Holding

The petition is dismissed as the differential retirement policy is permissible and the petitioner does not constitute a separate class.

Summary

Lena Khan, a Deputy Chief Air Hostess of Air India, challenged the airline's retirement policy that required Indian‑origin air hostesses to retire at 35 (extendable to 45) while foreign‑origin hostesses could serve beyond 45, alleging violations of Articles 14 and 15 of the Constitution. The petition also raised whether Air India, as a corporation, is a "State" under Article 12 and whether the UK Sex Discrimination Act, 1975, affected the policy. The Court noted that the same questions had been decided in Air India v. Nargesh Meerza and that Air India was in the process of phasing out foreign‑origin hostesses to achieve uniform retirement ages. It held that the petitioner is an air hostess and not a separate class, and that the existing policy, now aimed at uniformity, does not merit interference. Consequently, the petition was dismissed.

Issues considered

Whether the differential retirement ages for Indian‑origin and foreign‑origin air hostesses violate Articles 14 and 15 of the Constitution.
Whether Air India qualifies as a "State" within the meaning of Article 12.
Whether the UK Sex Discrimination Act, 1975, Section 6(4) precludes equal retirement ages for hostesses recruited abroad.
Whether the petitioner, as Deputy Chief Air Hostess, belongs to a separate class for the purpose of the retirement rule.

Legislation cited

Constitution of Indias. Article 12, s. Article 14, s. Article 15
United Kingdom Sex Discrimination Act, 1975s. Section 6(4)

Subjects

Article 14Article 15Article 12EqualityDiscriminationRetirement ageAir IndiaPublic corporationSex discriminationForeign nationals

Judgment

MISS LENA KHAN
A
v.
UNION OF INDIA & ORS.

MARCH 30, 1987

[V. KHALID AND G.L. OZA, JJ.] B

Constitution of India, 1950-Articles 14 and 15-Retirement-
Different age fvced for employees of Indian origin and foreign origin-
Whether permissible.

Constitution of India-Article 12-Air India-Whether falls C
within the definition of" State"-An instrumentality or agency of State
having operations outside India-For complying with the Municipal
Law abroad-Whether could disregard Article 14 of the Indian
Constitution.

Constitution of India-Article 14--Air Hostesses and Deputy D
Chief Air Hostess-Having regard to the nature of duties performed by
them-Whether belong to the same class.

U.K. Sex Discrimination Act, I975, s. 6(4)-To have the same
age of retirement for the Air Hostesses recruited in U.K. as is provided
for an Air Hostess recruited of Indian origin-Whether violative of the E
Act.

The petitioner, who was employed as Deputy Chief Air Hostess in
Air India, rded this petition under Article 32 of the Constitution, alleg-
ing that while the employees of Indian origin have to retire at 35 years
with extension till 45, those of foreign origin can go beyond 45 years, F
which is discriminatory and violative of Articles 14 and 15 of the Con-
stitution, Accordingly, prayer was made to quash the letter sent to her
retiring her on 28.2.1987, to declare Regulation 46(l)(c) of the Service
Regulations ultra vires, to direct reconsideration of the decision in Air
India v. Nargesh Meerza, [1982] 1 SCR 438 and to declare that the
petitioner will retire only on her attaining the age of 58 years. G

In the counter-allidavit it was alleged that Air-India has not
fixed any higher retirement age for Air-Hostesses who are recruited
outside India, that Air India has appointed a few Air Hostesses abroad
who belong to different nationalities and speak different European
languages with a view to deal with passengers conversant only with H

727
728 SUPREME COURT REPORTS [1987] 2 S.C.R.

A these languages, that Air India has been encouraging its Indian Air ~
Hostesses to learn European languages and in view of this position Air
India is in the process of phasing out Air Hostesses of foreign origin,
that service conditions and terms of appointment of the Air Hostesses
appointed abroad are different than the service conditions of Air
Hostesses appointed in India and that no Air Hostess of foreign origin is
B promoted to the post of Deputy Chief Air Hostess, Additional Chief Air
Hostess or Chief Air Hostess. These promotional avenues are available
only to the Air Hostesses appointed in India.

Dismissing the Petition, '~

HELD: (Per Khalid, J)
c
I. Identical questions were raised and considered at length by
this Court in Air India v. Nargesh Meerza (supra) and that decision is
!Jinding. [730A-B]

D 2. Air India's policy now is to phase out Air Hostesses rl!cruited
outside India and restore uniformity in their retirement age. [731B-C]

3. The petitioner is an Air Hostess and does not belong to a sepa-
rate class. The duties and functions of Deputy Chief Air Hostess inc- ~
lodes operation service as a regular line Air Hostess and she will be re-
E quired to perform the same functions as that of other Air Hostesses. [731F)

4. Air Hostesses who are recruited outside India are not entitled
to the benefits of promotion to which India Air Hostesses are entitled. -~ -
This should satisfy the petitioner in the instant case. [731E] ~

F (Per Oza, J.) '·
I. Air India being a Corporation is for all purposes State within
the meaning of Article 12 of the Constitution of India and it cannot
follow a foreign Corporation in treating Indians differently and dis-
criminate against them. [732B-C)
G
Air India etc. etc. v. Nargesh Meerza & Others etc. etc., [1982] 1
SCR 438, referred to.

