ORDER : 1. Facts necessary for adjudication of the petition are as under: - (i) H.P. State Election Commission declared election programme for conduct of general elections to Panchayati Raj Institutions of Himachal Pradesh vide notification dated 21.12.2020. Prior to that, reservation roster for the offices of Presidents of the Gram Panchayats (for short, ‘GP’)in District Shimla had been issued by respondent No.4 on 14.12.2020. For Development Block Theog, offices of Presidents of three Panchayats namely Dhamandri, Baldhar and Sainj were declared reserved for Backward Classes. At the time of such declaration there were 212 persons from backward classes in GP Sainj as per data available with respondent No.5 and notified by Department of Social Justice and Empowerment (for short, ‘SJ&E’) vide notification dated 4.11.2010. (ii) The dispute herein relates to the reservation to the office of President, Gram Panchayat Sainj. (iii) In the first instance respondent No.6 herein assailed reservation of Gram Panchayat Sainj for aforesaid purpose before this court by way of CWP No. 6352 of 2020 on the ground that there was not even a single person belonging to backward class in entire Panchayat. During the pendency of the said petition, a corrigendum dated 12.11.2021 was issued by Department SJ &E inter-alia notifying the population of persons belonging to backward classes in GP Sainj as Nil. Resultantly, respondent No.4 vide notification dated 30.4.2022, dereserved the office of the President GP Sainj. This development led to the culmination of proceedings in CWP No. 6352 of 2020, as infructuous vide order dated 4.5.2022. (iv) Before the final disposal of CWP No. 6352 of 2020, petitioner therein had moved an application for impleadment of Smt. Indira Devi, Smt. Manju Kumari and Smt. Rita Devi as party respondents on the premise that they would be necessary and proper parties, as they had filed their nominations to contest the office of President, GP Sainj as candidates belonging to backward classes (v) The instant petition, now has been filed by two of the three above mentioned proposed respondents in CWP No. 6352 of 2020, namely Smt. Rita Devi and Smt. Indira Devi. Their grievance is against de-reservation of office of President GP Sainj. Petitioners claim themselves to be the members of backward classes. Certificates issued by Tehsildar, Theog certifying the petitioners to be the members of backward classes have been placed on record. Their grievance is against de-reservation of office of President GP Sainj. Petitioners claim themselves to be the members of backward classes. Certificates issued by Tehsildar, Theog certifying the petitioners to be the members of backward classes have been placed on record. vi) Petitioners herein contend that notification dated 30.4.2022, issued by respondent No.4, declaring office of GP Sainj available to general category is in violation of instructions dated 24.9.2020, issued by Secretary Panchayati Raj. As per these instructions, for the purposes of reservation roster the Development Block is taken as one unit. No reservation to the office of President of GP is available for backward classes in those development blocks which have less than 5% of their total population belonging to such classes. Where the population of backward classes in a development block is 5% or more of its total population, reservation for backward classes for the office of Presidents GP becomes available in same proportion to total number of seats of Presidents GP in the entire block as is the ratio of population of backward classes to the total population in entire block. The reservation for backward classes cannot be more than 15%. According to petitioners the de-reservation of GP Sainj for above said purpose shall leave only two seats of the office of Presidents GP reserved for backward classes as against required three as per above mentioned instructions. (vii) Respondents No.1, 2 and 4 have submitted their joint reply. These official respondents have also relied upon the instructions dated 24.9.2020, issued by Secretary, Panchayati Raj in respect of reservation to the posts of Presidents of Gram Panchayats and other office bearers of Panchayat Samiti and Zila Parishad. It is submitted that the data published by respondent No.5 is made the basis for determination of seats for reservation to the candidates belonging to backward classes. It has also been stated that as per second proviso to Rule 28 (8) of Himachal Pradesh Panchayati Raj (Election) Rules 1994, (for short, ‘the Rules’), reservation for a particular category cannot be rotated for a constituency where the population of such category is less than 5% of the total population of that constituency. It has also been stated that as per second proviso to Rule 28 (8) of Himachal Pradesh Panchayati Raj (Election) Rules 1994, (for short, ‘the Rules’), reservation for a particular category cannot be rotated for a constituency where the population of such category is less than 5% of the total population of that constituency. Reliance has also been placed on notification dated 17.11.2000, Annexure R-III, according to which, a constituency shall be reserved for backward classes only if the population of backward classes is greater than 5% of the total population in that particular constituency. In