JUDGMENT : Vaibhavi D. Nanavati, J. 1. Heard Mr. Dipen Desai, learned advocate appearing for the petitioner and Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent – State. 2. Brief facts leading to the filing of the present petition are as follows: 2.1. The petitioner herein is a charitable Trust registered under the provision of the Bombay Public Trust Act and is running Post Basic Secondary Ashramshala at Gorad, in Data Taluka of Banaskantha District. 2.2. As per the scheme framed by the respondent – State, an Ashramshala is formed for the purpose of educating students of primary and secondary level in the rural and tribal areas. The students studying in the said Ashramshala and also the staff of the said Ashramshala are required to stay their 24 hours a day. The petitioner herein had satisfied the requirement of the said scheme. As per the said scheme of the State Government, Ashramshala must possess at least 5 acres of land on which the vegetables, etc., i.e. to be consumed by the students and their staff for their food, and the said food is to be grown at the said land of Ashramshala. For the aforesaid, for growing the said vegetables, a post of Gardener is sanctioned, who is required to take care of the agriculture activities, like growing vegetables, etc., for the students and the staff who are studying in the Ashramshala. 2.3. on 24.09.1996, one Shri R.P. Rajput, was earlier appointed as Gardener in the Ashramshala run by the petitioner Trust. On 29.05.2008, said Shri Rajput submitted his resignation and left the job of Gardener and in view thereof the said post of Gardener became vacant. The petitioner Trust therefore sought N.O.C. from the respondent authorities for appointing new Gardener. 2.4. On 02.03.2009, the respondent No.2 – Commissioner, Tribal Development Department issued N.O.C. for appointment of Gardener by conducting regular selection procedure. On 09.05.2009, pursuant to the said N.O.C., the petitioner Trust issued advertisement in daily newspaper inviting applications for the post of Gardener from eligible candidates. 2.5. The names of the eligible candidates were also called for, from the Employment Exchange, pursuant to which the Employment Exchange also sent names of 30 candidates, for being called for interview. The petitioner received applications from 14 candidates, pursuant to the said advertisement. 2.5. The names of the eligible candidates were also called for, from the Employment Exchange, pursuant to which the Employment Exchange also sent names of 30 candidates, for being called for interview. The petitioner received applications from 14 candidates, pursuant to the said advertisement. In view thereof, petitioner sent call letters to the candidates, who had applied for interview for remaining present in the interview, which was to be held on 18.07.2009. 2.6. The interview was held on 18.07.2009, wherein, the regularly convened selection committee, which included the officer of Ashramshala, found one Shri Champabhai Kikabhai Rabari to be most meritorious candidate and selected him for the post of Gardener. 2.7. On 18.07.2009, the petitioner trust by way of a resolution of even date, resolved to appoint Shri Champabhai Kikabhai Rabari and appointment order came to be issued on 07.09.2009 to Shri Champabhai Kikabhai Rabari. 2.8. On 06.10.2009, as per the conditions stipulated in the N.O.C. of the respondent no.2, more particularly, condition no.23, the petitioner trust submitted proposal to the respondent authorities alongwith all necessary papers for approval of the appointment of the Gardener. 2.9. It appears that, the pending the present petition, the respondent no.2 vide order dated 31.01.2011, rejected the petitioner’s proposal for grant of sanction to the appointment of the Gardener, relying upon the government resolution dated 25.10.2010 which provides that the State Government has cancelled all the vacant posts of teaching and non-teaching staff of the Ashramshala of the State of Gujarat. By way of the draft amendment, the said order dated 31.01.2011 passed by the respondent no.2 is also the subject matter of challenge. 