THE JOINT ACTION COMMITIEE OF AIRLINES PILOTS ASSOCIATIONS OF INDIA & ORS.versusTHE DIRECTOR GENERAL OF CIVIL AVIATION & ORS.

                    [2011] 5 S.C.R. 1019


 THE JOINT ACTION COMMITIEE OF AIRLINES PILOTS                    A
          ASSOCIATIONS OF INDIA & ORS.
                              v.
 THE DIRECTOR GENERAL OF CIVIL AVIATION & ORS.
          (Civil Appeal No. 3844 of 2011)
                        MAY 03, 2011                              B

    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

     Aircraft Act, 1934 - ss. 4A, 5 and 5A - Executive
instructions regarding air safety - Issuance of Circular dated    c
29.05.2008 by Director General of Civil Aviation (DGCA) to
the effect that Civil Aviation Requirements (CAR) dated
27.07.2007 had been kept in abeyance - Pending finalisation
of CAR 2007, revival of old Aeronautical Information Circular
(AIC) 2811992 - Validity and propriety of Circular dated          D
29. 05. 2008 - Challenge to - Held: CAR 2007 is neither a
statute nor a subordinate legisiation - They are merely
executive instructions which can be termed as special
directions - There was a specific order in the form of interim
measures, by the competent authority in exercise of statutory     E
powers whereby AIC 28192 was revived - DGCA has ample
power to issue such instructions or directions in exercise of
its power under the 1937 Rules - Thus, it cannot be said that
the Circular dated 29.5.2008 was either issued illegally or
 without any authority - More so, the whole exercise was done·    F
to bring a new CAR into existence for which process has
already been initiated and new CAR is likely to come into
existence very soon-AircraftRules, 1937- ff. 42A and 133A
- Administrative law.

    Administrative law:                                           G

    Subordinate legislation - Statutory authority keeping
subordinate legislation in abeyance - Permissibility of - Held:
It might be permissible in exceptional circumstances -
                             1019                                 H
    1020     SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A However, such an order being legislative in character, is not
    waffanted to be interfered ~y the Court/Tribunal.

         Executive instructions/Orders/Circulars - Effect of- Held:
    Executive instructions do not have the force of law but are
    issued by the competent authority for guidance and to
8   implement the scheme of the Act - It can be altered, replaced
    and substituted at any time - Law merely prohibits the
    issuance of a direction,· which is not in consonance with the
    Act or the statutory rules applicable therein.

c        Executive instructions/Orders/Circulars - Revival of
    executive instructions - Held: Once the old rule has been
    substituted by the new rule, it stands obliterated, thus, ceases
    to exist and under no circumstance, can it be revived in case
    the new rule is held to be invalid and struck down by the Court
o   - However, position would be different in case a statutory
    amendment by the Legislature is held to be bad for want of
    legislative competence, wherein the repealed statutory
    provisions would revive automatically.

       Doctrines/Principles - Doctrine of election - Basis of -
E Held: Doctrine of election is based on the rule of estoppel -
  Principle that. one cannot approbate and reprobate inheres in
  it.

    . Appellants are the Joint Action Committees of the
F Airlines Pilots Association representing several airlines
  operating in India. Under. Aeronautical Information
  Circular No. 28192 Flight Time (FT) and Flight Duty Time
  Limitation (FDTL) was fixed depending upon the
  distance of destination and number of landings. The rest
G period for the pilots stood substantially changed by the
  Civil Aviation Requirements (CAR) dated 27.07.2007 to the
  greater benefit of the pilots. The airlines made several
  representations to respondents-Director General of Civil
  Aviation (DGCA) and the Central Government that it was
H
JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1021
              DIR. GEN. OF CIVILAVIATION        .      .

practically not possible for them to ensure c:ompliance of A
CAR 2007. Some of the appellants challenged the CAR
dated 27.07:2007 by filing Writ Petition No. 2176 of,2007 ..
However, the said writ petition was dismissed as
withdrawn. Thereafter, respondent No. 1-DGCA issued a
Circular dated 29.05.2008 to the effect that CAR dated B
27.07.2007 had been kept in abeyance. By a subsequent
order dated 02.06.2008, the AIC 28/92 was revived. The
appellants filed a writ petition challenging the validity and
propriety of the Circular dated 29.05.2008 and the same
was dismissed. Therefore, the appellants filed the instant c
appeal.

