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TMI Blog2008 (8) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners areseeking to challenge the legality and propriety of the circular issued by the respondent No.1 on 29-5-2008 thereby informing the parties that Civil Aviation Requirements, hereinafter called as "the CAR" dated 27-7-2007 has been kept in abeyance and to quash and set aside the said circular. 3. When the matter came up for hearing on admission for the first time on 24-6-2008, this Court (Sri S.B. Mhase and Sri A.A. Kumbhakoni, JJ.) issued rule and reserved the order in relation to the interim relief. 4. On 26-6-2008 a chamber summons came to be taken out by the respondent No.4 herein for intervention in the matter and also to be heard before the pronouncement of order in relation to the interim relief asked for in the matter. However, by the order passed on that day, the respondent No.4 was granted liberty to mention the chamber summons after the pronouncement of order relating to the interim relief. 5. On 1-7-2008 this Court (Sri S.B. Mhase and Sri A.A. Kumbhakoni, JJ.) passed a speaking order in relation to the interim relief and directed as under: "(1) Pending the hearing and final disposal of this Writ Petition the effect, operation and execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he week commencing 21st July, 2008 and dispose of the same at the earliest. Till such order is passed, the 2nd June, 2008 order passed by the Civil Aviation Department will be operative which reads as follows: "In continuation of this office letter of even number dated 29th May, 2008, it is clarified that while keeping in abeyance the CAR - Section 7, Flight Crew Standards, Series 'J', Part III dated 27th July, 2007, the earlier instructions/guidelines on crew FDTL/FTL, as contained in AIC 28 of 1992 shall be effective." National Aviation Company of India Ltd. and Jet Airways be allowed to be impleaded as parties before the High Court in the proceedings and be heard in the matter. Parties are given liberty to raise their contentions before the High Court." 7. After the disposal of the SLP, the matter came up before this Court on 18-7-2008 whereby the petitioners were directed to carry out the amendment to join the respondent Nos.3 and 4 as the parties in terms of the order of the Apex Court in the said SLP, and with the consent of the parties the matter was fixed for final hearing after completion of the pleadings on 4-8-2008. Further, the date was extended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been enhanced all over the world. 11. The circular dated 29-5-2008 issued by the respondent No.1 also makes it known that the Government has appointed a Committee to examine the matter and the term of reference to the Committee have also been fixed while informing that CAR, Section 7, Flight Crew Standards, Series 'J' Part III, dated 27-7-2007 having been kept in abeyance. The petitioners thereupon enquired with the respondent No.1 as to what would be the rules that would govern their flight and flight duty times, in view of the CAR of 27-7-2007 having been kept in abeyance. The respondents responded under the letter dated 2-6-2008 that the earlier instructions/guidelines on crew FDTL/FTL as contained in the AIC 28 of 1992 shall be effective. The petitioner No.1 thereupon addressed a letter making grievance about infirmities in the said circular and requesting for withdrawal of the instructions keeping the CAR in abeyance and further during the interim period to give written clarification as to what FDTL pilots holding Indian DGCA issued licences are required to follow while operating Indian registered aircrafts world-wide. It was also reminded that Rule 42A of the said Act d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision by the Government/DGCA. The respondents are regulatory and competent authorities under the said Act and the Rules framed thereunder to take decisions relating to complex orders of policy concerning aviation industry of the country as a whole and keeping in view the flight safety, interest of the flying public and commercial and operational interest and concern of the airlines, the decision has been taken to keep the CAR of 27-7-2007 in abeyance. The petitioners have not disclosed any particulars in relation to the wild allegations made about the compromise of safety and possibility of greater incidents. The DGCA being fully competent as per Rule 133A to issue such circulars and bearing in mind the provisions of Section 21 of the General Clauses Act, 1897, has exercised the powers under the said Rule while issuing the circular and further clarification in that regard on 2-6-2008. 16. It is their further case that on 13-8-2007 the Indian Pilots' Guild addressed a representation to the DGCA that CAR of 27-7-2007 in its entirety did not take into consideration the fundamental objective of preventing flight crew fatigue in international operations and also pointed out the short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advantage of six landing per day and taking into consideration all these aspects the DGCA issued the impugned circular dated 29-5-2008 with further explanation on 2-6-2008 making interim arrangement on account of suspension of CAR dated 27-7-2007. 18. It is their further case that after taking into consideration all the practical difficulties that may be faced by the travelling public and the consequential effects which may occur therefrom, the DGCA and the Ministry of Civil Aviation constituted the Committee to examine the matter and to give its report on the terms of reference as under: "(i) to re-examine The Flight Duty Limitations of pilots in consultation with various stake holders keeping in view the present Civil Aviation environment in India, including general aviation, flying training operations and helicopter operations. (ii) to examine the prevailing international practices regarding FDTL/FTL being followed by major aviation regulators worldwide. (iii) recommended such amendments as may be suitably incorporated in the new car, keeping in view the availability of pilots and their optimum utilization with adequate duty time limitations in the context of the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try is facing unprecedented problems and is short of being crippled to the detriment of public at large as a result of acute shortage of pilots and other shortfalls. The circular has been issued by the regulatory authorities and it has not been issued for any extraneous consideration. The allegation in that regard is totally baseless. 