2.10. The aforesaid communication dated 06.10.2009 and 31.01.2011 were not considered by the respondent authorities, which has resulted in filing of the present Petition under Article 226 of the Constitution of India and has prayed for the following reliefs : “a. The Hon’ble Court may be pleased to issue a writ of mandmaus or a writ in the nature of mandamus or writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order, or direction directing the respondent authorities to approve the appointment of gardener in the petitioner's trust from the date of appointment i.e. 18.07.2009 and release the salary grant of gardener from the date of its appointment. AMENDMENT CARRIED OUT AS PER COURT'S ORDER 6(aa) The Hon'ble Court be pleased to issue a writ of certiorari, or writ in the nature of certiorari quashing and setting aside the order dated 31.01.2011 passed by the respondent No.2. b. Pending hearing and final disposal of the petition, the Hon'ble Court may be pleased to direct the respondent authorities to consider the application for grant of approval to the appointment of gardener in the secondary school run by the petitioner trust. AMENDMENT CARRIED OUT AS PER COURT'S ORDER 6(bb) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to say execution, operation and implementation of the order dated 31.01.2011 passed by the respondent No.2 herein. c. Be pleased to grant any other and further relief in the interest of justice.” 3.1. Mr. Dipen Desai, learned advocate appearing for the petitioner submitted that the petitioner herein issued the appointment order/ letter to Shri Champabhai Kikabhai Rabari after following due procedure. It is submitted that, the aforesaid exercise is undertaken by the petitioner herein as per the condition stipulated in the N.O.C. 3.2. Mr. Desai, learned advocate further submitted that the order passed by the respondent no.2 dated 31.01.2011 rejecting the petitioner’s proposal for grant of sanction for appointment of Gardener in the Ashramshala run by the petitioner trust, by placing reliance on the government resolution dated 25.10.2010 is without any application of mind and is without considering the evidence on record. 3.3. Mr. Desai, learned advocate submitted that the respondent no.2 has failed to consider that in the facts of the present case, the N.O.C. came to be granted by the office of the respondent no.2 on 02.03.2009 and after conducting regular selection procedure, the petitioner appointed Shri Champabhai Kikabhai Rabari on 07.09.2009. The entire selection procedure came to be completed on 07.09.2009 and the post in question came to be filled in. 3.4. Mr. Desai, learned advocate submitted that the subsequent decision dated 25.10.2010 to abolish / cancel the vacant posts, cannot be made applicable in the facts of the present case, since the post in question is already filled, prior to the said decision and in view thereof, the said government resolution dated 25.10.2010 would have no application to the appointment made by the petitioner. 3.5. Mr. 3.5. Mr. Desai, learned advocate to substantiate his submissions, placed reliance on the decision rendered in the case of Commissioner of Police, Bombay v/s. Gordhandas Bhanji, reported in 1951 SCC 1088, more particularly Para-9 and in the case of Mohinder Singh Gill and Another v/s. The Chief Election Commissioner, New Delhi and others reported in (1978) 1 SCC 405 . 4.1. Per contra, Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent – State relied upon the affidavit in reply filed by the respondent and submitted that the N.O.C. was issued by the respondent no.2 on 02.03.2009 and had relied upon the condition nos. 20, 23 and 25 and had submitted that the petitioner herein is in violation of the aforesaid conditions. It is submitted that the policy prevailing on the date would be applicable and in view thereof, it was mandatory for the petitioner herein to wait for the approval from the respondent – State. 4.2. Ms. Vyas, learned AGP submitted that the policy of the government is at the discretion of the respondent – State. To substantiate the aforesaid contention, Ms. Vyas, learned AGP relied upon the decision in the case of Jai Singh Dalal v/s. State of Harayana reported in 1992 (3) Scale 552 and in the case of Kolawana Gram Vikas Kendra v/s. State of Gujarat reported in 2010 (1) SCC 133. 5.1. In rejoinder to the aforesaid submissions made by Ms. Vyas, learned AGP, Mr. Desai, learned advocate reiterated the contentions raised earlier and submitted that the petitioner herein satisfied the condition no.23 and had placed reliance on the Rojkam, duly produced at Pages-79, 80 and 83. 5.2. Mr. Desai, learned advocate also placed reliance on the resolution dated 25.10.2010 and the annexures duly produced alongwith the same and submitted that the present petitioner is the Ashramshala, situated at Danta, Dist.: Banaskantha and the same is not included in the list of Ashramshala, which are excluded among 809 posts. ANALYSIS: 6. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein is running an Ashramshala and as per the scheme / policy framed by the respondent – State Government, wherein, the petitioner has 5 acres of land, whereupon, the petitioner grows the vegetables for the consumption of the students and staff of the Ashramshala. