IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26..02..2010 CORAM THE HON’BLE Mr.H.L.GOKHALE, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE K.K.SASIDHARAN W.A.Nos.151 to 154 of 2010 W.A.No.151 of 2010 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 Director General of Shipping, Ministry of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai – 400 001. ..Appellants/Respondents 1 & 3 Vs. 1. Maritime Institutes Association, Rep. by its Secretary C.V.Jothikumar, Chennai – 600 013. 2. Indian Maritime University, Rep. by its Vice Chancellor, East Coast Road, Uthandi, Chennai – 600 113. ..Respondents/Petitioner & 2nd Respondent W.A.No.152 of 2010 1. The Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, No.1, Parliament Street, New Delhi – 110 001. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director General of Shipping, Ministry of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai – 400 001. ..Appellants/Respondents 1&3 Vs. 1. Maritime Institutes Association, Rep. by its Secretary C.V.Jothikumar, Chennai – 600 013. 2. Indian Maritime University, Rep. by its Vice Chancellor, East Coast Road, Uthandi, Chennai – 600 113. ..Respondents/Petitioner & 2nd Respondent W.A.No.153 of 2010 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 Director General of Shipping, Ministry of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai – 400 001. ..Appellants/Respondents 1 & 3 Vs. 1. International Maritime Academy, Rep. by its Director, Chennai. 2. Indian Maritime University, Rep. by its Vice Chancellor, East Coast Road, Uthandi, Chennai – 600 113. ..Respondents/Petitioner & 2nd Respondent W.A.No.154 of 2010 1. The Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, No.1, Parliament Street, New Delhi – 110 001. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director General of Shipping, Ministry of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai – 400 001. ..Appellants/Respondents 1 & 3 Vs. 1. Maritime Institutes Association, Rep. by its Secretary C.V.Jothikumar, Chennai – 600 013. 2. Indian Maritime University, Rep. by its Vice Chancellor, East Coast Road, Uthandi, Chennai – 600 113. ..Respondents/Petitioner & 2nd Respondent PRAYER: Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge dated 17.11.2009 passed in W.P.Nos.10912, 10913, 13687 and 13688 of 2009. Writ Petitions filed under article 226 of the constitution of India, to issue a writ of certiorarified Mandamus to call for the records pertaining to the impugned Notice No.11-TR(18) 2004-II dated 29.05.2009 on the file of the 3rd respondent quash the same and consequently forbear the first and third respondents power of Affiliation approval of courses regulation supervision of the member-Institutes of the Petitioner-Association. (WP 10912 & 10913/2009) Supervision of the Petitioner in institute (WP 13687 & 13688/2009) Mr.S.Venkateswaran, Senior Counsel :: For appellants in all the appeals For Mr.S.Haja Mohideen Gisthi, Senior Panel Counsel for Central Govt., Mr.R.Suresh Kumar :: For Indian Maritime University 2nd respondent in all the appeals Mr.S.Rajasekar :: For Maritime Institutes Association 1st respondent in W.As.151, 152 & 154 of 2010 Mr.V.Vijay Shankar :: For International Maritime Academy 1st respondent in W.A.153 of2010 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T THE HON’BLE THE CHIEF JUSTICE These four appeals are filed by the Secretary, Ministry of Shipping, Road Transport and Highways, Department of Shipping, Government of India, New Delhi and Director General of Shipping, Mumbai. 2. These appeals seek to challenge the common judgment and order passed by a learned single Judge dated 17.11.2009 passed in W.P.Nos.10912 and 10913 of 2009, which were filed by Maritime Institutes Association and W.P.Nos.13787 and 13688 of 2009, which were filed by one International Maritime Academy. All these four writ petitions sought to challenge the two circulars issued by the Director General of Shipping dated 27th April, 2009 and 29th May, 2009. 3. The first circular dated 27th April, 2009 is concerning the approval of maritime training courses conducted by various maritime training institutions. It contains three clarifications which are about – (i) the diploma in Nautical Sciences leading to three years B.Sc., Nautical Science Degree Programme; (ii) affiliation of Maritime Training Institutes; and (iii) role of Director General of Shipping. 4. The second circular dated 29th May, 2009 is a specific circular laying down the brief outline and salient features about the Diploma in Nautical Sciences Programme leading to B.Sc., Degree in Nautical Sciences offered by the Indian Maritime University. 5. Learned single Judge in his impugned judgment and order took the view that the circulars were not binding on the Indian Maritime University, which has been conducting some of these maritime courses. Hence, being aggrieved by that common judgment and order these appeals have been filed. 6. Mr.S.Venkateswaran, learned Senior Counsel along with Mr.S.Haja Mohideen Gisthi, learned Senior Panel Counsel for Central Government has appeared for the appellants in all these four appeals. Mr.R.Suresh Kumar, learned counsel has appeared for the Indian Maritime University. Mr.S.Rajasekar, learned counsel has appeared for the Maritime Institutes’ Association, and Mr.V.Vijay Shankar, learned counsel has appeared for the International Maritime Academy. 