    Dismissing the appeal,· the Court

     HELD: 1.1. The doctrine of election is based on the
rule of estoppel-the principle that one cannot approbate       D
and reprobate inheres in it. The doctrine of estoppel by
election is one of the species of estoppels in pais (or
equitable estoppel), which is a rule in equity. By that law,
a person may be precluded by his actions or conduct or
silence when it is his duty to speak, from asserting a         E
right which he otherwise would have had. Taking
inconsistent pleas by a party makes its conduct far from
satisfactory. Further, the parties should not take
inconsistent stands and prolong proceedings
unnecessarily. [Para 14] [1035--C-D]                           F

     1.2. Some of the instant appellants had challenged
the CAR 2007, wherein it had been submitted that AIC 28/
92 was based on better scientific studies. The same
remained in operation for more than 17 years and no one
had ever raised any grievance in respect of its contents       G
or application. However, it appears that during the
pendency of the said writ petition, grievance of those
petitioners stood redressed and, thus, they withdrew the
writ petition. They did not even ask the court to reserve
                                                               H
    1022   SUPREME COURT REPORTS               [2011] 5 S.C.R.


A their right to file a fresh petition challenging the same, in
  case the need arose, as required in the principle
  enshrined in Order XXlll of the Code of Civil Procedure,
  1908. Such a conduct of those appellants in blowing hot
  and cold in the same breath is not worth approval. [Para
B 15] [1035-F-H]

       R.N. Gosain v. Yashpal Dhir AIR 1993 SC 352; Babu
  Ram@ Durga Prasad v. Indra Pal Singh (0) by L.Rs. (1998)
  6 SCC 358; P.R. Deshpandey v. Maruti Balaram Haibatti
C (1998) 6 SCC 507; Mumbai International Airport Private
  Limited v. Golden Chariot Airport and Anr. (2010) 10 SCC
  422 - relied on.

       2. In exceptional circumstances, it may be
  permissible for the statutory authority to put subordinate
D legislation in abeyance. However, such an order being
  legislative in character, is not warranted to be interfered
  by the Court/Tribunal. [Para 17] [1036-G]

        State of A.P. and Ors. v. Civil Supplies Services Assn.
E and Ors. (2000) 9 sec 299 - relied on.
      3. Executive instructions are issued keeping in view
  the rules and executive business, for guidance and to
  implement the scheme of the Act and do not have the
  force of law, can be issued by the competent authority
F and altered, replaced and substituted at any time. The law
  merely prohibits the issuance of a direction, which is not
  in consonance with the Act or the statutory rules
  applicable therein_. [Para 22] [1038-D-E]

G       Sant Ram Sharma v. State of Rajasthan and Ors. AIR
    1967 SC 1910 - relied on.
         Khet Singh v. Union of India AIR 2002 SC 1450; Union
    of India and Anr. v. Amrik Singh and Ors. AIR 1994 SC 2316
    - referred to.
H
JT ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1023
            DIR GEN. OF CIVILAVIATION

     4. Ohce the old rule has been substituted by the new      A
rule, it stands obliterated, thus, ceases to exist and under
no circumstance, can it be revived in case the new rule
is. held to be invalid .and struck down by the Court,
though position would be different in case a statutory
amendment by the Legislature, is held to be bad for want       8
of legislative competence. In that situation, the repealed
statutory provisions would revive automatically. [Para 23]
[1038-G-H; 1039-A]

   . State of UP. and Ors. v. Hirendra Pal Singh etc. JT
(2010) 13 SC 610; Firm A. T.B. Mehtab Majid and Co. v. State   C
of Madras and Anr. AIR 1963 SC 928; B.N. Tewari v. Union
of India and Ors. AIR 1965 SC 1430; Indian Express
Newspapers (Bombay) Private Ltd. and Ors. v. Union of India
and Ors. AIR 1986 SC 515; West U.P. Sugar Miffs
Association and Ors. v. State of UP. and Ors. AIR 2002 SC      D
948; Zile Singh v. State of Haryana and Ors. (2004) 8 SCC
1; State of Kera/a and Anr. v. Peoples Union for Civil
Liberties, Kera/a State Unit and Ors. (2009) 8 SCC 46 -
referred to.
                                                               E
     5.1. The CAR 2007 is neither a statute nor a
subordinate legislation. The provisions contained in
Sections 4A, 5 and SA of the Aircraft Act, 1934 and Rules
42A and 133A of the Aircraft Rules, 1937 make it evident
that the same are merely executive instructions which
                                                               F
can be termed as "special directions". The executive
instruction can supplement a statute or cover areas to
which the statute does not extend, but it cannot run
contrary to the statutory provisions or whittle down their
effect. [Para 18] [1036-H; 1037-A-B]
                                                               G
    State of MP. and Anr. v. Mis. G.S. Dall and Flour Miffs
(1992) Supp. 1 sec 150 ..... relied on.

    5.2. It is not a case of automatic revival of AIC 28/92,
but there is a specific order by the competent authority       H
    1024    SUPREME COURT REPORTS              [2011) 5 S.C.R.

