IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 5828 of 2008(R) ------------------------------------- PETITIONERS: --------------------- 1. ALL INDIA MASTER FOREIGN GOING SHIP (RESTRICTED), CERTIFICATE HOLDERS ASSOCIATION, REPRESENTED BY ITS PRESIDENT, CAPT.SHERRY KUNJU, K.K.ROAD, PALLURUTHY, COCHIN -682 006. 2. CHARAGHAT MAMMEN SHERRY KUNJU, CHARAGHAT HOUSE, K.K.ROAD, PALLURUTHY, COCHIN -682 006. 3. ARAKKAL XAVIER CYRIL, ARAKKAL HOUSE, ARTHINKAL, CHERTHALA. 4. P.S.UNNIKRISHNAN, HOUSE NO. 18/2145-A, VALUMMEL ROAD, THOPPUMPADY, ERNAKULAM. 5. K.A.RENJAN, HOUSE NO.26/1632-A, KATTUMPURATH, 'AMRUTHAM', MALIYAKAL LANE, THEVARA, ERNAKULAM -682 013. 6. SRI.GEORGE JOSEPH, VATHAPPALLIL HOUSE, KONGANDOOR P.O., AYARKUNNAM VIA., KOTTAYAM DIST. PIN 686 564. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, NO.1, PARLIAMENTARY STREET, NEW DELHI. W.P.(C). NO.5828/2008-R: 2. THE DIRECTOR GENERAL OF SHIPPING, JAHAZ BHAVAN, W.H.MARG, MUMBAI-400 001. R1 & R2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON 01/11/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.5828/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SKIPPERS CERTIFICATE ISSUED TO P.2. EXT.P.2: COPY OF THE SKIPPERS CERTIFICATE ISSUED TO P.4. EXT.P.3: COPY OF THE SKIPPERS CERTIFICATE ISSUED TO THE P.5. EXT.P.4: COPY OF THE SKIPPERS CERTIFICATE ISSUED TO THE P.6. EXT.P.5: COPY OF THE CERTIFICATE OF COMPETENCY ISSUED TO THE P.2. EXT.P.6: COPY OF THE CERTIFICATE OF COMPETENCY ISSUED TO THE P.3. EXT.P.7: COPY OF THE CERTIFICATE OF COMPETENCY ISSUED TO THE P.4. EXT.P.8: COPY OF THE CERTIFICATE OF COMPETENCY ISSUED TO THE P.5. EXT.P.9: COPY OF THE CERTIFICATE OF COMPETENCY ISSUED TO THE P.6. EXT.P.10: COPY OF THE NOTICE DTD. 01/10/2003M ISSUED BY THE R.2. EXT.P.11: COPY OF THE LETTER DT. 16/07/2007 SENT BY THE TRADEX INDIA. EXT.P.12: COPY OF THE LETTER DT. 24/02/2005 ISSUED BY THE M/S. GULF AGENCY PVT. LTD. EXT.P.13: COPY OF THE LETTER DT. 05/12/2004 ISSUED BY M/S. TEAM SHIPPING. EXT.P.14: COPY OF THE COMMUNICATION DT. 09/10/1997 ISSUED BY THE R.2. EXT.P.15: COPY OF THE COMMUNICATION DT. 13/04/1998 ISSUED BY THE R.2. EXT.P.16: COPY OF THE COMMUNICATION DT. 01/01/1999 ISSUED BY THE R.1. EXT.P.17: COPY OF THE CHECKLIST FOR MASTER'S REVALIDATION OF COC. EXT.P.18: COPY OF THE COMMUNICATION DTD. 11/03/2010 ISSUED BY THE INFORMATION OFFICER. EXT.P.19: COPY OF THE CERTIFICATE DTD. 14/07/2007 ISSUED BY THE MID GULF OFFSHORE SHIPPING COMPANY. EXT.P.20: COPY OF THE CERTIFICATE DTD. 20/12/2002 ISSUED BY THE MATER MARINE SERVICE LTD. W.P.(C). NO.5828/2008-R: RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE RELEVANT PORTION OF THE CONVERSION OF FISHING VESSEL CERTIFICATE OF COMPETENCY TO MERCHANT NAVY CERTIFICATE OF COMPETENCY UNDER MS (STCW) RULES 1998. EXT.R2.B: COPY OF THE RELEVANT PORTION OF THE M.S.(STCW RULES), 1998 AND META MANUAL. EXT.R2.C: COPY OF THE RELEVANT PORTION OF SECTION 456 OF THE M.S. ACT. EXT.R2.D: COPY OF THE REGULATION 46 OF M.S. (STCW) RULES 1998. EXT.R2.E: COPY OF THE ARTICLE IX OF STCW 78/95 CONVENTION. EXT.R2.F: COPY OF THE REGULATION -II/3.7 (EXEMPTIONS) OF STCW 78/95 CONVENTION UNDER GENERAL PROVISIONS. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.5828 OF 2008(P) -------------------------------------------------- Dated this the Ist day of November, 2010 J U D G M E N T Prayers in the writ petition are to quash Exts.P5 to P9 Certificates of Competency, to the extent restrictions with regard to the type of vessel and area of operation have been imposed by the 2nd respondent. Petitioners also seek a direction to the respondents to issue them Certificates of Competency(COC) as Master of Foreign Going Ship without any restriction with regard to the type of vessel and area of operation. Consequential reliefs are also sought for. 2. First petitioner is an association representing the Masters of Foreign Going Ship(restricted) Certificate Holders, registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and petitioners 2 to 6 are its members. According to the petitioners, Merchant Shipping Act, 1958 as amended in 2000 regulates the issuance of Certificates of Competency to Masters, Mates, Engineers, Skippers etc. which enables the certificate holders to secure employment in Merchant Ships, Supply Vessels, Research Vessels, WPC.No.5828 /2008 :2 : Oceanographic Vessels, Fishing Vessels etc. Section 78 of the Act provides for the different grades of Certificates of Competency. It is stated that invoking the powers under the Merchant Shipping Act, the first respondent appointed the 2nd respondent as the Authorized Officer to conduct examinations for the purpose of awarding the certificates. Petitioners submitted that in terms of the provisions contained in the Merchant Shipping Act and the Merchant Shipping (Examination of Skippers and Mates of Fishing Vessels)Rules 1967, which was superseded by the 1987 Rules, examinations were held and the petitioners 2 to 6 were issued Certificate of Competency as Skipper (Fishing) and that these