Madras High Court
Tamil Nadu Graduate vs The Director -Cum- State on 11 October, 2007
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/10/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR W.A.(MD).No.236 of 2007, W.A.(MD).No.237 of 2007 and M.P.(MD).Nos.1 and 2 of 2007 Tamil Nadu Graduate Food Inspector's Association, (Reg.No.91/2000) by its Organising Secretary, S.Ibrahim, Thenkasi Taluk, Tirunelveli District. ... Appellant in both W.As. Vs. 1.The Director -cum- State Food Health Authority, O/o. Public Health and Preventive Medicine, No.359, Anna Salai, Chennai-600 006. 2.The Secretary Health and Family Welfare, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 3.The Secretary -cum- Assistant Director General (PFA) Central Committee for Food Standards, O/o. Department of Health and Family Welfare, Nirman Bhavan, New Delhi - 110 011. 4.The Registrar, Vinayaga Mission Research Foundation, Deemed University, Periya Seeragupadi, Salem - 636 008. (Respondents 3 and 4 were given up) 5.Tamil Nadu Municipal and Corporation Sanitary Inspector's & Sanitary, Officers Association (Reg.No.162SLM) Rep. by its Secretary, Housing Board Colony, Kuhai, Salem. ... Respondents in W.A.No.236/2007 1.The Secretary Health and Family Welfare, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Director cum State Food Health Authority, O/o. Public Health and Preventive Medicine, No.359, Anna Salai, Chennai - 600 006. 3.The Secretary, University Grants Commission, Bahadur Shah Zofar Marg, New Delhi - 110 002. 4.Member Secretary, All India Counsel for Technical Education, I.P.EState, New Delhi. 5.The Secretary cum Assistant Director General (PFA) Central Committee for Food Standards, O/o. Department of Health and Family Welfare, Nirman Bhavan, New Delhi. 6.The Registrar, Vinayaga Mission Research Foundation, No.44A, Second Agraharam, Salem. (Respondents 3 to 6 were given up) 7.Tamil Nadu Municipal and Corporation, Sanitary Inspector's & Sanitary Officers Association (Reg.No.162SLM) Rep. by its Secretary, Housing Board Colony, Kuhai, Salem. ... Respondents in W.A.No.237/2007 Writ Appeals filed Under Clause 15 of the Letters Patent against the order passed by the learned Single Judge in W.P.(MD).Nos.3580 and 4736 of 2007, dated 15.06.2007. W.A.(MD).No.236/2007 !For Appellant ... Mr.N.G.R.Prasad For Mr.D.Selvaraj ^For RR-1 and 2 ... Mr.R.Janakiramalu Special Government Pleader For Respondent No.5 ... Mr.AR.L.sundaresan, Senior Counsel for Mr.S.Ilamvaluthi W.A.(MD).No.237/2007 For Appellant ... Mr.N.G.R.Prasad For Mr.D.Selvaraj For RR-1 and 2 ... Mr.R.Janakiramalu Special Government Pleader For Respondent No.7 ... Mr.AR.L.sundaresan, Senior Counsel for Mr.S.Ilamvaluthi :COMMON JUDGMENT
(Judgment of the Court was delivered by P.R.SHIVAKUMAR, J) W.P.No.3580/2007 had been filed by Tamil Nadu Graduate Food Inspectors' Association, Tenkasi, Tirunelveli District, the appellant herein, praying for the issue of a Writ of Mandamus directing the first respondent to get the advice and approval of the third respondent before imparting training to Health Inspectors and Sanitary Inspectors in food inspection and sampling work to the candidates who are holding diploma certificates in food technology issued by Vinayaga Mission Research Foundation (a Deemed University), Salem.
2. The appellant association had also filed another writ petition in W.P.No.4736/2007 praying for the issue of a writ of Certiorari to call for the records pertaining to G.O.(D).No.452 issued by the first respondent dated 05.04.2007 and quash the same as void, illegal and against the provisions of law, so far as the inclusion of the names of Sanitary Inspectors and Health Inspectors, who are having diploma certificates in food technology issued by the sixth respondent herein in Annexure(A) to the said G.O.
