Wednesday 19 June 2013
Friday 18 January 2013
HIGHCOURT ALLAHABAD DECISION DISMISSED WRIT OF FOOD SAFETY OFFICERS CADRE ASSOCIATION UTTARPRADESH
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 30
Case :- WRIT - A No. - 68240 of 2012
Petitioner :- Food Safety Officer Cadre Association And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Raj Kishore Yadav
Respondent Counsel :- C.S.C.,Acharya Rajesh Tripathi,Rakesh Kumar Tripathi
Hon'ble V.K. Shukla,J.
Earlier Rajesh Kumar Yadav and others had filed Civil Misc. Writ Petition No. 51745 of 2011 before this Court and therein challenge was made for quashing of the notification dated 11th August, 2011 issued by Principal Secretary, Food and Drug Administration, Government of U.P., Lucknow and this Court on 29th September, 2011 passed the order mentioning therein that the Division Bench of this Court has upheld the validity of the notification dated 11th August, 2011 in Civil Misc. Writ Petition No. 49263 of 2011 (Ram Shakal Yadav and others Vs. State of U.P. and others). The operative portion of the aforementioned judgement reads as follows;
"In Civil Misc. Writ Petition No. 49263 of 2011, Ram Shakal Yadav and others Vs. State of U.P. and others, the Division Bench of this Court has upheld the validity of the notification dated 11.8.2011. The Division Bench of this Court has held that the State Government is authorised to confer power of the Food Safety Officer under Section 37 (2) of the Food Safety and Standards Act, 2006. The notification has been issued under this section.
I have no reason to take a different view. In view of the decision of the Division Bench, the validity of the impugned notification dated 11.8.2011 is upheld.
It is not the case of the petitioners that any notification has been issued under Sub-Rule (2) of 2.1.3. of the Food Safety and Standards Rule, 2011 authorising them to perform the duty of Food Safety Officer. Under the said Rule, only those Food Inspectors performing the duties under the provisions of Prevention of Food Adulteration Act, 1954, may perfom the duties of the Food Safety Officer if notified by the State/Central Government. Unless there is a notification under the said Sub-Rule (2) of Rule 2.1.3. of the Food Safety and Standards Rule, 2011 to the aforesaid effect. The petitioners, who claim to have been appointed as Food Inspectors under the provisions of the Preventionof Food Adulteration Act, 1954, cannot be allowed to perform the duties of Food Safety Officer.
In view of the above, the writ petitions are devoid of merit and are accordingly dismissed."
Thereafter it is reflected that Special Leave to Appeal No. 32540 of 2011 has been filed and in the said special leave to appeal following order has been passed;
"1. Even though letter has been circulated by learned counsel for
Petitioners to seek adjournment for filing Rejoinder Affidavit, but learned senior counsel appearing for Respondents contended that against the impugned order passed by learned Single Judge of the High Court of Judicature at Allahabad in Writ A. No.53081 of 2011 decided on 29.09.2011,an intra-court Appeal would lie before the Division Bench of the said High Court.
2. In view of this, we grant permission to the Petitioners to withdraw
this Petition with liberty to file a Special Appeal before Division Bench
of the High Court against the said order passed by learned Single Judge of the High Court.
3. If the Special Appeal is filed by the Petitioners within a period of
30 days from today, then in view of the pendency of the matter before this Court, the same shall not be dismissed on the ground of limitation but would be considered on its own merits, in accordance with law.
4. With the aforesaid directions, this Special Leave Petition is
dismissed as withdrawn."
Petitioners submit that now an order dated 14th December, 2012 has been issued and the said order in question is bad as the employees of Nagar Vikas Vibhag working as Sanitary-cum-Food Inspector would be entitle to function as Food Safety Officer and the same would be contrary to the law and Rule 2.3.1. (1) wherein it has been provided that the whole time incumbent shall be appointed as Food Safety Officer and the employees of Nagar Nigam/Nagar Panchayat are not the whole timer, therefore, they are not at all entitled to hold the post in question.
On the matter being taken up today Shri Shashi Nandan, Senior Advocate appearing with Shri Dinesh Tiwari, Advocate submitted that as on date there is an internal correspondence in between the two departments and no notification in question has been issued, as such writ petition in question in the present state is not at all competent and maintainable and liable to be dismissed.
