1. By way of this Public Interest Litigation, the Society for Welfare of Indian Pilots has approached this Court for issuance of writ of declaration to declare clause 2.2 of the Civil Aviation Requirements, Section 7, Series 'G' Part II issued by the Director General of Civil Aviation(the second respondent) dated 08.10.1999 as revised on 08.08.2009 regarding the minimum experience requirement for engagement as Pilot in Command under the Foreign Aircrew Temporary Authorisation (FATA) and the practice of the second respondent in permitting the respondent airlines to have different medical standards for pilots engaged under the "FATA" and India pilots to be ultra vires.
2. When, the writ petition came up for admission before us on 14.06.2010, after hearing the learned Senior counsel appearing for the petitioner and after considering the facts and also taking judicial notice of the recent increase in the air traffic accidents in India, we directed Assistant Solicitor General to take notice on behalf of the respondents 1 & 2 and to file counter affidavit and simultaneously notice was ordered to the respondents 4 to 11. Since, the petitioner's complaint was about adopting different medical standards for foreign pilots and Indian pilots, we thought it fit that the Director of Medical Services (Civil Aviation) should be added as the party respondent and accordingly, the Director of Medical Services (Civil Aviation), DGCA, New Delhi was suo-moto impleaded as 12th respondent in the writ petition. We have infact observed that the issue raised by the petitioner is really a very serious matter concerning the public because of the casualty being taken place recently and therefore direction was issued to the Director Medical Services (Civil Aviation) and the Director General of Civil Aviation to file their respective counter affidavit and also to seek instructions as to why the interim directions as sought for by the petitioner be not passed immediately.
3. A counter affidavit has been filed by the second respondent (DGCA) and the private respondents namely, respondent no. 3, Jet Airways, respondent no. 9, National Aviation Company have also filed their counter affidavits. Before, we go into the developments, which have taken place after, we have entertained this public interest litigation, it would be worthwhile to mention a few facts, which has led to the filing of this writ petition.
4. The private respondents airlines are engaging foreign pilots under the Foreign Aircrew Temporary Authorization (hereinafter referred to as the "FATA") issued by the second respondent and the complaint of the petitioner, which is a society registered under the Bombay Public Trusts Act, 1950, was that the experience requirement, particularly the requirement relating to medical fitness for foreign pilots flying under "FATA" are lower than that prescribed for Indian Pilots. This according to the petitioner was discriminatory and arbitrary. The petitioner would further state that by prescribing such lower standards has led to several unfortunate incidents and most recently being the air crash on 22.05.2010 at the Mangalore airport.
5. It is seen that "FATA" was issued by the second respondent to enable the airline operators in India to engage foreign pilots so as to tied over the temporary shortfall of experienced Indian pilots. In this regard, clause 1.1 and clause 2.1 (xii) of the Civil Aviation Requirements (CAR), Section 7-Flight crew Standards, Series 'G', Part II, Issue I dated 8.10.1999, would be relevant. Clause 1.1 reads as under:- "An Indian air transport operator can be permitted to employ fight crew holding foreign licences issued by a contracting State of ICAO, to operate Indian registered aircraft till Indian flight crew are trained and acquire appropriate Indian licence and ratings." Clause 2.1 (xii) reads as under:
"FATA shall not be considered for any other reason except to overcome the shortage of type rated pilots with scheduled, non-scheduled, general aviation operators and to overcome the shortage of instructors with flying clubs."
6. Thus, it appears that the "FATA" was intended only to overcome the shortage of type-rated pilots with scheduled, non-scheduled, general aviation operators and to overcome the shortage of instructors with flying clubs. The petitioner in the affidavit filed in support of the writ petition has pointed out that the different standards has been prescribed for the Indian Pilot in command vis-a-vis the foreign pilots, which is discriminatory and arbitrary. Thus, the complaint is that unreasonably low requirement of experience for pilots engaged under "FATA" compromises on air passenger safety. It has been stated that foreign pilots engaged under "FATA" do not have to undergo the medical checks that Indian pilots have to undergo at a Central Medical Establishment or the Institute of Aerospace Medicine of the Indian Air Force and the medical fitness standards for Indian pilots are rigorous and the pilots engaged under "FATA" are required to undergo only a simple medical check up with a local practitioner approved by their respective State Regulatory Authority and this is contrary to the International Civil Aviation Organisation requirement. The petitioner in paragraph 18 to 22 of the affidavit have stated about various incidents wherein the foreign pilots engaged under "FATA" had developed serious medical problems, which eventually led to compromise in air passenger safety. With these facts, the petitioner had approached this Court by way of the above writ petition.
