Case: DEGA VENKATA HARSHA VARDHAN Vs. AKULA VENTAKA HARSHAVARDHAN

2. The appeals have been preferred against the common judgment and order dated 07.08.2018, passed by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, setting aside a Government Order being G.O. Rt. No. 550 Higher Education (EC2) Department dated 30.07.2001 (hereinafter referred to as the impugned Government Order), to the extent the same permitted the filling up by reserved category candidates, of open and/or general category seats in institutions offering inter alia Medical and/or Dental Courses, which became vacant when meritorious reserved category candidates who had ranked well enough to secure those seats as general candidates, opted for other disciplines or institutions where they could only have secured admission as reserved candidates.       3. The relevant portion of the impugned G.O. Rt. No. 550 of 2001 is set out herein below:       After careful consideration and due examination of the issue relating to implementation of reservation of Scheduled Castes/ Scheduled Tribes/ Backward Classes in engineering and other Professional Courses the following instructions are hereby issued: -        (i) In the counseling process, the seats to be filled by open competition should be filled up first, wherein the candidates should be called for counseling based on merit alone irrespective of whether they belong to SC, ST or BC in accordance with the instructions issued by the Government in G.O. Ms. No. 996, Employment & Social Welfare, dated 11th November, 1975.        (ii) Next, reservation categories like SC/ST/ BC candidates will be counseled to fill the seats earmarked for them in their respective categories. During this process, if a candidate belonging to Scheduled Castes/ Scheduled Tribes/ Backward Classes, who had taken admission under open competition, opts for a better branch or a better college of his choice for which he or she would be eligible as per the rules of reservation, the seats vacated by him or her in open competition shall be filled with a candidate from the same reservation category only, in order or merit.

Reasoning:
8. The law is well settled that provisions relating to reservation cannot work to the disadvantage of a Meritorious Reserved Candidate. A Meritorious Reserved Candidate cannot be placed at a more disadvantageous position than a less Meritorious Reserved Category candidate. Candidates from amongst the reserved category who would otherwise come in the open merit list are therefore given the choice of opting for reserved seats without affecting the total number of reserved seats. However, for the purpose of reservation, such a candidate would continue to be treated as an open category candidate and the seat as per his entitlement as a candidate of the general quota would go to a reserved candidate.9. In Tripurari Sharan and Another v. Ranjit Kumar Yadav and Others reported in (2018) 2 SCC 656 , the Supreme Court rejected the challenge to a similar Circular No. 226(24) dated 14.11.1995, which inter alia provided that a Meritorious Reserved Candidate, treated as general merit candidate and allotted a seat in the general merit category might instead, choose a seat from amongst the seats earmarked for that particular reserved category to which he belonged, to gain admission in the college of his preference and on doing so the seat left by the Meritorious Reserved Candidate would go to a candidate of the same reserved category.10. In Tripurari Sharan (supra) this court held:11. This Court has repeatedly, including the judgment in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1], concluded that the aggregate reservation should not exceed 50%. Therefore, even when an MRC opts for a seat reserved for reserved category candidates, caution has to be exercised to maintain the reservation to 50%. So also it is not open for the authorities to deny an MRC a seat in the college of his preference based on his merit, if such seat is available at the relevant point of time and the same is reserved for candidates of the reserved category to which the MRC belongs. This is because there may be instances where an MRC may not get a seat in the institution of his choice on the basis of his own merit in the general merit. Under such circumstances, he may opt to be treated notionally as a candidate belonging to the reserved category only for the purpose of getting a seat in the college reserved for reserved category students. If such MRC is to be placed in the reserved merit list of his category, he would be ranking high and may get better choice of institution or course. An MRC cannot be placed in a disadvantageous position by not permitting him to be treated as reserved candidate, as that would amount to making him suffer for his better performance in the competitive examination.11. In Ritesh R. Sah v. Dr. Y.L. Yamul and Others reported in (1996) 3 SCC 253 , this Court held that a meritorious reserved category Candidate who had qualified for admission on his own merit by reason of his general over all rank, could opt for a reserved seat in a discipline/college of his choice. However, on exercise of such option, the meritorious reserved category candidate would be treated as a candidate of the general category and not of the reserved category. The meritorious reserved category candidate might opt for a seat reserved for the class to which he belongs, only for the limited purpose of getting a better choice of seat.13. In Samta Aandolan Samiti and Another v. Union of India reported in (2014) 14 SCC 745 , this Court, relying upon its earlier decisions in Indra Sawhney (supra) and Ramesh Ram (supra), held:16......It is now a well-entrenched principle of law that those members