Air India Etc. Etc. Vs. Nergesh Meerza & Ors. Etc. Etc. Case Summary You Can Listen To on Caseon

Air India, Nergesh Meerza, Air Hostess retirement age, pregnancy termination, marriage bar, Article 14, Article 16, discrimination, service regulations, Supreme Court India

0 28 Aug, 1981
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Air India Etc. Etc. Vs. Nergesh Meerza & Ors. Etc. Etc.

Supreme Court Of India Original Suit /3/1981

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Case Background

As per case facts, Air Hostesses (AHs) of Air India and Indian Airlines challenged service regulations regarding early retirement, termination upon marriage within four years of service, and termination on ...

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438

AIR

INDJA ETC. ETC.

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 in

valid.

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 permis

sible.

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.

.---

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

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, per

forming identical or similar duties and hence any discrimination made between

these two employees who are similarly circumstanced was clearly violative

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 Corpora

tion 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

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 preg

nancy 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

440 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 offi

cial arbitrariness. As the impugned part of the regulation is severable from the

B rest of the regulation, it is not necessary to strike down the entire

regulation. [491 A]

(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 amend

ded

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

D 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]

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 Constitu

tion. 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 condi

tions of service and different incidents the question of discrimination does not

arise. On the ocher hand, if among the members of the same class, discrimi

natory 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

differ~nt s;;ales of pay service terms, leave, etc.

G 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.

H 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,

' -.,

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

no application. [466 E] B

( 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.

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

to be found in other classes, and the like. [463 F-H, 464 A-Bl E

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]

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 promo

tional avenues and other matters indicate that the AHs form an absolutely sepa-

rate category from AFPs in many respects having different service conditions. H

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]

442

SUPREME COURT REPORTS (1982] I S.C.R.

6. Having regard to the various circumstances, incidents, service condi

tions, 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 condi

tions 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

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 ,Y

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

preg

nant amounts to compelling the poor AH not to have any children and thus inter

fere 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

preven

ting 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

maintai

ned at sufficient levels. [491 C-F]

. '

H 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

' ..

··•'

AIR INDIA V. NERGESH MEERZA 443

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 inhe

rently 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

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.

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 distinc

tion 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 sepa

rate 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 uncanali

sed 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 discretio

nary 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]

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 •.

444 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.

D F.D. Damania, B.R. Agrawala, H.D. Patil and Miss Halida

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. Vaidya

nathan 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

•

.. '

AIR INDIA v. NERGESH MEERZA (Paza/ Ali, J.) 445

common judgment. So far as Transferred Case No. 3/81 is c0ncer

ned, 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

"Declaration" and Equal Remu

neration 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'

446

SUPREME ·coul(T. REp(jRTS · [1982] I S,C.R.

(9) Air Hbstess as'A.H;' and.AirHostessess a 'AHs' .

•. ;

(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 cons

titutional 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

provi

sions 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

men

tioned 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.

operat

ing international flights and the other (IAC) operating domestic

. '

•

'<.

r '

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 dis

putes 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

fur

ther because the sheetanchor of his argument was that so

far as AHs in the two Organisations are concerned they consti

tute 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 coun

sel 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 dis

parity 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

Natio

nal Industrial Tribunal presicled over by Mr. Justice G.D. Khosla

A;.

448 SUPREME COURT REPORTS (1982) I s.c.R.

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

Tribu

nal 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 :

on marriage, whichever occurs earlier.

253. Regulation No.

47 provides for a further

exten

sion 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

. ..,.

•

"'.

AIR INDIA v. NERGESH MEERZA (Fazal Ali, J.) 449

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

deal with passengers of various temperaments, and a

young and attractive air hostess.

is able to cope with

diffi

cult or awkward situations more competently and more

easily than an older person with

less personal

preposses

sions. 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 Cor

poration 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

tempe

raments 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

comp

letely 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.

450 SUPREME COURT REPORTS .. . {1982] I S.C.R.

A , Thereafter, it appears the same dispute arose between the

employees

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

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

C this conneciion, the Mahesh Tribunal indicated the . stand of the

parties ·thus :-.

