Jammu & Kashmir High Court
Dr. Sonakshi Gupta And Ors vs Ut Of J&K And Others on 10 July, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
2026:JKLHC-JMU:2020
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
...
WP(C) No. 3509/2025 (O&M)
Reserved on: 06.07.2026
Pronounced on: 10.07.2026
Uploaded on: 10.07.2026
Whether the operative part or full
Judgment is pronounced: Full
Dr. Sonakshi Gupta and ors.
.......Petitioner(s)
Through: Mr. Abhinav Jamwal, Advocate
Versus
UT of J&K and others.
.....Respondent(s)
Through: Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Advocate
CORAM:HON'BLE MR JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. In a glaring departure from its character as a compassionate welfare
State, the respondents have sought to penalize the petitioners for the
foundational human experience of motherhood. The petitioners,
engaged as Senior Residents/Tutors under the 2020 Academic
Arrangement Rules, find themselves in financial doldrums by the
impugned communication dated 14.10.2025. By disallowing pay and
allowances during maternity leave under the specious plea that such
Doctors are ‘out of assignment,’ the UT of J&K has reduced a vital
socio-economic safeguard into an economic sanction. It is axiomatic
that maternity benefits are an extension of the right to live with dignity;
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to strip the petitioners of their emoluments at their most vulnerable
hours is a profound constitutional injury.
2. The factual matrix essential for the adjudication of the present petition
lies within a narrow compass. The petitioners, whose individual leave
details are set out in paragraph 2 of the petition, duly availed of their
maternity leave. Their entitlement is anchored in Government Order
No. 451-JK (HME) of 2024 dated 08.07.2024, issued by respondent No.
1 in supersession of all previous circulars and in accordance with the
norms of the National Medical Commission and the National Board of
Examinations. This directive unambiguously extends maternity, MTP,
and abortion leave to Postgraduate Students, Senior Residents/Tutors,
and DNB PGs across J&K’s Government Medical Colleges. The
petitioners invoke the statutory mandate of Rule 41(1) of SRO 353 of
2015 dated 06.10.2015, which dictates that a female employee
(expressly including an apprentice) is entitled to up to 180 days of
maternity leave, with an absolute right to draw a leave salary equal to
her last-drawn pay.
3. While some of the petitioners were currently on leave, and others had
completed their maternity leave and were undergoing their extended
period of residency pursuant to Government Order No. 451-JK(HME)
of 2024 dated 08.07.2024, their salaries were abruptly withheld. This
sudden stoppage was enforced solely on the strength of the
aforementioned communication dated 14.10.2025.
4. Through the medium of the present petition, the petitioners challenge
the communication dated 14.10.2025, which denies pay and allowances
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to Senior Residents/Tutors on the basis of advice of the Finance
Department vide U.O. advice dated 18.09.2025. The petitioners contend
that they were induced to believe, by the clear language of the
Government Order dated 08.07.2024, that maternity leave was fully
paid, and that the extension of tenure was a mere administrative
adjustment to facilitate the completion of their mandatory three-year
residency. The respondents never notified the petitioners of any
impending salary deprivation. It is further submitted that Rule 2(c) of
the Rules of 2020 defines a ‘post’ as a Government post against which
engagement is made, and since the Government Order dated 08.07.2024
explicitly incorporates the Government Rules and Regulations, the
mandate of Rule 41(1) supra, requiring payment of full leave salary,
applies absolutely. Because the impugned communication dated
14.10.2025 fails to even reckon with the mandate of the order dated
08.07.2024, it stands out as wholly illegal, arbitrary, and violative of the
Constitution of India.
5. The respondents, in their response, assert that the petitioners’ reliance
on the J&K Civil Service Regulations is fundamentally flawed. The
core of the respondents’ defense rests on the premise that the petitioners
occupy fixed-tenure assignments and do not hold civil posts, thereby
precluding them from claiming wholesale parity with permanent
Government employees. According to the respondents, Government
Order No. 451-JK(HME) of 2024 was promulgated to streamline leave
entitlements, pairing the permission to take maternity or paternity leave
with a concomitant extension of tenure. This extension, they submit, is
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strictly an academic and administrative mechanism designed to ensure
completion of the core training period, rather than a vehicle to source
additional fiscal benefits beyond actual days of duty. Respondents
further state that the impugned communication dated 14.10.2025 is
merely a faithful execution of the Finance Department’s advice vide
U.O. dated 18.09.2025, prompted by queries raised by institutional
Principals. They canvas that the communication takes away no vested
rights but simply delineates the standard financial consequences of a
period wherein no public service was rendered. In conclusion, they urge
that the broad phraseology of ‘existing Rules’ in the parent order dated
08.07.2024 cannot be judicially extended to override the distinct rules
governing tenure-based emoluments.
