JUDGMENT

R.V. Raveendran, J.

1. Leave granted.

2. This appeal raises a short but important question relating to the implementation of the 27% reservation for other backward classes (for short 'OBCs') in Central Educational Institutions under the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act No. 5 of 2007) (for short 'CEI Act'). The question relates to the meaning of the words "cut-off marks" used in the clarificatory order dated 14.10.2008 in P.V. Indiresan and Ors. v. Union of India (2009) 7 SCC 300, in regard to the decision of the Constitution Bench in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1.

Background

3. The constitutional validity of the Constitution (Ninety-third Amendment) Act, 2005 as also the constitutional validity of CEI Act were considered and upheld by a Constitution Bench of this Court on 10.4.2008 reported in Ashoka Kumar Thakur v. Union of India (for short 'A.K. Thakur'). Four separate opinions were rendered in the said decision by the learned Chief Justice of India, Pasayat J. (for himself and Thakker J), Raveendran J. (one of us) and Bhandari J. On the basis of the four opinions, the Constitution Bench formulated the following common order on which there was unanimity:

668. The Constitution (Ninety-third Amendment) Act, 2005, is valid and does not violate the "basic structure" of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is not considered and left open to be decided in an appropriate case. Bhandari, J. in his opinion, has, however, considered the issue and has held that the Constitution (Ninetythird Amendment) Act, 2005, is not constitutionally valid so far as private unaided educational institutions are concerned.

669. Act 5 of 2007 is constitutionally valid subject to the definition of "Other Backward Classes" in Section 2 of Act 5 of 2007 being clarified as follows: If the determination of "Other Backward Classes" by the Central Government is with reference to a caste, it shall exclude the "creamy layer" among such caste.

670. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.

671. Act 5 of 2007 is not invalid for the reason that there is no time-limit prescribed for its operation but majority of the Judges are of the view that the review should be made as to the need for continuance of reservation at the end of 5 years.

4. The Petitioner herein made an application in A.K. Thakur alleging that some central educational institutions were interpreting the decision contrary to the law laid down therein and sought the following directions/clarifications:

(a) that the limit of cut-off marks for admission of students in the OBC quota in Central Educational Institutions be a maximum 10 marks below the cut-off for the general category;

(b) that all vacant seats in the reserved quota after the seats have been filled in accordance with (a) above shall automatically revert to the general category;

5. The said application was heard and disposed of by the Constitution Bench by the following Order dated 14.10.2008 (record of proceedings reported in P.V. Indiresan v. Union of India 2009 (7) SCC 300):

1. The applicants have prayed for two reliefs in this application. This application is an offshoot of the judgment passed by the Constitution Bench of this Court on 10.4.2008.

2. 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 mark