IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 08.03.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P. NO.10701 OF 2009 AND M.P. NOS. 1 & 2 OF 2009 Capt. P.S.Ramachandran .. Petitioner - Vs - 1. Director General of Civil Aviation Technical Centre Opp. to Safdarjung Airport New Delhi 110 003. 2. National Aviation Company of India Ltd., rep. by its Executive Director (Ops I & Trg) Operations Department Safdarjung Airport New Delhi 110 001. 3. General Manager (Operations) National Aviation Company of India Ltd., Integrated Service Complex Operations Department Meenambakkam, Chennai 600 027. .. Respondents Writ Petition filed under Article 226 of the Constitution for the issuance of a writ of certiorarified mandamus calling for the records of the 1st respondent, Director General of Civil Aviation, New Delhi, quash the order of the 1st respondent bearing AV- 22012/123/2007-FID dated 26th May, 2009 and, consequently, direct the 1st respondent to carry out FID Check Pilot Release Check. For Petitioner : Mr. Balan Haridass For Respondents : Mr. K.Mohana Murali, CGSC for R-1 Mr. N.G.R. Prasad for RR-2 & 3 ORDER The present writ petition is filed by Capt. P.S.Ramachandran, seeking a writ of certiorarified mandamus calling for the records of the 1st respondent, Director General of Civil Aviation, New Delhi, quash the order of the 1st respondent bearing AV-22012/123/2007-FID dated 26th May, 2009 and, consequently, direct the 1st respondent to carry out FID Check Pilot Release Check. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the petitioner is that he joined the services of Indian Airlines in October, 1986 as a Trainee Pilot. Subsequently, he was appointed as Pilot (First Officer) in April, 1987. Within a period of three years, he was promoted as Captain in June, 1990. Again, after four years, the petitioner was promoted as First Commander on Boeing 737 and had been flying Airbus 300 as well as Airbus A-320. In the year 2002, the respondents promoted him as Dy. General Manager. Whileso, the next avenue of promotion is to the post of Check Pilot for which he became eligible since the year 2004. To become a Check Pilot, a Pilot has to pass the prescribed written test, oral test and flying test, which are being conducted by the Indian Airlines, which has since been amalgamated with Air India in the year 2007. Since the respondents did not conduct the above tests, the petitioner made representations. The respondent issued a letter dated 28th July, 2004 to the Director (Training) informing that the petitioner has met all the requirements for being taken up for Check Pilot's Training and, thereafter, the 2nd respondent, by his communication dated 2nd Aug., 2004, informed the 3rd respondent that though the petitioner did not have the requirement to take up the Check Pilot's test on earlier occasion, it was informed that the petitioner has now met the requirements. After the confirmation by the Director (Operations), the tests, namely, written and oral test were conducted and finally the flying test was also conducted on 14th Oct., 2006. In all the above test, the petitioner scored good marks. Since the petitioner has passed through the tests, the Director General of Civil Aviation, the 1st respondent herein, has to do Flight Inspector Directorate Release Check. Even though the petitioner has cleared the written, oral and flying test in October, 2006, the petitioner was made to wait without any reason to have the Check Pilot's Training. Therefore, the petitioner kept on making representations from 17th July, 2007, with repeated requests to send him for FID Check Pilot Release Check. In the said representation, the petitioner has made further request by specifically mentioning that he is long due for his CAT III A/B flying check and FID Check Pilot Release Check and requested to issue necessary orders at the earliest by sending a representation dated 15th March, 2008, to the General Manager (Operations), the 3rd respondent herein. Unfortunately, the representations sent to the General Manager (Operations) by post was refused to be received. Therefore, the petitioner thought it fit to send a copy of the representation dated 15th March, 2008, to the Executive Director (Operations) along with his letter dated 19th March, 2008, which was followed by another representation dated 2nd April, 2008 to the Executive Director (Operations) renewing his earlier request to complete the checks. As no favourable result came from any quarter, the petitioner was constrained to move this Court by filing W.P. No.19698/08 seeking a prayer to issue a direction to consider the petitioner's representation. This Court was also pleased to issue