2. Air India in order to avoid committing an offence abroad can- ~
not disregard Article 14 of the Indian Constitution. An Indian citizen in
H such a situation sh11uld prefer to walk off from a State where he may
LENA KHAN v. UNION [KHALID ,J.] 729

have to flout Indian Constitution to save himself from committing of an A
offence. Air India should abide hy the requirements of Article 14 rather
than anything else. [732F ·GI

3. It has been conceded that in view of s. 6(4) of the United
Kingdom Sex Discrimination Act, 1975 it will not he a contravention of
that law to have the same age of retirement for an Air Hostess recruited in B
U.K. as is provided for an Air Hostess recruited of Indian origin. [733B·C]

4. In view of the policy of Air India that henceforth Air Hostesses
recruited anywhere will be treated in the same manner as Air Hostesses
recruited from India no interference is called for. [733C·D]
c
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 231 of
1987.

(Under Article 32 of the Constitution of India).

Soli J. Sorabjee, P.H. Parekh, Rajender Mahapatra and Ms. D
Ayesha Misra for the Petitioner.

K.K. Venugopal, D.R. Dhanuka, Mr. Kapil Sibal, Lalit Bhasin,
Vineet Kumar and Ms. Nina Gupta for the Respondents.

- The following Judgments of the Court were delivered by

KHALID, J. In this writ petition, filed by an Air India
E

employee, who at the relevant time was Deputy Chief Air Hostess,
notice was taken for the respondents when the matter came up for
admission. We directed the respondents to file their Counter Affi·
davit. Accordingly Counter Affidavit has been filed. The Petitioner F
has filed her Rejoinder Affidavit also. Heard the learned counsel on
both sides at some length.

Under the existing rules, namely Regulation 46(1)(c) of the
Service Regulation the petitioner was to retire on 28·2· 1987 and in fact
she retired on that date. The prayer in the writ petition is to quash the G
letter sent to her retiring her on 28·2· 1987, to declare Regulation
46{1)(c) ultra vires, to direct reconsideration of the decision in Air
India v. Nargesh Meerza, (1982] 1 SCR 438 and to declare that the
petitioner will retire only on her attaining the age of 58 years.

Identical questions were raised before this Court in a few writ H
730 SUPREME COURT REPORTS (1987] 2 S.C.R.

A petitions earlier by some other employees of Air India and they were
considered at length by a bench of three Judges in Air India v. Nargesh
Meerza and were considered in favour of Air India. We are bound by
this decision. The learned counsel for the petitioner submits that this
decision needs reconsideration and made a fervent appeal to us to
refer the matter for that purpose. We do not feel persuaded to accept
B this request.

The main thrust of the submissions by the petitioner's counsel is
based on Article 14 and Article 15 of the Constitution of India, in that
Air India discriminates between the Air Hostesses and the officers like
the petitioner of Indian origin and of foreign origin who are employees
of Air India. The contention is that while the employees of India origin
c have to retire at 35 years with extension till 45, those of foreign o,rigin
can go beyond 45 years. This contention also was considered by this
Court in the decision referred above.

The case that Air Hostess recruited outside India can be in the
D employment of Air India beyond 45 years is met in the Counter
Affidavit in the following paragraph:

" ....... Therefore, I submit that so far as Air India is
concerned, it has not fixed any higher retirement age for
Air Hostesses who are recruited outside India. In U.K.
E there are only six Air Hostesses and they are also being
phased out. The Senior most Air Hostess in U.K.. in terms
of age is 41 years old. It is further pertinent to note that
--
there are only six Air Hostesses presently employed in
U .K. These Air Hostesses belong to different nationalities
and speak different European languages with a view to
F dealing with passengers conversant only with these
languages. I say that Air India has been encouraging its
Indian Air Hostesses to learn European languag,es. In view
of this position Air India is in the process of phasing out the
European Air Hostesses employed in U.K. It is also perti- ·
nent to note that Air India has appointed a few Air Hostes-
G ses in Japan. These Air Hostesses were also appointed for
the same reason i.e. their knowledge of the Japanese
language. The A•r Hostesses employed in Japan would also
retire upon reaching the normal age of retirement appli-
cable to Indian Air Hostesses. I say that the service condi-
tions and terms of appointment of the Air Hostesses
H appointed abroad are. different than the service conditions

