Apurva & Anr. vs Union Of India & Anr.
2010 Latest Caselaw 4113 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 7th September, 2010.

+                           W.P.(C) No.4857/2010

%

APURVA & ANR.                                                ..... Petitioners
                            Through:      Mr. Mariarputtam, Sr. Advocate
                                          with Mr. Anil Nauaria & Mr. A.T.
                                          Rao, Advocates

                                     Versus

UNION OF INDIA & ANR.                                      ..... Respondents
                  Through:                Mr. Atul Nanda with Ms.
                                          Sugandha, Advocate for R-1/UOI.
                                          Mr. Mohinder J.S. Rupal & Ms. Preeti
                                          Maniktalya, Advocates for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?              Yes.

2.       To be referred to the reporter or not?       Yes.

3.       Whether the judgment should be reported
         in the Digest?                               Yes.

RAJIV SAHAI ENDLAW, J.

1. The petition raises a vital issue relating to 27% reservation for

Other Backward Classes (OBCs) in Central Educational Institutions,

introduced by the Central Educational Institutions (Reservation in

Admission) Act, 2006. The question which falls for consideration is of the

eligibility for admission under such reservation. The respondents Union

of India (UOI) and Jawaharlal Nehru University (JNU) have taken a stand

that for an OBC candidate to be eligible for admission in the 27%

reserved seats, he / she must secure marks within the bandwidth of 10%

lower than the marks of the last candidate admitted in the General

(Unreserved) category i.e. even if the eligibility for admission in the

General (Unreserved) category is of 50% marks in the qualifying

examination and for Reserved category is say 40%, but the last candidate

admitted in the General (Unreserved) category has 90% marks, the OBC

candidates even if meeting the eligibility criteria of above 40% marks, are

not entitled to admission unless they secure above 80% marks. If any of

the OBC candidates fail to secure above 80% marks, the extra seats added

to the Institution pursuant to Section 5(1) of the Act would be available to

the General (Unreserved) category students. For contending so, reliance

is placed on Ashoka Kumar Thakur Vs. Union of India (2008) 6 SCC 1.

The petitioners belonging to the OBC category contend otherwise. They

say that their admission to the seats reserved for them cannot be made

dependent on the marks of the last candidate admitted in the General

(Unreserved) category.

2. The factual matrix leading to the present petition is as under:-

(i) The petitioner no.1 seeks admission to respondent no. 2 JNU

in B.A. (Hons.) - Spanish, German, Korean and the

petitioner no.2 seeks admission to the respondent no. 2 JNU

in M. Phil - Theatre and Performance Studies. Both of them

have been denied admission for not securing marks within

the bandwidth of 10% of the last student admitted in the

General (Unreserved) category. The petitioner no.2 seeking

admission to M. Phil - Theatre and Performance Studies also

urges additional ground of the procedure prescribed for

admission being defective for the reason of allocating more

than 15% of the total marks for oral interview.

(ii) The undisputed position is that respondent no.2 JNU in the

Deans Committee Meeting held on 17th June, 2010 provided

relaxation in qualifying marks for OBC candidates of 10%

below the eligibility marks prescribed for General

(Unreserved) category candidates. The said position was in

favour of the petitioners and on the basis thereof the

petitioners are entitled to admission.

(iii) However, the respondent no.2 JNU on 12th July, 2010, on the

basis of legal opinion obtained, restored the system

prevailing in the earlier two years of admitting only those

OBC candidates securing marks within the 10% bandwidth

of the last candidate admitted in the General (Unreserved)

category. On the basis of said position, the petitioners are not

entitled to admission.

