Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 8523-8524 OF 2011
(Arising out of S.L.P. (C) NOs.12308-12309 OF 2007)
The State of Rajasthan & Ors. ...... Appellants
Versus
The High Court of Judicature for
Rajasthan, Jodhpur through its
Registrar General ...... Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
2. These are the appeals against the orders dated
02.03.2007 and 19.03.2007 of the Division Bench of the
Rajasthan High Court, Jaipur, in D.B. Civil Writ Petition No.
2677 of 2005.
3. The facts briefly are that on the basis of a news
published in the Rajasthan Patrika on 04.04.2005 regarding
the manufacture and sale of synthetic milk in the districts
2
of Alwar and Bharatpur in the State of Rajasthan, the High
Court suo motu entertained the D.B. Civil Writ Petition No.
2677 of 2005 on 06.04.2005 and directed the Collectors of
Alwar and Bharatpur Districts to appear in person before
the Court. The Collector, Alwar, filed his reply before the
High Court stating inter alia that the very next day after the
news item was published, the Chief Medical Health Officer,
Alwar, had initiated action and an inspection team had
taken samples of the product and the samples were sent for
testing in the laboratory. On 02.03.2007, the High Court
found that Chief Medical Health Officers and Deputy Chief
Medical Health Officers had been vested with the powers of
the Food Inspector, though they did not have the requisite
training to function as Food Inspectors. The High Court
also observed in the order dated 02.03.2007 that the Chief
Medical Health Officer/ Deputy Chief Medical Health Officer
has to discharge duties of his post and has to remain at the
Head Quarters and he may not effectively perform the duties
of the post of Food Inspector. The High Court was of the
view that the State Government should appoint sufficient
number of Food Inspectors without which the menace of
3
food adulteration could not be checked. The High Court
posted the matter to 19.03.2007 and directed that the
Principal Secretary, Medical and Health Department should
be personally present on that day.
4. On 19.03.2007, the High Court found that there were
34 posts of Food Inspectors and all of them were lying
vacant and that a requisition had already been sent to the
Rajasthan Public Service Commission to fill up the posts,
but the Finance Department had not sanctioned the posts
on the ground that these were non-plan posts. The High
Court in the impugned order dated 19.03.2007 directed the
Medical Health Department of the Government of Rajasthan
to initiate the process of regular appointment against the 34
posts of the Food Inspectors and also directed the Finance
Department not to stall the process of appointment on
technical grounds. The High Court further directed in the
order dated 19.03.2007 that till regular appointment is
made, Sanitary Inspectors and others who possess the
requisite qualifications may be given appointment to the
posts of Food Inspector so that the provisions of the
4
Prevention of Food Adulteration Act and the Rules are
properly implemented.
5. Dr. Manish Singhvi, learned Additional Advocate
General appearing for the State of Rajasthan, submitted
that Section 9 of the Prevention of Food Adulteration Act,
1954, vests power in the State Government to appoint such
persons as it thinks fit, having prescribed qualifications to
be Food Inspectors, and it is within the prerogative of the
Government to determine the number of Food Inspectors
required to be appointed and therefore the High Court could
not have issued a mandamus to the State Government to
make appointment of as many as 34 Food Inspectors. He
further submitted that Rule 8 of the Prevention of Food
Adulteration Rules, 1955, prescribes the qualifications for
the purpose of appointment of Food Inspectors under
Section 9 of the Act and it provides that the Medical Officer
in-charge of health administration of a local area could be
appointed as Food Inspector. He submitted that the High
Court, therefore, could not have held that the Medical
Officers cannot be continued as Food Inspectors.
5
6. Section 9 of the Prevention of Food Adulteration Act,
1954 (for short `the Act’) and Rule 8 of the Prevention of
Food Adulteration Rules, 1955 (for short `the Rules’) are
extracted hereinbelow:
“Section 9 of The Prevention of Food
Adulteration Act, 1954:
9. Food Inspectors :- (1) The Central
Government or the State Government may, by
notification in the official Gazette, appoint such
persons as it thinks fit, having the prescribed
qualifications to be food inspectors for such local
areas as may be assigned to them by the Central
Government or the State Government, as the
case may be :
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
inspector under this section.
