JUDGMENT : 1. The petitioners, who are serving as District Ayurved Officer and Vaidya-Panchkarma respectively have challenged order dated 22.2.2013 at Annexure-E passed by the Deputy Secretary, Health and Family Welfare Department, Gujarat State whereby respondent No.4 who was serving as District Ayurved Officer came to be appointed by transfer as Assistant Director of Ayurved in Gujarat Ayurved Services, Class-I (“Assistant Director, Class-I” for short) on the vacant post at Gandhinagar. 2. The case, in brief, of the petitioners is that the post of Assistant Director, Class-I is to be filled in as per the Recruitment Rules prescribed vide notification dated 22.12.1969, and according to which, if the appointment to the post of Assistant Director, Class-I is to be made by transfer, it could be only of the person of proved merits and efficiency to be assessed from the eligible persons. The petitioners have averred that though both of them were qualified and eligible for being considered for appointment as Assistant Director of Ayurved, Class-I, they were not considered by the concerned authorities and respondent No.4 was appointed by transfer at her request as Assistant Director, Class-I as if such post was to be filled in a routine administrative way without following the recruitment rules in letter and spirit. 3. It is the case of the petitioners that no para-meters are fixed or prescribed for assessing the merits and efficiency for the purpose of appointment by transfer to the post of Assistant DIrector, Class-Iand, therefore, the appointment given to respondent No.4 is being contravention of the recruitment rules is required to be quashed and set aside and the respondent authorities are required to be directed to consider the case of the petitioners for appointment as Assistant DIrector, Class-Ias per the recruitment rules for the said post with other eligible persons by fixing the para-meters for assessing the proved merits and efficiency. 4. This petition is opposed by affidavit in reply filed on behalf of respondents No.1 and 2 mainly stating that the petitioner no.1 wanted his transfer to Bhavnagar District and not interested for transfer to Gandhinagar District and petitioner No.2 was not at all eligible to be considered for appointment by transfer as per the recruitment rules. 4. This petition is opposed by affidavit in reply filed on behalf of respondents No.1 and 2 mainly stating that the petitioner no.1 wanted his transfer to Bhavnagar District and not interested for transfer to Gandhinagar District and petitioner No.2 was not at all eligible to be considered for appointment by transfer as per the recruitment rules. It is stated that the post of Assistant Director, Class-I since remained vacant for last about thirty six months, request of respondent No.4 to transfer her at Gandhinagar was accepted and she was posted as Assistant DIrector, Class-Iat Gandhinagar purely by simple transfer and, therefore, there is no violation of the recruitment rules. 5. The petitioners have also filed rejoinder to the aforesaid affidavit in reply stating that they had made request for their appointment on the post of Assistant Director of Ayurved, Class-I. They have stated that if appointment by simple transfer and in absence of the bench mark to be fixed for assessing merits and efficiency is permitted, there are chances of exercise of powers by the concerned authorities whimsically, arbitrarily and in violation of the recruitment rules for making appointment on such important post. 6. I have heard the learned advocates for the parties. 7. Learned Advocate Mr. NK Majmudar appearing for the petitioners submitted that when the recruitment rules for filling up the post of Assistant Director, Class-I are available,no appointment to the post of Assistant DIrector, Class-I could have been made de-hors the recruitment rules. Mr. Majmudar submitted that there are three modes of appointment provided in the recruitment rules and one of the modes provided is appointment by transfer of a person of proved merits and efficiency working in the cadre of Gujarat Ayurved Services, Class-I. Mr. Majmudar submitted that when such specific provisions are made in the recruitment rules, the respondents were required to consider the case of all eligible persons working in the Gujarat Ayurved Services, Class-I for the purpose of making appointment by transfer on the post of Assistant Director, Class-I. Mr. Majmudar submitted that the petitioner No.1 has put in 20 years of service in Gujarat Ayurved Services Class-I. The petitioner No.2 who has completed thirteen years of service as Vaidya-Panchkarma was also eligible to be considered for appointment as Assistant Director, Class-I. Mr. Majmudar submitted that the petitioner No.1 has put in 20 years of service in Gujarat Ayurved Services Class-I. The petitioner No.2 who has completed thirteen years of service as Vaidya-Panchkarma was also eligible to be considered for appointment as Assistant Director, Class-I. Mr. Majmudar submitted that ignoring the claim of the petitioners and all other eligible persons for such appointment, respondent No.4 was given appointment by transfer on the post of Assistant Director, Class-I simply by considering her request for transfer to Gandhinagar. Mr. Majmudar submitted that the petitioners have alleged exercise of political influence by respondent no.4 to get such appointment by transfer. Mr. Majmudar submitted that since no appointment by simple transfer without following the criteria of proved merits and efficiency is permissible, appointment of respondent no.4 to the post in question cannot stand scrutiny of law and is required to be quashed and set aside and the respondent authorities are required to be directed to consider the case of the petitioner and other eligible persons for appointment to the post of Assistant Director, Class-I as per the recruitment rules. 