JUDGMENT : Sanjeev Kumar, J. 1. The petitioners, who claim to be registered migrants with the Office of Relief & Rehabilitation Commissioner (Migrants), Jammu, have filed this petition to quash Order No. 10-DMRRR of 2019, dated 06.03.2019 to the extent it operates retrospectively. The petitioners also challenge the communication of Deputy Secretary to Government, Department of DMRRR issued vide his No. DMRRR/MR/96/2019, dated 14.06.2019, whereby respondent No. 4 has been requested to re-advertise the unfilled RBA Category posts against which no application forms have been received so that the candidates belonging to RBA Category can apply and get benefited under the Hon'ble Prime Minister's Employment Package issued for facilitating the return and rehabilitation of kashmiri migrants. 2. Precisely stating the facts leading to the filing of this petition, as projected by the petitioners in this petition, are that respondent No. 4 issued Advertisement Notification No. SSBI/Sel/Secy/2017/12620-30, dated 28.11.2017 inviting applications for filling up supernumerary posts created under the Hon'ble Prime Minister Package for Kashmiri Migrants for different district cadre and divisional cadre posts. The posts notified included the posts of Junior Engineer (Mechanical), Junior Engineer (Electrical) and Statistical Assistant as well. As is apparent from advertisement notification, the total posts notified for selection were 1140. The petitioners claim that they being eligible applied online for the aforementioned posts. They participated in the selection under the general category but could not make it to the select list. The petitioners submit that as against 70 posts of Statistical Assistant, only 41 candidates were selected. Similarly, in the case of Junior Engineer (Mechanical), 15 were selected as against 27 posts and for Junior Engineer Electrical, 28 were selected against 50 posts advertised. All the candidates selected for the aforesaid posts were the general category candidates. The posts earmarked for reserved categories remained unfilled due to non-availability of the candidates. Similarly, in the case of Junior Engineer (Mechanical), 15 were selected as against 27 posts and for Junior Engineer Electrical, 28 were selected against 50 posts advertised. All the candidates selected for the aforesaid posts were the general category candidates. The posts earmarked for reserved categories remained unfilled due to non-availability of the candidates. With a view to filling up the posts that remained unfilled due to non-availability of candidates belonging to reserved categories, the matter was taken to the State Administrative Council (SAC) and pursuant to the decision taken by the SAC, respondent No. 1 issued Government Order No. 10-DMRRR of 2019, dated 06.03.2019, whereby unfilled reserved category posts belonging to SC, ST, OSC and ALC referred to the recruiting agency under Prime Minister's Package for return and rehabilitation of kashmiri migrants created vide Government Order No. 58-DMRRR of 2017, dated 29.07.2017, were de-reserved and were treated as open merit posts to be filled up out of the merit list already prepared by the concerned recruiting agency under open merit category. 3. The grievance of petitioners is that though respondent No. 1, pursuant to the decision of SAC, rightly de-reserved unfilled reserved category posts under SC, ST, OSC and ALC Categories, yet there was apparently no reason or justification not to de-reserve the unfilled posts under RBA Category. The petitioners are primarily aggrieved of exclusion of unfilled reserved posts under RBA Category from de-reservation. The petitioners claim that had respondent No. 1 de-reserved unfilled vacancies belonging to RBA Category, the petitioners would have come in the selection zone and would have got benefited by the Prime Minister's package for employment of kashmiri migrants. The petitioners, as stated above, have also thrown challenge to the communication of Deputy Secretary to Government, Department of DMRRR dated 14.06.2019, whereby unfilled vacancies under RBA Category have been referred to the Service Selection Board for re-advertisement. 4. Learned counsel for the petitioners submits that during the year 2011 the Government, faced with similar situation where large number of vacancies under the reserved categories like ST, SC, ALC, OSC and RBA remained unfilled, came up with Government Order No. Rev/MR/170 of 2011, dated 25.08.2011, whereby all unfilled reserved category posts were de-reserved and the candidates from the general category on the basis of their merit in the selection were picked up and appointed against the aforesaid posts. Learned counsel for the petitioners urges that the Government order dated 06.03.2019, impugned in this petition, has, without any reason or justification, excluded the RBA Category from the purview of its de-reservation process. Learned counsel submits that if the respondents have de-reserved all unfilled reserved category posts belonging to SC, ST, OSC and ALC, they could not have ignored unfilled posts under RBA Category. It is, thus, pointed out that respondent No. 1 in the order impugned made willful departure from its earlier position as it is manifested from Government Order of 25.08.2011. He, therefore, submits that Government Order impugned issued on 06.03.2019 should be given prospective operation and should not be made applicable to the pending selection. He also relies upon a Division Bench judgment of this Court (Srinagar Bench) rendered in the case of LPA No. 207/2012, Ajay Raina & others v. State of J&K & others. 