The main legal point established in the judgment is that the Public Service Commission was authorized to utilize in-service candidates to fill the unfilled reserved category vacancies, and the respondent failed to meet the required standards for selection under the RBA Category.

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. 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 o