Statutory rules prevail over government orders.

(Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari for the reasons stated therein.)

Markandeya Katju, C.J.

This writ petition has been filed praying for quashing of the order of the Central Administrative Tribunal, Madras Bench dated 30.06.2005 in O.A.No.140/2005.

2. Heard Mr. P.P. Malhotra, learned Additional Solicitor General of India for the petitioner. None has appeared for the first respondent, although the name of his counsel has been shown in the cause list. Since to-day’s date was fixed as agreed between counsels for the parties we are not inclined to adjourn the case.

3. The first respondent was working as Senior Vice President, Income Tax Appellate Tribunal, Chennai (hereinafter referred to as ‘ITAT’) from 18.10.2000 till the date of his transfer order to Bangalore dated 07.01.2005. It is the aforesaid transfer order dated 07.01.2005, which was challenged before the Central Administrative Tribunal.

4. The first respondent has thus completed more than four years at Chennai. It is well settled that transfer is an exigency of service. Moreover Section 252(5) of the Income Tax Act (in short ‘the Act’) states: -

“ The Senior Vice President or Vice President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing.”

Thus, on a plain reading of Section 252(5) of the Act, it is evident that respondent No.1/A.Kalayanasundaram could only exercise such powers of the President, which were delegated to him in writing by the President. The Senior Vice President or Vice President cannot perform any duty or function, which is not delegated to him by the President. The constitution of benches has to be decided by the President, and, in our opinion, the Senior Vice President or Vice President cannot themselves decide their place of posting, otherwise there would be chaos if every Senior Vice President or Vice President or Member can sit wherever he pleases. In our opinion, it is entirely for the President of the ITAT to decide which Senior Vice President, Vice President or Member should sit at which place and at which bench. Thus, the position of President of the ITAT is, in our opinion, like the position of the Chief Justice of the High Court, as it is the Chief Justice who decides which Judge is to sit in which Bench and at which place (in High Courts where there are Benches in two or more cities). So also it is for the President of the ITAT to decide which Senior Vice President, Vice President or Member shall sit in which place and at which Bench. The constitution of benches, place of sitting, etc is hence all a matter for the President of ITAT to decide, and no Senior Vice President, Vice President or Member can insist that he will sit in any particular City or Bench. Neither the Income Tax Act nor the Rules mention any specific place of functioning of the Senior Vice President. As mentioned in paragraph 12 of the writ petition, different senior Vice Presidents have been functioning at various places.

5. Section 255(1) of the Act states: -

“ The powers and functions of the Appellate Tribunal may be exercised and discharged by the Benches constituted by the President of the Appellate Tribunal from among the members thereof.”

It is, thus, evident from Section 255(1) of the Act that it is for the President of ITAT to decide which member of the ITAT (which includes senior Vice President and Vice President) will sit in which bench. Since there are benches of the ITAT in several cities in India, in our opinion the President of the ITAT can transfer members (including Senior Vice Presidents and Vice Presidents) to a bench in another city.

6. Apart from that, Rule 3 of the Appellate Tribunal Rules, 1963 states: -

“ A Bench shall hold its sitting at its Headquarters or at such other place or places as may be authorized by the President”

The above provision also thus rei