1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 392 OF 2009 Mr. Allan S. F. Falerio Resident of House No.400 Toleband Loutolim, Salcete, Goa 403 718 ... Petitioner versus 1. State of Goa Through the Chief Secretary, Secretariat, Porvorim. 2. Mr. Augustine P. Mascarenhas Captain of Ports Captain of Ports Department, Panaji. ... Respondents Shri Rohit Bras De Sa, Advocate for the Petitioner. Shri S. S. Kantak, Advocate General with Ms. G. Bhonsule, Additional Government Advocate for Respondent No.1. Shri S. R. Rivonkar, Government Advocate for Respondent No.2. Coram : V.K.TAHILRAMANI & N.A.BRITTO, JJ. Date : 27th November, 2009. JUDGMENT(Per N. A. BRITTO, J.) This Writ Petition has been filed, seeking a writ of Quo Warranto against Respondent No.2, the Captain of Ports, who has been appointed by Respondent No.1, Government of Goa, upon the recommendations of the Goa 2 Public Commission w.e.f. 21-11-1991, and, with a prayer which reads as follows:- “It is, therefore, prayed that this Hon'ble Court may be pleased to issue a writ in the nature of Quo Warranto directing the Respondents to disclose the authorities and/or jurisdiction of Respondent No.2 to hold the office of Captain of Ports and/or enquire directing to vacate the office and remove him from the office and direct him not to usurp the office”. 2. Before we proceed to deal with the petition, it is necessary to deal with two preliminary objections taken on behalf of Respondent No.2. The first is regarding delay, the petition having been filed only on 21-6-2009 after a gap of almost 18 years, and, the second is that the petition has been filed with oblique motives. The first objection has not been supported by the learned Advocate General appearing on behalf of Respondent No.1, and we are not inclined to entertain the same. 3. Shri Rohit Bras De Sa, learned Counsel on behalf of the Petitioner has placed reliance on several decisions on this aspect. It has been stated by the High Court of Allahabad in Baj Nath Singh v. The State of U.P. through the Secretary and others(AIR 1965 Allahabad 151) that a petition for Quo Warranto cannot be dismissed for delay, for the cause of action arises, 'De die in diem' and this observation was made by that High Court based on a decision of this Court in the case of S. S. Shewale v. Jalgaon Borough Municipality(ILR(1958) Bom 113) 3 wherein it was observed that if the appointment of an officer is illegal, everyday that he acts in that office a fresh cause of action arises, and, therefore there can be no question of delay in presenting a petition for a writ of Quo Warranto in which his very right to act in such a responsible post has been questioned. The Apex Court too in the case of Dr. Kashinath G. Jhalmi and another v. The Speaker and others(1993) 2 SCC 703) has held that the exercise of discretion by the Court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and, on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of public office or perpetuation of an illegality. Shri Rivonkar, the learned Counsel on behalf of Respondent No.2 has placed reliance on Dr. M. S. Mudhol v. S. D. Halegar(1993(3) SCC 591) but in our view, that decision is no help to the case of Respondent No.2 as the said case stood on its own facts. There, the petition was filed after nine years, and if at all, the Hon'ble Supreme Court did not interfere, it was because the Supreme Court felt that a principal in a private school, though aided, was not of such importance, for the Court to be impelled to interfere with the appointment, assuming a writ of Quo Warranto was available. Shri Rivonkar, has also submitted that the Petitioner was working in the Department as marine engineer between 14-2-1996 and 11-1-1997, and therefore ought to have known whether Respondent No.2 was sufficiently qualified. We are not inclined to accept this submission either, because at that time the Petitioner had no interest in the matter of qualification of Respondent No.2, interest, which he acquired only after, permission sought by him could not get through. We are therefore not inclined to dismiss the petition on the ground of delay. 