New Delhi: A transfer order cannot prejudicially affect the status of an employee and result in less salary than what he/she got before the shifting, the Supreme Court has held.

"If orders of transfer substantially affect the status of an employee, the same would be violative of the conditions of service and, thus, illegal. Transfers must be made to an equivalent post," said a Bench consisting of Justices S.B. Sinha and Markandey Katju dismissing an appeal against a Bombay High Court judgment.

"The terms and conditions of service, unless altered expressly, would be governed by the rules which were in existence at the time the transfer orders were passed. It is true that the state has the power to alter the terms and conditions of service even with retrospective effect by making rule under Article 309 of the Constitution, but it is also well settled that the rules so made ordinarily should state so expressly."

Orders quashed

In the instant case, the Maharasthra government transferred direct recruitsPrakash Parashuram Patil and few other assistant deputy education inspectors as assistant project officer/assistant teacher. The Administrative Tribunal upheld the transfers.

On appeal, the High Court quashed the transfers. Tejshree Ghag and others appealed against this order.

Writing the judgment, Justice Sinha said: "An order of transfer should ordinarily be in terms of the existing rules. Transfer may even be incidental to the conditions of service, but thereby nobody can be deprived of his existing right. Existence of a power and exercise thereof are two different concepts." An executive power in the absence of any statutory rule cannot be exercised, which might result in civil or penal consequences. "Such exercise of power must, moreover, be bona fide. It cannot be done for unauthorised purposes. An executive order passed for an unauthorised purpose would amount to malice in law."

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