a direction on 14th Aug., 2008, directing the 3rd respondent to consider the petitioner's representation dated 15th March, 2008 and pass orders https://hcservices.ecourts.gov.in/hcservices/ thereon. Unfortunately, the 3rd respondent passed an order dated 26th Sept., 2008, rejecting the representation dated 15th March, 2008, made by the petitioner by projecting a picture that though the petitioner, after undergoing training, has not completed CAT III A/B Aircraft Check within six months from the date of CAT III A/B Simulator Valuation Check undergone on 8th Nov., 2006. In the above said order, the 3rd respondent once again asked the petitioner to undergo the training and, thereafter, to undergo the CAT III A/B check and it was informed that on completion of the same the issue of Check Pilotship would be taken up. 3. Mr.Balan Haridas, learned counsel appearing for the petitioner submits that the petitioner has been desperately representing all these years through proper channel seeking suitable orders from the competent authority to enable the petitioner to take up CAT III A/B Aircraft Check since he has cleared all the tests required therefor. The Release Check has to be done by the 1st respondent and it is for the Airline to make arrangement for the petitioner to have the Release Check. However, the name of the petitioner was not forwarded to the 1st respondent, DGCA, under the pretext of not completing CAT III A/B Aircraft Check. It was further submitted that the CAT III A/B Aircraft Check had to be conducted by the Airline, but inspite of repeated written request for several years, the petitioner was not permitted to take up CAT III A/B Aircraft Check. Therefore, when the petitioner made representation requesting the respondent to send him for the final test, since he has already passed all the other tests, except the Release Check, once again asking the petitioner to undergo training from the beginning is a mere wasteful exercise and the same bristles with mala fide on the part of the respondents. Even though many persons junior to the petitioner were allowed to undergo the Release Check, under one pretext or the other the respondents are not considering the case of the petitioner and it appears that the respondents want to ensure that the petitioner does not get in his life time CAT III A/B Aircraft Check at all. On this basis, learned counsel for the petitioner prayed this Court to allow the writ petition. 4. Refuting the submissions made by the petitioner, Mr.N.G.R.Prasad, learned counsel appearing for respondents 2 and 3 submits that it is for the DGCA, the 1st respondent herein, to decide whether the petitioner should be sent for Check Pilot Release Check. It is further submitted that the 2nd respondent has received a letter dated 25th May, 2009, from the 1st respondent stating that the Check Pilot training underwent by the petitioner in the year 2006 would not hold good for the year 2009 FID. In view of this reply, the petitioner filed the present writ petition seeking to quash the letter dated 25th May, 2009, issued by the 1st respondent with further direction to the 1st respondent to carry out the FID Check Pilot Release Check, which is a must for becoming a Check Pilot. Further submission of Mr.Prasad is that for becoming a Check Pilot, as per the instruction issued by the 1st respondent, DGCA, several tests consisting of classroom training followed by https://hcservices.ecourts.gov.in/hcservices/ written test and viva-voce are to be passed through by the petitioner. Only after passing the written examination and viva- voce, the petitioner would be sent for simulator training followed by Simulator Check Training Aircraft Check. That apart, the petitioner is also required to get through CAT III A/B check as per the company's policy. Further, for a Line Pilot, every six months he has to get through Simulator Training and Routine Check and this should not be mixed up with Simulator Training and Check meant for a Check Pilot Training where the syllabi is different. It was also submitted that in the case of Line Pilot, every six months the petitioner has to undergo ground training, apart from getting through Simulator training. Since CAT III A/B was introduced on 12th July, 2006, the same is necessary for a Check Pilot to get through for being sent for FID Check Pilot Release Check apart from successful completion of Check Pilot Training. The CAT III A/B is considered necessary for Line Pilots to enable them to land in airports where there is poor visibility. Therefore, the case of the petitioner that he has got through CAT III A/B test will not itself qualify him for being considered for Check Pilotship, since CAT