Honble KOKJE, J.–The respondent had filed a petition challenging not consideration of his candidature for the post of Physical Training Instructor. The respondent had applied in response to an advertisement dated 20.5.91 Annex. 1 to the petition. As per the advertisement applications had to be sent through Distt. Employment Officer, Jodhpur. It was also stipulated in the advertisement that candidates registered with the Employment Exchange, Jodhpur could also directly apply to the Distt. Education Officer enclosing an attested copy of the Registration Card issued to them by the Employment Exchange. The respondent applied enclosing attested copy of the Registration Card issued to him by the Employment Exchange, Jodhpur. However, his candidature was not considered valid because on verification by the Distt. Education Officer from Employment Exchange it turned out that the respondents registration was cancelled and on the date of the application he was not registered with the Employment Exchange.

(2). The respondent contended in the petition that exclusion of his candidature only on the ground that the list forwarded by the Employment Exchange did not contain his name was illegal being based on irrelevant consideration. It was also submitted that restricting the candidature to only those who applied through Employment Exchange or who are registered with the Employment Exchange. Itself is violative of Articles 14 and 16 of the Constitution of India. It was also contended that the respondent had no notice of the Employment Exchange cancelling his registration. The petitioner had also impleaded the Employment Officer as respondent No. 4 after coming to know through the reply filed on behalf of the State the reason for exclusion of his candidature to be cancellation of his registration by the Employment Exchange. The Employment Officer did not appear before the Court despite notice.

(3). The learned Single Judge allowed the petition and directed that the respondent shall be offered the first vacancy which may be available in future giving him notional seniority and fixation of pay from the date the last appointment had been made in pursuance to the advertisement dated 20.5.91. Aggrieved by this order this appeal has been filed.

(4). The learned counsel for the appellant submitted that the respondent did not fulfil the eligibility criteria for candidature set out in the advertisement itself. According to the learned counsel the condition of registration with the Employment Exchange was perfectly valid and it could not be said that by putting such a condition any of the fundamental rights of the respondent were violated. The learned counsel heavily relied on a decision of the Supreme Court in Union of India and Ors. vs. N. Hargopal and Ors. (1) and observations made in para 10 thereof where it is stated that if a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes a grave element of arbitrariness is certainly introduced in the process of recruitment which must necessarily be avoided if Articles 14 and 16 have to be given any meaning. It was observed that insistence of recruitment through Employment Exchange advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. It was further observed that in absence of a better method of recruitment any restriction that employment in Govt. Deptt. should be through the medium of Employment Exchanges does not offend Articles 14 and 16 of the Constitution. This was a judgment rendered by a bench of two Honble Judges of the Supreme Court. The learned counsel for the appellant also relied on a decision given by another two Judges Bench of the Supreme Court in Arun Tewari and Ors. vs. Zila Mansavi Shikshak Sangh and Ors. (2).

(5). On the other hand the learned counsel for the respondent submitted on the authority of a decision by three Judges Bench of the Supreme Court in Excise Supdt. Mal

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