Kerala High Court
Dr. Nizar Hussain M vs The State Of Kerala on 1 July, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
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R.P No.801 of 2018 2025:KER:47110
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
RP NO. 801 OF 2018
AGAINST THE JUDGMENT DATED 26.05.2017 IN WA NO.964 OF 2017
OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT/WRIT PETITIONER:
DR. NIZAR HUSSAIN M, AGED 48 YEARS
S/O.LATE MOHAMMED KUNJU, PUTHEN VILA VEEDU,
PULLICHIRA.P.O., KOLLAM DISTRICT, PIN-691 304,
EMPLOYED AS ASSISTANT PROFESSOR IN THE MECHANICAL
ENGINEERING DEPARTMENT OF TKM COLLEGE OF ENGINEERING,
KOLLAM DISTRICT, PIN-691 005.
THIRUVANANTHAPURAM
BY ADV.T.R RAJAN
RESPONDENT/RESPONDENT/RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
SMT. PRINCY XAVIER, SR. GP
THIS REVIEW PETITION WAS FINALLY HEARD ON 04.06.2025, THE
COURT ON 1.7.2025 PASSED THE FOLLOWING:
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R.P No.801 of 2018 2025:KER:47110
ORDER
Muralee Krishna, J.
This review petition is filed under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 ('CPC' for short), by the appellant in W.A. No.964 of 2017, claiming review of the judgment dated 26.05.2017, whereby the writ appeal was dismissed by this Court.
2. The petitioner was working as an Assistant Professor at the TKM College of Engineering, Kollam. He joined service as a Lecturer on 24.09.1998, and the post was later re-designated as Assistant Professor. While in service, he availed leave without allowance for five years from 18.02.2005 to 17.02.2010 for better employment abroad. He was granted leave subject to the conditions laid down in Appendix XIIA Part 1 of the Kerala Service Rules ('KSR' for short). Till 17.02.2010, he worked abroad and thereafter rejoined duty. Subsequently, he submitted Ext.P7 representation for reckoning the service rendered by him at Riyadh Community College under King Saud University during the period of leave for placement under the Career Advancement 3 R.P No.801 of 2018 2025:KER:47110 Scheme ('CAS' for short). By Ext.P8 order the respondent rejected the representation of the petitioner. The petitioner then approached the Lok Ayuktha and by Ext.P9 order, the Lok Ayuktha set aside Ext.P8 order and directed the respondent to pass fresh orders after hearing the petitioner. However, the respondent passed Ext.P10 order declining the reliefs inter alia on the ground of inconsistency between UGC Regulations 2010 and the provisions of the Government Order dated 10.12.2010 in view of the Government Order dated 27.03.2010. Thereafter, the petitioner approached this Court by filing W.P.(C) No.9240 of 2017 and that writ petition was dismissed by the judgment dated 20.03.2017 holding that the service rendered by the petitioner at aboard during the period of leave cannot be treated as 'previous service' figuring in clause 10.1 of the UGC Regulations 2010. The learned Single Judge further held in that judgment that in view of Appendix XIIA Part 1 of the KSR, the petitioner is not entitled to the service benefits during the leave period. Against the judgment in the writ petition, the petitioner filed W.A. 964 of 2017 before this Court, and the writ appeal was dismissed by the judgment 4 R.P No.801 of 2018 2025:KER:47110 dated 26.05.2017, concurring with the findings of the learned Single Judge. Contending that there is an error apparent on the face of the record crept in the appeal judgment, the petitioner filed the present review petition.
3. Heard Sri.T.R Rajan, the learned counsel for the petitioner and Smt.Princy Xavier, the learned Senior Government Pleader.
4. The learned counsel for the petitioner would submit that the Previous regular service mentioned in clause 10.1 of UGC Regulations cannot be confined to service before joining another service. Consequently, Appendix XIIA of the Kerala Service Rules cannot be pressed into service to deny the benefit of the Career Advancement Scheme to the petitioner. There is no conflict between the Career Advancement Scheme and Appendix XIIA. Clause 8.4.6 will not apply in the case of the petitioner since the petitioner is not claiming the increment as figured in the said Clause. The UGC has clarified the previous service/while in service vide Ext. P5 clarification dated 31.03.2011. This Court failed to consider these aspects while passing the judgment under review, and hence, there is an error apparent on the face of the record in 5 R.P No.801 of 2018 2025:KER:47110 the judgment. The learned counsel for the petitioner relied on the judgments dated 30.11.2016 and 25.10.2019 in W.P.(C) No.11822 of 2015 and W.P.(C)No.26676 of 2017 respectively, of this Court in support of his argument that the service rendered by the petitioner by availing leave without allowance for better employment abroad can also be considered as previous regular service.
5. On the other hand, the learned Senior Government Pleader would submit that the petitioner challenged the judgment sought to be reviewed by filing S.L.P.(C) No.13831 of 2018 before the Apex Court and the said proceedings culminated on 05.07.2018, confirming the judgment of this Court. Thereafter, the petitioner filed the present review petition. The learned Senior Government Pleader would further submit that it is not stated in the review petition specifically as to what is the error apparent on the face of the record. As per Clause 10.1 of Ext.P3 UGC Regulations, it is the previous regular service that can be reckoned for Career Advancement. The petitioner had worked abroad by availing leave without allowance. In the leave sanctioning order 6 R.P No.801 of 2018 2025:KER:47110 itself, it is stated that he is granted leave for better employment abroad, subject to the conditions laid down in Appendix XIIA Part 1 of the KSR. Moreover, the clarification given in Ext.P5 is a general clarification, and it also speaks about the previous regular service. In such circumstances, there is no error apparent on the face of the record in the judgment under review to invoke the review jurisdiction.
