IMPORTANT POINT
The Naval Officers who, by virtue of Section 80 of the Merchant Shipping Act, got certificates of service had never been assessed, therefore on their joining merchant Navy, the 1995 Convention specifically requires the Director General of Shipping to determine the competency.

JUDGMENT

Sema, J.-In all these petitions a common question of facts and law has been raised and as such they are being disposed of by this common judgment. For brevity, we are taking the facts from Writ Petition No. 238 of 2003.

2. Briefly stated the facts are as follows:-

The petitioners were serving in Indian Navy as Officers. They got released from Indian Navy and are now employed in Merchant Navy. As Officers in the Indian Navy they obtained, without examination, Certificates of Service (CoS) as the "Master of Foreign Going Ship" or "First Class Engineer" or "Second Class Engineer" as the case may be. The CoS was issued under Section 80, (as it then stood) of the Merchant Shipping Act, 1958 (in short "the Act"). As the Naval Officers were granted Certificates of Service without examination, in most cases, the owners of the merchant ship would employ these persons in a lower rank than that shown in the Certificates of Service.

3. The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 ("STCW 78") came into force globally. India was one of the signatories to the Convention and ratified the Convention on 16.2.1986. The object of the Convention is to have uniform standard of training & certification. Thus, Article VI of 1978 Convention enjoins that Certificates be issued for masters, officers or ratings. It provides that these shall be issued to those candidates who meet the requirements for service, age, medical fitness, training, qualification and examinations in accordance with the appropriate provisions. The 1978 Convention was amended in 1995 and is known as STCW 1995. This 1995 Convention extensively amended the 1978 Convention but Articles I to XVII of 1978 Convention remained unamended. Consequently, the Merchant Shipping (STCW) Rules, 1998 were also framed. Rule 11 inter alia requires that existing CoS holders who intend to become holders of CoC shall be required to complete approved training assessment. Similarly, Rule 15 requires that every Master on a sea-going ship of 500 gross tonnage or more shall hold an appropriate Certificate of Competency in Form 3. The respondent also issued M.S. Notice Nos. 2 of 2000, 4, 5 & 6 of 2001 in compliance with Rules 11 and 15 by prescribing the procedure of continued employment of CoS holders by obtaining a CoC as amended under STCW 1995.

4. Being aggrieved by the aforesaid procedure, a writ petition had been filed inter alia praying for the following relief:-

A. Issue Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate Writ or direction under Article 32 of the Constitution of India declaring that impugned Notices Nos. 2 of 2000 and 4, 5, & 6 of 2001 and Rules are unconstitutional and ultra vires the MS Act and STCW 95 Convention and consequently illegal, invalid, null and void and of no effect whatsoever: and

B. Issue Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate Writ or direction under Article 32 of the Constitution of India to quash and/or set aside the impugned M.S. Notice Nos. 2 of 2000 and 4, 5 & 6 of 2001: and

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5. We have heard S/Shri Joseph Vellapalli, M.N. Krishnamani and Venkiteswaran, learned Senior counsel appearing for the parties.

6. The short question that arises for consideration in these batch of petitions is that as to whether the CoS issued under Section 80 of the Act could be treated as a Certificate under the Convention after the 1978 Convention, as amended by 1995, came into force.

7. Counsel for the petitioners argued that the petitioners who have attained the rank of lieutenant in the executive branch of the Indian Navy, being the holder of CoS without examination under Section 80 of the Act, would continue to hold such certificate in view of saving clause of Section 5 though Section 80 was repealed by an Amendment Act of 1986 in consonance with STCW 1978. It is argued that Article VII of 1995 Convention continued to accept a