"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 retire

ment

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 retire

ment 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 Settle

ment between the ACEU and the Indian Airlines of Janu

ary 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

•

AIR INDIA v. NERGESH MEERZA (Fazal Ali, J.) 451

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.

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 Corpora

tion 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

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 un

married 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

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 Cor-

poration upon attaining the age of 35 years or on marriage H

if it takes place within four years of service or on first

pregnancy, whichever occurs earlier."

452 SUPREME COURT REPORTS (1982] I S.C.R.

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

Regula

tions 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 :

on marriage if it takes place within four years

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

medi

cally 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

Recep

tionists 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

•

. '

AIR INDIA v. NERGESH MEERZA (Fazal Ali, J.) 453

(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

45 years. B

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

we would now indicate the contentions advanced before us by the D

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

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

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

454 SUPREME COURT REPORTS (1982] 1 S.C.R.

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 mem

bers

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.

' -

The counsel appearing for the petitioners in the writ petitions , ,

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 pro

positions : -

(1) That having regard to the nature of job functions, the

mode

of recruitment of AHs, their qualifications,

> '

AIR INDIA v. NERGESH MEERZA (Fazal, Ali.J.) 455

their promotional avennes and the circumstances in

which they retire AHs fall within a category separate

from the class to which the pursers belong and

if AHs

from a separate

class or category by themselves, then

there can be no question

of discrimination or

contra

vention 0f 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 merely on the ground

of sex

alone but swayed by a lot of other considerations:

hence Art.

15 (2) of the Constitution was not attracted.

To buttress this argument reliance was placed by

Mr. Nariman

on the Declaration made by the

·Govern

ment under the 1976 Act.

(3) As the conditions mentioned

in Regulation 46 of A.I.

Regulations and

12 of the IAC Regulations 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 even though their p~riod may have

expired.

(4) Having regard

to the circumstances prevailing in India

and the effects

of 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 huge practical difficulties as a result

of which

very heavy expenditure would have to be incurred

the Corporations to make arrangements for substitutes

of the working AHs during _their absence for a long

period necessitated by pregnancy

or domestic needs

resulting from marriage.

(6) The court should take into consideration the practical

aspects

of the matter which demonstrate the fact that

a large number of AHs do not

stick to the service but

leave the same well before the age of retirement fixed

under the Regulation.

456 SUPREME COURT REPORTS (1982] I S.C.R.

Finally, as a very fair and conscientious counsel Mr. Nariman

placed a

few proposals which might mitigate the inconvenience'

caused to the AHs and remove a large bulk

of. their grievances. It

was submitted by Mr. Nariman that he would in all probability

persuade the management to aceept the proposals submitted by him

which

will be referred to when we deal with the contentions of

the parties at length.

We shall now proceed to deal With the respective contentions

advanced before us indicating the reply of the respondents to the

arguments raised

by the petitioners.

It was vehemently argued by Mr. Setalvad that having regard

to the nature

of the duties and functions performed during the

flight

AFPs and AHs both the groups constitute the same class

or category of service under the Corporation and hence any diffe

rence

or discrimination between the members in the same class is

clearly violative

of Art.

14 of the Constitution. A second limb of the

argument which flows from the first contention was that the AHs were

selected for hostile discrimination

by the Corporation in the

matter

of retirement. termination and promotional avenues which

was manifestly unreasonable

so as to attract Art. 14 of the Con

stitution.

The counsel for the Corporation, however, countered the

arguments

of the petitioners on two grounds :-

(I) That in view of the mode of recruitment,

qualifica

tions, retiral benefits and various other factors the AHs

constitute a special category

or class of employees

different from the

AFPs and, therefore, they could not

be in any way equated with them.

