Decided on June 15,2012



- (1.) The law in the instant case was made in the year 1984. The vires thereof had been challenged in the year 2004. In the law under challenge, it has been provided that, a Kamdar, in employment, can only be promoted to the post of Mandi Sahayak provided he has an Intermediate qualification. The challenge thereto are on two counts, namely:- a) since for being appointed as Kamdar there is no requirement of having the qualification of Intermediate, it was not permissible to insist upon qualification of Intermediate for a Kamdar to be promoted to the post of Mandi Sahayak; and b) the rule insisting that a Kamdar in order to be promoted as Mandi Sahayak must require Intermediate qualification has not been acted upon and, on the contrary has been acted country thereto since 1986 i.e. since immediately after making of the rules and, accordingly, the rules to the extent under challenge, should be regarded as dead letter on the basis of the legal proposition 'desuetude'. The Constitution bench of Hon'ble Supreme Court in the case of The State of Jammu and Kashmir vs. Shri Triloki Nath Khosa and others, 1974 1 SCC 19, has held that employer has right to decide the qualification required for an employee to be appointed/promoted. In that case, by amending the law, a bar was set up for diploma holder Assistant Engineers to be promoted as Executive Engineers. The Hon'ble court held that such a law is not interferable on the principle that the employer has every right of deciding what would be the required education for a person to be promoted to the next higher post.
(2.) It has been contended, to which there is no serious denial, that Kamdars not possessing Intermediate qualification were promoted to the post of Mandi Sahayaks. There is, therefore, no denial of acting country to the mandate of the rule under challenge. However, in order to make a law dead letter on the principle of desuetude, one is required to show that the law has not been acted upon for a long period of time and, while the law has not been acted upon, country actions have been taken. In England principles of desuetude is not applicable. Before 10th March, 1995, the same was not applicable to India. By a judgment rendered by the Hon'ble Supreme Court in Municipal Corporation for City of Pune and another vs. Bharat Forge Co. Ltd. and others, 1995 3 SCC 434, the Hon'ble Supreme Court applied the principle that a law may become dead letter on the principle of desuetude, in India. While, however, applying the law, the Hon'ble Supreme Court took notice of the fact that there must be long disuse of the law and, noted that the Notification in question was in disuse from 1918, but did not spell out what would be the period of disuse to bring a law within the purview of desuetude. In the other judgment cited namely, Cantonment Board, Mhow and another vs. M.P. State Road Transport Corporation, 1997 9 SCC 450, the Hon'ble Supreme Court once again noted that in order to apply the principles of desuetude, there has to be disuse of the law for long and contrary practice for some duration, but did not indicate what would be the period thereof. In the later judgment, the Hon'ble Supreme Court did not apply the said principle. In the instant case the law was made in 1984. Even assuming that, for 20 years the same was not applied and contrary practice was adopted, it would not be safe to hold that the said law has become dead letter by reason of the officers of the statutory authority, who were bound by the said law, refused to act in accordance thereto. Further more, as would be evident from the judgment of the Hon'ble Supreme Court rendered in Municipal Corporation for City of Pune and another vs. Bharat Forge Co. Ltd. and others , the principle of a law becoming dead letter was applied having regard to the provisions contained in Article 21 of the Constitution of India, which is fundamental of fundamental rights of all citizens. The law under consideration in that case dealt with citizens in general. In the instant case, it does not deal with citizens as such, but to a group of employees only. It is doubtful, therefore, whether the law of desuetude is at all applicable in relation to such law. In the premise there is nothing further to be done in the writ petition. The same is dismissed.;

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