Delhi High Court
University Of Delhi & Ors. vs Tanvi Yadav & Ors. on 3 June, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order Reserved on: 31st May, 2011
% Order Pronounced on: 3rd June, 2011
+ CM NO. 366/2011 IN LPA No. 21/2011
UNIVERSITY OF DELHI & ORS. ..... Appellants
Through: Mr. M.J.S. Rupal, Mr. Arvind
Verma, Advs.
Versus
TANVI YADAV & ORS. ..... Respondents
Through: Mr. Naushad Ahmed Khan, Mr.Rajesh
Kumar Verma, Advs. for R-1& R-2
Mr. Sandeep Bajaj, Mr. Khalid Arshad,
Advs. for Respondent No.3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the Yes
judgment?
2 To be referred to the Reporter or not? No
3 Whether the judgment should be reported in the Digest? No
DIPAK MISRA, CJ
This is an application at the instance of the University of Delhi and others
for stay of the order dated 16th December, 2010 passed by the learned Single
Judge in WP(C) Nos. 6776/2010 and 6895/2010.
LPA 21/2011 Page 1 of 11
2. We have heard Mr. M.J.S. Rupal along with Mr.Arvind Verma, learned
counsel for the appellant-University, Mr.Naushad Ahmed Khan, learned counsel
for respondent Nos. 1 and 2 and Mr.Sandeep Bajaj, learned counsel for
respondent No.3.
3. The learned Single Judge in the two writ petitions was dealing with the
issue of admission in University of Delhi in LL.B and M.Sc. (Chemistry) courses
respectively for the academic year 2010-2011. The case of the petitioners therein
was that they could not be admitted because of the admission policy of the
respondent-University qua OBC candidates. The learned Single Judge referred
to his decision rendered on 7th December, 2010 in WP(C) No.4857/2007 (Apurva
v. Union of India) wherein he had held the admission policy of the University to
be erroneous, otherwise, the petitioner therein would have been entitled to
admission.
4. Be it noted, before the learned Single Judge, the University, placing
reliance on the decision in Ashoka Kumar Thakur v. Union of India, (2008) 6
SCC 1 and the provisions of the Central Educational Institutions (Reservation in
Admission) Act, 2006, had contended that there is a distinction between the
qualifying marks and cut-off marks and the University has been religiously
following the cut-off mark as per the law laid down in Ashoka Kumar Thakur
(supra) and the clarification given in P.V. Indiresan v. Union of India, (2009) 7
LPA 21/2011 Page 2 of 11
SCC 300 and, hence, there was no illegality in the process of admitting students.
On behalf of the writ petitioner, it was contended that the interpretation placed
by the University on the cut-off mark is incorrect and contrary to the decisions
rendered in Ashoka Kumar Thakur (supra) and P.V. Indiresan (supra). Reliance
was also placed on the decision in Harminder Kaur & Ors. v. Union of India &
Ors., JT 2009 (13) SC 550. The learned Single Judge, while dealing with the said
facet, has held thus:
"7. I have considered the contentions aforesaid of the counsel
for the respondent University. The same do not persuade me
to take a view different from that already taken in Apurva. In
Apurva, it has been held that 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 may lead to
lowering the standard of excellence of the educational
Institutions and the country, the observations relied on by the
Government and the respondent University using the
expression "cut off" came to be made. It was further held that
none of the opinions in Ashoka Kumar Thakur upheld the
reservation for OBCs for the reason of making the same
subject to the OBCs being within the bandwidth of 10% of the
last candidate admitted in the Unreserved Category. It was
thus held that the observations in the opinion of Arijit
Pasayat, J. & Dalveer Bhandari J. are in the form of
recommendation to the Government. More importantly, it
was held in Apurva that if only such of the OBC candidates
who secure marks within the 10% bandwidth of the cut off in
the Unserved Category are held entitled to admission, the
same would lead to making the Reserved Category candidates
compete with the Unreserved Category candidates and which
LPA 21/2011 Page 3 of 11
is not permissible. It was further held that there is nothing in
the Act to the said effect and if the reservation is implemented
as was being done by the JNU, that would defeat the very
purpose of constitutional amendment and the Act."
5. It is worth noting, in Apurva & Another (supra), the learned Single Judge
has held thus:
"11. xxx xxx xxx xxx
A-M xxx xxx xxx xxx
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."
LPA 21/2011 Page 4 of 11
6. The fulcrum of the matter rests on the interpretation of the term "cut-off
marks". In the case of Ashoka Kumar Thakur (supra), Pasayat, J. speaking for
C.K. Thakker, J. and himself has opined thus:
324. "Equality" and "excellence" are two conflicting claims
difficult to be reconciled. The Constitution, in order to ensure
true equality provides for special treatment to socially and
educationally backward classes of citizens which is obviously
desirable for providing social justice, though at the cost of
merit. However, the Constitution does not provide at all for
"institutional reservation". Therefore, its constitutionality is to
be judged on the touchstone of Article 14. A large number of
cases cropped up in this area concerning the institutional
preference for admission into postgraduate medical education
and superspecialities. The judiciary came forward and laid
down detailed principles covering the need of such preference
and to limit the extent of such reservation in view of the
importance of merit in the context of national interest and
international importance of universal excellence in
superspecialities.
