Johnson and Johnson Ltd. Vs. Deputy Chief Controller of Imports and Exports and anr. - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - but, the persons like petitioners, registered as an actual users were barred from importing wood pulp after 1980 due to the purported condition. in this view of the submissions, the contention canvassed and urged is that interpretation adopted by the respondent had the effect of discriminating against the petitioners and treating other similarly placed persons differently, to the detriment of the petitioners, as such the action complained of is in breach of article 14 of the constitution of india. wherein the petitioners have stated that during the course of hearing of the show cause notice, the 1st respondent had expressed himself to be satisfied with the initial submissions made and did not desire to hear the petitioners further.vijay daga, j.1. heard learned counsel for the rival parties. this petition is directed against the order dated 11-11-1987 passed by the deputy chief controller of imports and exports, new delhi, in exercise of powers conferred under clause 8 of the import (control) order, 1955, whereunder; the entitlement of the petitioners i.e. the quota to import raw material for manufacturing sanitary napkins was reduced by 20%. in other words, petitioners were permitted to make imports under ogl licence and receiving import licences and customs clearance permits and allotment of imported material from state trading corporation (stc) and minerals metals trading corporation (mmtc) or any other similar agency for the period from 10th november, 1987 to 31st march, 1990 to the extent of 80% of their entitlement. thus, the entitlement of the petitioners to import raw material was curtailed by 20% for the period 10-11-1987 to 31-3-1990.2. the facts brought on record reveal that the show cause notice dated 18-8-1986, which came to be issued under clause 10 of the imports (control) order, 1955 proposing to take penal action against the petitioner under clause 8(g) thereof; was based on the premise that the petitioner had illegally imported wood pulp between 1980 and 1985, in violation of paragraph 19(1) of appendix 10 of the import policy 1982-83, and the corresponding provisions of the 1983-84 and 1984-85 policies and thereby committed breach of the import (control) order, 1955.3. the aforesaid said show cause notice was replied and number of grounds were put forth to show that show cause notice, and the proposed action was unwarranted. the show cause notice was also challenged on the various legal grounds; but, none of the submissions found favour with the respondent no. 1. he was pleased to hold that the petitioners had committed a breach of the relevant import control regulations by making imports of wood pulp under ogl licence. he, thus, passed order on 11-11-1987; debarring the petitioner from making imports; the details of which are given in the opening para of this judgment.4. being aggrieved by the above order, petitioners have filed this petition under article 226 of the constitution of india. while granting rule, this court vide interim order dated 18-12-1987 had stayed the operation of the impugned order with the result impugned order could not operate. in the other words, order could not be implemented. now, after 15 years this petition has come up for final hearing.5. the impugned order is being challenged on the various amongst other grounds; including that the action is discriminatory and violative of article 14 of the constitution of india, inasmuch as, the person who was not earlier entitled to import wood pulp, prior to the introduction of the system of open general licence (ogl) in 1980, was permitted to freely import wood pulp after 1980; subject to his only being an actual user; but, the persons like petitioners, registered as an actual users were barred from importing wood pulp after 1980 due to the purported condition. that once the scheme of ogl was introduced, it equally applied to all actual users of the wood pulp so long as they were registered with the sponsoring authority. in this view of the submissions, the contention canvassed and urged is that interpretation adopted by the respondent had the effect of discriminating against the petitioners and treating other similarly placed persons differently, to the detriment of the petitioners, as such the action complained of is in breach of article 14 of the constitution of india.6. the another ground of challenge relates to the breach of principles of natural justice. this ground of challenge, if upheld, can alone decide the fate of this petition, as such, we propose to deal with this challenge first. if necessary, we may consider other grounds of challenge at the later stage of the judgment.7. the learned counsel for the petitioners in order to demonstrate breach of the rules of principles of natural justice, relied upon the averments made in paragraph 1 of the petition; wherein the petitioners have stated that during the course of hearing of the show cause notice, the 1st respondent had expressed himself to be satisfied with the initial submissions made