JUDGMENT 1. - Since the questions, which have arisen for consideration of this Court are identical in both the writ petitions and the facts being common in both the matters, I deem it appropriate to deal and finally decide both the writ petitions by this common order. 2. The facts giving rise to the filing of these writ petitions briefly stated are that the Director Primary and Secondary Education, Bikaner Rajasthan (respondent No. 2) vide its' advertisement dated 11.5.1995 had invited applications for direct recruitment on the post of Physical Training Instructor Grade-III in the pay-scale of Rs. 1250/- to 2050/- (scale No. 9) as applicable to the said category of Teachers for the Ajmer District vide (Annexure-1). 3. The respondents while advertising the aforesaid posts, restricted the scope of appointments by inviting only those candidates for interview whose names were sponsored through the Employment Exchange or Social Welfare Office or District Soldiers Board of the State of Rajasthan. 4. The petitioner who is a candidate from open market nor falling within the aforesaid categories, though his. name was registered with the Employment Exchange, Ajmer but since his name was not sponsored by the said Employment Exchange, has challenged the procedure followed for direct recruitment for the post of Physical Training Instructor for short "P.T.1." Grade-3 Teachers being in contravention of Rajasthan Educational Subordinate Service Rules, 1971 for short "the Rules, 1971" on the grounds inter alia that since the petitioner had applied for being considered for appointment on the post of P.T.I. Grade-3 for direct recruitment in pursuance of the aforesaid advertisement, published by the respondents in the daily newspapers having vide circulation in Rajasthan, the scope of appointment should not have been restricted only to those candidates who were sponsored through employment exchange/social/welfare Board/District Soldiers Board but should equally have been extended to the candidates from open Market as well. He has further contended that this has resulted in deprivation of the fair opportunity to employment in public office. 5. He has further contended that this has resulted in deprivation of the fair opportunity to employment in public office. 5. Beside above, the petitioner has also challenged the criterion adopted by the respondents for appointment of the candidates on the ground that this Court after examining the vires of the Rule 16 of the Rules, 1971, which envisages the procedure for inviting the applications from amongst the eligible candidates for direct recruitment in terms of the order dated 24.5.1995 vide Annexure-2 had directed the District Education Officer (Boys), Ajmer for considering the candidature of the petitioner on the post of P.T.I. Teacher Grade-3 in pursuance of the advertisement dated 11.5.1995 since he was having the requisite eligibility conditions for appointment on the said post in accordance with the rules. 6. Upon issuance of the aforesaid order, the respondents after examining the comparative merit of the candidates, who had applied for the post of P.T.I. Teacher Grade-II as well as Grade- III and on the basis of interview and screening done by them of the respective candidates, prepared the merit list Vide (Annexure-4) and in the said merit list the names of at least 7 candidates were recommended by the Selection Board for appointment on the aforesaid posts. Out of the 7 names, who were recommended, the name of the petitioner finds place at serial No. 5 in order of merit. But he was not given appointment despite his eligibility in order of merit at serial No. 5 on the basis of the selection and interview held on 24.2.1996 by respondent No. 3. 7. Being aggrieved, the petitioner made a representation to the District Education Officer, Ajmer vide Annexure-5, wherein he contended that notwithstanding the fact that he had secured 90.50 marks in order of merit and had secured 5th position in the merit list as aforesaid, his candidature was not considered for appointment nor the result was conveyed to him. 8. 7. Being aggrieved, the petitioner made a representation to the District Education Officer, Ajmer vide Annexure-5, wherein he contended that notwithstanding the fact that he had secured 90.50 marks in order of merit and had secured 5th position in the merit list as aforesaid, his candidature was not considered for appointment nor the result was conveyed to him. 8. During the course of hearing learned counsel for the petitioner has contended at the bar that the criterion adopted by the respondent in arbitrarily denying the candidature of the petitioner for being considered for appointment on the post of P.T.I. Grade-3 is irrational and contrary to the Rules since Rule 16 of the Rules, 1971 does not restrict the appointments to those candidates whose names have been sponsored through the Employment Exchange, but to all eligible candidates on the basis of their respective merits. This has resulted in violation of petitioner's right to employment under Article 16 