Honble SHARMA, J.—There can be no two opinions on the issue that even an expert on the subject may fail, if appears in the examination of that subject. In the words of Professor WALTER RALUGH, the `College final and the `Day of Judgment are two different examinations. A.E. HOUSMAN, the great scholar of Greek and Latin and better known as a poet once failed in the papers on those very languages of the Oxford University. His biographer commented- "The nighingale got no prize at the poultry show." Like A.E. HOUSMAN, there are many students in our country, who have not been as successful in their examinations, as they thought they deserved to be. Out of them many re-appear in the examination in order to improve the marks earlier secured by them. Core issue that needs our answer in the instant matters is as to what course should be adopted in providing employment to a student in such a situation. Whether merit list should be drawn on the basis of marks secured by him in the first examination or merit should be considered in view of improved marks secured in the second examination? (2). The questions that have been referred to us are these: (i) Whether improved marks secured in second attempt in Secondary School Examination can be considered for adjudging merit of the candidate for appointment to the post of Teacher/PTI Gr. III? (ii) Whether Director, Primary & Secondary Education Rajasthan is competent to issue Circulars and Guidelines laying down criteria for drawin the merit list for appointment to the post of Teacher/PTI Gr. III? (3). For convenience facts of writ petition No. 582/1997 (Brijendra Kumar Jaiman vs. State of Rajasthan) are taken into consideration. The petitioner in this writ petition averred that he applied for the post of Physical Training Instructor Gr. III (for short `PTI) pursuant to the advertisement issued by District Education officer for the year 1996-97. Although the petitioner was placed at Serial N. 2 in the merit list, he was not given appointment despite his merit. As per the letter dated December 28, 1996 issued by the appointing authority, the candidature of the petitioner was not considered because of improved marks obtained by him in the second attempt in Secondary School Examination. Although the petitioner was placed at Serial N. 2 in the merit list, he was not given appointment despite his merit. As per the letter dated December 28, 1996 issued by the appointing authority, the candidature of the petitioner was not considered because of improved marks obtained by him in the second attempt in Secondary School Examination. On enquiry the petitioner came to know that clause 24of the circular issued for the year 1996-97 by the Director, Primary & Secondary Education Rajasthan Bikaner, ousted the petitioner from consideration. Clause 24 provides that the candidates, who after securing higher qualification, have improved their division in lower qualification, the improved marks secured by them shall not be made basis in drawing merit. In adjudging merit the earlier marks obtained in lower qualification shall only be considered. Clause 24, which was issued in Hindi, reads as under:- ^^vkkkfFkZ;ksa }kjk ;fn mPp ;ksX;rk izkIr djus ds ipkr fuEu ;ksX;rk esa Js.kh lq/kkj fd;k tkrk gS rks fuEu ;ksX;rk esa fd;s x;s Js.kh lq/kkj ds vadksa dks fu;kstu dh n`f"V ls ofj;rk esa vk/kkj vad ugha cuk;k tkos vfirq iwoZ esa tks fuEu ;ksX;rk esa vad Fks mls ekurs gq, fu;ekuqlkj ofj;rk esa vad fn;s tkosaxsA** (4). Challenge in the writ petition is to aforequoted clause 24 of the circular and letter dated December 28, 1996 with a further prayer to appoint the petitioner on the post of PTI Gr. III on the basis of improved marks. (5). We have pondered over the submissions advanced before us. (6). At this juncture it will be appropriate to analyse Rule 20 of the Board of Secondary Education Rajasthan Rules (for short `BSER Rules), which permits a student to re-appear in the examination for the purpose of making improvement in the division or marks secured in the first examination. (5). We have pondered over the submissions advanced before us. (6). At this juncture it will be appropriate to analyse Rule 20 of the Board of Secondary Education Rajasthan Rules (for short `BSER Rules), which permits a student to re-appear in the examination for the purpose of making improvement in the division or marks secured in the first examination. Rule 20 reads as under:- ^^20¼1½ cksMZ dh lSd.Mjh@lhfu;j lSd.Mjh vdknfed rFkk izosfkdk@ofj"B mik/;k; ijh{kk vFkok mPp ijh{kk mRrh.kZ djus ds ipkr iwoZ esa fy, x, fo"k;ksa esa ls fdlh ;k fdUgha fo"k;ksa esa izkIrkadksa esa lq/kkj gsrq vFkok iwoZ esa fy, x, fo"k;ksa ,oa oxZ esa Js.kh lq/kkj ds fy, cSBus gsrq Nk=ksa dk fu;fer vFkok Lo;aikBh vH;FkhZ ds :i esa ijh{kk esa izfo"B gksus dh vuqKk nh tk ldsxhA ¼2½ Nk=ksa dks mlh ijh{kk esa fo"k;@oxZ cnydj ik=rk ds fofu;ekuqlkj iqu% ijh{kk esa cSBus dh vuqKk Hkh nh tk ldsxh