Delhi High Court
Harsh Vardhan Pratap Singh vs Union Of India And Anr. on 30 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 24.04.2018
Judgment pronounced on: 30.08.2018
+ W.P.(C) 6692/2017
HARSH VARDHAN PRATAP SINGH ..... Petitioner
Through: Mr. Amit Gupta with Ms. Mansi
Kukreja, Mr. Raj Vardhan Pratap Singh
and Mr. Anshul Saroha, Advocates.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Ravi Prakash, CGSC with Mr.
Harman, Advocate for UOI.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
Background
1. The petitioner before me is the Managing Director and Accountable
Manager of a Flying Training Organization (in short 'FTO') going by the
name: Falcon Aviation Academy. This writ petition has been filed to
challenge the validity of para 13.5 (i) of Section 7, Series D, Part 1
[hereafter referred to as 'Impugned Provision'], which is incorporated in
Civil Aviation Requirements (CAR), issued by the Director General of Civil
Aviation ('DGCA').
1.1 The petitioner is aggrieved by the fact that the impugned provision
effaces the privilege granted to a Flight Instructor ('FI') to supervise and
authorise solo flights by student pilots and also to supervise flying
instructions imparted by Assistant Flight Instructors ('AFI').
1.2 According to the petitioner, the impugned provision which forms part
of the CAR is contrary to and inconsistent with the provisions of Schedule
II, para (6) clause (b) of the Aircraft Rules, 1937 (hereafter referred to as the
'Subject Rule').
1.3 The grievance of the petitioner is that the impugned provision is
contrary to the Subject Rule as it provides that Assistant Pilot Instructor(s)
(APIs)/ Pilot Instructor(s) (PIs) shall obtain approval from the Chief
Instructor (CI) or Chief Flight Instructor (CFI) of the concerned FTO and
that PIs and APIs shall impart training only after obtaining due authorisation
from CI/ CFI/ Deputy CFI in respect of each flight.
Difficulties faced by FTOs
2. In support of his contention, the petitioner has relied upon the
Convention on International Civil Aviation (hereafter referred to as 'Chicago
Convention'); the Standard and Recommended Practices (SARPs), issued by
the International Civil Aviation Organization, (ICAO); the provisions of the
Aircraft Act, 1934 ('Aircraft Act'); and the Aircraft Rules, 1937 ('Aircraft
Rules').
2.1 The case set up by the petitioner, is that, contrary to the Subject
Rules, the DGCA by issuing the impugned provisions as part of the CAR,
has created a monopoly in favour of CFIs and Deputy CFIs. It is averred
that the monopoly created in favour of CFIs/ Deputy CFIs is affecting the
day-to-day functioning of FTOs as no flight training exercise can be
conducted without their authorisation, even though, as per the Aircraft Rules
such flight training exercises can be conducted under the supervision and
authority of persons who are in possession of FI rating as endorsed by the
DGCA.
2.2 In the writ petition, reference is made to practical difficulties caused
on account of non-availability of the CFIs/ Deputy CFIs. It is averred that at
times a CFI/ Deputy CFI is absent or unavailable on account of leave,
meetings with DGCA, participation in refresher courses, renewal of license,
instructor rating or when he or she is required to take a medical exam.
According to the petitioner, in the event of absence of CFI/ Deputy CFI, for
any of the aforestated reasons, the FTO is required to suspend its flight
training exercises.
2.3 Besides this, the CFIs/Deputy CFIs, according to the petitioner, at
times misuse their monopolistic powers and thus, often force the FTOs to
accede to their unreasonable and unethical demands.
2.4 It is averred that, so much so, even when there are serious complaints
by the pilot students with regard to the behaviour of CFIs/ Deputy CFIs, the
concerned FTO is unable to take action as it impacts the running of the
FTO. To buttress his submission, the petitioner has referred to the leave
record of Falcon Aviation Academy's CFIs for the period spanning between
the time the impugned provision was introduced (i.e. 01.01.2016) and I
presume, in and about the time the instant petition was filed. These details
are given in Annexure P-13. The details furnished by the petitioner show
that the concerned FTO could work only for 54.07% of the functional days,
that is, when the CFIs referred to in the said annexure were actually
available.