7. The learned Senior counsel appearing for the petitioner would submit that there are various tests prescribed for Indian pilots by the second respondent, the details of some of which had been filed in the additional typed set of papers and these should be made applicable to the foreign pilots engaged under "FATA".
8. The learned Additional Solicitor General of India appearing for the respondents 1 & 2 by placing reliance on the counter affidavit filed on behalf of the second respondent submitted that by virtue of the amendment dated 08.06.2010 to the Civil Aviation Requirements, Section 7, Series G, Part II, Revision 4, identical medical standards as applicable to the Indian Pilots under Rule 39B have been incorporated for application to Foreign Pilots as well and therefore, the petitioner cannot have any grievance. It is further stated that the engagement of foreign pilots under "FATA" is being resorted to by the operators to overcome the shortage of type rated senior pilots and in order to ensure that the operators do not engage "FATA" pilots in a routine manner, the Government has restricted the permission under "FATA" up to July 2011 only and during this period their phasing out programme of "FATA" pilots will be monitored. It is further stated that considering the shortage of type-rated commanders with Airline operators, their net requirement was ascertained and as per the existing policy of Ministry of Civil Aviation vide order dated 20.04.2010, expatriate pilots of various operators are considered for validation of their foreign licences upto 31st July, 2011 subject to compliance of the requirements of CAR, Section 7, Series G, Part II, Revision 4 dated 8th June, 2010. Their phasing out programme is also required to be monitored as per provisions of Para 2.4(x) of the CAR and it is not possible for the operators to neglect this requirement and that in 2008 there were 843 "FATA" holders, in 2009 they were reduced to 686 and at present in 2010 there are 487 "FATA" holders. It is further submitted that the proposed revision of draft Civil Aviation Requirements on Validation of Foreign Licences in respect of expatriate pilots has been made available in the website of DGCA for comments from 23.07.2010 to 22.08.2010 and the petitioner is at liberty to express their views. The learned Additional Solicitor General had also circulated a copy of the draft revision of "CAR" for our perusal.
9. The learned counsel appearing for the third respondent by relying upon the counter affidavit would contend that though the writ petition is conceived as a public interest litigation in sum and substance the litigation is by a group of pilots and the litigation is motivated as they have personal grievance against the third respondent management. In the counter affidavit, the third respondent has stated about the promotion policy adopted by them and that stringent condition have been laid down and infact the regulations framed by the third respondent management facilitates engagement and promotion of Indian pilots as against recruitment of pilots under "FATA". It is further submitted that since the issue regarding medical standards has already been addressed by the second respondent by issuing the draft revision of the Civil Aviation Requirements (CAR) for "FATA" pilots, the grievance of the petitioner is no more relevant.
10. In the counter affidavit filed by the 9th respondent, it has been stated that the allegation that pilots with less qualification than prescribed by the DGCA are allowed to fly the Aircraft is not correct and at the present moment, the 9th respondent is not engaging expatriate co-pilots with "FATA", because there is sufficient number of Indian pilots available in the country. However, there is a shortage of pilots-in-command, and hence they have to necessarily go in for expatriate pilots and they are strictly complying with the DGCA /Civil Aviation requirements and in view of the proposed amendment to the Civil Aviation Requirements for "FATA" pilots, the grievance of the petitioner no longer exists.
