Clearing the mist

The Supreme Court's interpretation of its own order helps prevent Central educational institutions from de-reserving unfilled OBC seats.

ON August 18, a Supreme Court Bench comprising Justice R.V. Raveendran and Justice A.K. Patnaik settled a key question relating to the implementation of the 27 per cent reservation for Other Backward Classes (OBCs) in Central educational institutions in the case P.V. Indiresan vs Union of India.

After the court's five-judge Constitution Bench upheld the reservation for OBCs in Central educational institutions on April 10, 2008, in the Mandal II case, those opposed to the reservation did not quite reconcile themselves to the situation and succeeded in creating confusion over certain terms used in that judgment. One such confusion was over the meaning of the terms cut-off marks and eligibility/qualifying marks. The confusion reigned supreme for nearly two years, and some institutions took advantage of this by keeping OBC seats vacant on the grounds that there were not enough eligible OBC candidates and converting them into general seats later.

In its reasoned judgment, the Raveendran-Patnaik Bench interpreted the meaning of these terms in such a way that the institutions are able to fill the seats reserved for OBCs.

Indeed, the Constitution Bench had clarified its April 10, 2008, judgment on October 14 the same year by suggesting that the maximum cut-off marks for OBCs be 10 per cent below the cut-off marks of general-category candidates. But that order was so brief that it had given room for misinterpretation by institutions which sought to circumvent the judgment.

It may help to clarify the ordinary understanding of these terms, to begin with. Eligibility for admission refers to the prerequisite of the last qualifying examination such as school leaving examination, graduation examination, and so on. For example, the stipulation that for admission to the M.A. course, the applicant should have secured a minimum of 50 per cent marks in the B.A. course.

Qualifying marks refer to the minimum score in the entrance examination decided in advance by the university, which it deems necessary to preserve academic standards. For example, an institution may lay down that for admission, a candidate possessing eligibility should secure a minimum of 30 per cent marks in the entrance examination.

Cut-off marks for the merit list are decided on the basis of the number of seats available in each programme/division. A list of all candidates having obtained equal to or above the qualifying marks is prepared. The marks secured by the candidate allotted/admitted to the last of the general-category seats become the cut-off marks for the general category.

The JNU case

Thus Jawaharlal Nehru University (JNU), New Delhi, interpreted the order to mean that only those OBC candidates who secured marks within the 10 per cent band below the marks secured by the last candidate admitted in the general category were eligible for admission, and all the OBC seats, unfilled as a result, could be transferred to the general category. That is, if the last candidate admitted under general category had secured 80 per cent marks, and the lowering of minimum marks was 10 per cent of 80 for OBCs, then those OBC candidates who secured marks in the bandwidth of 79 to 72 (that is, 80 less 10 per cent of it) would alone be entitled to claim admission. This would 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 the qualifying marks of OBC candidates for admission would depend upon the marks secured by the last candidate admitted under the general category.

The OBC candidates, who were aggrieved by this interpretation, argued that the minimum eligibility marks (or minimum qualifying marks if there is an entrance examination) for the general category could be lowered or reduced by not more than 10 per cent to prescribe the minimum eligibility marks for OBCs. That is, if 50 per cent was the minimum eligibility marks for admission to general-category seats, the cut-off marks for OBCs being 10 per cent below that of general-category candidates, the minimum eligibility marks for OBC could not be less than 45 per cent (that is 50 per cent minus 10 per cent of 50 per cent).

The OBC candidates had no grievance with regard to the determination of minimum eligibility/qualifying marks. Thus if the minimum eligibility marks for general category was fixed as 60 for English or 70 for journalism, they had no grievance if the same was fixed at 54 marks for English and 63 for journalism with regard to OBC candidates.

The OBC candidates also had no grievance if they were required to pass an entrance examination and were required to secure the minimum qualifying marks in the entrance examination. But they found it unacceptable that their admission could be linked to an uncertain and fluctuating benchmark, depending upon the quality of the last student admitted under the general category. They argued that the method defeated the purpose of reservation of 27 per cent seats for OBCs and denied the just and legitimate entitlement of OBCs for admission. They pointed out that the adoption of such a procedure in 2008-09 and 2009-10 had resulted in a large number of seats meant for OBCs being transferred to general-category candidates.

Agreeing with the contention of the OBC candidates, the Raveendran-Patnaik Bench held that the procedure adopted by JNU was arbitrary and discriminatory. The Bench made it clear that the minimum eligibility marks for admission to a course of study should be declared before the admission programme for an academic year is commenced. The cut-off procedure followed by JNU, the Bench said, had the effect of rewriting the eligibility criteria after the applications were received from eligible candidates. If the minimum eligibility prescribed for admission to an institution was 50 per cent and a candidate had secured 50 per cent, he could not be denied admission if a seat was available, the Bench held. No candidate who fulfilled the prescribed eligibility criteria and whose rank in the merit list was within the number of seats available for admission could be turned down on the grounds that he should have secured higher marks based on the marks secured by some other category of students, the Bench clarified.

It added that a factor that was neither known nor ascertained at the time of declaring the admission programme could not be used to disentitle a candidate from admission, who was otherwise entitled for admission.

Explaining further, the Bench said if the total number of seats in a course was 154 and the number of seats reserved for OBCs was 42, all the OBC 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 requirement for entrance examination. When an eligible OBC candidate was available, converting an OBC seat to a general category one was not permissible, the Bench said categorically.

The appellants, in this case, had argued, in a last-ditch attempt to deny benefits to OBC candidates, that all OBC candidates selected to a course of study should be counted towards the 27 per cent reservation for OBCs, including those OBC candidates who got selected without the benefit of reservation. The Bench, however, refused to consider this plea, suggesting that it was not the subject matter of the writ petition before the Delhi High Court from which this appeal arose and that the appellants had raised it only in an indirect manner in their pleadings.

The judgment sadly takes only prospective effect, and the injustice caused to the eligible OBC candidates who were denied admission despite the availability of OBC seats cannot be undone.