III A/B test is different from FID Check Pilot Release Check. It was further submitted by the learned counsel for the respondents 2 and 3 that the petitioner, though is qualified for being sent for Check Pilot Training, was sent for Check Pilot Training in the year 2006 when he had his turn. Accordingly, he underwent the said training and got through the written exam, oral, simulator and routine check, but the CAT III A/B Check was discontinued by him. As CAT III A/B Check was essential for the petitioner to go for FID Check Pilot Release Check and, therefore, unless the petitioner gets through once again all those tests, his paper will not be sent to the 1st respondent for necessary approval for Check Pilotship. Though the petitioner made representation to the 3rd respondent, the petitioner was informed by letter dated 26th Sept., 2008, to undergo the complete training on the check of CAT III A/B. In pursuance of the above said letter, the petitioner also attended ground classes for CAT III A/B rating, but suddenly, discontinued his training program and left the Central Training Establishment of the respondent Airlines without any permission. Therefore, his request that he had already cleared the CAT III A/B rating is not good enough for the petitioner to go for Check Pilotship. On the basis of the above submission, it was urged that the petitioner will not be allowed to go for FID Check Pilot Release Check unless he clears all the tests once again afresh. 5. Heard the learned counsel appearing on either side and perused the records. 6. Admittedly, the petitioner has been flying since April, 1987 as Pilot First-Officer. He was promoted as Captain in June, 1990 and further promoted as First Commander in the year 1994 to fly Boeing 737 and, admittedly, the petitioner has been flying Airbus 300 and also Airbus A-320. After his promotion to the post of Dy. General Manager, his next avenue of promotion is to the post of https://hcservices.ecourts.gov.in/hcservices/ Check Pilot having acquired all the qualification and cleared all the tests. It is the admitted case of both sides that the petitioner was eligible for being considered for the post of Check Pilot in the year 2004 itself. As required by the 1st respondent, to become a Check Pilot, a Pilot has to pass certain tests like class room training followed by written examination and viva-voce. Admittedly, the petitioner has got through the written examination, viva-voce and also sent for simulator training followed by simulator check and aircraft training and check. It is not disputed that the petitioner also successfully passed the CAT III A/B Check in February, 2009 itself. So far as the requirement of passing all the requisite tests are concerned, the petitioner having possessed sufficient qualification since 1987, has passed through all the tests as specified by the 1st respondent, including CAT III A/B. It is relevant to keep in mind the factual aspect that CAT III A/B Check was introduced on 12th July, 2006 and before CAT III A/B was introduced, all other tests were admittedly completed by the petitioner on 22nd May, 2006. The National Aviation Company of India Ltd., CTA at Hyderabad has also issued a certificate dated 6th Feb., 2008 certifying that the petitioner, Capt.P.S.Ramachandran has passed the test on 5th Feb., 2009. Therefore, the certificate issued by the National Aviation Company also goes to prove that the petitioner, Capt. P.S.Ramachandran, has passed CAT III A/B. Whileso, the requirement for sending the petitioner to carry out FID Check Pilot Release Check is not at the hands of the petitioner, but at the hands of the 1st respondent. Unless the respondents makes arrangement, it would not be possible for the petitioner to undergo FID Check Pilot Release Check. 7. It is also relevant to mention another aspect, as urged by the learned counsel for the petitioner, that all the juniors to the petitioner were continuously sent for undergoing FID Check Pilot Release Check, which is a must for becoming a Check Pilot, only the case of the petitioner alone was refused by giving one reason that CAT III A/B is necessary for Line Pilots to enable a Pilot to land in airports where the visibility is poor. The petitioner, admittedly, passed out CAT III A/B in the year 2008 itself, which indicates that the petitioner is fully qualified to take up the FID Check Pilot Release Check test. 8. It is pertinent to refer to the communication of the respondents dated 23rd Nov., 2007. When Indian Airlines, for the first time, purchased Airbus A-321 A/C VT PPE from Germany on 4th Dec., 2007, Indian Airlines decided to nominate the petitioner, Capt. P.S.Ramachandran and, accordingly, he