A in exercise of statutory powers whereby the AIC 28/92
  has been revived. Since the instructions which have been
  issued under the letter dated 02.06.2008 are merely in the
  form of interim measures, the question of the applicability
  of the principles of natural justice does not arise. The
8 suspension of CAR 2007 had created a vacuum, and it
  was, therefore, necessary for the DGCA to take an
  appropriate decision during the finalisation of the CAR,
  pursuant to the report to be submitted by a Committee
  constituted by the Government. The appellants did not
  challenge the subsequent order dated 02.06.2008, by
C virtue of which AIC 28/92 dated 10.12.1992 came into
  force which had also been nothing but special directions
  and remained in force from 1992 to 2007. [Para 24) [1039-
  B-D]
D        5.3. The appellants contended before the High Court
    that as the order dated 02.06.2008 was in continuation of
    the Circular dated 29.05.2008, it was not necessary for the
    appellants to challenge the said order separately. In
    absence of the challenge to the same, it is immaterial to
E   determine as to whether the same had been issued by
    the competent authority or not, as it is not the case of
    statutory rules i.e. subordinate legislation. The question
    of following any procedure for replacement is not
    warranted. The contention was raised before the High
F   Court that the Circular dated 29.05.2008 has been issued
    by the authority having no competence, thus, cannot be
    enforced. It is settled law that the authority which has
    been conferred with the competence under the statute
    alone can pass the order. No other person, even a
G   superior authority, can interfere with the functioning of
    the Statutory Authority. Such person cannot provide for
    any guideline or direction to the authority under the
    statute to act in a particular manner. In a democratic set
    up like ours, persons occupying key positions are not
H   supposed to mortgage their discretion, volition and
 JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1025
              DIR. GEN. OF CIVILAVIATION

decision making authority and be prepared to give way         A
to carry out commands having no sanctity in law. Thus,
if any decision is taken by a statutory a·uthority at the
behest or on suggestion of a person who has no
statutory role to play, the same would be patently illegal.
[Paras 25, 26 and 28] [1039-E; 1040-0-H; 1041-D-E]            B

     The Purtabpur Co. Ltd. v. Cane Commissioner of Bihar
and Ors. AIR 1970 SC 1896; Chandrika Jha v. State ofBihar
and Ors. AIR 1984 SC 322; Tarlochan Dev Sharma v. State
of Punjab and Ors. AIR 2001 SC 2524; Manohar Lal (D) by
L.Rs. v. Ugrasen (D) by L.Rs. and Ors. AIR 2010 SC 2210;      C
Commissioner of Police, Bombay v. Gordhandas Bhanji AIR
1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai
M. Kamalia and Ors. AIR 2004 SC 1159; Pancham Cha and
and Ors. v. State of Himachal Pradesh and Ors. AIR 2008 SC
1888 - relied on.                                             D
       5.4. 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, E
  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 F
  stretch of imagin;,ition that the Ministry of Civil Aviation
  is not an authority concerned with the safety measures
  involved. 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 G
  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. [Para 28] [1041-E-H]
                                                              H
    1026   SUPREME COURT REPORTS             [2011] 5 S.C.R.


A     5.5. After keeping the CAR 2007 in abeyance, an
  Expert Committee was constituted which held a large
  number of meetings with various stakeholders. The final
  report was submitted by the Expert Committee to the
  Government in September 2010 for consideration. The
s Government accepted FDTL Committee report and
  advised the DGCA to issue draft CAR for consultation
  and the same was put on the DGCA website inviting
  comments or objections within a period of 30 days. It is
  a question of challenging the public policy, the public
c authorities must be given a very long rope, full freedom
  and full liberty in framing policies, though the discretion
  of the authorities cannot be absolute and unqualified,
  unfettered or uncanalised. The same can be the subject
  matter of judicial scrutir:y only in exceptional
  circumstances where it can be shown to be arbitrary,
0
  unreasonable or violative of the stat:.1tory provisions.
  More so, the courts are not well equipped to deal with
  technical matters, particularly, where the decisions are
  based on purely hyper-technical issues. The court may
E not be able to consider competing claims and conflicting
  interests and conclude on which way the balance tilts.
  More so, the whole exercise was done to bring a new
  CAR into existence for which the process has already
  been initiated and a draft CAR was put on the DGCA
  website giving opportunity to all concerned to submit
F their objections/suggestions within a period of 30 days
  and a new CAR is likely come into existence very soon.
  [Para 29] [1042-8-G]
      5.6. The finding recorded by the High Court that even
G assuming that there is a challenge to the communication
  dated 02.06.2008 in the petition, the same is to be
  considered as devoid of substance as the DGCA has
  ample power to issue such instructions or directions in
  exercise of its power under the Rule 133A r/w Rule 29C
H
JT ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1027
            DIR. GEN. OF CIVILAVIATION