4 4. As regards the second preliminary objection, it may be stated that as per the Petitioner, only after the Petitioner sought information on 30-4-2007 under the Right of Information Act and followed it up by his appeals to Goa Information Commission, etc. that the Petitioner came to know that Respondent No.2 was not duly qualified. Respondent No.2 in his affidavit has stated that the Petitioner had applied for grant of N.O.C./permission under Section 30 of the Indian Port Act, 1908 for setting up a SSI Unit for steel fabrication/repair of vessels at the bank of river Zuari at Rassaim. Respondent No.2 has further stated that the said application was incomplete and is pending since 30-3-2004, as the Petitioner could not fulfill the necessary formalities as prescribed under the Indian Port Act, 1908, and other relevant documents as required by the Department, though informed on several occasions to comply with the formalities by letters dated 13-4-2004, 17-10-2005, 16-3-2007 and 29-9-2008, and that inspite of specific request to fulfill the formalities, the Petitioner has failed to comply with the same, and as such his application for N.O.C./permission is still pending. Respondent No.2 has also stated that the Petitioner issued notice under Section 80, C.P.C., which was replied to by his Department, and therefore, it is apparent that the Petitioner by the present petition, is trying to exert pressure over Respondent No.2 for the grant of permission for setting up a SSI Unit. Respondent No.2 contends that the conduct of the Petitioner is highly improper and tainted with malafides so as to harass and defame him. Respondent No.2 has stated that the aforesaid facts clearly establish that the petition is not filed with clear intention but with malafide intention to harass him and exert undue pressure over him in deciding his application for grant of N.O.C. Respondent No.2 has further stated that between 30-4-2007 to 10-7-2009 the Petitioner filed about 36 5 applications for seeking information and in most of the cases the information sought was provided. Respondent No.2 has further stated that the Petitioner then preferred 17 appeals before the first appellate authority, lists whereof has been given in annexures 5 and 6 of the reply. Respondent No.2 has submitted that the conduct of the Petitioner of filing different types of proceedings one after the other clearly indicates that the Petitioner is bent upon not only to harass him but to defame his career. 5. True, the Petitioner has filed an affidavit stating that he has no personal interest in the present Writ Petition, apart from promoting public interest and good administration, and to prevent continuance of usurpation of office or perpetuation of an illegality. At the same time, learned Counsel on behalf of the Petitioner, has submitted that the issue raised by the Petitioner could be independently examined by the Court by appointing the learned Counsel as Amicus Curiae. Learned Counsel has further submitted, again, relying on the case of Dr. Kashinath G. Jhalmi and another v. The Speaker and others(supra) that the motive or conduct in a case like this, could be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself. On the other hand, learned Counsel on behalf of the Respondents have placed reliance, on this aspect of the case, on the case of B. Srinivas Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association & others(AIR 2006 SC 3106) wherein the Apex Court has observed that a petition praying for a writ of Quo Warranto being 6 in the nature of public interest litigation, is not maintainable at the instance of a person who is not unbiased. The Apex Court referring to the facts of that case, observed that such proceedings were not meant to settle personal scores by an employee of the Department. That the issuance of a writ of Quo Warranto is a discretionary remedy is also a principle which is reiterated in N. Kannadasan v. Ajay Khose(2009(7) SCC 1). The fact that the Petitioner took a keen interest only after 30-4-2007 regarding the technical qualifications of Respondent No.2 and that too after the Petitioner was informed by three letters to comply with the formalities regarding the permission sought by the Petitioner, shows that the Petitioner has an axe to grind against the Respondent No.2, for not giving him the permission sought by him and the petition has been filed with that oblique motive. We are therefore not inclined to exercise our discretionary jurisdiction in favour of such a petitioner. Following the Judgment of the Apex Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association and others(supra) we are inclined to dismiss the writ petition on the second preliminary objection. We are also not inclined to accept the request of the learned Counsel that he be appointed as amicus curiae, for the end result is not going to be anything different, after the petition has been finally argued. 