# AIR INDJA ETC. ETC v. NERGESH MEERZA & ORS. ETC. ETC

- **Citation:** [1982] 1 S.C.R. 438
- **Court:** Supreme Court of India
- **Decided:** 1981-08-28
- **Case number:** Transferred Case No. 3 of 1981
- **Bench:** S. Murtaza Fazal Ali, A. Varadarajan, Amarendra Nath Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/air-indja-etc-etc-v-nergesh-meerza-ors-etc-etc-8296
- **Pages:** 67

## Headnote

Constitution of India 1950, Articles 14 and 16, Air India Employees Service
Regulations, Regulations 46 and 47, Indian Airline Service Regulation, Regulation
12.
Different conditions of service of Air Hostesses employed by Air India in India
and United Kingdom-Validity of.
Conditions of service-Discrimination-Determination Of question.
Retirement of Air Hostesses in the event of marriage taking place within
four years of service-Whether unreasonable or arbitrary.
Retirement of Air Hostess-Provision in service rule, or on first pregnancy
whichever occurs earlier-Whether unconstitutional.
Retirement age of Air Hostess-Fixation of at 45 instead of .58-Whether invalid.
Air Hostess-Extension of service-Option conferred on Managing Director-·
Whether exces:,fre delegation of power.
Air India Corporations Act 1953, S. 3-Air India International and Indian
Air Lines-Whether separate and distinct entities.
Indian Evidence Act 1872, S. 115-Estoppel against law-~Vhether permissible.
By virtue of section 3 of the Air Corporation Act, 1953 the Central
Government created two corporations known as Air India International and
Indian Air Lines. A.I. operating international flights and the I.A.C. operating
domestic flights within the country.
Air Hostessess employed by Air India were governed by Regulations 46
and 47 of Air India Employees Service Regulations and the Air Hostessess
employed by l.A.C. were governed by the Indian Airlines Service, Regulation
No.12.
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AIR INDIA V. NERGESH MEERZA
439
A.H. under A.I. was retiied f1om service in the following contingencies :
(a) On attaining the age of 35 years;
(b) On marriage if it took place within four years of the service; and
(c) on first pregnancy.
The age of retirement of AH could be extended upto ten years by grant·
ing yearly extensions at the option of the Managing Director. If the Managing
Director chose to exercise his discretion under Regulation 47 an AH could retire
at the age of 45 years.
A.H. under I.A.C. i •. was governed by similar service conditions except that
the age of retirement of permanent AHs could be ex.tendP;d upto 40 years.
In their transferred case and writ petitions, it was contended on behalf of
the A.H. that the Air Hostess employed by one corporation or the other from
the same class of service as the AFPs and other 1nembers of the cabin crew, performing identical or similar duties and hence any discrimination made between
these two employees who are similarly circumstanced was clearly violative of
Art. 14, (2) There was an inter sc discrimination between the AHs posted in
the United Kingdom and those serving in the other Air India flights (3) the
AHs have been particularly selecte:l for hostile descrimioation by the Corporation mainly on the ground of sex or disabilities arising from sex and, therefore,
the regulations amount to a clear infraction of the provisions of Art. 15(1) and
Art. 16(4). The termination of the services of AHs on the ground of pregnancy
or marriage within four years is manifestly unreasonable wholly arbitrary and
violative of Art. 14 (5). (6) Apart from discrimination regarding the age of
retirement, AHs have been completely deprived of pron1otional opportunities
available to the male members of th.; cabin crew.
The Management contested the petitions by contending: (I) Having
regard to the nature of job functions, the mode of recruitment of AHs, their
qualifications, their promotional avenues and the circumstances in which they
retire, AHs fall within a category separate from the class to which the pursers
belong and there can be no question of discrimination or contravention of Art. 14
which would apply if there is discrimination between the members of the same
class inter se. (2) The recruitment of the AHs is actually sex based recruitment
made not on the ground of sex alone but sway.::d by a lot of other considerations
and hence Art. 15(2) of the Constitution is not attracted. (3) Regulation 46 of the
A.I. Regulations and the IAC Regulat

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438
AIR INDJA ETC. ETC.
v.
NERGESH MEERZA & ORS. ETC. ETC.
August 28, 1981
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND
AMARENDRA NATH SEN, JJ.J
Constitution of India 1950, Articles 14 and 16, Air India Employees Service
Regulations, Regulations 46 and 47, Indian Airline Service Regulation, Regulation
12.
Different conditions of service of Air Hostesses employed by Air India in India
and United Kingdom-Validity of.
Conditions of service-Discrimination-Determination Of question.
Retirement of Air Hostesses in the event of marriage taking place within
four years of service-Whether unreasonable or arbitrary.
Retirement of Air Hostess-Provision in service rule, or on first pregnancy
whichever occurs earlier-Whether unconstitutional.
Retirement age of Air Hostess-Fixation of at 45 instead of .58-Whether invalid.
