Madras High Court
Maritime Institutes Association vs District Board on 17 November, 2009
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.11.2009
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
Writ Petition Nos.10912, 10913, 13687 and 13688 of 2009
M.P.Nos.2,3,2,3,4,2, and 3 of 2009
1.Maritime Institutes Association,
rep. by its Secretary,
C.V.Jothikumar ... Petitioner in W.P.Nos.10912 and 10913 of 2009
2.International Maritime Academy,
rep. by its Managing Director ... Petitioner in W.P.No.13687 and 13688 of 2009
v.
1. The Secretary,
Ministry of Shipping, Road Transport and
Highways (Department of Shipping),
Government of India,
No.1, Parliament Street,
New Delhi 110 001.
2. The Vice Chancellor,
Indian Maritime University,
East Coast Road, Uthandi,
Chennai 600 119.
3. The Director General of Shipping,
Jahaz Bhavan, Walchand Hirachand
Marg, Mumbai 400 001. ... Respondents in all W.Ps.
Writ Petitions filed under Article 226 of the Constitution of India praying to issue Writs of Certiorarified Mandamus, to call for the records pertaining to the impugned notices No.11-TR(18) 2004-II, dated 29.05.2009 and 27.04.2009 on the file of the third respondent, quash the same and consequently, forbear the first and third respondents herein from in any manner interfering with the second respondent's power of affiliation, approval of courses, regulation, supervision of the member-Institutes of the petitioners-association.
For petitioners in
W.P.Nos.10912 & 10913/2009 : Mr.R.Krishnamoorthy,SC
for Mr.M.S.Ramesh
For Petitioners in
W.P.Nos.13687 & 13688/2009 : Mr.R.Thyagarajan, SC
for Mr.M.S.Ramesh
For Respondents 1 and 3 : Mr.S.Venkateswaran, SC
assisted by
Mr.Haja Mohideen Gisthi
For 2nd Respondent : Mr.A.Muralidharan
O R D E R
All the Writ Petitions relate to the power of the Director General of Shipping, Mumbai, in granting approval of courses, recognition and affiliation of the institutes offering maritime studies, regulating the intake capacity of students to Maritime Institutions, pre-sea and post-sea training, determination of the eligibility criteria, etc., vis-a-vis the power of the Indian Maritime University, Chennai. As pleadings and submissions are common, they are being disposed of by a common order.
2. According to the petitioner in W.P.Nos.10912 and 10913 of 2009, it is an Association of Maritime Training Institutes registered under Tamil Nadu Act 27 of 1975 and has about 16 members, who are all Educational Institutions conducting approved courses pertaining to Pre-Sea Training. The petitioner in W.P.Nos.13687 and 13688 of 2009 is an Academy. According to the petitioners, Prior to 2008, there was no Act or rules to facilitate, regulate or promote Maritime studies in the Country. However, courses such as, B.E. Marine Engineering, B.Sc. (Nautical Science) and Diploma in Nautical Science, leading to B.Sc., Degree in Nautical Science, were offered by the institutions affiliated to the respective Universities. After the enactment of the Indian Maritime Universities Act, 2008 (in short "the IMU Act"), the powers of approval, affiliation, etc., which were hitherto exercised by the Director General of Shipping, Mumbai (in short 'DGS') in association with the approved Universities, have been transferred to Indian Maritime University (in short "IMU"), established through an Act of Parliament on 11.11.2008, with an object to establish and incorporate a teaching and affiliating University at the National Level, to facilitate and promote maritime studies and research. According to the petitioners, Section 5 of the IMU Act, authorises the University with various powers including the following:
a) to provide for instruction;
b) to establish and maintain campuses, colleges and institutions;
c) to grant honorary degrees and grant diplomas for Certificates (other than Certificate of Competency of Sea-farers, which shall be continue to be issued by the Director General of Shipping);
d) to inspect recognised maritime Institutions through suitable machinery established for the purpose and to take measures to ensure that proper standards of instructions, teaching and training are maintained by them;
e) to control and regulate admission of students for various courses of study in Departments, recognized institutions, schools and centers of studies;
f) to assess needs of the students in terms of subjects, fields of specialization and levels of education;
3. The petitioners have further contended that Section 19(4) and 19(5) of the IMU Act provides for formation of "the Academic Council" and "the Board of Affiliation and Recognition". While the "Academic Council" under Section 22 of the Act, has the powers of control and supervision and be responsible for the maintenance of standards of instruction, education and examination within the University and shall exercise and perform such other powers and duties as may be conferred or imposed upon it, under Section 22, the "Board of Affiliation and Recognition" shall be responsible for admitting colleges and Institutions to the privileges of the Indian Maritime University under Section 23.
4. The petitioners have further submitted that since the IMU Act, 2008 is a self contained Act with powers to regulate, supervise and approve Maritime Educational Institutions and its various pre-sea courses, for which, the members of the Petitioners-Association/Institutions had applied for Affiliation and approval of various pre-sea courses as well as for additional intake capacity of students. According to the petitioners, pursuant to the applications submitted by various institutions, the Academic Council/Inspection Committee of the University has conducted inspections of these Institutes and submitted their recommendations and observations. At that stage, the Director General of Shipping, Mumbai, has issued the impugned notices, dated 27.04.2009 and 29.05.2009, restricting the powers of the IMU and observed that there will be a Monitoring and Implementation Committee (in short "MIC"), constituting representatives from DGS and IMU and that this MIC will have equal representation from both the organisations. It is further stated that the new approvals and additional capacities for Diploma in Nautical Science leading to B.Sc. Degree in Nautical Science course will be considered only after joint inspection by the 2nd and 3rd respondents.
5. It is the contention of the petitioners that the Director General of Shipping is a subordinate officer under the Secretary to Government, Ministry of Shipping, Road Transport and Highways Department, New Delhi, first respondent, whereas, the Vice Chancellor, IMU, is an independent statutory authority and therefore, the DGS cannot usurp the powers of the University. It is the further contention of the petitioners that the DGS does not have any independent powers to inspect or monitor Maritime Institutions, approve the courses, regulate admission, prescribe the eligibility criteria, etc., under any statute in general or under the Merchant Shipping Act, 1958 and the Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1998. The petitioners have further contended that prior to the enactment of IMU Act, 2008, the third respondent, DGS, had been granting recognition to the Maritime institutions and approval of various courses.
6. According to the Writ Petitioners, the object of Merchant Shipping Act, 1958 is to 'foster the development and ensure the efficient maintenance of an Indian Mercantile Marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping. There is no provision of law under the Merchant Shipping Act, 1958, which empowers the respondents 1 and 3 with responsibilities of regulation, supervision or approval of maritime educational institutions. Even assuming that there are powers vested with DGS, under the Merchant Shipping Act, the same are deemed to have been repealed in view of the latter enactment of Indian Maritime University Act, 2008.
Affidavits and counter affidavits have been filed. The pleadings and submissions are as follows:
7. Mr. R. Krishnamoorthv, learned Senior Counsel appearing for the Writ Petitioners in W.P.No.10912 and 10913 of 2009, submitted that under the preamble of the IMU Act, Indian Maritime University Act, 2008 is a self contained Central Act, with an object to establish and incorporate a teaching and affiliating University at the National Level to facilitate and promote maritime studies and research. Referring to various definitions, under Section 2 of the IMU Act, which includes (c)Board of Affiliation, (f) Certification of Competency, (h) College, (k) Director General of Shipping, (r) Institution and (w) recognized Institution and the powers of the University, he submitted that under Section 5 of the IMU Act, the University has got exclusive power to provide for instruction in branches of learning and research, to make provision for recognised institutions, grant diplomas for certificates (other than COC of Sea-farers) and confer degrees, recognise Institutions, inspect an recognised Institution through suitable machinery established for the purpose, prescribe fees for recognition, control and regulate admission of students for various study in departments, recognised institutions, confer autonomous status, etc. He also submitted that since IMU is vested with all the powers of granting/conferring diplomas, certificates and degrees, including the power to cause inspection of an Institution, the claim of the DGS to have an exclusive Monitoring/Inspecting Committee for framing guidelines for regulating the Institutes recognised by the IMU cannot be sustained. In this context, learned Senior Counsel invited the attention of this Court to the powers of the IMU, in particular, to that of the Vice Chancellor, who is vested with the powers to cause an inspection under Section 12(5) of the IMU Act. He therefore, submitted that the impugned orders, providing for joint inspection with equal representation of the Director General of Shipping and IMU is nothing but usurping the powers of the University.
8. Referring to Section 19 of the IMU Act, learned Senior Counsel submitted that the statutes provide for various Authorities including the Executive Council, Academic Council and the Board of Affiliation and Recognition and under Section 22 (1) of the IMU Act, the Academic Council is empowered to control and supervise the standards of instruction, education and examination in which, the DGS as well as the Secretary to Government, Ministry of Shipping and Road Transport and Highways, (Department of Shipping), Government of India, New Delhi, 1st respondent are members, as per Statute No.14 of the IMU Act. Likewise, the DGS and the 1st respondent are members in the Executive Council, responsible for the conduct of all Administrative affairs of the University and that the Planning Board is responsible for reviewing the educational programmes and organizing the structure of education of the University. In these statutory background, he submitted that if at all the DGS or the 1st respondent has any say with regard to regulation, monitoring or inspecting the Maritime Institutes, it can only be through the aforesaid Committees in which they are members and cannot unilaterally issue the impugned notices. According to him, the only power that the DGS is vested under the IMU Act is to issue Certificate of Competency to Sea-farers under Section 5 (vi) of the IMU Act read with Section 79(2) of the Merchant Shipping Act, 1958.
9. Mr.R.Thyagarajan, Learned Senior Counsel for the petitioners in W.P.Nos.13687 and 13688 of 2009, submitted that prior to 2008, there was no statute or rules to facilitate, regulate and promote maritime studies in India. The Petitioner Institute was already conducting pre-sea courses and that they are deemed to have been approved by IMU as per Clause 1.4.1 of the IMU Guidelines and since the impugned orders issued by the DGS encroaches upon the rights of the IMU, under which, the Institutes are affiliated, consequentially they affect the rights of the maritime institutes to get approval and recognition of the institutions, approval of the courses, additional intake, affiliation for the institutes, aggrieved by the inspection to be done by MIC, etc., and therefore, submitted that the petitioners have locus standi to file the present Writ Petitions. He also pointed out that one of the members of the Association find place in the DGS M.S.Notice No.21/2009 and therefore the Writ Petitions are maintainable.
10. Taking this Court through the various statutory provisions dealing with the powers of the University, particularly, Section 5 of IMU Act, the role of the Academic Council, Board of Affiliation and Recognition, as per Sections 19(4), 19(5) and 33 of the IMU Act, learned Senior Counsel submitted that IMU Act, 2008 is a complete code by itself comprising with it the powers to make provision for instruction, recognise maritime institutions, regulate, supervise and approve maritime educational institutions and its various Pre-sea courses.
11. Learned Senior Counsel further submitted that the University has been vested with the Power to recognise an institution of higher learning, to inspect recognised institutions to control and regulate admission of students for various courses of study in the recognised institutions, to co- operate or collaborate or associate, with any other University or authority or institution of higher learning, within India or abroad in such manner and for such purposes, as the university may determine apart from the other powers enumerated in the Act.
12. Learned Senior Counsel further submitted that Section 5 (vi) of the IMU Act carves out the power to issue the Certificate of Competency to Seafarers, to be issued by the Director General of Shipping, Government of India, till the Central Government otherwise decides. The IMU Act, 2008 has conferred only this specified power on the Director General of Shipping viz., to issue the Certificate of Competency. He therefore, submitted that the scope and the authority of the Director General of Shipping, is thus circumscribed by sub-clause (vi) of Section 5 of the IMU Act and whatever might have been the position prior to the introduction of IMU Act, 2008, the powers of the Director General of Shipping having regard to the object of IMU Act and the powers of the University as provided in Section 5 of IMU Act, has been cribbed, cabined and confined only to what is specified in the said Section. He further submitted that the language in Section 5 (vi) of the IMU Act is very clear, empowering the DGS to continue to issue the Certificate of competency and does not empower him to do other acts of regulating or monitoring the pre-sea courses or the basic education enabling he candidate to apply for CoC. In this context, he relied on a decision of the Apex court in J.P.Bansal v. State of Raiasthan reported in 2003 (5) SCC 134, wherein, it has been held that where the language is clear and when there is no obscurity, the intention of the legislature is to be gathered from the language used. For the same proposition, he also placed reliance on Commissioner of Income Tax Kerala v. Tara Agencies reported in (2007) 6 SCC 429.
13. On the powers of the Vice-Chancellor to cause inspection, maintenance of standards of education, control and supervision of maritime institutions, Board of affiliation and recognition, etc., learned Senior Counsel referred to Sections 12(5), 22 and 23 of IMU Act. He further submitted that Section 79 (2) of the Merchant Shipping Act, 1958 empowers the DGS only to issue a Certificate of Competency and his power has been carved out of Section 5 (vi) of the IMU Act and not more than that. Though DGS is a statutory authority appointed under Section 7 of the Merchant Shipping Act, learned Senior Counsel submitted that the powers of the DGS to issue the impugned notices are conspicuously absent in IMU Act or Merchant Shipping Act or in any of the Rules framed thereunder. The Monitoring and Implementation Committee is not provided either in Merchant Shipping Act or in IMU Act of 2008. There is also no provision for joint inspection or any equal participation from both DGS and IMU. He further submitted that approval of an institution and additional intake are matters within the powers of the University and not under the control of DGS, as per IMU Act.
14. Relying on a judgment of the Apex Court in Shrimati Hira Devi & others Vs District Board, Shahiahanpur reported in AIR 1952 SC 362, learned Senior Counsel submitted that the powers of the statutory authority has to be found within the four corners of the Statute itself and that it is not the duty of the Court to stretch the words used by the Legislature to fill in the gaps or omissions in the provisions of the Act. The judgment in State of Uttar Pradesh Vs Sinahara Sirrah & others reported in AIR 1964 SC 358 was also relied upon, wherein the Apex court held that if a statute has conferred a power to do an act and has laid down the method in which power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.
15. Placing reliance on a decision of the Supreme Court in A.R.Antulay Vs Ramdas Sriniwas Navak & another reported in (1984) 2 SCC 500 and State of Kerala Vs Mathai Verghese & others reported in (1986) 4 SCC 746, learned Senior Counsel submitted that the Court should confine only to the meaning intended in the provisions of Sections 79, 81 and 85 of the Merchant Shipping Act and cannot rewrite, recast or redesign the provisions to suit the convenience of the respondents 1 and 3 and by issuing the impugned notices, there is an attempt to usurp the powers of the University, in the matter of regulating maritime education.
