Bombay High Court
Sudhir B. Fating And Another vs The State Of Maha. Thr Its ... on 13 October, 2016
Bench: B.R. Gavai
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO.1354/2016
1) Sudhir B. Fating
Aged about 55 years, occu: Food Inspector
R/o C/o Health Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur-440 001
(Tahsil and District: Nagpur).
2) Rajesh D. Gaidhane,
Aged about 42 years, occu: Food Inspector,
R/o C/o Health Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur-440 001
(Tahsil and District:Nagpur). ..PETITIONERS
v e r s u s
1) The State of Maharashtra
Through its Secretary
Food & Drugs Department
Mantralaya, Madam Cama Road,
Mumbai- 400 032.
2) Commissioner
Food & Drugs Administration,
Maharashtra State, Bandra-Kurla Complex
Gruhanirman Bhawan, Bandra (East)
Mumbai- 400 051.
3) Nagpur Municipal Corporation
Civil Lines, Nagpur-440 001
Though its Commissioner.
4) Union of India
Though its Secretary
Ministry of health and Family Welfare,
New Delhi. ...RESPONDENTS
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............................................................................................................................
Mr. A.A.Naik, Advocate for petitioners
Ms. N.P Mehta, Assistant Government Pleader for Res.Nos.1 & 2
Mr. S.M.Puranik, Advocate for Respondent no.3
Mrs.Mugdha Chandurkar, Advocate for Respondent no.4.
............................................................................................................................
CORAM: B.R.GAVAI &
V.M.DESHPANDE , JJ
.
DATED : 13th October, 2016
ORAL JUDGMENT: (PER B.R. GAVAI, J.)
Rule. Rule made returnable forthwith. Heard by consent.
2. The petitioners have approached this Court praying for a
declaration that the appointment of the petitioners as Food Inspector is
saved by virtue of Section 97 of the Food Safety Standard Act, 2006,
and for a direction to the respondent no.1-State of Maharashtra, to
impart training to the petitioners as Food Inspectors and to treat them
at par with Food Safety Officers.
3. The facts in brief, giving rise to the present petition are as
under:-
The petitioners were appointed as Food Inspector under the
provisions of the Prevention of Food Adulteration Act, 1954, on 9th May,
2011.
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4. A Public Interest Litigation was filed in this Court being
Criminal P.I.L.No. 4/2010 contending therein that the posts of Food
Inspectors in respondent no.3-Municipal Corporation were lying vacant.
This Court vide order dated 27th April, 2011 directed the State
Government to look into the matter and take appropriate steps. A
statement was made on behalf of the Municipal Corporation that ten
new posts of Food Inspectors were already created and the selection
process to fill up those posts has already been over. However for want of
approval from the General Body, the orders of appointment could not be
issued. The Court, therefore, expressed that the General Body of the
Corporation to take up the issue and take appropriate decision in that
regard. When the said P.I.L. was listed before this Court on 5th August,
2011 it was sought to be pleaded on behalf of the State Government that
the new provisions/enactment had come into force and hence the
provisions of Food Adulteration Act and the appointments made
thereunder need to be reconciled with new Act. It was also submitted
that the feasibility of imparting training to only 8 or 9 Food Inspectors
also need to be examined. This Court recorded that the number of Food
Inspectors is not and cannot be relevant aspect, as after their
appointment, they need to be trained and thereafter only they can
competently render their services to the society. The Division Bench of
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this Court disposed of the said P.I.L. on 30th April, 2012 after expecting
that the State Government would take necessary steps in the matter.
5. It appears that after the General Body passed a resolution
approving the appointment of the petitioners, the petitioners were
appointed on 9th May. 2011. Since the respondent no.1-State has not
granted an approval to the appointment of the petitioners and since the
training is not imparted to them, the petitioners have approached this
Court.