6. Nevertheless, we proceed to consider the case of the Petitioner on merits as well. The case of the Petitioner is that the Respondent No.2 holds a substantive office as Captain of Ports which is a public office. The case of the Petitioner is further that the Certificate of Competency(CoC, for short) of Master of Foreign Going Ship dated 27-5-1977 issued by the Director General of Shipping is 7 not valid as per the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978(STCW Convention, for short) which has been ratified by Indian Parliament on 28-4-1984 and which in terms of Article VI thereof requires that every person as on 28-4-1984 holding a CoC prior to the ratification of the STCW Convention is required to obtain an endorsement on the CoC by the issuing authorities, in the form as prescribed in the Regulation I-2 of the STCW Convention within two years after the said Convention has come into force and that the CoC was to be issued under the Convention for a period not exceeding five years and it had to be renewed upon discretion of the Director General of Shipping, and, in case Respondent No.2 who has been granted the said CoC dated 27-5-1977 by the Director General of Shipping has not renewed the same, as required by the said STCW Convention, the said certificate has become invalid, and therefore, Respondent No.2 is not entitled to hold the said post of Captain of Ports(Para 2.6 of the petition). 7. On the other hand, it is the case of the Respondents that the said STCW Convention does not apply to Respondent No.2. It is stated that to give effect to STCW Convention, the Central Government has framed the Merchant Shipping ( Standards of Training, Certification and Watchkeeping for Seafarers ) Rules, 1998 (Rules, for short ), and in terms of Rule 10 revalidation and upgrading of CoC is required only for seafarers during the transitional period from 1-2-1997 to 1-2-2002, and such revalidation would be necessary only if the person holding the appropriate certificate was serving at sea or intends to return to sea for service after a period ashore in order to continue to qualify for sea-going service. It is stated that 8 what is required for promotion to the post of Captain of Ports is a CoC as a Master of Foreign Going Ships and at the relevant time when Respondent No.2 was promoted to the post of Captain of Ports, the Respondent No.2 was having the said qualification as he had the said CoC dated 27-5-1977 as a Master of Foreign Going Ship issued by the Director General of Shipping and that this certificate is not required to be revalidated and the Petitioner's contention that Respondent No.2 is not eligible to hold the post of Captain of Ports is without substance. 8. Respondent No.2 has stated that the post of Captain of Ports fell vacant on 1-5-1989 after the resignation of Shri A. Rebello, and the post was to be filled by promotion/transfer on deputation, failing by direct recruitment, and at that time he was the seniormost person holding the post of Deputy Captain of Ports in the feeder category and was duly qualified for the promotion for the said post as per the Recruitment Rules, 1973, and that he was promoted by the Government of Goa on the recommendation of Goa Public Service Commission by Order dated 19-7-1991. Respondent No.2 stated that the Petitioner's grievance does not survive, particularly, because of authentication of his CoC by the Deputy Nautical Advisor to Government of India cum Senior Dy. Director General of Shipping, Ministry of Shipping, Government of India, certifying that the certificate of competency held by him is authentic. According to Respondent No.2, under Clause (1) of Article VII of the STCW Convention, a certificate of competency issued before coming into 9 force of the said Convention shall be recognized even after entering into force of the convention, and as Respondent No.2-Captain of Ports was issued certificate by Director General of Shipping before coming into force STCW Convention the same is valid even after coming into force of the said convention. Respondent No.2 has also stated that the Petitioner was appointed on 14-4-1996 as a Marine Engineer and Ship Surveyor in the Department of Captain of Ports by Order dated 13-2-1996, and worked as such from 14-2-1996 to 11-1-1997 but the Petitioner did not raise any objection against Respondent No.2's promotion. According to Respondent No.2 as well, under Articles VI and VII of the STCW Convention r/w Regulation I-2 the CoC needs renewal and endorsement in respect of those serving on board the ships on sea going ships, and in terms of the STCW Convention revalidation of CoC is not applicable to him as he is not working on board the ship but he is continuously working on shore in Government service first as Deputy Captain of Ports w.e.f. 18-1-1979 and as Captain of Ports w.e.f. 19-1-1979 till date. Respondent No.2 has reiterated that under Regulation I-2, the revalidation certificate is needed to those who are serving at sea or intend to return to sea to qualify for seagoing service, at intervals not exceeding five years in order to meet the standards of medical fitness prescribed by Regulation I-9 and established and continued professional competence. Respondent No.2 has again reiterated that he is not serving at sea or intend to return to sea, and has been working either as Deputy Captain of Ports or Captain of Ports for the last 10 30 years, and therefore requires no revalidation of certificate and that the Petitioner is either labouring under misconception or trying to mislead the Court. 