Jt.Action Commit.Of Airlines ... vs Director General Of Civil Aviation & Ors

Pilots Associations of India & Ors. ..Appellants

Versus

The Director General of

Civil Aviation & Ors. ..Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order

dated 14.8.2008 passed by the High Court of Judicature at

Bombay dismissing the Writ Petition No. 1687 of 2008,

wherein the appellants had challenged the validity and

propriety of a Circular issued by the Director General of Civil

Aviation, (hereinafter called as `DGCA'), respondent No.1

dated 29.5.2008, to the effect that Civil Aviation Requirements

(hereinafter called as the `CAR') dated 27.7.2007 had been

kept in abeyance.

3. Facts and circumstances giving rise to this case are that the

appellants are the Joint Action Committees of the Airlines

Pilots Association representing several airlines operating in

India. The dispute relates to the Flight Time (FT) and Flight

Duty Time Limitation (FDTL), as there is some variance

between the Aeronautical Information Circular (hereinafter

called as `AIC') No.28/92 and the CAR 2007. Vide AIC

28/92, FT and FDTL had been defined and fixed depending

upon the distance of destination and number of landings. The

rest period for the pilots stood substantially changed by the

CAR 2007 to the greater benefit of the pilots. However, a large

number of representations had been made by the airlines to the

DGCA and the Central Government, respondents herein, to

the effect that it was practically not possible for them to ensure

compliance of CAR 2007 and thus, the same was kept in

abeyance. By a subsequent order dated 2.6.2008, the AIC

28/92 was revived.

2 4. Appellants challenged the Circular dated 29.5.2008 before the

High Court on the grounds, inter-alia, that even if CAR 2007

is kept in abeyance, the AIC 28/92, which stood obliterated,

could not be revived; the CAR 2007 had been kept in

abeyance by the order of the Authority, which did not have the

competence to interfere in the functioning of the DGCA,

respondent No. 1. The statutory authority i.e. DGCA alone is

competent to pass the appropriate order in the matter. The

Circular dated 29.5.2008 has seriously jeopardised the safety

of passengers and the same was passed in flagrant violation of

the principles of natural justice. However, the High Court did

not accept the submissions of the appellants, rather rejected the

same in an elaborate judgment. Hence, this appeal.

5. Shri K.K. Venugopal, learned senior counsel appearing for the

appellants has agitated all the issues raised before the High Court.

Once AIC 28/92 stood obliterated, the question of its

revival/application/enforcement on putting the CAR 2007 in abeyance

could not arise. More so, the orders by the DGCA make it abundantly

clear that the same had been passed on instructions from the

competent authority. The order stood vitiated as the same had not

3

been passed by the DGCA on its own. Law does not permit the

keeping of the subordinate legislation in abeyance without following

the procedure, prescribed for its enactment. The Circular dated

29.5.2008 had been issued in violation of the guidelines stipulated for

issuance of the CAR. The judgment and order impugned herein is

liable to be set aside and the appeal deserves to be allowed.

6. On the contrary, Shri Parag P. Tripathi, learned ASG, Shri C.U.

Singh and Shri L. Nageshwar Rao, learned senior counsel appearing

for the respondents, have submitted that the writ petition filed by the

appellants before the High Court was not maintainable as none of the

necessary parties had been impleaded therein. However, the

respondents, i.e. the airlines got themselves impleaded in the petition.

The AIC and CAR fall within the category of executive instructions

which simply provide the guidelines for persons working in the

department. The said administrative instructions do not have any

statutory force and thus can be kept in abeyance, altered or replaced

by another executive instructions. Some of the appellants themselves

challenged the CAR dated 27.7.2007 by filing Writ Petition No.2176

of 2007 on the grounds that the said CAR revealed shocking

deviations and selective exclusions from international safety

4

requirements in respect of FDT and FTL. It has further been submitted

therein that the amendment to FDT and FTL in the said CAR was

neither in conformity with the existing safety rules, nor with settled

principles and procedures adopted by the similar international

regulatory authorities. However, the said writ petition stood dismissed

as withdrawn vide order dated 31.1.2008. Once the CAR dated

27.7.2007 has been put under suspension, the same is also under

challenge by the appellants which also include some of the petitioners

in Writ Petition No. 2176 of 2007. Their conduct is tantamount to

approbate and reprobate which is not permissible in law. The DGCA

had communicated vide letter dated 29.5.2008 its decision to keep the

CAR 2007 in abeyance on the basis of advice/decision taken by the

competent authority, i.e. the Central Government. The Hon'ble

Minister was the competent authority under the Business Rules 1961.

