IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.15464, 15465, 16485 and 18894 of 2010 and Connected Miscellaneous Petitions Sairam Shipping Science Institute, Rep. By its Secretary, Koodapakkam Main Road, Ulavaikkal Village, Villiyanoor, Commum, Pondicherry 605 502. ...Petitioner in W.P.No.15464/2010 Shirdi Sai Nautical Science Academy Rep. By its Secretary, 'Sai Leo Nagar' Anekal, Bangalore - 562 106. ...Petitioner in W.P.No.15465/2010 PSN College of Engineering and Technology, Rep. By its Chairman, Melathediyur, Palayamkottai, Tirunelveli District 627 152. ...Petitioner in W.P.No.16485/2010 Sairam Shipping Science Institute, Rep. By its Secretary, Koodapakkam Main Road, Ulavaikkal Village, Villiyanoor, Commun, Pondicherry 605 502. ... Petitioner in W.P.No.18894/2010 Vs. 1.Indian Maritime University, Rep. By its Vice Chancellor, East Coast Road, Uthandi, Chennai - 600 119. ..1st Respondent in WP Nos. 15464,15465 and 16485/2010 and 2nd Respondent in WP No. 18894/2010 2.The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai 400 001. ..2nd Respondent in WP Nos.15464 15465 and 16485/2010 and 1st Respondent in WP 18894/2010 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.15464/2010 presented under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent in Ref.No.IMU/DFA/Affi/112/2010 dt 9.7.2010 and quash the same that part of the said Proceedings requiring the petitioner to obtain clearance for Certificate of Compliance from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.15465/2010 presented under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent in Ref.No.IMU/DFA/Affi/112/2010 dt 9.7.2010 and quash the same that part of the said Proceedings requiring the petitioner to obtain clearance for Certificate of Compliance/continuous discharge certificate from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.16485/2010 presented under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent dt 19.2.2010 in Ref. No. IMU/DFA/Affi/2009 and quash the same that part of the said proceedings requiring the petitioner to obtain clearance for Certificate of Competency/Continuous Discharge Certificate from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.18894/2010 presented under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records of the First Respondent in Ref.TR-TAR/1(24)/ 2010 dated 02.08.2010 and quash the same and consequently direct the First Respondent to act according to law. For Petitioners : Mr.R.Muthukumarasamy, Senior Counsel for Mr.A.Jenasenan (in W.P.Nos.15464 and 15465/2010) Mr.AR.L.Sundaresan, Senior Counsel for Ms.AL.Gandhimathi (in W.P.No.16485/2010) Mr.R.Muthukumarasamy, Senior Counsel for Mr.S.Mohanasundararajan (in W.P.No.18894 of 2010) https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.R.Suresh Kumar for Indian Maritime University (in all Writ Petitions) Mr.Venkateswaran, Senior Counsel for Mr.S.Haja Mohideen Gisthi, SCGSC for Director General of Shipping (in all Writ Petitions) C O M M O N O R D E R W.P.No.15464 of 2010 is filed by Sairam Shipping Science Institute at Villiyanoor, Pondicherry, challenging the order of the Indian Maritime University, the first respondent directing them to obtain clearance for Certificate of Compliance from the Director General of Shipping, the second respondent as a condition for including the petitioner's Institution for counseling which was Scheduled on 19.7.2010. 2. W.P.No.15465 of 2010 is filed by one Shirdi Sai Nautical Science Academy at Anekal, Bangalore, challenging an order dated 9.7.2010 and makes similar prayer as that of the first writ petition. 3. When both the writ petitions came up for admission, the learned counsel for the first respondent University took notice. Pending the writ petitions, the petitioners sought for an interim stay of the order passed by the University as well as an interim direction to include their name for counselling process scheduled on 19.07.2010 in respect of Diploma in Nautical Science for the 2010 batch. 4. Even before the admission of the writ petitions, when the matter came up on 21.07.2010, this Court after hearing the learned counsel for both sides held that there was a prima facie case and balance of convenience was in favour of the petitioners and in the interest of justice, the University was directed to permit the petitioners' institution to participate in the counselling session starting from 19.07.2010 or on any other subsequent date. However, it was made clear that it will be subject to the result of the writ petitions. The order was also directed to be communicated telegraphically to the respondents. 5. On notice from this Court, the first respondent has filed a counter affidavit dated 11.08.2010 and the second respondent has filed a counter affidavit dated 27.07.2010. 