6. Mr. Abhinav Jamwal, learned counsel appearing for the petitioners,
while reiterating the submissions made in the writ petition, placed
strong reliance upon the judgment rendered by the Division Bench of
this Court (comprising of Hon‟ble the Chief Justice and myself) in LPA
No. 34/2025, Jammu and Kashmir Bank Ltd. and others v. Tanu
Gupta. It was submitted that the ratio laid down in the said judgment
squarely applies to the facts of the present case that a woman employee
cannot be subjected to any financial disadvantage merely on account of
availing maternity leave.
7. Per contra, Ms. Saliqa Sheikh, learned counsel appearing for the
respondents, submitted that the petitioners are not Government
employees, but their engagement is tenure-based under the J&K
Medical and Dental Education (Appointment on Academic
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Arrangement Basis) Rules, 2020. It is contended that their engagement
is governed exclusively by the terms and conditions of the said Rules
and the relevant Government Orders regulating such appointments. On
these grounds, the learned counsel argues that the petitioners are
disentitled from invoking the statutory framework of the J&K Civil
Services (Leave) Rules, 1979 applicable to permanent employees, and
thus cannot claim pay and allowances during the currency of their
maternity leave.
8. Heard learned counsel for the parties and perused the record.
9. Undisputedly, the petitioners hold tenure and course-based
appointments governed by the Jammu and Kashmir Medical and Dental
Education (Appointment on Academic Arrangement Basis) Rules, 2020.
In terms of Government Order No. 451-JK(HME) of 2024 dated
08.07.2024, issued in supersession of all previous orders on the subject
and in accordance with the norms of the National Medical Commission
and the National Board of Examinations, the Health and Medical
Education Department, i.e., respondent No. 1, directed that female
Senior Residents/Tutors shall be allowed maternity leave,
MTP/abortion leave, as per the Government rules and regulations.
Although the 2024 Government Order provides that the tenure/course
shall be extended by the corresponding number of days for which leave
is availed, it simultaneously guarantees the core benefit of maternity
and MTP/abortion leave to female Senior Residents/Tutors under
existing Government rules.
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10. This reference necessarily attracts Rule 41(1) of the J&K Civil Services
(Leave) Rules, 1979 (amended via SRO 353 of 2015), which provides
for 180 days of maternity leave. Under this statutory mandate, a female
employee possesses an absolute right to be paid a leave salary equal to
the pay drawn immediately before proceeding on leave. The
respondents cannot pivot and deny these basic protections under the
pretext of the petitioners’ tenure status.
11. During the currency of order dated 08.07.2024, the communication
dated 14.10.2025 cannot be termed as a ‘clarification,’ but a blatant
administrative overreach. It is evident that the Finance Department, in
its anxiety to prune public spending, has lost sight of constitutional
bounds. To penalize a mother based on the technical nature of her
employment contract, while her physical and biological reality is
identical to that of a regular employee, is an egregious infraction of
equality that cannot withstand judicial scrutiny.
12. This Court is deeply perplexed as to how respondent No. 1 can profess
to act under the banner of a welfare State while simultaneously
defending such an ex-facie discriminatory communication. In the
judgment (supra), the Division Bench considered an identical
controversy, wherein the Jammu and Kashmir Bank Ltd. had
discriminated between contractual female employees and regular
female employees for the purpose of granting service benefits during
maternity leave. The Division Bench in case of Jammu and Kashmir
Bank Ltd. and others v. Tanu Gupta (supra), after considering catena
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of judgments of the Hon‟ble Supreme Court, observed and held as
under:
“1. The life of a working mother stands as a profound
testament to the ancient Sanskrit ideal of „Kshamaya
Dharitri/क्षमायाधररत्री’–a patience as vast and enduring as the
Earth itself. She navigates the demanding currents of the
professional world with adept skill (Lokavritt
Kaushal/लोकवृ त्तकौशल), whilst simultaneously shouldering
the silent, unremunerated, and all too often invisible labour of
the household (Gruhakarmanyapi/गृहकममण्यपि).
2. The profound pain of childbirth is merely the opening
chapter in a lifelong narrative of sacrifice. To deny maternity
benefits is not only to ignore this profound ‘double burden,’
but to fail entirely in our constitutional obligation to ensure a
level playing field for those who literally labor to bring the
next generation of citizens into existence.
