MARIAM ALVITO MORONHAversusMODERN EDUCATION SOCIETY AND ORS.

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BALKRISHNA
TALEKAR
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by                     CIVIL APPELLATE JURISDICTION
MANISHA
BALKRISHNA
TALEKAR                                WRIT PETITION NO. 4851 OF 2018
Date: 2026.10.10
16:57:50 +0530
                      Mariam Alvito Noronha                         ]
                      Age : 43 years, Occupation : Lecturer,        ]
                      R/at House No.3,                              ]
                      14 Connaught Road,                            ]
                      Pune-411001                                   ]      ...Petitioner
                                Versus

                      1. Modern Education Society                      ]
                         19, Late Prin. V.K. Joag Path,                ]
                         Pune 411001.                                  ]
                                                                       ]
                      2. The Principal                                 ]
                         Ness Wadia College of Commerce                ]
                         19, Late Prin. V.K. Joag Path,                ]
                         Pune 411001.                                  ]
                                                                       ]
                      3. Savitribai Phule Pune University              ]
                         Ganesh Khind Road,                            ]
                         Pune 411007.                                  ]
                                                                       ]
                      4. Director of Higher Education                  ]
                         M. S. Central Building, Pune.                 ]
                                                                       ]
                      5. State of Maharashtra                          ]..Respondents
                                                    ..…
                      Mr. Abhishek T. Ingale a/w Ms. Anushka Parab and Mr. Chaitanya
                      Narvekar, for the Petitioner.

                      Mr. Yuvraj Narvankar a/w Ms. Pooja R. Chavan i/b Ms. Neha
                      Wadekar, for the Respondent Nos.1 and 2.

                      Mr. Rajendra Anbhule, for the Respondent No.3.

                      Mr. P. P. Kakde, Addl. G.P. a/w Mr. V. G. Badgujar, A.G.P., for the
                      Respondent- State.
                                                     ..…

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                          CORAM                : M. S. KARNIK &
                                                 SANDESH D. PATIL, JJ.
                          RESERVED ON          : 10th SEPTEMBER 2026
                          PRONOUNCED ON : 1st OCTOBER 2026

JUDGMENT (PER SANDESH D. PATIL, J.) :

1.        Heard learned Counsel for the parties.


2.        By the present Writ Petition, the Petitioner is seeking to quash

and set aside the impugned letter dated 10.06.2017 issued by the

Respondent-University,       refusing   to   grant   approval     for    the

appointment of the Petitioner, and directing the Respondents to grant

approval to the appointment of the Petitioner with effect from

01.12.2007 together with consequential benefits and arrears of

salary and increment with effect from 01.12.2007.


3.        The Petitioner was qualified as B.Com. This qualification was

obtained by her in the year 1994. She completed M.Com. in the year

1996. Thereafter, she completed P.G.D.M. in the year 1996. She

completed SET in 2001, and ultimately she completed PhD in 2014.


4.        In the year 2007, the Respondent No.1- Education Institution

had requirement of lecturers, and therefore, on 19.07.2007 they


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obtained permission / No Objection Certificate (NOC) from the

Directorate of Education, Maharashtra State, Pune- 1, for the

purpose of issuance of advertisement for filling in the post of

lecturers. The said advertisement is at ‘Exhibit B’. The advertisement

was for the following post:

     अ.क्र.                            वि षय                      पदांची संख्या
        १     गणि त                                                    १
        २      नस्पतीशास्त्र                                           २
        ३     भूगोल                                                    १
        ४     इतितहास                                                  २
        ५     मराठी                                                    १
        ६     तत् ज्ञान/तर्क)शास्त्र                                   १
        ७     र्कॉमस)   र्कायदा                                        १

                                       एर्कू                         ९ पदे




5.        In accordance with the NOC which was issued by the

Respondent         No.4,        the     Respondent   No.1   had     published      an

advertisement and invited the applications. In light of those

applications, a Selection Committee was appointed. That Selection

Committee had unanimously recommended the name of the

Petitioner as the candidate selected against the post of lecturer in

Commerce and Law in Open category. The nominee of the Vice-


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Chancellor and the nominee of the Respondent No.4 were present in

the said Selection Committee and are signatory to the Selection

Committee report. Since the Selection Committee has approved the

name of the Petitioner, therefore, ultimately, the Respondent No.1

had issued an appointment letter to the Petitioner on 14.11.2007.

