IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5437 of 2009 Date of decision:28.06.2010 Lakhbir Singh ....Petitioner versus Union of India, Ministry of Civil Aviation, New Delhi, through its Secretary and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. A.S.Narang, Advocate, for the petitioner. Mr. Karminder Singh, Advocate, for respondents 1 and 2. Mr.Ravi Dutt Sharma, Deputy Advocate General, Haryana, for respondents 3 and 4. Mr. Sanjeev Kaushik, Advocate, for respondents 5 and 6. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The petitioner seeks for quashing of the orders passed by the respondents denying for grant of Commercial Pilot Licence (CPL) and for a direction to the respondents 1 and 2 namely the Ministry of Civil Aviation to indicate additional flying training, if any, required to be undergone for the purpose of grant of CPL as a measure of parity with other persons, who have been similarly granted such licences. Civil Writ Petition No.5437 of 2009 - 2 - 2. The contention of the petitioner was that the CPL was denied to the petitioner only on the ground that his Air Navigation and Air Regulation papers had lapsed by 10 months and 14 days and that the Director General of Civil Aviation-2nd respondent, had no power to extend the validity of the papers beyond a period of six months under the relevant rules. This self-imposed restriction to his power by the 2nd respondent was cited by the petitioner as discriminatory, by referring to another case of a person Shri Sandeep Suri applying for CPL where his flying training had been extended by 281 days. As an extreme illustration, the petitioner would also contend that if the application of Shri Sandeep Suri was to be considered as having been filed in the year 2003, then his knowledge paper had lapsed by 2 years and 7 days and flying training had lapsed by more than 1000 days. The petitioner would point out that delay was occasioned by willful and mala fide conduct of respondents 4, 5 and 6 in delaying the flying training of the petitioner and borne through the records. 3. The procedure for obtaining CPL would require to be examined to come to the grips of the problems relating to this case. The Air Craft Rules of 1937 prescribes through Section J of Schedule-II, the following requirements:- 1. Written knowledge examinations:- An incumbent is required to pass written examinations in (a) Air Regulation (b) Air Navigation (c) Aviation Meteorology (d) Aircraft and Engines and Singals (Practical) (e) Interpretation of Aural and Visual Singals and (f) A current Flight Radio Telephone Operator's Licence to be issued by respondent No.2, is also required (refer to Clause 1(d) and 1(g) of Civil Writ Petition No.5437 of 2009 - 3 - Section J of Schedule-II). 2. Flying Training:- (i) 250 hours of flying training within a period of 5 years immediately preceding the date of application for licence (unamended Rules). Out of the above, not less than 100 hours should be as Pilot-in-Command (PIC). (ii) Recency Requirements:- Out of the above 250 hours, an incumbent is required to have completed 15 hours as PIC within a period of six months from the date of application for licence. Not less than 5 hours of flight time by night should have been carried out as PIC within six months preceding the date of application. 3. Skill Test:- Within a period of 6 months immediately preceding the date of application, an incumbent is required to demonstrate competency with regard to; (a) general flying test by day (b) general flying test by night (c ) cross country by day (minimum 250 nautical miles) and (d) cross country flight (minimum 120 nautical miles) test by night. 4. Validity of knowledge examination:- At the relevant time, the validity of the papers was two years as prescribed in the un-amended Clause 7 of Section A of Schedule-II of the Rules. Rule 160 of the said Rules vests the power in the Central Government to exempt the operation of the Aircraft Rules either wholly or partially. 4. The applicability of the rules will have to be again examined in the context of factual situations obtaining from the case. Advertisement had been issued on 26.05.1995 inviting applications from Haryana domiciled candidates for private pilot licence (PPL) and commercial pilot licence (CPL) course. The petitioner had been sponsored to the Haryana Institute of Civil Aviation (formerly known as Pinjore Aviation Club)-5th respondent herein, for concessional flying Civil Writ Petition No.5437 of 2009 - 4 - training. Concessional Flying Training is referred to as 'Haryana Flying Quota' which was applicable to a candidate, who had passed a minimum of two written knowledge papers upon which he would be entitled to 30 hours of Haryana Flying Quota and for every additional paper pass, he would be allotted 15 hours of additional Haryana Flying Quota in each financial year. The petitioner completed 60 hours of flying training and was granted private pilot licence on 27.02.1997. Acquisition of the PPL is the first stage to be crossed by an incumbent before acquiring CPL. By the financial year 1996-97, the petitioner had cleared five out of six written knowledge papers and he was entitled to 75 hours of flying quota. However, the petitioner had been offered only 36 hours of flying training and there was a backlog of 39 hours of his entitlement and to obtain enforcement of such entitlement, the petitioner had filed Civil Writ Petition No.5925 of 1997 seeking for directions against the Department of Civil Aviation, Chandigarh; Haryana Institute of Civil Aviation; and the Chief Ground Instructor of the Civil Aviation (respondents 4, 5 and 6). When the plea in defence was that they could not offer to the petitioner the requisite flying training since they have no funds, the writ petition was admitted on a plea by the respondents that no loss would be caused to the petitioner as the backlog and if need be, additional hours would be granted to the petitioner in the subsequent financial years 1997-98. It appears that there had been complaints of misconduct and nepotism against the Chief Ground Instructor in the manner of allocation of flying hours to the trainees and it became apparent through an investigation that he had adopted a pick and choose Civil Writ Petition No.5437 of 2009 - 5 - policy of imparting training to some and deliberately denying to some other like the petitioner. 