Kerala High Court
Dr. Nizar Hussain M vs The State Of Kerala on 1 July, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
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:
2
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
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
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
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
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,
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
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.
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-
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
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
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
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
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
