Andhra Pradesh High Court - Amravati

Smt Pilla Suneetha vs The Andhra Pradesh Public Service ... on 8 February, 2024

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                                                   W.A.No.249 of 2021




        THE HON'BLE SRI JUSTICE G.NARENDAR
                         AND
       THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

                  Writ Appeal No.249 of 2021

JUDGMENT:

(per Hon‟ble Sri Justice G.Narendar)

Heard Sri J.Sudheer, learned counsel appearing on

behalf of Sri S.Srinivasa Rao, learned counsel for the

appellant; and Sri Nemali Pramod, learned Standing Counsel

for the A.P.P.S.C., appearing for the 1st respondent; and

learned Government Pleader for G.A.D., appearing for the 2 nd

respondent.

2. The contesting respondent is the Andhra Pradesh

Public Service Commission being the selecting authority and

the 2nd respondent-State is the appointing authority. The

appellant is the petitioner and she is before this Court in this

intra-Court Appeal being aggrieved by the order passed by

the learned Single Judge, whereby the learned Single Judge

was pleased to dismiss the Writ Petition.

3. The parties are referred to by their nomenclature before

the learned Single Judge for the sake of convenience and

brevity.

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4. The brief and admitted facts that are necessary for the

disposal of the Writ Appeal are as under:

5. The 1st respondent issued notification inviting

applications for the post of Assistant Commissioner of

Endowments in the A.P. Charitable and Hindu Religious

Institutions and Endowments Service. The notification

bearing No.15/2018 came to be published on 21.12.2018

and pursuant to the notification, the petitioner submitted her

application for the said post. The recruitment proposal was

issued for the purpose of filling up vacancies in five posts

both multi Zone-I and Zone-II and out of the said five posts,

two posts were reserved for women in the open category, with

one post for each Zone.

6. The petitioner is a Law Graduate and hails from the

BC-D category. It is pertinent to note that no post amongst

the five was reserved in favour of the aforesaid category or

women hailing from the said category.

7. The notification stipulated the qualifying marks for

Scheduled Castes and Scheduled Tribes and Physically

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Handicapped at 30%; for the B.Cs. at 35% and for the O.Cs.

at 40%. For a better understanding of the qualifying marks,

it is imperative and necessary and pertinent to look into the

relevant clause published under the notification, as the entire

controversy revolves on the interpretation placed on the same

by the respondents. The same is found at the bottom of

page.No.2 of the notification, which reads as under:

"MINIMUM QUALIFYING MARKS TO BE SECURED:

As per sub-rule (4) of Rule 6 of the Andhra Pradesh State Judicial Service Rules, 2007, the written examination is for 80 marks and the viva voce is for 20 marks. The minimum qualifying marks in the written examination for OC 40%, BC 35% and ST category is 30%. There are no minimum marks for the viva voce."

8. Be that as it may, it is also necessary to go into the

selection procedure for better appreciation of the case of the

petitioner. The selection involved answering three papers by

way of objective examination and 150 marks were allotted for

each paper and 50 marks for the interview. After the

completion of the written examination, the petitioner secured

158 marks out of the total, and in terms of percentage, she

scored 37% i.e., more than the qualifying marks stipulated

under the said condition of the notification.

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9. It appears that the 1st respondent taking note of the fact

that no posts were reserved for BC-D group, from which the

petitioner hails, proceeded to interpret and hold that the

petitioner, who was competing for the open category post,

had failed to secure 40% qualifying marks, as stipulated

above, and hence, omitted to call the petitioner for interview

and thereby has not permitted her to further participate in

the selection process i.e., the viva-voce and resulting in the

petitioner approaching this Court.

10. It is the case of the petitioner that the denial of

invitation to participate in the selection process or in other

words the deliberate omission of the 1st respondent to permit

the petitioner to participate in the selection process, is

arbitrary and illegal; that the denial and that too without a

proper order of rejection, is highly capricious and whimsical;

that the same is only to enable the 1st respondent to

manipulate the selection process and infuse candidates of its

choice; that the omission to invite the petitioner to participate

in the selection process, despite her having secured the

highest marks amongst the candidates aspiring to the O.C.

