- 1 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE V KAMESWAR RAO AND THE HON'BLE MR. JUSTICE T.M.NADAF WRIT APPEAL NO.860 OF 2024 (S-RES) BETWEEN: DR. TIRUPATI PAWAR, IPS S/O LATE SRI. DESU, AGED ABOUT 65 YEARS, DEPUTY INSPECTOR GENERAL OF POLICE (RETD.), HOUSE NO.HIG-49, B TYPE 4TH ‘A’ CROSS, KHB 1ST PHASE, SURYANAGAR, SURYA CITY BENGALURU – 560 099. MOB NO.7349282828 …APPELLANT (BY SRI. DANAPPA PRADHANAPPA PANIBHATE, ADVOCATE) AND: 1. THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001. 2. THE ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001. …RESPONDENTS (BY SMT. SARITHA KULKARNI, AGA) Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 28.01.2021 PASSED BY THE SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION No.13925/2020 (S- RES), IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V KAMESWAR RAO and HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE V KAMESWAR RAO) The challenge in this appeal is to the order passed by the learned Single Judge whereby, the learned Single Judge has dismissed the petition filed by the appellant herein by stating in paragraph No.4 onwards as under:- “4. The petitioner approached the KAT on two occasions before the impugned Government Order dated 08.01.2004 could be passed. The Tribunal on every occasion turned down the claim of the petitioner as he was not entitled to the benefit under Rule 41(A) of the K.C.S.R. After issuance of the impugned Government Order dated 08.01.2004, the petitioner again knocked the doors of the KAT in Application No.832/2005 and on 10.09.2015 withdrew the said application and the application was dismissed as withdrawn. After which, the petitioner appears to have agitated his grievance before the National Commission for Scheduled Castes, which also declined to accept the claim of the petitioner, after which, the petitioner approached the Apex - 3 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 Court by filing a petition under Article 32 of the Constitution of India which also rejected the claim of the petitioner with liberty to the petitioner to approach the jurisdiction of the High Court under Article 226 of the Constitution of India. The order of the Apex Court reads as follows: "Even on the second call, no one is present on behalf of the petitioner. We are not inclined to entertain this petition under Article 32 of the Constitution. The writ petition is accordingly dismissed. However, we leave it open to the petitioner to approach the jurisdiction of the High Court under Article 226 of the Constitution. We make it clear that we have not expressed any opinion on the merits of the case." (emphasis supplied) 5. Petitioner claims that it is in terms of the order passed by the Apex Court he has now filed this writ petition seeking to quash the order dated 08.01.2004 and the consequential endorsement issued to the same effect on 25.07.2017. The Apex Court had left option open to the petitioner to approach the jurisdiction of the High Court under Article 226 of the Constitution of India and it was clearly directed that the Apex Court had not considered anything on the merits of the matter. Therefore, the merit of the matter will have to be seen before entertaining the petition that is now preferred by the petitioner as indicated hereinabove. 6. The petitioner has agitated his claim before the KAT on every occasion and with the same - 4 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 impugned order dated 08.01.2004 had approached the KAT in Application No.832/2005 which he withdrew. The prayer sought in the application reads as follows: "This Application is filed under section 19 of the Administrative Tribunals Act, 1985, and the applicant prays to quash the order dated 08.01.2004 vide Ann-A15, etc. And the order of withdrawal reads as follows: "Learned counsel for the applicant files the following memo for withdrawal dated 08.09.2015:- "Memo for posting The Applicant prays that this Hon'ble Court be pleased to order posting of the above case for orders on Memo for withdrawal on 09.09.2015 in the interest of justice and equity." Considering the same, the application is dismissed in terms of the above memo. Therefore, the challenge to the government order dated 08.01.2004 ended in its withdrawal. It is trite law that withdrawal of the petition without liberty to file a fresh petition would amount to dismissal by consent, more so when liberty to file a fresh petition is not sought in the light of the law laid down in SARGUJA TRANSPORT V. STATE TRANSPORT APPELLATE TRIBUNAL, M.P., GWALIOR AND OTHERS reported in AIR 1987 SC 88. 7. The petitioner having withdrawn his claim before the KAT way back in the year 2005 and not having - 5 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 agitated the same all along cannot now file a writ petition challenging the order dated 08.01.2004. Therefore, the writ petition lacks merit and is dismissed.” 