AIR INDJA ETC. ETC. v. NERGESH MEERZA & ORS. ETC. ETC (2)

Citation: [1982] 1 S.C.R. 438

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN, AMARENDRA NATH SEN

Judgment text

438 AIR INDJA ETC. ETC. v. NERGESH MEERZA & ORS. ETC. ETC. 8 August 28, 1981 [S. MURTAZA FAZAL ALI, A. VARADARAJAN AND AMARENDRA NATH SEN, JJ. J Constitution ofIndia 1950, Articles 14 and 16, Air India Employees Service Regulations, Regulations 46 and 47, Indian Airline Service Regulation, Regulation 12. Different conditions ofservice ofAir Hostesses employed by Air India in India and United Kingdom-Validity of. Conditions ofservice-Discrimination-Determination Of question. Retirement of Air Hostesses in the event of marriage taking place within four years ofservice-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 ofat 45 instead of . 58-Whether invalid. Air Hostess-Extension ofservice-Option conferred on Managing Director-· Whether exces:,fre delegation ofpower. Air India Corporations Act 1953, S.

3-Air India International and Indian Air Lines-Whether separate and distinct entities. Indian Evidence Act 1872, S. 115-Estoppel against law-~Vhether permissible. By virtue of section 3 of the Air Corporation Act, 1953 the Central Government created two corporations known as Air India International and Indian Air Lines. A. I. operating international flights and the I. A. C. operating domestic flights within the country. Air Hostessess employed by Air India were governed by Regulations 46 and 47 of Air India Employees Service Regulations and the Air Hostessess employed by l. A. C. were governed by the Indian Airlines Service, Regulation No. 12. AIR INDIA V. NERGESH MEERZA 439 A. H. under A. I. was retiied f1om service in the following contingencies : (a) On attaining the age of 35 years; (b) On marriage if it took place within four years of the service; and (c) on first pregnancy.

The age of retirement of AH could be extended upto ten years by grant· ing yearly extensions at the option of the Managing Director. If the Managing Director chose to exercise his discretion under Regulation 47 an AH could retire at the age of 45 years. A. H. under I. A. C. i•. was governed by similar service conditions except that the age of retirement of permanent AHs could be ex. tendP;d upto 40 years. In their transferred case and writ petitions, it was contended on behalf of the A. H. that the Air Hostess employed by one corporation or the other from the same class of service as the AFPs and other 1nembers of the cabin crew, performing identical or similar duties and hence any discrimination made between 0 these two employees who are similarly circumstanced was clearly violative of Art.

14, (2) There was an inter sc discrimination between the AHs posted in the United Kingdom and those serving in the other Air India flights (3) the AHs have been particularly selecte:l for hostile descrimioation by the Corporation mainly on the ground of sex or disabilities arising from sex and, therefore, the regulations amount to a clear infraction of the provisions of Art. 15(1) and Art. 16(4). The termination of the services of AHs on the ground of pregnancy or marriage within four years is manifestly unreasonable wholly arbitrary and violative of Art. 14 (5). (6) Apart from discrimination regarding the age of retirement, AHs have been completely deprived of pron1otional opportunities available to the male members of th. ; cabin crew.

The Management contested the petitions by contending: (I) Having regard to the nature of job functions, the mode of recruitment of AHs, their qualifications, their promotional avenues and the circumstances in which they retire, AHs fall within a category separate from the class to which the pursers belong and there can be no question of discrimination or contravention of Art. 14 which would apply if there is discrimination between the members of the same class inter se. (2) The recruitment of the AHs is actually sex based recruitment made not on the ground of sex alone but sway. ::d by a lot of other considerations and hence Art. 15(2) of the Constitution is not attracted. (3) Regulation 46 of the A. I. Regulations and the IAC Regulation 12 have been upheld by the Khosla and Mahesh Awards. They have statutory force and unless they are \'per se arbitrary or discriminatory the Court ought not to interfere with them particularly when those two Awards are binding on the parties.

(4) Having regard to the circumstances prevailing in India a:1d the effects . :>f marriage the bar of pregnancy and marriage is undoubtedly a reasonable restriction placed in public interest. (5) If the bar of marriage or pregnancy is removed it will lead to huge practical difficulties as a result of which very heavy expenditure would have to be incurred by the Corporations to make arrangements. Partly al! owing the petitions, HELD: l{i). The impugned prov1s1ons appear to be a clear case of official arbitrariness. As the impugned part of the regulation is severable from the 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 amendded to bring it, in conformity with the provisions of Art.

