Supreme Court of India

Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981

Equivalent citations: 1981 AIR 1829, 1982 SCR (1) 438, AIR 1981 SUPREME COURT 1829, 1981 LAB. I. C. 1313, (1981) 2 LAB LN 572, 1981 (4) SCC 335, (1981) 2 SERVLJ 349, 1981 SCC (L&S) 599, (1981) 2 LABLJ 314

Author:
Syed Murtaza Fazalali

Bench:
Syed Murtaza Fazalali
,
A. Varadarajan
,
A.P. Sen

PETITIONER:
AIR INDIA ETC. ETC.

Vs.

RESPONDENT:
NERGESH MEERZA & ORS. ETC. ETC.

DATE OF JUDGMENT28/08/1981

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
SEN, A.P. (J)

CITATION:
1981 AIR 1829 1982 SCR (1) 438
1981 SCC (4) 335 1981 SCALE (3)1275
CITATOR INFO :
F 1983 SC 130 (14)
RF 1987 SC1086 (29)
F 1987 SC1515 (2,3,10)
RF 1987 SC2354 (11)

ACT:
Constitution of India 1950,
Articles 14
and
, 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 excessive 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-
Whether permissible.

HEADNOTE:
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 Hostesses employed by Air India were governed by
Regulations 46 and 47 of Air India Employees Service
Regulations and the Air Hostesses employed by l.A.C. were
governed by the Indian Airlines Service, Regulation No. 12.
A.H. under A.I. was retired from 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 granting 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. was governed by similar service
conditions except that the age of retirement of permanent
AHs could be extended 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 members 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
selected for hostile discrimination 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 promotional
opportunities available to the male members of the cabin
crew.
The Management contested the petitions by contending:
(1) 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 swayed 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 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 by the Corporations to
make arrangements.
Partly allowing the petitions,
^
HELD: 1(i). The impugned provisions appear to be a
clear case of official arbitrariness. As the impugned part
of the regulation is severable from the 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
amended to bring it, in conformity with the provisions of

Art. 14
would continue to retire at the age of 45 years and
the Managing 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 violative of
Article
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 what
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 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. [457 A-B]
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 different scales of pay service terms, leave, etc.
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. 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 classes,
having a close nexus with the objects sought to be achieved

Art. 14
will be A completely out of the way. [463 B-D]
(3)
Art. 14
certainly applies where equals are treated
differently without any reasonable basis. [466 D]
(4) Where equals and unequals are treated differently

Art. 14
would have no application. [466 E]
(5) Even if there be one class of service 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 to be found in other classes, and the
like. [463 F-H, 464 A-B]
It is however difficult to lay 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 Assistant Station
Masters' Association and Ors. v, General Manager, Central
Railways and Ors. [1960] 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. Union of India 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, State 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.
5. A comparison of the mode of recruitment, the
classification, the promotional avenues and other matters
indicate that the AHs form an absolutely separate category
from AFPs in many respects having different service
conditions. 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]
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 should not be made only and only on the
ground of sex. These Articles do not prohibit the State from
making discrimination on the ground of sex coupled with
other considerations. [475 D]
Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy
Laljee [1954] SCR 930, Miss C.B. Muthamma v. U.O.I 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 discrimination 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 necessitate that
Alls should not marry within four years of the service
failing which their services will have to be terminated.
[480G.H,481A]
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 sacrosanct 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]
13. The rule could be suitably amended 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]
General Electric Company Martha v. Gilbbert, 50 L. Ed.
2d 343, State or West Bengal v. Anwar Ali Sarkar [1952] SCR
284, A.S. Krishna v. State of Madras [1957] SCR 399, Clevel
and Board of Education v. Jo Carol La Fleur 39 L Ed 2d
52, Sharron A. Frontiero v. Elliot L. Richardson, 36 Ed 2d
583; Mary Ann Turner v. Department of Employment Security,
46 L Ed 2d 181, City of Los Angles Department of Water and
Power v. Mary Manhart, 55 L Ed 2d 657, Bombay Labour Union
Representing the workmen of M/s. International Franchises
Pvt. Ltd. v. International Franchises Pvt. Ltd. [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. Whether the woman after bearing children would
continue in service or would find it difficult to look after
the children is her personal matter and a problem which
affects the AH concerned and the Corporation has nothing to
do with the same. These are circumstances which happen in
the normal course of business and cannot be helped. In these
circumstances, the reasons given for imposing the bar are
neither logical nor convincing. [489 C-E]
14. The factors to be considered must be relevant and
bear a close nexus to the nature of the organisation and the
duties of the employees. Where the authority concerned takes
into account factors or circumstances which are inherently
irrational or illogical or tainted, the decision fixing the
age of retirement is open to serious scrutiny. [492 E-F]
15. In the present times with advancing mechanical
technology it may not be very correct to say that a woman
loses her normal facilities 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 unhealthy a
constitution 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 AGs have been held to be a
separate class. [495 B-E]
16. The fixation of the age of retirement of AHs who
fall within 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
material to show some justification for keeping the age of
retirement at 35 years (extendable 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 appears to suffer from the vice of
excessive delegation of powers. A discretionary power may
not necessarily be a discriminatory power but where a
statute 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 and State of Mysore v. S.R. Jayaram
[1968] 1 SCR 349 referred to.
JUDGMENT:

ORIGINAL JURISDICTION; Transferred Case No. 3 of 1981
Arising out of Transfer Petition No. 313 of 1980,
Petition under
Article 139A(1)
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 28/1981.
(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. 1.

F.D. Damania, B.R. Agrawala, H.D. Patil and Miss Halida
Khatun for Respondent No. 3, B. Datta and R.K Kapur for
Respondent No. 4.

IN WP. No. 3045/80

D.P. Singh and L.R. Singh for the Petitioners, O.C.
Mathur and Shri Narain for Respondent No. 1.

IN W.P. No. 1107/80

Niranjan Alva and Narayan Nettar for the Petitioner,
G.B. Pai, O.C. Mathur and Shri Narain for Respondent No. 1
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. 1.
IN W.P. No. 1624-28 of 1981
S. Venkiteswaran and R.S. Sodhi for the Petitioner,
O.C. Mathur and Shri Narain for Respondent No. 1.

The Judgment of the Court was delivered by
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
common judgment. So far as Transferred Case No. 3/81 is
concerned, it arises out of writ petition No. 1186/1980
filed by Nergesh Meerza & ors. Respondent No. 1 (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 constitutional 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 "I.A.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 be 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:-

(1) Air India as "A.I."

(2) Indian Airlines Corporation as "I.A.C."
(3) Statutory regulations made under the Air India
Corporation Act of 1953 or the Indian Airlines
Corporation Act of 1953 would be referred to as
'A.I. Regulation' and 'I.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 1953 as '1953 Act.'
(7) Justice Khosla Award as 'Khosla Award' and Justice
Mahesh Chandra Award as 'Mahesh Award'.
(8) Assistant Flight Pursers as 'AFPs'
(9) Air Hostess as 'A.H.'.and.Air Hostesses a 'AHs'.
(10) Air India Cabin Crew. as 'A.I. Crew' and Indian
Airlines 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 of s. 3 of the 1953 Act, the Central
Government by a notification published in the official
Gazette created two Corporations 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
of the 1953 Act 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.
would be dealt with later wherever necessary.
Section 8

deals with the appointment of the officers and other
employees of the Corporations.
Sections 10
to
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 1953 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
Corporation 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
flights within the country. This fact alone, however, would
not make the two Corporations absolutely separate entities.
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 respect to A.I. was
referred to Justice Khosla and formed the basis of the
Khosla Award. Similarly, dispute between the I.A.C. and its
employees was referred to Justice Mahesh Chandra where A.I.
filed an application on behalf of the Air Corporation
Employees Union (ACEU). The aforesaid Union represented both
the A.T. and I.A.C. A prayer of the ACEU was allowed by the
Tribunal by its order dated 1.3.1971 (vide p. 1191 of the
Gazette of India-
Sec. 3(ii)
dated 25.3.72) for being
impleaded as a party to the Reference. As a result of the
allowing of the application of the ACEU the scope of the
Reference was widened to include the demands of I.A.C. &
A.I. This, therefore, clearly 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 Tribunals did not take any stand that they were
different entities having two separate individualities. The
initial 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-based recruitment and, therefore, a completely separate
and different category from the class of AFPs, in that,
their service conditions, the mode of recruitment, the
emoluments, the age of retirement of these two classes were
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
examine the respective contentions advanced before us by the
counsel for the parties. At the moment, we would like first
to complete the history 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, Addl. 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 presided over by Mr. Justice
G.D. Khosla
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 Khosla
Tribunal centered 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 found 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 raising
the age of retirement and in cases where the efficiency
of the employee is not impaired, there is suitable
provision
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 has now completely
changed as more than 15 years have passed and at present AI
employees as many as 737 AHs. However, the matter rested
there and the AHs seem to have lost their first battle
before the Khosla Tribunal.
Thereafter, it appears the same dispute arose between
the employees of I.A.C. which, as indicated above, had to be
referred to another Tribunal, viz. Mahesh Tribunal, before
whom a part of the dispute between several workmen was
settled but the dispute which was not settled including the
question of the age of retirement 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.l., 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 this connection, 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
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 she reaches the age
of 40 years. As for the retirement on Marriage, the Air
India'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 be the position upto the year 1972.
Subsequent events, however, show that both A.I. and I.A.C.
Iater realised that the Rules regarding the age of
retirement and termination of AHs
work serious injustice and made several amendments. We would
A 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 retire 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 1O.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 S 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 India on 12.4.1980 in Part Hl,
Section 4
, para 3
of the amended regulation 12 was further amended thus:

"An Air Hostess shall retire from services of the
Corporation 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."
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 supplemental to the
ACEU Settlement dated 1O.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:

(1) on attaining the age of 35 years;

(2) on marriage if it took place within 4 years of the
service, and
(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.

