Air India v Nargesh Meerza

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The case of Air India v Nargesh Meerza revolves around a legal challenge brought forth by a group of Air Hostesses (AHs) against the two corporations employing them. The central issue at hand is the alleged violation of their fundamental right to equality under Article 14 of the Constitution of India. 

The case pertains to the service regulations governing the retirement age, termination upon marriage or pregnancy, and other conditions for Air Hostesses in both Air India International and Indian Air Lines.

Facts of Air India v Nargesh Meerza

Under Section 3 of the Air Corporation Act of 1953, the Central Government established two corporations: Air India International and Indian Air Lines. Air India (AI) operated international flights, while Indian Air Lines (IAC) operated domestic flights within the country.

Air Hostesses employed by Air India were subject to Regulations 46 and 47 of the Air India Employees Service Regulations. On the other hand, Air Hostesses employed by IAC were governed by the Indian Airlines Service Regulation No. 12.

Under AI, Air Hostesses retired from service under the following circumstances:

(a) Upon reaching the age of 35 years.

(b) If they got married within four years of service.

(c) On experiencing their first pregnancy.

The retirement age for Air Hostesses could be extended up to ten years if the Managing Director granted yearly extensions at their discretion under Regulation 47. In such cases, an Air Hostess could retire at the age of 45 years.

Under IAC, Air Hostesses were subject to similar service conditions, except that the retirement age for permanent Air Hostesses could be extended up to 40 years.

Issues

(i) Do Regulations 46 & 47 violate Articles 14,15 16 of the Constitution of India and thus ultra vires in whole or part?

(ii) Can discretionary powers, as enumerated under Regulation 47, be deemed excessive delegation?

Laws Applied in Air India v Nargesh Meerza

Article 14 of The Constitution of India

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.

Article 15(1) of The Constitution of India

The State shall not discriminate against any citizen based on religion, race, caste, sex, place of birth or any of them.

Article 16 of The Constitution of India

 Equality of opportunity in matters of public employment

Regulation 46 Air India Employees Service Regulations

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 they shall retire earlier:

(c) An Air Hostess, upon attaining age 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier.

Regulation 47 Of Air India Employees Service Regulations

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.”

Arguments by the Air Hostesses (Petitioners)

In their transferred case and writ petitions, it was argued on behalf of the Air Hostesses (AHs) in Air India v Nargesh Meerza that those employed by either Corporation belonged to the same class of service as the AFPs (Airline Flight Pursers) and other members of the cabin crew, performing identical or similar duties. Therefore, any discrimination between these two groups of employees in similar circumstances would violate Article 14 of the Constitution.

The contentions put forward were as follows:

  • Inter-Service Discrimination: AHs serving on flights to the United Kingdom faced discrimination compared to those on other Air India flights.
  • Hostile Discrimination Based on Sex or Disabilities Arising from Sex: AHs have been selected explicitly for discriminatory treatment based on their sex or related disabilities, thus infringing upon the provisions of Article 15(1) and Article 16(4) of the Constitution.
  • Unreasonable Termination: The termination of AHs’ services on the grounds of pregnancy or marriage within four years was deemed to be unreasonable, arbitrary and in violation of Article 14(5) of the Constitution.
  • Lack of Promotional Opportunities: AHs were denied promotional opportunities available to male cabin crew members.

Arguments by the Management (Respondents)

On the other hand, the Management in Air India v Nargesh Meerza contested the petitions with the following arguments:

  • Distinct Category: The nature of job functions, mode of recruitment, qualifications, promotional avenues and retirement circumstances of AHs place them in a separate category from the pursers, making any question of discrimination or infringement of Article 14 irrelevant, as it applies only to discrimination within the same class.
  • Sex-Based Recruitment: The recruitment of AHs is not solely based on sex but is influenced by various other considerations, so Article 15(2) of the Constitution does not apply.
  • Validity of Regulations: Regulation 46 of the AI Regulations and IAC Regulation 12 have been upheld by the Khosla and Mahesh Awards, having statutory force and being non-arbitrary or discriminatory.
  • Reasonable Restrictions: The bar on pregnancy and marriage is considered a reasonable restriction in the public’s interest, considering the prevailing circumstances in India.
  • Practical Difficulties: Removing the bar on marriage or pregnancy would lead to significant practical difficulties and substantial expenditure for the Corporations to make necessary arrangements.

Judgement in Air India v Nargesh Meerza

Partially granting the petitions, the Court in Air India v Nargesh Meerza made the following decisions:

The impugned provisions were found to exhibit clear official arbitrariness. However, as the objectionable part of the Regulation can be separated from the rest of the Regulation, there is no need to strike down the entire Regulation.

