Madras High Court
Sairam Shipping Science Institute vs Indian Maritime University on 14 October, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.15464, 15465, 16485 and 18894 of 2010 and Connected Miscellaneous Petitions Sairam Shipping Science Institute, Rep. By its Secretary, Koodapakkam Main Road, Ulavaikkal Village, Villiyanoor, Commum, Pondicherry 605 502. ...Petitioner in W.P.No.15464/2010 Shirdi Sai Nautical Science Academy Rep. By its Secretary, 'Sai Leo Nagar' Anekal, Bangalore - 562 119. ...Petitioner in W.P.No.15465/2010 PSN College of Engineering and Technology, Rep. By its Chairman, Melathediyur, Palayamkottai, Tirunelveli District 627 152. ...Petitioner in W.P.No.16485/2010 Sairam Shipping Science Institute, Rep. By its Secretary, Koodapakkam Main Road, Ulavaikkal Village, Villiyanoor, Commun, Pondicherry 605 502. ... Petitioner in W.P.No.18894/2010 Vs. 1.Indian Maritime University, Rep. By its Vice Chancellor, East Coast Road, Uthandi, Chennai - 600 119. 2.The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai 400 001. ...Respondents in all the WPs W.P.No.15464/2010 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent in Ref.No.IMU/DFA/Affi/112/2010 dt 9.7.2010 and quash the same that part of the said Proceedings requiring the petitioner to obtain clearance for Certificate of Compliance from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.15465/2010 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent in Ref.No.IMU/DFA/Affi/112/2010 dt 9.7.2010 and quash the same that part of the said Proceedings requiring the petitioner to obtain clearance for Certificate of Compliance/continuous discharge certificate from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.16485/2010 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the 1st respondent dt 19.2.2010 in Ref. No. IMU/DFA/Affi/2009 and quash the same that part of the said proceedings requiring the petitioner to obtain clearance for Certificate of Competency/Continuous Discharge Certificate from the 2nd respondent and making it as a condition for including the petitioners Institution for counseling which is Scheduled on 19.7.2010. W.P.No.18894/2010 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records of the First Respondent in Ref.TR-TAR/1(24)/2010 dated 02.08.2010 and quash the same and consequently direct the First Respondent to act according to law. For Petitioners : Mr.R.Muthukumarasamy, Senior Counsel for Mr.A.Jenasenan (in W.P.Nos.15464 and 15465/2010) Mr.AR.L.Sundaresan, Senior Counsel for Ms.AL.Gandhimathi (in W.P.No.16485/2010) Mr.R.Muthukumarasamy, Senior Counsel for Mr.S.Mohanasundararajan (in W.P.No.18894 of 2010) For Respondents : Mr.R.Suresh Kumar for Indian Maritime University (in all Writ Petitions) Mr.Venkateswaran, Senior Counsel for Mr.S.Haja Mohideen Gisthi, SCGSC for Director General of Shipping (in all Writ Petitions) C O M M O N O R D E R
W.P.No.15464 of 2010 is filed by Sairam Shipping Science Institute at Villiyanoor, Pondicherry, challenging the order of the Indian Maritime University, the first respondent directing them to obtain clearance for Certificate of Compliance from the Director General of Shipping, the second respondent as a condition for including the petitioner's Institution for counseling which was Scheduled on 19.7.2010.
2. W.P.No.15465 of 2010 is filed by one Shirdi Sai Nautical Science Academy at Anekal, Bangalore, challenging an order dated 9.7.2010 and makes similar prayer as that of the first writ petition.
3. When both the writ petitions came up for admission, the learned counsel for the first respondent University took notice. Pending the writ petitions, the petitioners sought for an interim stay of the order passed by the University as well as an interim direction to include their name for counselling process scheduled on 19.07.2010 in respect of Diploma in Nautical Science for the 2010 batch.
4. Even before the admission of the writ petitions, when the matter came up on 21.07.2010, this Court after hearing the learned counsel for both sides held that there was a prima facie case and balance of convenience was in favour of the petitioners and in the interest of justice, the University was directed to permit the petitioners' institution to participate in the counselling session starting from 19.07.2010 or on any other subsequent date. However, it was made clear that it will be subject to the result of the writ petitions. The order was also directed to be communicated telegraphically to the respondents.
5. On notice from this Court, the first respondent has filed a counter affidavit dated 11.08.2010 and the second respondent has filed a counter affidavit dated 27.07.2010.
6. The petitioners filed two miscellaneous petitions viz., M.P.No.1 of 2011 and M.P.No.2 of 2011 in both the writ petitions. The first MP was for directing the respondents to include the petitioners' institution in the counselling process conducted by the University on 20.01.2011 and 21.01.2011 for the February 2011 intake with regard to Diploma in Nautical Science course. That direction was granted by this Court with an observation that it will be subject to the result of the writ petitions. In the second MP, they sought for modification of the order dated 12.01.2011 as it was wrongly shown as order dated 06.01.2011, whereas it should be order dated 12.01.2011 and that clerical error was corrected by an order dated 28.01.2011.