2. Though the learned Single Judge has dismissed the petition by holding that the appellant had earlier approached the Karnataka Administrative Tribunal without any liberty, hence, mere withdrawal of the petition to file a fresh petition would amount to dismissal by consent, more so when liberty to file a fresh petition is not sought in the light of the law laid down in the case of Sarguja Transport vs. State Transport Appellate Tribunal, M.P., Gwalior and others1. 3. We agree with the conclusion drawn by the learned Single Judge. That apart, we have also seen the merits of the case. The claim is primarily for protection of pay as has been drawn by the appellant while working in the University of Dharwad on his appointment in the State Government as Deputy Superintendent of Police. 1 AIR 1987 SC 88 - 6 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 4. It is a conceded position that appointment under the University is not an employment under the State Government governed by the Rules made under proviso to Article 309 of the Constitution of India. Rather, the employment under the University is regulated by the statute under which it has been established. 5. The submission of learned counsel for the appellant is that the pay scale of the post in the University of Dharwad and Deputy Superintendent of Police are identical and as such, the appellant is entitled to the benefit of pay protection. He also submits that in terms of the order dated 20.06.1990 of the Government of Karnataka, the period of service put in by the appellant from 02.07.1965 to 08.04.1970 was counted for the purpose of pensionary benefits and as such, on similar analogy, the appellant is entitled to benefit of the pay protection. We do not agree, with such a plea. 6. The submission that in view of Rule 41(a) of the Karnataka Civil Services Rules, the appellant shall be - 7 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 entitled to benefit of protection of pay is also not appealing in as much as the Rule 41(a) (ii), which we reproduce as under contemplates such a benefit is primarily meant for a Government Servant appointed to a post or a category of post as a local candidate or regularly recruited candidate to any other post or category of post whether in the same or any other Department. “41. The initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows.- (a) If he holds a lien on a permanent post other than a tenure post, or would hold a lien on such a post had his lien not been suspended under Rule 20.- (ii) When appointment to the new post does not involve such assumption of duties or responsibilities, he will draw, as initial pay, the stage of the time scale which is equal to his substantive pay, in respect of the permanent post, or if there is no such stage, the stage next below that pay, plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment is the time scale of the permanent post or for the period after which an increment is earned in the time scale of the new post whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive pay in respect of the permanent post he will draw that minimum as initial pay;” - 8 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 7. On a reading of the Rule, it is clear that the benefit of Rule 41(a)(ii) is applicable to a Government servant, who is working in the State Government and appointed in the State Government. A Government servant shall not mean an employee under an University. In that sense, the Rule 41(a)(ii) on which reliance has been placed has no applicability. 8. The submission made by relying upon the order passed by this Court at page No.110 in a Review Petition No.1217/2001 in Writ Petition No.42754/1999 dated 22.11.2002 is concerned, the grievance of the petitioner in that matter was primarily that the service put in by him in the Karnataka University i.e., Dharwad University from 21.06.1985 to 22.01.1993 be considered for continuity of service for the purpose of pensionary benefits. This Court has granted the said benefit to the appellant herein in accordance with the relevant Rules with a further direction that the fixation of pay shall be made accordingly. There is no dispute that the appellant has been granted the - 9 - NC: 2025:KHC:15216-DB WA No. 860 of 2024 benefit of counting of service in the Dharwad University for the purpose of pensionary benefits. Reliance has been placed by the learned counsel for the appellant to state that once the benefit of counting of service for pensionary benefit has been granted, on the same principle, the pay protection need to be granted. 9. We are unable to agree with the submission of the learned counsel appearing for the appellant in view of the Rule position as noted above. For the reasons stated above, we do not see any reason to interfere with the final conclusion drawn by the learned Single Judge dismissing the writ petition even on the merits of the claim of the petitioner. The writ appeal is hereby dismissed. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE MH/- List No.: 1 Sl No.: 24