JUDGMENT 1. 1. By this writ petition, the petitioner seeks to quash the order dated 30.6. 84 ,whereby it was ordered that if appointment once given on any post to any person under the Rajasthan (Recruitment of Dependents of Government Servants Dying While in Service) Rules, 1975 then there is no provision for giving appointment on any higher post in the said Rules. This order Anx. 9 was challenged by the petitioner before the Rajasthan Civil Services Appellate Tribunal which vide its order dated 16.11.87 held that the Tribunal has no jurisdiction in the matter of employment sought by the petitioner and his appeal was dismissed. 2. We may state a few relevant facts. The petitioner's father A. Goswamy died in June, 1982 while he was Deputy Director Employment, Rajasthan. The petitioner sought employment under the aforesaid rules being a dependent of his deceased father. He stated in his application that certain posts of junior employment officer arc vacant. About his educational qualifications it is stated that he had appeared in B. Com. examination and in October, 1982 was declared passed but one paper was boycotted so the petitioner was required to undergo the examination of the boycotted paper and the petitioner also got admission in M. Com. as he was declared passed in B. Com. examination. His prayer was that ad-hoc appointment on the past of junior employment officer may be given to him till the clearance of the boycotted paper. In the alternative a suitable job may immediately be given and when he is declared successful in the boycotted paper, he may be posted as junior employment officer. The petitioner was given appointment on the post of L.D.C. although the application for appointment to the post of junior employment officer was kept under process. It was noted on the petitioner's application that the petitioner be appointed as L.D.C forthwith in case a vacancy exists at Jaipur. Case for appointment as J.E.O. be processed. The petitioner's case further is that he after clearance of the examination. continued to press for his appointment on the post of junior employment officer, Vide Anx. 4, Anx. 6, Anx. 7 and Anx. Case for appointment as J.E.O. be processed. The petitioner's case further is that he after clearance of the examination. continued to press for his appointment on the post of junior employment officer, Vide Anx. 4, Anx. 6, Anx. 7 and Anx. 8, the petitioner's case was considered in the manner that the petitioner is not required to appear before the Rajasthan Public Service Commission for seeking appointment on the aforesaid post and he was given to understand that under the aforesaid rules the petitioner can be appointed on the post of junior employment officer. Vide Anx. 5, Dy. Secretary of Department of Personnel stated that the petitioner can be appointed to on the post of junior employment officer by the competent authority and with regard to ban, relaxation can be sought. Whenever the petitioner's matter was referred to the Government the decision of the Government was as aforesaid however warn further reference was made, the Government took the view that no appointment on the higher post can be given under the rules after appointment having been given once on the lower post. 3. Thus the only question which arises for consideration in this writ petition is that in the facts and circumstances of the case whether Rule 5 of the Rules gives rise to the interpretation as has been placed by the Government Anx. 9. Rule 5 of the Rules is as under:- 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, Organisations ; Corporations owned or controlled by the Central/ State Government shall on making an application for the purpose, he given it 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 becomes qualified or eligible for such employment under these Rules". 4. 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 becomes qualified or eligible for such employment under these Rules". 4. Proviso to the said rule was added vide notification dated 22.8.83. 'Provided that recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commission. except (sic) the major State Services mentioned in rule 3 where the Appointing Authority is satisfied in consultation with the Department of Personnel and the Rajasthan Public Service Commission that a dependent of a deceased Government servant is qualified and suitable for appointment to such post". 5. A bare perusal of the aforesaid rule would show that when a Government servant dies and when any one member of his family not already in employment with government; shall be given it suitable employment in Government service on making an application for the purpose without delay only against an existing vacancy when the said employment is not within the purview of the State Public Service Commission. Such member of the family of course is required to fulfil the educational qualifications prescribed for the post and he should also he otherwise qualified for Government service. The rule further provide, that if there is no vacancy or if the member of the family is not qualified or is minor or is not found suitable or eligible for immediate employment then such cases should be considered immediately on the availability of the posts or any member of the family becomes qualified or eligible for such employment. It may be stated that the petitioner was seeking employment on the post of junior