14 would continue to retire at the age of 45 years and the Managillg Director would be bound to grant yearly extensions as a matter of course for a period of ten years if the AH is found to be medically fit. This will prevent the Managing Director from discriminating between one AH and another. (501 A-B] (iii). The last portion of regulation 46 (i) (c) struck down. The provision 'or on first pregnancy whichever occurs earlier• is unconstitutional, void and violative of Article 14 of the Constitution and will, therefore, stand deleted. It will, however, be open to the Corporation to make suitable amendments. (491B] 2. It is undisputed that whal Art. 14 prohibits is hostile discrimination and not reasonable classification. If equals and unequals are differently treated, there is no discrimination so as to amount to an infraction of Art. 14 of the Constitution.

A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Art. 14. [456 G-H, 457 A] -- 3. If there are two separate and different classes having different conditions of service and different incidents the question of discrimination does not arise. On the ocher hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Art. 14 is doubtless attracted. [457 A-Bl 4. The following propositions emerge from an analysis and examination of cases decided by this Court : (1) In considering the fundamental right or equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if differ~nt s;;ales of pay service terms, leave, etc. 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 cJasses, AIR INDIA V. NERGESH MEERZA 441 having a close nexus with the objects sought to be achieved JArt. 14 will be completely out of the way. (463 B·D] (3) Art. 14 certainly applies where equals are treated differently without any reasonable basis. [466 DJ (4) Where equals and unequ1ls are trl! atej differently Art. 14 would have no application. [466 E] (5) Even if there be one cl lS'i of $~rvice having several categories with -.

, ' different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. [466 F-F] (6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined :- (a) the nature, the mode and the manner of recruitment of a particular category from the very start. (b) the classifications of the particular category. (c) the terms and conditions of service of the members of the category; (d) the nature and character of the posts and promotional avenues; (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.

[463 F-H, 464 A-Bl ft is however difficult to Jay down a rule of universal application but the circumstances mentioned above may be taken to be illustrative guidelines for determining the question. [464 B-C] Kathi Raning Rawat v. The State of Saurashtra [1952] SCR 435, All India Station Masters' and Assistunt Station Masters' Associatton and Ors. v, General Manager, Central Railways and Ors. [19601 2 SCR 311, The General Manager, Southern Railway v. Rangachari [1962] 2 SCR 586, State ofPunjab v. Joginder Singh [1963] Supp. 2 SCR 169, Sham Sunder v. Uniun ofln. tia and Ors. [1969] 1 SCR 312, Western U. P. Electric Power and Supply Co. Ltd. v. State of U. P. and Anr. , [1969] 3 SCR 865 Ramesh Prasad Singh v. State of Bihar and Ors. , [1978] 1 SCR 787 The State of Gujarat and Anr. v. Shri Ambica Mills Ltd. etc. [1974] 3 SCR 760, Stale ofJammu and Kashmir v. Triloki Nath Khosa and Ors. (1974] 1 SCR 771 and United States v. James Griggs Raines, 4 L Ed 2d 524 referred to. s.

A comparison of the mode of recruitment, the classification, the promotional avenues and other matters indicate that the AHs form an absolutely 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 shoula not be made only and only on the ground of sex.

These Articles do not prohibit ,Y the State from making discrimination on the ground of sex coupled with other considerations. [475 DJ Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee (1954) SCR 930, Miss C. B. Muthamma v U. 0. 1. and Ors. [1979] 4 SCC 260 referred to. 9. The argument on behalf of the AHs that the conditions of service with regard to retirement, etc. amount to discrin1ination on the ground of sex only is overruled. The conditions of service indicated are not violative of Art. 16. [476 B-C] 10. There is no unreasonableness or arbitrariness in the provisions of the Regulations which necegsitate that AHs should not marry within four years of the service failing which their services will have to be terminated. [480G-H,48lA] 11.

Having taken the AH in service and after having utilised her services for four years: to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. The termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most scarosanct and cherished institution. Such a course of action is extremely detestable and abhorrent to the notions of a civilised society. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a provision is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked depotism and is clearly violative of Art. 14. [481 G-H,482 A·C] J3. The rule could be suitably a1nended so as to terminate the services of .

