Jammu & Kashmir High Court
Basu Magotra vs Jammu & Kashmir Bank Ltd on 25 August, 2025
Sr. No.111
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.1065/2022 Reserved on: 24.07.2025
CM No.3200/2022 c/w Pronounced on: 25.08.2025
1. Basu Magotra, Aged 35 years
W/O Arjun Khajuria
R/O H.No.252, Sector 6,
Channi Himmat, Jammu.
2. Isha Sudan, Aged 32 years
D/O Mr. Anil Sudan,
R/O H.No.197, Ward No.19,
J&K Board Line, Shiva Nagar,
Kathua.
3. Bintul Hudda, Aged 31 years
W/O Feroz Ali Mir,
R/O Khandah Budgam
At present Quarter No.13, Block-D
Police Housing Colony, Sidhra,
Jammu. ..... Petitioner(s)
Through: Mr. Amit Gupta, Advocate.
Vs
1. Jammu & Kashmir Bank Ltd.,
Corporate Headquarters,
M. A. Road, Srinagar
Through its Chairman.
2. President (HR),
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Office, Rail Head Complex,
Jammu.
3. Vice President (HR)
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Office, Rail Head Complex,
Jammu.
4. Executive (HR),
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Office, Rail Head Complex,
Jammu ..... Respondent(s)
Through: Mr. Abhinav Sharma, Sr. Advocate with
Mr. Akash Gupta, Advocate.
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WP(C) No.2314/2023
CM No.5390/2023
Tanu Gupta (Age 33 years)
D/O Sh. Ramesh Kumar Gupta
R/O H.No.276, Lane No.5,
Talab Tillo, Jammu ..... Petitioner(s)
Through: Mr. Rajiv Kumar Sharma, Advocate.
Vs
1. Jammu & Kashmir Bank Ltd.,
Corporate Headquarter,
M. A. Road, Srinagar
Through Chairman.
2. President (HR),
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Officer, Rail Head Complex,
Jammu.
3. Vice President (HR)
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Officer, Rail Head Complex,
Jammu.
4. Executive (HR),
Jammu & Kashmir Bank Ltd.,
Zonal Headquarter
Zonal Officer, Rail Head Complex,
..... Respondent(s)
Jammu
Through: Mr. Abhinav Sharma, Sr. Advocate with
Mr. Akash Gupta, Advocate.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Both these Writ Petitions involving common questions of facts and law on
a consensus of the learned counsel for the parties, at this admission stage, are
proposed to be disposed of by this common judgment.
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WP(C ) No.1065/2022
2. The petitioners, through the instant petition, seek the following reliefs:-
i) Writ of Certiorari quashing Order No. JKB/HRD/Rectt/2020-511 dated
20.03.2021 to the extent it regularizes the services of petitioner No.1 as
Banking Associate w.e.f. 04.02.2021 instead of when she completed two
years of service.
ii) Writ of Certiorari quashing Order No. JKB/HRD/Rectt/2021-115 dated
22.06.2021 to the extent it regularizes the services of petitioner No.2
w.e.f. 13.05.2021 instead of when she completed two years of service.
iii) Writ of Certiorari quashing Order No. JKB/HRD/Rectt/2021-59 dated
30.04.2021 to the extent it regularizes the services of petitioner No.3
w.e.f. 05.02.2021 instead of when she completed two years of service.
iv) An appropriate writ, order or direction in the nature of writ of
mandamus to the respondents to 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. w.e.f. the date the same have
been given to similarly situated Banking Associates appointed alongside
the petitioners, along with all the retrospective consequential benefits
including arrears of differential amount of salary, allowances, seniority,
promotion etc.
FACTUAL MATRIX
3. The petitioners came to be engaged in the services of respondent no.1-
Bank as Banking Associates on contractual term of two years, vide individual
orders dated 06.11.2018. Pursuant to their appointment orders, the petitioners
joined the services on 08.11.2018, 06.11.2108 and 07.11.2018 respectively by
submitting their respective joining reports before the different Branch heads of
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the respondent-J&K Bank Limited, where they were posted by the respondent-
Bank.
4. The petitioners being females claimed that they during the contractual
term of two years, applied for maternity leaves which were duly sanctioned in
their favour by the respondents; that the petitioner no.1 availed maternity leave
w.e.f. 29.10.2019 to 19.01.2020 (83 days), whereas petitioner no.2 w.e.f.
05.11.2019 to 02.05.2020 (180 days) and petitioner no.3 availed maternity leave
w.e.f. 06.02.2019 to 31.07.2019 (175 days).