325. It is to be noted that the foundation for fixing 27%
appears to be the view that 52% of the population belong to
OBC. There is no supportable data for this proposition. In fact,
different commissions at different points of time have
different figures. It is the stand of the respondents that no
commission has fixed the percentage below 52% and,
therefore, there is nothing wrong in fixing the percentage at
27%. This is not the correct approach. It may be that in no case
the percentage of persons belonging to OBC is less than 27%
but supposing in a given case considering the fact that the
actual percentage is 40% a figure less than 27% should have
been fixed. The Commission set out pursuant to the directions
of this Court seems to have acted somewhat on the petitions
filed by the people claiming exclusion or inclusion. That was
not the real purpose of this Court's decision to direct
appointment of Commission. The very purpose was to
identify the classes. This was the exercise which was to be
LPA 21/2011 Page 5 of 11
undertaken apart from considering the applications for
inclusion or exclusion as the case may be. As has been
conceded at the beginning of the case affirmative action is not
under challenge. Affirmative action is nothing but a crucial
component of social justice in the constitutional dispensation
but at the same time it has to be kept in view that the same
does not infringe the principles of equality of which it is a part
and/or unreasonably restraint or restrict other fundamental
freedoms and that it does not violate the basic structure of the
Constitution."
xxx xxx xxx xxx xxx xxx xxx xxx xxx
345. There is substance in this plea. It is not merely the
existence of schemes but the effective implementation of the
schemes that is important. It is to be noted that financial
constraint cannot be a ground to deny fundamental rights and
the provision for the schemes and the utilization of the funds
are also relevant factors. It appears that better coordination
between the funds provider and the utiliser is necessary. It is
suggested that putting stress on cut-off limit by shifting from
matriculation to Class XII level education as a benchmark of
gauging educational backwardness will be a step in the right
direction. Though as rightly contended by Mr. P.P. Rao that
in several decisions, for example, M.R. Balaji case, AIR 1963
SC 649 : 1963 Supp (1) SCR 439, Balram case (1972) 1 SCC 660
and K.S. Jayasree case (1976) 3 SCC 730 the secondary
education was taken to be the benchmark, ground reality
cannot be lost sight of that with the limited availability of jobs
and the spiralling increase in population, secondary or
matriculation examination can no longer be considered to be
an appropriate benchmark. It has to be at the most
graduation. But the question arises whether technical
education can be included while considering educational
backwardness. A delicate balancing has to be done in this
regard. While technical education cannot be the sole criterion
for gauging educational backwardness it definitely will form
part of 50% norms fixed by this Court. Slightly variable plus
or minus would be the appropriate standard to gauge
educational backwardness."
LPA 21/2011 Page 6 of 11
Dalveer Bhandari, J., in his opinion, stated thus:
535. First, once the State tells them whom to teach, standards
of excellence will suffer. This is because those institutions will
no longer be able to admit the highest-scoring students. As
good as some of our institutions are, they do not teach blank
slates. The best universities are the best, in part, because they
attract the best students. The same can be said for almost any
organisation. In the case of higher education, the universities
that admit the best will likely churn out the best. The precise
extent to which the university made the best so good cannot
be qualified. The point is that universities alone cannot
produce qualified job candidates. Forced to admit students
with lower marks, the university's final product will not be as
strong. Once the creamy is excluded, cut-off marks would
likely drop considerably in order to fill the 27% quota for non-
creamy layer OBCs. When the creamy layer is not removed, as
in the case of Tamil Nadu, the difference in cut-off marks for
the general and backward categories may be insignificant.
[See para 408 of Sawhney, 1992 Supp. (3) SCC 217]. Of course,
the extent to which standards of excellence would suffer
would vary by institution. As I mention below, I urge the
Government to set OBC cut-off marks no lower than 10 marks
below that of the general category. This is only a
recommendation.
xxx xxx xxx xxx xxx xxx xxx xxx xxx
627. Balaji, AIR 1963 SC 649 : 1963 Supp. (1) SCR 439,
concluded that reservation must be reasonable. The Oversight
Committee has made a recommendation that will ensure the
same. At p.34 of Vol.I of its Report, the Oversight Committee
recommended that institutions of excellence set their own cut-
off marks such that quality is not completely compromised.
