ORDER : Deputy Director of Elementary Education, Kinnaur, Himachal Pradesh on 31.8.2016, requested all the Employment Officers of District Kinnaur namely Pooh, Kalpa and Nichar to sponsor names of eligible candidate for the post of Physical Education Teacher (PET) including C&V category. Employment exchanges named herein above sponsored names of six candidates of Scheduled Tribe category. Besides issuing call letters to the candidates sponsored by the Employment Exchanges, a Press Note was published by Deputy Director Elementary Education, Kinnaur through DPRO District Kinnaur. Pursuant to said Press Note, petitioner, who is a resident of District Bilaspur, also applied for the post in question. Though the petitioner being a Scheduled Caste IRDP category candidate was permitted to appear in counseling process, but he was not considered for the post of PEt under SC/IRDP category on the ground that he does not belong to local Scheduled Tribe area of Kinnaur. Though the petitioner was the only candidate in the category of SC/IRDP category and had secured 48.58 marks but yet he was not selected against the post in question. Petitioner applied for information under Right to Information Act, 2005 and vide communication dated 3.3.2020 (Annexure P-1/A) placed alongwith the rejoinder, he was informed that since he is not a resident of District Kinnaur, he is not entitled to be given appointment in tribal area i.e. Kinnaur in terms instructions dated 16.8.2004 issued by the Government of Himachal Pradesh, whereby reservation is provided for posts of Class-III and IV in District cadre posts in Scheduled Tribe areas. In the aforesaid background, petitioner has approached this court in the instant proceedings, filed under Art. 226 of the Constitution of India, praying therein for following substantive relief: “That the respondents may be ordered to appoint the petitioner as PET since one post is lying vacant and the restriction as envisaged in Annexure P-1 may be read down.” 2. Having heard learned counsel for the parties and perused the material available on record, this court finds that the facts as have been noted herein above, are not disputed rather same stand duly admitted. It is not in dispute that the petitioner was the only available candidate in the category of SC/IRDP and had participated in interview in which he was awarded 48.58 marks. It is not in dispute that the petitioner was the only available candidate in the category of SC/IRDP and had participated in interview in which he was awarded 48.58 marks. Since the petitioner was only available candidate against one post of PET under SC/IRDP category, which is still lying vacant, he was to be offered appointment but, interestingly, he was denied appointment on the ground that he does not belong to Kinnaur District and in terms of Notification dated 16.8.2004, only the persons belonging to District Kinnaur could be appointed against Class III and IV posts in District Kinnaur. 3. Mr. A.K. Gupta, learned counsel for the petitioner vehemently argued that though careful perusal of instructions dated 16.8.2004 nowhere suggests that all the posts in Class-III and Class-IV category are to be filled up from amongst the candidates belonging to District Kinnaur, but even otherwise if the aforesaid instructions are permitted to sustain, it would amount to 100% reservation in the posts, which is otherwise impermissible. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum with regard to petitioner having participated in the selection process and he being the sole candidate under SC/IRDP category, submitted that since only the persons belonging to Kinnaur District are/were to be provided appointment to Class-III and Class-IV posts in terms of Notification dated 16.8.2004 issued by Government of Himachal Pradesh, no illegality can be said to have been committed by the respondents, while denying appointment to the petitioner 5. Before ascertaining the genuineness and correctness of the rival submissions made by learned counsel for the parties, it would be apt to take note of Notification dated 16.8.2004 issued by Government of Himachal Pradesh, which is reproduced herein below “No. PLG-F(TDM)35-1/05 Government of Himachal Pradesh Department of Tribal Development From The Pr. Secretary (TD) to the Government of Himachal Pradesh To 1. All the Administrative Secretaries to the govt. of H.P. 2. All the Heads of Departments in H.P. 3. All the Divisional Commissioners in H.P. 4. All the Deputy Commissioner in H.P. 5. The Resident Commissioner, Pangi at Killar, Distt. Chamba, H.P. 6. The Resident Commissioner, Bharmour, Distt. Chamba 7. The Addl. Deputy Commissioner, Spiti Distt. Lahaul0- Spiti at Kaza. Dated Shimla-2, the 16th August, 2004. Subject: reservation in appointment to the Class-III and Class-IV Services in District Cadre posts in the Scheduled Areas. All the Deputy Commissioner in H.P. 5. The Resident Commissioner, Pangi at Killar, Distt. Chamba, H.P. 6. The Resident Commissioner, Bharmour, Distt. Chamba 7. The Addl. Deputy Commissioner, Spiti Distt. Lahaul0- Spiti at Kaza. Dated Shimla-2, the 16th August, 2004. Subject: reservation in appointment to the Class-III and Class-IV Services in District Cadre posts in the Scheduled Areas. Sir, The matter regarding adequate representation to the local Scheduled Tribe and Scheduled Caste members of the Scheduled Areas in District cadre posts was under consideration of the State Government. In the Scheduled Areas of the State i.e. Districts of Kinnaur and Lahaul & Spiti and Pangi & Bharmour Sub-divisions of Chamba District, the average local scheduled tribes population is 69.27% and the average local Scheduled Caste population is 17.90%. The Scheduled Tribes population ranges from about 57% in Kinnaur District to abourt 85% in Pangi Sub-division of Chamba district and similarly the population of local Scheduled Castes in the Scheduled Areas ranges from about 7% in Lahaul & Spiti District to about 26% in Kinnaur district. There is no OBC population in scheduled areas. 