Judgment : Per Bansi Lal Bhat, J. 1. This Letters Patent Appeal is directed against the judgment of the writ Court dated 20.08.2001 passed in SWP No. 1817/1999 titled Kewal Krishan v State of J&K and ors. by virtue whereof writ petition filed by respondent No. 1-Kewal Krishan was allowed and he was held entitled to selection for the post of Lecturer (English). 2. The case set up by respondent No.1 before the writ Court was that on 01.08.1997 a notification was issued by J&K Public Service Commission- appellant herein to fill up the vacancies for the post of Lecturer (English). In pursuance of the said notification in-service candidates as also aspirants for direct recruitment were eligible for selection. It was claimed before the Writ Court that the aforesaid notification was followed by issuance of notifications dated 05.08.1997 and 31.12.1997. Twenty vacancies were notified for selection, out of which 11 were to go to General Category, 04 to RBA Category, 03 to Schedule Caste Category and one each was to go for Scheduled Tribe and Actual Line of Control Category. Respondent No. 1 applied under RBA Category, but he was unable to submit the requisite certificate at the time of submission of his application as the RBA certificate was under process. He could not even support his application with degree in M.A in English which was not available at that time. He was called upon to make good deficiency in terms of communication dated 10.07.1998. Respondent No. 1 claimed to have submitted the requisite certificates in time. He was called for interview, he appeared in the same however, his name did not figure in the list of selected candidates. Respondent No. 1 claimed before the writ Court that respondents 3, 4 and 5 (Proforma-respondents herein) were selected after de-reserving the posts meant for RBA Category. Thus, he assailed the appointment of proforma respondents 3 to 5. Respondent No. 1 also cited instance of one Neeraj Sharma who had submitted his degree certificate on the same date when respondent No. 1 submitted his certificates and Neeraj Sharma was selected on the basis of such degree certificate. 3. Appellant-Public Service Commission pleaded before the writ Court that respondent No. 1 could not come high up to the standard for selection on merit. He could not even make the grade under relaxed standard applicable to RBA Category. 3. Appellant-Public Service Commission pleaded before the writ Court that respondent No. 1 could not come high up to the standard for selection on merit. He could not even make the grade under relaxed standard applicable to RBA Category. It was contended that while 50% out of total marks was reserved for selection as the minimum basis for determining the suitability under open merit category, the standard was relaxed up to 40% in case of reserved category candidates. It was further pleaded that the merit of last selected candidate in open merit category was 53%, whereas the selected candidate in RBA category had merit within the range of 40% to 46%. It was further pleaded that percentage of respondent No. 1 had come upto 27% which was far below the relaxed standard of 40% meant for RBA Category. Thus, respondent No. 1 failed to make a grade even by the relaxed standard. 4. Learned writ Court was of the view that since in the first attempt of recruitment, suitable candidates under RBA Category were not available, second attempt had to be made in the same recruitment year. If even for the second attempt suitable candidates were not available, the vacancies could be treated as backlog vacancies, provided that the total number of reserved vacancies did not exceed 50% of total vacancies. Thus, appellant-Public Service Commission was not competent to make any recommendation at the very first instance to fill up the vacancies meant for reserved candidates by offering same to the General Category. Learned writ Court was of the view that breach of Rule 13 of J&K Reservation Rules, 1994 had been committed, therefore, directed appellant-Public Service Commission to consider the claim of respondent No. 1 against an available vacancy, however, it did not quash the appointment of proforma-respondents 3 to 5. 5. The impugned judgment is assailed on the ground that respondent No. 1 had failed to make the grade for being recommended for appointment even by relaxing the standard up to 40%. It is contended that the method of de-reservation under SRO 126 of 1994 has been upheld as being valid by the same Bench while deciding SWP No. 436/1999 and SWP No. 407/1999. It is contended that the method of de-reservation under SRO 126 of 1994 has been upheld as being valid by the same Bench while deciding SWP No. 436/1999 and SWP No. 407/1999. It is further contended that interviews were conducted in terms of J&K Public Service Commission Business and Procedure Rules, 1980 by the committee duly constituted in this behalf which was assisted by an eminent Expert from outside the