6. To understand the circumstances that entitle the Court to exercise its power of review, it would be appropriate to go through the provisions concerned as well as the law on the point laid down in the judgments of the Apex Court as well as this Court. Section 114 and Order XLVII of CPC are the relevant provisions as far as the review of a judgment or order of a Court is concerned.
7. Section 114 of the CPC reads thus:
"114. Review-
Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, 7 R.P No.801 of 2018 2025:KER:47110
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
8. Order XLVII Rule 1 of the CPC reads thus:
"1. Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may 8 R.P No.801 of 2018 2025:KER:47110 apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation-
The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
9. It is trite that the power of review under Section 114 read with Order XLVII of the CPC is available to be exercised only on setting up any one of the following grounds by the petitioner.
(i) discovery of a new and important matter or evidence, or
(ii) mistake or error apparent on the face of the record, or
(iii) any other sufficient reason.
10. In Northern India Caterers v. Lt. Governor of Delhi [(1980) 2 SCC 167] the Apex Court held that under the guise of review, a litigant cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. 9
R.P No.801 of 2018 2025:KER:47110
11. The Apex Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held thus:
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
(Underline supplied)
12. In N.Anantha Reddy v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that the mistake apparent on the face of the record means that the mistake is self-evident, needs no search, and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
13. In Sasi (D) through LRs v. Aravindakshan Nair and others [AIR 2017 SC 1432] the Apex Court held that in order to exercise the power of review, the error has to be self- 10
R.P No.801 of 2018 2025:KER:47110 evident and is not to be found out by a process of reasoning.
14. In Shanthi Conductors (P) Ltd. v. Assam State Electricity Board and others [(2020) 2 SCC 677] the Apex Court by referring to Parsion Devi [(1997) 8 SCC 715] held thus:
"The scope of review is limited and under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided".
15. Again in Govt. of NCT of Delhi v K.L. Rathi Steels Ltd. [2024 SCC Online SC 1090] the Apex Court considered the grounds for review in detail and held thus:
"Order XVLII does not end with the circumstances as S.114, CPC, the substantive provision, does. Review power under S.114 read with Order XLVII, CPC is available to be exercised, subject to fulfillment of the above conditions, on setting up by the review petitioner any of the following grounds:
(i) discovery of new and important matter or evidence; or
(ii) mistake or error apparent on the face of the record; or
(iii) any other sufficient reason."
16. In Sujatha Aniyeri v. Kannur University [2025 KHC 11 R.P No.801 of 2018 2025:KER:47110 OnLine 212] in which one of us is a party [Muralee Krishna S., J] after considering the point, what constitutes an error apparent on the face of the record, this court held that review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. If the direction in the judgment was erroneous, then the remedy was to challenge the same by filing an appeal and not by filing a review petition.
17. While going through the judgment under review passed in W.A. No.964 of 2017 as well as the judgment of the learned Single Judge in W.P.(C)No.9240 of 2017, we notice that the contentions of the petitioner regarding his entitlement to treat the service rendered at abroad after obtaining leave, as a previous service for Career Advancement was considered in detail in those judgments. As per Clause 10.1 of Ext.P3 UGC Regulations 2010, it is the previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in the University, College, National Laboratories or other scientific/professional organisations such as CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for 12 R.P No.801 of 2018 2025:KER:47110 direct recruitment and promotion under CAS of a Teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III - Table No.II. The petitioner obtained leave without allowance under Appendix XIIA on his own accord. He was granted leave without allowance on condition that it would result in the forfeiture of all service benefits, including pension. These aspects are considered in detail by the learned Single Judge as well as this Court while passing judgment under review. By Ext.P5, the UGC has clarified that the previous regular service, whether national or international, could be counted for the purpose of the Career Advancement Scheme promotion, provided the petitioner fulfils all other stipulations in Clause 10.0 of the UGC Regulations, which can be treated only as a general clarification.
18. In the judgments dated 30.11.2016 and 25.10.2019 of the Single Bench of this Court in W.P.(C) No.11822 of 2015 and W.P.(C)No.26676 of 2017, respectively, relied by the learned counsel for the petitioner, the issue before the learned Single Judges was the objection raised by the Local Fund Audit against 13 R.P No.801 of 2018 2025:KER:47110 the decision of the University to reckon the previous service of the teachers therein to give the service benefits and the regularity of the leave granted to the petitioners in those writ petitions. The scope of the word 'previous service' is not considered in the light of the relevant provisions under the University Acts and rules, and also the regulations concerned was not considered in those cases. The facts of W.P.(C) No.11822 of 2015 and W.P.(C)No.26676 of 2017 are different from the facts of the case in our hand. Moreover, it is to be borne in mind that the instant petition before us is a review petition and not a regular appeal, to make a roving enquiry into the legality of the findings in the judgment already pronounced.
19. After the dismissal of the Writ Appeal by this court, the petitioner had approached the Apex Court with a Special Leave Petition and the Special Leave Petition was dismissed, confirming the judgment of this Court. Thereafter, the petitioner came up with the instant review petition, which is nothing but an attempt to use the review jurisdiction of this Court as an appeal in disguise. On hearing the learned counsel on both sides and appreciating the 14 R.P No.801 of 2018 2025:KER:47110 materials on record, we find no sufficient reason to say that the petitioner has made out any of the grounds provided under Order XLVII Rule 1 read with Section 114 of the CPC to review the judgment dated 26.05.2017 passed by this Court in the writ appeal.
In the result, the review petition stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE sks