Jammu & Kashmir High Court
Jammu And Kashmir Bank Ltd. Corporate … vs Tanu Gupta D/O Sh Ramesh Kumar Gupta R/O … on 20 May, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
......
LPA no.34/2026
In WP(C) no.2314/2023
CM no.983/2027 &
LPA no.27/2026
CM nos.873-874/2026
Reserved on: 05.05.2026
Pronounced on: 20.05.2026
Uploaded on: 20.05.2026
LPA no.34/2026
1. Jammu and Kashmir Bank Ltd. Corporate Headquarters, M.A.Road
Srinagar through its Chairman
2. President (HR), J&K Bank Ltd. Zonal Headquarter, Zonal Office, Rail
Head Complex, Jammu
3. Vice President (HR) J&K Bank Ltd. Zonal Headquarter, Zonal Office, Rail
Head Complex, Jammu
4. Executive (HR) J&K Bank Ltd. Zonal Headquarter, Zonal Office, Rail
Head Complex, Jammu
....... Appellant(s)
Through: Mr Raman Sharma, Sr. Advocate with
Mr Kartikay Sharma, Advocate
Versus
Tanu Gupta D/o Sh Ramesh Kumar Gupta R/o H.no.276, Lane no.5, Talab
Tillo, Jammu
......Respondent(s)
Through: Mr Amit Gupta, Sr. Advocate with
Mr Sumit Moza, Advocate
LPA no.27/2026
1. Jammu and Kashmir Bank Ltd. Corporate Headquarters, M.A.Road
Srinagar through its Chairman
2. President (HR), J&K Bank Ltd. Zonal Headquarter, Zonal Office, Rail
Head Complex, Jammu
3. Vice President (HR) J&K Bank Ltd. Zonal Headquarter, Zonal Office,
Rail Head Complex, Jammu
4. Executive (HR) J&K Bank Ltd. Zonal Headquarter, Zonal Office, Rail
Head Complex, Jammu
....... Appellant(s)
Through: Mr Raman Sharma, Sr. Advocate with
Mr Kartikay Sharma, Advocate
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LPA no.27/2026
Versus
1. Basu Magotra W/o Arjun Khajuria R/o H.no.252, Sector-6, Channi
Himmat, Jammu
2. Isha Sudan D/o Mr. Anil Sudan R/o H.no.197, Ward no.19, J&K Board
Line, Shiva Nagar, Kathua
3. Bintul Hudda W/o Feroz Ali Mir R/o Khandah Budgam A/p Quarter no.13,
Block-D, Police Housing Colony, Sidhra, Jammu
......Respondent(s)
Through: Mr Amit Gupta, Sr. Advocate with
Mr Sumit Moza, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The life of a working mother stands as a profound testament to the
ancient Sanskrit ideal of ‘Kshamaya Dharitri/क्षमाया धरित्री’–a patience
as vast and enduring as the Earth itself. She navigates the demanding
currents of the professional world with adept skill (Lokavritt
Kaushal/लोकवृत्त कौशल), whilst simultaneously shouldering the silent,
unremunerated, and all too often invisible labor 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.
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4. Through the common judgment dated 25.08.2025 rendered by the
learned Writ Court, the writ petitions titled “Basu Magotra & Ors. Vs.
Jammu and Kashmir Bank Ltd. & Ors” bearing WP(C) No. 1065/2022
and “Tanu Gupta Vs. Jammu and Kashmir Bank Ltd. & Ors” bearing
WP(C) No. 2314/2023, were allowed, and disposed of in terms of
following directions:
“In this view of the matter, the petitions are allowed. The
impugned orders are hereby quashed, and the respondents are
directed to treat the period spent on maternity leave as
continuous service, without discounting these periods, for their
assessment on competition of two years, from their joining
dates. They shall also extend all the benefits to the petitioners
pursuant to Circular No. 752 dated 12 .03.2021 including
revised pay scale, adjustment pay/variable pay etc. as have
been given to similarly situated Banking Associates appointed
alongside the petitioners, along with consequential benefits,
with retrospective effect”
5. Aggrieved by the judgment dated 25.08.2025, the appellants have filed
two separate intra-court appeals: LPA No. 27/2026 (arising out of the
case of Basu Magotra & Ors.) and LPA No. 34/2026 (arising out of the
case of Tanu Gupta). As both appeals challenge the impugned judgment
on common grounds, they are being disposed of by this common
judgment.