Air Hostess-Extension of service-Option conferred on Managing Director-·
Whether exces:,fre delegation of power.
Air India Corporations Act 1953, S. 3-Air India International and Indian
Air Lines-Whether separate and distinct entities.
Indian Evidence Act 1872, S. 115-Estoppel against law-~Vhether permissible.
By virtue of section 3 of the Air Corporation Act, 1953 the Central
Government created two corporations known as Air India International and
Indian Air Lines. A.I. operating international flights and the I.A.C. operating
domestic flights within the country.
Air Hostessess employed by Air India were governed by Regulations 46
and 47 of Air India Employees Service Regulations and the Air Hostessess
employed by l.A.C. were governed by the Indian Airlines Service, Regulation
No.12.
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AIR INDIA V. NERGESH MEERZA
439
A.H. under A.I. was retiied f1om service in the following contingencies :
(a) On attaining the age of 35 years;
(b) On marriage if it took place within four years of the service; and
(c) on first pregnancy.
The age of retirement of AH could be extended upto ten years by grant·
ing yearly extensions at the option of the Managing Director. If the Managing
Director chose to exercise his discretion under Regulation 47 an AH could retire
at the age of 45 years.
A.H. under I.A.C. i •. was governed by similar service conditions except that
the age of retirement of permanent AHs could be ex.tendP;d upto 40 years.
In their transferred case and writ petitions, it was contended on behalf of
the A.H. that the Air Hostess employed by one corporation or the other from
the same class of service as the AFPs and other 1nembers of the cabin crew, performing identical or similar duties and hence any discrimination made between
these two employees who are similarly circumstanced was clearly violative of
Art. 14, (2) There was an inter sc discrimination between the AHs posted in
the United Kingdom and those serving in the other Air India flights (3) the
AHs have been particularly selecte:l for hostile descrimioation by the Corporation mainly on the ground of sex or disabilities arising from sex and, therefore,
the regulations amount to a clear infraction of the provisions of Art. 15(1) and
Art. 16(4). The termination of the services of AHs on the ground of pregnancy
or marriage within four years is manifestly unreasonable wholly arbitrary and
violative of Art. 14 (5). (6) Apart from discrimination regarding the age of
retirement, AHs have been completely deprived of pron1otional opportunities
available to the male members of th.; cabin crew.
The Management contested the petitions by contending: (I) Having
regard to the nature of job functions, the mode of recruitment of AHs, their
qualifications, their promotional avenues and the circumstances in which they
retire, AHs fall within a category separate from the class to which the pursers
belong and there can be no question of discrimination or contravention of Art. 14
which would apply if there is discrimination between the members of the same
class inter se. (2) The recruitment of the AHs is actually sex based recruitment
made not on the ground of sex alone but sway.::d by a lot of other considerations
and hence Art. 15(2) of the Constitution is not attracted. (3) Regulation 46 of the
A.I. Regulations and the IAC Regulation 12 have been upheld by the Khosla
and Mahesh Awards. They have statutory force and unless they are \'per se
arbitrary or discriminatory the Court ought not to interfere with them particularly
when those two Awards are binding on the parties. (4) Having regard to the
circumstances prevailing in India a:1d the effects .:>f marriage the bar of pregnancy and marriage is undoubtedly a reasonable restriction placed in public
interest. (5) If the bar of marriage or pregnancy is removed it will lead to
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SUPREME COURT REPORTS
(1982] I S.C.R.
huge practical difficulties as a result of which very heavy expenditure would have
to be incurred by the Corporations to make arrangements.
Partly al!owing the petitions,
HELD: l{i). The impugned prov1s1ons appear to be a clear case of official arbitrariness. As the impugned part of the regulation is severable from the
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rest of the regulation, it is
not necessary to
strike
down
the
entire
regulation. [491 A]
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(ii) That part of Regulation 47 which gives option to the Managing
Director to extend the service of an AH is struck down. The effect of striking
down this provision would be that an AH, unless the provision is suitably amendded to bring it, in conformity with the provisions of Art. 14 would continue to
retire at the age of 45 years and the Managillg Director would be bound to
grant yearly extensions as a matter of course for a period of ten years if the AH
is found to be medically fit.
This will prevent the Managing Director from
discriminating between one AH and another. (501 A-B]
(iii). The last portion of regulation 46 (i) (c) struck down. The provision
'or on first pregnancy whichever occurs earlier• is unconstitutional, void and
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violative of Article 14 of the Constitution and will, therefore, stand deleted. It
will, however, be open to the Corporation to make suitable amendments. (491B]
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2. It is undisputed that whal Art. 14 prohibits is hostile discrimination and
not reasonable classification. If equals and unequals are differently treated, there
is no discrimination so as to amount to an infraction of Art. 14 of the Constitution.
A fortiori if equals or persons similarly circumstanced are differently
treated, discrimination results so as to attract the provisions of Art. 14.