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category posts, is per se illegal; that the stand adopted by the

1st respondent that too without either issuing a clarification

or amendment to the notification, tantamounts to, changing

the rules of the game after the game has began and on that

count also, the action to omit the petitioner from the zone of

consideration is rendered illegal and highly unsustainable.

11. It is nextly contended that selection to the post in the

Open Category is purely based on the merit of total marks

secured by the candidate after completion of the selection

process and the only embargo placed on a candidate to

participate in the selection process is that a candidate is

required to secure the minimum marks (qualifying marks)

and once the candidate secures the qualifying marks, then it

is not open to the 1st respondent to undertake any measures

and thereby prevent the further participation of a candidate

in the selection process. That the action of the 1st respondent

is clearly in violation of the provisions of Articles 14 and 16 of

the Constitution of India.

12. Per contra, the 1st respondent has opposed the Writ

Petition and reiterates the grounds urged before the Ld.

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Single Judge. It is the case of the 1st respondent rather both

the official respondents, that admittedly no post has been

earmarked or reserved for candidates hailing from the BC-D

category and hence, the claim of the petitioner can only be

against the posts to the Open Category (O.C.); that though

the petitioner hails from BC-D category, but would be

required to secure the minimum marks stipulated for the

candidates of Open Category in order to be considered or be

permitted to participate in the further selection process i.e.,

40% and on the other hand, the petitioner having secured

only 37% marks is disentitled to take further part in the

selection process and, hence, the 1st respondent was justified

in not including the name of the petitioner in the merit list.

13. In a sense, it is contended that for a candidate to

qualify for being considered for selection or be included in the

merit list, and thereby to be entitled to participate in the

further selection process, even a candidate hailing from S.C.

or S.T. or B.C. category, would be required to obtain the

marks stipulated for candidates hailing from the Open

Category. Consequently, candidates from any other reserved

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category, who secure the qualifying marks stipulated under

the notification, would not be entitled to compete or be

considered for selection against the "Open Category" posts, in

the event they do not secure the qualifying marks stipulated

for candidates from the open category.

14. We have given our anxious consideration to the various

contentions and the case canvassed by the respective

counsels.

15. We have perused the material papers and considered

the same in detail and the facts recorded hereinabove. The

bone of contention is apparently the interpretation placed on

the para stipulating minimum qualifying marks, which has

been reproduced supra for the sake of convenience, and the

entire controversy even before the learned Single Judge

relates to this aspect.

16. There is no dispute with regard to the facts recorded

hereinabove either with regard to the participation in the

selection process or with regard to the marks secured by the

candidate i.e., the appellant herein. As the determination of

the issue involves an interpretational exercise, this Court is

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of the opinion that it would be imperative to analyse the

concept of „qualifying marks‟ in juxtaposition with the

concept of „cut off marks‟ and „eligibility criteria‟, which

feature predominantly in service jurisprudence, more so, in

relation to appointment to a civil post. In this direction, this

Court would do well to analyse the illustration of law drawn

by the Hon‟ble Apex Court in P.V.Indiresan (2) Vs. Union of

India and others1, wherein the Hon‟ble Apex Court has

conducted a detailed examination of the concepts of

eligibility/qualifying marks, cut off marks, minimum

eligibility marks, etc. In this regard, this Court places

reliance on the exposition of law and the relevant paragraphs

are culled out and reproduced herein below for the sake of

convenience:

"17. 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 postgraduate programme) as a condition precedent for seeking admission to the higher course of study to which the appellant seeks

(2011) 8 SCC 441

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admission. Similarly, there is no dispute that qualifying marks refers to the minimum marks required to be secured in the special entrance examination, that may be held to determine the inter se merit of candidates from different universities/sources and to ensure that candidates to be admitted possess the minimum academic standards required or expected for a special course of study; and it is only those securing the 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.) (underlining by this Court)

20. 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 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

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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".

