Sumeet Chauhan Vs the State of Jharkhand through the Secretary Deptt of Home Prison and Disaster Management

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (S) No. 1663 of 2023

Sumeet Chauhan aged about 29 years, son of Bhaiya Manoj Nath Shah, resident of Near Forest Check Post, Lohardaga, P.O. and P.S.Lohardaga, District Lohardaga … … Petitioner

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Versus

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The State of Jharkhand through the Secretary, Deptt. Of Home, Prison and Disaster Management, Govt. of Jharkhand, Project Bhawan, H.E.C. Township, P.O. and P.S. Dhurwa, District- Ranchi

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The Inspector General of Prison, Govt. of Jharkhand, Project Bhawan, H.E.C. Township, P.O. and P.S. Dhurwa, District-Ranchi

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The Jail Superintendent, Divisional Jail, Lohardaga, P.O., P.S. and District- Lohardaga … … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Rahul Kumar, Advocate For the Respondents : Mr. Aditya Raman, Advocate

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06 /18.03.2024 Heard the learned counsel for the parties.

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2. This writ petition has been filed for the following reliefs:- “For issuance of direction commanding upon the respondent authorities to immediately and forthwith pay the arrears of difference of salary to the petitioner for the period from 06.05.2018 to 02.12.2020, when the petitioner had been working as Computer Operator at Lohardaga Jail and was paid monthly remuneration, far too less to what he was entitled in terms of the resolution of the Finance Deptt. dated 02.06.2017 in relation to payment of salary to the Computer Operator.

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And/Or

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The petitioner consequently prays for a direction upon the respondent authority for payment of a total amount of Rs.4,24,600/- as arrears if difference of salary along with statutory and penal rate of interest.”

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3. As per the writ petition, the petitioner was engaged as computer operator at Lohardaga Jail w.e.f. 16.05.2018 and thereafter he was paid monthly remuneration and salary @ Rs. 10,580/- in spite of the fact that there was a decision of the Cabinet vide Resolution No. 1965

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dated 02.06.2017 to pay an amount of Rs. 26,300/- per month to computer operators.

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4. The learned counsel has submitted that the said decision was ultimately implemented in the various jails by virtue of letter dated 25.10.2019 wherein the Department of Home had directed the Inspector General of Prisons to implement the enhanced monthly salary in terms of Resolution dated 02.06.2017 with respect to the computer operators working in different jails. As a sequel to the aforesaid letter, another letter no. 69 dated 10.01.2020 was issued by the Inspector General of Prisons to the Jail Superintendent for making payment of difference of arrears of salary to the computer operators.

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5. The grievance of the petitioner is that in spite of the decision dated 02.06.2017 and communicated to the Inspector General of Prisons on 25.10.2019, followed by another letter dated 10.01.2020, the petitioner was given payment @ Rs. 10,580 per month and consequently the petitioner filed representations dated 10.12.2021 and 21.12.2022 and when no order was passed, the present writ petition was filed.

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6. It is the case of the petitioner that the petitioner cannot be discriminated in the matter of payment of honorarium and denied payment in terms of Government’s Resolution dated 02.06.2017 duly enforced and adopted by the prisons. The resolution does not discriminate between persons engaged on daily basis and on contractual basis.

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7. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court in the case of State of Punjab & Others -vsJagjit Singh and Others reported in (2017) 1 SCC 148 paragraph nos. 6, 36.2, 36.3, 44, 54, 54.3 and 57 to submit that the petitioner is entitled for pay @ Rs. 26,300 per month on the basis of the principle of ‘equal pay for equal work’ . He has also relied upon a judgment passed by this Court in W.P. (S) No. 3893 of 2016 dated 08.05.2017 (Unmilika Das and another –versus- The State of Jharkhand) and

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submits that the said judgment has been affirmed in L.P.A. No. 141 of 2019. He has referred to paragraph 16 of the said judgment.

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8. Learned counsel appearing on behalf of the respondents while opposing the prayer has submitted that the petitioner was engaged to meet the day-to-day requirement of jails and was engaged on daily wage basis and had also taken payment on daily wage basis through vouchers. He submits that there is no question of making payment on monthly basis for daily wager. The learned counsel has also submitted that the petitioner was neither appointed on contractual basis, nor was issued any appointment letter by the respondents and the appointment letter has also not been annexed with the writ petition. The petitioner has already received the daily wages for the period he has worked from 06.05.2018 to 02.12.2020.

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9. The learned counsel has also submitted that the Finance Department Resolution dated 02.06.2017 has been issued for such employees of the State who fall within the ambit of the Resolution dated 25.03.2009 and the letter dated 05.07.2002 as annexed with the counter affidavit. He has submitted that the petitioner does not fall under the said letter dated 25.03.2009 and 05.07.2002 and he is not covered by the Finance Department Resolution dated 02.06.2017.