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 4() years, those of the A.I. AH could
be extended 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 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
interesting points of law which may to summarised as
follows:-

(1) 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
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 wholly 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 placed 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 completely 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 Employee's 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.

In answer to the contentions raised by Mr. Setalvad and
the counsel who followed him, Mr. Nariman appearing for A.l.
and Mr G.B. Pai for the l.A.C., adumbrated the following
propositions:-

(1) That having regard to the nature of job functions,
the mode of recruitment of AHs, their
qualifications,
their promotional avenues and the circumstances in
A 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 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 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 Government 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 period 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 by 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.
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 accept
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 by AFPs and AHs both the groups constitute
the same class or category of service under the Corporation
and hence any difference 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. ]4
of the
Constitution.

The counsel for the Corporation, however, countered the
arguments of the petitioners on two grounds :-

(1) That in view of the mode of recruitment,
qualifications, 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
land swayed by a number of other considerations
and not based on sex only.

In 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 hostile discrimination and not reasonable
classification. In other words, if equals and unequals are
differently treated, no discrimination at all occurs so as
to amount to an infraction of
Art. 14
of the Constitution. A
fortiori
if equals or persons similarly circumstanced are differently
treated, A discrimination results so as to attract the
provisions of
Art. 14.

In 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
(1)
Sastri, C.J. observed thus:

"Though the differing procedures might involve
disparity 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 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 circumstances 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 treatment does
not really arise as between persons governed by
different conditions and different sets of
circumstances."

Similar observations were made by Mukherjee, J. who
remarked 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."
The most apposite decision on the subject is the case
of All India Station Master's & Assistant Station Master's
Association & Ors. v. General Manager, Central Railways &
Ors.(l) where the law 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 periodical
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
recruitment, 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
members of different classes of employees under the
State ? In our opinion, the answer must be in the
negative."

The same view was reiterated by another decision of
this Court in
The General Manager, Southern Railway v.
Rangachari
(2) where Gajendragadkar, J. pointed out thus:
" Would it. for instance, be open to the State to
prescribe different scales of salary for the same or
similar posts, different terms of leave or
superannuation for the same or similar post ? 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 subsequent, 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 clause in Art. 16(4)."

(Emphasis ours)
In
State of Punjab v. Joginder Singh
(1) 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
the two remained as they started as two distinct
services. If they were distinct services. There was no
question of inter se seniority between members of the
two services 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 dissimilarly in
their treatment would not be a denial of equal
opportunity for it is common ground that within 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 tile 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 integration 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 by this Court in a later
case-Sham
Sunder v. Union of India
and ors.(l)-where it was
pointed out that
Art. 16(1)
would be attracted only if there
is a breach of equality between members of the same class of
employees and
Art. 14
did not contemplate equality between
members of separate or independent classes. In this
connection Bachawat, J. held thus:

"For purposes of promotion, all the enquiry-cum-
reservation clerks on the Northern Railway form one
separate unit. Between members of this class there is
no discrimination 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.
(2) where Shah. J. observed thus:
"
Article 14
of the Constitution ensures equality
among A equals; its aim is to protect persons similarly
placed against discriminatory treatment. It does not
however operate against rational classification. A
person setting up a grievance 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."

In a recent decision of this Court in
Ramesh Prasad
Singh v. State of Bihar and Ors.
(1) 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
of the Constitution cannot be carried beyond the
point which is well settled by a catena of decisions of
the Court."

Similarly, in
The State of Gujarat and Anr. v. Shri
Ambica Mills Ltd.
etc.. (Z) Mathew, J. speaking for the
Court pointed out that classification is inherent in
legislation and expounding the concept of equality contained
in
Art. 14
observed thus :-

"It may be remembered that
article 14
does not
require that every regulatory statute apply to all in
the same business; 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 to the phase of the problem which
seems most acute to the legislative mind."

... ... ... ...

"Classification is inherent in legislation. To
recognize marked differences that exist in fact is
living law: to disregard 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..
(3) it was clearly pointed out that
equality is
only for equals and even in cases of promotion
Art. 14

would apply only if promotional facility is denied to
equals within the same class. tn this connection,
Chandrachud, J. (as he then was) pithily observed thus
:-

"But the concept of equality has an inherent
limitation arising from 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 Raines (1) it was
held that one 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 unconstitutional. These
observations, in our opinion, furnish a complete answer
to the argument of the petitioners that
Article 14
is
violated in the instant ease.

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 eases of this Court starting from 1952 till today, the
following propositions emerge :-

(1) In considering the fundamental right of equality
of Opportunity a technical, pedantic or
doctrinaire app-
roach should not be made and the doctrine should
not A be invoked even if different scales of pay,
service terms, leave, etc., are introduced in
different or dissimilar posts.

Thus, where the class or categories of
service are essentially different in purport and
spirit,
Art. 14
can- 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 differently treated in public
interest to advance and boost members belonging to
backward classes, such a classification 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 applies where equals are treated
differently without any reasonable basis.
(4) Where equals and unequals are treated differently,

Art. 14
would have no application.

(5) Even if there be one class of service 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.

(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 to be found in
other classes, and the like.

It is difficult to lay 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
correctness of the first contention advanced by Mr. Atul
Setalvad and counsel for other petitioners and countered by
the Corporations.

A very large number of affidavits and documents have
been 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 as 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
recruitment 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:-

(1) SCC or its equivalent
(2) Minimum three years training experience in any
Airline or three years Diploma in Catering from a
recognised Institute or a Graduate.

(3) There is no requirement that AFP, should be
unmarried .

(4) The AFP has to appear for a written I.C. test.
As against these basic requirements for entry into
service for the class known as 'AFP', the requirements for
AHs are as follows:-

(1) SCC or its equivalent
(2) AH must be unmarried B
(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 of service. D
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. E
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 hierarchy is as follows:-

(1) 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 AFP. 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
of posts are 61. The next promotional avenue is the post of
Inflight Supervisor. The total posts are 69 and the Grade is
Rs. 1100-501600-60- 1780- 100- 1880
No. of Grade
Posts
(5) Dy. Manger 8 1400-50-1600-60-1780
100-1880
(6) Manager 7 1720-60-1780-100-2180
(7) Manager, Cabin 1 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 Inflight
Supervisor and 25 years to reach the post of Dy. Manager. As
against this, n the hierarchy of AH is as follows:-

No. of Grade
posts
1. AH 737
2. Check AH 72
3. Dy. Chief AH 3 1100-50-1600-60-1780-
100-1880
4. Addl. Chief AH 3 1400-50-1600-60-1780-
100-1980
5. Chief AH 1 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 :
"We do not see how any Flight Purser or Assistant
A 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 :-

"The Association also went into the grades of
different categories of cabin crew and found that while
the Deputy Chief Air Hostesses functioned on board the
flight only as Check Air Hostesses and/or Air Hostess
her grade was much higher than that of a Flight Purser
who was in a higher status or cadre and had supervisory
responsibilities. The management therefore was
approached by the association resulting in the said
agreement of 30.5.1977 which is already annexed hereto
and marked Exhibit V above by which the category of
Deputy Chief Air Hostesses was made redundant." k.
We are also unable to understand how the Management
could phase out a post available to the AHs exclusively at
the instant of Pursers when they had absolutely no concern
with this particular post nor had the Pursers any right to
persuade the Management to abolish a post which was not
meant for them. The AHs have rightly protested that the
Agreement to phase out the post was unilaterally taken by
the Management without even consulting the AHs although they
were the only ones who were most adversely affected by this
decision. In para 25 of the Affidavit at P. 58 of the same
volume a statement is made regarding the circumstances under
which the post of Dy. Chief AH was phased out, which is
extracted below:

"On May 30, 1977, as a result of discussions with
the Air-India Cabin Crew Association representing the
flight pursers, assistant night pursers and air
hostesses, it was decided that the category of Deputy
Chief Air Hostess would be phased out, i.e., as and
when the then existing
Deputy Chief Air Hostesses retired or resigned the
consequent vacancies would not be filled. At present
the promotional avenues for Air Hostesses are the post
of Additional Chief Air Hostess, Chief Air Hostess and
Deputy Manager Air Hostesses."

Unfortunately, however, as the decision was taken as
tar back as 1977 and no grievance was made by the AHs before
the High Court and as this is not a matter which is covered
by
Art. 32
of the Constitution, we are unable to give any
relief to the AHs on this score. We would, however, like to
observe that in view of the limited promotional channels
available to the AHs, the A.I. should seriously consider the
desirability of restoring the post of Dy. Chief AH and
thereby remove the serious injustice which has been done to
the AHs in violation of the principles of natural justice.

We have touched this aspect of the matter only
incidentally as it was mentioned in the Affidavit filed
before us and appeared to us to be of some consequence.