Thereafter, the Petitioner joined duty in the Respondent No.1 college

by resigning from the Abeda Inamdar Senior College where she was

earlier working. The Petitioner joined the Respondent No.1 on

01.12.2007, and accordingly the joining report was issued by the

Respondent No.1 college. The Respondent No.1 on 20.12.2007 wrote

a letter to the Registrar, University of Pune, requesting to give

approval to the appointment of three teachers, which included the

Petitioner herein. The University raised certain objections. The

Respondent No. 1 allegedly complied with the said objection.



6.        Thereafter, on 31.08.2009, the Respondent No.1 once again

issued a reminder to the Registrar of the University of Pune, thereby

seeking approval for the appointment of the Petitioner. Since the

approval       was   not   received,   the   Petitioner   made     several

representations to several authorities right from 03.08.2010 to


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03.07.2017. On 10.06.2017, the University refused the approval,

stating that there was no vacant post for the Open category in the

subject of Commerce and Law, and the advertisement was not issued

for the Open category in the subject of Costing. It was further stated

that the roster for the subject be verified afresh from the government

and, thereafter, the post be filled as per the said procedure. The

Petitioner,    in   response   to   the   said   letter,   made     several

representations, and ultimately the present writ petition was filed.



7.        Mr. Abhishek Ingale, learned Counsel appearing for the

Petitioner argued that the Petitioner was already working in another

college and was an approved teacher. The roster was approved by the

Government on 07.06.2007, and the Director of Higher Education

issued NOC to the appointment to be made in the Respondent No.1

institution on 19.07.2007. It is pursuant to the said NOC that the

advertisement was issued on 09.08.2007. The Petitioner was

qualified for the post of lecturer in Commerce and Law, and therefore

she applied for the said post. The interview was conducted, and the

Selection Committee which constituted of representatives of the

State as well as the University, had approved the appointment of the


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Petitioner. After the appointment letter was given to the Petitioner on

14.11.2007, the Petitioner tendered her resignation in earlier college

viz. Abeda Inamdar Senior College, and thus she altered her position.

The Petitioner was relieved from Abeda Inamdar Senior College on

30.11.2007, and ultimately she joined the Respondent No.1 on

01.12.2007. It is further argued by the learned Counsel for the

Petitioner that one post for the Open category in the subject of

Costing was vacant. He stated that the Petitioner, even otherwise, is

qualified for the subject of Costing. The learned Counsel appearing

for the Petitioner argued that the Petitioner applied for the post in

pursuance of the advertisement. The NOC was granted by the

Respondent No.4, and therefore, ultimately, the Selection Committee

having selected the Petitioner, the Petitioner was not at all at fault.

The Petitioner left her well-settled job in the earlier college and

applied for the present post. He stated that she was selected through

a duly constituted Selection Committee and that the Petitioner

fulfilled the eligibility criteria. He argued that an employee cannot be

penalized for the administrative or procedural lapses on the part of

the employer. He laid much stress on the doctrine of legitimate

expectation. He argued that the Petitioner was appointed in the year


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2007. She had a legitimate expectation of grant of approval because

appointment was made after due process. No objection was raised to

her appointment for about a decade, and that there was huge delay

and laches on part of the University.



8.        Learned Counsel invited our attention to two important

aspects, viz. the appointment of the Petitioner was in the year 2007,

and the refusal came in the year 2017. He argued that the

Respondents could not have slept over the matter for 10 years and

then suddenly deny the approval. He contended that the University is

estopped from rejecting the application or the approval of the

Petitioner after inordinate delay. He stated that the NOC was granted

by the State, the selection was conducted openly and there existed

no objection for years. The University, now, cannot resile from the

approval and deny the grant. He cited the doctrine of promissory

estoppel in support of his case. He argued that there was violation of

Articles 14 and 21 that the denial of grant of approval was arbitrary

and that the Petitioner had worked for years on meagre salary. Thus,

non-issuance of approval affects the rights of the Petitioner. He

invited our attention to the roster stating that in the year 2005-2006


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there were 8 sanctioned posts (full-time) and 1 part-time in the

subject of Commerce and Law, out of that 6 full-time and 1 part-time

posts were sanctioned in Ness Wadia College, Pune. He stated that

the roster was verified by the GAD, GOM at that time, and the

following lecturers were stated to have been working in both the

colleges:

