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Kerala High Court
Zakaria Varkey vs State Of Kerala on 31 March, 2026
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WP(C) NO.23050 OF 2023 2026:KER:28766
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
TUESDAY, THE 31ST DAY OF MARCH 2026 / 10TH CHAITHRA, 1948
WP(C) NO.23050 OF 2023
PETITIONER:
ZAKARIA VARKEY,
AGED 62 YEARS, S/O V.S. VARKEY,
RESIDING AT 'VATTAMATTOM', MAMMODU P.O.,
CHANGANASSERRY, PIN - 686536.
BY ADVS.
SRI.S.MUHAMMED HANEEFF
SRI.M.H.ASIF ALI
SMT.RAJANA JOSE
RESPONDENTS:
1 STATE OF KERALA,
REP. BY IS SECRETARY TO THE GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION,
VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033.
3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM,
DEPUTY DIRECTORATE OF COLLEGIATE EDUCATION NEAR NATTAKOM
GOVT COLLEGE NATTAKOM P.O., KOTTAYAM, PIN - 686013.
4 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
ERNAKULAM, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, GENERAL HOSPITAL ROAD, NEAR MAHARAJAS COLLEGE
MEN'S HOSTEL, ERNAKULAM, PIN - 682011.
5 ACCOUNTANT GENERAL [A &E],
INDIAN AUDIT & ACCOUNTS DEPARTMENT,
OFFICE OF THE ACCOUNTANT GENERAL [A & E],
THIRUVANANTHAPURAM, PIN - 695001.
SMT. S.L.SYLAJA, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.03.2026,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO.23050 OF 2023 2026:KER:28766
JUDGMENT
Petitioner, initially worked with the Central Government for
the period from 29.08.1986 till 03.11.1989. Thereafter, he was
appointed at the S.B. College, Changanacherry, as a Lecturer,
though in a leave vacancy, with effect from 09.11.1989. He
continued in the afore leave vacancy till 31.10.1990. Later, he
was appointed to a substantive vacancy in the very same
College, with effect from 20.06.1991, and continued in service
till 28.02.2016, on which day he superannuated. The petitioner
prayed for reckoning his prior Central Government service,
noticed as above, for the purpose of pensionary benefits, etc.
By Ext.P4 dated 06.12.2022, the petitioner was informed that,
insofar as there was no mobility between the Central
Government Service and the State Government service, the
prayer of the petitioner could not be considered. This decision
was further challenged by filing Ext.P5 representation dated
12.12.2022, before the Government. Pursuant to the directions
of this Court in Ext.P6 judgment dated 09.01.2023, in W.P.(C)
No.480 of 2023, the Government was directed to consider and
WP(C) NO.23050 OF 2023 2026:KER:28766
pass orders on the afore application, with specific reference to
the principles laid down in State of Kerala v. Haridasan
[2015(2) KLT 145 (FB)]. Pursuant to the afore direction, by
Ext.P7 order dated 08.06.2023, the Government took the stand
that since the petitioner joined in a leave vacancy in the
S.B.College, Changanacherry, for the period from 09.11.1989
till 31.10.1990, the prayer could not be accepted with reference
to the provisions of Rule 29(b) Part-III Kerala Service Rules
(KSR). The petitioner challenged Ext.P7 by filing the captioned
writ petition, also placing reliance on Ext.P8 Government Order
dated 24.09.2014. This Court, originally, by a judgment dated
20.06.2024, accepted the claim made by the petitioner, taking
into account the Government Order at Ext.P8 as well as Ext.P9
judgment dated 21.02.2023 in W.P.(C) No.42406 of 2022.
However, the Government filed a review petition (R.P. No.1135
of 2024) before this Court, pointing out that the break period
could not be taken into account for the reason that there was a
break in service for the period from 01.11.1990 to 19.06.1991.
Taking note of this, by judgment dated 15.11.2024 in R.P.
WP(C) NO.23050 OF 2023 2026:KER:28766
No.1135 of 2024, this Court recalled the judgment disposing of
the writ petition for fresh consideration. It is in such
circumstances that the captioned writ petition has been posted
before me.
2. I have heard Sri.S.Muhammed Haneeff, learned
counsel for the petitioner as well as Smt.S.L.Sylaja, learned
Government Pleader.
3. The short issue arising for consideration, as noticed
earlier, is as to whether the Central Government service of the
petitioner could also be reckoned along with the regular full-
time aided college service in S.B. College, Changanacherry, for
the calculation of the pensionary benefits.
4. Sri.Muhammed Haneeff, learned counsel for the
petitioner, firstly, would point out that with reference to the
mandate under Ext.P8, the sandwich period could be condoned,
and the benefits of Central Government service could also be
reckoned for extending the pensionary benefits. He would also
point out that Ext.P9 judgment dated 21.02.2023 in W.P.(C)
No.42406 of 2022, of a learned Single Judge of this Court,
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noticed earlier, has since been confirmed by a Division Bench of
this Court in W.A. No.1836 of 2023.