(underlining by this Court)

21. Reader's Digest Word Power Dictionary (1996 Edn., p.

195) gives the following meanings and illustrative uses with reference to such meanings, for the word "cut-off":

"Cut off *to remove Cut off the thorns on the stem otherwise you will prick 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."

22. Collins Dictionary of the English Language (1979 Edn., p. 369) gives fourteen meanings to the word "cut-off":

"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.

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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 US : 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)."

32. 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. We may refer to some of the

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cases where this Court has used the term "cut-off marks" to refer to the eligibility marks or qualifying marks.

(underlining by this Court)

32.1. In Jeevak Almast (Dr.) v. Union of India [(1988) 4 SCC 27] this Court observed that "the scheme contained the provision that the cut-off base for selection for admission shall be 50% 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.

32.2. In Ajay Kumar Agrawal v. State of U.P. [(1991) 1 SCC 636] this Court while referring to the minimum marks required for being eligible for admission to postgraduate course described the minimum qualifying marks in the qualifying examination, as "cut-off base" marks. We extract below the relevant portion as follows : (SCC p. 642, para 11)

"11. It is not disputed that in Uttar Pradesh the prevailing practice was a 50% base for allowing postgraduate 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% cut-off base as has been adopted should be sustained."

32.3. In State of U.P. 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:(SCCp. 598, para 5)

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"5. (2) This examination shall have 100% objective type questions. The eligibility criteria for admission to postgraduate courses shall be 50% minimum qualifying marks for candidates of general category and 40% 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 reserved category candidates : (Dr. Anupam Gupta case [1993 Supp (1) SCC 594] , SCC p. 601, para 9)

"9. ... Thus it could be seen that this Court consistently laid down the criteria for conducting entrance examination to the postgraduate 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 postgraduate speciality. Accordingly we uphold the prescription of 50% cut-off marks for general candidates and 40% for SCs and STs together with 1.65% weightage of total marks i.e. 50 marks in total in entrance examination as constitutional and valid."

32.4. In Ombir Singh 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 Agrawal [(1991) 1 SCC 636] and Dr. Anupam Gupta [1993 Supp (1) SCC 594] 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 : (Ombir Singh case [1993 Supp (2) SCC 64] , SCC pp. 66-67, paras 2-4)

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"2. ... 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 postgraduate medical courses, the same are not subject to any challenge ... It may be further mentioned that this Court in Ajay Kumar Agrawal v. State of U.P. [(1991) 1 SCC 636] observed as under : (SCC p. 642, para

11)

„11. It is not disputed that in Uttar Pradesh the prevailing practice was a 50% base for allowing postgraduate 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% cut-off base as has been adopted should be sustained.‟

3. The matter again came up for consideration before this Court and in State of U.P. v. Dr. Anupam Gupta [1993 Supp (1) SCC 594] it was held as under : (SCC p. 601, para 9)

„9. ... Thus it could be seen that this Court consistently laid down the criteria for conducting entrance examination to the postgraduate 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 postgraduate speciality. Accordingly we uphold the prescription of 50% cut-off marks for general candidates and 40% for SCs and STs together with 1.65% weightage of total marks i.e. 50 marks in total in entrance examination as constitutional and valid.‟

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4. Thus, we further hold that any challenge to the above rule laying down minimum percentage of marks for eligibility for admission to postgraduate courses is no longer res integra."

32.5. In Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] 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 : (SCC p. 18, paras 17-18)

"17. ... This Court further notices that Hon'ble Justice Shetty Commission has recommended in its Report that:

„The viva 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 viva voce test shall carry 50 marks and there shall be no cut-off marks in viva voce test.‟ (underlining by this Court).

18. This Court notices that in All India Judges' Assn. (3) v. Union of India [(2002) 4 SCC 247 : 2002 SCC (L&S) 508] subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission were accepted by this Court. It means that prescription of cut-off marks at viva voce test by the

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respondent was not in accordance with the decision of this Court."