ijUrq ,sls Nk=ksa dks vad lq/kkj@Js.kh lq/kkj dh Js.kh esa ijh{kk esa ugha cSBk;k tkosxkA** A close look at Rule 20 of BSER Rules demonstrates that under the scheme of examination, a candidate may re-appear in the subsequent examination for improvement of his marks. (7). Considering Rule 20 of BSER Rules, Division Bench of this Court in Surendra Kumar vs. State of Rajasthan (2001(3) RLW 258) indicated thus:- (Para 12) "We have heard learned counsel and perused the record. We do not find any justification in not taking into consideration the revised marks obtained by a candidate in a subsequent examination. When under the scheme of examination, it was permissible for a candidate to appear only for improvement of his marks and even at a subsequent examination, there is no logic in not giving benefit of the marks obtained at the subsequent examination, to such a candidate. In fact, when the examination is taken and fresh marks are obtained, they should have the effect of superseding the earlier marks and substituting them. The State Government, as an employer, is only concerned with the merit of a particular candidate at the time of his selection. Whether that merit was obtained in one attempt or more than one attempt, is absolutely irrelevant in absence of any rule permitting discounting of merit on the ground of attempts after which that merit was obtained. The State Government, as an employer, is only concerned with the merit of a particular candidate at the time of his selection. Whether that merit was obtained in one attempt or more than one attempt, is absolutely irrelevant in absence of any rule permitting discounting of merit on the ground of attempts after which that merit was obtained. In the present case, no rule has been pointed out which requires rejection of marks obtained in an examination passed in more than one attempt. In fact, there is no knowing from the marks-sheets whether the candidates had passed the secondary examination in only one attempt. When the candidate, who has failed in the secondary examination, could appear at the subsequent examination and after passing that examination, get his marks obtained in the second examination counted for the purpose of selection, there is no reason who the candidate who had passed an earlier examination but not being satisfied with the marks obtained in that examination, attempts second time and obtains higher marks, should be deprived of his right to get the improved marks counted for the purpose of merit. To our mind, it is also not relevant as to whether a candidate has obtained higher qualification like graduation, post graduation or Ph.D. Degrees. When such candidates are not being given any weightage for the higher qualifications they cannot be put at a disadvantageous position only because of obtaining higher qualifications. After all, there is nothing sacrocant about the first attempt at the examination. For various reasons and fortuitous circumstances, a candidate, otherwise meritorious, may not score well in the first attempt or might be suffering from any other handicap, which might have undermined his performance. The employer is concerned with the current merit of the candidates to be employed and not their past performance. We therefore, see no justification in the governments decision discontinuing the earlier practice of counting the marks obtained at the subsequent examination taken for improvement of marks." (8). The finding arrived at in Surendra Kumars case (supra) is founded on the ratio indicated in State of Rajasthan vs. Ms. Chanani Vishnoi (WLR 1996 Raj. 341), wherein Division Bench of this Court held as under:- "This clearly means that the candidates who appeared at the same examination with changed subjects would not be treated as candidates appearing for the purpose of improvement of marks/improvement of grades. Chanani Vishnoi (WLR 1996 Raj. 341), wherein Division Bench of this Court held as under:- "This clearly means that the candidates who appeared at the same examination with changed subjects would not be treated as candidates appearing for the purpose of improvement of marks/improvement of grades. The intention of the Rule makers is very clear to distinguish those who appear in the same subjects second time from those who appear second time at the same examination with change of subjects. Thus who appear in the same subjects under sub-rule (1) of Rule 20 are clearly treated by that sub-rule as candidates who appear for the purpose of improvement of marks or improvement of grades. About those who appear under sub-rule (2) of the Rules, in the subsequent examination, the intention is clear not to treat them as candidates appearing for the purpose of improvement of marks or improvement of grades. They are only candidates appearing in additional subjects and not candidates desiring to improve marks or grade in the same subjects." (9). But diametrical opposite