(2) That in fact the recruitment of AHs was sex-based and

swayed

by a number of other considerations and not

based on

sex only.

fn order to appreciate the arguments of the parties on this

point it may be necessary to refer to the law on the subject which

is now well settled by a long course of decisions of this Court. It is

undisputed that what Art. 14 prohibits is hostite discrimination and

H not reasonable classification. fn other words, if equals and

equals are differently treated, no discrimination at all occurs so as

to amount to an infraction

of Art. 14 of the

Constitution.I A fortiori

AIR INDIA v. NERGESH MEERZA (Fazal Ali' J.) 457

if equals or persons similarly circumstanced are differently treated,

discrimination results

so as to attarct the provisions of Art. 14.

Jn our opinion, therefore, the inescapable conclusion that

follows is that 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 other hand, if among the

members of the same class, discriminatory treatment

is meted out to

one against the other, Art.

14 is doubtless attracted.

In Kathi Raning Rawat v. The

State of Saurashtra(

)

Sastri, C.J.

observed thus :

"Though the differing procedures might involve dis

parity in the treatment of the persons tried under them,

such disparity

is not by itself sufficient, in my opinion, to

outweigh the presumption and establish discrimination

unless the degree

of disparity goes beyond what the reason

for its existence demands as, for instance, when it amounts D

to a denial of a fair and impartial

trial."

Fazal Ali J. as he then was, pithily observed as follows :-

"I think that a distinction should be drawn between

'discrimination without reason' and 'discrimination with

reason'. The

whole doctrine of classification is based on

this distinction and on the well-known fact that the

circum

stances which govern one set of persons or objects may not

necessarily

be the same as those governing another set of

persons or objects,

so that the question of unequal

treat

ment does not really arise as between persons governed by

different conditions and different sets of circumstances."

Similar observations

were made by Mukherjee, J. who

remar

ked thus :-

"The legislature is given the utmost latitude in making

the classification and it

is only when there is a palpable

abuse

of power and the differences made have no rational

relation to the objectives of the legislation, that necessity of

judicial interference

arises."

(I) [1952] SCR 435.

458

SUPREME COURT REPORTS (1982] l S.C.R

The most apposite decision on the subject is the case of All

India Station Master's & Assistant S1ation Master's Association & Ors.

~v~GeneraltManag1r,: Cemral Raii"ay' & Ors.(') \here the Jaw on

the subject was succinctly stated

by Das Gupta, J. who speaking for

the Court as follows

"So multifarious are the activities of the State that

employment

of men for the purpose of these activities has

by the very nature of things to be in different departments

of the

State and inside each department, in many different

classes.

For each such class there are separate rules

fixing the number of personnel of each class, posts to which

the men

in that class will be appointed, questions of

seniority, pay of different posts, the manner in which

promotion

will be effected from the lower grades of pay

to the higher grades, e.g., whether on the result

of periodi

cal examination or

by seniority, or by selection or on some

other basis and other cognate matters. Each such class

can be reasonably considered to be a separate and

in many

matters independent entity with its own rules

of recruit

ment, pay and prospects and other conditions

of service

which may vary considerably between one class and

another.

It is clear that as between the members of the same

class the question whether conditions

of service are the

same or not may

well arise. If they are not, the question

of denial of equal opportunity will require serious

consideration

in such cases. Does the concept of equal

opportunity in matters

of employment apply, however, to

variations

in provisions as between memhers of different

classes

of employees under the

State? In our opinion,

the answer must be

in the negative."

G The same view was reiterated by another decision of this

Court

in The

General Manager, Southern Railway v. Rangachari('~

where Gajendragadkar, J. pointed out thus :

(1) (1960] 2 S.C.R. 311.

H (2) [1962] 2 S.C.R. 586.

l.'..

,; ~

.-'

AIR INDIA v. NERGESH MEERZA (Faza/ Ali, J.) 459

"Would it. for instance, be open to the State to pTfsoibe

different scales of salary for the same or similar posts, dijje

rent terms

of leave or

11uperannuation fo1 the same or similar

post 1 On the narrow construction of Art. 16(1) even if

such a discriminatory courses are adopted

by the

State in

respect of its employees that would not be violative of

the equality of opportunity guaranteed by Art. 16(1).

Such a result could not obviously have been intended by

the Constitution

......... The three provisions form part of

the same constitutional code of guarantees and supplement

each other.