of the Constitution of India and the appointing authority cannot restrict the scope of the application of the said rules only to those candidates whose names have been sponsored or invited through Employment Exchange. The petitioner through registered with the Employment Exchange, Ajmer but since his name was not sponsored by the said Employment Exchange, and having exhausted all the remedies, was left with no alternative remedy except to approach this Court by way of the aforesaid writ petition and this Court vide it's aforesaid order had directed the respondent-Board to consider the candidature of the petitioner and give him appointment on the said post if found eligible in accordance with the rules. Learned counsel for the petitioner has further stated at the bar that Sint. Mamta Shukla, who was a similarly placed candidate like the petitioner in S.B. C.W.P. No. 2221/95 and who was appointed on the post of teacher Grade-2, whose name was also in the aforesaid common merit list prepared by the respondents was given appointment on the said post and there was no justification to deny the appointment of the petitioner who too was placed in the same merit list at serial No. 5 as referred to above. 9. 9. Respondents on being noticed by this Court have contended in their reply that it was not possible for the respondents to give appointment to the petitioner for the reason that notwithstanding his name having been placed in the merit list after determining his eligibility and comparative merit qua other candidates, though they have a large scope of considering the open market candidates along with the candidates sponsored through the Employment Exchange of the respective zones but this is only for the year 1996-97 onwards but they could not consider the case of the petitioner since he was not registered with the Employment Exchange for the period 1995-96. 10. I have heard learned counsel for the parties and examined their rival claims and contentions with reference to the Rules 1971 particularly Rule 16 of the Rules as referred to above and also the legal position on the subject. 11. At the out-set, I may so observe that the scope and ambit of Rule 16 of the Rules of 1971 cannot be restricted only to those candidates whose names have been either registered or sponsored through the Employment Exchange and yet they may not be suitable for being given appointment on the post. On assessment of their comparative merit qua the candidates from open market and the candidate from open market if found better and more qualified, there is no reason as to why they should not be considered for being given appointment on the said post. This would be very unhealthy precedent restricting the scope of the applicability of the Rule only to those candidates, whose names have been either registered or sponsored through the Employment Exchange, keeping in view the fact that a large number of candidates for one reason or the other are not able to get their names either registered or sponsored through the Employment Exchange notwithstanding the fact that their comparative merit is much better or higher than those who are sponsored are registered with the Employment Exchange. I am further of the opinion that right to be considered for employment on a public office subject to the fulfilment of the eligibility conditions under the Rules is a constitutional right of a citizen and the instrumentality of the State cannot discriminate a candidate for the aforesaid reasons as that would be violative of Articles 14 and 16 of the Constitution of India. 12. 12. I am fortified in my observations from the judgment of the Apex Court in the matter of Union of India v. N. Hargopal, reported in (1987) 3 SCC 308 : 1988 (l) SLR 5 (SC) wherein the similar controversy had arisen for consideration of the Apex Court as well as the latter decision of the Apex Court in the matter of the Excise Superintendent, Malkapatnam, Krishan District, Andhra Pradesh v. K.B.N. Visweshwa Rao, reported in (1996) 6 SC 216 : 1996 (3) SLR 649 (SC) . 13. In the matter of Union of India v. N. Hargopal , (Supra), the respondents had insisted on recruitment of the respective candidates whose names were sponsored only through the respective Employment Exchanges of the State as defined in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The Division Bench of the High Court of Andhra Pradesh had held that the Act of 1959 had no application to Government establishments, and that the Act casts no obligation either on the public sector or private sector establishment to make the appointments from among candidates sponsored by the Employment Exchanges only and that any insistence that candidates sponsored by the Employment Exchanges alone should be appointed would be contrary to the right guaranteed by Articles 14 and 16 of the Constitution of India. 