[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1687 OF 2008 1. The Joint Action Committee of Airline Pilots’ Association of India, having its office at Indian Airlines Operations Bldg., Gr. Floor, Domestic Airport, Vile Parle (East), Mumbai-400 099. 2. The Indian Commercial Pilots Association being a trade union registered under the provisions of the Trade Unions Act, 1926 and having its office situated at Indian Airlines Operation Bldg., Gr. Floor, Domestic Airport, Vile Parle (East), Mumbai-400 099. 3. The Indian Pilots Guild being a Trade Union regis- tered under the provisions of the Indian Trade Unions Act, 1926 and having its office at 602 B. Charmee Enclave, Near Milan Subway, Shradhanand Service Road, Off Western Express Highway, Vile Parle (East), Mumbai-400 057. 4. The Society for the Welfare of India Pilots being a Society registered under the provisions of the Indian Societies Act, 1862 and having its office situated at Jet Airways Flight Despatch, Terminal 1B, Domestic Airport, Vile Parle (E), Mumbai-400 099. .... Petitioners - Versus - 1. The Director General of Civil Aviation, being an authority constituted under the provisions of the Aircrafts Act, 1934 [2] and having his office at Opp: Safdurjung Aiport, New Delhi 110 003. 2. The Union of India, through the Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjang Airport, New Delhi 110 003. 3. The National Aviation Company of India Limited (NACIL) 113 Gurudwara Rakabganj Road, Airlines House, New Delhi-I. 4. M/s. Jet Airways India Limited, S.M. Centre, Andheri-Kurla Road, Andheri (E), Mumbai-400 059. .... Respondents Sarvasri K.K. Singhvi, Senior Counsel a/w Sanjay Singhvi i/b Bennet D’Costa for the Petitioners. Sri Gulam Vahanvati, Solicitor General of India a/w Ms Shehnaz Bharucha & Sri D.A. Athawale for the Respondent Nos.1 & 2. Sarvasri Aspi Chinoy, Senior Counsel a/w S.U. Kamdar, Senior Advocate, Ms Nina Bhasin and Ms Chhaya Shah for the Respondent No.3. Sarvasri C.U. Singh, Senior Counsel a/w Abhay Kulkarni i/b M/s. Abhay Kulkarni & Associates for the Respondent No.4. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI A.A. SAYED, JJ. DATED: DATED: DATED: AUGUST 14, 2008 JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): JUDGMENT (Per Sri R.M.S. Khandeparkar, J.): 1. Heard at length Sri K.K. Singhvi, Senior Counsel for the Petitioners, Sri Gulam Vahanvati, Solicitor General of India for the respondent Nos.1 and [3] 2, Sri Aspi Chinoy, Senior Counsel for the respondent No.3 and Sri C.U. Singh, Senior Counsel for the respondent No.4. 2. By the present petition, the petitioners are seeking 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 [4] 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 the decision reflected by the following portion of the circular dated 29th May 2008 bearing no.DG/Air Safety/2008 (Exhibit ‘D’ to the petition) issued by the 1st Respondent, the Director General of Civil Aviation shall remain stayed:- "The competent authority in the Ministry of Civil Aviation has decided to keep the CAR-Section 7, Flight Crew Standards, Series ‘J’, Part III dated 27th July, 2007 in abeyance." (2) Pending the hearing and final disposal of this Writ Petition the effect, operation and execution of the Circular dated [5] 2nd June 2008 bearing DG/Air Safety/2008 (Page 55 of the petition) issued by the 1st Respondent, the Director General of Civil Aviation shall remain stayed. (3) Pending the hearing and final disposal of this Writ Petition the Section 7, Flight Crew Standards, Series ‘J’, Part III contained in the CARs dated 27.7.2008 shall continue to operate. (4) Liberty is granted to both sides to apply for variation/modification of this order on the Respondents completing the exercise undertaken for revising the Section 7, Flight Crew Standards, Series ‘J’, Part III contained in the Civil Aviation Requirements dated 27.7.2008." After declaration of the said interim order, there was [6] request on behalf of the respondent Nos.1 and 2 as well as the respondent No.4 for stay of operation of the interim order. However, the Court was not inclined to grant the same and the request in that regard was rejected. 6. The matter was then carried to the Apex Court in SLP (Civil) No.15829 of 2008 by the respondent No.3 herein. The Apex Court by its order dated 10-7-2008 disposed of the said SLP with the following order: "These two petitions have been filed against an interim order passed by the High Court of Judicature at Bombay. The matter relates to the Flight Crew Standards. In the impugned order the High Court has given certain directions and stayed the order passed by the Ministry of Civil Aviation dated 27th July, 2007. We make it clear that we do not express anything on merits. It is pointed out that the National Aviation Company of India, Jet Airways and other airways were neither heard nor impleaded in the proceeding before the impugned order. The impugned order seriously affects the rights of these parties as [7] they were not heard and they want to be heard in the matter. We request the High Court to post these matters in the 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 [8] 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 5-8-2008 at the request of the parties on 25-7-2008, and further to 12-8-2008, and that is how the matter has been finally heard. 8. India is one of the contracting States under the Convention in relation to International Civil Aviation signed at Chicago on 7-12-1944 and Section 4 of the said Act enables the Central Government to make rules, inter alia, to implement the Convention relating to International Civil Aviation signed at Chicago including any Annex thereto relating to international standards and recommended practices, as amended from time to time. The Rule 29C of the Aircraft Rules, 1937, hereinafter [9] called as "the said Rules" enables the respondent No.1 to lay down standards and procedure not inconsistent with the said Act and the Rules made thereunder to carry out the Convention and any Annex thereto. The Rule 133A of the said Rules enables the respondent No.1 to issue CARs not inconsistent with the said Act and the Rules made thereunder. 