Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO. 7084 OF 2011 [Arising out of SLP [C] No.27965/2010]

P.V. Indiresan … Appellant

Vs.

Union of India & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. This  appeal  raises  a  short  but  important  question  relating  to  the  

implementation of the 27% reservation for other backward classes (for short  

‘OBCs’) in Central Educational Institutions under the Central Educational  

Institutions (Reservation in Admission) Act, 2006 (Act No.5 of 2007) (for  

short ‘CEI Act’). The question relates to the meaning of the words “cut-off  

marks” used in the clarificatory order dated 14.10.2008 in P.V. Indiresan &  

Ors. v. Union of India - (2009) 7 SCC 300, in regard to the decision of the

Constitution Bench in  Ashoka Kumar Thakur v. Union of India - (2008) 6  

SCC 1.  

Background

3. The  constitutional  validity  of  the  Constitution  (Ninety-third  

Amendment) Act, 2005 as also the constitutional validity of CEI Act were  

considered and upheld by a Constitution Bench of this Court on 10.4.2008  

reported  in  Ashoka  Kumar  Thakur  vs.  Union  of  India  (for  short  ‘A.K.  

Thakur’). Four separate opinions were rendered in the said decision by the  

learned  Chief  Justice  of  India,  Pasayat  J.  (for  himself  and  Thakker  J),  

Raveendran J. (one of us) and Bhandari J. On the basis of the four opinions,  

the Constitution Bench formulated the following common order on which  

there was unanimity :-  

“668. The Constitution (Ninety-third Amendment) Act, 2005, is valid and  does not violate the “basic structure” of the Constitution so far as it relates  to  the  State-maintained  institutions  and  aided  educational  institutions.  Question whether the Constitution (Ninety-third Amendment) Act, 2005  would  be  constitutionally  valid  or  not  so  far  as  “private  unaided”  educational institutions are concerned, is not considered and left open to  be  decided  in  an  appropriate  case.  Bhandari,  J.  in  his  opinion,  has,  however, considered the issue and has held that the Constitution (Ninety- third Amendment) Act, 2005, is not constitutionally valid so far as private  unaided educational institutions are concerned.  

669. Act 5 of 2007 is constitutionally valid subject to the definition of  “Other Backward Classes” in Section 2(g) of Act 5 of 2007 being clarified  as  follows:  If  the  determination  of  “Other  Backward  Classes”  by  the  

2

Central  Government  is  with  reference  to  a  caste,  it  shall  exclude  the  “creamy layer” among such caste.  

670. Quantum of reservation of 27% of seats to Other Backward Classes  in the educational institutions provided in the Act is not illegal.

671. Act 5 of 2007 is not invalid for the reason that there is no time-limit  prescribed for its operation but majority of the Judges are of the view that  the review should be made as to the need for continuance of reservation at  the end of 5 years.

4. The petitioner herein made an application in  A. K. Thakur  alleging  

that  some  central  educational  institutions  were  interpreting  the  decision  

contrary  to  the  law  laid  down  therein  and  sought  the  following  

directions/clarifications :  

(a) that the limit of cut-off marks for admission of students in the  OBC quota in Central Educational Institutions be a maximum  10 marks below the cut-off for the general category;

(b) that all vacant seats in the reserved quota after the seats have  been  filled  in  accordance  with  (a)  above  shall  automatically  revert to the general category;

5. The said application was heard and disposed of by the Constitution  

Bench  by  the  following  Order  dated  14.10.2008  (record  of  proceedings  

reported in P V Indiresan Vs. Union of India – 2009 (7) SCC 300) :  

“1. The applicants have prayed for two reliefs in this application. This  application  is  an  offshoot  of  the  judgment  passed  by  the  Constitution  Bench of this Court on 10.4.2008.

3

2. A question had been raised in this application as to  what should be  the extent of cut-off marks for admission of students of OBCs in  the  Central  Educational  Institutions.  Having  heard  the  learned  Solicitor  General  of  India  and learned  Senior  Counsel  on  both  the  sides and also having regard to the observations made in the judgments  pronounced by this Court, we make it clear that the maximum cut-off  marks  for  OBCs  be  10%  below  the  cut-off  marks  of  general  category candidates.

3. We are told that in many of the Central Educational Institutions the seats  which are to be filled up by OBC candidates are still remaining vacant.  These institutions  may endeavour to fill  up these vacant  seats  by other  eligible  students at  the earliest  i.e  at  least  by the end of October 2008  observing inter se merit of the candidates. All other rules and regulations  regarding  admissions  shall  be  strictly  followed.  The  application  is  disposed of accordingly.”

(emphasis supplied)

The  Government  of  India  by  official  memorandum  dated  17.10.2008  

directed that the said order dated 14.10.2008 be implemented by the Central  

Educational  Institutions  by  ensuring  that  the  maximum cut-off  marks  of  

OBCs  are  not  kept  lower  than  10% from the  cut-off  marks  for  general  

category candidates as directed by this Court.  

6. The  Jawaharlal  Nehru  University  (for  short  ‘JNU’),  second  

respondent herein, interpreted the said order of this Court dated 14.10.2008  

to mean that the minimum marks for admission to be secured by an OBC  

candidate  should  not  be  less  than  the  marks  secured  by  the  last  student  

admitted under general category less 10%. The admissions for 2008-09 and  

2009-10 were done on that basis. As a result, it would appear considerable  

4

number of OBC seats got reverted to general category for non-availability of  

eligible  OBC  students  with  the  required  marks.  Therefore,  the  standing  

committee  on  admissions  of  JNU,  at  its  meeting  held  on  10.6.2010,  

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

2010-11. The Committee noted the difference between eligibility, qualifying  

marks and cut-off marks as under:  

“Eligibility for  applying  for  admission  refers  to  the  pre- requisite  of  the  last  qualifying  examination  such  as  school  leaving, graduation, etc. [Eg. : for admission to MA course, the  applicant should have secured a minimum of 50% marks in the  BA Course].

Qualifying marks refer to the minimum marks in the entrance  examination  decided  by  the  University  in  advance  which  it  deems  fit  to  preserve  the  academic  standards.  [Eg.:  For  admission, the candidate possessing eligibility, should secure a  minimum of 30% in the entrance examination].

Cut-off marks  for  the  merit  list  are  decided on the  basis  of  number of seats available in each programme/division, in the  merit list prepared of all candidates having obtained equal to or  above  qualifying  marks.  [Eg.:  The  marks  secured  by  the  candidate allotted/admitted to the last of the General category  seats, becomes the cut-off marks for general category].”

As  there  was  some  divergence  in  views  as  to  whether  the  procedure  

followed in 2008-09 and 2009-10 should be continued, the following two  

proposals were placed before the Deans Committee:

5

(i) The current policy and procedure to consider the cut-off as per  the  definition  given  above  and  to  provide  for  OBC  category  (creamy layer  excluded)  a maximum relaxation of 10% below  the  cut-off  marks  arrived  for  unreserved  category  candidates.  However, in accordance with the Ashok Kumar Thakur judgment  after  giving  maximum  possible  relaxation,  wherever  the  non- creamy  layer  OBC candidates  fail  to  fill  the  reservation,  the  remaining seats would revert to general category students.  

Or

(ii) To  consider  the  minimum  qualifying  marks  in  the  entrance  examination approval by it as the cut-off to provide maximum  relaxation of 10% to OBC candidates (creamy layer excluded)  below the cut-off of general candidates as per the interpretation  of the Supreme Court judgment by fixing cut-off in advance for  admission in various programmes of study to OBC candidates  (creamy  layer  excluded)  to  be  implemented  in  this  year,  i.e.  2010-11  admissions.  The  merit  list  will  be  drawn  as  per  the  admission  policy  of  the  University  and  approval  intake  and  offers. However, in accordance with the  Ashok Kumar Thakur  judgment  after  giving  maximum possible  relaxation,  wherever  the non-creamy layer OBC candidates fail to fill the reservation,  the remaining seats would revert to general category students.”   