14. In appeal before the Apex Court, the Union of India challenged the decision of the learned D.B. of the High Court before the Apex Court and the Apex Court while affirming the view of the learned D.B. of the Andhra Pradesh High Court held that the object of the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges since the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to all the eligible candidates who may be found suitable and meritorious for such appointment. 15. Likewise in the matter of Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visheshwara Rao (supra), the aforesaid view was followed by the Apex Court in it's judgment, reported in (1996) 6 SCC 216 decided on 22.8.96. 15. Likewise in the matter of Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visheshwara Rao (supra), the aforesaid view was followed by the Apex Court in it's judgment, reported in (1996) 6 SCC 216 decided on 22.8.96. It was held by the Apex Court that restricting the selection of the candidates only from amongst those who are sponsored through the Employment Exchange would not be proper as that would offend the equality clause of Articles 14 and 16 of the Constitution and it was further held that it was not open to the Government to impose any such restriction in the field of choice. It was further held that in addition to requisitioning the names from the Employment Exchange names should also be called for by publication in newspapers, having wide circulation and display on office notice boards or announcements on radio and television and employment news bulletins and thereafter consider the candidature of all the candidates, who have applied since such a procedure if adopted would subserve fair play. The equality of opportunity in the matter of Employment in such a situation would be available to all eligible candidates. 16. I am in perfect agreement with the ratio of the aforesaid decisions of the Apex Court and in my considered opinion they are fully attracted to the facts of the present case and in consonance with the earlier order dated 24.5.95 in Civil Writ Petition No. 3550/96 (Annexure-2) of this Court. 17. During the course of hearing, Sh. J.M. Sexena, learned counsel for the respondents while controverting the contentions advanced by the learned counsel for the petitioner has stated at the bar that the respondents in all fairness have adopted the procedure of inviting applications from the eligible candidates from open market besides the candidates whose names have been sponsored through the Employment Exchange but that exercise would be applicable for the year 1996-97 and it is not possible for them to revert back to the year 1995-96. In support of his contention, learned counsel has placed reliance upon the D.B. judgment of this Court in the matter of State of Rajasthan v. Smt. Durga Pareek vide D.B. Civil Special Appeal No. 821/95 and other connected appeals, which were all decided by a common judgment of this Court (Principal Seat at Jodhpur) vide it's orders dated 10.9.96. 18. I have examined the ratio of the said decision. 18. I have examined the ratio of the said decision. The question at issue before the learned D.B. was similar. The learned D.B. of this Court observed as under: "We do not subscribe to the view that while inviting applications only the appointing authority has to call for applications from candidates direct as a matter of Rule without adhering to other alternative appointment methods through Employment Exchanges." 19. The learned D.B. of this Court at the same had held that in the ruling of the Supreme Court in the matter of Union of India v. N. Hargopal , (supra) it has been clearly established that recruitment through Employment Exchange is one of the recognised methods, which cannot be called to be arbitrary, discriminatory or illegal. 20. I do not dissent with the aforesaid view of the learned D.B. with regard to the fact that the recruitment method adopted by the respondents in inviting applications from amongst the eligible candidates whose names are sponsored through the Employment Exchange, while at the same time I do not hesitate in expressing my opinion that it cannot be said to be the only method to which the respondents should have restricted themselves keeping in view that a large number of candidates in the country, who may not get the opportunity of either getting their names registered or sponsored through the Employment Exchange just as it has happened in this case since such an exercise would be a complete negation of the fundamental rights guaranteed to the citizens under Articles 14 and 16 of the Constitution of India and also contrary to the decision of the Apex Court as referred to above. 21. Consequently in view of the above discussion, the petitioner deserves to succeed. The mandamus is issued to the respondents to give appointment to the petitioner on the post of P.T.I. Teacher Grade-3 in accordance with the Rules 1971. The respondents are directed to issue the necessary order in this regard positively within a period of 4 weeks from the date of submission of certified copy of this order. 22. With the above observations both the writ petitions are accordingly allowed and disposed. Parties are left to bear their own costs.Petitions allowed. *******