IMPORTANT POINT
The Government decided to create four wings in the Food Safety and Standards Department so as to efficiently and appropriately carry out the functions of the said department. It is curious to note that the 1st petitioner was a beneficiary of Ext.P9 order, which she now attacks as an illegal order and having enjoyed the benefits of a post created as per Ext.P9, the1st petitioner was not at liberty to turn around and attack the said order.

JUDGMENT :

SHAJI P.CHALY, J.

This is a Public Interest Litigation filed by the petitioners, who were retired as Additional/Assistant Commissioners of Food Safety under the 1st respondent State of Kerala, seeking a Writ of Quo Warranto against the 6th respondent, functioning in the post of Joint Food Safety Commissioner (Administration & Legal), questioning his authority for holding the aforesaid post and further to declare that the 6th respondent is unqualified and incompetent to hold the post of Joint Food Safety Commissioner (Administration & Legal) and that he is not duly appointed to the above post in the Commissionerate of Food Safety as per the Food Safety and Standards Act, 2006, hereinafter called, 'Act, 2006'.

2. Brief material facts for the disposal of the writ petition are as follows; according to the petitioners, they are highly aggrieved by the unlawful holding of a public office by the 6th respondent, who is unqualified and not duly appointed to the above post. The 6th respondent was appointed to the post of Technical Assistant (Legal) in the Health Department as per Ext.P1 order dated 17.12.1999. The said post was re-designated as Law Officer – Prevention of Food Adulteration (PFA) as per Ext P2 order dated 30-03-2001 and the pay was re-fixed. After the Act, 2006 was enacted, the 6th respondent was assigned the work of Joint Commissioner of Food Safety (Administration & Legal) and directed to act in the above functional post as a temporary arrangement during the transition period from PFA Act to Food Safety and Standards Act as per Ext.P9 Government Order dated 17.2.2010. According to the petitioners, no qualification and method of appointment to the aforesaid post has been prescribed either by Special Rules or by executive orders by the Government till now, evident from Exts.P18 reply given by the State Public Information Officer of the Health and Family Welfare Department dated 1.12.2018.

3. It is also the case of the petitioners that the 6th respondent is not qualified and eligible to be appointed to the above post even on the basis of the qualification prescribed for the subordinate post of Food Safety Officer stipulated by the Food Safety and Standard Rules, 2011, hereinafter called, 'Rules, 2011', or on the basis of Ext.P13 Government Order dated 26.9.2014 prescribing qualification for the equivalent post of Joint Commissioner of Food Safety (Enforcement) or the subordinate post of Assistant Commissioner of Food Safety, Food Safety Officer, like Degree in Food Technology/Dairy Technology etc. However, the 6th respondent has been continuously holding the post since 18.2.2010 without legal authority, even after the Food Safety Rules came into force w.e.f. 5. 8.2011, which action, according to the petitioners, is absolutely arbitrary and illegal. It is also stated that the 6th respondent was put in full additional charge of Commissioner of Food Safety on that basis, which is also illegal.

4. The sum and substance of the contention of the petitioners is that the 6th respondent is an usurper to the post and it is just and necessary that a Writ of Quo Warranto is issued against him in view of the law laid down by the Apex Court in Dr.Kashinath G. Jalmi & Another v. the Speaker & others [(1993)2 SCC 703, B.R.Kapur v. State of Tamil Nadu & Another [(2001) 7 SCC 231], Rajesh Awasthi v. Nand Lal Jaiswal & Others [(2013)1 SCC 501], Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & others [(2014)1 SCC 161]. It is also the legal contention of the petitioners that the 6th respondent is holding the post unlawfully and in violation of Article 320(3) of the Constitution of India and Rules 10, 18 and 28(b)(i) of the Kerala State and Subordinate Service Rules (KS&SSR).

5. The 6th respondent has filed a detailed counter affidavit refuting the allegations and claim and demands raised by the petitioners. Among other contentions it is submitted that there were litigations between petitioners 1 to 3 and 6th respondent befo