THE PRINCIPAL SECRETARY TO GOVT, AND ORS vs CHIDANAND G BIRADAR,
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 29 DAY OF SEPTEMBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
WRIT PETITION NO.200165 OF 2025 (S-KAT)
BETWEEN:
1. THE PRINCIPAL SECRETARY TO GOVT.,
HOME DEPARTMETN (POLICE),
VIDHANA SOUDHA, BENGALURU-560 001.
2. THE DIRECTOR GENERAL OF POLICE
AND INSPECTOR GENERAL OF POLICE
IN KARNATAKA STATE,
NRUPATHUNGA ROAD, BENGALURU-560 001.
3. THE INSPECTOR OF POLICE,
KSRP, DG AND IGP OFFICE,
NRUPATHUNGA ROAD, BENGALURU-560 001.
4. THE COMMANDANT,
INDIAN RESERVE BATTALION,
MUNIRABAD, KOPPAL DISTRICT-583 231.
5. THE COMMANDANT,
INDIA RESERVE BATTALION,
ARAKERI, DISTRICT VIJAYAPURA-586 104.
…PETITIONERS
(BY SRI. VEERANAGOUDA MALIPATIL, AGA)
Digitally signed
by SHIVALEELA
D UDAGI
Location: HIGH
COURT OF
KARNATAKA
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AND:
SRI. CHIDANAND G. BIRADAR
S/O GURAPPA GOUD,
AGED ABOUT 60 YEARS, HEAD CONSTABLE,
INDIAN RESERVE BATTALION, VIJAYAPURA,
VIJAYAPURA DISTRICT-586 104,
RESIDING AT, PLOT NO.20,
ASHRAM ROAD, AISHWARYA NAGAR,
VIJAYAPURA-586 103.
…RESPONDENT
(BY SRI. MAHESH PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
1) ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OF
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
OR ORDER OR DIRECTION TO QUASH THE ORDER PASSED BY
THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT
KALABURAGI IN APPLICATION NO.20126/2023 DATED
12.07.2023 ANNEXURE-B TO THE PETITION AND DISMISSED
THE APPLICATION NO.20126/2023 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
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ORAL ORDER
(PER: HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO)
This Writ Petition assails the order dated 12.07.2023
passed in Application No.20126/2023 by the Karnataka State
Administrative Tribunal, Kalaburagi (for short, ‘the Tribunal’),
allowing the application filed by respondent No.1.
2. The parties are referred to as per their status before the
Tribunal.
3. The facts pertinent are that the applicant joined the Army
on 12.04.1985 as Havildar. The applicant served in the Army
for more than 19 years and was subsequently discharged from
military service by order dated 31.01.2005. The pension
payment order was passed on 06.11.2004, pursuant to his
discharge from the military service. The State Government
recruited the applicant against the post reserved for ex-
servicemen. The Commandant, India Reserve Battalion,
Munirabad, Koppal District, issued the applicant an
appointment order dated 10.07.2008. The applicant's pay scale
was fixed after his appointment, applicable to Constable as per
Rule 41-C of the Karnataka Civil Service Rules (for short
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‘KCSR’), having regard to the last pay certificate issued by the
military. On 09.09.2011, the last basic pay drawn by the
applicant in military service was fixed at Rs.8,400/- as per Rule
41-C of the KCSR. The respondent No. 4, Commandant, India
Reserve Battalion, issued an order cancelling the earlier order
dated 09.09.2011, which fixed the applicant's last basic pay in
military service at Rs.8,400/-. The respondent No.4 had further
proceeded to order for recovery.
The applicant, aggrieved by the order dated 24.07.2014,
filed application Nos.8073-8079/2014 along with other similarly
situated applicants. The Tribunal, by order dated 05.05.2015,
has proceeded to quash the order dated 24.07.2014.
Meanwhile, at his request, the applicant was transferred to the
office of respondent No. 5, i.e., the Commandant, India
Reserve Battalion, Arakeri, Vijayapura District, Vijayapura, by
order dated 31.08.2016. The applicant represented to
respondent No.5 to re-fix his pay as per Rule 41-C of the KCSR.
Citing the order passed by the Tribunal dated 05.05.2015,
under which the Tribunal quashed the order cancelling fixation
of pay under Rule 41-C.
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The respondent No.5 issued a modification order dated
19.07.2018, re-fixing the applicant's pay at Rs. 10,500/-.
Nonetheless, the respondent No.5 again cancelled the re-
fixation order dated 19.07.2018 by passing one more order
dated 22.12.2022. The respondent No.5 has further ordered
recovery of the excess amount paid to the applicant from
19.07.2008. The applicant has impugned the order dated
22.12.2022 before the Tribunal in Application No.20126 of
2023. The Tribunal, by order dated 12.07.2023, for the reasons
assigned thereunder, allowed the application and quashed the
order of cancellation of re-fixation of pay dated 22.12.2022,
and directed Respondent No. 5 to continue paying the
applicant's salary as per the earlier re-fixation order. The
present writ proceedings challenge this order of the Tribunal.
