The necessity of possessing the qualifications prescribed for the Legal Metrology Officer and the requirement for proper application of mind in effecting transfers.

P.D. Audikesavalu, J.

The intra-Court Appeal arises out of the order dated 11.03.2019 in W.P. No. 34624 of 2018 passed by the Learned Judge of this Court.

2. The Appellant and the Second Respondent are working in the cadre of Assistant Commissioner of Labour in the Labour Department of the Government of Tamil Nadu. While, the Appellant was holding the office of the Assistant Commissioner of Labour (Enforcement) at Tiruvallur, The Second Respondent was posted as Administrative Officer in the Tamil Nadu Labour Welfare Board at Chennai. The First Respondent, viz., the Commissioner of Labour in the order No. E2/40624/2018 dated 21.12.2018 passed an order of transfer of the Appellant and the Second Respondent by swapping their aforesaid positions that they were holding. The Appellant challenged the aforesaid order of transfer in W.P. No. 34624 of 2018 before this Court on the ground of malafides inasmuch as it was evident from that order itself that it was in pursuance of the representation dated 20.12.2018 made by the Second Respondent in that regard, apart from the fact that the post of Assistant Commissioner of Labour (Enforcement) at Tiruvallur also included an ex-officio position as Legal Metrology Officer and that the Second Respondent did not possess the qualifications prescribed for the same under Rule 28 of the Legal Metrology (General) Rules, 2011.

3. The Learned Judge, who heard the Writ Petition, by order dated 11.03.2019, after referring to the settled legal position that an order of transfer is an incidence of service and the same cannot be interfered in the absence of proved malafides or violation of statutory provisions, dismissed the Writ Petition holding that the materials placed on record would not suffice to prove malafides and that the person holding the office of the First Respondent had not been made as a party in his personal capacity. Aggrieved thereby, the Appellant has preferred this appeal.

4. We have heard Mr. V. Vijay Shankar, Learned Counsel appearing for the Appellant, Mrs. A. Sri Jayanthi, Learned Counsel appearing on behalf of the First Respondent, Mr. L. Chandrakumar, Learned Counsel appearing for the Second Respondent and perused the materials placed on record, apart from the pleadings of the parties.

5. There cannot be any quarrel to the settled legal position that an order of transfer, which is an incidence of service, shall not to be interfered by the Courts unless it is shown to be clearly arbitrary or vitiated by malafide or is made in violation of statutory provisions (see Union of India -vs- S.L. Abbas [(1993) 4 SCC 357]). Though the Appellant has impeached the order of her transfer in the Writ Petition, the question that really arises for consideration is whether the Second Respondent could exercise the powers of the Legal Metrology Officer without possessing the qualifications prescribed for the same under Rule 28 of the Legal Metrology (General) Rules, 2011, which is admittedly one of the functions required to be performed by the person holding the post of Assistant Commissioner of Labour (Enforcement), Tiruvallur, as evident from the pleadings of the parties. A specific contention has been raised by the Appellant in that regard in the Writ Petition, but on a perusal of the Counter Affidavit dated 23.01.2019 filed by the First Respondent before the Writ Court, it is seen that the same has not been explained in a satisfactory manner. All that has been said is that there is no separate department to enforce the Legal Metrology Act, 2009 and the Rules made thereunder and that the officials appointed as Assistant Commissioner of Labour in the Labour Department of the Government of Tamil Nadu are notified as Deputy Controller of Legal Metrology under the Legal Metrology Act, 2009. Even in the Counter Affidavit dated 03.01.2019 filed by the Second Respondent, there is no denial that the Second Respondent does not possess the qualifications prescribed under Rule 28 of the Legal Metrology