7. Mr.S.Venkateswaran, learned Senior Counsel for the appellants submitted that the Director General of Shipping was concerned with the grant of Certificate of Competency under Section 78 of the Merchant Shipping Act, 1958. Section 78 (1) of the Merchant Shipping Act provides for grant of Certificates of Competency for several categories, which are prescribed as grades, which include amongst others the grades such as Extra Master, Master of Foreign-Going Ship, First Mate of a Foreign- Going Ship, Second Mate of a Foreign-Going Ship, Marine Engineer, https://hcservices.ecourts.gov.in/hcservices/ Skippers, Engine Drivers of Fishing Vessel, Dredger Masters, Dredger Engineers, etc. He pointed out that under Section 7(2) of the Merchant Shipping Act the Central Government had by a specific notification dated 17th December, 1960 authorized the Director General of Shipping to discharge some of the functions of the Central Government and the notification specifically mentions those under Section 79(2) of the Merchant Shipping Act. Under this Section the Central Government or its authorized person has the authority to grant the certificate of competency under Section 78 of the Merchant Shipping Act. Mr.Venkateswaran, learned Senior Counsel has pointed out that the Central Government has framed Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1988 in exercise of the powers conferred under Sections 87, 98, 457 and 458 of the Merchant Shipping Act. Rule 47 of these Rules lays down that - “The Director General of Shipping shall supervise that all training and assessment of seafarers for certification is – (a)structured in accordance with written programmes including such methods and media of delivery, procedure and course material as are necessary to achieve the standard of competence as specified in Chapters II to VIII of the STCW Code; (b)conducted, monitored, evaluate and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A-1/6 of the STCW Code.” 8. Section 77 of the Merchant Shipping Act specifically lays down that subject to the provisions of Section 86 (which deals with the recognition of certificates of competency or service granted in other countries) an officer shall not be deemed to be duly certificated under that Act unless he holds a certificate of a grade appropriate to his station in the ship or of a higher grade granted in accordance with that Act. This is also in consonance with the provisions of International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW Convention) which has been specifically referred to in Part VI of the Merchant Shipping Act. Regulation I/6 framed under this STCW Convention specifically requires that each party (i.e., signatory nation) shall ensure that the training and assessment of seafarers, as required under the Convention, are administered, supervised and monitored in accordance with the provisions of A-I/6 of the STCW Code. The Government of India has placed that responsibility on the Director General of Shipping, and hence, unless the Certificate of Competency is issued by the Director General of Shipping, the candidate concerned cannot become a seafarer. Mr.S.Venkateswaran, learned Senior Counsel has, therefore, submitted that the Director General of Shipping had a role in the matter of – (i) prescribing minimum qualifications for admission to a course; (ii) contents of the course; (iii) intake capacity of the institution concerned; and (iv) inspection of the facilities at the institution. 9. The students taking maritime courses, basically do so to become seafarers. As far as those courses which lead to the grades specified under Section 78 are concerned, unless the Certificate of Competency is given by the Director General of Shipping, the candidates concerned https://hcservices.ecourts.gov.in/hcservices/ would not be allowed to go to sea in those posts. Therefore, the Director General of Shipping had the role to look into the above four aspects and which is what is stated in the two circulars, which are impugned before the learned single Judge. 10. Mr.S.Venkateswaran, learned Senior Counsel for the appellants pointed out that even the Indian Maritime University, which has been specifically constituted under the Indian Maritime University Act, 2008, did not have the power to grant the Certificates of Competency of Seafarers. Section – 5 of the Indian Maritime Act, which laid down the powers of the University, specifically stated in sub Clause (vi) thereof as follows: “(vi) to grant, subject to such conditions as the University may determine, diplomas for certificates other than Certificates of Competencies of Sea-farers, which shall continue to be issued by Director-General of Shipping, Government of India till the Central Government otherwise decides, and confer degrees and other academic distinctions on the basis of examinations, evaluation or any other method of testing on persons, and to withdrew any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause.” 11. Mr.R.Suresh Kumar, learned counsel appearing for the Indian Maritime University on the other hand submitted that the Director General of Shipping or his nominee not below the rank of Joint Secretary was a member of the Executive Council of the University and it was the power of the Academic Council of the University under Section 22 of the Indian Maritime University Act, which has the control and supervision of maintenance of standards of instruction, education and examination. He submitted that the University was conducting other courses as well such as those in Marine Architecture, Ocean Engineering, etc. 12. With respect to the above submission of the learned counsel for the Indian Maritime University, Mr.S.Venkateswaran, learned Senior Counsel for the appellants pointed out that the Director General of Shipping was not concerned with all the Courses, but only