5. I have heard learned counsel for the parties and perused the record. 6. It would be necessary to first set out Section 5 of the J&K Reservation Act, 2004: "5. Vacancies to be carried forward-- (1) Subject to the provisions hereinafter contained, if a sufficient number of candidates is not available from any reserved category during a recruitment process, the posts shall remain vacant and shall be carried forward to the next recruitment process: Provided that nothing herein contained shall prevent launching of a special drive by a selection agency to fill the carried forward vacancies by inviting applications exclusively from persons belonging to such category. Provided further that in respect of selection of candidates under the Jammu and Kashmir Kashmiri Migrants (Special Drive) Recruitment Rules, 2009, if the candidates are not available from any reserved category, other than those falling under sub-clause (1) of clause (o) of section 2, the posts earmarked for any such reserved category may be filled up from amongst the eligible candidates in open merit category. (2) 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. (3) In subsequent year, when recruitment is made for reserved vacancies, the backlog vacancies shall also be notified: Provided that the total number of reserved vacancies including backlog vacancies shall not exceed the percentage reserved for such categories. (3) In subsequent year, when recruitment is made for reserved vacancies, the backlog vacancies shall also be notified: Provided that the total number of reserved vacancies including backlog vacancies shall not exceed the percentage reserved for such categories. (4) The reserved vacancies remaining unfilled for a period exceeding three years shall be treated as de-reserved." 7. From reading of Section 5 in its entirety, it clearly transpires that second proviso to sub-section (1) of Section 5 was added by Act No. VI of 2012, dated 17.04.2012, whereby an exception was carved out in the matter of de-reservation of posts in favour of migrants. Second proviso clearly provides that in respect of selection of candidates under the Jammu and Kashmir Kashmiri Migrants (Special Drive) Recruitment Rules 2009, if the candidates are not available from any reserved category, other than those falling under sub-clause (i) of clause (o) of Section 2, the posts earmarked for any such reserved category may be filled up from amongst eligible candidates in the open merit category. As is further apparent from reading of section 5, all reserved category posts which remain unfilled due to non-availability of candidates belonging to such categories are required to be carry forward to the next recruitment process. It is only if the reserved vacancies remain unfilled for a period exceeding three years, the same are treated de-reserved. In between the respondents are under an obligation to make attempts for recruitment of suitable candidates belonging to the categories. This, however, would not be the position in respect of selection of candidates under the Jammu and Kashmir Kashmiri Migrants (Special Drive) Recruitment Rules, 2009. But, it is interesting to note that unfilled vacancies of the reserved category mentioned in sub-clause (i) of clause (o) of Section 2 have been excluded and are not liable to be de-reserved and the process for filling up the same as envisaged in sub-section (2) of section 5 has to be followed, i.e., vacancies are to be carried forward to the next recruitment year and two more attempts are required to be made. It is only if the vacancies remain unfilled for a period exceeding three years, the same are to be treated as de-reserved. For quick reference, Section 2(o)(1) deserves to be reproduced: "2(o) "socially and educationally backward classes" mean- (i) The persons residing in the backward area;" 8. It is only if the vacancies remain unfilled for a period exceeding three years, the same are to be treated as de-reserved. For quick reference, Section 2(o)(1) deserves to be reproduced: "2(o) "socially and educationally backward classes" mean- (i) The persons residing in the backward area;" 8. From perusal of Section 5 of the Act, it is abundantly clear that no power is vested either in the SAC or the Government to de-reserve the unfilled reserved posts otherwise than as provided in the section. Unfilled reserved posts are required to be carried forward even if these relate to the selection of candidates under the Jammu and Kashmir Kashmiri Migrants (Special Drive) Recruitment Rules, 2009 except as provided under second proviso. While the unfilled vacancies of the reserved categories, other than RBA, can be de-reserved in terms of second proviso to sub-section 