to the high.er 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
G 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
H qualifying marks in the entrance examination, where it is a part
P.V. INDIRESAN v. UNION OF INDIA & ORS. 409
[R.V. RAVEENDRAN, J.]
of the admission process, who will be included in the merit list A
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 B
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 c
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
0
qualification, thus :
"At times, in some of the judgments, the words "eligibility"
and "qllalification" have been used interchangeably, and
in some cases a distinction has been made between the
two words - "eligibility" connoting the minimum criteria for E
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, F
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), · .G
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. H
410 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
8
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 may carry and then try to
C 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 woi'd 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
D 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 referenc;e to such
meanings, for the word 'cut-off [1996 Edition, Page 195] :
E
"Cut Off
*to remove
Cut off the thorns on the stem otherwise you will pick
yourself
F *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
G
*to disinherit
He was cut off without a cent
*to block
We must cut off all escape routes
*expiry, final deadline
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 411
[RV. RAVEENDRAN, J.]
Post your entry now, because the cut-off date A
is today"
(emphasis supplied)
The Collins Dictionary of the English Language gives the
thirteen meanings to the word cut-off [1979 Edition, Page B
369]:
"1. to remove by cutting.
2. to intercept or interrupt something, esp. a telephone
conversation. c
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 D
~ithout a penny.
6. to sever or separate : she was cut off from her
family.
E
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.
F
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.
G
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 H
412 SUPREME COURT REPORTS [2011 I 10 S.C.R.
A 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)."
B
(emphasis supplied)
The Illustrated Oxford Dictionary gives the following meanings
to the word cut-off [2003 Edition, Page 205] :
c "1. The point at which something is cut off.
2. A device for stopping a flow.
3. (US) a short cut.
D 4. (in plural) shorts, esp. made by cutting the legs off
jeans.
(emphasis supplied)
: E 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
F 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
G 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
H marks or qualifying marks) required for admission to a course.
P.V. INDIRESAN v. UNION OF INDIA & ORS. 413
[R.V. RAVEENDRAN, J.]
21. Both sides relied upon certain observations of Pasayat, A
J. and Bhandari J, in A K Thakur in support of the interpretation
put forth by them. While appellant argued that the said
observations clearly indicated that minimum marks for
admission of OBC candidates should be a prescribed
percentage below the marks secured by the last candidate B
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 c
therefore refer to the said observations. Pasayat J stated in his
summing up:
"358. To st:Jm up, the conclusions are as follows:
(1) For implementation of the impugned Statute creamy D
layer must be excluded.
(2) There must be periodic review as to the desirability of
continuing operation of the Statl,lte. This shall be done
once in every five years. E
(3) The Central Government shall examine as to the
desitability 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 F
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
nonns they shall be filled up by candidates from general
categories." G
(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 : !-:
414 SUPREME .COURT REPORTS [2011] 10 S.C.R.
A "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
8 children are of college-going age, it is too late for
reservation to have much of an effect. The problem with
the Reservation Act is that most of the beneficiaries will
belong to the creamy layer, a group for which no benefits
are necessary. Only non-creamy layer OBCs can avail of
c 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
D
unfilled seats should revert to tffe general category.
xxxxx
The best universities are the best, in part, because they
E 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 chum out the best.
The precise extent to which the university made the best
so good cannot be qualified. The point-is that universities
F 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,
G
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
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 415
[R.V. RAVEENDRAN, J.]
set OBC cut off marks no lower than 10 marks below that A
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 B
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 C
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 o
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. llTs, llMs, llSc, AllMS and other such exceptional
quality institutions), can only maintain that if the highest E
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. F
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 G
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
H
416 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B
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.
c 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
D 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
E 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
F 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 schem~.
G
whenever the non-creamy layer OBCs fail to fill the 27%
reservation, the remaining seats would revert to general
category students."
(emphasis supplied)
.j-
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 417
[R.V. RAVEENDRAN, J.]
In his summary of findings also, Bhandari, J., again referred to A
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 ? B
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."
c
(emphasis supplied)
22. The clarificatory order dated 14.10.2008 in P.V.
lndiresan vs. Union of India [2009 (7) SCC 300] which stated
that the "maximum cut off marks for OBCs be 10% below the
0
cut off marks of general category candidates" is sought fo 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 E
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 F
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 G
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.