If that be so, there would be no difficulty in holding

that the matters relating to employment must include all

matters

in relation to employment both prior, and subse

quent,

to the employment which are incidental to the

employment and form part of the terms and conditions of

such employment.

It is common ground that Art. 16(4) does not cover

the entire field covered by Art. 16(1)

and (2).

Some of

the matters relating to employment in respect of which

equality

of opportunity has been guaranteed by Art.

16(1)

and (2) do not fall within the mischief of non-obstante

clau;e in Art. 16(4)."

(Emphasis ours)

In State of Punjab v. Joginder Singh('), Ayyangar, J while

delivering the majority judgment clearly elucidated the various

spheres where Art.

14 could operate and observed thus:-

"As we have stated already, the two Services started

as independent services. The qualifications prescribed for

entry into each were different, the method of recruitment and

the machinery for the same were also different and the general

qualifications possessed

by and large by the members of each

class being different, they started as two distinct classes.

If the government order of

September 27, 1957, did not

integrate them into a single service, it would follow that

(!) [1963] Supp. 2 SCR 169.

460 SUPREME COURT REPORTS (1982] I s.c.R.

the two remained as they started as two distinct services.

If they were distinct services. there was na question of inter

se seniority between members

of the two

s<rvices, nor of any

comparison between the two in the matter of promotion for

founding an argument based upon Art. 14 or Art. 16(1). They

started dissimilarly and they continued dissimilarly and any

{/fssin11'/arity in their trealment would not be a denial o.f equul

opportunity.for ii is common ground that withii1 each group

there is

no denial of that freedom

guaranteed by the two

Articles.

The foundation therefore, of the judgment of

the learned Judges of the High Court that the impugned

rules created two classes out

of what was formerly a single

class and introduced elements

of discrimination between

the two, has no factual basis if, as

we hold, the order of

September 27, 1957, did not effectuate a complete

integra

tion of the two Services. On this view it would follow

that the impugned rules cannot

be struck down as violative

of the constitution."

(Emphasis supplied)

The same dictum was followed l\y this Court in a later case

Sham Sundu· v. Union of India and Ors.(

)-where it was pointed out

that Art. 16(1) would be attracted onlv if there is a breach of equa

lity between members

of the same class of employees and Art. 14

did not contemplate equality between members of separate or

inde

pendent classes. In this connection Bachawat, J. held thus :

"For purposes of promotion, all the enquiry-cum

reservation clerks on the Northern Railway form one sepa

rate unit. Between members

of this class there is no

dis

crimination and no denial of equal opportunity in the

matter

of promotion ............... Equality of opportunity in

matters

of employment under Art. 16(1) means equality as

between members

of the same class of employees and not

equality between members

of separate, independent

classes."

.The same principle was reiterated by this Court in Western U.P.

Electric Power and Supply Co. Ltd. v. State of U.P. and Anr.(

)

where

Shah, J. observed thus :

(1) [t969] I SCR 312.

(2) [ 1969] 3 SCR 865.

·~

, -·

' '

AIR INDIA v. NERGESH MEERZA (Pazal Ali, J.) 461

"Article 14 of the Constitution ensures equality among

equals; its aim is to protect persons similarly placed against

discriminatory treatment.

It does not however operate

against rational classification. A person selling up a grie

vance

of denial of equal treatment by law must establish

that between persons similarly circumstanced, some were

treated to their prejudice

and the differential treatment had

no reasonable relation to

the object sought to be achieved

by the

law."

Jn a recent decision of this Court in Ramesh Prasad Singh v.

State of Bihar and Ors. (

)

to which one of us (Fazal Ali, J.) was a

party, the same principle was reiterated

thus:-

"Equality is for equals, that is to say, those who are

similarly circumstanced

are entitled to an equal treatment

but

the guarantee enshrined in Articles 14 and 16 of the

Constitution cannot be carried beyond the point which is

well settled by a cat

en a o

I decisions of the Court."