belonging to the reserved category who get selected in the open competition on the basis of their own merit have a right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Castes. This was recognised by the Constitution Bench judgment of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and has been followed in a series of judgments thereafter. Thus, when certain persons belonging to the reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. As a fortiori, while calculating the limit of 50% reservation, those candidates belonging to reserved category who have found their place on the basis of their merit competing with general candidates are not to be taken into consideration. It is also not in dispute that such OBC/SC candidates who have been included in general category have come in that category on their own merit with no relaxation of the eligibility level i.e. percentage of marks........* * * * * *19. It is stated at the cost of repetition that those members who belong to reserved category but get selected in the open competition on the basis of their own merit have a right to be included in the general/unreserved category. Such MRC are not to be included in the quota reserved for the Scheduled Castes, etc. It is an admitted position that if these persons are excluded, the respondents have not exceeded the quota meant for the reserved category. The respondents, at the time of counseling, have only accorded a higher/better choice to these meritorious reserved candidates (MRC) who got recommended against general/unreserved seats visd-vis those reserved category candidates who are accommodated against their quota. It is, therefore, an inter se adjustment between the two kinds of persons belonging to the reserved category. In their inter se merit, these persons who have been able to find their place in general list on account of their merit are definitely better placed than those candidates who are selected in the reserved category, though both types of candidates belong to the reserved category. Thus, if between these two categories of persons belonging to the same class, higher choice is not given to the persons who are better in merit viz. the MRCs, it would clearly be injustice to them. This was precisely the issue which was referred for decision to the Constitution Bench in Ramesh Ram [Union of India v. Ramesh Ram, (2010) 7 SCC 234  : (2010) 2 SCC (L&S) 412]............* * * * * *21. Dealing with the first question which directly arises in the present case, the Court in Ramesh Ram case [Union of India v. Ramesh Ram, (2010) 7 SCC 234  : (2010) 2 SCC (L&S) 412] clarified that a distinction is to be maintained between the cases dealing with the admission to educational institutions and appointment to a service. The Court accepted the general proposition that such a course of action affords meritorious reserved candidates (MRC), the benefit of reservation insofar as service allocation is concerned, if this is not done, lesser meritorious reserved candidates would be able to secure a better discipline. Therefore, this course of action preserves and protects inter se merit amongst the reserved candidates.* * * * * *24. Since we are concerned with the admission to a medical course, the aforesaid judgment in Ramesh Ram case [Union of India v. Ramesh Ram, (2010) 7 SCC 234  : (2010) 2 SCC (L&S) 412] squarely applies to the present case. Thus we find that neither is the upper limit of 50% reservation breached, nor are any rights of the petitioners violated or the action of the respondents have been to their prejudice in any manner. Thus, we do not find any merit in the present petition, which is accordingly dismissed. No costs.18. It is true, as observed by the High Court, that the decisions of this Court, referred to above proceed on the premise that a Meritorious Reserved Category candidate continues to be an open category candidate, despite sliding down, to opt for a reserved seat. However, the finding of the High Court that this does not happen anymore, under the online system of counseling is misconceived. The reasoning of the High Court for its finding as aforesaid is not clear and smacks of apparent confusion. The comparative example of the possibility that a Meritorious Reserved Category candidate belonging to the Scheduled Castes who slides down to a reserved post of his choice might lose the benefit of reservation in the matter of promotion, if he continues to be treated as an open category candidate is misconceived since there is no scope for promotion in case of admission to education institutions, conducting undergraduate medical courses.20. In the case of Civil Services Examinations, some services are more coveted than others and successful candidates compete amongst themselves to secure services of their choice. A meritorious reserved category candidate, who qualifies on his own merit to get a rank in the general list, should not be disadvantaged by reason of being assigned a less coveted service against the vacancies in the general category. Such a candidate, can therefore, choose to shift to the reserved category under Rule 16(2) of the Civil Services Examinations Rules. However, meritorious reserved category candidates who avail the benefit of Rule 16(2) and are adjusted in the reserved category are to be counted in the reserved quota and the seats vacated by meritorious reserved candidates in the general category pool are to be offered to general category candidates. This principle is not attracted in cases of medical admissions.21. Learned senior counsel appearing on behalf of the appellants argued, and rightly, that the High Court has erred in holding that reservation had been increased to more than 50% and has also erred in not properly