case of the constituencies having less than 5% population already reserved for backward classes by the Deputy Commissioner or by the State Government, these constituencies will be dereserved immediately and such constituencies which have remained un-reserved having more than 5% population of backward classes will be considered for reservation by taking up the constituency with higher percentage of backward classes population first. The act of de-reservation of Gram Panchayat, Sainj has further been justified on the ground that the seat of President Gram Panchayat, Sainj was de-reserved on the basis of contents of reply filed by respondent No.5 in CWP No. 6352 of 2020, as per which, there was no person belonging to backward classes in Gram Panchayat, Sainj. (viii) Respondent No.5 has made a prayer for treating its reply filed in CWP No. 6352 of 2020 as reply to the present petition. A copy of such reply is on record of this petition as Annexure P-8. (ix) Respondent No.6 has filed a separate reply. It has been averred that after a detailed survey, respondent No.5 has found that there is ‘Nil’ population of backward classes in Gram Panchayat, Sainj. The claim of petitioners to be persons belonging to backward classes has also been challenged by alleging that they belong to the caste ‘Brahmin’ with sub caste ‘Bhardwaj’ which was not declared as backward class in the State of Himachal Pradesh. Respondent No.6 in support of his contention has placed reliance on various documents viz Shajra Nasab, Copies of Pariwar Register and Goshwara etc Relevant Rule of 28(8) of the Rules as also corrigendum dated 12.11.2021, issued by Additional Chief Secretary, Social Justice & Empowerment, declaring Nil population of backward classes in Gram Panchayat, Sainj has also been relied. 2. Respondent No.6 in support of his contention has placed reliance on various documents viz Shajra Nasab, Copies of Pariwar Register and Goshwara etc Relevant Rule of 28(8) of the Rules as also corrigendum dated 12.11.2021, issued by Additional Chief Secretary, Social Justice & Empowerment, declaring Nil population of backward classes in Gram Panchayat, Sainj has also been relied. 2. We have heard learned counsel for the parties and have also gone through the record carefully. 3. To determine the controversy, it will be relevant to recall applicable Constitutional and statutory provisions. Article 243D (6)of the Constitution reads as under “243 D (6): Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens”. 4. Thus, Constitution saves power in the State Legislatures to make provisions for reservation of seats in any Panchayat or offices of Chairmans in Panchayats at any level in favour of citizens of backward classes. Deriving powers from aforesaid Constitutional provision, Section 125 (3) of Himachal Pradesh Panchayati Raj Act, 1994 (for short, ‘the Act’) has been incorporated as under: “Section 125 (3): The State Government may, by general or special order, reserve such number of offices of chairpersons for persons belonging to Backward Classes in Panchayats at every level, not exceeding the proportion to the total number of offices to be filled by direct election in the Panchayat as the population of the persons belonging to Backward Classes in the State bears to the total population of the State and may further reserve [one-half] of the total seats reserved under this sub-section for women belonging to Backward Classes.” 5. The above is the only statutory provision dealing with the subject of reservation for backward classes in Panchayati Raj Institutions in the State. Noticeably, the State Government has framed H.P. Panchayati Raj (Election) Rules, 1994 (for short, ‘Rules’) but these deal only with reservations available to categories of Scheduled Castes, Scheduled tribes and Women. The category of backward classes has been left out from the Rules. In such situation general or special orders passed by Government in pursuance to power so reserved in it by section 125(3) ibid have to be considered. 6. The category of backward classes has been left out from the Rules. In such situation general or special orders passed by Government in pursuance to power so reserved in it by section 125(3) ibid have to be considered. 6. In the backdrop as noticed above, reference in the first instance can be made to the instructions dated 24.9.2020, issued by Secretary, Panchayati Raj, whereby for the purposes of reservation roster the development block is taken as one unit. No reservation to the office of President of GP is available for backward classes in those development blocks which have less than 5% of their total population belonging to such classes. Where the population of backward classes in a development block is 5% or more of its total population seats for such classes for the office of Presidents GP shall be reserved in same proportion to total number of seats of Presidents GP in the entire block as is the ratio of population of backward classes to the total population in entire block. The reservation for backward classes cannot be more than 15%. 