' an AH on third pregnancy provided two children are alive which would be both salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels. [491 C-F] General Electric Company Ma· tha v. Gilbbert, 50 L. Ed. 2d 343, State of West Bengal v. Anwar Ali Sarkar [1952] SCR 284, A. S. Krishna v. State ofMadras [1957] SCR 399, Cleve/ and Board ofEducatian v. Ja Cara/ La Fleur 39 L Ed 2d AIR INDIA V. NERGESH MEERZA 443 52, Sharron A. Frontiero v. Elliot L. Richard~on, "36. E Ed 2d 583; Mary Ann .. ' . Turner v. ·»epartment of Employment Security,, . 46 1r Ed 2d 1&1> City ofLos 'An8leS Department of Water and Power v.

Mary Manhart, -s5L Ed.. 2d . 657, BombOY ·Labour . Unioh Representing the workmen uf M/s. lirternational Frcinchises Pvt. Ltd. v. lnternational Ftanchi$es Pvt. Lid. [1966] 2 SCR 493, M/s. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh and Ors. [1954] SCR 803 & Maneka Gandhi v. Union ofIndia [1978] 2 SCR 621 referred to. 13. -W~ether the Woman after beating. children Would cOntl'~ue . in Service or would find it difficult to look. ~a:rrer, "the chikh:eri: is . her -personal matter and problem which affects the AH concerned and the Corporation has nothing to do with the same. These -are circumstanpe~ _-which_ happen in the normal course of business and cannot be helped. Jn these circumstances, the reasons given for imposi. ng the· bar a1e neither. logical nor convincing. [489 C-E] 14. The factors to be c~nsid. erecJ- ~ust be rel~vant a~d becir a'c. lose nexus to the nature of the organisation and the duties of the e1nployees. Where the authority concetned. t8.

kes into account factors or circumstarices Which are inherently irrational or illogical or tainted, the decision· fixing thC age·of retirement is open to serious scrutiny. [492 E-F] 15, ·In the present times With advancing mechanical technology it' may riot be very correct to say that a woman loses her normal faculties or that her efficiency is impaired at the age of 35, 40 or 45 years. It is difficult to generalise a proposition like this which will have to vary from. individual to individual. On the other hand, there may be cases where an AFP may be of so weak and un- 'healthly a coilstitutlon that he may not be able to function upto the age of 58 which is the age of retirement of AFP according to the Regulation. ·The distinc- ··•' tion regarding the age of retirement made by Regulation between AGs and AFPs cannot be said to be discriminatory because AHs have been held to be a separate class. [495 B-E] 16. The fixation of the age Of retirement of AHs who f3. Ji witliir.

a speCial class depends on various factors which have to be taken into consideration by employers. (496 F] In the instant case, the Corporations have'· placed good -materi'al to show some justification for keeping the age of retirement at 35 years (extend8. ble upto 45 years) but the regulation seems to arm the Managing Director with uncanalised and unguided discretion to extend the age of AHs at this option which app~ ' 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 aceept the proposals submitted by him which will be referred to when we deal with the contentions of the parties at length. We shall now proceed to deal With the respective contentions / advanced before us indicating the reply of the respondents to the arguments raised by the petitioners. It was vehemently argued by Mr. Setalvad that having regard to the nature of the duties and functions performed during the flight 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. 14 of the Constitution. The counsel for the Corporation, however, countered the arguments of the petitioners on two grounds :- (I) 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 and swayed by a number of other considerations and not based on sex only. fn order to appreciate the arguments of the parties on this point it may be necessary to refer to the law on the subject which is now well settled by a long course of decisions of this Court. It is undisputed that what Art.

14 prohibits is hostite discrimination and not reasonable classification. fn 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. I A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attarct the provisions of Art. 14. Jn our opinion, therefore, the inescapable conclusion that follows is that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. On the other hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Art. 14 is doubtless attracted. 1 In Kathi Raning Rawat v. The State ofSaurashtra( ) 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. " (I) [1952] SCR 435. The most apposite decision on the subject is the case of All India Station Master's & Assistant S1ation Master's Association & Ors. ~v~GeneraltManag1r,: Cemral Raii"ay' & Ors. (') \\here the Jaw on the subject was succinctly stated by Das Gupta, J. who speaking for the Court as follows :- "So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department, in many different classes.

