Air India v/s Nergesh Meerza (1981) 4 SCC 335
Coram: M. Fazal Ali, A. Varadarajan and A.N. Sen, JJ
Facts: Under the relevant regulation of Air India Corporation (AIC, hereafter) Act and Indian Airlines Corporation (IAC) Act, there was a discrimination made between the conditions of retirement and termination of service pertaining to air hostesses (AH) and those of male pursers (MP) forming part of the same cabin crew and performing similar duties. These conditions were that an AH under AIC retired from service:
i) on attaining the age of 35 years, or
ii) on marriage, if it took place within four years of service, or
iii) on first pregnancy
Fact in Issue: whether this amounts to violation of Article 14 (right to equality) and Article 15 and 16 (no discrimination on basis of s*x) of the Constitution.
1. Contentions of the AH on the grounds of violation of Article 14 were two fold:
a) discrimination made between the AH & MP who are similarly circumstanced is violative of Article 14. Held: Article 14 prohibits only hostile discrimination and not reasonable classification; unequals may be treated unequally. AH, though forming the part of the same cabin crew as MP, formed a different class in respect of qualifications for entry into service, in grades of salary, number of posts, and promotional avenues. They may therefore be treated differently without violating the spirit of article 14.
i. conditions of retirement and termination of services are manifestly and patently unreasonable and arbitrary and therefore violative of article 14.
Held: Stating that it is settled law that article 14 strikes at arbitrariness in state action and that the principle of reasonableness "pervades article 14 like a brooding omnipresence", the court examined all the three conditions separately.
i. so far as condition (ii) was concerned, this condition was held to be constitutionally valid. Having regard to the difficulties faced by both the parties, the court could not find any constitutional infirmity in the provision requiring the AH to serve the corporation with complete dedication for the first 4 years.
ii. So far as condition (iii) was concerned the court took strong exception to it and held it to be "grossly unethical" and as smacking of "deep rooted sense of utter selfishness at the cost of all human values". Having taken the AH in service and after utilising her services for 4 years, to terminate her services if she becomes pregnant would amount to compelling her not to have any children. The ability / capacity to continue to work after having children is an individual matter and whether she would find it difficult to look after the children or not is her personal matter which affects the AH concerned and not the airline. Pregnancy is not a disability; it is a "natural consequence of marriage" and any distinction made on the ground of pregnancy is extremely unreasonable and manifestly arbitrary. This condition was held to be unconstitutional as violative of article 14 and was struck down.
iii. In respect of condition (i) the court held that the age of retirement is to be fixed by the management after taking into account various factors such as the nature of work, prevailing conditions, practice prevailing in other establishment, etc.. Without deciding whether 35 years is the correct age for retirement, the court went on to strike at regulation 47. Under this regulation the managing director (MD) had an uncontrolled and unguided discretionary power to grant yearly extensions to the AH till the age of 45. This unguided discretion vested with the MD could easily result in his treating similarly placed AH differently and was therefore struck down. The result was that unless the management amended the provision, all AH would continue to retire at 45 years of age and the MD would be bound to grant yearly extension as a matter of course, if the AH was medically fit.
b) Whether there was violation of article 15 (1) and 16 (2)?
Contention of AH: AH were particularly selected for hostile discrimination on the ground of s*x or disabilities arising from s*x.
Held: what article 15 (1) and 16 (2) prohibit is that the discrimination should not be made only and only on the ground of s*x. Discrimination on the basis of s*x coupled with other considerations is not prohibited.
The Court cited Krishna Iyer, J. in Muthamma V/s UOI, (AIR 1979 SC 1868):
"We do not mean to dogmatise or universalise that men and women are equal in all occupations and situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of s*x or peculiarities of societal sectors or handicaps of either s*x may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern".
