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Judgment
Dr. B. S. Chauhan, J.—The instant writ petition has been filed by the association of employees of the Ministerial Staff of Collectorates of U.P. to enforce the Government Order dated 26/31.12.1956, (hereinafter called the 1956 G.O.) contained in Annexure 1 to the writ petition and particularly the benefit which has been given to the members of the petitionerassociation by Annexure ''S'' to the said 1956 G.O., contained in Annexure 2 to the writ petition.
2.1956 Government Order deals with the reorganisation of the collectorates and paragraph 20 of the said Government Order deals with the staff and provides that the orders concerning the staff have been given in Annexure ''S'' to the said Government Order. Clause 5 of the said Annexure ''S'' reads as under:
"Clerks of Collectorates who are below 40 and have worked either as Amins, Nazirs, Naib Nazirs or as temporary NaibTehsildars will be eligible for promotion to the posts of Naib Tehsildars and 10 per cent of the vacancies among Naib Tehsildars will be served for them."
The benefit provided under Clause 5 of Annexure ''S'' to 1956 G.O. had never been given to members of the petitioner association and none of them had ever been promoted as Naib Tbhsildar under the said 1956 Government Order.
In 1992 this issue was agitated and a questionnaire was issued by the competent authority vide order dated 7392 contained in Annexure 3 to the writ petition asking whether the provisions of Clause 5 of Annexure ''S'' to the 1956 G.O. had ever been implementated. In reply to the said questionnaire which was given on 29392, Annexure 4 to the writ petition, it was pointed out that it had never been implementated and throughout the State of Uttar Pradesh not a single person of the ministerial staff of the collectorates had ever been promoted as Naib Tehsildar under 10% quota provided in the said 1956 G.O. The issue was further raised by putting a demand vide memorandum dated 17101993, Annexure 6 to the writ petition and this issue was again discussed by the competent authorities including the Revenue Minister and Chief Minister of U. P. on 20694, contained in Annexure 7 to the writ petition, but no positive steps were taken and no direction/order was issued. Again the petitionerassociation made a representation on 10th September, 1996 contained in Annexure 8 to the writ petition and as the respondents have not taken any action on that the petitionerassociation preferred this writ petition.
The grievance of the petitioner is that in spite of the 1956 G.O. the members of the petitionerassociation have been deprived of their legitimate right of promotion as 10% posts had been reserved for them. However, the grievance of the petitioner is to be examined in the light of the statutory provisions of Naib Tehsildar Service Rules, 1973 (hereinafter called 1973 Rules), which provides for the mode of filling up the vacancies of Naib Tehsildars and the said 1973 Rules do not provide lor any reservation for the ministerial staff of the collectorates.
It is settled law that the Executive Instructions or the Government Orders cannot override the statutory rules framed under Article 309 of the Constitution of India. At the most the Executive Instructions can fill up the gap in the statutory provisions, but cannot override any statutory enactment, vide Constitution Bench Judgment of the Supreme Court in SantRam Sharma v. State of Rajasthan, AIR 1967 SC 1910; Mis. Beopar Sahayak Private Ltd. v. Vishwa Nath and others, 1987 (3) SCC 693 and Ramender Singh and others v. Jagdish Prasad, AIR 1984 SC 885.
Secondly, when the 1973 Rules were enacted by the Government in exercise of its powers under Article 309 of the Constitution, this Government Order of 1956 was in existence, it stood superseded or impliedly repealed as explained by the Supreme Court in State of U. P. v. Hindustan Aluminium Company, AIR 1979 SC 1459 and Motor General Traders and others v. State of Andhra Pradesh, AIR 1984 SC 121. Moreover, 1973 Rules being statutory in nature have full force of law. Statutory Rules, of course subordinate to the parent statute, have to be treated as a part of the statute and having the same effectiveness, vide State of U.P v. Babu Ram Upadhyay, AIR 1961 SC 751 and State of Tamil Nadu v. Mis. Hind Stone and others AIR 1981 SC 711.
Even if, for the sake of argument it is assumed that the 1956 G.O. is still in existence, the question does arise as to whether a Government Order which has never been implementated for a period of more than four decades, from the date of its inception, requires enforcement or requires to be declared as a dead letter by application of doctrine of desuetude.
In Municipal Corporation, Pune and another v. Bharat Forge Company Ltd. and others, 1995 (3) J.T. 312, the Supreme Court has explained the concept of the aforesaid doctrine of desuetude and observed that it is a legal process by which through disobedience and lack of enforcement over a long period, a statute may loose its force without express or implied repeal. It may not, however, consist of obsolescence or disuse, but there must also be a contrary practice of a reasonable period and general application. If it is so, it cannot be enforced being a dead letter.
In the instant case, as 1956 Government Order had never been enforced and there has been a consistent practice not to promote any person of the ministerial staff of the collectorates to the post of NaibTehsildar under the provisions of the said Government Order of 1956, for the last four decades, the aforesaid principle can safely be applied and the said 1956 G.O. is declared a dead letter being incapable of being enforced.
Thus, in view of the above, I find no merit in this writ petition, it is accordingly dismissed.