IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition Nos.10912, 10913, 13687 and 13688 of 2009 M.P.Nos.2,3,2,3,4,2, and 3 of 2009 1.Maritime Institutes Association, rep. by its Secretary, C.V.Jothikumar ... Petitioner in W.P.Nos.10912 and 10913 of 2009 2.International Maritime Academy, rep. by its Managing Director ... Petitioner in W.P.No.13687 and 13688 of 2009 v. 1. The Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, No.1, Parliament Street, New Delhi 110 001. 2. The Vice Chancellor, Indian Maritime University, East Coast Road, Uthandi, Chennai 600 119. 3. The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai 400 001. ... Respondents in all W.Ps. Writ Petitions filed under Article 226 of the Constitution of India praying to issue Writs of Certiorarified Mandamus, to call for the records pertaining to the impugned notices No.11-TR(18) 2004-II, dated 29.05.2009 and 27.04.2009 on the file of the third respondent, quash the same and consequently, forbear the first and third respondents herein from in any manner interfering with the second respondent's power of affiliation, approval of courses, regulation, supervision of the member- Institutes of the petitioners-association. For petitioners in W.P.Nos.10912 & 10913/2009 : Mr.R.Krishnamoorthy,SC for Mr.M.S.Ramesh For Petitioners in W.P.Nos.13687 & 13688/2009 : Mr.R.Thyagarajan, SC for Mr.M.S.Ramesh For Respondents 1 and 3 : Mr.S.Venkateswaran, SC assisted by Mr.Haja Mohideen Gisthi For 2nd Respondent : Mr.A.Muralidharan O R D E R All the Writ Petitions relate to the power of the Director General of Shipping, Mumbai, in granting approval of courses, recognition and affiliation of the institutes offering maritime studies, regulating the intake capacity of students to Maritime Institutions, pre-sea and post-sea training, determination of the eligibility criteria, etc., vis-a-vis the power of the Indian Maritime University, Chennai. As pleadings and submissions are common, they are being disposed of by a common order. 2. According to the petitioner in W.P.Nos.10912 and 10913 of 2009, it is an Association of Maritime Training Institutes registered under Tamil Nadu Act 27 of 1975 and has about 16 members, who are all Educational Institutions conducting approved courses pertaining to Pre-Sea Training. The petitioner in W.P.Nos.13687 and 13688 of 2009 is an Academy. According to the petitioners, Prior to 2008, there was no Act or rules to facilitate, regulate or promote Maritime studies in the Country. However, courses such as, B.E. Marine Engineering, B.Sc. (Nautical Science) and Diploma in Nautical Science, leading to B.Sc., Degree in Nautical Science, were offered by the institutions affiliated to the respective Universities. After the enactment of the Indian Maritime Universities Act, 2008 (in short "the IMU Act"), the powers of approval, affiliation, etc., which were hitherto exercised by the Director General of Shipping, Mumbai (in short 'DGS') in association with the approved Universities, have been transferred to Indian Maritime University (in short "IMU"), established through an Act of Parliament on 11.11.2008, with an object to establish and incorporate a teaching and affiliating University at the National Level, to facilitate and promote maritime studies and research. According to the petitioners, Section 5 of the IMU Act, authorises the University with various powers including the following: a) to provide for instruction; b) to establish and maintain campuses, colleges and institutions; c) to grant honorary degrees and grant diplomas for Certificates (other than Certificate of Competency of Sea-farers, which shall be continue to be issued by the Director General of Shipping); d) to inspect recognised maritime Institutions through suitable machinery established for the purpose and to take measures to ensure that proper standards of instructions, teaching and training are maintained by them; e) to control and regulate admission of students for various courses of study in Departments, recognized institutions, schools and centers of studies; f) to assess needs of the students in terms of subjects, fields of specialization and levels of education; 3. The petitioners have further contended that Section 19(4) and 19(5) of the IMU Act provides for formation of "the Academic Council" and "the Board of Affiliation and Recognition". While the "Academic Council" under Section 22 of the Act, has the powers of control and supervision and be responsible for the maintenance of standards of instruction, education and examination within the University and shall exercise and perform such other powers and duties as may be conferred or imposed upon it, under Section 22, the "Board of Affiliation and Recognition" shall be responsible for admitting colleges and Institutions to the privileges of the Indian Maritime University under Section 23. 