32.6. In K. Manjusree v. State of A.P. [(2008) 3 SCC 512 :

(2008) 1 SCC (L&S) 841] this Court used the words "cut-off percentage" to refer to minimum qualifying marks. The relevant portion is extracted below : (SCC p. 517, para 8)

"8. ... 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."

33. 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 : 1994 SCC (L&S) 185 : (1994) 26 ATC 230] 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 : (SCC pp. 76-77, para 9) "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." (underlining by this Court).

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 :

(Parveen Jindal case [1993 Supp (4) SCC 70 : 1994 SCC (L&S) 185 : (1994) 26 ATC 230] , SCC p. 76, para 8)

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"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 now be directed to make selections afresh for all the three wings/branches in the Public Works Department."

42. It should be noted that neither Preeti Srivastava [(1999) 7 SCC 120] , nor Ashoka Kumar Thakur [(2008) 6 SCC 1] nor any other decision of this Court required that the reserved 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. Therefore, the context in which Bhandari, J. concluded that "cut-off marks for OBCs should be set no lower than 10% marks below general category" (vide paras 535 and 629) of Ashoka Kumar Thakur [(2008) 6 SCC 1] , 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 Ashoka Kumar Thakur [(2008) 6 SCC 1] . 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

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10% below the cut-off marks of general category candidates"

in the order dated 14-10-2008 [(2009) 7 SCC 300] 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%. (underlining by this Court).

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 said qualifying examination, which may be more

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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.

(underlining by this Court)

45. 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. (underlining by this Court) 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. (double underlining by this Court). 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

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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 [(2009) 7 SCC 300] 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 [(2009) 7 SCC 300] have three distinct and different meanings:

53. The order dated 14-10-2008 [(2009) 7 SCC 300] 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 is, 40 less 10% of 40).

54. We, therefore, dispose of this appeal, affirming the decision dated 7-9-2010 [Apurva v. Union of India, WP (C) No. 4857 of 2010 order dated 7-9-2010 (Del)] of the learned Single Judge of the High Court, subject to the

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clarifications/observations above, and subject to the following 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 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."

17. On a reading of para 17, it is apparent that the concept

of qualifying marks has been equated with the marks that a

candidate is required to secure when the selection process

involves written examination to entitle the candidate to

progress to the next stage of the selection process and cut off

marks stand apart from the eligibility marks and the

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eligibility marks is equated with a pre-qualification standard

i.e., a merit that the candidate is supposed to possess to even

qualify for the participation or in other words to be permitted

to enter into the race and the distinction between the

eligibility marks and the qualifying marks is that both are

pre-determined and stipulated at the very beginning itself, to

dilate further eligibility marks or minimum marks that a

candidate must have secured for even for his application to

be considered or even to make the application, whereas the

qualifying marks are the minimum marks that the candidate

is supposed to secure in the entrance examination, if such

entrance examination is part of the selection process and

then only, such of those candidates who secure the minimum

qualifying marks would be allowed to progress to the next

stage of the selection process.

18. An illustration in this regard would be one, where a

notification inviting applications, stipulates a minimum

eligibility mark of 55% in the qualifying degree. Then this

stipulation would act as a cut-off mark for making an

application itself i.e., students who have not secured 55% of

marks in the qualifying degree would be ineligible to even

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make an application. In contra distinction, the notification

may also stipulate, as has been done in the instant

notification, the „qualifying mark‟ say 40%. This qualification

mark would relate to the entrance examination to be held by

the selection authority and every aspirant would be required

to secure these marks in the entrance examination, to

migrate or participate in the next round of the selection

process. The cut-off mark acts as an eliminator, whereas the

qualifying mark acts as an enabler. In other words, to put it

simply, the eligibility mark is a pre-eligibility standard and

the qualifying marks is a post-eligibility standard. It is

needless to state that only those who secure the post-

eligibility standard would qualify and progress to be included

in the merit list.