     1) Smt.R.K.Joshi,          Open Category (VRS on 30.04.2007)
     2) Mr. P.Y.Ghule           Open Category, (VRS on 15.06.2005)
     3) Mr. A.T.Bhosle          Reserved Category
     4) Mr. S.J.Jawadekar       Open Category
     5) Mr. P.N.Chaudhary       Open Category
     6) Smt. Vrishali Randhir   Reserved Category
     7) Mr. M.K.Sanap           Reserved Category
     8) Mr. R. S. Netawate      Reserved Category


9.        He argued that Mr. P. Y. Ghule, who was working in D. G.

Ruparel College, Mumbai, took voluntary retirement on 15.06.2005

and Smt. R. K. Joshi took voluntary retirement on 30.04.2007 (both

from Open Category) and Mr. R.S. Netavate from the Reserved

Category was appointed on 28.11.2005. As such, his case was that

there was vacancy for the posts in Open Category.



10.       He argued that it is only after noticing the aforesaid vacant

posts the Director of Higher Education has issued NOC as per which

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the advertisement was issued. He argued that the Petitioner can very

well be approved for the post of Costing as well, because she has the

required and requisite qualifications.



11.       In support of his contention, he relied upon the judgment in

the matter of Sachin Ambadas Dawale & Ors. v. State of Maharashtra

and Anr.1, to contend that the entry in the service was neither illegal

nor a backdoor entry and that the government should regularize the

services of the Petitioner. He stated that for the reasons mentioned

above, the Petitioner is entitled to the reliefs which are claimed in the

petition.




12.       The learned Counsel for the Petitioner has also relied upon the

judgment of the Hon’ble Supreme Court in the matter of Radhey

Shyam Yadav & Anr. v. State of Uttar Pradesh & Ors.2 where it has

observed thus:

                “32. The situation of the appellants in the present
                case is no different from the individuals whose
                appointments were protected in the cases cited
                hereinabove. They had no blameworthy conduct.
                They were bona fide applicants from the open

1   2013 SCC OnLine Bom 1670
2   (2024) 11 SCC 770

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                market. The alleged mischief, even according to the
                State, was at the end of the School and its
                Manager. It will be a travesty of justice if relief is
                denied to the appellants. Enormous prejudice
                would also occur to them.”


13.       The learned Counsel appearing for the Respondent Nos.1 and 2

has filed an affidavit. He submits that the appointment was issued by

the Secretary of Respondent No.1. The Institution does not dispute

about the joining report or the appointment letter. The Institution

had sought NOC from the Respondent No.4, and it is only after

receiving NOC from the Respondent No.4 that they had published

the advertisement. He contended that they had made several

correspondences       with   the   University   as   well   as   the     State

Government, but neither of them had given approval.



14.       Learned Counsel appearing for the Respondent Nos.1 and 2

submitted that the Selection Committee held a meeting on

28.10.2007, wherein the Petitioner was unanimously selected. The

Committee included the Vice Chancellor's nominee, a nominee of the

Director of Education, and a subject expert, all of whom have

endorsed and affirmed the selection.




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15.       Learned Counsel for the Respondent Nos.1 and 2 argued that

until the impugned Order dated 10.06.2017 was passed, the

Respondent Nos.4 and 5 never raised any objection regarding the

alleged roster discrepancy, nor issued any communication to the

Petitioner or Respondent No. 1. He argued that Respondent Nos. 1

and 2 have acted bona fidely on the basis of the NOC issued by the

Respondent No.4. He submitted that Respondent No.1 had kept the

post vacant wherein the Petitioner shifted from Commerce and Law

to Costing, and can be absorbed in Costing. He submitted that the

post of Costing is vacant till date. He submitted that the rosters are

not maintained separately for Commerce and Costing, but a

combined roster for the subject of Commerce is issued. Therefore,

predominantly, the roster is bifurcated separately for subjects like

Economics, Languages, Librarian, Physical Education along with the

subject of Commerce, where Costing being an essential integrated

subject within the broad subject of Commerce, was recognized to be

a vital branch of accounting, being one of the subjects included

within the ambit of the Commerce category itself. He submitted that

distinguishing the subject of Costing with Commerce is not the

practice as to date which can be observed as per rosters which are


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issued by Respondent No.1- Management being approved and