1 of Section (5), but the same cannot be done in so far as the unfilled posts belonging to RBA are concerned. The departure made with respect to the reserved category of RBA is well understandable. Prior to issuance of SRO 32.1, dated 27.05.2019, the migrants, who were originally residents of identified backward areas of Kashmir Valley were not getting the category certificates on the ground that they had not been residing in those areas for the last 15 years. The Government though lately appears to have realized that it would be totally unreasonable to expect a migrant staying in a notified backward area of the Valley for 15 years so as to enable him to get the RBA Certificate. With a view to mitigate this hardship of the migrants, who were originally residents of the backward areas, SRO 321 of 2019 came to be issued, whereby Rule 21(iii) of the J&K Reservation Rules, 2005 came to be amended. With a view to mitigate this hardship of the migrants, who were originally residents of the backward areas, SRO 321 of 2019 came to be issued, whereby Rule 21(iii) of the J&K Reservation Rules, 2005 came to be amended. It may be pertinent to take note of the amended Rule 21(iii), which for facility of reference is reproduced hereunder: "(III) A person claiming the benefit on the grounds that he/she belongs to an identified backward area or an area near the Line of Actual Control/International Border, must establish that he/she has resided in the area for a period of not less than 15 years prior to the date of application and is actually residing in the said area; Provided that a person shall not be disentitled from claiming this benefit only on the ground that his/her father or the person on whom he/she is dependent is living in a place which is not identified as backward or area near the Line of actual control or International Border on account of his (a) employment; or (b) business; or (c) other professional or vocational reasons or (d) migration from one place to another place within the respective Division due to security reasons; Provided further that a person who has migrated from Kashmir Division for security reasons will not be disentitled from claiming this benefit even if he/she has migrated outside the Division/State subject to the condition that he/she should have been registered as a migrant with the office of Relief and Rehabilitation Commissioner (Migrants), Jammu." 9. With the issuance of this SRO, it has now become possible for a migrant to get RBA Certificate even if he has not been physically residing in the said area and has been prevented to do so on account of security reasons. The second proviso to Clause (III) of Rule 21 clearly provides that a person who has migrated from Kashmir Division for security reasons will not be disentitled from claiming the benefit of RBA Category even if he/she has migrated outside the division or State, subject to the condition that he/she should have been registered as a migrant with the office of Relief & Rehabilitation Commissioner (Migrants), Jammu. 10. 10. In view of specific provisions of Section 5 of the Act, the plea of the petitioners that RBA Category could not have been excluded from the purview of de-reservation and that the impugned order dated 06.03.2019, which de-reserved unreserved category posts belonging to all other categories except RBA is discriminatory, cannot be accepted. Equally fallacious is the plea of the petitioners that Government Order dated 06.03.2019 should be held prospective in operation and should not be applied to the selections made before the issuance of aforesaid order. Undoubtedly, the advertisement notification for making selection against the supernumerary posts created vide Government Order No. 58-DMRRR of 2017, dated 29.07.2017 was initiated vide Advertisement Notification dated 28.11.2017. The selection was made but the posts earmarked for unreserved categories, i.e., SC, ST, OSC, ALC and RBA remained unfilled due to non-availability of candidates. As per the past practice and also with a view that the benefit of Prime Minister's Employment Package reaches the beneficiaries, respondent No. 1 initiated the process for de-reservation of all unfilled category posts. The matter went to the SAC. The matter was considered by the SAC, which vide its decision No. 73/7/2019, dated 28.02.2019 accorded approval for dereservation of unfilled reserved category posts, other than the RBA Category, in the light of provision of Section 5 of the Act. As already observed, neither the Government nor the SAC could have acted contrary to the mandate of law envisaged in Section 5 of the Act. Section 5, as noted above, clearly takes out RBA Category from the purview of de-reservation. The respondents have thus committed no illegality in not de-reserving the unfilled posts under the RBA Category nor any fault can be found with the impugned communication, whereby the respondent-Board has been directed to re-notify the posts and invite fresh applications from the eligible RBA Category candidates. 11. In view of the foregoing, I find no merit in this petition and the same is accordingly dismissed along with connected CM.