{"id":199000,"date":"2004-04-05T00:00:00","date_gmt":"2004-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naresh-kumar-anr-vs-union-of-india-ors-on-5-april-2004"},"modified":"2018-07-08T06:08:47","modified_gmt":"2018-07-08T00:38:47","slug":"naresh-kumar-anr-vs-union-of-india-ors-on-5-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naresh-kumar-anr-vs-union-of-india-ors-on-5-april-2004","title":{"rendered":"Naresh Kumar & Anr vs Union Of India & Ors on 5 April, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Naresh Kumar & Anr vs Union Of India & Ors on 5 April, 2004<\/div>\n
Author: Sema<\/div>\n
Bench: S.N. Variava, H.K. Sema.<\/div>\n
           CASE NO.:\nAppeal (civil)  6699 of 2002\n\nPETITIONER:\nNaresh Kumar & Anr.\n\nRESPONDENT:\nUnion of India & Ors.\n\nDATE OF JUDGMENT: 05\/04\/2004\n\nBENCH:\nS.N. VARIAVA & H.K. SEMA.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
WITH
\nCIVIL APPEAL NO. 6700 OF 2002<\/p>\n
Raj Kumar Hukku
\nVersus
\nUnion of India & Ors.\n<\/p>\n
TRANSFERED CASE ( C ) No. 112 of 2002<\/p>\n
Jagmohan Verma
\nVersus
\nUnion of India & Ors.\n<\/p>\n
WRIT PETITION ( C ) NO. 238 OF 2003<\/p>\n
G.S. Beniwal & Ors.\n<\/p>\n
Versus
\nUnion of India & Ors.\n<\/p>\n
WRIT PETITION ( C ) NO. 207 OF 2003<\/p>\n
Rajesh K. Mittal
\nVersus
\nUnion of India & Ors.\n<\/p>\n
SEMA,J.\n<\/p>\n
\tIn all these petitions a common question of facts and law has been
\nraised and as such they are being disposed of by this common judgment.  For
\nbrevity, we are taking the facts from Writ Petition No. 238 of 2003.
\n\tBriefly stated the facts are as follows:-\n<\/p>\n
\tThe petitioners were serving in Indian Navy as Officers.  They got
\nreleased from Indian Navy and are now employed in Merchant Navy.  As
\nOfficers in the Indian Navy they obtained, without examination, Certificates
\nof Service (CoS) as the “Master of Foreign Going Ship” or “First Class
\nEngineer” or “Second Class Engineer” as the case may be.  The CoS was
\nissued under Section 80, (as it then stood) of the Merchant Shipping Act,
\n1958 (in short “the Act”).  As the Naval Officers were granted Certificates of
\nService without examination, in most cases, the owners of the merchant ship
\nwould employ these persons in a lower rank than that shown in the
\nCertificates of Service.\n<\/p>\n
The International Convention on Standards of Training, Certification
\nand Watchkeeping for Seafarers 1978 (“STCW 78”) came into force
\nglobally.  India was one of the signatories to the Convention and ratified the
\nConvention on 16.2.1986. The object of the Convention is to have uniform
\nstandard of training & certification.  Thus, Article VI of 1978 Convention
\nenjoins that Certificates be issued for masters, officers or ratings.  It provides
\nthat these shall be issued to those candidates who meet the requirements for
\nservice, age, medical fitness, training, qualification and examinations in
\naccordance with the appropriate provisions. The 1978 Convention was
\namended in 1995 and is known as STCW 1995.  This 1995 Convention
\nextensively amended the 1978 Convention but Articles I to XVII of 1978
\nConvention remained unamended.  Consequently, the Merchant Shipping
\n(STCW) Rules, 1998 were also framed.   Rule 11 inter alia requires that
\nexisting CoS holders who intend to become holders of CoC shall be required
\nto complete approved training assessment.   Similarly, Rule 15 requires that
\nevery Master on a sea-going ship of 500 gross tonnage or more shall hold an
\nappropriate Certificate of Competency in Form 3.  The respondent also
\nissued M.S. Notice Nos.2 of 2000, 4, 5  & 6 of 2001 in compliance with
\nRules 11 and 15 by prescribing the procedure of continued employment of
\nCoS holders by obtaining a CoC as amended under STCW 1995.
\nBeing aggrieved by the aforesaid procedure, a writ petition had been
\nfiled inter alia praying for the following relief:-
\nA.\tIssue Writ of Certiorari or a writ in the nature of
\nCertiorari or any other appropriate Writ or direction
\nunder Article 32 of the Constitution of India declaring
\nthat impugned Notices Nos. 2 of 2000 and 4, 5, & 6 of
\n2001 and Rules are unconstitutional and ultra vires the
\nMS Act and STCW 95 Convention and consequently
\nillegal, invalid, null and void and of no effect
\nwhatsoever: and <\/p>\n
B.\tIssue Writ of Certiorari or a writ in the nature of
\nCertiorari or any other appropriate Writ or direction
\nunder Article 32 of the Constitution of India to quash
\nand\/or set aside the impugned M.S. Notice Nos. 2 of
\n2000 and 4,5 & 6 of 2001: and <\/p>\n
We have heard S\/Shri Joseph Vellapalli, M.N. Krishnamani and
\nVenkiteswaran, learned Senior counsel appearing for the parties.