7. Another notification that needs attention was issued by the Commissioner-cum-Secretary, Panchayati Raj, Government of Himachal Pradesh on dated 17.11.2000 in respect of the reservation for the candidates from backward classes for election to the offices of members of Panchayat Samiti and Chairman of Gram Panchayats in a particular Block, which reads as under: “A constituency shall be reserved for backward classes only if the population of backward classes is greater than 5% of the total population in that particular constituency. In case, constituencies with less than 5% population have already been reserved for backward classes by the Deputy Commissioners or by the State Government, these constituencies will be de-reserved immediately and such constituencies that are remaining un-reserved but having more than 5% population of backward classes will be considered for reservation by picking up the constituencies with highest percentage of backward classes population first.” 8. Thus, the State Government in exercise of powers under Section 125 (3) of the Act has made provisions for reservation of seats for President Gram Panchayat for persons belonging to Backward Classes in aforesaid manner. 9. Thus, the State Government in exercise of powers under Section 125 (3) of the Act has made provisions for reservation of seats for President Gram Panchayat for persons belonging to Backward Classes in aforesaid manner. 9. Keeping in view the aforesaid provisions, the contention of the petitioners that minimum three seats are required to be reserved for the offices of Presidents for persons belonging to Backward Classes in Development Block, Theog is not without substance. It is not denied that the population of Backward Classes in entire Development Block, Theog is more than 5% of the total population of block. There are 59 Gram Panchayats in Development Block, Theog. By applying the prescribed ratio, three seats are required to be reserved for Backward Classes. 10. Respondent No.4 had issued the reservation roster dated 14.12.2000, which rightly identify three Panchayats reserved for Backward Classes in development block Theog for the purpose of election to the offices of Presidents including the Gram Panchayat, Sainj. At the relevant time, as per data prepared by respondent No.5, Gram Panchayat, Sainj had population of 212, belonging to Backward Classes. 11. A peculiar situation has arisen only on account of intervening circumstances, which have taken place after the declaration of General Elections to the Panchayati Raj Institutions by State Election Commission on 21.12.2020. Respondent No.6 laid challenge to the reservation of Gram Panchayat Sainj on the ground that the said Panchayat had not even a single member of Backward Classes and filed CWP No. 6352 of 2020. Respondent No.5 collected fresh data and on the basis of that Additional Chief Secretary, Social Justice & Empowerment issued notification dated 12.11.2021, declaring Nil population of Backward Classes in GP Sainj. Respondent No.4 de-reserved the GP Sainj vide notification dated 30.4.2022, which reads as under: - “Office of Deputy Commissioner, Shimla District Shimla, Himachal Pradesh. No.PCH-SML(Reservation/202034748-34755 Dt.30 April, 2022 NOTIFICATION As per Notification No.PCH-SML (Panchayat Reservation) 2020- 1926, dated 14.12.2020 the post of President in Gram Panchayat Sainj was reserved for Other Backward Class for the elections held during the year 2020-21. But now the question of reservation of this post is under consideration of the Hon'ble High Court of Himachal Pradesh. Now in compliance to the order official letter No.193/2020-32581, dated 28.4.2022 and in compliance to the Deputy Advocate General Himachal Pradesh Office letter No.CWP No.6322/2020, dated 23.4.2022, the above post has to be de reserved. But now the question of reservation of this post is under consideration of the Hon'ble High Court of Himachal Pradesh. Now in compliance to the order official letter No.193/2020-32581, dated 28.4.2022 and in compliance to the Deputy Advocate General Himachal Pradesh Office letter No.CWP No.6322/2020, dated 23.4.2022, the above post has to be de reserved. Therefore, I, Aditya Negi, Deputy Commissioner, Shimla do hereby declare the post of President Gram Panchayat, Sainj as unreserved for the information of General Public. Sr. No. Name of Development Block Name of Gram Panchayat The category for which reserved Present status of reservation 1. Theog Sainj OBC General (Aditya Negi) I.A.S. Deputy Commissioner, Shimla District Shimla (H.P.)” 12. Respondent No.4 issued the order of de-reservation dated 30.4.2022 on the basis of correspondence dated 28.4.2022 from Director Panchayati Raj to respondent No.4, which referred to the contents of reply of respondent No.5 filed in CWP No. 6352 of 2020, wherein the Backward Classes population in Gram Panchayat, Sainj was mentioned as ‘Nil’. Respondent number 4 also appears to have been swayed by irrelevant consideration of pendency of CWP No. 6532 of 2020. The reply of respondent No.5 in CWP 6532/2020 evidently was based on corrigendum dated 12.11.2021 which declared the population of backward classes in GP Sainj as ‘Nil’. A survey conducted by respondent No.5 was stated to be the basis for such declaration. Thus, the contents of notification dated 30.4.2022 nowhere reflected independent application of mind by respondent No.4. The fact remains that as per prescription made by the State Government, there could not be less than three seats of President, Gram Panchayats, reserved for Backward Classes in Development Block Theog. 