JUDGMENT S. Muralidhar, J.
Introduction 1.1 The litigation involving the male and female cabin crew members of the country's international carrier Air India concerning their terms and conditions of service has had a fairly long history. Earlier, in two rounds of litigation culminating in the Supreme Court, the female cabin crew comprising Air Hostesses (AHs) complained of discrimination in the matter of their terms and conditions of service and in particular their retirement age which was lower than their male counterparts, comprising the Assistant Flight Pursers (AFPs).
1.2 Since 5.6.1997, with the announcement of a new promotion policy by Air India Ltd., there has been a rationalization of the posts and designations of the male and female cabin crew. With effect from 21.11.2003 female cabin crew members were allowed to undertake flying duties up to the age of 58 thus bringing them on par with their male counterparts. A consequential Order was passed on 18.12.2003. Then by an Administrative Order dated 27.12.2005 Air India Ltd. decided that the 'Executive Female Cabin Crew will henceforth be eligible to be considered for the position of In Flight Supervisor (IFS) along with the male Executive Cabin Crew.' In other words, the directive equated the female cabin crew assigned to flight duties with their male counterparts in the matter of the chance to be considered for the position of IFS. This has led to the present round of litigation at the instance of the male cabin crew recruited earlier to 5.6.1997 (hereafter 'pre-1997 male cabin crew').
1.3 Although the pre-1997 male cabin crew have also challenged the order dated 21.11.2003 that allows the female cabin crew to fly till they are 58 years, and the consequential order dated 18.12.2003, the immediate provocation is the Administrative Order dated 27.12.2005. They challenge it, inter alia, on the grounds that it is illegal, unconstitutional and contrary to earlier settlements and judgments of the Supreme Court. They contend that IFS is a promotional post which is the sole preserve of the male cabin crew. The pre-1997 male cabin crew say that the IFS is the boss-in-charge of the cabin crew while on the flight and that the male crew cannot be asked to serve on a flight which has their female colleague as an IFS. They say that the terms and conditions of their service and the previous settlements with the management as interpreted by the judgments of the Supreme Court assure them this status, which cannot be altered to their disadvantage.
1.4 By this judgment this Court negatives the said challenge and, for the detailed reasons set out hereafter, upholds the validity of the impugned Administrative Order dated 27.12.2005 as well as the other orders dated 21.11.2003 and 18.12.2003. The Court finds that IFS is no longer a post, much less a promotional post. It is a function that one among the cabin crew, on the basis of seniority, is asked to perform during the flight. This Court is unable to discern in any of the settlements any assurance or promise held out to the pre-1997 male cabin crew that a female colleague of theirs will never ever be asked to perform the function of an IFS. Nor do the judgments of the Supreme Court say so. The impugned order dated 27.12.2005 is not discriminatory to the male cabin crew. In fact, far from eliminating the possibility of the male cabin crew performing the function of IFS, it provides a chance to their female colleagues as well. In effect it removes the 'men only' tag on the function of IFS. We are asked by the pre-1997 male cabin crew to hold this to be unreasonable. We decline to do so. This Court finds nothing arbitrary, unreasonable or irrational in the pre-1997 male cabin crew being asked to serve on a flight which has their female colleague as an IFS. This then is the jist of the lengthy judgment that follows.
The appeals and petitions 2.1 LPA Nos. 122-125 of 2006 by Rajendra Grover and others and LPA Nos. 433-434 of 2006 by Air India Ltd. are directed against an interim order dated 6.1.2006 passed by a learned Single Judge of this Court in Writ Petition (C) Nos. 130-136 of 2006. The said interim order was to the effect that, subject to the final outcome of the proceedings, Air India should work out an arrangement whereby 50% of 'the posts/positions of IFS should be made available to the eligible male cabin crew employees.' It was further directed that the posting of a person as an IFS pursuant to the aforementioned direction would be subject to the final outcome of the proceedings.
2.2 It requires to be noted that the prayer in W.P.(C) Nos. 130-136 of 2006 filed by Rajendra Grover and others before the learned Single Judge was for a declaration that the administrative directive dated 27.12.2005 issued by Air India was illegal. The further prayers were for a writ to quash the said directive and for a direction to restrain the respondents from equating or merging the streams of AFPs and AHs from the pre-1997 recruits in any manner and in particular through the appointment of AHs as IFSs.
2.3 This Court directed notice to issue in the two sets of appeals on 24.1.2006 and 17.4.2006 respectively. The appellants were permitted to implead the representative associations of AHs who were likely to be affected by the orders in the appeals. On 10.3.2006, individual AHs as well as the Air India Air Hostesses Association (AIAHA) were imp leaded as respondents in LPA Nos. 122-125 of 2006.
2.4 While these appeals were pending, two other sets of writ petitions were filed. Writ Petition (C) Nos. 976-979 of 2006 filed by Kanwarjeet Singh and three others who are employees of Air India Limited seeks a declaration that Section 9 of the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 is ultra vires the Constitution of India and in the alternative that the said provision should be read down in order to prohibit the respondent Air India Limited from altering the service conditions of the employees contrary to any previous settlements, awards, agreements or judicial decisions. These writ petitions also challenge the administrative directive dated 21.11.2003 issued by the Union of India, and orders dated 18.12.2003 and 27.12.2005 issued by Air India Limited.
2.5 Writ Petition (C) Nos. 983-987of 2006 have been filed by the Air India Cabin Crew Association (AICCA) and four employees of Air India Limited seeking the same reliefs that have been sought in Writ Petition (C) Nos. 976-979 of 2006.
2.6 Although the two sets of appeals aforementioned arose from an interim order passed by the learned Single Judge of this Court before whom the writ petitions were pending, with the consent of all the parties, the appeals as well as the writ petitions themselves were heard for final disposal by the Division Bench.
2.7 At one stage, the Division Bench by its order dated 30.1.2006 directed the parties to consider the possibility of resolving the dispute through negotiations. After it was informed that a settlement was not possible, the court proceeded with the final hearing of the matters. Initially it reserved orders at the conclusion of arguments. In view of the subsequent merger of Air India Ltd. and Indian Airlines Ltd. into a new entity known as the National Aviation Company of India Limited, these cases were listed for further hearing on 7.9.2007. The Court wished to ascertain from counsel for the parties if, as a result of the merger, any change in the terms and conditions of the cabin crew of Air India was contemplated. At the subsequent hearing on 21.9.2007, the Court was informed that no change in the terms and conditions of the cabin crew of the erstwhile Air India Ltd. as a result of the merger was contemplated. The scheme of amalgamation evidencing this position was also placed on record. The Court took note of this submission and reserved orders on that date.
3. The Central Government by a notification under Section 3 of the Air Corporations Act, 1953 created two corporations known as Indian Airlines Corporation and Air India International ('Air India'). The Regulations governing the terms and conditions of service of the employees of each of the two entities were framed in terms of Section 45(2)(b) of that statute.
4. Initially in Air India there was considerable disparity in the pay scales, promotional avenues and age of retirement of the male cabin crew comprising AFPs, Flight Pursers (FPs) and In-flight Pursers (IFPs) on the one hand and the female cabin crew comprising the AHs, Check AHs, Deputy Chief AH, Additional Chief AH and Chief AH on the other. Under Regulation 46(1) the retirement age of AHs in Air India was fixed at 30 years or on marriage whichever occurred earlier. Under Regulation 47 the General Manager was given the discretion to extend the retirement age of AHs up to five years subject to their being found medically fit.
5. The demand by the female cabin crew for better terms and conditions of service was referred to a Tribunal presided over by Justice G.D. Khosla. However, the Khosla Tribunal in its Award dated 28.7.1965 did not recommend any change in the above regulations concerning the retirement age.
6. The second round commenced with the dispute concerning the retirement age of AHs of the Indian Airlines which was referred to a Tribunal presided over by Justice Mahesh Chandra. The AHs of Air India were permitted to be imp leaded in the proceedings before this Tribunal. While the Mahesh Chandra Tribunal was seized of the matter, a settlement was arrived at between the AHs of Indian Airlines and its management on 10.1.1972 whereby it was agreed that an AH would retire at 30 years or on marriage whichever was earlier and that the General Manager could retain an AH up to the age of 40 years if found medically fit. Air India submitted before the Tribunal that there should be an interchangeability of the job functions between its male and female cabin crew members. In its Award dated 25.2.1972 the Mahesh Chandra Tribunal rejected this plea on the ground that the job functions of the two streams were distinct and separate.