2.5 The petitioner has also adverted to the complaint of sexual
harassment lodged against one of the CFIs and the instance of fake
certificates being issued by a CFI of another FTO, to 25 pilot students so as
to enable them to obtain Indian Commercial Pilot licence.
2.6 The petitioner has also alluded to the answer given by the Minister of
State for Civil Aviation, on 06.04.2017, to an unstarred question No.5466 in
Lok Sabha. It is stated by the petitioner that the Minister of State for Civil
Aviation wrongly conveyed to the Lok Sabha that FI rating holders had
privileges in consonance with Schedule II, Section R, Para 6 clause (b) of
the Aircraft Rules, while the same had been taken away since 01.01.2016
after the insertion of the impugned provision in the CAR by the DGCA.
2.7 The petitioner has also made reference to the fact that via e-mail
dated 09.06.2016 the DGCA, in reply to the petitioner's letter dated
16.05.2016 concerning the withdrawal of FIs had indicated that the matter
was under consideration. In this behalf, the petitioner has also adverted to
his RTI query directed towards the DGCA and the reply dated 07.10.2016
sent in that behalf.
2.8 According to the petitioner, the reply given by the DGCA is vague as
it does not specify as to what would happen if the CFI was not present for
authorisation.
2.9 Furthermore, the petitioner, pertinently also sent, in about 2017, an
RTI query to the DGCA via an e-mail wherein he, inter alia, sought to
know whether the Air Safety Directorate of the DGCA had ever suggested
or advised curtailment or withdrawal of privileges of FI rating holders in its
accident summaries, reports, or in any other official memos.
3. Evidently, the Government of India via the Ministry of Civil Aviation
informed the petitioner vide communication dated 04.01.2017 that the
matter was under examination for appropriate action.
3.1 Besides this, the petitioner has adverted to correspondence sent to the
DGCA between 10.02.2017 and 20.03.2017 to highlight the illegality
involved in retaining the impugned provision in the CAR.
3.2 The petitioner makes a specific reference to the communication dated
04.05.2017 addressed by the Deputy Director, Air Safety & CPIO to the
RTI query raised by him. The said communication is suggestive of the fact
that there has been no general curtailment or withdrawal of privileges of FI
rating holders for involvement in accidents or serious incidents, etc., though
those who were involved were taken off the roster pending investigation by
the Air Safety Directorate.
3.3 To highlight the egregious misconduct of CFIs, the petitioner has
adverted to a specific instance pertaining to a CFI working with Falcon
Aviation Academy, which involved his having funded the training of a
particular student at the behest of an official of the DGCA, because he was
looking for a discount in the fees which was charged for the course. It is
averred that upon the CFI being found out that he had infracted the terms of
his employment, he resigned and joined another FTO without obtaining its
previous employer's 'No Objection Certificate', albeit, with the blessings of
the DGCA.
4. To my mind, the aforementioned infractions committed by CFIs
were, perhaps, brought to fore by the petitioner, only to highlight the
practical difficulties faced by the FTOs in conducting their training
exercises. The instances cited by the petitioner cannot be adjudicated upon
in this writ petition as that is not the scope and ambit of writ petition.
Assertions by parties
5. However, what is required to be noticed is that the Ministry of Civil
Aviation, Government of India vide communication dated 04.01.2017,
while accepting the fact that the restoration of privileges of FI rating holders
by "correcting" the impugned provision inserted in CAR, was under
examination, has done nothing substantial in the matter except issue a
notification dated 19.09.2017.