5. A number of incumbents appointed as Banking Associates alongwith the
petitioners herein in November, 2018, on their successful completion of two
years of contractual term, were regularized by the respondent no.3, vide Order
No.JKB/HRD/Rectt/2020-511 dated 20.03.2021, as such services of as many as
72 Banking Associates were regularized.
6. Petitioners no.1 had joined the services as Banking Associate pursuant to
her engagement on 08.11.2018, therefore, her services were required to
have been regularized on completion of two years, whereas her services were
regularized w.e.f. 04.02.2021 vide order impugned dated 20.03.2021 due to the
reason that the petitioner no.1 had remained on maternity leave for 83 days.
Similarly the petitioner no. 2 and 3 joined the services as Banking Services on
06.11.2018 and 07.11.2018 respectively, their services were required to be
regularized on completion of two years, but their services were regularized
w.e.f. 13.05.2021 and 05.2.2021 respectively vide impugned orders dated
22.06.2021 and 30.04.2021.
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7. The period spent by the petitioners on maternity leave has been excluded
by the respondents from their two years contractual term and regularized the
services of the petitioners after the petitioners rendered 83, 180 and 175 days
respectively more service.
8. It is further stated in the petition that after regularizing the services of the
petitioners w.e.f. 04.02.2021 13.05.2021 and 05.02.2021 respectively, they were
put on probation for a period of six months. On successful completion of six
months’ probation period reckoned w.e.f. the date of their regularizations, the
services of petitioner no.1 and 3 were confirmed vide order dated 16.10.2021
w.e.f. 01.09.2021, whereas the service of the petitioner no.2 have been
confirmed w.ef. 01.12.2021 vide order dated 08.12.2021; that the respondents
have erroneously excluded the period of maternity leave granted to the
petitioners while considering the petitioners’ contractual term of two years;
9. Petitioners would plead that due to exclusion of period spent by the
petitioners on maternity leave, not only their regularization was deferred
corresponding to the period of their respective maternity leaves but they were
put on six months’ probation correspondingly, with utmost delay and benefits
pursuant to Circular no.752 dated 12.03.2021 including revised salary,
adjustment pay/variable pay etc. has also been denied to the petitioners, which
has the cascading impact on the entire service careers of the petitioners, as the
petitioners have been rendered junior to their counterparts who were engaged
alongside the petitioners on the same day; that availing of maternity leave by the
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petitioners during the course of their employment does not disentitle them to get
their services regularized after completion of the period of two years.
10. Petitioners, in the backdrop of the aforesaid facts and circumstances of the
cases are aggrieved of action of the respondents in regularization their services
after rendering more than 2 years of contractual term by excluding the period
spent by the petitioners on maternity leave, therefore, they seek to challenge the
aforesaid impugned action of the respondents on the ground that the action of
the respondents in excluding the period spent by the petitioners on maternity
leave and regularizing their services beyond the period of two years is totally
illegal, arbitrary and contrary to the provisions of law; that maternity leave is
duly provided under the 11th Bipartite Settlement dated 11.11.2020, wherein
every female Banking Associate in the services of the Bank has been held
entitled to maternity leave not exceeding 6 months on any one occasion and 12
months during the entire period of her service. The respondents keeping in view
the aforesaid provision of clause 30 of BPS are not legally justified to exclude
the period of maternity leave and/or extend the contractual term
of two years of the petitioners beyond the period of two years keeping in view
availing of maternity leave by them owing to exigency which was beyond their
control; that the services of the petitioners being Banking Associates are
governed by Sastry Award which also reiterates a similar provision in Clause
490. Therefore, the respondents are under legal obligation not to exclude the
period of maternity leaves.
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11. Objections stand filed in WP(C) No.1065/2022 wherein it is averred that
the petitioners, having accepted the terms and conditions of their engagements
and sanction of extraordinary leave during their engagement as Contractual
Banking Associates, cannot turn around and challenge the same; that since the
petitioners have efficacious alternative statutory remedy under Industrial
Dispute Act, as such, this Court may not entertain and adjudicate the subject
matter in exercise of its extra ordinary writ jurisdiction; that no right of the
petitioners much less a fundamental right has been violated by the answering
respondents; that the respondent No. 1 Bank is not a “State” within the meaning
of Article 12 of the Constitution of India as it is not the creation of a statute and
does not fulfill the criteria as has been laid down in catena of judgments passed
by the Hon’ble Apex Court and more particularly the law laid down by our own
High Court; that Bank has sanctioned extraordinary leave in favour of the
petitioners during their contractual service as Banking Associates and once the
petitioners have accepted the terms and conditions of the said sanction of leave
and accordingly availed the said leave, as such, they are estopped from
challenging the same at this point of time; that as per the said sanction it is clear
that the petitioners proceeded on extraordinary leave with the condition that
their contractual period will be extended by the applicable leave period.