7. In the meanwhile, the third writ petition viz., W.P.No.16485 of 2010 came to be filed by one PSN College of Engineering and Technology at Melathediyur, Palayamkottai, seeking to set aside an order dated 19.02.2010 issued by the University and after setting aside the same in so far as it requires the petitioner College to obtain clearance for Certificate of Competency/Continuous Discharge Certificate from the 2nd respondent which was made as a condition for including the petitioner Institution for counseling, which is Scheduled on 19.7.2010.
8. When that writ petition came up on 28.07.2010, it was informed by the learned counsel for the University that since already the counselling process was completed, there was no chance for further counselling. Therefore, it was observed that whatever decision taken by the respondents will be subject to the outcome of the main writ petition. Hence, no orders were passed in the miscellaneous petitions. That writ petition was directed to be heard along with similar writ petitions which were pending.
9. The fourth writ petition viz., W.P.No.18894 of 2010 was filed by the first writ petitioner viz., Sairam Shipping Science Institute, seeking to set aside an order dated 02.08.2010 passed by the Director General of Shipping. By the impugned order, the Director General of Shipping found their application for establishment of new Maritime Institute cannot be considered since the Director General of Shipping in Order No.2 of 2007 has stated that only such institutes as promoted with a non profit making objective by leading and reputed shipping companies, ship and maritime related management companies, Government institutes and ship building companies with experience and knowledge of maritime life and matters and with support base from among the serving or retired marine professional, need apply for consideration for approval. In that writ petition, notice was ordered. On notice, the Director General of Shipping has filed a counter affidavit dated 25.08.2010.
10. In view of common question of law is raised in all these writ petition, they were grouped together and heard along with other similar writ petitions.
11. Heard the arguments of Mr.R.Muthukumarasamy, learned Senior Counsel leading Mr.A.Jenasenan, counsel for the petitioner in W.P.Nos.15464 and 15465 of 2010 and for Mr.S.Mohanasundararajan in W.P.No.18894 of 2010, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for Ms.AL.Ganthimathi, counsel for the petitioner in W.P.No.16485 of 2010, Mr.Venkateswaran, learned Senior Counsel appearing for Mr.S.Haja Mohideen Gisthi, learned Senior Central Government Standing Counsel for the Director General of Shipping and Mr.R.Suresh Kumar, learned counsel for the Indian Maritime University.
12. After orders were reserved in these writ petitions, the petitioners in W.P.Nos.16129, 16130, 18895 and 18896 of 2010 circulated a letter seeking for withdrawal of the writ petitions as relief has already been given to them. Hence, those matters were listed and were dismissed as infructuous.
13. The case of the petitioners in W.P.Nos.15464 and 18894 of 2010 was that Saptagiri Educational Trust was founded in the year 1994 and they had established number of educational institutions. The Trust had decided to establish a self financing institute to impart courses leading to a Diploma in Nautical Science. The Indian Maritime University Act, 2008 (for short IMU Act) was enacted by the Parliament to establish and incorporate a teaching and Affiliating University at the national level to facilitate and promote maritime studies and for matters connected therewith. The power has been given to the University to determine and to admit to its privilege colleges and institutions not maintained by the Indian Maritime University (for short IMU), to determine standards of admission and to regulate admission of students for various courses of study in recognised institutions. The Trust established the petitioner Institute in Puducherry with all necessary infrastructure and sought for approval from the IMU to offer the course in Diploma in Nautical Science with annual intake of 40 students from August 2010 batch.
14. The IMU on receiving the application conducted an inspection on 30.06.2010 and submitted its report. Based on the report, the matter was examined by the Competent Authority of the University and a communication was sent to the petitioner on 09.07.2010 informing that the University had approved an intake of 40 students for Diploma in Nautical Science course from August 2010 batch. The petitioner was also advised to approach the Director General of Shipping (for short DGS) for the purpose of obtaining clearance for Continuous Discharge Certificate (for short CDC). They were also informed that their institute will be included in the counselling process scheduled on 19.07.2010 on getting clearance from the DGS. The advice given by the University to obtain clearance for CDC is untenable and contrary to the provisions of the IMU Act. It was claimed by them that there is no need to apply for any clearance from the DGS and it is not part of the Diploma Course and it cannot be made as a condition precedent. Even though there is no requirement for obtaining any clearance, they have made a request to the DGS for giving a clearance for CDC.
15. In W.P.No.18894 of 2010, their grievance was that the DGS by the impugned order dated 02.08.2010 rejected their request for grant of approval for running an institute based upon the DGS order No.2 of 2007. It is stated that the order of DGS is not valid any more after the advent of IMU Act. The provisions of IMU Act do not contemplate running of an institute by Shipping companies and others as mentioned in the impugned order. After the judgment of the Supreme Court in T.M.A.Pai Foundation and others v. State of Karnataka and others reported in (2002) 8 SCC 481, establishment of an educational institution is a right guaranteed under Article 19(1)(g) of the Constitution and if at all, it is only the IMU which can frame regulations consistent with the provisions of the Act.
16. The petitioner in W.P.No.15465 of 2010 had also raised similar contentions as that of the petitioner in W.P.No.15464 of 2010 as noted above.