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein is running an Ashramshala and as per the scheme / policy framed by the respondent – State Government, wherein, the petitioner has 5 acres of land, whereupon, the petitioner grows the vegetables for the consumption of the students and staff of the Ashramshala. For the aforesaid purpose, the petitioner sought N.O.C. from the respondent State authorities for appointing a new Gardener, upon resignation by the earlier Gardener, because the post of Gardener became vacant. The respondent no.2 issued N.O.C. on 02.03.2009, which is duly produced at Page-13, Annexure-A. 7. It is apposite to refer to condition nos. 20, 23, 25 and 27 of the aforesaid N.O.C. dated 02.03.2009, which reads thus : (20) The process for selection of a person to be selected has to be in accordance with the issued N.O.C. The appointment/ selection not made accordingly is liable to be rejected. (23) After completion of interview, the Management Board/ Principal has to submit the list of selected candidates on the same day to the Officer of the Ashram school, along with the necessary documents. The Officer of the Ashram school has to submit the detailed recommendation regarding approval on the same day to the Commissioner, Office of the Tribal Development, after verifying the necessary documents (in the prescribed proforma along with the list). Copy of the list of the selected candidates has to be affixed on the public notice board at the place of interview without fail. (25) After approval of the selection process of the selected candidates by the Commissioner, Tribal Development (Gujarat State), Gandhinagar, the concerned candidate shall be entitled to the fixed pay/ grant of Rs.1500/- per month from the date of joining as Assistant Kamathi as per the Resolution No.KhRCh/2002/57/Z.1 of the Finance Department, Government of Gujarat, dated 16/02/2006. If the duties/ service of the period of five years is found to be satisfactory, then upon considering the same, detailed recommendation shall have to be made for regular appointment in the minimum pay of the regular pay grade admissible to the concerned post from the sixth year after the period of five years (after deducting the leaves without pay). After the same is approved, the salary, allowances/ facilities. After the same is approved, the salary, allowances/ facilities. (27) The recruitment process to fill the post shall have to be completed within six months from the date of receiving N.O.C. without fail. This N.O.C. will be valid for maximum six months. Thereafter, it shall be considered canceled automatically.” 8. In due compliance of the aforesaid, the petitioner herein issued an advertisement for the post of Gardener, upon which, call letters were issued to the candidates and interviews were held on 18.07.2009. It is not in dispute that selection committee convened the meeting, which also included the officer of Ashramshala. The said committee selected one Shri Champabhai Kikabhai Rabari to be meritorious for the said post and accordingly by way of resolution of the even date, the petitioner appointed Shri Champabhai Kikabhai Rabari on the said post. The appointment order came to be issued on 07.09.2009. On 06.10.2009 as per the conditions stipulated in the aforesaid N.O.C. as referred above, more particularly as per the condition no.23, the petitioner Ashramshala submitted a proposal to the respondent authorities alongwith all the necessary documents for approval of appointment of the Gardener. It appears that the aforesaid was not replied to, by the respondent authorities, however, pending the present petition, respondent authorities replied the same, by placing reliance on the government resolution dated 25.10.2010, whereby, extending benefits of the 6th Pay Commission to the recommendation of the staff of grant-in-aid Ashramshala, was subject to certain conditions. The reliance was placed on the said resolution, wherein, it is mentioned that out of 5216 posts of teaching and non-teaching staff sanctioned in the Ashramshalas and Uttarbuniyadi Ashramshalas, at the time of implementing the recommendation of the 5th Pay Commission, 4407 posts were filled and 809 remained vacant. In view thereof, it was decided by the respondent – State to extend the benefits of the government resolution dated 25.10.2010 to the 4401 posts which were filled and to abolish 809 posts. 9. Ms. In view thereof, it was decided by the respondent – State to extend the benefits of the government resolution dated 25.10.2010 to the 4401 posts which were filled and to abolish 809 posts. 