That portion of Regulation 47 in Air India v Nargesh Meerza, which grants the Managing Director the option to extend the service of an Air Hostess, is deemed invalid. Consequently, Air Hostesses, unless the provision is suitably amended to comply with Article 14 of the Constitution, will continue to retire at the age of 45 years. The Managing Director will be obligated to grant yearly extensions automatically for ten years if the Air Hostess is found to be medically fit. This ensures that the Managing Director cannot discriminate between different Air Hostesses.

The last part of Regulation 46 (i) (c) is struck down. The provision “or on first pregnancy, whichever occurs earlier” is declared unconstitutional, void and in violation of Article 14 of the Constitution. Consequently, this part will be deleted. However, the Corporation can make suitable amendments to rectify the situation.

It is well-established that Article 14 of the Constitution prohibits hostile discrimination but not reasonable classification. When individuals who are equals or persons in similar circumstances are treated differently, it constitutes discrimination under Article 14. On the other hand, if individuals who are unequal or belong to different classes are treated differently, it does not amount to discrimination under Article 14.

If there are distinct and separate classes with different conditions of service and incidents, the question of discrimination does not arise. However, if discriminatory treatment is applied to members of the same class, discriminating against one compared to others, then Article 14 is indeed applicable.

The following propositions can be derived from an analysis and examination of cases decided by the Court in Air India v Nargesh Meerza:

  • A strict and dogmatic approach should be avoided when considering the fundamental right to equality of opportunity. Differences in scales of pay, service terms, leave, etc., introduced for different or dissimilar posts may not necessarily violate Article 14. If the class or categories of service are fundamentally different in purpose and essence, Article 14 will not apply.
  • Article 14 prohibits hostile discrimination but allows for reasonable classification. If individuals belonging to a particular class are treated differently due to their special attributes, qualities, recruitment mode, etc., to advance and support members of backward classes with a close nexus to the objectives sought, Article 14 would not be applicable.
  • Article 14 is relevant when equals are treated differently without any reasonable basis.
  • If equals and unequal are treated differently, Article 14 would not be applicable.
  • Even if there is one class of service with several categories having different attributes and incidents, each category becomes a separate class by itself. In such cases, no discrimination arises if there is a difference in treatment between such a category and the general members of other classes.

To determine whether a separate category has been carved out of a class of service, the following circumstances are usually examined in Air India v Nargesh Meerza:

  • The nature, mode and manner of recruitment of the particular category.
  • The classification of the particular category.
  • The nature and character of the posts and promotional avenues.
  • The unique attributes of the particular category are not found in other classes and similar factors.

It is difficult to establish a universal rule, but the mentioned circumstances can serve as illustrative guidelines for determining the question.

The Court has referred to cases such as Kathi Raning Rawat v. The State of Saurashtra, All India Station Masters’ and Assistant Station Masters’ Association and Ors. v. General Manager, Central Railways and Ors., General Manager, Southern Railway v. Rangachari, State of Punjab v. Joginder Singh, Sham Sunder v. Union of India and Ors., Western UP Electric Power and Supply Co. Ltd. v. State of UP and Anr., Ramesh Prasad Singh v. State of Bihar and Ors., The State of Gujarat and Anr. v. Shri Ambica Mills Ltd. etc., State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. and United States v. James Griggs Raines, as references in their analysis.

A comparison of the mode of recruitment, classification, promotional avenues and other factors reveals that Air Hostesses (AHs) constitute a completely separate category from Airline Flight Pursers (AFPs) in many respects, with different service conditions. Furthermore, the retiral benefits available to AHs are distinct from those provided to AFPs.

Considering various circumstances, incidents, service conditions and promotional avenues of AFPs, it becomes evident that the cabin crew members form a distinct and separate class governed by a different set of rules, regulations and conditions of service.

The declaration made by the Central Government through its notification dated 15-6-79 serves as presumptive proof that no discrimination was made on the ground of sex alone concerning service and other types of remuneration.

Articles 15(1) and 16(2) prohibit discrimination based solely on sex. However, they allow the State from making distinctions based on sex when coupled with other considerations.

The argument presented on behalf of AHs in Air India v Nargesh Meerza that the conditions of service concerning retirement, etc., constitute discrimination solely based on sex is overruled. These conditions of service do not violate Article 16.

The provisions in the Regulations that require Air Hostesses not to marry within four years of service, failure of which would lead to termination of their services, are not deemed unreasonable or arbitrary.