5.1 By virtue of this notification, the Central Government in exercise of
powers under Section 5 of the Aircraft Act has amended Schedule II,
Section R, para 6 clause (b) of the Aircraft Rules by, inter alia, inserting the
following proviso: -
"Provided that this privilege shall be subject to any directions
that may be issued by the Director-General in this behalf to
Flying Training Organisations."
6. The record shows that pursuant to the notice issued in this writ
petition on 04.08.2017, a counter affidavit has been filed on behalf of the
respondents which includes Union of India and DGCA via which all that
which has been done is to place on record the Gazette Notification dated
19.09.2017, to which, I have made a reference above. Pertinently, none of
the averments made in the writ petition have been dealt with or denied by
the respondents.
7. The petitioner, on the other hand, has filed a rejoinder. Via the
rejoinder, the petitioner has, apart from reiterating his submissions made in
the writ petition, highlighted the fact that the Gazette Notification dated
19.09.2017, does not withdraw or restrict the privilege of FI rating holder.
It is asserted by the petitioner that even if the DGCA is considered
competent to issue directions regarding privileges conferred on the FIs the
same cannot be contrary to or inconsistent with the provisions made in that
behalf under the Aircraft Act and Aircraft Rules. It is also averred by the
petitioner that the privilege conferred upon FI rating holders cannot be
curtailed by way of amendment to the Rules or CAR, since the same would
be contrary to SARPs issued by ICAO and section 4 and/or 5A of the
Aircraft Act.
7.1 In other words, the submission is that executive instructions can only
supplement the statute or cover areas to which the statute does not extend
but it cannot run contrary to the statute or whittle down its effect. Reliance
in this behalf is placed by the petitioner on the judgment of the Supreme
Court rendered in: Joint Action Committee of Airline Pilots Association of
India v. Director General of Civil Aviation, (2011) 5 SCC 435. The
petitioner, thus, takes the stand that CAR is neither a statute nor a
subordinate legislation. It is averred that CAR issued by the DGCA are
merely executive orders and hence cannot be used to restrict the privileges
granted to FIs.
8. In support of their respective stands, the arguments in line with the
pleadings in the matter were advanced on behalf of petitioner by Mr. Amit
Gupta, while on behalf of the respondents submissions were advanced by
Mr. Ravi Prakash, Central Government Standing Counsel.
Analysis and reasons
9. Before I proceed further, it may be relevant to note the assertion made
by the petitioner, to which I have made a reference above, which is, that he
is the Managing Director and the Accountable Manager of Falcon Aviation
Academy and that the said FTO (i.e. Falcon Aviation Academy), has been
approved by DGCA, having validity till 19.12.2020, has not been refuted by
the respondents.
9.1 Furthermore, the petitioner claims that the Falcon Aviation Academy
is in possession of ten (10) Cessna-152 aircrafts and two (2) Piper Seneca
PA-34 aircrafts, besides a Red Bird MCX Full-Motion Simulator, for
training student pilots is also not put in issue by the respondents.
9.2 Therefore, the petitioner clearly has, to my mind, the necessary locus
standi and legal interest in assailing the impugned provision inserted in the
CAR.
9.3 However, in order to appreciate the contours of the issue at hand and
to facilitate its adjudication. It would be necessary to advert to the relevant
provisions of the Chicago Convention, SARPs issued by ICAO, the Aircraft
Act and the Aircraft Rules framed thereunder.
10. Towards this end, let me first and foremost allude to the Chicago
Convention.
10.1 In order to bring about uniformity in international standards, inter
alia, qua operation of civilian aircrafts, the Chicago Convention was framed
on 07.12.1944; fifty two (52) countries including India were signatories to
the Chicago Convention. The Chicago Convention was brought into force
on 04.04.1947.
10.2 The Article 371 of Chapter VI of the Chicago Convention, inter alia,
obliges every contracting state to collaborate in securing the highest
practicable degree of uniformity in regulations, standards, procedures and
organization in relation to aircraft, personnel, airways and auxiliary
services. Clause (a) to (k) of Article 37 refers to areas qua which ICAO is
empowered to adopt and amend from time to time as may be necessary
international standards and recommended practices and procedures to bring
about uniformity in regulations, standards and procedures in matters relating
to aircraft, personnel airways and auxiliary services so as to facilitate and
improve air navigation.