12. Respondents next averred that petitioners along with 579 similarly
situated candidates were offered the post of Contractual| Banking Associates for
a period of 2 years. The candidates who were offered contractual appointment
were subject to regularization only after successful completion of 2 years and
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assessment of employee performance during the required contractual term.
Subsequently the employees who had performed their duties in contractual
capacity for a total of 2 years were recommended for regularization by their
respective Branch Head/In-Charge. Accordingly the Contractual Banking
Associates who served the required term of 2 years were regularized in the
services of the Bank and remaining Contractual Banking Associates were
subsequently regularized as and when they completed 2 years of contractual
services after due extension, on account of extraordinary leaves availed by them.
13. Further stand taken by the respondents in their objections is, that J&K
Bank’s Board vide Resolution No.7 dated 26.04.2021 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 31.12.2020 be frozen (based on the revised pay
scales) with effect from 01.01.2021 and termed as Adjustment Pay, payable only
to those regular employees who were drawing it as a salary component as on
31.12.2020. Accordingly as per the terms of Circular No. 752 dated 12-03-2021
the employees appointed / recruited on and after 31.12.2020 the component of
Adjustment Pay was not made a part of their salary. It is further stated in the
objections that the inference tried to be drawn from the respective Rules,
Agreements and Judgments is totally misplaced and are not applicable to the
facts of the present case and the Acts as has been referred to in the grounds are
not applicable to respondent Bank; that petitioners have been regularized strictly
in terms of the rules and regulations governing the subject matter and cannot
claim anything dehors the Rules. However it is reiterated that Contractual
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Banking Associates were mandatorily required to perform their duties for a
period of 2 years and subject to the assessment of performance of these
employees, the regularization was effected.
14. Lastly, it is further submitted by the respondents, that since the petitioners
availed extraordinary leave for 83 days, 181 days and 176 days respectively
during their contractual term and consequently did not perform their duties for
the required contractual term of two years and therefore were regularized only
after the petitioners served the required 2 years contractual term as the period
spent on leave cannot be considered for assessment of performance; that the 11th
Bipartite Settlement dated 11.11.2020 and Sastry Award are not applicable to
Contractual Banking Associates; that the petitioners cannot claim to be
regularized and entitled to pay and allied benefits in contravention of the rules
and regulations governing the subject matter and the same would result in
blatant violation of Articles 14 & 16 of the Constitution. Further, since the
petitioners have efficacious alternative statutory remedy under Industrial
Dispute Act, as such, the Hon’ble Court may not entertain and adjudicate the
subject matter, in exercise of its extra ordinary writ jurisdiction.
WP(C ) No.2314/2023
15. The petitioner, through the instant petition, seeks the following reliefs:-
i) To issue directions to the respondents to regularize the services of the
petitioner as Banking Associate from the date when the petitioner had
completed two years of service as Banking Associate (contractual) by
issuance of writ of mandamus;
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ii) To issue direction to the respondents to treat the period spent by the
petitioner on maternity leave as continuous service as Banking
Associate (contractual) by issuance of writ of mandamus;
iii) To issue direction to the respondents to pay all the benefits to the
petitioner pursuant to Circular No.752 dated 12.03.2021 including
revised pay scale, adjustment pay/variable pay etc. w.e.f. the date the
same have been given to similarly situated Banking Associates
appointed alongside the petitioner, along with all the retrospective
consequential benefits including arrears of differential of salary,
amount of allowances, seniority, promotion etc by issuance of writ of
mandamus;
iv) To declare, not to consider the period spent by the petitioner on
maternity leave as service of the petitioner and excluding the said
period for giving benefit of service are ultra virus, illegal, arbitrary,
unconstitutional, unjust and contrary to the provisions of law and
Rules and against the provisions of principles of natural justice, by
issuance of writ of mandamus.
16. The petitioner came to be engaged in the services of respondent no.1-
Bank as Banking Associate on contractual term of two years along with the
other individuals vide order dated 06.11.2018. Pursuant to her appointment
order, the petitioner joined the services on 08.11.2018 by submitting her joining
report before the Branch where she was posted by the respondents. The
petitioner is female and during the contractual term of two years, applied for
maternity leave which was duly sanctioned in her favour by the respondents.
The petitioner because of pregnancy complicacy had to undergo bed rest w.e.f.