H
418 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
8
has used the term 'cut off marks' to refer to the eligibility marks
or qualifying marks.
24.1) In Dr. Jeevak A/mast vs. Union of India [1988 (4)
sec 27] this Court observed : "The scheme contained the
C 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.
D
24.2) In Ajay Kumar Agrawal and Ors. v. State of U.P.
[1991 (1) sec 636] this court while referring to the minimum
marks required for being eligible for admission to post graduate
course described the minimum qualifyin~ marks in the qualifying
E 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
F 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
G 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
ti for admission which was minimum of 50% for general category
P.V. INDIRESAN v. UNION OF INDIA & ORS. 419
[R.V. RAVEENDRAN, J.] .
candidates and 40% for reserved category candidates :- A
"(2) Thi!? 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 8
minimum qualifying marks for candidates of reserved
categories (SC/ST)."
Thereafter it used the wo.rds cut off marks to refer to the
·minimum eligibility marks for general category candidates and
reservation category candidates:. C
" ... 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 D
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 E
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. F
(2) sec 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 G
marks to refer to qualifying marks. We extract below the relevant
portions of the said decision:
"So far as the validity of the admission rutes fixing 50%
marks for the general category candidates and 40% marks
for the SC/ST category candidates to be obtained at the H
420 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B
Kumar Agrawal and Ors. v. State of UP. [1991 (1) SCC
636] observed as under:-
"lt 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
c 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
D be sustained."
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:-
E
"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
F 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
G 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."
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 421
[R.V. RAVEENDRAN, J.]
24.5) In Hemani Malhotra vs. High Court of Delhi - (2008) A
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 B
"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 c
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 D
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. E
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 F
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 G
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 H
422 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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.
8
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:
C "Provided that a candidate shall not be considered
qualified for appointment, unless he obtains not less than
forty per cent marks in ea"ch 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
D for interview by the commission.
This Court, while referring to the contentions of the appellant
therein, used the word 'threshold' marks to refer to the qualifying
marks, as is evident from the following passage:
E "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
F 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."
G (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'
H or 'admission thresholds' as interch~ngeable words by
P.V. INDIRESAN v. UNION OF INDIA & ORS. 423
[R.V. RAVEENDRAN, J.]
observing. "Cut-offs or admission thresholds-as suggested by A
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 B
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 C
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. D
28. Even the Oversight Committee on Reservation in
1
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 E
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 F
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).
G
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 H
424 SUPREME COURT REPORTS [2011] 10 S.C.R.
Preamble).
Final Report Nol.II)
4.4 Cut offs or admission thresholds:
B 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 :
xxx xxx xxx
C 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.
D
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
E for OBC should be somewhere midway that is 45%. It should
be noted that the observations of Bhandari J in paras 629 and
645 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,
F 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 ~o describe
the prescribed minimum marks even in academic circles and
central educational institutions. For example, the prospectus of
G MBBS admissions in All India Institute of Medical Sciences
(AllMS) provides in Para 2 (dealing with eli~ibility) that a
ca.ndidate should have obtained a minimum aggregate of 60%
marks in the case of general and OBC candicjates and 50%
in the case of SC/ST candidates in aggregate. It also provides
H
P.V. INDIRESAN -v. UNION OF INDIA & ORS. 425
[R.V. RAVEENDRAN, J.]
that all candidates who are so found eligible, have to appear A
for a competitive entrance e>samination and Clause 4.1 refers
to the minimum marks reqtiired to be secured in the MBBS
Entrance Examination who could be admitted.
"4.1 Minimum cut-off marks in the MBBS Entrance B
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 C
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 D
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 E
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 F
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 for OBCs,
should not be lower than 10 marks below that of general G
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. H
426 SUPREME COURT REPORTS (2011} 10 S.C.R.
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
9
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
c 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
D 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
E 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
F 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
G 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)
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 427
[RV. RAVEENDRAN, J.]