19. In Paras 20, 21 and 22, the Hon‟ble Apex Court has

dilated upon the interpretation of phrases „cut off‟, „eligibility

criteria‟, etc. In Para 32, the Hon‟ble Apex Court has dilated

upon the use of the words „cut off marks‟, „eligibility marks‟ or

„qualifying marks‟ and has proceeded to hold that the

meaning that can be assigned to the phrases, depends upon

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the context in which they are used. In para 32.1, 32.2, 32.3,

32.4, 32.5 and 32.6, the Hon‟ble Apex Court has discussed

various rulings rendered by it on the said point.

20. In para 33, the Hon‟ble Apex Court has elucidated upon

the phrase „threshold marks‟ or „minimum qualifying marks‟.

In para 42 and 43, the Hon‟ble Apex Court has elucidated

about the „cut off marks‟ and it has also drawn an

illustration. The discussion in para 44 and 45 are apt and

negate the contentions advanced by the respondents. In para

52, 53 and 54, the Hon‟ble Apex Court has drawn the

conclusions.

21. This Court places further reliance on the ruling

rendered by the Hon‟ble Apex Court in Diploma Engineers

Sangh Vs. State of Uttar Pradesh and others 2, in particular,

the exposition of the meaning of the word „qualifying

examination‟ is found in para 15 and para 19, which read as

under:

"15. Under the Rules, recruitment to the post of Assistant Engineer is through more than one source. We are not concerned with the source of direct recruitment in this case.

(2007) 13 SCC 300

GN, J. & VN, J.

Rule 5(iv) provides for recruitment by promotion of members of the Subordinate Engineering Services who have shown exceptional merit. Rule 9(ii) provides that no officer shall be promoted to the service under Rule 5(iv) unless he has passed such qualifying examination as the Governor may prescribe, or possesses the technical qualification prescribed in Clause

(i) of that Rule. Admittedly, the diploma-holders working as Junior Engineers do not possess the technical qualification prescribed in Rule 9(i). Therefore, for promotion, they will have to pass the qualifying examination. Earlier, the procedure was that members belonging to the Subordinate Engineering Services who had completed a certain number of years and who were recommended by their superior officers on the ground of exceptional merit were permitted to appear in an examination to qualify for promotion to the post of Assistant Engineers. Those who secured prescribed minimum percentage of marks in such qualifying examinations were promoted to the post of Assistant Engineer.

19. "Qualifying examination" in the context of promotion refers to an examination which when passed, qualifies or makes the candidate eligible for promotion. The purpose of a qualifying examination is not to determine the comparative inter se merit of the candidates. When the minimum prescribed marks are secured in the qualifying examination, it confers eligibility on those who secure the minimum marks in such an examination in the order of seniority. Therefore, when a "qualifying examination" is provided, it presupposes that the questions will be identical and all candidates shall have identical opportunity to answer the same questions and pass such examination to secure eligibility. This can only be by means of a written examination and not an "interview". Therefore, in the absence of any specific provision prescribing

GN, J. & VN, J.

interview as the means of ascertainment of fitness for promotion, "interview" cannot generally be considered to be a qualifying examination nor can it take the place of a qualifying examination. "Qualifying examination" in the circumstances would necessarily refer to a written examination. We, therefore, uphold the decision of the High Court (though for different reasons) that the office order dated 11-2-2003 is contrary to the Rules and interview cannot be the method of ascertaining fitness."

(underlining by this Court)

22. Nextly, this Court places reliance on the observations of

the Hon‟ble Apex Court in University Grants Commission and

another Vs. Neha Anil Bobde (Gadekar)3. The findings in

paras 25 and 26 throw further light on the meaning of the

words „qualifying criteria‟ and „minimum qualifying marks‟.

Paras 25 and 26 read as under:

"25. UGC, in exercise of its powers conferred under clauses

(e) and (g) of Section 26(1) of the UGC Act, issued the UGC (Minimum Qualification of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for Maintenance of Standards of Higher Education) Regulations, 2010. Regulation 3.3.1 of the Regulations specifically states that NET shall remain the minimum eligibility condition for recruitment and for appointment of Assistant Professors in the universities/colleges/institutions. Regulation 4.4.1 stipulates that before fulfilling the other prescribed qualifications, the candidates must have cleared the National

(2013) 10 SCC 519

GN, J. & VN, J.