Similarly, in The State of Gujarat and Anr. v. 5hri Ambica

Mills Ltd. etc., (

)

Mathew, J. speaking for the Court pointed out

that classification

is inherent in legislation and expounding the con-

cept of equality contained in Art. 14 observed thus :-

"It may be remembered that article I 4 does not require E

that every regulatory statute apply to all in the same busi-

ness ; where size is

an index to the evil at which the law is

directed, discriminations between

the large and small are

permissible, and it is also permissible for reform to take

one step

at a time, addressing itself

t9 the phase of the

problell) which seems most acute to the legislative mind." F.

''Classification is inherent in legislation. To recognize

marked differences

that

exiH in fact is living.law: to disre

gard practical differences

and concentrate on some abstract

identities is lifeless

logic." (Morey v. Doud U.S. 457, 472)

In State of Jammu and Kashmir v. Triloki Nath Khosa

and Ors .. (

)

it was clearly pointed out that equality is

(I) [t978] 1 SCR. 787.

(2) [1974] l SCR 771.

(3) [1974] 3 SCR

760.

462 SUPREME COURT REPORTS [1982] I S.C.R,

only for equals and e'len in cases of promotion Art. 14

would apply only if promotional facility is denied

to equals within the same class. In this connection,

Chandrachud,

J. (as he then was) pithily observed

thus

"But the concept of equality has an inherent limitation

arising fro1n the very nature of the constitutional guarantee.

Equality is for equals. That is to say that those who are

similarly circumstanced

are entitled to an equal treatment.

Since the constitutional code of equality and equal

opportunity is a charter for equals, equality of opportunity

in matters of promotion means an equal promotional

opportunity for persons who fall, substantially, within the

same class."

In United States v. James Griggs R'iines (') it was held

that oc.e to whom application of statute is constitutional

cannot be heard to attack the statute on the ground that

impliedly

if it applied to other persons it might be

uncons

titutional. These observations, in our opinion, furnish a

complete answer to the argument

of the petitioners that

Article 14 is violated in the instant case.

Similar observations were made in Vol.

16 (PP.

236·237) of ' -

Corpus Juris Secundum which are extracted below :·

•·A person ordinarily is precluded from challenging

the constitutionality of governmental action by invoking

the rights

of others and it is not sufficient that the statute

or administrative regulation is unconstitutional as to other

persons

or classes of persons; it must affirmatively appear

that the person attacking the statute comes within the class

of persons affected by

it."

Thus, from a detailed analysis and close examination of the

cases of this Court starting from 1952 till today, the following

propositions emerge :-

(I) In considering the fundamental right of equality of

opportunity a technical, pedantic or doctrinaire app-

(l) 4 L Ed 2d 524.

-. '

AIR INDIA V. NERGeSH MEERZA (Fazal Ali, J.) 463

roach should not be made and the doctrine should not

be invoked even if different scales of pay, service

terms, leave, etc., are intruduced in different or dissimi

lar posts.

Thus, where the class or categories

of service are

essentially different in purport and spirit, Art. 14 can- B

not

be attracted.

(2) Art.

14 forbids hostile discrimination but not reason

able classification. Thus, where persons belonging to

a particular class in

view of their special attributes,

qualities, mode

of recruitment and the like, are diffe

rently treated

in public interest to advance and boost

members belonging to backward classes, such a

classifi

cation would not amount to discrimination having a

close nexus with the objects sought to

be achieved so

that

in such cases Art. 14 will be completely out of the

way.

(3) Art. 14 certainly applie' where equals are treated

differently without any reasonable basis.

(4) Where equals and unequals are treated differently, E

Art. 14 would have no application.

(5) Even if there be one class of service having several

cate

gories with different attributes and incidents, such a

category becomes a separate class

by itself and no

difference

or discrimination between such category and F

the general members of the other class would amount

to any discrimination or to denial

of equality of

opportunity.

(

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 recruit

ment of a particular category from the very

start,

(b) the classifications

of the particular category.

464 SUPREME COURT REPORTS [1982) I S.C.R.

of the category,

(d) the nature and character of the posts and promo

tional avenues,

(e) the special attributes that the particular category

possess which are not to

be found in other classes,

and the like.

