Thursday, July 29, 2010

The curious case of OBC reservation and cut off marks

The third and final stage in the implementation of OBC reservation in Central

Dr. Hany Babu M.T.. Associate Professor Arts Faculty, North Campus,University of Delhi,

Universities and Institutions as per the Central Educational Institutions (Reservation in Admissions) Act, 2006 enacted by the Parliament of India is almost coming to a close. Many of the Central Educational Institutions (CEIs) have reserved 27% of the total seats for OBC students for the academic year 2010-’11 and correspondingly increased the total intake of students by 54% of the intake of 2006. The projected expenditure on the infrastructural development for the increase in seats was Rs. 17,000 crore. But hardly any attempt has been made to ascertain how effectively the CEI Act has been implemented by the Universities and Institutions which are publicly funded.

A cursory look at the data from the last two years when reservation was 9% and 18% respectively, tells us that a large number of OBC seats remained vacant and were converted to general category seats. Thus, a step taken to mete out social justice has turned out to be a windfall for the socially dominant groups as it has increased the number of seats available to them in the CEIs. Those who had vehemently opposed the implementation of OBC reservation may be having their last laugh. The OBC seats remain vacant not because there aren’t applicants who meet the eligibility conditions. Even though a large number of OBC candidates are available, many universities and colleges do not and, even if they so wish, cannot lower the cut off marks in such a way as to facilitate the entry of the non-creamy layer OBCs into the CEIs. One doesn’t have to look beyond the “meritocracy” argument to understand why they do not lower the cut off marks. However, it is beyond the scope of this article to get into a proper debate on what constitutes “merit” in a society where the opportunities and resources are so unevenly distributed. The question I want to address is why the CEIs cannot lower the cut off marks even if they so desire.

Relaxation of marks to be given to the OBCs
Right at the outset of implementation of OBC reservation, the question of balancing the standard of the CEI and social justice was a matter of grave concern. In the judgment in April 2008 by the Supreme Court of India in the Ashoka Kumar Thakur versus Union of India case, one of the five judges remarked that “five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students”. Note that the statement refers to “eligibility” and not to the cut off marks. Another judge recommends “cut off marks no lower than 10 marks below that of the general category”. Later the same judge goes on to say that “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” . Apart from these tentative recommendations, there was no unanimity among the judges about how much relaxation should be given to the OBC candidates. In fact, it is unfair to expect any body to work out the extent of relaxation to be given for admission into an academic programme without having access to any empirical data regarding the situation of the non-creamy layer OBC category. It must be precisely for this reason that the Oversight Committee set up to work out the modalities for the implementation of the new reservation policy in Higher education suggested 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” (section 4.4.2). The Oversight Committee also spelt out a very important policy in the implementation of reservation for OBCs. The following extract makes this clear:
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.

The circular dated April 20, 2008 issued by the Ministry of Human Resource Development also echoes this concern about maintaining a balance between the standards of Higher education and the implementation of the reservation policy when it states that
Each CEI is also authorized to fix cut off marks for admission / selection through admission test, etc. for the OBC candidates with such differential from the cut-off marks for the unreserved category as each institution may deem appropriate for maintaining the standards of education and at the same time ensuring that sufficient number of eligible OBC candidates are available in keeping with the directions / observations of the Hon’ble Supreme Court of India in this regard. This authorization by the Central Government to the CEIs to fix cut-off marks ins in compliance with the Apex Court’s direction asking the Central Government to examine the feasibility of determining such cut-off marks. The Central Government believes that each CEI would ensure that the directions / observation of the Hon’ble Court are followed.

However, in the reply to the writ filed by P.V. Indiresan and others in October, 2008, the Apex Court stipulated that “the maximum cut-off marks for O.B.C.s be 10% below the cut-off marks of general category candidates”. The context of the judgment makes it very clear that this suggestion was made to deal with the crisis precipitated by admissions in that particular year as it goes on to say that the seats remaining vacant should be filled up by October 2008. Following this, the MHRD issued a circular dated 17 October, 2008 which states “the maximum cut-off marks for OBCs be 10% below the cut off marks of the general category candidates”. This office order can also be only interpreted in the context of that specific year as the very next clause talks about conversion of vacant seats by “the end of October, 2008”. It is obvious that the ceiling of 10% on the relaxation of cut off marks for OBC was not made with the support of any empirical study. As the late K. Balagopal notes in his EPW (October 24, 2009) article, a judicial fiat by one of the five judges in the Ashoka Kumar Thakur vs. Union of India case has become a policy overruling the government’s policy as spelt out in the MHRD circular of April 20, 2008 cited above.

