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Karnataka High Court · body

2011 DIGILAW 591 (KAR)

Namrata Hallur, Bagalkot v. State of Karnataka

2011-06-13

H.S.KEMPANNA, K.L.MANJUNATH

body2011
Judgment :- 1. Writ Petition No.30317/2010 and Writ Petition No.30423/10 are filed by the Karnataka Public Service Commission challenging the legality and correctness of the order passed by the Karnataka Administrative Tribunal, Bangalore on Applications No.249-254/10 connected with Application Nos.447 & 486/10. Writ Petition No.36819/10 is filed by the State of Karnataka challenging the very same order passed by the Karnataka Administrative Tribunal. Writ Petition No.29097-29121/10 and Writ Petition No.29310-29359/10 are preferred by certain individuals who were not parties in the aforesaid applications. These petitions are filed by the persons who are not parties before the Karnataka Administrative Tribunal in the aforesaid petitions except one of the petitioner by name Mohd. Jowher Khalid who was Respondent-3 in application No.486/10 before the Karnataka Administrative Tribunal. 2. We have heard Sri. Udaya Holla, learned senior counsel appearing for the individual Writ Petitioners, Sri. Nanjunda Reddy, learned senior counsel appearing for the Karnataka Public Service Commission and Smt. Sheela Krishna, learned AGA and Sri. Ranganatha Jois who is appearing for the applicants before the Tribunal who are Respondents in these Writ Petitions. 3. The facts leading to this case are as hereunder: The Karnataka Public Service Commission issued a notification on 2.6.2008 inviting applications from the eligible candidates to fill up the post of Drugs Inspectors. Pursuant to the notification, applicants before the Karnataka Administrative Tribunal and the Writ Petitioners in W.P.No.29097-29121/10 and 29310-29359/10 along with others filed their Applications for recruitment to the post of Drugs Inspectors. The selection process was made by the KPSC and in the selection final list was published selecting the petitioners in W.P.No.29097-29121/10 and petitioners in 29310-29359/10. Challenging the select list, the applicants approached the Karnataka Administrative Tribunal on the ground that the applicants in addition to holding a degree in Pharmacy are also having experience of more than 3 years in the manufacture of schedule C and C1 drugs included in Drugs and Cosmetics Rule, 1945. Most of the candidates who have been selected in the select list did not possess the required experience of 3 years in the manufacturing of schedule C and C1 drugs included in the Drugs and Cosmetics Rule, 1945 and the method of selection followed by the KPSC is bad in law and requires to be set aside on the ground the experience of the applicants has not been considered even though they were eligible and qualified. Accordingly, they approached the Karnataka Administrative Tribunal for quashing the select list. 4. The KPSC filed a detailed counter. According to the KPSC as per the Karnataka Civil Services (Direct Recruitment by Competitive Examinations & Selection) (General) Rules 2006, the KPSC has selected the candidates strictly in accordance with 2006 Rules in respect of the post in Group A, B, C and D who are to be filled by direct recruitment for which no special or general rules have been made prescribing the method for such direct recruitment. According to the KPSC method of selection has been made in Rule-5 and how such candidates has to be selected is found in Rule-6. Following Rules-5 and 6, final selection of candidates has been announced as per Rule 8. The contention of the applicants that Rule 2006 have no application and that the experience of 3 years has to be considered first while preparing the eligible candidates ignoring the merit of the candidates does not stand to reason. Further, according to them, in the notification of 7th April 1986, the qualification for recruitment of Drugs Inspectors is, he must be a holder of degree in Pharmacy and must have put in 3 years of experience in the manufacturing of Schedule C and C1 drugs included in the Drugs and Cosmetics Rules 1945. But of a person without experience is not available then only a person with a degree in Pharmacy was required to be considered. But in 2002, Rules were amended and as per the said Rules, method of recruitment to the post of Drugs Inspector shall be: 1) Must be a holder of decree in Pharmacy 2) Preference shall be given to persons who have put in service of not less than 3 years of experience in the manufacturing of schedule C or C1 drugs included in the Drugs and Cosmetics Rules 1945. 5. Relying up 2002 Rules, it was contended by the KPSC that the preference to the experienced hands shall be considered only if they compete with the other eligible candidates who are only a degree in Pharmacy without having any experience. 