7. The Deans Committee of JNU discussed the issue at its meeting dated  

17.6.2010,  considered  the  proposals  of  the  Standing  Committee  on  

Admissions  and resolved as follows in regard to the admissions  of OBC  

candidates for the academic year 2010-2011:

“The Deans  Committee  after  detailed  discussion  decided  to  accept  the  second proposal of the Standing Committee on Admissions viz. to treat the  minimum qualifying marks in the entrance examinations as the cut-off to  provide maximum relaxation of 10% to OBC candidates  (creamy layer  excluded) below the cut-off of general candidates as per the interpretation  of the Supreme Court Judgment by fixing cut-off in advance for admission  to  various  programmes  of  study  to  OBC  candidates  (creamy  layer  excluded)  for  inviting  them for  viva-voce  as  well  as  for  admission  to  various programmes of study to be implemented in this year i.e. 2010-11  admissions. The merit list will be drawn as per the admission policy of the  University and approved intake and offers. Further, in accordance with the  Ashok Kumar Thakur judgment after giving maximum possible relaxation,  

6

wherever the non-creamy layer OBC candidates fail to fill the reservation,  the remaining seats would revert to general category students.  

Hence to be eligible to be invited for viva voce examination a candidate  must secure following marks out of 70 in the written examination.  

Programme General Category OBC SC/ST/PH  categories  

M.Phil/Ph.D.M.Tech /Ph.d.Pre-Ph.D/Ph.D  MPH/PH.D

35%  i.e  24.50  marks  

31.5%  i.e.  22.05 marks

25%  i.e.  17.50 marks

MA,  BA  and  Part  time    programmes  where  viva-vice  is  prescribed  

25%  i.e.  17.50  marks

22.5%  i.e.  15.75 marks

15%  i.e.  10.50 marks

To be eligible for admission a candidate must secure a minimum overall score  out of 100 as given in the table below:  

Programme General  Category

OBC SC/ST/PH  categories  

M.Phil/Ph.D.M.Tech/ Ph.d.Pre-Ph.D/Ph.D  MPH/PH.D

40%  i.e  40  marks  

36%  i.e.  36  marks

30%  i.e.  30  marks

MA/M.Sc/MCA,  BA  (Hons.) 1st & 2nd Year  Part  Time  (COP  &  Advanced Diploma in  Mass Media in Urdu)

30%  i.e.  30  marks

27%  i.e.  27  marks

25%  i.e.  25  marks

The Committee further resolved that the above recommendations will be  implemented only for this year, i.e. 2010-2011 and admission policy will  be reviewed after the current admission process is over and statistics are  available for implementation from the next year i.e. 2011-2012.”

8. A legal notice dated 27.6.2010 was issued to the JNU on behalf of a  

students  association  contending  that  the  change  in  the  procedure  for  

admissions  to  the  seats  reserved  for  OBCs  proposed  by  the  JNU  was  

contrary  to  the  clarificatory  order  of  this  Court  dated  14.10.2008,  and  

7

threatening initiation  of  contempt  proceedings,  if  the  said  decision  dated  

17.6.2010 of the Deans Committee was implemented.  As a consequence,  

JNU sought legal opinion. JNU was advised that while the procedure sought  

to be adopted by JNU for 2010-2011, vide its resolution dated 17.6.2010  

may not be contempt of court, it may not stand judicial scrutiny and could be  

viewed as an attempt to circumvent the law declared in  A. K. Thakur and  

therefore, it  should continue the policy and procedure adopted during the  

previous two years. As a consequence on 12.7.2010 the Deans Committee  

reviewed  the  earlier  decision  dated  17.6.2010  and  decided  to  

restore/continue the procedure that was followed during the previous year  

(2009-2010), that is  to admit only OBC candidates who secure marks within  

10% band below the marks secured by the last candidate admitted in the  

general category and transfer all the unfilled OBC seats to general category.

9. The revised decision dated 12.7.2010 of the Deans Committee was  

challenged by two OBC students (respondents 3 and 4) in a writ petition  

[W.P.(C) No.4857/2010] filed in the Delhi High Court.  A learned Single  

Judge of the High Court allowed the writ petition by impugned order dated  

7.9.2010 holding as under:

“Procedure followed by the second respondent (JNU) and the stand of the  first respondent (UOI) regarding reservation for OBCs is thus declared to  

8

be  bad.  It  is  declared  that  the   first  respondent  UOI/Universities  are  entitled  to  only  fix  minimum  eligibility  criteria  for  admission  in  the  reserved category at maximum 10% below the minimum eligibility criteria  fixed for the General (Unreserved) category. The OBC candidates to avail  of reservation provided for them in the CEI Act are not required to, in  admission  test  or  in  the  eligibility  exam,  secure  marks  within  the  bandwidth of 10% below the cut-off marks of the last candidate admitted  in the General (Unreserved) category.”

10. The said order was challenged by the appellant herein, a non party  

before the High Court with an application seeking leave to challenge the  

order of the learned Single Judge directly before this Court, without filing a  

letter patent appeal. As the matter involved interpretation of the words “cut-

off marks” employed by this Court in the order dated 14.10.2008, this Court  

granted such permission on 27.9.2010 to the appellant.

Contentions of Parties  

11. The  appellant  contends  that  ‘cut-off  marks’  refers  to  the  marks  

secured by the last  candidate  admitted  to a  particular  course of  study or  

under a particular category. ‘Cut-off marks’ are decided with reference to a  

merit  list  of  candidates  prepared  (with  reference  to  the  eligibility  marks  

and/or  where  there  is  an  entrance  examination,  with  reference  to  the  

qualifying marks) on the basis of number of seats available in a programme.  

The marks secured by the last candidate admitted from such merit list to the  

programme denotes the ‘cut-off marks’ for admission to that programme.  

9

The appellant submitted that the words “10% below the cut-off marks of  

general category candidates” would mean 10% below the marks secured by  

the  last  candidate  admitted  under  general  category.  That  is  if  the  last  

candidate admitted under general category had secured 80% marks, and the  

lowering of minimum marks was 10% for OBCs, then OBC candidates who  

have secured marks in the band width of 79 to 72 marks (that is 80 less 10%)  

would alone be entitled to claim admission. This would also mean that until  

admissions to general category seats are determined and the ‘cut off’ marks  

that  is  the  marks  secured  by  the  last  general  category  candidate  is  

ascertained, admissions to OBC reservation seats cannot be commenced, as  

the bandwidth of marks to be possessed by OBC candidates for admission  

would depend upon the marks secured by the last candidate admitted under  

general category.

12. On  the  other  hand,  the  learned  counsel  for  the  third  and  fourth  

respondents  (the  OBC  category  candidates  who  were  the  writ  petitioner  

before the High Court)  contended that  the CEI Act  does not  stipulate  or  

provide any minimum “cut off marks” for OBC category candidates who are  

entitled to the benefit of 27% reservation. It is also submitted that there is no  

mandatory direction either  in  A K Thakur or  Indiresan to fix the cut  off  

10

marks  for  the  general  category  or  cut  off  marks  for  OBC  category  

candidates. It is submitted that the words “the maximum cut-off marks for   

OBCs be 10% below the cut-off marks of general category candidates” in  

the order dated 14.10.2008 would mean that the minimum eligibility marks  

(or  minimum  qualifying  marks  if  there  is  an  entrance  examination)  for  

general  category,  can  be  lowered  or  reduced  by  not  more  than  10% to  

prescribe the minimum eligibility marks for OBC candidates. That is, if 50%  

was the minimum eligibility marks for admission to general category seats,  

the maximum cut off marks for OBC being 10% below the general category  

candidates, the minimum eligibility marks for OBC cannot be less than 45%  

(that is 50% minus 10% of 50%).  

13. The respondents further submitted that neither the Constitution Bench  

which  decided  A.  K.  Thakur which  made  the  clarificatory  order  dated  

14.10.2008, nor the appellant at whose instance the order of clarification was  

issued,  had proceeded on the basis  that cut  off  marks would refer to the  

marks secured by the last candidate admitted to the general category. The  

object  of  appellant  in  making the application seeking clarification  of  the  

order  in  A.  K.  Thakur was  to  ensure  that  the  lowering  of  the  minimum  

eligibility/qualifying marks for admission of OBCs candidates did not lead  

11

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

higher education. Therefore, the appellant wanted a ceiling for the lowering  

of the minimum marks for admission of OBC candidates to be prescribed. It  

was in that context the Constitution Bench ordered that the minimum marks  

for  admission of  OBC candidate should not  be less  than 10% below the  

minimum eligibility/qualifying marks for general category candidates.  