view was taken by two Division Benches of this Court in Om Prakash vs. State of Rajasthan (2001(2) RLR 740 = RLW 2001(1) Raj. 1219) and Kesu Ram vs. Zila Parishad Sriganga Nagar ( 2003(3) RLR 71 = RLW 2003(2) Raj. 1323). (10). In Om Prakash vs. State of Rajasthan (supra) it was observed that the circular, which disentitle to claim preference on the basis of improved marks, was rightly issued because a candidate can never claim preference over others with improved marks. (11). In Kesu Ram vs. Zila Parishada Sriganga Nagar (supra) cases of Surendra Kumar vs. State of Rajasthan (supra) and State of Rajasthan vs. Ms. Chanani Vishnoi (supra) were distinguished and it was observed as under:- (Paras 8 and 16) "8. Moreover, it was also urged by the learned counsel for the respondents, that with the commencement of the Rajasthan Panchayati Raj Rules 1996 which laid down the criterion procedure and method of selection for appointment to different posts under the Panchayati Raj Institutions vide notification dated 30.12.96, governing the selection and recruitment to any post under the Panchayati Raj Institution was occupied field of the Act of 1994 and Rules of 1996 framed thereunder. The executive order issued in exercise of powers conferred under the repealed rules cannot survive for the benefit of the petitioner thereafter. The executive order issued in exercise of powers conferred under the repealed rules cannot survive for the benefit of the petitioner thereafter. He also pointed out that Division Bench judgments relied upon by the learned counsel for the appellant do not held the petitioner in respect of the controversy raised in this case which depends purely upon the consideration of rules laying down, eligibility criterion and evaluation of merit." "16. The marks obtained in higher secondary passed earlier and the marks obtained in lower examination by improving earlier marks after that would create not only an anomaly but obviously be in violation of Article 14 of the Constitution. This is so because person should have passed requisite lower standard before obtaining higher education through that stepping stone. If a person after obtaining higher academic qualification returns back to his foundation tone and passes the examination with aplomb as an accomplished man, it is no reflection on his merit at lower examination at which he has appeared later in comparison to the other students who are there in ordinary course of circumstance with background of students up to much lower standards. The marks obtained by him with such higher level of education by appearing at a lower examination of threshold does not relate in any manner to his academic attainment in the examination. This method tantamounts to a fraud on the provisions of evaluating merit by improving marks in much lower standard after successively passing next higher examination through that opening by appearing with student who had come from the still lower stepping stones and is at the threshold of appearing at higher education." (12). In order to find out as to what is the merit criteria for the appointment to the post of Teacher/PTI Gr. III, we have to look at the scheme of Rajasthan Educational Subordinate Service Rules, 1971 (for short `1971 Rules). Part IV of 1971 Rules lays down procedure for direct recruitment and Rule 16 casts obligation on the appointing authority to advertise the vacancies to be filled in the Official Gazette or any such other manner as may be deemed fit. Rules 17, 18, 19, 21 and 22 respectively relate to form of application, application fee, scrutiny of application, disqualifications for appointment and selection by the appointing authority. According to Schedule appended to 1971 Rules the posts of Primary School Teacher/Teacher Gr.III/PTI Gr. Rules 17, 18, 19, 21 and 22 respectively relate to form of application, application fee, scrutiny of application, disqualifications for appointment and selection by the appointing authority. According to Schedule appended to 1971 Rules the posts of Primary School Teacher/Teacher Gr.III/PTI Gr. III are to be filled in by direct recruitment. Rule 21 of 1971 however does not provide that improved marks shall be treated as disqualification for appointment. (13). Now turning to clause 24 of the circular we find that it clearly ignored the scheme of 1971 Rules as well as Rule 20 of BSER Rules. We also find that no statutory power is vested with the Director of Primary and Secondary Education to lay down criteria for drawing the merit list for appointment to the post of Teacher/PTI Gr. III. No administrative order could be issued by the Director superseding and amending 1971 Rules. In P.D. Aggarwal vs. State of U.P. (1987) 3 SCC 622 the Apex Court held that administrative order or instruction cannot supersede or amend statutory rules of service. In State of Haryana vs. Shamsher Jang Shukla ( AIR 1972 SC 1546 ) it was indicated