Partly allowed

R.S.Biradar v. the State of Karnataka

Karnataka HC6 Mar 2021WP/37025/2018

Case brief

AI extract

What is this about?

Petitioner challenged Tribunal dismissal of his suit for reinstatement, claiming he was appointed Food Safety Officer, not on deputation. High Court held Tribunal erred ignoring recruitment notifications saving his appointment. Petition partly allowed; Tribunal order set aside.

What did the court decide?

Impugned Tribunal Order set aside; matter restored to respondent for reconsideration within four months.

R.S.Biradar Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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W.P.No.37025/2018 (S – KAT)

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BETWEEN :

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R.S.BIRADAR S/O SAHEBPATEL BIRADAR, AGED ABOUT 48 YEARS, WORKING AS DESIGNATED OFFICER/ FOOD SAFETY OFFICER, DIRECTOR, HEALTH & FAMILY WELFARE SERVICES, ANAND RAO CIRCLE, BANGALORE-560009. ...PETITIONER

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(BY SRI M.SUBRAMANYA BHAT, ADV.)

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AND :

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1 . THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY, HEALTH & FAMILY WELFARE SERVICES, VIKAS SOUDHA, BANGALORE-01

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2 . THE COMMISSIONER FOR FOOD SAFETY KARNATAKA PUBLIC HEALTH INSTITUTE, SHESHADRI ROAD, BANGALORE-01

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3 . THE DEPUTY COMMISSIONER (ADMINISTRATIVE) FOOD SAFETY & STANDARDS DEPARTMENT, PUBLIC HEALTH INSTITUTE, SHESHADRI ROAD, BANGALORE-01

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DIRECTOR HEALTH & FOOD WELFARE SERVICES, ANAND RAO CIRCLE, BANGALORE-01. …RESPONDENTS

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(BY SRI T.P.SREENIVAS, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 10.08.2018 IN APPLICTION No.5892/2017 VIDE ANNEXURE-A PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE.

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THIS PETITION COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., MADE THE FOLLOWING:

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O R D E R

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The petitioner has called in question the order

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dated 10.8.2018 passed by the Karnataka State Administrative Tribunal (‘Tribunal’ for short) in Application No.5892/2017 whereby the application filed by the petitioner has been dismissed.

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The facts relevant for the purpose of the

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present case are that the petitioner was appointed and worked as Junior Health Assistant (Male) in the 4^th respondent department in May 2004. Later on, the petitioner was deputed for a period of three months to

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undergo training to the post of Food Inspector. Subsequently, he was posted to local area of Sindgi as whole time Food Safety Officer (FSO) as per the Notification dated 5.8.2011 wherein he has worked as designated officer in Food Safety and Standard Department on regular basis. The 2^nd respondent by order dated 24.1.2017 appointed some of the District Surveillance Officers and others having medical qualification as the designated officers in the place of the petitioner and others. The 2^nd respondent placed him under suspension on the allegation of not handing over the charge pursuant to the order dated 24.1.2017.

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This order of suspension was challenged by the petitioner before the Tribunal. The Tribunal directed the 2^nd respondent to consider the representation of the petitioner for reinstatement, subsequent to which the 4^th respondent deputed the petitioner to work in his parent Department i.e., Primary Health Centre (PHC). Being aggrieved by the same, the petitioner

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approached the Tribunal. The Tribunal dismissed the application on the ground that the petitioner was not working on regular basis, but he was on deputation, against which the petitioner has filed the present Writ Petition.

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Learned counsel for the petitioner argued

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that the petitioner though appointed initially as Junior Health Assistant with effect from 4.6.2004 in the Health and Family Welfare Department, subsequently he was appointed as Food Safety Officer in terms of section 37 of the Food Safety and Standards Act, 2006 (‘FSS Act’ for short) and continued to be an officer in the said Department. The petitioner was appointed as a whole time Food Safety Officer by the 2^nd respondent vide order dated 30.7.2011. Government also passed a G.O. re-designating the Junior Food Inspectors as Food Safety Officers. Subsequently, Government issued a Gazette Notification dated 20.3.2013 specifying the

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method of recruitment to the posts created in Health Department, to be operated for six months, pending framing of recruitment Rules. Subsequently, by order dated 01.06.2013, the 2^nd respondent appointed the petitioner as Junior Food Safety Officer. Following the same, on 22.5.2015 the 2^nd respondent published provisional seniority list of Food Safety Officers as on 1.4.2015 wherein the name of the petitioner was found in Sl.No.37. Government also framed the Health and Family Welfare Services (Food safety and standards department) (Recruitment) Rules, 2015 (‘Rules’ for short) as per Notification dated 5.1.2017 wherein a saving clause has been provided saving the appointments made as per G.O dated 20.3.2013. The Tribunal has not considered these relevant aspects. The reasoning of the 2^nd respondent that the petitioner was sent on deputation to Food, Safety and Standards Department is misconceived. The Tribunal proceeded on a misconception that the petitioner was merely assigned

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additional charge of the post of Food Safety Officer in addition to his regular post of Junior Assistant mainly relying on the order dated 30.7.2011 ignoring the G.O dated 23.08.2012 and 20.3.2013. On these grounds, the learned counsel submitted that the order of the Tribunal has resulted in miscarriage of justice.