It is 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.

Applying these tests

we now proceed to examine the correct

ness

of the first contention advanced by Mr. Atul Setalvad and

counsel for other petitioners and countered

by the Corporations.

very large number of affidavits and documents have been

D filed by the parties in support of their respective cases but in view

of the arguments of the parties, the matter falls, in our opinion,

within a very narrow compass and

we shall refer only to those

affidavits and documents which are germane for deciding the case

on the basis

of contentions advanced before us.

In order to test whether the category of AHs constitutes the

same class

AFPS or is a separate category by itself, we shall

detail the materials placed before

us by the parties

· on this aspect

of the matter .. We shall first deal with the case of AHs employed

by A.I.

To begin with, it

is not disputed that at the initial

recruit·

ment a classification for appointment of AH and AFP is essentially

different. For instance, while

in the case of AFP the necessary

qualifications are as follows : -

G .

{I) sec or its equivalent

(2) Minimum three years' training experience m any Air

line or three years Diploma

in Catering from a recog

nised

I.iistitute or a Graduate.

(3) There is no requirement that AFP should be un

married.

(

4) The AFP has to appear for a written I.C. test.

......

, -

. '

AIR INDIA v. NERGESH MEERZA ( Faza/ Ali, J.) 465

As against these basic requirements for entry into service

for the class known

as 'AFP', the requirements for AHs are as

follows

(I) SCC or its equivalent

(2) AH must be unmarried

(3) No other requirement is needed for entry into service

so far as AH

is concerned.

Mr. Setalvad however, argued that both AHs and AFPs

being members

of the same cabin crew must be taken to belong to

the same class. This argument fails to take into consideration the

fact that if at the threshold the basic requirements

of the two classes,

viz., AFP and AH, for entry into service are absolutely different

and poles apart

even though both the classes may during the

flight work as cabin crew, they would not become one class

service.

Secondly, while AFP starts with a grade of Rs. 385-535, the

AH starts her career with the grade of Rs. 485-25-560-40-770. This

is also a very material difference which points to the AHs being a

separate category both

in respect qualifications at the entry into

service and also

in respect of starting salaries.

Another important distinction between AFPs and AHs

is that

whereas the total number

of posts in A.I. of AFPs are 494, in the

case

of AHs is 737. Thus, to begin with, the two classes differ in

qualifications,

in grades and also in the number of posts.

The matter does not rest there. Even the promotional avenues

or channels of the two categories of service are quite different and

so is their seniority.

So far as the AFPs are concerned, the hierar

chy is as follows

(I) A.F.P.

(2) F.P. (Grade : Rs. 485-25-560-40-720-50-1020)

The total number of posts of FPs are 372. Thus, by and

large

AH starts almost in the same grade as F.P. which is a higher

post than

APP. The third higher category is Check F.P. which has

the same emoluments

as FPs with the difference that the Check

FPs get an additional allowance

of Rs.

200/-p.m. and the number

466

SUPREME COURT REPORTS [1982] 1 s.c.R.

of posts are 61. The next promotional avenue is the post of In flight

Supervisor. The total posts are

69 and the Grade is Rs.

1100-50-

1600-60-1780-100-1880

No. of Grade

posts

(5) Dy. Mannger 8 1400-50-1600-60-1780-

100-1880

(6) Manager 7 1720-60-1 780-100-2180

(7) Manager, Cabin 1880-100-2480

Crew

It is asserted by the A.I. that it takes about 15 to 20 years

for a F.P. to reach the promotional posts of Inf!ight Supervisor

and 25 years to reach the post of Dy. Manager. As against this,

the hierarchy

of AH is as follows :-

I. AH

2. Check AH

3. Dy. Chief AH

Addi. Chief AH

5. Chief AH

No. of Grade

posts

737

1100-50-1600-60-1780-

100-1880

1400-50-1600-60-1780-

100-1980

1720-60-1780-100-2180

It may be mentioned here that so far as the post of Dy.