8. To counter the above arguments of the learned advocate Mr. Majmudar, learned AGP Mr. Ronak Raval appearing for respondents No.1 to 3 submitted that in the affidavit in reply filed on behalf of respondents No.1 and 2, it is clearly stated that since the post of Assistant Director remained vacant for the last more than 36months and since there was request from respondent No.4 for her transfer and to work as Assistant Director at Gandhinagar, her case was considered and she was transferred and posted to work as Assistant Director, Class-I. Mr. Raval submitted that it is also stated in the affidavit that since the petitioner No.1 wanted his transfer to Bhavnagar District, there was no question of considering his case for transfer to Gandhinagar as Assistant Director, Class-I and as regards petitioner No.2, he is not eligible to be considered for appointment on the post of Assistant Director, Class-I as he is not holding the post in Gujarat Ayurved Service. Mr. Raval submitted that the criteria of proved merits and efficiency was required to be followed if the appointment to the post of Assistant Director, Class-I was to be made by promotion under the Recruitment Rules, Mr. Mr. Raval submitted that the criteria of proved merits and efficiency was required to be followed if the appointment to the post of Assistant Director, Class-I was to be made by promotion under the Recruitment Rules, Mr. Raval submitted that since the petitioner no.1 had shown inclination to go at Bhavnagar as District Ayurved Officer and since respondent No.4 requested for her transfer at Gandhinagar and was holding Class-I post, her request for transfer to Gandhinagar was accepted and she was posted as Assistant Director, Class-I by way of simple transfer and in such circumstances, there was no question of following criteria of proved merits and efficiency. Mr. Raval thus urged to dismiss the petition. 9. Learned Advocate Mr. A.S.Supehia appearing for respondent No.4 submitted that at the relevant time, the petitioner No.1 had wished to go to the District of Bhavnagar as District Ayurved Officer and so far as petitioner no.2 is concerned, he was not eligible to be appointed as Assistant Director,Class-I by transfer, the case of respondent no.4 was considered and her request for transfer and posting as Assistant Director, Class-I at Gandhinagar was accepted. Mr. Supehia submitted that as rightly stated in the affidavit in reply by the concerned authorities, the respondent no.4 was transferred by way of simple transfer order as the post of Assistant Director, Class-I at Gandhinagar remained vacant for about thirty six months. Mr. Supehia submitted that since the post of Assistant Director, Class-I was not required to be kept vacant for more time and since there was request from respondent no.4 to come by way of transfer at Gandhinagar, she was transferred and posted at Gandhinagar to work as Assistant Director, Class-I. Mr. Supehia submitted that since the posting of respondent no.4 at Gandhinagar was just like routine transfer to meet with administrative exigencies in connection with the above said post, it was not required of the respondent authorities to assess merits and efficiency of person to be posted as Assistant Director, Class-I and, therefore, no illegality could be said to have been committed by the concerned authorities in transferring the respondent no.4 to work as Assistant Director, Class-I at Gandhinagar. Mr. Supehia submitted that there is no substance in the allegations made in the petition as regards wielding of political influence by the respondent no.4 to get herself transferred at Gandhinagar. Mr. Supehia, thus, urged to dismiss the petition. 10. Mr. Supehia submitted that there is no substance in the allegations made in the petition as regards wielding of political influence by the respondent no.4 to get herself transferred at Gandhinagar. Mr. Supehia, thus, urged to dismiss the petition. 10. Having heard the learned advocates for the parties, it appears that there is no dispute about the fact that the appointment to the post of Assistant Director, Class-I is governed by the recruitment rules made as per the notification dated 22nd December, 1969 at Annexure- A. As per the said recruitment rules, three modes of appointment to the post of Assistant Director, Class-I are provided. Rule 2 of the said rules relevant for the purpose of deciding the controversy reads as under:- “2. Appointment to the post of Assistant Director of Ayurved in Gujarat Ayurved Services, Class-I shall be made either:- (A) by transfer of a person of proved merits and efficiency, working in Gujarat Ayurved Service, Class-I, OR (B) by promotion from amongst person working in Gujarat Ayurved Services, Class-II posts who possess the qualifications and experiences prescribed for appointment by direct selection OR (C) by direct selection.” 