SANGEET LODHA,J. - (1.) This writ petition has been filed by the petitioners claiming the reliefs as under: "I. it may be declared that the notifications dated 15.6.2007 (Annexure-6) and 19.7.2007(Annexure-7) amount to appointment of the petitioners on the post of Food Inspector (now Food Safety Officer) on substantive basis with all consequential directions; II. in the alternative, the respondents may be directed to fill the vacancies of Food Safety Officer (erstwhile Food Inspector) in accordance with the qualifications which existed when the vacancies arose with all consequential directions; III. the impugned notification dated 25.7.2018 (Annexure- 25) may kindly be declared illegal in so far as it deletes screening for making substantive appointment on the post of Food Safety Officer at the time of initial constitution of service and the respondents be directed to include screening clause as proposed in the draft notification submitted before this Hon'ble Court and consider the cases of the petitioners accordingly; IV. Rule 2.1.3(1)(i) of the Rules of 2011 and notification dated 25.7.2018 in so far as it excludes the holder of graduate degree in Science with Chemistry as one of the subjects from eligibility for appointment as Food Safety Officer may kindly be declared illegal and be struck down and it may be declared that the holder of graduate in Science with Chemistry would be treated to be eligible for appointment on the post of Food Safety Officer; V. the respondents may be directed to grant pay scale of Food Inspector (Food Safety Officer) to the petitioners from the date of their initial appointment on the said post with all consequential benefits including arrears of salary along with interest at the rate of 18% per annum from the date the amount became due till the date of payment; VI. the respondents may be restrained from removing the petitioners from the post of Food Safety Officers and they may be directed to allow the petitioners to discharge the duties and functions of Food Safety Officer pursuant to the notification dated 25.7.2011 (Annexure-15); VII. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners. VIII. Costs of the writ petition may kindly be awarded to the petitioners."
(2.) The facts relevant leading to the filing of the present petition, may be summarised thus: (i) The Commissioner (Public Health), Department of Medical and Health Services vide communication dated 5.8.03 invited applications from the employees of the Department of Medical and Health, possessing the qualification of B.Sc. with Chemistry, desirous of undergoing three months training in Food Sampling, on their own expenses after getting the leave sanctioned. Such employees were directed to file their affidavits expressing their consent to work as Food Inspector under the Food Adulteration Act,1954 (for short "the Act of 1954") and the rules made thereunder. (ii) The petitioners possessing the qualification, submitted their applications for undergoing training and also submitted their affidavits consenting for appointment on the post of Food Inspector after successful completion of training. Initially, the petitioners were not sent for the training, however, pursuant to the order dated 26.10.04 passed by this Court in S.B.C.Writ Petition No.7010/04, the petitioners who were holding the requisite academic qualification for appointment on the said post as prescribed under Rule 8(c) of Prevention of Food Adulteration Rules, 1955 (for short "the Rules of 1955"), were also included for undergoing training. (iii) The petitioners underwent three months training at Regional Health and Family Welfare Training Centre, Jaipur and were issued training certificates accordingly. (iv) On 27.4.05, a Bench of this Court took cognizance of the news published in the newspaper regarding synthetic milk being manufactured in the districts of Alwar and Bharatpur on large scale. The writ petition was registered as D.B.C.Writ Petition No.2677/05. On 19.3.07,the Bench of this Court issued following directions for appointment on 34 sanctioned posts of Food Inspector: "In course of hearing, it transpired that some Sanitary Inspectors have been "authorised" to perform the duties of Food Inspectors, we are of the view that in order to avoid any technical lapse and objection, it would be appropriate that such of the Sanitary Inspectors and others who possess the requisite qualifications may at the first instance be given 'appointment' on the post of Food Inspector so that the Prevention of Food Adulteration Act and the rules are properly implemented. At the second stage, regular appointment should be made for all 34 sanctioned posts of Food Inspectors. As mentioned above, the Department proposed to fill the posts and requisition was also sent to the Rajasthan Public Service Commission but the Finance Department on the ground that posts are non-plan posts did not permit appointments. Having regard to the significance of implementation of the Prevention of Food Adulteration Act and the rules, we disapprove the manner in which the Finance Department did not permit the Medical and Health Department to make the appointments. We direct the Medical and Health Department to initiate the process of regular appointment against the