of the Rules 1937, is accepted. Since, the appellants have   A
not been able to point out any provision even for
issuance of instructions fot such interregnum period, the
provisions of CAR of 13.10.2006 would be attracted in the
matter. [Para 30] [1043-C-D]
                                                             B
                    Case Law Reference:
    AIR 1993 SC 352           Relied on.         Para 14
    (1998) 6 sec 358          Relied on.         Para 14
    (1998) s sec 507          Relied on.         Para 14     c
    (2010) 10 sec 422         Relied on.         Para 14
    (2000) 9 sec 299          Relied on.         Para 17
    (1992) supp.1 sec 1so Relied on.             Para 18     D
    AIR 2002 SC 1450          Referred to.       Para 19
    AIR 1967 SC 1910          Relied on.         Para 20
    AIR 1994 SC 2316          Referred to.       Para 21
                                                             E
    JT (2010) 13 SC 610       Referred to.       Para 23
    AIR 1963 SC 928           Referred to.       Para 23
    AIR 1965 SC 1430          Referred to.       Para 23
    AIR 1986 SC 515           Referred to.       Para 23     F
    AIR 2002 SC 948           Referred to.       Para 23
    (2004) 8 sec 1            Referred to.       Para 23
    (2009) 8 sec 46           Referred to.       Para 23     G
    AIR1970 SC 1896           Relied on.         Para 26
    AIR 1984 SC 322           Relied on.         Para 26
    AIR 2001 SC 2524          Relied on.         Para 26
                                                             H
    1028    SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A       AIR 2010 SC 2210             Relied on.          Para 26
        AIR 1952 SC 16               Relied on.          Para 27
        AIR 2004 SC 1159             Relied on.          Para 27
        AIR 2008 SC 1888             Relied on.          Para 27
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3844 of 2011.

        From the Judgment & Order dated 14.8.2008 of the High
c Court of Judicature, Bombay in W.P. No. 1687 of 2008.
        K.K. Venugopal, Sanjay Singhvi, Prashanto C. Sen, Nitin
    S. Tambwekar, B.S. Sai, Pooja Dhar, Pallav Kumar, Nitin
    Dahiya, K. Rajeev for the Appellants.

D       Parag P. Tripathi, ASG, T.S. Doabia, L. Nageswara Rao,
    Chander Udai Singh, Binu Tamta, Kunal Bahari, Anuj Bhandari,
    Sushma Suri, Gopal Jain, Nina Gupta, Ratna Dhingra, Sanjay
    Gupta, Bina Gupta, Rishi Maheshwari, Megha Mukherjee,
    Suman Jyoti Khaitan for the Respondents.
E
        The Judgment of the Court was delivered by

        DR. B.S. CHAUHAN, J. 1. Leave granted.

       2. This appeal has been preferred against the judgment
F and order dated 14.8.2008 passed by the High Court of
  Judicature at Bombay dismissing the Writ Petition No. 1687
  of 2008, wherein the appellants had challenged the validity and
  propriety of a Circular issued by the Director General of Civil
  Aviation, (hereinafter called as 'DGCA'), respondent No.1
G dated 29.5.2008, to the effect that Civil Aviation Requirements
  (hereinafter called as the 'CAR') dated 27.7.2007 had been
  kept in abeyance.

       3. Facts and circumstances giving rise to this case are that
  the appellants are the Joint Action Committees of the Airlines
H Pilots Association representing several airlines operating in
JT. ACTION COMM. C>F AIRLINES PILOTS ASSN. OF INDIA v. 1029
    DIR. GEN. OF CIVll;.AVIATION [DR. B.S. CHAUHAN, J.)

India. The dispute relates to the Flight Time (FT) and Flight Duty A
Time Limitation (FDTL), as there is some variance between the
Aeronautical Information Circular (hereinafter called as 'AIC')
No.28/92 and the CAR 2007. Vide AIC 28/92, FT and FDTL
had been defined and fixed depending upon the distance of
destination and number of landings. The rest period for the - B
pilots stood substantially changed by the CAR _2007 to the
greater benefit of the pilots. However, a large number of
representations had been made by the airlines to the DGCA
and the Central Government, respondents herein, to the effect
that it was practically not possible for them to ensure c
compliance of CAR 2007 and thus, the same was kept in
abeyance. By a subsequent order dated 2.6.2008, the AIC 28/
92 was revived.