16. Placing reliance on a decision in Byram Pestonji Gariwala Vs Union Bank of India & others reported in (1992) 1 SCC 31, learned Senior Counsel further submitted that legislature does not effect any fundamental change in long accepted system of law and practice without using express language to that effect in the statute. He further submitted that the impugned notices are nothing but executive instructions and clarifications and that these instructions cannot go against the statutory provisions, so as to whittle down the effect of Section 5 of the IMU Act, as per the principles laid down in the case of State of M.P. Vs G.S.Dall and flour Mills reported in 1992 Supp (1) SCC 150 and he also submitted that the Statutory functionary must act in a manner, as laid down under the Act, as held in State Inspector of Police Vs Surva Sankaram Karri reported in (2006) 7 SCC 172.
17. Learned Senior Counsel further submitted that though DGS was granting approvals of pre-sea courses, after the enactment of IMU Act, DGS cannot claim any independent right or exercise power, in view of the powers exercised by him earlier, as held in Harbhaian Singh Vs Press Council of India & others reported in (2002) 3 SCC 722, wherein, the Apex Court observed that in the absence of any material, a different meaning cannot be ascribed by tracing the history of the legislation and attributing object and legislative intendment, which suits the court's own view. He further submitted that whatever be the position prior to November, 2008, after coming into force of the IMU Act, the power of the DGS is narrowed down only to the issue of Certificate of Competency under Section 5(vi) of the IMU Act and it cannot be beyond that.
18. Learned Senior Counsel further submitted that a reading of the notice, dated 29.05.2009, in the light of the provisions of IMU Act, 2008 would clearly indicate that the DGS has acted beyond his jurisdiction and power exercisable by him in terms of Section 5 (vi) of the IMU Act. According to the counsel, the brief outline given in para 2 of the notice dated 29.05.2009 does not reflect the true and correct position. He submitted that the candidates for Phase I are trained for one year course (18 subjects in syllabus) conducted as class room training in the affiliated institutes. According to the learned Senior Counsel, at this stage, the candidate is not a Seafarer. He is only a student. If he fails in all his subjects, he can still approach a shipping company for a job or training and will also get his stipend. If the candidate undergoes training for 18 months and after passing of Discharge learning programme (DLP) (3, 4 and 5th semesters) he can join the preparatory/competency course of 4 months. If he does not pass the DLP, he can still join the preparatory course with 30 months training. This preparatory course is for the Certificate of Competency called second mate function. According to learned counsel, the role of DGS, starts only when the candidate appears for COC examination and not even in the preparatory course stage conducted by the DGS approved course. In other words, he submitted that with the required number of months of sea experience, a candidate can join the preparatory course for COC examination, irrespective of pass or fail in Xth, Xllth or Degree/Diploma and the DGS has no control over the candidate during pre-sea course, which he undertakes in any maritime institution. The assessment by the DGS is only regarding the experience and preparatory course examination and it can be made only when the candidate intends to become a Seafarer.
19. Taking this Court through the definition, "Seafarer", means, "a sailor or mariner who travels in the ship or other sea going vessel", and placing reliance on a decision in Nelson Motis v. Union of India reported in 1992 (4) SCC 711, learned Senior Counsel submitted that the language used in Rule 47 of the STCW Rules can be applied only to mean only "Seafarers" and not students. He further submitted Rule 47 of the STCW Rules pertains only to training and assessment of "Seafarers" and students pursuing diploma and degree courses, which end up with a Diploma Certificate or Degree-certificate cannot be referred to as a "Seafarer".
20. Learned Senior Counsel for the petitioners further submitted Chapters II to VIII and paragraphs 4 to 6 of Section A-1/6 of the STCW Code pertains only to Seafarers and "in-service training" of a "Seafarer" and the incorporation of these provisions of STCW Code in Rule 47 of the STCW Rules, is only to train and assess these Seafarers for certification of competency. The impugned orders are in the form of executive instructions and they cannot override the statutory provisions. In support of the contention, the judgment in State of Maharashtra Vs Jaaannath Achvut Karandikar reported in 1989 Supp (1) SCC 393 was relied on, wherein it is held that Executive instructions may supplement, but cannot supplant the statutory rules. He therefore submitted that even under Rule 47, the role of DGS would be restricted only to ascertain at the time of issuance of CoC, as to whether the training and assessment of Seafarers for Certification is in accordance with Chapters II to VIII and paragraphs 4 to 6 of Section A-1/6 of the STCW Code. According to him, Rule 47 is restricted only to "Seafarers" and not to students pursuing the pre-sea courses under IMU affiliated training Institutes.
21. Learned Senior Counsel further submitted that under Section 1(f) of the Merchant Shipping Act, 1958, Certificate of competency is defined as an appropriate certificate issued by the Government of India for the purpose of Rule 5, which deals with the issuance of Certificate of Competency. Rule 47 of the Merchant Shipping (Standards of Training, Certification of Watch keeping for Seafarers) Rules, 1998 empowers the DGS to supervise, all training and assessment of Seafarers for the purpose of certification, in accordance with the programmes that are necessary to achieve the standards of competency, as specified in Chapter II to VIII of the STCW Code and that the training and assessment of Seafarers is conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A 1/6 of STCW Code. According to the learned Senior Counsel, a reading of this rule makes it clear that the Power of supervision conferred on the Director General of Shipping is confined only to supervise that the training and assessment of Seafarers for the purpose of certification is provided under the Rule. In other words, the power of supervision itself is confined only for the purpose of issuance of Certificate of Competency.
22. Learned Senior Counsel further submitted that the DGS has usurped the powers of the IMU by issuing the impugned orders, particularly when the IMU is vested with the powers of regulating, monitoring and inspecting training Institutes, under Section 5 of the IMU Act, as per the principles laid down in Union of India & another Vs Deoki Nandan Aggarwal reported in 1992 Supp (1) SCC 323. He submitted that the eligibility criteria to be prescribed by the DGS and for the pre-sea training course, comprising of semesters 1 and 2, amounts to transgressing the powers of the University.
23. Referring to the Gazettee notification, dated 17.12.1960, learned Senior Counsel submitted that not all the powers have been delegated to DGS, but only the powers contained in Sections 79(2) and 85, i.e., dealing with issuance of CoC and its cancellation alone were delegated. Moreover, the powers to appoint persons for the purpose of examining the qualifications of persons desirous of obtaining Certificates of Competency, that is vested with the Central Government under Section 79(1) of the Merchant Shipping Act has not been delegated to the DGS in the said Gazette Notification.
24. Regarding the claim of the DGS that he has been authorised with the power to issue the impugned notices on the basis of the minutes of the meeting held on 20.04.2009, learned Senior Counsel submitted that the minutes of the said meeting cannot override the powers conferred on IMU under the IMU Act. According to him, each and every word in the enactment should be given the appropriate meaning in the context in which it is used, and no word should be left as in-apposite as held in Gurudevdatta VKSSS Mary Adit Vs State of Maharashtra reported in (2001) 4 SCC 534 and in Padma Sundara Rao & others Vs State of TN& others reported in (2002) 3 SCC 533. He submitted that the phrase "courses preparatory to CoC" introduced in the said meeting would mean only those competency courses, for which, CoC is issued for the various Grades referred to in Section 78 of the Merchant Shipping Act, 1958 read with Merchant Shipping (Certificate of Competency) Rules, 1989. According to him, executive instructions issued by DGS, pursuant to the meeting held on 20.04.2009, cannot confer any jurisdiction on DGS, on any other matters, other than, what is specifically conferred on him under Section 5(vi) of the IMU Act.
25. Mr.A.Muraleedharan, learned counsel for the Indian Maritime University submitted that under the Indian Maritime University Act, 2008, the University has not been granted powers to issue the Certificate of Competency to eligible candidates, which power continuous to be vested with the Director General of Shipping, Mumbai, the third respondent. According to him, any course conducted by the Maritime institutions, enabling a candidate for being considered for grant of Certificate of Competency, is subject to the approval of the third respondent, viz., the Director General of Shipping, Mumbai and therefore, the Institutes offering the courses and training should also be inspected and approved by the DGS, the designated authority for implementation of STCW 95 Convention. He further submitted that if a candidate undergoes a course leading to a degree or diploma in maritime studies and at the end of which, the candidate has no intention of obtaining a Certificate of Competency, in such an event, the course and the candidates are subject to the control of the University alone and not concerned with the DGS.
26. On the basis of the counter affidavits submitted by the Deputy Chief Surveyor-cum-Sr.Deputy Director General (Tech), Mercantile Marine Department, Chennai, Mr.Venkateswaran, learned Senior Counsel appearing for the Director General of Shipping, Mumbai and the Central Government, submitted that as per Ministry's letter, dated 23.06.2009, the Secretary to Government, Ministry of Shipping, Road Transport and Highways, Government of India, New Delhi, first respondent has authorized the DGS to take all steps to defend the interest of the first respondent also.
27. Inviting the attention of this Court to the Gazettee Notification, dated 17.12.1960, published in Part II Section 5 (ii) of the Gazette of India, learned Senior Counsel for respondents 1 and 3 submitted that the Government, in exercise of their powers conferred upon it, by Section 7(2) of the Merchant Shipping Act, 1958, has directed that the power, authority or jurisdiction exercisable by the Central Government under the above Gazettee Notification, shall also be exercisable by the Director General of Shipping, Mumbai, the third respondent. He further submitted that the above Gazettee Notification includes Sections 79(2), 81 and 85 of the Merchant Shipping Act, 1958.
28. At the foremost, taking this Court through the challenge made in the Writ petitions mainly relating to constitution of Monitoring and Implementation Committee (MIC), represented by the Directorate General of Shipping (DGS) and the Indian Maritime University (IMU) with equal representation from both the organisations and the further condition that the approvals and additional capacities for maritime courses would be considered only after joint inspection by IMU and DGS, learned Senior Counsel for the respondents 1 and 3 submitted that these are matters, which are strictly between the 2nd and 3rd respondents and therefore, the Writ Petitioners have locus standi to maintain the writ petitions, particularly when the University has no objection to the role of the respondents 1 and 3 in regulating, monitoring, inspecting the institutions, which are initially approved by DGS and deemed to have been approved by the Maritime University. If the University seeks for any assistance or guidance from DGS to be issued from time to time, and when the University has no objection in following such guidelines issued by the DGS, the petitioners, who are third parties, have no right to question their internal arrangement or challenge the circulars issued by DGS.
29. As regards issuance of Certificate of Competency (COC) to Deck Officers and Marine Engineers, learned Senior Counsel submitted that under Section 79 of the Merchant Shipping Act, 1958, the Central Government or a person duly authorized by it, in this behalf can alone appoint persons for the purpose of examining the qualifications of the candidates for obtaining Certificates of Competency under Section 78 of the Merchant Shipping Act, 1958. He further submitted that Section 87 of the said Act provides for the Central Government to make rules in regard to Part VI relating to Certificates of Competency. The Director General of Shipping, Mumbai is empowered to grant Certificates of Competency and the institutes for the purpose of training candidates to become eligible for Certificate of Competency(COC) were also being run by the Government under the control and supervision of DGS.
30. He further submitted that about 1997, there were only three institutes for training officers for merchant navy, namely, T.S. Duffrein for Deck Candidates (Nautical) and Directorate of Marine Engineering Training for Engineers, both in Kolkatta and Mumbai. Lateron, two marine engineering training institutes have become Marine Engineering Research Institutes. Training Ship Dufferin became T.S.Chanakya. Along with this, the LBS College of Advanced Maritime Studies and Research, Mumbai was set up for the post-sea training for the Seafarers. He further submitted that in 1997, the respondents 1 and 3, in response to the request of the Ship owners, decided to expand the facilities for training by permitting private participation in maritime training.
31. Learned senior counsel for the respondents 1 and 3 further submitted that on 07.02.1997 the first respondent decided to implement a new procedure for approval of training institutes set up in the private sector for imparting pre-sea training to ratings. By these guidelines, it was set down that any private party setting up a training institute will have to comply with the minimum standards laid down by the DGS in conformity with the requirements of the International Convention viz. STCW Code, 1995. It was also clarified that recognition would be granted following an inspection by the academic council/team of experts nominated by the DGS. Guidelines were framed by the Central Government, 1st Respondent, by its order, dated 7th February, 1997 and the DGS was given the power for recognition of training institutes and to maintain the minimum standards of training in conformity with the requirements of STCW Code, 1995, which has been ratified by the Government of India. Under the Indian Maritime University Act, 2008, the Indian Maritime University, the second respondent, is empowered only to grant degrees, diplomas and certificates other than Certificates of Competencies of Seafarers in addition to other powers, such as, to establish and maintain campuses, hostels, confer honorary degrees, etc.
32. He further submitted that the Government of India, first respondent promulgated, under Section 457 of the Merchant Shipping Act, 1958, the Merchant Shipping (Continuous Discharge Certificate cum Seafarers Identity Document) Rules, 2001 to deal with various aspects which arose for the purpose of regulation of the process of granting of Continuous Discharge Certificate. Referring to Rule 3(b) of the above rules, he submitted that "approved institute" means a training institute approved by the Director General of Shipping, 3rd Respondent and referring to Section 5(c) of the Indian Maritime University Act, he added that the University is only authorized for grant of degrees and diplomas "other than Certificate of Competency of Seafarers, which shall be continued to be issued by the Director General of Shipping, Mumbai.
33. Learned Senior Counsel submitted that the Director General of Shipping, Mumbai, alone is the statutory authority under the Merchant Shipping Act, 1958, who has been vested with the power, authority or jurisdiction in regard to various provisions of the Merchant Shipping Act, 1958, exercisable by the 1st Respondent under or in relation to the provisions of the Merchant Shipping Act, which inter-alia includes Sections 79(2), 81 and 85. According to the learned Senior Counsel, the provisions of the Indian Maritime University Act cannot override the provisions of the Merchant Shipping Act, 1958 and that is why, the maritime administration of the Government of India has retained the powers to issue Certificates of Competencies to ensure that such certificates are recognised by the other maritime nations of the world.
34. He submitted that the International Maritime Organisation (IMO) was established under the Chapter of the United Nations. Under the aegis of the International Organisation, there was a conference of parties to the International Convention on Standards of Training, Certification and Watch-keeping (STCW) for Seafarers in 1978. He further submitted that with the adoption of International Convention on Standards of Training, Certification and Watch-keeping (STCW) for Seafarers in 1978, signed at London on 7th July 1978, it became obligatory on the part of Central Government to implement the above international treaty/agreement/convention. The Government of India has ratified the above Convention on 14th August, 1986 and consequently, the Merchant Shipping Act was amended by Act 13 of 1987 to incorporate the provisions of the above International Convention in the National Maritime Legislation, viz., Merchant Shipping Act, 1958. This Convention was amended from time to time, the last of such amendment was made in 1997.
35. Referring to Article 2 of the Convention which defines, "Party" to mean a State for which the Convention has entered into force and the definition to the word "Administration", means the Government of the Party, whose flag the ship is entitled to fly, learned Senior Counsel submitted that the Convention deals with the qualifications, the nature of the training and standards in regard to Certificates of Competencies and Article VI very specifically mentions that Certificates shall be issued to the officers or ratings to the satisfaction of the administration, to meet the requirements for service, age, medical fitness, training, qualification and examinations, in accordance with the appropriate provisions of the Convention. According to the learned Senior Counsel, the Convention therefore requires the maritime administration to be responsible for the training, standards, examination and fitness of the Certificate holders, under Regulation 1/2 (3) and the endorsement required by Article VI of the Convention shall be issued only if all the requirements of the Convention have been complied with. He further submitted that Maritime Administration is now vested with the Director General of Shipping and therefore, he has every power and authority to regulate admission, monitor the institutions by inspection and also decide the intake of the candidates in every maritime institution, approved by them and to be approved in future.