Article 37 - Adoption of International standards and procedure - Each contracting State undertakes to
collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures,
and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which
such uniformity will facilitate and improve air navigation.
To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may
be necessary, international standards and recommended practices and procedures dealing with:
(a) Communications systems and air navigation aids, including ground marking;
(b) Characteristics of airports and landing areas;
(c) Rules of the air and air traffic control practices;
(d) Licensing of operating and mechanical personnel;
(e) Airworthiness or aircraft;
(f) Registration and identification of aircraft;
(g) Collection and exchange of meteorological information;
(h) Log books;
(i) Aeronautical maps and charts;
(j) Customs and immigration procedures;
(k) Aircraft in distress and investigation of accidents;
and such other mattes concerned with the safety, regularity; and efficiency of air navigation as may from
time to time appear appropriate.
Article 38: Departures from international standards and procedures - Any State which finds it
impracticable to comply in all respects with any such international standard or procedures, or to bring its
own regulations or practices into full accord with any international standard or procedure after amendment
of the latter, or which deems it necessary to adopt regulations or practices differing in any particular
respect from those established by an international standard, shall give immediate notification to the
International Civil Aviation Organization of the differences between its own practice and that established
by the international standard. In the case of amendments to international standards, any State which does
not make the appropriate amendments to its own regulations or practices shall give notice to the council
within sixty days of the adoption of the amendment to the international standard, or indicate the action
which it proposes to take. In any such case, the council shall make immediate notification to all other
states of the difference which exists between one or more features of an international standard and the
10.3 Article 38 gives leeway to a contracting State to deviate from
established international standards, regulations and practices where it finds
it impracticable to comply in all respects with international standards or
procedures, albeit, by notifying the ICAO in that behalf. In the event,
amendments are made qua an international standard which a contracting
State does not wish to adhere to, it is required to give notice to the ICAO
within 60 days of such amendment being adopted, and ICAO in turn, is
required to notify other contracting States as to differences which obtain
between the international standard so adopted and the corresponding
standard of the concerned contracting State.
11. It appears that having regard to the fact that India was a signatory to
the Chicago Convention, it proceeded to insert Section 42 in the Aircraft Act
via amendment Act 12 of 1972 in place of Section 3 w.e.f. 20.04.1972,
which, in effect, empowered the Central Government to make rules as may
be necessary for carrying out the provisions of the Chicago Convention
including the provisions contained in the annexure relating to international
corresponding national practice of that State.
Section 4. - Power of Central Government to make rules to implement the Convention of 1944.
Subject to the provisions of section 14, the Central Government may, by notification in the Official
Gazette, make such rules as appear to it to be necessary for carrying out the Convention relating to
International Civil Aviation signed at Chicago on the 7th day of December, 1944 (including any Annex
thereto relating to international standards and recommended practices) as amended from time to time.
Section 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 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.
standards and recommended practices.
11.1 Importantly, para 2.8.2.1 of Chapter II of Annexure-I of the Chicago
Convention provides for the privileges of the holder of FI rating. The said
provision, inter alia, grants the person holding an FI rating, the privilege to
supervise solo flights by pilot students subject to conditions contained
therein; which includes, that privileges so granted to an FI are required to be
entered in his licence.
12. The power of the Central Government to make rules, (albeit, after
following the provisions of Section 14 of the Aircraft Act) flows from
Section 5 of the Aircraft Act.
12.1 Sub-section (1) of Section 5 adverts to aspects qua which the Central
Government can make rules, these concern matters relating to regulating the
manufacture, possession, use, operation, sale, import or export of any
aircraft or class of aircraft and for securing safety of aircraft operations.