aforesaid 34 sanctioned posts with a direction to the Finance Department not to stall the process of appointment on technical grounds. The process of appointment for 34 sanctioned posts may take time and it would be appropriate that the Department in the meanwhile initiates action for creation of additional posts of Food Inspectors." (v) During the pendency of the aforesaid petition, Shri Ram Mishra and others including the petitioner no.1 and 2 preferred a writ petition being D.B.C.Writ Petition No.7916/05 seeking directions to appoint them as Food Inspector. (vi) The State Government in exercise of the power conferred under Section 9(1) of the Act of 1954 and Rule 8 of the Rules of 1955 issued notifications dated 15.6.07 and 19.7.07, authorising the petitioners and others to exercise the powers of Food Inspectors. (vii) As per the terms of the authorisation issued as aforesaid, the petitioners and their likes were authorised to discharge the duties of Food Inspector till the availability of Food Inspectors duly selected by Rajasthan Public Service Commission or Screening Committee. The State Government specifically reserved its right to revoke the authorisation. The employees authorised to perform the duties of Food Inspector were to be paid salary in existing pay scale of their original post. (viii) Aggrieved by orders dated 2.3.07 and 19.3.07 passed by a Bench of this Court in Writ Petition No.2677/05, the State Government preferred Special Leave Petition before the Supreme Court. The leave was granted and the appeals preferred by the State Government were allowed by the Supreme Court, whereby the directions issued by this Court directing appointment of Food Inspector against 34 posts and directing appointment of Sanitary Inspectors as Food Inspectors in the meanwhile, were set aside. (ix) The aforesaid notifications dated 15.6.07 and 19.7.07 were withdrawn by the State Government vide notification dated 9.4.08, the validity whereof was questioned by some of the employees before Jaipur Bench of this Court by way of S.B.C.Writ Petition No.3751/08 wherein the operation of notification dated 9.4.08 was stayed by this Court vide order dated 22.4.08. Subsequently, the State Government by notification dated 11.11.08 kept the notification dated 22.4.08 in abeyance and the authorisation of the petitioners and their likes to discharge the duties of Food Inspector vide notification dated 15.5.07 and 19.7.07 was continued. (x) In the meantime, the Parliament enacted Food Safety and Standards Act, 2006 (for short "the Act of 2006") to consolidate the laws relating to food and to establish Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption and for matters connected therewith and incidental thereto. The Act of 1954 stood repealed by virtue of provisions of Section 97 of the Act of 2006. In exercise of the power conferred by Section 91 of the Act of 2006, the Central Government framed the Food Safety and Standards Rules, 2011 ('the Rules of 2011'), which came into force w.e.f. 5.8.11. (xi) After coming into force of the Act of 2006 and the Rules of 2011, the writ petition No.3751/08 was dismissed by the learned Single Judge of this Court at Jaipur vide order dated 20.9.11, however, the respondents therein were issued directions in the following terms: "The respondents are, however, directed to take action to depute/notify the persons eligible to discharge the duties of Food Safety Officer as per the Act of 2006 and if anybody is eligible to discharge such duties, after adopting necessary procedure, notification may be issued afresh. If any of the petitioners is eligible to discharge the duties of the Food Safety Officer, then their names can also be notified. For that purpose respondents are expected to take action as per the provisions of the law and without bias against petitioner on account of filing of this writ petition. This disposes of stay application also." (xii) Section 37 of the Act of 2006 makes the provision for appointment of Food Safety Officer which reads as under: "Food Safety Officer.-(1) The Commissioner of Food Safety shall, by notification, appoint such persons as he thinks fit, having the qualifications prescribed by the Central Government, as Food Safety Officers for such local areas as he may assign to them for the purpose of performing functions under this Act and the rules and regulations made thereunder. (2) The State Government may authorise any officer of the State Government having the qualifications prescribed under sub-section (1) to perform the functions of a Food Safety Officer within a specified jurisdiction." (xiii) The judgment dated 20.9.2011 passed by the learned Single Judge in S.B.C.Writ Petition No.3751/08 was assailed by the writ petitioners Ratan Singh Godara and others by way of filing D.B.Special Appeal (Writ) No.1861/11. (xiv) In exercise of the power conferred under Section 37(1) of the Act of 2006, the State Government issued notifications dated 25.7.11, 9.11.11 and 29.11.11 appointing the petitioners and others as Food Safety Officers. The petitioners' names appeared at serial no.74, 70, 50 and 40 in the notification dated 25.7.11. Since the appointment of petitioners and others was notified by the State Government in terms of Act of 2006 and Rules of 