State. Candidates were recommended on the basis of their overall performance in interview, academic merit, experience and other relevant factors. Three candidates selected under RBA Category possessed merit within the range of 40% to 46% which was well above the standard of 40% fixed for the said category. However, respondent No. 1 was within the range of 27% only, which was far below the 40% fixed for the said category. It is further contended that all 33 posts were filled up and since the requisite number of candidates against reserved category posts were not available, selection was made out of general category in terms of letter No. Edu-Coll/Aptt-Lect/97-98 dated 16.10.1997, so that the posts may not remain vacant. It is contended that the same Bench of this Court has approved the method of de-reservation adopted by the appellant-Public Service Commission in SWP Nos. 436/1999 and 407/1999 in terms of judgment rendered on 31.01.2000. 6. Heard learned counsel for the parties and perused the record. 7. Rule 13 of the Jammu and Kashmir Reservation Rules, 1994 promulgated vide SRO 126 dated 28th June, 1994 provides as under:- 13. vacancies to be carried forward.- (i) Subject to the provisions hereinafter contained in this Part II, if a sufficient number of candidates from the Scheduled castes, Scheduled Tribes and Backward Classes are not available on the occasion of any recruitment for filling all the vacancies reserved for them in direct recruitment, the vacancies shall not be filled up from amongst the candidates who are not members of Scheduled Castes, Scheduled Tribes and Backward Classes. (ii) If in the first attempt of recruitment, suitable candidates are not available, second attempt may be made in the same recruitment year and if even then suitable candidates are not available, the vacancies shall be treated as backlog vacancies? provided that the total number of reserved vacancies shall not exceed 50% of total available vacancies. (iii) In subsequent year, when recruitment is made for reserved vacancies, the backlog? provided that the total number of reserved vacancies shall not exceed 50% of total available vacancies. (iii) In subsequent year, when recruitment is made for reserved vacancies, the backlog? vacancies shall be announced, provided that total number of reserved vacancies shall not exceed 50% of total vacancies. (iv) The reserved vacancies remaining vacant for a period exceeding three years recruitment drive shall be treated as de-reserved. (v) Where the vacancies cannot be allowed to remain un-filled in public interest, the Department concerned shall make a proposal for de-reservation of the vacancies giving full justification there for. The Administrative Department concerned shall place the proposal for de-reservation to the General Administration Department for final decision. 8. A plain reading of this Rule would show that if in the first attempt of recruitment, suitable candidates from Scheduled castes, Scheduled Tribes and backward Classes are not available, second attempt has to be made in the same recruitment year and if even in the second attempt suitable candidates are not available, the vacancies are to be treated as backlog vacancies?, provided that the total number of reserved vacancies shall not exceed 50% of total available vacancies. It further provides that the reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive shall be treated as de-reserved. The Rule further provides that where the vacancies cannot be left un-filled in public interest, concerned department shall make a proposal for de-reservation of the vacancies and the Administrative Department shall place the same before the General Administration Department for final decision. It is, therefore, manifestly clear that as a general rule Public Service Commission would not be competent to make recommendation at the very first instance to fill up the unfilled vacancies meant for reserved category candidates. Vacancies meant for the reserved category candidates cannot be offered to General Category candidates in the very first attempt of recruitment. However, this position emerging from the rule is not absolute and unqualified. Reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive have to be treated as de-reserved. Apart from it where public interest so demands, the department concerned can make a proposal for de-reservation of the vacancies giving full justification and the Administrative Department has to refer the same to General Administrative Department for final decision. Reserved vacancies remaining vacant for a period exceeding three years despite recruitment drive have to be treated as de-reserved. Apart from it where public interest so demands, the department concerned can make a proposal for de-reservation of the vacancies giving full justification and the Administrative Department has to refer the same to General Administrative Department for final decision. This leaves no scope for doubt that public interest is of paramount consideration in making a departure from the normal rule of carrying forward the reservation and the Government can authorize utilization of in-service candidates to fill in the vacancies remaining unfilled on account of failure of candidates in the reserved category to make the grade. Consequently, such un-filled reserved category vacancies will stand de-reserved within the purview of Rule 13 of SRO 126 of 1994. 