those courses which required the Certificate of Competency under Section 78 of the Merchant Shipping Act. He also pointed out that there are other institutions affiliated to other universities which are running some of these courses, which are valid and permitted by the Director General of Shipping, and they had to confirm to the standards laid down by the Director General of Shipping. Their candidates have to get their grades under Section 78 of the Act. Mr.S.Venkateswaran, learned counsel for the appellants pointed out that as far as the stand taken by the Director General of Shipping is concerned, the Indian Maritime University did not dispute it before the learned single Judge, and in paragraph – 3 of the affidavit of its Director, Finance and Administration of the University, affirmed on 23rd July, 2009 it was specifically admitted that under the Indian Maritime University Act, 2008 the University has not been granted the power to issue Certificate of Competency to eligible candidates which power continues to be vested with the 3rd respondent – Director General of Shipping. https://hcservices.ecourts.gov.in/hcservices/ 13. Two of the writ petitions leading to these appeals viz., W.P.Nos.13687 and 13688 of 2009 were filed by the International Maritime Academy, an institution which was seeking affiliation to the Indian Maritime University, and it challenged the two circulars dated 27th April, 2009 and 29th May, 2009 issued by the Director General of Shipping. During the pendency of these appeals, the Director General of Shipping having inspected the facilities provided by the International Maritime Academy and having certified the facilities to be proper, Mr.V.Vijay Shankar, learned counsel for the International Maritime Academy stated that he is not desirous of retaining the order passed in W.P.Nos.13687 and 13688 of 2009 filed by the Academy. In fact, he stated that he would like to withdraw those two writ petitions. The Indian Maritime University has given a report with respect to the facilities of the International Maritime Academy which is adverse to the Academy. Mr.V.Vijay Shankar, learned counsel for the Academy states that the Academy would like to seek affiliation with another university. In the event the Academy seeks such an affiliation with any other university, it will inform the Director General of Shipping while making any such application for affiliation to another university. In view of the statement made by Mr.V.Vijay Shankar, learned counsel appearing for the Academy, there is no reason to retain the two appeals filed by the Director General of Shipping against the common order in those two writ petitions. Thus, the two writ petitions viz., W.P.Nos.13687 and 13688 of 2009 are, therefore, allowed to be withdrawn, and consequently, the two appeals there from viz., W.A.Nos.153 and 154 of 2010 are disposed of as not required to be pressed. 14. As far as the two writ petitions filed by the Maritime Institutes’ Association is concerned, it was submitted by Mr.S.Rajasekar, learned counsel appearing on their behalf that his clients were aggrieved only by the observation in Paragraph – 154 of the judgment rendered by the learned single Judge that all institutions running maritime courses must join the Indian Maritime University. However, in view of the statement of Mr.S.Venkateswaran, which is recorded in paragraph – 12 above, he seeks to withdraw those two writ petitions being W.P.Nos.10912 and 10913 of 2009. Consequently, the two appeals arising there from are not required to be pressed. 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 a 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 https://hcservices.ecourts.gov.in/hcservices/ 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. sm 26.2.2010 This petition having been posted on this day, 7.4.2010 'For Being Mentioned' subsequent to the order of this Court dated 26.2.2010 and made herein and in the presence of the aforesaid advocate, the Court made the following Order: (The order of the Court was made by Hon'ble The Chief Justice) These appeals are taken up in the Chambers before this Bench, in view of the mentioning thereof by Mr.S.Venkateswaran, learned senior counsel appearing with Mr.S.Haja Mohideen Gisthi for the appellants in all these appeals. We have heard learned counsel for all the parties i.e. Mr.R.Suresh Kumar, learned counsel appearing for the Indian Maritime University, Mr.R.Thiagarajan, learned senior counsel appearing with Mr.V.Vijay Shankar, for the International Maritime Academy. 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 circulars issued by the Director General of shipping dated 27th April, 2009 and 29th May, 2009. 3. It is, further, clarified that this does not preclude the University from challenging these circulars, if it so deems it fit, in accordance with law. pv 7.4.2010 Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ Copy to:- 1. The Secretary, Ministry of Shipping, Road Transport & Highways (Department of Shipping), Government of India, No.1, Parliament Street, New Delhi – 110 001. 2. The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, To be substituted Mumbai – 400 001. for the order already despatched 3. The Vice Chancellor, on 8.3.2010 Indian Maritime University, East Coast Road, Uthandi, Chennai – 600 113. + 1 cc to Mr.S.Haja Mohideen Gisthi, SCGSC CC SR 13007 + 1 cc to Mr.M.S.Ramesh, Advocate, CC SR 13926 + 1 cc to Mr.R.Sureshkumar, Advocate CC Sr 22751 + 1 cc to Mr.V.Vijay Shankar, Advocate, CC Sr 13618 Judgment in W.A.Nos.151 to 154 of 2009 RSM (CO) RH (4.3.10) SR/15.4.2010 https://hcservices.ecourts.gov.in/hcservices/