[456 G-H, 457 A]
3. If there are two separate and different classes having different conditions of service and different incidents the question of discrimination does not
arise. On the ocher hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Art. 14 is doubtless
attracted. [457 A-Bl
4.
The following propositions emerge from an analysis and examination
of cases decided by this Court :
(1) In considering the fundamental right or equality of opportunity a
technical, pedantic or doctrinaire approach should not be made and the doctrine
should not be invoked even if differ~nt s;;ales of pay service terms, leave, etc.
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are introduced in different or dissimilar posts. [462 G-H, 463 A]
Thus where the class or categories of service are essentially different in
purport and spirit, Art. 14 cannot be attracted. [463 B]
(2) Art. 14 forbids hostile discrimination but not reasonable classification.
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Thus, where persons belonging to a particular class in view of their special
attributes, qualities .• mode of recruitment and the like, are differently treated in
public interest to advance and boost members belonging to backward cJasses,
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AIR INDIA V. NERGESH MEERZA
441
having a close nexus with the objects sought to be achieved JArt. 14 will be
completely out of the way. (463 B·D]
(3) Art. 14 certainly applies where equals are treated differently without
any reasonable basis. [466 DJ
(4)
Where equals and unequ1ls are trl!atej differently Art. 14 would have
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no application. [466 E]
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( 5) Even if there be one cl lS'i of $~rvice having several categories with
different attributes and incidents, such a category becomes a separate class by
itself and no difference or discrimination between such category and the general
members of the other class would amount to any discrimination or to denial of
equality of opportunity. [466 F-F]
(6) In order to judge whether a separate category has been carved out of
a class of service, the following circumstances have generally to be examined :-
(a) the nature, the mode and the manner of recruitment of a particular
category from the very start.
(b) the classifications of the particular category.
(c) the terms and conditions of service of the members of the category;
(d) the nature and character of the posts and promotional avenues;
(e) the special attributes that the particular category possess which are not
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to be found in other classes, and the like. [463 F-H, 464 A-Bl
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ft is however difficult to Jay down a rule of universal application but the
circumstances mentioned above may be taken to be illustrative guidelines for
determining the question. [464 B-C]
Kathi Raning Rawat v. The State of Saurashtra [1952] SCR 435, All India
Station Masters' and Assistunt Station Masters' Associatton and Ors. v, General
Manager, Central Railways and Ors. [19601 2 SCR 311, The General Manager,
Southern Railway v. Rangachari [1962] 2 SCR 586, State of Punjab v. Joginder
Singh [1963] Supp. 2 SCR 169, Sham Sunder v. Uniun ofln.tia and Ors. [1969] 1
SCR 312, Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P.
and Anr., [1969] 3 SCR 865 Ramesh Prasad Singh v. State of Bihar and Ors.,
[1978] 1 SCR 787 The State of Gujarat and Anr. v. Shri Ambica Mills Ltd. etc.
[1974] 3 SCR 760, Stale of Jammu and Kashmir v. Triloki Nath Khosa and Ors.
(1974] 1 SCR 771 and United States v. James Griggs Raines, 4 L Ed 2d 524
referred to.
s.
A comparison of the mode of recruitment, the classification, the promotional avenues and other matters indicate that the AHs form an absolutely sepaF
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rate category from AFPs in many respects having different service conditions.
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Finally, even though the AHs retire at the age of 35 (extendable to 45) they get
retiral benefits quite different from those available to the AFPs. [468 D-F]
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SUPREME COURT REPORTS
(1982] I S.C.R.
6.
Having regard to the various circumstances, incidents, service conditions, promotional avenues, etc. of the AFPs the members of the cabin crew are
an entirely separate class governed by different set of rules regulations and conditions of service. [ 471 B-C]
7. The declaration made by the Central Government by its notification
dated 15-6-79 is presumptive proof of service and other types of remuneration,
no discrimination has been made on the ground of sex only. (475 C]
8.
What Article 15(1) and 16(2) lay down is that discrimination shoula not
be made only and only on the ground of sex.
These Articles do not prohibit
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the State from making discrimination on the ground of sex coupled with other
considerations. [ 475 DJ
Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee (1954)
SCR 930, Miss C.B. Muthamma v U.0.1. and Ors. [1979] 4 SCC 260 referred
to.
9.
The argument on behalf of the AHs that the conditions of service with
regard to retirement, etc. amount to discrin1ination on the ground of sex only is
overruled. The conditions of service indicated are not violative of Art. 16.
[476 B-C]
10.
There is no unreasonableness or arbitrariness in the provisions of the
Regulations which necegsitate that AHs should not marry within four years of
the service failing which their services will have to be terminated. [480G-H,48lA]
11.