36. Referring to the Regulations 1/6, 1/10, Section A-1/4,A -1/6, A-I/8, A-I/12, in STCW code, learned Senior Counsel further submitted that all matters relating to training and assessment, it is the responsibility of the maritime administration, i.e., the DGS. That is why, the Government of India have issued a Gazette Notification in exercise of powers under Sections 87, 98, 457 and 458 of the Merchant Shipping Act, 1958, framing the rules, dated 20th April, 1998, called the Merchant Shipping (Standards of Certification and Watchkeeping for Seafarers) Rules, 1998.
37. Referring to Rule 47 of the Merchant Shipping the Merchant Shipping (Continuous Discharge Certificate cum Seafarers Identity Document) Rules, 2001, learned Senior Counsel submitted that India being the Signatory to this Convention shall ensure that the training and assessment of Seafarers for certification under the Convention is: (1) structured in accordance with the written programmes, including such methods and media of delivery, procedures and course material as are necessary to achieve the prescribed standards of competence; and (2) conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4, 5 and 6 of Section A-I/6 of STCW Code.
38. Learned Senior Counsel further submitted that Chapter II and III of the STCW Convention lays down the requirements for issuance of Certificate of Competencies of various grades for the Nautical Department and the Engineering Department personnel including ratings. These requirements include the minimum age, approved training programme (approved by the Maritime Administration of the Party) which includes on board training, approved sea-going service (approved by the Maritime Administration of the Party), any other requirements during the required sea going service, approved education and training (approved by the Maritime Administration of the Party), examination and assessment to ensure that the candidates meet the standards of competence as prescribed in the relevant section of the STCW Code. According to him, all the above requirements for each grade of Certificate of Competency are required to be approved, monitored, regulated by the Maritime Administration of the Party, ie., signatory to this Convention. Maritime Administration of the Party in this case, is the Director General of Shipping.
39. Learned Senior Counsel further submitted that Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1998, came into force with effect from 01.08.1998 and it defines the role of Maritime Administration i.e. the Director General of Shipping in line with the provisions of the STCW Convention. Under the rules, the term 'approved' is defined as 'approved by the Central Government' and Training and assessment programme' means, the programme of training and assessment of Seafarers as approved by the Central Government.
40. The Indian Maritime University Act, 2008 has not superceded any of the powers conferred on the Maritime Administration, i.e., DGS, under the Merchant Shipping Act, 1958 or the rules framed thereunder. Even before the promulgation of IMU Act, degrees or diplomas were awarded by the Universities, to whom the maritime institutes were affiliated. As on date, the institutes conducting maritime education and training courses, approved by the DGS, are affiliated to 13 universities. The IMU Act, 2008 has in no way changed the role of Director General of Shipping, which is clearly defined under the STCW Convention as regard to the Standards of Training, Certification and Watchkeeping for Seafarers.
41. He further submitted that Rule 6(1) of MS(STCW) Rules provides that the Chief Examiner concerned shall ensure that the training and assessment of candidates for certification as a Seafarer are administered, supervised and monitored in accordance with the provisions of the Act, the above rules and the STCW Code, and those persons responsible for imparting the training and assessment as required under the STCW Convention, are appropriately qualified for the type and level of training and assessment of competence in accordance with the provisions of the Act, the said rules and the STCW Code. The Chief Examiner means Chief Surveyor with the Government of India and Nautical Advisor to the Government of India in the Directorate General of Shipping.
42. He further submitted that it is the responsibility of the Maritime Administration to approve the total package of the schemes under approved education and training as laid down in the STCW Convention. The total package includes pre-sea training, on-board training during sea service and post-sea course, written and oral examination. If the marine engineering course is not approved by the Director General of Shipping, the candidates, who undergo such courses are not entitled for issuance of CDC and their degree qualification does not make them eligible for Certificates of Competency examination.
43. Inviting the attention of this Court to the various provisions in the STCW code, he submitted that the training offered by these institutions should be in conformity with the STCW code. In this context, he referred to Chapter II of the Maritime Education Training & Assessment (META) Manual Vol.1, as approved by the Central Government, which deals with the Master and Deck Department. Section M-II/1 specifies the 3 main streams of entry in the deck department to qualify as a 2nd Mate of a foreign going ship.
44. He also referred to Chapter III of the Merchant Shipping (Standards of Training, Certification and Watchkeeping) Rules, 1998 dealing with the engineering department, which prescribes that every candidate for certification in the engineering side shall have completed approved education and training for a period of at least thirty months as provided in an approved training and assessment programme, including on-board training documented in an approved training record book and meet the standards of competence as specified in section A-III/1 of the STCW Code.
45. He therefore submitted that for the 3 schemes for certification as 2nd mate foreign going, engineering department, seaman and on the deck side, the minimum qualification is B.Sc. in Nautical Science or Diploma in Nautical Science or Deck Rating. He further submitted that all the courses must be subject to approval by DGS. It is also submitted that in the case of marine engineering, approval is required by the DGS. For the rest of the engineering courses, approval is not required by DGS. He further submitted the after completion of a degree or diploma in Mechanical Engineering from an AICTE approved college, the candidates have to undergo pre-sea training prescribed by DGS. Both for the deck and engine cadets, who undergo the pre-sea training prescribed and approved by the DGS, the ship-board training at sea is for a much lesser period and that they are given certain exemptions in the written examinations of the Certificate of Competency.
46. Learned Senior Counsel for the respondents 1 and 3 submitted that the Diploma in Nautical Science is one of the pre-sea nautical courses prescribed by DGS for being eligible for the 2nd Mate (Foreign Going) Certificate of Competency examination. In the M.S. Notice 21/2009, the DGS has only laid down that the Diploma in Nautical Science course from August 2009 batch onwards will be conducted by IMU and not by Indira Gandhi National Open University, as decided by the Ministry of Shipping.
47. In the impugned order, the DGS has laid down that this course will be monitored and implemented by a Committee (Monitoring and Implementation Committee) consisting of both the University and the DG's representatives in equal number and the new approvals and additional capacities for this course will be considered only after a joint inspection by IMU and DGS. The decision to conduct the Diploma in Nautical Science programme with IMU was taken by the Government of India and Section 50 of the IMU Act vests full powers with the Government of India in policy matters, which states that that the University shall in discharge of its functions under the IMU Act, be bound by such directions on questions of policy as the Central Government may give in writing, from time to time, and the decision of the Central Government as to whether a question is one of policy or not, shall be final. He further submitted that in a meeting held on 20.04.2009 by the Central Government, in which the 2nd respondent-University and DGS had participated it was decided that DGS would continue to formulate guidelines for courses preparatory to COC and regulate approval of new capacities in IMU constituent/affiliated Institutions, which will be routed through to the DGS Collegium and therefore the DGS has the authority to issue the impugned notices.
48. He therefore submitted that the impugned orders do not impinge upon the right of the University to conduct courses leading to conferment of degree/diplomas. As provided in the IMU Act, the Certificate of Competencies of Seafarers shall continue to be issued by DGS and any pre-sea diploma/degree training which ultimately leads to the Certificate of Competency has to be conducted in an institute approved by the DGS or else the candidates will not be considered for grant of Competency Certificate.
49. He further submitted that the second impugned Circular which is the DGS Notice, dated 27.04.09, prescribes that approval of new capacities in IMU constituent/affiliated institutions for Certificate of Competency oriented courses will be routed through BAR of IMU to the Collegium of DGS to facilitate orderly and sustainable development of the job market and this was issued because when pre-sea training leads to Certificate after the completion of the presea training, it is the ship board training at sea, prior to obtaining the CoC. It is the submission of the learned Senior Counsel for the respondents 1 to 3 that if the capacities are not matched with the ship board training slots available with the Indian ship owners and the foreign ship owners operating out of India, it will be a disaster for the students that even after completing the pre-sea training, they will not be eligible for CoC and they will have to wait for long periods to complete their training at sea.
50. He further submitted that for all professional courses in the country, there is a regulatory authority independent of the college and the University; such as the All India Council for Technical Education (AICTE) for engineering, pharmacy and management courses; the Medical Council for India(MCI) for medical education; the Bar Council of India (BCI) for legal education; the National Council for Teachers Education (NCTE) for teachers education, etc and in all these cases, the regulatory body/council accords approval and recognition for the colleges and the courses, while the Universities grant affiliation to the same. Accordingly, the Director General of shipping, Mumbai, is the regulatory body for approval and recognition of the Maritime Institutions.
51. According to the learned Senior Counsel, the 2nd Respondent-University does not have the authority in law, or otherwise, to issue any Certificate of Competency or Continuous Discharge Certificate to any Seafarer, which right still vests with the third respondent and therefore the DGS is responsible to ensure that the quality of training, leading to the grant of these degrees and diplomas is of an acceptable standard, further assessment for issue of Certificates of Competencies. For the above said reasons, he submitted that the DGS has not usurped the powers of the 2nd Respondent-University and prayed for dismissal of the Writ Petitions.
Heard the learned counsel for the parties and perused the materials available on record.
52. The impugned circulars of the Director General of Shipping, Mumbai, dated 27.04.2009 and 29.05.2009 are as follows:
Government of India Ministry of Shipping, Road Transport &. Highways (Department of Shipping) Directorate General of Shipping, Mumbai Notice No.U-TR(18)/2004-II 27th April, 2009 Information is being received in this Directorate regarding the prevailing confusion with respect to approval for maritime training courses being conducted by various maritime training institutions in the country, and matter regarding affiliation in the wake of formation of IMU. To dispel prevailing doubts the following clarifications are issued.
1. Conduct of Pre-sea Training for Deck Cadets - Diploma in Nautical Science leading to 3 years B.Sc (Nautical Science) Degree Programme:-
(i) The DNS programme leading to B.Sc. (Nautical Science) conducted through IGNOU will henceforth be conducted through IMU for the session beginning from August, 2009 for new entrants.
(ii) DGS will issue a detailed order on the transfer of DNS programme from IGNOU to IMU including detailed instructions regarding the transitional arrangements, shortly.
2. Affiliation of Maritime Training Institutes:-
Affiliation of the private institutes with the IMU is not mandatory. The institutes which are affiliated with other universities will continue to be recognized by DGS.
3. Role of Director General of Shipping
(i) Under the relevant provisions of the Merchant Shipping Act, 1958 and Rule 47 of the Merchant Shipping (Standards of Training, Certification and Watchkeeping for Seafarers), Rules 1998, the Directorate General of Shipping is charged with the responsibility of supervising and seeing that all training and assessment of Seafarers for certification is (a) structured in accordance with written programme 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 and VIII of the STCW Code; (b) Conducted, monitored, evaluated, and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A-I/6 of the STCW Code. The STCW Convention requires that all maritime education and training falling under the ambit of the Convention to be approved by the "Administration" and continuously monitored through a Quality Standards System.
In pursuance of the above, the Director General of Shipping accords approval to the training programmes conducted by various Training Institutions, that are preparatory to the Certificate of Competency under the provisions of the Merchant Shipping Act, 1958.
(ii) DGS will continue to formulate the guidelines as per STCW Rules for the courses preparatory to CoC (CoC oriented courses/ mandatory courses, i.e. courses forming part of approved education and training programme leading to CoC) including those run by IMU to ensure uniform standards of maritime education.
(iii) DGS will continue to regulate the Institutes /Colleges conducting courses preparatory to CoC (CoC oriented courses/ mandatory courses, i.e. courses forming part of approved education and training programme leading to CoC) which remain affiliated with the Universities other than IMU.
(iv) DGS will also continue to regulate all training of ratings and other mandatory certificate courses.
(v) Approval of new capacities in IMU constituent /affiliated institutions for 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.
Director General of Shipping M.S. Notice 21 of 2009 No.11-TR(18)/2004-II Dated : 29th May, 2009
Subject: Diploma in Nautical Science programme leading to B.Sc degree in Nautical Science by Indian Maritime University.
Introduction Indian Maritime University has been established as a Central University under the Indian Maritime University Act, 2008 with effect from 14th November, 2008. The University is established at the national level to facilitate and promote maritime studies and research and to achieve excellence In the areas of maritime science and technology, maritime environment and other related fields.
1.1 A decision has been taken that the Indian Maritime University will start the Diploma in Nautical Science [DNS] programme leading to B.Sc degree in Nautical Science from August.2009 onwards on the same lines as the DGS-IGNOU programme which was promulgated through Training Circular No.20 of 2004 dated 28th April 2004.
1.2 All the training institutes approved by DGS [list attached Annexure-I] for conducting the DNS [IGNOU] course are deemed to be approved for the said course to be conducted by IMU. However, individual institutes are required to sign an MOU with IMU as its Distance Education Center for the said programme. The format of the MOU will be prescribed by IMU on the lines of the MOU between IGNOU and the Institutes.
1.3 The existing students enrolled with IGNOU upto February, 2009 batch will continue with IGNOU. IGNOU will continue to hold examinations for the existing students at the pre-sea stage and for semesters III, IV and V.
2. Brief outline of the programme for the batches conducted by IMU w.e.f. August, 2009:
Phase Semester Period Programme details Diploma/Degree Phase 1 Semester 1, 2 12 month Contact program (Pre-sea) Residential program at Training Institute Diploma in Nautical Science will be awarded by IMU Phase 2 Semester 3, 4, 5 18 months at Sea Residential on board ship Advanced Diploma in Nautical Science will be awarded by IMU Phase 3 Semester 6 4 months Contact program (Post-sea) and 6 advanced modular courses Day Scholar Programme at any DGS approved Training Institute Certificate of Competency will be issued by DGS B.Sc. (Nautical Science) Degree will be awarded by IMU
1. Salient features:
3.1 Methodology : A total of 108 credits are required to be awarded for B.Sc degree. This will be achieved in three distinct stages.
3.2 Pre-sea stage : The selection of candidates shall be as per the detailed procedure published by IMU. The eligibility criteria for admission shall be as per the DGS guidelines. IMU shall arrange the necessary infrastructure for the selection process. IMU shall also lay down the procedures and norms for allocation of pre-sea Institutes to the candidates. Pre-Sea Training (contact programme) comprising of Semester I and II shall be conducted by the institutes as per the programme prescribed by DGS In Training Circular No.2 of 2005. Examinations at the end of each semester shall be conducted by IMU. Successful candidates shall be awarded Diploma in Nautical Science by IMU and credited with 36 credits.
3.3 Sea service : During the 18 months sea service (semester III, IV and V) Distance-Learning Programme shall be conducted by IMU. Successful candidates shall be awarded Advance Diploma in Nautical Science by IMU and credited with 54 credits, for these three semesters. IMU shall specify the Centers for the conduct of examinations for the III, IV & V semesters.