verified by the State. He submitted that the streams Commerce

included Costing, and therefore there was no bifurcation of subjects

per se. He submitted that as the Commerce stream is concerned,

Costing is a branch of it. He submitted that even as per the University

Grants Commission Regulations, 2000 (UGC) the qualifications

required for appointment of any person on the post of Costing vis-a-

vis Commerce are one and the same, and therefore, the person from

the stream of Commerce can be appointed as a teacher or lecturer for

the post of subject of Costing in a University or College. He relied

upon the copy of the UGC Regulation 2000, which were annexed at

Exhibit-C to the additional affidavit. It is submitted that the

Petitioner, being appointed on the Open post in Commerce and Law,

however being eligible to teach any of the subjects under the

Commerce criteria, is also eligible and entitled to teach the subject of

Costing. In fact, the Petitioner has taught the subject of Costing in

Respondent No. 1-College for the academic years viz. 2019-2020,

2020-2021 and 2021-2022. He further laid stress on the fact that

before joining Respondent No.2- College, the Petitioner had worked

for previous colleges in Departments like Business Practices,


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Marketing, Costing and Business Administration and as such, there is

no bifurcation or distinction between a teacher of Commerce and law

and Costing; as Costing is an integral subject in the field of

Commerce and thus, if a teacher is eligible to teach a subject under

Commerce, the said teacher is entitled for teaching Costing.



16.       The learned Counsel for Respondent Nos.1 and 2 submitted

that the Respondent No.1- Management was diligent enough to

admit its mistake of issuing the advertisement not as per the roster.

However, the advertisement was prima facie based on the NOC

issued by Respondent No. 4 and the Report of the Selection

Committee. Therefore, the University as well as the State are equally

responsible for the irregular appointment. He submitted that it would

not be proper to refuse grant of approval to the Petitioner's

appointment after a period of 10 years. He submitted that the

Petition be allowed



17.       Learned Counsel for the Respondent No.3- University strongly

opposed the Petition. The learned Counsel appearing for the

Respondent- University submitted that the advertisement was issued



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for the subject of Commerce and Law, and only one sanctioned post

was advertised for the Open category in Respondent No. 2 while two

sanctioned posts were advertised for the reserved category of ST and

OBC respectively at D.G. Ruparel College, Mumbai, which is run by

Respondent No. 1 and affiliated to Mumbai University. He submitted

that the Respondent No.1- Management runs three colleges namely:

Ness Wadia College of Commerce, Pune (Respondent No. 2);

Nowrosjee Wadia College, Pune which is affiliated to Respondent

No.3- University; and D.G. Ruparel College, which is affiliated to

Mumbai University. He submitted that Respondent No.1 was required

to get the roster of reservation verified from the General

Administration Department, Mantralay, Mumbai and the same was

binding on Respondent No.1. He submitted that for the subject of

Commerce and Law, no post was sanctioned for the Open category.

He further submitted that as the roster was verified by Respondent

No.4 and no objection certificate was issued, Respondent No.1 issued

advertisement and selected the Petitioner for Commerce and Law

subject. This cannot be accepted by the Respondent- University

inasmuch as before making appointments to teaching staff, the

Respondent No.1 has to get the roster of reservation verified from


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the General Department, Mantralay, Mumbai and the same is binding

on Respondent No.1.



18.       Learned Counsel for the Respondent No.3 submitted that the

appointment of the Petitioner to the post not sanctioned by

Respondent No.5 is illegal one. He further submitted that when

Respondent No.1 sent a proposal for approval for the appointment of

the Petitioner to the post of lecturer in the subject of Commerce and

Law for Open category, the University wrote a letter to the

Respondent No. 1 stating that, as far as the appointment of the

Petitioner in the Commerce and Law subject is concerned, the

reservation roster should get approval from the State Government.

