Point of Law: In order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it.

JUDGMENT :

Dipankar Datta, J.

THE CHALLENGE

1. Aggrieved by the judgment and order dated December 4, 2014 passed by the Central Administrative Tribunal, Mumbai Bench at Mumbai (hereafter “the Tribunal”, for short) in Original Application No.400 of 2012, the respondents in such application have invoked the writ jurisdiction of this Court by presenting this application under Article 226 of the Constitution of India. The Tribunal allowed the original application by ordering as follows:

“(a) In the result the Original Application is allowed;

(b) The impugned order dated 14.03.2011 (Annexure A-1) rejected request of the applicant for regularization of services is set aside;

(c) Consequently, it is declared that the applicant is entitled to claim regularization of service in the sanctioned vacant post of Examiner of Trade Marks with effect from 01.06.2012, since continuation on contract basis was refused to her after 31.5.2012;

(d) The Respondent No.2 is, therefore, directed to issue necessary office order regarding appointment of the applicant as Examiner of Trade Marks in regular/sanctioned vacant post by the end of this month and allow her to join on duty latest by 01.01.2015 in the said post;

(e) The applicant will not however be entitled to get any monetary benefit from 01.06.2012 till the actual date of joining. She will, however, be entitled to receive full pay applicable to the said post as per rules;

(f) Compliance report of the above directions be submitted by Respondent No.2 to this Tribunal within sixteen weeks from the receipt of this order.”

2. The legality and validity of the impugned judgment and order is challenged by the petitioners essentially on the ground that despite the Supreme Court in a catena of decisions having ruled that regularization cannot be a source of recruitment, the Tribunal by distinguishing all of them, indeed erroneously, proceeded to grant such relief to the original applicant (hereafter “Smt. Lalita”, for short) which was not even prayed by her.

THE FACTS

3. We propose to consider the rival contentions advanced at the Bar after completing the brief factual narrative giving rise to the original application.

4. Smt. Lalita was offered appointment on October 16, 2001 as an ‘Examiner of Trade Marks’ on contract basis on a temporary post by the petitioner no.2, the Controller General of Patents, Design & Trade Marks (hereafter “the Controller”, for short). She accepted the terms and conditions of the offer and joined as Examiner pursuant to an Office Order dated November 5, 2011. This order recorded that she was being engaged purely on contract basis as ‘Examiner of Trade Marks’ with effect from October 31, 2001, initially for a period of six months. The said appointment was continued from time to time on the same terms and she continued to work as such examiner. Having rendered more than 10 years of meritorious service, Smt. Lalita prayed in her representation dated December 27, 2010 for regularization in service. It was her assertion that she deserved to be regularized in service on the post of ‘Examiner of Trade Marks’ since she participated in a process of selection and was selected, and there was no question of she having gained a back-door entry into service. However, her representation was rejected by the Controller by an order dated March 4, 2011, whereafter she approached the Tribunal on March 17, 2012. There was a subsequent order dated May 16, 2012, issued by the Controller continuing her as ‘Examiner of Trade Marks’ till May 31, 2012 only, and not beyond it, which was also challenged as illegal and void by amending the original application.

5. For facility of appreciation of the petitioners’ contention that relief has been granted to Smt. Lalita by the Tribunal beyond the prayers made, we quote below the prayer clauses in the original application:

“a. This Hon’ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set asi