20.03.2019 to 31.03.2019 and 03.06.2019 to 17.06.2019 and thereafter availed
maternity leave w.e.f. 24.10.2019 to 23.01.2020 (total 122 days). It is pertinent
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to mention that a number of incumbents were appointed as Banking Associates
along with the petitioner herein, in November, 2018. On successful completion
of two years of contractual term by various Banking Associates, the respondent
no.3 vide Order No. JKB/HRD/Rectt/2020-511 dated 20.03.2021 regularized the
services of as many as 72 Banking Associates when they completed two years of
contractual term. The petitioner had joined the services as Banking Associates
pursuant to her engagement on 07.11.2018, therefore, her services were required
to be regularized on completion of two years, whereas her services have been
regularized w.e.f. 10.03.2021 vide Order No. JKB/HRD/Rectt/2021-59, dated
30.04.2021, due to the reason that the petitioner had remained on bed
rest/maternity leave for 122 days.
17. It is pertinent to mention that period spent by the petitioner on maternity
leave has been excluded by the respondents from her two years contractual term
and regularized the services of the petitioner after the petitioner rendered 122
days more service. Suffice it to say that the respondents have erroneously
excluded the period of maternity leave granted to the petitioner while
considering the petitioners’ contractual term of two years. After regularizing the
services of the petitioner w.e.f. 10″ March 2021 she was put on probation for a
period of six months. On successful completion of six months’ probation period
reckoned w.e.f. the date of her regularization, the services of petitioner was
confirmed vide Order dated 16.10.2021 w.e.f. 01.09.2021. Due to exclusion of
period spent by the petitioner on maternity leave, not only her regularization was
deferred, corresponding to the period of her maternity leave, but she was put on
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six months’ probation correspondingly with utmost delay and benefits pursuant
to Circular No.752 dated 12.03.2021 including revised salary, adjustment
pay/variable pay etc. has also been denied to the petitioner, which has the
cascading impact on the entire service career of the petitioner, as the petitioner
has been rendered junior to her counterparts who were engaged alongside the
petitioner on the same day. Availing of maternity leave by the petitioner during
the course of her employment does not disentitle her to get her services
regularized after completion of the period of two years, as such, not considering
the said period of the petitioner is ultra vires, illegal, arbitrary, unconstitutional,
unjust and contrary to the provisions of law and Rules and
against the principles of natural justice.
18. Objections have not been filed to this petition WP(C) No. 2314/2023.
Learned senior counsel, appearing for the respondents, however, would submit
that the objections, filed in the connected matter, be read as objections in this
case as well, in view of identical factual background.
19. Learned counsel for the parties, vehemently argued their versions in line
with their pleadings.
20. The common question of law, as emerges from the pleadings in both the
cases, is as to whether it is permissible for an employer to exclude the period
availed as maternity leave by the female officers/officials from the period
required for regularization. In the instant cases, periods availed by the
petitioners as maternity leaves were deducted from the minimum period of two
years to be eligible for regularization. All the petitioners were refused to be
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regularized on completion of two years, unlike their other colleagues and the
female staff, who were regularized on completion of two years, from the date of
their initial appointment/engagement. This practice adopted by the respondent-
Bank, allegedly caused not only monetary loss but also impacted their
promotional prospects
21. The Apex Court while explaining the rights of the women in employment
and labour in a case titled Municipal Corporation of Delhi v. Female
Workers (Muster Roll) & Ors reported as (2000) 3 SCC 224, in para 30
observed as follows:
“30.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 phenomena 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 work
place 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.”
22. Article 14 of the Constitution of India provides that the State shall not
deny to any person equality before law or the equal protection of laws within the
territory of India. Dealing with this Article vis-à-vis the labour laws, the Apex
Court in ‘Hindustan Antibiotics Ltd. V. Workmen‘ reported as 1967 ILLJ
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114 SC, held that labour at whichever sector it may belong in a particular region
and in a particular nature will be treated on equal basis.
23. Article 15 provides that the State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them.
Clause (3) of this Article further provides that nothing in this Article shall
prevent the State from making any special provision for women and children.
Article 38 of the Constitution of India dealing with the Directive Principles of
State Policy provides that the State shall strive to promote the welfare of the
people by securing and protecting, as effectively as it may, a social order in
which justice, social, economic and political shall inform all the institutions of
the national life. Sub-clause (2) of this Article mandates that the State shall
strive to minimize the inequalities in income and endeavour to eliminate
inequalities in status, facilities and opportunities. Article 39 of the Constitution
of India which is rather more important inter alia provides that the State shall, in
particular, direct its policy towards security to the citizens, men and women
equally, have the right to an adequate means of livelihood; that there is equal
pay for equal work for both men and women; that the health and strength of
workers, men and women, and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength. Article 42 of the Constitution of India specifically speaks
of just and humane conditions of work and maternity relief, the validity of an
executive or administrative action in denying enforceable at law, is nevertheless
available for determining the legal efficacy of the action complained of.