Having taken the AH in service and after having utilised her services
for four years: to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. The termination of
the services of an AH under such circumstances is not only a callous and cruel
act but an open insult to Indian womanhood the most scarosanct and cherished
institution. Such a course of action is extremely detestable and abhorrent to
the notions of a civilised society. Apart from being grossly unethical, it smacks
of a deep rooted sense of utter selfishness at the cost of all human values. Such
a provision is not only manifestly unreasonable and arbitrary but contains the
quality of unfairness and exhibits naked depotism and is clearly violative of
Art.14. [481 G-H,482
A·C]
J 3. The rule could be suitably a1nended so as to terminate the services of
an AH on third pregnancy provided two children are alive which would be both
salutary and reasonable for two reasons.
In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of
the health of the AH concerned as also for the good upbringing of the children.
Secondly it will not only be desirable but absolutely essential for every country
to see that the family planning programme is not only whipped up but maintained at sufficient levels. [491 C-F]
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General Electric Company Ma· tha v. Gilbbert, 50 L. Ed. 2d 343, State of
West Bengal v. Anwar Ali Sarkar [1952] SCR 284, A.S. Krishna v. State of Madras
[1957] SCR 399, Cleve/ and Board of Educatian v. Ja Cara/ La Fleur 39 L Ed 2d
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AIR INDIA V. NERGESH MEERZA
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52, Sharron A. Frontiero v. Elliot L. Richard~on, "36. E Ed 2d 583; Mary Ann
.Turner v. ·»epartment of Employment Security,, .46 1r Ed 2d 1&1> City of Los
'An8leS Department of Water and Power v. Mary Manhart, -s5L Ed .. 2d .657,
BombOY ·Labour .Unioh Representing the workmen uf M/s. lirternational Frcinchises
Pvt.Ltd. v.lnternational Ftanchi$es Pvt. Lid. [1966] 2 SCR 493, M/s. Dwarka
Prasad Laxmi Narain v. The State of Uttar Pradesh and Ors. [1954] SCR 803
& Maneka Gandhi v. Union of India [1978] 2 SCR 621 referred to.
13. -W~ether the Woman after beating. children Would cOntl'~ue .in Service or
would find it difficult to look. ~a:rrer, "the chikh:eri: is .her -personal matter and a
problem which affects the AH concerned and the Corporation has nothing to
do with the same. These -are circumstanpe~ _-which_ happen in the normal course
of business and cannot be helped. Jn these circumstances, the reasons given for
imposi.ng the· bar a1e neither.logical nor convincing. [489 C-E]
14. The factors to be c~nsid.erecJ- ~ust be rel~vant a~d becir a'c.lose nexus
to the nature of the organisation and the duties of the e1nployees. Where the
authority concetned. t8.kes into account factors or circumstarices Which are inherently irrational or illogical or tainted, the decision· fixing thC age·of retirement
is open to serious scrutiny. [492 E-F]
15, ·In the present times With advancing mechanical technology it' may riot
be very correct to say that a woman loses her normal faculties or that her
efficiency is impaired at the age of 35, 40 or 45 years. It is difficult to generalise a
proposition like this which will have to vary from. individual to individual. On
the other hand, there may be cases where an AFP may be of so weak and un-
'healthly a coilstitutlon that he may not be able to function upto the age of 58
which is the age of retirement of AFP according to the Regulation. ·The distinction regarding the age of retirement made by Regulation between AGs and AFPs
cannot be said to be discriminatory because AHs have been held to be a separate class. [ 495 B-E]
16. The fixation of the age Of retirement of AHs who f3.Ji witliir. a speCial
class depends on various factors which have to be taken into consideration by
employers. (496 F]
In the instant case, the Corporations have'· placed good -materi'al to show
some justification for keeping the age of retirement at 35 years (extend8.ble upto
45 years) but the regulation seems to arm the Managing Director with uncanalised and unguided discretion to extend the age of AHs at this option which
app~<\.r.s to suffer from the vice of excessive delegation of powers. A discretionary power may not necessarily be a discriminatory power but where a ~tatute
confers a power on an authority to decide matters of moment without laying
down any guidelines or principles or norms the power has to be struck down as
being violative of Art. (496 G-H, 497 A]
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Lala Hari Chand Sard v. Mizo District Council and Anr. [1967] 1 SCR 1012
ff
and State of Mysore v. S.R. Jayaram [1968] I SCR 349 referred to •.
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SUPREME COURT REPORTS
(1982) l S.C.k
ORIGINAL JURISDICTION ; Transferred Case No. 3 of 1981
Arising out of Transfer Petition No. 313 of 1980, Petition
under Article 139A(l) of the Constitution of India for withdrawal to
this Court of Writ Petition No. 1186 of 1980 pending in the Bombay
High Court at Bombay.
WITH
Writ Petitions Nos. 3045, 1107, 2458 & 1624 23/1981.
(Under Article 32 of the Constitution.)
IN TRANSFERRED CASE NO. 3/81
Atul M. Setalvad, R. K. Kulkarni,
D.B. Shroff, P. H. Parekh
and R.N. Karanajawala for the Petitioners.
F.S. Nariman, T.R. Andhyarujina, S.K. Wadia, O.C. Mathur and
Shri Narayan for Respondent No. I.