12.2 Sub-section (2) of Section 5 sets out under clause (a) to (qq), the areas
which the rules could touch upon. Clause (r) of Section 5(2) vests residuary
power on the Central Government to provide for matters which are
subsidiary and/or incidental to the matters referred to in the foregoing
clauses of the said sub-section.
13. Section 5A of the Aircraft Act empowers the DGCA or any other
officer specifically empowered in that behalf by the Central Government to
issue directions from time to time with respect to specified matters referred
to in sub-section (2) of Section 5. In terms of this provision directions can
be issued by the DGCA or any the officer specifically empowered by the
Central Government for the said purpose, to any person or persons using
any aerodrome or engaged in aircraft operations, etc. provided the directions
or orders so issued are consistent to the provisions of the Aircraft Act and
the Rules made thereunder.
14. This aspect is further emphasised in sub-rule (1) of Rule 29C3 of the
Aircraft Rules, which states that the Director-General may lay down
standards and procedures which are not inconsistent with the Aircraft Act
and the rules made thereunder to carry out the provisions of the Chicago
Convention and any annexure appended thereto.
15. Pertinently, Rule 38A(2)(b)4 specifically states that no person other
than a person having FI's or AFI's rating shall impart instructions in piloting
an aircraft unless he has been specifically authorised in writing by the
Director-General to impart such instructions.
16. Rule 133A empowers the Director-General of the DGCA to issue
special directions with regard to the operation, use, possession, maintenance
or navigation of aircraft flying in or over India or aircraft registered in India
through notices via means indicated therein, which are collectively, referred
to as CAR, with a caveat that the directions so issued are not inconsistent
with the provisions of the Aircraft Act or the Rules made thereunder.
17. This being the overall architecture of the Chicago Convention, the
Aircraft Act and the Rules framed thereunder insofar as the issue at hand is
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.
38A. Carriage of operating crew. -.............
(1) Pilot.- ....
(2) Flight Instructor or Assistant Flight Instructor. -
(a) .....
(b) No person other than a person having a Flight Instructor's or Assistant Flight Instructor's rating shall
impart instructions in piloting in aircraft, unless he has been specifically authorised in writing by the
concerned, what is required to be considered is the following: -
Issues:
(i). Whether the impugned provision is unconstitutional and
ultra vires the provisions of the Aircraft Act and Rules
framed thereunder?
(ii). Whether the Director-General could amend para 6(b) of
Section R, Schedule II of the Aircraft Rules by inserting
the impugned provision in CAR?"
Issues ((i) & (ii):
18. In so far as the first issue is concerned, what is required to be
recognised, and something which is not in dispute, is that India is a
signatory to the Chicago Convention. Thus, in consonance with the
provisions of the Chicago Convention, the legislature, by inserting Section 4
in the Aircraft Act has declared its intent to make rules which would be
necessary for carrying out the provisions of the Chicago Convention
including those which are contained in the annexure appended to the
Convention. Therefore, immediately, what one requires to take into account
is para 2.8.2.1 of Chapter II of Annexure-I to the convention, which
provides for privileges held out to persons who are holders of FI ratings.
For the sake of easy reference, the relevant provisions are set out hereafter: -
"2.8.2 Privileges of the holder of the rating and the
conditions to be observed in exercising such privileges
2.8.2.1 Subject to compliance with the requirements
Director-General to impart such instructions.
specified in 1.2.5 and 2.1, the privileges of the holder of a flight
instructor rating shall be:
a) to supervise solo flights by student pilots; and
b) to carry out flight instructions for the issue of a private
pilot licence, a commercial pilot licence, an instrument rating,
and a flight instructor rating
provided that the flight instructor:
1) holds at least the licence and rating for which instruction
is being given, in the appropriate aircraft category;
2) holds the licence and rating necessary to act as the pilot-
in-command of the aircraft on which the instruction is given;
and
3) has the flight instructor privileges granted entered on the
licence."