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10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner claims to have been engaged as computer operator at Lohardaga jail w.e.f. 06.05.2018, but admittedly no appointment letter was ever issued to the petitioner. The petitioner also claims that he was paid monthly remuneration and salary @ Rs. 10,580/-, but no document in connection with payment of monthly remuneration has been placed on record by the petitioner. The petitioner dissociated himself with the work w.e.f. 02.12.2020 and claimed remuneration on monthly basis @ Rs. 26,300/- relying on the cabinet decision dated 02.06.2017. The said decision dated 02.06.2017 has been placed on record as contained in Annexure-1 and the petitioner has relied upon the last column of the chart in the second page of the decision to

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submit that even contractual employees were entitled to payment of Rs. 26,300/- per month and such column also included other Departments.

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11. The letter dated 02.06.2017 has also referred to the earlier circular of the Finance Department dated 01.01.2009 which has been annexed along with the counter affidavit. The circular dated 25.03.2009 indicates that the same was with regard to contractual employees employed on monthly payment basis. The said circular also referred to another circular dated 05.07.2002 which has also been placed on record by the respondents which indicates that it was also referring to the appointees under contractual employment.

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12. This Court finds that although the petitioner claims to have been appointed on payment of monthly remuneration, but the counter affidavit indicates that the petitioner was employed on daily wages and not on monthly contractual payment and the petitioner was given the payment as per daily wages. The contention of the petitioner raised in the writ petition that he was being paid monthly remuneration is not substantiated from the materials placed on record. Payment on monthly basis as wages per month is different from wages fixed as wages per day.

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13. However, the counsel for the petitioner has vehemently argued that even in case of daily wages, the petitioner is entitled to ‘equal pay for equal work’ in the light of the Judgment passed by the Hon’ble Supreme Court reported in (2017) 1 SCC 148 . Paragraph 42 and 60 of the aforesaid judgement summarizes the criteria for ‘equal pay for equal work’ as under:-

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“42. All the judgments noticed in paras 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of “equal pay for equal work”. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them were against the same post for which a higher pay scale was being allowed in other government departments. Or alternatively, their duties and responsibilities were the same as of other posts with different

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designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of “equal pay for equal work” was invoked and considered, it would be just and appropriate to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of “equal pay for equal work”. Our consideration, has led us to the following deductions: 42.1. The “onus of proof” of parity in the duties and responsibilities of the subject post with the reference post under the principle of “equal pay for equal work” lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post (see Orissa University of Agriculture & Technology v. Manoj K. Mohanty , (2003) 5 SCC 188, U.T. Chandigarh, Admn. v. Manju Mathur , (2011) 2 SCC 452, SAIL v. Dibyendu Bhattacharya , (2011) 11 SCC 122 and National Aluminium Co. Ltd. v. Ananta Kishore Rout , (2014) 6 SCC 756).

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42.2. The mere fact that the subject post occupied by the claimant is in a “different department” vis-à-vis the reference post does not have any bearing on the determination of a claim under the principle of “equal pay for equal work”. Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government. (see Randhir Singh v. Union of India , (1982) 1 SCC 618 and D.S. Nakara v. Union of India , (1983) 1 SCC 305).

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42.3. The principle of “equal pay for equal work”, applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh case [ Randhir Singh v. Union of India , (1982) 1 SCC 618). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers v. Union of India , (1988) 3 SCC 91], Mewa Ram Kanojia v. All India Institute of Medical Sciences , (1989) 2 SCC 235, Grih Kalyan Kendra Workers' Union v. Union of India , (1991) 1 SCC 619 and S.C. Chandra v. State of Jharkhand , (2007) 8 SCC 279).

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42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot

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claim the benefit of the principle of “equal pay for equal work” (see Randhir Singh v. Union of India , (1982) 1 SCC 618, State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. , (2002) 6 SCC 72 and Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature. 42.5. In determining equality of functions and responsibilities under the principle of “equal pay for equal work”, it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see Federation of All India Customs and Central Excise Stenographers v. Union of India , (1988) 3 SCC 91 and SBI v. M.R. Ganesh Babu , (2002) 4 SCC 556). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of “equal pay for equal work” (see State of U.P. v. J.P. Chaurasia , (1989) 1 SCC 121 and Grih Kalyan Kendra Workers' Union v. Union of India , (1991) 1 SCC 619).

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42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology v. Manoj K. Mohanty , (2003) 5 SCC 188).

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42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as — “selection grade”, in the same post. But this difference must emerge out of a legitimate foundation, such as — merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia , (1989) 1 SCC 121).

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42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia v. All India Institute of Medical Sciences , (1989) 2 SCC 235 and State of W.B. v. Tarun K. Roy , (2004) 1 SCC 347). In such a case the principle of “equal pay for equal work” cannot be invoked.

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42.9. The reference post with which parity is claimed under the principle of “equal pay for equal work” has to be at the same hierarchy in the service as the subject post. Pay scales of posts may

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be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey , (2000) 8 SCC 580 and Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666).

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42.10. A comparison between the subject post and the reference post under the principle of “equal pay for equal work” cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal v. State of H.P. , (1989) 4 SCC 459). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand , (2008) 10 SCC 1).