17. The petitioner in W.P.No.16485 of 2010 had stated that they are running Educational and Charitable Trust and located their college 12 kms away from Palayamkottai and it is duly approved by All India Council for Technical Education (for short AICTE) and it is also affiliated to Anna University and Indian Maritime University. They had applied for provisional affiliation on 27.04.2009 for starting a Diploma Course in Nautical Science with IMU. The University conducted an inspection on 09.01.2010. After inspection, by a letter dated 21.01.2010, they informed that there are some minor deficiencies in the college and requested them to comply with the same. The College had also sent a compliance report. In the meanwhile, the DGS sent a reply on 18.09.2009 stating that the application cannot be processed since Clause 1.4.2.3 of the guidelines was not satisfied by the petitioner. It was stated that the approval of the DGS was not required as per the provisions of the IMU Act. The petitioner college has obtained a Accreditation status from the AICTE and has been running maritime related courses from the year 2002. Obtaining Certificate of Competency/Continuous Discharge Certificate cannot be made as a condition precedent. If at all, it is only the IMU which can frame guidelines for grant of affiliation. Even though there was no such requirement, they had made an application which is still pending and since it may take time and they cannot wait for getting clearance certificate, they had approached this Court.
18. In the common counter affidavit filed by the IMU viz., the first respondent, after setting out the provisions of the IMU Act, it was stated that IMU Act was enacted by the Parliament with an aim and object of promoting and facilitating the maritime studies in India in order to develop and maintain the standards of maritime education to meet the global standard to prepare the Marine Officers/Engineers/Cadets for various jobs not only in India but also in abroad with international standard as prescribed by the International Maritime Organisation. The purpose of Merchant Shipping Act, 1958 (for short M.S.Act) was to ensure the efficient maintenance of an Indian Mercantile Marine and for that purpose a National Shipping Board was created to provide for the registration, certification, safety and security of Indian ships. The National Shipping Board established under Section 7 of the M.S.Act enables the Central Government to appoint the Director General of Shipping. Under Section 79(2) of the M.S.Act, powers have been delegated to the DGS. Section 79(2) may be usefully extracted below:-
"79(2) The Central Government or such authorised person shall grant to every applicant, who is duly reported by the examiners to have passed the examination satisfactorily and to have given satisfactory evidence of his sobriety, experience and ability and general good conduct on board ship, such a certificate competency as the case requires:
Provided that the Central Government may, in any case in which it has reason, to believe that the report has been unduly made, require, before granting a certificate, a re-examination of the applicant or a further inquiry into his testimonials and character".
19. It was further stated that certificates are to be given by the DGS to the cadet or person on satisfactory completion of training or examination conducted by it viz., Certificates of Competency. Under Section 79(3) of the M.S.Act, the Certificate is valid for such period as may be prescribed. After the expiry of the period of certificate, it has to be renewed lest it may lapse. The examination conducted for grant of certificate under the M.S.Act is not related to the Degree Certificate, Diploma Certificate or Certificate for any other course to be conducted by any institution affiliated to the University for awarding such degree, diploma or certificates. The Degree or Diploma have nothing to do with the grant of Certificate of Competency (for short CoC) by the DGS. The DGS by a notification dated 27.04.2009 informed that the one year Diploma Programme in Nautical Science (DNS) which was hitherto conducted by the IGNOU stood transferred to the I.M.University. In the notification, he had stated that the DGS can still continue to regulate the institutes, colleges conducting courses, preparatory to issuance of Certificate of Competency which remain affiliated to University other than Indian Maritime University. Under Clause v of the said notification, it has been stated as follows:-
"(v) Approval of new capacities in IMU constituent affiliated institutions for the CoC oriented courses will be routed through the Board of Affiliation and Recognition of IMU, to the Collegium of DGS to facilitate orderly and sustainable developments of the job market. A suitable mechanism is being worked out to ensure expeditious clearances."
20. Thereafter, on 29.05.2009, he has notified that DNS programme conducted by various institutions through IGNOU was transferred to I.M.University from February 2009 session and the list of institutions which were conducting such courses were furnished. These two notifications were challenged by the aggrieved persons in W.P.No.10912 of 2009 and batch cases. [Maritime Institutes Association, rep. By its Secretary and another v. Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), New Delhi. Those batch of writ petitions were disposed of by a common order dated 17.11.2009 (the said judgment is since reported (2010) 1 MLJ 1217). In paragraphs 162 to 164 and 166-169, it was held as follows:-
162. The condition that the approval of new intake capacities in IMU constituent/affiliated institutions of CoC oriented courses should be routed through the Board of Affiliation and Regonition of IMU, to the collegium of DGS to facilitate orderly and suitable developments of job market, makes it abundantly clear that what is sought to be achieved by DGS is only the area relating to merchant shipping and not maritime education.
163.The machinery for consultation with DGS for inspection of the institutes, providing instruction, recognition of the institute, approval of the courses, additional intake are already provided in IMU Act and therefore, IMU should be the final authority. Being a member of the Academic Council and Executive Council, the DGS cannot have a paramount superiority nor can claim superior powers than the University. The DGS cannot trench upon the legislative field occupied by IMU. As laid down in a catena of decisions stated supra, interpretations to Sections 79, 81 and 85 of MS Act, 1958, depends upon the legislative intent for which the provisions are made i.e., relating conferment or award of Coc by DGS, which is specifically carved out from the purview of the latter Act, and referable to the provisions of the MS Act.