14. The  grievance  of  OBC  candidates  was  not  in  regard  to  the  

determination  of  minimum  eligibility/qualifying  marks.  For  example,  as  

noticed above, if the minimum eligibility marks for general category is fixed  

as  60  for  English  or  70  for  journalism,  they  have  no  grievance  if  the  

minimum eligibility marks being fixed at 54 marks for English and 63 for  

journalism in regard to OBC candidates. The OBC candidates have also no  

grievance  if  they  are  required  to  pass  an  entrance  examination  and  are  

required  to  secure  the  minimum  qualifying  marks  in  the  entrance  

examination. Their grievance is with reference to determining the minimum  

eligibility/qualifying marks for admission of OBC students with reference to  

the marks secured by the last candidate admitted under the general category.  

Their  grievance  is  to  linking  of  their  admissions  to  an  uncertain  and  

fluctuating  benchmark  which  would  depend  upon  the  quality  of  the  last  

12

student admitted under the general category. According to the respondents  

by adopting the method of determining the ‘cut off’ marks for OBCs with  

reference to ‘cut off’ marks of last general category candidate defeats the  

purpose of reservation of 27% seats for OBC candidates and denies the just  

and legitimate entitlement of OBCs for admission. It is pointed out that the  

adoption of such a procedure in 2008-2009 and 2009-2010 had resulted in  

large number of seats meant for OBCs being transferred to general category  

candidates.  

Question for consideration

15. The problem or  question  for  consideration  arising  out  of  the  rival  

contentions may be appreciated with reference to the following illustration:  

“A central educational institution has 100 seats in its B.Com. programme.  

Eligibility  for  admission  is  with reference  to  the  marks  secured  in  the  

qualifying  examination  [that  is  10+2  or  its  equivalent].  The  minimum  

eligibility prescribed for admissions is 50% marks for general category,  

45% for  OBCs and 40% for  SC/ST.  Having  regard  to  the  reservation  

policy applicable to the institution, out of 100 seats, 50 seats have to be  

filled by general category candidates,  27 seats are to be filled by OBC  

candidates and 23 seats (15 + 7.5 rounded off to 23) are to be filled by  

SC/ST candidates. 300 candidates seek admission, of whom 160 belong to  

general category, 90 belong to OBCs and 50 belong to SC/ST. The college  

prepares  a  common  merit  list  and  the  first  50  candidates  in  the  said  

common merit list are granted admission under the general category. The  

13

first candidate in the merit list has secured 98 marks and the 50 th candidate  

in  the  merit  list  who is  the  last  candidate  in  the  general  category  has  

secured 80 marks. The college also prepares a separate list  of 90 OBC  

candidates merit list, 30 SC candidates and 20 ST candidates. Out of the  

OBC candidates list of 90 candidates, the first 15 have found a place in the  

first 50 in the common merit list on their own merit and are admitted and  

treated them as general category candidates, leaving 75 candidates in the  

OBC list. Out of the said 75 OBC candidates, 20 candidates have secured  

marks ranging from 79 to 72, and the remaining 55 have secured marks  

ranging 71 to 46.”  

According to the respondents (OBC candidates), the first 27 candidates from  

the OBC candidates list, that is 20 candidates who have secured between 79  

to  72 marks  and  the  next  7  candidates  in  the  order  of  merit  (who have  

secured less than 72) are entitled to be selected to the 27 seats reserved for  

OBCs.  According  to  the  appellant  as  the  last  candidate  in  the  general  

category has secured 80 marks,  and as the “maximum cut off  marks  for  

OBCs  should  be  10%  below  the  cut  off  marks  of  general  category  

candidates”, the general category cut off marks should be 80 and the OBC  

cut off marks should be 72% (80 minus 8); and only those OBC candidates  

who have secured marks in the band of 79 to 72 are entitled to be selected  

under the OBC category. Out of the list of 90 OBC candidates the first ten  

having been admitted as general category candidates on their own merit, the  

next  20 OBC candidates  who have secured marks  between 79 to  72 are  

14

entitled to be granted admission under the OBC category. The remaining 55  

candidates having obtained less  than the cut  off  marks 72 marks are not  

entitled to admission.  As a consequence,  even though there were still  55  

candidates in the OBC candidates merit list, who had secured more than the  

required  minimum  of  45%  in  the  qualifying  examination,  they  are  not  

entitled to get admission; and the seven OBC seats which remain unfilled,  

would have to be transferred as general category seats and will be filled by  

the general category candidates from the common merit list in the order of  

merit.

16. The appellant (and other intervenors who claim to be concerned about  

excellence  in  education)  contend that  ‘cut  off’  marks’  are  different  from  

‘eligibility marks’ or ‘qualifying marks’. There is no dispute that eligibility   

marks refers to the minimum marks a candidate is required to have in the  

last qualifying examination (for example, 10+2 examination for admissions  

to  a  Bachelor’s  degree  programme  or  the  graduation  examination  for  

admissions  to  a  post  graduate  programme)  as  a  condition  precedent  for  

seeking admission to the higher course of study which the appellant seeks  

admission. Similarly, there is no dispute that qualifying marks refers to the  

minimum marks required to be secured in the special entrance examination,  

15

that may be held to determine the inter-se merit of candidates from different  

universities/sources and to ensure that candidates to be admitted possess the  

minimum academic standards required or expected for a special course of  

study; and it  is  only those securing the qualifying marks in the entrance  

examination,  where  it  is  a  part  of  the  admission  process,  who  will  be  

included in the merit list for admission, or will become eligible for being  

called  for  viva voce.  [For  example,  it  is  stated  that  in  Delhi  University,  

admissions to degree courses, except for English and Journalism Courses,  

are on the basis of ‘eligibility marks’ that is the prescribed minimum marks  

in  10+2  examination.  Those  who  seek  admission  in  degree  courses  in  

English  and  Journalism  will  have  to  participate  in  special  entrance  

examinations.  A  candidate  seeking  admission  to  Bachelor’s  degree  in  

Journalism is required to have eligibility marks of 70% in 10+2 examination  

and also pass the entrance examination; and a candidate seeking admission  

to Bachelor’s degree in English is required to have eligibility marks of 60%  

in 10+2 examination and also pass the entrance examination]. In Dr. Preeti   

Srivastava vs. State of M.P. – (1999) 7 SCC 120, this Court referred to the  

difference between eligibility and qualification, thus :  

“At  times,  in  some  of  the  judgments,  the  words  “eligibility”  and  “qualification”  have  been  used  interchangeably,  and  in  some  cases  a  distinction has been made between the two words – “eligibility” connoting  

16

the minimum criteria for selection that may be laid down by the University  Act or any Central statute, while “qualifications” connoting the additional  norms laid down by the colleges or by the State.”

Eligibility Marks and Qualifying Marks are pre-determined, and notified in  

the  Admission  Prospectus,  so  that  a  candidate  intending  to  apply  for  

admission knows what eligibility marks he should possess in the qualifying  

examination  or  what  qualifying  marks  he  should  secure  in  the  entrance  

examination (if there is an entrance examination).  

17. The question for our consideration in this appeal by special leave is  

the meaning to be assigned to the direction “the maximum cut-off marks for   

OBCs be 10% below the cut-off marks of general category candidates” in  

the order dated 14.10.2008 of this Court.  

The Interpretation  

18. In English language, many words have different meanings and a word  

can be used in more than one sense. Every dictionary gives several meanings  

for  each  word.  The  proper  use  of  a  dictionary  lies  in  choosing  the  

appropriate meaning to the word, with reference to the context in which the  

word is used. We cannot mechanically apply all and every meanings given  

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

17

may carry and then try to change the context in which it is used. The context  

in which the word is used determines the meaning of the word. A randomly  

chosen meaning for the word should not change the context in which the  

word is used. This is the fundamental principle relating to use of words to  

convey  a  thought  or  explain  a  position  or  describe  an  event.  We  may  

demonstrate this with reference to the dictionary meanings of the word ‘cut-

off’.  