(2) Every food inspector shall be deemed to be a
public-servant within the meaning of section 21
of the Indian Penal Code (45 of 1860) and shall
be officially subordinate to such authority as the
Government appointing him, may specify in this
hehalf.
Rule 8 of The Prevention of Food Adulteration
Rules, 1955:
8. Qualification of food inspector :- A person
shall not be qualified for appointment as food
inspector unless he:-
(a) is a medical officer in-charge of health
administration of local area ; or
6
(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 months’ 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:
Provided that the training in food inspection and
sampling work obtained prior to the
commencement of 1[Rule 3 of the
Prevention of Food Adulteration (Fourth
Amendment) Rules, 1976], in any of the
laboratories under the control of :-
(i) a public analyst appointed under the Act, or
(ii) a fellow of the Royal Institute of Chemistry of
Great Britain (Branch E); or
(iii) any Director, Central Food Laboratory ; or
the training obtained under a Food (Health)
Authority, prior to the commencement of the
Prevention of Food Adulteration (Amendment)
Rules 1980, shall be considered to be equivalent
for the purpose of the requisite training under
these rules :
7
Provided further that a person who is a qualified
Sanitary Inspector having experience as such for
a minimum period of one year and has received
at least three months training in whole or in
parts in food inspection and sampling work, may
be eligible for appointment as food inspector,
upto the period ending on the 31st March, 1985
and may continue as such if so appointed even
though he does not fulfill the qualifications laid
down in clauses (a) to (c)].
Provided also that nothing in this rule shall be
construed to disqualify any person who is a food
inspector on the commencement of the
Prevention of the Food Adulteration (Amendment)
Rules 1980 from continuing as such after such
commencement.”
7. Sub-section (1) of Section 9 of the Act states that the
Central Government or the State Government may, by
notification in the official Gazette, appoint such persons as
it thinks fit, having the prescribed qualifications to be Food
Inspectors for such local areas as may be assigned to them
by the Central Government or the State Government, as the
case may be. Rule 8 of the Rules prescribes the
qualifications of Food Inspectors and it states in clause (a)
that a medical officer in-charge of health administration of
local area is qualified for appointment as Food Inspector. In
clauses (b) & (c) a graduate in medicine who has received at
8
least one months’ training in food inspection and sampling
work and a graduate in Science with Chemistry as one of
the subjects or a graduate in Agriculture or Public Health or
Pharmacy of in Veterinary Science or a graduate in Food
Technology or Dairy Technology or a Diploma Holder in
Food Technology or Dairy Technology from a University or
Institution established in India by law or having equivalent
qualification and has received three months satisfactory
training in food inspection and sampling work is also
qualified to be a Food Inspector. The State Government
could therefore appoint a medical officer in-charge of health
administration of a local area as a Food Inspector. If the
High Court found that the medical officers were not trained
in food inspection and sampling work, it could also direct
that the medical officers are given the required training to
function as Food Inspector, but the High Court could not
have issued a mandamus compelling the State Government
to replace the Medical Officers by Sanitary Inspectors or
other regular recruits as Food Inspectors. This Court has
held in Divisional Manager, Aravali Golf Club and Another vs.
9
Chander Hass and Another [(2008) 1 SCC 683] at page 688
in para 15:
“The court cannot direct the creation of
posts. Creation and sanction of posts is a
prerogative of the executive or legislative
authorities and the court cannot arrogate to
itself this purely executive or legislative
function, and direct creation of posts in any
organization. This Court has time and
again pointed out that the creation of a post
is an executive or legislative function and it
involves economic factors. Hence the courts
cannot take upon themselves the power of
creation of a post.”
8. We therefore set aside the direction in the impugned
order directing appointment of Food Inspectors against 34
posts and directing appointment of Sanitary Inspectors as
Food Inspectors in the meanwhile and allow the appeals.
There shall be no order as to costs.
………………………..J.
(R. V. Raveendran)
………………………..J.
(A. K. Patnaik)
New Delhi,
October 11, 2011.
