Does guidelines have any binding effect?

Tilak Marg Forum for Legal Questions Forums Others Does guidelines have any binding effect?

This topic contains 1 reply, has 2 voices, and was last updated by Dr. Ashok Dhamija Dr. Ashok Dhamija 2 years, 6 months ago.

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  • #402

    Does the guidelines have any binding effect or not on the subject? For example: most of the circulars of CVC are in the form of guidelines. Does this leaves a room for the authority to ignore it and give a justification if asked? If yes, why CVC is not having the power to make rules or issue orders? Why guidelines only?

  • #405

    Whether or not administrative guidelines have binding effect, depends on the nature of guidelines. Many of the guidelines are held to be having binding effect. There are judgments of the Supreme Court to that effect. On the other hand, sometimes, the guidelines are held not to be binding. It all depends on the subject matter and the nature of the guidelines and the authority under which they are made.

    In the case of Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR 1967 SC 1910, the Supreme Court had held that: “It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

    Replying upon above judgment, in the case of Union of India v. K.P. Joseph, (1973) 1 SCC 194, the Supreme Court held that, generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions and that such instructions may govern the conditions of service.

    In the above K.P. Joseph case, the Supreme Court further held that: “To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.”

    Therefore, it all depends. Depending upon the nature of the guidelines, they may be held to be binding.

    Coming to the issue of CVC guidelines, generally speaking, they may be binding. These CVC guidelines may derive their authority from the powers of CVC to “exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government”.

    The rule-making power under the CVC Act, 2003, lies with the Central Government, so the rules can be made only by the Central Government. But, the CVC has the power to make regulations under the said Act. Now, why does CVC issue guidelines and not make regulations, is a question that you may have to ask the CVC. I cannot have any answer to this question. I don’t know why and for what reasons, they have issued the guidelines. But, as I said above, most of the CVC guidelines may also be binding.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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