1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2334 OF 2001 Nandkumar Suresh Mayekar ] aged about 40 years, working as ] a seaman under Inspector, ] Customs and Central Excise, ] Dabhol, Maharashtra ].... Petitioner versus 1] Union of India, through ] Ministry of Law and Justice ] Ayakar Bhavan (Extension) ] Marine Lines, Mumbai 400 020 ] 2] The Collector, ] Customs and Central Excise, ] PMC Commercial Building ] Hira Baug, Tilak Road, Pune ] 3] Inspector of Customs and ] Central Excise, ] Dabhol, Maharashtra ].... Respondents. Shri G S Walia for the Petitioner Shri R R Shetty a/w Smt.Heena Shah for the Respondent No.1. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 18th June 2009 ORAL JUDGMENT : PER P.B.MAJMUDAR, J. 1. The Petitioner is working under the Respondents as a seaman since 1st March 1988. The grievance of the Petitioner is in connection with not giving him benefit of permanency even though he is in the employment of the Respondents since more than 21 2 years. The Petitioner was appointed on 1st March 1988 as a seaman on daily wages basis and he is in continuous service as on date. 2. So far prayer regarding regularisation is concerned, the Petitioner preferred an Original Application No.529 of 1999 before the Central Administrative Tribunal, Mumbai Bench. The tribunal by its order dated 31st January 2001 dismissed the said Original Application No.529 of 1999 by holding that the tribunal is not competent to order regularisation, in absence of the Applicant s posessing the requisite educational qualification. It is pertinent to note that the tribunal on the very same day decided and allowed other three Original Applications being O.A. Nos.528/99, 530/99 and 548/99. So far as the aforesaid three Original Applications are concerned, the Applicants in those three Original Applications had also prayed for regularisation of their services as they were also appointed as daily wages seaman i.e on the same basis as the present Petitioner. 3 3. The Department opposed all the Original Applications before the tribunal. The stand of the Department was that since the Applicants in all the Original Applications were not appointed through the Employment Exchange and they were not possessing requisite educational qualifications as they have not passed standard VIII to get the benefit of regularisation. It is required to be noted that point involved in the said three Original Applications and the Original Application of the present Petitioner was identical. The tribunal by its order, passed on the same day i.e. On 31st January 2001, allowed the aforesaid three Original Application Nos.528/99, 530/99 and 548/99, but dismissed the Original Application No.529 of 1999 of the present Petitioner. 4. The learned counsel for the Petitioner submitted that when the factual aspect involved in all the Original Applications were common, the order of the tribunal, in allowing the aforesaid three Original Applications and rejecting the Original 4 Application of the present Petitioner on the same day, is not sustainable. It is submitted by the learned counsel for the Petitioner that so far as educational qualification is concerned, the Petitioner has studied up to 10th standard whereas the Applicants in other three Original Applications have lesser educational qualifications than the present Petitioner. In spite of that the tribunal has allowed the said three Original Applications and rejected the Original Application of the present Petitioner even though the Petitioner possessed better educational qualifications. 5. The learned counsel for the Department, however, submitted that the tribunal committed an error in allowing the said three Original Applications as the tribunal should not have allowed the said Original Applications in view of the fact that the Applicants in the said three Original Applications were not having requisite educational qualifications. 5 6. We have heard the learned counsel for the parties and we have gone through impugned order as well as the order passed by the tribunal in the said three Original Applications which are annexed at Exhibits A and B to this Petition. 7. So far as decision given by the tribunal in the case of the present Petitioner is concerned, in paragraph 9 of its order, the tribunal observed that the decision given by the tribunal in earlier Original Application No.1094 of 1997 is concerned, the same was in connection with the Telecommunications Department and as per the scheme of regularisation of the said department, that benefits were given, while the instant case is against Central Excise and Customs Department and, therefore, the said precedent and scheme cannot be made applicable so far as Excise and Customs Department is concerned. 8. So far as other three Original Applications are concerned, the Applicants in the said Applications were of the same Department i.e. Customs 6 Department where the present Petitioner is serving. The factual aspect involved in the Original Application of the present Petitioner as well as in the aforesaid three Original Applications is absolutely identical. Even the stand taken by the Department was also similar, namely that the Applicants were not appointed through the employment exchange and they were not having requisite educational qualifications. The learned counsel for the Respondents is also not in a position to dispute the said aspect that the facts and issue involved in all the cases before the tribunal were identical. 