2011, the aforesaid appeal being D.B.Civil Special Appeal (Writ) No.1861/11 preferred by Ratan Singh Godara and others was dismissed as withdrawn. (xv) The State Government issued an order dated 7.3.13 sanctioning 98 posts of Food Safety Officers in the running pay band 9300-34800. However, vide another order dated 24.6.13, the petitioners were granted existing pay scale for original post and the condition was imposed that they shall never claim seniority and salary of the post of Food Safety Officer in future. The petitioners accordingly gave their consent. (xvi) Subsequently, a Division Bench of this Court at Jaipur vide order dated 12.4.16 passed in D.B.Special Appeal (Writ) No.51/16 issued directions in regard to appointment of Food Safety Officer as under: "Taking note of the fact that appointment of Food Safety Officers has not received required attention of the officials of the State, we issue following directions:- (1) The Chief Secretary of the State of Rajasthan, Jaipur shall ensure that the cadre rules for appointment to the post of Food Safety Officer are approved and notified by the State of Rajasthan within one month from today. (2) The Chief Secretary of the State shall draw tentative schedule regarding recruitment/appointment/promotion of Food Safety Officers. (3) The Food Safety Officers to be appointed shall have requisite qualification as perrule2.1.3 of the Rules of 2011. (4) Qualified Food Safety Officers shall be appointed within three months from the date of framing and approval of cadre rules by an independent agency i.e. Rajasthan Public Service Commission or Subordinate Services Board, whichever maybe applicable or by an independent committee to be constituted by the Chief Secretary of the State of Rajasthan. (5) The Chief Secretary of the State of Rajasthan shall approve and set into motion a time table specifying the date when advertisement shall be issued, when applications shall be invited from the eligible candidates and the date when appointment letters shall be issued. We expect that to give effect to our above directions, the State of Rajasthan shall scout for the best talent, who is conversant with modern techniques regarding manufacture and processing of safe and wholesome food, and such officers to be inducted shall be capable of ensuring that unsafe, sub-standard, mis-branded food is not sold in the State of Rajasthan and the State is free from sale and import of adulterated food. We further hope that the Chief Secretary of the State while intervening in the matter will ensure that Laboratory Technician, Nurse Grade-II, Opthalmic Assistant, MPW, LDC etc are not made Food Safety Officers through back door. List this case on 3.5.2016. On or before the said date, the Chief Secretary shall file an affidavit to acquaint this court regarding efforts made by him to comply with the directions issued by us. In the said affidavit, the Chief Secretary shall give details of the steps undertaken to meet expectations of the court and hope expressed. A copy of this order under the seal and signatures of the Court Master be handed over to Mr. Shyam Arya, the learned Additional Advocate General appearing for the State for onward transmission and necessary compliance." (xvii) The State Government vide notification dated 25.7.18 notified the Rajasthan Medical and Health Subordinate Service (Fourth Amendment) Rules, 2018, amending the Rajasthan Medical and Health Subordinate Service Rules, 1965 ("the Rules of 1965"), whereby inter alia the eligibility qualification for recruitment to the post of Food Safety Officer was prescribed as under: "(i) A degree in Food Technology or Dairy technology or Biotechnology or Oil Technology or Agriculture Science or Veterinary Sciences or Bio-Chemistry or Microbiology or Masters Degree in Chemistry or Degree in Medicine from a recognized University. or any other equivalent recognized qualification notified by the Central Government and (ii) has successfully completed training as specified by the Food Authority in a recognized 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 these rules." (xviii) The petitioners are aggrieved by the said notification dated 25.7.2018 issued by the State Government inasmuch as, it is silent about the status of the petitioners and their likes who were authorised/appointed on the post of Food Inspector by the State Government in exercise of the power conferred under Section 9(1) of the Act of 1954 and the Rules of 1955. According to the petitioners, on the date of commencement of the Rules of 2011 i.e. 5.8.2011, they were entitled to be notified as Food Safety Officer by virtue of Rule 2.1.3(2) of the Rules of 2011, which reads as under: "On the date of commencement of these rules, a person who has already been appointed as a 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." (xix) The petitioners apprehending that in absence of the Proviso in the Rules of 1965 as amended vide notification dated 25.7.2018 with regard to the screening of the petitioners and their likes, they are likely to be sent back to their parental post, have filed present petition, claiming the reliefs reproduced as above.