5. In the year 1997-98, the petitioner had cleared the 6th knowledge paper and became entitled to 90 hours of Haryana Flying Quota. The petitioner completed 4:15 hours of flying by his own means and he had by 31.03.1998 completed 210:15 of flying training out of total of 250 hours which were required. The balance of 39:45 was commensurate to the backlog to the financial year 1996-97. Since the backlog was not cleared as promised before the Court by the respondents in the writ petition i.e. Civil Writ Petition No.5925 of 1997, the petitioner appears to have sent a representation on 5th March, 1998 that his Aviation Meteorology paper was going to lapse on 30th April, 1998 and that his flying training had not been completed by that period. The petitioner again resorted to an application in CM No.10565 of 1998 in Civil Writ Petition No.5925 of 1997 seeking for direction to respondents 4, 5 and 6 to make him undergo the balance training. The papers of Aviation Meteorology and Aircraft, Engines and Singals (Practical) had lapsed in the meanwhile and the petitioner, therefore, passed two papers for a second time on August,1998 and November,1998 respectively. The Civil Writ Petition No.5925 of 1997 was disposed of on 15.09.1998 when the respondents gave an assurance before Court that only 9:45 of flying training remained and that the entire training would be completed if the petitioner provided a valid medical fitness certificate. 6. The additional flying training of 9:45 hours was not granted to the petitioner as promised, forcing the petitioner to apply to the Court Civil Writ Petition No.5437 of 2009 - 6 - for contempt in Contempt Petition No.354 of 1999. After the filing of the petition, training was offered and the rule was discharged on 30th August, 1999. After the completion of flying hours when he forwarded the application to the 2nd respondent for grant of CPL, the knowledge papers of Air Navigation and Air Regulation passed by the petitioner, had lapsed by 10 months and 14 days. Strangely the 4th respondent while recommending the papers cited the pendency of the case before this Court as the cause for the delay. The petitioner's application was rejected on 21.09.1999 stating that the extension in the validity papers could not be granted beyond six months. The petitioner filed Civil Writ Petition No.1744 of 2000 challenging the order passed rejecting the petitioner's application on 21.09.2000. The writ petition was allowed setting aside the contention on behalf of the 2nd respondent that the extension beyond a period of six months could not be granted. This Court passed an order on 04.04.2005 directing the 2nd respondent to pass a fresh speaking order. The 2nd respondent again rejected the application on 02.05.2005. The petitioner filed yet another writ petition i.e. Civil Writ Petition No.10148 of 2005 challenging the order dated 02.05.2005. This Court disposed of the writ petition on 07.03.2006 directing the petitioner shall undergo fresh training, on a statement made by the 2nd respondent that it was not possible to relax the validity of knowledge papers beyond a period of six months. The petitioner was aggrieved by the order of this Court and applied for review attempting to project the case that the respondent had deliberately misled the Court. The review application was dismissed on 04.08.2006 and the petitioner wrote a letter Civil Writ Petition No.5437 of 2009 - 7 - to the 4th respondent expressing his willingness to undergo additional training if required. After engaging the petitioner in several communications, on 09.06.2008, the 2nd respondent informed that he did not meet the requirements for grant of CPL. This gave room to filing of yet another writ petition in Civil Writ Petition No.14916 of 2008, which was dismissed as withdrawn on 25.08.2008 with liberty to seek information from respondents 1 and 2 about the requirements to be fulfilled by the petitioner for getting CPL. A representation had been submitted on 01.09.2008 to which the 2nd respondent has responded by means of letter dated 03.10.2008 stating that the petitioner shall meet with all requirements afresh, as laid down in Section J of the Schedule-II of the Aircraft Rules, with an implication that all the flying training of 250 hours and examination that had been taken by the petitioner had to be completely ignored. It is this communication that forces the petitioner to this writ petition by pointing out to the discriminatory practices and the untenability of the communication issued by the 2nd respondent. 