Rajesh Kumar Vijay v. State of Rajasthan & Ors.

Order

: 12.4.2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Tanveer Ahmed for petitioner. <><><> By this writ petition, a challenge is made to the note- sheet at Annexure-4 indicating petitioner to be ineligible for the post of Food Inspector, now known as 'Food Safety Officer', (for short 'FSO'). It is stated that petitioner was sent for PFA Training (for short 'the Training') of 90 days. On completion of 90 days Training, he was given posting vide order dated 6.6.2011 at Annexure-3. The respondents were asked to issue notification to assign duties of post of FSO, however, respondents failed to take cognizance on the aforesaid, rather took a decision adverse to the petitioner's right. The main ground to deny post of FSO is in reference to the Food Safety Standards Rules, 2011 (for short 'the Rules of 2011'), which was given effect since 5.8.2011.

It was apart from a judgment in the case of Pepsico India Holdings (Pvt.) Limited and another Versus State of U.P. and others decided by the Allahabad High Court. 2 Counsel submits that on completion of Training, petitioner got a right of his appointment as FSO. The repeal of the earlier Rule by the Rules of 2011 cannot affect his right as it is saved by the provisions of Section 97 of the Act of 2002. As per Section 97(2), right and privilege accrued or acquired are not to be affected due to repeal of the Act. Accordingly, a right accrued in favour of petitioner should not have been nullified by virtue of the Rules of 2011 more so when it is given effect since 5.8.2011, which subsequent to Training.

I have considered the submissions made by counsel for petitioner and perused the record carefully. Petitioner has claimed his right of appointment to the post of FSO by issuance of notification in view of Section 97 of Food Safety & Standard Act, 2006 (for short 'the Act of 2006'). For ready reference Section 97 of the Act of 2006 is quoted hereunder:- “97. Repeal and savings: (1) With effect from such date as the Central Government may appoint in this behalf, the enactment and Orders specified in the Second Schedule shall stand repealed: Provided that such repeal shall not affect:- The previous operations of the enactment (i) and Orders under repeal or anything duly done or suffered thereunder; or Any right, privilege, obligation or liability (ii) acquired, accrued or incurred under any of the enactment or Orders under repeal; or (iii) Any penalty, forfeiture or punishment incurred in respect of any offences committed against the enactment and Orders under repeal; 3 or (iv) Any investigation or remedy in respect of any such penalty, forfeiture or punishment.

Sub-sections (2), (3) & (4) are not relevant to reproduce.” The aforesaid Act was given effect from the year 2006 itself. It is not in dispute that petitioner took 90 days Training prior to 6.6.2011 as is coming out from bare perusal of Annexure-3. The Training is much subsequent to the repeal Act of 2006 and if saving clause is looked into, it only saves right accrued or acquired under any of the enactment or order under repeal. Petitioner is not covered by Section 97 as training is much subsequent to repeal Act of 2006. The argument of counsel for petitioner is, however, in reference to Rules of 2011. It is submitted that till Rules of 2011, petitioner was eligible for appointment as FSO. It is stated that Rules of 2011 should not have been applied to petitioner or it cannot be used to deprive a candidate having a right of appointment on completion of Training before coming into effect of the Rules of 2011 w.e.f.

5.8.2011. I have also considered alternative argument as well and find that if Rules were brought in the year 2011 prescribing different qualification than obtained by petitioner, then after coming into force of Rules, appointments have to be made accordingly. This is more so when earlier Rules were repealed and it is a settled proposition of law that a repeal law cannot be given life by a judicial order or otherwise unless saved. 4 The petitioner has not brought to notice of this court regarding repeal and savings of the earlier Rules while enacting the Rules of 2011. Reference of only Section 97 of the Rules of 2006 has been made. If new rules impose a condition to acquire different qualification than possessed by petitioner, then no appointment can be made on the post of FSO dehors the Rules of 2011.

The question further remains as to whether completion of Training itself creates a right of appointment in favour of petitioner. Counsel could not show provision that on completion of Training itself, a right will vest in favour of petitioner to get appointment on the post of FSO. The law is again settled on the issue that mere possession of qualification or training does not create a vested right of appointment/promotion.

In the aforesaid background and in view of the discussion made above, I am not convinced with any of the argument raised by counsel for petitioner. So far as judgment in the case of Pepsico India Holdings (Pvt.) Limited and another (supra) is concerned, it is stated that aforesaid judgment has been reconsidered by the Hon'ble Allahabad High Court. Counsel for petitioner was further asked as to whether matter pertains to the issue involved in the present matter, he could not specify other than stating that reference of the judgment in the case of Pepsico India Holdings (Pvt.) Limited and another (supra) has been given by the respondents to deny benefit as petitioner 5 could not show other judgment contrary to it. The fact remains that judgment in the case of Pepsico India Holdings (Pvt.) Limited and another (supra) was reconsidered by the same High Court in the case of Shyam Narain Pandey Versus State of U.P. and others – Writ Petition Nos.4252 and 10044 (M/B) of 2010 decided on 18.2.2011. I find that reference of the judgment in the case of Pepsico India Holdings (Pvt.) Limited and another (supra) exists in the note-sheet, but I have decided the matter taking note of the provisions of Section 97 of the Act of 2006 coupled with effect of the Rules of 2011. The issue is further considered as to whether petitioner can be denied appointment on the post of FSO in reference to the Rules of 2011, which had not taken effect till the date of consideration. For that purpose, reference of note-sheet at Annexure-4 has been given. I find that in note-sheet at para 2N, a reference of the Act of 1954 and Rules of 1955 has been given in ignorance of the fact that Act of 1954 was repealed. In the aforesaid background, it reflects on the working of the respondents as to how they make consideration of the law and thereby only initial para makes a reference of the Act of 1954 despite its non-existence in view of repeal Act of 2006. The fact further remains that a right accrues only when benefit is extended to a candidate and not merely based on consideration unless results with favourable order. In the note-sheet, reference of the Act of 1954 and Act 6 of 1955 apart from Rules have been given through the Act was repealed much prior to it. Aforesaid is even reflected from para 12 of the note-sheet wherein also reference of the repeal act has been given. In any case, perusal of aforesaid para reveals that a direction or opinion was sought from the Government thereby petitioner was not given appointment to the post of FSO. Opinion of the nature sought for appointment of the petitioner dehors the Rules of 2011 would be nothing but to give life to the rules no more exists now in view of the repeal Rules of 2011. Thus, this court cannot issue a direction for appointment of petitioner to the post of FSO in contravention of the Rules of 2011 in existence. In the light of discussion made above, this writ petition is dismissed. This disposes of stay application also. (M.N. BHANDARI), J. Sunil/PA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. (Sunil Solanki) P.A.