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42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of “equal pay for equal work” would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI v. M.R. Ganesh Babu , (2002) 4 SCC 556).

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42.12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of “equal pay for equal work” would not be applicable (see State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. , (2002) 6 SCC 72).

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42.13. The parity in pay, under the principle of “equal pay for equal work”, cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same pay scale. The principle of “equal pay for equal work” is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see State of W.B. v. W.B. Minimum Wages Inspectors Assn. , (2010) 5 SCC 225).

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42.14. For parity in pay scales under the principle of “equal pay for equal work”, equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of

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duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see U.T. Chandigarh, Admn. v. Manju Mathur , (2011) 2 SCC 452).

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42.15. There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666), when the duties are qualitatively dissimilar.

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42.16. The principle of “equal pay for equal work” would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666).

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42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of “equal pay for equal work”, even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of “equal pay for equal work” would not apply (see S.C. Chandra v. State of Jharkhand , (2007) 8 SCC 279 and National Aluminium Co. Ltd. v. Ananta Kishore Rout , (2014) 6 SCC 756).”

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“60. Having traversed the legal parameters with reference to the application of the principle of “equal pay for equal work”, in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of “equal pay for equal work” summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and

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responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of “equal pay for equal work” would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.”

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14. Upon perusal of the aforesaid judgment passed by the Hon’ble Supreme Court, this Court finds that the claim for ‘equal pay for equal work’ does not crystalize only on account of the fact that the petitioner was engaged on daily wage basis. The Hon’ble Supreme Court in paragraph 60 of the aforesaid judgment has laid down the criteria as to under what circumstances and upon what comparison a person who is engaged as daily wage employee, adhoc appointee, employees appointed on casual basis, contractual employee and the like can claim the same pay scale on the basis of 'equal pay for equal work'. The materials on record in the present case does not satisfy of such criteria as mentioned in the judgement relied upon by the petitioner.

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15. So far as the circulars issued by the respondents are concerned, the same were specifically for contractual employees who were employed on monthly basis. The status of daily wage employee and contractual employee on monthly basis certainly stand on different footing and the petitioner has not been able to point out from the records of this case that the petitioner was entitled to be similarly treated as that of contractual employee for the purposes of 'equal pay for equal work' by satisfying the various criteria laid down by the Hon’ble Supreme Court in paragraph 60 of the aforesaid judgment.

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16. So far as the judgment passed in the case of W.P. (S) No. 3893 of 2016, decided alongwith W.P.(S) No. 2931 of 2016, is concerned, the Court was considering the challenge to the order dated 08.04.2016 whereby the claim for regularization of the petitioners who were appointed on the post of lecturer on purely ad-hoc basis on fixed honorarium was rejected. Although this court refused to interfere with the order impugned dated 08.04.2016, but considered the aspect of ‘equal pay for equal work’ by referring to the judgement passed by the Hon’ble Supreme Court reported in the case of State of Punjab -vsJagjit Singh reported in (2017) 1 SCC 148 dealing with the principle of ‘equal pay for equal work’ and on the basis of the pleadings and materials on record direction was passed to pay the minimum of pay scale of the lecturer . The relevant portion of the order passed in W.P. (S) No. 3893 of 2016 for the purposes of this case is quoted as under:-

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“17. Facts pleaded by the petitioners and not controverted by the respondents, would lead to an inference that the petitioners are discharging duties similar to the work undertaken by other regular appointees. It is admitted at Bar that minimum of payscale of Lecturers as approved by the U.G.C. is in the scale of Rs. 15,600 to 39,000/-. Accordingly, it is ordered that from November, 2005 to 03.05.2011 the petitioners shall be granted arrears of pay at the rate of Rs. 2200/- with other usual allowance and from 04.05.2012, they shall be paid the minimum of pay-scale of Lecturer …….”

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The Court also recorded that it was admitted at Bar that minimum pay scale for lecturers as approved by UGC was in the scale of 15,60039,000/- and this Court recorded that the petitioners were discharging duties similar to the work undertaken by other regular appointees. 17. It is neither the case of the petitioner that he was working as daily wager against sanctioned vacant post nor it is his case that he was working for sufficiently long time i.e. more than 10 years, nor the petitioner has pleaded any fact which upon a reply from the

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respondents could lead to an inference that the petitioner was doing the same work as under taken by a contractual employee with whom the petitioner is seeking parity of pay. In absence of the foundation with regard to ‘equal pay for equal work’ as laid down by the Hon’ble Supreme Court in the judgment reported in (2017) 1 SCC 148 (supra), this Court is not inclined to grant the relief as prayed for by the petitioner in this writ petition.

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18. Accordingly, this writ petition is hereby dismissed.

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19. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Binit

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Sumeet Chauhan v. the State of Jharkhand through the Secretary Deptt of Home Prison and Disaster Management

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Sumeet Chauhan v. the State of Jharkhand through the Secretary Deptt of Home Prison and Disaster Management

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