19. The  Reader’s  Digest  Word  Power  Dictionary gives  the  following  

meanings and illustrative uses with reference to such meanings, for the word  

‘cut-off’ [1996 Edition, Page 195] :

“Cut Off

*to remove Cut off the thorns on the stem otherwise you will pick yourself

*to prevent from leaving or reaching a place; to be isolated The village was cut off by floods I feel so cut off when I stay on my parents’ farm

*to disconnect or stop supplying something He was cut off before he could finish his telephone conversation

*to disinherit He was cut off without a cent

*to block We must cut off all escape routes

*expiry, final deadline Post your entry now, because the cut-off date is today”

(emphasis supplied)

18

The Collins Dictionary of the English Language gives the thirteen meanings  

to the word cut-off [1979 Edition, Page 369] :  

“1. to remove by cutting. 2. to intercept or interrupt something, esp. a telephone conversation.  3. to discontinue the supply of : to cut off the water.  4. to bring to an end.  5. to deprive of rights; disinherit : she was cut off without a penny.  6. to sever or separate : she was cut off from her family. 7. to  occupy  a  position  so  as  to  prevent  or  obstruct  (a  retreat  or  

escape). 8. (a)  the  act  of  cutting  off;  limit  or  termination.  (b)  (as  

modifier) : the cut off point.  9. Chiefly U.S. a route or way that is shorter than the usual one; short  

cut.  10. a device to terminate the flow of a fluid in a pipe or duct.  11. the  remnant  of  metal,  plastic,  etc.,  left  after  parts  have  been  

machined or trimmed.  12. Electronics.  (a)  the  value  of  voltage,  frequency,  etc.,  below  or  

above which an electronic device cannot function efficiently.  (b)  (as modifier) : cut off voltage.  

13. a channel cutting across the neck of a meander,  which leave an  oxbow lake.  

14. another name for oxbow  (the lake).”   (emphasis supplied)

The Illustrated Oxford Dictionary gives the following meanings to the word  

cut-off [2003 Edition, Page 205] :  

“1. The point at which something is cut off.  2. A device for stopping a flow.  3. (US) a short cut.  4. (in plural) shorts, esp. made by cutting the legs off  jeans.

(emphasis supplied)  

19

What is appropriate for our purpose are the meanings ‘the point at which  

something is cut off’ in Oxford, ‘limit’ or ‘the cut off point’ in Collins and  

the meaning ‘final deadline’ in Reader’s Digest.

20. The term ‘cut-off  marks’  in  academic  and  judicial  vocabulary  has  

several meanings. When rejecting  a person’s request for selection on the  

ground that his marks are less than the marks secured by the last candidate  

who was selected, by describing the marks secured by the last candidate as  

‘cut-off marks’. The words ‘cut-off marks’ are also used while notifying a  

body of applicants who form part of a merit list or the general public, the  

marks  secured by the  last  selected  candidate  so that  they can know that  

persons with lesser merit/marks had not been selected or have no chance of  

being selected. ‘Cut-off marks’ are also used to refer to the minimum marks  

(either  eligibility  marks or  qualifying marks)  required for  admission to a  

course.  

21. Both  sides  relied  upon  certain  observations  of  Pasayat,  J.  and  

Bhandari J, in A K Thakur in support of the interpretation put forth by them.  

While  appellant  argued  that  the  said  observations  clearly  indicated  that  

minimum marks for admission of OBC candidates should be a prescribed  

20

percentage  below the  marks  secured  by the  last  candidate  under  general  

category (cut off marks for general category), the respondents argued that  

the observations clearly meant  that  the minimum marks for  admission of  

OBC  candidates  should  be  a  prescribed  percentage  below the  minimum  

eligibility/qualifying  marks  prescribed  for  general  candidates.  We  may  

therefore refer to the said observations. Pasayat J stated in his summing up :  

“358.  To sum up, the conclusions are as follows:

(1)  For  implementation  of  the  impugned  Statute  creamy layer  must  be  excluded.  

(2)  There  must  be  periodic  review as  to  the  desirability  of  continuing  operation of the Statute. This shall be done once in every five years.  

(3) The Central Government shall examine as to the desirability of  fixing a cut off marks in respect of the candidates belonging to the  Other  Backward  Classes  (OBCs).  By  way  of  illustration  it  can  be  indicated that five marks grace can be extended to such candidates  below the minimum eligibility marks fixed for general categories of  students. This would ensure quality and merit would not suffer. If any  seats remain vacant after adopting such norms they shall be filled up  by candidates from general categories.”

(emphasis supplied)

In the course of his judgment, Bhandari, J. referred to cut-off marks at two  

places (vide paras 371 and 535). They are extracted below :

“If we want to really help the socially,  educationally and economically  backward  classes,  we need to  earnestly  focus  on implementing  Article  21A. We must provide educational opportunity from day one. Only then  will the casteless/classless society be within our grasp. Once children are  of  college-going age,  it  is  too late  for  reservation to  have much of  an  effect.  The  problem  with  the  Reservation  Act  is  that  most  of  the  beneficiaries  will  belong  to  the  creamy  layer,  a  group  for  which  no  

21

benefits  are  necessary.  Only  non-creamy  layer  OBCs  can  avail  of  reservations in college admissions, and once they graduate from college  they should no longer be eligible for post-graduate reservation. 27% is the  upper  limit  for  OBC  reservation.  The  Government  need  not  always  provide the maximum limit. Reasonable cut off marks should be set so  that standards of excellence greatly effect. The unfilled seats should  revert to the general category.

x  x x x x

The best universities  are the best,  in part,  because they attract  the best  students. The same can be said for almost any organization. In the case of  higher education, the universities that admit the best will likely churn out  the best. The precise extent to which the university made the best so good  cannot be qualified.  The point is that universities alone cannot produce  qualified job candidates. Forced to admit students with lower marks, the  university's  final  product  will  not  be  as  strong.  Once  the  creamy  is  excluded, cut-off marks would likely drop considerably in order to fill the  27% quota for non creamy layer  OBCs. When the creamy layer  is not  removed, as in the case of Tamil Nadu, the difference in cut off marks for  the general and backward categories may be insignificant. (See para 408  of Indira Sawhney). Of course, the extent to which standards of excellence  would suffer would vary by institution.  As I mention below, I urge the  Government to set OBC cut off marks no lower than 10 marks below  that of the general category. This is only a recommendation.

(emphasis supplied)

In his judgment, Bhandari, J. observed thus in regard to the question ‘would  

it  be  reasonable  to  balance  OBC  reservation  with  societal  interests  by   

instituting OBC cut off marks that are slightly lower than that of the general   

category?’ :  

“627.  Balaji (supra) concluded that reservation must be reasonable. The  Oversight  Committee  has  made a  recommendation  that  will  ensure the  same.  At page 34 of Volume I of its Report, the Oversight Committee  recommended that institutions of excellence set their own cut off marks  such that quality is not completely compromised.  Cut offs or admission   thresholds as suggested by the Oversight Committee are reproduced:

22

4.4.2. The Committee recognizes that those institutions of higher learning  which have established a global reputation (e.g. IITs, IIMs, IISc, AIIMS  and other such exceptional quality institutions), can only maintain that if  the highest quality in both faculty and students is ensured. Therefore, the  committee  recommends  that  the  threshold  for  admission  should  be   determined by the respective institutions alone, as is done today, so that  the level of its excellence is not compromised at all.

4.4.3.  As regards 'cut-offs' in institutions other than those mentioned in   para 7, these may be placed somewhere midway between those for SC/ST   and the unreserved category, carefully, calibrated so that the principles of   both equity and excellence can be maintained.  

4.4.4. The Committee strongly feels that the students who currently tend to  get excluded must be given every single opportunity to raise their own  levels  of  attainment,  so  that  they  can  reach  their  true  potential.  The  Government should invest heavily in creating powerful, well designed and  executed remedial preparatory measures to achieve this objective fully.

628.   Standards of excellence however should not be limited to the best  aided  institutions.  The  Nation  requires  that  its  citizens  have  access  to  quality  education.  Society as a  whole stands  to  benefit  from a rational  reservation scheme.