certificates did not contain any restriction regarding the type of vessel or the area of operation of the certificate holders. Exts.P1 to P4 are the certificates issued to petitioners 2,4,5 and 6 and similar certificate has been issued to petitioner No.3 also. 3. It is stated that subsequently the International Convention of Standards of Training, Certification and Watchkeeping for Seafarers 1978 (here-in-after referred to as STCW), which was later amended in the year 1995, was implemented. In terms of the said Convention, the petitioners who were already issued the Certificates of Competency of WPC.No.5828 /2008 :3 : Skipper were entitled to get the certificates converted by upgrading it to the grade of Masters of Foreign Going Ships. It is stated that accordingly, the 2nd respondent issued Ext.P10 notice for conducting the examination. In response to the said notice, petitioners submitted their applications, and appeared for the examinations. Thereafter, they were issued Exts.P5 to P9, Certificates of Competency as Master of Foreign Going Ship. However, in the certificates issued, the 2nd respondent imposed conditions restricting the area of operation of the petitioners to 20 Nautical Miles from the Base Port. According to the petitioners, the 2nd respondent also incorporated a condition that the petitioners can work only in stand by vessels of less than 500 GT. 4. Contention of the petitioners is that neither in the Merchant Shipping Act nor in the STCW Convention nor in any of the Rules, is there any provision entitling the 2nd respondent to issue certificates with such restrictions. Petitioners submit that, in terms of the STCW Convention they are entitled to have their certificates upgraded and therefore when examination is held and the conditions for the issuance of the upgraded certificates are satisfied, they are entitled to be issued Certificates of WPC.No.5828 /2008 :4 : Competency to be Masters of Ocean Going Vessels without any restriction regarding the type of Vessel or with respect of the area of their operation. It is on this premise the writ petition has been filed seeking to quash the aforesaid conditions incorporated in Exts.P5 to P9 certificates and praying for a direction to issue them certificates without those restrictions. 5. Second respondent has filed statements, counter affidavit and additional counter affidavits justifying the restricted certificates issued to the petitioners. According to the 2nd respondent, Exts.P1 to P4 Skipper certificates were issued to the petitioners in accordance with the provisions contained in Section 78 of the Merchant Shipping Act,1958 and the Rules framed thereunder. It is stated that such certificates only enabled the certificate holders to work as Skipper Grd.II on Indian Fishing Vessels. It is their case that the expected fishing trips on the fishing vessels were from one Fishing Harbour to return to the same fishing Harbour, normally controlled by the Customs `creek pass' and for short fishing trips to return to safe haven in case the weather turned inclement. 6. It is stated that however, some of such officers who were issued Skipper Certificates, had managed to secure employment WPC.No.5828 /2008 :5 : in various kinds of Crafts operating mainly in Persian/ Arabian Gulf, West African Waters, Offshore Fields etc. unlawfully. When the STCW Convention 78/95 came into full effect on 1.2.2002, Skipper Certificate holders like the petitioners would have been rendered unemployed. Therefore, when representations were made, Government of India took a compassionate view and in order to save persons like the petitioners from loosing their employment, taking advantage of the exemption clauses available in the Merchant Shipping Act, and STCW Convention and the Rules 1998, Ext.P10 notice was issued enabling such persons to convert their Fishing Vessel Certificate of Competency to Merchant Navy Certificate of Competency. It is also the case of the respondents that the petitioners had passed examination for Skipper of a Fishing Vessel and that the syllabi and curricula for the said examination did not fully cover the competency tables prescribed in the STCW 78/95. Therefore, according to the respondents, petitioners did not have competency to be Masters of Vessels with unlimited area of operation. It is stated that Ext.P10 notice was issued in the aforesaid circumstances as a one time relaxation only to enable the existing fishery grade COC holders to continue with their WPC.No.5828 /2008 :6 : employment and that too on compassionate grounds, as otherwise they would have been deprived of their livelihood. 7. To the counter affidavits filed, the petitioners have also filed their reply affidavit reiterating their contentions. 8. I have heard the counsel for the petitioners and the Assistant Solicitor General of India for the respondents. The only controversy that arises for consideration is whether the respondents had the power to incorporate conditions in Exts.P5 to P9 Certificates of Competency restricting the type of Vessel and the area of operation of the certificate holders. 