and did not desire to hear the petitioners further. with the result, the 1st respondent did not hear any further arguments on behalf of the petitioners, though the petitioners had number of submissions to make.8. the above fact is sought to be substantiated on the basis of the letter dated 21st september, 1987 addressed to the then deputy chief controller of imports and exports, the respondent no. 1; who had heard the petitioners. this letter is not in dispute. the contents thereof do make a specific reference to this particular fact stated by the petitioners, though the averment made in the petition in this behalf have been denied by the respondents in their counter affidavit.9. in order to find the strength of this submission, one has to turn to the impugned order, wherein; intrinsic clinching evidence is to be found to support the contention of the petitioners in this behalf. it is mentioned in the impugned order (paragraph 12) that personal hearing was fixed on 12th may, 1987. accordingly, the matter was heard. paragraph 13 of the impugned order further makes it clear that the respondent no. 1 vide its d. o. letter dated 12-5-1987, had requested the dgtd to clarify whether registration of the unit of the petitioners with them for availing ogl facility had the effect of superseding the condition; providing for necessity of taking prior permission incorporated m the letter dated 28-6-1980, or that the 'sanitary protection products' came to be included in the registration through an oversight. the dgtd vide its letter dated 11/15-9-1987 replied that certificate of registration for availing of ogl facilities did not supersede the condition of industrial licence/permission, as such the import of raw material under ogl was illegal.10. the respondent no. 1 relying on the aforesaid clarification-cum-reply furnished by the dgtd passed an impugned order without getting any reaction from the petitioners.11. the aforesaid adverse material; in the form of clarification from dgtd came on the record of the proceedings subsequent to the date of hearing i.e. after 12th may, 1987. this adverse material was never brought to the notice of the petitioners. as a matter of fact, keeping in view the principles of natural justice, it was obligatory on the part of the respondent no. 1 to draw the attention of the petitioners to this letter and invite their views. the adverse report ought to have been brought to the notice of the petitioner, which was obtained by the 1st respondent behind the back of the petitioners, that too after the hearing was completed. in a quasi judicial proceedings, non supply of the adverse material to the affected person, but supply thereof to the authority taking decision against him on that basis; constitutes violation of rules of natural justice as held by the apex court in union of india and ors. v. mohd. ramzan khan, : (1991)illj29sc .12. in order to confirm natural justice, the decision maker must not act on the material coming on record subsequent to the stage of hearing or after oral hearing, which the other side has not seen and had no chance to comment on it. it is a elementary rule of principles of natural justice, that party must be given a fair opportunity to collect and controvert any relevant material brought forward to his prejudice. it is needless to mention that the breach of principles of natural justice constitutes breach of article 14 of the constitution of india as held by the apex court in the case of union of india and ors. v. ex constable amrik singh, : 1991 crilj664 . thus, considering the clear breach of principles of natural justice, the impugned order cannot stand to the scrutiny of law and the same needs to be quashed and set aside on this short count.since the impugned order is being set aside on the ground of breach of principles natural, we do not think it, necessary to dwell on other various challenges set up in the petition and canvassed in the oral submissions by the learned counsel for the petitioners.13. the learned counsel for the revenue suggested for remand with direction to provide fresh opportunity of hearing to the petitioners. we do not think remand would be justified in the facts and circumstances of the present case. even if, the respondent no. 1, were to hear the petitioners afresh and reach to the same conclusion, even then, no such ban can be allowed to be imposed, considering the present liberal import policy of the country permitting free import. even otherwise remand would be unnecessary taking into account the peculiar fact that the order has not been acted upon almost for a long period of 15 years. the petitioners were allowed to make import, even in those years when the import restrictions existed, though under the interim relief of this court. we, thus, do not see any reason to remand the matter back to the respondent no. 1 for fresh enquiry and consent hearing afresh, as suggested by mr. r. v. desai, senior counsel appearing for the revenue.14. in the result, the petition is allowed and the impugned order is quashed and set aside. rule is made absolute in terms of prayer clause (a), with no order as to costs.