Thus, from a comparison of the mode of recruitment the
classification, the promotional avenues and other matters
which we have discussed above, we are satisfied that the AHs
from an absolutely separate category from that of AFPs in
many respects having different grades, different promotional
avenues and different service conditions. Finally it may
also be noted that 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. For instance, at
pages 68-69 of Vol. II of the Paperbook the following
averments may be specially noticed :-

"The benefits particularly the retirement benefits
for male cabin crew and female cabin crew in service
have been and are materially different and the
expectations raised on the basis of these benefits are
also viewed differently. Thus, for instance, an Air
Hostess, who is recruited between the age of 19 and 25
on a higher pay scale than that of an Assistant Flight
Purser and who retires after service of 10 years, is
entitled to the same quantum of free air passages,
which she was entitled to in the 10th year of her
service, for a continuous period of five years
thereafter. Similarly, an Air Hostess who has
completed IS years of service and retires thereafter is
entitled to free air passages
for a continuous period of 10 years thereafter on the
basis A of the total number of free air passages she
was entitled to in the IS years of her service. On the
other hand, Assistant Flight Pursers who are recruited
between the ages of 21 and 26 are entitled to
retirement benefit of free air passage only if they
voluntarily retire after 25 years of continuous service
or on attaining the age of superannuation, i.e., 58
years. If the retirement age of air hostess were
extended to 58 years, they would be subjected to the
same discipline and reaction of many of the existing
air hostesses in Air India is that the differentiation
in retirement ages between men and women is fair and
reasonable and to their advantage. In fact most of the
air hostesses are anxious to complete 10 years of
service and retire to become eligible for these
benefits."

These benefits are further explained in a chart given
in Ext. D which extracts the relevant portions of Air India
Employees Passage Regulations, 1960. The relevant portion of
the provisions may be extracted thus:

Category Scale of Period for
concession which conc-
ession
would be
admissible

------------------------------------------------------------

(a) Employees retiring one free passage Till the
on reaching the every year or two of the
age of 58 years or free passage every retired
55 years, as the alternate year and employee.

case may be, pro- not more than
vided they have two 90% rebated
rendered conti- passages every
nuous service for year.
a minimum period
of 20 years.

(b) Employees retiring Two free passage Till the
on reaching the every year and death of
age of 58 years or not more than the retired
55 years, as the two 90% rebated employee.

case may be, pro- passage every
vided they have year.
rendered continuous
service for a
minimum of 25 years.
(c) Employees permit- One free passage Till the
ted by Competent every year or death of
authority to retire two passage every the retired
voluntarily after alternate year employee.

completion of a and not more
continuous service than two 90%
of not less than rebated passages
25 years. every year.

(d) Air Hostesses reti- one free passage For a
ring after render- every year or period not
ing continuous two free passa- exceeding
service for a mini- ges every alter- five years
mum period of 10 nate year and from the
years, but less one 75% reba- or from
15 years. ted passage April 1,
every year or 1974,
two 75% rebated whichever
passages every is later.

alternative year.

(e) Instructress, Air one free passage For a
Hosstess/Lady every year or not
Receptionists two free passages exceeding

-retiring after every alternate ten years
rendering continu- year and one 75% from the
ous service for a rebated passage date of
minimum period of every year or two retirement
15 years. or two 75% rebated or from
passages every April 1,
alternate year. 1974
whichever
is later.

(f) Employees retiring
permanently due to -do- -do-
medical unfitness
provided that they
have retired after
rendering continu-
ous service for a
minimum period of
15 years.
Thus, although the AFPs also get retiral benefits which
continue upto their death yet they get these benefits only
after having put in 20 years of service or reaching the age
of superannuation which in their case is 55 or 58 years;
whereas; the AHs get almost the same concessions, though for
a lesser period, even after serving the Corporation for a
much shorter period. This is yet another distinctive feature
of the separate category of AHs.

Having regard, therefore, to the various circumstances,
incidents, service conditions, promotional avenues, etc. of
the AFPs and AHs, the inference is irresistible that AHs
though members of the cabin crew are an entirely separate
class governed by different set of rules, regulations and
conditions of service. Mr. Nariman submitted that job
functions performed by the AFPs and AHs being entirely
different, is also an important circumstance to prove that
AHs is a class completely separate from the class of AFPs.
We are, however, not impressed with this argument because a
perusal of the job functions which have been detailed in the
affidavit, clearly shows that the functions of the two,
though obviously different overlap on some points but the
difference, if any, is one of degree rather than of kind.
Moreover, being members of the crew in the same flight, the
two separate classes have to work as a team, helping and
assisting each other particularly in case of emergency. This
aspect of the matter was highlighted by the Mahesh Award
which observed thus:

"The management claims that there cannot be and
should not be, any inflexibility or rigidity regarding
the functions and duties of the different categories of
cabin crew and the Management should have full
authority and discretion as regards the
interchangeability of job allocations and functions and
duties of the different categories of cabin crew and
for effecting from time to time such interchanges of
job allocations and of functions and duties as it might
think fit.

... ... ...

There is not the slightest doubt that the Cabin Crew
have to work as a team as pointed out by Shri S.S. Hemmadi
(AMW-5). Although there are different duties fixed for
different categories, it is necessary for each category to
give help and do the work of other categories for the smooth
flight."

(vide pp. l 259-60 of the Mahesh Award)
We entirely agree with the observations made in the
Mahesh Award and, therefore, do not attach much importance
to this circumstance relied upon by the Corporation.

In the same token, an additional argument advanced by
Mr. Setalvad was that certain terms and conditions of AHs
were palpably discriminatory and violative of
Art. 14.
For
instance, under the Regulations concerned, AHs suffered from
three important disabilities-(I) their services were
terminated on first pregnancy, (2) they were not allowed to
marry within four years from the date of their entry into
service, and (3) the age of retirement of AHs was 35 years,
extendable to 45 years at the option of the Managing
Director, as against the retirement age of AFPs who retired
at the age of 55 or 58 years. There can be no doubt that
these peculiar conditions do form part of the Regulations
governing AHs but once we have held that AHs from a separate
category with different and separate incidents the
circumstances pointed out by the petitioners cannot amount
to discrimination so as to violate
Art. 14
of the
Constitution on this ground. There is no complaint by the
petitioners 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 A.I. in U.K. have different conditions of
service from AHs serving A.I. in countries other than U.K.
Doubtless this distinction is there but this is really a
fortuitous circumstance because A.I. was forced to comply
with the local laws of U.K. in order to increase the age of
retirement of AHs posted in England. Surely we cannot expect
A.I. to commit an offence by violating the laws of U.K. In
Navy, Army and Air Force Institutes v. Varely(1) the
variation between the hours of work by female employees in
Nottingham and the hours of work by male employees in London
was held to be valid and did not violate the principle of
Equality. Phillips, J.. made the following observations:

"An example which we gave the other day was of a
Case where all the conditions are satisfied for the
operation
of an equality clause-because, for instance, there is a
variation in that a woman is paid less-but it is found
on investigation that the employers can establish (and
the burden of proof, which is a heavy burden, is always
on them) that the reason the man is paid more than the
woman has nothing whatever to do with sex but is due to
the fact that the employers have in force a system
under which a long-service employee is paid more so the
variation there is due, not to a difference of sex, but
to that material difference. It is important to note
there that the women, if she remains sufficiently long
in the company's employ, will of course one day herself
qualify to receive a long-service increment.
It is common ground in this case that the
variation-that is to say, the difference in the hours
worked in London and those worked in Nottingham-is not
due to a difference of sex."

On a parity of reasoning in the instant case,
therefore, the violation of
Art. 14
is not due to any fault
of the Corporation which only seeks to abide by the local
laws of United Kingdom nor could it be said that the higher
retirement age was fixed for AHs posted in U.K. Only on the
ground of sex.

Coming now to the next limb of the argument of Mr.
Setalvad that even if there is no discrimination inter se
between AHs, the conditions referred to above are so
unreasonable and arbitrary that they violate
Art. 14
and
must, therefore, be struck down, we feel that the argument
merits serious consideration. Before, however, we deal with
the various aspects of this argument, we might mention an
important argument put forward by the Corporation that the
class of AHs is a sex-based recruitment and, therefore, any,
discrimination made in their service conditions has not been
made on the ground of sex only but due to a lot of other
considerations also. Mr. Setalvad tried to rebut this
argument by contending that the real discrimination is based
on the basis of sex which is sought to be smoke-screened by
giving a halo of circumstances other than sex. Both parties
placed reliance on the 1976 Act. It may be necessary to
examine the relevant section of the 1976 Act. Sub-sections
(I) and (3) s. 4 of the 1976 Act may be extracted thus:-

"4. (l) No employer shall pay to any worker,
employed
by him in an establishment or employment, remuneration,
whether payable in cash or in kind, at rates less
favourable than those at which remuneration is paid by
him to the works of the opposite sex in such
establishment or of a similar nature
... ... ... ...

(3) Where, in an establishment or employment, the
rates of remuneration payable before the commencement
of this Act for men and women workers for the same work
or work of a similar nature are different only on the
ground of sex, then the higher (in cases where there
are only two rates), or, as the case may be, the
highest (in cases where there are more than two rates),
of such rates shall be the rate at which remuneration
shall be payable, on and from such commencement. to
such men and women workers :"

There is no doubt that the statutory mandate prohibits
any employer from making a distinction in wages between male
and female. Had the matter rested here, there could have
been no option but to accept the argument of Mr. Setalvad.
It would, however, appear that the benefit conferred on the
females under the 1976 Act is not absolute and
unconditional.
Section 16
clearly authorises restrictions
regarding remuneration to be paid by the employer if a
declaration under it is made by the appropriate Government,
which may be extracted thus:

" 16. Where the appropriate Government is, on a
consideration of all the circumstances of the case,
satisfied that the differences in regard to the
remuneration, or a particular species of remuneration,
of men and women workers in any establishments or
employment is based on a factor other than sex, it may,
by notification, make a r declaration to that effect,
and any act of the employer attributable to such a
difference shall not be deemed to be a contravention of
any provision of this Act."