11. As per the first mode of appointment to the post of Assistant Director, Class-I, a person of proved merits and efficiency working in Gujarat Ayurved Service Class-I can be appointed by transfer. In the case on hand, appointment given to respondent No.4 as Assistant Director, Class-I appears to be as per the first mode i.e. by transfer. However, it appears that the criteria of proved merits and efficiency are not followed before passing the impugned order dated 22.2.2013 by the Deputy Secretary. By the impugned order, respondent No.4 is stated to be posted on the vacant post of Assistant Director, Class-I at Gandhinagar by transfer and is also asked to continue to hold the charge for the post of District Ayurved Officer, Gandhinagar till any appointment is made on the said post. It is also stated in the impugned order that the transfer of respondent No.4 is as per her own request. 12. The appointment of respondent No.4 as Assistant Director, Class-I is considered and treated as simple transfer order as submitted by the learned A.G.P. Mr. Raval and learned Advocate Mr. Supehia appearing for respondent No.4. It is also stated in the impugned order that the transfer of respondent No.4 is as per her own request. 12. The appointment of respondent No.4 as Assistant Director, Class-I is considered and treated as simple transfer order as submitted by the learned A.G.P. Mr. Raval and learned Advocate Mr. Supehia appearing for respondent No.4. It appears that even the concerned authorities have tried to project the impugned order of appointment of respondent No.4 to the post of Assistant Director, Class-I as an order of simple transfer and, therefore, in the affidavit in reply filed on behalf of respondents no.1 and 2, it is stated that the criteria about zone of consideration and proved merits and efficiency are required to be followed only in the case when the appointment to the post of Assistant Director, Class-I is to be made by way of promotion. 13. However, it clearly appears that to reach to the post of Assistant Director, Class-I for a person working in Gujarat Ayurved Service Class-I, it could not be by a simple administrative transfer but by appointment as required under the recruitment rules. There is no dispute about the fact that the respondent No.4 before her transfer under the impugned order was working in Gujarat Ayurved Service Class-I. Therefore, her transfer to work as Assistant Director, Class-I under the impugned order was nothing but an appointment by transfer as per one of the modes provided in the recruitment rules. Not only this but it is also clearly stated in the impugned order that respondent No.4 is posted on vacant post of Assistant Director, Class-I by transfer and simultaneously is asked to continue to hold the charge as District Ayurved Officer, Class-I, District Panchayat, Gandhinagar. Therefore, though the impugned order is tried to be given the colour of simple transfer, it does not appear so but it is an appointment by transfer to the post of Assistant Director, Class-I. 14. In view of the above, when the post of Assistant Director, Class-I was vacant for about 36 months as stated in the affidavit in reply filed on behalf of respondents No.1 and 2, the cases of other eligible candidates with respondent No.4 for appointment by transfer to the post of Assistant Director, Class-I were required to be considered on proved merits and efficiency as required by the recruitment rules. 15. 15. If the method as followed by the respondent authorities for the appointment of respondent no.4 on the post of Assistant Director, Class-I is taken to be correct method of appointment by transfer to the said post, then it might happen that the eligible persons may be left out from being considered on merits and efficiency for such appointment and the State Authorities may exercise such powers as per the whims and caprices. 16. Taking the case of the petitioner no.1 who has completed about 20 years of service and comparing with respondent No.4 who has completed around 3 years of service as District Ayurved Officer, Class-I, one could say that the petitioner no.1 could have legitimate grievance to say that without examining and comparing merits and efficiency of eligible person working in Gujarat Ayurved Service Class-I like him no appointment by transfer could have been made to the post of Assistant Director, Class-I. 17. There is no dispute about the fact that the respondent authorities did not call for names of eligible persons working in Gujarat Ayurved Service Class-I to form zone of consideration from which the appointment to the post of Assistant DIrector, Class-I could have been made by transfer. 