4. Learned Additional Government Advocate appearing for
the petitioner submits that the Tribunal’s order is contrary to
law and liable to be set aside. It is submitted that the Tribunal
failed to consider the reliance placed on the order passed in
Writ Petition No.10222 of 2019, which was challenged before
the Apex Court in SLP No.15515 of 2021, and the interim order
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granted therein. It is contended that the Tribunal ought not to
have quashed the order passed by respondent No.5 in light of
the same. The learned Addl. Government Advocate would
further submit that the applicant has given an undertaking that
he would give up the Dearness Allowance (DA) received from
the Central Government and since the same has not been given
up to the Central Government, the Petitioner/State Government
is justified in re-fixing the pay, which is in accordance with law.
Learned AGA therefore submits that the order dated
22.12.2022 passed by respondent No.5 does not call for
interference, and thus the Tribunal's order quashing the said
order is liable to be set aside.
5. Per contra , learned counsel for the respondent sought to
justify the Tribunal’s order. Learned counsel submitted that the
re-fixation was done earlier under Rule 41-C of the KCSR and
was withdrawn without any reason. The respondent herein
questioned the said order in Application Nos. 8073-8079/2014,
and the Tribunal quashed the order of cancellation by order
dated 05.05.2015. It is further submitted by the learned
counsel that, once again, the petitioner has withdrawn or
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cancelled the re-fixation order dated 19.07.2018, passed in
accordance with the Tribunal’s order dated 05.05.2015. The
learned counsel therefore submits that the re-fixation of pay
was in accordance with Rule 41-C of the KCSR, which the
petitioner-authorities could not have cancelled or withdrawn.
6. We have heard learned Additional Government Advocate
and the learned counsel for the respondent-applicant and
perused the documents on record.
7. The applicant served in the Army and joined on
12.04.1985 as Havildar. Having served in the Army for more
than 19 years, the applicant was subsequently discharged from
military service. The Central Government has also issued the
pension payment order. The applicant was thereafter recruited
as a Reserve Police Constable, which is a post reserved for ex-
servicemen. The applicant was appointed as a Reserve Police
Constable by the Commandant, India Reserve Battalion
Munirabad, Koppal District. Rule 41-C of the KCSR provides
that the pay of employees who served in the military and are
re-employed in the State Civil Service shall be fixed by taking
into account the last drawn pay in military service, so as to
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protect the last pay drawn by the ex-servicemen. Respondent
No. 4 withdrew the pay fixation under Rule 41-C of the KCSR
by order dated 24.7.2014; thereby, the earlier order dated
09.09.2011 was cancelled, and recovery was ordered. The said
action of respondent No.4 had been questioned before the
Tribunal in Application Nos.8073-8079 of 2014. The Tribunal,
by order dated 05.05.2015, quashed the order dated
24.07.2014 by extracting the operative portion of the order
passed in A.No.3068 of 2011 and connected cases, which reads
as follows;
“4. The operative portion of the order in
A.No.3068 of 2011 and connected cases reads as
follows;
i) The impugned orders refixing initial pay of
applicants are quashed;
(ii) The respondents are directed to issue fresh
orders re-fixing the initial pay of the applicants
correctly as per Rule 41-C of KCSR in the light of the
observations made above. It shall be made clear
therein that there shall be no recovery, if any,
pursuant to the re-fixation being done;
(iii) The recoveries already made, pursuant to the
impugned orders, if any, shall be refunded to the
applicants;
(iv) The cases of other CPCs covered in the
impugned orders which are quashed now shall be
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reviewed simultaneously while issuing fresh orders
as envisaged in (ii) & (iii) above;
(v) This exercise shall be completed within a period
of three months.
5. Considering the facts on record and the
submissions made on behalf of both the sides, these
applications are allowed in terms of the above order
in A.No.3068 of 2011 and connected cases. The
above exercise shall be completed within a period of
three months from the date of receipt of a copy of
this order.
8. In the meanwhile, the applicant was transferred to
respondent No.5 i.e., the Commandant, India Reserve
Battalion, Arakeri, Vijayapura District, Vijayapura. Subsequent
to his transfer, the applicant represented to respondent No.5
for re-fixing his pay in terms of the order dated 05.05.2015
passed by the Tribunal in Application Nos.8073-8079 of 2014.
Thereafter, respondent No.5, by order dated 19.07.2018, re-
fixed his pay at Rs.10,500/- in terms of Rule 41-C of the KCSR.