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F.D. Damania,
B.R. Agrawala, H.D. Patil and Miss Halida
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Khatun for Respondent No. 3,
B. Datta and R.K. Kapur
fo1~
Respondent No. 4.
JN WP. NO. 3045/80
D.P. Singh and L.R. Singh for the Petitioners, 0. C. Mathur
and Shri Narain for Respondent No. 1.
IN W.P. NO. 1 !07/80
Niranjan Alva and Narayan Nettar for the Petitioner, G.B. Pai,
O.C. Mathur and Shri Narain for Respondent No. l and G.S. Vaidyanathan for intervener.
IN W.P. No. 2458 of 1980
Margaret Alva and L. R. Singh for the Petitioner, P.R. Mridul
O.C. Mathur and Shri Narain for Respondent No. I.
JN W.P. NO. 1624-28 of 1981
G
S. Venkiteswaran and R.S. Sodhi for the Petitioner, O.C. Mathur
and Shri Narain for Respondent No. !.
The Judgment of the Court was delivered by
H
FAZAL ALI, J. Transferred Case No. 3 of 1981 and the writ
petitions filed by the petitioners raise common constitutional and
legal questions and we propose to decide all these cases by one
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AIR INDIA v. NERGESH MEERZA (Paza/ Ali, J.)
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common judgment.
So far as Transferred Case No. 3/81 is c0ncerned, it arises out of writ petition No. 1186/1980 filed by Nergesh
Meerza & Ors. Respondent No. I (Air India) moved this Court for
transfer of the writ petition filed by the petitioners, Nergesh Meerza
& Ors in the Bombay High Court to this Court because the consti·
tutional validity of Regulation 46(1) (c) of Air India Employees
Service Regulations (hereinafter referred to as •A.I. Regulations')
and other questions of law were involved. Another ground taken by
the applicant-Air India in the transfer petition was that other writ
petitions filed by the Air Hostesses employed by the Indian Airlines
Corporation (hereinafter referred
to as "LA.C.") which were
pending hearing in this Court involved almost identical reliefs.
After hearing the transfer petition this Court by its Order dated
21.1.81 allowed the petition and directed that the transfer petition
arising out of writ petition No. 1186/80 pending before the Bombay
High Court be transferred to this Court. By a later Order dated
23.3.1981 this Court directed that the Transferred case may he
heard alongwith other writ petitions.
Hence, all these matters have
been placed before us for hearing. For the purpose of brevity, the
various petitions, orders, rules, etc. shall be
referred to as
follows:-
(I) Air India as "A.I.'"
(2) Indian Airlines Corporation as "I.A.C."
(3) Statutory regulations made under the Air India Corpo·
ration Act of 1953 or the Indian Airlines Corporation
Act of 1953 would be referred to as 'A.I. Regulation'
and '1.A.C. Regulation' respectively.
(4) Nergesh Meerza & Ors. as 'petitioners'.
(5) Declaration by the Central Government under Equal
Remuneration Act as "Declaration" and Equal Remuneration Act 1976 as '1976 Act'.
(6) Air Corporation Act of 1953as'1953 Act.'
(7) Justice Khosla Award as 'Khosla Award' and Justice
Mahesh Chandra Award as 'Mahesh Award'.
(8) Assistant Flight Pursers as 'AFPs'
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SUPREME ·coul(T. REp(jRTS ·
[1982] I S,C.R.
(9) Air Hbstess as'A.H;' and.AirHostessess a 'AHs' .
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(JO) Air India Cabin Crew as 'A.I: Crew' and Indian Airlinei
Corporation Cabin Crew as 'IAC Crew'
(11) Flight Steward as "F.S."
Before. dealing with the facts of the case and the central constitutional controversies and substantial points of law involved in ·
these petitions, it may be necessary to give a brief survey of the
history which laid. to the formation of the two Corporations; viz.,
A.I. and I.A.C.
By virtue ofs. 3 of the 1953 Act,. the Central Government by
a notification published in the official· Gazette created two Corpora'
tions known as Indian Airlines and Air India International. Section
3(2) provided that each of the two Corporations Would be a body ·
corporate having perpetual succession and a ;common seal subject to
the. provisions of the Act to acquire and hold property. Section 4
of the '1953·Aet provides' for the constitution of the Corporations
and section 5 deals with the conditions of service of the Chairman
and other Directors of the Corporations. Section 7 defines the
various functions of the Corporations. Further details regarding
the provisions of s. 7 would be dealt with later wherever necessary.
Section 8 deals with the,· appointment of the officers. and other
employees of the Corporations. Sections IO to 15 deal with finance,
accounts and audit. Section· 34 defines ·the control which· the Central
Government may exercise over the performance by the Corporation
of its functions.
The other provisions of the l 953 Act are not
germane for the purpose of this case.