5. Relying up 2002 Rules, it was contended by the KPSC that the preference to the experienced hands shall be considered only if they compete with the other eligible candidates who are only a degree in Pharmacy without having any experience. Further it was contended that as per Karnataka Civil Services (Direct Recruitment by Competitive Examinations & Selection) (General) Rules 2006, when no special examination is required to be conducted, eligibility shall be based on the percentage of mark secured in such qualifying examination and the same shall be the basis for determination of order of merit. However, preferential or desirable qualification would be considered only to make them eligible for interview irrespective of the marks obtained in the qualifying examination. 6. It is the case of the KPSC that if candidates who are having an experience of 3 years in manufacturing of drugs though has secured less marks in the qualifying D.Pharma examination, shall be called for interview based on his experience as a preference. But such preference shall be subject to interse merits of all the candidates. According to the KPSC, applicants before the KAT were eligible for appearing for an interview. But considering the interse merit in the qualifying examination of D Pharma and the marks secured in the viva-voce they were found in-eligible. Therefore, their names did not appear in the final select list. In the circumstances it was contended the petition filed by the applicants was not maintainable and liable to be rejected. 7. The Govt. has supported the case of the stand of the KPSC. 8. As stated supra, except one candidate who was 3rd Respondent in Application No.486/10 the remaining petitioners were not parties before the KAT. The Tribunal considering the arguments advanced by the parties, by its order dt. 1st September 2010 allowed the petition and set aside the select list and directed the KPSC to take up the process of selection to the post of Drugs Inspectors from the stage of occurrence of irregularity and take further steps to prepare the merit list giving due preference to the experienced candidates as was contained in the earlier process of selection in 2007 and finalise the selection of Drugs Inspectors as expeditiously as possible. This order is called in question in these Writ Petitions. 9. Mr. This order is called in question in these Writ Petitions. 9. Mr. Nanjunda Reddy, learned senior counsel appearing for the KPSC taking us through the order of the KAT and the Karnataka Civil Services Rules (Direct Recruitment by Competitive Examinations and Selection) (General) Rules of 2006 and the Recruitment Rules of 2002 for the Karnataka Health & Family Welfare Services (Drug Control Department Non-teaching Staff) (Recruitment) Rules, 2002, contends that the Tribunal committed a serious error in directing the KPSC to prepare a separate merit list by giving preference to the experience and then to include the names of the candidates who did not possess the experience foregoing the General Recruitment Rules which prescribe the method for which Direct Recruitment has to be made. According to him, the order passed by the KAT is in utter violation of Rules on 2006. According to him 2006 Rules, has been wrongly interpreted by the KAT which resulted in causing injustice to the selected candidates who have been selected purely in accordance with the notification issued by the KPSC for selection and in accordance with Rules 2006. In the circumstances, he requests the court to reconsider the entire case as the Tribunal has exceeded its jurisdiction in setting aside the selection list without following the rules and by wrong interpretation of the rules has directed KPSC to select the candidates contrary to the rules and regulations of the State. According to him, the applicants before the KAT by virtue of their experience of 3 years were entitled to be included in the list for the interview even though they had secured less marks in D.Pharma examination. But as a matter of fact of right they cannot contend that they had to be placed above the meritorious candidates. He further contends that KPSC has set apart 85 marks to prepare the list of meritorious candidates based on the marks obtained in the qualifying examination and 15 marks only for viva-voce and thus persons who had experience of 3 years were also included in the list prepared for calling the interview considering the preference to be given to such candidates and based on the marks obtained in the qualifying examination + viva voce following Rules5, 6 and 8, final selection list has been made. Therefore, he requests the court to set aside the findings of the KAT and consequently the impugned order challenged in the petitions. 