AIR TRAFFIC CONTROLLERS GUILD (INDIA) v. DIRECTORATE GENERAL CIVIL AVIATION & ANR.

1. This hearing has been done through hybrid mode. CM APPL.38343/2022 (for modification) in W.P.(C) 5122/2021

2. This is an application filed on behalf of the Respondent No.1 - Director General of Civil Aviation (hereinafter, “DGCA”) seeking certain modifications in the order dated 11th May, 2021 passed by this Court.

3. The present petition is one amongst the batch of writ petitions which had been filed challenging the carrying out of Breath Analyser Tests (hereinafter, “BAT”), which the staff of Air Traffic Controllers (hereinafter, “ATC”), commercial pilots and cabin crew were required to undergo prior to joining their duties at the airports, in view of the outbreak of the COVID- 19 pandemic. 2022:DHC:3555

4. Initially, the Court had heard connected writ petition being WP(C) 2946/2020 and issued various directions, vide order dated 23rd March, 2020. By virtue of the said order, the Court had suspended the use of BATs until further orders, as an interim measure, and had also accepted an assurance from all ATCs that they would provide a self-declaration that they would not report to duty under the influence of alcohol, as per the prevalent regulations. The Court had also directed the constitution of a committee under the DGMS(Air) and had sought a report. After considering the report of the said committee, the interim order was modified, vide order dated 3rd September, 2020. The writ petition was, however, pending.

5. Further writ petitions being WP(C) 4990/2021 and WP(C) 5122/2021 were filed seeking immediate halt on the administration of the BAT, in view of the upsurge in COVID-19 infections during the second wave of the pandemic. The said three writ petitions were heard collectively by this Court on 3rd May, 2021 and 5th May, 2021.

6. Thereafter, vide order dated 11th May, 2021, final directions were issued, and all three writ petitions were disposed of. The said final directions are relevant, and are captured hereinbelow:

7. Ms. Gosain, ld. Standing Counsel appearing for Respondent No.1 - DGCA submits that pursuant to the directions issued in paragraph 14 of order dated 11th May, 2021, and in view of the changed circumstances in respect of the COVID-19 pandemic, including reducing trend of COVID-19 cases, as also, increase in volume of air traffic as a result of resumption of 100% normal airline operations, fresh guidelines have been issued by the DGCA. The said fresh guidelines dated 29th March, 2022 are extracted below: “i. 50% of cockpit crew member and the cabin crew member shall be subjected to the random pre-flight Breath-Analyzer test for entire operation of an Organization on daily basis. The airlines operators shall ensure that all operation bases are covered for random pre-flight breath-analyzer examination. ii. In case of Flying Training Institutes, 50% of instructors and 40% of student pilots shall be subjected to Pre-flight breath-analyzer on daily basis. iii. The CAR Section-5 Series-F, Part-IV is hereby restored and breath-analyzer test of applicable personnel shall be conducted as per the provisions of the CAR. iv. For operation of aircraft registered in private category, 50% of the Pre-flight Breath-analyzer test shall be carried out in accordance with the existing DGCA letter no. DGCA-15011(01)/18/2020-DAS dated 03.12.2020.”

8. Ms. Gosain, ld. Standing Counsel submits that various representations were received from several airlines requesting for modification of the directions issued, vide order dated 11th May, 2021. Accordingly, the present application has been moved primarily seeking the following modifications in the order dated 11th May, 2021: i. Dispensing with the requirement that the doctor and any other paramedic/nursing personnel on duty, would take a Rapid Antigen Test for COVID-19 prior to joining the duty in the testing area, for administering BAT, in terms of paragraph 13(2) of order dated 11th May, 2021, extracted hereinabove, as also, to permit the conduct of BAT tests as per pre-COVID protocols. ii. Dispensing with the requirement of conducting not more than six tests in one hour, and to permit to conduct BAT as per pre- COVID protocols. in terms of paragraph 13(5) of the order dated 11th May, 2021, extracted hereinabove.

9. On the other hand, ld. Counsel for the Petitioner submits that, insofar as the directions in terms of paragraph 13(5) of order dated 11th May, 2021 is concerned, the same may be modified. However, as regards the direction issued in terms of paragraph 13(2) of order dated 11th May, 2021 to the effect that the doctors or nursing personnel are to take COVID-19 Rapid Antigen Tests, the said direction should continue to operate.

10. This Court has heard ld. Counsels for the parties and perused the present application. Insofar as the conduct of COVID-19 Rapid Antigen Test in respect of doctors, paramedics and nursing personnel is concerned, such a test can be conducted within 15 to 20 minutes, and continues to be one of the quickest screening tools for COVID-19. Doctors and paramedics/nursing personnel ought to be tested on Rapid Antigen Tests, prior to conducting tests on other personnel, as the risk would be high if such a test is not conducted, and either the doctor or nurse turns out to be COVID-19 positive. This is more so because there are chances of such persons being asymptomatic and being unaware if they have contracted the virus. Thus, at this stage, the said test would continue to be mandatory, in terms of paragraph 13(2) of order dated 11th May, 2021.

11. However, considering the submissions made today, in respect of the direction issued in paragraph 13(5) of order dated 11th May, 2021, that only six personnel shall be tested in one hour is concerned, in view of the increase in air traffic and reduction in incidence of COVID-19, as also, to ensure optimum utilisation of resources and reduce delays, the same is dispensed with, for the time being. The order dated 11th May, 2021 is modified accordingly.