Judgment :- (WP No. 17040 of 2005: Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari to call for the records relating to the order of the first respondent dated 28.02.2005 passed in Appeal No.91 of 2002 and quash the same.) Common Order: In all these writ petitions, the subject matter is one and the same, hence, they are disposed of by this common order. 2. The third respondent in all the above writ petitions have submitted their respective application before the second respondent seeking five seater auto rickshaw permits which were returned by the second respondent on 13.12.2001, however, the same was received by them only on 15.12.2001, whereas, on 13.12.2001, the petitioners in the above writ petitions have submitted their respective application seeking five seater auto permits, which were considered and proceedings granting permit were issued to them on the same day. In the meantime, the third respondents herein have re-presented their respective application on 24.12.2001 and on 26.12.2001, the second respondent passed an order stating that as per the Government Order, the ceiling fixed for granting permits for each District was 50 and the said quota in respect of Erode District where the third respondent and the petitioners applied for permit was already over, hence, there is no vacancy at present and advised them to apply afresh in future when it is called for. Aggrieved by the said order, the third respondent herein have filed their respective appeal in Appeal Nos. 90 to 93 of 2002 and challenging the grant filed respective revision in RP Nos. 14 to 17 of 2002 before the State Appellate Transport Tribunal/first respondent herein. After hearing both sides and after consideration of the available materials, the Tribunal, by common order dated 28.02.2005 allowed the appeals as well as revisions filed by the respective third respondent herein and remanded the matter to the second respondent for fresh consideration. While remanding the matter, the Tribunal also set aside the permits granted in favour of the respective writ petitioners herein, hence, the present writ petitions are filed challenging the order of setting aside the grant of permits as well as the order of remand passed by the Tribunal. 3. Mr. While remanding the matter, the Tribunal also set aside the permits granted in favour of the respective writ petitioners herein, hence, the present writ petitions are filed challenging the order of setting aside the grant of permits as well as the order of remand passed by the Tribunal. 3. Mr. Umapathy, learned counsel appearing for the writ petitioners submit that when the respective third respondent herein has alleged malafide, they should have impleaded the authority in personal capacity, but they failed to do so; that the malafide alleged also not proved; that the Tribunal came to an erroneous conclusion by applying Rule 166 of Tamil Nadu Motor Vehicle Rules, which is applicable only when the application is rejected, whereas, in this case, the applications submitted by the respective third respondent were just returned for certain compliance; that the respective third respondents herein have failed to enclose the requisite certificates namely Transport trade experience certificates as well as driving licence along with their applications, hence the same were returned; that the applications submitted by the writ petitioners were considered by the second respondent on merits and thereafter the proceedings were issued on 13.12.2001 granting permit to them; that the petitioners also invested money to purchase the vehicle and plying the same; that the Tribunal, without considering the above said facts has erroneously passed the orders impugned in these writ petitions and prayed for setting aside the same. 4. Mr. 4. Mr. Varadachari, learned counsel appearing for the third respondent in the above writ petitions submitted that the respective third respondent have submitted applications on 11.12.2001 before the second respondent, which were returned on 13.12.2001, however, the same were served on them only on 15.12.2001; that the said returns were made deliberately by the second respondent to accommodate the writ petitioners herein who have filed their applications only on 13.12.2001 and on the same day proceedings were issued granting permits in their favour; that the second respondent, knowing fully well that there are only 50 permits were allowed for each District deliberately returned the applications submitted by the respective third respondent herein which were earlier in point of time and entertained the applications submitted by the petitioners herein without insisting such certificates; that the reasons assigned by the second respondent for returning the applications submitted by the respective third respondent is invalid and contrary to Rule 166 of Tamil Nadu Motor Vehicle Rules, 1989; that the appellate Tribunal considered the above said facts and rightly set aside the grant of five seater autorickshaw issued in favour of the respective writ petitioners; that pending the above writ petitions, on the strength of the interim order granted by this Court, the respective writ petitioners are plying their vehicles and prayed for dismissal of the writ petitions. 5. On the above contention, I have heard the learned Additional Government Pleader apperaing for the respondents 1 and 2 and perused the material records. 