6. Heard Shri A.A. Naik, learned counsel for the petitioners;
Smt. N.P.Mehta, learned Assistant Government Pleader for respondent
nos.1 and 2; Shri S.M. Puranik, learned counsel for respondent no.3 and
Smt. Mugdha Chandurkar, learned counsel for respondent no.4.
7. Shri A.A.Naik, learned counsel for the petitioners submitted
that though the petitioners are possessing the requisite qualification and
though they have been discharging their duties as Food Inspectors for a
period of last more than five years, on account of inaction on the part of
the respondent nos.1 and 2, neither the State Government granted
approval to the services of the petitioners nor requisite training is
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imparted to them.
8. Ms. N.P. Mehta, learned Assistant Government Pleader, on
the contrary, submits that the very appointment of the petitioners is
dehors the provisions of Rule 3 of the Maharashtra Prevention of Food
Adulteration Rules and, as such, the claim of the petitioners that they
should be imparted training, is without substance. She submits that the
appointment of the petitioners is absolutely void ab initio and, therefore,
the petition deserves to be dismissed.
9. Mr. S.M. Puranik, learned counsel appearing on behalf of
respondent no.3-Corporation submits that though the Corporation has
addressed communications, time and again, to the respondent nos.1
and 2, to provide training to the petitioners and the other Food
Inspectors and has also requested for issuing notification in the name of
Food Inspectors, the State has done nothing in the matter.
10. It is to be noted that when the Criminal P.I.L. No.4/2010
was being entertained by this Court, the learned Government Pleader
appearing therein initially has made a statement before the this Court
that since new provisions/enactment has come into force, efforts will
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have to be made to reconcile the provisions of both the Acts.
11. It will be relevant to refer to sub-rule 3 of Rule 4 of the
Maharashtra Prevention of Food Adulteration Rules, 1962, which were
the rules framed under the old enactment.
" 4(3): The Local Authority may appoint persons in
such number as it thinks fit, having qualifications
prescribed under the Central Rules, to be Food
Inspectors for the purposes of this Act, and they shall
exercise powers within such local areas as it may
assign to them, with the approval of the authority."
It could thus be seen that the said rule empowers the Local Authority
to appoint persons in such number as it thinks fit, having qualifications
prescribed under the Central Rules, to be Food Inspectors for the
purposes of the Act. Perusal of the rule would reveal that only for
exercise of the powers within the Local Areas assigned to them by the
Local Authority, an approval of the authority is necessary. We are unable
to accept the contention as raised by the State Government that even for
making an appointment, the Local Authority would need the approval of
the authority. Since there is no definition of the term 'authority', in view
of the provisions of Rule 3, the Director of Public Health for the State of
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Maharashtra will have to be construed as Food Health Authority. If
plain and simple interpretation is placed on sub-rule 3 of Rule 4, it will
be clear that it is the Local Authority who would be entitled to appoint
such persons in such number as it thinks fit, to be Food Inspectors, for
the purpose of the old Act. The only requirement would be that such
person should possess the qualification prescribed under the Central
Rules. It would further reveal that it will be for the Local Authority to
assign them the local areas in which they shall exercise the powers.
However only for exercising the powers within the local areas assigned
to them by the local authority the approval of the authority i.e.
Director of Public Health would be necessary.
12. The Central Government has enacted the Prevention of Food
Adulteration Rules, 1955 providing for various things, including the
qualification of Food Inspectors. It will be appropriate to refer to Rule 8
of the Central Rules.
"8. Qualification for Food Inspector :- A person
shall not be qualified for appointment as Food
Inspector unless he -
(a) is a medical officer incharge of health
administration of a local area; or
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(b) is a graduate in medicine and has received at
least one month's training in food inspection and
sampling work approved for the purpose by the
Central Government or a State Government ; or
(c) is a graduate in Science with Chemistry as
one of the subjects or is a graduate in Agriculture or
Public Health or Pharmacy or in Veterinary Science or
a graduate in Food Technology or Dairy Technology
or is a diploma holder in Food Technology or Dairy
Technology from a University or Institution
established in India by law or has equivalent
qualifications recognised and notified by the Central
Government for the purpose and has received three
month's satisfactory training in food inspection and
sampling work under a Food (Health) Authority or
in an institution approved for the purpose by the
Central Government."
