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LPA no.34/2026

LPA no.27/2026

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.34/2026

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 vital

distinction.

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

No.

Name of

Respondent

Date of Initial

Joining

/Regularisation

Period of

Maternity leave

availed

1. Tanu Gupta 08.11.2018

10.03.2021

118 days

2. Basu Magotra 08.11.2018

04.02.2021

83 days

3. Isha Sudan 06.11.2018

13.05.2021

181 days

4 Bintul Hudda 07.11.2018

05.02.2021

176 days

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 the

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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