The ground reality
Due to the ceiling on the lowering of cut off marks for OBC category a large number of OBC seats could not be filled with OBC students. As per the Times of India report dated July 19, 2010, about 15% of the seats reserved for OBCs are remaining vacant and they are going to be converted to general category seats after August 6, 2010. The diversion of the vacant OBC seats is another fall out of the Supreme Court judgment. Just as in the case of the relaxation of marks, this was tentatively recommended in the main judgment of April 2008, and reiterated in the clarification made in October, 2008. In a sense it seems to have been evident right from the beginning that the non-creamy layer OBC students are not going to make it beyond the arbitrarily stipulated cut off mark. Just as one may have predicted, the question raised quite often right at the beginning of admissions in many of the CEIs is when the conversion of OBC seats will take place. As the Times of India report mentions, the University of Delhi has declared August 6, 2010 as the date from which such diversion will take place. In fact, some of the Delhi University colleges even admit general category students beyond the allocated seats in anticipation of the increase when the conversion of OBC seats takes place. All this shows that it is taken for granted that the OBC are not going to be filled. And it is not because there are no OBC candidates available, but because they fail to meet the arbitrarily fixed cut off mark. What this shows is that the non-creamy layer OBC candidates suffer the same amount of deprivation as that of the SC/ST candidates.

A look at the SC/ST reservation policy
In fact, the state of affairs of SC/ST reservation was almost the same in the initial stages. And it is this sense of déjà vu that makes this story even more tragic. In the case of SC/ST reservation also some seats may remain vacant, but there is a clear directive both from the Government of India and from the UGC banning the de-reservation of seats. Moreover, to ensure that the reservation policy is implemented more effectively the UGC has also stipulated that the cut off in admission tests has to be lowered even to zero if sufficient number of SC/ST candidates cannot be found. These two principles effectively sealed any attempt to deliberately keep the SC/ST seats vacant in two ways: firstly, no one benefits directly from the vacant seats as they cannot be diverted to the general category. Secondly, the low scores in admission tests could not be held as a reason not to admit a candidate. Still the guardian angels of “merit” do resort to any kind of strategy to keep off students from SC/ST communities, or in many cases, to ensure that such students are “weeded out” even after entering the system on the pretext that they fail to meet the required standards in the course of their studies. Quite often even students who meet the general cut off from the SC/ST or OBC categories are given Admission in only the reserved categories and not in the general category as required by the rules. Needless to say, this means that the general category is seen as being reserved for certain “specific” categories and candidates belonging to SC/ST/OBC category who need reservation are being deprived of their chances.

The question of minimum eligibility
A fact to be borne in mine is that we are talking about denying admission to students who meet the minimum eligibility condition. There is only a 5% relaxation in eligibility marks given to SC/ST students and no such relaxation is given to OBC students. A pertinent question to ask is: on what basis is a student who meets the minimum eligibility for a programme denied admission to that programme? The only reason can be this: there is another candidate who stands above him/her in the merit list drawn up by the Institute/department concerned on the basis of either the marks in the qualifying examination or in the admission test.

So, by lowering the marks of the admission test till sufficient number of candidates are found one is not at all compromising on the eligibility of a candidate to get admission. It is important to reiterate this point, as quite often you hear academics wonder about the logic of reducing marks till zero. The logic is straightforward: if you meet the minimum eligibility and if there is no other candidate in your category above you in merit, you have to be selected. This is the policy followed for SC/ST students. This is also the policy followed for general category students. (In some cases, however, there is a stipulated percentage of marks that a candidate has to secure in the Admission Test in order to be eligible for admission.) That is to say, whether a general category candidate scoring 45% gets selected or not depends on his/her position in the rank list. It does not depend on the performance of students belonging to other categories. In the case of OBC reservation, however, this principle has not been observed and they are left at the mercy of the performance of general category students. We should keep in mind that here we are talking about the students from the non creamy layer matching up to the performance of the cream of the cream.