-
in Dr. Preeti Srivastava, the Constitution Bench held that if the A
qualifying marks for reserved category was 20% and the
1ualifying marks for general category was 45%, the disparity
Nas 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 B
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 c
great; and that at post graduate level, the disparity in the
qualifying m_arks 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
0
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.
E
32. Therefore, the context in which Bhandari J. concluded
Ulat "cut-off marks for OBCs should be set no lower than 10%
marks below general category" (vide Paras 535 and 629) of A
K Thakur, he m~ant that eligibility/qualifying marks for OBCs
should be set not lower than 10% below the eligibility/qualifying F
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 G
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 H
428 SUPREME COURT REPORTS [2011] 10 S.C.R.
\ 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%.
B
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 40% when the
admission programme is announced. JNU would apply it only
C 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
D 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
E 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 l
to its course, say Bachelor's degree course in science, the
F 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
G 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
H prescribed, it should be uniform to all applicants and a
P.V. INDIRESAN v. UNION OF INDIA & ORS. 429
[R.V. RAVEEN!?RAN, J.]
prospective applicant should know, before he makes an A
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 B
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 c
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 0
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 E '
prescribed for admission. (subject to any requirement for
entrance examination.) When an eligible OBC candidate is
available, converting an OBC reservation seat to general
category is not permissible.
Alternative contention F
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 G
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, H
430 SUPREME COURT REPORTS [2011] 10 S.C.R.
A .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
B be treated as open competition candidates, will apply only to
SCs/STs and not to the OBCs. In other words, his submission
is that all OBC candidates selected and admitted to a course
of study should be counted towards the 27% reservation for
OBCs including those OBC candidates who get selected on
c 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) sec 742] wherein this court held that by a process
of interpretation, OBCs cannot be treated or declared to be
D 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:
E "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,
F 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
G
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
H (supra):
P.V. INDIRESAN v. UNION OF INDIA & ORS. 431
[R.V. RAVEENDRAN, J.]
"I agree with the decision of the learned Chief Justice that A
reservation of 27% for other backward classes is not
illegal. I would however leave open the question whether
members belonging to other backward classes who get
selected in the open competition field on the basis of their
own merit should be counted against the 27% quota B
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 C
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.
D
36. The respondents on the other hand contended that the
following observations in Indra Sawhney vs. Union of India
[1992 Supp. (3) sec 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 E
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
F
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 G
[1995 (2) sec 7451 :
. "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
H
432 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c 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
D
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."
E (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
F 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
0
OBCs. but is silent as to whether those OBCs. who get selected
G 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 evplved with reference to
SCs and STs or reservations in employment, cannot be
applied to reservations under section 3 of the CEI Act enabled
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 433
[R.V. RAVEENDRAN, J.]
by Article 15(5). A plain reading of this provision, it is submitted, A
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 8
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 pe_tition from which this appeal
arises. Further, this issue was not directly raised, but was C
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. D
Conclusions
39. The words 'cut off marks' has been used thrice in the
second para of the order dated 14.10.2008 containing the E
operative direction. It is used in the first sentence of the para
while posing the question for decision, that is 'what should be
the extent of cut off marks for admission of students of OBCs
in CEls': It is used in the second sentence of the para while
giving th~ answer to the question posed, that is "we make it F
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
meaning$:
G
(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.
H
434 SUPREME COURT REPORTS [2011) 10 S.C.R.
A (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
B refers to the difference between the minimum eligibility/
qualifying marks for general category and minimum eligi
ility/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.
c (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 entranc~ examination) prescribed
for general category candidates.
D
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 partic:Olar category, or to the minimum marks
E to be possessed by OBC candidates, determined with
reference to the marks secured by the last candidate to be
admitted under gen~ral category.
40. The order dated 14.10.2008 means that where
F 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
G 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).
H
P.V. INDIRESAN v. UNION OF INDIA & ORS. 435
[R.V. RAVEENDRAN, J.]
41. We therefore, dispose of this appeal, affirming the A
decision dated 7.9.2010 of the learned Single Judge of the High
Court, subject to the clarifications/observations above, and
subject to the following conditions :
(i) In regard to the admissions for 2011-2012, if any Central
8
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 C
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 D
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.
E
(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.
N.J. Appeal disposed of.
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