(3.) Learned counsel appearing for the petitioners contended that the petitioners' authorisation vide notifications dated 15.6.2007 and 19.7.2007 to discharge the duties of the post of Food Inspector, the post which subsequently stands re-designated deserves to be treated as substantive appointment on the said post inasmuch as, Section 9(1)of the Act of 1954 only provides for appointment as Food Inspector, which stands saved under the provisions of the Act of 2006 and Rules of 2011. Learned counsel submitted that the petitioners are having qualification as contemplated by Rule 8(c) of the Rules of 1955 as all of them are graduates in Science with Chemistry as one of the subject. Rule 2.1.3.1 (i) providing for Master's Degree in Chemistry which is adopted by the State Government cannot be made applicable to the petitioners by virtue of repeal and saving clause contained in Section 97 of the Act of 2006. Learned counsel submitted that in order dated 12.4.2016 passed by a Bench of this Court in D.B.C.Special Appeal No.51/16 observing that Laboratory Technician, Nurse Gr.-II, Ophithalmic Assistant, MPW, LDC, Assistant Radiographer, Nurse Grade-I etc. should not be appointed Food Safety Inspector through backdoor, was passed in context of those persons who were being appointed as Food Safety Officer after giving training for five days only. It is submitted that the petitioners were appointed in the year 2007 after successfully undergoing three months training in Food Inspection and Sampling work as provided under Rule 8(c)of the Rules of 1955 and performing their duties throughout to the entire satisfaction of the respondents. It is submitted that in the compliance report submitted before this Court at Jaipur Bench,it is clearly proposed by the respondents that the persons already notified as Food Inspector under the Act of 1954 on or before 5.8.2011 shall be screened by the Screening Committee constituted under the Chairmanship of Food Safety-cum-Director (Public Health) against the existing vacancies of Food Safety Officer as one time exception only. Learned counsel submitted that attention of the Division Bench of this Court hearing the appeal was not drawn to the provisions of clause (2) of Rule 2.1.3, which protects the appointment of Food Inspector made under the Act of 1954. Learned counsel submitted that after the order passed by this Court as aforesaid, the respondents in their various note sheets placed on record as Annexure 26, have recommended to insert a provision for safeguarding the interest of existing Food Safety Officers including the petitioners. In this view of the matter, the respondents are under an obligation to insert such provision to safeguard the interest of the persons who have already been appointed as Food Inspector (Food Safety Officer) on the date of the commencement of the notification dated 25.7.2018. Learned counsel would submit that the vacancies of the post of Food Inspector being of the year 2003,the qualifications for appointment on the said post could be treated to be one which were existing in the year 2003 and thus, assuming that the qualification for appointment as Food Inspector now re-designated as Food Safety Officer should be the one specified under Rule 2.1.3 (1) (i) of the Rules of 2011. The petitioners holding the post of Food Inspector on the date of commencement of the Rules of 2011 and possessing the qualification specified under the Rules of 1955 would be treated to be qualified and eligible and thus, they are entitled to the regular pay scales admissible to the post of Food Inspector, which now stands re-designated as Food Safety Officer. Learned counsel submitted that while passing the order dated 6/9.2.2015, the Principal Secretary, Medical and Health has categorically recorded that the petitioner no.4 was possessing requisite qualification for appointment as Food Safety Officer inasmuch as, he was having qualification of Graduation in Science with Chemistry as one of the subjects and has undergone three months training in Food Inspection and Sampling Work as prescribed under Rule 8(c) of the Rules of 1955. Learned counsel submitted that the action of the State Government in not inserting the proviso protecting the interest of existing Food Safety Officers makes the provision incorporated vide notification dated 25.7.2018 ultra vires of the Act of 2006. According to the learned counsel the action of the State Government in not retaining the provision for screening as proposed in the draft Notification submitted before this Court while issuing notification dated 25.7.2018 for the existing Food Safety Officer working as such since 2007 is highly illegal, arbitrary and unreasonable. Learned counsel submitted that the action of the respondents in restricting the pay of the petitioners and their likes of their parent post while they are discharging their duties as Food Inspector/Food Safety Officer is illegal as being arbitrary and discriminatory so as to violative of Article 14, 16 and 39(d) of the Constitution of India. Learned counsel submitted that the petitioners had no choice but to give the consent for working on the condition imposed by the State Government else they would have been removed from the post. Learned counsel urged that such condition imposed is nonest inasmuch as, the fundamental rights accrued to the petitioners cannot be waived.;