The DGCA himself had also participated in the process. The order

dated 2.6.2008, providing that AIC 28/1992 would be effective once

again, was not challenged by the appellants for the reasons best

known to them. An order which is not under challenge, could not be

quashed. Thus, no fault can be found with the impugned judgment

and order. The appeal lacks merit and is liable to be dismissed.

5 7. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

Relevant Statutory Provisions:

8. It may be necessary to make reference to relevant provisions of

the Aircraft Act, 1934 (hereinafter referred to as `Act 1934'). Section

4A of the Act 1934 provides for safety oversight functions that the

DGCA shall perform the safety oversight functions in respect of

matters specified in this Act or the rules made thereunder. Section 5

empowers the Central Government to make rules. Sections 5(2) and

5-A of the Act 1934 read as under:

(2) Without prejudice to the generality of the

foregoing power, such rules may provide for-

...................................

(m) the measures to be taken and the equipment to

be carried for the purpose of ensuring the safety

of life.

5A. Power to issue directions.-(1) The Director-

General of Civil Aviation or any other officer specially

empowered in this behalf by the Central Government

may, from time to time, by order, issue directions,

consistent with the provisions of this Act and the rules

made thereunder, with respect to any of the matters

specified in clauses (aa), (b), (c), (e), (f),(g), (ga), (gb),

(gc), (h), (i), (m) and (qq) of sub-section (2) of section

5, to any person or persons using any aerodrome or

engaged in the aircraft operations, air traffic control,

maintenance and operation of aerodrome,

communication, navigation, surveillance and air

6

traffic management facilities and safeguarding civil

aviation against acts of unlawful interference, in any

case where the Director-General of Civil Aviation or

such other officer is satisfied that in the interests of the

security of India or for securing the safety of aircraft

operations it is necessary so to do.

(2) Every direction issued under sub-section (1) shall

be complied with by the person or persons to whom

such direction is issued.

Section 14 provides that rules shall be made after publication.

9. The provisions of the Aircraft Rules, 1937 (hereinafter referred

to as `Rules 1937') read as under:

"3(22)- "Flight time"-

(i) in respect of any aeroplane, means the total

time from the moment of the aeroplane first

moves for the purpose of taking off until the

moment it finally comes to rest at the end of the

flight; and

.............................

.........................

29C. Adoption of the Convention and Annexes.- The

Director-General may lay down standards and

procedures not inconsistent with the Aircraft Act 1934

(22 of 1934) and the rules made thereunder to carry

out the Convention and any Annex thereto.

42A. Pilot not to fly for more than 125 hours during

any period of 30 consecutive days.

133A. Direction by Director-General- (1) The

Director-General may, through Notices to Airmen

(NOTAMS), Aeronautical Information Publication,

Aeronautical Information Circulars (AICs), Notice to

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Aircraft Owners and Maintenance Engineers and

publication entitled Civil Aviation Requirements issue

special directions not inconsistent with the Aircraft

Act, 1934 (22 of 1934) or these rules, relating to the

operation, use, possession, maintenance or navigation

of aircraft flying in or over India or of aircraft

registered in India.

(2) The Civil Aviation Requirements under sub-

rule (1) shall be issued after placing the draft

on the website of the Directorate General of

Civil Aviation for a period of thirty days for

inviting objections and suggestions from all

persons likely to be affected thereby:

Provided that the Director General may, in the

public interest and by order in writing, dispense with

the requirement of inviting such objections and

suggestions.

(3) Every direction issued under sub-rule (1) shall

be complied with by the persons or persons to whom

such direction is issued." (Emphasis added)

10. The case requires to be considered in the light of the aforesaid

submissions, the factual foundation laid by the parties and the relevant

statutory provisions.

