If RR are part of act governs the recruitment than DOP cannot over ruled RR without amendment of the rules which is done by legislators.
Amendment RR rules are general and applies to all so you will also govern under it.
Whether recruitment rules are applicable retrospectively?
FACTS: I was recruited under the recruitment rules of 2001 and as per that RR 4 years of approved service was required to be promoted in STS grade The crucial date of eligibility was changed by DOPT for Financial year based vacancies as 01st April of the vacancy year I was promoted into STS grade on 15.04.2015 whereas my approved service was completed on 01.01.2015. I made no representation. Then again in 2017 the crucial date of eligibility was changed by DOPT as 1st january for all cases In 2018 RR were amended and the eligible service for promotion into JAG grade was made as 5 years regular service in STS grade,which makes me eligible for JAG grade on 101.2021 Question: Whether DOPT order has over riding effect over the RR where as there in no reference of such DOPT order in RR? Whether new amended RR will be applicable for me or i will be protected by old RR, because new RR are causing delay in my promotion by almost a year?
Asked 4 years ago in Labour
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18 Answers
1. It has to be sen whether the RR h=gives any power to DOPT to make amendment in the RR or not with retrospective effect. If not then such office memo has no power to override the RR.
2. Since there is a new guideline by DOPT you will have to challenge it if you want the effect of RR to remain in place.
So file case before the Administrative Tribunal or the high court, as the case may be.
The answer is No.
Any provisions of law enforcement has no effect of retrospect until Parliament has specifically mentioned in the Act or amendment to that effect.
Please issue legal notice and seek clarification.
Effectively my promotion which was due on 15.04.2020 (as i have completed 5 years services on this date) is deferred to 01.01.2021 due to DoPT OM No. 22011/4/2013-Estt(D) Dated 8th May, 2017. Should i challenge the RR or the DOPT order?
Asked 4 years ago
Yes. it looks like a fit case for challenge though your RR needs t be seen first to take a final call on this.
Pl challenge both and seek ground of implementation.
You can challenge if RR changed without due amendment.
1) DOPT circular has over riding effect
2) you would be governed by new RR
You have to challenge DOPT circular and new RR
Any order or circular of Dopt with regard to service could be challenged only if it has not been framed under Article 309 Constitution of India.
Circulars or Orders laying down the rules which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of the State concerned" and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution.
if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively.
So far as your query regarding the retrospective effect is concerned, Supreme Court has observed many times that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively.
So, therefore you must know as to where these orders have been framed under Article 309 or not?
Please feel free for further queries...
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The DOPT issues a memo and that is applicable to all central government organisations. They may change the eligibility criteria.
It seems that they keep on changing the rules. You should challenge the memo of dopt.
If it's affecting your benefits then it will not be affected retrospectively
No. Unless otherwise stated in the act law are in effect prospectively.
1. Yes DOPT order have overriding effect on RR.
2. Yes new amended RR will be applicable upon you.
3. If you feel aggrieved by new RR policy then you can file writ petition before High court challenging the new policy of govt.
- The legal position is that the posts are to be filled up as per the eligibility conditions prescribed in the Recruitment Rules in force at the time of occurrence of vacancies unless the Recruitment Rules are amended retrospectively . The practice has however been to give effect to the Recruitment Rules prospectively.
Hence, .
- DOPT order has over riding effect over the RR.
- Yes, New rule will be applicable.
- Yes, you can challenge the order . as you have already completed 5 years service.
The date of joining the service will reckon your service period.
You cannot misconceive the rules to your favor.
If at all any ante date seniority facility was provided as a privilege to your service benefits you may claim it.
The proposed challenge may not hold grounds.
Your due for promotion would be on the said date, whereas the government policy for promotion falls on on a different date subsequently, hence you cannot agitate over the government policy, you may not get any favorable reply.
- As per the information mentioned in the present query, makes it clear that you have and many other like you have been pulled down by regularly amending the rules but not RR which is the parent rules.
- I would like to apprise you that you should make a representation to the department and then wait for sometime.
- If no positive response then you need to have to have an approach to the court of law of Hon’ble High Court under writ jurisdiction as per article 226 of our Constitution for clarifying the actual rule to be followed or parent one in support of the overriding effects.