9. Admittedly, the appellant issued notification on 01.08.1997 inviting applications from eligible persons who were in-service and those who were not in-service to fill up 20 vacancies for the post of Lecturer (English) with the following breakup. General Category 11 RBA Category 04 Schedule Caste Category 03 Scheduled Tribe Category 01 Actual Line of Control Category 01 10. Respondent No.1, admittedly applied as a non-serving candidate under RBA category. His case was considered under RBA category under the relaxed standard adopted by the Public Service Commission. However, he failed to make the grade. It is not in controversy that 50% marks out of total were reserved for selection as the minimum basis for determining of suitability under the Open Merit Category. The standard in respect of reservation category was relaxed up to 40%. It is not disputed that the merit of last selected candidate in the Open merit category was 53%. Three candidates selected under RBA Category possessed far high and superior merit than the petitioner as their merit ranked between 40% to 46%, whereas the petitioner barely managed to secure 27% marks and could not make the grade even by the relaxed standard. 11. Appellant has placed reliance upon a communication dated 16.10.1997 from Under Secretary to Govt. Higher Education Department addressed to the Secretary, Public Service Commission in regard to filling up of the posts of Lecturers in Degree Colleges to demonstrate that the posts were available prior to 01.06.1997 and are, therefore, covered under SRO 297 dated 20.08.1997. 11. Appellant has placed reliance upon a communication dated 16.10.1997 from Under Secretary to Govt. Higher Education Department addressed to the Secretary, Public Service Commission in regard to filling up of the posts of Lecturers in Degree Colleges to demonstrate that the posts were available prior to 01.06.1997 and are, therefore, covered under SRO 297 dated 20.08.1997. It was stipulated in the communication that in case the requisite number of candidates against reserved category posts were not available, the selection may be made out of General Category Candidates so that the posts may not remain vacant. The appellant claims to derive authority from the aforesaid communication to buttress its argument that the public interest did not warrant allowing of the posts under reserved category to remain vacant on account of no candidates making the grade under such category and the posts under RBA Category were filled up from in-service candidates. It cannot be disputed that the in-service candidates, though not belonging to RBA Category, but being in-service candidates having sufficient experience of teaching were available for utilization of their services in respect of the vacancies under RBA category which remained un-filled as the petitioner could not make the grade. Undoubtedly, such candidates figuring as respondents 3 to 5 in the appeal were more meritorious as compared to respondent No.1, as respondent No.1 could not make the grade for his selection even by the relaxed standard fixed for selection under RBA Category. He had no locus to assail their selection as in-service candidates under RBA Category even though they did not belong to the same. 12. The communication dated 16.10.1997 from Under Secretary to Higher Education Department addressed to Secretary, Public Service Commission has to be treated as an authorization on behalf of the State to utilize the in-service candidates against the vacancies remaining un-filled on account of failure of candidates in the reserved category to make the grade. The effect of such authorization on behalf of the State is that the three posts under RBA Category stand de- reserved within the meaning of Rule 13 of SRO 126 of 1994. 13. In view of this position emerging from record, respondent No.1 cannot be heard to say that there is infraction of the Reservation Rules. That being so, respondent No.1 cannot be held entitled to consideration for selection under RBA Category or any other vacancy. 13. In view of this position emerging from record, respondent No.1 cannot be heard to say that there is infraction of the Reservation Rules. That being so, respondent No.1 cannot be held entitled to consideration for selection under RBA Category or any other vacancy. The impugned judgment cannot be supported and the same deserves to be set aside. 14. In view of the aforesaid discussion, appeal is allowed and the impugned judgment dated 20.08.2001 is set aside.