IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.1573 of 2011 Date of Decision : January 28, 2011. Manoj Kumar and others .....Petitioners versus The State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.R.K.Chopra, Senior Advocate with Ms.Maninder, Advocate, for the petitioners. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioners were hired by M/s Ascenture Management Services (P) Limited to work as Assistant Executives (Accounts & General), Technical Officer, Clerks, Computer Operators, Drivers and Helper etc. M/s Ascenture Management Services (P) Limited entered into an agreement dated 29.12.2006 (Annexure P-1) with the Punjab Agro Food Grains Corporation Limited, a Punjab Government Enterprises, to serve the later as a Contractor/Service provider. It was agreed that the Contractor/Service Provider shall provide the Agro Food Corporation the required manpower as per the terms and conditions contained in the agreement (Annexure P-1), some of which being relevant are reproduced below:- “xx xx xx xx 4. That the Corporation shall pay to the Contractor service charges @ 5% on the total amount of the bill which can be enhanced upto 5% by MD, PAFC/AMD, C.W.P.No .1573 of 2011 2 PAIC after assessing the performance of the contractor. 5. That the remunerations to be paid to the staff recruited and deployed by the Contractor Company shall be fixed suitably by the Corporation commensurate with prevalent minimum wages/D.C.rates, which would be subject to change from time to time by the notification of the U.T. Administration. 6. That the service Provider shall be solely responsible for paying the salaries to the staff recruited and deployed by the Service Provider and would also be responsible for making all the statutory payments like E.P.F., E.S.I., E.D.L.T., Family Pension Scheme and Service Tax etc.. xx xx xx xx” The agreement further provided that “all the disputes which may arise between the parties relating to this agreement/breach of this contract etc., shall be adjudicated and resolved exclusively by arbitration. The Managing Director of the Corporation shall be the sole Arbitrator and the decision of the Managing Director shall be binding on the Contractor.........”. The agreement further provided as follows: “13. That this agreement shall be valid for a period of five years commencing from 1.7.2006 to 30.6.2011. However, the employees whose services are hired through M/s Ascenture Management Services (P) Ltd., shall be absorbed in PAIC after taking the approval of Board of Directors of the Corporation without the consent of the Service Provider at the time of recruitment of staff in PAIC on lifting of ban by Government because these employees will have the work experience of the Corporation and will be serving in a better way as compared to the freshers. After absorption of these employees in PAIC, they may be sent on deputation with PAFC or with other companies of PAIC like regular employees of PAIC at the discretion of the competent authority in PAIC. The following designation and pay- scale, as mentioned against each, shall be considered at the time of absorption of the services of such employees:- C.W.P.No .1573 of 2011 3 S. No. Existing designation given to the employees whose services have been obtained through M/s Ascenture Management Services (P) Ltd. Designation and pay scale granted at the time of considering their merger in PAIC. Designation Pay-scale 1 Manager (A.Gen.Legal) Manaer(A&Gen) 7220-11660 2 Asstt. Manager (A, Gen, Legal & Tech.Officer) Executive-I(A,G) 5800-9200 3 Ex.Asstt. (A, G) Executive-II(A,G) 4400-7700 4 Steno Steno-typist 3330-6200 5 Driver Driver 3330-6200 6 Clerk Clerk-cum-typist 3120-5160 (with initial start of Rs.3220/-) 7 Class-IV Class-IV 2520-4160 (with initial start of Rs.2620/0) However, they shall be placed at the bottom of seniority list of the concerned cadre to which they are absorbed as referred to above but the seniority of these employees shall be ascertained on the basis of their joining the services with PAFC/PAIC through M/s Ascenture Management Services (P) Ltd and will not be entitled for any benefit of the service performed by them with PAIC/PAFC through M/s Ascenture Management Services (P) Ltd........” According to the petitioners, they have been serving the respondent-Corporation to its entire satisfaction with a legitimate expectation that as and when the ban imposed by the State Government on recruitments would be lifted they will be absorbed in the services of the Corporation as per the agreed terms and conditions. The petitioners have further alleged that some of the posts occupied by them have now been advertised by the respondent-Corporation on 12.1.2011 (Annexure P-7) in the newspapers inviting applications for fresh recruitment, contrary to the promise made vide agreement dated 29th December, 2006 (Annexure P-1) C.W.P.No .1573 of 2011 4 in terms whereof, the Corporation is obligated to absorb the petitioners against some of the advertised posts. In sum and substance, the petitioners invoke the doctrine of promissory estoppel and seek a mandamus to direct the respondents to absorb them against the advertised posts. Having heard learned counsel for the petitioners at some length and on perusal of the contents of the agreement dated 29th December, 2006 (Annexure P-1), I am unable to agree with the above- noticed contentions. I say so for more than one reasons. It is indeed not in dispute that while appointing the petitioner, M/s Ascenture Management Services (P) Limited did not issue any advertisement giving an opportunity to other eligible candidates to compete for the subject posts with a promise that they would be absorbed in the services of the Government Corporation in future nor the other eligible candidates were aware of any arrangement/agreement between the private contractor/service provider and the respondent-Corporation for the absorption of the employees of a private contractor into the public employment. It can hardly be disputed that the respondent-Corporation is a Government organ and it performs public duties. The posts created on its establishment are integral part of the public posts which cannot be filled up without adhering to the mandate of Articles 14 & 16 of the Constitution of India. In the absence of an equal opportunity to compete given to other similarly placed eligible candidates, the agreement dated 29th December, 2006 (Annexure P-1) relied upon by the petitioners cannot be specifically enforced by compelling the C.W.P.No .1573 of 2011 5 respondent-Corporation to absorb the petitioners against the vacant posts. In my considered view, the doctrine of Promissory Estoppel can not be invoked in the instant case as there cannot be any estopped against the law. It also appears that the agreement, if any, was with the 'service provider/contractor' and the petitioners are not party thereto. No promise whatsoever was made to them nor they were made to act in a particular manner pursuant to such promise. For the reasons afore-stated, I do not find any fault with the action of the respondent-Corporation in advertising the posts and throwing them in the public domain. Dismissed. January 28, 2011 (SURYA KANT) Mohinder JUDGE