9. Part VI of the Merchant Shipping Act, 1958 provides for the Certificates of Officers. Section 75 provides that Part VI of the Act applies to every Sea-going Indian Ship fitted with mechanical means of propulsion wherever it is and to every foreign ship while it is at a port or place in India. Section 78 provides for the Grade of Certificates of Competency. As per this section, Certificate of Competency shall be granted in accordance with the provisions of the Act for each of the grades mentioned therein and it includes Skipper Grd.I and Skipper Grd.II of Fishing Vessel as well. Section 79 provides that Central Government or a person duly authorized by it in this behalf, shall appoint persons WPC.No.5828 /2008 :7 : for the purpose of examining the qualifications of persons desirous of obtaining Certificates of Competency under Section 78. Section 81 provides the form of the certificates and Section 87 enables the Central Government to make rules to carry out the provisions of Part VI, Section 87(2)(d) authorises the Central Government to prescribe the qualifications required of persons desirous of obtaining Certificates of Competency for the grades specified under Section 78. 10. In exercise of its powers under Section 87(2),(b),(c) and (d) read with Section 83 of the Merchant Shipping Act, the Central Government framed Merchant Shipping(Examination of Skippers and Second Hand of a Fishing Vessel) Rules, 1964. Chapter II of the Rules laid down the qualifications, Syllabus and fee for examinations and issue of certificates and Chapter III provided for the conduct of examinations. In supercession of these Rules the Central Government issued the Merchant Shipping (Examination of Skippers and Mate of Fishing Vessels) Rules 1987. This Rule also laid down the qualifications, method of examination etc. for the grant of skipper certificates. 11. In compliance with the provisions of the aforesaid Rules, the 2nd respondent, who has been delegated the powers of the WPC.No.5828 /2008 :8 : Central Government by virtue of notification dated 17th December, 1960, a copy of which was made available by the learned Asst. Solicitor General of India, conducted the examinations and issued Exts.P1 to P4 and similar certificates to the petitioners. Admittedly these certificates only certified the competence of the petitioners to work as Skipper Grd.II in Indian Fishing Vessels. It is also an admitted fact that on the strength of such certificates petitioners secured employment, in ocean going vessels, other than fishing vessels. 12. It was while so that the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 was adopted by the International Conference of Training and Certification of Seafarers on 7th July, 1978 to which India is also a party. The STCW convention 1978 was thereafter amended in 1991, 1994 and 1995. The STCW 1978/95 defines `seagoing Ships' in Article II as ships other than those which navigate exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply. `Fishing vessel' is defined as a vessel used for catching fish, whales, seals, walrus or other living resources of the sea. Article VI of the Convention provides that certificates for WPC.No.5828 /2008 :9 : masters, officers, or ratings shall be issued to those candidates who, to the satisfaction of the Administration, meet the requirements of service, age, medical fitness, training, qualification and examination in accordance with the appropriate provision of the annex to the Convention. It is further provided that certificates for Masters and Officers issued in compliance with this article shall be endorsed by the issuing Administration in the form prescribed in regulation I of the annex. Article VII provided that 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, shall be recognized as valid for service after entry into force of the Convention for that Party. Article VII/2 also provided that after entry into force of the Convention, a party may continue to issue Certificates of Competency in accordance with its previous practices for a period not exceeding 5 years and that during this transitional period the said certificate 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. It is further WPC.No.5828 /2008 :10 : provided that Administration shall ensure that all other candidates for certification shall be examined and certified in accordance with the Convention. Article VIII enable the Administration to dispense with the requirements of Convention, in cases of exceptional necessity. Regulation II/3 provides the mandatory minimum requirements for certification of officers in charge of a navigational watch and of Masters on ships of less than 500 gross tonnage. Section A-II/2 lays down the mandatory minimum requirements for certification of masters and Chief Mates on Ships of 500 gross tonnage or more. Section A-II/3 lays down the mandatory minimum requirements for certification of officers in charge of a navigational watch and of masters of ships of less than 500 gross tonnage, engaged on near-coastal voyages. Since it is unnecessary for the disposal of this case, I am not referring to the other provisions of the regulations. 