HC recalls order on grounds that notice was not served to respondent

CHENNAI: A division bench of Justices R Subramanian and K Govindarajan Thilakavadi had recalled an order passed by the first bench headed by former Chief Justice AP Sahi in December 2019 for the reason, a notice was not served to one of the respondents in a writ appeal preferred by the government.

"The registry has filed a report pursuant to the said order, which shows that the complaint of the applicant in the review application is correct and no notice was served on him in the writ appeal when the writ appeal came to be disposed of by the division bench. Once it is conceded that notice was not served on one of the respondents, the order, which reverses the order of the court, has to be necessarily re-called," the bench wrote.

The judges also discussed whether the order could be re-called only in respect of the petitioner or in its entirety and the court concluded that "since it is a matter concerning seniority of a bunch of persons, who were appointed as a Sub-Inspector (Technical) in the police force in the same recruitment, recalling the order in respect of one person alone would not be a correct resolution."

The bench noted that Proviso to Order 9, Rule 13 of the Code envisages such a situation and empowers the court to recall the entire decree.

"A writ appeal being an appeal filed under Clause 15 of the Letters Patent, Proviso to Order 9, Rule 13 of the Code of Civil Procedure will apply. Hence, exercising the power under Proviso to Rule 13 of Order 9, we recall the entire judgment made in the writ appeal, " the judges concluded.

The court passed the above order on disposing of a review application filed by B Vivekanandan, a former Sub-Inspector of Police (technical). It was a case related to fixing the seniority of the police SIs (technical) who were recruited in 2001. While a single judge allowed several SIs' petitions, the first bench then CJ AP Sahi and Justice Subramonium Prasad set aside the order and allowed the government's appeal.