3..4 Post-sea Stage : The candidate shall undergo post sea training of 4 months duration and 6 advanced modular courses in any DGS approved training institute and appear for Second Mate (FG) Competency Examination conducted at the Mercantile Marine Department of the Directorate as per the existing practice. On obtaining the Second Mate (FG) Certificate of Competency Issued by the Directorate, the IMU shall award 18 credits as part of the 6th Semester and the B.Sc (Nautical Science) degree to the successful candidates without any further examination.
3.5 Student Instructional Material: Course Material for the first year (Semester I & II) of training shall be provided by IMU. Self learning material for the Semesters III, IV and V shall be delivered by IMU to the candidates through the institute.
3.6 Fees: 1 The candidates will pay Rs. 5,500/- per semester (Semester I to semester V) to IMU. This is in addition to the fees charged by the training institutes.
4. Monitoring/Inspection:
4.1 There will be a Monitoring and Implementation Committee [hereinafter referred to as MIC] constituted of representatives from DGS and IMU. The MIC will have equal representation from both the organizations. 4.2 The new approvals and additional capacities for this course will be considered only after joint inspection by IMU and DGS.
5. This issues with the approval of Director General of Shipping and ex-officio Additional Secretary to the Govt. of India Sd/-
[Ashima Gupta] Deputy Director General of Shipping
53. In the present Writ Petitions, the Association/Maritime Institutions, inter alia, have challenged the authority and jurisdiction of the DGS in the following areas, in relation to the course of Diploma in Nautical Programme, leading to B.Sc. Degree in Nautical Science by the Indian Maritime University and other conditions stated in the Circulars:
(i) The eligibility criteria for admission shall be as per the DGS guidelines.
(ii) Pre-sea Training (Contact Programmes) comprising of Semesters 1 and 2, shall be conducted by the Institutes, as per the programme prescribed by the DGS in Training Circular No.2/05.
(iii) There shall be a Monitoring and Implementation Committee (MIC) constituted among the representatives from the DGS and Indian Maritime University.
(iv) MIC will have equal representation from both the organisations.
(v) The new arrivals and additional capacities for this courses will be considered only after joint inspection by the IMU and DGS.
(vi) The selection of candidates shall be as per the detailed procedure published by IMU. The eligibility criteria for admission shall be as per the DGS guidelines. IMU shall arrange the necessary infrastructure for the selection process. IMU shall also lay down the procedures and norms for allocation of pre-sea Institutes to the candidates. Pre-Sea Training (contact programme) comprising of Semester I and II shall be conducted by the institutes as per the programme prescribed by DGS In Training Circular No.2 of 2005. Examinations at the end of each semester shall be conducted by IMU. Successful candidates shall be awarded Diploma in Nautical Science by IMU and credited with 36 credits.
There will be a Monitoring and Implementation Committee [hereinafter referred to as MIC] constituted of representatives from DGS and IMU. The MIC will have equal representation from both the organizations.
The new approvals and additional capacities for this course will be considered only after joint inspection by IMU and DGS.
54. The first and foremost objection of the respondents is that the constitution of MIC, comprising of equal representation from DGS and IMU and further agreement between the DGS and IMU regarding approval of the courses, institutes and additional intake capacity of the institutes offering maritime courses, etc., is strictly between the respondents 2 and 3 and therefore, the Writ Petitions cannot be maintained by the Association of Maritime institutes or the institutes in their individual capacity, cannot be countenanced, for the reason that the institutes are already conducting pre-sea courses and that they are now deemed to have been approved by IMU as per Clause 1.4.1 of the guidelines and that the impugned circulars, certainly affect the interests of the existing institutes, in getting approval of the courses, affiliation of the institutes and admission to various courses of study offered by them and other matters stated supra and therefore, the writ petitioners have locus standi to maintain the Writ Petitions.
55. It is the admitted case of the parties that prior to the enactment of Indian Maritime Universities Act, 2008, the powers of approval, affiliation, etc., were hitherto exercised by DGS, Mumbai. IMU Act, 2008, has been enacted on 11.11.2008 with an object to establish and incorporate a teaching and affiliating university at the National level to facilitate and promote Maritime studies and research.
56. The main contention of the Maritime Institutes/Association is that IMU Act is a self contained Act, which has got powers to regulate, supervise and approve maritime educational institutions and its various pre-sea courses, for which, approval has already been granted by DGS, prior to the advent of IMU Act, 2008. The University has got powers to provide for instructions in all branches of learning and research, to make provision for recognised institutions, grant diplomas for certificates (other than CoC for Sea-farers) and confer degrees, recognise Institutions, inspect any recognised Institution through suitable machinery provided under the IMU Act. Per contra, it is the contention of the Central Government and DGS that the powers have been conferred on the DGS to have a MIC for framing guidelines for regulating the maritime institutes.
57. In order to examine the issues covered under the impugned circulars and other matters dealing with the powers and authority of IMU vis-a-vis DGS, it is necessary to have a look at the provisions of the Indian Maritime University Act, 2008, the Merchant Shipping Act, 1958 and the Rules framed thereunder and STCW Code, as to whether the IMU Act confers exclusive power and authority on the University with the active participation of the Central Government and the DGS, with reference to approval, affiliation, prescribing eligibility criteria for admission to various courses, run by the Maritime Institutions approved and affiliated to the University.
58. As per Section 2(c) of the IMU Act, Board of Affiliation and Recognition means Board of Affiliation and Recognition of the University. As per Section 3(5), the University shall be both, a teaching and an affiliating University. The Powers of the Vice-chancellor are stated in Section 12. As per Section 12(5), the Vice-Chancellor may cause an inspection to be made by such person or persons as he may direct, of a college or an institution not being maintained by the University, its buildings, libraries, laboratories and equipment, and also examinations, teaching and other work conducted or done by the college or the institution and cause an inquiry, to be made in the like manner, in respect of any matter connected with the administration or finance of the college or the institutions.
59. As per 3(3) of the Statutes of the University, it shall be the duty of the Vice-Chancellor to see that this Act, the Statutes, the Ordinances and the Regulations are duly observed, and he shall have all the powers necessary to ensure such observance.
60. Section 21 deals with the Executive Council of the University and the Executive Council shall be the principal executive body of the University. As per Section 21 of the Act and as provided under the Statute No.11, apart from the Vice-Chancellor, who shall be the Chairperson, ex officio, the Secretary of Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, or his nominee not below the rank of a Joint Secretary and the Director-General of Shipping or his nominee not below the rank of a Joint Secretary are also the members of the Executive Council. Besides, the Executive Committee also consists of five members to be nominated by the Visitor having special knowledge and/or practical experience in respect of maritime-education, industry, science or technology and other related subjects on the recommendation of the Vice-Chancellor, out of a panel of at least ten persons. Apart from the above, following are the members of the Executive Council, "(h) one member not below the rank of Joint Secretary to be appointed by the Central Government to represent the Ministry of Defence of the Central Government.
(i) one Dean of Schools of Studies nominated by the Vice- Chancellor by rotation on the basis of seniority;
(j) two Directors nominated by the Vice-Chancellor by rotation on the basis of seniority;
(k) three Principals of the affiliated colleges and academic institutions nominated by the Executive Council by rotation;
(l) one Vice-Chancellor present or former, of any technical University; and
(m) one representative of the Government of the State where University is located.
61. As per Section 22, the Academic Council shall be the principal academic body of the University and shall, subject to the provisions of this Act, the Statutes and the Ordinances, have the control and supervision over, and be responsible for, the maintenance of standards of instruction, education and examination within the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it. It shall have the right to advice the Academic Council on all academic matters.
62. As per Section 21 of the Act and as provided in Statute No.14, apart from the Vice-Chancellor, who shall be the Chairperson ex officio, the Chief Surveyor, Directorate-General of Shipping, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, or his nominee and the Nautical Advisor, Directorate-General of Shipping, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, or his nominee are the members of the Academic Council. Apart from the above, the following are also the members of the Academic Council, "(e) the Deans of Schools of Studies;
(f) all Directors of University maintained Campuses;
(g) all Heads of University teaching Departments;
(h) one Professor from each University teaching Department by rotation on the basis of seniority to be nominated by the Vice-Chancellor;
(i) three eminent experts in the field of maritime studies and related subjects, nominated by the Vice-Chancellor; and
(j) two Principals of recognised colleges."
63. The powers of the Academic Council of the University as provided under Statute No.15 and ordinances, inter alia includes, "(a) to exercise general supervision over the academic policies of the University and to give directions regarding methods of instructions, co-operative teaching among colleges and institutions, evaluation of research or improvements in academic standards;
(c) to consider matters of general academic interest either on its own initiative or on a reference by a School or the Executive Council and to take appropriate action thereon;
(d) to frame such regulations and rules consistent with the Statutes and the Ordinances regarding the academic functioning of the University, discipline, residences, admissions, award of fellowship assistantship, research assistantship and studentships, fees, concessions, corporate life and attendance."
64. As per Section 23, the Board of Affiliation and Recognition shall be responsible for admitting colleges and institutions to the privileges of the University. As per Section 24 of the IMU Act, the Planning Board shall be the principal planning body of the University. The Board shall be responsible for monitoring the development of the University.
65. Similar to other authorities of the University, like, Executive Council and Academic Council, the Planning Board for the University, shall be responsible for monitoring the development of the University. The composition of the Planning Board as per Section 24 of the IMU Act and as provided in Statute No.16, is as follows:
"(a) the Vice-Chancellor, who shall be the Chairperson ex officio;
(b) the Pro-Vice-Chancellor;
(c) the Secretary, Department of Shipping, in the Government of India or his nominee not below the rank of a Joint Secretary;
(d) the Secretary, Ministry of Defence in the Government of India, or his nominee not below the rank of a Joint Secretary;
(e) the Director-General of Shipping, Department of Shipping, in the Government of India;
(f) the Financial Adviser, Department of Shipping, in the Government of India, or his nominee not below the rank of a Joint Secretary;
(g) two members to be nominated by the Visitor having special knowledge and/or practical experience in respect of maritime - education, industry, science or technology and other related subjects on the recommendation of the Vice-Chancellor out of a panel of at least six persons;
(h) one Dean of Schools of Studies nominated by the Vice-Chancellor by rotation on the basis of seniority;
(i) one Director of the University Campus nominated by the Vice-Chancellor by rotation on the basis of seniority;
(j) one Principal of the affiliated colleges nominated by the Executive Council by rotation; and
(k) one Vice-Chancellor present or former, of any Technical University."
66. As per Section 28, the University has got powers to make statutes for all or any of the matters enumerated in the said Section. Section 28(n) deals with the conditions under which colleges and institutions may be admitted to the privileges of the University and withdrawal of such privileges.
67. As per Section 30 of the Act, subject to the provisions of the Act and Statutes, the Ordinances may provide for all or any of the following matters, enumerated thereunder, such as, "(a) the admission of students to the University and their enrolment as such;
(b) the courses of study to be laid down for all degrees, diplomas and certificates of the University;
.............
(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;"
68. As per Section 31 of IMU Act, enables the authorities of the University may make Regulations, consistent with this Act, the Statutes and the Ordinances in the manner prescribed by the Statutes, for the conduct of their own business and that of the Committees, if any, appointed by them and not provided for by this Act, the Statutes or the Ordinances.
69. As per Section 45, if any 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 this 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. Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
70. The authority of the Central Government as set out in Section 50 of the IMU Act, is as follows:
"50. (1) The University shall, in discharge of its functions under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time. (2) The decision of the Central Government as to whether a question is one of policy or not shall be final."
71. The admission of colleges to the privileges of the University is decided by the Executive Council as per the Statute No.34 of the University and as per Statute 34(1)(ii), every such college or institution shall satisfy the Executive Council on the following matters, namely:
(a) the suitability and adequacy of its accommodation and equipment for teaching;
(b) the qualifications and adequacy of its teaching staff and the conditions of their service;
(c) the arrangements for the residence, welfare, discipline and supervision of students;
(d) the adequacy of financial provision made for the continued maintenance of the college or institution; and
(e) such other matters as are essential for the maintenance of the standards of University education.
72. Statute No.34(1)(iii) to (v) of the Indian Maritime University Act, 2008, reads as follows:
(iii) No college or institution shall be admitted to any privileges of the University except on the recommendation of the Academic Council made after considering the report of a Committee of Inspection appointed for the purpose by the Academic Council.
(iv) Colleges and institutions desirous of admission to any privileges of the University shall be required to intimate their intention to do so in writing so as to reach the Registrar not later than the 15th August, preceding the year from which permission applied for is to have effect.
(v) A college or an institution shall not, without the previous permission of the Executive Council and the Academic Council, suspend instruction in any subject or course of study which it is authorised to teach and teaches.
73. Statute No.34 (4) to (7) of the Indian Maritime University Act reads as follows:
(4) Every college or institution admitted to the privilege of the University shall be inspected at least once in every two academic years by a Committee appointed by the Academic Council, and the report of the Committee shall be submitted to the Academic Council, which shall forward the same to the Executive Council with such recommendations as it may deem fit to make. (5) The Executive Council, after considering the report and the recommendations, if any, of the Academic Council, shall forward a copy of the report to the Governing Body of the college or institution with such remarks, if any, as it may deem fit for suitable action. (6) The Executive Council may, after consulting the Academic Council, withdraw any privileges granted to a college or an institution, at any time it considers that the college or institution does not satisfy any of the conditions on the fulfilment of which the college or institution was admitted to such privileges:
Provided that before any privileges are so withdrawn, the Governing Body of the college or institution concerned shall be given an opportunity to represent to the Executive Council why such action should not be taken. (7) Subject to the conditions set forth in clause (1), the Ordinances may prescribe
(i) such other conditions as may be considered necessary;
(ii) the procedure for the admission of colleges and institutions to the privileges of the University and for the withdrawal of those privileges.
74. "Seaman" as defined under Section 2(42) of the Merchant Shipping Act, means, every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship under this Act, but in relation to sections 178 to 183 (inclusive) includes a master.
75. As per Section 7 of the Merchant Shipping Act, 1958, (1) The Central Government may, by notification in the Official Gazette, appoint a person to be the Director-General of Shipping for the purpose of exercising or discharging the powers, authority or duties conferred or imposed upon the Director-General by or under this Act. (2) The Central Government may, by general or special order, direct that any power, authority or jurisdiction exercisable by it under or in relation to any such provisions of this Act as may be specified in the order shall, subject to such conditions and restrictions as may be so specified, be exercisable also by the Director-General or by such other officer as may be specified in the order; and (3) The Director-General may, by general or special order, and with the previous approval of the Central Government, direct that any power or authority conferred upon or delegated to, and any duty imposed upon, the Director-General by or under this Act may, subject to such conditions as restrictions as he may think fit to impose, be exercised or discharged also by such officer as he may specify in this behalf.