10. The Govt. Advocate supporting the arguments of Mr. Nanjunda Reddy submits that no error is committed by KPSC in preparing the final select list and she requests the court to allow the petitions filed by the State of Karnataka. 11. Mr. Udaya Holla, who is appearing for the individual candidates who have been selected contends that except one petitioner remaining petitioners were not parties before the KAT. As these petitioners are selected candidates since the Kat passed the order behind their back which has adversely affected their future have preferred the Writ Petitions with the leave of the court and therefore their Writ Petitions has to be considered on merits. According to him, in addition to what has been canvassed by Mr. Nanjunda Reddy, submitted that the word used ‘preference’ ought to have been considered by the Tribunal by following the Judgment of the Hon’ble Supreme Court in SECRETARY, ANDHRA PRADESH PUBLIC SERVICE COMIMISISON VS. SRNINVASAIAH ( 2003 (5) SCC 341 ). He further submits that by virtue of experience of 3 years they cannot take away the rights guaranteed to the meritorious candidates as per 2006 Rules. He contends that the Tribunal has exceeded its jurisdiction in not properly considering the method of Recruitment Rules. According to him for the first time in 2006, for Grade A, B, C and D officers, the Govt. has prescribed the method of direct recruitment. Therefore, the KPSC is justified in including the applicants before the KAT in calling for interview based on their experience as an additional qualification even though they have secured less marks in the qualifying examination. In the circumstances, he requests the court to allow the Writ Petitions filed by the individuals by setting aside the orders of the KAT. 12. Sri. Ranganath Jois, the learned counsel who is appearing for the Respondents in these Writ Petitions and the applicants before the KAT contends that the Writ Petitions filed by the selected candidates is not maintainable except in the case of Mohd. Jowher Khalid. According to him, the remaining individual Writ petitioners who are not parties before the KAT cannot directly file the Writ Petitions since they were not parties before the KAT. Jowher Khalid. According to him, the remaining individual Writ petitioners who are not parties before the KAT cannot directly file the Writ Petitions since they were not parties before the KAT. According to him, they have to approach the KAT at the first instance and thereafter they have to approach this court in view of the law laid down by the Hon’ble Supreme Court in RAJEEV KUMAR AND ANOTHER VS. HEMRAJ SINGH CHAUHAN & OTHERS reported in 2010 AIR SCW 2238. He further contends that there was no necessity for the applicants to make the selected candidates as Respondents before the KAT since the Govt. was directed to issue appointment orders to the selected candidates subject to the result of the applications before the KAT. According to him since the pendency of the applications were known to the selected candidates, it was open for them to come on record. In the circumstances, he submits that the Writ Petitions filed by the persons who are not parties before the KAT has to be dismissed in limine. He further contends as per Rule 49 of the Drugs and Cosmetics Rules 1945, a qualification for the appointment of a Drugs Inspector was a degree in Pharmacy or Pharmaceutical Sciences or Medicine with specialisation in Clinical Pharmacology or Microbiology from a University and who have not less than 18 months experience in testing of atleast one of the substances in schedule C in a laboratory approved for this purpose by the Licensing Authority or who have gained experience of not less than 3 years in the inspection of firm, manufacturing and of the substances specified in schedule C during the tenure of their service as Drugs Inspectors. Similarly relying upon 1985 Rules, he contends that for appointment of Drugs Inspector a person shall hold a degree in Pharmacy and he shall have an experience of 3 years in the manufacturing schedule C and C1 drugs included in the Drugs Rules 1986. Therefore, a person who is not having experience of 3 years would get himself eligible to appoint to the said post only in the absence of person who is not having any experience of 3 years. Therefore, a person who is not having experience of 3 years would get himself eligible to appoint to the said post only in the absence of person who is not having any experience of 3 years. Therefore, he contends even though 2002 Rules says preference shall be given to the persons who have put in service of not less than 3 years, in the earlier round of selection, the KPSC has selected candidates by giving preference to the persons who had an experience of 3 