11. Admittedly, a Writ Petition No. 2176 of 2007 was filed by

some of the present appellants seeking the following reliefs:

"(a) That this Hon'ble Court be pleased to hold

and declare that the impugned amendment dated

27.7.2007 of Civil Aviation Requirements with the

subject "Flight Duty Time and Flight Time Limitations

- Flight Crew Members" is illegal, irrational and

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inconsistent with the settled principles of law and

practice.

(b) That this Hon'ble Court be pleased to issue a writ

of mandamus or a writ in the nature of mandamus or

any other appropriate writ, order or direction under

Article 226 of the Constitution of India, directing the

respondent DGCA, not to proceed with the impugned

amendment dated 27.7.2007 without conducting a

thorough scientific study by an expert committee

consisting of Aviation Medical Specialists under the

guidance of an impartial medical authority such as

DGCA-Air, IAF who has no commercial or vested

interests.

(c) That pending the hearing and final disposal of

this petition, this Hon'ble Court be pleased to direct the

respondent to maintain status quo in respect of Flight

Duty Time Limitations (FDTL) and Flight Time

Limitations (FTL) as on June 2007."

12. The same was withdrawn vide order dated 31.1.2008 and the

order runs as under:

"The learned counsel for the petitioners

submits that the grievance has already been redressed

and he does not want to pursue the petition. Petition

dismissed as not pressed."

The appellants/writ petitioners therein had also submitted that

AIC 28/92 was a most scientific and properly formulated direction

and CAR 2007 was based on a draft which revealed shocking

deviations and selective exclusions from safety regulations in respect

of FDT and FTL, adopted/accepted internationally.

9 13. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, this Court

observed as under:-

"Law does not permit a person to both

approbate and reprobate. This principle is based on

the doctrine of election which postulates that no

party can accept and reject the same instrument and

that "a person cannot say at one time that a

transaction is valid and thereby obtain some

advantage, to which he could only be entitled on the

footing that it is valid, and then turn round and say it

is void for the purpose of securing some other

advantage."

14. The doctrine of election is based on the rule of estoppel- the

principle that one cannot approbate and reprobate inheres in it. The

doctrine of estoppel by election is one of the species of estoppels in

pais (or equitable estoppel), which is a rule in equity. By that law, a

person may be precluded by his actions or conduct or silence when it

is his duty to speak, from asserting a right which he otherwise would

have had. Taking inconsistent pleas by a party makes its conduct far

from satisfactory. Further, the parties should not blow hot and cold by

taking inconsistent stands and prolong proceedings unnecessarily.

(Vide: Babu Ram @ Durga Prasad v. Indra Pal Singh (D) by

L.Rs., (1998) 6 SCC 358; P.R. Deshpandey v. Maruti Balaram

Haibatti, (1998) 6 SCC 507; and Mumbai International Airport

1

Private Limited v. Golden Chariot Airport & Anr., (2010) 10 SCC

422).

15. In view of the above, it is clearly evident that some of the

present appellants, had challenged the CAR 2007, wherein it had been

submitted that AIC 28/92 was based on better scientific studies. The

same remained in operation for more than 17 years and no one had

ever raised any grievance in respect of its contents or application.

However, it appears that during the pendency of the said writ petition,

grievance of those petitioners stood redressed and, thus, they

withdrew the writ petition. They did not even ask the court to reserve

their right to file a fresh petition challenging the same, in case the

need arose, as required in the principle enshrined in Order XXIII of

the Code of Civil Procedure, 1908. Such a conduct of those appellants

in blowing hot and cold in the same breath is not worth approval.

16. The appellants have raised the issue as to whether order dated

29.5.2008, keeping the CAR 2007 in abeyance could be passed

without following the procedure prescribed in CAR dated 13.10.2006.