Eligibility Test conducted by UGC. Therefore, the power of UGC to prescribe, as it thinks fit, the qualifying criteria for maintenance of standards of teaching, examination, etc. cannot be disputed. It is in exercise of the above statutory powers, UGC has issued the notification for holding NET on 24-6-2012.

26. Para 7 of the notification deals with the scheme of the Act which clearly indicates that the candidates are required to obtain minimum marks separately in Paper I, Paper II and Paper III. It also clearly indicates that only such candidates who obtain minimum required marks in each paper will be considered for final preparation of results. The final qualifying criteria for JRF and eligibility for Lectureship shall be decided by UGC before declaration of result. The above clause deals with the following requirements to be followed before the final declaration of the results:

26.1. (i) Candidates to obtain minimum marks separately in Paper I, Paper II and Paper III;

26.2. (ii) Candidates who have satisfied the above criteria only would be subjected to a qualifying criteria before the final preparation of result; (consideration zone)

26.3. (iii) UGC has to fix the final qualifying criteria before the declaration of results.

26.4. The candidates are seeking final declaration of results the moment they have obtained the minimum marks separately in Paper I, Paper II and Paper III, ignoring the other two steps, referred to hereinbefore, and also forgetting the fact that only those who obtain the minimum required marks alone will fall in the consideration zone. All these steps, as we

GN, J. & VN, J.

have referred to above, have been clearly stipulated in the notification issued for NET Examination, 2012."

23. The above clearly brings out the distinction between the

words „eligibility criteria‟ and „minimum qualifying mark‟.

24. A careful reading of the exposition of law by the Hon‟ble

Apex Court would reveal that the phrases „cut off marks‟,

„eligibility criteria‟ and „qualifying marks‟ are distinct and

meaning that can be attached depends upon the context in

which they are used or in other words the meaning is to be

gleaned from the context in which these words are used in

the notification inviting applications.

25. A reading of the stipulation/condition makes it

apparent that no cut-off marks for selection have been

imposed. Neither the above condition nor any other

stipulation in the notification amplify the imposition of a cut-

off mark, nor do we find any pass marks stipulated to

become eligible for selection or in other words to be appointed

to the said post. We also do not find any material in the

notification or the rules, whereby any percentage of marks

has been fixed for a candidate to become eligible for

GN, J. & VN, J.

appointment and a bare reading of the above would reveal

that the marks specified, are the minimum marks, which a

candidate is required to secure to qualify or to be considered

in the next stage of the selection process i.e., viva voce.

26. We deem it so as the language deployed in the

notification is of much relevance as it is no more res integra

that the two, i.e., the qualifying marks or qualifying

standards and eligibility criteria as held by the Hon‟ble Apex

Court are pre-determined marks. That is marks that are

announced prior to the commencement of the selection

process or at the time of issuing notification inviting

applications to the posts. Similarly, it is no more res integra

that cut off marks, as held by the Hon‟ble Apex Court, are the

marks that are settled after completion of the initiation or

entrance examination and after determining the number of

merit candidates and the marks obtained by the candidate

last in the merit list is adopted as the cut off mark.

Thereafter, only such of those candidates whose score

equivalent to the cut off or more than it alone would be

entitled to participate in the final or next stage of the

selection process. It is also permissible that the selection

GN, J. & VN, J.

authority may adopt a cut off as an eligibility criteria also by

stipulating a certain percentage of marks, which the

candidate should have obtained in the degree course fixed as

a qualifying degree and in such an event, the cut off would

then similarly act as a threshold bar to the candidates from

even applying to the post. On the contrary, the cut off marks

i.e. stipulated after the completion of the entrance

examination is a threshold bar to candidates to migrate into

the selection zone. It is also pertinent to note here that the

cut off mark at this stage would not only take into

consideration the number of posts, but would also include in

its workings, the ratio at which the candidates are required to

be permitted to participate in the next stage of the process.