9. At the hearing of the petition on merits, two submissions were made by Shri Rohit Bras De Sa, learned Counsel on behalf of the Petitioner. The Petitioner does not dispute that Respondent No.2 has a CoC granted to him by the Government of India dated 27-5-1977. In fact, it has been produced by the Petitioner himself and Respondent No.2 has also got it verified from the Government of India as can be seen from letter dated 8-1-2008(at page 111). However, the Petitioner's submission is that since the said CoC is not validated after coming into force of the STCW Convention, the same is invalid. Another submission made by Shri Rohit Bras De Sa, learned Counsel is that Respondent No.2 was also not qualified to be appointed as a Surveyor in terms of sub-section(4) of Section 20 of the Inland Vessels Act, 1917, as was done by Notification dated 14-6-1996(at page 59 of the paper book) but this submission was given up, on behalf of the Petitioner, after the learned Advocate General took an objection that the Petitioner has not raised any ground as regards the same nor any prayer was made in the petition in that regard nor a challenge thrown to the said Notification. The only question before the Court therefore is whether the Petitioner was required to revalidate the said CoC in terms of the said STCW Convention? 11 10. Shri Bras De Sa now refers to Article VII and submits that Article VII had to be mandatorily complied with and in terms thereof Respondent No.2 had to get the CoC validated within two years. Learned Counsel refers to the opinion given by the Under Secretary(Personnel I)(at page 42) to support his submission. The said noting, it appears was made whilst examining the complaint dated 14-2-2009 addressed by the Petitioner to the Chief Secretary. Learned Counsel also refers to letters dated 12-3-2009(wherein it is opined that the certificate is not valid) and 27-1-2009(where it is opined that the holder need to be trained) sent by P.I.O. of Merchantile Marine Department, Mumbai, and Principal Officer cum D.G. (Tech) to contend that revalidation of CoC was necessary. Learned Counsel submits that logic behind revalidation is that the Captain of Ports should be a person who is worthy of going to the sea. 11. On the other hand, Shri S. S. Kantak, learned Advocate General submits that the noting of the Under Secretary, was not examined further by the Government and the stand now taken by the Government, in the affidavit in reply, reflects the stand of the Government which means that the opinion of the Under Secretary has not been accepted by the Government. Learned Advocate General further points out that the Petitioner has not disclosed in whose or in what context, the information was sought, which has been replied to by letters dated 12-3-2009(at page 69) and 27-1-2009(at page 71). Learned 12 Advocate General further submits that revalidation of CoC will be required only in case Respondent No.2 desires to return to sea. He further submits that the CoC dated 7-5-1977 held by Respondent No.2 is valid in terms of Article VII, Clause (1) of the STCW Convention. 12. Articles VI and VII of the STCW Convention read as follows:- Article VI Certificates (1) Certificates for masters, officers or ratings shall be issued to those candidate who, to the satisfaction of the Administration, meet the requirements for service, age, medical fitness, training, qualification and examinations in accordance with the appropriate provisions of the annex to the Convention. (2) Certificates for masters and officers issued in compliance with this article shall be endorsed by the issuing Administration in the form as prescribed in regulation I-2 of the annex. If the language used is not English, the endorsement shall include a translation into that language. Regulation I-2 reads as follows:- Content of Certificates and form of endorsement. 1 - Certificates shall be in the official language or languages of the issuing country. If the language used is not English, the text shall include a translation into that language. 