2. The vertical reservation prescribed in the State of Himachal Pradesh for appointment to the Class-III and Class-IV services by direct recruitment is 5% for Scheduled Tribes, 22% for Scheduled Castes and 18% for OBCs which is applicable to the District Cadre posts in Scheduled Areas also. Hence, the present reservation policy does not provide opportunities for adequate representation to the local Scheduled Tribe communities in the District Cadre posts. 3. Though, as per the 9 Judges bench judgement of the Hon'ble Supreme Court of Indira Sawhney case, reservation contemplated in clause 4 of Article 16 should not exceed 50% but at the same time, the Hon'ble Supreme Court in the same judgement in Indra Sawhney case has clearly taken a view that while 50% shall be the rule, it is necessary not to put out of consideration certain extra ordinary situations inherent in the great diversity of this country and the people. It might happen that if far flung and remote areas, the population inhabiting those remote areas, might, on account of their being out of the main stream of National Life and in view of conditions peculiar to and Characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. 4. It might happen that if far flung and remote areas, the population inhabiting those remote areas, might, on account of their being out of the main stream of National Life and in view of conditions peculiar to and Characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. 4. These areas have been scheduled in the Constitution keeping in view the remoteness, backwardness and special cultural characteristics of people living in these areas. For economic development of these areas, integrated Tribal development Project (ITDP) concept has been introduced so as to raise their level of development at par with the main stream population. However, the population in the scheduled areas still remain backward in terms of literacy, incomes etc. Their access to instructional infrastructures also is limited due to geographical constraints, lack of adequate and appropriate personnel in health and educational institutions, etc. The existing reservation policy is not only contrary to demographic composition in the scheduled areas but is also contrary to the spirit of providing a mechanism to ensure adequate representation to these people in the Government services, thereby depriving tem of the opportunities in Government services. 5. Now, therefore, the State Government has decided to provide reservations to the local Scheduled Tribes and Scheduled Castes candidates in the Scheduled Areas of HP as early as possible in proportion to their population and accordingly prescribe the reservation in the district Cadre posts in Class-III and Class-IV grade/services to each category as under:- (i) Kinnaur District: 60% reservation in the posts for local Scheduled Tribes and 25% of the posts for local Scheduled Caste candidates. (ii) Lahaul & Spiti: 78% reservation in the posts for local Scheduled Tribes and 7% of the posts for local Scheduled Castes candidates. (iii) Pangi Sub-division of Chamba District: 75% reservations in the posts sanctioned for Pangi Subdivision borne on District Cadre posts for local Scheduled Tribes and 10% of such posts for local Scheduled Castes candidates. (iv) Bharmour Sub-division of Chamba District: 72% reservation in the sanctioned posts for Bharmour Sub-division borne on District Cadre for local Scheduled Tribes and 13% of such posts to the local Scheduled Castes candidates. 6. The local members of Scheduled Caste and Scheduled Tribes of such Scheduled Areas will not be eligible to avail reservation in District Cadre posts in the other Districts outside the Scheduled Areas. 6. The local members of Scheduled Caste and Scheduled Tribes of such Scheduled Areas will not be eligible to avail reservation in District Cadre posts in the other Districts outside the Scheduled Areas. The local Scheduled Castes and Scheduled Tribes members of Pangi and Bharmour Sub-division of Chamba District will not be eligible to avail reservation in District Cadre posts even within Chamba District against the posts sanctioned for non-Scheduled Areas of Chamba District. 7. The above instructions may be followed with immediate effect. 8. Horizontal reservation for various categories like Ex-serviceman etc. as prescribed by Department of Personnel, Government of Himachal Pradesh from time to time will be applicable as such, in the Scheduled Areas also. This issues with concurrence of Law Department.” 