629. Finding 68% reservation in educational institutions excessive, Balaji   admonished  States  that  reservation  must  be  reasonable  and  balanced  against other societal interests. States have “to take reasonable and even  generous steps to help the advancement of weaker elements; the extent of  the problem must be weighted, the requirements of the community at large  must be borne in mind and a formula must be evolved which would strike  a  reasonable  balance  between  the  several  relevant  considerations."  To  strike such a balance, Balaji slashed the impugned reservation from 68 to  less than 50%. Balaji thus serves as an example in which this Court sought  to ensure that reservation would remain reasonable. We heed this example.  There should be no case in which the gap of cut off marks between  OBC and general category students is too large. To preclude such a  situation,  cut  off  marks for  OBCs should be  set  no lower than 10  marks below the general category.  To this end, the Government shall  set up a committee to look into the question of setting the OBC cut off  at not more than 10 marks below that of the general category. Under  such a scheme, whenever the non-creamy layer OBCs fail to fill the 27%  reservation,  the  remaining  seats  would  revert  to  general  category  students.”  

(emphasis supplied)

23

In his summary of findings also, Bhandari, J., again referred to cut-off marks  

as under :

“11.  Would  it  be  reasonable  to  balance  OBC reservation  with  societal  interests by instituting OBC cut-off marks that are slightly lower than that  of the general category ?

It  is  reasonable  to  balance  reservation  with  other  societal  interests.  To  maintain standards of excellence, cut off marks for OBCs should be set not   more than 10 marks out of 100 below that of the general category.”   

(emphasis supplied)

22. The clarificatory order dated 14.10.2008 in P.V. Indiresan vs. Union  

of India [2009 (7) SCC 300] which stated that the “maximum cut off marks   

for OBCs be 10% below the cut off marks of general category candidates” is  

sought to be interpreted differently by the appellant and respondents, with  

reference to the said observation. The appellant contends that the “cut off  

marks of general category candidates” refers to the marks secured by the last  

candidate who secures a seat under general category and therefore only such  

OBC students who have secured marks in the bandwidth of 10% below the  

marks  secured by the  last  general  category  candidate,  will  be  entitled to  

admission. On the other hand the respondents contend that the words “cut  

off marks of general category candidates were used to refer to the minimum  

eligibility/qualifying  marks  prescribed  for  admission  to  the  course  under  

general category.  

24

23. We find  that  this  court  has been regularly  and routinely  using the  

words ‘cut off marks’ to describe the minimum marks required to be secured  

in the qualifying examination for being eligible for admission or to describe  

the minimum qualifying marks to be obtained in an entrance examination.  

As  this  court  has  routinely  used  the  words  ‘cut  off  marks’  to  refer  to  

‘eligibility marks’ or ‘qualifying marks’, whenever this Court uses the words  

‘cut off marks’, their meaning would depend upon the context. The words  

may  refer  to  either  the  minimum marks  to  be  secured  in  the  qualifying  

examination or the entrance examination to be eligible for admission, or to  

the marks secured by the last candidate admitted in a particular category.  

24. We may refer to some of the cases where this court has used the term  

‘cut off marks’ to refer to the eligibility marks or qualifying marks.  

24.1) In Dr. Jeevak Almast vs. Union of India [1988 (4) SCC 27] this Court  

observed :  “The scheme contained the provision that the cut-off base for  

selection for admission shall be 50 per cent marks”, while referring to the  

All India Entrance Examination. This clearly demonstrates that the words  

‘cut-off’  base  was  used  to  refer  to  the  qualifying  marks  the  minimum  

eligibility marks in the qualifying examination.                   

25

24.2) In Ajay Kumar Agrawal and Ors. v. State of U.P. [1991 (1) SCC 636]  

this court while referring to the minimum marks required for being eligible  

for  admission  to  post  graduate  course  described the minimum qualifying  

marks in the qualifying examination,  as ‘cut off  base’ marks.  We extract  

below the relevant portion as follows :-

“11. It is not disputed that in Uttar Pradesh the prevailing practice was a  50 per cent base for allowing Post Graduate Study to doctors with MBBS  qualifications but taking their University examination as the base without  any separate selection test, it is not the case of any of the parties before us  that the selection is bad for any other reason. We are of the view that it is  in general interest that the 50 per cent cut-off base as has been adopted  should be sustained.”

24.3) In State of Uttar Pradesh v. Dr. Anupam Gupta [1993 Supp (1) SCC  

594], this court extracted the following provision from a Government order  

relating to eligibility marks for admission which was minimum of 50% for  

general category candidates and 40% for reserved category candidates :-

“(2) This examination shall have 100 per cent objective type questions.  The eligibility criteria for admission to post-graduate courses shall be 50  per cent minimum qualifying marks for candidates of general category and  40  per  cent  minimum  qualifying  marks  for  candidates  of  reserved  categories (SC/ST).”

Thereafter it used the words cut off marks to refer to the minimum eligibility  

marks for general category candidates and reservation category candidates:

26

“… Thus it could be seen that this Court consistently laid down the criteria  for  conducting  entrance  examination  to  the  post  graduate  degree  and  diploma courses in Medicine and the best among the talented candidates  would be eligible for admission.  50% cut off marks was also held to be   valid to achieve excellence in post graduate speciality.  Accordingly we   uphold the prescription of 50% cut off marks to general candidates and   40% to SCs and STs together with 1.65% weightage of total marks i.e. 50  marks in total in entrance examination as constitutional and valid.”

(emphasis supplied)

24.4) In Ombir Singh & Ors. v. State of U.P.  [1993 Supp. (2) SCC 64] this  

court while upholding the prescription of 50% and 40% respectively as the  

minimum  eligibility  marks  in  the  qualifying  examination  followed  the  

decisions in  Ajay Kumar Agarwal and  Dr.Anupam Gupta by relying upon  

and reiterating the passages in those decisions which use the words cut-off  

marks to refer to qualifying marks. We extract below the relevant portions of  

the said decision:  

“So far as the validity of the admission rules fixing 50% marks for the  general  category  candidates  and  40%  marks  for  the  SC/ST  category  candidates  to  be  obtained  at  the  entrance  examination  as  minimum  qualifying  marks  for  being  eligible  for  admission  to  the  Post-Graduate  medical courses, the same are not subject to any challenge ……..

“…. It may be further mentioned that this Court in Ajay Kumar Agrawal   and Ors. v. State of U.P. [1991 (1) SCC 636] observed as under:-

“It is not disputed that in Uttar Pradesh the prevailing practice was a 50  per cent base for allowing Post Graduate Study to doctors with MBBS  qualifications but taking their University examination as the base without  any separate selection test, it is not the case of any of the parties before us  that the selection is bad for any other reason. We are of the view that it is  in general interest that the 50 per cent cut-off base as has been adopted  should be sustained.”

27

3. The matter again came up for consideration before this Court and in  State of Uttar Pradesh and Ors. v. Dr. Anupam Gupta [1993 Supp. 1 SCC  594], it was held as under:-

“Thus it could be seen that this Court consistently laid down the criteria  for  conducting  entrance  examination  to  the  post  graduate  degree  and  diploma courses in Medicine and the best among the talented candidates  would be eligible for admission. 50% cut off marks was also held to be  valid  to achieve excellence in post graduate speciality.  Accordingly we  uphold the prescription of 50% cut off marks to general candidates and  40% to SCs and STs together with 1.65% weightage of total marks i.e. 50  marks in total in entrance examination as constitutional and valid.”

4. Thus, we further hold that any challenge to the above rule laying down  minimum  percentage  of  marks  for  eligibility  for  admission  to  Post- Graduate courses is no longer reintegra.”

24.5) In Hemani Malhotra vs. High Court of Delhi – (2008) 7 SCC 11, we  

find that this Court has used the words ‘cut-off marks’ to refer to describe  

‘minimum qualifying marks’ following Justice Shetty Commission Report  

which  also  used  the  term  ‘cut-off  marks’  while  referring  to  ‘minimum  

qualifying marks’. In that case, the advertisement inviting applications stated  

that “minimum qualifying marks in the written examination shall be 55% for  

general  candidates  and 50% for  SC and ST candidates”.  The subsequent  

resolution of the full court provided that the “minimum qualifying marks in  

viva voce will be 55% for general candidates and 50% for SC/ST candidates.  

