HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 33065 OF 2010 Between: The Union Public Service Commission, represented by its Secretary ………….Petitioner AND Miss Hari Chandana Dasari D/o D. Sreenivasulu and two others ………….Respondents ORDER: (Per Hon'ble Sri Justice GHULAM MOHAMMED) Challenging the order dated 16.11.2010 passed in O.A.No. 970 of 2010 by the Central Administrative Tribunal, Hyderabad Bench, the present Writ Petition is filed by the Union Public Service Commission. Brief facts of the case are that the first respondent herein earlier filed O.A.No. 513 of 2010 aggrieved by the orders dated 17.9.2009 and 20.10.2009 of the first respondent therein viz., Union Public Service Commission, represented by its Secretary in rejecting her request to treat her as belonging to the Scheduled Caste Community for the Civil Services Examination (C.S.E), 2009, though she categorically mentioned in her application form for the reasons that she belongs to the said community. We are therefore of the view that the applicant’s claim that she shall be considered as a candidate belonging to SC community is legally sustainable. That O.A was allowed in part on 11.8.2010 observing as under: “In the result, the O.A is partly allowed. The impugned letters of the 1st respondent dated 17.9.2009 and 20.10.2009 are quashed and set aside. The applicant is given liberty to make a fresh representation to the 1st respondent citing additional grounds, if any, within a period of 10 days from the date of receipt of a copy of this order. The 1st respondent shall consider and dispose of that representation, keeping in view the observations made from para-6 supra within a period of two weeks from the date of receipt of such representation. The interim orders will stand vacated once the fresh representation is disposed.” It is stated that the first respondent herein made a representation to the Secretary UPSC, which was received by the office of the Secretary UPSC on 12.5.2010 and the same was rejected. The representation made, reads as under: “I, Harichandana Dasari, Roll No. 367802, candidate for the Civil Services Preliminary Exam 2009, did not claim reservation under the Schedule Castes Category assuming that I would be classified as creamy layer. Having realised my mistake, I now request you to pardon my error and kindly change my status accordingly. Enclosed is the requisite proof to substantiate my claim. I greatly regret the inconvenience caused and hope my request is looked upon fairly.” It is also submitted that she also made a representation dated 25.9.2009 before the Secretary UPSC, New Delhi, which was also rejected by the first respondent vide letter dated 20.10.2009. Aggrieved by the same, the first respondent herein filed the present O.A.No. 970 of 2010, which is impugned in this Writ Petition. The Tribunal allowed the O.A and the impugned proceedings dated 3.9.2010 of the first respondent were quashed. The relevant observation at paragraphs 14 and 15 reads as under: “14. Note 3 below para-17 of detailed instructions (supra) gives some discretion to the Commission and when such discretion is available, each case has to be examined on merits and the discretion should be exercised in a fair and reasonable manner. That the applicant herein belongs to SC Mala Dasari has not been disputed. That she applied for a change in her community status even before the preliminary examination was held has also not been disputed. No doubt the applicant committed an error, nay, a blunder, when she declared in her application for the preliminary examination that she belonged to the general category. But it is such a grave error that she has to forego her constitutional right for the next 35 years of her career? We do not think so. In our view, the 1st respondent should have weighed the wisdom of protecting the constitutional right of the applicant who belongs t a socially disadvantaged section vis-à-vis the mechanical rejection of her representation on mere technicalities. We are therefore of the considered view that the impugned proceedings dated 3.9.2010 of the 1st respondent are liable to be set aside. 15. Issues (ii) & (iii): We have already held in our order dated 11.8.2010 in O.A.No. 513 of 2010 that the applicant’s claim that she should be considered as a candidate belonging to S.C community is legally sustainable. It follows from the foregoing discussion that the applicant is entitled to be treated as a SC candidate and therefore entitled to claim the benefit of reservation. In the last two decades, the Hon’ble Supreme Court, through a series of landmark judgments, has consistently protected the constitutional rights of SC/ST/OBC communities. In Union of India and another vs. Satya Prakash and others ((2006) 4 SCC 550) the Honourabe Supreme Court considered the question whether the OBC candidates selected on merit and were placed in the list of open category candidates could still for the purpose of placement (preference) be considered to be OBC candidates thereby exhausting the quota reserved for relaxed OBC candidates from allocation of services. After tracing the history of treating Meritorious Reserved candidates through several judgments such as Indra Sawhney vs Union of India (1992 (Supp) 3 SCC 217), R.K. Sabharwal vs. State of Punjab ((1995) 2 SCC 745), Union of India vs. Virpal Singh Chauhan ((1995) 6 SCC 684), Ritesh Sah vs. Dr. Y. L. Yamul ((1996) 3 SCC 253), the Hon’ble Apex Court held in Para 20 of Satya Prakash supra as follows:- “20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference.” Aggrieved by the same, the Union Public Service Commission, represented by its Secretary, filed the present Writ Petition. Sri B. Narasimha Sharma, learned counsel appearing for the petitioner vehemently contended that in the notification itself they have clearly indicated at Note-3 that “No change in the community status indicated by a candidate in the application form for the preliminary examination will ordinarily be allowed by the Commission at a subsequent stage”, and therefore, in O.A.No. 513 of 2010, the Tribunal rightly directed the first respondent herein to make a fresh representation citing additional grounds if any, within a period of 10 days to the petitioner herein and the petitioner herein shall consider the same keeping in view the observations made in paragraph 6 of the order and the UPSC by its letter dated 27.5.2009 