3. The question being of general importance, notice of the

petition was issued. Since the petitioners were seeking the relief of

admission in the current academic year, the matter was taken up for

hearing after a short adjournment. The counsel for the respondent

no.2 JNU stated that no counter affidavit would be necessary,

though post hearing has filed a synopsis of submissions. The

respondent no.1 UOI inspite of the general importance of the issue

involved chose not to file the counter affidavit and the counsel for

the respondent no. 1 UOI during the hearing only handed over in

the Court a communication of the Director (HE), Department of

Higher Education, Ministry of Human Resource Development of

Government of India. However, the contentions of the counsel for

the respondent no.1 UOI and the respondent no.2 JNU were

recorded in open Court to obviate any misunderstanding.

4. It is the contention of the respondents that the expression "cut

off marks" used in Ashoka Kumar Thakur (supra) is not equivalent

to "eligibility"; the expression "cut-off marks" refer 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; the respondent no.1

UOI does not accept the contention that reservation for OBC

category candidates has to be on the basis of eligibility being lower

than the eligibility prescribed for the General (Unreserved)

category.

5. Since the judgment was being reserved, the application for interim

relief was also considered. The petitioners were seeking a stay of

reversion to the General (Unreserved) category students the vacant seats

out of the 27% seats reserved for OBCs on the ground that if General

(Unreserved) category students are admitted against the vacant OBCs

seats, the petitioners even if succeeding in the petition would not get any

relief. The counsel for the respondent no.2 JNU however stated that since

the admission process was underway and a large number of students were

expected to visit from outside Delhi, such reversion need not be interfered

with; it was assured that in the event of the petitioners succeeding; the

petitioners or candidates in the OBC category who ought to have been

admitted would be admitted, if need be by increasing the number of seats

in the courses concerned in the writ petition. The University was ordered

to be bound by the said statement.

6. The reservation for OBCs has had a tumultuous history. Upon the

Mandal Commission making a report for reservation for OBCs, the

students community all over the country and particularly in Delhi was put

into turmoil. It was felt by the students belonging to the General

(unreserved) category that the reservation for OBCs in addition to the then

existing reservation for SCs/STs would eat into their share of the seats.

The Parliament ultimately vide The Constitution (Ninety-Third

Amendment) Act, 2005 inserted Clause 5 to Article 15 of the Constitution

permitting reservation for socially and economically backward classes and

enacted the CEI Act aforesaid. Section 3 of the said Act provides for

reservation in Central Educational Institutions out of their annual

permitted strength in each branch of study or faculty, of 15% for

Scheduled Castes (SC), 7.5% for Scheduled Tribes (ST) and 27% for

OBCs. Section 4 of the Act enables the Parliament to exempt the

Institutions specified therein from application of the Act. Section 5

requires all such Institutions to increase the number of seats in each

branch of study so that the number of seats excluding those reserved for

SC/ST/OBC is not less than the number of seats available for the

academic session immediately before the date of coming into force of the

Act. It will thus be seen that the political turmoil owing to the reservation

for OBCs was sought to be assuaged by, while making reservation for the

OBCs not making it at the expense of the General (Unreserved) category.

7. The Constitutional amendment aforesaid as well as the Act were

challenged before the Supreme Court. The Supreme Court vide Judgment

in Ashoka Kumar Thakur upheld both.

8. Thus the Act has to be given full effect and as per which 27% seats

in every Educational Institution are to be reserved for OBCs. However,

the said reservation is sought to be made illusory by the respondent no.1

UOI and respondent no.2 JNU by taking a stand that under the said

reservation, only those OBCs are entitled to admission who in their merit

are not 10% below the last candidate admitted in the General

(Unreserved) category. It is contended that the OBCs who are not as

meritorious (i.e. not within the 10% bandwidth) are not entitled to the

benefit of the reservation in pursuance to the Constitutional amendment

and the Act aforesaid. Support in this regard is sought to be drawn from

certain passages in Ashoka Kumar Thakur.