This Court while considering the correctness of the said resolution observed  

thus :  

28

“This Court further notices that Hon'ble Justice Shetty Commission has  recommended  in  its  Report  that  'The  vive-  voce  test  should  be  in  a  thorough and scientific manner and it should be taken anything between  25  to  30  minutes  for  each  candidate.  What  is  recommended  by  the  Commission is that the vive-voce test shall carry 50 marks and there shall  be no cut off marks in vive-voce test.- This Court notices that in All-India  Judges  Association  and  Ors.  v.  Union  of  India –  (2002)  4  SCC 247,  subject  to  the  various  modifications  indicated  in  the  said  decision,  the  other recommendations of the Shetty Commission (supra) were accepted  by this Court. It means that prescription of cut off marks at vive-voce test  by the respondent was not in accordance with the decision of this Court.”

24.6) In K. Manjusree vs. State of A.P. – (2008) 3 SCC 512, this Court used  

the words ‘cut-off percentage’ to refer to minimum qualifying marks. The  

relevant portion is extracted below :  

“The sub- committee was also of the view that apart from applying the  minimum  marks  for  the  written  examination  for  determining  the  eligibility of the candidates to appear in the interview the same cut off  percentage should be applied for interview marks, and those who fail  to secure such minimum marks in the interview should be considered  as having failed.”

25. This  Court  also  used  the  word  ‘threshold  marks’  to  describe  the  

minimum qualifying marks.  In Parveen Jindal v. State of Haryana [1993  

Supp. (4) SCC 70] this court referred to Rule 7 of the Haryana Service of  

Engineers Class I, PWD (Irrigation Branch) Rules, 1964 which prescribes  

the qualifying marks, relevant portion of which is extracted below:  

“Provided  that  a  candidate  shall  not  be  considered  qualified  for  appointment, unless he obtains not less than forty per cent marks in each  subject and also not less than fifty per cent marks in the aggregate, and no  candidate  who does not obtain the qualifying marks shall  be called for  interview by the commission.

29

This Court, while referring to the contentions of the appellant therein, used  

the word ‘threshold’ marks to refer to the qualifying marks, as is evident  

from the following passage:  

“Whereas  the  Rules  say  that  a  candidate  obtaining  50% marks  in  the  written  test  is  entitled  to  be  called  for  viva-voce,  the  Commission  has  arbitrarily  prescribed a threshold  of 65% which it had no jurisdiction to  do. As a result of the said arbitrary stipulation several of the appellants  have been denied the opportunity of selection. The Commission must not  be directed to make selections afresh for all the three wings/branches in  the Public Works Department.”

(emphasis supplied)

26. In  A K  Thakur, while  referring  to the  observations  of  the  Report  

(Vol.II) of the Oversight Committee (Planning Commission, Govt. of India)  

on  Reservation  in  Higher  Educational  Institutions,  Bhandari,  J.  used  the  

words  ‘cut  offs’  or  ‘admission  thresholds’  as  interchangeable  words  by  

observing. “Cut-offs or admission thresholds as suggested by the Oversight  

Committee are reproduced” (vide : Para 627)

27. In A K Thakur, Pasayat, J. has also used the words “cut-off marks” to  

refer to minimum eligibility marks. While summing up his conclusions (in  

para 358 extracted above) he observed that the “Central Government shall  

examine  as  to  the  desirability  of  fixing  cut  off  marks  in  respect  of  the  

30

candidates  belonging  to  the  Other  Backward  Classes (OBCs.)”,  and  

proceeded to observe “By way of illustration it can be indicated that five  

grace marks can be extended to such candidates below the minimum marks  

fixed for general categories of students.” The suggestion made is that if the  

minimum eligibility marks for general category students is 50, the minimum  

eligibility marks for OBC candidates  should be 45. This clearly shows the  

words “cut off marks” have been used to refer to minimum eligibility or  

qualifying marks.

28. Even the Oversight Committee on Reservation in Higher Educational  

Institutions,  Government  of  India  (Planning  commission)  in  its  Interim  

Report  and  Final  Report  uses  the  words  ‘cut  off  marks’  and  ‘threshold  

marks’ to refer to minimum eligibility marks. We extract below the relevant  

portions:  

“Interim Report The Oversight Committee considers expansion, inclusion and excellence  as the moving spirit, behind the new reservation policy. The institutions of  higher  leaning  should  keep  these  three  principles  in  view  while  determining  threshold  marks  for  admission  to  OBC  students………… (vide para 6 of the Preamble). As regards ‘cut offs’ in institutions other than those mentioned in para 7,  these may be placed somewhere mid way between those for SC/ST and the  unreserved  category,  carefully  calibrated  so  that  the  principles  of  both  equity and excellence can be maintained (vide para 8 of Preamble). Final Report (Vol.II)  4.4 Cut offs or admission thresholds:  4.4.1 The issue of threshold levels or cut offs for OBC candidates has  already been addressed in the Interim Report (paras 7 and 8) as under :  

31

x x x x x x x x x 4.4.3 As regards  ‘cut offs’ in institutions other than those mentioned in  para 7, these may be placed somewhere mid way between those for SC/ST  and the unreserved category, carefully calibrated so that the principles of  both equity and excellence can be maintained.

Para 4.4.3 of the Report of the Oversight Committee obviously refers to a  

situation  where  if  the  minimum  eligibility  marks  for  general  category  

candidates is 50% and the minimum eligibility marks for SC/ST candidates  

are 40%, the minimum eligibility for OBC should be somewhere midway  

that  is  45%.  It  should  be  noted  that  the  observations  of  Bhandari  J  in  

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, when Bhandari J uses  

the words ‘cut off marks’, he is also clearly referring to the eligibility marks.  

29. The words “cut-off marks” are freely used to describe the prescribed  

minimum  marks  even  in  academic  circles  and  central  educational  

institutions. For example, the prospectus of MBBS admissions in All India  

Institute  of  Medical  Sciences  (AIIMS)  provides  in  Para  2  (dealing  with  

eligibility) that a candidate should have obtained a minimum aggregate of  

60% marks in the case of general and OBC candidates and 50% in the case  

of SC/ST candidates in aggregate. It also provides that all candidates who  

32

are so found eligible, have to appear for a competitive entrance examination  

and Clause 4.1 refers to the minimum marks required to be secured in the  

MBBS Entrance Examination who could be admitted.  

“4.1 Minimum cut-off marks in the MBBS Entrance Examination : As  per the decision of the governing body and institute body at it  meeting  held on 26.11.2009 with regard to cut-off marks in the MBBS entrance  examination, the candidate belonging to general category will be required  to have 50% minimum cut-off marks. Those belonging to OBC category  will  be  required  to  have  45%  minimum  cut-off marks  and  those  belonging to SC/ST will have to ensure at least 40% minimum marks  in the MBBS entrance examination.”

It will be seen from the above  that the words ‘cut-off marks’ are used as the  

minimum marks required in the entrance examination.  

30. Pasayat  J  and Bhandari  J.  were  concerned about  the standards  of  

excellence in higher education. Having regard to the fact that OBCs were far  

better placed economically and socially than SCs/STs, they wanted to ensure  

that  the  minimum  percentage  for  OBCs  was  somewhere  between  the  

minimum  marks  for  SC/ST  and  minimum  marks  for  general  category  

candidates.  They  did  not  want  the  minimum eligibility  marks  for  OBCs  

should be the same as the minimum eligibility marks for Scheduled Castes  

and Scheduled Tribes.  They were of the view that if  very low eligibility  

marks were provided for OBC, the disparity would affect higher education  

standards. It is in that context, that Bhandari, J. observed that cut off marks  

33

for OBCs, should not be lower than 10 marks below that of general category  

thereby meaning that minimum eligibility marks for OBC should be set no  

lower than 10% below the eligibility marks for the general category. Pasayat  

J in fact specifically stated that the minimum marks for OBCs should be 5  

marks less than the minimum eligibility marks for general category.  

