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Judgment
Principal relief which the petitioner seeks vide present petition is for quashment of Notification No. GSR 57 (E) dated 13/1/2017, published in Gazette
of India : Extraordinary Part II dated 19.01.2017, which is in the following terms :
 “G.S.R. 57(E).- In exercise of the powers conferred by Section 91 of the Food Safety and Standards Act, 2006 (34 of 2006), the Central
Government hereby makes the following rules further to amend the Food Safety and Standards Rules, 2011 namely :-
1.(1) These rules may be called the Food Safety and Standards (Amendment) Rules, 2017.
  (2) They shall come into force on the date of their publication in the Official Gazette.
In the Food Safety and Standards Rules, 2011, in Chapter 2, in rule 2.1, in sub-rule 2.1.2, in clause 1, relating to qualification, sub-clause (iii), in item
(b), for the words “five yearsâ€, the words “eight years†shall be substituted.
[F.No. P.15025/242/2015-DFQC(Food)]
K.L. SHARMA. Jt. Secy. “
2- The precise grounds on which the validity of impugned notification in question is spelt out in paragraph 3.24 of the petition stating that :
“3.24 - That, the notification annexure P/5 has been issued by the Central Government in the name of Food Safety Standard (Amendment) Rules
2017, while exercising the powers under section 91 of the Act 2006, thought the aforesaid power, thought firstly these amendments cannot be issued
while exercising the powers under section 91 of the Act 2006, because in the aforesaid section Central Government can make the rules in the matter
which are provided under sub section 2 of section 1991 and the aforesaid amendment is not coming in the purview of section 1991 and in fact it may
be come under section 101 of the Act 2006, because the aforesaid amendment has been issued by the authority without following the procedure which
is prescribed under section 101 and secondly this amendment is also not permissible because it appears that respondent authority has not followed the
provision as provided under section 93 of the Act 2006 and the notification annexure P/5 has not been laid before each house of the parliament for a
total period of 30 days, hence the notification annexure P/5 is contrary to law provision of the Act.â€Â
3- Thus the challenge is mainly on the ground that that the amendment being not laid before both the Houses of Parliament as per Section 93 of the
Food Safety and Standards Act, 2006 (hereinafter referred to as ""the Act of 2006""), the notification is a nullity. And further, as the amendment vide
said notification has been undertaken because of the difficulty faced by various States, the same has to be construed to be under Section 101 of the
Act of 2006; and could not have been brought in vogue because of the proviso to sub-section (1) of section 101.Â
4- The Act of 2006 was brought in vogue to consolidate the laws relating to food and to establish the 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 or incidental thereto. 5- That to carry out the provision
of the Act of 2006, Section 91 confers powers in the Central Government to frame Rules. It stipulates:
“91. Power of Central Government to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules for
carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters,
namely:-
(a) salary, terms and conditions of service of Chairperson and Members other than ex officio Members under sub-section (2) and the manner of
subscribing to an oath of office and secrecy under subsection (3) of section 7;
(b) qualifications of Food Safety Officer under sub-section (1) of section 37;
(c) the manner of taking the extract of documents seized under sub-clause (8) of section 38;
(d) determination of cases for referring to appropriate courts and time-frame for such determination under sub-section
(4) of section 42;
(e) qualifications of Food Analysts under section 45;
(f) the manner of sending sample for analysis and details of the procedure to be followed in this regard under subsection (1) of section 47;
(g) the procedure to be followed in adjudication of cases under sub-section (1) of section 68;
(h) qualifications, terms of office, resignation and removal of Presiding Officer under sub-section (4), the procedure of appeal and powers of Tribunal
under sub-section (5) of section 70;
(i) any other matter relating to procedure and powers of Tribunal under clause (g) of sub-section (2) of section 71;
(j) the fee to be paid for preferring an appeal to the High Court under subsection (1) of section 76;
(k) form and time of preparing budget under sub-section (1) of section 81;
(l) form and statement of accounts under sub-section (1) of section 83;
(m) the form and time for preparing annual report by Food Authority under subsection (1) of section 84; and
(n) any other matter which is required to be, or may be, prescribed or in respect of which provision is to be made by rules by the Central
Government†6- That, Section 93 envisages :
“93. Laying of rules and regulations before Parliament.-Every rule and every regulation made under this Act shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation
shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously done under that rule or regulation.â€
7- That the Central Government in exercise of the powers conferred under Section 91 of the Act of 2006, framed Rules, viz Food Safety and Standard
Rules, 2011 vide GSR 362(E) dated 05/05/2011 published in the Gazatte of India, Extraordinary Part II Section 3 (i) dated 05/05/2011.