informed the first respondent that her request for change of her community from ‘General’ to ‘Scheduled Caste’ in the Civil Services (Preliminary) Examination has not been acceded to and the said order of rejection was never assailed by her before any Court either in earlier O.A.No. 513 of 2010 and therefore, the said order dated 27.5.2009 had attained finality. He also submits that the first respondent once again submitted a representation dated 25.9.2009 requesting to change her community status and the same was considered and rejected by UPSC by its letter dated 20.10.2009. Therefore, the order of the Tribunal is contrary to law and the same maybe set aside. On the other hand Mr. C. Prakash Reddy, Senior Counsel submits that it was a bonafide error since the first respondent was under the mistaken belief that she would be classified as belonging to the ‘creamy layer’ and would not get any benefit, and therefore did not claim reservation under the SC category initially. He also contended that there is no reference to SC/ST reservation in the Note 1 under Col. 6(a) of the Application Form relating to community, which reads as under: “Candidates belonging to OBCs but coming in the ‘Creamy Layer” and thus not being entitled to OBC reservation should indicate their community as ‘General Category (Others) Code No.4” Therefore it is contended, the first respondent under mistaken impression that the creamy layer concept was applicable to SC/ST categories she would have indicated her community as ‘General’ and there is no other reason for her to do so. He further submits that the request for change of community was made even before the petitioner appeared for the Preliminary Examination. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, the Tribunal while allowing the O.A.No. 513 of 2010 in part directed the petitioners herein to dispose of the representation of the first respondent herein keeping in view the observations made in paragraph 6 of the order. For ready reference, the relevant portion Paragraph 6 of the order reads as under: “6. The learned counsel for the 1st respondent referred to the declaration made by the applicant on 24.12.2008 in her Application Form for the Preliminary Examination in which she has declared that “all statements made in this application are true, complete and correct to the best of my knowledge and belief”. The learned counsel for the applicant countered that her knowledge and belief at the time of making the above statement was that she belonged to “General Category”. We find it difficult to believe that a person who had her entire education in Andhra Pradesh from 1st standard till she passed her M.A., in 2005 and has an impressive academic record would not have been aware of her social status especially when her father was availing himself of the benefit of the reservation policy as an IAS Officer. The learned counsel for the applicant further contended that it was a bonafide error since she was under the mistaken belief that she would be classified as belonging to the ‘creamy layer’ and would not get any benefit and therefore did not claim reservation under the SC category. This seems a more plausible explanation sine Note-I under Col-6(a) of the Application Form relating to community states as follows:- “Candidates belonging to OBCs but coming in the ‘Creamy Layer’ and thus not being entitled to OBC reservation should indicate their community as “General Category (Others) Code No. 4”. Though there is no reference to SC/ST reservation in the said Note, it is quite possible that the applicant under the mistaken belief that the creamy layer concept was applicable to SC/ST categories as well would have indicated her community as ‘General’. There can be no other reason for her to do so. If her intention had been not to want to claim reservation to which she was entitled as a SC candidate, she would not have made a request for change even before appearing for the preliminary examination. Be that as it may, the question is whether she is entitled to claim the benefit of reservation since she had taken up the matter with the 1st respondent even before the Preliminary Examination was held.” The case of the first respondent is that she applied for Civil Services Examinations (CSE), 2008 as a ‘general’ category candidate, secured selection and was appointed to the Indian Revenue Service as an Assistant Commissioner of Customs and Central Excise and she is at present on probation as Assistant Commissioner. As she was keen on IAS, she applied for CSE, 2009 under the general category. As her father belongs to SC community she submitted a representation on 2.7.2009 to the petitioner to treat her as SC candidate. After that she was declared successful in the Preliminary Examination and became eligible to appear in the CSE, 2009 Main Examination. Later she also came out successful in the Main Examination and appeared for personality test. There she was treated as General category candidate and in the final result declared on 6.5.2010 she had secured rank No. 150 under general category. Her main grievance is had she been treated as SC candidate, her rank would have been seven (7) in number in the reserved category. Hence, she approached the Tribunal and the Tribunal elaborately considered the matter and allowed the O.A by setting aside the impugned proceedings dated 3.9.2010 of the first petitioner herein and observed that the first respondent herein is entitled to claim the benefit of reservation as a SC candidate and allotment of service/cadre in accordance with the law laid down by the Constitutional Bench of the Supreme Court in UNION OF INDIA VS. RAMESH RAM AND OTHERS[1]. Further the Tribunal in O.A. 513 of 2010 earlier by an order dated 17.9.2009 where already it categorically held that the first respondent’s claim that she should be considered as a candidate belonging to Schedule Caste Community is legally sustainable and the order has become final as it was not challenged. Added to that the Union Public Service Commission did not make any dispute with regard to first respondent’s claim that she belongs to Schedule Caste. Hence, the Tribunal has not committed any jurisdictional error so as to interfere with the order under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J ______________________ N. RAVI SHANKAR, J DATE: 29.12.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (2010) 5 SLR 452