7. By an agreement arrived at on 30.5.1977 between Air India and an association of its male cabin crew, as evidenced by a Record Note of the same date, the post of Deputy Chief AH was agreed to be phased out. In other words, it was agreed that as and when the incumbent Deputy Chief AHs resigned or retired, they would not be replaced. Also, it was agreed that: 'there will be no interference by the female executives in the work on board so that the authority and responsibility of the Flight Purser is not impaired in any way.' Significantly, the AHs were not consulted before effecting this change.
8. On 12.4.1980 a further change was brought about in the conditions of service of the AHs of Indian Airlines. It was now provided that an AH, if she did not marry within four years of employment, could continue up to 35 years extendable to 40 years, if found medically fit. Corresponding changes were made in Regulation 46 governing AHs of Air India. They would now retire at the age of 35 years or on marriage if it took place within four years of service or on the first pregnancy whichever occurred earlier. There was a discretion in the Managing Director to extend the retirement age up to ten years by granting yearly extensions subject to the AH being found medically fit. As against this, the male cabin crew members i.e. the AFPs and FPs could continue on flight duties until 58 years. It was this discrimination that was challenged by the AHs by filing a writ petition in the Bombay High Court which ultimately came to be transferred to and heard by the Supreme Court.
9. In Air India v. Nergesh Meerza , a three-judge Bench of the Supreme Court concluded (SCC, p.357) that the 'AHs form an absolutely separate category from that of the AFPs in many respects having different grades, different promotional avenues and different service conditions.' It was held that the prescription of a different retirement age for the female cabin crew was not discriminatory and violative of Article 16(1) of the Constitution. The Court also did not find anything arbitrary in the stipulation that that if the AHs married within four years of their joining service they would stand to lose their jobs. However, the Court struck down that portion of Regulation 46 of the service regulations in so far as it provided for termination of service on first pregnancy. It also struck down Regulation 47 which gave an uncontrolled discretion to the Managing Director to extend the services of an AH beyond 35 years and up to the age of 45 years. Both the offending portions were held to be violative of Article 14. The Court explained that the effect of the striking down of these portions would be that 'unless the provision is suitably amended to bring it in conformity with the provisions of Article 14' an AH '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.' (SCC, pp.382-83) The Court also disapproved of the Record Note of 30.5.1977 and observed (at SCC, p.357) that in view of the limited promotional channels available to the AHs, Air India 'should seriously consider the desirability of restoring the post of Deputy Chief AH and thereby remove the serious injustice which has been done to the AHs in violation of the principles of natural justice.'
10. On 17.11.1983, the management of Air India entered into an agreement with the cabin crew, as evidenced by a Record Note of that date, which provided that a senior category of AHs designated as Senior Check AHs would be created and 60 AHs would be promoted to the said post on the basis of the existing promotion policy. The number of posts of Deputy Chief AHs would be raised to 20. Their primary function would be 'supervisory and administrative' and they would be treated as 'non-workmen.' They would also carry out 'confirmation, pre- confirmation and annual checks on AHs and Senior AHs.' The avenues of promotion for AHs wold be through the categories of Sr. Check AHs, Dy. Chief AHs, Additional Chief AHs to Chief AHs. It was further clarified that 'the existing avenues of the promotion for AFPs and IFSs will continue unaffected and the hierarchy on board the aircraft amongst the various categories would remain as at present and there will b no change in the job functions of any category of cabin crew as a consequence of this agreement.'
11. The challenge by Ms. Mulgaonkar, an AH, to the Cabin Crew Manual which provided for separate job functions of the male and female cabin crew was turned down by the Bombay High Court by its judgment dated 22.3.1984. The challenge to the Record Note of 17.11.1983 by Nergesh Meerza and four other AHs was also rejected by the Bombay High Court on 25.7.1984. The further appeal was dismissed by the Division Bench of that High Court on 31.10.1985. A challenge by Ms. Aquilla Mohan to the lower retirement age of AHs was negatived by the Bombay High Court in 1987. A similar petition was dismissed by the Supreme Court by its decision in Lena Khan v. Union of India . It was held that the judgment of the three-judge Bench in Nergesh Meerza was binding on the parties.
12. Pursuant to a recommendation by the Petition Committee of the Lok Sabha that the different retirement ages for male and female cabin crew should be done away with, the Central Government on 16.10.1989 issued a direction to Air India that the male and female cabin crew should be allowed to serve till 58 years. In the ensuing correspondence between the Central Government and Air India, it was clarified by the former by its letter dated 29.12.1989 that age of retirement of AHs would be 58 years but at the age of 35 they would be given suitable alternative jobs on the ground till they completed 58 years. Consequently, Air India issued a circular on 2.11.1990 stating that AHs who had attained 45 years would be assigned ground duties till they completed 58 years. On 12.1.1993 an office order was issued extending the age of AHs for flying duties up to 50 years subject to medical fitness. Thereafter they would be assigned ground duties till they completed 58 years.
13. After the enactment of the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 ('Air Corporations Repeal Act'), Indian Airlines and Air India became two separate companies under the Companies Act 1956. The Air Corporations Act 1953 stood repealed and Air India thus became Air India Ltd. Under Section 9 of the Air Corporations Repeal Act the Central Government could give binding directions to the Air India Ltd. in the performance by it of its functions. Under Section 8(1), every officer and other employee of the erstwhile Air India would continue to serve as such in Air India Ltd. on the same terms and conditions unless he opted within that period not to continue in service in which case he would be deemed to have resigned.
14. On 17.3.1995, a Record Note of Understanding was entered into between the management and cabin crew of Air India Ltd. It was agreed that only 'for the new entrants there will be interchangeability in the job functions between male and female members of the cabin crew to ensure optimum utilization of existing work force, present standard force to be maintained, promotional avenues of the present work force will not be affected and the uniform standard of service will be maintained.'
15. On 24.5.1996, Air India Ltd. issued a circular incorporating its decision to rationalise the designations of certain existing posts. As regards the Executive Cabin Crew, the existing designation of 'In Flight Supervisor/Dy. Chief AH' was designated as 'Deputy Manager In Flight Service' and was assigned a Grade Code of 27. Likewise the existing designation of 'Dy. Manager/Addl. Chief AH' was redisgnated as 'Manager' and assigned a Grade Code of 29. 'Manager/Chief AH' was redesignated as 'Senior Manager- In Flight Service.' In Clause 1.2 of the said circular it was clarified that the revised designations were for 'administrative/Executive ground assignments' and that 'the existing functional designations of Inflight Supervisor and Air Hostess would continue whilst on flight duties in accordance with the prevailing practices.' Clause 7.2 talked of providing 'flexibility in the job functions' and therefore allowing 'interchangeability of administrative/executive ground assignments among Manager/Senior Manager/Assistant General Manager.'
16. On 5.6. 1997, a Memorandum of Settlement was entered into between the management of Air India Ltd. and the Air India Cabin Crew Association (AICCA) wherein it was declared that 'this settlement is in supersession of all other earlier agreements, Record Notes, Understandings, awards and past practices reached between the Management of Air India Ltd. and the Association in respect of matters specifically dealt with or amended or modified and covered by it.' As regards matters not specifically covered by the said Settlement the existing terms and conditions, record notes of understanding, past practices, duties and responsibilities, benefits and obligations covered by the earlier Settlement/Awards would continue to be applicable. Clause 7 states that 'Cabin Crew who are promoted to the grade of Manager (Grade 29) and above will not be represented by AICCA.' A Joint Consultative Committee consisting of four representatives each from the Management and the Association was to be formed to discuss the matters concerning the welfare and other service conditions of the employees. The Annexures to this Settlement detailed the revised scales of pay and other allowances payable in respect of the revised designations of cabin crew. Throughout the 'existing Cabin Crew' is shown as comprising the AFP/AH, Sr.AH/FP, Chk FP/AH, Addl.Sr. Chk 'FP/AH' and so on. Significantly there is no mention of any post of In Flight Supervisor (IFS). In Clause 7 of Annexure A it is mentioned that 'sky bazaar allowance' would be paid to the cabin crew 'until they are actually performing the executive functions in flight as an Inflight Supervisor.'