It is manifest therefore from a perusal of the various provisions of the 1953 Act that A. I. and I. A. C. were established as a
single entity which was divided into two units in view of the nature
of the duties that each Corporatiol) had to perform. We have mentioned this fact particularly because one of the contentions of Mr.
Nariman, counsel for A.I., was that A.I. itself was a separate and
distinct entity and could not be equated with I.A.C. The provisions
of the Act completely nullify this argument and clearly show that
the two Corporations formed one single unit to be controlled by the
Central Government under the 1953 Act. It may be that the two
Corporations may have different functions to perform-A.I. operating international flights and the other (IAC) operating domestic
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Alll°INDIA V. NERGESH MEE&ZA (Et!:fq/ A/i, J.)
447:·
flight~ within the' country. This la6t alone,· ho\Vever,'' woul<f noi
make the two Corporations· absolutely separate entitles: . The two
Corporations were part of the same organisation set up by the 1953
Act: · This fact is fortified ·by subsequent events' such as when disputes arose between the employees of the two Corporations, the :
dispute with resp~ct to A.I. was referred to Justice Khosla and for"
med. the ·basis of the Khosla Award: : Similarly, dispute between the':
I.A.C~ aildits ~mployees was referred to Justice Mahesh Chandra ·
where A.I. filed an application on behalf of the Air Corporatien
Employees Union (ACEU). The aforesaid Union represented hoth
the A.I. and I.A.c. A prayer of the ACEU was allowed by the
Tribu.nal hy its order .dated 1:3.1971 (vide p. 1191 of the Gazette of
India~Sec. 3(ii) dated 25.3. 72) for being imp leaded as a party to the
Reference.
As a result· of the allowing of the application o! the
ACEU the scope of the Reference was widened to include the
demands of I.AC. & A.I. This, therefore; cleady shows that the
two Corporations formed one single entity and whenever any dispute
arose they tried to get the dispute settled by a common agency.
Thus, the. two Corporations before the Industrial Tribnnals did not
take any stand that th~y · were different entiti~s having two se?arate
individualities. The initiaI argument of Mr. Nariman on this point
is, therefore, overruled at the threshold.
In fact, Mr. Nariman
having indicated the point did not choose
to pursue it further because the sheetanchor of his argument was that so
far as AHs in the two Organisations are concerned they constitute a sex-baseilrecruitment and, therefore, a completely separate
and different category from the class of AFPs, in that, theh' service
conditions, !lie mode of recruitment, the emoluments, the age of
retirement of these two classes wer.e quite different and, therefore,
the question of the applicability of Art. 14 did not arise.
We may
have to dilate on this part of the argument a little later when we
exaibine the respective contentions advanced before us by the counsel for the parties~ At the moment, we would like first to complete
the histbry of the Circumstances leading to the present controversy
between the parties. It appears that there was a good deal of disparity between ,the· pay-scales and the promotional avenues ,of the
male cabin crew consisting of AFPs, FPs and In-flight pursers on
the one hand and the AHs, Check AH, Deputy Chief AH, Addi.
Chief AH and Chief AH on the other. The case of the AHs
was sponsored by the ACEU which made a demand for alteration
of the service regulations prejudicial to AHs. This was some time
prior to 1964.
The said dispute was ultimately referred to a National Industrial Tribunal presicled over by Mr. Justice G.D. Khosla
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who gave his award on 28. 7 .1965 making some recommendations in
order to improve the service conditions of AHs.
In fact, the main issue canvassed before the Kbosla Tribunal
centred round the question of the age of retirement of the AHs and
matters connected therewith. A perusal of the Khosla Award
shows that the parties entered into a settlement with respect to all
other disputes excepting the retirement benefits on which the Tribunal had to give its award. In para 252 of the Award the dispute
regarding the retirement age is mentioned thus :
"252. At present, the retirement age of the Air India
employees is governed by Service Regulations Nos. 46 and
47. Service Regulation No. 46 is as follows :
46.
Retirement Age :
(C) An Air Hostess, upon attaining the age of 30 years or
on marriage, whichever occurs earlier.
253.
Regulation No. 47 provides for a further extension of the employee beyond the age of retirement for an
aggregate period not exceeding two years except in the
case of Air Hostesses where the services can be extended
upto a period of 5 years. The extension is granted on the
employee being fouud medically fit."
Thus, according to the , Regulations prevalent in A.I. an AH
had to retire at the age of 30 or on marriage whichever was earlier
subject to an extension being granted for a period of 5 years if
the employee was found to be medically fit.
While considering this
demand, the Tribunal seems to have upheld the view of the
Corporation and found no reason to interfere with Regulation
Nos. 46 and 47. In this connection, the Tribunal observed as
follows:-
"In my view, no case has been made out for rai,sing
the age of retirement and in cases where the efficiency of
the employee is not impaired, there is
suitable provision
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under regulation 47 for extending his service upto the age
of 60.
As observed above, there have been no complaints
of any employee being made to retire under the provision
of clause (ii) of regulation 46."