(emphasis is mine)
19. Clearly, subject to the conditions stipulated in para 2.8.2.1 the person
holding FI's rating under the convention is granted the privilege of
supervising solo flights by student pilots.
19.1 India, in consonance with para 2.8.2.1 of SARP has provided in the
form of para 6(b), in Section R, under Schedule II of the Aircraft Rules
similar privilege to persons holding FI ratings. For the sake of convenience,
the same is reproduced hereunder:
"Section R - FLIGHT INSTRUCTOR'S RATING
(AEROPLANES/ HELICOPTERS)
6. Privileges - Subject to the validity of endorsements and
ratings in the Pilot's licence of which this Flight Instructor's
Rating forms a part and also any endorsement on this rating,
the privileges of the holder of a Flight Instructor's Rating shall
be -
(a) ................
(b) to supervise and authorise solo flights by student pilots
and supervise flying instructions imparted by Assistant Flight
Instructors."
(emphasis is mine)
19.2 As noted above, once India had decided to frame its rules in
conformity with the provisions of the Chicago Convention which included
those contained in Annexure-I relating to SARPs, under Article 38 it was
required, as correctly argued on behalf of the petitioner, to inform the ICAO
of any changes brought about in the Rules with the insertion of impugned
provision in CAR.
19.3 Clearly, India does not appear to have informed ICAO of the change
brought about by virtue of the insertion of impugned provision in CAR.
However, having said so there is no timeline is fixed with respect to the
same. The timeline of 60 days fixed in Article 38 is with respect to
amendments brought about in international standard; which, if a contracting
State does not wish to adopt by amending its regulations and practices is
required to be notified. Notice in that behalf has to be given by the
concerned State to the ICAO within 60 days of adoption of the amended
international standard.
19.4 Therefore, India, by deviating from para 2.8.2.1 has not, in that sense,
violated an international convention which though incorporated in the
Aircraft Rules is only directory in nature.
19.5 The argument advanced on behalf of the petitioner that it violates the
provisions of Article 14 of the Constitution cannot be sustained as India has
the power even under the Chicago Convention to deviate from the
international standards.
20. That being said, what is required to be examined is as to whether the
subject rule to which, I have made a reference above, could be amended by
inserting the impugned provision in the CAR, as noticed above. Section 5A
of the Aircraft Act which confers power on the DGCA to issue directions
mandates that the directions so issued have to be consistent with the
provisions of the Aircraft Act and the Rules framed thereunder. As noted
hereinabove, Rule 29C of the Aircraft Rules while empowering the Director
General to lay down standards and procedures clearly limits the power by
providing that such standards and procedures should be consistent with the
provisions of the Aircraft Act and the Rules framed thereunder to carry out
the provisions of the Chicago Convention and the annexure appended
thereto.
20.1 The directions which are issued by the Director General from time to
time by virtue of power vested under Rule 133A5 of the Aircraft Rules also
sets out that the directions issued by him cannot be inconsistent with the
133A. Directions by Director-General. --
(1) 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 311 [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 person or persons to whom
provisions of the Aircraft Act or the Rules framed thereunder. Therefore,
looked at in the light of the provisions of the Chicago Convention, para
2.8.2.1 of SARP and the aforementioned provisions of Aircraft Act and
Aircraft Rules, the impugned provision which stands inserted in the CAR,
clearly dilutes the privileges conferred upon the AFI's and FI's. To
appreciate the extent of the dilution, the impugned provision is extracted
hereafter: -
"13.5 Assistant Pilot Instructor(s)/ Pilot Instructor(s)
The APIs/ PIs shall be approved by CI of CFI or FTO.
APIs/ PIs shall hold:
(a) ....
(b) ....
Functions and Responsibilities of PIs/ APIs:
i) The PI/APIs shall impart flying training only after
obtaining due authorization by CI/CFI/Dy. CFI for each
flight...
ii) xxx xxx xxx
iii) xxx xxx xxx
iv) xxx xxx xxx."
