JUDGMENT O.P. Garg, J.
1. These are two connected writ petitions. Counter affidavit has been filed in the Civil Misc. Writ No. 35360, of 1995. The controversy involved in these two writ petition is almost identical. Both these writ petitions are therefore being disposal of by this common judgment. Heard Sri P.S. Baghel learned Counsel for the petitioner as well as learned Standing Counsel for the respondents.
2. In the leave vacancy of one Bachhu Lal Rahi, a teacher in L.T. grade in Vinobha Inter College, Kamasin, district Banda for the period 1.11.1994 to 30.10.95, the petitioner-Deshraj Singh was appointed after adopting the procedure required under the law by invoking the provisions of Second Removal of Difficulties Order, 1981. His appointment was duly approved by the District Inspector of Schools on 23.1.1995. In pursuance of the order of appointment dated 10.2.1995, the petitioner joined on 11.2.1995. One Shiv Bhusan, made a complaint to the District Magistrate Banda on 8.3.1995 alleging that the appointment of the petitioner was made against the Govt. Order and the gazette notification pertaining to the reservation policy. The District Magistrate by this order dated 24.3.1995 found that the petitioner was appointed on a post on which a candidate belonging to the reservation category should have been appointed. He directed the Committee of Management to cancel the appointment of the petitioner or to face criminal charge. Under the threat of the order of the District Magistrate contained in order dated 24.3.1995, the Committee of Management cancelled the appointment of the petitioner by order dated 1.4.1995. The orders passed by the District Magistrate as well as the Committee of Management have been challenged in the present writ petition primarily on the ground that the policy of reservation and the provisions of U.P. Ordinance No. 5 of 1994, which later on was replaced by an Act were not attracted to a short term vacancy and that since the appointment of the petitioner was duly approved it could not have been cancelled without affording him an opportunity of hearing. The impugned orders have been termed to be in flagrant violation of the principles of natural justice.
3. In the counter affidavit, the respondents have asserted that the appointment of the petitioner could not have been made in the teeth of the reservation policy and, therefore, the appointment being illegal, it was cancelled.
4. In terms of the interim order passed in the writ petition No. 9463 of 1995, the petitioner is working on the post of teacher in L.T. grade. He has not been paid the salary for the period he had worked and consequently, the petitioner had to file Civil Misc. Writ No. 35368 of 1995 in which it is prayed that there respondents be directed to release the salary of the petitioner right from the month of July, 1995 onwards.
5. After having heard learned Counsel for the parties and taken into consideration the material available on record, I find that the petitioner was appointed in conformity with the provisions of law. The vacancy was notified, the post was advertised, selection committee was constituted, requisite approval of the District Inspector of Schools was obtained and only thereafter, the petitioner was appointed in the short term vacancy caused due to Bachhu Lal Rahi's proceedings on leave for one year. The petitioner worked till 1.4.1995 on which date his services were terminated and thereafter he continues to work under the interim order dated 10.4.95 passed by this Court in Civil Misc. Writ No. 9463 of 1995.
6. Now the moot point for consideration is whether the appointment of the petitioner in the short term vacancy was illegal on account of the provisions of U.P. Ordinance No. 5 of 1994 and the various Government Orders on the subject or reservation. There is a letter Annexure 7 on the record of Writ Petition No. 9463 of 1995 issued by U.P. Secondary Education Service Commission on 28.1.1995 with reference to the provisions of U.P. Ordinance of 1994. It was clarified that the policy of reservation would be application only to substantive vacancies. The petitioner has not been appointed against a substantive vacancy. The vacancy on which the petitioner was appointed is a short term vacancy as the vacancy was caused on account of proceeding on leave by Bachhu Lal Rahi, a teacher on L.T. grade for a period of one year. No sooner Sri Rani joins on the expiry of the leave or even before, the appointment of the petitioner would come to an end. The provisions of the Ordinance are not applicable to short term vacancies. The ground on which the appointment of the petitioner was cancelled by the Committee of Management at the direction of the District Magistrate was, therefore, non-existent. Since the petitioner was appointed after adopting the due procedure prescribed by law, his appointment could not be cancelled on an untenable ground. It is a pity that the order cancelling the appointment of the petitioner was passed without affording him an opportunity of hearing. In Sri Dhar v. Nagar Palika, Jaunpur and Ors., 1990 (1) UPLBEC 1 and Sharvan Kumar Jha v. State of Bihar and Ors., A.I.R. 1991 SC 309), the Supreme Court has held that prior opportunity of hearing should have been given before cancelling the appointment. The impugned orders are also bad in law as they have been passed in violation of principles of natural justice.
7. The limited ground on which the appointment of the petitioner was cancelled as said above, did not exist. The impugned order cannot be supplemented by the other grounds taken in the counter affidavit. In this connection a reference may be made to A.I.R. 1979 SC 851, Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., in which the Supreme Court observed that when a statutory functionary makes an order based on certain grounds its validity must be judged by fresh reasons so mentioned and cannot be supplemented by the 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. Reliance was placed on the following observations made in Gordhandas Bhani's, case, A.I.R. 1952 SC 16 at page 18 :-
"Public orders publicity 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 effect the action and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
The Supreme Court made it clear that the orders are not like the old wine becoming better as they grow older. Therefore, now the ground that the appointment of the petitioner was hit by the ban imposed by the Government in making any type of appointments cannot be pressed into service.
8. Sri Bachhu Lal Rahi still continues to be on leave. Period of his leave is to expire in this month itself. As said above, the petitioner has been validly appointed in the leave vacancy and ignoring the impugned orders, he is entitled to his salary and other emoluments right from the date he joined service on 1.2.1995,
9. For the reasons mentioned above, the writ petition is allowed and the impugned orders dated 24,2.995 passed by the District Magistrate, Banda and the order dated 1.4.1995 passed by the Committee of Management are hearby quashed. The petitioner is held entitled to salary and other allowances right from 11.2.1995 on wards till Sri Bachhu Lal Rahi joins on the expiry of his leave. The respondents are directed to release and pay the entire amount of salary due to the petitioner within one month from the date a certified copy of this judgment is produced before him.