was deputed to operate the above ferry from Germany to Chennai. In response to the distinction conferred on the petitioner to ferry the aircraft from Germany on 4th Dec., 2007, the petitioner has flown first time the newly purchased Airbus A-321 from Germany to Chennai. Similarly, the petitioner was also conferred another appreciation by letter dated 17th April, 2009, by the General Manager (Operations), NACIL, Chennai, which is extracted hereunder for useful reference :- https://hcservices.ecourts.gov.in/hcservices/ "Sub : Appreciation You were pulled out at short notice to operate flight IC 771/108/AI 620 ex Kolkatta on 14/4/09. Your readiness to operate this flight at such short notice is praiseworthy. As a token of appreciation, a copy of this letter is being placed in your personal file." The General Manager (Operations) has also placed on record the exceptional conduct shown by the petitioner, by his official communication dated 9th May, 2009, which states that the work ethics of pilots have been good and the said communication made special mention of the petitioner, Capt.P.S.Ramachandran and F/O Ankit Shah, who had to bear with unusual uncertainties and for having shown dignified conduct. When the respondents themselves have chosen the petitioner as a competent Pilot to ferry the Airbus A-321 from Germany to Chennai, which honour was not given to anyone in this country, the refusal to send the petitioner for FID Check Pilot Release Check on the ground that the petitioner is not possessed of the required qualification does not find substance. That apart, one other important fact is that the petitioner has been continuing as one of the members in the Safety Committee, which is responsible for giving guidance and training to other pilots. The General Manager (Operations), NACIL, Chennai, having found the petitioner suitable to be assigned duties and responsibilities in the committee of flight safety, he was empanelled by assigning duties and responsibilities in accordance with the operational manual as Dy. General Manager (Operations) Flight Safety. The said communication dated 5th May, 2009, also shows that the petitioner will be in-charge for circulating flight safety related material to all pilots/flight dispatchers of the region and he was also made to be the Convenor of the Permanent Investigation Board by co- ordinating with other departments in matters pertaining to flight safety. When the petitioner was chosen as Dy. General Manager in- charge of flight safety, by nomination as Risk Manager of the region with additional duty and responsibility where he has to liaise with the flight safety department of the Headquarters, the argument of the respondents that non-conferment of FID Check Pilot Release Check without asking him to go for CAT III A/B test is not acceptable at all. A person, who is considered suitable for giving guidance in respect of safety aspect to other junior pilots and in-charge of flight safety, cannot be deprived of undergoing the Check Pilot test, that too when there is no such rules shown to the Court to say that the rule contemplates that every six months a Line Pilot has to get through the Simulator Training and Routine Check. It is settled law that no officer working in a Government Department of the State or Centre or any instrumentality of the State, by virtue of his higher position in office, can compel another officer to do a particular act or omission, except by authority of law, rule or bye-law. This would ensure justice, fairness and equity in every sphere of life. In the name of safety, the petitioner, who is also one of the members of the Safety https://hcservices.ecourts.gov.in/hcservices/ Committee, imparting training on safety measures to other pilots, cannot be denied his promotional post, particularly, when he has acquired the requisite qualifications therefor. 9. Further, the communication issued by NACIL to DGCA dated 24th March, 2009, indicates that the petitioner has completed Check Pilot's training and he has been authorised to carry out CAT III A/B operations w.e.f. 5th Feb., 2009 and on that basis the said communication requested the DGCA, the 1st respondent herein, to confirm whether they could now carry out his FID Release Check and the Check Pilot's training carried out during the year 2006 is valid. Therefore, even the authority concerned were not even aware whether the Check Pilot's training undergone by the petitioner during the year 2006 is valid or he can be permitted to carry out his FID Release Check. Absolutely there are no rules and regulations to indicate that every six months a pilot has to get through the simulator training and routine check. This