(emphasis is mine)
21. The impugned provision was inserted in CAR on 30.01.2015 and was
brought into effect on 01.01.2016. Plainly, the impugned provision, is
contrary to the Subject Rule as it requires FI's and AFI's to impart flying
training after obtaining due authorisation from CI's, CFI's and Deputy CFI's.
such direction is issued.
What has made matters worse for FI's and AFI's is that this approval has to
be obtained for each flight. Apart from the practical difficulty that it places
on FTOs on account of unavailability of CIs/ CFIs/ Deputy CFIs, it certainly
takes away the privilege granted to a person holding an FI's rating to
supervise solo flights by student pilots.
21.1 This is a privilege which stands incorporated in a statutory rule
framed by the Central Government which in turn is based on para 2.8.2.1 of
the SARP appended to the Chicago Convention.
22. In my opinion, the Director General did not have the power to issue a
direction of the nature which has the effect of amending a rule framed by
the Central Government. The impugned provision which has been inserted
in the CAR is undoubtedly inconsistent with the subject rule. The impugned
provision is clearly ultra vires to the subject rule incorporated in the Aircraft
Rules. The impugned provision at best is an executive instruction which
cannot overturn a statutory rule framed by the Govt. of India: The
observations made in that behalf by the Supreme Court in K. Kuppusamy
and Anr. V. State T.N. and Ors., (1998) 8 SCC 469, being apposite, are
extracted hereafter:
"3. The short point on which these appeals must succeed is
that the Tribunal fell into an error in taking the view that since
the Government had indicated its intention to amend the
relevant rules, its action in proceeding on the assumption of
such amendment could not be said to be irrational or arbitrary
and, therefore, the consequential orders passed have to be
upheld. We are afraid this line of approach cannot be
countenanced. The relevant rules, it is admitted, were framed
under the proviso to Article 309 of the Constitution. They are
statutory rules. Statutory rules cannot be overridden by
executive orders or executive practice. Merely because the
Government had taken a decision to amend the rules does not
mean that the rule stood obliterated. Till the rule is amended,
the rule applies. Even today the amendment has not been
effected. As and when it is effected ordinarily it would be
prospective in nature unless expressly or by necessary
implication found to be retrospective. The Tribunal was,
therefore, wrong in ignoring the rule.
23. The argument advanced on behalf of the respondents, based on the
Gazette Notification dated 19.09.2017, that the proviso to the Subject Rule
now empowers the Director General to issue directions qua the privileges
conferred on persons holding FI ratings, in fact, fortifies the arguments
advanced on behalf of petitioner that the Director General could not have
taken away or diluted the privilege of a person holding a FI rating by
inserting the impugned provision in the CAR. At best, what one can say of
the amendment brought about in the Subject Rule is that it confers on the
Director General an enabling power. This power clearly has not been
exercised as yet and cannot, to my mind, ratify the impugned provision
which was inserted in the CAR when the Director General did not have the
power to issue such a direction. The Gazette Notification of 19.09.2017
amending the Subject Rule does not go so far as to ratify the impugned
provision inserted in the CAR.
24. Thus, having regard to the foregoing discussion, I am of the view that
the impugned provision to the extent delineated hereafter i.e. para 13.5(i) of
Section 7 of Series D Part I which reads as follows: -
"13.5 Assistant Pilot Instructor(s)/ Pilot Instructor(s)
The APIs/ PIs shall be approved by CI of CFI or FTO.
APIs/ PIs shall hold:
(a) .............
(b) .............
Functions and Responsibilities of PIs/ APIs:
i) The PI/APIs shall impart flying training only after
obtaining due authorization by CI/CFI/Dy. CFI for each
flight
ii) xxx xxx xxx
iii) xxx xxx xxx
iv) xxx xxx xxx."
as prayed, will have to be struck down. It is ordered accordingly. There
shall be no order as to cost.
RAJIV SHAKDHER
(JUDGE)
AUGUST 30, 2018
hs