3. It is precisely this fundamental controversy that lies at the
heart of the present intra-court appeals.
xxxx xxx xxx
13. Article 15 of the Constitution of India forbids
discrimination, inter alia, on the ground of sex, whereas
Article 15(3) carves out a vital enabling provision,
authorizing the State to enact special measures for women
and children. This is augmented by Article 42, which directs
the State to ensure just and humane working conditions
alongside maternity relief. To give teeth to this constitutional
vision and preserve the dignity of motherhood, Parliament
enacted the Maternity Benefit Act, 1961. The statutory
substratum of this Act is to ensure that working women are
neither forced to labor during advanced pregnancy nor
deprived of their livelihoods, thereby securing full
remuneration and health security for both mother and child.
14. Article 38 of the Constitution serves as a solemn
injunction upon the State to promote the welfare of the
people by effectively securing and safeguarding a social
order anchored in social, economic, and political justice,
which must inform all institutions of national life. In tandem,
Article 38(2) mandates a persistent strive to minimize income
inequalities and eliminate disparities in status, facilities, and
opportunities. This egalitarian vision is reinforced by Article
39, which commands the State to direct its policy towards
ensuring that men and women equally enjoy the right to an
adequate means of livelihood, that equal pay for equal work
is secured for both sexes, and that the vulnerabilities of
workers and children are protected against abuse and
economic coercion that might force them into unsuitable
vocations.
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xxx xxxx xxxx xxxx
“16. In “Municipal Corpn. of Delhi v. Female Workers
(Muster Roll)”, (2000) 3 SCC 224, the Hon‟ble Apex Court
has held as under:
33. A just social order can be achieved only when
inequalities are obliterated and everyone is
provided what is legally due. Women who
constitute almost half of the segment of our society
have to be honoured and treated with dignity at
places where they work to earn their livelihood.
Whatever be the nature of their duties, their
avocation and the place where they work, they must
be provided all the facilities to which they are
entitled. To become a mother is the most natural
phenomenon in the life of a woman. Whatever is
needed to facilitate the birth of child to a woman
who is in service, the employer has to be
considerate and sympathetic towards her and must
realise the physical difficulties which a working
woman would face in performing her duties at the
workplace while carrying a baby in the womb or
while rearing up the child after birth. The Maternity
Benefit Act, 1961 aims to provide all these facilities to
a working woman in a dignified manner so that she
may overcome the state of motherhood honourably,
peaceably, undeterred by the fear of being victimised
for forced absence during the pre-or post-natal period.
(emphasis added)
17 In Deepika Singh v. Pgimer, Chandigarh, (2023) 13
SCC 681, the Hon‟ble Apex Court has observed as under:
26. Unless a purposive interpretation were to be
adopted in the present case, the object and intent of the
grant of maternity leave would simply be defeated. The
grant of maternity leave under the 1972 Rules is
intended to facilitate the continuance of women in the
workplace. It is a harsh reality that but for such
provisions, many women would be compelled by
social circumstances to give up work on the birth of
a child, if they are not granted leave and other
facilitative measures. No employer can perceive
childbirth as detracting from the purpose of
employment. Childbirth has to be construed in the
context of employment as a natural incident of life
and hence, the provisions for maternity leave must
be construed in that perspective.
(emphasis added)
18. The judgment in Deepika Singh’scase was relied upon
with approval by the Hon‟ble Supreme Court in Kavita Yadav
v. State (NCT of Delhi), (2024) 1 SCC 421.
19. We are firmly of the view that any ambiguity or silence
within the rules regulating maternity benefits must be resolved
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through a lens of beneficial construction. The sole objective of
such interpretation must be to advance the cause of the female
employee, not to orchestrate her disentitlement. Any
interpretation to the contrary would not only defeat the spirit of
the beneficial regulations but would also run entirely counter
to the mandate of gender justice embodied in Article 15 of the
Constitution of India.”
13. Maternity leave cannot be reduced to a matter of state charity; it is an
unassailable constitutional right anchored in the dignity of women. The
respondents, having explicitly absorbed the existing Government Rules
vide order dated 08.07.2024 to grant maternity leave to these Doctors,
cannot now blow hot and cold by withholding their salaries. The right
to full emoluments is an organic corollary of the right to leave itself,
which cannot be defeated by an arbitrary executive fiat. The
authoritative pronouncement of the Division Bench (supra) is directly
applicable here, leaving no room for a contrary interpretation.
14. In view of the aforesaid discussions, this Court is of the considered
view that the communication dated 14.10.2025, issued by respondent
No. 1 to the extent denying the benefit of pay and allowances to the
petitioners during the period of maternity leave/paternity leave, is liable
to be quashed and is accordingly quashed. Respondent No. 1 is directed
to grant full pay and allowances to the petitioners during the period of
maternity leave and also during the extended period of residency
corresponding to the number of days of maternity leave.
15. Disposed of.
(Rajnesh Oswal)
Judge
Jammu
10.07.2026
Karam Chand
Whether approved for reporting? Yes