Again, respondent No.5, by order dated 22.12.2022, sought to
cancel the modification of the re-fixation order dated
19.07.2018 on the ground that the applicant has not given up
his DA, which is drawn by the applicant on pension settled by
the Army. Aggrieved by the said order of respondent No.5, the
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applicant filed Application No.20126 of 2023, and the Tribunal
quashed the order dated 22.12.2022, directing respondent
No.5 to continue paying the applicant's salary as per the earlier
re-fixation order, i.e., 19.07.2018.
9. It is appropriate to refer to Rule 41-C of the KCSR and
the same is extracted here under:
“41-C. Notwithstanding anything contained in
any other rules, where a military officer of the rank
of Junior Commissioned Officer or below who is
discharged from the military service before
superannuation is appointed to a post in accordance
with the rules regulating recruitment thereto, his pay
in the time scale of the post in which he is so
appointed shall be fixed as follows:-
i) Where the pay drawn in the military service
is equal to a stage in the time scale of the post to
which he is appointed, it shall be fixed at that stage;
ii) Where the pay last drawn in the military
service does not correspondent to a stage in the time
scale of the post to which he is appointed, it shall be
fixed at the stage next below the difference being
treated as Personal Pay absorbed in future increase
in pay;
iii) Where pay last drawn in the military service
is below the minimum of the time scale of the post to
which he is appointed it shall be fixed at the
minimum;
iv) Where the pay last drawn in the military
service is above the maximum of the time scale of
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the post to which he is appointed it shall be fixed at
the maximum;
v) For the purpose of fixation of pay as at (i) to
(iv) above pay last drawn in the military service to
be taken into account is basic pay only and does not
include any other allowance and pension and pension
equivalent of Death-Cum-Retirement Gratuity
received from the Defence Authorities shall be
ignored
[Explanation:- For the purpose of this clause,
pay includes, basic pay, grade pay, Ex-Group pay
(wherever applicable) last drawn by the Government
servant in the military service]
iv) The military service rendered prior to
appointment in the State Civil Services shall not be
taken into account in determining service qualifying
for pension."
10. In the case on hand, the respondent No.4 initially re-fixed
the pay by order dated 09.09.2011, and sought to withdraw the
same by order dated 24.07.2014. Admittedly, the Tribunal
quashed the said order dated 24.07.2014 in Application Nos.
8073-8079 of 2014 dated 05.05.2015. It is thereafter that the
respondent No. 5, after his transfer to Commandant, India
Reserve Battalion, Arakeri, Vijayapura District, Vijayapura,
again re-fixed his pay by issuing a modification order dated
19.07.2018. The said order was once again sought to be
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withdrawn by an order dated 22.12.2022, which the Tribunal
subsequently quashed by passing the order impugned in the
present Writ Petition.
11. It is to be noted that the Tribunal’s order does consider
the earlier order passed by the Co-ordinate Bench in Writ
Petition No.10222 of 2019 dated 18.06.2021. The order passed
by the Co-ordinate Bench in the aforementioned Writ Petition is
extracted hereunder:
“5. The aforesaid statutory provision of law
makes it very clear that the pay of the
reemployed retired military personnel has to be
fixed by taking into account the last pay drawn
by him in the military services and in the
present case, the revised last pay certificate
has been issued. As stated earlier, the revised
last pay certificate entitles the retired
employee for arrears of pay and arrears of
pension. Therefore, the revised scale has to be
taken into account for the purpose of fixing his
salary under Rule 41-C of the Rules.”
12. It is not in dispute that the respondent-State has not
challenged the earlier order dated 05.05.2015 passed by the
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Tribunal in Application Nos.8073-8079/2014. Further, the
ground urged in the present petition that the applicant has
given an undertaking to give up the DA which is drawn on
pension settled by the Central Government and, since the same
has not been given up, the authorities are justified in cancelling
the modified re-fixation order dated 19.07.2018, cannot be
accepted.
13. The Tribunal has determined the issue of applicability of
Rule 41-C in application Nos.8073-8079 of 2014 dated
05.05.2015. Even so, the Coordinate Bench passed an order in
Writ Petition No.10222 of 2019 dated 18.06.2021. Thus, the
Tribunal’s order is in tune with the aforementioned orders. If,
at all, the applicant is ineligible to receive DA on pension
received from military authorities, the military authorities must
take appropriate steps to decide whether the applicant is
eligible or not. However, the respondent authorities have no
right to adjudicate the applicant's eligibility for DA drawn on
pension or pension received from the military authorities in the
exercise of power of re-fixation under Rule 41-C of the
Karnataka Civil Service Rules, as it leaves no scope except to
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consider the pay last drawn in the military service. In light of
the foregoing reasons, the order passed by the Tribunal is free
from error or illegality. The Writ Petition filed by the
respondent-authorities deserves dismissal. We therefore
decline to interfere with the order passed by the Tribunal.
14. Accordingly, we proceed to pass the following:
ORDER
The Writ Petition is hereby dismissed .
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
msr
List No.: 2 Sl No.: 0
CT: AK