In the instant case, the Central Government has made a
declaration by virtue of a Notification dt. 15.6.79
published in the Gazette of India, Part II-
Section 3
, Sub-
section (ii) dated 30.6.79, which runs thus:-

"New Delhi, the I 5th June 1979.
S.C. 2258-ln exercise of the powers conferred by A

section 16
of the Equal Remuneration Act, 1976 25 of
1976) the Central Government having considered all the
circumstances relating to, and terms and conditions of
employment of Air Hostesses and Flight Stewards, are
satisfied that the difference in regard to pay, etc. Of
these categories of employees are based on different
conditions of service and not on the difference of sex.

The Central Government, therefore, declares that any
act of the employer attributable to such differences
shall not be declared to be in contravention of any of
the provisions of the Act."

Thus, the declaration is presumptive proof of the fact
that in the matter of allowances, conditions of service and
other types of remuneration, no discrimination has been made
on the ground of sex only. The declaration by the Central
Government, therefore, completely concludes the matter.

Even otherwise, what Articles IS (l) and 16 (2)
prohibit is that discrimination should not be made only and
only on the ground of sex. These Articles of the
Constitution do not prohibit the State from making
discrimination on the ground of sex coupled with other
considerations. On this point, the matter is no longer res
integra but is covered by several authorities of this Court.

In
Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy
Laljee
(l) sex was held to be a permissible classification.
While dealing with this aspect of the matter this Court
observed thus:-

Article 14
is general and must be read with the other
pro visions which set out the ambit of fundamental
rights. Sex is a sound classification and although
there can be no discrimination in general on that
ground, the Constitution itself provides for special
provisions in the case OF women and children. The two
articles read together validate the impugned clause in

section 497
of the Indian Penal Code."
The same view was taken by this Court in a later
decision in
Miss C.B. Muthamma v. U.O.I.
and ors.(2) where
Krishna Iyer, J. speaking for the Court made the following
observations:

"We do not mean to universalise or dogmatise that
men and women are equal in all occupations and all
situations and do not exclude the need to pragmatise
where the requirements of particular employment, the
sensitivities of . sex or the peculiarities of societal
sectors or the handicaps of either sex may compel
selectivity. But save where the differentiation is
demonstrable, the rule of equality must govern."

For these reasons, therefore, the argument of Mr.
Setalvad that the conditions of service with regard to
retirement, etc., amount to discrimination on the ground of
sex only is overruled and it is held that the conditions of
service indicated above are not violative of
Art. 16
on this
ground.

This brings us now to the next limb of the argument of
Mr. Setalvad which pertains to the question as to whether
and not the conditions imposed on the AHs regarding their
retirement and termination are manifestly unreasonable or
absolutely arbitrary. We might mention here that even though
the conditions mentioned above may not be violative of
Art.
on the ground of discrimination but if it is proved to
our satisfaction that the conditions laid down are entirely
unreasonable and absolutely arbitrary, then the provisions
will have to be struck down.

This argument was sought to be rebutted by Mr. Nariman
on the ground that the conditions mentioned above formed the
subject matter of the two Awards which have upheld the
conditions to be valid. It was also contended that even
though the period of the Award has expired, they continue to
be binding on the parties and as these matters pertain to
industrial dispute, this Court should not disturb the
settlement arrived at or the Awards given by the National
Tribunals and allow the disputes to be settled in the proper
forum, viz., Industrial courts. To buttress this argument,
reliance was placed on certain observations in the two
Awards as also some authorities.

In this connection, while dealing with this particular
demand of the AHs, the Khosla Award observed thus:

"256. 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.

... ... ... ...

260. In my view, no case has been made out for
raising the age of retirement and in cases where the
efficiency of the employee is not impaired, there is
suitable provision 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...."

Similar demands were made before the Mahesh Tribunal
which have been extracted earlier. The observations of the
Mahesh Tribunal may be extracted as follows:-

"There is no reason to have a different provision
regarding the air hostesses in Air India. The social
conditions in Europe and elsewhere are different from
the social conditions in India. The work of an air
hostess involves running hither and thither and flying
at the same time. In case of an air hostess, her
appearance, glamour an weight are important. The
working hours are also odd. She has to walk up and down
the aisles and has to be away from home for a number of
days at a time. All this will not suit an Indian
married woman and also places the category of an air
hostess on an entirely different level from all those
employed in a pharmaceutical concern. The work of an
air hostess is more arduous. lt seems, however,
reasonable that the present practice of restricting the
extension beyond 30 years to one year at a time need
not be a part of the rules. The rule regarding
extension of service in the settlement between the ACEU
and the Indian Airlines of January 10, 1972 is better
worded and i; should be adopted by the Air India also
in its entirety. rt enables the General Manager to give
extension for periods longer than one year at a time,
if he considers it proper. The bar of retirement on
marriage should remain."
With due respect to Justice Khosla, we find ourselves
unable to agree with most of the observations that he has
made and we shall give detailed reasons for the same a
little later when we deal with the validity of the impugned
regulations.

It is true that even though the period of the Awards
may have expired yet it continues to be binding on the
parties as an agreement.
In
South Indian Bank Ltd. v. A.R.
Chacko
(l) it was held that even if the Award has ceased to
be operative, it would continue to be binding on the parties
as a contract. In this connection, Das Gupta, J. made the
following observations:-

"Quite apart from this, however, it appears to us
that even if an award has ceased to be in operation or
in force and has ceased to be binding on the parties
under the provisions of s. 19 (6) it will continue to
have its effect as a contract between the parties that
has been made by industrial adjudication in place of
the old contract."

The same view was taken in
Md. Qasim Larry, Factory
Manager, Sasamusa Sugar Works v. Muhammad Samsuddin and
Anr.
(2) and reiterated in
Life Insurance Corporation of
India v. D.J. Bahadur and Ors.
(3) where the following
observations were made:-

"It is obvious from
Section 18
that a settlement,
like an award, is also binding. What I emphasise is
that an award, adjudicatory or arbitral, and a
settlement during conciliation or by agreement shall be
binding because of statutory sanction.
Section 19

relates to the period of operation of settlements and
awards and here also it is clear that both settlements
and awards, as is evident from a reading of
Section 19
(2)
and (6), stand on the same footing.

... ... ... ...

The power of reasoning, t he purpose of industrial
jurisprudence and the logic of the law presented with
terse force in this pronouncement cannot be missed. The
new contract
which is created by an award continues to govern the
relations between the parties till it is displaced by
another contract."

... ... ... ...

The law is lucid and the justice manifest on
termination notice or notice of change the award or
settlement does not perish but survives to bind until
reincarnation, in any modified form, in a fresh
regulation of conditions of service by a settlement or
award."

In view of the authorities indicated above assuming
that the two awards are binding on the petitioners, the
serious question for consideration is whether the agreement,
which may be binding on the parties, would estop them from
challenging the Regulations on the ground that the same are
void as being violative of
Articles 14
or 19 of the
Constitution. It is well settled that there can be no
estoppel against a statute much less against constitutional
provisions. If, therefore, we hold in agreement with the
argument of the petitioners that the provisions for
termination and retirement are violative of
Art. 14
as being
unreasonable and arbitrary, the Awards or the agreements
confirmed by the Awards would be of no assistance to the
Corporations.

We now proceed to determine the constitutional validity
of the impugned Regulations. Taking the case of A.I. AHs. it
would appear that their conditions of service are governed
by Regulations 46 and 47, the relevant portions of which are
extracted below:

"46. Retiring Age:

(i) Subject to the provision 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."

A perusal of the Regulations shows that the normal age
of retirement of an AH is 35 years or on marriage, if it
takes place within four years of service, or on first
pregnancy whichever occurs earlier. Leaving the age of
retirement for the time being, let us examine the
constitutional validity of the other two conditions, viz.,
termination if marriage takes place within four years or on
first pregnancy So far as the question of marriage within
four years is concerned, we do not think that the provisions
suffer from any constitutional infirmity. According to the
regulations an AH starts her career between the age of 19 to
26 years. Most of the AHs are not only SSC which is the
minimum qualification but possess even higher qualifications
and there are very few who decide to marry immediately after
entering the service. Thus, the Regulation permits an AH to
marry at the age of 23 if she has joined the service at the
age of 19 which is by all standards a very sound and
salutary provision. Apart from improving the health of the
employee, it helps a good in the promotion and boosing up of
our family planning programme. Secondly, if a woman marries
near about the age of 20 to 23 years, she becomes fully
mature and there is every chance of such a marriage proving
a success, all things being equal. Thirdly, it has been
rightly pointed out to us by the Corporation that if the bar
of marriage within four years of service is removed then the
Corporation will have to incur huge expenditure in
recruiting additional AHs either on a temporary or on ad hoc
basis to replace the working AHs if they conceive and any
period short of four years would be too little a time for
the Corporation to phase out such an ambitious plan.

Having regard to these circumstances, we are unable to
find any unreasonableness or arbitrariness in the provisions
of . the Regulations which necessitate that the AHs should
not marry within four years of the service failing which
their services will have to be
terminated. Mr. Setalvad submitted that such a bar on
marriage is an outrage on the dignity of the fair sex and is
per se unreasonable. Though the argument of Mr. Setalvad is
extremely attractive but having taken into consideration an
overall picture of the situat;on and the difficulties of
both the parties, we are unable to find any constitutional
infirmity or any element of arbitrariness in the aforesaid
provisions. The argument of Mr. Setalvad as also those who
followed him on this point is, therefore, overruled.

