DAYA CHAUDHARY, J. - (1.) THE prayer in the present petition is for quashing of decision of the Executive Council dated 19.10.2012 whereby the claim of the petitioner for promotion to the post of Dental Mechanic has been rejected and also for direction to the respondents to consider the claim of the petitioner for promotion to the post of Dental Mechanic along with consequential benefits.
(2.) BRIEFLY , the facts of the case are that the petitioner was initially appointed as Chair Side Assistant on 8.1.2010. The next promotion from the post of Chair Side Assistant is Dental Mechanic for which 50% posts are to be filled up by direct recruitment and 50% posts by way of promotion amongst the Chair Side Assistant and Assistant dental Mechanic. The petitioner has been working on the post of Chair Side Assistant since 8.1.2010 and he made a representation to the respondents for considering his case for promotion against quota of 50% by way of promotion but his case was not considered. On 19.10.2012, a decision was taken by Executive Council, whereby it was decided that the ratio prescribed for promotion as Dental Mechanic from Chair Side Assistant and Assistant Dental Mechanic was not to be considered. The said decision of the Executive Council is subject matter of challenge in the present petition. Learned senior counsel for the petitioner submits that as per statutory rules, the post of Dental Mechanic is to be filled up from Chair Side Assistant and Assistant Dental Mechanic and no ratio has been specified under the Rules. Learned senior counsel also submits that it has been settled by the Courts that in case the promotions are to be made from two categories and in case one category is in higher scale, then the promotion is to be made from category having higher scale and category of lower scale has only right of consideration in case no candidate of higher scale category is available. It is also the argument of learned senior counsel for the petitioner that the decision taken by the Council is not applicable qua the vacancies which are lying vacant since 2011 and the petitioner became eligible on 7.1.2012. The claim of the petitioner has wrongly been rejected. Learned senior counsel for the petitioner has relied upon the judgments rendered in Deepak Agarwal and another v. State of Uttar Pradesh and others (2011) 6 SCC 725, Gurcharan Singh v. State of Haryana 2001(3) SCT 318 and Mast Ram and others v. State of Haryana and others CWP No.15928 of 1999, decided on 7.3.2001.
(3.) LEARNED counsel for the respondents submits that there are total eleven sanctioned posts of Dental Mechanics out of which six posts have already been filled up by way of direct recruitment and remaining five posts are to be filled up by way of promotion on the basis of criteria approved by the Executive Council and as per reservation policy of the State Government. No Chair Side Assistant/Dental Mechanic was eligible upto 19.10.2012 and thereafter a decision was taken by the Executive Council in the meeting held on 19.10.2012 to change the rules of filling up the posts of Dental Mechanic. Learned counsel also submits that the promotion was to be made as per Rules prevalent at the time of consideration and the petitioner has no right to be considered in view of decision of the Executive Council. Learned counsel has also relied upon the judgments rendered in Deepak Agarwal and another v. State of Uttar Pradesh and others (2011) 6 SCC 725, Darshan Singh and another v. State of Punjab and others CWP No.22406 of 2011, decided on 5.10.2012 and Shobha Rani v. The Board of Governors and others CWP No.5771 of 2012, decided on 6.3.2013.;