\n\t\tThe short question that arises for consideration in these batch of
\npetitions is that as to whether the CoS issued under Section 80 of the Act
\ncould be treated as a Certificate under the Convention after the 1978
\nConvention, as amended by 1995, came into force.
\n\tCounsel for the petitioners argued that the petitioners who have
\nattained the rank of lieutenant in the executive branch of the Indian Navy,
\nbeing the holder of CoS without examination under Section 80 of the Act,
\nwould continue to hold such certificate in view of saving clause of Section 5
\nthough Section 80 was repealed by an Amendment Act of 1986 in
\nconsonance with STCW 1978.    It is argued that Article VII of 1995
\nConvention continued to accept all existing certificates including CoS as
\nvalid.  It is argued that Rule 15 framed under STCW Rules 1998 was in
\nviolation of the Act and the Convention which prescribed that only a CoC
\nholder could serve as a Master of a ship.  It is further argued that arbitrary
\ndistinction between the two certificates was created with malafide intention
\nof debarring CoS holders from getting employment on foreign going ships.
\nIt is argued that such arbitrary distinction sought to be achieved is in
\nviolation of Articles 14 and 19 of the Constitution.   These are the sums and
\nsubstances of the submission.\n<\/p>\n
CoS issued under Section 80 and validity thereof:
\n\tSection 80 as it stood before amendment reads:-
\n“80. (1) A person who has attained the rank of lieutenant
\nin the executive branch of the Indian Navy shall be
\nentitled to a certificate of service as the master of a
\nforeign-going ship without examination.\n<\/p>\n
(2) A person who has attained the rank of lieutenant or
\nsub-lieutenant in the engineering branch of the Indian
\nNavy shall be entitled without examination, if a
\nlieutenant to a certificate of service as first class engineer
\nand if a sub-lieutenant to a certificate of service as
\nsecond class engineer.\n<\/p>\n
(3) The Central Government may, by rules made under
\nthis Act and subject to such conditions and restrictions as
\nmay be specified therein, provide for the grant of
\ncertificates of service to officers of the Indian Naval
\nReserve Forces who have attained the prescribed ranks.\n<\/p>\n
(4) A certificate of service shall differ in form from a
\ncertificate of competency and shall contain the name and
\nrank of the person to whom it is delivered, and the
\nCentral Government shall deliver a certificate of service
\nto any person who proves himself to be entitled thereto.\n<\/p>\n
(5) Notwithstanding anything contained in this section,
\nthe Central Government may, if it is of opinion that a
\nperson who is entitled to a certificate of service under
\nthis section is not a fit person to hold such certificate,
\nrefuse to grant or deliver such certificate to him.\n<\/p>\n
(6) The provisions of this Act (including the provisions
\nrelating to penalties) shall apply in relation to a certificate
\nof service as they apply in relation to a certificate of
\ncompetency.”\n<\/p>\n
\tSection 80 has been deleted by an Amendment Act of 1986. This was
\ndone in compliance with STCW 1978.\n<\/p>\n
\tCounsel for the petitioners heavily relied upon Section 5 of the
\namending Act, which deals with the saving clause.  It reads:
\n“Sec.5.  For the removal of doubts, it is hereby declared
\nthat the amendments made in the principal Act by this
\nAct shall not apply to, or in relation to, any certificate of
\nservice granted under section 80 or recognised under
\nsection 86 of the principal Act before the commencement
\nof this Act and the principal Act shall apply in relation to
\nsuch certificates as if this Act had not been enacted.”\n<\/p>\n
\tCounsel argued that despite deletion of Section 80 of the principal
\nAct, the CoS would continue to apply as if the principal Act had not been
\namended.  We are unable to countenance with this submission for more than
\none reason.  Firstly, Section 5 of saving clause relates to CoS.  No doubt
\nSection 80 of the Act was holding the field before it was amended but it has
\neclipsed with the emergence of 1978 Convention as amended by 1995
\nConvention.  With the emergence of 1995 Convention there is no provision
\nfor  indefinite continuance of CoS in respect of the officers of the Merchant
\nShips.   As already noticed, the petitioners are now serving in Merchant
\nNavy.  India being a signatory to the 1995 Convention, it has to ensure
\nuniform standards, as prescribed by the Convention.\n<\/p>\n
Effect of Article VII:\n<\/p>\n
Article VII provides transitional provisions.   It reads:-\n<\/p>\n
(1)\tA certificate of competency or of service in a
\ncapacity for which Convention requires a certificate and
\nwhich before entry into force of the Convention for a
\nParty is issued in accordance with the laws of that Party
\nor the Radio Regulations, shall be recognized as valid for
\nservice after entry into force of the Convention for that
\nParty.\n<\/p>\n
(2)     After the entry into force of the Convention for a
\nParty, its Administration may continue to issue
\ncertificates of competency in accordance with its
\nprevious practices for a period not exceeding five years.