     4. Appellants challenged the Circular dated 29.5.2008
before the High Court on the grounds, inter-alia, that even if      D
CAR 2007 is kept in abeyance, the AIC 28/92, which stood
obliterated, could not be revived; the CAR 2007 had been kept
in abeyance by the order of the Authority, which did not have
the competence to interfere in the functioning of the DGCA,
respondent No. 1. The statutory authority i.e. DGCA alone is        E
competent to pass the appropriate order in the matter. The
Circular dated 29.5.2008 has seriously jeopardised the safety
of passengers and the same was passed in flagrant violation
of the principles of natural justice. However, the High Court did
not accept the submissions of the appellants, rather rejected       F
the same in an elaboratejudgment. Hence, this appeal.

       5. Shri K.K. Venugopal, learned senior counsel appearing
 for the appellants has agitated all the issues raised before the
 High Court. Once AIC 28/92 stood obliterated, the question of      G
its revival/application/enforcement on putting the CAR 2007 in
abeyance could not arise. More so, the orders by the DGCA
make it abundantly clear that the same had been passed on
instructions from the competent authority. The order stood
'J\\\a\ed as \he same had not been passed by the DGCA on its        H
    1030    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A 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
s 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
C   writ petition filed by the appellants before the High Court was
    not maintainable as none of the necessary parties had been
    impleaded tt:erein. 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.
D   The said administrative instructions do not have any statutory
    force and thus can be kept in abeyance, altered or replaced
    by another e~ecutive instructions. Some of the appellants
    themselves challenged the CAR dated 27.7.2007 by filing Writ
    Petition No.2176 of 2007 on the grounds that the said CAR
E   revealed shocking deviations and selective exclusions from
    international· safety requirements in respect of FDT and FTL. It
    has further been submitted therein that the amendment to FDT
    and FTL in the said CAR was neither in conformity with the
    existing safety rules, norwith settled principles and procedures
F   adopted by the similar international regulatory authorities.
    However, the said writ petition stood dismissed as withdrawn
    vide order dated 31.1.2008. Once the CAR dated 27.7.2007
    has been put under suspension, the same is also under
    challenge by the appellants which also include some of the
G   petitioners in Writ Petition No. 2176 of 2007. Their conduct is
    tantamount to approbate and reprobate which is _not
    permissible in law. The DGC/>. had communicated vide letter
    dated 29.5.2008 its decision to keep t_he CAR 2007 in
    abeyance on the basis of advice/decision taken by the
H
 JT ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1031
    DIR. GEN. OF CiVILAVIATION [DR. B.S. CHAUHAN, J.]

competent authority, i.e. the Central Government. The Hon'ble A
Minister was the competent authority under the Business Rules
1961. The DGCA himself had also participated in the process.
The order dated 2.6.2008, providing that AIC 28/1992 would
be effective once again, was not challenged by the appellants
for the reasons best known to them. An order which is not under :9
challenge; could not be quashed.'Thus, no fault can be found
with the impugned judgment and order. The appeal lacks merit
and is liable to be dismissed.          ·        1

     7. We have considered the rival submissions made by
learned counsel for the parties-and perused the record.                      C

Relevant Statutory Provisions:

       8. It may be necessary to make reference to. relevant
  provisions of the Aircraft Act, 1934 (hereinafter referred to as           0
  'Act 1934'). Section 4A of the Act 1934 provides for safety
· oversight functions that the DGCA shall perform the safety
  oversight functions in respect of matters specified in this' Act
  or the rules made thereunder. Section 5 empowers the Central
  Government to make rules. Sections 5(2) and '5-A of the Act                E
  1934 read as under:

      · (2) Without prejudice to the generality of the foregoing
   · · power, such rules ma{provide for-              · · ·

                                                                             F
       (m) · the measures to be taken and the equipment to be
             carried for the purpose of ensuring the safety of life.

      5A Power to issue directions.-(1) The Director-General of
      Civil Aviation or any other officer specially empowered in             G
      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 clause~ (~a), (b),
      (c), (e), (f),(g), (ga), (gb), (gc), (h), (i), (in) and (qq) of sub-   H
    1032    SUPREME COURT REPORTS                    [2011) 5 S.C.R.


A       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
B       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.
c       (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
D publication.

         9. The provisions of the Aircraft Rules, 1937 (hereinafter
    referred to as 'Rules 1937') read as under:

        "3(22)- "Flight time"- ·
E
        (i) in respect of any aeroplane, means the total time from
        the moment of the aeroplane first moves for the purpose
        of taking off until the moment it finally comes to rest at the
        end of the flight; and
F



        29C. Adoption of the Convention and Annexes.- The
G       Director-General may lay down standards and procedures
        not inconsistent with the Aircraft Act 1934 (22of1934) and
        the rules made thereunder to carry out the Convention and
        any Annex thereto.