9. The respondent No.1 is the Director General of Civil Aviation, constituted under the Aircraft Act, 1934, hereinafter called as "the said Act" and is a statutory authority within the meaning of Article 12 of the Constitution of India. The respondent No.1 issued a circular dated 29-5-2008 whereby the earlier CAR dated 27-7-2007 has been sought to be kept in abeyance. Further, on 2-6-2008 the respondent No.1 issued further order clarifying that in view of supersession of CAR of 27-7-2007, provisions of AIC 28 of 1992 would be effective. 10. The procedure for promulgation of CAR is in terms of Section 1 - General, Series ‘A’ Part III, dated 13-10-2006. From time to time the respondent No.1 had been accordingly issuing CAR concerning Flight Duty Time Limitations, hereinafter called as "the FDTL", of various crew including pilots. Till the year 2007, FDTL of pilots were governed by Aeronautical Information [10] Circular 28 of 1992, hereinafter called as "the AIC. Since then many changes have taken place in aircrafts and in the airline industry, the same having become more or less fully computerised. Today 99% of the airline flown do not have either engineers and navigators, which was not the position earlier. New aircrafts have been developed to meet the requirement of ultra-long haul flights involving the duty lasting for number of hours. For various reasons security measures have 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 [11] 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 deals only with flying limitations but has no mention of any rest period or weekly off. 12. It is the contention of the petitioners that the circular dated 29-5-2008 has been issued in violation of the guidelines regarding issuance of Civil Aviation Requirements and revisions thereof. The circular was neither displayed on the DGCA website, nor circulated to persons to the persons likely to be affected, nor objections or suggestions were obtained, nor meetings were arranged with the Civil Aviation Industry and, therefore, the same is illegal and unauthorised. Since the conditions for issuing CAR have been laid down, the non-compliance thereof would amount to violation of Articles 14 and 21 of the Constitution of India. 13. It is their further case that there is no automatic revival of AIC 28 of 1992 pursuant to withdrawal of CAR dated 27-7-2007 since the said AIC was not withdrawn by the CAR but by a separate order and, in any case, the AIC 28 of 1992 is outdated and irrelevant. [12] Besides, for revival of AIC 28 of 1992, it would require publication thereof for objection and suggestion, if any, to be filed by the interested parties. No such exercise has been done by the respondents. 14. It is further case of the petitioners that the circular has been issue under pressure from the airline operators who wish to cut down on their expenses in these times of high fuel prices and it is not a coincidence that the circular was issued on the same day on which the price of Aviation Turbine Fuel was hiked. Though the flight time and the flight duty time limitations are required to be fixed only on the basis of crew fatigue, the impugned circular has been issued for extraneous considerations. The impugned circular has been issued to maximise the profits of airline operators by maximising the exploitation of the crew and in the process the air safety has been compromised which may lead even to greater air transport accidents. 15. On the other hand, it is the case of the respondent Nos.1 and 2 that the challenge to the circular is totally premature and by the circular what has been done is merely the said CAR of 27-7-2007 has been put in abeyance and as an interim arrangement till such time the Committee appointed by the Government examines and gives its report in terms of the reference, [13] AIC 28 of 1992 has been made operative. The impugned circular is a result of policy decision 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-falls of the recommendations of its own expert committee and strongly [14] criticised the CAR on the issues relating to suitable accommodation, time zone, compulsory rest period of seven days as provided in para 3.2 of the CAR, stand-by duty in advance, maximum FDTL/FTL Schedule in international operations, adequate sleeping quarters for flights exceeding ten hours acclimatisation, time off out-station, cumulative rest, time off at base station, etc. Taking into consideration the various factors, the Government and the DGCA decided to keep the CAR of 27-7-2007 notice for the time being in abeyance. It is their further case that the AIC was issued on the recommendations of the Committee constituted of Senior Air Force Aviation Medicines Specialists, Senior Pilots of various operators and of the Air Force and the flight duty time and flight time limitations in respect of flight crew as laid down therein were well within the safety limits and were being adhered to by all operators as also their respective crew without any objections and reservation over a period of 15 years. 