\nSuch certificates shall be recognized as valid for the
\npurpose of the Convention.  During this transitional
\nperiod such certificates shall be issued only to seafarers
\nwho had commenced their sea service before entry into
\nforce of the Convention for that Party within the specific
\nship department to which those certificates relate.  The
\nAdministration shall ensure that all other candidates for
\ncertification shall be examined and certificated in
\naccordance with the Convention.\n<\/p>\n
(3)\tA Party may, within two years after entry into
\nforce of the Convention for that Party, issue a certificate
\nof service to seafarers who hold neither an appropriate
\ncertificate under the Convention nor a certificate of
\ncompetency issued under its laws before entry into force
\nof the Convention for that Party but who have:\n<\/p>\n
(a)\tserved in the capacity for which they seek a
\ncertificate of service for not less than three years at
\nsea within the last seven years preceeding entry
\nforce of the Convention for that Party;\n<\/p>\n
 (b) \tproduced evidence that they have performed
\nthat service satisfactorily;\n<\/p>\n
(c)\tsatisfied the Administration as to medical
\nfitness, including eyesight and hearing, taking into
\naccount their age at the time of application.\n<\/p>\n
For the purpose of the Convention, a certificate of service
\nissued under this paragraph shall be regarded as the
\nequivalent of a certificate issue under the Convention.”\n<\/p>\n
Thus even though temporarily a Certificate of Service was valid, after
\nentry into force of the Convention for a Party,  a Certificate of Competence
\nhas  to be issued for a period not exceeding five years.  The last part of sub-
\nclause (2) of Article VII enjoins that “all other candidates”  (i.e. those who
\ndo not have Certificate of Competence) “shall be examined and certified in
\naccordance with the Convention.”\n<\/p>\n
\tCounsel has strenuously contended that CoS issued under Section 80
\nwould continue to be valid and acceptable in terms of Article VII(3) of the
\n1978 Convention as amended in 1995.   According to the counsel, all
\nexisting CoS issued under Section 80 and saved by Section 5 of the Act are
\nbeing recognised and accepted under Article VII of the Convention.
\nReading Article VII as it is, in our view, it only permits continuance of CoS
\ntemporarily. It is a transitional provision.  The governing provision remains
\nArticle VI which now requires that Certificates be issued to those who meet
\nthe requirements.  Now there can only be Certificates contemplated by the
\nConvention.  In India Certificates contemplated by the Convention are
\ncontinued to be called Certificates of Competence only for sake of
\nconvenience.\n<\/p>\n
Rule 15 and M.S. Notice 4 of 2001 are being discriminatory and
\nviolative of Articles 14 and 19 of the Constitution.
\n Before we answer this question we may at this stage notice the
\nprefaces of the 1978 Convention and 1995 Convention.  The preface to 1978
\nconvention reads:-\n<\/p>\n
“THE PARTIES TO THIS CONVENTION,
\nDESIRING to promote safety of life and property at sea
\nand the protection of the marine environment by
\nestablishing in common agreement international
\nstandards of training, certification and watchkeeping for
\nseafarers, <\/p>\n
CONSIDERING that this end may best be achieved by
\nthe conclusion of an International Convention on
\nStandards of Training, Certification and Watchkeeping
\nfor Seafarers,<\/p>\n
HAVE AGREED AS FOLLOWS:\n<\/p>\n
———\n<\/p>\n
———\n<\/p>\n
Further, the introduction of 1995 Convention reads:-
\nINTRODUCTION:\n<\/p>\n
1. The revised STCW Convention (STCW 95) entered
\ninto force on 1 February, 1997.  Transitional
\narrangements allow existing certificates to remain valid
\n(subject to existing revalidation requirements) for 5 years
\nuntil 1 February 2002.  The Convention requires that
\ncertificates issued under STCW 78 be assessed and
\nupdating training undertaken where necessary to meet the
\nSTCW 95 requirements.\n<\/p>\n
1.2  In the United Kingdom we have taken the
\nopportunity provided by the revision of STCW to review
\nour domestic certificate structure.  The new structure
\ncame into force on 13 March 1997 with the Merchant
\nShipping (Training and Certification) Regulations 1997.
\nTraining and examination under the existing
\narrangements leading to certificates of competency Class
\n1 to 5 may only be undertaken by those seafarers who
\ncommenced seagoing service which formed part of an
\napproved training or educational programme before 1
\nAugust 1998.  All candidates for merchant navy
\ncertificates starting training after 1 August 1998 must
\nreceive training which meets the requirements of STCW\n<\/p>\n
95.  <\/p>\n
.\n<\/p>\n
6.0\tCERTIFICATE OF SERVICE:\n<\/p>\n
6.1\tHolders of certificates of service who wish to
\nbecome holders of certificates of competency complying
\nwith the requirements of STCW 95, will be required to
\nundertake some assessment before the issue of any such
\ncertificate.  That assessment will make full use of the VQ
\nsystem and take account of previous experience.
\nCertificate holders will be assessed to ascertain that their
\ncompetence level matches that of the STCW 78,
\ncertificate of competency they are assumed to hold under
\nexisting equivalency arrangements (see Appendices 4
\nand 5), or that of a lower level of their choice.
