Srinagar, Dec 16: In a significant ruling, the Jammu and Kashmir and Ladakh High Court has maintained an approved leave of any nature – maternity or otherwise – shouldn’t be considered as a service break and that the employee should be considered as being in active service.
The court clarified that the act of taking leave, irrespective of its kind, does not constitute a break in service nor does it lead to a reduction in the overall length of service rendered by the employee by the duration of the leave taken.
Justice Sanjeev Kumar made these observations in the case of six female banking associates who were denied consideration for promotion to the Assistant Manager Cadre because the J&K Bank had deducted their maternity leave period from their total service, reported Live Law.
The petitioners, who had been working as Banking Associates in the J&K Bank for last seven severs had availed maternity leave during their probation period, however the bank had excluded this leave period from their total service, making the petitioners ineligible for promotion under the "Seniority-cum-Selectivity Channel", which requires seven years of regular service.
Jahangir Iqbal Ganaie while contesting the Bank's decision argued that maternity leave is a sanctioned leave and cannot be construed as a break in service. Excluding maternity leave from service computation discriminates against women employees based on sex, violating Article 14 and 16 of the Constitution, he contended.
He further argued with vehemence that even the J&K Bank Officers Service Manual, 2000 does not provide for such a break in service nor can it be said that a person on leave duly sanctioned by the competent authority, shall be deemed out of service.
Advocate Adil Asmi who defended the J&K Bank stated that the Policy for Promotion requires seven years of "actual regular service" in the Banking Associate Cadre and Maternity leave, even though sanctioned, does not constitute active service.
Justice Kumar who dismantled the Bank's stance emphasized that any employee, including those in the J&K Bank, availing leave duly sanctioned by the competent authority, is always deemed to be in service. This principle, he declared, applies equally to maternity leave, which cannot be used to penalize or disadvantage women employees.
Dealing with the argument of the respondent Bank that while reckoning seven years of service, the Bank is entitled in law to deduct the period of maternity leave, if any, availed by a Banking Associate during probation Justice Kumar recorded, “I am not impressed with the argument raised on behalf of the respondent Bank…A person on leave duly sanctioned by the competent authority shall be deemed to be in actual regular service of the Bank. Residency i.e. actual length of regular service does not mean the only such service during which an employee is on active duty.
The bench added, “If this argument of the learned counsel for the Bank is accepted, it would mean that the period of leave of whatever kind availed by an employee after the period of probation, shall also be deductible while reckoning seven years of service".
In a scathing critique of the Bank's reasoning, Justice Kumar declared the exclusion of maternity leave from service computation as "arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution.
“That apart, the Policy for Promotion of Workmen approved by the Board of Directors on 13th July 2022, also does not lay down any such condition. It is thus wrong to contend that the respondent Bank is entitled in law to deduct the period of leave availed by a Banking Associate during his/her probation”, the bench maintained.
In light of these observations, J&K Bank was directed to recognize the period of maternity leave taken by the petitioners during their probation as actual regular service in the Banking Associates Service (BAS) cadre.
Further declaring the petitioners eligible to partake in the promotion process for JMGS Scale-I Officers Cadre under the Seniority cum Selectivity Channel the court directed the respondent Bank to duly consider and accord the petitioners their rightful promotion.