164. Even assuming that there are provisions under the M.S.Act overlapping the subject matter in IMU Act, in view of the salient provisions occupying the field relating to maritime education under the IMU Act, the same cannot be whittled down or curtailed or rendered nugatory by the impugned notices.
166. ...Now, under the structure of an exhaustive code, IMU Act can be made applicable to all the areas covered under the impugned notices and therefore, it should be purely to the satisfaction of the statutory authorities under the University.
In these circumstances, this Court is of the view that the powers hitherto exercised by the DGS are only transitory and he is no longer empowered to exercise the same powers, except the one sanctioned under the IMU Act.
167. In the light of the above, this Court is of the view that the impugned notices which are in the form of executive instructions purported to be issued in exercise of statutory provisions of M.S.Act cannot override the statutory provisions of the IMU Act.
168. Institutions like AICTE, MCI, DCI,etc., are statutory bodies created under the respective enactments like AICTE Act, MCI Act, DCI Act, etc., wherein the competent authorities are specifically empowered to grant recognition to the institutes/colleges approve the courses, permit additional intake etc. But, the DGS is not a creature of any statute specifically empowered to do so. Therefore, the contentions that DGS is a regulatory body for the entire maritime education cannot be countenanced.
169.If the interpretation of the provisions of MS Act are to be given the meaning, power and authority on the DGS, as projected by the respondents, then they would infringe upon the rights of the University in the matters set out in the IMU Act and statutes framed thereunder and consequently affect the interest of the approved institutes."
21. Taking advantage of the order passed by the learned Judge, it was contended by the University that the DGS cannot by relying upon 'Seafarer, Training, Certification and Watch Keeping Code (STCW Code) try to administer the maritime educational institution which comes within the exclusive jurisdiction of the Maritime University.
22. It was contended that in the absence of any Special Law granting status to the DGS, similar to that of the amendment made to the Indian Medical Council Act or the establishment of similar Act like NCTE, the DGS cannot contend that he has overall power. He cannot encroach upon the jurisdiction and power of the IMU either to prescribe standard of maritime education or to grant approval or affiliation of maritime institutions or courses.
23. The Board of Affiliation and Recognition (BAR) of the University had recommended grant of affiliation to the petitioners' Colleges and they were placed before the Planning Board i.e. The Academic Council on 06.07.2010 and the Planning Board approved the Minutes of the Board. The recommendation of the Planning Board was placed before the Executive Council of the University on 07.07.2010 and it has approved the recommendation of the Planning Board. The University was not under any obligation to give conditional approval for the institutions for commencing the course. But however advice was given to the Colleges to approach the DGS for getting CoC/CDC. The colleges which are permitted by interim order to participate in the counselling were also allotted seats during the counselling. Only the petitioner in W.P.No.16485 of 2010 could not be included as they had approached the Court after the counselling.
24. Copies of the Minutes of the Board of Affiliation and Recognition dated 05.07.2010, Minutes of the Planning Board dated 06.07.2010, and Minutes of the Executive Council dated 07.07.2010 were also filed in the form of typed set by the University.
25. It is brought to the notice of this Court that subsequently, a Division Bench presided by H.L.Gokhale,C.J. (as he then was) disposed of the writ appeals preferred by DGS in W.A.Nos.151 to 154 of 2010 by a common order dated 26.02.2010. In the common order dated 26.02.2010, the Division Bench in paragraphs 15 and 16 held as follows:-
"15. Mr.R.Suresh Kumar, learned counsel for the Indian Maritime University submitted that the University was aggrieved by the two circulars. However, the fact remains that the University has not filed any writ petition. Not only that but the University had taken as stand, as stated above, in its affidavit before the learned single Judge that the Certificate of Competency can be given only by Director General of Shipping, and a contrary submission cannot be permitted to be agitated in the appeals (though it will be open to the University to take steps in accordance with law, if it so deems it fit).
16. In the circumstances, we allow all these four writ petitions being W.P.Nos.13687, 13688, 10912 and 10913 of 2009 to be withdrawn, and consequently, the four writ appeals will stand disposed of as such, though we clarify that as far as the Certificates of Competency for the grades under Section 78 of the Merchant Shipping Act, 1958 are concerned, the Director General of Shipping is the authority for the purpose of examining the qualifications of persons desirous of obtaining the certificates of competency thereunder, and has the authority to do all that is needful in respect of grant of these qualifications. There will be no order as to costs."
26. Subsequently, the matter was mentioned before the Division Bench for certain clarification. The Division Bench by a further order dated 07.04.2010 issued the following clarification in respect of paragraph 16 extracted above:
"2.The sentence in paragraph -16, which states that the Director General of Shipping is the authority for the purpose of examining the qualifications of persons desirous of obtaining the certificates of competency thereunder and has the authority to do all that is needful in respect of grant of these qualifications will have the following words added in terms of the 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."
