jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While considering the instant petitions wherein they challenged the decision of Jammu and Kashmir Bank in treating the period of maternity leave availed of by the petitioners as “Break in Service”, as result whereof, they have been declared ineligible to participate in the process of promotion to the level of Assistant Manager Cadre; the Bench of Sanjeev Kumar, J.*, clarified that availing of leave of whatever kind due, including maternity leave by an employee of the Bank, whether during probation or otherwise, does not result in break in service. It was further stated that a person on leave duly sanctioned by the competent authority shall be deemed to be in actual regular service of the Bank. The Court further clarified that ‘Residency’ i.e. actual length of regular service does not mean the only such service during which an employee is on active duty.

The petitioners were appointed as Banking Associates in the year 2013 on contractual basis for a period of two years. On completion of their contractual term, Petitioners 1 to 4 were regularized with effect from 17-12-2015, while as Petitioners 5 and 6 were so regularized with effect from 01-01-2016 and 05-01-2016 respectively. It was submitted that during the period of probation, the petitioners applied for grant of maternity leave. The competent authority in the J&K Bank accorded sanction to the grant of maternity leave in favour of the petitioners as admissible in terms of the Jammu and Kashmir Bank Limited Officer Service Rules, 2000 as applicable at the relevant point of time. The petitioners were also informed that the grant of maternity leave would result in extension of the period of probation and that upon successful completion of probation followed by confirmation, they would rank junior to their batchmates by such leave period.

Later on, J&K Bank with a view to initiating the process of promotion from Banking Associates to the Assistant Manager Cadre, invited the eligible Banking Associates to submit their willingness through People System, as per the schedule notified vide Circular dated 21-09-2023.

The petitioners having seven years’ service to their credit, submitted their willingness through People System for consideration under “Seniority-cum-Normal /Screening Channel”, but the same was not accepted by the Bank and instead the petitioners were shown eligible only under “Fast Track cum Merit Channel”.

The petitioners claimed that when they were denied the right of consideration for promotion under “Seniority-cum-Normal/Screening Channel” and were informed orally that the period of maternity availed by them, while being on probation, has been considered as ‘Break in Service’ and, therefore, they do not possess the requisite seven years of service to be considered in the aforesaid channel.

Rebutting the petitioners’ claims, counsels for the Bank placed reliance on Policy for Promotion of Workmen (Banking Associates, Assistant Banking Associates and Banking Attendants) and submitted that seven years of service that is required of a Banking Associate for consideration for promotion through “Seniority-cum-Normal/Screening Channel” is actual regular service rendered while being in active service of the Bank. It was thus argued that the period spent by the petitioners on maternity leave cannot be construed to be regular service.

Assessment: Perusing the facts and contentions raised in the matter, the Court was of the view that the impugned order of the Bank was arbitrary and violative of Arts. 14 and 16 of the Constitution.

Taking note of Rule 4.1 of Policy for Promotion of Workmen promulgated by the Bank, the Court pointed out that a plain reading of Paragraph 4.1(a) leaves no manner of doubt that the petitioners have completed seven years of service in the General Cadre of Banking Associates, notwithstanding the petitioners having availed maternity leave of different durations during probation. Needless to say, that any employee, including an employee of the J&K Bank, while availing leave of any kind duly sanctioned by the competent authority, shall always be deemed to be in service.

Availing of leave of whatever kind including maternity leave by the women employees, does not result either in break of service or reduction of total service rendered by such employee by a quantum of leave availed. “There appears to be a clear fallacy in understanding the provision contained in Paragraph 4.1 of the Policy”.

Furthermore, the Court pointed out that a conjoint reading of Paragraph 4.1 and 5.2 that what is required of a Banking Associates to possess, is seven years regular service.

The Court further stated that the decision of J&K Bank to deduct or take out the period of leave availed by an employee during probation while reckoning seven years of service required of a Banking Associate to participate in the promotion process under Seniority cum Selectivity Channel, is totally illegal, arbitrary and violative of Article 14 and 16 of the Constitution. Furthermore, the Policy for Promotion of Workmen approved by the Board of Directors on 13-07-2022, also does not lay down any such condition.

With the afore-stated assessment, the Court directed the Bank to accord the petitioners consideration for promotion accordingly.

[[Shafakat v. Jammu and Kashmir Bank, 2023 SCC OnLine J&K 1069, decided on 13-12-2023]]

*Judgment by Justice Sanjeev Kumar

Advocates who appeared in this case :

Petitioners- Jahangir Ahmad Ganai, Advocate with Mehnaz Rather, Advocate

Respondents: Adil Asimi, Advocate

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