Civil No 231 of 1987
Under Article 32 of the Constitution of India
Soli J Sorabjee PH Parekh Rajender Mahapatra and Ms Ayesha Misra for the Petitioner
KK Venugopal DR Dhanuka Mr Kapil Sibal Lalit Bhasin Vineet Kumar and Ms Nina Gupta for the Respondents
The following Judgments of the Court were delivered by KHALID J
In this writ petition filed by an Air India employee who at the relevant time was Deputy Chief Air Hostess notice was taken for the respondents when the matter came up for admission
We directed the respondents to file their Counter Affidavit
Accordingly Counter Affidavit has been filed
The Petitioner has filed her Rejoinder Affidavit also
Heard the learned counsel on both sides at some length
Under the existing rules namely Regulation 461c of the Service Regulation the petitioner was to retire on 28 2 1987 and in fact she retired on that date
The prayer in the writ petition is to quash the letter sent to her retiring her on 28 2 1987 to declare Regulation 461c ultra vires to direct reconsideration of the decision in Air India vs Nargesh Meerza  and to declare that the petitioner will retire only on her attaining the age of 58 years
Identical questions were raised before this Court in a few writ 730 petitions earlier by some other employees of Air India and they were considered at length by a bench of three Judges in Air India vs Nargesh Meerza and were considered in favour of Air India
We are bound by this decision
The learned coun sel for the petitioner submits that this decision needs reconsideration and made a fervent appeal to us to refer the matter for that purpose
We do not feel persuaded to accept this request
The main thrust of the submissions by the petitioner s counsel is based on Article 14 and Article 15 of the Consti tution of India in that Air India discriminates between the Air Hostesses and the officers like the petitioner of Indian origin and of foreign origin who are employees of Air India
The contention is that while the employees of India origin have to retire at 35 years with extension till 45 those of foreign origin can go beyond 45 years
This contention also was considered by this Court in the decision referred above
The case that Air Hostess recruited outside India can be in the employment of Air India beyond 45 years is met in the Counter Affidavit in the following paragraph   
Therefore I submit that so far as Air India is concerned it has not fixed any higher retirement age for Air Hostesses who are recruited outside India
In UK there are only six Air Hostesses and they are also being phased out
The Senior most Air Hostess in UK in terms of age is 41 years old
It is further pertinent to note that there are only six Air Hostesses presently employed in UK These Air Hostesses belong to different na tionalities and speak different European languages with a view to dealing with passen gers conversant only with these languages
I say that Air India has been encouraging its Indian Air Hostesses to learn European lan guages
In view of this position Air India is in the process of phasing out the European Air Hostesses employed in UK
It is also perti nent to note that Air India has appointed a few Air Hostesses in Japan
These Air Hostess es were also appointed for the same reason ie their knowledge of the Japanese language
The Air Hostesses employed in Japan would also retire upon reaching the normal age of retire ment applicable to Indian Air Hostesses
I say that the service conditions and terms of appointment of the Air Hostesses appointed abroad are different than the service condi tions 731 of Air Hostesses appointed in India
It is of utmost importance to note that no Air Hostess appointed is promoted to the post of Deputy Chief Air Hostess Additional Chief Air Host ess or Chief Air Hostess
These promotional avenues are available only to the Air Hostess es appointed in India From the above extract we find that Air India s policy now is to phase out Air Hostesses recruited outside India and restore uniformity in their retirement age
In UK there are only six Air Hostesses the senior most among whom is only aged 41
The provisions of Sex Discrimination Act 1975 applicable to United Kingdom was brought to our notice
Part II deals with discrimination in the employment field
Section 61b and Section 62 make discrimination against a woman in the terms of service promotion opportunities and termination unlawful
But Section 64 protects provisions which relate to death and retirement from the vice of the above sections
We refer this only to reassure ourselves that it would be possible for Air India to phase out UK incumbents when they attain the age of 45
Air Hostesses employed in Japan would also retire upon reaching the normal age of retirement applicable to Indian Air Hostesses
It is useful to note that Air Hostesses who are recruited outside India are not entitled to the benefits of promotion to which Indian Air Hostesses are entitled
We are of the view that this should satisfy the petitioner
The case that the petitioner is not an Air Hostess but belongs to a separate class can also not be accepted
This case did not find favour with this Court in the above deci sion either
The duties and functions of Deputy Chief Air Hostess includes operation service as a regular line Air Hostess and she will be required to perform the same func tions as that of other Air Hostesses
The writ petition thus is devoid of any merit and hence is dismissed
OZA J Having gone through the judgment dictated by my learned brother Khalid J although I agree with the conclu sions arrived at by him but will like to add my own reasons for the conclusions
When this petition came up before us the main ground which moved us to issue notice was that the Air India employ Indian as well as girls coming from different nationalities as air hostesses and in respect of the age of retirement there are different rules for airhostesses recruited from different countries
It was alleged that whereas an Indian recruited as air hostess will normally retire at the 732 age of 35 years which could be extended upto 45 a British girl recruited as air hostess retires at the age of 55 years and this according to the petitioner was discrimination on the basis of colour
In return the stand taken by the Air India is that As a matter of fact the Air Hostess recruited by British Airways in India retire at the age of 36 years in India whereas their counterparts in UK retire at the age of 55 years
 It is unfortunate that the second respondent a Corporation which is for all purposes State within the meaning of the term as provided in Article 12 of Constitution of India should follow the British Airways in treating Indians dif ferentially and discriminate against them
