Motherhood Cannot Be Penalized: J&K&L High Court Quashes Order Denying Maternity Leave Pay To Senior Residents, Tutors
The petitioners challenged a communication denying them pay and allowances during maternity leave on the ground that they were "out of assignment."
The Jammu & Kashmir and Ladakh High Court has quashed a government communication that denied pay and allowances to Senior Residents and Tutors during maternity leave, holding that maternity benefits are "an extension of the right to live with dignity."
A Bench of Justice Rajnesh Oswal observed that the respondents had sought to penalize the petitioners for the foundational human experience of motherhood. The court said, "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."
Advocate Abhinav Jamwal appeared for the Petitioners and AAG Raman Sharma appeared for the Respondents.
The petitioners, engaged as Senior Residents/Tutors under the Jammu and Kashmir Medical and Dental Education (Appointment on Academic Arrangement Basis) Rules, 2020, challenged a communication dated October 14, 2025, by which they were denied pay and allowances during maternity leave on the ground that they were "out of assignment."
The Court noted that Government Order issued in accordance with the norms of the National Medical Commission and the National Board of Examinations, expressly permitted maternity, MTP and abortion leave to Postgraduate Students, Senior Residents/Tutors and DNB PGs in Government Medical Colleges across Jammu and Kashmir.
The petitioners contended that the Government Order incorporated the existing Government Rules and Regulations, including Rule 41(1) of the J&K Civil Services (Leave) Rules, 1979, under which a female employee is entitled to 180 days of maternity leave with leave salary equal to the pay drawn immediately before proceeding on leave.
Rejecting the stand of the respondents that the petitioners were tenure-based appointees and not government employees holding civil posts, the Court held that once the Government Order extended maternity leave as per Government rules and regulations, the respondents could not deny the corresponding financial benefits.
The Court observed that Rule 41(1) confers "an absolute right to be paid a leave salary equal to the pay drawn immediately before proceeding on leave."
Justice Oswal described the communication dated October 14, 2025, as "not 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," the Court said.
The Court further remarked that it was "deeply perplexed" as to how the respondents could "profess to act under the banner of a welfare State while simultaneously defending such an ex-facie discriminatory communication."
Relying on the Division Bench judgment in Jammu and Kashmir Bank Ltd. and others v. Tanu Gupta, the Court reiterated that maternity leave is a constitutional safeguard and that any ambiguity in rules governing maternity benefits must be interpreted in favour of women employees.
"Maternity leave cannot be reduced to a matter of state charity; it is an unassailable constitutional right anchored in the dignity of women," the judgment said.
Holding that the respondents could not blow hot and cold after adopting the Government Rules for grant of maternity leave, the Court ruled, “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."
Allowing the writ petition, the High Court quashed the communication dated October 14, 2025, to the extent it denied pay and allowances during maternity leave and directed the authorities to grant full pay and allowances to the petitioners during the period of maternity leave as well as during the extended period of residency corresponding to the number of days of maternity leave.
Cause Title: Dr. Sonakshi Gupta & Ors. v. UT of J&K & Ors., [2026:JKLHC-JMU:2020]
Appearance:
Petitioner: Advocate Abhinav Jamwal
Respondent: AAG Raman Sharma, Advocate Saliqa Sheikh