17. On the same day i.e. 5.6.1997, a revised Promotion Policy for the cabin crew came into effect wherein the promotional avenues for the male cabin crew and female cabin crew recruited prior to the 5.6.1997 were shown separately. However, in respect of those recruited after 5.6.1997, the two streams were merged and a common cadre of 'Cabin Crew' was created. The policy was to govern all promotions from the induction level up to the first executive level of Manager i.e. Grade 29. Under this policy there would be an automatic promotion to the next higher grade based on the length of service in the lower grade. An AFP with 10 years experience would be eligible for promotion as FP/ Sr. Cabin Crew and an AH with 10 years experience would be eligible for promotion as Senior AH. There is no mention here again of the IFS as a promotional post for either the pre 5.6.1997 male or female cabin crew. Clause 7.4 states: 'The present category of Cabin Crew on being promoted to the new/higher grades will continue to perform their job functions prior to such promotion till the time the actual requirement arises in the higher grade/position.' Clauses 7.5.1 and 7.5.2 also refer to the IFS being a function.
18. At this stage a group of 53 AHs nearing the age of 50, including those promoted to the executive cadre for ground duties, formed the Air India Air Hostesses' Association (AIAHA) and filed a writ petition in the Bombay High Court for a declaration that the settlement dated 5.6.1997 between the AICCA and Air India Ltd. was not binding on them since they were in the executive cadre and did not fall within the definition of 'workmen'. During the hearing of this and other similar petitions, Air India made two proposals before the Bombay High Court- the first, that the two cadres of male and female cabin crew members should be merged and their service conditions brought on par. The second was to re-fix their inter se seniority and nullify the effect of the accelerated promotions earned by the AHs with higher allowances to be given to them. By its judgment dated 20/23.8.2001, the Bombay High Court proceeded to record a consensual order to the effect that the age of retirement for AHs for even flight duties would be 58 years; that there would be total interchangeability of the job functions on board the aircraft and total parity between the male and female cabin crew members. The proposal for re-fixing their inter se seniority on that basis was directed to be given effect to. It was further directed that all awards and settlements would stand modified to the extent they were in conflict with the order of the High Court.
19. The AICCA challenged the aforesaid judgment of the Bombay High Court before the Supreme Court on the ground that the consensual order had been recorded despite the vehement opposition of the AICCA as intervener. By its judgment dated 11.7.2003 in Air India Cabin Crew Association v. Yeshaswinee Merchant a two-Judge Bench of the Supreme Court allowed the appeal of the AICCA. It held that the terms and conditions governing the pre- 1997 recruits had been fixed through negotiations, settlements, awards in the course industrial adjudication and that such terms and conditions were a part of the statutory regulations and Standing Orders certified under the Industrial Employment (Standing Orders) Act. It was accordingly held that the Bombay High Court could not have directed the merger of the male and female cadres recruited prior to the year 1997 contrary to such settlements and awards particularly when disputes in that regard were pending before the National Industrial Tribunal. It was held that the subsequent event of the enactment of the Air Corporations Repeal Act and the formation of Air India Ltd. 'could not be made to water down the binding effect of the judgment of this Court in Nergesh Meerza case.' It was observed that the High Court acted against judicial discipline in holding that in view of the passage of time the differences in the service conditions between male and female cadres stood obliterated. The Supreme Court disapproved of the High Court observing that the decision in Nergesh Meerza did not prevent it from making a declaration that a lower retirement age for AHs was violative of Articles 15 and 16.
20. On 21.11.2003, the Government of India in the Ministry of Civil Aviation issued a communication conveying the direction of the President under Section 9 of the Air Corporations Repeal Act to the effect that 'in view of the exigencies of the circumstances and in the interest of operations of Air India, the female cabin crew may be allowed flying duties up to the age of 58 years subject to general conditions prescribed in this regard.' This was followed by an Office Order dated 18.12.2003 issued by Air India Ltd. to its HRD referring to the Central Government's letter dated 21.11.2003 and stating that the Inflight Department may assign flight duties to AHs who have been grounded at the age of 50 subject to the general conditions stipulated.
21. On 16.8.2005, the AICCA wrote a letter to Air India Ltd. stating that 27 vacancies of IFSs existed and that Air India Ltd. was not taking any action to fill the same, in spite of various reminders.
22. On 27.12.2005 the Chairman and Managing Director of Air India Ltd. issued an Administrative Order No. HQ/65-6/4972, which has been challenged in the present writ petitions. After referring to the direction dated 21.11.2003 issued by the central government, the said administrative Order dated 27.12.2005 states:
With this, female Cabin Crew are on par with the male Cabin Crew in respect of age of retirement. With the age of retirement being identical, the Executive Female Cabin Crew can also be considered to be designated as Inflight Supervisors along with Executive Male Cabin Crew, subject to suitability.
It has, therefore, been decided that the Executive Female Cabin Crew will henceforth be eligible to be considered for the position of In Flight Supervisor along with the male Executive Cabin Crew. The number of Executive Cabin Crew to be designated as In Flight Supervisors will be based on the operational requirements of the Company.
23. On 4.1.2006, the appellants in LPA Nos. 1122-125 of 2006 filed writ petitions in this Court challenging the impugned Administrative Order dated 27.12.2005 and an interim order was passed by the learned Single Judge of this Court on 8.1.2006, the contents of which have already been set out earlier in this judgment. The operation of the impugned administrative order was however not stayed by the learned Single Judge.
Submissions of Counsel
24. The arguments on behalf of the appellants and writ petitioners, i.e. the pre-1997 male cabin crew, were advanced by Mr. Ariyama Sundaram, Mr. Dushyant Dave and Mr. R.N. Trivedi, learned Senior Counsel. Mr. Amarendra Sharan, learned Additional Solicitor General, argued for Air India Ltd. Ms. Indira Jaising and Mr. Anand Grover, learned Senior Counsel advanced arguments on behalf of the Respondent AIAHA and other individual AHs respectively.
25. At the outset it needs to be mentioned that although the petitioners in two of the petitions have challenged the validity of Section 9 of the Air Corporations Repeal Act, this was not seriously urged by their counsel during arguments. In any event, considering that the said provision has been on the statute book for over 12 years, this Court takes the view that a challenge to its validity in 2006 ought not to be entertained. The said challenge is hereby negatived on the ground of laches. The other submissions on behalf of the appellants and petitioners (male cabin crew) were as follows:
a) 'Inflight Supervisor' (IFS) is a promotion post, available exclusively to the cadre of FPs, and to the exclusion of all others including the AHs. This is stated to be evident from the numerous settlements and agreements arrived at between the cabin crew association and the management of Air India which are valid and binding on all the parties including the AHs.
b) The binding settlements incorporating the relevant terms and conditions cannot be altered unilaterally by Air India at the behest of a splintered group of the AHs without notice to or consent of the FPs.
c) The position in law that the AHs and the AFPs constitue separate and distinct cadres with no interchangeability of job functions have already been settled by the binding judgments of the Supreme Court in Nargesh Meerza and Yashaswinee Merchant. Any attempt to merge the streams of male and female cabin crew would be contrary to the said judgments of the Supreme Court.
d) The stand of Air India Ltd. that the post of IFS has been abolished is factually incorrect, misleading and false. The abolition of a post is a deliberate act on part of the Government that has to be clearly and unequivocally asserted and established. It is not a matter of inference or interpretation or conjecture. Further the stand of Air India in this regard has been inconsistent. Both the Certified Standing Order (2000) No. 30(1)(e), which governs the workmen cabin crew, and Regulation No. 70(1)(b)(3) of the Air India Employees' Service Regulations, 2000, which govern the Executive cadre refer to it. If the post was indeed abolished in 1996, Air India should have modified/amended the concerned Standing Order under the statutory procedure laid down in the Industrial Employment (Standing Orders) Act, 1946. Therefore, the post is still an existing condition of service.
e) In the alternative, and without prejudice to the contention regarding IFS Supervisor being a promotional post, it is submitted that IFS is at the very least a job function on board an aircraft, and as such, being the subject matter of binding settlements cannot be altered unilaterally.
f) The impugned administrative order inasmuch as it seeks to grant parity between two unequal classes and separate and distinct cadres is a violation of Article 14 of the Constitution of India.
g) By the impugned order dated 21.11.2003 the Executive Female Cabin Crew were made eligible to be considered for the position of IFS along with the male Executive Cabin Crew. Therefore, Union of India and Air India have done precisely what the Bombay High Court and which was set aside by the Supreme Court in the Yeshaswinee Merchant case.
h) Even assuming without admitting that the directions dated 21.11.2003 of the Central Government are valid and that Air India understood them correctly when it issued a direction on 18.12.2003,the combined effect of these two orders was only that the AHs were to be permitted flight duties up to the age of 58 and not that they would be allowed to function as IFS.
i) In view of the previous binding judgments of the Supreme Court, both Air India Ltd. as well as the AIAHA are barred by principles of res-judicata and/or constructive res-judicata from submitting that AHs be allowed to occupy, fill or be promoted to the post of IFSs.
j) The Promotion Policy of the year 1997 maintained the existing situation namely the FPs alone would be entitled to perform functions of IFS. It is, therefore, submitted that the order dated 21.11.2003 has to be read with the aforesaid settlements. Under Section 9 of the Air Corporations Repeal Act, Air India was bound to comply with the said directions and could not act contrary to it.