employment officer. The application was primarily made for appointment on the post of junior employment officer and he gave out these facts that although he has cleared the B. Com examination which is an essential qualification for the post of junior employment officer the university is holding fresh examination in respect of boycotted paper so he has to clear that very paper. The application was primarily made for appointment on the post of junior employment officer and he gave out these facts that although he has cleared the B. Com examination which is an essential qualification for the post of junior employment officer the university is holding fresh examination in respect of boycotted paper so he has to clear that very paper. He made the prayer very categorically that even adhoc appointment on the post of junior employment officer may be given to him till the paper boycotted is not cleared by him although he has passed B. Com examination and in case adhoc appointment is not given immediately some suitable job can be provided and as soon as he is declared successful in the boycotted paper he may be appointed on the post of junior employment officer. It is true that the petitioner was given employment on the post of L D. C. but his application was kept pending and was ordered to be processed for the post of junior employment officer. As soon as the petitioner informed that he has cleared the boycotted paper there was no impediment in the way of the petitioner for his appointment on the post of junior employment officer. The view which the Government has taken vide Anx. 9 that if a person has been posted on a lower post under the rules, no employment can be given on the higher post. It may be stated that the matter has to be viewed in the light of the facts of the present case. The petitioner had initially sought employment on the post of junior employment officer and the petitioner'., application remained under process for the very purpose. Rule 5 also makes it abundantly clear that if one becomes qualified his case can he considered for the post for which the person had applied. Rule 5 does not say that if any temporary appointment as such has been given and thereafter on acquiring the requisite qualifications higher employment cannot be made available to the person, applying under Rule 5. The view taken by the Government in our opinion does not appear to be correct if seen particularly in the light of the facts as to how the petitioner has been dealt with by the government. In Anx. The view taken by the Government in our opinion does not appear to be correct if seen particularly in the light of the facts as to how the petitioner has been dealt with by the government. In Anx. 9 only the aforesaid ground has been given for refusing employment to the petitioner on the post of junior employment officer and it is not the ground that by amendment of the rule, whereby proviso is added the post has fallen within the purview of the Rajasthan Public Service Commission. Suffice it to say that the proviso would not be attracted to the petitioner's case and the petitioner's case would not fall within the purview of the Rajasthan Public Service Commission. If a suitable post was vacant it was obligatory for the State Government under rule 5 to give employment to the petitioner. The language of rule 5 is imperative in nature. After acquiring requisite qualification and being otherwise qualified the dependent has to be given suitable employment against an existing vacancy if that is not within the purview of the State Public Service Commission. The petitioner fulfilled the necessary qualification of Rule 5 soon after he had cleared the boycotted paper. It is not in dispute that there existed vacancy for the post of junior employment officer. After the petitioner was given appointment on the post of L. D. C. the petitioner should have been considered against such vacancy. The petitioner having not been considered against the vacancy, the petitioner can legitimately make a grievance that he has been denied his legitimate right under Rule 5 for seeking employment against the vacancy on the post of junior employment officer. 6. Now the question arises from what date the petitioner should be given employment on the post of junior employment officer. The petitioner had approached this court on 15.12.87 before that the petitioner pursued a wrong remedy before the Tribunal. The petitioner should not have waited till the decision went against him by the Government vide Anx. 9 dated 30.6.84. Thus looking to the petitioner's conduct in our opinion it would be proper to direct the respondents to give appointment to the petitioner on the post of junior employment officer w. e. f. the date the petitioner had approached this Court. 7. Accordingly, this writ petition is allowed. The Government's communication dated 30.6.84 is set aside and the respondent no. Thus looking to the petitioner's conduct in our opinion it would be proper to direct the respondents to give appointment to the petitioner on the post of junior employment officer w. e. f. the date the petitioner had approached this Court. 7. Accordingly, this writ petition is allowed. The Government's communication dated 30.6.84 is set aside and the respondent no. 1 and 2 are directed to give appointment to the petitioner on the post of junior employment officer w. e. f. 15.12.87.Petition allowed. *******