\nAdditional training or updating may be required in order
\nto comply with the STCW 95 requirement to provide
\nevidence of training and competency regarding
\nemergency procedures, occupational safety, medical care,
\nsurvival functions and radio communications including
\nGMDSS, appropriate to the category of certificate
\ninvolved.  Following satisfactory assessment and any
\nadditional retraining or updating required, certificate of
\nservice holders will be issued with equivalent STCW 95
\ncertificates of competency as indicated in Appendices 2
\nand 3.  Alternatively, certificate of service holders may
\nretain their certificates and revalidate them at the due
\ndate.  However, revalidation will only last until 31
\nJanuary 2002 after which date the certificate of service
\nwill no longer be recognised.\n<\/p>\n
..\n<\/p>\n
\tReading of prefaces of 1978 Convention and 1995 Convention, it is
\nclear that rationale behind the signing of the International Convention, of
\nwhich India is a signatory, is to bring the uniformity of standard
\ninternationally.  This has become necessary to comply with the STCW 95
\nrequirement to provide evidence of training and competency regarding
\nemergency procedures, occupational safety, medical care, survival functions
\nand radio communications etc.    The whole idea behind convening of such
\nConventions is to attain the uniformity of standard of competence
\ninternationally because the ships sail on international water.\n<\/p>\n
      \tRule 15 reads:-\n<\/p>\n
“Minimum requirements for certification of Master
\n(Master of a foreign-going ship) on ships of 500 gross
\ntonnage or more:-\n<\/p>\n
1.\tEvery Master on a sea-going ship of 500 gross
\ntonnage or more shall hold an appropriate Certificate of
\nCompetency in Form 3.\n<\/p>\n
2.\tEvery candidate for certification shall-\n<\/p>\n
(i)\thold a certification of competency as First Mate of
\nforeign-going ship (Chief Mate on ships of 500 gross
\ntonnage or more);\n<\/p>\n
(ii)\thave approved sea-going service as an Officer in
\ncharge of a navigational watch on ships of 500 gross
\ntonnage or more for a period of not less than three years.
\nHowever, this period may be reduced by the Chief
\nExaminer concerned to a period of not less than thirty
\nmonths, or  pro-rata, if not less than one year of such sea-
\ngoing service served as Chief Mate;\n<\/p>\n
(iii)\thave completed an approved ship management
\ncourse;\n<\/p>\n
(iv)\thave completed approved simulator training in
\nship handling, and manoeuvring; and have completed
\napproved examination and assessment.\n<\/p>\n
\tM.S. Notice 4 of 2001 was issued on the basis of 1978 convention as
\namended in 1995.  The relevant paragraphs read as under:-\n<\/p>\n
Preamble: The  M.S Notice No.4 of 2001 Supercedes the
\nM.S. Notice No.2 of 2000 pursuant to the Statement of
\nCounsel appearing the the Director General of Shipping
\nto the Hon’ble Division Bench of Mumbai High Court
\npresided by Hon’ble Mr. Justice A.P.Shah and Hon’ble
\nMr. Justice S. Vazifdar in Writ Petition Nos. 1314\/2000,
\n1347\/2000, 1348\/2000, 1546\/2000 and 2322\/2000.\n<\/p>\n
1.\tPurpose of the Notice:-\n<\/p>\n
The purpose of this notice is to prescribe the procedure of
\ncontinued employment of officers presently in possession
\nof Certificate of service as Master (F.G.) by obtaining a
\nCertificate of Competency referred in Article VI.
\nRegulation 1\/2 of the STCW 78 Convention as amended
\nin 1955 (hereafter referred to as STCW 1995).  This has
\nbecome necessary because the amended STCW
\nConvention provides that the candidate for certification
\nneed to demonstrate their competence to the certifying
\nauthorities through appropriate assessment.  Further
\nmerchant ship’s design, construction operation, manning
\nand management practices have become considerably
\nspecialized and vastly different from those of naval ships.