It could thus be seen that under the 1955 Central Rules, which are
referred to in the 1962 State Rules, the qualification for the Food
Inspectors is as provided herein-above. Perusal of clause (c) would show
that a graduate in Science with Chemistry as one of the subjects, is one
of the qualifications provided for the post of Food Inspector.
Undisputedly, both the petitioners possess this qualification. It could
therefore be clearly seen that the petitioners are duly qualified to be
appointed as Food Inspectors, on a harmonious reading of Central Rules
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1955 and State Rules 1962. In that view of the matter, we find that the
contention raised by the State in its affidavit that since the Corporation
has not taken prior approval to the appointment of the petitioners, their
appointment is ab initio void, is without substance. On the contrary, we
find that though the Corporation is pursuing the matter from 2011 with
the State Government, to provide training to the petitioners and has also
sought approval for assigning the duties in the local areas, in view of the
provisions of sub-rule 3 of Rule 4, it is the State Government who was
required to take steps but has chosen not to do anything in the matter.
13. The next issue is regarding reconciliation of the prevision of
the Food Adulteration Act, 1954 and the rules framed thereunder on
one hand, and the Food Safety and Standards Act, 2006 and the Rules
framed thereunder, on the other hand. The provisions of 2006 Act would
reveal that the Commissioner of Food Safety, by notification, is
authorised to appoint person as he thinks fit having the qualification
prescribed by the Central Government as Food Safety officers for such
local areas as he may assigned to them for the purposes of performing
functions under the State Act. It will be relevant to refer to clause 2.1.3
of the Food Safety and Standard Rules, 2011, which was enacted by the
Central Government:-
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"2.1.3: Food Safety Officer :
1. Qualification - Food Safety Officer shall be a whole
time officer and shall, on the date on which he is so appointed
possesses the following :
(i) a degree in Food Technology or Dairy Technology or
Biotechnology or Oil Technology or Agricultural Science or
Veterinary Sciences or Bio-Chemistry or Microbiology or
Masters Degree in Chemistry or degree in medicine from a
(ii)
recognised University, or
any other equivalent/recognised qualification notified
by the Central Government, and
(iii) has successfully completed training as specified by the
Food Authority in a recognised institute or institution
approved for the purpose.
Provided that no person who has any financial interest
in the manufacture import or sale of any article of food shall
be appointed to be a Food Safety officer under this rule.
2. On the date of commencement of these rules, a
person who has already been appointed as Food Inspector
under the provisions of Prevention of food Adulteration Act,
1954, may perform the duties of the Food Safety Officer if
notified by the State/ Central Government, if the officer
fulfils such other conditions as may be prescribed for the post
of Food Safety Officer by the State Government.
3. The State Government may, in cases where a
Medical officer of health administration of local area has been
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performing the function of Food Inspector under the
Prevention of Food Adulteration Act, 1954, assign the powers
and duties of Food Safety Officer to such Medical officer in
charge of health administration of that area:
Provided further that the persons appointed
under clauses 2 and 3 above, shall undergo a specialised
training laid down by the Food Authority within a period of
two years from the commencement of these rules."
Clause (1) of the said Rules would not be relevant for the purpose of the
present petition inasmuch as the said rule deals with the fresh
appointment. Clause (2) provides that on the date of commencement of
the said rules, a person appointed as Food Inspector under the
provisions of 1954 Act, may perform the duties of Food Safety officers if
notified by the State or Central Government, if the officer fulfils such
other conditions as may be prescribed for the post of Food Safety officers
by the State Government. Clause (3) thereof provides that in cases
where the Medical officer of Health administration of the local area has
been performing the function of Food Inspector under the Rules, 1954
the State Government may assign the powers and duties of Food Safety
Officer to such Medical Officer in charge of health administration of that
area. However the proviso to this Rule provides that the persons
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appointed under clause 2 and 3 reproduced hereinabove, shall undergo
a specialized training laid down by the Food Authority within a period
of two years from the commencement of the said rules.