CAR dated 13.10.2006 provides for a detailed procedure for the

promulgation of CAR. Clause 3.3 provides that whenever a change is

1

effected to a CAR, it shall be termed as a revision and effective date

of the revision of CAR shall be indicated therein. According to clause

4 thereof, if a new CAR or a revision to the existing CAR is proposed

to be issued, the draft of the proposed CAR/revision shall be posted

on DGCA's website or circulated to all the persons likely to be

effected thereby inviting their objections/suggestions. Objections so

received shall be analysed, considered and incorporated in case the

same are found to be acceptable, before the promulgation of CAR.

17. In State of A.P. & Ors. v. Civil Supplies Services Assn. &

Ors., (2000) 9 SCC 299, the government had issued a notification that

provided, inter-alia, that certain rules which had earlier been framed

by the government would be kept in abeyance. The Administrative

Tribunal quashed the same directing the government to frame the

rules in a particular manner and to give partial effect to the rules kept

in abeyance. However, on appeal, this Court set aside the order of the

Tribunal and held that the Tribunal could neither have given

directions to the Government to frame rules in any particular manner,

nor to give partial effect to the rules kept in abeyance, as the order had

exclusively been legislative in character.

1 Thus, in exceptional circumstances, it may be permissible for

the statutory authority to put subordinate legislation in abeyance.

However, such an order being legislative in character, is not

warranted to be interfered by the Court/Tribunal.

18. The CAR 2007 is neither a statute nor a subordinate

legislation. Provisions contained in Sections 4A, 5 & 5A of the

Act 1934 and Rules 42A & 133A of the Rules 1937, make it

evident that the same are merely executive instructions which

can be termed as "special directions". The executive

instruction can supplement a statute or cover areas to which

the statute does not extend, but it cannot run contrary to the

statutory provisions or whittle down their effect. (Vide: State

of M.P. & Anr. v. M/s. G.S. Dall & Flour Mills (1992) supp.

1 SCC 150).

19. In Khet Singh v. Union of India, AIR 2002 SC 1450, this

Court considered the scope and binding force of the Executive

instructions issued by the Narcotic Bureau, New Delhi and came to

the conclusion that such instructions are binding and have to be

followed by the investigating officer, coming within the purview of

Narcotic Drugs and Psychotropic Substances Act, 1985, even though

1

such instructions do not have the force of law. They are intended to

guide the officers and to see that a fair procedure is adopted by them

during the investigation of the crime.

20. A Constitution Bench of this Court in Sant Ram Sharma v.

State of Rajasthan & Ors., AIR 1967 SC 1910 held as under:

"It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."

(Emphasis added)

Thus, an executive order is to be issued keeping in view the

rules and executive business, though the executive order may not have

a force of law but it is issued to provide guidelines to all concerned,

who are bound by it.

21. In Union of India & Anr. v. Amrik Singh & Ors., AIR 1994

SC 2316, this Court examined the scope of executive instructions

issued by the Comptroller and Auditor General for making the

appointments under the provisions of Indian Audit and Accounts

Department (Administrative Officers, Accounts Officers and Audit

Officers) Recruitment Rules, 1964, and came to the conclusion that

the CAG of India had necessary competence to issue departmental

1

instructions on matters of conditions of service of persons serving in

Department, being the Head of the Department, in spite of the

statutory rules existing in this regard. The Court came to the

conclusion that an enabling provision is there and in view thereof, the

CAG had exercised his powers and issued the instructions which are

not inconsistent with the statutory rules, the same are binding for the

reason that the provision in executive instructions has been made with

the required competence by the CAG.

22. Thus, it is evident from the above that executive instructions

which are issued for guidance and to implement the scheme of the Act

and do not have the force of law, can be issued by the competent

authority and altered, replaced and substituted at any time. The law

merely prohibits the issuance of a direction, which is not in

consonance with the Act or the statutory rules applicable therein.