For each such class there are separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which i promotion will be effected from the lower grades of pay to the higher grades, e. g. , whether on the result of periodi- ' cal examination or by seniority, or by selection or on some other basis and other cognate matters. Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of 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 memhers 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('~ where Gajendragadkar, J. pointed out thus : (1) (1960] 2 S. C. R. 311. (2) [1962] 2 S. C. R. 586. AIR INDIA v. NERGESH MEERZA (Faza/ Ali, J. ) 459 "Would it. for instance, be open to the State to pTfsoibe different scales of salary for the same or similar posts, dijjerent terms of leave or 11uperannuation fo1 the same or similar post 1 On the narrow construction of Art. 16(1) even if such a discriminatory courses are adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by Art. 16(1). Such a result could not obviously have been intended by the Constitution .........

The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding l. '.. ,;~ 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 clau;e in Art. 16(4). " (Emphasis ours) In State ofPunjab v. Joginder Singh('), Ayyangar, J while delivering the majority judgment clearly elucidated the various spheres where Art. 14 could operate and observed thus:- . - ' "As we have stated already, the two Services started as independent services.

The qualifications prescribed for entry into each were different, the method ofrecruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members ofeach class being different, they started as two distinct classes. If the government order of September 27, 1957, did not integrate them into a single service, it would follow that (! ) [1963] Supp. 2 SCR 169. 1~ the two remained as they started as two distinct services. If they were distinct services. there was na question of inter se seniority between members of the two s 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) (1961] 2 SCR 349.

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 tbe age of retirement no hard and fast rule can be laid down. The decisio. i on ",r• the question would always depend on a proper assessment of the relevant factors and may conceivably vary from case to case. " Similarly, in an earlier case in Gueit, Keen, Williams Pvt. Ltd. v. P. J. Sterling und 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. I. regarding this particular prov1s10n 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. I.

is that several years experience of the working of AHs shows (2) [1960] I SCR 348. ~· ' that quite a large number of them retire even before they 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 fa ations have placed good material before us to snow some justification for keeping the age of rerirement 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 AIR INDIA v. NERGESH MEERZA (Paza/ Ali, J.

)l 497 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 S1rkar' 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 distinguisb. ed 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(I) 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...... I 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 determiued ? 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 ,r to guide or control its action. This is not a reasonable classification at all but an arbitrary selection. " and Cbandrasekhara 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 stated, so thut 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. AIR INDIA v. NERGESH MEERZA (Fazal, AIU. ) 499 1 In Lala Hari Chand Sard v. Mizo District Council and Anr. ( ) it was highlighted that where a Regulation does not c~ntain 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 pro- 8 vides 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 untrammelled.

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 provison and is therefore liable to be struck down as violative of Art. 19 (I) (g). " To the same effect is another decision of this Court in State 2 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... lt 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 (1) [1967] l SCR 1012. (2) [1968] 1 SCR 349. 500 SUPREME COURTS REPORTS (1982) 1 S. C. R.

-~ of successful candidates for recruitment to offices under the State. It is violative of Arts. 14 and 16 (I) 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 candi date. 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 Directer.

Similarly, there is also no provision in the Regula~ tion reqmrmg 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. AIR INDIA v. NERGESH MEERZA (Paza/ Ali, J. ) 501 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 em· ployed by A. I. would apply with slight modifications which we shall indicate hereafter. So far as the organisation of AHs employed by J. A. C. is concerned, the cabin crew consisting of males are known as _, flight stewards (F. S. ) and those consising of females as AHs. ~ There are 105 posts of F. ,Ss 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 c0nsists 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. Ss 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, 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 5 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 com· pletion 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 l0 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 8 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 l. 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. 0 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 thns: "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 Airhostess shall retire from the service of Corporation on her attaining the age 0f 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 G· 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 (! ) [1973] 2 SCR 575. AIR INDIA v. NERGESH MEERZA (Faza/ Ali, J. ) 503 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 Airbostess 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 I.

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 l. A. C. Regulation was further amended by Notification dated 12. 4. 80 published in Part III, Section 4, Gazette of India by which para 3 of Regulation 12 was substituted ~s~ "An Air Hostess shall retire from the service of the CorpG>ration 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 attaing the age of 30 years or when she gets married, whichever is earlier.

The General Manager n,ay, however, retain in service an unmarried air hostess upto the age of 40 years. " The first part of this Regluation 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 al/owed. l