# P.V. INDIRESAN v. UNION OF INDIA & ORS

- **Citation:** [2011] 10 S.C.R. 384
- **Court:** Supreme Court of India
- **Decided:** 2011-08-18
- **Case number:** Civil Appeal No. 7084 of 2011
- **Bench:** R.V. Raveendran, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-v-indiresan-v-union-of-india-ors-27124
- **Pages:** 52

## Headnote

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 'cutoff-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.
G
H
Words and Phrases:
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.
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
F
of the application holding that the maximum cut-off marks
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 200910 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 nonavailability 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

## Text

_Characters 0–39,827 of 97,006. This is a partial read: ask again with offset=39827 for what follows._

A
B
[2011] 10 S.C.R. 384
P.V. INDIRESAN
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 7084 of 2011)
AUGUST 18, 2011
[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 'cutoff-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.
G
H
Words and Phrases:
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.
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
F
of the application holding that the maximum cut-off marks
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 200910 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 nonavailability 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
0 contrary to the clarificatory order dated 14.10.2008. The
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.
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
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
E
F
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
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
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]
E
F
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'
0 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. 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:
2008 (4) SCR 1
Clarified
1988 (2) Suppl. SCR 385 Referred to
1990 (3) Suppl. SCR 184 Referred to
1993 Supp (1) SCC 594 Referred to
1993 Supp. (2) SCC 64
Referred to
2008 (5) SCR 1066
Referred to
Para 21, 26,
27, 28, 30, 31, 32
Para 24.1
Para 24.2
Para 24.3
Para 24.4
Para 24.5
F
G
A
B
c
396
SUPREME COURT REPORTS
[2011] 10 S.C.R.
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
1995 (2) SCR 35
Referred to
Para 36
2009 (7) sec 300
Clarified
Para 39, 40
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No.
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.
F
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. 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
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
Court on 10.4.2008 reported in Ashoka Kumar Thakur vs. Union
B
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,
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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
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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.
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
F
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
A
B
398 . SUPREME COURT REPORTS
[2011] 10 S.C.R.
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 :
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(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 cutoff 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) :
F
G
H
"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.
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.
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
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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:
"Eligibility for applying for admission refers to the prerequisite 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].
G
H
A
B
c
400
SUPREME COURT REPORTS
[2011] 10 S.C.R.
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
D procedure followed in 2008-09 and 2009-10 should be
continued, the following two proposals were placed before the
E
F
G
H
Deans Committee:
·
(i) The current policy and procedure to consider the cutoff 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 Tha~ur 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%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
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. 201011 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
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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
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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 nonG
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:
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F
G
Programme
General Category OBC
SC/ST/PH
categories
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
Year Part Time
(COP & Advanced
Diploma in Mass
Media in Urdu)
The Committee further resolved that the above
recommendations will be implemented only for this year,
i.e. 2010-2011 and admission policy will be reviewed after
the current admission process is over and statistics are
available for implementation from the next year i.e. 20112012."
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
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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
writ petitioner before the High Court) contended that the CEI
8
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.