He submitted that the advertisement dated 09.08.007 issued by

Respondent No.1 was not as per the reservation verified by

Respondent No. 5- State and there was no post sanction for the

subject of Commerce and Law for the Open category by the State

Government. He submitted that the Petitioner, therefore, was not

entitled to approval for the said post. He submitted that there was no

sanctioned post for Open category in the subject of Commerce and

Law and advertising the post of Commerce and Law was incorrect.


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He submitted that there was a sanctioned post for Open category for

the subject of Costing but the same was not advertised. He submitted

that there was no advertisement for the Open category post of

lecturer in the subject of Costing. Therefore, candidates eligible to

apply for the said post would be deprived from participating in the

selection process of the said post if the approval is given to the

appointment of the Petitioner to the Open category post. He

submitted that the prayer of the Petitioner to give approval to the

appointment of the Petitioner as lecturer in the subject Costing

instead of subject Commerce and Law cannot be accepted. Therefore,

the action of the University to deny approval to the appointment of

the Petitioner as lecturer in the subject Costing was perfectly legal,

valid and justified.



19.       Learned Counsel appearing for the Respondent-State has also

filed an affidavit. Learned Counsel for the Respondent-State has

submitted that the appointment itself was illegal, and that, on the

basis of such illegal appointment the approval cannot be given. He

submitted that the financial liability regarding appointment and

services of the Petitioner will be upon the Respondents Nos. 1 and 2


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and not upon the present Respondents. He submitted that the

University is a competent authority to grant and/or refuse approval

to the appointment of full-time teachers as per the norms. He

submitted that he is adopting the arguments of the learned Counsel

appearing for the Respondent-University and he too prayed for

dismissal of the Petition.



20.       We have heard the learned Counsel appearing for the parties.

We have considered the pleadings and the materials on record.



21.       In the present case, admittedly, NOC was sought by the present

Respondents Nos.1 and 2 before issuing the advertisement. The said

NOC was sought from the Respondents Nos.4 and 5. The

Respondents Nos.4 and 5 granted the NOC on 19.07.2007. It is

pertinent to note that the posts mentioned in Para no.4 above were

the posts for which the NOC was granted. The Respondents Nos. 4

and 5, thereafter, in pursuance of the said NOC, issued an

advertisement. The advertisement mentions the subject as Commerce

and Law. Thereafter, there was a Selection Committee Report in

which the representatives/nominees of the University, as well as the


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nominee of the Respondents Nos.4 and 5, were present. They all took

a conscious decision to appoint the Petitioner and the Petitioner was

unanimously selected. Thereafter, the Petitioner left the job which

she was earlier doing with the Abeda Inamdar Senior College. The

Petitioner joined the Respondent Nos. 1 and 2 on 01.12.2007 and

joining report was given in lieu of the appointment letter dated

14/11/2007. Immediately thereafter, the principal of the Respondent

No.1 sent a letter dated 20.12.2007 at Exhibit-E requesting to give

approval to the appointment of the Petitioner and other teachers. The

said letter was received by the University. However, till the date of

passing of the impugned Order, the Respondent-University never

communicated to the Petitioner about the rejection of the approval

and that by this time, the Petitioner had almost spent 10 years

teaching in Respondent No.2- College.



22.       It is pertinent to note that both the learned Counsel for the

Petitioner and the learned Counsel appearing for Respondent Nos.1

and 2 argued that there was a vacancy for the subject Costing for the

Open category, and that the Respondent Nos.4 and 5 as well as

Respondent No. 3- University has not denied the said aspect. As a


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matter of fact, in the affidavit filed by the University, this aspect is

reiterated that there was a vacancy in the subject of Costing.



23.       Learned Counsel appearing for the Petitioner as well as learned

Counsel for the Respondent Nos.1 and 2, have pointed out as to how

the subjects ‘Costing’ and ‘Commerce and Law’ were similar, and that

the Petitioner was teaching the subject of Costing also. It is

specifically stated across the Bar, as well as in the affidavit filed by

the Respondent Nos.1 and 2, that distinguishing the subject of

Costing from Commerce is not a practice which was observed as per

the rosters issued by Respondent No.1- Management. It is also

pertinent to note that, as per the UGC Regulations 2000, which are

relied by the Petitioner and the Respondent Nos.1 and 2, the subjects

of Commerce include Costing. It is no doubt true that the Respondent

Nos.1 and 2 have committed a gross mistake of issuing an

advertisement for the post of Commerce and Law when the said post

was not vacant and was not sanctioned.