Shri Sunit Kumar, Advocate appearing with Shri Raj Kishore Yadav, Advocate on the other hand contended that notification is a mere formality, as such this Court should entertain the writ petition and the same deserves to be allowed.
Record in question reflects that the Principal Secretary of U.P. Government has addressed a letter to the Principal Secretary, Food and Drug Administration, Government of U.P., Lucknow for carrying out notification in order to enable Sanitary-cum-Food Inspector working in Nagar Vikas Department to function as Food Safety Officer in the Municipal limits. The provisions of Prevention of Food Adulteration Act 1954 has been repealed on 4th August, 2011 and a new act has been introduced named as Food Safety and Standards Act 2006. Under the said act a new rule namely Food Safety and Standards Rule 2011 has been made by the Central Government. Sub-rule (2) of Rule 2.1.3 of the said rules provides that on the date of commencement of these rules, a person who has already been appointed as a Food Inspector under the provisions of Prevention of Food Adulteration Act 1954, may perform the duties of the Food Safety Officer, if notified by the Central/State Government, if the officer fulfils such other conditions as may be prescribed for the post of Food Safety Officer by the State Government. Unless and until there is a notification the incumbents, who have been appointed as Food Inspector under the provisions of Prevention of Food Adulteration Act 1954 may not be in a position to perform the duties of Food Safety Officer. This view has been taken by this Court in Civil Misc. Writ Petition No. 51745 of 2011, Rajesh Kumar Yadav and others Vs. State of U.P. and others. Issuance of notification is a condition precedent and in the said direction in case exercise is being undertaken by the State Government and internally its officials are making correspondence and communication, then without there being any notification made, no cause of action can be said to be accruing. Internal correspondence does not acquire the element of operativeness and enforceability, and Notification becomes operative from the date of publication in the official gazette, as per the view expressed by Apex Court in the case of M/s Pankaj Jain Agencies Vs. Union of India and others AIR 1995 SC 360.
In view of the above, writ petition is dismissed at this stage of proceedings.
Order Date :- 15.1.2013
Shekhar
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Court No. - 30
Case :- WRIT - A No. - 68240 of 2012
Petitioner :- Food Safety Officer Cadre Association And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Raj Kishore Yadav
Respondent Counsel :- C.S.C.,Acharya Rajesh Tripathi,Rakesh Kumar Tripathi
Hon'ble V.K. Shukla,J.
Earlier Rajesh Kumar Yadav and others had filed Civil Misc. Writ Petition No. 51745 of 2011 before this Court and therein challenge was made for quashing of the notification dated 11th August, 2011 issued by Principal Secretary, Food and Drug Administration, Government of U.P., Lucknow and this Court on 29th September, 2011 passed the order mentioning therein that the Division Bench of this Court has upheld the validity of the notification dated 11th August, 2011 in Civil Misc. Writ Petition No. 49263 of 2011 (Ram Shakal Yadav and others Vs. State of U.P. and others). The operative portion of the aforementioned judgement reads as follows;
"In Civil Misc. Writ Petition No. 49263 of 2011, Ram Shakal Yadav and others Vs. State of U.P. and others, the Division Bench of this Court has upheld the validity of the notification dated 11.8.2011. The Division Bench of this Court has held that the State Government is authorised to confer power of the Food Safety Officer under Section 37 (2) of the Food Safety and Standards Act, 2006. The notification has been issued under this section.
I have no reason to take a different view. In view of the decision of the Division Bench, the validity of the impugned notification dated 11.8.2011 is upheld.
It is not the case of the petitioners that any notification has been issued under Sub-Rule (2) of 2.1.3. of the Food Safety and Standards Rule, 2011 authorising them to perform the duty of Food Safety Officer. Under the said Rule, only those Food Inspectors performing the duties under the provisions of Prevention of Food Adulteration Act, 1954, may perfom the duties of the Food Safety Officer if notified by the State/Central Government. Unless there is a notification under the said Sub-Rule (2) of Rule 2.1.3. of the Food Safety and Standards Rule, 2011 to the aforesaid effect. The petitioners, who claim to have been appointed as Food Inspectors under the provisions of the Preventionof Food Adulteration Act, 1954, cannot be allowed to perform the duties of Food Safety Officer.
