Aarju Aalam v. University of Delhi & Ors.

(xi) the petitioner, on enquiry was informed that only one OBC candidate qualified; and,

(xii) the action of the respondent University of not admitting the petitioner to the OBC seats in the said Programme is bad.

4. Neither any of the circulars of the respondent University filed along with the writ petition nor the Bulletin of Information of the East Asian Studies prescribed any pass marks or the minimum eligibility marks in the entrance test. However the respondent University in its reply dated 22nd July, 2015 to the representation of the petitioner preceding the petition stated that the cut-off marks for the General Category were 54 and were successively lowered for the OBC Category till 50 and since only one OBC candidate qualified, the balance seats reserved for the OBC Category were transferred to the General Category and admissions thereto had already been made.

5. The petition came up first on 13th August, 2015 when it was enquired from the counsel for the respondent University, under which Rule, without prescribing any minimum eligibility marks in the entrance test, could the respondent University on the basis of the cut-off marks of the last student admitted in the General Category determine the minimum eligibility in the entrance test for the OBC candidates.

6. The counsel for the respondent University in this regard on 18th August, 2015 handed over in Court the minutes of the meeting of the Admission Committee which took place on 13th July, 2015 to decide the cutoff marks for the entrance test for admission inter alia to M.A. (East Asian Studies) and prescribing the cut-off marks of 50%. On further enquiry from the counsel for the respondent University, why the cut-off marks in the entrance test were not prescribed in the Prospectus, the counsel stated that the cut-off marks are decided depending upon result of the entrance test and stated that since the cut-off marks prescribed in the meeting held on 13th July, 2015 were 50%, the cut-off marks applicable to OBCs would be 45%. The said stand of the respondent University was clearly contradictory to the stand in the letter dated 22nd July, 2015 supra where it was stated that the cut-off marks for the General Category were 54% and to enable the OBC candidates to qualify, the cut-off marks were lowered successively to 53, 52 and then finally to 50. It was in these circumstances that the counter affidavit of the respondent University was called for.

7. The respondent University in its counter affidavit has stated that:-

Admission Committee for each course and which is the supreme body to take all decisions with respect to raising the minimum qualifications for eligibility for admission or a prescribed percentage of marks in the qualifying examination;

8. Though the petitioner has filed a rejoinder to the aforesaid counter affidavit but need is not felt to advert thereto.

9. I am sad to note that inspite of this Court in Apurva Vs. Union of India 172(2010) DLT 326 having deprecated the practice as followed by the respondent University in the matter of admission to M.A. (East Asian Studies) Programme (and possibly in other programmes as well) in the Year 2015-2016 the University continues to follow the same. In Apurva the challenge was to the practice prevalent in Jawaharlal Nehru University (JNU) of admitting only those OBC candidates who had secured marks within the 10% bandwidth of the last candidate admitted in the General (Unreserved) Category. It was the contention of JNU in that case that the expression ‘cut off marks’ used in Ashoka Kumar Thakur Vs. Union of India (2008) 6 SCC 1 is not equivalent to ‘eligibility’; the expression ‘cutoff marks’ refers to marks secured by the last candidate admitted in the General (Unreserved) category and only such candidates in the OBC category would be entitled to admission who secure marks maximum 10% below the cut-off in the General (Unreserved) category. Negativing the said challenging, it was held:-

India 1992 Supp (3) SCC 217 also held in para 836 that the very idea of reservation implies selection of a less meritorious person. It was held that this much cost has to be paid if the Constitutional promise of social justice is to be redeemed. It is the lack of opportunity which has led to social backwardness and reservation is one of the Constitutionally recognized methods of overcoming this type of backwardness.

Preeti Srivastava Vs. State of M.P. (1999) 7 SCC 120 while dealing with the reservation for Post Graduate courses in Medicine, overruled the earlier judgment in Post Graduate Institute of Medical Education & Research Vs. K.L. Narasimhan (1997) 6 SCC 283 and in para 115 (per Majmudar J., partly dissenting) reiterated: “It is axiomatic that the reserved category candidates competing for being selected to the seats reserved for them………… have to compete inter se with their own colleagues from the same categories and not necessarily have to compete with general category candidates who form an entirely different class. Once such classification is countenanced, as a necessary concomitant, separate provision for the reserved category of candidates forming a separate class for which reservation of seats …………. is permitted cannot be faulted and hence the dilution of minimum qualifying marks for the reserved category of candidates cannot by itself be treated to be unauthorised or illegal from any view point. Otherwise the very purpose of reserving seats for such class of candidates………. would be denuded of its real content and the purpose of reservation would fail. The seats reserved for such category of persons would go unfilled and will swell the admission of the general category of candidates for whom these seats are not at all meant to be made available, once the scheme of reservation of seats under Article 15(4) is held applicable.”

Bench in Dr. Preeti Srivastava (supra) also was relating to prescribing “different minimum qualifying marks” and not “cut-off marks”. The Supreme Court in para 39 of the judgment explains that “eligibility” connotes the “minimum criteria for selection that may be laid down by the University Act or any Central statute”. The Constitution Bench directly concerned with the issue and while holding that there cannot be a wide disparity and dilution of standards, approved only the difference in minimum qualifying marks and not cut-off marks. Infact in “cut-off” there can be no “minimum”.