Court also directed the respondents to produce any such rule to support the case of the respondent that in the event of long delay in undergoing FID Release Check, a Pilot has to once again undergo all the test. Though the respondents took time twice, no such rules were produced by any one of the respondents, which indicates that there is no such rule or authority or legal basis. Whileso, the respondents cannot insist upon the petitioner to once again undergo the entire test, which he had already undergone. Similarly, the second contention that CAT III A/B is also necessary for Line Pilot in case he is permitted to land in airports with poor visibility is also not acceptable in the case of the petitioner for the simple reason that that the petitioner, even now, is continuing as one of the Members in the Safety Committee, which is responsible for giving all kinds of modern sophisticated and scientific training to all other pilots, who are landing in all airports, including the one where there is poor visibility. Therefore, in this view of the matter, this Court is not inclined to agree with the contentions raised by the respondents that the petitioner has to repeat CAT III A/B test once, since the petitioner has already completed all the tests required by the respondents. 10. It is needless to mention one more aspect that though the petitioner's request was not considered, during the pendency of the writ petition, the petitioner was courteous enough to undergo fresh CAT III A/B test, but without prejudice to his rights, whereas the respondents have not shown equal grace, since he was made to fail, as he had doubtfully apprehended before taking up CAT III A/B test. The petitioner is admittedly having superior qualification and 22 years of experience in handling all types of aircraft. The record also shows that when the petitioner underwent flying test conducted on 14th Oct., 2006, he had secured good marks. It is only DGCA, the 1st respondent herein, has to do FID Release Check and the Airline had to forward the name of the petitioner to the 1st respondent for the purpose of FID Release Check. The record also further shows that the petitioner had completed CAT III A/B Final Release Check https://hcservices.ecourts.gov.in/hcservices/ successfully and the certificate dated 6th Feb., 2008, bearing reference No.CTE/PLG/415/2/37 authorising the petitioner to carry out CAT III A/B executive operations has been issued. Though the Executive Director (Operations & Training), by his communication dated 1st Feb., 2009, addressed to the General Manager (Operations) has made it clear that the petitioner and certain other pilots are also qualified for Check Pilotship, even after such certification, the FID Check Pilot Release Check was not carried out. Therefore, the petitioner has given representation dated 15th March, 2009, followed by another representation dated 19th March, 2009, but only the respondents have not come forward with any concrete action and, resultantly, the FID Check Pilot Release Check has not been carried out. Therefore, the record clearly shows that no fault lies with the petitioner. 11. In this view of the matter, the petitioner having already completed CAT III A/B test and in absence of any specific rule saying that to go for FID Check Pilot Release Check, if there is a delay of more than six months, then every six months the CAT III A/B test should be undergone, this Court finds that the submission as made by the learned counsel for the respondents does not merit acceptance. Accordingly, the writ petition is allowed quashing the order of the 1st respondent and this Court further directs the respondents to permit the petitioner to undergo FID Check Pilot Release Check and the said test shall be done within a period of five weeks from the date of receipt of a copy of this order. The writ petition is allowed with the aforesaid direction. However, there shall be no order as to costs. GLN Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director General of Civil Aviation Technical Centre Opp. to Safdarjung Airport New Delhi 110 003. 2. The Executive Director (Ops I & Trg) Operations Department National Aviation Company of India Ltd., rep. by its Safdarjung Airport New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/ 3. The General Manager (Operations) National Aviation Company of India Ltd., Integrated Service Complex Operations Department Meenambakkam, Chennai 600 027. + 1 cc to Mr. Balan Haridass, Advocate SR No.15788 + 1 cc to Mr. K. Mohanamurali, CGSC SR No.15440 + 1 cc to M/s.Row & Reddy, Advocate SR No.15664 RSN(CO) SR/12.3.2010 ORDER IN W.P. NO.10701 OF 2009 https://hcservices.ecourts.gov.in/hcservices/