ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

[1] Heard learned counsel for the petitioners and perused the record.

[2] The present petitioners (five in number) claim to be working on the post of Lecturer in Selection Scale (Professor) (Class-I), serving in various Government Ayurved Colleges and attached Hospitals in the State of Gujarat. The challenge is to the validity of the Rules, namely Rule 2, Rule 3(a)(i) of the Director AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy), Class-I, Recruitment Rules, 2023 notified on 17.07.2023. The petitioners being Lecturer in Selection Scale would contend that they are all qualified upto the post graduate level in Ayurveda and the post of Director, AYUSH is a highly responsible post where apart from other administrative responsibilities, the incumbent has to discharge the functioning of laying down curriculum which would require teaching experience in the field. It is further sought to be argued that in the erstwhile rules for regular recruitment to the post of Assistant Director of Ayurved notified on 22.12.1969, the eligibility qualification was for appointment by transfer of a person of proved merits and efficiency, working in Gujarat Ayurved Service, Class-I. The submission, thus, is that as per the erstwhile rule, any person working in Gujarat Ayurved Services, Class-I was entitled to be considered for the post of Assistant Director of Ayurved, provided his merit, efficiency and other credentials were established. With the notification of Rules, 2023, there is absolute exclusion of the incumbents working on teaching post such as Lecturer, Assistant Professor and Lecturer in Selection Scale (Professor).

[3] The further submission is that as per Rules 2, 3(a)(i), the feeder cadre for recruitment to the post of Director, AYUSH is Deputy Director, Class-I in Gujarat State service under the Directorate of AYUSH. As per Rule 2, apart from the post of Deputy Director, Class-I, other posts as prescribed in the table contained in the annexure to the Rules, 2023 have also been included as equivalent posts for consideration for promotion and direct requirement to the post of Director. Inviting attention of the Court to annexures to Rules, 2023, it was sought to be submitted by Mr. N. K. Majmudar, learned counsel for the petitioners that the post of Superintendent, Government Ayurved Hospital etc. has been included in the rules for being considered within the zone of consideration for promotion to the post of Director, AYUSH, which is otherwise manned by incumbent having lesser qualification. The submission is that the minimum eligibility qualification for the post of Superintendent, Government Ayurved Hospital is Bachelor's degree, whereas the petitioners are working as Lecturer in Selection Scale (Professor) are having master's degree.

[4] The submission is that being much more qualified then the incumbents working on the post included in the feeder cadre, the petitioners have illegally excluded from the zone of consideration by the rules which exclude the post of Lecturers / Professors in the feeder cadre.

[5] Having considered all these submissions made by the learned counsel for the petitioners, suffice it to note that it is within the exclusive domain of the rule making authority / recruiting agency to work out the feeder cadre for appointments / promotion to higher posts. The carving out of feeder cadre for appointments / promotions of a particular post would require assessment of various aspects such as nature of job and responsibility, the available cadre, the nature of services and the institution, wherein the incumbents are working. This Court cannot take up the job of the rule making authority as it has no expertise to assess the criterias required for creation of a feeder cadre for promotion / recruitment to a particular post.

[6] In the federal structure of the constitution, three institutions, namely legislature, judiciary and execut