11. By way of the reply, the learned Senior counsel appearing for the petitioner would submit that under the draft amendment in clause 2.4 relating to Operation Requirement, sub-clause 5 enumerates, the requirements to be possessed by the foreign pilots and under clause 'c', one of the requirement is class 1 medical fitness assessment from the licence issuing authority of the contracting State. This according by the learned Senior counsel should not be adopted. The learned Senior counsel would submit that in the case of Serbia, the country allows pilots, who have pacemakers in their heart to fly whereas under the regulation framed by the second respondent, it is not permissible. Therefore, the medical fitness assessment should not be based on the assessment by the licence issuing authority of any Foreign State, but should be as per the norms fixed by the Indian pilots by the DGCA.
12. We have considered the submission of the learned counsels appearing for the parties and perused the materials available on record.
13. The Aircraft Act, 1934, (hereinafter referred to "as the Act") was enacted to make better provision for the control of the manufacture, possession, use, operation, sale, import, export of aircraft. Section 5 of the Act, empowers the Central Government to make rules. Sub-Section 2(aa) of Section 5, empowers the Central Government to make rules for regulation of air transport services and the prohibition of the use of aircraft in such services except under the authority of and in accordance with a licence authorizing the establishment of the service. Sub-Section 2(g) of Section 5 provides for the licensing of persons employed in the operation, manufacture, repair or maintenance of aircraft. Sub-Section 2(o) of Section 5 provides for framing of rules relating to the matter and conditions of issue or renewal of any licence or certificate under the Act or the Rules, the examinations and tests to be undergone in connection therewith, etc. Sub-Section 2(q) of Section 5 empowers the Central Government to make rules to provide for the recognition for the purposes of the Act of licences and certificates issued elsewhere than in India relating to aircraft or to the qualifications of persons employed in the operation, manufacture, repair or maintenance of aircraft.
14. In exercise of the powers conferred under Section 5 and Section 7, Sub-Section 2 of Section 8 of the Act, the Aircraft Rules, 1937 (hereinafter referred to "as the Rules") was framed. For the purposes of the present writ petition, the following rules would be relevant:- Rule 3 (33A) defines "Licence" to mean a licence issued under the Rules; Rule 3(48) defines "Rendering a licence valid" to mean the action taken as an alternative to assuming a licence, in accepting a licence issued by any other Contracting State as the equivalent of an Indian licence; Rule 19 deals with power for cancellation, suspension or endorsement of licences, certificates, authorization and approval. Part III of the Rules deals with the 'General Safety Conditions'. Sub Rule 1 Rule 39B deals with Medical standards and states that no licence or rating referred to in rule 38, required for any of the personnel of the aircraft, shall be issued or renewed unless the applicant undergoes a medical examination with an approved medical authority and satisfies the medical standards as notified by the Director-General. In terms of the explanation for the purposes of this sub-Rule 1 of Rule 39B, the approved medical authority means a medical authority approved by the Director General. Sub-Rule 2 of Rule 39B gives power to the Director General to require a member of any flight crew to undergo a medical examination by any Medical Authority at any time, if in his opinion, such examination is necessary in the interest of safety of operations. Rule 39C deals with period of validity of Medical Fitness Assessment and Licences; Rule 41A relates to Checks, Tests and Examination; Rule 42 deals with Licences and their renewal; Rule 45 deals with validation of foreign licences and states that when a licence has been granted by a duly competent authority in any foreign State and if it is in force, the Central Government may subject to conditions for such purposes as its thinks fit confer on such licence the same validity for the purpose of flying aircraft registered in India as if it has been granted under the rules and such validation shall be subject to the provisions of Rule 19, which empowers the Central Government to cancel or suspend.
15. Part XII A of the Rules deals with Regulatory Provisions under the said part Rule 133A empowers the Director General to issue special directions not inconsistent with the Act or the Rules relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. Thus, in exercise of powers under Rule 45 and Rule 133A Director General has notified the Civil Aviation Requirements pertaining to validation of foreign licences of flight crew.
16. The grievance of the petitioner is that the different medical standards had been prescribed for foreign pilots and this is arbitrary and violative of Article 14 of the Constitution of India that as long as these pilots are authorised to operate Aircrafts in India, they shall abide by the directions issued by the Director General and the Medical Standards prescribed in terms of Rule 39B shall be adhered to and made applicable to such foreign pilots also. The petitioner has stated various instances in which there were accidents/incidents, which have occurred, when the aircrafts were operated these foreign pilots and prescribing lower medical standards for such foreign pilots compromises on the air passenger safety.