23. This Court in State of U.P. & Ors. v. Hirendra Pal Singh

etc., JT (2010) 13 SC 610, considered a large number of judgments

particularly in Firm A.T.B. Mehtab Majid & Co. v. State of

Madras & Anr., AIR 1963 SC 928; B.N. Tewari v. Union of India

& Ors., AIR 1965 SC 1430; Indian Express Newspapers (Bombay)

Private Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515;

1 West U.P. Sugar Mills Association & Ors. v. State of U.P. & Ors.,

AIR 2002 SC 948; Zile Singh v. State of Haryana & Ors., (2004) 8

SCC 1; and State of Kerala & Anr. v. Peoples Union for Civil

Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46, and came to

the conclusion that once the old rule has been substituted by the new

rule, it stands obliterated, thus ceases to exist and under no

circumstance, can it be revived in case the new rule is held to be

invalid and struck down by the Court, though position would be

different in case a statutory amendment by the Legislature, is held to

be bad for want of legislative competence. In that situation, the

repealed statutory provisions would revive automatically.

24.It is not a case of automatic revival of AIC 28/92, but there is a

specific order by the competent authority in exercise of statutory

powers whereby the AIC 28/92 has been revived. Since the

instructions which have been issued under the letter dated 2.6.2008

are merely in the form of interim measures, the question of the

applicability of the principles of natural justice does not arise. The

suspension of CAR 2007 had created a vacuum, and it was,

therefore, necessary for the DGCA to take an appropriate decision

during the finalisation of the CAR, pursuant to the report to be

1

submitted by a Committee constituted by the Government. The

appellants did not challenge the subsequent order dated 2.6.2008,

by virtue of which AIC 28/92 dated 10.12.1992 came into force

which had also been nothing but special directions and remained in

force from 1992 to 2007.

25.In the High Court it was sought to be contended on behalf of the

appellants that as the order dated 2.6.2008 was in continuation of

the Circular dated 29.5.2008, it was not necessary for the

appellants to challenge the said order separately. The High Court

held:

"We are afraid the contention is not well-founded.

While the Circular dated 29.5.2008 relates to the

subject of suspension of CAR of 2007, the letter

dated 2.6.2008 refers to instructions to the effect

that AIC 28/92 would be effective till CAR is

approved by following the procedure laid down in

CAR of 13.10.2006. The subject matter of two

documents being different, merely because the

second document is in continuation of the first

document, it cannot be said that the challenge to

the first document would ipso facto include

challenge to the second document.

The letter dated 2.6.2008 is not the effect of

the Circular dated 29.5.2008, but the same has

been issued in exercise of powers under Rule 133A

of the Rules 1937 to meet the circumstances which

have resulted on account of CAR 2007, being

suspended. The cause for issuance of the letter

dated 2.6.2008 is not directly flowing from the

1

Circular dated 29.5.2008, but it was issued for the

consequences which followed the issuance of the

Circular dated 29.5.2008. Being so, in case the

appellants wanted to challenge the communication

dated 2.6.2008, they ought to have challenged the

same by raising specific ground in that regard by

laying proper factual foundation in support of

such ground and only then, they could have invited

the order in that regard from the court."

In absence of the challenge to the same, it is immaterial

to determine as to whether the same had been issued by the competent

authority or not, as it is not the case of statutory rules i.e. subordinate

legislation. The question of following any procedure for replacement

is not warranted.

26. The contention was raised before the High Court that the Circular

dated 29.5.2008 has been issued by the authority having no

competence, thus cannot be enforced. It is a settled legal

proposition that the authority which has been conferred with the

competence under the statute alone can pass the order. No other

person, even a superior authority, can interfere with the

functioning of the Statutory Authority. In a democratic set up like

ours, persons occupying key positions are not supposed to

mortgage their discretion, volition and decision making authority

and be prepared to give way to carry out commands having no

1

sanctity in law. Thus, if any decision is taken by a statutory

authority at the behest or on suggestion of a person who has no

statutory role to play, the same would be patently illegal. (Vide:

The Purtabpur Co., Ltd. v. Cane Commissioner of Bihar &

Ors., AIR 1970 SC 1896; Chandrika Jha v. State of Bihar &

Ors., AIR 1984 SC 322; Tarlochan Dev Sharma v. State of

Punjab & Ors., AIR 2001 SC 2524; and Manohar Lal (D) by

L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).

27. Similar view has been re-iterated by this Court in

Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR

1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.

Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors.

v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing

that an authority vested with the power to act under the statute alone

should exercise its discretion following the procedure prescribed

therein and interference on the part of any authority upon whom the

statute does not confer any jurisdiction, is wholly unwarranted in law.

It violates the Constitutional scheme.

28. In view of the above, the legal position emerges that the

authority who has been vested with the power to exercise its

1

discretion alone can pass the order. Even senior official cannot

provide for any guideline or direction to the authority under the statute

to act in a particular manner.

It cannot be said that the Circular dated 29.5.2008 was either

issued illegally or without any authority. Admittedly, the DGCA is

competent to issue special directions and the same had been issued by

him, though may be with the consultation of some other authorities.

However, it cannot be denied that the DGCA was involved in the

process. The authority which had been in consultation with the DGCA

had been provided for under the business rules and it cannot be held

by any stretch of imagination that the Ministry of Civil Aviation is not

an authority concerned with the safety measures involved herein. The

authorities are competent to issue the said regulations. Exercise of the

power is always referable to the source of power and must be

considered in conjunction with it. In view of the fact that the source of

power exists, there is no occasion for the Court to link the exercise of

power to another source which may invalidate the exercise of power.

29. The High Court has observed that in the instant case, the

reviving of AIC 28/92 is in question, even the keeping in abeyance of

the CAR, whether by the DGCA or other competent authority, is in

2

issue. However, it is merely an interregnum arrangement till the new

CAR comes into picture. After keeping the CAR 2007 in abeyance,

an Expert Committee was constituted which held a large number of

meetings with various stakeholders. The final report has been

submitted by the Expert Committee to the Government in September

2010 for consideration. The Government has accepted FDTL

Committee report and advised the DGCA to issue draft CAR for

consultation and the same has been put on the DGCA website

inviting comments or objections within a period of 30 days. It is a

question of challenging the public policy and it is well settled that

public authorities must be given a very long rope, full freedom and

full liberty in framing policies, though the discretion of the authorities

cannot be absolute and unqualified, unfettered or uncanalised. The

same can be the subject matter of judicial scrutiny only in exceptional

circumstances where it can be shown to be arbitrary, unreasonable or

violative of the statutory provisions. More so, the courts are not well

equipped to deal with technical matters, particularly, where the

decisions are based on purely hyper-technical issues. The court may

not be able to consider competing claims and conflicting interests and

conclude on which way the balance tilts.

2 More so, the whole exercise has been done to bring a

new CAR into existence for which the process has already been

initiated and a draft CAR was put on the DGCA website giving

opportunity to all concerned to submit their objections/suggestions

within a period of 30 days and a new CAR is likely to come into

existence very soon.

30. The High Court held that DGCA is directly under the control

of Civil Aviation Ministry and considering the rules of business, the

Government being the appropriate authority to formulate necessary

policy in relation to the subject matter in issue, and the Government in

its wisdom having decided after taking into consideration all the

representations made from various sections, has appointed a

Committee to formulate CAR in relation to the matters enumerated

under order dated 29.5.2008, and on that count, the DGCA in exercise

of its power under Rule 133A r/w Rule 29C of the Rules 1937 issued

the Circular dated 29.5.2008, and therefore, no fault can be found with

the same.

Being so, we are in agreement with the finding recorded by

the High Court that even assuming that there is a challenge to the

2

communication dated 2.6.2008 in the petition, the same is to be

considered as devoid of substance as undisputedly, the DGCA has

ample power to issue such instructions or directions in exercise of its

power under the Rule 133A r/w Rule 29C of the Rules 1937. Since,

the appellants have not been able to point out any provision even for

issuance of instructions for such interregnum period, the provisions

of CAR of 13.10.2006 would be attracted in the matter.

31. In view of the above, we do not find any force in the appeal, it

is accordingly dismissed. No order as to costs. Before parting with

the case, we would like to point out that in the facts and circumstances

of the case, as the process to bring new CAR in existence is going on,

the same should be concluded expeditiously in accordance with law.

..................................J.

(P. SATHASIVAM)

...................................J.

(Dr. B.S. CHAUHAN)

New Delhi,

May 3, 2011.

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