Maternity leave is constitutional right, not State charity: HC

12/07/2026

JAMMU, Jul 11: The High Court of Jammu & Kashmir and Ladakh has held that maternity leave is an enforceable constitutional right rooted in the dignity of women and cannot be treated as a matter of State charity, while directing the government to release salary and allowances withheld from women doctors during their maternity leave.
Justice Rajnesh Oswal passed the ruling while allowing a petition filed by Dr. Sonakshi Gupta and other doctors, quashing a government communication dated October 14, 2025, which had denied them pay and allowances during maternity leave on the ground that they remained "out of assignment".
The court directed the Health and Medical Education Department to release full salary and allowances to the petitioners for the maternity leave period as well as for the corresponding extended residency period equal to the leave availed.
The petitioners, engaged as Senior Residents and Tutors under the Jammu and Kashmir Medical and Dental Education (Appointment on Academic Arrangement Basis) Rules, 2020, challenged the communication contending that it illegally deprived them of financial benefits despite the grant of maternity leave.
The court observed that withholding salary during maternity leave effectively converted an important socio-economic safeguard into an economic penalty.
"Maternity leave cannot be reduced to a matter of State charity; it is an unassailable constitutional right anchored in the dignity of women," Justice Oswal observed.
The court further remarked that denying women employees their salary during one of the most vulnerable phases of their lives amounted to a serious constitutional injury.
The petitioners relied on Government Order No. 451-JK(HME) of 2024, issued on July 8, 2024, which extended maternity, medical termination of pregnancy and abortion leave to postgraduate students, Senior Residents, Tutors and DNB postgraduate doctors in government medical colleges across Jammu and Kashmir.
They argued that the order made the existing government leave rules applicable to them, entitling them under Rule 41(1) of the J&K Civil Services Leave Rules to 180 days of maternity leave with full pay.
Appearing for the petitioners, Advocate Abhinav Jamwal submitted that a woman employee could not be subjected to financial disadvantage merely because she had availed maternity leave and relied upon the Division Bench judgment in Jammu and Kashmir Bank Ltd. and others versus Tanu Gupta.
The Union Territory administration was represented by Additional Advocate General Raman Sharma, assisted by Advocate Saliqa Sheikh.
Rejecting the government's stand that the petitioners were engaged on fixed-tenure academic assignments and were not entitled to salary during the extended period, the court held that the government could not grant maternity leave under existing rules while simultaneously denying the financial benefits attached to it.
Describing the impugned communication as a "blatant administrative overreach", the court observed that the Finance Department, in its effort to reduce public expenditure, had overlooked constitutional guarantees.
Justice Oswal held that penalising a woman on account of the nature of her employment contract despite the identical biological realities of motherhood violated the constitutional guarantee of equality.
Relying on Articles 15, 38, 39 and 42 of the Constitution and Supreme Court judgments protecting maternity benefits, the High Court ruled that childbirth is a natural incident of employment and cannot be treated as a disadvantage affecting a woman's service rights.
The court also held that any ambiguity in service rules relating to maternity benefits must be interpreted in favour of advancing the rights of women employees.
Accordingly, the High Court quashed the communication dated October 14, 2025, insofar as it denied pay and allowances during maternity leave, and directed the authorities to grant the petitioner doctors full salary and other admissible financial benefits during maternity leave and the corresponding extended period of residency.

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