\nHence the holders of the Certificate of Service from
\nIndian Navy will be required to undergo the procedures
\nof certification as described hereunder.\n<\/p>\n
Requirement under amended STCW Convention:-\n<\/p>\n
In accordance with STCW Convention as amended in
\n1995 and M.S. (STCW) Rules, 1998 (GSCR 91 (E) dated
\n28th April 1998), which will be fully implemented by Ist
\nFebruary 2002,  officers in possession of the Certificate
\nof Service are encouraged to obtain Certificate of
\nCompetency issued under the amended STCW
\nConvention.  As such, those officers who are in
\npossession of the Certificate of service and desirous of
\nconverting their Certificate of service into certificate of
\nCompetency shall be required to undertake steps as early
\nas possible under Rule 11 with regard to guidelines to be
\nfollowed by such officers to convert their Certificate of
\nService into Certificate of Competency.\n<\/p>\n
3..\n<\/p>\n
4.\tCategories of Naval Officers:-\n<\/p>\n
For the purpose of determining the appropriate training,
\neducation and assessment program, the holders of
\nCertificate of Service as Masters of a foreign going ships
\nare divided into the following categories:-\n<\/p>\n
(a)\tOfficers in possession of Certificate of service
\nwith minimum of 36 month of approved sea going
\nexperience of which at least 12 months in the capacity as
\nMaster on a trading ship of 3000 GT or more.\n<\/p>\n
(b)\tOfficers in possession of Certificate of service
\nwith approved sea going experience of 18 months of
\nmore but less than 36 months as a Watch Keeping
\nOfficers, of which at least 6 months in the capacity of
\nMaster, on a trading vessel of 3000 GT or more.\n<\/p>\n
(c )\tOfficers in possession of Certificate of Service
\nwith a minimum approved sea-going service of 6 months
\nor more but less than 18 months as a Watch-Keeping
\nofficer on a trading ship of  3000 GT or more.\n<\/p>\n
(d)\tOfficer in possession of Certificate of Service with
\nminimum of 36 months of approved sea going
\nexperience, of which at least 12 months in the capacity as
\nMaster, on a trading ship of 500 GT or more but less than
\n3000 GT.\n<\/p>\n
(e)\tOfficers in possession of Certificate of Service
\nwith approved Sea going service of 18 months or more
\nbut less than 36 months as a watch-keeping officer, of
\nwhich at least 6 months in the capacity as Master, on a
\ntrading vessel of 500 GT or more but less than 3000 GT.\n<\/p>\n
(f)\tOfficers in possession of Certificate of Service
\nwith an approved sea-going service of 6 months or more
\nbut less than 3000 GT.\n<\/p>\n
(g)\tOfficers in possession of Certificate of Service
\nwith less than 6 months approved sea-going service as a
\nWatch-keeping officer on a trading ship of 500 GT or
\nmore.\n<\/p>\n
5.\tOfficers in possession of Certificate of Service
\nwith minimum of 36 months of approved sea-going
\nexperience of which at least 12 months in the capacity as
\nMaster on a trading vessel of 3000 GT or more.\n<\/p>\n
Every such candidate shall successfully complete 1
\nmonth of Advanced Ship Board Management Course
\nbeing conducted at LBSCAMSAR Mumbai.  On
\nsuccessful completion of the said course, a candidate is
\nrequired to complete all modular courses as applicable
\nfor Master’s certification except ship maneuvering
\nsimulator course.  The candidate is  required to appear for
\noral assessment of Master (FG) by a panel of examiners
\nappointed by Chief Examiners of Master & Mates.\n<\/p>\n
On successful completion of the same, the candidate will
\nbe issued with Masters (FG) STCW 95 Certificate of
\nCompetency.\n<\/p>\n
6.<\/p>\n
7.     Officers in possession of certificate of service with
\napproved sea-going service of 6 months or more but less
\nthan 18 months as a watch-keeping officer on a trading
\nship of 3000 GT or more.\n<\/p>\n
Every such candidate shall successfully complete
\nrelevant course for the following written and oral
\nassessment of Management Level.\n<\/p>\n
(i)  Management level Function – I – Navigation\n<\/p>\n
(a)\tNavigation Aids Including Compasses<\/p>\n
\t     (ii) Management level Function-II\n<\/p>\n
     (a)Cargo Handling and Stowage<\/p>\n
(iii) Management level Function III – Controlling and
\nOperation of  Ships  and care for persons on board\n<\/p>\n
     (a)Naval Architecture Paper -II\n<\/p>\n
\t          (b)Maritime Legislation <\/p>\n
(iv) Master’s Advanced Shipboard Management Paper –
\nafter successful completion of relevant papers of
\nmanagement level written examination as above.\n<\/p>\n
\tThe candidate shall thereafter complete all required
\nmodular courses and appear for oral assessment of
\nMaster (FG) including syllabus of the relevant subjects of
\nthe Management Level by the panel of examiners as
\nappointed by Chief Examiner of Master & Mates.\n<\/p>\n
\tOn successful completion of the same, Master (FG)’s
\nSTCW Certificate of Competence will be issued.\n<\/p>\n
8..\n<\/p>\n
9.  Officers in possession of certificate of Service with
\nminimum of 36 months of approved sea-going
\nexperience of which at least 12 months in the capacity as
\nMaster on a trading ship of 500 GT or more but less than
\n3000 GT.\n<\/p>\n
Every such candidate shall successfully complete 1
\nmonth of Advanced Ship Board Management Course.
\nOn successful completion of the said course, a candidate
\nis required to complete all modular courses as applicable
\nfor master’s certification except ship maneuvering
\nsimulator course.  The candidate is then required to
\nappear for oral assessment in Advanced Ship-board
\nmanagement Functions, Navigation and Cargo Handling
\nFunctions of Master (FG) by a panel of examiners
\nappointed by Chief Examiners of Master & Mates.\n<\/p>\n
On successful completion of the same, the candidate will
\nbe issued with Master (FG) STCW 95 Certificate of
\nCompetency with the endorsement “Limited to vessels
\nless than 3000 GT”.\n<\/p>\n
10. ..\n<\/p>\n
11. .\n<\/p>\n
\tFrom a cursory reading of the notice, it is clear that different standards
\nare prescribed for different categories to achieve the competence of par
\nexcellence, keeping in view the emergency situation, occupational safety,
\nmedical care, survival functions etc.  while sailing on sea.  Thus, such
\nprocedures have been prescribed to attain the uniformity of standard
\ninternationally.  As already noticed India is a signatory to the Convention.