        42A. Pilot not to fly for more than 125 hours during any
H
JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1033
    DIR. GEN. OF CIVILAVIATION [DR. B.S. CHAUHAN, J.]
    period of 30 consecutive days.                                  A
    133A. Direction 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     8
    Maintenance Engineers and publication entitled 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   C
    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           D
    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.        E

    (3) Every direction issued under sub-rule (1) shall be
    complied with by the persons or persons to whom such
    direction is issued." (Emphasis added)

     10. The case requires to be considered in the light of the     F
aforesaid submissions, the factual foundation laid by the parties
and the relevant statutory provisions.

     11. Admittedly, a Writ Petition No. 2176 of 2007 was filed
by some of the present appellants seeking the following reliefs:    G

           "(a) That this Hon'ble Court be pleased to ho.Id and
    declare that the impugned amendment dated 27. 7.2007
    of Civil Aviation Requirements with the subject "Flight Duty
    Time and Flight Time Limitations - Flight Crew Members"
    is illegal, irrational and inconsistent With the settled        H
    1034    SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A       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
8
        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
c       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
D       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:
E             "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."

F      The appellants/writ petitioners therein had also submitted
  that AIC 28/92 was a most scientific and properly formulated
  direction and CAR 2007 was based on a draft which revealed
  shocking deviations and selective exclusions from safety
  regulations in respect of FDT and FTL, adopted/accepted
G internationally.

         13. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352,
    this Court observed as under:-

             "Law does not permit a per~on to both approbate
H       and reprobate. This principle is based on the doctrine of
JT ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1035
   DIR. GEN. OF CIVILAVIATION [DR. B.S. CHAUHAN, J.]

     election which postulates that. no party can accept and            A
     reject the same instrument and that "a person cannot_ say
     at one time that a transaction is valid and thereby obtain
     some advantage, to which he could only be entitled on the
     footing that it is valid, and then turn round and say it is void
     for the purpose of securing some other advantage."                 B

     14. The doctrine of election is based on the rule of
estoppel- the principle that one cannot approbate and reprobate
inheres in it. The doctrine of estoppel by election is one of the
species of estoppels in pais (or equitable estoppel), which is          C
a rule in equity. By that law, a person may be precluded by his
actions or conduct or silence when it is his duty to speak, from
asserting a right which he otherwise would. have had. Taking
inconsistent pleas by a party makes its conduct far from
satisfactory. Further, the parties should not blow hot and cold
by taking inconsistent stands and prolong proceedings                   D
unnecessarily. (Vide: Babu Ram @ Ourga Prasad v. Indra Pal
Singh (0) by L.Rs., (1998) 6 SCC 358; P.R. Deshpandey v.
Maruti Balaram Haibatti, (1998) .6 SCC 507; and Mumbai
International Airport Private Limited v. Golden Chariot Airport
& Anr., (2010) 10   sec    422).         ·                              E
       15. In view of the above, it is clearly evident that some of
_the present appellants, had challenged the CAR 2007, ~herein
it had been submitted that AIC 28/92 was based on better
scientific studies. The same remained in operation for more             F
than 17 years and no one had ever raised any grievance in
respect of its contents or application. However, it appears that
during the pendency of the said writ petition, grievance of those
petitioners stood redressed and, thus, they withdrew the writ
petition. They did not even ask the court to reserve their right        G
to file a fresh petition challenging the same, in case the need
arose, as required in the principle enshrined in Order XXlll of
the Code of Civil Procedure, 1908. Such a conduct of those
appellants in blowing hot and cold in the same breath is not
worth approval.
                                                                        H
    1036     SUPREME COURT REPORTS                  [2011] 5 S.C.R.

A        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
8
  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
C 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
D promulgation of CAR.

        17. In State of A.P. & Ors. v. Civil Supplies SeNices Assn.
    & Ors., (2000) 9 SCC 299, the government had issued a
  notification that provided, inter-alia, that certain rules which had
E earlier been framed by the government would be kept irt
  abeyance. The Administrative Tribunal quashed the same
  directing the government to frame the rules in a particular
  manner and to give partial effect to the rules kept in abeyance.
  However, on appeal, this Court set aside the order of the
F Tribunal and held that the Tribunal could neither have given
  directions to the Government to frame rules in any particular
  manner, nor to give partial effect to the rules kept in abeyance,
  as the order had exclusively been legislative in character.

       Thus, in exceptional circumstances, it may be permissible
G for the statutory authority to put subordinate legislation in
  abeyance. However, such an order being legislative in
  character, is not warranted t.o be interfered by the Court/
  Tribunal.