Coming now to the second limb of the provisions
according to which the services of AHs would stand
terminated on first pregnancy, we find ourselves in complete
agreement with the argument of Mr. Setalvad that this is a
most unreasonable and arbitrary provision which shocks the
conscience of the Court. The Regulation does not prohibit
marriage after four years and if an AH after having
fulfilled the first condition becomes pregnant, there is no
reason why pregnancy should stand in the way of her
continuing in service. The Corporations represented to us
that pregnancy leads to a number of complications and to
medical disabilities which may stand in the efflcient
discharge of the duties by the AHs. It was said that even in
the early stage of pregnancy some ladies are prone to get
sick due to air pressure, nausea in long flights and such
other technical factors. This, however, appears to be purely
an artificial argument because once a married woman is
allowed to continue in service then under the provisions of
the
Maternity Benefit Act, 1961
and The Maharashtra
Maternity Rules, 1965 (these apply to both the Corporations
as their Head offices are at Bombay), she is entitled to
certain benefits including maternity leave. In case,
however, the Corporations feel that pregnancy from the very
beginning may come in the way of the discharge of the duties
by some of the AHs, they could be given maternity leave for
a period of 14 to 16 months and in the meanwhile there could
be no difflculty in the Management making arrangements on a
temporary or ad hoc basis by employing additional AHs. We
are also unable to understand the argument of the
Corporation that a woman after bearing children becomes weak
in physique or in her constitution. There is neither any
legal nor medical authority for this bald proposition.
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. It seems to us that 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 sacrosanct and cherised institution. We are
constrained to observe that such a course of action is
extremely detestable and adhorrent 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 vahles. Such a provision, therefore, is
not only manifestly unreasonable and arbitrary but contains
the quality of unfairness and exhibits naked despotism and
is, therefore, clearly violative of
Art. 14
of the
Constitution. In fact, as a very fair and conscienticus
counsel Mr. Nariman realised the inherent weakness and the
apparent absurdity of the aforesaid impugned provisions and
in the course of his arguments he stated that he had been
able to persuade the Management to amendthe Rules so as to
delete 'first pregnancy' as a ground for termination of the
service and would see that suitable amendments are made to
Regulation 46 (i) (c) in the following manner:

"(a) Regulation 46 (i) (c) will be amended so as to
substitute for the words "or a first pregnancy",
the words "or on a third pregoancy".

(b) There will be a suitably framed Regulation to
provide for the above and for the following:

(i) An air hostess having reason to believe that
she is pregnant will intimate this to Air
India and will also elect in writing within a
reasonable time whether or not to continue in
service.

(ii) If such air hostess elects to continue in
service on pregnancy, she shall take leave
from service for a period not later than that
commencing from 90 days after conception and
will be entitled to resume service only after
confinement (or premature termination of
pregnancy) and after she is certified by the
Medical officer of AIR INDIA as being fit for
resuming her duties as an air hostess after
delivery or confinement or prior termination
of pregnancy. The said entire period will be
treated as leave without pay subject to the
air hostess being entitled to maternity leave
with pay
as in the case of other female employees and
privilege leave under the Regulations.

(iii)Every such air hostess will submit to an
annual medical examination by the Medical
Officer of AIR INDIA for certification of
continued physical fitness or such other
specifications of health and physical
condition as may be prescribed by AIR INDIA
in this behalf in the interest of maintenance
of efficiency.

(iv) It will be clarified that the provisions
relating to continuance in service on
pregnancy will only be available to married
women-an unmarried woman on first pregnancy
will have to retire from service."

The proposed amendment seems to us to be quite
reasonable but the decision of this case cannot await the
amendment which may or may not be made. We would therefore,
have to give our decision regarding the constitutional
validity of the said provision. Moreover, clause (b) (iv)
above, which is the proposed amendment, also suffers from
the infirmity that if an unmarried woman conceives then her
service would be terminated on first pregnancy. This
provision also appears to us to be wholly unreasonable
because apart from being revolting to all sacred human
values, it fails to take into consideration cases where a
woman becomes a victim of rape or other circumstances
resulting in pregnancy by force or fraud for reasons beyond
the control of the woman and having gone through such a
harrowing experience she has to face tennination of service
for no fault of hers. Furthermore, the distinction of first
pregnancy of a married woman and that of an unmarried woman
does not have any reasonable or rational basis and cannot be
supported.

In General Electric Company v. Martha V. Gilbert
although the majority of the Judges of the U.S. Supreme
Court were of the opinion that exclusion of pregnancy did
not constitute any sex discrimination in violation of Title
VII nor did it amount to gender based discrimination; three
judges, namely Brennan, Marshall and Stevens, JJ. dissented
from this view and held that the pregnancy disability
exlusion amounted to downgrading women's role in labour
force. The counsel for the Corporation relied on the
majority judgments of Rehnquist, Burger, Stewart, White and
Powell, JJ. while the petitioners relied strongly on the
dissenting opinion. We are inclined to accept the dissenting
opinion which seems to take a more reasonable and rational
view. Brennan, J. with whom Marshall, J. agreed, observed as
follows:

"(1) the record as to the history of the
employer's practices showed that the pregnancy
disability exclusion stemmed from a policy that
purposefully downgraded women's role in the labour
force, rather than from gender neutral risk assignment
considerations.

Stevens, J, while endorsing the view of Brennan, J.
Observed thus :-

"The case presented only a question of statutory
construction, and (2) the employers rule placed the
risk of absence caused by pregnancy in a class by
itself, thus violating the statute as discriminating on
the basis of sex, since it was the capacity to become
pregnant which primarily differentiated the female from
the male."

In the instant case, if the Corporation has permitted
the AHs to marry after the expiry of four years then the
decision to terminate the services on first pregnancy seems
to be wholly inconsistent and incongruous with the
concession given to the AHs by allowing them to marry.
Moreover, the provision itself is so out rageous that it
makes a mockery of doing justice to the AHs on the
imaginative plea that pregnancy will result in a number of
complications which can easily be avoided as pointed out by
us earlier. Mr. Setalvad cited a number of decisions of the
U.S. Supreme Court on the question of sex but most of these
decisions may not be relevant because they are on the
question of denial of equality of opportunity. In view of
our finding, however, that AHs form a separate class from
the category consisting of AFPs, these authorities would
have no application particularly in view of the fact that
there is some difference between
Articles 14
, 15
and
of
our Constitution and the due-process-clause and the 14th
Amendment of the American Constitution. This Court has held
that the provisions of the American Constitution cannot
always be applied to Indian conditions or to the provisions
of our Constitution. While some of the principles adumbrated
by the American
decisions may provide a useful guide yet this Court did not
favour a close adherence to those principles while applying
the same to the provisions of our Constitution, because the
social conditions in this country are different.
In this
connection in the
Stare of West Bengal v. Anwar Ali Sarkar,
Mukherjea, J
, observed thus:-

"A number of American decisions have been cited
before us on behalf of both parties in course of the
arguments; and while a too rigid adherenee to the views
expressed by the Judges of the Supreme Court of America
while dealing with the equal protection clause in their
oWQ Constitution may not be necessary or desirable for
the purpose of determing the true meaning and scope of

article 14
of the Indian Constitution, it cannot be
denied that the general principle enunciated in many of
these cases do afford considerable help and guidance in
the matter."

Same view was taken in a later decision of this Court
in
A.S. Krishna v. State of Madras
where it was held that
the due process clause in the American Constitution could
not apply to our Constitution. In this connection
Venkatarama Ayyar, J. Observed thus:-

"The law would thus appear to be based on the due
process clause, and it is extremely doubtful whether it
can have application under our Constitution."

At any rate, we shall refer only to those authorities
which deal with pregnancy as amounting to per se
discriminatory or arbitrary. In Clevel and Board of
Education v. Jo Caro1 La Flour the U.S. Supreme Court made
the following observations:-

"As long as the teachers are required to give
substantial advance notice of their condition, the
choice of firm dates later in pregnancy would serve the
boards objectives just as well, while imposing a far
lesser burdern on the women's exercise of
constitutionally protected freedom.

... ... ... ...
While it might be easier for the school boards to
conclusively presume that all pregnant women are unfit
to teach past the fourth or firth month or even the
first month, of pregnancy, administrative convenience
alone is insufficient to make valid what otherwise is a
violation of due process of law. The Fourleenth
Amendmeat requires the school boards to employ
alternative administrative means, which do not so
broadly infringe upon basic contitutional liberty, in
support of their legitimate goals.....
While the regulations no doubt represent a good
faith attempt to acllieve a laudable goal, they cannnot
pass muster under the Due Process Clause of the
Fourteenth Amendment, because they employ irrebuttable
presumptions that unduly penalize a female teacher for
deciding to bear a child."

The observations made by the U.S. Supreme Court
regarding the teachers fully apply to the case of the
pregnant AHs. In Sharron A. Frontiero v. L. Filliot L.
Richaradson the following observations were made:

"Moreover, since sex, like race and national
origin, is an immutable characteristic determined
solely by the accident of birth, the imposition of
special disabilities upon the members of a particular
sex because of their sex would seem to violate "the
basic concept of our system that legal burdens should
bear some relationship to individual responsibility."