76. Chapter VI of the Merchant Shipping Act, 1958, deals with Certificates of officers. Section 76 speaks about certificates of competency to be held by Officers of Ships. As per Section 77, Subject to the provisions contained in Section 86, an officer shall not be deemed to be duly certificated under this 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 this Act. Different grades of Certificates of Competency are issued by the competent authority appointed in this behalf by the Central Government for the purpose of examining the qualifications of persons desirous of obtaining certificates of competency under Section 78. The power to appoint such authorised person is conferred on the Central Government as per Section 79 of the Act and it is extracted hereunder:
"79. Examinations for, and grant of, certificates.- (1) The Central Government or a person duly authorised by it in this behalf shall appoint persons for the purpose of examining the qualifications of persons desirous of obtaining certificates of competency under section 78. (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 of 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.
77. Section 85 deals with the power to cancel or suspend certificates obtained on false or erroneous information and it reads as follows:
85. Power to cancel or suspend certificates obtained on false or erroneous information.- If it appears to the Central Government that the holder of a certificate granted under this Act has obtained it on false or erroneous information, it may cancel or suspend such certificate:
Provided that no order under this section shall be passed by the Central Government unless the person concerned has been given an opportunity of making a representation against the order proposed.
78. Section 87 of the MS Act, 1958, empowers the Central Government to make rules to carry out the provisions of Chapter 6 of the Act, inter alia,
(c) the conduct of the examination of persons desirous of obtaining certificates of competency and the endorsements thereon for the grades falling under section 78;
(d) the qualifications to be required of persons desirous of obtaining certificates of competency for the grades falling under section 78;
(e) fees to be paid by applicants for examination;
(f) the period for which certificate granted under sub-section (2) of section 79 shall be valid;
(g) the form of such certificates and the manner in which copies of certificates are to be kept and recorded;
(h) the circumstances or cases in which certificates of competency may be cancelled or suspended.
79. As per section 87-A (v), Certificate means, (i) a certificate of competency referred to in Section 78; or (iii) a certificate of competency referred to in Section 86, which has been obtained by any person by availing of training facilities in any of the merchant navy training establishments in India or experience of sea service on board any Indian ship.
80. Merchant Shipping (Standards of Training, Certification and Watch Keeping for Sea Farers) Rules, 1998, have been framed in exercise of the powers conferred under Sections 87, 98, 457 and 458 of the Merchant Shipping Act, 1958, by the Central Government.
81. As per Rule 1(c) of the above said rules, "Approved" means approved by the Central Government. As per Rule 1(d) "Training and assessment programme" means the programme of training and assessment of Seafarers as approved by the Central Government. As per rule 1(f) "Certificate of competency" means an appropriate certificate issued by the Government of India for the purpose of rule 5. As per rule 1(g) "Chief Examiner" means the Chief Examiner of Master and Deck Department personnel or the Chief Examiner of Engine Department personnel, as the case may be.
82. As per Rule 5 of the above said Rules, certificate of competency is issued for different grades, ranging from 2nd Mate of a Foreign Going ship to Extra First Class Engineer. Training and assessment is provided as per Rule 6 and it reads as follows:
"(1) The Chief Examiner concerned shall ensure that the training and assessment of candidates for certification as a Seafarer are administered, supervised and monitored in accordance with the provisions of the Act, these rules and the STCW Code, and those persons responsible for imparting the training and assessment as required under the STCW Convention, are appropriately qualified for the type and level of training and assessment of competence in accordance with the provisions of the Act, these rules and the STCW Code."
83. As per Rule 7, the Chief Examiner concerned shall ensure that all the training, assessment of competence, certification, endorsement and revalidation activities under his authority are continuously monitored through a quality standards system including the qualifications and experience of instructors and assessors.
84. Rule 9 deals with examination, assessment, certification and registration of certificates and it reads as follows:
"(1) The Director General of Shipping shall designate an Assessment Centre.
(2) The Assessment Centre shall-
(a) maintain records of all candidates with regard to their sea-going service, progress of ashore and on-board training, courses attended, examinations and assessments completed and certificates held by the Seafarers;
(b) receive periodical returns of the progress of ashore and on-board training and also monitor such returns;
(c) examine the documentary evidence that the candidate has fulfilled the eligibility criteria for joining an approved training and assessment programme; and
(d) assist the Chief Examiner or Examiner concerned, as the case may be, in the conduct of written, oral and practical examinations and assessment on completion of the approved training and assessment programme for each function. (3) Every Seafarer shall carry all appropriate certificates in original while serving in a relevant capacity on board a ship in accordance with the applicable safe manning requirements as provided in these rules."
85. Chapter 2 of the above said Rules deals with the qualifications and minimum requirements for certification of different grades of certificate of competency issued by the Director General of Shipping. As per the requirements, every candidate for the certification should have completed approved education, training, examination and assessment and meet the standard of competence, as specified in the STCW code. Besides completion of approved education, the candidate should have completed approved on-board training, depending upon the grade of competency.
86. Part I of the guidelines issued by the Indian Maritime University, for affiliation and recognition to colleges/institutions (procedures, requirements, terms and conditions, etc.,) deals with the Administration and Approval of the Institutes. As per Clause 1.3, all institutes conducting approved courses are required to follow these guidelines with effect from the date laid down hereinafter at the end of these guidelines. Where the Institutes are already approved prior to the issue of these guidelines, their approvals, are deemed to have incorporated these guidelines. If on the date of coming into force of these guidelines, an Institute has not complied with all the provisions of the existing Guidelines, Circulars, M.S. Notices or Orders issued by the DGS till such date, then the Course under consideration of dispute, extension or deficiency will have to meet the requirements of these guidelines afresh and earlier approval for the course shall stand cancelled.
87. As per Clause 1.4.1, approval of IMU has to be sought for by any Institute, prior to running any maritime course. No proposal for approval of any maritime course or increase in intake in any maritime course including pre-sea courses will be entertained by IMU unless the Institute has been approved. All existing Institutes conducting any IMU approved course as on date when these guidelines come into effect shall be deemed to have been approved by IMU subject to the conditions in 1.3.
88. The procedure for approval of an institute is set out in Clause 1.5 of the guidelines and it reads as follows:
"An Institute that considers itself eligible will apply to the IMU in the prescribed Application Form (Annex-1), with the relevant fees details and documents described below. If the proposal of the Institute is acceptable, it will be required to submit a Project Feasibility Report (PFR), fees and other necessary information as prescribed in Annex-II/II-A or Annex III/III-A. If the submissions are in order, or when they are put in order, the Institute will make a presentation of its proposal to the IMU in considering the application will also take into consideration broader aspects, demand supply of Seafarers and other matters of relevance. If the IMU is satisfied with the proposal and the need to set up or expand the Institute, it will recommend the proposal to the IMU Headquarters who will then consider and issue the letter of intent to set up the Institute and courses as per the DPR, or the DPR as duly modified on the advise of the IMU."
89. The International Convention on STCW for Seafarers, 1978 was adopted and it lays down the mandatory minimum requirements for the certification of various officers working on ships and syllabi for the examination of officers for grant of various certificates. The convention came into force from 28.04.1984 and India has ratified it on 06.11.1984. The general obligations agreed by India under Article 1 are as follows:
"(1) The parties undertake to give effect to the provisions of the Convention and the annex thereto, which shall constitute an integral part of the Convention. Every reference to the Convention constitutes at the same time a reference to the annex. (2) The parties undertake to promulgate all laws, decrees, orders and regulations and to take all steps which may be necessary to give the convention full and complete effect, so as to ensure that, from the point of view of safety of life and property at sea and the protection of the marine environment, Seafarers on board ships are qualified and fit for their duties."
90. The powers conferred on the IMU Act with regard to setting up of a Maritime University or approved of Training Institutes do not speak of any provisions contained in MS Act or the rules framed thereunder or the STCW Code. It is not the case of the respondents 1 and 3 that the provisions of IMU Act are ultra vires of the requirements of STCW Code. Reading of the statutory provisions of IMU Act, relating to constitution of the Academic Council, Executive Council and the Planning Board, makes it clear that DGS is one of the active members of the abovesaid statutory authorities under the IMU Act and clause 15 of the statutes framed under IMU Act has laid down the composition of a team of experts in the Academic Council, which includes the first and third respondents also. The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 ("STCW 78") has come into force. India, being a signatory to the Convention, has ratified this Convention on 16.2.86. There is absolutely no doubt that the Convention extends to all the Seafarers serving on board in sea going merchant ships and naval ships. So also, the Merchant Shipping (STCW) Rules, 1998 were framed to implement STCW Code in India. But a plain reading of the Merchant Shipping Act, 1978, relating to issuance of CoC, does not specifically indicate that the third respondent is empowered to issue the impugned circulars.
91. It is the contention of the respondents 1 and 3 that the role of DGS is to perform all such acts, as set out in the impugned circulars, under the provisions of Merchant Shipping Act and Rule 47 of the Marine Shipping (Standard of Training, Certification and Watch keeping for Seafarers) Rules, 1998 and he is charged with the responsibility of supervision and to see that all training and assessment of Seafarers for certification is structured in accordance with the written programme including such methods and media of delivery procedure and course materials that are necessary to achieve the standard of competencies as specified in Chapter II and VIII of STCW Code. As DGS claims to have been vested with the powers to approve the maritime institutes, courses, etc., by the delegation of powers under the Gazette notification, dated 17.12.1960, the same is extracted hereunder:
(Department of Transport) ORDERS MERCHANT SHIPPING New Delhi, the 17th December 1960 S.O.3144 In exercise of the powers conferred by sub-section (2) of section 7 of the Merchant Shipping Act, 1958 (44 of 1958), and in supersession of all previous orders on the subject, the Central Government hereby directs that the power, authority or jurisdiction exercisable by it under or in relation to any of the provisions of the said Act specified below shall with effect from the 1st January 1961 be exercisable also by the Director General of Shipping, provided that the power to give prior approval to the transfer of any Indian ship or sailing vessel shall not be exercisable by the Director General in cases, where the transferee is not a citizen of India or a company satisfying the requirements of clause (b) of Section 21 of the said Act, namely:-
provisions of the Merchant Shipping Act,1958 (44 of 1958) Section Section Section Section 37(b)(i) 206 287(1) 332(3) 39(2) 210 297 332(4) 41 222 298(2) 335(2) 42(1) 224 299 336(1)(a) 79(2) 225(1) 300 340 81 226 301 343(1) 83 227(1)(c) 302 358(2) 85 228 303(3) 360 121 229 306 366(3) 145(2) 230 310(3) 367 157(1) 235(1)(3) 312(2)(b) 387 158 237(1) 316(2)(3)(4) 388 161(7) 238(1) 317(2)(3)(4)(5) 389 165 245(3) 321 391 176 248(2) 323(5) 191(2) 253(1) 328(1) 397 197 258(1)(2)(a) 426 450 456
92. As regards the claim of DGS that powers under Sections 79 (2), 81 and 85 of the Merchant Shipping Act have been delegated to him, Section 79(2) relates to the powers of the respondents 1 and 3 to issue a Certificate of Competency for the Seafarers in the examination to be conducted by the first respondent, which is delegated to DGS, the third respondent, as per the Gazettee Notification, dated 17.12.1960. Section 85 relates to their powers to cancel or suspend such Certificate of Competencies.
93. Yet another source of power claimed by DGS is under Section 50 of the IMU Act, which states that the University shall, in discharge of its functions under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time. The decision of the Central Government as to whether a question is one of policy or not shall be final. The discussion and the decision taken at the meeting held on 20.04.2009, in the Office of the Secretary to the Government, Ministry of Shipping, Road Transport and Highways, New Delhi, first respondent, are as follows:
Minutes of the meeting held by Secretary (Shipping) on 20th April, 2009 at 4.30 P.M. to discuss the IMU related issues ****** Secretary (Shipping) held a meeting on 20th April, 2009 at 4.30 P.M. in the Ministry to discuss the IMU related issues. The list of participants Is annexed. 2 Secretary(S) welcomed all the participants. Initiating the discussion, he referred to the meeting taken by Hon'ble Minister(S,RT&H) on 3rd March, 2009 and stated that it was agreed in the meeting that affiliation of the private institutes with the IMU will not be mandatory. The institutes which are affiliated with other universities will continue to be recognized by DG(S); However, for the sake of uniform standards in maritime education , it was decided that the Board of Affiliation and Recognition of the IMU would have representatives of DG(S) and the collegium of the DG(S) will have an IMU representative.
3. Secretary(S) further stated that under the Merchant Shipping Act, the authority for implementation of STCW regulations and issue of CoC has been delegated to DG(S). However, of late, there has been some confusion in the minds of the industry relating to the respective roles of DG(S) and IMU and there is a need to clear this. Thereafter, the issues relating to engaging MMERT faculty and staff, conduct of DNS programme, recognition ,respective roles of IMU and DGS, maintenance of training standards as per STCW convention by India etc. were discussed at length.
4. JS(S) noted that the consultant viz. WMU while vetting the academic content of the DPR emphasized shifting of focus from training to education by IMU. The emphasis has to be essentially on higher end Doctoral / Post Graduate programmes with necessary base support being provided by Degree Programs of the constituent Units viz. MERI / T.S.Chanakya etc. With the University role being primarily in higher education training ratings should continue to be regulated by DGS. An arrangement for IMU affiliated institutions also conducting rating courses could always be worked out. VC, IMC stated that the IMU Act provides for conduct of Certificate Courses also Secty (S) opined that IMU should focus on Higher Education.
5. DGS stated the role of Maritime Administration as regulator of maritime education is essential to ensure compliance with STCW requirements and maintaining uniform standards of maritime training for courses preparatory to CoC. Changes in STCW requirements should continue to be administered by DGS for the country as a whole including the requirement for any new course governed by STCW. There was general consensus that there was a need to treat IMU on a different platform given its special status as a Central University focusing on maritime education under the Ministry. In respect of Institutes offering CoC oriented/mandatory courses opting for affiliation with IMU, it was felt that IMU's Board of Affiliation and Recognition (BAR) could be given greater delegation within the overall regulatory frame work. The Institution of collegium should be strengthened with IMU's participation as an important stake holder and with the building up of institutional capacity within IMU, these arrangements can be further refined.
6. JS(S) further noted that there is a need for ensuring sustainable development of the job market necessitating regular review and monitoring of capacities by stake holders through the mechanism of collegium on which IMU will also be represented. VC, IMU felt that with the BAR paving DCs representatives, the need for a further endorsement by the collegium was not required. DGS stated that as far as the CoC oriented/mandatory courses were concerned, this was necessary to ensure uniformity in enforcement of guidelines in both IMU affiliated and non-affiliated institutes to avoid any ambiguity and to preserve our image and protect our status of being the major :sea-faring country of the world.
9. The following decisions were taken:
(i) The IMU may engage faculty and staff of the MMERT as per requirement on outsourcing basis to meet the workload of the four institutes viz T.S. Chankaya, MERI Mumbai, LBS College Mumbai and MERI Kolkata.
(ii) The DNS programme leading to B.Sc Nautical Science conducted through IGNOU will henceforth be conducted through IMU for the session beginning August 2009 for new entrants. Since the requisite fees from existing students have already been collected by IGNOU and there would be many practical difficulties in taking over the training of students already enrolled with IGNOU, the existing cadets should continue with IGNOU. DG (S) should prevail upon IGNOU to fulfill its obligation towards existing students The DGS may also convene a meeting in this regard with the representatives of IGNOUand IMU if necessary to resolve the transitional arrangements. DG (Shipping) will issue a detailed order, on the transfer of DNS programme from IGNOU to IMU, to dispel any doubts amongst stakeholders.
