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Judgment
O R D E R
Per Hon'ble Mr.D.S.Mahra, J.M.
The applicant has filed the present TA seeking the following reliefs:
"(i)MANDAMUS: A writ of Mandamus, be issued in favour of petitioner and against respondent No.2, commanding to forward recommendation to respondent No.1 in pursuance of selection of petitioners.
(ii)MANDAMUS: A writ of Mandamus, be issued in favour of petitioners and against respondent No. 1, commanding to act on recommendation of respondent No.2 and to issue order of appointment.
(iii)CERTIORARI: A writ of Certiorari be issued in favour of petitioners and against respondent No.2 for quashment of remarks column, of selection list to the extent of petitioners.
(iv)PROHIBITION: A writ of Prohibition be issued in favour of petitioners and against respondents restraining them from withdrawing selection list.
(v)Any other writ, order or direction which this Hon'ble Court may deem fit and proper be also issued in the given circumstances of the case, so as to meet the ends of justice.
The facts of the case in brief are that respondent No.2 vide advertisement dated 24.12.2010 invited applications for the post of Food Inspectors. In the said notification qualification for the post was also prescribed. The applicants, possessing qualification prescribed and applied for the post. In the preliminary test the petitioners scored the points and were shortlisted for final test and viva voce. After completion of the selection process, the select list was forwarded to respondent No. 1 vide order dated 21.4.2018. In the said select list the applicants were selected in Open Merit Category as well as RBA category. However, respondent No.2 withheld recommendation of these two candidates for the reason that the applicants were not possessing three months' training in Food Inspection and Sampling Work under Food & Health Authority or in any Institution approved for the purpose by the Central Government.
The applicants, submitted a representation clarifying non-availability of the qualification during pre-appointment process. The matter was referred to Controller of Drug and Food Control Organization and vide letter dated 8.8.2018, it was answered that 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Authority or in an Institution approved for the purpose by the Central Government was mandatory under Rule 8(c) of repealed Act i.e. Prevention of Food Adulteration Act, 1956 (PFA in short) and PFA Rules 1955, for appointment of candidates to the post of Food Inspector. Respondent No. 1 directed respondent No.2 to take further necessary action in the matter with regard to the clarification obtained from Controller, Drug and Food Control Organization. Respondent No.2 has thus kept the matter pending without any fault of the applicants. Hence, the present TA by the applicants for direction to the respondents.
It is submitted by the applicants that while applying for the post of Food Inspector, they had submitted their certificates and testimonials. Respondent No.2 shortlisted them on the basis of individual merit and allowed them to sit for the final selection and also called them for viva voce, but did not recommend their names for appointment, which is bad in law.
The respondents in their counter affidavit, have stated that none of the rights of the applicants have been violated nor do they have any cause of action. It is submitted that J&K Services Selection Board being a selection agency is under obligation to carry out the selection & process in accordance with statutory provisions and recruitment rules and the answering respondent cannot relax or modify the prescribed qualification as mentioned in the rules. It is further submitted by the respondents that vide order dated 7.1.2010 respondent No.1 forwarded four posts of Food Inspector to the J&K Services Selection Board for filling up in accordance with law.
Accordingly, the answering respondent issued notification dated 24.12.2010 for various State and Divisional Cadre posts including the posts of Food Inspector (Item No.33) with the qualification as prescribed in the recruitment rules which reads as under:
Qualification for the post of Food Safety Officer :-
"(a)Is a medical officer in charge of Health Administration of local area. OR (b) is a graduate in Medicine & has received at least one month's training in Food Inspection and sampling work approved for the purpose, by the Central Government or 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 from a University or Institution established in India by law. Has an equivalent qualification recognized and notified by the Central Government for the purpose and has received three months satisfactory (should be statutory) training in Food Inspection and Sampling work under a Food (Health) Authority or Institution approved for the purpose by the Central Government."
It is further submitted that the applicant along with other competing candidates participated in the selection process. The respondents vide letter dated 21.4.2018 selected four candidates of different categories including the applicants herein provisionally for the aforementioned posts and their recommendations were kept withheld for want of desired certificate of three months training in Food Inspection and Sampling work from a recognized Institution. The applicants do not possess the mandatory three months' training in Food Inspection and Sampling Work which is sine qua non for making appointment to the posts. Hence the action of the respondents not being illegal and bad in law, the present TA is liable to be dismissed.
Heard learned counsels for the parties and perused the pleadings on record.