6. The petitioners filed two miscellaneous petitions viz., M.P.No.1 of 2011 and M.P.No.2 of 2011 in both the writ petitions. The first MP was for directing the respondents to include the petitioners' institution in the counselling process conducted by the https://hcservices.ecourts.gov.in/hcservices/ University on 20.01.2011 and 21.01.2011 for the February 2011 intake with regard to Diploma in Nautical Science course. That direction was granted by this Court with an observation that it will be subject to the result of the writ petitions. In the second MP, they sought for modification of the order dated 12.01.2011 as it was wrongly shown as order dated 06.01.2011, whereas it should be order dated 12.01.2011 and that clerical error was corrected by an order dated 28.01.2011. 7. In the meanwhile, the third writ petition viz., W.P.No.16485 of 2010 came to be filed by one PSN College of Engineering and Technology at Melathediyur, Palayamkottai, seeking to set aside an order dated 19.02.2010 issued by the University and after setting aside the same in so far as it requires the petitioner College to obtain clearance for Certificate of Competency/Continuous Discharge Certificate from the 2nd respondent which was made as a condition for including the petitioner Institution for counseling, which is Scheduled on 19.7.2010. 8. When that writ petition came up on 28.07.2010, it was informed by the learned counsel for the University that since already the counselling process was completed, there was no chance for further counselling. Therefore, it was observed that whatever decision taken by the respondents will be subject to the outcome of the main writ petition. Hence, no orders were passed in the miscellaneous petitions. That writ petition was directed to be heard along with similar writ petitions which were pending. 9. The fourth writ petition viz., W.P.No.18894 of 2010 was filed by the first writ petitioner viz., Sairam Shipping Science Institute, seeking to set aside an order dated 02.08.2010 passed by the Director General of Shipping. By the impugned order, the Director General of Shipping found their application for establishment of new Maritime Institute cannot be considered since the Director General of Shipping in Order No.2 of 2007 has stated that only such institutes as promoted with a non profit making objective by leading and reputed shipping companies, ship and maritime related management companies, Government institutes and ship building companies with experience and knowledge of maritime life and matters and with support base from among the serving or retired marine professional, need apply for consideration for approval. In that writ petition, notice was ordered. On notice, the Director General of Shipping has filed a counter affidavit dated 25.08.2010. 10. In view of common question of law is raised in all these writ petition, they were grouped together and heard along with other similar writ petitions. 11. Heard the arguments of Mr.R.Muthukumarasamy, learned Senior Counsel leading Mr.A.Jenasenan, counsel for the petitioner in W.P.Nos.15464 and 15465 of 2010 and for Mr.S.Mohanasundararajan in W.P.No.18894 of 2010, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for Ms.AL.Ganthimathi, counsel for the petitioner in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.16485 of 2010, Mr.Venkateswaran, learned Senior Counsel appearing for Mr.S.Haja Mohideen Gisthi, learned Senior Central Government Standing Counsel for the Director General of Shipping and Mr.R.Suresh Kumar, learned counsel for the Indian Maritime University. 12. After orders were reserved in these writ petitions, the petitioners in W.P.Nos.16129, 16130, 18895 and 18896 of 2010 circulated a letter seeking for withdrawal of the writ petitions as relief has already been given to them. Hence, those matters were listed and were dismissed as infructuous. 13. The case of the petitioners in W.P.Nos.15464 and 18894 of 2010 was that Saptagiri Educational Trust was founded in the year 1994 and they had established number of educational institutions. The Trust had decided to establish a self financing institute to impart courses leading to a Diploma in Nautical Science. The Indian Maritime University Act, 2008 (for short IMU Act) was enacted by the Parliament to establish and incorporate a teaching and Affiliating University at the national level to facilitate and promote maritime studies and for matters connected therewith. The power has been given to the University to determine and to admit to its privilege colleges and institutions not maintained by the Indian Maritime University (for short IMU), to determine standards of admission and to regulate admission of students for various courses of study in recognised institutions. The Trust established the petitioner Institute in Puducherry with all necessary infrastructure and sought for approval from the IMU to offer the course in Diploma in Nautical Science with annual intake of 40 students from August 2010 batch. 