1981 (8) TMI 238 - SC - Indian Laws

Air India Pregnancy Policy Struck Down as Unconstitutional

Air India Etc. Etc. Versus Nergesh Mirza and others

The Court found Regulation 46(i)(c) of Air India Employees' Service Regulations unconstitutional, striking down the provision terminating Air Hostesses ... - Issues Involved:1. Constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations.2. Discrimination between Air Hostesses (AHs) and Assistant Flight Pursers (AFPs) under Article 14.3. Discrimination based on sex under Articles 15(1) and 16.4. Termination of AHs on grounds of pregnancy or marriage within four years.5. Reasonableness of service conditions for AHs, including age of retirement and promotional opportunities.Detailed Analysis:1. Constitutional Validity of Regulation 46(i)(c):Regulation 46(i)(c) mandates that an AH retire upon attaining the age of 35 years, or on marriage if it occurs within four years of service, or on first pregnancy, whichever occurs earlier. The Court found that the provision regarding termination on first pregnancy is 'most unreasonable and arbitrary,' and 'shocks the conscience of the court.' It was deemed 'manifestly unreasonable and arbitrary' and violative of Article 14, thus struck down. The Court suggested amending the rule to terminate services on third pregnancy provided two children are alive.2. Discrimination Between AHs and AFPs Under Article 14:The Court held that AHs and AFPs form separate categories with different qualifications, grades, and promotional avenues. The initial recruitment requirements, starting salaries, and number of posts differ significantly between AHs and AFPs. The Court concluded that AHs form an 'absolutely separate category' from AFPs, and hence, no discrimination under Article 14 occurs as they are not similarly circumstanced.3. Discrimination Based on Sex Under Articles 15(1) and 16:The Court ruled that the recruitment of AHs is sex-based but not solely based on sex, as other considerations are involved. The Central Government's declaration under the 1976 Act, stating that differences in pay and conditions of service are not based on sex, was accepted. The Court held that Articles 15(1) and 16(2) do not prohibit discrimination based on sex coupled with other considerations. Thus, the conditions of service for AHs were not found to be discriminatory based on sex alone.4. Termination of AHs on Grounds of Pregnancy or Marriage Within Four Years:The Court upheld the provision regarding termination if marriage occurs within four years of service, considering it reasonable and in the interest of family planning. However, it struck down the provision for termination on first pregnancy as 'grossly unethical' and 'an open insult to Indian womanhood.' The Court suggested amendments to allow AHs to take maternity leave and resume service post-pregnancy.5. Reasonableness of Service Conditions for AHs, Including Age of Retirement and Promotional Opportunities:The Court found that the age of retirement for AHs at 35 years, extendable to 45 years, is not discriminatory. However, it criticized the discretion given to the Managing Director to extend the retirement age as 'uncontrolled, unguided and absolute,' thus violative of Article 14. The Court struck down the provision giving the Managing Director such discretion and mandated that AHs should be allowed to retire at 45 years unless suitable amendments are made.Conclusion:The Court partially allowed the writ petitions, striking down the provision related to termination on first pregnancy and the uncontrolled discretion of the Managing Director in extending the retirement age. The Court directed suitable amendments to the regulations to ensure fairness and reasonableness. The Transfer Case was disposed of accordingly, with no orders as to costs.