27. In the counter affidavit filed by the DGS, it was contended that under Section 79 of the M.S.Act, the Central Government or a person duly authorised by it can alone appoint persons for the purpose of examining the qualifications of the candidates for Certificate under Section 78 of the M.S.Act. Section 87 provides for the Central Government to make Rules in regard to part VI relating to CoC and in respect of Part VII dealing with the ratings. Right from the beginning, the CoC was issued by the DGS and the institutes for the purpose of training candidates for getting CoC were run by the Government under the control and supervision of DGS. In 1997, the Ministry of Shipping decided to expand the facilities of training by permitting private participation in maritime training. Guidelines were framed by the Government of India by an order dated 07.02.1997. The object of setting up Indian Institute of Maritime Studies in the first instance and the IMU thereafter is only to provide for grant of degrees and diplomas in various disciplines and has got no relevance for grant of CoC. IMU Act cannot override the M.S.Act. The Ministry of Shipping promulgated, under Section 457 of the M.S.Act, 1958, the Merchant Shipping (Continuous Discharge Certificate cum Seafarers Identity Document) Rules, 2001 deals with various aspects which arose for the purpose of grant of CDC.
28. Under Section 5(vi) of the IMU Act, the University is empowered to grant Diplomas for Certificates other than Certificates of Competencies of Sea-farers. The said provision reads as follows:-
vi) to grant, subject to other 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 withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;
29. The International Maritime Organisation was established under the chapter of the United Nations. There was a conference of parties to the International Convention on Standards of Training, Certification and Watch-Keeping (STCW) for seafarers. This Convention was amended from time to time. The Convention, requires the maritime administration to be responsible for training, standards, examination and fitness of the Certificate holders. Therefore, Gazette notification was issued by the Government of India framing Rules dated 20.04.1998 called Merchant Shipping (Standards of CTW) Rules, 1998. The Rule enables the DGS to supervise all the training and assessment of seafarers for certification. Therefore, the institutions which are offering such certification courses, diplomas and Degrees leading to CoC requires approval of DGS and as per the circular dated 27.04.2009 and 29.05.2009, the Directorate will be empowered to formulate the guidelines for the mandatory courses and will continue to regulate the institutes/colleges conducting the courses. The Directorate has authorised the IMU to start the Diploma in Nautical Science course leading to B.Sc.Degree in Nautical Science from August, 2009, which is ultimately leading to CoC examination for the Second Mate Foreign Going as per Section 78 of the M.S.Act. The University granting affiliation to petitioners institutes is not valid and DGS alone is competent authority and institutions to start such courses require prior approval of the DGS. The letters received from the petitioners institutions for grant of approval cannot be considered as under the DGS order No.2 of 2007, the application should be received by them one year prior to the commencement of the course. It was also pointed out that in respect of most of the private institutes, there was allegation of collecting capitation fee and that they are run without infrastructure. There was also serious problem in the first writ petitioner's Engineering college and many news items had appeared in the newspapers. Therefore, it was prayed for the rejection of the writ petitions.
30. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the first two writ petitioners contended that the power of the University cannot be taken over by the DGS. As per the object and reasons, an Act is to establish and incorporate a teaching and affiliating University at the national level to facilitate and promote maritime studies and research and to achieve excellence in areas of marine science and technology, marine environment and other related fields, and to provide for matters connected therewith or incidental thereto.
31. The term College as defined under Section 2(h) of the IMU Act, reads as follows:-
"College" means a college maintained by or admitted to the privileges of the University for imparting education and training in maritime studies or in its associated disciplines.
32. The term "Institution" is set out under Section 2(u) of the IMU Act, which is as follows:-
"Institution" means an institution, school, college or centre of studies maintained by or admitted to the privileges of the University for imparting education and training in maritime studies or in its associated disciplines.
33. The term "Recognised teachers" is defined under Section 2(x), which reads as follows:
"Recognised teachers" means such persons as are recognised by the University for the purpose of imparting instructions in a college or an institution admitted to the privileges of the University.
34. The power of the University is provided under Section 5 and Section 5(ii) enables the University to make provision for recognised institutions to undertake special studies and Section (vi) has already been set out elsewhere.
35. Section 5(xii) of the IMU Act enables the University to grant recognition to an institution of higher learning for such purposes as the University may determine and to withdraw such recognition.
36. The admission of students are set out in Section 5(xxxiii), which reads as follows:-
"(xxxiii) to control and regulate admission of students for various courses of study in Departments, recognised institutions, schools and centres of studies."
37. Under Section 6 of the IMU Act, the jurisdiction of the University extends to the whole of India. Under Section 19, it has created a hierarchy of authorities in dealing with the academic matters and the Act elaborately deals with the powers to be exercised by such authorities.
38. Under Section 28(n) of the IMU Act, the conditions under which colleges and institutions may be admitted to the privileges of the University and the withdrawal of such privileges is set out.
39. Under Section 30 of the IMU Act, University is empowered to frame Statutes and Ordinances for various matters set out in the said section. Section 30(d) and (p) is relevant for the purpose this case, which reads as follows:-
d) The award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same;
p) the supervision and management of colleges and institutions admitted to the privileges of the University.