20. Sri K.K. Singhvi, the learned senior counsel, while assailing the impugned circular, submitted that the challenge is four-fold. Firstly, the circular has been issued by the so called authority who has no jurisdiction to issue the same. Secondly, no procedure as prescribed under the law has been followed for suspending the CAR of 2007, as also to enforce the AIC 28 of 1992. Thirdly, once the CAR of 27-7-2007 is suspended, the earlier rules cannot revive. Fourthly, in any case, the principles of natural justice have not been followed. 21. While elaborating the grounds of challenge, Sri K.K. Singhvi submitted that in terms of CAR Section 1 -General Series 'A' Part III dated 13-10-2006 and Clauses 3 and 4 thereof, there is certain procedure prescribed for promulgation of CAR and the said CAR of 13-10-2006 was issued in terms of Rule 133A of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " identified by alphabetical letters, namely Series A, B, C etc. and under the same Series, various "Parts" are issued, such as Part I, II, III, etc. 3.2 The first page of the CAR shall indicate the date of issue along with the date of its effectiveness. Subsequent pages shall indicate the date of issue only. 3.3 Whenever a change is effected to a CAR, it shall be termed as revision and the revision number along with date of revision and effective date of revised CAR shall be indicated on the first page of the CAR. Note: The amendments carried out to the earlier issues of the CAR, shall also be read as Revision. 3.4 Consequently, the revision number and date of revision shall be reflected only on such pages, which are affected by the revision. Pages, which are not affected by the revision, shall contain initial date of issue only. 3.5 Every revision shall be accompanied by a "Revision Notice" which shall indicate the pages affected and the justification for the revision. The Revision Notice shall be filed along with the revised CAR in the folder. 3.6 Whenever there is a major change/revision, the Revision Notice shall indicate that the CAR h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it cannot be revived. Besides, even for revival, the procedure prescribed in terms of CAR of 13-10-2006 is required to be followed, which has not been followed and hence the impugned circular is bad in law along with its clarification. Reliance is sought to be placed in the decision in the matters of Om Prakash Gupta v. State of Uttar Pradesh, reported in AIR 1955 SC 600, Bishan Sarup Gupta v. Union of India and others, reported in AIR 1972 SC 2627, Ameer-un-Nissa Begum and others v. Mahboob Begum and others, reported in AIR 1955 SC 352, West U.P. Sugar Mills Assn. and others v. State of U.P. and others, reported in (2002) 2 SCC 645 and Scheduled Caste and Weaker Section Welfare Association (Regd.) and another v. State of Karnataka and others, reported in (1991) 2 SCC 604. He further submitted that in any case even the basic principles of natural justice have not been followed while seeking to revive AIC 28 of 1992 in as much as that not even objections and/or suggestions were called from the petitioners in relation to their grievances in that regard. 26. The learned Solicitor General of India, however, has submitted that the petition nowhere discloses any challenge to the commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is nobody's case that the said rule has been violated. What should be the procedure to be followed in fixing the duty hours or flying hours is a matter of policy and the Courts have no expertise to decide the same. It cannot be disputed that pursuant to the suspension of CAR of 27-7-2007 but for the order dated 2-6-2008 there would have been void or vacuum and it would have led to chaotic situation and, therefore, the interim arrangement was absolutely necessary which has been provided for under the said order dated 2-6-2008. Reliance is sought to be placed in the decisions in the matters of Scheduled Caste and Weaker Section Welfare Association (Regd.) and another v. State of Karnataka and others (supra), State of Punjab v. Tehal Singh and others, reported in (2002) 2 SCC 7 and Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal and others, reported in (2007) 8 SCC 418. 27. If one peruses the petition and the relief asked for therein, as rightly submitted by the learned Solicitor General, the petition nowhere seeks to challenge the order dated 2-6-2008. The challenge is essentially to the circular dated 29-5-2008 whereby the CAR of 27-7-2007 has been ordered to be suspended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat regard from the Court. No order can be allowed to be challenged by mere oral submissions in the course of arguments of a matter. The petitioners have to restrict the challenge to the extent it has been specifically pleaded and the relief can be asked to the extent it is prayed for. There is neither challenge thrown in the petition to the letter dated 2-6-2008 nor there is any prayer made in that regard. Being so, the respondents are justified in contending that the petitioners are not entitled to challenge the said communication at the eleventh hour by merely making oral submissions in that regard. 29. Even otherwise, there is absolutely no substancein the challenge to the letter dated 2-6-2008. The contention on behalf of the petitioners that AIC 28 of 1992 does not automatically revive, cannot be found fault with. However, that is not the case in hand. The letter dated 2-6-2008 specifically revives the provisions of AIC 28 of 1992 taking into consideration the void which was sought to be created in relation to the subject-matter consequent to suspension of CAR of 27-7-2007. 