17. In October, 2006 the DGCA with the view to review the FDTL/FTL published new draft proposal and invited comments and following the procedure laid down in CAR of 13-10-2006, issued CAR dated 27-7-2007 laying down fresh guidelines. The said CAR was to be effective on schedule operators from 1-8-2007 and to all other operators from 16-8-2007. However, immediately on [15] issuance of the CAR dated 27-7-2007, the DGCA received representations from various airlines expressing their inability to implement the said CAR due to various reasons, including the advance scheduling of flights, manpower requirement and operational defects, lack of trained crew resulting from 35% increase in crew requirement due to new FDTL/FTL requirements prescribed under CAR dated 27-7-2007, the possibility of cancellation of flights, reviewing losses, inconvenience to the travelling public due to disruption of scheduled flights, possibility of total absurd result from implementation of the said CAR in as much as that the implementation could lead to a situation where most of the pilots would reach their limit well before the stipulated period of 12 consecutive months and it would result in non-availability of pilots for flying duties which situation would be self-defeating the aim of CAR, for optimum utilisation of crew and 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 [16] 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 [17] in the context of the growing Indian civil aviation sector, without compromising on aviation safety." It is the case of the respondents that it is open to all stake holders, including the pilots, to place their views on the subject before the Committee. 19. It is further case of the respondents that in no case the pilots in India can be aggrieved on account of the CAR dated 27-7-2007 being kept in abeyance for the reason that by virtue of a settlement the Air India (now NACIL) pilots had agreed to cater to expansion of the airline, the pilots will operate 2 FDTL as defined in AIC 28 of 1992 till 30-6-2009 and thereafter FDTL will be revisited in discussion with the pilots. The revival of AIC 28 of 1992 will be to cater ultra-long operations above flight time of 14 hours, the pilot will follow the FDTL prescribed by the DGCA for such ultra-long haul operations. Issuing CAR, modifying the same, giving relaxation, keeping the same in abeyance are all part of the policy decision taken by the regulatory body, the DGCA, which is always conscious of the fundamental requirement. The AIC 28 of 1992 nowhere violates the mandate of Rule 42A of the said Rules. Besides, the petitioner No.3 itself had sought to challenge CAR of [18] 27-7-2007 on the ground that the same was not in keeping with the requirement of safety provisions as also was prejudicial to the pilots, while the AIC 28 of 1992 was followed and implemented for 15 long years. While denying all the allegations in the petition, the respondents have contended that the whole exercise has been undertaken to ensure that there is optimum use of manpower, without in any way compromising the flight safety. That the Government aims to achieve a balance between the FDTL/FTL of the pilots and the optimum use of the resources by the airlines the circular dated 29-5-2008 has been issued only after considering the operational and practical problems of all stake holders, without in any manner compromising with the flight safety aspects, and being interim measure, there is no substance in the allegations made in the petition. It is further case of the respondents that the policy decision has been taken in the background of the representations received from various corners with regard to the chaotic situation which could have resulted on account of implementation of CAR dated 27-7-2007, more particularly in view of the fact that the aviation industry 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 [19] 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 Rules and, therefore, the DGCA was not empowered either to suspend the CAR of 27-7-2007 or to revive the AIC 28 of 1992, without following the procedure prescribed under Clauses 3 and 4 of CAR of 13-10-2006. 22. The Rule 133A of the said Rules provides that [20] the Director General may, through Notices to Airmen (NOTAMS), Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notice to 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 those rules, relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. The term "Director General" has been defined under Rule 3(18) to mean Director General of Civil Aviation. 23. The CAR of 13-10-2006 was accordingly issued by the DGCA on the subject of issuance of Civil Aviation Requirements and revisions thereof, etc., and the Clause 1.1 thereof clearly stated that the Section 4 of the said Act enables the Central Government to make rules to implement the Convention relating to International Civil Aviation, signed at Chicago on 7-12-1944, including the Annex thereto relating to international standards and recommended practices as amended from time to time and the Section 5 of the said Act empowers the Central Government to make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft and for securing the safety of aircraft operations. Further, the Rule 29C of [21] the said Rules enables the DGCA to lay down standards and procedures not inconsistent with the said Act and the Rules made thereunder to carry out the Convention and any Annex thereto and in accordance with Rule 133A of the said Rules the DGCA may also issue Civil Aviation Requirements not inconsistent with the said Act and the Rules and, therefore, the Clause 1.2 specifies that while the broad principles of law are contained in the said Rules, the CAR are promulgated to specify the detailed procedures. 24. The Clauses 3 and 4 of CAR of 13-10-2006 refer to the procedure for promulgation of CAR and they read as under: "3. PROCEDURE FOR PROMULGATION OF CAR 3.1 Civil Aviation Requirements under various sections are issued bearing different "series" identified by alphabetical letters, namely Series A, B, C etc. and under the same Series, various "Parts" are