H       18. The CAR 2007 is neither a statute nor a subordinate
JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 103 7
    DIR. GEN. OF CIVILAVIATION [DR. B.S. CHAUHAN, J.]

legislation. Provisions contained in Sections 4A, 5 &-5A of the         A
Act 1934 and Rules 42A & 133A of the Rules 1937, make it
evident that the same are merely executive instructions which
can be termed as "special directions". The executive instruction
can supplement a statute or cover areas to which the statute
does not extend, but it cannot run contrary to the statutory            B
provisions or whittle down their effect. (Vide: State of M.P. &
Anr. v. Mis. G.S. Dall & Flour Mills (1992) supp. 1 SCC 150).

     19. In Khet Singh v. Union of India, AIR 2002 SC 1450,
this Court considered the scope and binding force of the                C
Executive instructions issued by the Narcotic Bureau, New
Delhi and came to the conclusion that such instructions are
binding and have to be followed by the investigating officer,
coming within the purview of Narcotic Drugs and Psychotropic
Substances Act, 1985, eve.n though such instructions do not
have the force of law. They are intended to guide the officers          D
and to see that a fair procedure is adopted by them during the
investigation of the crime.

    20. A Constitution Bench. of this Court in Sant Ram
Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910 held              E
as under:

     "It is true that Government cannot amend or supersede
     statutory rules by administrative instructions, but if the rules
     are silent on any particular point, Government can fill up
     the gaps and supplement the rules and issue instructions
                                                                        F
     not inconsistent with the rules already framed." (Emphasis
     added)

      Thus, an executive order is to be issued keeping in view
the rules and executive business, though the executive order            G
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
                  .    '                                                H
    1038    SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A 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
B 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
c 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
D instructions which are issued for guidance and to implement
  the scheme of the Act and do not have the force of law, can be
  issued by the competent authority and altered, replaced and
  substituted at any time. The law merely prohibits the issuance
  of a direction, which is not in consonance with the Act or the
E statutory rules applicable therein.

       23. This Court in State of U.P. & Ors. v. Hirendra Pal
  Singh etc., JT (2010) 13 SC 610, considered a large number
  of judgments particularly in Firm A. T.B. Mehtab Majid & Co.
F v. State of Madras & Anr., AIR 1963 SC 928; B.N. Tewari v.
  Union of India & Ors., AIR 1965 SC 1430; Indian Express
  Newspapers (Bombay) Private Ltd. & Ors. v. Union of India
  & Ors., AIR 1986 SC 515; West U.P. Sugar Mills Association
  & Ors. v. State of U.P. & Ors., AIR 2002 SC 948; Zile Singh
G v. State of Haryana & Ors., (2004) 8 SCC 1; and State of
  Kera/a & Anr. v. Peoples Union for Civil Liberties, Kera/a State
  Unit & Ors., (2009) 8 sec 46, and came to the conclusion that
  once the old rule has been substituted by the new rule, it stands
  obliterated, thus ceases to exist and under no circumstance,
  can it be revived in case the new rule is held to be invalid and
H
JT. ACTION COMM. OF AIRLINES PILOTSASSN. OF INDIA v. f039
    DIR. GEN. OF CIVILAVIATION [DR. B.S. CHAUHAN, J.]

struck down by the Court, though position would be different in      A
case a statutory amendment by the Legislature, is held to be
bad for want of legislative competence. In that situation, the
repealed statutory provisions would revive automatically.

     24. It is not a case of automatic revival of AIC 28/92, but     8
there is a specific order by the competent authority in·exercise
of statutory powers whereby the AIC 28/92 has been revived.
Since the instructions which have been issued under the letter
dated 2.6.2008 are merely in the form of interim measures, the
question of the applicability of the principles of natural justice   C
does not arise. The suspension of CAR 2007- had created a
vacuum, and it was, therefore, necessary for the DGCA to take
an appropriate decision during the finalisation of the CAR,
pursuant to the report to be submitted by a Committee
constituted by the Government. The appellants did not challenge
the subsequent order dated 2.6.2008, by virtue of which AIC          D
28/92 dated 10.12.1992 came into force which had also been
nothing but special directions and remair1ed in force from 1992
to 2007.

    25. In the High Court it was sought to be contenderj on E
behalf of the appellants that as the order dated 2.6.2008 was ·
in continuation of the Circular 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
                                                                     F
    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 matteroftwo          G
    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.
                                                                     H
    1040     SUPREME COURT REPORTS                  [2011) 5 S.C.R.


A             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
B       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 appellants wanted
        to challenge the communication dated 2.6.2008, they
c       ought to have challenged the same by raising specific
        ground in that regard by laying proper factual foundation
        in support of such ground and only then, they could have
        invited the order in that regard from the court."