Terminating an Air Hostess’s services for becoming pregnant after being in service for four years is considered compelling her not to have children, interfering with the natural course of human nature. Such termination is considered a callous and cruel act, insulting Indian womanhood, a cherished institution. This action is seen as highly unethical and selfish, violating human values. The provision is considered manifestly unreasonable, arbitrary, unfair and violative of Article 14.

The rule could be amended to terminate the services of an Air Hostess on her third pregnancy, provided she already has two living children. Such an amendment would be both beneficial and reasonable for two reasons. Firstly, preventing a third pregnancy with two existing children would be in the best interest of the health of the Air Hostess and the well-being of her children. Secondly, every country needs to encourage and maintain family planning programs at sufficient levels.

The factors considered while making decisions about retirement age should be relevant and closely related to the nature of the organisation and the duties of the employees. If the authority responsible for setting the retirement age considers irrational or illogical factors, the decision is subject to serious scrutiny.

The Court in Air India v Nargesh Meerza has referred to various cases, such as General Electric Company Martha v. Gilbert, State of West Bengal v. Anwar Ali Sarkar, A.S. Krishna v. State of Madras, Cleveland Board of Education v. Jo Carol La Fleur, Sharron A. Frontiero v. Elliot L. Richardson, Mary Ann Turner v. Department of Employment Security, City of Los Angeles Department of Water and Power v. Mary Manhart, Bombay Labour Union Representing the workmen of M/s. International Franchises Pvt. Ltd. v. International Franchises Pvt. Ltd., M/s. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh and Ors. and Maneka Gandhi v. Union of India for their analysis.

In modern times, with advancing mechanical technology, it may not be accurate to claim that a woman loses her normal facilities or her efficiency is impaired at the age of 35, 40, or 45 years. Such a proposition would vary from individual to individual and cannot be generalised. Similarly, there may be cases where an AFP might have a weak and unhealthy constitution and may not be able to function effectively until age 58, which is the retirement age for AFPs according to the Regulation. The distinction made by the Regulation regarding the retirement age between Air Hostesses and Airline Flight Pursers is not discriminatory since Air Hostesses have been recognised as a separate class.

The fixation of the retirement age of Air Hostesses in Air India v Nargesh Meerza, who fall within a particular class, depends on various factors that employers must consider. In the present case, the Corporations have presented justifications for keeping the retirement age at 35 (extendable up to 45 years). However, the Regulation grants the Managing Director unbridled and unguided discretion to extend the age of Air Hostesses, which raises concerns about excessive delegation of powers. A discretionary power may not necessarily be discriminatory. Still, when a statute confers power on an authority without laying down any guidelines or principles, such power may be deemed violative of Article 14.

In support of the analysis, the Court referred to the cases of Lala Hari Chand Sard v. Mizo District Council and Anr. and State of Mysore v. SR Jayaram.

Summary of Air India v Nargesh Meerza 

The judgment in Air India v Nargesh Meerza revolves around a case involving Air Hostesses (AHs) employed by two corporations, Air India International and Indian Air Lines. The AHs challenged specific service regulations that dictated their retirement age, termination upon marriage or pregnancy and other conditions. The AHs argued that these regulations violated their fundamental right to equality under Article 14 of the Constitution.

The Court examined whether the AHs constituted a separate class from the Airline Flight Pursers (AFPs) and whether the regulations treated them differently without reasonable justification. It was determined that AHs and AFPs were distinct classes with different service conditions and that the regulations were not discriminatory.

However, the Court in Air India v Nargesh Meerza found specific provisions to be manifestly unreasonable and arbitrary. It struck down the part of Regulation 47 that allowed the Managing Director to extend an AH’s service, as it could lead to discrimination between AHs. The provision in Regulation 46 (i) (c) that terminated an AH’s service on the first pregnancy was also deemed unconstitutional and void, as it interfered with a woman’s right to have children and violated Article 14.

The judgment emphasised that while reasonable classification is permissible under Article 14, discrimination against equals or individuals in similar circumstances is not allowed. The Court highlighted the importance of relevant factors and guidelines while fixing the retirement age and criticised unbridled discretion given to authorities.

The Court in Air India v Nargesh Meerza suggested amending the rules to allow termination of an AH’s service on a third pregnancy, provided two children are already alive, for health and family planning reasons. It concluded that regulations that impede a woman’s right to have children are detestable and violate human values.

In summary, the judgment in Air India v Nargesh Meerza upheld the validity of specific service regulations but struck down unreasonable and discriminatory provisions. It underscored the need for relevant factors and guidelines when making decisions and highlighted the importance of upholding the right to equality under Article 14.

The judgement is here.


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