WP(C) 4266/2008 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. R. Dubey, learned counsel for the petitioners as well as Mr. B .C. Das, learned Sr. counsel assisted by Mr. D.N. Bhattacharya, learned counsel appearing for the respondent Nos.5 and 6. The petitioners are the aspirants for promotion to the post of Superinte ndent in the Directorate of Sericulture. They have opposed the move of the offic ial respondents to make direct recruitment to the said post for which the APSC h ad issued advertisement No.07/08 dated 25.08.2008. It is an admitted position th at pursuant to the said advertisement selection has been conducted and the selec ted candidates have also been empanelled. Referring to the draft Assam Sericulture Technical and Miscellaneous Ser vice Rule (Gazetted) it is the stand of the petitioners that since as per the sa id draft rule, the post of Superintendent, Sericulture is required to be filled up 100% by promotion, till such time the draft rule is finalized, there should n ot be any direct recruitment. There is no dispute that presently the Assam Sericulture (Appointment & Promotion) Service Orders, 1989 (Annexure-1) holds the field in terms of which 5 0% of the post is required to be filled up by direct recruitment and remaining 5 0% by promotion. In the counter affidavit filed by the APSC, it has been stated that the particular advertisement was issued and the selection was conducted as per requi sition placed by the State Government in the Handloom Textile and Sericulture De partment. In the counter affidavit filed by the said Department it has been stat ed that the aforesaid draft service rule is yet to be finalized and that the afo resaid Service Orders of 1989 is in force. It has also been stated that the prom otion to the post of Superintendent of Sericulture from the cadre of Extension O fficers has been made applying the provisions of the said Service Orders of 1989 . Mr. Dubey, learned counsel for the petitioners submits that since over t he years, no direct recruitment has been made applying the provisions of the afo resaid Orders of 1989, the Government should be debarred from applying the said Service Orders so as to make direct recruitment. In this connection he has place d reliance on a decision of the Apex Court reported in (1995)3 SCC 434 (Municipa l Corporation for City of Pune & another Vs. Bharat Forge Co. Ltd. & others), in which in paragraph 34 it has been stated thus:- 34. Though in India the doctrine of desuetude does not appear to have been u sed so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well . This is for the reason that a citizen should know whether, despite a statute h aving been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter . We would think it wou ld advance the cause of justice to accept the application of doctrine of desuetu de in our country also. Our soil is ready to accept this principle; indeed, ther e is need for its implantation, because persons residing in free India, would ha ve assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter . A new path is, therefore, required to be lai d and trodden. Mr. Das, learned Sr. counsel appearing for the respondent Nos.5 and 6 su bmits that the aforesaid submission made by Mr. Dubey is totally misplaced. He s ubmits that the Service Orders having provided for promotion and the same having been applied, it cannot be said that the said Service Orders will not be applic able for direct recruitment only. In the aforementioned case, the Court noticed that the particular notifi cation of 1918 was not acted upon for decades together. The same is not the case in hand. Admittedly the said Service Orders has been made applicable and the pr omotees being the beneficiaries of the said Orders cannot turn around, so as to contend that part of it which makes provision for direct recruitment, should not be implemented. Admittedly as per the said Order, 50% of the posts are for dire ct recruitment and the balance 50% are for promotion. This now leads us to the question as to whether the draft rule making pr ovision for 100% promotion can take away the provisions in the Service Order. Th e draft rule will came into operation only when it is finalized and not otherwis e. As on date, it is the aforesaid Service Orders, 1989 which holds the field. At this stage Mr. Das, learned Sr. counsel appearing for the respondent Nos.5 and 6 submits that in fact there is a set of rules called Assam Sericultur e (Gazetted) Service Rules, 1972 notified on 29.03.1972, which also provides for 50% direct recruitment and 50% for promotion. So far as the prayer of the petitioners, finalization of the aforesaid d raft service rules is concerned, the respondents are directed to take appropriat e steps in the matter. However no opinion is expressed in this regard. In view of the above position, I do not find any merit in the present wr it petition and accordingly it is dismissed. Interim order operating in this proceeding, stands vacated.