14. The IMU on receiving the application conducted an inspection on 30.06.2010 and submitted its report. Based on the report, the matter was examined by the Competent Authority of the University and a communication was sent to the petitioner on 09.07.2010 informing that the University had approved an intake of 40 students for Diploma in Nautical Science course from August 2010 batch. The petitioner was also advised to approach the Director General of Shipping (for short DGS) for the purpose of obtaining clearance for Continuous Discharge Certificate (for short CDC). They were also informed that their institute will be included in the counselling process scheduled on 19.07.2010 on getting clearance from the DGS. The advice given by the University to obtain clearance for CDC is untenable and contrary to the provisions of the IMU Act. It was claimed by them that there is no need to apply for any clearance from the DGS and it is not part of the Diploma Course and it cannot be made as a condition precedent. Even though there is no requirement for obtaining any clearance, they have made a request to the DGS for giving a clearance for CDC. 15. In W.P.No.18894 of 2010, their grievance was that the DGS by the impugned order dated 02.08.2010 rejected their request for grant of approval for running an institute based upon the DGS order No.2 of 2007. It is stated that the order of DGS is not valid any more after the advent of IMU Act. The provisions of IMU Act do not contemplate https://hcservices.ecourts.gov.in/hcservices/ running of an institute by Shipping companies and others as mentioned in the impugned order. After the judgment of the Supreme Court in T.M.A.Pai Foundation and others v. State of Karnataka and others reported in (2002) 8 SCC 481, establishment of an educational institution is a right guaranteed under Article 19(1)(g) of the Constitution and if at all, it is only the IMU which can frame regulations consistent with the provisions of the Act. 16. The petitioner in W.P.No.15465 of 2010 had also raised similar contentions as that of the petitioner in W.P.No.15464 of 2010 as noted above. 17. The petitioner in W.P.No.16485 of 2010 had stated that they are running Educational and Charitable Trust and located their college 12 kms away from Palayamkottai and it is duly approved by All India Council for Technical Education (for short AICTE) and it is also affiliated to Anna University and Indian Maritime University. They had applied for provisional affiliation on 27.04.2009 for starting a Diploma Course in Nautical Science with IMU. The University conducted an inspection on 09.01.2010. After inspection, by a letter dated 21.01.2010, they informed that there are some minor deficiencies in the college and requested them to comply with the same. The College had also sent a compliance report. In the meanwhile, the DGS sent a reply on 18.09.2009 stating that the application cannot be processed since Clause 1.4.2.3 of the guidelines was not satisfied by the petitioner. It was stated that the approval of the DGS was not required as per the provisions of the IMU Act. The petitioner college has obtained a Accreditation status from the AICTE and has been running maritime related courses from the year 2002. Obtaining Certificate of Competency/Continuous Discharge Certificate cannot be made as a condition precedent. If at all, it is only the IMU which can frame guidelines for grant of affiliation. Even though there was no such requirement, they had made an application which is still pending and since it may take time and they cannot wait for getting clearance certificate, they had approached this Court. 18. In the common counter affidavit filed by the IMU viz., the first respondent, after setting out the provisions of the IMU Act, it was stated that IMU Act was enacted by the Parliament with an aim and object of promoting and facilitating the maritime studies in India in order to develop and maintain the standards of maritime education to meet the global standard to prepare the Marine Officers/Engineers/Cadets for various jobs not only in India but also in abroad with international standard as prescribed by the International Maritime Organisation. The purpose of Merchant Shipping Act, 1958 (for short M.S.Act) was to ensure the efficient maintenance of an Indian Mercantile Marine and for that purpose a National Shipping Board was created to provide for the registration, certification, safety and security of Indian ships. The National Shipping Board established under Section 7 of the M.S.Act enables the Central Government to appoint the Director General of Shipping. Under Section 79(2) of the M.S.Act, powers have been delegated to the DGS. https://hcservices.ecourts.gov.in/hcservices/ Section 79(2) may be usefully extracted below:- "79(2) The Central Government or such authorised person shall grant to every applicant, who is duly reported by the examiners to have passed the examination satisfactorily and to have given satisfactory evidence of his sobriety, experience and ability and general good conduct on board ship, such a certificate competency as the case requires: Provided that the Central Government may, in any case in which it has reason, to believe that the report has been unduly made, require, before granting a certificate, a re-examination of the applicant or a further inquiry into his testimonials and character". 