Aman Sharma vs Union Of India And Another on 10 January, 2018

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Himachal Pradesh High Court

Aman Sharma vs Union Of India And Another on 10 January, 2018

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.469 of 2017.

Judgment reserved on: 04.01.2018 Date of decision: 10th January, 2018.

    Aman Sharma                                                       .....Petitioner.

                                   Versus

    Union of India and another                                      .....Respondents.





    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan , Judge.

Whether approved for reporting?1 No For the Petitioner : Ms.Sunita Sharma and Mr.Dhananjay Sharma, Advocates.

For the Respondents: Mr.Vikas Rathore, Senior Panel Counsel.

Mr.Anand Pandey, Asstt. Director(R&I) DGCA and Mr.P.C. Paliwal, Asstt.

Director of operations, DGCA, present in person.

Tarlok Singh Chauhan, Judge.

The petitioner after completing his 10+2 from Army School, Yol Cantt, Dharamshala left for United States of America for obtaining a licence of commercial pilot. He joined Dean International Flight Training School at Miami Florida.

Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 2

2. On 05.01.2010, the petitioner got his commercial pilot licence and had 258 hours flying to his credit.

3. In 2011, the petitioner went to Higher Power Aviation in Texas to obtain commercial pilot licence for flying Boeing 737 NG and obtained the same on 4 th September, 2011 and after that uptill 2014 had logged 650 hours in total on Boeing's 737 Jet Engine.

4. The petitioner the reafter came back to India and applied for the conversion of his licence of commercial pilot issued by the United States of America to that of Indian Licence. The petitioner felt that the respondents were dilly-dallying the matter and accordingly preferred a representation dated 2 nd October, 2016. However, when the same was not being decided, the petitioner approached this Court by filing CWP No.2873 of 2016 which was disposed of at the threshold vide order dated 15.11.2016 by directing the respondents to examine the aforesaid representation and take a decision within eight weeks from the passing of the order.

5. The respondents vide order dated 09.01.2017 rejected the representation so made on the ground that the petitioner was required to comply with the requirements of proof of competency, flying experience and knowledge as stipulated in Rule 41, Schedule II, Section J of Aircraft Rules, 1937 (for short 'Rules') and guidelines given in FCL 1/2012 and further that the application preferred by the petitioner was not on the ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 3 standard prescribed format and accompanied with the requisite documents and, therefore, could not be legally considered.

6. Aggrieved by the rejection of the representation, the petitioner has filed the present petition wherein amongst other reliefs, he has prayed for a direction to the respondents to convert his licence to an Indian Commercial Pilot Licence in a time bound manner.

7. The respondents have contested the petition by filing reply wherein as many as five preliminary objections have been raised, which read thus:-

"1. That Rule 41 of Aircraft Rules, 1937 provides fundamental provision for conversion of foreign pilot's licenses to Indian Pilot's licences. Copy of Rule 41 is enclosed as Annexure R -1 for the kind perusal of this Hon'ble Court.

2. That the requirements which are to be complied by the applicants for the conversion of foreign CPL (Commercial Pilot's Licence) into Indian CPL, are stipulated in Section-'A', Section 'J' of Schedule II of Aircraft Rules, 1937 framed under Rule 6 of Aircraft Rules, 1937. The certified copies of Rule 6, Section 'A' & Section-'J' of Schedule II of Aircraft Rules, 1937 are enclosed herewith as Annexure R-2, Annexure R-3, and Annexure-4 respectively for the kind perusal of this Hon'ble Court.

3. That as per the above mentioned provisions, petitioner is required to produce evidence of 200 hours of flying experience acquired under the supervision of a Flight Instructor within a period of five years immediately preceding the date of application for conversion of licence.

Further any person desirous to convert his/her foreign CPL into Indian CPL, is required to submit an application in a ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 4 prescribed format which is available on DGCA web site. Copy of application form is being enclosed herewith as Annexure-5 for the kind perusal of this Hon'ble Court.

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4. That it is submitted that in the instant case of the petitioner, the petitioner didn't submit his application in the prescribed format for the conversion of his FAA CPL to Indian CPL, rather submitted only a representation. Further, the petitioner didn't produce any document indicating completion of flying experience in accordance with the above provisions.

5. That even though the petitioner claims to have completed more than 900 hours of flying time within preceding 5 years but nil hours have been completed under the supervision of the Flight Instructor in preceding 5 years, whereas the same is an essential requirement as per the Clause 2(b) of Section 'A' of Schedule II of Aircraft Rules, 1937. However, on the direction of this Hon'ble Court, the petitioner's representation dated 23.07.2016 was examined by the respondent and since the petitioner is not fulfilling the essential eligibility criteria for conversion of CPL into Indian CPL, his representation was rejected and he was informed accordingly. Under these circumstances, as the petitioner is not eligible to be issued with converted Indian CPL licence, no right of the petitioner has been infringed by the respondent by such rejection and hence the petitioner is not entitled for any remedy against the respondent. In view of this the petition is not maintainable."