2- In respect of radio officers and radiotelephone operators, administrations may: a) Include the additional knowledge required by the relevant regulations of the annex to the Convention in the examination for the issue of a certificate complying with the radio regulations; or 13 b) Issue a separate certificate indicating that the holder has the additional knowledge required by the annex to the Convention. 3 - The form of certificate endorsement required by article VI of the Convention shall be as follows: Form of endorsement of certificates Endorsement of certificates (Official seal) (Country) Issued under the provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers,1978 { The Government of (name) certifies Either *{ I, the undersigned, certify that the present certificate/certificate no.... ** is issued to ... (full name of person), who has been found duly qualified in accordance with the provisions of regulation ... of the Inter- national Convention on Standards of Training. Certification and Watchkeeping for seafarers, 1978, as ... *** with the following limitations only: Insert here } ... limitations } ... or <none>, as } ... appropriate } ... Date of issue of this endorsement ... Signed ... (Name and signature of duly authorized official.) (Official seal.) Date of birth of the holder of the certificate ... Signature of the holder of the certificate ... * Use one line or the other. ** Delete as appropriate. 14 *** Insert Convention grade or class of certificate. Article VII Transitional provisions (1) A certificate of competency or of service in a capacity for which the Convention requires a certificate and which before entry into force of the Convention for a Party is issued in accordance with the laws of that Party or the Radio Regulations shall be recognized as valid for service after entry into force of the Convention for that Party. (2) After the entry into force of the Convention for a Party, its Administration may continue to issue certificates of competency in accordance with its previous practices for a period not exceeding five years. Such certificates shall be recognized as valid for the purpose of the Convention. During this transitional period such certificates shall be issued only to seafarers who had commenced their sea service before entry into force of the Convention for that Party within the specific ship department to which those certificates relate. The Administration shall ensure that all other candidates for certification shall be examined and certificated in accordance with the Convention. (3) A Party may, within two years after entry into force of the Convention for that Party, issue a certificate of service to seafarers who hold neither an appropriate certificate under the Convention nor a certificate of competency issued under its laws before entry into force of the Convention for that Party but who have: (a) served in the capacity for which they seek a certificate of service for not less than three years at sea within the last seven years preceding entry into force of the Convention for that Party. (b) produced evidence that they have performed that service satisfactorily. (c) satisfied the Administration as to medical fitness, including eyesight and hearing, taking into account their age at the time of application. 15 For the purpose of the Convention, a certificate of service issued under this paragraph shall be regarded as the equivalent of a certificate issued under the Convention. 13. We are unable to accept the submissions made on behalf of the Petitioner. The petition itself is misconceived. The grounds taken are vague. The petition is replete with history of efforts made by the Petitioner to get the required information and the duties which Respondent No.2 is required to perform and the salary drawn by the Respondent No.2 from 20-7-1991 to February, 2008. It is not the case of the Petitioner that the Petitioner had disclosed that the holder of the CoC was the Captain of Ports, whilst seeking information, which was given to the Petitioner by the said two letters, dated 12-3-2009 and 27-1-2009 and that would have made miles of difference. The stand of Government is now contained in the reply filed. Therefore, the said three opinions earlier given are not of any assistance to the case of the Petitioner. 14. Admittedly, a CoC is granted in terms of Part VI of the Merchant Shipping Act, 1958 which part in terms of Section 75 thereof applies to:- (a) every sea going Indian Ship fitted with mechanical means of propulsion wherever it is; and (b) every foreign ship while it is at port or place in India. 16 Section 75-A(b) of the said Act also