6. Grounds of Challenge:
a. That the engagement of the respondents was on a contractual basis
for a period of two years, after which they were to be regularised
subject to a successful work assessment. Although the contractual
terms did not specifically provide for the grant of maternity leave,
the appellants, upon requests made by the respondents, sanctioned
extraordinary leave for periods of 118, 83, 181, and 176 days in
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favour of Tanu Gupta, Basu Magotra, Isha Sudan, and Bintul Hudda,respectively. This leave was sanctioned with the explicit stipulation
that their contractual terms would stand extended by the
corresponding period of the leave. The respondents availed of this
leave without any demur or protest. However, after availing the
benefit, they resiled from their position and challenged their
regularisation orders, which had excluded the maternity leave period
from the initial two-year contractual service. Having accepted the
conditions stipulated in the leave sanctions, the respondents are
estopped from raising a grievance against the same. The learned
Writ Court completely failed to consider this crucial aspect of the
matter; hence, the impugned judgment deserves to be set aside.
b. That the respondents cannot be deemed to have rendered continuous
service for two years since they were on sanctioned leave for a
significant duration. Their regularisation was therefore rightly
deferred until they completed the remaining period of their
contractual service. The appellants acted strictly in accordance with
the terms of engagement, a fact that the learned Writ Court
completely overlooked.
c. That the learned Writ Court heavily relied upon various judgments
that uphold the rights of women to avail of maternity leave.
However, in the present case, maternity leave was never denied to
the respondents; rather, it was fully granted. The period of their
contractual engagement was merely extended proportionately to
ensure they completed the requisite period of active service
necessary to determine their suitability for regularisation. The
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learned Writ Court completely failed to appreciate this vitaldistinction.
d. That the appellants, vide Board Resolution dated 26.04.2021, had
resolved that the variable pay and platinum jubilee pay (linked to
basic pay) of all regular employees on the rolls of the Bank as on
31st December 2020 be frozen (based on the revised pay scales)
w.e.f. 01.01.2021 and termed as ‘Adjustment Pay’, payable only to
those regular employees who were drawing it as a salary component
as on 31st December 2020. Pursuant to Circular No. 752 dated 12th
March 2021, this component of Adjustment Pay was not made part
of the salary for employees appointed or regularised after 31st
December 2020. Since the respondents were regularised only by
virtue of orders passed in their favour later in 2021 (following their
extended contractual terms), they were not entitled to the benefits of
the said Circular. Having accepted the extension of their contractual
terms without protest, the respondents could not have later assailed
their regularisation orders. Consequently, the learned Writ Court
erred not only in quashing the regularisation orders but also in
directing that the period spent on maternity leave be treated as
continuous service for the sole purpose of retrospectively extending
the benefits of Circular No. 752 dated 12th March 2021 to them
Arguments:
7. Mr. Raman Sharma, learned Senior Counsel for the appellants,
strenuously argued that far from denying maternity leave, the appellants
had fully granted the same to the respondents. He urged that the
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respondents, having consciously embraced the proportionate extension
of their contractual service, could not thereafter be permitted to
challenge the impugned conditions. The learned Senior Counsel
submitted that the writ petitions ought to have been dismissed by a strict
application of the principles of acquiescence, and in aid of this
submission, he invoked the judgment of the Hon’ble Supreme Court of
India in “P.S. Gopinathan v. State of Kerala and others” reported in AIR
2008 SC 2768.
8. In reply, the learned Senior Counsel for the respondents strenuously
resisted the appeals, canvassing that the two-year contractual tenure
was meant solely for the determination of suitability. Once that
suitability stood established and culminated in regularisation, any
carving out or exclusion of the maternity leave period is entirely
unwarranted. The learned Senior Counsel vehemently argued that
subtracting the period of such leave forms a classic instance of systemic
gender discrimination, effectively penalizing motherhood and violating
the core tenets of gender justice.