31. The Constitution Bench of this Court in Dr. Preeti Srivastava  (supra)   

observed as follows :  

“29.  The  submission,  therefore,  that  there  need  not  be  any  qualifying  marks prescribed for the common entrance examination has to be rejected.  We have, however, to consider whether different qualifying marks can be  prescribed  for  the  open  merit  category  of  candidates  and  the  reserved  category of candidates. Normally passing marks for any examination have  to be uniform for all categories of candidates. We are, however, informed  that at the stage of admission to the M.B.B.S. course, that is to say, the  initial course in medicine, the Medical Council of India has permitted the  reserved  category  candidates  to  be  admitted  if  they  have  obtained  the  qualifying marks of 35% as against the qualifying marks of 45% for the  general category candidates. It is, therefore, basically for an expert body  like the Medical Council of India to determine whether in the common  entrance  examination  viz.  PGMEE,  lower  qualifying  marks  can  be  prescribed for the reserved category of candidates as against the general   category  of  candidates;  and  if  so,  how  much  lower.  There  cannot,   however,  be  a  big  disparity  in  the  qualifying  marks  for  the  reserved   category of candidates and the general category of candidates at the post- graduate level. This level is only one step below the apex level of medical  training  and  education  where  no  reservations  are  permissible  and  selections  are  entirely  on  merit.  At  only one  step  below this  level  the  disparity  in  qualifying  marks,  if  the  expert  body  permits  it,  must  be  minimal. It must be kept at a level where it is possible for the reserved  category candidates to come up to a certain level of excellence when they  qualify in the speciality of their choice. It is public interest that they have  this level of excellence.”

     (emphasis supplied)

34

In Dr. Preeti Srivastava, the Constitution Bench held that if the qualifying  

marks for reserved category was 20% and the qualifying marks for general  

category was 45%, the disparity was too great to sustain the public interest at  

the level of postgraduate medical training and education. This Court noticed  

that for MBBS the difference in qualifying marks was only 10% that is 45%  

for general category and 35% for reserved category and that difference was  

not unreasonable. The Constitution Bench was of the view that prescribing  

different  minimum qualifying marks  for  general  category and reservation  

category was permissible so long as the difference was not too great; and  

that  at  post  graduate level,  the disparity  in the qualifying marks between  

general  category  and  reservation  categories  should  be  narrower  than  the  

disparity between the two categories at graduate level. It should be noted  

that neither Dr. Preeti Srivastava, nor A.K. Thakur nor any other decision of  

this Court required that the reservation category candidates should possess  

marks which are within a narrow bandwidth below the cut off marks for the  

last  student  admitted  in  the  general  category.  All  the  decisions  spoke  of  

difference/disparity in regard to eligibility marks and qualifying marks.  

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

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

35

category”  (vide  Paras  535  and  629)  of  A  K  Thakur,  he  meant that  

eligibility/qualifying marks  for  OBCs  should  be  set  not  lower  than 10%  

below the  eligibility/qualifying marks  of  general  category.  Similar  is  the  

position regarding the observation of Pasayat J. in Para 358 of A K Thakur.  

Pasayat  J.  observed that  the cut  off  marks  for  OBCs should be fixed by  

extending 5  grace  marks,  that  is  5  marks  below the  minimum eligibility   

marks fixed for general categories of students.  We fail to understand how  

the  words  “minimum  eligibility  marks  fixed  for  general  categories  of   

students’ used  by  Pasayat  J  can  be  read  as  ‘cut  off  marks’  of  general  

category, that is marks secured by the last candidate admitted under general  

category. We, therefore, hold that the words “maximum cut-off marks for  

OBCs be 10% below the cut off marks of general category candidates” in the  

order dated 14.10.2008 of the Constitution Bench meant that if the minimum  

eligibility/qualifying  marks  prescribed  for  general  category  candidates  

was  50%,  the  minimum  eligibility/qualifying  marks  for  OBCs  should  

be 45%.              

33. The appellant canvasses the continuance of the procedure adopted by  

JNU  during  2008-09  and  2009-10.  What  in  effect  was  that  procedure?  

During those years, JNU would fix the minimum eligibility marks as say  

36

40% when the admission programme is announced. JNU would apply it only  

to  general  category candidates.  It  would not  say  what  was  the minimum  

eligibility marks for OBC candidates, but would decide the same, only after  

all the general category seats were filled, by fixing a band of marks upto  

10% below the  marks  secured  by  the  last  candidate  admitted  under  the  

general category. If a OBC candidate secured the marks within that band, he  

would be given admission. Otherwise even if he had secured 70%, as against  

the minimum of 40% he would not get a seat,  if the band of marks was  

higher. Such a procedure, was arbitrary and discriminatory, apart from being  

unknown in regard to admissions to educational institutions,. The minimum  

eligibility marks for admission to a course of study is always declared before  

the  admission  programme  for  an  academic  year  is  commenced.  An  

institution may say that for admissions to its course, say Bachelor’s degree  

course  in  science,  the  candidate  should  have  successfully  completed  a  

particular course of study, say 10+2, with certain special subjects. Or it can  

say  that  the  candidate  should  have  secured  certain  prescribed  minimum  

marks  in  the  said  qualifying  examination,  which  may  be  more  than  the  

percentage  required  for  passing  such  examination.  For  example  if  a  

candidate  may  pass  a  10+2  examination  by  securing  35%  marks,  an  

institution can say at its discretion that to be eligible for being admitted to its  

37

course of study, the candidate should have passed with at least a minimum  

of 40% or 50% or 60%. Whatever be the marks so prescribed, it should be  

uniform to all applicants and a prospective applicant should know, before he  

makes an application, whether he is eligible for admission or not. But the  

‘cut-off’  procedure followed by JNU during those days had the effect  of  

rewriting the eligibility criteria,  after the applications were received from  

eligible candidates. If the minimum eligibility prescribed for an admission in  

an institution was 50% and a candidate had secured 50%, he could not be  

denied admission, if a seat was available, based on a criterion ascertained  

after the last date for submission of applications. No candidate who fulfils  

the prescribed eligibility criteria and whose rank in the merit list is within  

the number of seats available for admission, can be turned down, by saying  

that he should have secured some higher marks based on the marks secured  

by some other category of students.  A factor which is neither known nor  

ascertained at the time of declaring the admission programme cannot be used  

to  disentitle  a  candidate  to  admission,  who  is  otherwise  entitled  for  

admission. If the total number of seats in a course is 154 and the number of  

seats reserved for OBCs is 42, all the seats should be filled by OBC students  

in the order of merit from the merit list of OBC candidates possessing the  

minimum  eligibility  marks  prescribed  for  admission.  (subject  to  any  

38

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

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

permissible.

Alternative contention  

34. The appellant also urged that there is a marked distinction between  

scheduled  castes  and  scheduled  tribes  who  have  faced  historical  

discrimination  and  social  handicap  apart  from  being  socially  and  

educationally  backward and the  Other  Backward Classes  who were  only  

socially  and  educationally  not  forward,  but  did  not  suffer  from  such  

historical discrimination and social handicap [vide ground ‘G’ of the special  

leave  petition].  The  appellant  contended  all  benefits  associated  with  

reservations  for  SCs/STs  need  not,  and  in  fact,  cannot,  be  extended  to  

reservations  for  OBCs.  Expanding  the  said  submission,  the  appellant  

contended that the principle that when candidates belonging to a reserved  

category get selected in the open competition field on the basis of their own  

merit,  they will  not be counted against  the reservation quota, but will  be  

treated as open competition candidates, will apply only to SCs/STs and not  

to  the OBCs.  In other  words,  his  submission is  that  all  OBC candidates  

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

39

27% reservation for OBCs including those OBC candidates who get selected  

on their own merit without the benefit of reservation.  

35. The appellants relied upon the decision of three Judge Bench of this  

court in Chattar Singh vs. State of Rajasthan [1996 (11) SCC 742] wherein  

this court held that by a process of interpretation, OBCs cannot be treated or  

declared to be similar to SCs/STs. This court also held that Scheduled Castes  

and Scheduled Tribes on one hand and the OBCs on the other are to be  

treated  as  distinct  classes  for  the  purpose  of  reservation.  This  Court  

observed:

“Though OBCs are socially and economically not forward, they do not  suffer  the  same  social  handicaps  inflicted  upon  Scheduled  Castes  and  Scheduled Tribes. ….. The object of reservation for the Scheduled Castes  and Scheduled Tribes is to bring them into the mainstream of national life,  while  the  object  in  respect  of  the  backward  classes  is  to  remove  their  social  and  educational  handicaps……The  Founding  Fathers  of  the  Constitution, having been alive to the dissimilarities of the socio-economic  and educational conditions of the Scheduled Castes and Scheduled Tribes  and other segments of the society have given them separate treatment in  the  Constitution.  The  Constitution  has  not  expressly  provided  such  benefits to the OBCs…”

The  appellant  also  relied  upon  the  following  observations  of  one  of  us  

(Raveendran, J.) at para 653 of Ashoka Kumar Thakur (supra) :

“I agree with the decision of the learned Chief Justice that reservation of  27% for other backward classes is not illegal. I would however leave open  the question whether members belonging to other backward classes who  

40

get selected in the open competition field on the basis of their own merit  should  be  counted  against  the  27% quota  reserved for  other  backward  classes under an enactment  enabled by Article 15(5) of the Constitution  for consideration in an appropriate case.”  