Chief AH

is concerned, by virtue of an agreement dated

30th May

1977 between the male members of the cabin crew it was decided

to phase them out. A serious exception has

been taken against

the Corporation for having acceded to the demand for phasing out

a post belonging to the category

of AHs and that too without taking

the consent

of AHs. A serious protest on this account was lodged

by the AHs which is to be found at page 166 of Vol. II of the

Paperbook, the relevant portion of which of may be extracted

thus

, .

AIR )NOIA v. NERGESfl MEERZA(Pazal Ali, J.) 467

"We do not see 'how any Flight Purser or Assistant

Flight Purser could suggest a viable proposal regarding our

promotion considering this matter

is in direct relation to

Air Hostesses and their future.

In the past the Flight

Pursers and the Assistant Flight

Pursers took away our promotional avenue to Deputy

Chief Air Hostess without

even consulting

us.'"

At page 148 of Vol. II of the Paper Book, the affidavit

details the circumstances under which the post

of Dy. Chief AH

was agreed

·to be phased out. In this connection, the following

extracts are relevant :- C

"The Association also went into the grades of different

Reference cases

Kathi Raning Rawat Vs. The State of Saurashtra

mins | 0 | 27 Feb, 1952

Description

Case Analysis: Air India v. Nergesh Meerza on Service Regulations and Gender Discrimination

The landmark Supreme Court judgment in Air India v. Nergesh Meerza, a pivotal case concerning service regulations discrimination, remains a cornerstone of Indian service and constitutional law. This authoritative ruling, now fully accessible on CaseOn, meticulously examines the constitutional validity of employment rules that impose differential conditions based on gender and marital status. The case delved into the delicate balance between an employer's operational needs and an individual's fundamental rights to equality and non-discrimination, setting significant precedents for workplace justice in India.

The IRAC Analysis of the Case

Issue: The Core Legal Questions

The Supreme Court was tasked with determining the constitutionality of specific service regulations applicable to Air Hostesses (AHs) employed by Air India and Indian Airlines. The primary issues were:

Whether the termination of an Air Hostess's services upon her first pregnancy was arbitrary and violative of Articles 14, 15, and 16 of the Constitution.
Whether the regulation requiring an Air Hostess to retire upon marriage within the first four years of service was unconstitutional.
Whether fixing the retirement age for Air Hostesses at 35 (extendable to 45) while their male counterparts (Assistant Flight Pursers) retired at 58 constituted hostile discrimination.
Whether the absolute and unguided discretion vested in the Managing Director to grant extensions to Air Hostesses was a case of excessive delegation of power and thus, arbitrary.
Whether Air Hostesses and their male colleagues in the cabin crew belonged to the same class of employees, making differential treatment discriminatory.

Rule: Governing Laws and Constitutional Principles

The petitioners' challenge was rooted in the fundamental rights guaranteed by the Constitution of India, and the respondents' defense was based on their service regulations.

Constitutional Provisions

Article 14: Guarantees equality before the law and equal protection of the laws, prohibiting arbitrary state action.
Article 15: Prohibits discrimination by the State against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.
Article 16: Ensures equality of opportunity for all citizens in matters relating to employment or appointment under the State.

Service Regulations in Question

Air India Employees Service Regulations 46 & 47: These regulations stipulated that an Air Hostess would retire at the age of 35, or on marriage if it occurred within four years of service, or upon her first pregnancy, whichever happened earliest. Regulation 47 gave the Managing Director the discretion to extend the service of an Air Hostess annually up to the age of 45.
Indian Airlines Service Regulation 12: Contained similar provisions for Air Hostesses employed by Indian Airlines, with a retirement age extendable up to 40 years.

Analysis: The Supreme Court's In-Depth Reasoning

The Court conducted a thorough analysis of the arguments presented by both the Air Hostesses and the Corporations, dissecting each contentious regulation against the touchstone of constitutional principles.

