KOKJE, J. - (1.) 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 respondent's 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. 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. 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 Hon'ble 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. 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. Malkapatnam vs. K. B. N. Vishweshwara Rao and Ors. (3) that ft would be consistent with the principles of fair play, justice and equal opportunity that the restriction of applying through the Employment Exchange only, should not be imposed. The learned counsel submitted that this decision by three Hon'ble Judges effectively supersedes the view taken in Union of India vs. N. Hargopal (Supra ). The learned counsel for the respondent also raised an objection to the maintainability of the appeal on the ground that respondent No. 4 in the petition before the learned Single Judge, the Employment Officer has not been impleaded in this appeal. According to the learned counsel the appeal deserves to be dismissed on this short ground. We have heard the learned counsel and perused the record. In Union of India vs. N. Hargopal (supra) decided by two Hon'ble Judges of the Supreme Court it was held that the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 does not oblige any employer to employ those persons only who were sponsored by Employment Exchanges. It has been observed in this decision that the object of the Act is not to restrict, but to enlarge the field of choise so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. The Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges. Having held thus it was further observed that if the Govt. so desires, restriction that the application should be through the medium of Employment Exchanges can be put. It was further observed that insistence of recruitment through the Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution and in absence of a better method of recruitment any restrictions that employment in Govt. Departments should be through the medium of Employment Exchanges does not offend Articles 14 and 16 of the Constitution.
(3.) THE second case relied on by the learned counsel for the appellant is Arun Tewari's case (Supra), in which Union of India vs. N. Hargopal (Supra) as also Excise Supdt. , Malkapatanam vs. K. B. N. Vishweshwara Rao were noted. But one of the contrary views expressed in the decisions was not taken. THE learned counsel for the respondent submitted that the view expressed in Excise Supdt. Malkapatnam vs. K. B. N. Vishweshwara Rao was binding on this Court being the view expressed by a Bench of three Judges of the Supreme Court. In paragraph 4 of the decision in this case the decision in Union of India vs. N. Hargopal was referred to. In paragraph 6 of the decision it was observed that the contention that the restriction of the field of choise to the selected candidates sponsored through the medium of Employment Exchange prohibits the rights to be considered for employment to the post under the State and many people cannot reach the Employment Exchange to get their names sponsored and the Employment Exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record and therefore the better course would be to adopt both the madicums viz. of Employment Exchange and publication in the Newspaper as that would subserve the public purpose better and would be more acceptable being consistent with the principles of fair play, justice and equal opportunity. It was further observed that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the Employment Exchange, with the result that the choice of selection is restricted to only such candidates whose names come to be sponsored by the Employment Exchange. Under these circumstances many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. It was then observed that the better view appears to be that it should be mandatory for the Requisitioning Authority/ Establishment to intimate the Employment Exchange and Employment Exchange should sponsor the names of the candidates to the Requisitioning Deptts. for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or Undertaking or Establishment should call for the names by publication in the newspapers having wider circulation and also display on their office Notice Boards or announce on Radio, Television and Employment News Bulletins and then consider the cases of all the candidates who have applied. If this procedure is adopted fair play would be subserved and the quality of opportunity in the matter of employment would be available to all eligible candidates. It would thus be seen that this three Judges Bench has taken a view different from the view taken by two Judges Bench in Union of India and Ors. vs. N. Hargopal (supra) which confined the candidature only to those who are sponsored or are registered with the Employment Exchanges. In fact a better method of recruitment has been found and commended. In Union of India vs. N. Hargopal (Supra) the Supreme Court had observed that "in absence of a better method of recruitment any restrictions that employment in Govt. Deptts. should be through the medium of Employment Exchanges does not offend Articles 14 and 16 of the Constitution. " In Excise Supdt. , Malkapatham vs. K. B. N. Vishweshwara Rao (Supra) the three Judges Bench found out a better method which gave wide publicity to the existence of vacancies and opened the doors for all candidates fulfilling the eligibility criteria prescribed by rules applicable to the service. The view taken in Union of India vs. N. Hargopal (supra) has therefore been effectively superseded the decision in Excise Supdt. , Malkapatham vs. K. B. N. Vishweshwara Rao (supra ). The latter being a three Judges Bench decision of the Supreme Court will have to be preferred to the two Judges Bench decisions and therefore the view taken by the learned Single Judge can not be said to be wrong. In the present case we also note that the respondent himself was eligible for consideration being already registered with the Employment Exchange and having applied directly enclosing attested copy of the Registration Card In response to the advertisement which specifically permitted such a course to be adopted. If subsequently it was discovered by the appellants that the registration of the respondent was cancelled, they could not have rejected the candidature straightway. It was necessary to give the candidate an opportunity to show that his registration subsisted. It is noteworthy that not only that the Employment Exchange removed the name of the respondent from its register without any notice or hearing to the respondent, when he was impleaded in the case before the learned Single Judge the Employment Officer did not turn up to contest the petition. It has therefore to be held that the Employment Exchange cancelled the registration, not only without any notice but without any valid ground for doing so. In that view of the matter the respondent will have to be taken to be continuing as a duly registered person with the Employment Exchange and a person who was eligible for being considered for selection. In the light of view we have taken it is not necessary to go into the question of maintainability of appeal. ;