Giving the reasons for its conclusion the Award in Para 256
runs thus:-
"With regard to air hostesses, the contention of the
Management is that they are in a special class.
They have
to deal with passengers of various temperaments, and a
young and attractive air hostess. is able to cope with difficult or awkward situations more competently and more
easily than an older person with less personal prepossessions. On this point there can be no two opinions. It
was also pointed out that air hostesses do not stay very
long in the service of Air India, and young and attractive
women are more inclined to look upon service in Air India
as a temporary occupation than as a career. Most of them
get married and leave the service.
Counsel for the Corporation placed before me a table (Exhibit M 14) which
shows that the average service of an air hostess for the
5 years between 1960 and 1965 was only two years.
Only
2 air hostesses reached the age of 30.
None was retired at
the age of 30 and in all, 70 air hostesses resigned before
reaching the age of retirement. The total number of air
hostesses at present is 87 and, therefore, it will at once be
seen that most of them chose to leave service of their own
free will."
It would thus be seen that one of the dominant factors which
weighed with the Tribunal was that there were only 87 AHs out of
whom quite a large number retired even before reaching the age of
30 years. The Tribunal was also impressed by the argument of the
Corporation that AH had to deal with passengers· of various temperaments and a young attractive AH was more suitable for doing the
job. With due respect to Justice Khosla we may not agree with
some of the reasons he had given, but the position bas now completely changed as more than 15 years have passed and at present AI
employs as many as 737 AHs. However, the matter rested there
and the AHs seem to have lost their first battle before the Khosla
Tribunal.
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, Thereafter, it appears the same dispute arose between the
employees of I.A.C. which, as. indicated . above, had to be referred
to anotherTribunal, viz. Mahesb. Tribunal; before w)lom a part of
the dispute between several workmen was settled but the dispute
which was not settled including the question of the age of retire-
.men! of AHs was referred to this Tribunal some time in November
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1970 and the Award was given 'on 25th February 1972. · Before this
Tribunal also, the stand taken by the ACEU was that the age of
retirement of AH should be .fixed at 45 instead of 30 or 35 and the
bar of marriage should be removed. The A.I., however, stuck to
its •original stand that having regard to. the strenuous work to be
put in by an AH, the age of retirement should be ·kept at 30. In
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this conneciion, the Mahesh Tribunal indicated the . stand of the
parties ·thus :- .
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"The ACEU contends that age of retirement of air
hostesses should be fixed at 45 instead of 30 or 35 as at
present; that this demand for increase in the age of retirement is in accordance with Geneva Convention and that
the bar of marriage on air hostesses should be removed .
. The Air India's contention is that the nature and
underlying object of the job of an air hostess requires that
their age of retirement should be kept at 30 as at present.
It has also been pointed out that after 30, the General
Manager of the Corporation has the discretion to extend
the age of retirement of an air hostess by one year at a
time till sh'e reaches the age of. 40 years. As for the retirement on Marriage, the Air lndia's contention is that it is
necessary and a desirable provision as otherwise after
marriage they will not be able to fulfil adequately the main
purpose of their employment.
The rule regarding extension of service in the Settlement between the ACEU and the Indian Airlines of January 10, 1972 is better worded and it should be adopted by
the Air India also in its entirety."
This appears to he the position upto the year 1972. Subsequent
events, however, show that both A.I. and I.A.C. later realised that
the Rules regarding the age of retirement and termination of AHs
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work serious injustice and made several amendments.
We would
first take up the various amendments made by the l.A.C.
The previous regulation regarding the retirement age of I.A.C.
AH was regulation No. 12 which may be extracted thus :-
"Flying Crew shall be retained in the service of the
Corporation only for so long as they remain medically fit
for flying duties ...... Further, an Air hostess shall
r~tire
from the service of Corporation on her attaining the age
of 30 years or when she gets married whichever is earlier.
An unmarried Air Hostess may, however, in the interest of
the Corporation be retained in the service of the Corporation upto the age of 35 years with the approval of the
General Manager."
(Vide counter-affidavit of Wing Commander N.C.
Bharma)
This regulation was further amended on 13.7.68 which ran
thus:
"An Airhostess shall retire from the service of the
Corporation on her attaining the age of 30 years or when
she gets married,
whichever is
earlier.
The General
Manager, may, however, retain in service an unmarried
Air Hostess upto the age of 35 years."
Then followed the Settlement dated 10.1.1972 between the
I.A.C. and ACEU under which AH was to retire at the age of 30 or
on marriage. The General Manager, however, could retain an unmarried AH in service upto the age of 40 years. Thus, the only
difference that the Settlement made was that the discretion to extend
the age of retirement of AH was increased by 5 years, i.e. from
35 years to 40 years. Ultimately, however, the old Regulation
underwent a further change and by virtue of a Notification published
in the Gazette of Jnria on I 2.4.1980 in Part Ill, Section 4, para 3
of the amended regulation 12 was further amended thus:
"An Air Hostess shall retire from services of the CorA
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if it takes place within four years of service or on first
pregnancy, whichever occurs earlier."