years ignoring the interse merits of the candidates in the degree of Pharmacy. According to him when the KPSC has followed the procedure to select the persons of experience of 3 years and only if such persons are not there, a person who is having a Pharmaceutical degree was selected earlier. For the first time they cannot change the method of selection and such selection would affect the candidates who are having 3 years of experience. Therefore, he contends that the Tribunal is justified in directing the KPSC to prepare the meritorious list placing the persons who are having experience at the top, thereafter the persons who do not possess an experience and who are having only a degree in Pharmacy. To support his arguments, he relied upon the Judgment of the Hon’ble Supreme Court in SURINDER SINGH V. UNION OF INDIA & OTHERS reported in JT 2007 (5) SC 164, GOVERNMENT OF ANDHRA PRADESH V. P.DILIP KUMAR reported in (1993) 2 SCC 310 and also the Judgment in STATE OF U.P. & ANOTHER VS. SANTHOSH KUMAR MISHRA & ANOTHER reported in 2010 AIR SCW 6293. Relying upon these 3 Judgments, his principal contentions are that change of method of recruitment defeat the earlier procedure which has to be deprecated and the Judgment of the KAT has to be up help in view of the Judgment in the case of STATE OF U.P. V. SANTHOSH KUMAR MISHRA rendered by the Hon’ble Supreme Court. Further relying upon the Judgment of the Supreme Court in DILIP KUMAR’s case he submitted that the person of experience of 3 years has to be given preference to while selecting the candidates who are not possessing an experience of 3 years. Relying upon SURINDER SINGH’s case, when higher qualification is possessed by a candidate, such candidate shall be preferred than the candidates who are not having an higher qualification. 13. Relying upon SURINDER SINGH’s case, when higher qualification is possessed by a candidate, such candidate shall be preferred than the candidates who are not having an higher qualification. 13. Per contra, Mr. Udaya Holla, learned senior counsel for the individual Writ Petitioners submits that even though the Writ Petitioners were not parties before KAT except Mohd. Jowher Khalid, they have a right to file an application before the KAT or to file a separate Writ Petitions seeking leave of this court since they are aggrieved persons. According to him, even if a review petition is filed, KAT cannot take a different view than the one already taken since one of the selected candidate Mohd. Jowher Khalid has been heard in the matter. According to Mr. Holla, the Hon’ble Supreme Court in RAJEEV KUMAR & ANOTHER V. HEMRAJ SINGH CHAUHAN & OTHERS have referred only CHANDRA KUMAR’s case. But their Lordship did not consider the other Judgment of the Supreme Court where the Hon’ble Supreme Court has ruled that an aggrieved person though not a party can file an appeal with the leave of the court. Therefore, he requests the court to over rule the objections raised by Mr. Ranganath Jois. In the alternative he also contended even in the case of the petitioners who are not parties before the KAT, since one of the petitioner Mohd. Jowher Khalid was a party, as the contentions raised by all the petitioners are one and the same, the Writ Petitions filed by the petitioners who are not before the KAT has to be considered by this court as the Judgment that would be rendered by this court in the Writ Petition filed by the KPSC, State of Karnataka and the Writ Petition filed by Mohd. Jowhar Khalid would be same since there cannot be any divergent decisions by this court. He further contended how the word ‘preference’ has to be interpreted and relying upon the Judgment of the Hon’ble Supreme Court in SECRETARY A.P. PUBLIC SERVICE COMMISSION V. Y.V.V.R. SRINIVASULU & OTHERS ( (2003) 5 SCC 341 ) in para-9, 10 and 11 of the aforesaid Judgment, he requests this court to consider the word used ‘preference’ is capable of different shades of meaning taking the colour from the context, purpose and objects of its use under the scheme of things envisaged. Taking us through the General Recruitment Rules 2006, he contends when Rules are framed by the State and method of selection is envisaged under the Rules, the purpose of giving inclusion of preference is also mentioned in Rule 6. Therefore, how Rule-6 has to be interpreted is clearly mentioned in the Recruitment Rules. In the circumstances, he contends none of the Judgment relied upon by Mr. Ranganath Jois are applicable to the facts and circumstances of this case. According to him, the experience would be considered as an higher qualification. When Rule 6 says that such preference would be considered only for the purpose of sending an interview even though such candidates who have secured less marks i.e. only the preference that