4. The petitioners have further submitted that since the IMU Act, 2008 is a self contained Act with powers to regulate, supervise and approve Maritime Educational Institutions and its various pre-sea courses, for which, the members of the Petitioners-Association/Institutions had applied for Affiliation and approval of various pre-sea courses as well as for additional intake capacity of students. According to the petitioners, pursuant to the applications submitted by various institutions, the Academic Council/Inspection Committee of the University has conducted inspections of these Institutes and submitted their recommendations and observations. At that stage, the Director General of Shipping, Mumbai, has issued the impugned notices, dated 27.04.2009 and 29.05.2009, restricting the powers of the IMU and observed that there will be a Monitoring and Implementation Committee (in short "MIC"), constituting representatives from DGS and IMU and that this MIC will have equal representation from both the organisations. It is further stated that the new approvals and additional capacities for Diploma in Nautical Science leading to B.Sc. Degree in Nautical Science course will be considered only after joint inspection by the 2nd and 3rd respondents. 5. It is the contention of the petitioners that the Director General of Shipping is a subordinate officer under the Secretary to Government, Ministry of Shipping, Road Transport and Highways Department, New Delhi, first respondent, whereas, the Vice Chancellor, IMU, is an independent statutory authority and therefore, the DGS cannot usurp the powers of the University. It is the further contention of the petitioners that the DGS does not have any independent powers to inspect or monitor Maritime Institutions, approve the courses, regulate admission, prescribe the eligibility criteria, etc., under any statute in general or under the Merchant Shipping Act, 1958 and the Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1998. The petitioners have further contended that prior to the enactment of IMU Act, 2008, the third respondent, DGS, had been granting recognition to the Maritime institutions and approval of various courses. 6. According to the Writ Petitioners, the object of Merchant Shipping Act, 1958 is to 'foster the development and ensure the efficient maintenance of an Indian Mercantile Marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping. There is no provision of law under the Merchant Shipping Act, 1958, which empowers the respondents 1 and 3 with responsibilities of regulation, supervision or approval of maritime educational institutions. Even assuming that there are powers vested with DGS, under the Merchant Shipping Act, the same are deemed to have been repealed in view of the latter enactment of Indian Maritime University Act, 2008. Affidavits and counter affidavits have been filed. The pleadings and submissions are as follows: 7. Mr. R. Krishnamoorthv, learned Senior Counsel appearing for the Writ Petitioners in W.P.No.10912 and 10913 of 2009, submitted that under the preamble of the IMU Act, Indian Maritime University Act, 2008 is a self contained Central Act, with an object to establish and incorporate a teaching and affiliating University at the National Level to facilitate and promote maritime studies and research. Referring to various definitions, under Section 2 of the IMU Act, which includes (c)Board of Affiliation, (f) Certification of Competency, (h) College, (k) Director General of Shipping, (r) Institution and (w) recognized Institution and the powers of the University, he submitted that under Section 5 of the IMU Act, the University has got exclusive power to provide for instruction in branches of learning and research, to make provision for recognised institutions, grant diplomas for certificates (other than COC of Sea-farers) and confer degrees, recognise Institutions, inspect an recognised Institution through suitable machinery established for the purpose, prescribe fees for recognition, control and regulate admission of students for various study in departments, recognised institutions, confer autonomous status, etc. He also submitted that since IMU is vested with all the powers of granting/conferring diplomas, certificates and degrees, including the power to cause inspection of an Institution, the claim of the DGS to have an exclusive Monitoring/Inspecting Committee for framing guidelines for regulating the Institutes recognised by the IMU cannot be sustained. In this context, learned Senior Counsel invited the attention of this Court to the powers of the IMU, in particular, to that of the Vice Chancellor, who is vested with the powers to cause an inspection under Section 12(5) of the IMU Act. He therefore, submitted that the impugned orders, providing for joint inspection with equal representation of the Director General of Shipping and IMU is nothing but usurping the powers of the University. 