3. Since both the writ petitions were filed touching the very same issue regarding the eligibility of the holders of diploma certificates issued by the Vinayaga Mission Research Foundation (a Deemed University), Salem for being appointed as Food Inspectors, both the writ petitions were jointly dealt with by the learned Single Judge and were disposed of by a common order dated 15.06.2007. By the said common order, which is now under challenge in these writ appeals, the learned Single Judge dismissed both the writ petitions.
4. We have heard the submissions made on either side and perused the materials available on record.
5. As the main contention in these appeals centres around the qualification of the persons to be appointed as Food Inspectors, it shall be convenient to refer to the relevant provision, namely Section 9(1) of the Prevention of Food Adulteration Act, 1954 dealing with appointment of Food Inspectors. Section 9(1) of Prevention of Food Adulteration Act, 1954 says 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 area as may be assigned to them by the Central Government or the State Government, as the case may be. The qualifications for appointment as Food Inspector are found in Rule 8 of the Prevention of Food Adulteration Rules, 1955 which reads as follows:
"A person shall not be qualified for appointment as Food Inspector unless he-
(a) is a medical officer incharge of health administration of a local area; or
(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 month's 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 [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:
[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 part 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 fulfil 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 Food Adulteration (Amendment) Rules, 1980 from continuing as such after such commencement.]"
6. There is no controversy that a person, who was a qualified Sanitary Inspector having experience as such for a minimum period of one year and had received at least 3 months training in food inspection and sampling work, might have been eligible for appointment as Food Inspector, upto the period ending on the 31st March of 1985, even though he did not fulfill the qualifications laid down in Clauses (a) to (c) of Rule 8. This is so laid down in the second proviso to the above said rule. The third proviso is to the effect that those persons, who had already been appointed as Food Inspectors before the commencement of the Prevention of Food Adulteration (Amendment) Rules, 1980, could continue as such after such commencement, even though they did not possess any one of the qualifications prescribed in Clauses (a) to (c) of Rule 8. Those two provisos deal with appointments as Food Inspectors made prior to the commencement of Food Adulteration (Amendment) Rules 1980 and appointments that could have been made before 31st March 1985. We are not concerned with those provisos which are exceptions to the qualifications prescribed in Clauses (a) to
(c) of Rule 8.
7. Clause (a) of Rule 8 is to the effect that a Medical officer in charge of Health Administration of a local area is qualified to be appointed as Food Inspector. Clause(b) deals with the eligibility of graduates in medicine for appointment as Food Inspectors. In case of graduates in medicine as per clause(b), to become eligible to be appointed as Food Inspectors, they should have received at least one month's training in food inspection and sampling work approved for the purpose by the Central Government or by the State Government. There is no controversy regarding Clause(a) and Clause(b).
8. Clause(c) of Rule 8 deals with the third category of persons who can be appointed as Food Inspectors. It contains the following categories:- (1) Graduates in Science with Chemistry as one of the subjects; (2) Graduates in Agriculture; (3) Graduates in Public Health; (4) Graduates in Pharmacy; (5) Graduates in Veterinary Science; (6) Graduates in Food Technology; (7) Graduates in Technology; (8) Diploma holders in Food Technology or Dairy Technology from a University or Institution established in India by law; (9) Any other person having equivalent qualifications recognised and notified by the Central Government for the purpose. All persons coming under the above said 9 categories should have 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. So far as the eligibility of the candidates, possessing a degree in any one of the above said disciplines who have received 3 months training in food inspection and sampling work, is concerned, there is no dispute that they can be appointed as Food Inspectors. Controversy has arisen only in respect of diploma holders.