these applicants can claim. According to him, if these applicants had not received the interview for viva voce then they could have challenged the action of the KPSC. But in the instant case even though they have secured less marks in D.Pharma, by virtue of their experience they were allowed to face viva voce. Therefore, the applications filed by the applicants were misconceived. According to him, KPSC has also selected some of the candidates with experience of 3 years who falls in the category of merits. When the applicants do not fall within the said category by mere possessing of 3 years of experience they cannot contend that they have to be selected first ignoring the merits of the other eligible candidates. 14. Mr. Nanjunda Reddy as well as Sri. Udaya Holla contends that contrary to Rules 2006, if the KPSC has selected the candidates in the earlier order contrary to the Rules, the same cannot be a ground to contend that the mistake committed by the KPSC would be allowed to continue forever perpetuating the mistake committed by it. Any recruitment made contrary to the Rules on the previous occasion may not be a ground for the present applicants to request this court to direct the KPSC to commit the mistake contrary to the Rules and statute. According to them, if some mistake has been committed on the earlier occasion it was for the unsuccessful candidates in the said selection list to challenge the same. But on the said ground no court can direct KPSC to commit the mistake which was contrary to the Recruitment Rules. According to them, if some mistake has been committed on the earlier occasion it was for the unsuccessful candidates in the said selection list to challenge the same. But on the said ground no court can direct KPSC to commit the mistake which was contrary to the Recruitment Rules. According to them, the KAT has committed a mistake in directing the KPSC to select the applicants who are not eligible to be selected as per 2006 Rules. Therefore, they request the court to allow these petitions. 15. Having heard the counsel for the parties, the following points arise for consideration in these petitions: 1) Whether the method followed by the KPSC in selecting the candidates who are having Pharmacy degree and do not possess experience of 3 years, purely based on the marks secured by them in Pharmaceutical degree and in the viva voce is correct. 2) Whether the KPSC was required to consider the applicants herein as more meritorious than the persons who have secured more marks in the qualifying D Pharma examination only on the ground of their experience of 3 years in the field of Pharmacy. 3) Whether the Tribunal has committed an error which calls for our interference under Article 227 of the Constitution of India. 16. The following points are not in dispute in these petitions: To fill up the post of Drugs Inspectors, KPSC has issued notification on 2.6.2008 and this notification has been issued by following the Karnataka Civil Services (Direct Recruitment by Competitive Examinations and Section) (General) Rules 2006, which provides for the method for such direct recruitment to all the posts in group A, B, C and D of the state. It is not in dispute that the post of the Drugs Inspectors falls under the category Group-C. 17. Rule-5 reads as hereunder: “5. Method of selection:- The method of direct recruitment under these rules shall be on the basis of average of total percentage of marks secured in the qualifying examination in respect of technical posts and percentage of total marks secured in the competitive examination conducted by the Commission under Rule 6-B of these rules in respect of non-technical posts and the marks secured in an interview conducted by the Commission.” Rule 6 reads as hereunder: “6. Section of candidates eligible for interview:- The Commission shall prepare a list of names of candidates eligible for interview prepared on the basis of merit determined in the following manner, namely- (A) In respect of technical posts- (i) Where only one qualifying examination is prescribed, the percentage of marks secured in such qualifying examination shall be the basis for determination of order or merit. Provided that where the rules of recruitment to any cadre or post prescribe any preferential or desirable qualification (whether academic or otherwise), then all candidates possessing such qualifications shall be eligible for interview, irrespective of the marks obtained in the qualifying examination. (ii) Where the qualifying examination consists of more than one examination the percentage of total marks secured in the qualifying examination shall be the average percentage of marks secured in those examinations for determination of order or merit; (iii) Where different qualifying examinations have