8- That Section 36 of the Act of 2006, provides rules provision regarding designated officer. It envisages :
“36. Designated Officer.-
(1) The Commissioner of Food Safety shall,by order, appoint the Designated Officer, who shall not be below the rank of a SubDivisional Officer, to be
in-charge of food safety administration in such area as may be specified by regulations.
(2) There shall be a Designated Officer foreach district.
(3) The functions to be performed by theDesignated Officer shall be as follows, namely:-
(a) to issue or cancel licence of food businessoperators;
(b) to prohibit the sale of any article of foodwhich is in contravention of the provisions of this Act and rules and regulations made thereunder;
(c) to receive report and samples of article of foods from Food Safety Officer under his jurisdiction and get them analysed;
(d) to make recommendations to the Commissioner of Food Safety for sanction to launch prosecutions in case of contraventions punishable with
imprisonment;
(e) to sanction or launch prosecutions in cases of contraventions punishable with fine; (f) to maintain record of all inspections made by Food Safety
Officers and action taken by them in the performance of their duties; (g) to get investigated any complaint which may be made in writing in respect of
any contravention of the provisions of this Act and the rules and regulations made thereunder;
(h) to investigate any complaint which maybe made in writing against the Food Safety Officer; and
(i) to perform such other duties as may beentrusted by the Commissioner of Food Safety.â€
9- That Rule 2.1.2 of the Rules of 2011 provide for the qualification of Designated in the following terms :
“2.1.2: Designated Officer
(1) Qualification
(i) The Designated Officer shall be a wholetime officer, not below the rank of SubDivisional Officer or equivalent and shall possess a minimum of
bachelors’ degree in science with chemistry as one of the subjects or at least one of the educational qualifications prescribed for the Food Safety
Officer under these Rules.
(ii) He shall undergo training as may be specified by the Food Authority, within a period of six months from the date of his appointment as Designated
Officer.
(iii) (a) Persons having been appointed as food Inspector having qualification prescribed under the PFA Rules, 1955 or as Local Health Authority, shall
be eligible for appointment as Designated Officer, subject to fulfilling such other conditions as may be prescribed for the post of Designated Officer by
the State Government.
(b) At the time of commencement of these rules, the post of Designated Officer is held by any other officer of equivalent rank as additional charge
basis such other officer shall continue to hold such additional charge till such time a whole time Designated Officer is appointed or for a period of eight
years whichever is earlier.
 2. Powers and duties:
(i) The powers and duties of the DesignatedOfficer shall be as mentioned in section 36 (3) of FSS Act, 2006.
(ii) The Designated officer shall functionunder overall supervision of collector/ District Magistrate of the District.
(iii) The Designated Officer shall, in additionto the powers specified in Section 36 (3) of FSS Act, 2006, also ensure the refund of fee for analysis paid
by the purchaser as per the provision of Section 40 (1), besides the cost of the sample
(iv) The Designated Officer shall ensuretimely disposal of redundant samples, in the manner notified for the seized materials, by the Commissioner of
Food Safety. (v) Without prejudice to anything contained in the aforesaid Rules, the Designated Officer shall have all administrative powers which
may include suspension, cancellation or revocation of the license of the Food Business Operator in case any threat or grave injury to public, has been
noticed in the report of the Food Analyst:
Provided that while taking such administrative action the procedure described in the Act and Regulations shall be followed.â€
10- The Central Government in exercise of the powers conferred by Section 91 of the Act of 2006, amended Rule 2.1.2. (iii) (b) of the Rules 2011
vide Notification No. GSR 508 (E) dated 18/07/2014 stipulating that the designated officers who were holding the charge on additional basis on the
date of commencement of Rules 2011 could do so for a period of five years.
11- It is borne out from the counter filed by the Union of India that the Chairperson, Food and Safety and Standard Authority of India vide letter dated
November 8th 2016 informed the Ministry of health and Family Welfare, that representations have been received from several States including West
Bengal, Madhya Pradesh, Haryana and Rajasthan for extension in time limit for appointment of Designated Officers. It was stated had informed that
the process of full time appointment of Designated Officers had been initiated through State Public Service Commission but is likely to take more time.
In view whereof, States requested that the period of Designated officer appointed on additional charge basis, be extended in order to allow
continuation of statutory work like licensing and sampling, which had been suspended due to want to regular manpower.
12- It is in this context, the Central Government in exercise of powers conferred under Section 91 of the Act of 2006, the Central Government vide
impugned notification caused amendment in chapter 2, in rule 2.1, in sub-rule 2.1.2, in clause 1, relating to qualification, in sub-clause (iii), in item (b),
for the words “five years†substituted “eight yearsâ€.