5. Per contra, Smt.Sylaja, learned Government Pleader,
would submit that Ext.P8 could not be reckoned since,
admittedly, there was a break in service, as noticed earlier.
Furthermore, it was only in a situation where there is no break
in service, that the power of condonation, as extended by
Ext.P8, could be extended. She would also rely on the
provisions of Note to Rule 29(b) of Part III KSR, to state that,
when the break is in excess of the joining period, the benefit of
the prior service could not be reckoned.
6. I have considered the rival submissions as well as the
connected records.
7. True, as laid down under the provisions of
the Note to Rule 29(b), referred to by the learned Government
Pleader, if the break is in excess of the mandate fixed
thereunder, the service with the Central Government could not
be reckoned for consideration.
8. At the same time, this Court notices the provisions of
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Rule 31 of Part III KSR, providing for the interruptions in service
to be counted for pension, which read as under:-
"31.(a) Interruptions in the service of an employee will not
count for pension:
Provided that the regular service before interruption is
eligible to be reckoned as qualifying service for pension and
the period of such interruption shall be condoned, unless
otherwise specified."
In the light of the above, the regular service before interruption
also could be reckoned as qualifying service, condoning the
interruptions.
9. The judgment at Ext.P9, has been challenged by the
State by filing W.A. No.1836 of 2023. By judgment dated
08.12.2023, a Division Bench of this Court considered the issue
with specific reference to the provisions of Rule 29 as well as
Rule 31 of Part III KSR, in paragraph 5 thereof, finding as
under:-
"5. In the light of Rule 31 Part III of the Rules, it can be
seen that the interruptions in the service of an employee
will count for pension. The argument of the learned
Government Pleader is attractive in the light of Rule 29
that the resignation to take up employment normally
results in forfeiture of pension, except when the
WP(C) NO.23050 OF 2023 2026:KER:28766
appointment is to take up employment in public service.
We note that resignation from the previous service was
to take up employment in public service, though that
service in a leave vacancy may not qualify for pension, it
will not cease to be an appointment in public service.
Therefore, the resignation will not entail in forfeiture of
past service. Thus, we find no reason to interfere with the
impugned order. The writ appeal is dismissed."
Thus, it has been found by this Court that even when there is
an interruption in service, the prior service could be reckoned
for the purpose of reckoning the pension. The contention raised
by the Government in the writ appeal with reference to Rule 29
Part III KSR has also been considered, ultimately finding that
when the resignation from the prior service was for taking up
employment in the public service, though in a leave vacancy, it
will not cease to be an appointment in the public service. In
such circumstances, I am of the opinion that the petitioner was
entitled to claim the benefit of his prior service in the
Government for the purpose of calculation of the pensionary
benefits.
In the result, this writ petition would stand allowed,
directing the respondents to refix the pension/terminal benefits,
WP(C) NO.23050 OF 2023 2026:KER:28766
also reckoning the service in the Central Government noticed
earlier, as expeditiously as possible, at any rate within a period
of six months from the date of receipt of a certified copy of this
judgment.
Sd/-
HARISANKAR V. MENON
JUDGE
Skk//31.03.2026
WP(C) NO.23050 OF 2023 2026:KER:28766
APPENDIX OF WP(C) NO.23050 OF 2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SERVICE BOOK OF THE
PETITIONER
EXHIBIT P 2 A TRUE COPY OF THE COMMUNICATION ISSUED BY
THE OFFICE OF THE ACCOUNTANT GENERAL [A &E],
KERALA DT. 23-07-2016
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DT.
15.11.2022 SUBMITTED BY THE PETITIONER BEFORE
THE 2 ND RESPONDENT
EXHIBIT P4 A TRUE COPY OF THE ORDER BEARING NO.
M2/52920/2022/DCE DT. 06.12.2022
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DT.
12.12.2022 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 09.01.2023
IN W.P.(C) NO. 480 OF 2023 ON THE FILES OF
THIS HONOURABLE COURT
EXHIBIT P7 A TRUE COPY OF THE ORDER BEARING G.O.(RT.)
NO. 836/2023/HEDN DATED 08.06.2023 ISSUED BY
THE 1ST RESPONDENT
EXHIBIT P8 A TRUE COPY OF THE ORDER BEARING G.O.(P) NO.
413/2014/FIN. DATED 24.09.2014 ISSUED BY THE
GOVERNMENT OF KERALA
EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 21.02.2023
IN W.P.(C) NO. 42406 OF 2022 PASSED BY THIS
HONOURABLE COURT