8. Referring to Section 19 of the IMU Act, learned Senior Counsel submitted that the statutes provide for various Authorities including the Executive Council, Academic Council and the Board of Affiliation and Recognition and under Section 22 (1) of the IMU Act, the Academic Council is empowered to control and supervise the standards of instruction, education and examination in which, the DGS as well as the Secretary to Government, Ministry of Shipping and Road Transport and Highways, (Department of Shipping), Government of India, New Delhi, 1st respondent are members, as per Statute No.14 of the IMU Act. Likewise, the DGS and the 1st respondent are members in the Executive Council, responsible for the conduct of all Administrative affairs of the University and that the Planning Board is responsible for reviewing the educational programmes and organizing the structure of education of the University. In these statutory background, he submitted that if at all the DGS or the 1st respondent has any say with regard to regulation, monitoring or inspecting the Maritime Institutes, it can only be through the aforesaid Committees in which they are members and cannot unilaterally issue the impugned notices. According to him, the only power that the DGS is vested under the IMU Act is to issue Certificate of Competency to Sea-farers under Section 5 (vi) of the IMU Act read with Section 79(2) of the Merchant Shipping Act, 1958. 9. Mr.R.Thyagarajan, Learned Senior Counsel for the petitioners in W.P.Nos.13687 and 13688 of 2009, submitted that prior to 2008, there was no statute or rules to facilitate, regulate and promote maritime studies in India. The Petitioner Institute was already conducting pre-sea courses and that they are deemed to have been approved by IMU as per Clause 1.4.1 of the IMU Guidelines and since the impugned orders issued by the DGS encroaches upon the rights of the IMU, under which, the Institutes are affiliated, consequentially they affect the rights of the maritime institutes to get approval and recognition of the institutions, approval of the courses, additional intake, affiliation for the institutes, aggrieved by the inspection to be done by MIC, etc., and therefore, submitted that the petitioners have locus standi to file the present Writ Petitions. He also pointed out that one of the members of the Association find place in the DGS M.S.Notice No.21/2009 and therefore the Writ Petitions are maintainable. 10. Taking this Court through the various statutory provisions dealing with the powers of the University, particularly, Section 5 of IMU Act, the role of the Academic Council, Board of Affiliation and Recognition, as per Sections 19(4), 19(5) and 33 of the IMU Act, learned Senior Counsel submitted that IMU Act, 2008 is a complete code by itself comprising with it the powers to make provision for instruction, recognise maritime institutions, regulate, supervise and approve maritime educational institutions and its various Pre-sea courses. 11. Learned Senior Counsel further submitted that the University has been vested with the Power to recognise an institution of higher learning, to inspect recognised institutions to control and regulate admission of students for various courses of study in the recognised institutions, to co- operate or collaborate or associate, with any other University or authority or institution of higher learning, within India or abroad in such manner and for such purposes, as the university may determine apart from the other powers enumerated in the Act. 12. Learned Senior Counsel further submitted that Section 5 (vi) of the IMU Act carves out the power to issue the Certificate of Competency to Seafarers, to be issued by the Director General of Shipping, Government of India, till the Central Government otherwise decides. The IMU Act, 2008 has conferred only this specified power on the Director General of Shipping viz., to issue the Certificate of Competency. He therefore, submitted that the scope and the authority of the Director General of Shipping, is thus circumscribed by sub-clause (vi) of Section 5 of the IMU Act and whatever might have been the position prior to the introduction of IMU Act, 2008, the powers of the Director General of Shipping having regard to the object of IMU Act and the powers of the University as provided in Section 5 of IMU Act, has been cribbed, cabined and confined only to what is specified in the said Section. He further submitted that the language in Section 5 (vi) of the IMU Act is very clear, empowering the DGS to continue to issue the Certificate of competency and does not empower him to do other acts of regulating or monitoring the pre-sea courses or the basic education enabling he candidate to apply for CoC. In this context, he relied on a decision of the Apex court in J.P.Bansal v. State of Raiasthan reported in 2003 (5) SCC 134, wherein, it has been held that where the language is clear and when there is no obscurity, the intention of the legislature is to be gathered from the language used. For the same proposition, he also placed reliance on Commissioner of Income Tax Kerala v. Tara Agencies reported in (2007) 6 SCC 429. 