For instance, if there are five posts, and the ratio at which

the candidates should be called for the viva voce or the main

entrance examination is at 1:5. Then 25 candidates would be

required to be called and the marks obtained by the 25th

candidate would act as the cut off mark.

27. From the discussion above, what is apparent is that, be

it an eligibility criteria "cut off mark" or "qualifying mark",

both are the candidate centric and are not attached to the

GN, J. & VN, J.

post. The qualifying marks or the cut off marks only act as a

tool of elimination to eliminate a candidate from participating

in the final stage of selection or from entering the merit list

and neither the cut off marks nor the qualifying marks

enables an appointment to the post. The qualifying marks or

the cut off marks only enables the selection authority to

determine the place of the candidate in the race and does not

determine the actual winner. The candidates, who secure the

qualifying marks or the cut off marks, are only permitted to

move to the next stage of selection i.e. either the main

entrance examination or the viva voce, depending upon the

scheme of the selection process.

28. In the above background, it would be profitable to

revisit the relevant clause published in the notification, dated

21.12.2018, inviting applications to the post of Assistant

Commissioner Endowments. The paragraph would commence

with the heading "minimum qualifying marks to be secured".

Proceeding further, the clause would read that as per sub-

rule (4) of Rule 6 of the Andhra Pradesh State Judicial

Service Rules, 2007, the written examination is for 80 marks

and the viva voce is for 20 marks. The next sentence is

GN, J. & VN, J.

critical for determination of the lis. To quote, it reads as

under: "The minimum qualifying marks in the written

examination for O.C. 40%, B.C. 35% and S.T. category is

30%". Both the heading and the clause use the words

"qualifying marks" only. The word "qualifying" is to be

understood in reference with the context of the examination

held for selection to the notified post. "Qualifying mark" then

would necessarily have to mean as a mark that certifies the

candidate as competent to participate or be permitted to

participate in the next or different stage. That apart, the very

usage of the words for O.C., for B.C. or for S.T., would

necessarily mean the marks that have to be secured by a

particular class of candidates in the entrance examination

and the said mark be it 40% or 35% or 30% is not post

specific as securing that mark would not automatically entitle

the candidate to be appointed to the post. The meaning that

is now attached by this Court is made discernable from the

sentence that follows next. "There are no minimum marks

for the viva voce". Meaning and implying thereby that there

is one more stage of selection for completion of the selection

process and make appointment.

GN, J. & VN, J.

29. It is not in dispute that a gradation list will be prepared

after the qualifying examination or entrance examination and

the gradation or merit list would consist of only such

candidates who have secured the "minimum qualifying

marks" stipulated in the notification inviting applications.

Thereafter, the candidates in the merit list would be entitled

to participate in the next round of selection which as per the

notification is "viva voce". Thereafter, another marks or

gradation list would be prepared where the marks secured by

the respective candidates in the viva voce would be recorded.

Thereafter, the final gradation list would be prepared after

computing both the marks secured by the candidate in the

entrance examination and in the viva voce i.e. the marks

secured by the candidates in the viva voce would be added to

the marks secured by the candidate in the written

examination and the total marks would be calculated and

depending on the total marks secured by the respective

candidates, the final merit list would be prepared and,

thereafter, appointments are required to be made.