13. In order to give full effect to the provisions of STCW Convention 1978/1995, the Government of India, at its Ministry of Surface Transport, framed Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1998 which came into force with effect from Ist August, 1998. Rule 5 provides for the issuance of a certificate of competency WPC.No.5828 /2008 :11 : and in so far as it is relevant, it only needs to be mentioned that, although 12 different grades of Certificates are included in this Rule, Skippers Grd.II and Grd.I mentioned in Section 78 of the Merchant Shipping Act, are not mentioned in this Rule. Rule 6 provides for Training and Assessment for Issuance of Certificate and Rule 10 provides for Revalidation and Upgrading of Certificates. A reading of Rule 10 shows that every seafarer who holds an appropriate certificate in accordance with the STCW Convention and the Merchant Shipping Act and the Rules framed thereunder prior to the date of commencement of these Rules, is to apply and obtain revalidation and upgradation of his certificate during the transitional period of STCW Convention, ie, from the Ist of February, 1997 to the Ist of February, 2002. As per this Rule, such candidates who apply for revalidation and upgradation shall meet the standards of medical fitness as prescribed in the Merchant Shipping (Medical Examination) Rules, 1986 and the STCW Code, they shall complete an approved refresher and updating course in accordance with Section A-1/11 of the STCW Code, they shall be subjected to scrutiny and assessment by an assessment centre and be issued with a certificate in compliance with the requirements of the STCW WPC.No.5828 /2008 :12 : Convention, whereupon, the earlier certificate shall be withdrawn. Sub Rule (2) deals with the manner in which seafarers holding an appropriate certificate and serving at sea or those who intend to return to sea after a period ashore, are to revalidate or upgrade their Certificates. Chapter-II dealing with the Master and Deck Department and lays down the minimum requirements for certification of officers, such as Masters, Chief Mate etc. Different standards are prescribed, depending upon the tonnage of the vessel. Similarly, detailed provisions have been made in Chapter III for the officers of the Engine Department and Chapter IV governs with the Radio Communication and Radio Personnel. Chapter V provides the Special Training Requirements for Personnel on Certain Types of Ships. The Rule also prescibes the forms in which various types of certificates are to be issued. Similarly Part II of the Rules, contain the training and assessment programme for various types of officers, in order to have their certificates upgraded. 14. These Rules do not provide for upgradation of the Skipper Certificates and from the counter affidavits filed by the respondents, it is seen that Union of India is not a signatory to STCW-F Convention applicable to fishing vessels and the WPC.No.5828 /2008 :13 : Skippers. As already seen, Exts.P1 to P4 certificates only certified the competence of the petitioners to work as Skippers in Indian Fishing Vessels. In so far as the Merchant Navy personnel like Masters are concerned, after detailed training, Certificates of Competency were issued by the 2nd respondent and on the introduction of the STCW Convention Code and the Rules referred to above, such Merchant Navy Personnel with different grades of certificates of competency, were to upgrade their certificates in accordance with the Convention, the Code and the Rules. At the same time, there was no similar Convention or Rules for the upgradation of the certificates issued to personnel like the Skippers, whose competence as certified by the 2nd respondent was only to work in fishing vessels. 15. Despite this, it is the admitted case of the petitioners that they secured employment in vessels other than fishing vessels for which their competency was not certified and in terms of the Convention and the Rules, irrespective of their claim of competency, acquired by experience, with the Skipper Certificate they possessed, petitioners could not have worked in these vessels. The requirements of the Rule being mandatory, with the introduction of the Convention and the Rules, the petitioners and WPC.No.5828 /2008 :14 : similar others could not have continued their employment. Counter affidavit filed by the 2nd respondent discloses that representations were made by similar persons and recognizing that it was a humanitarian problem, the Government of India invoked Regulation 46 of the STCW Rules of 1988, Article IX of STC Convention 78/95, Regulation II/3.7 (Exemptions) of STCW Convention 78/95 and the provisions of Section 456 of the Merchant Shipping Act, 1958, which enabled the respondents to grant exemption from the rigour of the Rules in certain cases. Although the question whether Government of India could have, exercising all the aforesaid powers, exempted personnel working on board ships, from the rigour of the Rules of the Convention is a debatable issue, such a question does not arise for consideration in this writ petition and therefore this court is not required to go into those controversial issues. Suffice it to says that, in the aforesaid circumstances, in order to ensure that the petitioners and like others, do not lose their employment, the Government of India issued Ext.P10 notice. 