26. On behalf of the Respondent AHs the submissions were as follows:
(a) The post of IFS was abolished by the Promotion Policy dated 24.5.1996 for the Executive Cadre and the Settlement and Promotion Policy for Cabin Crew dated 5.6.1997. Thereafter the IFS is a functional re-designation and not a promotional post.
(b) No settlements are overridden by the circulars/orders dated 18.12.2003 and 27.12.2005 since the provisions of the settlement do not deal with 'workman' as defined under Section 2(s) of the Industrial Dispute Act, 1947 (ID Act) and are not protected as 'settlements' under Section 2(p) of the ID Act. Further, the IFS has never been included in the cadre of the workmen. It has always been a supervisory/managerial function and therefore, could not have been a subject of binding settlement under the ID Act.
(c) The impugned orders are not contrary to the judgments of the Supreme Court in Nergesh Meerza and Yeshaswineei Merchant since they deal with the category of workmen and not with the Executive Cabin Crew.
(d) Yeshaswinee Merchant proceeded on the policy that the AHs were grounded at the age of 50 years though they continued in service till the age of 58 years. The basis of the said judgment has changed because the Government of India and Air India have by the circular and order dated 21.11.2003 and 18.12.2003 decided that the AHs can fly up to the age of 58 years.
(e)There is no vested or fundamental right in the AFPs or male cabin crew to a 'chance of promotion' much less to a chance of performing a function. Eligibility to promotion to the Executive Cadre is time bound and is the same for both the AHs and FPs and this has not been challenged by the petitioners.
(f) Both Manager and the Senior Manager perform the function of an IFS with no pecuniary benefits. The Managers are entitled to a Performance Linked Incentive (PLI) of Rs. 4000/- and Senior Manager are entitled to PLI of Rs. 5000/-. However, if a Manager is asked to perform the functions of an IFS he also becomes entitled to a PLI of Rs. 5000/- instead of Rs. 4000/-. This is the only monetary benefit in performing the function of an IFS.
(g) The Supreme Court has in Air India v. B.R. Age , held that Air India can issue directions concerning the conditions of employment. Therefore, the impugned directive is within the competence of Air India as well as the central government under Section 9 of the Air Corporations Repeal Act.
(h)The 10 respondents were performing the function of IFS well and there is nothing inherent to being a woman, which disables them from supervising the Cabin Crew. In fact, these respondents have been training male IFSs even before the impugned orders were issued but were not allowed to be IFSs themselves thus creating an anomalous situation. Instead they were made subordinate to the juniors who had undergone training under them. Denying a woman the functions of the IFS and maintaining it as a male preserve is violative of Articles 14, 15 and 16 of the Constitution.
(i) AHs have never enjoyed accelerated promotions because of the many disadvantages imposed upon them such as marital status, and compulsory retirement on having children. Further, since the AHs were a separate cadre, and because of the high attrition rate among the AHs, the vacancies in the AHs cadre at times opened up sooner than they did in the cadre of FPs. Reliance was placed on empirical data to demonstrate the relative advantages enjoyed by the male cabin crew were better when compared to the female counterparts.
27. The learned Additional Solicitor General for India, Mr. Amarendra Sharan appearing for Air India Ltd., submitted as follows:
a) The post of the IFS stands abolished because in the promotion policy dated 5.6.1997, there is no reference to grade 27 carrying the scale of 1100- 1800, in the cadre of FP has been abolished and from Senior Check FP in grade 26 there is now a direct promotion to the post of the Manager in grade 29 which is a supervisory post. Further, the seniority list of 1994 shows existence of IFS Supervisor in the cadre of FP whereas the same does not figure in the seniority list of 1998. The aforesaid policy has attained finality since it has been accepted and acted upon by the parties and no challenge has been made to it.
b) The Supreme Court has in P.U Joshi v. Accountant General , K Rajendran v. State of Tamil Nadu and State of Haryana v. Des Raj Sangar (1976) 2 SCC 866, held that the State or its instrumentality has the prerogative to create and abolish posts. Further, in Balco Employees Union v. Union of India , the Supreme Court has held that right of an employer to frame a policy is an incidence of service.
c) The IFS is purely a job function. There is no prohibition against the AHs by virtue of any settlement implied or otherwise from performing the function of an IFS does not carry any probation period, grade, scale of pay etc.
d) There has been no merger of the two cadres of the AHs and the FPs nor there is any interchangeability of the function. The post of the manager and the senior manager are of executive grade. Merger takes place only at the level of the Assistant manager.
e) The efffect of the judgments of the Supreme Court in Nargesh Meerza and Yeshaswinee Merchant is that the two cadres of the AHs and FPs are not interchangeable. But the said judgments have not held that the AHs Hostesses are not allowed to perform any supervisory function.
f) The submission of the petitioners that the policy permitting the AHs to discharge the functions of the IFS is arbitrary because it has not been brought about after consultation with the unions of the employees is fallacious as unions do not and cannot represent persons belonging to the Executive Cadre and their service conditions are not governed by settlements.
g) Since the two cadres of the AHs and FPs are separate and distinct, the determination of inter se seniority between them is not necessary. However the criteria to be adopted by the management for assigning a cabin crew member to the position of IFS should be seniority-cum-suitability. No other method of fixing the seniority would stand the scrutiny of Article 14. Reliance is placed on the decision in Mohammed Shujat Ali v. Union of India .
Issues that arise for determination
28. On the basis of the pleadings and the submissions by the parties the following issues arise for determination:
(i) What is the effect of the judgments of the Supreme Court in Nargesh Meerza and Yeshaswinee Merchant on the validity of the impugned orders and directives'
(ii) Is the position of an IFS a job function as contended by the respondents or a post as contended by the petitioners and how does this affect the claim of the male cabin crew to an exclusive right of appointment to such position'
(iii) Are the impugned circulars and orders rendered invalid either on procedural due process violations and/or on the grounds of discrimination, arbitrariness or irrationality' Are they violative of any previous settlements and agreements Issue (i): Effect of Nergesh Meerza and Yeshaswinee Merchant
29. Extensive arguments have been advanced on the basis of the aforementioned two decisions of the Supreme Court. In fact the main plank of the submissions of the male cabin crew was that the impugned orders and circulars are in clear violation of the law laid down by the Supreme Court in the said decisions. Further it was submitted that the error committed by the Bombay High Court, which was corrected by the Supreme Court, was being repeated by the respondent Air India. It is in this background that the said two decisions are discussed hereafter at some length.
30.1 The background to the decision in Nergesh Meerza has already been set out at some length earlier. The issue before the Court concerned the validity of the lower retirement age of 35 years stipulated for the AHs under the Regulations. As against this the male Cabin Crew members i.e. the AFPs and FPs could continue on flight duties until 58 years. It has also been already noticed that a three- Judges Bench of the Supreme Court struck down the Regulations in so far as they provided for termination of service on first pregnancy and gave an unbridled power to the Managing Director to grant extension of service beyond 35 years and up to 45 years for Ahs subject to their being found medically fit.
30.2 It was urged before the Supreme Court that since the AFPs and the AHs were members of the same cabin crew performing identical or similar duties, any discrimination between these two members would be violative of Article 14 of the Constitution. However, this was not only the argument advanced on the basis of discrimination. The other arguments advanced were that Air Hostesses have been selected for hostile discrimination on the ground of sex or disabilities arising from sex and, therefore, the regulations amounted to a clear infraction of the provisions of Article 15(1) and Article 16 of the Constitution of India. It was urged that 'no material has been placed before the Court to prove that efficiency of the Air Hostesses in any way impaired at the age of 40 or 45 years of age so as to make a cross discrimination between the male pursers and Air Hostesses'. It was urged that the AHs had been deprived of promotional opportunities available to their male counterparts in the cabin crew.