The essential qualification for the post of Food Safety Officer is as follows under Food Safety & Standard Rules, 2011 :
2.1.3 : Food Safety Officer :-
“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 Biochemistry or Microbiology or Masters Degree in Chemistry or degree in medicine from a recognized University, or (ii) any other equivalent/recognized qualification notified by the Central Government, and (iii) 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 this rule.
The Food Safety and Standards Authority of India vide clarification dated 3.10.2018 clarified the position with regard to the essential qualification as follows :
“Subject : Clarification on rule 2.1.3 of Food Safety and Standards Rules, 2011 regarding appointment of Food Safety Officers. 2. In this regard, it is clarified that the educational qualification mentioned at Rule 2.1.3.1 (i) and (ii) of FSS rules, 2011 are mandatory for recruitment of Food Safety Officers. However, successful completion of training as specified in Rule 2.1.3.1.(iii) of FSS Rules, 2011 is mandatory before notifying such selected officers as Food Safety Officers under Section 37 of FSS Act, 2006.”
By issuing the above clarification the Food Safety And Standards Authority of India has made it clear that the educational qualification mentioned under Rule 2.1.3.1 (i) & (ii) of Food Safety and Standards Rules, 2011 are mandatory for recruitment of Food Safety Officers. However, the successful candidate will have to undergo a training as specified under Rule 2.1.3.1 (iii) of Food Safety and Standards Rules, 2011 before notifying a selected candidate/appointed candidate as Food Safety Officer under Section 37 of the Food Safety and Standards Act, 2006. Section 37(1) of the said Act reads as Section 37(1) of the Food Safety & Standard Act 2006 reads as follows :
“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.”
The Food Safety and Standards Authority of India vide communication dated 7.4.2022 has further clarified the position with regard to the Rule as follows :
Sub : Clarification regarding requirement of training for appointment to the post of Food Safety Officer :-
“In this connection, it is clarified that there is no bar on the selection of the candidate to the post of Food Safety Officer who have not undergone the training. However, successful completion of training as specified in Rule 2.1.3.1(iii) of FSS Rules, 2011 is mandatory before notifying such selected officers as Food Safety Officers under Section 37 of Food Safety and Standards Act, 2006.”
By applying the harmonious construction rule interpretation of the above provisions of the essential qualification of the Food Safety Officer, the emerged position is that if a selected candidate is appointed as Food Safety Officer as per the essential qualification in Rule 2.1.3.1(i) & (ii), the selected candidate will have to undergo a training of three months as prescribed under rule 2.1.3.1 (iii) and only after the departmental training such a Food Safety Officer so appointed, will have to be notified by the competent authority as Food Safety Officer.
By applying this interpretation, the three months training is to be imparted/provided to the selected candidates before notifying such a candidate as Food Safety Officer. This training is not essential for the purpose of selection. In other words, such a selected candidate will be notified as Food Safety Officer by the competent authority under Section 37 only after his selection and after selection if such an officer is sent for three months specified training in Food Inspection and Sampling Work. It is made clear that such training is not imparted by any private institution. Such training is imparted only by the Govt. Institutions that too after the officer has been appointed as Food Safety Officer. Thus, going by the interpretation given by the respondents, no one will be appointed to the post of Food Safety Officer because such training as provided under Rule 2.1.3.1(iii), is imparted only by Govt. Institutions and that too to a serving employee, and not to anyone else.
In view of the above, the correct interpretation of the rule is that in the first instance, the applicant is to be appointed to the post, then get training departmentally in the Food Inspection and Sampling Work, since there is no institute other than the Govt. run, which imparts training to the private individuals. It is clarified that three months training is not a prerequisite condition for appointment to the post of Food Safety Officer. It is an essential qualification/training after his selection but before notifying a selected candidate as a Food Safety Officer. It is made clear that it is not the case of the respondents that applicants are not fulfilling the essential qualification prescribed under the rules. The only objection of the respondents is that the selected candidates are not fulfilling the qualification as prescribed under the Rule 2.1.3.1 (iii). Division Bench of Hon’ble High Court of Bombay, Nagpur Bench in WP 1354/2016 has also clarified the rule position and held as follows :
“(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.
(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 92) 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 under 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.”
In view of the above discussion, the TA is allowed with a direction to the respondents/SSRB to forward the recommendation of the applicants to the government for their appointment within four weeks from today. The parties shall bear their own costs.