13. On the powers of the Vice-Chancellor to cause inspection, maintenance of standards of education, control and supervision of maritime institutions, Board of affiliation and recognition, etc., learned Senior Counsel referred to Sections 12(5), 22 and 23 of IMU Act. He further submitted that Section 79 (2) of the Merchant Shipping Act, 1958 empowers the DGS only to issue a Certificate of Competency and his power has been carved out of Section 5 (vi) of the IMU Act and not more than that. Though DGS is a statutory authority appointed under Section 7 of the Merchant Shipping Act, learned Senior Counsel submitted that the powers of the DGS to issue the impugned notices are conspicuously absent in IMU Act or Merchant Shipping Act or in any of the Rules framed thereunder. The Monitoring and Implementation Committee is not provided either in Merchant Shipping Act or in IMU Act of 2008. There is also no provision for joint inspection or any equal participation from both DGS and IMU. He further submitted that approval of an institution and additional intake are matters within the powers of the University and not under the control of DGS, as per IMU Act. 14. Relying on a judgment of the Apex Court in Shrimati Hira Devi & others Vs District Board, Shahiahanpur reported in AIR 1952 SC 362, learned Senior Counsel submitted that the powers of the statutory authority has to be found within the four corners of the Statute itself and that it is not the duty of the Court to stretch the words used by the Legislature to fill in the gaps or omissions in the provisions of the Act. The judgment in State of Uttar Pradesh Vs Sinahara Sirrah & others reported in AIR 1964 SC 358 was also relied upon, wherein the Apex court held that if a statute has conferred a power to do an act and has laid down the method in which power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. 15. Placing reliance on a decision of the Supreme Court in A.R.Antulay Vs Ramdas Sriniwas Navak & another reported in (1984) 2 SCC 500 and State of Kerala Vs Mathai Verghese & others reported in (1986) 4 SCC 746, learned Senior Counsel submitted that the Court should confine only to the meaning intended in the provisions of Sections 79, 81 and 85 of the Merchant Shipping Act and cannot rewrite, recast or redesign the provisions to suit the convenience of the respondents 1 and 3 and by issuing the impugned notices, there is an attempt to usurp the powers of the University, in the matter of regulating maritime education. 16. Placing reliance on a decision in Byram Pestonji Gariwala Vs Union Bank of India & others reported in (1992) 1 SCC 31, learned Senior Counsel further submitted that legislature does not effect any fundamental change in long accepted system of law and practice without using express language to that effect in the statute. He further submitted that the impugned notices are nothing but executive instructions and clarifications and that these instructions cannot go against the statutory provisions, so as to whittle down the effect of Section 5 of the IMU Act, as per the principles laid down in the case of State of M.P. Vs G.S.Dall and flour Mills reported in 1992 Supp (1) SCC 150 and he also submitted that the Statutory functionary must act in a manner, as laid down under the Act, as held in State Inspector of Police Vs Surva Sankaram Karri reported in (2006) 7 SCC 172. 17. Learned Senior Counsel further submitted that though DGS was granting approvals of pre-sea courses, after the enactment of IMU Act, DGS cannot claim any independent right or exercise power, in view of the powers exercised by him earlier, as held in Harbhaian Singh Vs Press Council of India & others reported in (2002) 3 SCC 722, wherein, the Apex Court observed that in the absence of any material, a different meaning cannot be ascribed by tracing the history of the legislation and attributing object and legislative intendment, which suits the court's own view. He further submitted that whatever be the position prior to November, 2008, after coming into force of the IMU Act, the power of the DGS is narrowed down only to the issue of Certificate of Competency under Section 5(vi) of the IMU Act and it cannot be beyond that. 18. Learned Senior Counsel further submitted that a reading of the notice, dated 29.05.2009, in the light of the provisions of IMU Act, 2008 would clearly indicate that the DGS has acted beyond his jurisdiction and power exercisable by him in terms of Section 5 (vi) of the IMU Act. According to the counsel, the