Reliance was also placed in return on the decision of this Court in Air India etc
vs Nergesh Meerza  Ors
  In return a passage has been quoted which appears at page 472 of the judgment
It is true that this is what has been observed in this judgment by a Bench of three Judges of this Court
It is observed   
There is no complaint by the peti tioners that between the separate class of AHs inter se there has been any discrimination regarding any matter
In fact the only point raised on this aspect was that AHs employed by AI in UK have different conditions of service from AHs serving AI in countries other than UK Doubtless this distinction is there but this is really a fortuitous circum stances because AI was forced to comply with the local laws of UK in order to increase the age of retirement of AHs posted in Eng land
Surely we cannot expect AI to commit an offence by violating the laws of UK    It appears as it was also contended that they are bound by the decision of this Court
It is no doubt true that this is the decision which is binding but even in a situation as has been indicated in this judgment that Air India in order to avoid committing an offence in accordance with the law of United Kingdom is choosing to disregard Article 14 of the Constitution
But I have no hesitation that an Indian citi zen in such a situation would prefer to walk off from a State where he may have to flout our Constitution to save himself from commission of an offence
All the more the same is expected of respondent No 2 a corporation controlled by the Government of India
It is expected that this corpora tion would abide by the requirement of article 14 rather than anything else
If need be it has to walk out of a country where it may become impossible to act in accordance with the ideals of our Constitution or where it may become necessary to disregard the provisions of our 733 Constitution and it is not something new as we have been keeping away from countries which follow apartheid policies
But I am happy that Shri Venugopal senior advocate appear ing for respondent No 2 frankly stated that his colleague learned counsel Shri Lalit Bhasin got the United Kingdom Sex Discrimination Act 1975 further examined and now it is clear that in view of Section 6 sub clause 4 of that Act it will not be a contravention of that law to have the same age of retirement for an air hostess recruited in UK as is provided for an airhostess recruited of Indian origin
It appears that this was the law United Kingdom Sex Discrimi nation Act 1975 which was perhaps in the minds of the Judges in Air India s case
In view of this learned counsel frankly stated that henceforth air hostesses recruited anywhere will be treated in the same manner as air hostesses recruited from India and it is only on this frank admission made by learned counsel for respondent No 2 that we see no reason to entertain the petition
In this view of the matter I agree with the con clusions reached by my learned brother Khalid J APJ Petition dismissed


Summary:
The petitioner who was employed as Deputy Chief Air Hostess in Air India flied this petition under Article 32 of the Constitution alleging that while the employees of Indian origin have to retire at 35 years with extension till 45 those of foreign origin can go beyond 45 years which is discriminatory and violative of Articles 14 and 15 of the Constitution
Accordingly prayer was made to quash the letter sent to her retiring her on 2821987 to declare Regulation 461c of the Service Regulations ultra vires to direct reconsideration of the decision in Air India vs Nargesh Meerza  and to declare that the petitioner will retire only on her attaining the age of 58 years
In the counter affidavit it was alleged that Air India has not fixed any higher retirement age for Air Hostesses who are recruited outside India that Air India has appoint ed a few Air Hostesses abroad who belong to different na tionalities and speak different European languages with a view to deal with passengers conversant only with 728 these languages that Air India has been encouraging its Indian Air Hostesses to learn European languages and in view of this position Air India is in the process of phasing out Air Hostesses of foreign origin that service conditions and terms of appointment of the Air Hostesses appointed abroad are different than the service conditions of Air Hostesses appointed in India and that no Air Hostess of foreign origin is promoted to the post of Deputy Chief Air Hostess Addi tional Chief Air Hostess or Chief Air Hostess
These promo tional avenues are available only to the Air Hostesses appointed in India
Dismissing the Petition HELD Per Khalid J 1
Identical questions were raised and considered at length by this Court in Air India vs Nargesh Meerza supra and that decision is binding
730A B 2
Air India s policy now is to phase out Air Hostesses recruited outside India and restore uniformity in their retirement age
731B C 3
The petitioner is an Air Hostess and does not belong to a separate class
The duties and functions of Deputy Chief Air Hostess includes operation service as a regular line Air Hostess and she will be required to perform the same functions as that of other Air Hostesses
731F 4
Air Hostesses who are recruited outside India are not entitled to the benefits of promotion to which India Air Hostesses are entitled
This should satisfy the petitioner in the instant case
731E Per Oza J 1
Air India being a Corporation is for all purposes State within the meaning of Article 12 of the Constitution of India and it cannot follow a foreign Corporation in treating Indians differently and discriminate against them
732B C Air India etc
vs Nargesh Meerza  Others etc
   referred to
Air India in order to avoid committing an offence abroad cannot disregard Article 14 of the Indian Constitu tion
An Indian citizen in such a situation should prefer to walk off from a State where he may 729 have to flout Indian Constitution to save himself from committing of an offence
Air India should abide by the requirements of Article 14 rather than anything else
732F G 3
It has been conceded that in view of section 64 of the United Kingdom Sex Discrimination Act 1975 it will not be a contravention of that law to have the same age of retirement for an Air Hostess recruited in UK as is provided for an Air Hostess recruited of Indian origin
733B C 4
In view of the policy of Air India that henceforth Air Hostesses recruited anywhere will be treated in the same manner as Air Hostesses recruited from India no interference is called for
733C D