9. The learned counsel for the appellant has contended that though sub clause(c) of Rule 8 recognises a diploma in Food Technology or Dairy Technology as a qualification for being appointed as Food Inspector, provided such diploma holders receive three months training in food inspection and sampling work, the diploma should have been a recognised one either by the University Grants Commission or by the AICTE and that any other diploma not recognised by either of the said bodies could not be a valid qualification for being appointed as Food Inspectors. In this regard, the grievance of the appellant Association is that those who have obtained diploma certificates from Vinayaga Mission Research Foundation (a Deemed University), arrayed as the fourth respondent in W.A.No.236/2007 and sixth respondent in W.A.No.237/2007, have undergone the course for a period of one year alone after completing S.S.L.C. (X Standard or matriculation) and that hence, they could not be treated on par with graduates.
10. On the other hand, the contention of the fifth respondent in W.A.No.236/2007, which has been arrayed as seventh respondent in W.A.No.237/2007, before the learned Single Judge and before this Division Bench is to the effect that a diploma conferred by a Deemed University, irrespective of the duration of the course undergone and the minimum qualification for getting admission to the said course, should be recognised as a diploma referred to in Clause (c) of Rule 8. In connection with the above said contention, the learned Single Judge seems to have dealt with the difference between the terms 'technical institution', 'university' and 'deemed to be universities' at length. After referring to the following judgments of the Supreme Court (i) State of Tamil Nadu and another vs. Adhiyaman Educational & Research Institute and others reported in 1995(4) SCC 104 and (ii) Bharathidasan University and another vs. All India Council for Technical Education and others reported in 2001(8) SCC 676, the learned Single Judge has observed that there is no necessity to get prior approval from the AICTE before a University or deemed to be university starts a new technical course. In that view of the matter, the learned Single Judge has also observed as follows:
"It is an admitted fact that the diploma was given by a deemed university and it has been granted with such status under Section 3 of the University Grants Commission Act and therefore, nobody other than the UGC can go behind the validity of such a diploma."
11. The learned counsel for the appellant, drawing our attention to the relevant provisions under the UGC Act and the AICTE Act, contended that the learned Single Judge had proceeded on the wrong assumption that the dispute was regarding the question whether a deemed to be university could be equated with a university and as such whether such university had to get the prior approval of All India Council for Technical Education to start any technical course. It is the contention of neither party that the Vinayaga Mission Research Institution did not have the authority to start any technical course without having a prior approval of the AICTE. Admittedly the said institution, being a deemed university, need not get any such prior approval from the AICTE. On the other hand, whether the diploma conferred by the said institution is a recognised diploma and which is the authority to accord recognition for such a diploma is the centre of controversy in this case.
12. We are very much impressed by the contention of the learned counsel for the appellant that a diploma issued after conducting a course for one year after a pass at the matriculation (S.S.L.C.) shall not be treated on par with a degree wherein one has to undergo the course for 5 years i.e. 2 years higher secondary course and 3 years degree course; that normally diploma courses are of 3 years duration after matriculation or 2 years duration after higher secondary and that such diploma certificates alone could be recognised as equivalent to a degree. The learned counsel contended further that now-a-days very many institutions, universities and deemed to be universities are conducting so many diploma courses of very short duration and all such diplomas should not be recognised to be qualifications equivalent to a degree in the subject. In the case on hand, the Vinayaga Mission Research Foundation (deemed university) had admitted candidates having X standard or matriculation qualification and had issued the diploma after they underwent the course for one year alone.
13. The University Grants Commission has issued a notice/circular dated 23.08.2005 in which it has been stated that the Deemed to be Universities can offer Distance Education Programme only through its own study centres and that too, with the specific approval of both the UGC and Distance Education Council. The Distance Education Council, IGNOU has issued a notice/circular dated 05.01.2006 containing the following directions:
"As per the Gazette notification No.44 dated 1st March, 1995 of Government of India, Degrees/Diplomas not recognized by DEC will not be considered eligible for Government services.
The programmes of the above mentioned universities/Deemed to be Universities offered through distance mode are not approved by DEC. The students, parents and public at large are advised to take note of the above points while seeking admission in State Universities/Deemed to be Universities."