(iii) DG (Shipping) will continue to formulate the guidelines as per STCW Rules for the courses preparatory to CoC including those run by IMU to ensure uniform standards of maritime education. DG (Shipping) will continue to regulate the Institutes/colleges conducting courses preparatory to COC which remain affiliated with the universities other than IMU. DGS will also continue to regulate all training of ratings and other mandatory certificate courses.
(iv) Approval of new capacities in IMU constituent/affiliated institutions for CoC oriented courses will be routed through the BAR to the Collegium to facilitate orderly and sustainable development of the job market. A suitable mechanism will be worked out to ensure expeditious clearances.
(v) Necessary corrigendum will be issued by IMU to rectify any inadvertent errors that may have crept in the brochure/communique to dispel any doubts/misgivings in the Maritime Training Institutes.
94. There are various courses conducted by Maritime Training Institutes and approved by the Director General of Shipping. As per the details furnished by the writ petitioners, they are described as Annexure - I. Annexure - I No. Courses Duration Nautical Courses 1 Diploma in Nautical Science 1 year 2 B.Sc., Nautical Science 3 year 3 Post Graduate Diploma in Nautical Science 6 months Marine Engineering Courses 4 BE Marine Engineering 4 years 5 Graduate Marine Engineering 1 year 6 Graduate Diploma in Marine Engineering 2 years 7 BE Naval Architecture & Ocean Engineering 4 years MBA Courses 8 MBA in Shipping Offshore and Finance 1 year 9 MBA in International Transportation and Logistics Management 2 years 10 MBA in Post and Shipping Management 2 years 11 EMBA in Maritime Management 1 year Certificate Courses 12 Maritime Management for Mariners 4 months
95. The Certificate of Competency courses conducted by the various training institutes, which are approved by DGS, are as follows:
Annexure - II Courses Duration NWKO (NEAR COASTAL VOYAGE- NCV) 2 Months SECOND MATE FOUNDATION 2 Months SECOND MATE FUNCTION 4 Months PHASE 1 (NCV) 3 Months PHASE II (NCV) 3 Months ADVANCED SHIPBOARD MANAGEMENT (NCV) 1 Month SECOND MATE LIMITED 1 Month ADVANCED SHIPBOARD MANAGEMENT 1 Month FIRST MATE PHASE - 1 3 Months FIRST MATE PHASE - II 3 Months EXTRA MASTER 4 Months MEO CLASS IV (NCV) 3 Months MEO CLASS IV (PART 'B') (STCW '95) 2 Months MEO III - CHIEF ENGINEER OFFICER (NCV) 4 Months MEO III SECOND ENGINEER OFFICER (NCV) 3 Months MEO CLASS II (STCW'95) 4 Months MEO CLASS 1 (STCW '95) 2 Months EXTRA FIRST CLASS ENINGEER 6 Month per part RADAR OBS. COURSE (ROC) 2 Weeks ARPA 1 week *RADAR, ARPA & NAV SIMULATOR (RANSCO) 1 week *SHIP MAN'G SIMULATOR (SMS) 1 week *LIQUID CARGO HANDLING SIMULATOR (LCHS) 1 week GMDSS 2 Weeks * ENGINE ROOM SIMULATOR CLASS-IV (ERS IV) @ 3 days * ENGINE ROOM SIMULATOR CLASS-II (ERS II) @ 1 week DIESEL ENGINE COMBUSTION GAS MONITOR SIMULATOR COURSE (DEGM -1) 18 Hrs 1 DIESEL ENGINE COMBUSTION GAS MONITOR SIMULATOR COURSE (DEGM - S.E.O. NCV) 8 Hrs 1 LIQUEFIED NATURAL GAS (LNG) 1 week P.S.C.R.B 1 Week * TASCO 2 Weeks * CHEMCO 2 Weeks * GASCO 2 Weeks MEDICAL CARE 2 Weeks SHIP SECURITY OFFICER (SSO) 2 Days COMPANY SECURITY OFFICER (CSO) 3 Days PORT FACILITY SECURITY OFFICER (PFSO) 3 Days ISPS TRAINING THE TRAINER / AUDITORS COURSE 5 Days IMDG SHIPS STAFF 3 Days IMDG SHORE PERSONNEL 5 Days REFRESHER AND UPDATING TRAINING [RUTC (N)] 1 Week REVALIDA-TION COURSE FOR MASTER & DECK OFFICERS 10 Days REFRESHER AND UPDATING TRAINING [RUTC (E)] 4 Days REVALI DATION COURSE FOR ENGINEER OFFICERS 10 Days INDIAN MARITJME LEGISLATION 3 Days
96. On successful completion of these competency examinations, a candidate is awarded the certificate of competency (COC) for various levels. After getting the initial level certificate of competency, the Seafarer further gains on-board training and appears for further level of competency examinations. The procedure of issuance of such CoC for various grades (Annexure-lll) are as follows:
Step 1: The candidate aspiring to become a Seafarer, has to possess a basic qualification (10th Std/ Plus 2 with PCM/ Dip. in Nautical Science/ B.E.,(Marine)/ B.Sc.(NS)/ GME/ TME). Step 2: On-board training is given by Shipping Companies in their own ship for various categories of work for certain durations (for eg., 36 or 24 or 12 months). Step 3: After the on-board training, the Trainee undergoes courses "preparatory for certification of CoC" for a fixed duration. These courses are approved by the DGS and the examinations of these preparatory courses are again conducted by the DGS. Step 4: On successful completion of these courses that are preparatory to issuance of CoC, the Certificate of Competency is issued by the DGS.
97. Annexure No.III as referred to above is extracted hereunder:
Procedure of Certificate of Competency issuance by DGS Basic Qualification Shipping companies select candidates and give on-board training in their ship DGS approved Certificate of Competency courses to be completed before appearing for CoC exam On successful completion of CoC Exam conducted by DGS, CoCs are issued by DGS 10th Std 36 months On-Board Training on the ship + 6 months watch keeping Duty on ship at Bridge NCV Course (4 months) Certificate of Competency is issued by DGS as NWKO (NCV) officer (To work as Navigational Watch Keeping Officer in Home trade ships) 10+2 with PCM 36 months On-Board Training on ship + 6 months watch keeping Duty on ship at Bridge NCV Course (4 months) + Further 18 months Ship Training + Foundation Course (2 Months)+ Second Mate Functional Course (4 Months) Eligible to appear for Second Mate Function COC Exam & Competency Certificate issued by DGS to work as Second Mate Officer in foreign going ship Diploma Nautical Science leading to B.Sc. Nautical Science 24 months on-Board Training on ship given by the shipping company Foundation Course (2 months) + Foundation Course (4 months) Eligible to appear for Second Mate Function CoC exam Certificate issued by DGS to work as Second Mate Officer in foreign going ship 4 year Marine Engineering course 6 months On-Board Training on ship
1. MEO Class IV- Preparatory Course (3 months) (Including Simulator Course)
2. PSCRB
3.Medical First Aid
4. Advanced Fire Fighting Eligible to Appear for MEO Class IV (Part B Exam) Certificate issued by DGS to work as Class IV Engineer in foreign going ship. B.Sc Nautical Science 12 months On-Board Training on ship
1. PSCRB
2. Radar Observer Course
3. Automatic Radar Plotting Aid
4. Advanced Fire Fighting
5. Medical First Aid
6. GMDSS- GOC Second Mate Oral Examination Certificate issued by DGS to work as Second Mate Officer in foreign going ship Graduate Marine Engineering 6 months On-Board Training on ship
1. MEO Class IV-Preparatory Course (3 months) (Including Simulator Course)
2. PSCRB
3.Medical First Aid
4. Advanced Fire Fighting Eligible to Appear for MEO Class IV (Part B Exam) Certificate issued by DGS to work as Class IV Engineer in foreign going ship Graduate Diploma Marine Engineering MEO Class IV Part A Course (3 months) + 6 months On-Board Training on ship
1. MEO Class IV-Preparatory Course (3 months) (Including Simulator Course)
2. PSCRB
3.Medical First Aid
4. Advanced Fire Fighting Eligible to Appear for MEO Class IV (Part B Exam) Certificate issued by DGS to work as Class IV Engineer in foreign going ship
98. Comparative study of the Annexures shows that the preparatory courses approved by DGS for enabling a person to get a Certificate of Competency in various grades have nothing to do with the courses, viz., the basic studies, degrees or diplomas or certificates granted by the IMU or any other approved institutions providing maritime education in Nautical Science and Marine Engineering. Perusal of the courses imparted by the Indian Maritime University and the various courses approved by the DGS, i.e, "courses preparatory for certification of CoC", for a fixed duration and approved by DGS, would show that there is a difference in the courses and passing of the latter alone would enable the student to get the certificate of competency relevant for that grade. It is admitted that the courses approved by DGS for grant of certificate of competency are also conducted by various approved institutions, who are also granting degrees in Nautical Science and Marine Engineering.
99. A candidate after securing a degree or diploma required or even an undergraduate (10th Standard or Plus 2 with PCM qualification) can apply to the Shipping Master for the issue of a Continuous Discharge Certificate (CDC). It is to be noted that for undergraduates, no approval of the basic educational qualification from DGS is required. On obtaining the same, he can go as a Trainee in a ship. His name, period of work, type of work, duration of sea experience, type of ship, etc., are entered in the CDC. The standard for the Training referred to in STCW Code is on-board training. The duration of the training depends upon the candidate's basic qualification and the grade. Thereafter, he has to apply to the Institutions conducting the preparatory courses approved by DGS, as shown in this Annexure-II. Having regard to the fact that even undergraduates (10th Std or XII Std) can become a Seafarer, by taking up a preparatory course for CoC, it could be construed that the assessment by DGS does not come into picture at the time, when a candidate undergoes the basic education for applying to Certificate of Competency. Only after completing the preparatory course structured by DGS, the candidate has to sit for the examination (theory and oral assessment) conducted by the DGS. On successful completion of the course and the examination, the DGS gives the Certificate of Competency.
100. In order to give effect to the provisions of the Convention by amending the relevant provisions of Part VI relating to "Certificates of Officers", an amendment Act 13 of 1987 came to be introduced on 06.08.1987, wherein the existing Grades of Certificate of Competencies were substituted. To implement the resolutions passed in the International Convention, Rule 47 of the Merchant Shipping (STCW) Rules, 1998 has been introduced, which provides that the DGS shall supervise all training and assessment of Seafarers for certification is structured in accordance with the standards of competence as specified in Chapters II to VIII of the STCW Code and that such training and assessment of Seafarers is conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A-1/6 of the STCW Code. Chapter II to VIII of the Code relates to various departments in the ship. Rule 47(b) relates to Paragraphs 4 to 6 of Section A-1/6 of the STCW Code, which pertains to "inservice training of a Seafarer".
101. Chapters II and III of the STCW Code stipulates that "every candidate for certification shall have completed approved education and training and meet the standard of competence specified in Section A-ll/1 of the STCW Code." A cursory look at the Code shows that the requirements provided under STCW Code would be only to the extent of ensuring that the candidate for certification has completed approved education and Chapter II & III of the STCW Code, does not specially in clear terms speak of the powers of the DGS to monitor or regulate the Institutes that conduct the basic Degree/Diploma Courses in Maritime education. Again, it is pertinent to point out that when Rule 47 speaks of structured programme for the Seafarers for Certificate of Competency, the power to regulate, inspect, etc., insofar as maritime institutions is conspicuously absent.
102. The objective of the STCW Code, 1995 is to prescribe minimum standards relating to training, certification and Watchkeeping for "Seafarers" and a plain reading of Rule 47 of the Merchant Shipping (STCW) Rules, 1998 speaks of "Training" and "assessment" and relate only to Seafarers and not to the students who pursue various degree/diploma courses offered by the IMU or the affiliated Institutes.
103. The intention of the legislature is to bring all the institutes imparting maritime education under one umbrella. The object of the IMU Act is to establish and incorporate a teaching and affiliating University at the National Level. The objects of the Indian Maritime University Act, 2008, inter alia, are as follows:
"(i) to facilitate and promote maritime studies, training, research and extension work with focus on emerging areas of studies like oceanography, maritime history, maritime laws, maritime security, search and rescue, transportation of dangerous cargo, environmental studies and other related fields, and also to achieve excellence in these and connected fields and other matters connected therewith or incidental thereto;
(iii) to take appropriate measures for promoting innovations in teaching-learning process, inter-disciplinary studies and research; and to pay special attention to the promotion of educational and economic interests and welfare of the people of India;
(v) to extend the benefits of knowledge and skills for development of individuals and society by associating the University closely with local, regional and national issues of development.
104. As per Section 5 of the IMU Act, the University shall have the following powers, inter alia, namely: "(i) to provide for instruction in such branches of learning as the University may, from time to time, determine and to make provision for research and for the advancement and dissemination of knowledge;
(ii) to make provision for recognised institutions to undertake special studies;
(iii) to establish and maintain campuses, colleges, institutions, departments, laboratories, libraries, museums, centres of research, training and specialised studies;
(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 withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;
(xii) to recognise an institution of higher learning for such purposes as the University may determine and to withdraw such recognition;
(xviii) to inspect recognised institutions through suitable machinery established for the purpose, and to take measures to ensure that proper standards of instruction, teaching and training are maintained by them, and adequate library, laboratory, hospital, workshop and other academic facilities are provided for;
(xxiii) to admit to its privileges colleges and institutions, not maintained by the University, and to withdraw all or any of those privileges in accordance with such conditions as may be prescribed by the Statutes;
(xxvii) to determine standards of admission to the University which may include examination, evaluation or any other method of testing;
(xxxiii) to control and regulate admission of students for various courses of study in Departments, recognised institutions, schools and centres of studies;
(xli) to assess needs of the students in terms of subjects, fields of specialisation, levels of education and training of technical manpower, both on short and long term basis, and to initiate necessary programmes to meet these needs;
(xlvi) to arrange for the training to upgrade maritime standard of the employees of the industry and institutes and to levy fees for such training as prescribed by the Statutes;"
105. In view of the preamble and the various powers conferred on the Indian Maritime University under the IMU Act, it is made clear that all the Institutes imparting maritime education should be affiliated with the IMU. Pleadings and materials on record disclose that in fact, after the IMU was established on 06.04.2009, the University has sent communication to all the Maritime Training Institutes to get affiliated with IMU. Materials on record also shows that IMU has written to all the Universities that had earlier affiliated various Maritime Institutions, informing them that IMU intends to affiliate them from the Academic year 2009 for Marine Courses.
106. The Merchant Shipping Act, 1958, governs matters relating to shipping in India. The main objective of the Act is to ensure development and efficient maintenance of mercantile marine. The Act has been amended from time to time, in the light of the experience gained in implementation and also to give effect to the provisions of various International conventions to which India has acceded. Act 63/2002 has been enacted to foster the development and ensure the efficient maintenance of an Indian Mercantile Marine in a best suited manner to serve the national interests and for that purpose established a National Shipping Board to provide for the registration of Indian ships and generally to amend and consolidate the law relating to Merchant Shipping.
