The impugned Government Order, which provided 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, was valid and could be implemented without any deviation consequential to the introduction of the online counseling system.

ORDER :

1. Leave granted.

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:

“5. 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 and 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.”

4. The Constitution of India envisages equality before the law and equal protection of the laws. The concept of equality inter alia under Articles 14 to 16 of the Constitution of India contemplates elimination of inequalities of status. As held by the Constitution Bench of this Court in Indra Sawhney vs. Union of India, 1992 Supp. (3) SCC 217, though equal protection clause prohibits the State from making unreasonable discrimination in providing preference and facilities for any section of its people, nonetheless it requires the State to afford substantially equal opportunities to those placed unequally.

5. Equality contemplated by Article 14 and related Articles, particularly Article 15(1), is secured not only when equals are treated equally but also when un-equals are treated unequally. Equal treatment of un-equals breaches equality. To bring about equality, it is necessary to adopt positive measures to eliminate inequality.

6. The basic object of the policy of reservation is to eliminate inequality between classes and/or castes. Reservation in favour of the Scheduled Castes, Scheduled Tribes or Backward Classes provides opportunity to those socially disadvantaged classes to come into the main stream through education, public appointments etc, by eliminating stiff competition from the socially strong. A comprehensive methodological approach to reservation is necessary.

Often, in competitive examinations held for the purpose of selection for admission to educational institutions or may be appointments, some candidates belonging to reserved categories, rank high on their own merit. Depending on their performance in the common entrance test such candidates are often placed in the general merit list. Such class of candidates belonging to