14. The letter addressed by the Deputy Director of Distance Education Council, Indira Gandhi National Open University dated 02.12.2005 in reply to the query regarding the recognition of the diploma course offered by the Vinayaga Mission Research Foundation, contains the following information:
"This is to inform you that as per our records the institution under reference does not fulfill the conditions of Gazette Notification No.44 dated 1st March, 1995. The said programme is not approved by Distance Education Council."
15. From the prospectus issued by the Vinayaga Mission Research Foundation, it is seen that the said institution offered a diploma course in food technology which is of the duration of one year after a pass in X standard. As already noticed, the universities or deemed to be universities are not obliged to get prior approval before starting any course, even a technical course which has got to be recognised either by UGC or by AICTE. But it does not mean and it cannot be stretched further to mean that the diploma courses offered by the universities or deemed to be universities in the disciplines which come under the purview of the AICTE need not conform to the standards prescribed by the AICTE in matters of maintaining standards. Nor such diploma courses offered by such universities or deemed to be universities shall be entitled to automatic recognition by the Government, even though such courses are not recognised by the AICTE.
16. It is not in controversy that any diploma in technology has got to be recognised by the AICTE. In this regard, as per the letter dated 19.07.2006 of the Regional Officer of the AICTE, food technology is a technical education as defined under AICTE Act; that the duration of the above course prescribed by the AICTE is 3 years in diploma level and 4 years in degree level and that the diploma certificates issued by the Vinayaga Mission Research Foundation (a deemed university) is not in sufficient compliance of the norms and standards prescribed by the AICTE.
17. The Public Information Officer of the Directorate of Technical Education, Chennai in his memorandum dated 09.08.2006 has stated as follows:
"The Diploma certificate awarded by the VRMF Deemed University cannot be considered as equivalent to any other Diploma awarded by the State Board of Technical Education & Training, Tamil Nadu. The Deemed University is not coming under the purview of Directorate of Technical Education, Chennai."
18. In this regard, the shifting stands taken by the Vinayaga Mission Research Foundation at various stages have been highlighted by the learned counsel for the appellant. The original stand of the Vinayaga Mission Research Foundation seems to be that they never imparted any training in the course leading to diploma in food technology and that they had conducted diploma courses in health and sanitary inspection which come under general medicine courses. This is apparent from the copy of the counter-affidavit signed by the Director of Distance Education, Vinayaga Mission University, Salem intended to be filed in W.A.No.237 of 2007 served on the Director of Public Health and Preventive Medicine. The appellant seems to have obtained a copy of the same by invoking the provisions of Right to Information Act. The Vinayaga Mission Research Foundation has not chosen to deny the preparation and swearing of said counter-affidavit by the Director of Public Health and Preventive Medicine. On the other hand, it was simply contended on behalf of the Vinayaga Mission Research Foundation that as such counter-affidavit was not filed in Court, the same could not be looked into. The said counter-affidavit is sought to be relied on by the appellant for a limited purpose of showing that there had been a shift in the stand of the Vinayaga Mission Research Foundation. Hence we do not find any substance in the above said objection.
19. The initial stand of the Vinayaga Mission Research Foundation was that they never conducted any course leading to the issue of a diploma certificate in food technology and that the only course offered by them was diploma in health and sanitary inspection. The University Grants Commission has taken a stand that they are concerned with the award of degrees alone and that the award of diploma certificates is the concern of the respective specialized agency, like All India Council for Technical Education and All India Medical Council of India, etc. Obviously the said counter-affidavit seems to have been prepared after the above referred communications of UGC and AICTE regarding the nature of course and the duration of course for getting approval of the AICTE. Even as per the circular of the University Grants Commission dated 23.08.2005, Distance Education Programmes can be offered with the specific approval of both the UGC and Distance Education Council. No such approval seems to have been obtained either from the UGC or from the Distance Education Council. Under these circumstances, the shifting stands taken by the Vinayaga Mission Research Foundation (a deemed university), which has issued the diploma certificates, assumes more importance.