6. The third respondent in the above writ petitions have submitted their respective application seeking five seater autorickshaw permits on 11.12.2001. Having waited for two days, their applications were returned on 13.12.2001 by the second respondent herein on the ground that they have not enclosed the transport trade experience certificate and driving licence. As rightly pointed out by the learned counsel for the third respondents, the writ petitioners have admittedly not enclosed such certificates, which is also evident from Page No.3 of the typed set of papers filed by the third respondent. When applications were received from the respective third respondent and also the petitioners, without the enclosures, the second respondent has chosen to reject only the applications of the respective third respondent and entertained the applications submitted by the writ petitioners by applying a different yardstick thereby discriminated the third respondents herein. When applications were received from the respective third respondent and also the petitioners, without the enclosures, the second respondent has chosen to reject only the applications of the respective third respondent and entertained the applications submitted by the writ petitioners by applying a different yardstick thereby discriminated the third respondents herein. The learned counsel for the third respondent further submitted that the second respondent chosen to return their applications only to eliminate them from the competition and to ensure that the petitioners are issued with permits. There is some force in the said argument of the learned counsel for the third respondent. 7. It is argued by the learned counsel for the petitioners that though the third respondents herein have alleged malafide, they failed to implead the authority in his personal capacity, besides that malafide also not proved. The said argument is untenable because when the records placed itself prove that there was an error apparent on the face of the record and the second respondent failed to apply the same yardstick in the application submitted by the respective third respondent in order to deprive them the benefit of getting grant of permits, that too when their applications are earlier in point of time, hence, it is not necessary for the third respondent to implead the second respondent in his personal capacity. Indeed, the Tribunal furnished more details in its order that the second respondent discriminated the third respondents with malafide intention. 8. The learned counsel for the petitioners argued that the Tribunal has failed to follow Section 214 of the Tamil Nadu Motor Vehicles Act, 1988, hereinafter referred to as Act, while setting aside the grant issued in their favour. Section 214 (3) of the Act says that no order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be that such error, omission or irregularity has in fact, occasioned a failure of justice. No doubt, the error or omission or illegality committed by the appellate authority is not a ground for reversing or setting aside the order, until the said error, omission or irregularity occasioned a failure of justice. No doubt, the error or omission or illegality committed by the appellate authority is not a ground for reversing or setting aside the order, until the said error, omission or irregularity occasioned a failure of justice. In this case, the respective application of the third respondent were returned by the second respondent on the ground that certain evidence were not enclosed. When the same evidence was not enclosed along with the applications submitted by the petitioners, the same were entertained and permits also granted by the second respondent on the same day of presentation, which occasioned a failure of justice, hence, the findings of the Tribunal in this regard is confirmed. 9. The second respondent, after re-presentation of the applications by the respective third respondent has passed an order stating that there is no vacancy available is also bad in law, hence, the said circumstance has come to exist on account of erroneous return of the applications submitted by the respective third respondent. 10. Mr. Varadachari, learned counsel for the third respondent argued that the second respondent has not followed Rule 166 of the Tamil Nadu Motor Vehicle Rules, 1989 in returning the application submitted by the respective third respondent. Rule 166 of Tamil Nadu Motor Vehicle Rules, 1989 runs as follows:- "166. Not to be rejected – grounds: The Transport Authority shall not reject an application for the grant or renewal of any permit or for the grant of or renewal of counter-signature of any permit on any or all of the following grounds namely- (i) When an application is presented to a Transport Authority not having jurisdiction (ii) When the form of application has not been correctly filled in: (iii) Where the prescribed fee has been omitted to be paid; and (iv) Where the application is not made in the prescribed form. (2) In every such case, the Transport Authority shall return the application for presentation to the Transport Authority concerned or for rectification of other defects informing the applicant of the correct procedure in the matter and giving him not more than seven days from the date of receipt of the communication to comply with such direction, failing which the application will stand rejected. The said Rule is not applicable to the facts and circumstance of the case since the second respondent has not rejected the application of the respective third respondent but only returned the same and hence the argument of the learned counsel for the third respondent in this aspect is rejected. 11. While remanding the matter back to the second respondent, the Tribunal directed to consider only the respective application of the third respondent herein on the basis of seniority and in accordance with Law. In so far as that portion of the order of the Tribunal is concerned, this Court is of the view that while remanding the matter, the Tribunal ought to have directed the second respondent to consider the respective application of the petitioner as well as the third respondent, hence, the order of the Tribunal is modified to that extent and the second respondent is directed to consider the applications of the respective third respondent as well as the writ petitioners on the basis of merits and seniority and also in accordance with law within a period of four weeks from the date of receipt of a copy of this order after affording an opportunity to them. 12. The writ petitions are disposed of in the above terms. No costs.