9. Heard and perused the record.
Discussion/Analysis:
10.It is undisputed that the respondents, like all other newly appointed
Banking Associates, were to be regularised only upon the successful
completion of a two-year contractual period. While their peers were
regularised at the expiry of the two years, the respondents could not be
regularised simultaneously owing to their extended absence on account
of maternity leave. Crucially, despite the complete absence of any
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stipulation for leave within the contract, the appellants acceded to the
respondents’ requests and sanctioned the same, subject to the condition
that their contractual terms would stand proportionately extended.
Since the sole objective of the two-year probationary tenure was to
evaluate the suitability of the candidates, such an assessment could only
be completed upon the actual performance of duties for the full duration
of the prescribed period.
11.The respective dates of joining, the periods of maternity leave granted,
and the corresponding dates of regularisation in respect of the
respondents are tabulated hereunder:
S Name of Date of Initial Period of
No. Respondent Joining Maternity leave
/Regularisation availed
1. Tanu Gupta 08.11.2018 118 days
10.03.2021
2. Basu Magotra 08.11.2018 83 days
04.02.2021
3. Isha Sudan 06.11.2018 181 days
13.05.2021
4 Bintul Hudda 07.11.2018 176 days
05.02.2021
12.Admittedly, the appellants deemed the respondents suitable for
regularisation, giving effect to the same on different dates following the
completion of their extended contractual engagements. It is solely due
to the exclusion of the maternity leave period, and the attendant
extension of their contracts, that their regularisation fell after the crucial
cut-off date of 31.12.2020. Consequently, the respondents were
subjected to a distinct disadvantage, effectively penalizing them and
depriving them of the benefits under the aforementioned Circular,
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which would have naturally accrued to them but for their invocation of
maternity leave.
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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15. In alignment with these constitutional imperatives, the appellants have
actively incorporated maternity protections into their service
regulations. Clause 30 of the Bipartite Settlement dated 11.11.2020
bears ample testimony to this realization, mandating that regular female
employees be granted maternity leave for a duration not exceeding six
months per occasion, subject to a maximum ceiling of twelve months
during their entire service period.
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 thePage 9
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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’s case 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 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.
20.We find no merit in the appellants’ submission that the respondents are
precluded from challenging their regularisation dates by application of
the ‘doctrine of acquiescence’. While acquiescence operates as an
equitable shield, it cannot be weaponized to defeat fundamental rights;
where a constitutional infraction is manifest, equity must make way for
the rule of law.
21.The appellants’ plea that a strict, continuous two-year performance
evaluation was a condition precedent to regularisation is equally
flawed. Once the respondents’ suitability stood acknowledged and
culminated in regularisation, they could not be placed in a
disadvantageous position merely on account of motherhood.
Categorizing sanctioned maternity leave as a break in service to deny
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them the benefits of the said Circular is discriminatory. In reality, the
respondents possessed no equal bargaining power; they were at the
absolute mercy of the employer, where any contemporaneous protest
against the regularisation terms would have simply resulted in their
termination.
22. In this context, it would be apt to take note of the observations made
by the Hon’ble Supreme Court in “Bhola Nath Vs. The State of
Jharkhand” 2026 INSC 99, reported as 2026 SCC Online SC 129,
and the relevant paras are extracted as under:
11. At the outset, we find it necessary to express our disapproval of the manner
in which the High Court has approached the present lis. The controversy before
the Court was not one of mere acquiescence or implied waiver of rights.