8. On merits, the sum and substance of the preliminary objections has been reiterated and elaborated and it is further averred that all the shortcomings pertaining to licence have though been repeatedly pointed out to the petitioner, but to no avail.

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9. The petitioner has filed rejoinder whereby he has controverted the allegations of the reply and, at the same time, reiterated the contents .

of the writ petition.

I have heard the learned counsel for the parties and have gone through the records of the case.

10. At the outset, it needs to be noticed that it is not in dispute that the petitioner was having the requisite amount of flying hours as is candidly admitted by the respondents in their reply. Their specific case, however, is that the same is not in compliance to Rule 41 read with Schedule II Sections A and J of the Rules. According to them, the flying experience required for the issue of a commercial pilot's licence has essentially to be acquired under the supervision of a Flight Instructor and in the approved flying training organization and the petitioner having failed to produce any such experience is not eligible for grant of licence.

11. At this stage, it would be necessary to first refer to the relevant provisions of Rule 41:

"41. Proof of competency - Applicants for licences and ratings shall produce proof of having acquired the flying experience and having passed satisfactorily the test and examinations specified in Schedule II in respect of the licence or rating concerned :

[Provided that a person who is a qualified pilot from the Indian Air Force, Indian Navy or Air Operational Wing of the Indian Army and who produces satisfactory evidence to show that he possesses the necessary flying experience, competency and standards of physical fitness as required under these rules , may be exempted by the Director-General, by general or special order in writing, and subject to such conditions, if any, as may be specified in such order, from all or any of the flying tests and from medical or other ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 6 technical examinations required for the issue of the licences under these rules : ] Provided further that a person to whom a licence of a particular class has been issued by the competent authority in a Contracting .

State may be exempted by the Director-General from all or any of the flying tests or technical examinations required for issue of licence if his flying experience and competency are not less than the flying experience and competency laid down in Schedule II in respect of the corresponding licence under these rules. If he is the holder of a current licence, he may be further exempted fro m medical examination of the period for which his licence is current:"

12. As per Rule 41, an applicant for licence and rating is required to produce proof of his having acquired the flying experience and having passed satisfactorily the test and examinations as specified in Schedule II in respect of the licence and rating concerned, provided that a person to whom a licence of a particular class has been issued by the competent authority in a Contracting State can be exempted by the Director General from all and other flying tests or technical examinations required for issue of a licence if his flying experience and competency are not less than the flying experience and competency laid down in Schedule II in respect of the corresponding licence under these rules. If he happens to be the holder of a current licence, he may be further exempted from medical examination for the period for which his licence is current.

13. It is not in dispute that the petitioner has the requisite flying hours, therefore, the only question that arises for consideration is whether his flying hours are in compliance and in conformity with the provisions of Sections A and J of Schedule II.

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14. As observed earlier, the specific objection raised by the respondents is that as per the provisions of Section A and Section J, flying .

experience for the issue of commercial pilot's licence has to be acquired under the supervision of a Flight Instructor and, therefore, the only experience that would be counted for the purpose of issuance of commercial pilot's licence would be the one wherein the petitioner gained experience of a Flying Instructor and not the experience that has been gained by him after having obtained the licence of a commercial pilot after putting in 258 hours of flying at Dean International Flight Training School.

The petitioner would further not be entitled for any experience that has been acquired by him while being engaged in the job in Lion Airlines in Indonesia with effect from 2011 to 2014 and logged 650 hours in total on Boeing 737.

Is this contention borne out from the rules and is there really any rational behind it?

15. Adverting to Section A of Schedule II of the Rules. Sub-

clause(b) of Section A (2) reads thus:-

"(b) The flying experience required for the issue of Private Pilot's Licence and Commercial Pilot's Licence shall be acquired under the supervision of a Flight Instructor and shall be on aircraft having valid Certificate of Airworthiness, maintained in accordance with rules 57 to 60 except rule 59A and entered in the Aircraft Rating of Pilot's licence currently held by him."

16. Section J, 1(e) of Schedule II reads thus:-

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"(e) Experience---He shall produce evidence of having satisfactorily completed as a pilot of an aeroplane within a period of five years immediately preceding the date of application for licence not less than 1 [two hundred hours ] of flight time, which shall include--

(i) not less than 2[one hundred hours] of flight time as Pilot-in-

Command of which not less than fifteen hours shall have been completed within a period of six months immediately preceding the date of application for licence;

(ii) not less than 3[ twenty hours] of cross -country flight time as Pilot-in-Command including a cross-country flight of not less than three hundred nautical miles in the course of which full stop landings at two different aerodromes shall be made;

(iii) not less than ten hours of instrument time of which not more than five hours may be on an approved simulator; and

(iv) not less than five hours of flight time by night including a minimum of ten take-offs and ten landings as Pilot-in-Command as (sole manipulator of controls) carried out within six months immediately precedings the date of application for licence.

