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

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  

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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  

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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.  

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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

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(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 :

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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  

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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.  

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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.   

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