brief outline given in para 2 of the notice dated 29.05.2009 does not reflect the true and correct position. He submitted that the candidates for Phase I are trained for one year course (18 subjects in syllabus) conducted as class room training in the affiliated institutes. According to the learned Senior Counsel, at this stage, the candidate is not a Seafarer. He is only a student. If he fails in all his subjects, he can still approach a shipping company for a job or training and will also get his stipend. If the candidate undergoes training for 18 months and after passing of Discharge learning programme (DLP) (3, 4 and 5th semesters) he can join the preparatory/competency course of 4 months. If he does not pass the DLP, he can still join the preparatory course with 30 months training. This preparatory course is for the Certificate of Competency called second mate function. According to learned counsel, the role of DGS, starts only when the candidate appears for COC examination and not even in the preparatory course stage conducted by the DGS approved course. In other words, he submitted that with the required number of months of sea experience, a candidate can join the preparatory course for COC examination, irrespective of pass or fail in Xth, Xllth or Degree/Diploma and the DGS has no control over the candidate during pre-sea course, which he undertakes in any maritime institution. The assessment by the DGS is only regarding the experience and preparatory course examination and it can be made only when the candidate intends to become a Seafarer. 19. Taking this Court through the definition, "Seafarer", means, "a sailor or mariner who travels in the ship or other sea going vessel", and placing reliance on a decision in Nelson Motis v. Union of India reported in 1992 (4) SCC 711, learned Senior Counsel submitted that the language used in Rule 47 of the STCW Rules can be applied only to mean only "Seafarers" and not students. He further submitted Rule 47 of the STCW Rules pertains only to training and assessment of "Seafarers" and students pursuing diploma and degree courses, which end up with a Diploma Certificate or Degree-certificate cannot be referred to as a "Seafarer". 20. Learned Senior Counsel for the petitioners further submitted Chapters II to VIII and paragraphs 4 to 6 of Section A-1/6 of the STCW Code pertains only to Seafarers and "in-service training" of a "Seafarer" and the incorporation of these provisions of STCW Code in Rule 47 of the STCW Rules, is only to train and assess these Seafarers for certification of competency. The impugned orders are in the form of executive instructions and they cannot override the statutory provisions. In support of the contention, the judgment in State of Maharashtra Vs Jaaannath Achvut Karandikar reported in 1989 Supp (1) SCC 393 was relied on, wherein it is held that Executive instructions may supplement, but cannot supplant the statutory rules. He therefore submitted that even under Rule 47, the role of DGS would be restricted only to ascertain at the time of issuance of CoC, as to whether the training and assessment of Seafarers for Certification is in accordance with Chapters II to VIII and paragraphs 4 to 6 of Section A-1/6 of the STCW Code. According to him, Rule 47 is restricted only to "Seafarers" and not to students pursuing the pre-sea courses under IMU affiliated training Institutes. 21. Learned Senior Counsel further submitted that under Section 1(f) of the Merchant Shipping Act, 1958, Certificate of competency is defined as an appropriate certificate issued by the Government of India for the purpose of Rule 5, which deals with the issuance of Certificate of Competency. Rule 47 of the Merchant Shipping (Standards of Training, Certification of Watch keeping for Seafarers) Rules, 1998 empowers the DGS to supervise, all training and assessment of Seafarers for the purpose of certification, in accordance with the programmes that are necessary to achieve the standards of competency, as specified in Chapter II to VIII of the STCW Code and that the training and assessment of Seafarers is conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A 1/6 of STCW Code. According to the learned Senior Counsel, a reading of this rule makes it clear that the Power of supervision conferred on the Director General of Shipping is confined only to supervise that the training and assessment of Seafarers for the purpose of certification is provided under the Rule. In other words, the power of supervision itself is confined only for the purpose of issuance of Certificate of Competency. 22. Learned Senior Counsel further submitted that the DGS has usurped the powers of the IMU by issuing the impugned orders, particularly when the IMU is vested with the powers of regulating, monitoring and inspecting training Institutes, under Section 5 of the IMU Act, as per