[Provided that in case of an applicant who is in possession of a Commercial Pilot's Licence (Helicopters/Airline Transport Pilot's Licence (Helicopters) and who has satisfactorily completed not less than 1000 hours of flight time as Pilot-in-Command of a helicopter, the above experience requirement of two hundred hours as pilot of an aeroplane shall be reduced to one hundred hours, which shall include-

(i) Not less than seventy five hours of flight time as pilot-in- command including a minimu m of twenty five hours of cross country flight time and ten hours of instrument time of which not less than five hours may be on approved simulator;

(ii) Not less than five hours of flight time by night including ten take offs and landing patterns; and

(iii) Not less than ten hours of flight time on aeroplane within a period of six months immediately preceding the date of application for issue of licence.]"

17. No doubt, sub -clause (b) of Section A(2) does talk of the flying experience required for issuance of commercial pilot's licence which is to be acquired under the supervision of a Flight Instructor, but in no way or ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 9 manner does this provision or any other provision contemplate or even restrict the experience only to the one which is gained under the .

supervision of a Flight Instructor. Further, in no way do these rules suggest that the e xperience one has acquired after successful completion of his training or after acquisition of licence of a commercial pilot in a Contracting State and thereafter after having actually worked as commercial pilot, the experience would not be counted for the purpose of Section A or Section J.

18. In case the provisions of the rules are so construed and interpreted, the same would lead to absurdity or futility, palpable injustice or absurd inconvenience or anomaly which obviously has to be avoided.

19. If one construction will lead to an absurdity while another will give effect to what commonsense would show was obviously intended, the construction which would defeat the ends of the rules, must be rejected.

20. It is basic canon or interpretation that a construction which would lead to absurdity should be eschewed. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.

"An intention to produce an unreasonable result", said Danckwerts L.J. in Artemiou v. Procopiou (1) "is not to be imputed to a statute if there is some other constructi on available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 10 unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction.

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21. The law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.

22. The ground of rejection as taken by the respondents is akin to a case where a person is required to undergo apprenticeship, before one can actually be called to be a professional. Can it then be said that the experience gained only during training or apprenticeship, as the case may be, will alone be counted towards experience and not the experience that one has gained after acquiring the requisite professional degree, course etc. I think placing such construction on the language of the Statute would not only be against commonsense, but would lead to absurdity.

23. Even otherwise, I find no rationale in construing the provisions of Section A or for that matter even Section J in a manner as suggested by the respondents because indubitably there are various kinds of licences issued by them like Student Pilot' s Licence (Aeroplances/ Helicopters/ Gliders/Balloons and Microlight aircraft), Private Pilot's Licence (Aeroplanes) Private Pilot's Licence (helicopters), Pilot's Licence (Gliders/Balloons/Microlight aircraft) and Flight Radio Telephone Operator's Licence and if the interpretation of the respondents is adopted, then only the experience gained as Student Pilot's Licence would alone be ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 11 counted at the time of issue of Commercial Pilot's Licence which argument is totally illogical and the same is not othe rwise so provided in the rules.

24. It would otherwise be preposterous to uphold such a contention that experience as a student pilot, where one has come to learn, would alone be counted and not the one where the person is a full-

fledged trained person and is competent to fly a Boeing 737 without any assistance.

25. Interestingly, the respondents have not denied that the petitioner after obtaining his commercial pilot's licence got job in Lion Airlines in Indonesia and remained in that Airlines with effect from 2011 to 2014 and logged a 650 hours in total on Boeing 737 Jet Engine which is far and excess than the required hours.

26. The respondents have further not denied that as per the logbook, the petitioner had been flying uptill February, 2014 and, therefore, it is very this date that the five years of the period for considering the case of the petitioner would commence. Therefore, the total experience gained by the petitioner uptill February, 2014, under Rule 41 or Sections A and J of Schedule II of the Rules has to be counted.

27. As regards the contention of the respondents that the petitioner has not applied on the prescribed proforma, there appears to be merit in such contention. After all, the petitioner can take no exception on ::: Downloaded on - 11/01/2018 23:06:15 :::HCHP 12 the respondents' insisting that his application should be on the prescribed proforma.

28. Since the petitioner has not applied on the prescribed proforma, he is directed to do the needful within a period of four weeks from the date of receipt of copy of this judgment and thereafter the respondents are directed to consider his application in accordance with law within a further period of eight weeks. Needless to clarify that while considering the application so preferred, it shall not be open to the respondents to reject the case of the petitioner on any of the grounds as have been earlier taken by them while deciding the representation or while opposing the instant petition.

29. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

(Tarlok Singh Chauhan), th 10 January, 2018. Judge.

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