30.3 Dealing with the submission that the AFPs and AHs were members of the same cabin crew performing identical or similar duties and therefore were to be treated alike, the Supreme Court concluded that the two classes i.e. the Assistant Flight Pursers and Air Hostesses were different and distinct. In para 57 of the judgment (SCC, at page 357) the Supreme Court indicated that 'Air Hostesses form an absolutely separate category from that of Assistant Flight Pursers in many respects having different grades, different promotional avenues and different service conditions.' 30.4 Even while the Court held as above, it did not accept the argument made on behalf of the Air India that the fact that the job functions performed by the AFPs and AHs were entirely different was an important circumstance to prove that AHs formed a class 'completely separate from the class of Assistant Flight Pursers.' The Court observed (SCC, p.359):
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 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 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 give help and do the work of other categories for the smooth flight.
(vide pp. 1259-60 of the Mahesh Award)
61. 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.
30.5 The Court negatived the argument that the regulations which mandated that the Air Hostesses should not marry within four years of the service failing which their services would be terminated was neither unreasonable nor arbitrary. The Supreme Court further observed (SCC, p.371) that 'by making pregnancy a bar to continuance in service of an Air Hostess, the Corporation seems to have made an individualised approach to a woman's physical capacity to continue her employment even after pregnancy which undoubtedly is a most unreasonable approach.' Accordingly the last portion of Regulation 46(1)(c) which provided for termination of the service of an Air Hostess on the occurrence of the first pregnancy was struck down as violative of Article 14 of the Constitution.
30.6 As regards the age of retirement, the Court was not impressed with the argument that the Air Hostesses were required to be young and attractive and, therefore, it justified the lower retirement age. The Court held (SCC, p. 376): '108. The argument that Air Hostesses should be young and attractive and should possess pleasing manners seems to suggest that Air Hostesses should by their sweet smiles and pleasant behavior 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 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 a bad taste and is proof of positive of denigration of the role of women and a demonstration of male chauvinism and verily involves nay discloses an element of unfavorable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.' 30.7 Even while the difference in retirement age was found not to be discriminatory, the uncanalized power to the Managing Director was frowned upon. The Court accordingly held (SCC, p.380):
120. ...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 on an AH. 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 Article 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.
30.8 It is clear from the reading of the judgment in Nergesh Meerza, that the Court was essentially considering the charge of discrimination against the AHs Hostesses on the ground of difference in the retirement age between them and their male counterparts constituting the cabin crew. The consideration and rejection of the argument that they performed identical functions was only incidental to this conclusion. Nevertheless, the Court did not agree with the submission that the job functions were entirely different. The Court emphasized that job functions 'though obviously different overlap on some points but the difference, if any, is one of degree rather than two separate classes.' The Court emphasized that 'being members of the crew in the same flight, the separate classes have to work as a team helping and assisting each other, particularly in case of emergency.' 30.9 The argument on behalf of the petitioners that Nergesh Meerza decides conclusively that AHs perform a very different function from that of their male counterparts during the flight, is not based on a correct reading of the judgment as a whole. In any event the judgment cannot be read as a justification for continuing to treat AHs differently. It is clear from a reading of the judgment in Nergesh Meerza that the Court was examining whether the regulations as they then stood subjected the AHs to hostile discrimination in the matter of retirement age. Even while upholding this difference, the Supreme Court struck down those parts of the Regulations which were found by it to be unreasonable. Still, the Court clarified that its ruling would hold good till a suitable amendment was made by the Management. In other words any subsequent amendments to the Regulations by Air India were left open. It was not and could not have possibly been foreclosed by the Court for all times to come.
30.10 The present factual scenario of a possible equation of the male and female cabin crew in terms of their chances of being asked to perform the function of an IFS was not present before the Court in Nergesh Meerza. The appellants and petitioners cannot take the aid of that judgment to contend that there can never be a similar treatment of the male and female cabin crew members of Air India. It lays down no such proposition. It is one thing for a Court to say that a measure is discriminatory but quite another to say that such measure should continue for all times to come. There is nothing in Nergesh Meerza that prohibits the Respondent Air India from eliminating those aspects of discriminatory treatment which were complained of in the petitions which were decided by the Supreme Court. In fact Nergesh Meerza frowned upon an attempt by the Air India to do away with post of Dy. Chief AH behind the back of the female cabin crew by the Record Note of 30.5.1977. It expressed the hope that Air India 'should seriously consider the desirability of restoring the post of Deputy Chief AH and thereby remove the serious injustice which has been done to the AHs in violation of the principles of natural justice.' Further, the Supreme Court approvingly quoted the observations by the Mahesh Chandra Tribunal that: '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 give help and do the work of other categories for the smooth flight.' 31.1 We now turn to the decision of a two-Judge Bench of the Supreme Court in Yeshaswinee Merchant. The background in which the said decision was rendered by the Supreme Court has already been discussed. However, at the risk of some repetition certain important facts bear recapitulation. The immediate provocation for a group of 53 AHs to again approach the Bombay High Court was a settlement dated 5.6.1997 whereby all earlier settlements, awards record notes and understandings were agreed to be continued as applicable. This group contended that they were no longer 'workmen' and therefore were not bound by the settlement.
31.2. Although by this time the retirement age was equalized at 58 years, the AHs were to be assigned flight duties only till they were 50 and thereafter they were to be assigned ground duties. The High Court acted on one of the two proposals submitted to it by Air India during the hearing for re-fixing the inter-se seniority between male and female members of the cabin crew by nullifying the effect of accelerated promotions already earned by the AHs with higher allowances being given to them. This was recorded as a consensual order although the AICCA opposed it. Moreover the Bombay High Court also declared that 58 years would be the retirement age for AHs for flight duties as well thus bringing them on par with the AFPs for all purposes. It directed the merger of the two cadres despite the opposition of the intervener AICCA.
31.3 The Supreme Court, while allowing the appeal of the AICCA, set aside the judgment of the Bombay High Court. The principal ground on which it held so was that the Bombay High Court had, according to it, nullified the judgment of the Supreme Court in Nergesh Meerza by relying on subsequent events. It was held in paragraph 46 of the judgment as under (SCC, p.303):
46. It is surprising that the High Court in the impugned judgment completely sidestepped the legal issues firmly settled in the decision of the three-Judge Bench of this Court in Nergesh Meerza case which were binding on it. By the impugned judgment, the High Court has indirectly nullified the effect of this Court's decision in the case of Nergesh Meerza and in doing so relied on subsequent event. The subsequent event is that for fresh recruits after 1997 in the services of Air India, which is now a company formed under the Air Corporations Act of 1994, the male and female cabin crew members have been merged into a common cadre with uniform service conditions. Recourse to this subsequent event could not be made to water down the binding effect of the judgment of this Court in Nergesh Meerza case.
47. The High Court, we must say, acted against judicial discipline in taking a view in favor of the respondent Association on an erroneous basis that with the passage of time differences in service conditions between male and female cadres have been obliterated and the decision in Nergesh Meerza case does not bind the High Court from making a declaration that lower retirement age of air hostesses from flying duties is a discrimination based only on sex which is violative of Articles 15 and 16 of the Constitution.
31.4 The Supreme Court also disapproved the judgment of the High Court seeking proposals from the Air India for bringing about parity. It observed as under (SCC, p.304):
The High Court was aware that there were agreements, settlements and awards laying down different terms and conditions of female and male cadres. It was also aware of the decision of this Court in Nergesh Meerza case wherein it was held that air hostesses and flight pursers constitute two different cadres justifying fixation of different service conditions and ages of retirement from flying duties. The High Court could not have, therefore, adopted a wholly impermissible course of accepting and putting its seal and signature on the conditional proposal of the employer dehors even the conditions stipulated for the offer that the air hostesses can be granted the same retirement age of 58 years from flying duties on a par with flight pursers provided they agree for merger of the two cadres and withdrawal of all earlier benefits available to them such as accelerated promotions, higher seniority, higher allowances and better pensionary benefits. How could the High Court forget that at the instance of a very small number of air hostesses in the executive cadre, it was accepting conditional proposal of the employer and thus, prejudicially affecting majority of air hostesses of workmen category who were bound and satisfied with the agreements, settlements as also awards made between their association and the employer from time to time
49. The High Court also gave no importance to the fact that the industrial dispute on refixation of terms and conditions of the employees of the Indian Airlines as the newly formed company was pending adjudication before the National Industrial Tribunal in which notices have been issued to Air India and its employees and their associations. It is not disputed that employees of Air India through different associations including the appellants and the respondent Association have submitted their claims before the Tribunal. In such a situation the High Court ought to have recused itself from undertaking a parallel exercise of fixing terms and conditions of male and female employees of Air India. On the basis of self-serving proposals made by the employer and despite strong protest raised against it by the appellant AICCA, which represents the majority members of the male and female cabin crew of Air India, the High Court could not have been accepted the proposals of the employer and varied the terms and conditions of pre-1997 recruits of Air India by directing merger of male and female cadres. The High Court thus has nullified the binding agreements, settlements and awards and frustrated the adjudication of disputes pending before the National Industrial Tribunal to which the Indian Airlines and its employees are parties and Air India and its employees through their association have been summoned to participate.