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Learned AGA supporting the impugned order

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submitted that the petitioner was appointed as a Junior Health Assistant in the Health and Family Welfare Department and he was deputed to Food, Safety and Standards Department and was posted as Food Safety Officer on additional charge, being continued as Junior Health Assistant. Hence, the order dated 24.1.2017 issued by the 2^nd respondent repatriating the petitioner to the parent Department cannot be held to be unjustifiable. Considering the same, the Tribunal has rightly dismissed the

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application.

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Adverting to the arguments advanced by the

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learned counsel for the parties, the crucial point that arises for our consideration is :

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Whether the petitioner was sent on deputation to the Food Safety and Standards Department from the Health and Family Welfare Department in addition to his regular post of Junior Assistant in the Health Department and the impugned order of the Tribunal is justifiable?

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The chronological events would reveal that

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though the petitioner was initially appointed as Junior Health Assistant in the Health and Family Welfare Department, as per the order dated 22.5.2006, the petitioner was appointed as Food Inspector in terms of the provision of Section 9 of the Prevention of Food Adulteration Act, 1954. The said Act was repealed and replaced by Food, Safety and Standards Act, 2006 (‘FSS’ Act for short). Section 37 of FSS Act provides for appointment of Food Safety Officers. Further, the

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respondent No.2 issued a Notification dated 5.8.2011 in exercise of the powers conferred under sub-section (1) of section 37 of FSS Act, appointing and notifying the persons specified in column (3) of the schedule shown therein as whole time food safety officers for the local areas specified in columns [5] and [6] of the schedule therein with immediate effect wherein the petitioner’s name is found at Sl.No.85. As per the Notification dated 20.3.2013, Government of Karnataka prescribed the mode of recruitment to the posts of food safety officers pending framing of Grade-II posts which was in force for six months as a transitory arrangement. Consequentially, Government order dated 1.6.2013 was issued appointing amongst others, the petitioner as Junior Food Safety Officer Grade-II, which is found at Sl.No.26 to Annexure A9. It transpires that another Notification dated 08.07.2014 was issued notifying the petitioner as Designated Officer for the local area of Gulbarga District. The Health and Family Welfare

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Services (Food Safety and Standards

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Department)(Recruitment) Rules, 2015 were framed by respondent No.1 as per Notification dated 05.01.2017. Rule 3 of the Rules, 2015 deals with the transfer of six categories of posts from Health and Family Welfare Department to Food Safety and Standards Department. Rule 4 protects the seniority of transferred employees. Rule 6 is the saving provision wherein it is made clear that, not withstanding anything contained in the said Rules, action already initiated, if any, for recruitment or appointment in accordance with the G.O dated 20.3.2013, before the commencement of the said Rules, shall be saved as if they are made under the said Rules.

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The reading of the saving clause with the Notification dated 20.3.2013 and the G.O. dated 1.6.2013 as well as 5.8.2011 prima facie makes it clear that the petitioner was appointed as whole time food safety officer and the Notification dated 20.3.2013 relating to the matter of recruitments for the Food Safety Officers under which

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the petitioner was appointed as per the G.O. dated 1.6.2013 being saved in the Government Notification dated 5.1.2017 [Annexure-A47], the 2^nd respondent ought not to have stated the same as deputation of the petitioner from the Health Department [Safety and Standards Department]. At this juncture, it is significant to note that as per Rule 5 of the Rules, 2015 issued by Notification dated 5.1.2017, there was an amendment of the Karnataka Directorate of Health and Family Welfare Services (Recruitment) Rules, 1965 and the Public Health Service (Recruitment) Rules, 1960, under which on and from the date of the commencement of the said Rules, the posts mentioned in Rule 3(2) of the said Rules, which are transferred from the Karnataka Health and Family Welfare Service and Karnataka Public Health Services shall be omitted from the Karnataka Health and Family Welfare services (Recruitment) Rules, 1965, the Public Health Service (Recruitment) Rules, 1960.

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Further, the 2^nd respondent vide letter dated

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7/2013 addressed to the Commissioner, Health and Family Welfare, has requested to delete the names of Senior and Junior Health Assistants who were appointed as Food Safety Officers as per the G.O. dated 20.3.2013 along with the Annexures—list of Senior and Junior Food Assistants Grade-II wherein the name of the petitioner is reflected at Sl.No.26.

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The aforesaid aspects would indicate that

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the respondent No.2 has not rightly applied the mind while repatriating the petitioner to the parent department on the premise that he was on deputation in the FSS department. The confirmation of the same by the Tribunal on the ground that the petitioner was not regularly appointed as FSO cannot be approved.

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Having regard to these vital aspects, we are of the considered view that the matter requires re-

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consideration by the 2^nd respondent. Hence, the

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following:

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ORDER

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Writ petition is partly allowed.

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The impugned order dated 10.08.2018 passed in Application No.5892/2017 by the Karnataka State Administrative Tribunal, Bengaluru is set aside. Consequently the order dated 22.09.2017 issued by the respondent No.2 at Annexure A-46, insofar as posting of the petitioner to the respondent No.4 – Department which was impugned before the Tribunal are set aside.

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The matter is restored to the file of the respondent No.2 for re-consideration. The respondent No.2 shall reconsider the matter in the light of the observations made hereinabove and take appropriate decision in accordance with law in an expedite manner, in any

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event, not later than four months from the date of

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receipt of certified copy of the order.

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Sd/JUDGE

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Sd/JUDGE

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Dvr:

R.S.Biradar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

R.S.Biradar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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