The  appellant  therefore  contended  that  unlike  in  the  case  of  Scheduled  

Castes and Scheduled Tribes, the OBC candidates who get selected in the  

open competition field on the basis of their own merit, should be counted  

against the 27% OBC quota under an enactment enabled by section 15(5) of  

the Constitution.  

36. The  respondents  on  the  other  hand  contended  that  the  following  

observations in Indra Sawhney vs. Union of India [1992 Supp. (3) SCC 217]  

were intended to apply not only to Scheduled Castes and Scheduled Tribes,  

but also to OBCs : -

“811. In  this  connection  it  is  well  to  remember  that  the  reservations  under Article 16(4) do not operate like a communal reservation. It may  well happen that some members belonging to, say, Scheduled Castes get  selected in the open competition field on the basis of their own merit; they  will not be counted against the quota reserved for Scheduled Castes; they  will be treated as open competition candidates.”  

The  respondents  also  relied  upon  the  following  observations  of  a  

Constitution Bench in  R.K. Sabharwal vs. State of Punjab [1995 (2) SCC  

745] :

41

“When the State Government after doing the necessary exercise makes the  reservation and provides the extent of percentage of posts to be reserved  for the said backward class then the percentage has to be followed strictly.  The prescribed percentage cannot be varied or charged simply because   some  of  the  members  of  the  backward  class  have  already  been   appointed/promoted against  the general  seats. As mentioned above the  roster point which is reserved for a backward class has to be filled by way  of appointment/promotion  of the member of the said class.  No general  category candidate can be appointed against a slot in the roster which is  reserved for  the backward  class.  The fact  that  considerable  number of   members  of  a  backward  class  have  been  appointed/promoted  against   general seats in the State Services may be a relevant factor for the State   Government to review the question of continuing Reservation for the said   class but so long as the instructions/Rules providing certain percentage of   reservations for the backward classes are operative the same have to be   followed.  Despite  any number of  appointees/promotes  belonging to  the   backward classes against the general category posts the given percentage   has to be provided in addition.”

(emphasis supplied)

37. The appellants’ counsel replied by contending that the observations in  

Indra Sawhney and R.K.Sabharwal will not help the contention of the OBC  

candidates.  According to  him,  para 811 of  Indra Sawhney refers  only to  

Scheduled Castes and therefore extendable to Scheduled Tribes but not to  

OBCs. He submitted that the observations in Sabharwal did not apply to an  

enactment enabled by Article 15(5). He also pointed out that the CEI Act  

merely provides a reservation of 27% seats for OBCs. but is  silent  as to  

whether those OBCs. who get selected in the open competition field on the  

basis of their own merit, should be counted against the quota reserved for  

OBCs. or not. It was submitted that the principles evolved with reference to  

SCs  and  STs  or  reservations  in  employment,  cannot  be  applied  to  

42

reservations under section 3 of the CEI Act enabled by Article 15(5). A plain  

reading  of  this  provision,  it  is  submitted,  would  mean  that  all  persons  

belonging to OBCs admitted to the institution shall be counted against 27%.

38. The issue before the High Court was with reference to the meaning of  

the words cut-off marks. The submissions in regard to the question whether  

OBC candidates who are selected on the basis of their own merit without the  

benefit of reservation, should be counted towards 27% reservation, was not  

the subject matter of the writ petition from which this appeal arises. Further,  

this issue was not directly raised, but was referred only in an indirect manner  

in the pleadings before this Court and Union of India had no occasion to deal  

with this larger issue. We therefore do not propose to decide the alternative  

contention which has wide ramifications except to note that the appellant has  

raised  an  important  issue  which  merits  serious  consideration  in  an  

appropriate case.

Conclusions  

39. The words ‘cut off marks’ has been used thrice in the second para of  

the order dated 14.10.2008 containing the operative direction. It is used in  

the first sentence of the para while posing the question for decision, that is  

43

‘what should be the  extent  of cut off  marks for  admission of students  of  

OBCs in CEIs’. It is used in the second sentence of the para while giving the  

answer to the question posed, that is “we make it clear that the maximum cut   

off marks for OBCs be 10% below  the cut off marks of general category   

candidates.  The  words  ‘cut  off  marks’  occurring  in  three  places  in  the  

second para of the order dated 14.10.2008 has three distinct and different  

meanings :         

(i) the use of the words,  ‘extent of cut off marks’ in the first sentence  

refers to the ‘minimum eligibility marks’ (or to the ‘minimum qualifying  

marks’ if there is entrance examination), for admission of OBC candidates.  

(ii) The use of the words, “maximum cut-off marks for OBCs” in the first  

part of the second sentence refers to the percentage of marks by which the  

eligibility/qualifying  marks  could  be  lowered  from  the  minimum  

eligibility/qualifying marks prescribed for general category students. In other  

words, it refers to the difference between the minimum eligibility/qualifying  

marks  for  general  category and minimum eligibility/qualifying marks  for  

OBCs and directs that such difference should not be more than 10% of the  

minimum  eligibility/qualifying  marks  prescribed  for  general  category  

candidates.  

(iii) The use of the words, “cut off marks of general category candidates”  

in the latter part of the second sentence, refers to the minimum eligibility  

marks  (or  to  the  minimum  qualifying  marks  if  there  is  an  entrance  

examination) prescribed for general category candidates.  

44

The use of the words ‘cut-off-marks’ in none of the three places in para 2 of  

the order dated 14.10.2008, refers to the marks secured by the last candidate  

to be admitted in general category or in any particular category, or to the  

minimum  marks  to  be  possessed  by  OBC  candidates,  determined  with  

reference to the marks secured by the last candidate to be admitted under  

general category.   

40. The order  dated  14.10.2008 means  that  where  minimum eligibility  

marks in the qualifying examinations are prescribed for admission, say as  

50% for  general  category  candidates,  the  minimum  eligibility  marks  for  

OBCs should not be less than 45% (that is 50 less 10% of 50). The minimum  

eligibility marks for OBCs can be fixed at any number between 45 and 50, at  

the discretion of the Institution. Or, where the candidates are required to take  

an  entrance  examination  and  if  the  qualifying  marks  in  the  entrance  

examination is fixed as 40% for general category candidates, the qualifying  

marks for OBC candidates should not be less than 36% (that 40 less 10%  

of 40).  

41. We  therefore,  dispose  of  this  appeal,  affirming  the  decision  dated  

7.9.2010  of  the  learned  Single  Judge  of  the  High  Court,  subject  to  the  

clarifications/observations above, and subject to the following conditions :

45

(i) In regard to the admissions for 2011-2012, if any Central Educational  

Institution  has  already  determined  the  ‘cut-off  marks’  for  OBCs  with  

reference to the marks secured by the last candidate in the general category,  

and  has  converted  the  unfilled  OBC seats  to  general  category  seats  and  

allotted the seats to general category candidates, such admissions shall not  

be  disturbed.  But  where  the  process  of  conversion  and  allotment  is  not  

completed, the OBC seats shall be filled by OBC candidates.  

(ii) If in any Central Educational Institution, the OBC reservation seats  

remain vacant, such institutions shall fill the said seats with OBC students.  

Only  if  OBC  candidates  possessing  the  minimum  eligibility/qualifying  

marks  are  not  available  in  the  OBC  merit  list,  the  OBC  seats  shall  be  

converted into general category seats.  

(iii) If the last date for admissions has expired, the last date for admissions  

shall be extended till 31.8.2011 as a special case, to enable admissions to the  

vacant OBC seats.  

        ___________________J.                     (R. V. Raveendran)

New Delhi; ___________________J. August  18, 2011.       (A. K. Patnaik)

46