31.5 The Hon'ble Supreme Court reversed the judgment of the Bombay High Court which had found the conditions of service applicable to the AHs to be discriminatory under Articles 14, 15 and 16. The Court held as under (SCC, p.305):
51. We have already found above that early retirement age fixed for women from flying duties with option to them to go after 50 years of age to ground duties is a condition of service fixed after negotiations and settlements with association of air hostesses represented by AICCA with appropriately matching numerous advantages and betterment to match them. We have also found that early retirement age for women from flying duties has been found favorable by majority of air hostesses represented through the appellant AICCA before us who support the age of retirement and option for ground duties given to them. Air India is a travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. The air hostesses have agreed to the early retirement age, as they need an option to go for ground duties after the age of 50 years. The arguments advanced on behalf of the respondent Association, therefore, cannot be accepted that the air hostesses are made to retire at an age earlier than males because of their failing physical appearance and it is a practice derogatory to the dignity of women. For services on board an aircraft, both male and female members of the crew are expected to be smart, alert and agile.
52. The early retirement age of 50 years from flying duties for female members of the crew with an option to them to accept ground duties beyond 50 years up to the age of 58 years being a service condition agreed to and incorporated in a binding agreement or settlement and award reached with the employer, the same cannot be held to be either arbitrary or discriminatory under Articles 15 and 16 of the Constitution. It is not a discrimination against females only on ground of sex. As a result of the impugned judgment of the High Court, there would be merger of the two cadres of air hostesses and flight pursers and the air hostesses would have to compulsorily continue on flying duties up to the age of 58 years even though for health and family reasons they are unable to fly after the age of 50 years. On the order of the High Court and after the merger of cadres of male and female employees, the females have to resign from their jobs if they do not want to fly up to the age of 58 years. The order of the High Court requires the air hostesses to give up their more advantageous conditions of service for which they had held negotiations with the employer and obtained binding settlements and awards in the course of industrial adjudication.
53. The decision in Nergesh Meerza case was binding on the High Court. The High Court was clearly wrong in holding that it had become inapplicable by passage of time. It is not open to a High Court to indirectly overrule a judgment of this Court or try to sidetrack it on the basis of subsequent events which were not relevant for pre-1997 recruits. The separation of male and female cadres with differences in their conditions of service, seniority, emoluments and allowances remained unchanged for pre-1997 recruits and the merger has taken place only for male and female new recruits after 1997.
31.6 A careful reading of the judgment in Yeshaswinee Merchant would go to show that the Supreme Court was dealing with a demand by the AHs for removal of the discrimination in the matter of retirement age that was continued by a settlement between Air India and the AICCA. The issue essentially centered around the lower age of retirement of the AHs. The Supreme Court went by the principle that the earlier settlement was binding on all the parties and that the High Court could not have sidestepped the said settlement. The Supreme Court was not dealing with any circular issued by the Air India which eliminated an element of discrimination against the AHs. In other words, that was a situation where the AHs had approached the Court complaining of discrimination. The AHs wanted a change of status quo to which the Air India had not agreed. The judgment of the High Court sought to bring about a change in the status quo by a means of consensus. In the circumstances, the Supreme court found that the decision of the Bombay High Court, if allowed to remain, would be contrary to the settlement already arrived at and also in the teeth of the opposition of the major union viz., the AICCA.
31.7 It is essentially for the above reason that the Supreme Court reversed the Bombay High Court. It felt that the settlement should be respected and could not be over-turned only because a small number of employees did not find it to be fair and reasonable. In doing so, the Supreme Court also held that prohibiting the female cabin crew from flying beyond 50 years of age was, in light of the decision in Nergesh Meerza, not discriminatory. Clearly even in Yeshaswinee Merchant the Supreme Court was not examining if there was any discrimination against the AFPs by granting to the AHs a facility on par with them. The Supreme Court really was concerned with the question whether the Bombay High Court was within its jurisdiction to do so and it answered the question in the negative. There was no occasion for the Supreme Court to examine if the Air India or the Central Government could validly bring about such change in exercise of their respective statutory powers under the Air Corporations Repeal Act.
31.8 The approach in the two situations is not and cannot be the same. In fact where the change is pursuant to a policy decision, the Court would be loathe to interfere unless the policy is shown to be malafide (See for e.g., Balco Employees Union (Regd) v. Union of India . It hardly needs emphasis that there is a distinction between Air India itself bringing about a change in the service conditions in exercise of its statutory powers and the Court bringing about such a change through a mandamus. What we have now is a change in the policy of the Air India which is expressed in the impugned circulars and notifications whereby the treatment meted out to the cabin crew both female and male is no different. Just as, after the judgment in Nergesh Meerza, the Air India itself brought about many changes in the treatment meted out to the male and female members of cabin crew, they have likewise brought about further changes after the decision in Yeshaswinee Merchant.
31.9 To illustrate, even while the Supreme Court in Nergesh Meerza and Yeshaswinee Merchant upheld the lower retirement age of female cabin crew, this was subsequently changed by Air India to permit the female cabin crew to fly till the age of 50 and to perform ground duties till 58. It is nobody's case that this change was violative of the decision in Nergesh Meerza or of any settlement reached prior to or after that judgment. To make good such a point it would have to be shown that Nergesh Meerza in fact specifically prohibits the increase in the retirement age of the female cabin crew beyond 35 years. Surely that is not what Nergesh Meerza holds or does.
31.10 Post 1997, there has been a merger of the cadres of the male and female members of the cabin crew. This is quite different from what prevailed at the time of the judgment in Nergesh Meerza. It is nobody's argument that such a merger is unconstitutional or invalid or that it runs contrary to what was held in Nergesh Meerza. In fact, in Yeshaswinee Merchant also, the Supreme Court recognized that the employer can take a policy decision to re-organise its organizational structure to remove elements of discrimination. The only question in Yeshaswinee Merchant was whether the High Court could have brought about a situation where, in accepting the plea of female cabin crew it would affect the settled rights of the pre-1997 male cabin crew. The Supreme Court in Yeshaswinee Merchant was of the view that the settlement entered into protected the rights of the pre-1997 male cabin crew and could not have been disturbed by the High Court by issuing a mandamus.
31.11 Even in the present case, the entire controversy has narrowed down to the rights of pre-1997 male cabin crew. Actually the point of alleged discrimination is much narrower. This time it is the male members who have come to the Court questioning the impugned order in so far as it equates pre- 1997 male and female cabin crew in the matter of a chance to perform the executive function of IFS. The question that requires to be addressed is whether by doing so the Air India has acted unreasonably and in violation of any of vested rights or of the fundamental rights of the pre-1997 male cabin crew under Articles 14 and 16 of the Constitution. This question was not considered by the Supreme Court either in Nergesh Meerza or in Yeshaswinee Merchant.
31.12 We do not think that there is anything in the observations of the Supreme Court in either Nergesh Meerza or Yeshaswinee Merchant that precludes Air India from taking a policy decision to remove, what is perceived by it to be an element of discrimination between the male and female members of the cabin crew. The criticism that the Bombay High Court attracted in Yeshaswinee Merchant to the effect that it had, contrary to the settlements, ordered a merger of the two separate cadres of pre-1997 cabin crew does not hold in the instant case for the simple reason that there is no merger of the two pre-1997 cadres even as per the Promotion Policy and Settlement dated 5.6.1997. It is only post 5.6.1997 that the two cadres have been merged into a unified cadre. In the matter of either flying duties or in the matter of seeking avenues of promotion, the rights of one cadre need not be to the exclusion of the rights of the other. In fact what has happened is that in terms of the impugned order both the pre-1997 male and female cabin crew have an equal chance of being considered for performing the function of IFS in accordance with their seniority. This was not the subject matter of challenge earlier. Neither Nergesh Meerza nor Yeshaswinee Merchant deal with it. In both the only question was the differential retirement age. It is one thing to say that there can be a challenge to the existing arrangement on the ground of hostile discrimination under Article 14 of the Constitution of India. It is another to say that the Court should issue a mandamus to preserve a situation of discrimination. That is how the petitioners want this Court to read the two judgments in Nergesh Meerza and Yeshaswinee Merchant as doing. We do not think that is permissible. There is nothing arbitrary or discriminatory in the Air India removing the elements of discrimination between male and female cabin crew and certainly neither judgment prohibits such course. Issue (i) is answered accordingly.