40. If any difficulty arises for giving effect to the provisions of the Act, the Central Government has been empowered to make provisions which are not inconsistent with the provisions of the Act. In this context, it is necessary to refer to Section 45, which reads as follows:-
"45. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of the Act, as appear to it to be necessary or expedient for removing the difficulty.
Provided that no such order shall be made under this section after the expiry of three years from the commencement of this Act."
41. Since the Act was notified, the Indian Maritime University Act, 2008 (Central Act 22 of 2008) was enacted on 11.11.2008 and was also gazetted in the Gazette of India on the same date and this power has to be exercised within three years from the date of the notifying Act.
42. The learned Senior Counsel also took this Court to various clauses of the first Statutes framed under Section 29 which is appended to the Schedule to the IMU Act. Clause 11(1)(d) of the first Statute provides for the Director-General of Shipping or his nominee to be the member of the Executive Council and the Financial Adviser, Ministry of Shipping is also a member of the Executive Council. Therefore, a provision has been made to accommodate the DGS to be part of the Executive Council. Likewise, Clause 14(1) provides for composition of Academic Council in which the Chief Surveyor of Directorate-General of Shipping and the Nautical Advisor of Directorate General of Shipping has been made as ex officio members. Under Clause 16, the Planning Board provides for membership to Secretary, Department of Shipping in the Government of India or his nominee. DGS and Financial Adviser of Department of Shipping have been made as ex officio members. Under Clause 34 of the Statutes, the Executive Council has been specifically empowered to grant such privileges of the University in respect of its affiliating colleges including the institution maintained by the Government.
43. Therefore, the learned Senior Counsel submitted that except under Section 5(vi), wherein the grant of CoC for Sea-farers was to be issued by the DGS, Government of India till the Central Government otherwise decides, in respect of all academic matters relating to maritime education solely vest to the University and not the DGS. The DGS have been made only as ex officio member of the Executive Council as well as Planning Board and Academic Council comprises of two of his sub-ordinates.
44. Section 2(f) of the IMU Act deals with "Certificate of Competency" and it refers to the Certificate issued by the competent authority under the Merchant Shipping Act, 1958. Therefore, on a combined reading of Section 2(f) r/w Section 5(vi) would go to show that the only power for the DGS is to grant of CoC for Sea-farers and no other power has been exclusively reserved for him in respect of matters covered by the provisions of IMU Act and if at all he could have a say in the decision making process by attending the meeting either by himself or by his nominee and to putforth his views and he cannot get any extra privilege in seeking for prior approval of the institutions for the purpose of getting affiliation to the University.
45. Even under Section 7 of the M.S.Act r/w. part (vi) only delegation of powers have been conferred for grant of CoC for various posts in the Merchant Shipping. Rule 5 of the Merchant Shipping (Standards of Training, Certification and Watch Keeping for Seaferers) Rule, 1998 (for short STCW Rules) provides for competency in respect of 12 grades.
46. Therefore, he submitted that DGS before the starting of the University in the year 2004 has recognised B.Sc Nautical Science run by the IGNOU for awarding of Certificate of Competency vide their Training Circular No.20 of 2004 and the present right to run the B.Sc Degree Course vest with the University. By a circular dated 27.04.2009, the DGS himself had stated that the B.Sc Nautical Science course conducted through IGNOU will henceforth be conducted through Indian Maritime University beginning from August 2009. DGS informed that they will continue to regulate all training of ratings and other mandatory certificate courses. Hence, he submitted that once the University is competent to grant degree in respect of B.Sc Nautical Science, there cannot be any further power vested with the DGS to grant approval to those institutions even after their being affiliated to the University. Even without the Circular of the DGS, under Section 48, the University is bound to continue the programmes run by the prior University or institution which have become subject matter of IMU Act.
47. Section 48 of the IMU Act reads as follows:-
"48. Notwithstanding anything contained in this Act, or in the Statutes or the Ordinances, any students of a college or an institution, who, immediately before the admission of such college or institution to the privileges of the University, was studying for a degree, diploma or certificate of any University constituted under any Act, shall be permitted by the University, to complete his course for that degree, diploma or certificate, as the case may be, and the University shall provide for the instructions and examination of such student in accordance with the syllabus of studies of such college or institution or University, as the case may be."
48. The learned Senior Counsel placed reliance on the judgment of the Supreme Court in Comissioner of Income Tax, Kerala v. Tara Agencies reported in (2007) 6 SCC 429 for the purpose of contending that the intention of the legislature has to be gathered from the language used in the statute and the Court cannot add words to a statute or read words into it which are not there. Reliance was placed on the following passages found in paragraphs 57 and 58:
"57. The intention of the legislature has to be gathered from the language used in the statute which means that attention should be paid to what has been said as also to what has not been said.
58. In Union of India v. Deoki Nandan Aggarwal34 a three-Judge Bench of this Court held that it is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there."
49. The learned Senior Counsel also referred to the judgment of the Supreme Court in Captain Sube Singh v. Lt. Governor of Delhi reported in (2004) 6 SCC 440 to contend that when a statute vests certain power in an authority to be exercised in a particular manner, then the said authority has to exercise it only in the manner provided in the statute itself. Reference was made to the following passage found in paragraph 29, which is as follows:-
29. In Anjum M.H. Ghaswala4 a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka5.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.