16. In this context, reference to the introductory paragraph of Ext.P10 is relevant and hence, is extracted as under. WPC.No.5828 /2008 :15 : “1. INTRODUCTION 1) Fishing vessel personnel working on board Indian fishing vessels were issued certificate of competency under Merchant Shipping (Examination for Skipper and 2nd Hand of a Fishing Vessel) Rules 1964 subsequently amended by Merchant Shipping (Examination of Skippers and Mate of Fishing Vessels) Rules 1987. The provisions under the stated rules did not comply with Standards of Training Certification and Watchkeeping for Seafarers, 1978 Convention or Standards of Training Certification and Watchkeeping for Seafarers (Fishing) Convention in totality. 2) Based on the above certificates of competency, many Fishing Vessel Personnel found employment on smaller vessels in the Arabian / Persian Gulf, West African waters, offshore fields and other restricted operation. Such personnel mainly, sailed on support vessels, stand-by vessels, survey and research vessels of less than 500 GT mainly operating in Tropical waters (areas roughly between parallels of Latitude 23 decree North and South). They proved themselves proficient in the area of responsibilities assigned to them and continued gainful employment till 31st January 2002 i.e. prior to implementation of STCW 78/95 Convention. 3) Consequent to adoption and coming in force of STCW 95 Code, such personnel of Fishing Vessels Certificate of Competency (COC) were no longer permitted to work on stand-by, support vessels or other aforesaid vessels w.e.f. 1st February 2002. Since WPC.No.5828 /2008 :16 : the Fishing Vessel COCs were not issued in accordance with STCW 78 Convention, they could not be converted to STCW 95 COCs. 4) Recognizing that COC held by such officers coupled with hands on experience gained on such vessels ensured adequate restricted competency for stated purpose, the arrangement in place for such officers had worked well and that the redundancy of these arrangements has caused undue hardship to the officers concerned, created manning difficulties (of reliable and trained officers) and social problem of unemployment to such officers working in this sector, matter was carefully examined at this Directorate. 5) It was observed that whilst proficiency in Navigation function was adequate, there were inadequacies in topics such as Cargo Work and Ship Operation & Care of Personnel in syllabus of Fishing grade examination system when compared with competences of STCW Code. 6) Understanding the need for conversion and taking cognizance of the experience and competence of such certificate holders, the Directorate General of Shipping (D.G.Shipping) has decided to adopt a process for issuance of restricted (R) certification to such Certificate of Competency holders. These inadequacies (in cargo and ship operation function) are intended to be met with in oral examination and the criteria for such conversion are mentioned under the sub-title New Certification (R) further in this M.S.Notice.” WPC.No.5828 /2008 :17 : 17. Paragraph 2 and 3 of the notification contains the enabling provisions on the basis of which the notice was issued and by para (3), the applications are invited. These paragraphs also being relevant, are extracted below for reference; “2. PROVISIONS 1) Under Regulation 46 of Indian M.S.(STCW) Rules, 1998, the Directorate can issue such limited certificate. Similar provisions under Article IX of STCW 78/95 Convention allow administrations to adopt or retain equivalent standards for special type of trades. Further, provisions under regulation II/3.7 (exemptions) permit administration to exempt from the full requirements of regulation 11/3 and STCW Code A-II/3 to a reasonable and practicable extent bearing in mind safety of all ships, which may be operating in those waters. 2) Therefore, under the aforesaid provisions, D.G.Shipping exercising powers vested under Section 456 of Indian Merchant Shipping Act, 1958, hereby approves following procedures for conversion of Fishing Grade COC into Nautical Grade COC (restricted) for above mentioned justifiable reasons. 3. APPLICATION 1) The provisions of this M.S.Notice are applicable to persons holding COC issued under either M.S.(Examination for Skipper and 2nd Hand of A Fishing Vessels) Rules 1964, or (as amended by)