19. It was further stated that certificates are to be given by the DGS to the cadet or person on satisfactory completion of training or examination conducted by it viz., Certificates of Competency. Under Section 79(3) of the M.S.Act, the Certificate is valid for such period as may be prescribed. After the expiry of the period of certificate, it has to be renewed lest it may lapse. The examination conducted for grant of certificate under the M.S.Act is not related to the Degree Certificate, Diploma Certificate or Certificate for any other course to be conducted by any institution affiliated to the University for awarding such degree, diploma or certificates. The Degree or Diploma have nothing to do with the grant of Certificate of Competency (for short CoC) by the DGS. The DGS by a notification dated 27.04.2009 informed that the one year Diploma Programme in Nautical Science (DNS) which was hitherto conducted by the IGNOU stood transferred to the I.M.University. In the notification, he had stated that the DGS can still continue to regulate the institutes, colleges conducting courses, preparatory to issuance of Certificate of Competency which remain affiliated to University other than Indian Maritime University. Under Clause v of the said notification, it has been stated as follows:- "(v) Approval of new capacities in IMU constituent affiliated institutions for the CoC oriented courses will be routed through the Board of Affiliation and Recognition of IMU, to the Collegium of DGS to facilitate orderly and sustainable developments of the job market. A suitable mechanism is being worked out to ensure expeditious clearances." 20. Thereafter, on 29.05.2009, he has notified that DNS programme conducted by various institutions through IGNOU was transferred to I.M.University from February 2009 session and the list of institutions which were conducting such courses were furnished. These two notifications were challenged by the aggrieved persons in W.P.No.10912 of 2009 and batch cases. [Maritime Institutes Association, rep. By its Secretary and another v. Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), https://hcservices.ecourts.gov.in/hcservices/ New Delhi. Those batch of writ petitions were disposed of by a common order dated 17.11.2009 (the said judgment is since reported (2010) 1 MLJ 1217). In paragraphs 162 to 164 and 166-169, it was held as follows:- 162. The condition that the approval of new intake capacities in IMU constituent/affiliated institutions of CoC oriented courses should be routed through the Board of Affiliation and Regonition of IMU, to the collegium of DGS to facilitate orderly and suitable developments of job market, makes it abundantly clear that what is sought to be achieved by DGS is only the area relating to merchant shipping and not maritime education. 163.The machinery for consultation with DGS for inspection of the institutes, providing instruction, recognition of the institute, approval of the courses, additional intake are already provided in IMU Act and therefore, IMU should be the final authority. Being a member of the Academic Council and Executive Council, the DGS cannot have a paramount superiority nor can claim superior powers than the University. The DGS cannot trench upon the legislative field occupied by IMU. As laid down in a catena of decisions stated supra, interpretations to Sections 79, 81 and 85 of MS Act, 1958, depends upon the legislative intent for which the provisions are made i.e., relating conferment or award of Coc by DGS, which is specifically carved out from the purview of the latter Act, and referable to the provisions of the MS Act. 164. Even assuming that there are provisions under the M.S.Act overlapping the subject matter in IMU Act, in view of the salient provisions occupying the field relating to maritime education under the IMU Act, the same cannot be whittled down or curtailed or rendered nugatory by the impugned notices. 166. ...Now, under the structure of an exhaustive code, IMU Act can be made applicable to all the areas covered under the impugned notices and therefore, it should be purely to the satisfaction of the statutory authorities under the University. In these circumstances, this Court is of the view that the powers hitherto exercised by the DGS are only transitory and he is no longer empowered to exercise the same powers, except the one sanctioned under the IMU Act. 167. In the light of the above, this Court is of the view that the impugned notices which are in the form of executive instructions purported to be issued in https://hcservices.ecourts.gov.in/hcservices/ exercise of statutory provisions of M.S.Act cannot override the statutory provisions of the IMU Act. 168. Institutions like AICTE, MCI, DCI,etc., are statutory bodies created under the respective enactments like AICTE Act, MCI Act, DCI Act, etc., wherein the competent authorities are specifically empowered to grant recognition to the institutes/colleges approve the courses, permit additional intake etc. But, the DGS is not a creature of any statute specifically empowered to do so. Therefore, the contentions that DGS is a regulatory body for the entire maritime education cannot be countenanced. 