Another look at “10% below the cut-off for general category”
The purpose of this write up is not to argue for a revoking of the 10% ceiling on relaxation of cut off marks for OBC. This matter is already under the consideration of the Honourable High Court of Delhi. The immediate context of this write up is the whimsical interpretation of the Supreme Court order of October, 2008 regarding the 10% relaxation. A careful reading of all April 2008 judgment as well as other documents like the report of the Oversight Committee tells us that the consensus is that the relaxation of marks given for OBCs should be somewhere between that of the General Category and the SC/ST. In many admission tests a general category candidate has to have scored a minimum percentage (say 40%) in order to be considered for admission, while in the case of an SC/ST candidate no such limit should be set (as already mentioned at the outset of this write up). It is in this context that the clarification by the Apex Court should be read. That is to say, if a general category candidate has to score 40%, then it should be fixed as 30% for an OBC candidate, while there can be no such limit for an SC/ST candidate. This is also the spirit of the April 20, 2008 order from MHRD, which states that
CEIs which are in the process of conducting admission tests may decide on the cut-off marks for the OBC category well in time, so that the consistent with the standards of education of the CEIs, sufficient number of eligible OBC candidates are available for selection on the basis of inter-se merit against the reserved seats.

As is obvious, a cut off that is made based on the last admitted candidate cannot be made “well in time”. So, where did the interpretation that the cut off has to be calculated on the basis of the last admitted candidate in general category come from? One should also note the irony that this interpretation places the OBC students at the mercy of the general category students. If the general category students score well, then the OBC students have to match up with theirs, or they are denied admission.

Bad as the above situation is, we see an even more regressive interpretation of the 10% relaxation. What is happening in universities like JNU and DU is that OBC students are given a relaxation of 10% marks of the last admitted candidate in the general category. That is to say, in an admission test of 100 marks, if the last admitted general category candidate has scored 50, then an OBC candidate is given only 5 marks (that is, 10% of 50) relaxation. This interpretation is nothing but a gross violation of the Supreme Court order and one can only see a devious strategy to keep away deserving OBC students from the CEIs.

Let us imagine the following scenario. Two candidates, Gen and Res score 60 and 51 marks out of 100 in a test. Now let us ask the question what percentage below is the mark of Res compared to that of Res. If we go by the “regressive interpretation” we have to say that the difference is 15% since 9 (which is the difference of marks between the two candidates) is 15% of 60. But anyone who has gone through at Secondary level of schooling will tell u that the marks scored by Res is 9% below that of Gen. One then wonders what makes the custodians of Higher Education ignorant of this elementary calculation.

The surplus seats
A final question is about the en bloc conversion of the vacant OBC seats to the general category. In the interim order passed by the Honourable High Court of Delhi on August 26, 2009 in the matter of Delhi University Reservation Execution& Anr. versus Union of India , it was made clear that the vacant seats cannot be given to general category students without taking into consideration the availability of OBC students within the stipulated cut off marks. That is to say, when the cut off for the general category is reduced in the process of filling up the converted seats, it should be “ascertained if any candidates in the OBC Category would also come within the 10% cut off with reference to the percentage of the said general category candidates and if any OBC candidates are available they should be granted admission.” But an even more serious question is about the implementation of SC/ST quota in the seats that get converted. If there is a Constitutional obligation to implement reservation, how is it that a proportionate number of those seats are not reserved for SC/ST students?

What I have argued for is the following:
• There should be a comprehensive review of how effectively the CEI Act has been implemented over the last three years.
• The Government of India should come out with a clear policy about the steps to be taken to ensure that the seats meant for the students from the weaker sections of the society are made available to them and that arbitrary restrictions do not come in the way.
• Till a proper policy is evolved about the relaxation to be given to the OBC candidates, it should be ensured that the clause in the October 2008 Supreme Court judgment about 10% relaxation of marks should be properly interpreted and implemented.
• If seats reserved for the OBC category are remaining vacant, they should be given to candidates from SC/ST category.

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