What is said about the fair sex by Judges fully applies
to a pregnant woman because pregnancy also is not a
disability but one of the nlatural consequences of marriage
and is an immutable charaeteristic of married life. Any
distinction therefore, made on the ground of pregnancy
cannot but be held to be extremely arbitrary.

ln Mary Ann Turner v. Department of Employment Security
the U.S. Supreme Court severely criticised the maternity
leave rules which required a teacher to quit her job several
months before the expected child. In this connection the
court observed as follows:
"The Court held that a school board's mandatory
maternity leave rule which required a teacher to quit
her job several months before the expected birth of her
child and prohibited her return to work until three
months after child birth violated the Fourteenth
Amendment...the Constitution required a more
individualized approach to the question of the
teacher's physical capacity to continue her employment
during pregnancy and resume her duties after childbirth
since "the ability of any particular pregnant women to
continue at work past any fixed time in her pregnancy
is very much an individual matter.

It cannot be doubted that a substantial number of
women are fully capable of working well into their last
trimester of pregnancy and of resuming employment
shortly after childbirth.

We conclude that the Utah unemployment
compensation statute's incorporation of a conclusive
presumption of incapacity during so long a period
before and after childbirth is constitutionally invalid
under the principles of the La Fleur case "

We fully endorse the observations made by the U.S.
Supreme Court which, in our opinion, aptly apply to the
facts of the present case. By making pregnancy a bar to
continuance in service of an AH the Corporation seems to
have made an individualised approach to a women's physical
capacity to continue her employment even after pregnancy
which undoubtedly is a most unreasonable approach.

Similarly, very pregnant observations were made by the
U.S. Supreme Court in City of Los Angeles, Department of
Water and Power v. Marie Manhar thus:

"It is now well recognized that employment
decisions cannot be predicated on mere 'stereotyped'
impressions about the characteristics of males or
females. Myths and purely habitual assumptions about a
woman's inability to perform certain kinds of work are
no longer acceptable reasons for refusing to employ
qualified individuals, or for paying them less....The
question, therefore, is whether the existence or non-
existence of "discrimination" is to be deter-
mined by comparison of class characteristics or
individual charcteristics. A 'stereotyped' answer to
that question may not be the same as the answer that
the language and purpose of the statute command.

... ... ... ...

Even if the statutory language were less clear,
the basic policy of the statute requires that we focus
on fairness to individuals rather than fairness to
classes. Practices that classify employees in terms of
religion, race, or sex tend to preserve traditional
assumptions about groups rather than thoughtful
scrutiny of individuals."

These observations also apply to the bar contained in
the impugned regulation against continuance of service after
pregnancy. In Bombay Labour Union Representing the Workmen
of M/s. Inter national Pranchises Pvl. Ltd., v. M/s.
International Pranchises Pvt. Ltd. this Court while dealing
with a rule barring married women from working in a
particular concern expressed views almost similar to the
views taken by the U.S. Supreme Court in the decisions
referred to above in that case a particular rule required
that unmarried women were to give up service on marriage-a
rule which existed in the Regulations of the Corporation
also but appears to have been deleted now. In criticising
the validity of this rule this Court observed as follows :-

"We are not impressed by these reasons for
retaining a rule of this kind. Nor do we think that
because the work has to be done as a team it cannot be
done by married women. We also feel that there is
nothing to show that married women would necessarily be
more likely to be absent than unmarried women or
widows. If it is the presence of children which may be
said to account for greater absenteeism among married
women, that would be so more or less in the case of
widows with children also. The fact that the work
has got to be done as a team and presence of all those
workmen is necessary, is in our opinion no
disqualification so far as married women are concerned.
It cannot be disputed that even unmarried
women or widows are entitled to such leave as the
respondent's rules provide and they would be availing
themselves of these leave facilities."

These observations apply with equal force to the bar of
pregnancy contained in the impugned Regulation.

It was suggested by one of the Corporations that after
a woman becomes pregnant and bears children there may be lot
of difficulties in her resuming service, the reason being
that her husband may not permit her to work as an AH. These
reasons, however do not appeal to us because such
circumstances can also exist even without pregnancy in the
case of a married woman and if a married woman leaves the
job, the Corporation will have to make arrangements for a
substitute. Moreover, whether the woman after bearing
children would continue in service or would find it
difficult to look after the children is her personal matter
and a problem which affects the AH concerned and the
Corporation has nothing to do with the same. These are
circumstances which happen in the normal course of business
and cannot be helped. Suppose an AH dies or becomes
incapacitated, it is manifest that the Corporation will have
to make alternative arrangements for her substitute. In
these circumstances, therefore, we are satisfied that the
reasons given for imposing the bar are neither logical nor
convincing.

In view of our recent decision explaining the scope of

Art. 14
, it has been held that any arbitrary or unreasonable
action or provision made by the State cannot be upheld.
In
M/s.
Dwarka Prasad Laxmi Naraian v. The State of Uttar
Pradesh & Ors.
this Court made the following observations:-

"Legislation, which arbitrarily or excessively
invades the right, cannot be said to contain the
quality of reasonableness, and unless it strikes a
proper balance between the freedom guaranteed under

article 19 (1) (g)
and the social control permitted by
clause (6) of
article 19
, it must be held to be wanting
in reasonableness."

In Maneka Gandhi v. Union of India, Beg, C.J. Observed
as follows:
"The view I have taken above proceeds on the
assumption that there are inherent or natural human
rights of the individual recognised by and embodied in
our Constitution.. If either the reason sanctioned by
the law is absent, or the procedure followed in
arriving at the conclusion that such a reason exists is
unreasonable, the order having the effect of
deprivation or restriction must be quashed."

and Bhagwati, J. Observed thus:

"Equality is a dynamic concept with many aspects
and dimensions and it cannot be imprisoned within
traditional and doctrinaire limits..
Article 14
strikes
at arbitariness in State action and ensures fairness
and equality of treatment. The principle of
reasonableness, which legally as well as
philosophically, is an essential element of equality or
non-arbitrariness pervades
Article 14
like a brooding
omnipresence.. It must be "right and just and fair" and
not arbitrary, fanciful or oppressive; otherwise, it
would be no procedure at all and the requirement of

Article 21
would not be satisfied."

In an earlier case in
E.P. Royappa v. State of Tamil
Nadu and Anr. Similar
observations were made by this Court
thus:

"In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic,
while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in
it that it is unequal both according to political logic
and constitutional law and is therefore violative of

Article 14."

In
State of Andhra Pradesh and Anr. v. Nalla Raja Reddy
and Ors.
this Court made the following observations:

"Official arbitrariness is more subversive of the
doctrine of equality than statutory discrirnination. In
respect of a statutory discrimination one knows where
he stands, but the wand of official arbitrariness can
be waved in all directions indiscriminately."
The impugned provisions appear to us to be a clear case
of official arbitrariness. As the impugned part of the
regulation is severable from the rest of the regulation, it
is not necessary for us to strike down the entire
Regulation.

For the reasons given above, we strike down the last
portion of regulation 46 (i) (c) and hold that the provision
'or on first pregnancy whichever occurs earlier' is
unconstitutional, void and is violative of
Art. 14
of the
Constitution and will, therefore, stand deleted. It will,
however, be open to the Corporation to make suitable
amendments in the light of our observations and on the lines
indicated by Mr. Nariman in the form of draft proposals
referred to earlier so as to soften the rigours of the
provisions and make it just and reasonable. For instance,
the rule could be suitably amended 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, as
indicated above while dealing with the rule regarding
prohibition of marriage within four years, same
considerations would apply to a bar of third pregnancy where
two children are already there because when the entire world
is faced with the problem of population explosion 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 so as to
meet the danger of over population which, if not controlled,
may lead to serious social and economic problems throughout
the world. The next provision which has been the subject
matter of serious controversy between the parties, is the
one contained in regulation 46 (i) (c). According to this
provision, the normal age of retirement of an AH is 35 years
which may at the option of the Managing Director be extended
to 45 years subject to other conditions being satisfied. A
similar regulation is to be found in the Rules made by the
l.A.C. to which we shall refer hereafter. The question of
fixation of retirement age of an AH is to be decided by the
authorities concerned after taking into consideration
various factors such as the nature of the work, the
prevailing conditions, the practice prevalent in other
establishments and the like.
In
Imperial Chemical Industries
(India) Pvt. Ltd. v. The Workmen
(1)
this Court pointed out that in fixing the age of retirement,
changing the terms and conditions of service, the
determination of the age on industry-cum-region basis would
undoubtedly be a relevant factor. In this connection,
Gajendragadkar, J. made the following further observations:

"There is no doubt that in fixing the age of
retirement no hard and fast rule can be laid down. The
decision on the question would always depend on a
proper assessment of the relevant factors and may
conceivably vary from case
Similarly, in an earlier case in
Guest, Keen, Williams
Pvt. Ltd. v. P. J. Sterling and Ors.
(1) this Court made the
following observations:

"In fixing the age of superannuation industrial
tribunals have to take into account several relevant
factors. What is the nature of the work assigned to the
employees in the course of their employment.. What is
generally the practice prevailing in the industry in
the past in the matter of retiring its employees '?
These and other relevant facts have to be weighed by
the tribunal in every case when it is called upon to
fix an age of superannuation in an industrial dispute.'
It is, therefore, manifest that the factors to be
considered must be relevant and bear a close nexus to the
nature of the organisation and the duties of the employees.
Where the authority concerned takes into account factors or
circumstances which are inherently irrational or illogical
or tainted, the decision fixing the age of retirement is
open to serious scrutiny.