30. The decision of the Apex Court in Om Prakash Gupta's case (supra) is of no help to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original Act if the second repealing enactment manifests an intention to the contrary." The decision rather than helping the petitioners, supports the case of the respondents. The letter dated 2-6-2008 specifically revives AIC 28 of 1992. Being so, the specific words are added to the earlier decision suspending CAR of 27-7-2007 to revive AIC 28 of 1992. The letter dated 2-6-2008 clearly manifests intention to revive AIC 28 of 1992. 33. In West U.P. Sugar Mills's case (supra) the Apex Court was dealing with a ground of challenge to a circular to the effect that once the old rule is deleted and substituted by new rule, and subsequently even the new rule ceases to operate, that by itself would not revive the old rule and, therefore, the authority would have no power to act in accordance with the old rule. While dealing with the arguments, that once the old rule has been deleted or repealed and substituted by a new rule, whether the old rule would revive when the substituted rule ceases to operate, reference was made to three earlier decisions. In B.N. Tewari v. Union of India, reported in AIR 1965 SC 1430, wherein the question was whether the old rule revives after the substi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions (if any)' ......" It was held that considering the provisions of Section 21 of the General Clauses Act, when any alteration is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action. Such action in exercise of the implied power to rescind cannot then be said to have been exercised subject to the like conditions within the scope of Section 21 of the General Clauses Act. Again, we fail to understand the applicability of this ruling to the matter in hand. 35. The Rule 133A of the said Rules clearly empowers the DGCA to issue necessary directions not inconsistent with the said Act and the Rules made thereunder. The petitioners have not pointed out any single provision from the AIC 28 of 1992 which could be said to be inconsistent with the said Act or the Rules made thereunder. On the contrary, undisputedly, the Rule 42A of the said Rules clearly provides that no pilot of a flying machine, shall, in his capacity as such pilot, fly for more than 125 hours during any period of 30 consecutive days, provided that withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit has to be read in the context in which it has been made. The reference to the Government's involvement in issuance of the said circular is in relation to the policy of the Government reflected in its decision to constitute a committee in the matter which has been described in the circular dated 29-5-2008. Being so, various references to the Government in connection with the circular dated 29-5-2008 cannot be construed to mean that the circular has been issued by an authority not competent to issue the same. The circular on the face of it discloses to have been issued by the competent authority and that has been clearly established by the respondents. Therefore, there is no substance in the challenge to the said circular on the ground that it is not issued by the competent authority or that it has been issued without jurisdiction. Similarly, there is no substance in the challenge that no procedure has been followed in enforcing the AIC 28 of 1992. In view of letter dated 2-6-2008, the contention that the suspension of CAR of 27-7-2007 does not revive the AIC 28 of 1992 is also devoid of substance. 39. Since the instructions which have been issued under the letter dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid petition, the petitioners themselves had stated that the draft of CAR of 27-7-2007 reveals shocking deviations and selective exclusions from international safety regulations in respect of flight duty time and flight time limitations and that a clever attempt was seen to circumvent international research norms, scientific practices, practices by advanced countries and leading regulatory authorities.. It was further stated in the petition that they were challenging the amendment to flight duty time and flight time limitations in CAR of 27-7-2007 which are inconsistent with the existing safety rules and the settled principles and procedures adopted by the respondents as well as similar international regulatory authorities as the same are violative of constitutional rights under Article 14 of the Constitution of India. As rightly submitted by the learned advocate for the respondents, one wonders how suddenly CAR of 27-7-2007 is thought to be of great benefit to the petitioners moment it is suspended. It is also to be noted that prior to the suspension order, the petitioners themselves had represented against the CAR of 27-7-2007. In the circumstances, before challenging the suspens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wild allegations sought to be made in the matter are of no substance and are of no relevancy. 44. Attention is sought to be drawn to the interim order passed by the Division Bench in this matter on 1-7-2008, while contending that there is no reason to take a view different from the one taken in the said order which is a well reasoned order. With utmost respect, we are unable to accept the contention in this regard. Firstly, it is an interim order, a prima facie view taken in the matter and secondly, such an order is not binding upon this Bench while deciding the matter finally. In any case, we are not persuaded to take similar view in the matter. The case put forth before the Court has to be decided on the basis of the materials on record and the law applicable thereto. We cannot be allowed to be swayed away by emotions and the theory of ifs and but. The judicial decision has to be based on the facts placed before the Court, the issues which arise in the matter and the law relevant for deciding such issues. We have not been persuaded in any manner to take the similar view which was taken by the Division Bench while passing the impugned order. 45. In the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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