RAJNISH SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by the petitioners claiming the reliefs as under:

(2.) The facts relevant leading to the filing of the present petition, may be summarised thus:

(3.) Learned counsel appearing for the petitioners contended that the petitioners' authorisation vide notifications dated 15.6.2007 and 19.7.2007 to discharge the duties of the post of Food Inspector, the post which subsequently stands re-designated deserves to be treated as substantive appointment on the said post inasmuch as, Section 9(1)of the Act of 1954 only provides for appointment as Food Inspector, which stands saved under the provisions of the Act of 2006 and Rules of 2011. Learned counsel submitted that the petitioners are having qualification as contemplated by Rule 8(c) of the Rules of 1955 as all of them are graduates in Science with Chemistry as one of the subject. Rule 2.1.3.1 (i) providing for Master's Degree in Chemistry which is adopted by the State Government cannot be made applicable to the petitioners by virtue of repeal and saving clause contained in Section 97 of the Act of 2006. Learned counsel submitted that in order dated 12.4.2016 passed by a Bench of this Court in D.B.C.Special Appeal No.51/16 observing that Laboratory Technician, Nurse Gr.-II, Ophithalmic Assistant, MPW, LDC, Assistant Radiographer, Nurse Grade-I etc. should not be appointed Food Safety Inspector through backdoor, was passed in context of those persons who were being appointed as Food Safety Officer after giving training for five days only. It is submitted that the petitioners were appointed in the year 2007 after successfully undergoing three months training in Food Inspection and Sampling work as provided under Rule 8(c)of the Rules of 1955 and performing their duties throughout to the entire satisfaction of the respondents. It is submitted that in the compliance report submitted before this Court at Jaipur Bench,it is clearly proposed by the respondents that the persons already notified as Food Inspector under the Act of 1954 on or before 5.8.2011 shall be screened by the Screening Committee constituted under the Chairmanship of Food Safety-cum-Director (Public Health) against the existing vacancies of Food Safety Officer as one time exception only. Learned counsel submitted that attention of the Division Bench of this Court hearing the appeal was not drawn to the provisions of clause (2) of Rule 2.1.3, which protects the appointment of Food Inspector made under the Act of 1954. Learned counsel submitted that after the order passed by this Court as aforesaid, the respondents in their various note sheets placed on record as Annexure 26, have recommended to insert a provision for safeguarding the interest of existing Food Safety Officers including the petitioners. In this view of the matter, the respondents are under an obligation to insert such provision to safeguard the interest of the persons who have already been appointed as Food Inspector (Food Safety Officer) on the date of the commencement of the notification dated 25.7.2018. Learned counsel would submit that the vacancies of the post of Food Inspector being of the year 2003,the qualifications for appointment on the said post could be treated to be one which were existing in the year 2003 and thus, assuming that the qualification for appointment as Food Inspector now re-designated as Food Safety Officer should be the one specified under Rule 2.1.3 (1) (i) of the Rules of 2011. The petitioners holding the post of Food Inspector on the date of commencement of the Rules of 2011 and possessing the qualification specified under the Rules of 1955 would be treated to be qualified and eligible and thus, they are entitled to the regular pay scales admissible to the post of Food Inspector, which now stands re-designated as Food Safety Officer. Learned counsel submitted that while passing the order dated 6/9.2.2015, the Principal Secretary, Medical and Health has categorically recorded that the petitioner no.4 was possessing requisite qualification for appointment as Food Safety Officer inasmuch as, he was having qualification of Graduation in Science with Chemistry as one of the subjects and has undergone three months training in Food Inspection and Sampling Work as prescribed under Rule 8(c) of the Rules of 1955. Learned counsel submitted that the action of the State Government in not inserting the proviso protecting the interest of existing Food Safety Officers makes the provision incorporated vide notification dated 25.7.2018 ultra vires of the Act of 2006. According to the learned counsel the action of the State Government in not retaining the provision for screening as proposed in the draft Notification submitted before this Court while issuing notification dated 25.7.2018 for the existing Food Safety Officer working as such since 2007 is highly illegal, arbitrary and unreasonable. Learned counsel submitted that the action of the respondents in restricting the pay of the petitioners and their likes of their parent post while they are discharging their duties as Food Inspector/Food Safety Officer is illegal as being arbitrary and discriminatory so as to violative of Article 14, 16 and 39(d) of the Constitution of India. Learned counsel submitted that the petitioners had no choice but to give the consent for working on the condition imposed by the State Government else they would have been removed from the post. Learned counsel urged that such condition imposed is nonest inasmuch as, the fundamental rights accrued to the petitioners cannot be waived.