been prescribed alternatively in the rules of recruitment applicable to a post or category of posts and a candidate has passed more than one such qualifying examination the percentage of total marks obtained in the qualifying examination shall be the percentage of total marks obtained in such qualifying examination in which qualifying examination in which he has obtained highest percentage of total marks for determination of order or merit; (iv) Where the qualifying examination prescribed is a Doctorate obtained on the basis of thesis submitted by the candidate, the percentage of marks secured by the candidates in the qualifying examination shall be deemed to be ninety-five. (v) Subject to reservation policy of the State, from among the candidates whose names are included in the list of candidates, such number of candidates as is equal to five times the number of vacancies notified shall be called for interview; (vi) The maximum marks for interview shall be fifteen.” 18. We have not extracted Rule 6 in full because we are not concerned in respect of non-technical post which requires conducting a competitive examination. Under 2002 Rules, the qualification prescribed to fill up the post of Drugs Inspector is as hereunder: “12. Drugs Inspector (Rs.6000-11200) For Director Recruitment: (1) Must be holder of a Degree in Pharmacy. We have not extracted Rule 6 in full because we are not concerned in respect of non-technical post which requires conducting a competitive examination. Under 2002 Rules, the qualification prescribed to fill up the post of Drugs Inspector is as hereunder: “12. Drugs Inspector (Rs.6000-11200) For Director Recruitment: (1) Must be holder of a Degree in Pharmacy. (2) Preference shall be given to persons who have put in a service of not less than three years of experience in the manufacturing of schedule C and / or C1 Drugs included in the Drugs and Cosmetics Rules, 1945.” 19. Now in this context, we have to consider what would be eligibility criteria to fill up the post of Drugs Inspectors and the method to be followed by the KPSC to recruit these officers. 20. Sri. Ranganath Jois, the learned counsel appearing for the Respondents (Applicants before KAT) is not challenging either the Recruitment Rules 2002 or qualification prescribed under 2002 rules of the Karnataka Health & Family Welfare Services (Drugs Control Department Non-teaching staff) (Recruitment) Rules, 2002. Therefore what is required to be considered by us in these petitions is whether the method of selection of the Drugs Inspectors is in accordance with the 2002 Rules or not. If the selection made by the KPSC is contrary to these 2002 Rules, then we have to dismiss these petitions by up holding the order passed by the KAT. 21. In 2002 Recruitment Rules to the post of Drugs Inspectors, provides a qualification that an applicant shall be an holder of a degree in Pharmacy and that a preference would be given to a person who has put in a service of not less than 3 years of experience in the manufacturing schedule C and C1 drugs included in the Drugs & Cosmetics Rules 1945. 22. It is not in dispute that some of the candidates who are having an experience of 3 years have also been selected. But the applicants who have not been selected are having experience of 3 years but their grievance is that they are not selected. 23. But General Recruitment Rules 2006 provides how these preference has to be considered. 22. It is not in dispute that some of the candidates who are having an experience of 3 years have also been selected. But the applicants who have not been selected are having experience of 3 years but their grievance is that they are not selected. 23. But General Recruitment Rules 2006 provides how these preference has to be considered. We have already extracted Rule 6 (A) which provides that in respect of a technical course post only one qualifying examination is prescribed, the percentage of marks secured in such qualifying examination shall be the basis for determination of order on merit. But if any preferential or desirable qualification (whether academic or otherwise), is possessed then all such candidates possessing such qualifications shall be eligible for interview irrespective of the marks obtained in the qualifying examination. 24. From this it is clear that eligibility criteria is fixed based on the marks secured in the clinical examination (A degree in Pharmacy). But even a candidate who has secured less marks in such qualifying examination on account of his experience of 3 years he is eligible for interview. But other than this the experienced candidate who has secured less mark has no other preference for seeking selection. 