Honble PALSHIKAR, J. – The petitioner who is an Agriculture Graduate seeks a mandamus by this petition directing the respondents to appoint him as Assistant Agriculture Officer with effect from 26.4.85 when he applied for appointment on compassionate ground under the Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1975 (hereinafter referred to as `The Rules).

(2). The father of the petitioner expired on 8.4.85 while discharging his duties as a Government employee. This fact is not disputed. The fact that the petitioner is an Agriculture Graduate is also not disputed.

(3). The petitioner, therefore, filed an application on 26.4.85 under the Rules, claiming appointment on compassionate ground. He was replied by a letter dated 7.8.85 that he will not be able to get appointment to the post of Assistant Agriculture Officer under the Rules of 1975 and he was offered an appointment to the post of Agriculture Supervisor. According to the petitioner, he accepted the appointment as Agriculture Supervisor to save his family members from starvation. According to the petitioner, he was eligible for appointment as Agriculture Officer as per the Rules of 1978 for appointment in the Agriculture Department and, therefore, he should be given appointment.

(4). The petition is opposed and it is submitted that the petitioner having accepted the appointment is now not entitled to claim a higher post.

(5). Mr. P.P. Choudhary, learned counsel appearing for the petitioner submits that he is entitled to appointment to a post suitable to his qualifications and grant of such appointment under the Rules is as of right. The question as to the scope and extent of rule 5 of the Rules, occurs regularly and, hence, I propose to deal with this question exhaustively, –

``Rule 5. Recruit of a member of the family of the deceased –

In case of ``deceased Government servants one member of his family who is not already employed under the Central/State Government or Statutory Board of Organisation/Corporations owned or controlled by the Central/State Government shall on making an application for the purpose, be given a suitable employment in Government service without delay only against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules provided such member fulfils the educational qualifications, prescribed for the post and is also otherwise qualified for Government service. In the event of non-availability of a vacancy or any of the members of the family being unqualified or minor, is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any of them become qualified or eligible for such employment under these Rules.

(5). The following contentions usually arise for consideration on the basis of rule 5 quoted above, –

(1) since it is a part of Subordinate Legislation made by the State of

Rajasthan by framing these Rules in exercise of its powers under Article 309 of the Constitution of India, it has a force of law and, therefore, a candidate covered by the Rules is entitled, as a matter of right, to an appointment;

(2) he is, therefore, entitled to appointment which is suitable to his qualification, and,

(3) the right to better his appointment and prospects by acquisition of higher qualification during the currency of the appointment, further entitles him to a consideration and grant of a higher post commensurate for his qualification.

(6). Mr. Choudhary, learned counsel appearing on behalf of the petitioner submitted that the candidate who was a dependent of a deceased Govt. Servant is entitled to appointment suitable to his qualification and merely because due to pressure of circumstances he accepts a lower post available, his right to be considered preferentially for a suitable post thereafter, is not taken away and, there- fore, the petitioner is entitled to be a

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