10% bandwidth of the last candidate admitted in the General (Unreserved) category amounts to requiring the OBC candidates to compete with the General (Unreserved) category candidates and which is contrary to the concept of reservation.

(Unreserved) category students who as aforesaid had protested against the reservation, can defeat in toto the reservation; by securing very high marks they can ensure that the seats added in the Educational Institutions under Section 5(1) of the Act fall to the General (Unreserved) category students and not to the benefit of OBCs.

I. The aforesaid in my view would defeat the very purpose of the Constitutional amendment and the Act.

Musharib Firdausi Vs. University of Delhi W.P.(C) No.4378/2010 decided on 11th August, 2010) to consider the effect of the failure of the Institutions to increase the seats under Section 5(1) of the Act. It was the contention of the Institutions in that case that till the seats are so increased, the reservation is not to come into effect. The said contention was negatived. While doing so reference was made to the speech of Martin Luther King Jr., which was applied to the matter in controversy therein and which can be applied with benefit in the present situation also. The cheque of reservation of 27% issued by the legislature to the OBCs in accordance with the Constitution of the country cannot be made to bounce; when the architects of our Republic wrote the magnificent words of the Constitution, they were signing a promissory note to which every Indian was to fall heir. This note was a promise for advancement of socially and educationally backward classes of citizens. India cannot be made to default on this promissory note in so far as its socially and educationally backward citizens are concerned. The sacred obligation of advancement of such classes cannot be allowed to be dishonoured. The cheque of reservation given to these classes by enacting the CEI Act cannot be permitted to be called a bad cheque, a cheque which has come back marked “insufficient funds” or “no admission because you have failed to secure marks 10% lower than the last candidate admitted in the General category”. The socially and educationally backward classes in need of advancement who come to encash the cheque of reservation cannot be returned empty handed – they cannot be told that the great vaults of opportunity of this nation are bankrupt – that they are not entitled to reservation because they are not close to 10% as good as the General (Unreserved) category.

13. Procedure followed by the respondent no.2 JNU and the stand of the respondent no.1 UOI regarding reservation for OBCs is thus declared to be bad. It is declared that the respondent no.1 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 respondent University, by following the practice of determining the minimum cut-off marks in the entrance test after the declaration of the result of the entrance test and by taking into consideration ‘the overall result (of) all the candidates who appeared in the entrance examination’ and the average number of marks secured by the overall candidates, as pleaded by it in its counter affidavit, is clearly making the OBC candidates compete with the General Category candidates and which as held above is not permissible. I repeat that the selection to the reserved seats is independent and not to be dependent upon the merit of the candidates in the General (Unreserved) Category.

11. My judgment in Apurva supra was considered by the Supreme Court in P.V. Indiresan Vs. Union of India (2011) 8 SCC 441 generally referred as P.V. Indiresan (2). The following paragraphs thereof are relevant:-

43. The appellant canvasses the continuance of the procedure adopted by JNU during 2008-2009 and 2009-

2010. What in effect was that procedure? During those years, JNU would fix the minimum eligibility marks as say 40% when the admission programme is announced. JNU would apply it only 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 up to 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.

44. 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 aid 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 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.

45. No candidate who fulfills 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 requirement for entrance examination). When an eligible OBC candidate is available, converting an OBC reservation seat to general category is not permissible.

52. The words, “cut-off marks” have been used thrice in the second paragraph of the order dated 14-10-2008 containing the operative direction. They are used in the first sentence of the paragraph while posing the question for decision, that is, “what should be the extent of cut-off marks for admission of students of OBCs in CEIs”. They are used in the second sentence of the paragraph 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 paragraph of the order dated 14-10-2008 have 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

(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. 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.”

12. It is for this reason that I have expressed sadness at the conduct of the University of Delhi of notwithstanding the pronouncements aforesaid of the Courts, continuing to act in violation thereof. In fact the attention of the respondent University also was drawn to the said aspect by a Division Bench of this Court of which the undersigned was a member in Salma Khan Vs. University of Delhi MANU/DE/4276/2011, para 4 whereof is as under:-

Notwithstanding same, the respondent University has not taken corrective measures.

13. I call upon the respondent University of Delhi to introspect in the matter and to devise procedures to ensure that in future it does not continue with the practices / procedures which have been held by the Courts to be bad and particularly in matters to which the respondent University is a party.

14. Though I thus hold the procedure of admission followed by the respondent University in relation to admission to OBC seats in MA (East Asian Studies) to be bad but that would still not entitle the petitioner who secured only 34 % marks in the entrance test to admission. There is no merit in the plea of the petitioner that all OBC seats have to be filled up with OBC candidates irrespective of the minimum eligibility prescribed and the marks secured by them. Only such of the OBC seats have to be filled up which are secured by the OBC candidates meeting the requisite eligibility marks and the balance have to be transferred to the General Category.

14. With the aforesaid directions, the petition is disposed of. No costs.

RAJIV SAHAI ENDLAW, J OCTOBER 14, 2015/‘pp’..