that the Government is not competent to alter by means of administrative instructions the conditions of service prescribed by these rules. (14). The Director while issuing clause 24 of the Circular failed to notice sub-rule (1) of Rule 20 of BSER Rules which clearly provides that a candidate can appear in the examination for the purpose of improving marks obtained in earlier examination. Even sub-rule 2 of Rule 20 was also not taken into consideration which relates to change of subjects in the second examination and this has been permitted with a specific condition that such candidates will not be eligible for appearing at additional examination for improving marks or grade. (15). In view of the legal position that the State Government under sub-section (5) of Section 28 of the Secondary Education Act, 1957 (for short `1957 Act) was competent to suspend the Rule 20 of BSER Rules, it would have been better for the Director, if he did not want to draw the merit list on the basis of improved marks, to approach the State Government under Section 28 of 1957 Act, seeking suspension of Rule 20 of BSER Rules. (16). Section 28 of 1957 Act reads as under:- "28. (16). Section 28 of 1957 Act reads as under:- "28. Power of the State Government to require any action to be taken or to suspend the execution of any resolution. (1) The State Government may address the Board with reference to any work conducted or done or about to be conducted or done by the Board any communicated to the Board views on any matter with which the State Government is concerned. (2) The Board shall report to the State Government such action, if any, as it proposes to take or has been taken upon the communication received under sub-section (1). (3) If the Board does not, within a reasonable time, take action to the satisfaction of the State Government with reference to the matter on which a communicating has been received under sub-section (1), the State Government may, after considering any explanation furnished or representation made by the Board, issue such directions, consistent with this Act, as it may think fit and the Board shall comply with such directions. (4) In any emergency which, in the opinion of the State Government, requires that immediate action should be taken, the State Government may taken such action consistent with this Act, as it deems necessary without previous consultation with the Board and shall forthwith inform the Board thereof. (5) The State Government may, by order in writing specifying the reasons thereof, suspend the execution of any resolution or order of the Board and prohibit the doing of an act ordered to be, or purporting to be ordered to be done by the Board, if the State Government is of the opinion that such resolution, order of act is in excess of the powers conferred by or under this Act upon the Board." (17). The respondents have failed to point out any rule which mandates rejection of marks secured in an examination passed in more than one attempt. As per the Scheme of 1971 Rules, the State Government is required to see the marks of a candidate at the time of selection. It is not required to examine as to in how many attempts those marks were secured. (18). We do not see any rational foundation in the findings arrived at in Om Prakash vs. State of Rajasthan (supra) and Kesu Ram vs. Zila Parishad (supra). It is not required to examine as to in how many attempts those marks were secured. (18). We do not see any rational foundation in the findings arrived at in Om Prakash vs. State of Rajasthan (supra) and Kesu Ram vs. Zila Parishad (supra). We find that the ratio indicated in those judgments caused injustice to those students who had not been as successful in their examinations in first attempt as they thought they deserved to be. Thereafter they put hard labour and improved their marks in second attempt. Time and again the Apex Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it (vide State of U.P. vs. District Judge Unnao ( 1984(2) SCC 673 ). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. (19). We thus hold that clause 24 of the circular is- (i) absolutely illegal; (ii) arbitrary; (iii) in clear violation of scheme of 1971 Rules; (iv) in violation of BSER Rules; (v) in violation of principles of natural justice; and (vi) beyond competence of Director, Primary and Secondary Education. (20). In view of the discussions made herein above, we answer the reference thus:- Questions (i): Answer: The improved marks obtained in secondary examination can be considered for drawing the merit list of the candidate for appointment to the posts of Teacher/PTI Gr. III. Question (ii): Answer: The Director Primary & Secondary Education is not competent to issue Circulars and Guidelines laying down criteria for drawing merit list for appointment to the posts of Teacher/PTI Gr. III. (21). Let the matters be placed before Honble the Chief Justice.