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24. The Parliament has already enacted the Maternity Benefits Act, 1961, of
which, Section 2 deals with the applicability of the Act, whereas Section 3,
contains definitions of the word ‘child’ which includes still-born child,
‘delivery’ meaning the birth of child; Maternity Benefits meaning the payment
referred to in Sub-section (1) of Section 5; ‘Woman’ has been defined in Clause
(o) as ‘a woman employed, whether directly or through any agency, for wages in
any establishment’. ‘Wages’ have been defined in Clause (h) of Section 3 which
provides that wages means all remunerations paid or payable in cash to a
woman.
25. Hon’ble the Punjab and Haryana High Court on 26.07.2021 in a case
CWP No. 13098/2021 titled ‘Bank of India V. Labour Commissioner-cum-
Appellate Authority under the Maternity Benefits Act, 1961 & Ors’, while
considering the identical situation and taking note of Articles 14, 15 and 39 of
the Constitution of India, observed that the object of the Maternity Benefits Act,
is to ensure that the woman employee at the time of advanced pregnancy is not
compelled to work, as it would be detrimental to her health and also to the health
of the foetus.
26. The Apex Court in ‘Dr. Kavita Yadav V. The Secretary, Ministry of
Health and Family Welfare Department & Ors‘ reported in (2024) 1 SCC
421 relying upon its earlier judgment in the case of ‘Deepika Singh V. PGI
MER, Chandigarh, reported in (2023) 13 SCC 681 held that the Maternity
Benefits Act, 1961 was enacted to secure women’s rights to pregnancy and
maternity leave and to afford women with as much flexibility as possible to live
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an autonomous life, both as a mother and as a worker, if they so desire. The
Court held that once the employee fulfills entitlement criteria specified in
Section 5(2) of the 1961 Act, she would be eligible for full maternity benefits,
even if, such benefits exceed the duration of the contract.
27. The Hon’ble High Court of Madras in a case WP No.27556/2018 titled
‘MRB Nurses Empowerment Association v. The Principal Secretary & Ors.
decided on 18.10.2024 held that by virtue of Section 27 of the Act, the
provisions of the 1961 Act will prevail over contractual conditions denying or
offering less favourable maternity benefits, holding further that the reliance by
the respondents on Condition no.6 of the Appointment and Posting Order to
deny maternity benefits is untenable. It was a case of NHRM Nurses Employed
on contractual basis.
28. Considered the submissions of both the sides. In these cases the
petitioners were not regularized on completion of two years of their contractual
period by excluding the periods of their maternity leaves, availed by them,
having been duly sanctioned, during their contractual service. To be a mother is
a right of a woman and therefore the State being a welfare and progressive State
has guaranteed the maternity leave of 180 days to every woman employee. The
contractual or probation period should not be a preventive factor or obstacle for
a woman who wants to be a mother during this period. The seniority of such
female employee should not go below her colleague of the same batch on the
ground that she was absent on account of maternity leave. Discounting of the
maternity leave period, which was availed by each of the petitioners after having
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been duly sanctioned by the competent authority, having regard to their statutory
right under the Maternity Benefits Act, 1961, being discriminatory on the basis
of sex, is not constitutionally permissible, as it offends the provisions of Articles
14 and 15 of the Constitution of India, which guarantee equal protection to men
and women.
29. Having regard to the legal position as discussed in the preceding paras, in
view of law laid down in the aforesaid judgments, and reverting to the factual
background of the case on hand applying purposive interpretation, this Court has
no doubt in its mind that the contractual terms cannot limit the statutory rights of
the petitioners to be entitled to the benefits of the maternity leaves. Independent
of the above, it may also be noted that the respondents cannot resort to
discriminatory acts while considering the requisite period of two years for
regularization of the petitioners vis-à-vis their other colleagues, on discounting
the maternity leave availed by the petitioners, being female workers.
30. 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 by
the petitioners on maternity leave as continuous service, without discounting
these periods, for their assessment on completion 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 situate Banking Associates
appointed alongside the petitioners, along with consequential benefits, with
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retrospective effect. Copies of this judgment shall be placed across the files of
both the cases. No order as to costs.
31. The writ petitions are disposed of along with connected application(s).
( ( M A Chowdhary )
Judge
Jammu
25.08.2025
Raj Kumar
Whether order is speaking? : Yes/No.
Whether order is reportable? : Yes/No.