9. Ms. Vyas, learned AGP relied on the decision in the case of Kolawana Gram Vikas Kendra reported in (2010) 1 SCC 133 (supra), in the opinion of this Court, the aforesaid is not applicable to the facts of the present case, as the due procedure having been followed, the appointment came to be issued to said Shri Champabhai Kikabhai Rabari by an order dated 07.09.2009, as per the conditions stipulated in the N.O.C., more particularly, condition no.23, the petitioner Ashramshala submitted the proposal to the respondent authorities on 06.10.2009 alongwith all the necessary papers for grant of approval to the post of Gardener. In spite of the said communication, the respondent authorities did not pay any heed to the petitioner’s proposal, it is only after filing of the present petition in the year 2010, by an order dated 31.01.2011, the respondent no.2 rejected the proposal for grant of sanction to the appointment on the post of Gardener in the petitioner Ashmrashala. While rejecting the same, the reliance is placed on the government resolution dated 25.10.2010, which does not include the name of District: Banaskantha and in view thereof, the said resolution itself is not applicable to the facts of the present case. 10. In light of the aforesaid undisputed facts, in the opinion of this Court, the petitioner herein is in due compliance of the No Objection Certificate (NOC) dated 02.03.2009 and after following due procedure in the presence of the officer of the respondent no.2, Shri Champabhai Kikabhai Rabari was appointed as Gardener in the petitioner Ashramshala. The entire exercise was undertaken by the petitioner, before the said government resolution dated 25.10.2010 came into effect. The communication for approval sent by the petitioner herein to the respondent – State is also dated 18.07.2009, which is before more than 1 year and 3 month before the said government resolution dated 25.10.2010 came into effect. 11. The entire exercise was undertaken by the petitioner, before the said government resolution dated 25.10.2010 came into effect. The communication for approval sent by the petitioner herein to the respondent – State is also dated 18.07.2009, which is before more than 1 year and 3 month before the said government resolution dated 25.10.2010 came into effect. 11. While passing the impugned order, the competent authority has failed to take into consideration the aforesaid undisputed facts as referred above that the proposal was pending before the competent authority, since the year 2009 and the same is rejected on the ground of the government resolution dated 25.10.2010, before which the No Objection Certificate (N.O.C.) has already issued by the competent authority. The procedure was duly undertaken by the petitioner herein. 12. In the opinion of this Court, the facts of the present case are governed by the ratio as laid down in the decision reported in 1951 SCC 1088 and (1978) 1 SCC 405 . This Court deems it fit to produce the relevant paragraph of the said decisions: 12.1. In the case of Commissioner of Police, Bombay v/s. Gordhandas Bhanji, reported in 1951 SCC 1088, wherein, the Hon’ble Apex Court has held in Para-9, which reads thus : “9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 12.2. In the case of Mohinder Singh Gill and Another v/s. The Chief Election Commissioner, New Delhi and others reported in (1978) 1 SCC 405 , wherein, the Hon’ble Apex Court has held in Para-8, which reads thus : “8. In the case of Mohinder Singh Gill and Another v/s. The Chief Election Commissioner, New Delhi and others reported in (1978) 1 SCC 405 , wherein, the Hon’ble Apex Court has held in Para-8, which reads thus : “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observation of Bose, J. in Gordhandas Bhanji.” 13. In light of the aforesaid, in the opinion of this Court, the case of the petitioner does not fall within the ambit of the said government resolution dated 25.10.2010. Further upon perusal of the said government resolution also and upon perusal of the Appendix-4, as pointed out by Mr. Desai, learned advocate appearing for the petitioner, that Banaskantha District does not figure in the list of the District excluded qua 809 posts in the said government resolution dated 25.10.2010. Ms. Vyas, learned Assistant Government Pleader is not in a position to controvert the aforesaid facts that the same is not included in the list, i.e. forming part of the government resolution dated 25.10.2010. 14. For the foregoing reasons, this is a fit case to exercise the extraordinary jurisdiction under Article-226 of the Constitution of India and the prayers as prayed for in the petition are required to be allowed. In view thereof, the impugned order dated 31.01.2011 passed by the respondent no.2 is required to be quashed and set aside and is hereby quashed and set aside and the Petition stands ALLOWED accordingly. Rule made absolute. Direct service is permitted.