       In absence of the challenge to the same, it is immaterial
D to determine as to whether the same had been issued by the
  competent authority or not, as it is not the case of statutory rules
  i.e. subordinate legislation. The question of following any
  procedure for replacement is not warranted.

E      26. The contention was raised before the High Court that
  the Circular dated 29.5.2008 has been issued by the authority
  having no competence, thus cannot be enforced.          It is a
  settled legal proposition that the authority which has been
  conferred with the competence under the statute alone can
F pass the order. No other person, even a superior authority, can
  interfere with the functioning of the Statutory Authority. In a
  democratic set up like ours, persons occupying key positions
  are not supposed to mortgage their discretion, volition and
  decision making authority and be prepared to give way to carry
G out commands having no sanctity in law. Thus, if any decision
  is taken by a statutory authority at the behest or on suggestion
  of a person who has no statutory role to play, the same would
  be patently illegal. (Vide: The Purtabpur Co., Ltd. v. Cane
  Commissioner of Bihar & Ors., AIR 1970 SC 1896; Chandrika
  Jha v. State of Bihar & Ors., AIR 1984 SC 322; Tar/ochan Dev
H
JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1041
 ~. DIR. GEN. OF CIVILAVIATION [DR. 8.S. CHAUHAN, J.]

Sharma v. State of Punjab & Ors., AIR 2001 SC 2524; and              A
Manohar Lal (D) by L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR
2010 SC 2210).

     27. Similar view has been re-iterated by this Court in
Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR             8
1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.
Kama/ia & Ors., AIR 2004 SC 1159; and Pancham Chand &
Ors. v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888,
observing that an authority vested with the power to act under
the statute alone should exercise its discretion following the       C
procedure prescribed ~herein and interference on the part of
any authority upon whom the statute does not confer any
jurisdiction, is wholly unwarr~nted in law. It violates the
Constitutional scheme.
                                                    \
     28. In view of the above, the legal position emerges that D
the authority who has been vested with the power 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.
                                                                     E
     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
                                                                     F
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 tfie said regulations.        G
Exercise of the power is always referable to the source of pcwer
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.                                    H
    1042    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A      29. The High Co~rt has observed that in the instant case,
  the reviving of AIC 28/92 is in question, even the keeping in
  abeyance of the CAR, whether by the DGCA or other competent
  authority, is in issue. However, it is merely an interregnum
  arrangement till the new CAR comes into picture. After keeping
B the CAR 2007 in abeyance, an Expert Committee was
  constituted which held a large number of meetings with various
  stakeholders. The final report has been submitted by the Expert
  Committee to the Government in September 2010 for
  consideration. The Government has accepted FDTL
c Committee report and advised the DGCA to issue draft CAR
  for consultation and the same has been put on the DGCA
  website inviting comments or objections within a period of 30
  days. It is a question of challenging the public policy and it is
  well settled that public authorities must be given a very long
  rope, full freedom and full liberty in framing policies, though the
0
  discretion of the authorities cannot be absolute and unqualified,
  unfettered or uncanalised. The same can be the subject matter
  of judicial scrutiny only in exceptional circumstances where it
  can be shown to be arbitrary, unreasonable or violative of the
  statutory provisions. More so, the courts are not well equipped
E to deal with technical matters, particularly, where the decisions
  are based on purely hyper-technical issues. The court may not
  be able to consider competing claims and conflicting interests
  and conclude on which way the balance tilts.

F       More so, the whole exercise has been done to bring a new
  CAR into existence for which the process has already been
  initiated and a draft CAR was put on the DGCA website giving
  opportunity to all concerned to submit their objections/
  suggestions within a period of 30 days and a new CAR is likely
G to come into existence very soon.

         30. The High Court held that DGCA is directly under the
    control of Civil Aviation Ministry and considering the rules of
    business, the Government being the appropriate authority to
    formulate necessary policy in relation to the subject matter in
H
JT. ACTION COMM. OF AIRLINES PILOTS ASSN. OF INDIA v. 1043
    DIR. GEN. OF CIVIL AVIATION [DR. B.S. CHAUHAN, J.]

issue, and the Government in its wisdom having decided after        A
taking into consideration all the representations made from
various sections, has appointed a Committee to formulate CAR
in relation to the matters enumerated under order 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           B
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       C
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   D
for such interregnum period, the provisions of CAR of
13.10.2006 would be attracted in the matter.

     31. In view of the above, we do not find any force in the
appeal, it is accordingly dismissed. No order as to costs.          E
Before parting with the case, we would like to point out that in
the facts and circumstances of the case, as the process to bring
new CAR in existence is going on, the same should be
concluded expeditiously in accordance with law.

N.J.                                        Appeal dismissed.