.··
LENA KHAN v. UNION [KHALID .J.) 731

of Air Hostesses appointed in India. It is of utmost impor-
~ tance to note that no Air Hostess appointed is promoted to
A
the post of Deputy Chief Air Hostess, Additional Chief Air
Hostess or Chief Air Hostess. These promotional avenues
are available only to the Air Hostesses appointed in India
,,
B
-.\\ From the above extract we find that Air India's policy now is to
phase out Air Hostesses recruited outside India and restore uniformity
in their retirement age. In U .K., there are only six Air Hostesses, the
.,. ;. .. senior-most among whom is only aged 41. The provisions of Sex Dis-
crimination Act, 1975 applicable to United Kingdom was brought to
our notice. Part II deals with discrimination in the employment field.
Section 6(1)(b) and Section 6(2) make discrimination against a woman
c
~ mthe terms of service, promotion opportunities and termination un-
lawful. But Section 6( 4) protects provisions which relate to death and
retirement from the vice of the above sections. We refer this only to
reassure ourselves that it would be possible for Air India to phase out
U.K. incumbents when they attain the age of 45. Air Hostesses emp- D
loyed in Japan would also retire upon reaching the normal age of
retirement applicable to Indian Air Hostesses. It is useful to note that
Air Hostesses who are recruited outside India are not entitled to the
~· benefits of promotion to which Indian Air Hostesses are entitled. We
are of the view that this should satisfy the petitioner.
E
The case that the petitioner is not an Air Hostess, bot belongs to
a separate class can also not be accepted. This case did not find favour
)r with this Court in the above decision either. The duties and functions
of Deputy Chief Air Hostess includes operation service as a regular

'Y line Air Hostess and she will be required to perform the same func-
lions as that of other Air Hostesses. The writ petition thus is devoid of
any merit and hence is dismissed.
F

OZA, J. Having gone through. the judgment dictated by my
learned brother Khalid J. although I agree with the conclusions arrived
at by him but will like to add my own reasons for the conclusions.
G
~ When this petition came up before us the main ground which
moved us to issue notice was that the Air-India employ Indian as well
as girls coming from different nationalities as air-hostesses and in
respect of the age of retirement there are different rules for, air-
hostesses recruited from different countries. It was alleged that
whereas an Indian recruited as air-hostess will normally retire at the H
732 SUPREME COURT REPORTS [1987] 2 S.C.R.

age of 35 years which could be extended upto 45, a British girl
A
recruited as air-hostess retires at the age of 55 years and this, according
to the petitioner, was discrimination on the basis of colour.

In return the stand taken by the Air-India is that "As a matter of
fact the Air Hostess recruited by British Airways in India retire at the
B age of 36 years in India whereas their counterparts in U .K. retire at the
age of 55 years." It is unfortunate that the second respondent a Corpo-
ration which is for all purposes State within the meaning of the term as
provided in Article 12 of Constitution of India should follow the
British Airways in treating Indians differentially and discriminate
·~, ...
against them. Reliance was also placed in return on the decision of this
Court in Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1
c SCR 438. In return a passage has been quoted which appears at page
472 of the judgment. It is true that this is what has been observed in
this judgment by a Bench of three Judges of this Court. It is observed:

" ..... There is no complaint by the petitioners that bet-
D ween the separate class of AHs inter se there has been any
discrimination regarding any matter. In fact, the only point
. on this. aspect was that AHs ' employed by A.I. m
raised .
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 circumstances because
E 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 ........ "

It appears as it was also contended that they are bound by the decision r,
·Fof this Court. It is no doubt true that this is the decision which is
binding but even in a situation as has been indicated in this judgment
that Air India in order to avoid committing an offence in. accordance
with the law of United Kingdom is choosing to disregard Article 14 of
the Constitution. But I have no hesitation that an Indian citizen in such
a situation would prefer to walk off from a State where he may have to
G flout our Constitution to save himself from commission of an offence.
All the more the saine is expected of respondent No. 2, a corporation
controlled by the Government of India. It is expected that this corpo-
ration would abide by the requirement of Art. 14 rather than anything
else. If need be, it has to walk out of a country where it may become
impossible to act in accordance with the ideals of our Constitution or
H where it may become necesssary to disregard the provisions of our
LENA KHAN v. UNION [KHALID ,J.J 733

Constitution and it is not something new as we have been keeping A
away from countries which follow apartheid policies. But I am happy
that Shri Venugopal, senior advocate appearing for respondent No. 2
frankly stated that his colleague learned counsel Shri Lalit Bhasin got
the United Kingdom Sex Discrimination Act, 1975 further examined
and now it is clear that in view of Section 6 sub-clause 4 of that Act it
will not be a contravention of that law to have the same age of retire- B
ment for an air-hostess recruited in U.K. as is provided for an air-
hostess recruited of Indian origin. It appears that this was the law
(United Kingdom Sex Discrimination Act, 1975) which was perhaps
in the minds of the Judges in Air-India's case.

In ~ew of this learned counsel frankly stated that henceforth C
air-hostesses recruited anywhere will be treated in the same manner as
air-hostesses recruited from India and it is only on this frank admission
rnade by learned counsel for respondent No. 2 that we see no reason to
entertain the petition. In this view of the matter I agree with the
conclusions reached by my learned brother, Khalid, J.
D
A.P.J. Petition dismissed.

-