169.If the interpretation of the provisions of MS Act are to be given the meaning, power and authority on the DGS, as projected by the respondents, then they would infringe upon the rights of the University in the matters set out in the IMU Act and statutes framed thereunder and consequently affect the interest of the approved institutes." 21. Taking advantage of the order passed by the learned Judge, it was contended by the University that the DGS cannot by relying upon 'Seafarer, Training, Certification and Watch Keeping Code (STCW Code) try to administer the maritime educational institution which comes within the exclusive jurisdiction of the Maritime University. 22. It was contended that in the absence of any Special Law granting status to the DGS, similar to that of the amendment made to the Indian Medical Council Act or the establishment of similar Act like NCTE, the DGS cannot contend that he has overall power. He cannot encroach upon the jurisdiction and power of the IMU either to prescribe standard of maritime education or to grant approval or affiliation of maritime institutions or courses. 23. The Board of Affiliation and Recognition (BAR) of the University had recommended grant of affiliation to the petitioners' Colleges and they were placed before the Planning Board i.e. The Academic Council on 06.07.2010 and the Planning Board approved the Minutes of the Board. The recommendation of the Planning Board was placed before the Executive Council of the University on 07.07.2010 and it has approved the recommendation of the Planning Board. The University was not under any obligation to give conditional approval for the institutions for commencing the course. But however advice was given to the Colleges to approach the DGS for getting CoC/CDC. The colleges which are permitted by interim order to participate in the counselling were also allotted seats during the counselling. Only the petitioner in W.P.No.16485 of 2010 could not be included as they had approached the Court after the counselling. https://hcservices.ecourts.gov.in/hcservices/ 24. Copies of the Minutes of the Board of Affiliation and Recognition dated 05.07.2010, Minutes of the Planning Board dated 06.07.2010, and Minutes of the Executive Council dated 07.07.2010 were also filed in the form of typed set by the University. 25. It is brought to the notice of this Court that subsequently, a Division Bench presided by H.L.Gokhale,C.J. (as he then was) disposed of the writ appeals preferred by DGS in W.A.Nos.151 to 154 of 2010 by a common order dated 26.02.2010. In the common order dated 26.02.2010, the Division Bench in paragraphs 15 and 16 held as follows:- "15. Mr.R.Suresh Kumar, learned counsel for the Indian Maritime University submitted that the University was aggrieved by the two circulars. However, the fact remains that the University has not filed any writ petition. Not only that but the University had taken as stand, as stated above, in its affidavit before the learned single Judge that the Certificate of Competency can be given only by Director General of Shipping, and a contrary submission cannot be permitted to be agitated in the appeals (though it will be open to the University to take steps in accordance with law, if it so deems it fit). 16. In the circumstances, we allow all these four writ petitions being W.P.Nos.13687, 13688, 10912 and 10913 of 2009 to be withdrawn, and consequently, the four writ appeals will stand disposed of as such, though we clarify that as far as the Certificates of Competency for the grades under Section 78 of the Merchant Shipping Act, 1958 are concerned, the Director General of Shipping is the authority for the purpose of examining the qualifications of persons desirous of obtaining the certificates of competency thereunder, and has the authority to do all that is needful in respect of grant of these qualifications. There will be no order as to costs." 26. Subsequently, the matter was mentioned before the Division Bench for certain clarification. The Division Bench by a further order dated 07.04.2010 issued the following clarification in respect of paragraph 16 extracted above: "2.The sentence in paragraph -16, which states that the Director General of Shipping is the authority for the purpose of examining the qualifications of persons desirous of obtaining the certificates of competency thereunder and has the authority to do all that is needful in respect of grant of these qualifications will have the following words added in terms of the https://hcservices.ecourts.gov.in/hcservices/ circulars issued by the Director General of Shipping dated