appreciating the ratio laid down by this Court in Ritesh R. Sah, Samta Andolan Samiti and Tripurari Sharan (supra). While considering the data of academic year 2018-2019, as noted in para 43 of the judgment under appeal, the High Court had overlooked the fact that 203 meritorious candidates belonging to backward classes, who had ranked well and secured admission to open and/or general category seats, and were treated as general category candidates, have been shown as belonging to the backward classes. The number of candidates of the backward classes has therefore been shown as 588. If the 203 meritorious reserved class candidates of the general category are deducted from the total number of candidates of backward classes, the number of backward classes candidates of the reserved quota would only be 392. The 203 meritorious candidates are to be added to the number of open category candidates with addition of 203 to 469 the number of open category candidates would be 672. Thus, the High Court has committed a patent error in holding that reservation has exceeded 50%. According to counsel appearing for the appellants, the High Court has not correctly appreciated the implications of the change in the system of counseling from manual to online. The online programme is tuned in a way that eliminates the possibility of any deviation from the percentage of seats fixed for the respective categories. Thus, the decision of the High Court is not only contrary to the Full Bench decision of the same High Court but also against the decisions of this Court as by sliding down the open category MRC, the reservation does not exceed 50%.22. The judgment and order under repeal is fraught with inconsistencies. In paragraph 59, the High Court purported to clarify that the High Court was not taking a view even remotely contrary to the law laid down by the Full Bench in Koganti Jayakrishna (supra) but, at the same time, proceeded to set aside paragraph 5(ii) of the impugned Government Order, which had been upheld in Koganti Jayakrishna (supra).23. As observed above, the decision of the Full Bench was binding on the Division Bench. The impugned Government Order was not set aside by the subsequent Full Benches. The High Court has acted in flagrant breach of judicial discipline, in taking a decision, which is contrary to and inconsistent with a Full Court decision. If the High court found any divergence in the decisions of different Full Benches referred to in the judgment and order under appeal, the High court ought to have referred the question in issue to a larger Bench. Instead, the Division Bench of the High Court has, in effect, sat in appeal over the decision of its Full Bench.24. As argued on behalf of the appellants, the validity of the impugned Government Order had been upheld in Koganti Jayakrishna (supra). The question should not, therefore, have been reopened by a Bench of lesser strength. Furthermore, the issue was no longer res integra in view of a catena of decisions of this Court including Ritesh R. Sah, Samta Aandolan Samiti and Tripurari Sharan (supra) where identical Government Orders had been questioned.25. The impugned Government Order provides for two different rounds of counseling. The first round counseling for open category candidates is to be held as per the merit position alone, irrespective of whether the candidates belong to scheduled castes, scheduled tribes or backward classes. Even reserved category candidates, who qualify for admission on their own merit, have to be treated as open category candidates. The second round of counseling is for Scheduled Caste, Scheduled Tribe and Backward Class candidates. Paragraph 5(ii) of the impugned Government Order, as observed above gives a meritorious reserved category candidate the option of better discipline or better college of his choice for which he or she would be eligible as a reserved candidate and the seats vacated by such meritorious reserved category candidates would have to be filled from amongst candidates of the same category candidate only in the order of merit.26. The impugned Government Order only provides for adjustment and interchange of seats between meritorious reserved category candidates selected under the open category and the reserved category candidates selected under the reserved quota.27. The introduction of online counseling appears to have brought about some changes in the process of counseling which might necessitate an amendment of the impugned Government Order for complete harmony. Earlier, what was done in two stages is done in online system at first stage itself. The Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 and in particular Rule 8(2) to thereof may also require amendment. However, the recent introduction of the online system could not have been a ground for setting aside the impugned notification which has been in force for seventeen years, and the validity whereof has been upheld by a Full Bench of the High Court. The judgment and order under appeal is unsustainable.28. It appears that the procedure prescribed in the impugned Government Order cannot be implemented without some minor deviation consequential to the introduction of the system of online counseling. Such deviations do not in our view invalidate the admissions. It would, however, be open to the Government to amend the impugned Government Order and or alternatively issue a fresh Government Order to harmonies online counseling with statutory rules and government orders. The statutory rules may, if necessary, be amended. However, the admission made this year should not be disturbed. Any vacancies may be filled up on merit basis without disturbing the allocation of seats for candidates of the respective categories.