20. If it is assumed that what was offered in Vinayaga Mission Research Foundation is diploma course in health and sanitary inspection and not diploma in food technology or dairy technology, then such a diploma shall not be considered as a valid qualification for being appointed as Food Inspectors under Rule 8(c). Diploma in Food Technology or Dairy Technology alone are the prescribed qualification under Rule 8(c). On the other hand, if a diploma course in food technology is offered in the Vinayaga Mission Research Foundation, as now contended by the Vinayaga Mission Research Foundation, then such a course and the diploma issued shall be hit by the absence of two necessary requirements. They are (i) approval of the Distance Education Council IGNOU should have been obtained since the course is offered under Distance Education Scheme which the Vinayaga Mission Research Foundation has failed to obtain; and(ii) Diploma in food technology being a technical education, it must conform to the norms of the AICTE and the diploma course should have been recognised by the AICTE, which in this case is absent.
21. In the facts and circumstances stated above, the crucial question that arises to be answered is whether a diploma course offered by a deemed to be university can be recognised to be equivalent to other diplomas, more particularly when the said diploma course comes under the definition of technical education as defined under the provisions of the AICTE, and such course does not conform to the norms prescribed by the AICTE regarding duration of course. Simply because a deemed to be university need not get prior approval of AICTE for starting a diploma course in technical education, it does not mean that such a course has to be recognised, even though the same has not been approved by the AICTE. Requirement of prior permission to start a course is one thing and requirement of approval of the diploma certificates issued by the Institution is another thing. In this case, obviously the diploma certificate issued by the Vinyaga Mission Research Foundation is not recognised by the AICTE as a diploma course conforming to its prescriptions.
22. All these aspects have not been adverted to by the learned Single Judge. On the other hand, the learned Single Judge chose to dispose of the writ petitions with the observation that the diploma was given by a deemed university and therefore, nobody other than the UGC can go behind the validity of such diploma and thus the learned Single Judge has chosen to dismiss the writ petitions. We are of the considered view that the above said aspects indicated above by us should have been considered by the Government before issuing the impugned notification and that in that view of the matter the interest of justice requires remitting the matter to the Government for fresh consideration in the light of our observations.
23. For all the reasons stated above, we are of the considered view that the impugned G.O. needs reconsideration in the light of the facts that (i) AICTE has not approved the diploma course offered by the Vinayaga Mission Research Foundation; and (ii) the course offered by the Vinayaga Mission Research Foundation was one under Distance Education Programme and the approval of the Distance Education Council and the University Grants Commission had not been obtained for the same.
24. Accordingly, both the Writ Appeals are disposed of with a direction to the State Government to consider the matter afresh in the light of the observations made above and take a fresh decision within a reasonable time and that till such a decision is made, the implementation of the impugned G.O. shall be kept in abeyance. There shall be no order as to payment of costs. Consequently, connected M.P.(MD).Nos.1 and 2 of 2007 are closed.
SML To
1.The Director -cum- State Food Health Authority, O/o. Public Health and Preventive Medicine, No.359, Anna Salai, Chennai-600 006.
2.The Secretary Health and Family Welfare, Government of Tamil Nadu, Fort St. George, Chennai-600 009.
3.The Secretary -cum- Assistant Director General (PFA) Central Committee for Food Standards, O/o. Department of Health and Family Welfare, Nirman Bhavan, New Delhi - 110 011.
4.The Registrar, Vinayaga Mission Research Foundation, Deemed University, Periya Seeragupadi, Salem - 636 008.
5.The Secretary, Tamil Nadu Municipal and Corporation Sanitary Inspector's & Sanitary, Officers Association (Reg.No.162SLM) Housing Board Colony, Kuhai, Salem.
6.The Secretary, University Grants Commission, Bahadur Shah Zofar Marg, New Delhi - 110 002.
7.The Member Secretary, All India Counsel for Technical Education, I.P.Estate, New Delhi.