24.       It is however, important to consider at this juncture that the

Respondent Nos.1 and 2 committed a mistake, the said mistake was


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further perpetuated by the Respondent No.4 inasmuch as NOC was

granted to the said advertisement by the Respondent No.4. Had it

been that the Respondent No.4 had not granted NOC to the said

subject at that juncture on 11.07.2009, further difficulties would

have been avoided. Having granted the NOC by the Respondent

No.4, the Respondent Nos.1 and 2 proceeded to issue the

advertisement.



25.       The mistake was further compounded inasmuch as the

Selection Committee which was appointed to select the candidates,

which constituted of representatives of both the Respondent No.3 as

well as the Respondent No.4, unanimously appointed the Petitioner.

Even this document is not denied by any of the Respondents. After

the Petitioner was appointed to the said post on 14.11.2007, she has

been working on the said post.



26.       It is further interesting to note that although the Respondent

Nos.1 and 2 had on 20.12.2007 applied for approval from the

University, the University sat tight on that proposal till the impugned

Order was passed. Thus, this is a case where, due to the mistakes


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committed by all the Respondents, the Petitioner is driven to this

litigation. This is not a case of backdoor entry, as argued by the

learned Counsel for the Respondent No.3. It is not as if the Petitioner

obtained a backdoor entry and is now working on the basis of the

order obtained by the Court. It is because of the mistakes committed

by the Respondent Nos.1 to 5 that this situation has arisen.


27.       Learned Counsel appearing for the Petitioner is correct in

saying that there was no fault on the part of the Petitioner. The

Petitioner, having gone through the rigors of the selection after

issuance of the advertisement and NOC by the State Government,

cannot be penalized today for the procedural lapses on the part of

either the employer or on the part of the University as well as the

Respondent Nos.4 and 5- State. The Petitioner, being appointed in

the year 2007, has a legitimate expectation of grant of approval

because the appointment was made after due process and no

objection was raised to her appointment for nearly a decade. It is

pertinent to note that the Petitioner has altered her position

inasmuch as she was working with another college viz. Abeda

Inamdar Senior College from which post she had resigned and joined



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the present Respondent Nos.1 and 2. The Petitioner, was thus, made

to alter her position.


28.       The gross delay and laches on the part of the University also

speaks volumes. The Petitioner was appointed in the year 2007. The

proposal was immediately sent by Respondent Nos.1 and 2 to the

University. However, the refusal came only in the year 2017 i.e. after

about 10 years. The action on the part of the University is thus

marred by gross delay and laches.


29.       This is not a case where the Respondent Nos.3 to 5 have stated

that there was fraud in the recruitment process. This is also not a

case of backdoor entry as propounded in the case of Secretary, State

of Karnataka and Ors. Vs. Umadevi (3) and Ors.3


30.       Learned Counsel appearing for the Petitioner has rightly

contended that the Petitioner had altered her position and therefore,

doctrine of legitimate expectation is attracted. There was an

advertisement. The Petitioner was selected by Selection Committee.

The Petitioner was issued appointment letter. The Petitioner therefore

resigned from her earlier services. Thus, the Petitioner has altered

3   (2006) 4 Supreme Court Cases 1

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her position. The Petitioner’s case is therefore, covered by the

doctrine of legitimate expectation. The Hon’ble Supreme Court in the

matter of Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed

Industries 4 has observed thus:

               “7.    In contractual sphere as in all other State
               actions, the State and all its instrumentalities have to
               conform to Article 14 of the Constitution of which
               non-arbitrariness is a significant facet. There is no
               unfettered discretion in public law : A public
               authority possesses powers only to use them for
               public good. This imposes the duty to act fairly and
               to adopt a procedure which is ‘fairplay in action’.
               Due observance of this obligation as a part of good
               administration raises a reasonable or legitimate
               expectation in every citizen to be treated fairly in his
               interaction with the State and its instrumentalities,
               with this element forming a necessary component of
               the decision-making process in all State actions. To
               satisfy this requirement of non-arbitrariness in a
               State action, it is, therefore, necessary to consider
               and give due weight to the reasonable or legitimate
               expectations of the persons likely to be affected by
               the decision or else that unfairness in the exercise of
               the power may amount to an abuse or excess of
               power apart from affecting the bona fides of the
               decision in a given case. The decision so made would
               be exposed to challenge on the ground of
               arbitrariness. Rule of law does not completely
               eliminate discretion in the exercise of power, as it is
               unrealistic, but provides for control of its exercise by
               judicial review.
4   (1993) 1 Supreme Court Cases 71