6. Careful perusal of instructions supra reveals that the State of Himachal Pradesh, having taken note of the fact that vertical reservation prescribed in the State of Himachal Pradesh for appointment to the Class-III and Class-IV services by direct recruitment is 5% for Scheduled Tribes, 22% for Scheduled Castes and 18% for OBCs which is applicable to the District Cadre posts in Scheduled Areas, decided to provide opportunity for adequate representation to the Scheduled Tribe in District cadre posts. As per aforesaid communication Government decided to provide reservations to the local Scheduled Tribes and Scheduled Castes candidates in the Scheduled Areas of HP as early as possible in proportion to their population and accordingly prescribed the reservation in the district Cadre posts in Class-III and Class-IV grade/services to each category. In Kinnaur 60% reservation in the posts came to be provided for local Scheduled Tribes and 25% of the posts for local Scheduled Caste candidates, meaning thereby 15% posts were yet to be filled by the other categories. In Lahul & Spiti, 78% of the posts came to be reserved for local Scheduled Tribes and 7% of the posts for local Scheduled Castes candidates. Similarly for Pangi Sub Division of Chamba, District, 75% of the posts sanctioned for Pangi Sub-division borne on District Cadre came to be reserved for local Scheduled Tribes and 10% of such posts for local Scheduled Castes candidates. Similarly for Pangi Sub Division of Chamba, District, 75% of the posts sanctioned for Pangi Sub-division borne on District Cadre came to be reserved for local Scheduled Tribes and 10% of such posts for local Scheduled Castes candidates. In Bhamour Sub Division of Chamba District, 72% of the sanctioned posts for Bharmour Sub-division borne on District Cadre came to be reserved for local Scheduled Tribes and 13% of such posts to the local Scheduled Castes candidates, meaning thereby though major chunk of posts are/were to be filed in from candidates belonging to the Scheduled Tribe area of the Kinnaur, Lahul and Spiti, Pangi and Bharmour, but yet in all, 15% posts are/were to be filled in from other categories. 7. Since there is no specific reservation provided against remaining 15% posts, it does not lie in the mouth of respondents to claim that even remaining 15% posts were to be filled in from amongst the candidates belonging to other categories hailing from scheduled tribe areas of Kinnaur, Lahul & Spiti and Chamba (Bharmour and Pangi). 8. Though Notification dated 16.8.2004 appears to be have been issued in complete violation of law/mandate given by Hon'ble Apex Court that in any event, reservation should not exceed 50% of total posts, but even if the very object of issuance of aforesaid Notification is seen or accepted i.e. to provide opportunity to local population to have employment in Government services, even then 15% of the posts could be filled in from candidates hailing from other parts of the State, It is not the case of the respondents that apart from the petitioner, other candidates belonging to SC/IRDP hailing from Kinnaur had applied for the post. Had any candidate belonging to SC/IRDP from Kinnaur applied for the post in question, things would have been different because, in that event, candidates haling from Kinnaur under SC/IRDP category would have claimed preference over SC/IRDP candidates of other Districts, in terms of order Notification dated 16.8.2004. But once it is not in dispute that the petitioner was the only candidate available in the category of SC/IRDP, to be appointed against the post of PET, his case could not be rejected on the ground that he does not belong to District Kinnaur, rather, the authority concerned should have considered his case against 15% left out quota, which was admittedly for other left out categories i.e. General, OBC etc. may be from other Districts of Himachal Pradesh. As per Notification dated 16.8.2004, only 85% posts of Class-III and Class-IV are/were to be filled in form Scheduled Tribe population as such, action of the respondents in not offering appointment to the petitioner despite being eligible, is not sustainable in the eye of law as such, the same deserves to be rectified in accordance with law. 9. Consequently, in view of the detailed discussion made herein above, this court finds merit in the present petition and the same is allowed. Respondents are directed to offer appointment to the petitioner on the basis of his having participated in the interview on 29.8.2016 held for the post of PET under SC/IRDP, wherein he was admittedly the only candidate eligible as per Recruitment and Promotion Rules. Since the petitioner has been fighting for his rightful claim for more than six years, this court hopes and trusts that the needful in terms of direction contained in this order shall be done expeditiously, preferably within a period of two weeks. It is clarified that though the petitioner would be entitled to seniority on notional basis from the date of interview, but he shall not be entitled to financial benefits qua the aforesaid period. The petition stands disposed of in the afore terms, alongwith all pending applications.