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This amendment seems to have made a slight improvement in the
condition of service of AHs inasmuch as the age of retirement was
fixed at 35 years and the bar of marriage was restricted only to a
period of four years, that is to say, if an AH did not marry within
a period of 4 years of her entry into service, she could retire at
the age of 35. This amendment was not in supersession of but
but supplemental to the ACEU Settlement dated 10.1.1972. In
other words, the position was that an AH if she did not marry
within 4 years, could go upto 35 years extendable to 40 years, if
found medically fit. This was the historical position so far as the
retirement age of AHs working with IAC is concerned.
As regards
AHs employed by AI the latest position is to be found in Regulations 46 and 47, the relevant portions of which may be extracted
thus :-
"46. Retiring Age :
Subject to the provisions of sub-regulation (ii) hereof
an employee shall retire from the service of the Corporation
upon attaining the age of 58 years, except in the following
cases when he/she shall retire earlier :
(c) An Air Hostess, upon attaining the age of 35 years or
on marriage if it takes place within four years of
service or on first pregnancy, whichever occurs earlier.
47.
Extension of Service.
Notwithstanding anything contained in Regulation 46,
the services of any employee, may, at the option of the
Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age
of retirement for an aggregate period not exceeding two
years, except in the case of Air Hostesses and Receptionists where the period will be ten years and five years
respectively."
Thus, an AH under A.I. was retired from service in the
following contingencies :
(I) on attaining the age of 35 years ;
(2) on marriage if it took place within 4 years of the
service, and
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(3)
on first pregnancy.
The age of retirement of AH could be extended upto ten
years by granting yearly extensions at the option of the Managing
Director. Thus, if the Managing Director chose to exercise his
discretion under Regulation 47 an AH could retire at the age of
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45 years.
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Thus, the only difference regarding the service conditions
pertaining to the age of retirement or termination is that whereas
the services of an I.A.C. AH could be extended upto 40 years, those
of the A.l. AH could be exetended upto 45 years, subject to the
conditions
indicated above.
This appears to be the position
regarding the service conditions of the AHs belonging to both the
Corporations
which form
the cornerstone of their grievances
before us.
Having given a brief history of the dispute between the parties
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we would now indicate the contentions advanced before us by the
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petitioners (AHs) and the counsel for the Corporations and other
respondents. As the service conditions of AHs employed by the
two Corporations are almost identical the arguments put forward by
them also are almost the same with slight variations which will be
indicated by us when we deal with the arguments.
Mr. Atul Setalvad appearing for the AHs in Transfer case
No. 3 of 1981 has submitted some important and intertesting points
of law which may to summarised as follows :-
(l) The AHs employed by one Corporation or the other
form the same class of service as the AFPs and other
members of the cabin crew. Both the male pursers
and the AHs are members of the same cabin crew, per·
forming identical or similar duties and hence any
discrimination made between these two members who
are similarly circumstanced is clearly violative of Art.
14 of the Constitution of India.
(2) Even if the AHs are a separate category or class, there
is an inter se discrimination between the AHs posted in
the United Kingdom and those serving in the other Air
India flights.
(3) That the AHs have been particularly selected for
hostile discrimination by the Corporation mainly on
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the ground of sex or disabilities arising from sex and
therefore. the regulations amount to a clear infraction
of the provisions of Art. 15 (1) and Art. 16 of the
Constitution of India.
(4) The termination of the services of AHs on the ground
pregnancy or marriage within four years is manifestly
unreasonable and wholy arbitrary and violative of
Art. 14 of the Constitution and should, therefore, be
struck down.
(5) The contention that a woman in view of strenuous
work that she is called upon to perform, becomes tired
or incapable of doing the work of catering to the
passengers is based on pure speculation and being
against the well established facts and norms set up by
the Geneva Convention is clearly inconsistent with the
concept of emancipation of women.
No material has
been place.d before the Court to prove that the efficiency
of the AHs is in any way impaired at the age of 40 or
45 years so as to make a gross discrimination between
the male pursers and AHs.
(6) Apart from the discrimination regarding the age of
retirement, the AHs have been complerely deprived of
promotional opportunities available to the male members of the cabin crew.
For the aforesaid reasons, it was contended that regulations
46 and 47 of Air-India Employees Service Regulations and
Regulation No. 12 of the Indian Airlines (Flying Crew) Service
Regulations must be struck down as being discriminatory and ultra
vires.
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The counsel appearing for the petitioners in the writ petitions
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more or less adopted the arguments of Mr. Atul Setalvad in one
form or the other.
Jn answer to the contentions raised by Mr. Setalvad and the
counsel who followed him, Mr. Nariman appearing for A.I. and
Mr. G.B. Pai for the LA.C., adumbrated the follo.ving propositions : -
(1) That having regard to the nature of job functions, the
mode of recruitment of AHs, their qualifications,
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