Supreme Court of India

Air India V. Nergesh Meerza & Ors. (1981) 4 SSC 335

AIR INDIA PETITIONER

VERSUS

NERGESH MEERZA & ORS. RESPONDENT

DATE OF JUDGMENT: 28/08/1981

BENCH:
SYED MURTAZA FAZALALI, A. VARADARAJAN, A.N. SEN JJ
Counsels

Mr. Fali nariman for petitioner

Mr. Atul Setalvad for respondent

Facts

The case imposed a challenge on Regulations 46 and 47 of the Air India Employees Service
Regulations. With the challenge being posited on the grounds that the aforesaid regulation
created a substantial degree of disparity between male (referred to as Air Flight Pursers) and
female (Air Hostesses) on grounds such as promotional avenues, differential retirement ages,
conditions pertaining to termination of the Air hostesses services in cases of pregnancy or
marriage (retirement age for them was 35 years as opposed to 58 for their “male counterparts” –
according to Regulation 46). Furthermore, a more prosaic question was regarding the
discretionary powers of the Managing Director who under Regulation 47 could increase the age
of retirement as per his own behest. An aspect which is contested by the petitioners as being
arbitrary.
Issues

(i) Whether Regulation 46 & 47 are violative of Articles 14, 15, 16 of the Constitution of India
and thus ultra vires in whole or part?

(ii) Whether discretionary powers as enumerated under Regulation 47 can be deemed as being
excessive delegation?

Regulation 46 Air India Employees Service Regulations

Retiring Age:

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:

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.

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

Petitioner

 It was contended that Air Hostesses and flying pursers belong to different class hence
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.
 The recruitment of the air hostess 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.
 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 air hostess during their
absence for a long period necessitated by pregnancy or domestic needs resulting from
marriage.

Respondent

 The air hostess employed by one Corporation form the same class of service as the flying
pursers. Both the male pursers and the air hostess are members of the same cabin crew,
per forming 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.
 That the air hostess 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.
 The termination of the services of air hostess 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.

Judgment

The court held the clauses regarding retirement and pregnancy as unconstitutional and thus
ordered for them to be struck down holding it in violation of Article 14.

Furthermore, Regulation 47 experienced a similar fate, for it was found that the said regulation
suffered from excessive delegation of powers without any reasonable guidelines to police the
same. For the words “at the option of”, grants more than sufficient power to the managing
director which could lead to possible cases of discriminatory practice.
However, with respect to the claim regarding the disparity in retirement age of the air hostesses
and male crew members, on account of the nature of work, conditions of service, safeguarding
health of women the court rejected the claim as being not discriminatory.

Conclusion

While the aforesaid judgment is an obvious improvement on the ruling of the Khosla Tribunal
(1965) which grounded its holding, in terms of the age criterion being fairly imposed owing to
aspects such as the attractiveness of young air hostesses being an effective tool to deal with
passengers.

The argument that air hostesses should be young and attractive and should possess pleasing
manners seems to suggest that the air hostesses should by their sweet smiles and pleasant
behavior entertain and look after passengers which cannot be done by older women. This
amounts to an open insult to the institution of womanhood. The older women with greater
experience and goodwill can look after the comforts of strangers in a better way as compared to
the younger women.

The decisions by Air India are a proof of denigration of women and a demonstration of male
chauvinism and unfavorable bias against fair sex which is unreasonable and arbitrary.