17. We have seen Rule 133A, which deals with the power of the Director General to issue directions, this Rule comes under the chapter Regulatory Provisions by which the Director General is empowered to issue special directions and such special directions shall not be inconsistent with the Aircraft Act or the Rules, relating to the operations, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. Therefore, such power to issue direction cannot be exercised in a manner, which is inconsistent with the provisions of the Act or the Rules. We have seen Rule 39B, which deals with make standards and in terms of Sub-Rule 1 of Rule 39B stringent medical tests have been prescribed for Indian pilots. Therefore, if the Director General in exercise of powers under Rule 133A has notified Civil Aviation Requirements for foreign pilots, essentially the same cannot be inconsistent with the provisions of the Act and the Rules. Any such prescription of standards, which are inconsistent with the provisions of the Rules, more particularly Rule 39B has to be held as being without jurisdiction. Essentially, by prescribing such lower standards would result in compromising air safety requirements. However, due to the subsequent developments, which has taken place after this writ petition was entertained, it appears that this distinction/discrimination hitherto adopted has been done away with. It has been fairly admitted by the learned Senior counsel appearing for the petitioner that after the writ petition was filed and notice was ordered to the respondents, substantial developments have taken place in as much as the second respondent has notified a draft amendment to the Civil Aviation Requirement and has prescribed conditions for foreign pilots or foreign licences equivalent to that of their Indian counter parts.
18. Thus, it is heartening to note that the Central Government has taken effective steps with regard to prescription of standards for the foreign licence holders after the writ petition was entertained by this Court. Yet the learned Senior counsel appearing for the petitioner would submit that he has some reservation with regard to clause 2.4 of the proposed draft amendment to the Civil Aviation Requirements in particular sub-clause 5 of clause 2.4, which reads as follows:- 2.4 Operating Requirement:-
(i).......
(ii).......
(iii).......
(iv).......
(v) During the validity of FATA, it shall be the responsibility of the operators to ensure that the foreign pilots exercising the privileges of FATA under their employment have: (a) Valid employment visa in the name of the company
(b) Valid licences and ratings
(c) Valid Class 1 medical fitness assessment:
i) from the licence issuing authority of the contracting State:
ii) issued by DGCA India to ensure medical fitness is in accordance to the Aircraft Rules 1937 equivalent to Class 1 renewal medical standards as per Rule 39B of the Aircraft Rules 1937 and the period of validity of medical fitness assessment is as per rule 39C of the Aircraft Rules 1937. d) Carried out proficiency checks, IR/LR, etc.
e) Meet the recent experience requirements of their ratings.
19. According to the learned Senior counsel, the assessment of the medical fitness of foreign pilots should not be based on the assessment made by the licence issuing authority of the contracting State, but should abide by the regulations prescribed by the Director General of Civil Aviation, India.
20. Perusal of the above clause states that during the validity of "FATA", it shall be responsibility of the operators to ensure that the foreign pilots possess valid Class 1 medical fitness assessment from the licence issuing authority of the contracting State and from DGCA, India to ensure that the medical fitness is in accordance with the Rule, more particularly under Rule 39B and the validity of such certificate shall be as per Rule 39C. Thus, it is clear that the assessment of the medical fitness of the foreign pilots is not solely based on the assessment by the licence issuing authority of the other State, but by complying with the requirements prescribed by the DGCA, India.
21. Therefore, we prima facie find no error in the manner in which, the medical fitness assessment has been prescribed in the Draft Civil Aviation Requirement. In any event, as stated by the learned Additional Solicitor General, the draft regulation has been published in the official website of the DGCA and comments have been invited. Therefore, it would be open to the petitioner to place all their objections before the competent authority for its consideration.
22. Thus, in view of the above reasoning, we dispose of this writ petition by directing the respondents 1 & 2 to consider the objections that may be received on the draft Civil Aviation Requirement - Validity of Foreign Licence of Flight Crew, pursuant to the notification in the DGCA website and finalise the requirements within a period of four months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. However, there shall be no orders as to costs.