7. The learned counsel appearing on behalf of the petitioner places the arguments on five counts:- (i) he fulfills the entire criteria for grant of CPL in terms of Section J of Schedule-II of the Aircraft Rules, 1937; (ii) power under Rule 160 should be so exercised as not to be discriminatory; (iii) air safety aspect and long gap between the presentation of the application and consideration of the petitioner's case could be remedied by special additional training, if necessary, but cannot mean a direction for wholesale fresh training; (iv) Rule 160 grants an inherent power to a Central Government to exempt the operation of any Civil Writ Petition No.5437 of 2009 - 8 - of the rules partially or wholly; (v) the failure to exercise the power in a case where the petitioner had not been at any fault was arbitrary. 8. From the narration of all the facts and the repeated resorts to Court's intervention by the petitioner at various times to secure to him the necessary training which was due to him, it becomes evident that the petitioner was not at fault. If there had been a delay between the time when he passed the knowledge papers and his application for grant of CPL, it was on account of shortfall for the flying training hours within the quota that he was eligible and when he obtained the requisite hours of flying training through intervention of the Court and through compulsion obtained through the directives in contempt petition, the recency of the knowledge papers in two of the examinations had lapsed. There is no doubt that periodical update of knowledge is absolutely essential and that knowledge in the technical papers must be current to be relevant. The petitioner has been in the Court from the year 1995 that is, from the time he had gone through the examination to 2010. Lot of things must have happened when he had passed the examination and when he had not adequate hours of flying training, which was again on account of paucity of funds for meeting the State share of expenses. In such like situations, if we are merely looking in technical compliance of the petitioner's eligibility, the answer is not far to seek, for, the relevant date for consideration for grant of CPL could be seen only to be the date of the application not when the application was ultimately considered. In this case, the application was on 13.09.1999 when he fulfilled the entire criteria as provided by Section J of Schedule-II. By that time, the Civil Writ Petition No.5437 of 2009 - 9 - application had been rejected on the ground that his air navigation and air regulation papers had lapsed by 10 months and 14 days. If Rule 160 that grants of power to the Government to relax had been applied, the petitioner could have probably obtained the benefit of CPL. It was not as if the 2nd respondent had not granted such extension in any other case. The case of Sandeep Suri which the petitioner cites is the case of point. The extension had been granted by requiring Shri Sandeep Suri to undergo (i) recency flying of 15 hours as PIC; out of this 5 hours should be at night; (ii) skill test by day and night and cross country skill test by day and night. To ask the petitioner to go through the whole process of training and undertaking all the examinations now would seem to be grossly unjust and waste of public money for no fault of the petitioner. 9. If the issues of air safety and the fairness to the petitioner were to be bridged, it has to be by adopting some pragmatic approach. The petitioner pleads for the following: that he had completed his entire training in the year 1999 and his application was forwarded on 13.09.1999. By exercise of the powers vested under Rule 160, the petitioner could be treated as having been granted a licence and following a procedure for grant of renewal of licence. The provision for renewal of licence is secured through Rule 42 of the Aircraft Rule of 1937. Rule 42 contemplates a situation where, for the validity of application for renewal of the licence, if a licence had been obtained for a period of more than 3 years prior to the application, then all the examinations and tests required for the issue of CPL would have to be undergone. The consideration of petitioner's request for grant of CPL Civil Writ Petition No.5437 of 2009 - 10 - request could therefore be termed on the same basis for a fictional grant of licence as though he was applying for a renewal. The 2nd respondent shall therefore exercise his power under Rule 160 to exempt the application of rules for the petitioner in so far as it fixes a particular time gap between the pass in the knowledge papers and flying training to the date of application. This power could be exercised by deeming a fiction that if he had been found eligible for CPL for renewal, he would have been only required to follow the procedure which is required under Section 42 and that procedure could be invoked by directing the petitioner to pass those papers for issuance of the CPL. This power shall be exercised only by the 2nd respondent and it shall not be possible for this Court to usurp that power. By such a process, I believe that the writ petition of the petitioner for testing his knowledge in a typical situation where a renewal of a licence is sought after the expiry of the original licence period will adequately address the necessity for currency of knowledge skills. All the impugned orders are quashed and the 2nd respondent shall consider the issuance of CPL afresh by invoking the powers to relax the conditions under Rule 160 and apply Rule 42 for testing his knowledge by requiring him to undergo such tests as Rule 42 lays down and take an appropriate decision with regard to the grant of the licence within a period of 8 weeks from the date of receipt of the copy of the order. 10. The writ petition is disposed of on the above terms. (K.KANNAN) 28.06.2010 JUDGE sanjeev