107. It is well settled that while interpreting the statutory provisions of two enactments, the duty of the Court is to avoid conflict between the enactments as far as possible. In Reserve Bank of India v. Peerless General Finance and Investment Corporation reported in 1987 (1) SCC 424, the Supreme Court has held that, "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation which makes the textual interpretation match the contextual. A statute is best to be interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the Sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." It is well settled in Tinsukhia Electric Supply Co. Ltd., v. State of Assam reported in 1989 (3) SCC 709 that a Statute must be construed as to make it effective and operative "on principle expressed in the maxim, "ut res magis valeat quam pereat"".
108. Keeping in view of the background in which, the two Central Acts have been enacted, it could be construed that the power of the Central Government conferred on the DGS by delegation to evaluate the training programme for the Seafarers and to conduct a survey for identifying the suitable qualifications, is for the purpose of mercantile marine, "Industry of Shipping" or in particular, to "Merchant Shipping', as spelt out in the MS Act, 1958.
109. The power to frame rules in consonance with the object of the MS Act and in order to maintain Standards of Merchant Marine, as per the International Convention, relating to Seafarers and award of CoCs is not covered by the provisions of the IMU Act and in that context, there is an exclusive domain and that alone is carved out of in Section 5 of the IMU Act. When the legislative intent is expressed in the objects and preamble of the two enactments, the salient provisions of the IMU Act and MS Act have to be examined in the context in which both the enactments have been made and the purpose sought to be achieved by the respective enactments. The intention of the legislature thus assimilates two aspects. In one aspect, it carries the concept of "meaning", i.e., what the words mean and in another aspect, it conveys the concept of "purpose and object" or the "reason and spirit' pervading through the Statute. The process of construction, therefore, combines both literal and purposive approaches. In other words, the legislative intention, i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
110. The stress by the respondents 1 and 3 is mainly on the words, "Approved education", i.e., approved as by the Central Government and that the power is traceable to the provisions of MS Act, by which, the Central Government have delegated the powers relating to award of CoC certificates by DGS. It is seen from the guidelines prescribed by the University, where the institutes are already approved prior to the issue of the guidelines, their approval, are deemed to have been incorporated under these guidelines. If on the date of coming into force of the guidelines, an institute has not complied with all the existing guidelines, circulars or orders issued by the DGS till such date, then the course under consideration of dispute, extension or deficiency will have to meet the requirements of the guidelines afresh.
111. A course or pattern of maritime study, is approved by a duly constituted Maritime University, comprising of a body of academicians, who are competent to prescribe the instruction, syllabi, pattern of study of any programme and award a certificate, diploma, degree, as the case may be. The DGS cannot make a generalised statement that such pattern of study or course are not approved by the Central Government, when all the courses hitherto approved by the DGS are deemed to have been approved by IMU, under the IMU guidelines.
112. In Rajendra Prasad Mathur v. Karnataka University reported in 1986 Supp. SCC 740, the Supreme Court held that it is for each universities to decide the question of equivalence of the examination and it would not be right for the Court to sit in judgment over the decision of the University relating to the academic question of equivalence because it is not a matter on which the Court possesses any expertise. The University is best fitted to decide whether any examination held by a University outside the State is equivalent to an examination held within the State having regard to the courses, the syllabus, the quality of teaching or instruction and the standard of examination.
113. In Bihar Public Service Commission and others v. Kamini and others reported in 2007 (5) SCC 519, the Supreme Court, at Paragraph 8 of the judgment, held that, "It is well settled that in the field of education, a Court of law cannot act as an expert. Normally, therefore, whether or not a student/candidate possesses requisite qualifications should better be left educational institutions. [vide University of Mysore v. Govinda Rao, (1964) 4 SLR 576 : AIR 1965 SC 491] This is particularly so when it is supported by an Expert Committee."
114. Reading of Section 5 of the IMU Act, makes it explicit that the legislature has provided certain positive acts to be performed by the University, such as inspection of the institutes, granting of approval of courses, conferment of degrees, etc., which are morefully set out in the IMU Act and the statutes, except awarding of Certificate of Competency. Thus, the University is specifically restrained not to do a particular, "a negative act". The construction of the statutory provisions under the IMU Act have to be given its effect, as intended by the Parliament and it cannot be made otiose or redundant. When the area of operation or demarcation of powers is spelt out in the statute, there is no reason to assume that the legislature has intended to curtail the powers and authority of IMU, in particular of the statutory authorities under the IMU Act.
As regards interpretation of the provisions in a Statute, let me consider the decisions relied on by the learned counsel for the petitioners.
115. In A.R.Antulay Vs. Ramdas Sriniwas Nayak and another reported in (1984) 2 SCC 500 the Supreme Court held that "It is well established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose. Section 8(1) says that the Special Judge shall take cognizance of an offence and shall not take it on commitment of the accused. The Legislature provided for both the positive and the negative. It positively conferred power on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible therefore, to read Section 8(1) as canvassed on behalf of the appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under Section 5-A illusory."
116. In State of Kerala v. Mathai Varghese and others reported in 1986 (4) SCC 746, where at Paragraph 6, the Supreme Court held as follows:
"The Court can merely interpret a provision so as to make explicit the intention of the legislature. It cannot rewrite, recast or redesign the provision since the power to legislate has not been conferred on the Court. The Court should make a purposeful interpretation so as to 'effectuate' the intention of the legislature and not a purposeless one in order to 'defeat' the intention of the legislators wholly or in part."
117. In Nelson Motis Vs. Union of India reported in (1992) 4 Supreme Court Cases 711, the Supreme Court held that "while interpreting statutes "if the language of the statute is clear and susceptible to only one meaning, it must be given effect to irrespective of the consequences."
118. In Union of India and another v. Deoki Nandan Aggarwal reported in 1992 Supp.(1) SCC 323, where, at Paragraph 14, held as follows:
"It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has 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. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities."
119. It is well settled in J.P.Bansal v. State of Rajasthan and another reported in 2003 (5) SCC 134 that interpretation postulates the search of the true meaning of the words used in the statutes as the medium of expression to communicate a particular thought. Statute being an edict of the legislature, the elementary principle of interpreting or construing a statute is to gather the "mens or sententia legis" of the legislature. At Paragraph 14, the Supreme Court further held that, "14. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so. (See: Frankfurter: Some Reflections on the Reading of Statutes in Essays on Jurisprudence, Columbia Law Review, p. 51.)"
120. At Paragraph 57 and 62 of the Judgement in Commissioner of Income Tax, Kerala v. Tara Agencies reported in (2007) 6 SCC 429, the Apex Court held that, "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.
62. Therefore, the legal position seems to be clear and consistent that it is the bounden duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated."
121. In the above reported judgment (Tara Agencies's case), the Supreme Court has considered an earlier decision in Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests reported in 1990 Supp. SCC 785, where the Apex Court has observed that, "in seeking legislative intention judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say." The decision of House of Lords in Pinner v. Everett reported in 1969 (3) All Eng. Reports 257 (HL), has also been considered, wherein, it has been observed that, "we have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute."
122. In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, etc. & Others reported in 1998 Writ. LR 641, at Paragraph 6, held as follows:
"If the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that the other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act."
123. In Captain Sube Singh v. Lt. Governor of Delhi [(2004) 6 SCC 440], the Supreme Court, at Paragraph 29, held as follows:
29. In Anjum M.H. Ghaswala, 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 Karnataka.) 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.
124. The Supreme Court in State of Jharkhand v. Ambay Cements reported in 2005 (1) CTC 223, at Paragraph 27, held as follows:
"27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
125. State Inspector of Police Vs Surva Sankaram Karri reported in (2006) 7 SCC 172, the Supreme Court held that a statutory functionary must act in a manner laid down in the statute.
126. In Pandit D Aher v. State of Maharashtra reported in 2007 (1) SCC 437, the Supreme Court, at Paragraph 19, held as follows:
"If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable."
127. The rule adopted in Taylor V. Taylor [1875] 1 Ch. D. 426, 431.) is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.
128. In Shrimathi Hira Devi and Ors Vs District Board, Shahjahanpur reported in AIR 1952 SC 362, the Supreme Court, at Paragraph 10, held that, "No doubt it is the duty of the Court to try to harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act."
129. The rule adopted in Taylor V. Taylor [1875] 1 Ch. D. 426, 431.) and followed in Shrimathi Hira Devi's case, has been reiterated in State of U.P. v. Singhara Singh and others reported in AIR 1964 SC 358.
130. The Supreme Court in Gurudevdatta Vksss Maryaadit and others v. State of Maharastra reported in 2001 (4) SCC 534, "it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute."
131. According to the respondents, the power to issue the notices is traceable to the provisions under the Merchant Shipping Act r/w. rules framed thereunder and the STCW Code. Perusal of the statutory provisions under Sections 79, 81 and 85 of the Merchant Shipping Act, 1958 and the rules framed thereunder does not in explicit terms define and demarcate the powers and authority of DGS in the matter of regulation of maritime institutions, approval of courses, inspection of the institutions, in contra distinction to the powers of the statutory authorities, as spelt out in IMU Act, with the clear intention of the legislature setting out various powers of the authorities of the University.
132. As stated supra, there is no specific provision in the MS Act or the rules framed thereunder empowering the respondents with an authority to regulate, supervise or approve maritime institutions. Therefore, it could be construed that traditionally the DGS under the provisions of M.S. Act, has issued guidelines and circulars to control and regulate maritime institutions, by granting approval of the courses, institutions, conducting inspections, etc., but the degrees/diplomas were continued to be awarded by the respective Universities, to which, the institutions were affiliated. Therefore, at best, it could be construed that hitherto the institutions were governed by executive instructions.
133. Let me consider some of the cases as to whether executive instructions can override the statutory provisions.
134. In State of Maharashtra Vs Jagannath Achvut Karandikar reported in 1989 Supp (1) SCC 393, the Supreme Court held that The executive instruction may supplement but not supplant the statutory rules.
135. In State of M.P. v. G.S.Dall and Flour Mills reported in 1992 Supp. (1) SCC 150, the Supreme Court held that, "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."
136. In Padma Sundra Rao v. State of Tamil Nadu reported in 2002 (3) SCC 533, at Paragraph No.12, 14 and 15, the Supreme Court held as follows:
"12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. Statutes should be construed, not as theorems of Euclid, Judge Learned Hand said, but words must be construed with some imagination of the purposes which lie behind them. (See Lenigh Valley Coal Co. v. Yensavage [.........]) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [...........].
14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd [.........]) The legislative casus omissus cannot be supplied by judicial interpretative process.
15. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. An intention to produce an unreasonable result, said Danckwerts, L.J., in Artemiou v. Procopiou[.......], is not to be imputed to a statute if there is some other construction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC [.........] where at AC p.577 he also observed: (All ER p.664-I) This is not a new problem, though our standard of drafting is such that it rarely emerges.]"
137. In Byram Pestonii Gariwala v. Union Bank of India and others reported in 1992 (1) SCC 31, at Paragraph No.29, the Supreme Court held as follows:
"It is a rule of legal policy that law should be altered deliberately rather than casually. Legislature does not make radical changes in law 'by a sidewind, but only by measured and considered provisions'."
138. The object of Rule 47 of the STCW Rules is to train and assess the Seafarers for issuance of Certificates of Competency for the various grades as provided under Section 78 of the Merchant Shipping Act, 1958 r/w. Rule 5 of the Merchant Shipping (STCW) Rules. The word "Seafarer" has to be understood in its ordinary or natural meaning in relation to the subject matter, in which, it is used in the legislation. In the case on hand, it is used in relation to mercantile marine or an industry and it has got a technical meaning, as understood by those conversant with the trade or industry. Looking at the definition of Seafarer as provided in Merchant Shipping Act 1958 and the rules framed thereunder and STCW code, it means only, "a sailor or mariner, who travels in the sea or other sea going vessel alone and it does not refer to a student who undergoes maritime studies in the institutions affiliated to IMU. It is also to be borne in mind that this Court cannot supply the omission in the M.S. Act and modify the legislative policy relating to Seafarers and substitute the same, for the students undergoing the courses approved by the University and imparted in Maritime institutions. Principles of law of interpretation enjoins the Courts the duty not to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous.
139. The language employed in Section 5(vi) of IMU Act is clear and there is no obscurity or ambiguity. The power that is conferred on the DGS is only to achieve the standard of competence specified in Chapter II and VIII of STCW Code and as to whether such training and assessment of Seafarers for certification is conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs 4 to 6 of Section A-1/6 of the STCW Code. Paragraphs 4 to 6 of Section A-1/6 of the STCW Code relates to inservice training of a Seafarer. Chapter II of STCW code deals with Master and Deck Department. Chapter VIII of STCW code deal with "watch keeping". The expression "Watch keeping" will include the period of training a candidate undergoes before he completes the course approved by DGS to get the Certificate of Competence. This duty of watch keeping does not precede the courses imparted by IMU or the various maritime institutions.
140. Yet another aspect to be considered is that the latter enactment has to be given its effect, so as to avoid any usurpation of function or danger to the provisions, when the purpose of or object of a statute are derived from legitimate sources. On a comparison of the object, scope, legislative intent of the two enactments, it could be seen that the words employed in both the enactments, such as, development and efficient maintenance of Indian Mercantile Marine, occurring in MS Act, conferment of CoC to Seafarers, vis-a-vis, promotion of maritime studies, training, conferment of degrees and other academic distinctions on the basis of examinations, evaluation or any other method of testing on persons, occurring in IMU Act, makes it abundantly clear that the words that are used in both the Central enactment have been correctly and exactly worded to the text and context of the two enactments.
141. It is well settled that there should be harmonious construction and when there are two enactments, which tend to give an impression of conflict, the one which is more specific would exclude the general on the principle generalia specialibus non derogant. It is also to be seen that the smooth working of the system which the statute purports to regulate, has to be given preference over the one which will introduce uncertainty, friction or confusion into the working of the system. Therefore, in my opinion, the provisions of IMU Act relating to recognition of institutions, approval of courses, providing institution, etc., will prevail over the general provisions in the MS Act.
142. Useful reference can be made to the decision of the Supreme Court in Municipal Corporation of Delhi v. Shiv Shanker reported in 1971 (1) SCC 442, wherein the Apex Court, at Paragraph 5 of the judgment, held as follows:
"The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The Courts, therefore, as a rule, lean against against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonably hypothesis to give effect to both at the same time."
143. The intention of the legislation is confined only to the issuance of Certificate of Competency as provided in Section 79(2) of the Merchant Shipping Act and not beyond that. In this context, the decisions of the Apex Court in J.P. Bansal v. State of Rajasthan reported in 2003 (5) SCC 134 and Commissioner of Income Tax, Kerala v. Tara Agencies reported in 2007 (6) SCC 429, can be made applicable.