18. In above such view of the matter, respondent authorities need to consider the cases of all eligible persons working in Gujarat Ayurved Service Class-I for the purpose of appointment to the post of Assistant Director, Class-I by transfer. Since the appointment of the respondent no.4 on the post of Assistant Director, Class-I by impugned order is not according to the recruitment rules, respondent no.4 cannot be permitted to hold the post of Assistant Director, Class-I and the impugned order is, therefore, required to be quashed and set aside. However, as stated in the affidavit in reply filed on behalf of respondents no.1 and 2, since the post of Assistant Director Class-I was vacant for about 36months and since respondent no.4 requested to come byway of transfer and to hold such post at Gandhinagar, and since such post of Assistant Director, Class-I is not required to be kept vacant, respondent no.4 could be allowed to continue to work as such till the respondent authorities follow the procedure as per the recruitment rules for making appointment to such post. The respondent authorities are required to follow and complete such procedure at the earliest and within the stipulated time period so as to see that there may not be any heart burning amongst the eligible candidates. At this stage, it is required to be noted that for the purpose of assessing the proved merits and efficiency of a person seeking appointment by transfer on the post of Assistant Director of Ayurved, Class-I, respondents are required to follow the para-meters or norms for such assessment. If there are already the para-meters or norms prescribed, the respondent authorities to follow such para meters for the purpose of assessing proved merits and efficiency for the appointment on the post in question by transfer. If there are no prescribed norms or para-meters, and if the respondents are following any other para-meters,. they may follow such other para meters for the post in question and if no other para-meters are followed, the respondent authorities shall fix and prescribe para meters for the purpose of assessing proved merits and efficiency of an eligible persons for appointment by transfer to the post of Assistant Director, Class-I. Such exercise including making of appointment by transfer from eligible candidates shall be required to be completed by the respondent authorities within four months, and till that time, considering the exigencies for the post in question, respondent no.4 could be allowed to continue. As regards petitioner no.2, learned advocate Mr. Supehia as also learned AGP Mr. Raval submitted that petitioner no.2 since holding the post of Vaidya Panchkarma which is feeder cadre post for promotion to the post of Assistant Director Class-I, petitioner no.2 cannot be considered eligible for appointment by way of transfer to the post of Assistant Director, Class-I. However, learned advocate Mr. Majmudar submitted that even the petitioner no.2 could be said to be eligible for being considered for appointment by transfer and such issue could be raised by petitioner no.2 as and when respondent authorities consider the case of eligible persons for the purpose of appointment by transfer to the post of Assistant Director, Class-I. In view of such rival submissions, the Court has not gone into the aspect as to whether petitioner no.2 could be said to be eligible for being considered for appointment by transfer to the post of Assistant Director, Class-I. 19. For the reasons stated above, the petition is allowed. For the reasons stated above, the petition is allowed. The respondent State Authorities are directed to consider the case of all eligible persons working in Gujarat Ayurved Services, Class-I for the purpose of appointment by transfer to the post of Assistant Director, Class-I by strictly following the principles of proved merits and efficiency as required by the recruitment rules notified vide notification dated 22nd December, 1969 at Annexure-A. The respondent authorities shall have necessary para-meters and norms for assessment of proved merits and efficiency of eligible persons for appointment by transfer to the post of Assistant Director, Class-I, and the concerned eligible candidates shall be informed before following such para-meters or norms. The respondent authorities shall complete entire procedure of fixing and following para-meters and norms for assessment of proved merits and efficiency of eligible candidates and of making appointment to the post of Assistant Director, Class I within a period of four months from the receipt of this order. 20. In order to see that during the aforesaid period, the post of Assistant Director, Class I may not remain vacant, respondent No.4 shall be permitted to work as Assistant Director, Class I till the aforesaid procedure of making appointment to the post of Assistant Director, Class-I is completed within the aforesaid period. On expiry of the aforesaid period of four months, the impugned order dated 22.2.2013 at Annexure E shall stand quashed and set aside and the candidate selected and appointed in the aforesaid procedure shall be allowed to work as Assistant Director, Class-I. Rule is made absolute to the above said extent. Direct Service is Permitted. Petition allowed.