9. Ashoka Kumar Thakur was not concerned with the aforesaid

question. The challenge to the reservation for OBCs in Ashoka Kumar

Thakur was primarily on the premise of the reservation on the basis of

caste / class being antithesis to the goal of the Constitution of a casteless /

classless society. The said challenge was negatived by the Supreme

Court. However, since to justify the challenge it was also urged that such

large scale reservation i.e. to the extent of 50% of the permitted strength

may lead to lowering the standard of excellence of the educational

Institutions and the country, in the judgment of Arijit Pasayat, J., (for

himself & C.K. Thakker, J.) & by Dalveer Bhandari J. the observations

relied on came to be made. The said observations use the expression "cut-

off" which is argued to be different from "eligibility". The judgment of

Chief Justice K.G. Balakrishnan in this regard is quiet. I may however

add that none of the Hon'ble Judges in Ashoka Kumar Thakur upheld the

reservation for OBCs for the reason of making the same subject to the

OBCs being within the bandwidth aforesaid of 10% or for the reason of

the seats remaining vacant on OBCs failing to meet the said criteria

falling to the General (unreserved) category. The observations as

aforesaid in the judgments of Arijit Pasayat, J. & Dalveer Bhandari J

clearly provide that the same are in the form of recommendations to the

Government.

10. The question which arises is whether the stand of the respondent

no.1 UOI is correct.

11. I am unable to agree with the stand of the respondent no.1 UOI and

respondent no.2 JNU for the following reasons:-

A. Reservation by its very nature implies a separate quota which

is reserved for a special category of persons - within that

category admissions to the reserved seats may be made in the

order of merit. The category for whose benefit reservation is

provided is not required to compete with the open category.

Their selection to reserved seats is independently, on their

inter se merit and not as compared with the merit of

candidates in the General (Unreserved) category. The very

purpose of reservation is to protect the weak category against

competition from the open category candidates. (See Govt. of

Andhra Pradesh v. P.B. Vijaykumar (1995) 4 SCC 520).

B. The Supreme Court in Indra Sawhney Vs. Union of 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.

C. The Constitution Bench of the Supreme Court in Dr. 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."

D. The question/issue formulated by the Constitution 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".

E. Requiring the OBC candidates to secure marks within 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.

F. It tantamounts to saying that the difference in opportunity is

not more than 10%, and the same has no basis.

G. It is common knowledge that even where the eligibility for

admission for General (Unreserved) category candidates is

50%, at least in the city of Delhi (and I presume in other

metropolitan cities also), the last candidate admitted in the

General (Unreserved) category in the premium courses have

a percentage of over 85%. To say that an OBC candidate to

be entitled to avail of the reservation ought to in such cases

secure over 75% marks is to make the reservation illusory.

Though instances in the recent past of some of the reserved

category candidates securing marks better than the last

candidate admitted in the General (Unreserved) category are

not unknown and which has led to the Courts holding that

such reserved candidates who have got admitted on their own

merits in the General (Unreserved) category would not block

or be counted in a reserved seat but such Reserved category

candidates are a class apart and in creamy layer (in terms of

marks) of their own. When the seats in Educational

Institutions secured by the Reserved category students have

not been held to deplete the seats reserved for that category,

the same also implies that the reservation is meant for those

who are unable to so compete with the General (Unreserved)

category candidates.

H. If the aforesaid were to be accepted, the General

(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.

J. I have recently had the occasion (in Ashhar 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.

K. The CEI Act does not lay down any such criteria of the

reservation being subject to the candidate in the Reserved

category falling within the 10% bandwidth. The legislative

intent has to be given full impact and cannot be whittled

down by Executive decisions. The policy adopted by the

respondents UOI & JNU amounts to the Executive taking

away what the legislature has given to the OBCs. The same

cannot be permitted to happen. The Act cannot be permitted

to be used as a mode of making more seats available to the

General (Unreserved) category than before; that was not the

intent of the Act. The Act was to provide for reservation in

admission for the students belonging inter alia to Other

Backward Classes in certain Educational Institutions set

up/established, maintained or aided by the Central

Government and not to indirectly add the seats in such

Institutions for the General (Unreserved) category students.