144. Testing the powers of the DGS in the light of statutory provisions in Merchant shipping Act, the rules framed thereunder and also the STCW Code, and applying the principles contained in Shrimati Hira Devi & others Vs District Board, Shahiahanpur reported in AIR 1952 SC 362, this Court is unable to subscribe to the contentions of the respondents 1 and 3, that DGS is empowered to issue the impugned notices, which are in conflict with the provisions of IMU Act and the power to issue the notices are not traceable specifically within the four corners of Merchant Shipping Act. When the IMU Act has conferred the powers specially on the University to do various acts, such as, inspection, approval of courses, affiliation, granting permission for additional intake etc., and has also laid down the procedure as to how the said power has to be exercised, it necessarily prohibits DGS from doing of any act in any other manner than which has been prescribed. The meaning intended and conveyed in Sections 79, 81 and 85 of the Merchant Shipping Act, cannot be stretched beyond the purpose for which, they are incorporated in the statute and as held in A.R. Antulay v. Ramdas Sriniwas Navak and another reported in 1984 (2) SCC 500 and State of Kerala v. Mathai Verghese and others reported in 1986 (4) SCC 746. The power and authority of IMU is explicit in the Statute. If the interpretation of the respondents 1 and 3 to the provisions in M.S. Act and the rules made thereunder, in the manner as suggested were to be accepted, then it will not be a purposive interpretation of the statutory provisions of IMU Act, so as to effectuate the intention of the legislature and on the contra, it would defeat the intention of the very legislation itself.
145. Under the IMU Act, it shall be the duty of the Vice-Chancellor to see that IMU Act, the Statutes, the Ordinances and the Regulations are duly observed and he shall have all the powers necessary to ensure such observance. The Vice-Chancellor is an independent authority under the IMU and he cannot be controlled by DGS. The powers hitherto exercised by the DGS in the matter of maritime studies, such as, recognition, approval of courses, cannot be continued with the DGS, when the DGS and the Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi are part of the Academic Council, Executive Council and Planning Board. A sole member of the Academic Council and Executive Council with the active support of another member, viz., the Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi cannot take away the powers conferred on a statutory body, IMU. Merely because the Vice Chancellor was present in the meeting in the Chamber of Secretary, his personal opinion or consent cannot alter or abdicate the powers of the University. The powers of the Indian Maritime University Act passed by the Parliament, cannot be taken away by a decision of three people, in particular, respondents 1 to 3 and others.. The powers assumed by the Respondents 1 and 3 through the outcome of this meeting cannot be approved as a policy decision, as per Section 50 of the IMU Act, in the light of demarcation of separate powers under the two enactments, one governing maritime education and the other relating to Merchant Shipping and award of Certificate of Competency, which is required for Merchant Shipping.
146. Maritime institutions are already conducting pre-sea courses and all existing Institutes conducting any IMU approved course as on date of issuance of the guidelines come into effect shall be deemed to have been approved by IMU subject to the conditions in 1.3. Regulation 1.4.1 of the IMU Regulation, states that approval of IMU has to be sought for by any Institute, prior to running any maritime course. No proposal for approval of any maritime course or increase in intake in any maritime course including pre-sea courses will be entertained by IMU unless the Institute has been approved.
147. Under the guise of examining the qualifications of persons desirous of obtaining the certificates of competency under Section 78, the DGS with the active support of the Central Government, cannot override the statutory powers of the University, particularly that of the statutory authorities, like Academic Council, Executive Council and Planning Board, whose exclusive powers are demarcated in the IMU Act and the Statutes.
148. Rule 7 of the Merchant Shipping Act (Standards of Training, Certification and Watchkeeping for Seafarers) Rules, 1989, enables the DGS to examine the documentary evidence as to whether the candidate has fulfilled the eligibility criteria for joining an approved training and assessment programme. But DGS cannot usurp the powers of university. The University cannot abdicate its powers to DGS, by giving consent for approval, regulation of the institutes, grant of additional intake, etc.
149. The DGS, being a member of many statutory authorities under the IMU Act, has to assist the University in respect of determination and maintenance of Standards of Maritime Education and can also suggest remedial action to be taken by the Academic Council or Executive Council, in case of any deficiency to meet the Standards of Education and it cannot act independently in the sphere of co-ordination and determination of Standards of the courses approved by the University and regulate the functioning of the Institutes. Once the duties and functions of the statutory authorities are demarcated in the legislation, in which the DGS and the Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi, are constituent members, it is preposterous to suggest that the DGS, at the instance of the Central Government, in exercise of powers under the M.S. Act read with the rules framed thereunder and the STCW Code, has got the exclusive power and authority to trench upon the functions of the statutory authorities.
150. In Self Financing Private Teacher Training Institutes Association (Regd.), rep. By its Secretary, S.Nicholson and Ors v. the State of Tamil Nadu, rep., by its Secretary to Government, School Education Department and Ors. reported in 2006 (4) MLJ 1477, the petitioners therein have challenged the Government Order, by which, a High Level Committee was appointed to enquire into the deficiencies in private Teacher Training Institutes and B.Ed Colleges, and to find out if they possess the required infrastructural facilities and to file a report. As difficulty was expressed in visiting all the B.Ed Colleges, it was decided to constitute a Three Member Committee splitting the list of colleges regionwise. The above said G.O., was challenged in a batch of Writ Petitions. After considering a catena of decisions, a learned Judge of this Court, at Paragraph 26, has held as follows:
"26. When the power of the State to appoint a Committee itself is extremely doubtful, the Committee so appointed by the State has even lesser power to delegate its role to a Regional Committee, Section 17 of the NCTE Act deals with the powers of the NCTE to take action either by itself or on receipt of a complaint from any person. If the State was bona fide interested in improving the Standards of Teacher Training Institutes, in order to ensure that there is no slackening in the standards, it may, in specific cases of irregularity, bring the same to the notice of the NCTE, which may act upon it thereafter. Without there being specific provisions regarding the power of inspection, the State cannot interfere with the autonomy of the institutions which have been established as per the provisions of the Central Act."
151. It is worthwhile to refer some of the decisions relied on by the learned Judge, while setting aside the G.O., which affected the rights of the Institutes, being inspected by a Committee constituted by the State Government.
"18. In I.L.R. 1996-1, Madras 1007 [V. Chandra v Government of Tamil Nadu], it was held as follows:
".......It is the settled position of law that the executive power under Article 162 of the Constitution is not available in respect of the subject, which is already covered by the legislation. In other words, a field covered by the enactment which is known as covered field cannot be meddled with by the executive in the purported exercise of their power under Article 162 of the Constitution. This has been specifically provided for with a view to ensure that the State also is not above the Rule of law and above the provisions contained in the Constitution. In 2002 Writ L.R. 898 [M.Aarthi v. State of Tamil Nadu], it was held thus: "The executive power of the State under Article 162 of the Constitution is co-extensive with the legislative power and when the field of law is occupied by a legislative Act, the exercise of executive power is not available.""
152. If the DGS had any doubt or otherwise, regarding the manner in which, the courses are conducted, the deficiency in the institutions, which are approved by the deeming provision contained in the IMU guidelines, relating to affiliation, approval etc., he can always impress upon the Academic Council or Executive Council, in which, he is a member along with the Central Government to constitute an inspection committee to inspect any maritime institute and recommend for withdrawal of recognition, after following the procedure set out in IMU Act.
153. When the DGS forms part of the Academic Council, which is vested with the power to recognise an institution of higher learning, to inspect recognised institutes, grant approval of courses, provide instruction of study, control and regulate admission of students for various courses of study, etc., the said power or authority cannot be exercised independently by DGS and neither the IMU Act or MS Act sanctions such authority, to constitute his own MIC, with equal participation of IMU or DGS. Though DGS is a statutory authority appointed under Section 7 of the MS Act for award of Certificate of Competency.
154. The condition that DGS will continue to regulate the institutes/colleges conducting courses preparatory to CoC (CoC oriented courses/mandatory courses, i.e., courses forming part of approved education and training programme leading to CoC, which remain affiliated with the Universities other than IMU, would be in direct conflict with the powers of the IMU, in that, they cannot maintain different standards of maritime education, i.e., one in respect of the institutions/colleges, which remain affiliated with the IMU and the others affiliated with other Universities. Further, after the creation of IMU, all the colleges/institutes have been communicated to get themselves affiliated with IMU and the affiliation guidelines provide for deemed approval of the IMU. Similarly, there is no specific statutory provision in the IMU Act enabling DGS to grant approval of the new capacities in IMU/affiliated institutions, offering courses leading to the award of Certificate of Competency.
155. Even if the Central Government decides that IMU or the affiliated colleges to start Diploma in Nautical Science (DNS) programme leading to B.Sc., degree in Nautical Science from August' 2009 on the same lines as that of DGS-IGNOU programme, in view of the guidelines enabling deemed approval of the institutes for the said course, the institutes are only required to sign a Memo of Understanding with the IMU as its Distance Education Centre. It is therefore clear that the approved courses, earlier by DGS under (DGS-IGNOU) tie up, will hereafter be conducted by the University and the Colleges, in which event, it is for the University to prescribe the eligibility criteria, intake of students, etc., and the DGS cannot continue to regulate, monitor the institutes or assume the authority to prescribe eligibility criteria or decide the additional intake, which is not provided under the MS Act. Now the power is conferred on the University, except in the matter of awarding of Certificate of Competency. The IMU Act has superseded all the powers of DGS with regard to grant of approval of courses, fixing eligibility criteria, etc., as the IMU deems fit, grant additional intake of students for various courses, conduct inspections of affiliated Institutes, monitor affiliated Institutes, etc.
156. Even assuming that powers were exercised by DGS prior to the introduction of IMU Act by issuing guidelines, circulars under the MS Act, the same cannot override the statutory provisions of IMU Act. There is no controversy that the powers of training and assessment of Seafarers for the purpose of regulating the competency courses/preparatory courses still continue to be vested with the DGS.
157. Merchant Shipping Act, 1958, the rules framed thereunder takes care of Mercantile Marine or Merchant Shipping, which includes industry. Time and again the provisions are amended, rules are framed in confirmity with STCW Code, to maintain the Standard's of Seafarers as per International Conventions for the purpose of employment in Ships. Whereas, the IMU Act deals with the maritime education offered by Maritime University and the affiliated institutes. Insofar as imparting of maritime education leading to award of degrees and diplomas is concerned, it is with the exclusive jurisdiction of the University, which comprises of various councils and Board, in which the Secretary to the Government, Ministry of Shipping, Road Transport and Highways and his subordinate authority, namely the DGS is also a member. The contentions regarding written and oral examinations can be accepted only to the conduct of competency courses and not to basic education.
158. Reading of the Gazette notification dated 17.12.1960 together with the Merchant Shipping Act, 1958, this Court is of the considered view that under the provisions of the Merchant Shipping Act, 1958, the respondents, before the coming into force of the Indian Maritime University Act, have regulated or approved or even formulated certain guidelines for the pre-sea courses. But after the advent of the Indian Maritime University Act, the DGS cannot insist or demand that he would constitute a MIC with equal participation of the University. The DGS, neither has the powers to regulate, approve or formulate guidelines for the various pre-sea courses conducted by Maritime Institutes as presumed by him in the impugned notices, dated 27.04.2009 and 29.05.2009, nor has powers to monitor or jointly inspect Maritime Institutes for new approvals and additional capacities for 1-year DNS course leading to B.Sc (Nautical Science). Even assuming that these powers were exercised by DGS as per the delegation under the Merchant Shipping Act, 1958, as per the Gazette notification, dated 17.12.1960, such powers cannot be exercised by the DGS, after the introduction of the Indian Maritime University Act.
159. On a comparative reading and examination of the provisions of the IMU Act and the MS Act read with the rules framed thereunder and the STCW Code, relating to award of CoC, this Court is of the view that the respondents have misconstrued Rule 47 which does not empower the DGS to regulate, approve, monitor or formulate guidelines for the various pre-sea courses conducted by Maritime Institutes, after the advent of IMU. Therefore, this Court is of the view that it is incorrect to state that IMU Act has not been conferred with the powers of approval of the courses to IMU. The IMU has already commenced functioning and have granted approvals to various courses and Institutions.
160. Having regard to the specific language employed in Section 5 of the IMU Act and Sections 79, 81 and 85 of the MS Act with reference to the object of two enactments, the jurisdiction of DGS cannot be enlarged or extended beyond THE issuance of grant of Certificate of Competency to Seafarers for which purpose, he has to approve the preparatory courses, the passing of which alone would enable the candidates to become eligible for the certificate of competency. The field occupied by IMU under the provisions of IMU Act and the statutes is wider, than that of DGS under MS Act, 1958 and the rules framed thereunder read with STCW Code. The latter is narrow and confined to issuance and cancellation of CoC and regulating the programme, relating to preparatory course for CoC training and such other mattes incidental thereto. The subject matter of the two enactments and the area occupied by DGS and IMU under the two enactments are different and therefore, the provisions of both the enactments can co-exist.
161. Recognition of institutes offering maritime courses, approval of the institutes is now occupied by IMU under the latter Act, and by such enactment, the Parliament has intended to lay down an exhaustive code in replacing the procedure hitherto followed by DGS by executive instructions, in the form of guidelines. The rights and privileges of the colleges/institutes affiliated to the University are not dealt with under the MS Act, 1958 or the rules framed thereunder. Whereas, there are specific provisions in IMU Act dealing with the privileges of the maritime institutions.
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 Recognition 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 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.
165. The words 'till such date' employed in the affiliation and recognition to colleges/institutions (procedure, requirements, terms and conditions etc.,) would fortify the contentions of the maritime institutions that the power of the DGS in granting affiliation/recognition of the colleges/institutions is prohibited after the introduction of University Act, which confers powers on the statutory authorities under the IMU Act to examine whether the existing institutes or proposed institute/colleges, fulfil the norms and conditions for approval, affiliation of the institution/colleges, courses offered by them. Clause 1.4 and 1.5 of the Procedure and Requirements, terms and conditions, etc., covers the aspect of approval of the course, additional intake and the procedure for approval of institute respectively.
166. As rightly contended by the learned Senior Counsel for the petitioners, in the absence of any material, a different meaning to Section 5 of the IMU Act, cannot be ascribed by tracing the history of the legislation and attributing object and legislative intendment which suits the respondent's view of interpreting Section 5 of the IMU Act. Useful reference can be made to the decision in Harbhajan Singh Vs Press Council of India & others reported in (2002) 3 SCC 722. 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 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 S. MANIKUMAR, J.
skm consequently affect the interest of the approved institutes.
170. For all these reasons, the impugned notices are set aside and the Writ Petitions are allowed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
.10.2009 skm To
1. The Secretary, Ministry of Shipping, Road Transport and Highways (Department of Shipping), Government of India, No.1, Parliament Street, New Delhi 110 001.
2. The Vice Chancellor, Indian Maritime University, East Coast Road, Uthandi, Chennai 600 119.
3. The Director General of Shipping, Jahaz Bhavan, Walchand Hirachand Marg, Mumbai 400 001.
Writ Petition Nos.10912, 10913, 13687 and 13688 of 2009