\n\tEven though the 1995 Convention made no changes in the Articles
\nRegulation 1\/2 provided that the certificate which was to be issued under
\nArticle VI required the Director General of Shipping to certify that the
\nperson has been found duly qualified in accordance with the provisions of
\nthe Regulation 1\/2.  Further, Regulation 1\/11 of the 1995 Convention states
\nas follows:-\n<\/p>\n
“Each party shall compare the standards of competency
\nrequired prior to 1st February 2002 and as per Part-A of the
\nSTCW Code-1995, and determine the need for requiring the
\nholders of all such certificates to undergo appropriate refresher,
\ncompeting training or assessment.”\n<\/p>\n
Thus, now the Director General of Shipping is required to determine
\nthe need for requiring the holders of  certificates to undergo either refresher
\ncourse or competing training or assessment before he can certify as required
\nunder the 1995 Convention.  It cannot be denied that a Master of a Merchant
\nNavy Ship, by the time he attains the rank of a Master, will have given 15
\nexaminations and 3 orals.  It cannot be denied that the Naval Officers who,
\nby virtue of Section 80, as it then stood, got certificates of service had never
\nbeen assessed and were merely given certificates of service without any
\nexaminations.  The 1995 Convention specifically requires the Director
\nGeneral of Shipping to determine the competency.
\nThe aforesaid notice was issued in conformity with Rules 11 and 15
\nframed under the Convention.  The distinction between CoS and CoC is
\nclearly based on intelligible differentia. Article 14 forbids discrimination but
\nallows reasonable classification based on intelligible differentia.  In the
\npresent case, the reasonable classification is aimed at to achieve the
\nuniformity of competence internationally.  By no stretch of imagination such
\nclassification can be termed as discriminatory or violative of Articles 14 and
\n19 of the Constitution.  Clearly in our view such Rules framed thereunder
\nare intra vires of the Convention and the Act.
\n\tHowever we found that provisions had been made in M.S. Notice
\nNos. 4, 5 and 6 for a holder of Certificate of Service (CoS) to convert this
\ninto a Certificate of Competency (CoC), as a master, including for those
\nwho had not sailed as a master.   For such persons who do not desire to
\nhave a master’s competency but want only an endorsement, under 1995
\nConvention, as a Chief Mate, no provisions were made.   It was however
\nclarified that under the “Merchant Shipping Rules” framed under the 1978
\nConvention, a Chief Mate in order to obtain a Master certificate of
\ncompetency (CoC) needed to go through written examinations of 5 papers
\nand an oral examination. However, under the Rules made under the 1995
\nConvention, these examinations are already covered for the Chief Mate
\nCertificate and, therefore, a Chief Mate has to only pass    orals      and    a
\ncourse    of   Advanced   Ship   Board   Management, for   one  month, to
\nconvert himself into a master under the 1995 Convention.  As a CoS holder
\nwho will be given a CoC as a Chief Mate under 95 Convention would not
\nhave to go through an examination for conversion to Master’s Certificate it
\nwill be contrary to Regulation 1\/11. It was thus clarified that on completion
\nof the requirements, the Certificate of Service holders, who have sailed as
\nChief Officers or as Second Mates, will be granted Certificates of
\nCompetency as Chief Officers with a notation “E”.  This notation is only to
\nidentify the holders of such Chief Mate  certificates and to ensure that,
\nwhen they come for conversion as masters, they would be required to
\nundergo written examinations covering phase-II of Chief Mate courses.  If
\nany of the Certificate of Service holders desire to convert his certificate into
\nCertificate of Competency, without the endorsement “E”, he may, at any
\ntime, undergo written examinations of phase-II courses, whereupon the
\nendorsement “E” would be deleted.\n<\/p>\n
Mr. Venkiteswaran, on instructions from the Director General of
\nShipping, gave an undertaking that the following provisions shall be made:-
\n“1)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with minimum 36 months of approved sea-going
\nexperience of which atleast 12 months in the capacity as
\nChief Mate on a trading vessel of 3000 GT or more.\n<\/p>\n
\tEvery such candidate shall successfully complete 3
\nmonths of Phase II course of Management level.  On successful
\ncompletion of said course a candidate is required to complete
\nall modular courses as applicable for Chief Mate certification.
\nThe candidate is then required to appear in oral assessment of
\nChief Mate (FG) by a panel of examiners appointed by Chief
\nExaminers of Master & Mate from The Directorate General of
\nShipping, Ministry of Shipping.\n<\/p>\n
\tOn successful completion of the same the candidate will
\nbe issued with Chief Mate (FG) certificate of competency
\n(COC) with suffix “E”.\n<\/p>\n
2.\tEx-Naval Officers in possession of Certificate of
\nService (COS) with minimum 36 months of approved sea-
\ngoing experience of which alteast 12 months in the capacity
\nas Chief Mate on a trading vessel of 500 GT or more but
\nless than 3000 GT.\n<\/p>\n
\tEvery such candidate shall successfully complete 3
\nmonths of Phase II course of Management level.  On successful
\ncompletion of said course a candidate is required to complete
\nall modular courses as applicable for Chief Mate certification.