50. The learned Senior Counsel also referred to the judgment of the Supreme Court in State of M.P. v. G.S. Dall and Flour Mills reported in 1992 Supp (1) SCC 150 for contending that executive instructions can supplement a statute or cover areas which the statute does not extend but it should not go contrary to the statute itself. Reference was made to the following passage found in paragraph 19, which is as follows:-
"19. The second ground on which the Full Bench has sought to invoke the instructions is also not correct. Executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect...........
51. Therefore, he submitted that it is not for the colleges to seek for any approval from the DGS for getting affiliated. He also submitted that the refusal by the DGS to grant approval to the courses run by them on the specious plea that the DGS by its order No.2 of 2007 dated 31.10.2007 imposed a fancy condition for grant of approval by quoting clause 1.4.2., which is incorporated in the impugned order.
52. Clause 1.4.2. reads as follows:-
"Clause 1.4.2. makes it clear that "only such institutes as promoted with a non-profit making objective by leading and reputed shipping companies, ship and maritime related management companies, Government institutes and ship-building companies... need apply for consideration and approval."
53. Adopting the arguments of the learned Senior Counsel, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioner in W.P.No.16485 of 2010 again submitted that Sections 76,78 and 79 of the M.S.Act will have to be read in the context of IMU Act and the DGS cannot claim any extra power which are not contemplated under the new enactment. In so far as the conditions of affiliation are concerned, it is exclusive jurisdiction of the University and the question of prior approval from some other authority including DGS does not arise. Infact DGS himself has been made only an ex officio member of the Executive Council as well as the Planning Board and it is unthinkable that the Parliament intend to give him further power to supervise the very University itself.
54. Mr.R.Suresh Kumar, learned counsel for the University submitted that even though the earlier judgment in Maritime Institutes case (cited supra), these issues have been squarely covered, but in the light of the judgment of the Division Bench, the rigor of the said decision may not continue to exist. But the findings rendered by the learned Judge is continued to be valid and the power of the University to question the circular issued by the DGS taking over the power of the University was kept intact by the Division Bench and the University was not precluded from challenging those circulars if it deems fit. Though the University had not separately challenged those circulars due to peculiar circumstances, since the issue has come up before this Court, it is open to this Court to decide the issue as the writ in the nature of mandamus sought for by the petitioners cannot be granted without rendering a finding on those issues. While deciding the case, the counter affidavit filed by the University can be taken note of in support of their submission.
55. The learned counsel referred to the judgment of the Supreme Court in Bharathidasan University v. All-India Council for Technical Education reported in (2001) 8 SCC 676 for contending that an University established by a State need not seek any approval from bodies like AICTE which are empowered to supervise and control the technical education system. In the present case, even a similar clause found under Section 10(k) of the All-India Council for Technical Education Act, 1987 do not find a place in the M.S.ACt and the said Act cannot be equated to an Act referable to Entry 66 of List I of the Seventh Schedule of the Constitution.
56. Mr.S.Venkateswaran, learned Senior Counsel leading Mr.Haja Mohideen Gisthi, submitted that the IMU Act itself recognises the power of DGS to issue CoC. The Division Bench has held that DGS is the authority for issuance of CoC and he could examine the qualification of persons desirous of obtaining the CoC. He further submitted that the notice dated 20.09.2009 has clearly stated that new approval for the courses will be considered only after IMU and DGS makes a joint inspection. The circular issued by the DGS dated 27.04.2009 is legal and valid. The certificate issued for various trades for which training was being rendered by institutions do not require any affiliation to the IMU and Diploma course in Nautical Science conducted by IMU is a preclude to the grant of certificate CoC. Further, the policy of the DGS is to provide approval to non-profit making institutions which are run by leading and reputed shipping companies, ship and maritime related management companies, Government institutes and ship building companies. Hence, he prayed for dismissal of the writ petitions filed by the petitioners.
57. In the light of the rival contentions, it has to be seen whether the contentions raised by the petitioners and supported by Indian Maritime University can be accepted by this Court.
58. However, the Court question that was raised viz., whether the University's power to grant affiliation to an institution and admit such institution for getting the privilege of the University in the grant of certificates in the form of degree or diploma and whether the DGS can be an authority for grant of prior approval is concerned, such a question is squarely answered by the Bharathidasan University's case (cited supra). Since the M.S.Act is not an Act, which is referable to Entry 66 of List I of Seventh Schedule of the Constitution and no power similar to that of Indian Medical Council Act, AICTE Act has been given, the University has to be considered only as an autonomous body in the matter of grant of affiliation and admitting institutions for getting the privilege of the University for the award of Degrees and Diplomas. Unless and until, Parliament decides by a statutorily empowered body for grant of prior approval as done in the case of IMC Act, AICTE Act and NCTE Act, the claim made by the DGS cannot be upheld. Until such time, the power to grant CoC is not taken away from the DGS and he can continue to evolve guidelines and standards for the grant of such certificates which includes even approving the institution which runs the courses, the syllabus prescribed, the nature of examination conducted and the nature of practical training imparted can be taken note of by deputing separate team for the specification of the power exercised by him. In order to avoid this duplication of work, it is in the interest of the University itself to associate the office of the DGS in the matter of inspection so that the students who are studying in such institutions are guaranteed with the Diplomas or Degrees received by them and ultimately take them to get a CoC issued by the DGS. But it is made clear that the power exercised by the IMU in the matter of grant of Degrees and Diplomas is purely academic and the grant of such Degrees and Diplomas will not ipso facto enable them to get a CoC or CDS from the DGS.