The High Court, in our view, has proceeded on a mechanical application of
precedents without engaging with the core constitutional issues involved,
thereby reducing the dispute to one of acceptance of contractual terms,
divorced from its larger constitutional context.
11.1. This Court has consistently held that the State, being a model employer, is
saddled with a heightened obligation in the discharge of its functions. A model
employer is expected to act with high probity, fairness and candour, and
bears a social responsibility to treat its employees in a manner that
preserves their dignity. The State cannot be permitted to exploit its
employees or to take advantage of their vulnerability, helplessness or
unequal bargaining position.
11.2. It therefore follows that the State is required to exercise heightened caution
in its role as an employer, the constitutional mandate casting upon it a strict
obligation to act as a model employer, an obligation from which no exception
can be countenanced.
xx xx xx xx xx xx xx
11.6. The Constitution Bench in “Basheshar Nath v. Comm. Income Tax”,
long ago clarified that fundamental rights guaranteed under the Constitution
are incapable of waiver. Consequently, if the action of the respondent-State
is found to be violative of Article 14 of the Constitution, the mere fact that
the appellants’ engagement was governed by contractual terms and
conditions cannot be construed as a waiver of their fundamental rights.
Unconscionable Agreements- Contract between Lion and Lamb:
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12. In “Central Inland Water Transport Corpn. v. Brojo Nath Ganguly“,
this Court acknowledged the increasing imbalance in the bargaining power of
contracting parties. The Court held thus: –
“89. . . . We have a Constitution for our country. Our judges are
bound by their oath to “uphold the Constitution and the laws”. The
Constitution was enacted to secure to all the citizens of this country
social and economic justice. Article 14 of the Constitution
guarantees to all persons equality before the law and the equal
protection of the laws. The principle deducible from the above
discussions on this part of the case is in consonance with right and
reason, intended to secure social and economic justice and
conforms to the mandate of the great equality clause in Article 14.
This principle is that the courts will not enforce and will, when
called upon to do so, strike down an unfair and unreasonable
contract, or an unfair and unreasonable clause in a contract, entered
into between parties who are not equal in bargaining power. It is
difficult to give an exhaustive list of all bargains of this type. No
court can visualize the different situations which can arise in the
affairs of men. One can only attempt to give some illustrations. For
instance, the above principle will apply where the inequality of
bargaining power is the result of the great disparity in the economic
strength of the contracting parties. It will apply where the
inequality is the result of circumstances, whether of the creation of
the parties or not. It will apply to situations in which the weaker
party is in a position in which he can obtain goods or services or
means of livelihood only upon the terms imposed by the stronger
party or go without them. It will also apply where a man has no
choice, or rather no meaningful choice, but to give his assent to a
contract or to sign on the dotted line in a prescribed or standard
form or to accept a set of rules as part of the contract, however
unfair, unreasonable and unconscionable a clause in that contract
or form or rules may be. This principle, however, will not apply
where the bargaining power of the contracting parties is equal or
almost equal. This principle may not apply where both parties are
businessmen and the contract is a commercial transaction. In
today’s complex world of giant corporations with their vast
infrastructural organizations and with the State through its
instrumentalities and agencies entering into almost every branch of
industry and commerce, there can be myriad situations which result
in unfair and unreasonable bargains between parties possessing
wholly disproportionate and unequal bargaining power. These
cases can neither be enumerated nor fully illustrated. The court
must judge each case on its own facts and circumstances.”
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Therefore, the Court has held that the Constitution obliges
courts to advance social and economic justice and to give effect to the
equality mandate under Article 14. Consequently, courts will neither
enforce nor hesitate to invalidate contracts, or contractual clauses, that are
unfair or unreasonable when entered into between parties with unequal
bargaining power.