On the Classification of Employees

The Court first addressed whether Air Hostesses and their male counterparts, Assistant Flight Pursers (AFPs), could be treated as a single class. It concluded that they constituted two distinct and separate classes. The reasoning was based on significant differences in their mode of recruitment, qualifications, promotional avenues, pay scales, and retirement benefits. Since they were not equals, the Court held that providing different service conditions, including a different retirement age, did not amount to discrimination under Article 14.

For legal professionals short on time, gaining insights into such detailed rulings is now simpler. CaseOn.in 2-minute audio briefs provide a concise summary, making it easier to grasp the core analysis of the Air India v. Nergesh Meerza judgment.

The Constitutionality of Service Conditions

Marriage within Four Years: The Court found the condition barring marriage within the first four years of service to be reasonable. It accepted the Corporation's argument that it invested significant time and resources in training an Air Hostess, and a short service period due to early marriage would be a financial loss. The Court deemed this a sound and salutary provision, not a constitutional violation.
Termination on First Pregnancy: The Court vehemently struck down this provision. It described the rule as “a most unreasonable and arbitrary provision which shocks the conscience of the Court.” The judgment famously called the termination of service on pregnancy a “callous and cruel act” and an “open insult to Indian womanhood.” The Court reasoned that if marriage was permissible after four years, a subsequent pregnancy could not be a ground for termination. This condition was held to be manifestly unreasonable, unfair, and a naked exhibition of despotism, thus violating Article 14.

The Vice of Excessive Delegation: The Managing Director's Discretion

The Court found a major flaw in Regulation 47, which gave the Managing Director unguided and absolute discretion to extend an Air Hostess's service beyond the age of 35. The regulation lacked any guidelines, principles, or norms to govern this discretion, making it possible for the Managing Director to discriminate between one Air Hostess and another. The conferment of such wide and uncontrolled power was deemed a violation of Article 14 due to excessive delegation. The Court struck down the discretionary part, ruling that extensions up to 45 years must be granted as a matter of course if the employee is found medically fit.

Conclusion: The Supreme Court's Final Verdict

The Supreme Court partly allowed the petitions, delivering a nuanced judgment that balanced administrative needs with fundamental rights. The final orders were as follows:

The provision in the service regulations that mandated termination of service for an Air Hostess ‘on first pregnancy’ was declared unconstitutional, void, and violative of Article 14, and was therefore struck down.
The part of Regulation 47 that gave the Managing Director the ‘option’ or discretion to grant service extensions was also struck down as unconstitutional for being an excessive delegation of power. Consequently, an Air Hostess would continue in service up to the age of 45 if found medically fit.
The Court upheld the validity of the rule that restricted marriage within the first four years of service.
The Court affirmed that Air Hostesses and Assistant Flight Pursers formed separate classes, and therefore, the difference in their retirement ages was not discriminatory.

A Summary of the Judgment

In essence, the Supreme Court in Air India v. Nergesh Meerza upheld the right of employers to create different service classes but strongly intervened to strike down service conditions that were arbitrary, unreasonable, and an affront to the dignity of women. The Court invalidated the bar on pregnancy and the unguided discretionary power of management, while upholding regulations it deemed reasonable for operational stability. The ruling championed the cause of gender equality and dignity at the workplace, ensuring that service rules do not perpetuate archaic or discriminatory practices under the guise of administrative convenience.

Why This Judgment Matters for Legal Professionals

This judgment is an essential read for lawyers and law students for several reasons:

Landmark in Service Law: It provides a clear framework for analyzing the reasonableness of service conditions and the limits of managerial power.
Gender Justice Jurisprudence: It is a foundational text in the fight against gender discrimination at the workplace, particularly its powerful denunciation of rules penalizing pregnancy.
Understanding Article 14: The case offers a classic exposition on the concepts of reasonable classification, arbitrariness, and the doctrine of excessive delegation of power.
Practical Application: It continues to be cited in cases involving discrimination, arbitrariness in administrative action, and challenges to employment regulations across various sectors.

Disclaimer

The information provided in this article is for informational purposes only and does not constitute legal advice. It is a summary and analysis of a judicial pronouncement and should not be used as a substitute for professional legal consultation.

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