13. Section 125(3) of the Act ibid clearly refers to ratio between population of the block and that of the State for ascertaining the number of seats to be reserved to the offices of Presidents of GP. On the same principle are the instructions dated 24.9.2020 and on application of above said mandate 3 seats for offices of Presidents GP in development block Theog were rightly declared vide reservation roster dated 14.12.2020. 14. The question thus arises as to whether the data allegedly collected by H.P. Commission for Backward Classes with respect to population of backward classes after the completion of election process for all other GPs in the State except GP Sainj, could be looked into or made relevant. 14. The question thus arises as to whether the data allegedly collected by H.P. Commission for Backward Classes with respect to population of backward classes after the completion of election process for all other GPs in the State except GP Sainj, could be looked into or made relevant. The clear answer is in negative for the reason that the population for the purposes of Act relates back to the previous Census and hence any data collected thereafter cannot be considered. Section 2(29) of the Act defines ‘population’ as under: “population” means the population as ascertained at the last preceding census of which the relevant figures have been published” 15. Admittedly, an anomalous situation arises in case such subsequent data is taken into consideration. The de-reservation of Gram Panchayat, Sainj amounts to violation of the instructions, whereby three seats of President Gram Panchayat are required to be reserved in favour of persons belonging to Backward Classes in development block Theog. By allocating the seat of President of Gram Panchayat, Sainj to general category, only two seats remain reserved for category of Backward Classes. In case, the seat of President of Gram Panchayat, Sainj is kept reserved for Backward Classes, the notification dated 17.11.2000 is violated, whereby to qualify for reservation the constituency must not have less than 5% population of backward classes. ‘Constituency’ has been defined in the Rules as: “(b) “Constituency” means a territorial constituency of a Gram Sabha, Panchayat Samiti or Zila Parishad, as the case may, for the representation of which a member is to be elected or has been elected and in relation to Pradhan or Up-Pradhan of a Gram Panchayat, shall mean the whole of Gram Sabha area” 16. The authenticity of data collected by respondent No.5 also comes in question, when the petitioners claim themselves to be belonging to Backward Classes as per certificates issued to them by the competent authority. As per these certificates, the petitioners have been certified to be the persons belonging to Backward Classes on the basis of the fact that their respective fathers belonged to ‘Bhat’ or ‘Bhatta’ class, which is declared as a Backward Class vide notification dated 9.9.2011, issued by the Department of Social Justice & Empowerment, Government of Himachal Pradesh. A copy of this notification has been placed on record as Annexure R-6/3A, wherein at Sr. A copy of this notification has been placed on record as Annexure R-6/3A, wherein at Sr. No. 8 “Bhat or Bhatta (whether with or without the appendage Brahman)” have been declared as Other Backward Classes. 17. In such situation, in our considered opinion, the option to keep office of GP Sainj reserved for backward classes as per reservation roster dated 14.12.2020 has to sustain for the following reasons: (a) As per section 2(29) of the Act “population” means the population as ascertained at the last preceding census of which the relevant figures have been published. Thus, the population as per last census has to be taken into account for the purposes of the Act. The data which has been collected or made available after completion of election process in all other constituencies is neither permissible nor desirable. (b) Viewed from another angle, there is some doubt regarding the data available with H.P. Commission for Backward Classes. Admittedly, petitioners are electors of GP Sainj. They have produced certificates issued by Tehsildar Theog certifying them to be the persons belonging to backward classes. Official respondents have not said anything about such certificates. Similarly the H.P. Commission for Backward Classes has also not filed a specific counter thereto. It has been submitted on behalf of respondent No.6 that the certificates produced by petitioners will be challenged. The fact remains that petitioners are in possession of backward class certificates in their favour issued by the competent authority. (c) The salutary and cherished purpose of providing reservation to backward classes in the matter of representation in Panchayati Raj institutions shall be well served by maintaining the prescribed ratio of backward class population vis-à-vis total population in the entire block. Any other interpretation or option shall be nugatory to the provisions of section 125(3) of the Act. (d) More than two years have already elapsed since the completion of election process of general elections to the Panchayati Raj institutions in the entire state. Further delay will not be in the interest of the GP Sainj and