Issue (ii): Is IFS a post or a job function' 32.1 The Court finds that there is abundant evidence on record to suggest that IFS is in fact a description of a job function and is not a post.
32.2 The Circular dated 24.5.1996 indicates that the post of the In-flight Supervisor, Grade-27 and Deputy Chief Air Hostess, Grade-27, were rationalised as Deputy Manager-In-flight Services, Grade-27. This was further reiterated in the Settlement and Promotion Policy for Cabin Crew dated 5.6.1997 wherein it was settled between the Air India Cabin Crew Association and the Management that henceforth the first promotion out of the workman category and the Executive category would not be into Grade-27, Deputy Manager-In-flight Services but directly into the Grade and Cadre of Manager, Grade-29. Thus, the fact that the post of the In-flight Supervisor was abolished is apparent from the fact that the entire Grade-27 was done away with.
32.3 The Circular dated 24.5.1996 also records that the post of IFS and Deputy Air-Chief AHs were both re-designated as Deputy Manager-In-flight Services and the scales of pay etc. were made same for the administrative/executive ground assignments and that only the functional designations of IFS and the AH would continue while on flight duties. The Annexures to the settlement dated 5.6.1997 also refer to the IFS as an 'executive function in flight.' 32.4 All the letters to the cabin crew subsequent to the Promotion Policy of 5.6.1997 do not address them as 'in-flight Supervisors' but inform them that they are being posted as Manager and Senior Manager as the case may be. In fact, the positions of the Senior Check Flight Purser and Check Air Hostesses are also redesignations and not promotions.
32.5 Para 7.5.2 of the Promotion Policy of 5.6.1997 states 'Performing the functions of an In-flight Supervisor' and not of a promotion to the post of the In-flight Supervisor. Para 7.5.2 reads as follows:
In case of promotee male Cabin Crew, (recruited prior to March 1995) to the executive grade, i.e., Manager onwards, they will bid for their flights, avail the same timeoff and FDTL as a AFT/FP. Once such promotee Cabin Crew start performing the functions of an In-flight Supervisor on a regular basis they will be governed by the rules applicable to executive Cabin Crew in this regard.
The other clauses in this document also bring out this distinction. Whatever may have been the wording of the documents prior to this date, they lose significance since the settlement dated 5.6.1997 and the Promotion Policy of the same date, which have been accepted and acted upon by the petitioners, make this explicit.
32.6 The court is also not able to discern any clause in any of the earlier settlements that mandates that the position of IFS is exclusively reserved for the male cabin crew. Certainly the settlement dated 5.6.1997 does not say so. The contention of the petitioners in this regard deserves rejection as being unsupported by the record. Also, the contention that the decisions in Nergesh Meerza and Yeshaswinee Merchant constitute res judicata or even constructive res judicata to preclude the respondents from equating the two cadres is untenable as it is based on an erroneous understanding of the said two decisions.
32.7 The Petitioners have also not been able to demonstrate that the pre-1997 male cabin crew have any right much less a vested right to be allowed to perform the executive function of IFS for all times to come to the exclusion of the female cabin crew. Even if, as contended by the petitioners, the IFS were to be considered to be a promotional post, even then there cannot be a vested right in the petitioner to such post. That part of the law is well settled. Therefore, it does not help the argument of the petitioners to ask for a determination on whether IFS is in fact a post or a job function and further whether such post has been abolished. The subsequent circulars issued by Air India indicate that the description or the position has changed and therefore there is no immutability attached to the function of an IFS.
32.8 A careful perusal of the documents concerning the post-1997 settlements and policies show that the IFS is indeed no longer a post much less a promotional post. It does appear that the post of IFS stands abolished even while it survives as an executive function on flight to be discharged by the cabin crew. It is also fairly well settled that it is a prerogative of the Air India as an employer to abolish a post (See for e.g. P.U Joshi v. Accountant General and K Rajendran v. State of Tamil Nadu . However, it may not be necessary to examine the issue any further since the petitioners have not made out a case of there being any vested right in them to discharge the function of IFS to the exclusion of the female cabin crew. Issue (ii) is answered accordingly.
Issue (iii): Are the impugned orders invalid on procedural or substantive grounds' Are they violative of any settlements' 33.1 Although the challenge is these petitions is also to the order dated 21.112003 which permits women to fly till they are 58 and the consequential order dated 18.12.2003, the immediate provocation for this litigation is the impugned Administrative Order dated 27.12.2005. Indeed, counsel for the petitioners trained their guns essentially on the last-mentioned order.
33.2 The petitioners attack the validity of the impugned orders on procedural and substantive grounds. Neither the order dated 21.11.2003 or the circular dated 18.12.2003 can be said to violate any settlement or agreement mandating prior consultation since they are in furtherance of the statutory mandate in terms of Section 9 of the Air Corporations Repeal Act. The text of the order dated 21.11.2003 makes it explicit that decision to permit women cabin crew to fly till are 58 is clearly that of the Central Government and that it contains a direction to the Air India in exercise of the powers conferred by Section 9. The order dated 18.12.2003 issued by Air India is consequential and in acknowledgement of the binding nature of the directive of the Central Government. Such an order is valid and binding on all the employees as explained in the decision in Air India v. B.R. Age .
33.3 As regards the order dated 27.12.2005, this Court finds force in the contention advanced by the Respondents that it is in the nature of an administrative direction for which the question of the applicability of the principles of natural justice does not get attracted. As regards the settlements and agreements, the detailed narration indicates that a change had already been brought about by the 5.6.1997 promotion policy. That policy, pursuant to a settlement of the same date, has been accepted by the male cabin crew and acted upon by all the parties. The impugned directive dated 27.12.2005 was in furtherance of the policy change so brought about as well as the policy directive of the central government as contained in its order dated 21.11.2003. In fact, as we proceed to hold hereafter, the impugned directive in fact does not impinge on any of the earlier settlements or agreements. We do not see how in these circumstances the impugned orders can be assailed on the ground of the failure of prior consultation with the male cabin crew.
33.4 There is merit in the contention of the respondents that in the present round of litigation, unlike the earlier ones, we are not concerned with workmen whose terms and conditions were determined by the awards. The applicability of the ID Act to these posts of executive cabin crew appears to also be in doubt. Even the award of the Mahesh Chandra Tribunal, which has been quoted with approval by the Supreme Court in Nergesh Meerza concluded (at internal page 54 of the report) that 'the duties of a Deputy Chief Air Hostess are both administrative and supervisory. Even if there are some incidental duties of a workman which she performs, that would not change the supervisory and administrative character of her duties.' Therefore nothing much turns on the point concerning the amendment of the Standing Orders. We are of the view that no ground for interference with the impugned orders on the ground of non- compliance with any mandatory procedural requirement has been made out by the petitioners.
33.5 That brings us to the challenge on merits. The male cabin crew members argue that the earlier settlements and agreements somehow assure them that for all times to come those of them belong to the pre-1997 category will never be asked to serve on a flight which possibly has a pre-1997 female colleague of theirs as IFS. After scourging the settlements and agreements and understandings between them and the Air India, copies of which have been placed on record, we are unable to discern any such assurance or promise. Repeatedly it was urged that the clauses in the settlement of 5.6.1997 read with the promotion policy of the same date (clauses 7.4, 7.5.1 and 7.5.2 in particular) mandated that 'only' the male cabin crew can be asked to perform the function of the IFS. In the absence of any such stipulation in any clause of either document we are not persuaded to read them in that manner.