Cut-offs or admission thresholds as suggested by the
Oversight Committee are reproduced:
"4.4.2 The Committee recognises that those institutions
of higher learning which have established a global
reputation (e.g. IITs, IIMs, IISc, AIIMS and other such
LPA 21/2011 Page 7 of 11
exceptional quality institutions), can only maintain that
if the highest quality in both faculty and students is
ensured. Therefore, the Committee recommends that
the threshold for admission should be determined by
the respective institutions alone, as is done today, so
that the level of its excellence is not compromised at all.
4.4.3 As regards 'cut-offs' in institutions other than those
mentioned in Para 7, these may be placed somewhere
midway between those for SC/ST and the unreserved
category, carefully calibrated so that the principles of
both equity and excellence can be maintained.
4.4.4 The Committee strongly feels that the students
who currently tend to get excluded must be given every
single opportunity to raise their own levels of
attainment, so that they can reach their true potential.
The Government should invest heavily in creating
powerful, well designed and executed remedial
preparatory measures to achieve this objective fully."
628. Standards of excellence however should not be limited
to the best aided institutions. The nation requires that its
citizens have access to quality education. Society as a whole
stands to benefit from a rational reservation scheme.
629. Finding 68% reservation in educational institutions
excessive, Balaji at SCC pp.470-471 (AIR p.663, para 34)
admonished States that reservation must be reasonable and
balanced against other societal interests. States have
"To take reasonable and even generous steps to help the
advancement of weaker elements; the extent of the
problem must be weighted, the requirements of the
community at large must be borne in mind and a
formula must be evolved which would strike a
reasonable balance between the several relevant
considerations."
LPA 21/2011 Page 8 of 11
To strike such a balance, Balaji (supra) slashed the impugned
reservation from 68% to less than 50%. Balaji (supra) thus
serves as an example in which this Court sought to ensure that
reservation would remain reasonable. We heed this example.
There should be no case in which the gap of cut-off marks
between OBC and general category students is too large. To
preclude such a situation, cut-off marks for OBCs should be
set no lower than 10 marks below the general category. To this
end, the Government shall set up a committee to look into the
question of setting the OBC cut-off at not more than 10 marks
below that of the general category. Under such a scheme,
whenever the non-creamy layer OBCs fail to fill the 27%
reservation, the remaining seats would revert to general
category students.
xxx xxx xxx xxx xxx xxx xxx xxx xxx
645. It is reasonable to balance reservation with other
societal interests. To maintain standards of excellence, cut-off
marks for OBCs should be set not more than 10 marks out of
100 below that of the general category.
7. Thereafter, a clarificatory application was filed and their Lordships
clarified the position in P.V. Indiresan (supra) as follows:
"A question had been raised in this application as to what
should be the extent of cut-off marks for admission of
students of OBCs in the Central educational institutions.
Having heard the learned Solicitor General of India and
learned Senior Counsel on both the sides and also having
regard to the observations made in the judgments pronounced
by this Court, we make it clear that the maximum cut-off
marks for OBCs be 10% below the cut-off marks of general
category candidates."
[Emphasis added]
LPA 21/2011 Page 9 of 11
8. From the aforesaid, it is vivid that the maximum cut-off marks for OBCs
are to be 10% below the cut-off marks of the general category candidates. It is
submitted by Mr.Rupal that when the total marks are 100%, if a general category
candidate gets 70%, an OBC candidate is required to secure 60% marks. The
learned counsel for the petitioner would contend that if the OBC candidate meets
the eligibility criteria, that is, 40%, he has to be qualified as the eligibility criteria
has to be the test. The learned counsel for the petitioner has placed reliance on
the decisions in Dr.Preeti Srivastava & Anr. v. State of M.P. & Ors., (1999) 7
SCC 120 and Indra Sawhney & Ors. v. Union of India & Ors., 1992 Supp. (3)
SCC 217.
9. Having heard the learned counsel for the parties, we are of the prima facie
view that there is a distinction between eligibility criteria and the cut-off marks.
As advised at present, we are disposed to think that a candidate belonging to
OBC category is required to obtain/secure 10% marks below the cut-off marks of
general category candidate and the cut-off marks would contextually mean and
convey that if the last general category candidate secures 70% marks, the OBC
category candidate, to be considered in his category, has to secure 60% marks.
We may clarify that the 10% marks has to be computed taking into consideration
the total marks in the subject.
LPA 21/2011 Page 10 of 11
11. In view of the aforesaid analysis, we are inclined to direct that there shall
be stay of operation of the order dated 16th December, 2010 passed by the learned
Single Judge in WP(C) Nos.6776/2010 and 6895/2010 subject to the final
adjudication of the appeal. The application for stay is accordingly disposed of.
12. Let the appeal be listed for final disposal under the heading "After Notice
Misc. Matters' on 19th July, 2011.
CHIEF JUSTICE
SANJIV KHANNA, J.
JUNE 03, 2011 pk LPA 21/2011 Page 11 of 11