13- Taking up the first contention as to competency of the Central Government to amend the Rules, it is noticed that sub-section (1) of section 91 of
the Act of 2006, envisages that the Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of the
Act of 2006; And subSection (2) enumerates certain topics.. Thus besides general power, the Central Government is also conferred with the powers
to frame rules on the topics enumerated in sub-section (2) of Section 91. It is said that where the powers are conferred to make subordinate legislation
in general terms, [such as under sub-section (1)], the praticularisation of topics as stipulates under sub-section 2 of section 91 is construed as merely
illustration and does not limit the scope of general power.
14- In Afzal Ullah Vs. State of Uttar Pradesh & Another, AIR 1964 SC 264, it is observed :
“(13) ….....It is now well settled that the specific provisions such as are contained in the several clauses of s. 298(2) are merely illustrative and
they cannot be read as restrictive of the generality of powers prescribed by S. 298(1) vide Emperor v. Sibnath Banerji & Ors AIR 1945 PC 156. If
the powers specified by S. 298 (1) are very wide and they take in within their scope bye-laws like the ones with which we are concerned in the
present appeal, it cannot be said that the powers enumerated under s. 298(2) control the general words used by s. 298(1). ............â€
15- In Rohtak and Hissar Districts Electricity Supply Co. Ltd. Vs. State of Uttar Pradesh, AIR 1966 SC 1471, it is held :
“(18) ......Section 15 (1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and S. 15 (2)
specifies some of the matters enumerated by Cls. (a) to (e), in respect of which rules may be framed. It is well settled that the enumeration of the
particular matters by sub-section (2) will not control or limit the width of the powers conferred on the appropriate Government by sub-section (1) of
S.15;.........â€
16- In view whereof, as the Central Government is empowered to exercise its general power, it is within its jurisdiction to cause amendment in existing
rules. The first contention therefore fails.
17- Next contention that the stipulations in Section 93 which provides for laying for rules and regulations before Parliament has not been adhered to.
Suffice it to say that the provision like Section 93 has been held to be directory and not mandatory. In M/s Atlas Cycle Industries Ltd. And others v.
State of Haryana, AIR 1979 SC 1149, it is held :
“32. From the foregoing discussion, it inevitably follows that the Legislature never intended that non-compliance with the requirement of laying as
envisaged by subsection (6) of Section 3 of the Act should render the order void. Consequently nonlaying of the aforesaid notification fixing the
maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in
nullification of the notification. Accordingly, we answer the aforesaid question in the negative. In view of this answer, it is not necessary to deal with
the other contention raised by the respondent to the effect that the aforesaid notification being of a subsidiary character, it was not necessary to lay it
before both Houses of Parliament to make it valid.†18- In view whereof, the impugned notification cannot be faulted with merely because the
provisions of Section 93 are not strictly adhere to. The second contention also fails.
19- As to contention that under Section 101 of the Act of 2006 that the Central Government can exercise the power to remove difficulty but because
of expiry of three years, from the date of enactment it was beyond its power to have remove the difficulties. Section 101 stipulates :
“101. Power to remove difficulties.-
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make
such provisions not inconsistent with the provisions of this Act, as may appear to be necessary, for removing the difficulty:
Provided that no order shall be made under this section after the expiry of the period of three years from the date of commencement of this Act.
(2) Every order made under this section shallbe laid, as soon as may be after it is made, before each House of Parliament.â€
20- Contentions are taken note of and rejected at the outset, Section 101 of the Act of 2006, empowers the Central Government to remove difficulties.
It stipulates that if any difficulty arises in giving effect to the provisions of Act of 2006 which may by order published in Official Gazette, make such
provisions not inconsistent with the Act of 2006 as may appear to be necessary, for removing the difficulties. The provisio to sub-section 1 of section
101 stipulates that no order shall be made under Section 101 after the expiry of the period of three years from the date of commencement of the Act
of 2006. Since it was beyond the powers of the Central Government under Section 101 of the Act of 2006, because of the expiry of period of three
years from the date of commencement of the Act of 2006, the Central Government took recourse of Section 91 of the Act of 2006, which cannot be
said to be beyond its jurisdiction.
21- Having thus considered, the challenge to validity of the notification No. GSR 57 (E) dated 13/1/2017, published in Gazette of India : Extraordinary
Part II dated 19.01.2017 is negatived. Consequently, challenge to the orders issued by the State Government in furtherance to notification in question
is also negatived. 22- In the result, petition fails and is hereby dismissed.
No costs.