30. In the case on hand, the enigma that has led to the

present conundrum is that the post in the O.C. or merit

GN, J. & VN, J.

category. It is not in dispute that apart from the petitioner,

several other candidates also took part in the qualifying

examination. It is also not in dispute that it is the petitioner,

who has secured the highest marks i.e., 37 percentage. The

fact that the post is an open category post has led to the

respondents placing an interpretation that only candidates

who secured 40% or more are entitled to be considered for

appointment. As explained above, the percentile of marks as

set out in the clause in the notification inviting applications

is specific to a class of candidates and not to the advertised

post. On a plain and simple reading of the language employed

in the notification makes this fact abundantly clear and no

other interpretation can be placed. The post notified is a post

of the Assistant Commissioner Endowments and there are no

posts reserved in favour of B.C-D category to which the

appellant belongs and the notification clearly speaks of the

marks as qualifying marks and they are specific to a class of

candidates. As held hereinabove by this Court, a "qualifying

mark" is only an enabling standard which entitles the

candidate to move into the next stage of selection. Neither

the Rules nor the notification state that a candidate to be

GN, J. & VN, J.

appointed to the post in the Open Category have to secure 40

percentage marks.

31. As held supra, once the candidate secures the

minimum qualifying marks in the initial rounds of selection,

then such candidate is in law entitled to be considered in the

next stage of selection. If no candidate belonging to the Open

Category has secured 40% marks, it cannot be said that no

candidate can be appointed to the said post. The

interpretation now being placed by the respondents is

unheard of and unknown to service jurisprudence. If the

interpretation as canvassed is accepted, it would virtually

amount to reserving the post to Open Category candidates

only. It would amount to imposing a condition contrary to

the notification itself.

32. Once a candidate secures the qualifying mark i.e. if the

candidate belonging to S.T. secures 30% and the candidate

belonging to B.C. secures 35% percentage marks and the

candidate belonging to Open Category secures 40% marks,

then such candidates have to be permitted to automatically

migrate to the next stage of selection process, which

GN, J. & VN, J.

apparently is the viva voce stage. The respondents, in the

considered view of the Court, have committed a serious and

grave error in placing an interpretation to the contrary and

by attempting and interpreting the qualifying marks as "post

specific". It would also negate the settled position in law that

the preparation of the merit list is not dependent on the

category to which the candidate belongs, but the marks that

have been obtained by the candidate.

33. The appellant having secured the highest marks i.e.

more than the stipulated qualifying mark and hailing from

the B.C. category was entitled to be considered in the next

stage of the selection process i.e. the viva voce. The fact that

the post is in the open category cannot be a ground to deny

the appellant the right to be considered for selection. The

respondents, by the interpretation placed by them, have

virtually rendered the qualifying marks as post specific i.e.

that only candidates who secure 40% or more alone can be

considered for appointment. As noted supra, the

specification of marks is class specific and not post specific.

Different classes of candidates are required to secure

different percentage of marks to qualify for consideration.

GN, J. & VN, J.

34. In view of the above discussion and the reasoning set

out by this Court, the Writ Appeal is allowed. The order of

the learned Single Judge, passed in W.P.No.4567 of 2020,

dated 24.02.2021, is set aside. The Writ Petition No.4567 of

2020 is allowed. The respondents are directed to consider the

petitioner/ appellant to the post of Assistant Commissioner

Endowments in the open category and appoint the

petitioner/appellant, if she is otherwise qualified. In view of

the long pending litigation, the respondents are directed to

complete the process within two months from the date of

receipt of a copy of this judgment. No order as to costs.

Consequently, miscellaneous petitions, pending if any,

shall stand closed.

________________________ JUSTICE G.NARENDAR

____________________________ JUSTICE NYAPATHY VIJAY Date:08.02.2024.

Note:

L.R. copy to be marked.

B/O cs/anr

GN, J. & VN, J.

* THE HON'BLE SRI JUSTICE G.NARENDAR AND THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

% Dated 08-02-2024

# Smt.Pilla Suneetha ..... Appellant Vs.

$ 1.The Andhra Pradesh Public Service Commission, rep. by its Secretary, Vijayawada, A.P. & Anr.

..Respondents

! Counsel for the Appellant : Sri J.Sudheer, learned Counsel for Sri S.Srinivasa Rao.

^ Counsel for the 1st respondent : Sri Nemali Pramod, Ld.Standing Counsel for the A.P.P.S.C.

Counsel for the 2nd respondent : Ld. G.P. for G.A.D.

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