L. The concept of reservation as understood in this country has

never been understood in the manner now sought to be

applied to OBCs. The SC/ST candidates for whom

reservation has been in existence since before were never

required, to avail of reservation, to secure marks within 10%

bandwidth of the last category admitted to the General

(Unreserved) category. The said criteria even now is not

being applied vis-à-vis reservation for SC/ST and is sought to

be applied vis-à-vis reservation for OBCs only. Had the

legislature intended reservation for OBCs to be subject to

their securing marks within the 10% bandwidth as contended,

the Legislature would have provided for the same. The same

has not been done. The Executive and the Universities

cannot impose any such conditions on reservation.

M. When the Act does not make any difference in Section 3

thereof between reservation for SC/ST and that for OBCs, in

implementation thereof, no such distinction can be made.

N. With all humility at my command, I am unable to read the

judgment in Ashoka Kumar Thakur also as contended. As

aforesaid, the Constitution Bench was not faced with the question

directly and was only meeting the challenge to reservation on the

ground of reservations resulting in lowering the standards of

excellence. The expression "cut-off marks" has been used

interchangeably with the expression "eligibility condition". In the

absence of any clarity in this regard (also not in P.V. Indiresan Vs.

Union of India (2009) 7 SCC 300), I am unable to hold that

Constitution Bench even while making the recommendation was

contemplating a situation different from as prevalent in the past i.e.

difference in minimum eligibility criteria only. The senior counsel

for the petitioners in this regard has referred to para 32 of A.P.

Public Service Commission Vs. Baloji Badhavath (2009) 5 SCC 1

to contend that the differential for the disadvantaged (Reserved

category) has always been in the basic minimum criteria laid down

and not in comparison to the last candidate admitted / appointed in

the General category. Moreover, the Bench in Ashoka Kumar

Thakur has not indicated that they were differing in any manner

from the earlier judgment in Dr. Preeti Srivastava which as

aforesaid is clearly with respect to minimum eligibility marks and

not with respect to cut-off of the last candidate admitted in the

General (Unreserved) category.

12. The counsel for the University has relied on the writ petition and

the counter affidavit of the Union of India in the Public Interest Litigation

being W.P. (C) No.11147/2009 titled D.U.R.E.C. Vs. UOI pending before

the Division Bench of this Court and the interim order dated 26 th August,

2009 therein. The issue in the said writ petition is also similar i.e. of

shifting cut off for the OBC category owing to the shifting cut off for the

General (Unreserved) category. The Division Bench by the interim order

has directed the cut-off for the OBCs to vary with the cut off in the

General (Unreserved) category. On the basis of the same, it is contended

that the Division Bench has also considered the cut off for OBCs in

comparison to the last candidate admitted in the General (Unreserved)

category and not the minimum eligibility criteria. However, the Division

Bench is still siezed of the matter and the interim order even of the

Division Bench would have no precedentiary value. The counsel for the

respondent no.2 JNU has also referred to the prospectus of the Delhi

University but again merely because another University is following the

same criteria as the respondent no.2 JNU would not make the procedure

for admission in Reserved category in respondent no.2 JNU correct. The

senior counsel for the respondent no.2 JNU has also relied on the

judgment dated 30th May, 2003 of the Division Bench of this Court in

LPA No.214/2003 titled Pawan Kumar Vs. Jawahar Lal Nehru

University to meet the contention of the petitioners of the provision of

more than 15% marks for interview as bad. However, the petitioner

having succeeded on the first point and being entitled to admission, need

is not felt to deal with the said aspect of the matter.

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.

14. The petition is allowed. The respondent no. 2 University in

accordance with the statement recorded on 27th July, 2010 to admit the

petitioners within one week of petitioners complying with requisite

formalities. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 7th SEPTEMBER, 2010/gsr