\nThe candidate is then required to appear in oral assessment of
\nChief Mate (FG) by a panel of examiners appointed by Chief
\nExaminers of Master & Mate from The Directorate General of
\nShipping, Ministry of Shipping.\n<\/p>\n
\tOn successful completion of above, the candidate will be
\nissued with Chief Mate (FG) certificate of competency (COC)
\nwith endorsement “Limited to Vessel less than 3000 GT & with
\nsuffix “E”.\n<\/p>\n
3)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with approved sea-going experience of 18 months or
\nmore but less than 36 months as a watch-keeping officer, of
\nwhich atleast 6 months in the capacity as Chief Mate on a
\ntrading vessel of 3000 GT or more.\n<\/p>\n
\tEvery such candidate shall successfully complete 3
\nmonths of Phase I & 3 months of Phase II course of
\nManagement level.  On successful completion of said course a
\ncandidate is required to complete all Modular courses as
\napplicable for Chief Mate certification.  The candidate is then
\nrequired to appear in oral assessment of Chief Mate (FG) by a
\npanel of examiners appointed by Chief Examiners of Master &
\nMate from The Directorate General of Shipping, Ministry of
\nShipping.\n<\/p>\n
\tOn successful completion of above, the candidate will be
\nissued with Chief Mate (FG) certificate of competency (COC)
\nwith suffix “E”.\n<\/p>\n
4)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with approved sea-going experience of 18 months or
\nmore but less than 36 months as a watch-keeping officer, of
\nwhich atleast 6 months in the capacity as Chief Mate on a
\ntrading vessel of 500 GT or more but less than 3000 GT.\n<\/p>\n
\tEvery such candidate shall successfully complete 3
\nmonths of Phase I & 3 months of Phase II course of
\nManagement level.  On successful completion of said course a
\ncandidate is required to complete all Modular courses as
\napplicable for Chief Mate certification.  The candidate is then
\nrequired to appear in oral assessment of Chief Mate (FG) by a
\npanel of examiners appointed by Chief Examiners of Master &
\nMate from The Directorate General of Shipping, Ministry of
\nShipping.\n<\/p>\n
\tOn successful completion of above, the candidate will be
\nissued with Chief Mate (FG) certificate of competency (COC)
\nwith endorsement “Limited to Vessel less than 3000 GT & with
\nsuffix “E”.\n<\/p>\n
5)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with 12 months of approved sea-going experience in
\nthe capacity as Watch-keeping officer on a trading vessel of
\n3000 GT or more.\n<\/p>\n
\tEvery such candidate is required to complete all modular
\ncourses as applicable for 2nd Mate (FG) certification & appear
\nin oral assessment of 2nd Mate (FG) by a panel of examiners
\nappointed by Chief Examiners of Master & Mate from The
\nDirectorate General of Shipping, Ministry of Shipping.\n<\/p>\n
\tOn successful completion of the same the candidate will
\nbe issued with 2nd Mate (FG) certificate of competency (COC).\n<\/p>\n
6)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with minimum 12 months of approved sea-going
\nexperience in the capacity as Watch-keeping officer on a
\ntrading vessel of 500 GT or more but less than 3000 GT.\n<\/p>\n
\tEvery such candidate is required to complete all modular
\ncourses as applicable for 2nd Mate (FG) certification & appear
\nin oral assessment of 2nd Mate (FG) by a panel of examiners
\nappointed by Chief Examiners of Master & Mate from The
\nDirectorate General of Shipping, Ministry of Shipping.\n<\/p>\n
\tOn successful completion of the same the candidate will
\nbe issued with 2nd Mate (FG) certificate of competency (COC)
\nwith endorsement “Limited to Vessel less than 3000 GT.\n<\/p>\n
7)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with minimum 6 months or more but less than 12
\nmonths of approved sea-going experience in the capacity as
\nWatch-keeping officer on a trading vessel of 3000 GT or
\nmore.\n<\/p>\n
\tEvery such candidate is required to successfully complete
\n4 months of 2nd Mate (FG) course.    On successful completion
\nof the said course, the candidate is required to complete all
\nmodular courses as applicable for 2nd Mate (FG) certification.
\nThe candidate is then required to appear in oral assessment of
\n2nd Mate (FG) by a panel of examiners appointed by Chief
\nExaminers of Master & Mate from The Directorate General of
\nShipping, Ministry of Shipping.\n<\/p>\n
\tOn successful completion of above, the candidate will be
\nissued with 2nd Mate (FG) certificate of competency (COC).\n<\/p>\n
8)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with minimum 6 months or more but less than 12
\nmonths of approved sea-going experience in the capacity as
\nWatch-keeping officer on a trading vessel of 500 GT or
\nmore but less than 3000 GT.\n<\/p>\n
\tEvery such candidate is required to successfully complete
\n4 months of 2nd Mate (FG) course.  On successful completion of
\nthe said course, the candidate is required to complete all
\nmodular courses as applicable for 2nd Mate (FG) certification.
