THE STATE OF RAJASTHAN & ORS.versusTHE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JOOHPUR THROUGH ITS REGISTRAR GENERAL

                         (2011] 11 S.C.R. 808


A              THE STATE OF RAJASTHAN & ORS.
                                    V.
     THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,
       JOOHPUR THROUGH ITS REGISTRAR GENERAL
             (Civil Appeal Nos.8523-24 of 2011)
B
                         OCTOBER 11, 2011
          [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

          Prevention of Food Adulteration Act, 1954 - s. 9 -
C   Appointment of food inspectors - Power of - Held: Section 9
    vests power in the State Government to appoint such persons
    as it thinks fit, having the prescribed qualifications to be Food
    Inspectors for the local areas assigned to them, as prescribed
    ulr. 8 of the Rules - On facts with regard to manufacture and
o   sale of synthetic milk, the Chief Medical Officer initiated action
    of taking samples of the products and sending it for testing -
    Thereafter, in a writ petition, the High Court issued a
    mandamus compefling the State Government to replace the
    Medical Officers by Sanitary Inspectors or other regular
E   recruits as Food Inspector which was not correct - State
    Government could appoint a medical officer in-charge of
    health administration of a local area as a Food Inspector - If
    the High Cowt found that the medical officers were not trained
    in food inspection and sampling work, it could also direct that
F   the medical officers be given the required training to function
    as Food Inspector- Thus, the direction by the High Court with
    regard to appointment of Food Inspectors against 34 posts
    which were lying vacant and appointment of Sanitary
    Inspectors as Food Inspectors in the meanwhile is set aside
G   - Prevention of Food Adulteration Rules, 1955 - r. 8.
      In a suo motu writ petition entertained by the High
  Court with regard to manufacturing and sale of synthetic
  milk in certain Districts of the State, the Collectors of the
  District appeared on direction by the High Court. They
H                               808 .
STATE OF RAJASTHAN & ORS. v. HIGH COURT OF 809
        JUDICATURE FOR RAJASTHAN
filed their reply that the Chief Medical Health Officer         A
initiated action as regards taking samples of the product
and sending it for testing. The High Court found that the
Chief Medical Health Officers and Deputy Chief Medical
Health Officers had been vested with the powers of Food
Inspector, though they did not have the requisite training      B
to function as Food Inspectors; and that 34 posts of
Food Inspectors were lying vacant. The High Court
directed appointment of Food Inspectors against 34 posts
and till regular appointment is made, Sanitary Inspectors
and others who possess .the requisite qualifications may        c
be given appointment to the post of Food Inspector.
Therefore, the appellant-State filed the instant appeals.

    Allowing the appeals, the Court
     HELD: Sub-section (1) of Section 9 of the Prevention       D
of Food Adulteration Act, 1954 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           E
them by the Central Government or the State
Government, as the case may be. Rule 8 of the Prevention
of Food Adulteration Rules, 1955 prescribes the
qualifications of Food Inspectors and it states in clause
(a) that a medical officer in-charge of health administration   F
of local area is qualified for appointment as Food
Inspector. In clauses (b) & (c) a graduate in medicine who
has received at 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·      G
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
                                                                H
    810      SUPREME COURT REPORTS                [2011] 11 S.C.R.


A 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
B 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
c could not have issued a mandamus compelling the State
  Government to replace the Medical Officers by Sanitary
  Inspectors o.r other regular recruits as Food Inspectors.
  The direction in the impugned order directing
  appointment of Food Inspectors against 34 posts and
D directing appointment of Sanitary Inspectors as Food
  Inspectors in the meanwhile, is set aside. '[Paras 7 and
  8) [815-C-H; 816-A-D]

      Divisional Manager, Aravali Golf Club and Another vs.
  Chander Hass and Anr. (2008) 1 SCC 683: 2007 (12) SCR
E 1084 - referred to.
                          Case Law Reference:
          2007 (12) SCR 1084       Referred to.        · Para 7

F       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8523-8524 of 2011.

        From the Judgment & Order dated 2.3.2007 of the High
    Court of Rajasthan at Jaipur in DB Civil Writ Petition No. 2677of
    2005.
G
        Dr. Manish Singhvi, AAG and R. Gopalakrishna for the
    Appellants.

          8.D. Sharma for the Respondent.
H
STATE OF RAJASTHAN & ORS. v. HIGH COURT OF 811
        JUDICATURE FOR RAJASTHAN
    The Judgment of the Court was delivered by                      A
    A.K. PATNAIK, J. 1. 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.S. Civil Writ Petition No.       8
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 of Alwar    C
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 b.efore the Court. The
Collector, Alwar, filed his reply before the High Court stating     D
inter a/ia 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       E
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
                                                                    F
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 food
adulteration could not be checked. The High Court posted the        G
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      H
    812      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A · posts of Food Inspectors and all of them were lying vacant and
    that a requisition had already been sent to the Rajasthan Publ.ic
    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 Hig.h Court in the impugned
B 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
c 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 Prevention of Food Adulteration Act and the
D 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
E 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
F 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
G 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.

        6. Section 9 of the Prevention of Food Adulteration Act,
    1954 (for short 'the Act') and Rule 8 of the Prevention of Food
H
STATE OF RAJASTHAN & ORS. v. HIGH COURT OF 813
JUDICATURE FOR RAJASTHAN [A.K. PATNAIK, J.]
Adulteration Rules, 1955 (for short 'the Rules') are extracted     A
t:iereinbelow:

    "Section 9 of The Prevention of Food Adulteration Act,
    1954:

    9. Food Inspectors:- (1) The Central Government or the         8
    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         C


    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.        0
    (2) Every food inspector shall be deemed to be a public-
    servant within the meaning of section 21 of the Indian
    Penal Code (45of1860) and shall be officially subordinate
    to such authority as the Government appointing him, may
    specify in this hebalf.                                        E

     Rule 8 of The Prevention of Food Adulteration Rules,
     1955:

    8. Qualification of food inspector:- A person shall not be
                                                                   F
    qualified for appointment as food inspector unless he:-

    (a) is a medical officer in-charge of health administration
    of local area ; or

    (b) is a graduate in medicine and has received at least        G
    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
                                                                   H
    814       SUPREME COURT REPORTS                 [2011) 11 S.C.R.


A         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
B         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
c         Government: ·

          Provided that the training in food inspection and sampling
          work obtained prior to the commencement of 1[Rule 3 of
          the

D         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

E         (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
F
          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 :

G         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
H         the period ending on the 31st March, 1985 and may
STATE OF RAJASTHAN & ORS. v. HIGH COURT OF 815
JUDICATURE FOR RAJASTHAN [A.K. PATNAIK, J.]
    continue as such if so appointed even though he does not        A
    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         8
    (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    C
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       D
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 least one
months' training in food inspection and sampling work and a
graduate in- Science with Chemistry as one of the subjects or       E
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    F
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     G
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   H
    816        SUPREME COURT REPORTS                   [2011) 11 S.C.R.


A   as Food Inspectors. This Court has held in Divisional
    Manager, Aravali Golf Club and Another vs. Chander Hass
    and Another [(2008) 1 SCC 683] at page 688 in para 15:

           "The court cannot direct the creation of posts. Creation and
B          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
c          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
D   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.

'   N.J.                                              Appeals allowed.




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