In view of the above, the writ petitions are devoid of merit and are accordingly dismissed."
Thereafter it is reflected that Special Leave to Appeal No. 32540 of 2011 has been filed and in the said special leave to appeal following order has been passed;
"1. Even though letter has been circulated by learned counsel for
Petitioners to seek adjournment for filing Rejoinder Affidavit, but learned senior counsel appearing for Respondents contended that against the impugned order passed by learned Single Judge of the High Court of Judicature at Allahabad in Writ A. No.53081 of 2011 decided on 29.09.2011,an intra-court Appeal would lie before the Division Bench of the said High Court.
2. In view of this, we grant permission to the Petitioners to withdraw
this Petition with liberty to file a Special Appeal before Division Bench
of the High Court against the said order passed by learned Single Judge of the High Court.
3. If the Special Appeal is filed by the Petitioners within a period of
30 days from today, then in view of the pendency of the matter before this Court, the same shall not be dismissed on the ground of limitation but would be considered on its own merits, in accordance with law.
4. With the aforesaid directions, this Special Leave Petition is
dismissed as withdrawn."
Petitioners submit that now an order dated 14th December, 2012 has been issued and the said order in question is bad as the employees of Nagar Vikas Vibhag working as Sanitary-cum-Food Inspector would be entitle to function as Food Safety Officer and the same would be contrary to the law and Rule 2.3.1. (1) wherein it has been provided that the whole time incumbent shall be appointed as Food Safety Officer and the employees of Nagar Nigam/Nagar Panchayat are not the whole timer, therefore, they are not at all entitled to hold the post in question.
On the matter being taken up today Shri Shashi Nandan, Senior Advocate appearing with Shri Dinesh Tiwari, Advocate submitted that as on date there is an internal correspondence in between the two departments and no notification in question has been issued, as such writ petition in question in the present state is not at all competent and maintainable and liable to be dismissed.
Shri Sunit Kumar, Advocate appearing with Shri Raj Kishore Yadav, Advocate on the other hand contended that notification is a mere formality, as such this Court should entertain the writ petition and the same deserves to be allowed.
Record in question reflects that the Principal Secretary of U.P. Government has addressed a letter to the Principal Secretary, Food and Drug Administration, Government of U.P., Lucknow for carrying out notification in order to enable Sanitary-cum-Food Inspector working in Nagar Vikas Department to function as Food Safety Officer in the Municipal limits. The provisions of Prevention of Food Adulteration Act 1954 has been repealed on 4th August, 2011 and a new act has been introduced named as Food Safety and Standards Act 2006. Under the said act a new rule namely Food Safety and Standards Rule 2011 has been made by the Central Government. Sub-rule (2) of Rule 2.1.3 of the said rules provides that on the date of commencement of these rules, a person who has already been appointed as a Food Inspector under the provisions of Prevention of Food Adulteration Act 1954, may perform the duties of the Food Safety Officer, if notified by the Central/State Government, if the officer fulfils such other conditions as may be prescribed for the post of Food Safety Officer by the State Government. Unless and until there is a notification the incumbents, who have been appointed as Food Inspector under the provisions of Prevention of Food Adulteration Act 1954 may not be in a position to perform the duties of Food Safety Officer. This view has been taken by this Court in Civil Misc. Writ Petition No. 51745 of 2011, Rajesh Kumar Yadav and others Vs. State of U.P. and others. Issuance of notification is a condition precedent and in the said direction in case exercise is being undertaken by the State Government and internally its officials are making correspondence and communication, then without there being any notification made, no cause of action can be said to be accruing. Internal correspondence does not acquire the element of operativeness and enforceability, and Notification becomes operative from the date of publication in the official gazette, as per the view expressed by Apex Court in the case of M/s Pankaj Jain Agencies Vs. Union of India and others AIR 1995 SC 360.
In view of the above, writ petition is dismissed at this stage of proceedings.
Order Date :- 15.1.2013
Shekhar
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