its residents as they stand to lose their active participation in the process of Governance. (e) The notification dated 30.4.2022 cannot withstand the judicial scrutiny and is unsustainable for want of independent application of mind by respondent No.4. Further delay will not be in the interest of the GP Sainj and its residents as they stand to lose their active participation in the process of Governance. (e) The notification dated 30.4.2022 cannot withstand the judicial scrutiny and is unsustainable for want of independent application of mind by respondent No.4. In case the said respondent is allowed to engage in the process of re-determination it will again open opportunities for further objections and litigations and in such situation the election to the office of President GP Sainj will remain in limbo for indefinite period and possibly till the expiry of entire permissible tenure. 18. Respondents have also taken an exception to maintainability of the petition under Article 226 of the Constitution. It is alleged that any intervention by this Court will amount to halting the election process, which has been held to be not permissible by Hon’ble Supreme Court in 2000 (8) SCC 216 , Election Commission of India vs. Ashok Kumar and others. Reliance has also been placed on the judgment passed in State of Goa vs. Fauziya Imtiaz Sheikh & another, 2021 (8) SCC 401 . 19. Before dealing with such contention it will be apposite to notice the mandate of Article 243(O) of the Constitution which reads as under:- “243-O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution- (a) The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court; (b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 20. The nature of the controversy raised in present petition is not covered by any of the situations provided under Article 243-O. Under said Article embargo is with respect to the proceedings in which validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies, made or purported to be made under Article 243-K, has been challenged. Further, the prohibition prescribed by Article 243-O (b) relates to proceedings, which are substitute to election petition permissible under law. 21. Further, the prohibition prescribed by Article 243-O (b) relates to proceedings, which are substitute to election petition permissible under law. 21. As regards the applicability of judgment in 2000 (8) SCC 216 , with due deference to the ratio laid therein, we are of the considered opinion that the same will not help the cause of respondents. The prohibition is only with respect to interruption, obstruction to and protraction of election process, whereas there is no embargo on the power of judicial review against the action of Election Commission. Para-32 of the aforesaid judgment can be gainfully reproduced as under:- “For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:- 1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” 22. Thus, as per the above referred judgment anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. It rather permitted such judicial intervention that subserves the progress of the election and facilitates the completion thereof. 23. As regards the judgment in 2021 (8) SCC 401 , the same was passed in the context of the provisions relating to election of the Municipal Bodies. Their Lordships were dealing with the provisions of Article 243-Z (g) (b), which started with a non-obstante clause, whereas the provisions of Article 243-O, as noticed above, do not create any such absolute bar. 24. We have been informed that during pendency of this petition Respondent 3 has initiated the election process for election to the office of President GP Sainj by treating the said office available for general category on the basis of notification dated 30.4.2022 issued by Respondent No.4. 25. 24. We have been informed that during pendency of this petition Respondent 3 has initiated the election process for election to the office of President GP Sainj by treating the said office available for general category on the basis of notification dated 30.4.2022 issued by Respondent No.4. 25. In view of above analysis, the notification dated 30.4.2022, issued by respondent No.4 cannot be sustained for the reasons firstly that it has been issued in a mechanical manner, without due application of mind and secondly that the same is in violation of instructions dated 24.9.2020 issued by the Secretary Panchayati Raj, Government of Himachal Pradesh and lastly violates the right of proportionate representation available to persons belonging to backward classes under Section 125(3) of the Act and Article 342D(6) of the Constitution. 26. Resultantly, notification dated 30.4.2022, issued by respondent No.4 (Annexure P-11) and consequent initiation of election process by Respondent-3 to the office of President Gram Panchayat Sainj, Theog Block, District Shimla are quashed and set aside. Respondents 1 to 4 are directed to initiate the elections to office of President Gram Panchayat Sainj in Development Block Theog of District Shimla (HP) on the basis of reservation roster dated 14.12.2020 Annexure P-3 at the earliest and not later than two weeks from the date of this judgment. 27. The writ petition is disposed of accordingly. Pending miscellaneous application(s), if any, also stand disposed of.