14. It could thus be seen that the Food Inspectors who were
appointed under the old Act and the Rules framed thereunder are
entitled to be continued as the Food Safety Officers, in view of clause
2 of Rule 2.1.3 of the Central Rules of 2011. It is not the case of the
State that the petitioners do not fulfill any of the conditions as are
prescribed by the State for Food Safety Officers. The only opposition is
on the ground that the appointment is not in consonance with sub-rule
(3) of Rule 4 of the State Rules. As could be seen from the material
placed on record, the respondent-Municipal Corporation is pursuing the
matter with the State Government and the respondent no.2 right from
2011 for providing the necessary training to the petitioners and the
other food Inspectors and for issuing a notification so that the petitioners
and the other food Inspectors discharge their duty.
15. It would also be relevant to refer to the Food Safety and
Standards (Licencing and Registration of Food Businesses) Regulations,
2011. Clause (5) of Rule 1.2 of the said Regulations reads thus:-
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"Registering Authority" means Designated Officer/
Food Safety officer or any official in Panchayat,
Municipal Corporation or any other local body or
Panchayat in an area, notified as such by the State
Food Safety Commissioner for the purpose of
registration as specified in these Regulations."
It could thus be seen that insofar as the Municipal Corporation area is
concerned, it is the Designated Officer/Food Safety Officer notified as
such by the State Food Safety Commissioner, shall be a registering
authority for the purpose of registration, as specified in those
regulations. Perusal of the said Regulations would reveal that all the
food business operators in the country will have to be registered or
licensed in accordance with the procedure laid down in the said Rules. It
could thus be seen that an important duty is cast upon the Local
Authority, like the Municipal Corporation. We find that the approach of
the State Government in denying the due training to the petitioners
and the other similarly circumstanced Food Inspectors and not issuing a
notification, clothing them with the powers under the 2006 Act and the
Rules framed thereunder, would rather be against the public interest,
inasmuch as on account of not having the requisite training and not
having the necessary powers, they would not be in a position to
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discharge their duties, to avoid the adulteration of food or to maintain
the safety and standard of the food, in the local areas within which
they would be exercising their jurisdiction.
16. On a pertinent query, the learned Assistant Government
Pleader appearing for respondent nos.1 and 2, on instructions of the
officers who are present in the Court, fairly concedes that all the Food
Inspectors working on the establishment of the State Government have
now been designated as Food Safety Officers. We find that the approach
of the State Government, to say the least, is not in conformity with the
principle of equality. On a specific query, the learned A.G.P. also
conceded that the respondent nos. 1 and 2 are having the requisite
facility of providing training to the Food Inspectors.
17. In the result, we pass the following order :-
ORDER
i) The respondent nos.1 and 2 are directed to impart training to
the petitioners and the other Food Inspectors. The said training shall
commence within a period of four weeks from today. Needless to state
that the respondent no.3-Corporation shall bear the costs of the said
training.
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ii) Upon completion of the training by the petitioners and other Food
Inspectors appointed by the respondent-Municipal Corporation the State
Government shall issue notification as provided under clause (2) of Rule
2.1.3 of the Food Safety and Standard Rules, 2011, clothing the powers
of the Food Safety Officers within the local area of the Nagpur
Municipal Corporation upon the petitioners and the other Food Safety
officers. The same shall be done within a period of four weeks upon
successful completion of the training by the petitioners and the other
Food Inspectors.
Rule is made absolute in the aforesaid terms,with no order
as to costs.
JUDGE JUDGE
sahare
