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TMI Blog2011 (5) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29.5.2008, and on that count, the DGCA in exercise of its power under Rule 133A r/w Rule 29C of the Rules 1937 issued the Circular dated 29.5.2008, and therefore, no fault can be found with the same. Being so, we are in agreement with the finding recorded by the High Court that even assuming that there is a challenge to the communication dated 2.6.2008 in the petition, the same is to be considered as devoid of substance as undisputedly, the DGCA has ample power to issue such instructions or directions in exercise of its power under the Rule 133A r/w Rule 29C of the Rules 1937. Since, the appellants have not been able to point out any provision even for issuance of instructions for such interregnum period, the provisions of CAR of 13.10.2006 would be attracted in the matter. Appeal dismissed. - Civil Appeal No3844 of 2011 (Arising out of SLP(C) No.27814 of 2008) - - - Dated:- 3-5-2011 - SATHASIVAM, P AND CHAUHAN, B.S (DR), JJ. JUDGEMENT Dr. B.S. CHAUHAN, J. 1. Leave granted. 2. This appeal has been preferred against the judgment and order dated 14.8.2008 passed by the High Court of Judicature at Bombay dismissing the Writ Petition No. 1687 of 2008, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antly clear that the same had been passed on instructions from the competent authority. The order stood vitiated as the same had not been passed by the DGCA on its own. Law does not permit the keeping of the subordinate legislation in abeyance without following the procedure, prescribed for its enactment. The Circular dated 29.5.2008 had been issued in violation of the guidelines stipulated for issuance of the CAR. The judgment and order impugned herein is liable to be set aside and the appeal deserves to be allowed. 6. On the contrary, Shri Parag P. Tripathi, learned ASG, Shri C.U. Singh and Shri L. Nageshwar Rao, learned senior counsel appearing for the respondents, have submitted that the writ petition filed by the appellants before the High Court was not maintainable as none of the necessary parties had been impleaded therein. However, the respondents, i.e. the airlines got themselves impleaded in the petition. The AIC and CAR fall within the category of executive instructions which simply provide the guidelines for persons working in the department. The said administrative instructions do not have any statutory force and thus can be kept in abeyance, altered or replaced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. Section 14 provides that rules shall be made after publication. 9. The provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled principles of law and practice. (b) That this Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, directing the respondent DGCA, not to proceed with the impugned amendment dated 27.7.2007 without conducting a thorough scientific study by an expert committee consisting of Aviation Medical Specialists under the guidance of an impartial medical authority such as DGCA-Air, IAF who has no commercial or vested interests. (c) That pending the hearing and final disposal of this petition, this Hon ble Court be pleased to direct the respondent to maintain status quo in respect of Flight Duty Time Limitations (FDTL) and Flight Time Limitations (FTL) as on June 2007. 12. The same was withdrawn vide order dated 31.1.2008 and the order runs as under: The learned counsel for the petitioners submits that the grievance has already been redressed and he does not want to pursue the petition. Petition dismissed as not pressed. The appellants/writ petitioners therein had also submitted that AIC 28/92 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those appellants in blowing hot and cold in the same breath is not worth approval. 16. The appellants have raised the issue as to whether order dated 29.5.2008, keeping the CAR 2007 in abeyance could be passed without following the procedure prescribed in CAR dated 13.10.2006. CAR dated 13.10.2006 provides for a detailed procedure for the promulgation of CAR. Clause 3.3 provides that whenever a change is effected to a CAR, it shall be termed as a revision and effective date of the revision of CAR shall be indicated therein. According to clause 4 thereof, if a new CAR or a revision to the existing CAR is proposed to be issued, the draft of the proposed CAR/revision shall be posted on DGCA s website or circulated to all the persons likely to be effected thereby inviting their objections/suggestions. Objections so received shall be analysed, considered and incorporated in case the same are found to be acceptable, before the promulgation of CAR. 17. In State of A.P. Ors. v. Civil Supplies Services Assn. Ors., (2000) 9 SCC 299, the government had issued a notification that provided, inter-alia, that certain rules which had earlier been framed by the government would be kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the executive order may not have a force of law but it is issued to provide guidelines to all concerned, who are bound by it. 21. In Union of India Anr. v. Amrik Singh Ors., AIR 1994 SC 2316, this Court examined the scope of executive instructions issued by the Comptroller and Auditor General for making the appointments under the provisions of Indian Audit and Accounts Department (Administrative Officers, Accounts Officers and Audit Officers) Recruitment Rules, 1964, and came to the conclusion that the CAG of India had necessary competence to issue departmental instructions on matters of conditions of service of persons serving in Department, being the Head of the Department, in spite of the statutory rules existing in this regard. The Court came to the conclusion that an enabling provision is there and in view thereof, the CAG had exercised his powers and issued the instructions which are not inconsistent with the statutory rules, the same are binding for the reason that the provision in executive instructions has been made with the required competence by the CAG. 22. Thus, it is evident from the above that executive instructions which are issued for guidance and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular dated 29.5.2008, it was not necessary for the appellants to challenge the said order separately. The High Court held: We are afraid the contention is not well-founded. While the Circular dated 29.5.2008 relates to the subject of suspension of CAR of 2007, the letter dated 2.6.2008 refers to instructions to the effect that AIC 28/92 would be effective till CAR is approved by following the procedure laid down in CAR of 13.10.2006. The subject matter of two documents being different, merely because the second document is in continuation of the first document, it cannot be said that the challenge to the first document would ipso facto include challenge to the second document. The letter dated 2.6.2008 is not the effect of the Circular dated 29.5.2008, but the same has been issued in exercise of powers under Rule 133A of the Rules 1937 to meet the circumstances which have resulted on account of CAR 2007, being suspended. The cause for issuance of the letter dated 2.6.2008 is not directly flowing from the Circular dated 29.5.2008, but it was issued for the consequences which followed the issuance of the Circular dated 29.5.2008. Being so, in case the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to exercise its discretion alone can pass the order. Even senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner. It cannot be said that the Circular dated 29.5.2008 was either issued illegally or without any authority. Admittedly, the DGCA is competent to issue special directions and the same had been issued by him, though may be with the consultation of some other authorities. However, it cannot be denied that the DGCA was involved in the process. The authority which had been in consultation with the DGCA had been provided for under the business rules and it cannot be held by any stretch of imagination that the Ministry of Civil Aviation is not an authority concerned with the safety measures involved herein. The authorities are competent to issue the said regulations. Exercise of the power is always referable to the source of power and must be considered in conjunction with it. In view of the fact that the source of power exists, there is no occasion for the Court to link the exercise of power to another source which may invalidate the exercise of power. 29. The High Court has observed that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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