25. Then Rule-6 further reads how the percentage of total marks secured in the qualifying examination shall be considered and it further state the maximum marks for interview shall be only 15. If it is so, it is clear that 85% of the marks shall be considered purely on percentage of marks secured in the qualifying examination for preparing the merit list only 15 marks shall be considered for viva voce. As stated supra the person who are having experience would be eligible to get an interview irrespective of the marks obtained in the qualifying examination. 26. From the above Rule, it is clear that the KPSC has no other option than to follow General Recruitment Rules of 2006. But unfortunately the applicants have not contended how KPSC has committed an error in following 2006 Rules. The Tribunal without giving due regard to these recruitment Rule holding in the earlier order of recruitment, this process was not violated by the KPSC and that the experienced candidates shall be placed above more meritorious candidates who has secured more marks, has set aside the method of selection. The Tribunal without giving due regard to these recruitment Rule holding in the earlier order of recruitment, this process was not violated by the KPSC and that the experienced candidates shall be placed above more meritorious candidates who has secured more marks, has set aside the method of selection. This is according to us is a grave error and illegality committed by the Administrative Tribunal. Merely because a mistake was committed in the earlier round of selection, no court or Tribunal can direct KPSC to continue the earlier mistake committed perpetually and if the court or Tribunal were to subscribe for such practices, it is contrary to the rules and precedents and the law laid down by the Supreme Court in various decisions. Therefore, we are of the view that the applicants before the KAT had only a right to seek interview by virtue of their experience of 3 years even though they had secured less marks. Other than this preference they have no other preference in the method of selection. 27. It is not the case of the applicants before the Tribunal that the selected candidates secured less marks. Even the Tribunal has not considered this point at all. We would have appreciated the arguments of Mr. Ranganath Jois, if the applicants had secured more marks than any one of the selected candidates. In such an event we would not have interfered with the order passed by the KAT. But in the instant case without considering the interse merits of the selected and non-selected candidates on erroneous reason the Tribunal has set aside the finding. It would be useful for us to refer to the Judgment of the Hon. Supreme Court in the case of VISHAL PROPERTIES (P) LTD Vs. STATE OF UTTAR PRADESH AND OTHERS (2007) II SCC 172, whereunder their Lordship have held: “Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality any action/order contrary to law does not confer any right upon a person for similar treatment.” Therefore the dictum of Supreme Court is not to direct any party to perpetuate wrong action done earlier. A similar view is also expressed by their Lordship in STATE OF U.P. AND OTHERS Vs. It provides for positive equality and not negative equality any action/order contrary to law does not confer any right upon a person for similar treatment.” Therefore the dictum of Supreme Court is not to direct any party to perpetuate wrong action done earlier. A similar view is also expressed by their Lordship in STATE OF U.P. AND OTHERS Vs. RAJKUMAR SHARMA AND OTHERS reported in ( 2006 3 SCC 330 ), wherein the Hon’ble Supreme Court has ruled that the Supreme Court cannot direct any authority to repeat the wrong action done by it earlier whether an High Court or Tribunal. But unfortunately in this case, the Tribunal having stated that even though an earlier action was contrary to 2006 General Recruitment Rules, has directed the KPSC to follow the mistake committed earlier and prepare the final select list which in our view cannot be sustained. Therefore, all the three points formulated are held against the applicants. 28. So far as the point raised by Mr. Ranganath Jois that the writ Petitions filed by the petitioners who are not parties before the Tribunal, is not maintainable, we are of the view that such point can be considered at appropriate stage in appropriate case since we are allowing the Writ Petitions filed by the KPSC as well as the Government and also a contesting Respondent who was party before the Tribunal. 29. Keeping open the said question, these petitions area allowed. Rule is made absolute. The order passed by the KAT on 1st September 2010 in Application Nos.249 to 254/10 connected with 447 and 486/10 is hereby set aside. The application filed by the respective applicants before the KAT is hereby rejected. Parties to bear their costs.