The stand taken by A.l. regarding this particular
provision is that there are several reasons which prompted
the Management to persuade the Government to make this
Regulation. In the first place, it was contended that in
view of the arduous and strenuous work that the AHs have to
put in an early date of retirement is in the best interest
of their efficiency and also in the interest of their
health. Another reason advanced by A.l. is that several
years experience of the working of AHs shows
that quite a large number of them retire even before they A
reach the age of 35; hence a lower age for retirement is
fixed in their case under the Regulation with a provision
for extension in suitable cases. These reasons are no doubt
understandable and prima facie appear to be somewhat sound.
We are, however, not quite sure if the premises on the basis
of which these arguments have been put forward are really
correct. In the present times with advancing medical
technology it may not 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 unhealthy a
constitution 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. As, however, the distinction regarding
the age of retirement made by the Regulation between AHs and
AFPs cannot be said to be discriminatory because AHs have
been held by us to be a separate class yet we will have to
examine the provision from other points of view as well.
Another line of reasoning which has been placed before us
and which smacks of a most perverse and morbid approach is
to be found in para 9 of the counter-affidavit in vol. II of
the Paperbook where the following averments have been made:-
"With reference to paragraph 30 of the Affidavit,
I repeat that Air Hostesses are recruited for providing
attractive and pleasing service to passengers in a
highly competitive field and consequently stress is
laid on their appearance, youth, glamour and charm."

We are rather surprised that similar arguments made
before the two Tribunals seem to have found favour with them
because at page 204 (para 256) the Khosla Award having been
carried away by the arguments of the Corporation made the
following observations:

"They have to deal with passengers of various tem-
peraments, 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 prepossession."
We fail to see how a young and attractive AH would be
able to cope with difficult or awkward situations more
effectively than others because smartness or beauty cannot
be the only hallmark of competency. Similar observations
were made by the Mahesh Tribunal in the following terms.

"The management claims this on the ground that the
cabin crew service has to be attractive to passengers."

The argument that AHs should be young and attractive
and should possess pleasing manners seems to suggest that
AHs should by their sweet smiles and pleasant behaviour
entertain and look after the passengers which cannot be done
by women of older age. This argument seems to us to be based
on pure speculation and an artificial understanding of the
qualities of the fair sex and, if we may say so, it amounts
to an open insult to the institution of our sacred
womanhood. Such a morbid approach is totally against our
ancient culture and heritage as a woman in our country
occupies a very high and respected position in the society
as a mother, a wife, a companion and a social worker. It is
idle to contend that young women with pleasing manners
should be employed so as to act as show pieces in order to
cater to the varied tastes of the passengers when in fact
older women with greater experience and goodwill can look
after the comforts of the passengers much better than a
young woman can. Even if the Corporation had been swayed or
governed by these considerations, it must immediately banish
or efface the same from its approach. More particularly such
observations coming from a prestigious Corporation like A.I.
appear to be in bad taste and is proof positive of
denigration of the role of women and a demonstration of male
chauvinism and verily involves nay discloses an element of
unfavourable bias against the fair sex which is palpably
unreasonable and smacks of pure official arbitrariness. The
observations of Sastri, C. J. in
Kathi Raning Rawat
's case
(supra) may be extracted thus:

"All legislative differentiation is not
necessarily discriminatory.. Discrimination this
involves an element of unfavourable bias .. If such
bias is disclosed.. it may well be that the statute
will, without more, incur condemnation as violating a
specific constitutional prohibition."

At any rate, it is not possible for us to entertain
such an argument which must be rejected outright. In fact,
there is no
substantial and weighty reason for upholding the impugned
provisions and this part of the line of reasoning adopted by
the respondent-Corporations cannot be countenanced.

In the same token it was contended by the counsel for
the petitioners that whereas the retirement age in a number
of other international airlines is 50 to 55 years, there is
no reasonable basis for keeping the retirement age of A.l.
AHs at 35, extendable to 45 years. In proof of this argument
a chart was submitted before us of the various international
airlines to show that the age of retirement of AHs of those
airlines was much more than those of AHs employed by A.I.
In the first place, it is difficult to agree that the
service conditions which apply to foreign airlines, should
protanto apply to the employees of A.I. because the
conditions of service including the age of retirement depend
on various geographical and economic factors. Sometimes a
small country may be rich enough or in view of limited
number of flights or small population, it can afford to keep
the AHs in service for a longer time. Local influences,
social conditions and legal or political pressures may
account for the terms and conditions to be fixed in the case
of the AHs employed by international airlines other than
A.I. In view of these diverse factors, it is not possible to
easily infer unfavourable treatment to the petitioners
because certain more favourable conditions of service are
offered by international airlines of other countries. For
instance, the retirement age of AHs in KLM (Royal Dutch) and
Ghana airlines is 50 years whereas in the case of Swiss
airlines it is 57 and in the case of Malaysian airlines it
is 45 years. In the case of Singapore airlines the
retirement age of Check stewardess is 45 years. Similarly,
in other airlines like Austrian, Germanair, Lufthansa and
Nigeria Airways the retirement age of female AHs is SS
whereas in the case of Air International, U.T.A. (France)
and Air France it is SO. In case of Sudan Airways and
British Airways the retirement age is 60 whereas in Nordair
(Canada) and Transair (Canada) airlines the age is 65 years.

A perusal of the scheme of retirement age given above
would clearly show that several considerations weigh with
the Governments or Corporations concerned in fixing the
retirement age which would naturally differ from country to
country having regard to the various factors mentioned
above. In fact, a similar grievance seems to have been made
before the Mahesh Tribunal which also pointed
out that the social conditions in Europe and other countries
being different, the same rules could not apply to A.I. In
this connection, the Tribunal observed thus:

"There is no reason to have a different provision
regarding the air hostesses in Air India. The social
conditions in Europe and elsewhere are different from
the social conditions in India."

In this view of the matter the argument on this score
must be rejected. This Court has pointed out that there
cannot be any cut and dried formula for determining the age
of retirement which is to be linked with various
circumstances and a variety of factors.

We might further mention that even before the Mahesh
Tribunal, the stand taken by the AHs was merely that their
age of retirement should be extended to 45 years and they
never put forward or suggested any claim to increase the
retirement age to 58 which clearly shows that their present
claim is not merely belated but an afterthought particularly
because the Mahesh Tribunal was dealing with this particular
grievance and if the AHs were really serious in getting
their retirement age equated with that of the AFPs, i.e. 58,
they would not have failed to put forward this specific
claim before the Tribunal. This is yet another ground on
which the claim of the AHs to be retired at the age of 58
cannot be entertained because as we have already shown the
Award binds the parties even though its period may have
expired.

This brings us now to the question as to whether or not
the impugned regulation suffers from any constitutional
infirmity as it stands. The fixation of the age of
retirement of AHs who fall within a special class depends on
various factors which have to be taken into consideration by
the employers. In the instant case, the Corporations have
placed good material before us to show some justification
for keeping the age of retirement at 35 years (extendable
upto 45 years) but the regulation seems to us to arm the
Managing Director with uncanalized and unguided discretion
to extend the age of AHs at his option which appears to us
to suffer from the vice of excessive delegation of powers.
It is true that a discretionary power may not necessarily be
a discriminatory power but where a statute 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. 14.

The doctrine of a provision suffering from the vice of
excessive delegation of power has been explained and
discussed in several decisions of this Court.
In
Anwar Ali
Sarkar
's case (supra) which may justly be regarded as the
locus classicus on the subject, Fazal Ali, J. (as he then
was) clearly observed as follows:

"but the second criticism cannot be so easily met,
since an Act which gives uncontrolled authority to
discriminate cannot but be hit by
article 14
and it
will be no answer simply to say that the legislature
having more or less the unlimited power to delegate has
merely exercised that power.

... ... ... ...

Secondly, the Act itself does not state that
public interest and administrative exigencies will
provide the occasion for its application. Lastly, the
discrimination involved in the application of the Act
is too evident to be explained away."

and Mahajan, J. agreeing with the same expressed his views
thus:

"The present statute suggests no reasonable basis
or classification, either in respect of offences or in
respect of cases. It has laid down no yardstick or
measure for the grouping either of persons or of cases
or of offences by which measure these groups could be
distinguished from those who are outside the purview of
the
Special Act
.
The Act
has left this matter entirely
to the unregulated discretion of the provincial
government."

Mukherjea, J. observed thus:

"In the case before us the language of
section
5(1)
is perfectly clear and free from any ambiguity. It
vests an unrestricted discretion in the State
Government to direct any cases or classes of cases to
be tried by the Special Court in accordance with the
procedure
laid down in
the Act.. l am definitely of
opinion that the necessity of a speedier trial is too
vague, uncertain and elusive a criterion
to form a rational basis for the discriminations made
But the question is: how is this necessity of speedier
trial to be determined ? Not by reference to the nature
of the offences or the circumstances under which or the
area in which they are committed, nor even by reference
to any peculiarities or antecedents of the offenders
themselves, but the selection is left to the absolute
and unfettered discretion of the executive government
with nothing in the law to guide or control its action.
This is not a reasonable classification at all but an
arbitrary selection."

and Chandrasekhara Aiyar, J. elucidated the law thus:

"
If the Act
does not state what exactly are the
offences which in its opinion need a speedier trial and
why it is so considered, a mere statement in general
words of the object sought to be achieved, as we find
in this case, is of no avail because the
classification, if any, is illusive or evasive. The
policy or idea behind the classification should at
least be adumbrated, if not staled, so that the Court
which has to decide on the constitutionality might be
seized of something on which it could base its view
about the propriety of the enactment from the
standpoint of discrimination or equal protection. Any
arbitrary division or ridge will render the equal
protection clause moribund or lifeless.
Apart from the absence of any reasonable or
rational classification, we have in this case the
additional feature of a carte blanche being given to
the State Government to send any offences or cases for
trial by a Special Court."

and Bose, J. held thus:

"It is the differentiation which matters; the
singling out of cases or groups of cases, or even of
offences or classes of offences, of a kind fraught with
the most serious consequences to the individuals
concerned, for special, and what some would regard as
peculiar, treatment."