59. It can also be seen from the Rules prescribed by the DGS that the certificates relates to several Trades and not all the Trades require the institution to get Affiliation. Therefore, in such of those cases where the University affiliation for grant of Diploma or Degree are not required, the DGS can continue to exercise those power over those institutions which do not have any statutory obligation to affiliate. The statement made by the DGS under Para 1.4.2 in the order No.2 of 2007 that he will not approve such institutions on grounds stated by him do not confirm to the law laid by the Supreme Court in T.M.A.Pai Foundation's case (cited supra) however, laudable the objectives laid down by him may be. Ultimately, before the grant of CoC, he has to satisfy with the infra structure provided by the institution and also the nature of training imparted by them and therefore, he can always refuse to grant certificate to such of those institutions which do not confirm for being qualified to get such certificate. In essence, there is a total compartmentalization between imparting of education leading to Diplomas and Degrees and candidates getting certificates of CoC / CDS from the DGS as a matter of right merely because they are in possession of such academic qualifications.
60. In order to avoid the allegation that capitation fee has been collected and also that institutions are run without infrastructure, the University has to take extra care before grant of affiliation to such of those teaching shops which do not have minimum infrastructure facilities. While issuing the instructions for grant of affiliation, they must also direct the institutions to publish in the newspapers and in their prospectus that the Diploma or Degree awarded by them will not as a matter of right enable the candidates to get CoC from the DGS. This will make the students and parents not to fall prey to such teaching shops.
61. The contentions raised by both sides clearly shows there is a turf war between the University and DGS for controlling the affiliating institutions. Two institutions created by the Act of Parliament cannot have any such public controversy and it should be resolved in the manner known to law. The Supreme Court vide its judgment in Oil & Natural Gas Commission v. CCE reported in (2004) 6 SCC 437 has held that in such matters, there must be inter-ministerial meeting between the two contending parties and the matter must be resolved outside the Court. Paragraphs 3,4 and 8 may be usefully extracted below:
"3. The purpose of setting up this High-Powered Committee was to ensure that, as far as possible, the controversies between a Ministry and a Ministry of the Government of India, a Ministry and a public sector undertaking of the Government of India and between public sector undertakings themselves are resolved by recourse to the High-Powered Committee and that time-consuming and expensive litigation is avoided.
4. There are some doubts and problems that have arisen in the working out of these arrangements which require to be clarified and some creases ironed out. Some doubts persist as to the precise import and implications of the words and recourse to litigation should be avoided. It is clear that the order of this Court is not to the effect that " nor can that be done " so far as the Union of India and its statutory corporations are concerned, their statutory remedies are effaced. Indeed, the purpose of the constitution of the High-Powered Committee was not to take away those remedies. The relevant portion of the order reads: (SCC pp. 541-42, para 3) "3. We direct that the Government of India shall set up a committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of the Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to court or to a tribunal without the matter having been first examined by the Committee and its clearance for litigation. The Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline."
(emphasis supplied) It is abundantly clear that the machinery contemplated is only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee.
8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorised to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High-Powered Committee the Government proposes to nominate the Under-Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. The reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High-Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation."
62. Fortunately, under Section 45 of the IMU Act, the Central Government has power to resolve any difficulty arises in giving effect to the provisions of the Act and also it can make such provisions which are not inconsistent with the provisions of the IMU Act. Even the power to grant CoC continues to be vested with the DGS, Government of India under Section 5(vi) till the Central Government otherwise decides.
63. Therefore, it will not be out of order, if the Central Government is directed to convene a meeting by the Ministry of Shipping, Road Transport and Highways (Department of Shipping) Government of India inviting Director General of Shipping and the Vice-Chancellor of Indian Maritime University and after the discussion to issue appropriate notification under Section 45(1) of the IMU Act. But since the proviso to Section 45(1) says that power can be exercised only for three years from the date of commencement of the Act and the period may come to an end before December 2011, an expeditious decision should be taken in this regard keeping in mind the outer time limit fixed by the Parliament. The Supreme Court has held that even if any such directions are issued, such directions cannot go beyond the provisions of the Act under which the authorities are functioning.
64. Ultimately, the Central Government in the meeting convened as per the directions of this Court can issue appropriate guidelines for conducting the joint inspection by both authorities by the University as well as DGS so that a finality will be reached in the matter of recognising the institutions. This will be in the larger interest of the students and parents.
65. The writ petitions are disposed of with the above directions. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
14.10.2011 Index : Yes Internet : Yes svki To
1.The Vice Chancellor, Indian Maritime University, East Coast Road, Uthandi, Chennai - 600 119.
2.The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai 400 001.
K.CHANDRU,J.
svki ORDER IN W.P.Nos.15464, 15465, 16485 and 18894 of 2010 14.10.2011