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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 16,  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. 439

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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 440 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

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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 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 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, 441 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.

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[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] 442      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

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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 443 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

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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. 444

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 445 common judgment.  So far  as Transferred  Case No.  3/81  is

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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’ 446      (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 4 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. 7 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 15 deal with finance, accounts  and audit. Section 34 defines the control which.  the   Central  Government   may  exercise  over  the

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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 447 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

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National Industrial  Tribunal presided  over by  Mr. Justice G.D. Khosla 448 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 449      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

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    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. 450      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 451 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

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    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." 452      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

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    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 453      (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 454           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

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         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, 455           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

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         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. 456      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 457 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

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    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." 458      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: 459           " 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

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    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 460      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

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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: 461           "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 16 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 462      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

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    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- 463           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:-

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         (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. 464           (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. 465      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

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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 466 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 : 467           "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

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    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 468      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

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    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 469      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. 470      (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

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         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. 471      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

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    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 472 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 473      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.

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         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 474      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

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    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. 475           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 476      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

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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. 14 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 477      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

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    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." 478      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 479      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

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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;           ...        ...         ...           ... 480      (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

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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 481 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 482 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

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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 483                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.

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    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 484 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 16 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 485 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

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    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.           ...            ...            ...            ... 486           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

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court observed as follows: 487           "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- 488      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

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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 489      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: 490           "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

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    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." 491      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

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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) 492 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 493 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

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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." 494      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

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    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 495 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 496 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

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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 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 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:

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         "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 498      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. 499      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.

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         ...            ...            ...            ...           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 500      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

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of excessive delegation of powers. 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  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 502 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."

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    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 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 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 504

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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. 505