The five Judges whose decisions we have extracted
constituted the majority decision of the Bench.
In
Lala Hari Chand Sard v. Mizo District Council and
Anr.
it was highlighted that where a Regulation does not
contain any principles or standard for the exercise of the
executive power, it was a bad regulation as being violative
of
Art. 14.
In this connection, the Court observed as
follows:-

"A perusal of Regulation shows that it nowhere
provides any principles or standards on which the
Executive Committee has to act in granting or refusing,
to grant the licence...There being no principles or
standards
laid down in
the Regulation there are
obviously no restraints or limits within which the
power of the Executive Committee to refuse to grant or
renew a licence is to be exercised.. The power of
refusal is thus left entirely unguided and untrammeled.

... ... ... ...

A provision which leaves an unbridled power to an
authority cannot in any sense be characterised as
reasonable.
Section 3
of the Regulation is one such
provision and is therefore liable to be struck down as
violative of
Art. 19 (1) (g)."

To the same effect is another decision of this Court in

State of Mysore v. S.R. Jayaram
where the following
observations were made:

"The Rules are silent on the question as to how
the Government is to find out the suitability of a
candidate for a particular cadre... It follows that
under the latter part of r.9 (2) it is open to the
Government to say at its sweet will that a candidate is
more suitable for a particular cadre and to deprive him
of his opportunity to join the cadre for which he
indicated his preference.

... ... ... ...

We hold that the latter part of r. 9 (2) gives the
Government an arbitrary power of ignoring the just
claims
of successful candidates for recruitment to offices
under the State. It is violative of Arts. 14 and 16 (1)
of the Constitution and must be struck down."

Here also the Rules were struck down because no
principle or guidelines were given by the statute to
determine the suitability of a particular candidate.

Regulation 46 (i) (c) provides that an AH would retire
on attaining the age of 35 years or on marriage if it takes
place within four years of service. The last limb of this
provision relating to first pregnancy in the case of AHs has
already been struck down by us and the remaining sub-clause

(c) has to be read with Regulation 47 which provides that
the services of any employee may, at the option of the
Managing Director, on the employee being found medically
fit, be extended by one year beyond the age of retirement,
the aggregate period not exceeding two years. This provision
applies to employees who retire at the age of 58. So far as
the AHs are concerned, under the Regulation the discretion
is to be exercised by the Managing Director to extend the
period upto ten years. In other words, the spirit of the
Regulation is that an AH, if medically fit, is likely to
continue upto the age of 45 by yearly extensions given by
the Managing Director. Unfortunately, however, the real
intention of the makers of the Regulations has not been
carried out because the Managing Directors has been given an
uncontrolled, unguided and absolute discretion to extend or
not to extend the period of retirement in the case of AHs
after 35 years. The words 'at the option' are wide enough to
allow the Managing Director to exercise his discretion in
favour of one AH and not in favour of the other which may
result in discrimination. The Regulation does not provide
any guidelines, rules, or principles which may govern the
exercise of the discretion by the Managing Director.
Similarly, there is also no provision in the Regulation
requiring the authorities to give reason for refusing to
extend the period of retirement of AHs. The provision does
not even give any right of appeal to higher authorities
against the order passed by the Managing Director. Under the
provision, as it stands, the extension of the retirement of
an AH is entirely at the mercy and sweet will of the
Managing Director. The conferment of such a wide and
uncontrolled power on the Managing Director is clearly
violative of
Art. 14
, as the provision suffers from the vice
of excessive delegation of powers.
For these reasons, therefore, we have no alternative
but to strike down as invalid that part of Regulation 47
which gives option to the Managing Director to extend the
service of an AH. The effect of striking down this provision
would be that an AH, unless the provision is suitably
amended to bring it in comformity with the provisions of

Art. 14
would continue to retire at the age of 45 years and
the Managing 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.

So far as the case of the AHs employed by I.A.C. is
concerned, the same reasons which we have detailed in the
case of AHs employed by A.T. would apply with slight
modifications which we shall indicate hereafter. So far as
the organisation of AHs employed by T.A.C. is concerned, the
cabin crew consisting of males are known as flight stewards
(F.S.) and those consisting of females as AHs. There are 105
posts of FSs and 517 of AHs. It is also not disputed that
job functions of F.S. and the AHs are the same and in fact
there are some flights in which the cabin crew consists only
of AHs. But like the A.I. AHs, the mode of recruitment,
conditions of service, etc, are quite different in the case
of F.S.s and AHs. The I.A.C. also contended that FSs and AHs
are two different categories with different avenues of
promotion. As in the case of A.I. AHs, a declaration under
the 1976 Act has also been made in the case of IAC, AHs.

The promotional avenues so far as the AHs are concerned
are: AH, Dy. Chief AH, and Chief AH. It is also alleged by
the Management and not disputed by the petitioners, that FSs
and AHs have got separate seniority and their promotion is
made according to the separate seniority of each Further,
while the AHs have to do a minimum period of three years,
FSs are required to serve for five years. Gratuity is
payable to AHs after completion of S years' service whereas
in the case of FSs it is payable after completion of 15
years of service. Similarly, retiral concessional passage is
given to AHs after completion of four years of service
whereas to FSs it is given after completion of seven years
of service. It may be specially noticed that while long
service memento is given to an AH after completion of ten
years of service, to a FS it is given after completion of 25
years of service. Retirement benefit is given to an AH on
completion of 15 years of service whereas to an F.S. it is
given after 30 years of service. Finally, retiral benefits
are given to an AH after completion of 10 years of service
but
in the case of F.S. after twenty years of Service. These
retiral benefits are really meant to compensate the AHs
because they have to retire at the age of 35, extendable up
to 40, though the F.Ss retire at the age of 58 years.

We might stress at the risk of repetition that in

State of Mysore v. M.N. Krishna Murthy and Ors.
this Court
clearly held that where classes of service are different,
inequality of promotional avenues was legally permissible.
In this connection, Beg, J. speaking for the Court observed
as follows:

"If, on the facts of a particular case, the
classes to be considered are really different,
inequality of opportunity in promotional chances may be
justifiable."

Thus, there can be no doubt that the case of I.A.C. AHs
is exactly similar to the case of A.I. AHs and hence the
complaint of discrimination made by the petitioners has no
substance.

The next argument is almost the same as in the case of
A.I. AHs, namely, retirement on first pregnancy and on
marriage within four years and retirement at 35 years
extendable to 40 years.

So far as the age of retirement and termination of
service on first pregnancy is concerned a short history of
the Rules made by the I.A.C. may be given.
Regulation 12
as
it stood 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 retire 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."

It is obvious that under this Rule an AH had to retire
at the age of 30 years or when she got married and an
unmarried AH
could continue upto 35 years. The rule was obviously unjust
and discriminatory and was therefore amended by a
Notification published in the Gazette of India dated
13.7.1968. The amended rule ran thus:

"An Air Hostess 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 the service an
unmarried Air Hostess upto the age of 35 years."

This amendment continued the bar of marriage but gave
discretion to the General Manager to retain an unmarried AH
upto 35 years. In order, however, to bring the provision in
line with the A.I. Regulation, the I.A.C. Regulation was
further amended by a Notification dated 12.4.80 published in
Part III,
Section 4
, Gazette of India by which para 3 of

Regulation 12
was substituted thus:-

"An Air Hostess shall retire from the service of
the Corporation 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."

It appears that by a Settlement dated 10-1-1972, which
was accepted and relied upon by the Mahesh Tribunal the
following clause was incorporated in the Rule:

"An Air Hostess 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 40 years."

The first part of this Regulation has become redundant
in view of the Notification dated 12.4.80
,
referred to
above
, but the latter part which gives the General Manager a
blanket power to retain an AH till the age of 40 years,
still remains. As, however, the bar of marriage is gone, the
Rules of 1972 which empower the General Manager to retain an
AH in service will have to be read as a power to retain an
AH upto the age of 40 years. Thus, the Notification as also
the Rules suffer from two serious constitutional infirmities
which are present in the case of Regulation 46 framed by
the A.I. The clauses regarding retirement and pregnancy will
have to be held as unconstitutional and therefore struck
down. Secondly, for the reasons that we have given in the
case of A.I. AHs that Regulation 46 contains an unguided and
uncontrolled power and therefore suffers from the vice of
excessive delegation of powers, on a parity of reasoning the
power conferred on the General Manager to retain an AH upto
the age of 40 years will have to be struck down as invalid
because it does not lay down any guidelines or principles.
Furthermore, as the cases of A.I. AHs and I.A.C. AHs are
identical, an extension upto the age 45 in the case of one
and 40 in the case of other, amounts to discrimination inter
se in the same class of AHs and must be struck down on that
ground also.

The result of our striking down these provisions is
that like A.I. AHs, I.A.C. AHs also would be entitled to
their period of retirement being extended upto 45 years
until a suitable amendment is made by the Management in the
light of the observations made by us.

For the reasons given above, therefore, the writ
petitions are allowed in part as indicated in the judgment
and the Transfer case is disposed of accordingly. So long as
the Rule of I.A.C. is not amended the General Manager will
continue to extend the age of retirement of I.A.C. AHs upto
45 years subject to their being found medically fit. In the
circumstances of the case, there will be no order as to
costs.

N.K.A. Petitions partly allowed.