\nThe candidate is then required to appear in oral assessment of
\n2nd Mate (FG) by a penal of examiners appointed by Chief
\nExaminers of Master & Mate from The Directorate General of
\nShipping, Ministry of Shipping.\n<\/p>\n
On successful completion of the same the candidate will be
\nissued with 2nd Mate (FG) certificate of competency (COC)
\nendorsement “Limited to Vessel less than 3000 GT.\n<\/p>\n
9)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with less than 6 months of approved sea-going
\nexperience in the capacity as  Watch-keeping officer on a
\ntrading vessel of 3000 GT or more.\n<\/p>\n
\tEvery such candidate is required to successfully complete
\n4 months of 2nd Mate (FG) course and appear in written
\nexamination for 1) Ship Construction, Stability, Ship Safety &
\nEnvironment Protection 2) Cargo Handling & Stowage.  In
\naddition, complete all modular courses as applicable for 2nd
\nMate (FG) certification & appear in oral assessment of 2nd Mate
\n(FG) by a panel of examiners appointed by Chief Examiners of
\nMaster & Mate from The Directorate General of Shipping,
\nMinistry of Shipping.\n<\/p>\n
\tOn successful completion of the same the candidate will
\nbe issued with 2nd Mate (FG) certificate of competency (COC).\n<\/p>\n
10)  Ex-Naval Officers in possession of Certificate of Service
\n(COS) with minimum 12 months of approved sea-going
\nexperience in the capacity as Watch-keeping officer on a
\ntrading vessel of 500 GT or more but less than 3000 GT.\n<\/p>\n
\tEvery such candidate is required to successfully complete
\n4 months of 2nd Mate (FG) course and appear in written
\nexamination for 1) Ship Construction, Stability, Ship Safety &
\nEnvironment Protection 2) Cargo Handling & Stowage.  In
\naddition, complete all modular courses as applicable for 2nd
\nMate (FG) certification & appear in oral assessment of 2nd Mate
\n(FG) by a panel of examiners appointed by Chief Examiners of
\nMaster & Mate from The Directorate General of Shipping,
\nMinistry of Shipping.\n<\/p>\n
On successful completion of the same the candidate will be
\nissued with 2nd Mate (FG) certificate of competency (COC)
\nendorsement “Limited to Vessel less than 3000 GT.\n<\/p>\n
NOTE<\/p>\n
1)\tSuffix “E” indicates that the candidate has undergone the
\ncourse but not passed the written examination.  Therefore,
\nsuch candidates are required to pass examination of Phase II
\nsubjects, namely, navigational Aids including compasses,
\nBridge Watch-keeping, Ship Handling & Emergencies,
\nEngineering Knowledge, instruments & control systems,
\nNaval architecture paper II & Maritime legislation (Total 5
\nNos.) prior to being considered eligible for Master’s
\nexamination.\n<\/p>\n
This is required to facilitate such candidates fulfill the
\ncompetence & eligibility criteria for Master’s examination.\n<\/p>\n
(i)\t“Trading ships” in the merchant navy means tanker,
\nbulk carrier, container ship, general cargo ship or
\npassenger ship and such other ships which are used
\nfor carriage of cargo or passenger or both.\n<\/p>\n
(ii)\tThe assessment of approved sea time shall be carried
\nout as per prescribed guidelines in META Manual
\nVolume – 1 (Reference Section M-II\/11)<\/p>\n
(iii)\tSuccessful completion of course means completion of
\nthe prescribed term of the respective courses and
\ncompletion of the process of internal assessment by
\nany institute approved by the Directorate General of
\nShipping.\n<\/p>\n
(iv)\tThose who have completed the modular courses at
\nany institute approved by the Directorate General of
\nShipping on or before 1st March 2001 would be
\naccepted as having successfully completed the
\nmodular courses.\n<\/p>\n
(v)\tThe expiry date for assessment of sea time eligibility
\ncriteria for officers in possession of Certificate of
\nService is 31st January, 2002.\n<\/p>\n
(vi)\tThe panel of examiner, appointed by the Chief
\nExaminer of Master & Mates shall include at least one
\nexternal examiner from the industry, on the basis of
\nthe guidelines laid down for this purpose.”\n<\/p>\n
We order accordingly.\n<\/p>\n
This bunch of petitions is being disposed of in the above terms.
\nParties are asked to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Naresh Kumar & Anr vs Union Of India & Ors on 5 April, 2004 Author: Sema Bench: S.N. Variava, H.K. Sema. CASE NO.: Appeal (civil) 6699 of 2002 PETITIONER: Naresh Kumar & Anr. RESPONDENT: Union of India & Ors. DATE OF JUDGMENT: 05\/04\/2004 BENCH: S.N. VARIAVA & H.K. SEMA. JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-199000","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNaresh Kumar & Anr vs Union Of India & Ors on 5 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naresh-kumar-anr-vs-union-of-india-ors-on-5-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naresh Kumar & Anr vs Union Of India & Ors on 5 April, 2004 - 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