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          8.     The mere reasonable or legitimate expectation
          of a citizen, in such a situation, may not by itself be a
          distinct enforceable right, but failure to consider and
          give due weight to it may render the decision
          arbitrary, and this is how the requirement of due
          consideration of a legitimate expectation forms part
          of the principle of non-arbitrariness, a necessary
          concomitant of the rule of law. Every legitimate
          expectation is a relevant factor requiring due
          consideration in a fair decision-making process.
          Whether the expectation of the claimant is
          reasonable or legitimate in the context is a question
          of fact in each case. Whenever the question arises, it
          is to be determined not according to the claimant's
          perception but in larger public interest wherein other
          more important considerations may outweigh what
          would otherwise have been the legitimate
          expectation of the claimant. A bona fide decision of
          the public authority reached in this manner would
          satisfy the requirement of non-arbitrariness and
          withstand judicial scrutiny. The doctrine of legitimate
          expectation gets assimilated in the rule of law and
          operates in our legal system in this manner and to
          this extent.

          9.     In Council of Civil Service Unions v. Minister
          for the Civil Service [(1984) 3 All ER 935 (HL)] the
          House of Lords indicated the extent to which the
          legitimate expectation interfaces with exercise of
          discretionary power. The impugned action was
          upheld as reasonable, made on due consideration of
          all relevant factors including the legitimate
          expectation of the applicant, wherein the
          considerations of national security were found to

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               outweigh that which otherwise would have been the
               reasonable expectation of the applicant. Lord
               Scarman pointed out that “the controlling factor in
               determining whether the exercise of prerogative
               power is subject to judicial review is not its source
               but its subject-matter”. Again in Preston, in re
               [(1985) 2 All ER 327] it was stated by Lord Scarman
               that “the principle of fairness has an important place
               in the law of judicial review” and “unfairness in the
               purported exercise of a power can be such that it is
               an abuse or excess of power”. These decisions of the
               House of Lords give a similar indication of the
               significance of the doctrine of legitimate expectation.
               Shri A.K. Sen referred to Shanti Vijay and Co. v.
               Princess Fatima Fouzia [(1979) 4 SCC 602] which
               holds that court should interfere where discretionary
               power is not exercised reasonably and in good faith.”


31.       The Respondent Nos.1 and 2 had filed an affidavit and stated

that the post of Costing was reserved for the Open category and was

sanctioned/approved by Respondent Nos.4 and 5. The Respondent

Nos.1 and 2 have also filed an affidavit stating that the Petitioner

was teaching the subject of Costing inasmuch as the subjects of

‘Costing’ and ‘Commerce and Law’ all are fused to such an extent that

there really does not exist a separate roster in Respondent No.2-

College for the same.

32.       In these premises, since the Petitioner has worked for nearly 10


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years and even is working till today, coupled with the fact that as it is

the Respondent No.4 had given NOC for issuance of advertisement

for the post of Commerce and Law, and further that no additional

burden will be put on the coffers of Respondent No. 5, taking into

consideration these peculiar circumstances of the case, we are

inclined to allow the petition. Hence, the following Order:

                                ORDER

   (i)    The Writ Petition No.4851 of 2018 is allowed.

   (ii)   The impugned Order dated 10.06.2017 issued by the

          University refusing to grant approval for appointment of the

          Petitioner is hereby quashed and set aside.

   (iii) The Respondent Nos.3 to 5 are directed to grant approval to

          the Petitioner’s appointment with effect from 01.12.2007

          with all consequential benefits and arrears of salary and

          increments with effect from 01.12.2007 within a period of

          twelve weeks from the date of passing of this Order.

   (iv)   In view of above, Writ Petition No.4851 of 2018 stands

          disposed of.




(SANDESH D. PATIL, J.)                            (M. S. KARNIK, J.)

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