12.1. Relying on the aforesaid reasoning, another two Judge Bench in “Pani
Ram v. Union of India“, reiterated that the guarantee of equality under Article
14 extends even to situations where a person has no meaningful choice but
to accept imposed contractual terms, however unfair or unreasonable they
may be. Applying this principle to the facts before it, the Court observed thus:
–
“23. As held by this Court, a right to equality guaranteed under
Article 14 of the Constitution of India would also apply to a man
who has no choice or rather no meaningful choice, but to give his
assent to a contract or to sign on the dotted line in a prescribed
or standard form or to accept a set of rules as part of the
contract, however unfair, unreasonable and unconscionable a
clause in that contract or form or rules may be. We find that the
said observations rightly apply to the facts of the present case. Can it
be said that the mighty Union of India and an ordinary soldier, who
having fought for the country and retired from Regular Army,
seeking re-employment in the Territorial Army, have an equal
bargaining power. We are therefore of the considered view that the
reliance placed on the said document would also be of no assistance
to the case of the respondents.”
Therefore, it is clear that Courts are
empowered to invalidate unconscionable elements of a contract
where the parties lack the ability to exercise any real or
meaningful choice in negotiating its terms. In the present case,
the appellants were left with no alternative but to accept the
conditions unilaterally prescribed by the respondent-State in
order to secure their livelihood and sustain a source of income.
It would be entirely unrealistic to assume that, in such
circumstances, an employee seeking temporary employment
could meaningfully negotiate or assert a position against the
overwhelming might of the State machinery.
12.2. At this juncture, the analogy of apples and oranges serves as a useful
reminder that certain relationships are inherently incapable of being assessed on
an equal plane. A contract between the State and an employee stands on a
similar footing. The State, in such a relationship, assumes the role of a
metaphorical lion, endowed with overwhelming authority, resources and
bargaining strength, whereas the employee, who is yet an aspirant, is
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reduced to the position of a metaphorical lamb, possessing little real
negotiating power. To suggest parity between the two, i.e. the lion and the
lamb, would be to ignore the stark imbalance that defines the relationship.
12.3. Therefore, where a lion contracts with a lamb, the inequality is not
incidental but structural, and it is precisely this disproportion that calls for
judicial sensitivity. In such situations, the conscience of Constitutional
Courts must inevitably tilt in favour of protecting the lamb. We have no
hesitation in holding that Constitutional Courts are duty-bound to act to
safeguard those who are vulnerable to exploitation, so that employees are
not compelled to meekly submit to the demands of a vastly dominant
contracting party like the State, but are instead assured that constitutional
protections will intervene to prevent such exploitation.”
(emphasis added)
23.The appellant-Bank, a banking behemoth whose vast footprint extends
across the length and breadth of India, has regrettably chosen to flex its
institutional muscles against its female employees. Rather than
accommodating and honoring their motherhood, the Bank has subjected
them to hostile discrimination vis-à-vis their peers. Such an overbearing
approach by an institution of this stature is entirely impermissible and
cannot be countenanced in law.
24.In the case of Shafakat and others v. Jammu and Kashmir Bank Limited
and others, the learned Single Judge was called upon to adjudicate the
legality of the Bank’s action in deducting the leave availed of by an
employee during their probationary period when computing the seven
years of service mandated for a Banking Associate to participate in the
promotion process under the seniority-cum-selectivity channel. The
learned Single Judge held such deduction to be totally arbitrary and
violative of Articles 14 and 16 of the Constitution of India. Although
the said judgment was initially assailed by the appellant-Bank in an
appeal bearing LPA No. 33/2024, the said appeal was subsequently
dismissed as withdrawn in terms of an order dated 26th March, 2025.
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Conclusion:
25.We have carefully considered the judgment rendered by the learned
Single Judge, which is well-reasoned, pellucid, and entirely in
accordance with law. The challenge mounted against the same fails, and
consequently, both these appeals stand dismissed.
26.Dismissed.
(Rajnesh Oswal) (Arun Palli)
Judge Chief Justice
Srinagar
20.05.2026
Ajaz Ahmad, Secy
Whether approved for reporting? Yes
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