9. In paragraph 12 of its order in the aforesaid three Original Application, the tribunal observed thus :- The order relied on by the Applicants counsel in OA.No.385/89 Anwar Ismail Wadkar vs. Union of India & Ors deals with the Department of Central Excise and Customs who are Respondents in the present case also. Hence the said order squarely applies to the present case. 7 The tribunal allowed the said three Original Applications by observing in paragraph 14 that :- In the result, OAs are allowed and the Respondents are directed to regularise the Applicants in a phase manner when regular posts become available and the Applicants are entitled from the date of filing of the OA equal pay at part with the persons appointed on regular basis to the similar posts/discharge similar duties. The difference of the same to be paid within 3 months from the date of receipt of the copy of the order. No order as to costs. 10. We have perused both the orders passed by the tribunal on the same day. We are not in a position to appreciate as to how the tribunal has taken a different stand so far as Original Application of the present Petitioner is concerned. We are not in position to accept the submissions of Smt.Heena Shah, the learned counsel appearing for the Respondent No.1 that the tribunal had committed an error while allowing the said three Original Applications as it is an admitted fact that the Respondent No.1 has 8 already accepted the decision and has given benefit of regularisation to the said Applicants. Once a Court decides the case on a particular factual basis, then consistency is required to be maintained. If on the basis of identical facts and same basis the tribunal has given the benefits to the Applicants in the said three Original Applicants, the same benefits should have been given by the tribunal to the present Petitioner as consistency in passing judicial order is required to be maintained so that no litigant may go with the feelings that even though the facts were identical, the decision given by the Court is different. Even otherwise when the Department has accepted the judgment of the tribunal in earlier cases, there is no reasons as to why the Department should be given similar benefits to the present Petitioner. At this stage, the learned counsel for the Petitioner relied upon the decision of the Supreme Court in case of Bhagwati Prasad v/s. Delhi State Mineral Development Corporation reported in 1990 SCC(L&S) 174 wherein it has been held that when daily rated workers serving for long with artificial breaks in service, benefit of continuous service 9 should be given to them and whether they possessed minimum educational qualification is the question relevant at the stage of appointment and not at the stage of confirmation when workers gained long practical experience. 11. The learned counsel for the Respondent submitted that the tribunal has passed a wrong order in the said three Original Applications as the order of the tribunal is dehors the rules. However, in our view, since the Respondent No.1 has already accepted that judgment and the benefits were given to the said Applicants, there is no reason to single out the present Petitioner from the said treatment. Therefore in our view, the benefits, which are given to the Applicants in the said three Original Applications, should also be extended to the present Petitioner by the Respondent No.1 and that whatever benefits have been given to the Applicants in other three Original Applications, same should be given to the present Petitioner also in a similar manner. 10 12. Considering the facts and circumstances of the case, in our view, the above Petition is required to be allowed on the short ground that in the identical facts the tribunal allowed the said three Original Applications and rejected the Original Application of the present Petitioner. It is not in dispute that the Applicants in the said three Original Applications were holding educational qualifications which are even lesser than that of the present Petitioner. We are not in a position to accept the reasoning given by the tribunal so far as the Original Application of the present Petitioner is concerned as it was expected from the tribunal to give similar treatment to all the Applicants whose case is based on identical facts. Considering the aforesaid aspect, in our view, the impugned order dated 31st January 2001 passed by the tribunal in Original Application No.529 of 1999 is required to be quashed and set aside and the directions given by the tribunal in the order dated 31st January 2001 in the said Original Application Nos.528/99, 530/99 and 548/99 are also required to be followed in the case of the present Petitioner. As stated above, the 11 Department has already accepted the judgment of the tribunal and necessary benefits have been given to those three Applicants. 13. Accordingly this Petition is allowed. The benefits, which have been given to the Applicants in other three Original Application Nos. 528/99, 530/99 and 548/99, should be made available to the present Petitioner from the date on which the said benefits were given to the Applicants in the aforesaid three original applications. It is made clear that whatever benefits the present Petitioner is entitled on the aforesaid basis, should be given to him within a period of three months from date of the present order. Rule is made absolute in the aforesaid terms. No order as to costs. Sd/- sd/- [R.M.SAVANT, J] [P.B.MAJMUDAR, J]