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6. The Jawaharlal Nehru University (for short `JNU'), second respondent herein, interpreted the said order of this Court dated 14.10.2008 to mean that the minimum marks for admission to be secured by an OBC candidate should not be less than the marks secured by the last student admitted under general category less 10%. The admissions for 2008-09 and 2009-10 were done on that basis. As a result, it would appear considerable number of OBC seats got reverted to general category for non-availability of eligible OBC students with the required marks. Therefore, the standing committee on admissions of JNU, at its meeting held on 10.6.2010, considered the ways and means to fulfill 27% quota for OBC students for 2010-11. The Committee noted the difference between eligibility, qualifying marks and cut-off marks as under:

7. The Deans Committee of JNU discussed the issue at its meeting dated 17.6.2010, considered the proposals of the Standing Committee on Admissions and resolved as follows in regard to the admissions of OBC candidates for the academic year 2010-2011:

"The Deans Committee after detailed discussion decided to accept the second proposal of the Standing Committee on Admissions viz. to treat the minimum qualifying marks in the entrance examinations as the cut-off to provide maximum relaxation of 10% to OBC candidates (creamy layer excluded) below the cut-off of general candidates as per the interpretation of the Supreme Court Judgment by fixing cut-off in advance for admission to various programmes of study to OBC candidates (creamy layer excluded) for inviting them for viva-voce as well as for admission to various programmes of study to be implemented in this year i.e. 2010-11 admissions. The merit list will be drawn as per the admission policy of the University and approved intake and offers. Further, in accordance with the Ashok Kumar Thakur judgment after giving maximum possible relaxation, wherever the non-creamy layer OBC candidates fail to fill the reservation, the remaining seats would revert to general category students. Hence to be eligible to be invited for viva voce examination a candidate must secure following marks out of 70 in the written examination.
The Committee further resolved that the above recommendations will be implemented only for this year, i.e. 2010-2011 and admission policy will be reviewed after the current admission process is over and statistics are available for implementation from the next year i.e. 2011-2012."

8. A legal notice dated 27.6.2010 was issued to the JNU on behalf of a students association contending that the change in the procedure for admissions to the seats reserved for OBCs proposed by the JNU was contrary to the clarificatory order of this Court dated 14.10.2008, and threatening initiation of contempt proceedings, if the said decision dated 17.6.2010 of the Deans Committee was implemented. As a consequence, JNU sought legal opinion. JNU was advised that while the procedure sought to be adopted by JNU for 2010-2011, vide its resolution dated 17.6.2010 may not be contempt of court, it may not stand judicial scrutiny and could be viewed as an attempt to circumvent the law declared in A. K. Thakur and therefore, it should continue the policy and procedure adopted during the previous two years. As a consequence on 12.7.2010 the Deans Committee reviewed the earlier decision dated 17.6.2010 and decided to restore/continue the procedure that was followed during the previous year (2009-2010), that is to admit only OBC candidates who secure marks within 10% band below the marks secured by the last candidate admitted in the general category and transfer all the unfilled OBC seats to general category.

33. The appellant canvasses the continuance of the procedure adopted by JNU during 2008-09 and 2009-10. 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 upto 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,. 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 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. 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. A factor which is neither known nor ascertained at the time of declaring the admission programme cannot be used to disentitle a candidate to admission, who is otherwise entitled for admission. If the total number of seats in a course is 154 and the number of seats reserved for OBCs is 42, all the seats should be filled by OBC students in the order of merit from the merit list of OBC candidates possessing the minimum eligibility marks prescribed for admission. (subject to any requirement for entrance examination.) When an eligible OBC candidate is available, converting an OBC reservation seat to general category is not permissible.