33.6 Considerable arguments were advanced to show that the impugned orders bring about a merger of the two separate cadres of male and female cabin crew and this violates the earlier settlements. In the first place, it is accepted without any challenge that such merger post 1997 is valid. Therefore, in principle, there is nothing in the settlements that militates against the merger of the two cadres as far as it concerns the post-1997 recruits. In fact it is consistent with the settlement of 5.6.1997 and the Promotion Policy of the same date. The earlier situation at the time the Nergesh Meerza decision was rendered has obviously undergone a change in this regard and such change has been accepted and acted upon by the parties. As regards the pre-1997 cabin crew as has already been noticed, there is no merger of the two cadres or any interchangeability of their functions.
33.7 The petitioners then attempted to demonstrate that the impugned order dated 22.214.171.1245 was discriminatory and unreasonable and therefore violative of Article 14 of the Constitution. Numerous judgments on the scope and effect of the equality clause enshrined in Article 14 were cited at the bar. However, since the legal principles are not in doubt, we do not wish to discuss those judgments. The questions posed by the petitioners are these: How reasonable is the impugned measure from the stand point of the male cabin crew' Or, as they wish us to ask, is it unreasonable to them or does it subject them to discrimination' 33.8 In approaching the question whether the impugned measure is either discriminatory or unreasonable the question one needs to ask is whether it is designed to achieve a purpose that is legitimate. What is under challenge here is, according to us, a measure that removes an element of discrimination against women. The function of IFS which earlier had a 'men only' tag has now been made available to the female cabin crew as well. The legitimate purpose was the removal of discrimination, and therefore well in tune with the mandate of our equality clause in Article 14.
33.9. This is a case of removal of inequality and not its imposition. These are measures that the state and its instrumentalities are mandated to strive for by our Constitution as well as the international conventions to which India is a state party. In the context of the present dispute the relevant international covenant, which India has ratified, is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, which has been held by our Supreme Court in Vishaka v. State of Rajasthan to apply in full measure. Under Article 17(1) of the CEDAW, the Committee on the Elimination of Discrimination Against Women ('the CEDAW Committee') is the expert body responsible for considering the progress made in the implementation of CEDAW. It considers the country reports prepared by States parties on the legislative, judicial, administrative or other measures adopted to give effect to the CEDAW. Under Article 21(1), it also has the power to make 'suggestions and general recommendations' based on that material. The General Recommendations made by the CEDAW Committee are interpretative comments which develop further analysis of the articles and areas of the CEDAW. These Recommendations are helpful in implementing human rights standards at the domestic level. They are meant to guide judicial functioning in the area as well.
33.10 At its 30th Session in 2004, the CEDAW Committee General issued its Recommendation No. 25, on Article 4, paragraph 1, CEDAW in which it reiterated that 'the States parties to the Convention are under a legal obligation to respect, protect, promote and fulfill this right to non-discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men.' The Committee then proceeded to make certain observations on what requires to be done by the States to achieve de facto equality and these deserve to be noticed, as they provide a useful yardstick to answer the questions posed:
9. Equality of results is the logical corollary of de facto or substantive equality. These results may be quantitative and/or qualitative in nature; that is, women enjoying their rights in various fields in fairly equal numbers with men, enjoying the same income levels, equality in decision-making and political influence, and women enjoying freedom from violence.
10. The position of women will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed. The lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.
11. Women's biologically determined permanent needs and experiences should be distinguished from other needs that may be the result of past and present discrimination against women by individual actors, the dominant gender ideology, or by manifestations of such discrimination in social and cultural structures and institutions. As steps are being taken to eliminate discrimination against women, women's needs may change or disappear, or become the needs of both women and men. Thus, continuous monitoring of laws, programmes and practices directed at the achievement of women's de facto or substantive equality is needed so as to avoid a perpetuation of non-identical treatment that may no longer be warranted.
33.11 One way of testing the reasonableness of the impugned directive dated 27.12.2005 is to ask if what is reasonable from the point of view of the female cabin crew is necessarily unreasonable from the point of view of her male counterpart. If a female colleague is good enough to serve on the flight and whose job functions are not dramatically different from the male colleagues which fact was recognized even in Nergesh Meerza, there is no reason why the female colleague cannot be the person in-charge of the cabin crew on the flight. In fact there is no denial by the petitioners that the AHs have themselves trained some of the male cabin crew for performing the function of IFS while they were themselves denied that chance. In fact we now have women pilots who certainly control far more on board than any other employee of the air carrier. We do not think that any male co-pilot can reasonably argue that being asked to serve on flight with a woman as a pilot is discriminatory to him.
33.12 As regards any pecuniary advantage attaching to those on flight duties, it has already been shown that it is not very significant. There can be no prejudice caused on this score either. Also in real terms it is not as if the pre-1997 male cabin crew altogether lose their chance to be assigned the function of IFS. That chance is now to be also shared by their female counterparts. If the number of flights increases, and it is likely to as a result of the merger, it is possible that the misgiving or hardship felt by the pre-1997 male cabin crew might get further reduced.
33.13 It has been observed by the Supreme Court in Nergesh Meerza case that the two separate classes should learn to work as a team. The Mahesh Chandra Tribunal too said; 'Although there are different duties fixed for different categories, it is necessary for each category to give help and do the work of other categories for the smooth flight.' This is really the crux of the matter and the answer as far as this Court is concerned is very clear. There is no discrimination to which the male cabin crew is being subjected to, only because a female colleague of theirs is heading the cabin crew during the flight. These are chances equally available now to both the males and females. The chance is based on seniority which is the only rational criteria in such circumstances. It is just as well that this has come about in the country's premier airlines. That it has taken so many years to come about is explained by the long history of litigation of this case. Air India's action removes the 'men only' tag to the position of the IFS. It has perhaps enabled its female cabin crew while on flight duties to break the ``Glass Ceiling'` (a concept that describes the invisible and artificial barriers that impede women from advancing to senior leadership positions in organizations). Such a measure is in our view consistent with the mandate of Articles 14 and 15 of the Constitution as well as the mandate of the CEDAW.
33.14 The Court has been shown data to demonstrate that promotions made from the AH's cadre were fewer than those of the cadre of the FPs. Assuming that the AHs did get accelerated promotions, it was effectively neutralized in the year 1997 by introducing a policy which laid down that all the Cabin Crew had to wait for 22 years in the workman cadre before entry to the Management cadre. Thus, where the AHs could have previously entered in the Management Grade after the 18 years of service, but in terms of the 1997 Promotion Policy they were made to wait for 22 years in the workman cadre before being promoted to the Management Grade.
33.15 It has also been shown that AFPs/FPs did not suffer any particular disadvantage in the past vis-vis the female cabin crew. For instance, they did not suffer any loss in seniority because of the requirement of an added qualification imposed on them. A person could be a graduate by the age of 19 years which was the age of entry. The fact that prior to 1980 the AFP either had to be graduates on joining or had to have three years work experience whereas the AHs had to have passed SSC gave the AHs no advantage in terms of joining as they too had to wait till the age of 19 years before they could join. In any event from 1990 onwards the entry level of the AHs and AFPs was brought at par. Thus, those AFPs who were recruited after the year 1990 did not suffer any disadvantage.
33.16 In the circumstances, this Court is not prepared to hold the impugned orders as being unreasonable or discriminatory to the male cabin crew or violative of Article 14 of the Constitution. They do not violate any of the settlements and cannot be invalidated either on procedural or on substantive grounds. Issue (iii) is answered accordingly.
34. We must summarise what we have said in this judgment. This Court is unable to discern in any of the settlements any assurance or promise held out to the pre-1997 male cabin crew that a female colleague of theirs will never ever be asked to perform the function of an In Flight Supervisor (IFS). Nor do the judgments of the Supreme Court in Nergesh Meerza and Yeshaswinee Merchant say so. The impugned orders dated 21.11.2003, 18.12.2003 and 27.12.2005 are not discriminatory to the male cabin crew. In fact, far from eliminating the possibility of the male cabin crew performing the function of IFS, the impugned order dated 27.12.2005 provides a chance to their female colleagues as well. In effect it removes the 'men only' tag on the function of IFS. This Court also finds nothing arbitrary, unreasonable or irrational in the pre-1997 male cabin crew being asked to serve on a flight which has their female colleague as an IFS. Air India Ltd. has enabled its female cabin crew to break the 'glass ceiling'. From a constitutional perspective, we cannot find fault with that.
35. For the above reasons, the challenge by the petitioners in these petitions fails. The writ petitions are dismissed. The appeals and applications are disposed of accordingly and all interim orders stand vacated. There will be no orders as to costs.