Full Judgment Text
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PETITIONER:
THE DIRECTOR GENERAL, COUNCIL OF SCIENTIFIC & INDUSTRIAL
Vs.
RESPONDENT:
DR. K. NARYANASWAMI & ORS.
DATE OF JUDGMENT21/02/1995
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
AGRAWAL, S.C. (J)
CITATION:
1995 AIR 2318 1995 SCC (3) 124
JT 1995 (3) 180 1995 SCALE (1)839
ACT:
HEADNOTE:
JUDGMENT:
HANSARIA, J.:
1. Leave granted.
2. Brain-drain is a loss to any country. It would be more
so for a developing country like ours if our scientists and
technologists were to prefer to remain abroad because of
better service conditions and facilities. With a view to
take care temporarily of well qualified scientists and tech-
nologists returning to the country from aboard till they are
absorbed in suitable posts on permanent basis, the
Government of India, in consultation with the Council of
Scientific and Industrial Research (hereinafter referred to
as ’the council’) whose Director is the appellant,
formulated a scheme on 14th October, 1958 by constituting a
Pool for the aforesaid purpose. Persons appointed to the
Pool are required by the scheme to be attached to Government
departments or State Industrial enterprises, national
laboratory, university or scientific institution. The
Officers may also be seconded to a Government department or
other organisations including industrial establishment in
private sector. The Council has been made the controlling
authority of the Pool and the Officers appointed to the Pool
are required to be paid emoluments to normally range between
Rs. 350 to Rs. 6000 per month. The strength of the Pool at
the time of the initial constitution was mentioned as 100.
The conditions of service of the Pool Officers are required
to be regulated by the regulations framed by the Council;
till such regulations are framed, the Officers are governed
by existing regulations which apply to temporary Class I
Officers of the Council.
3.Respondent No.1 was one of such Pool Officers to be
appointed by letter dated 7th April, 1965 issued by the
Council. He was to be paid a salary of Rs. 520 per month
plus admissible allowances. lie was attached with the
Regional Research Laboratory of the Council at Hyderabad.
lie resigned for the post, which was accepted w.e.f March 5,
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1969, whereafter he joined Assistant Director, (Chemistry)
Central Forensic Science Laboratory (CBI)
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w.e.f June 10, 1969 and worked there till January 1984.
Thereafter, on 28th January, 1984 he joined as Principal
Scientific Officer in the Department of Science and
Technology to be transferred in 1986 to the Department of
Biotechnology. lie retired on superannuation on 31.12 1992.
4.What led the respondent to-approach the Central
Administrative Tribunal, New Delhi was that his service as
Pool Officer rendered in the Council for the period from
July 1, 1965 to march 5, 1969 was not counted for pensionary
benefits, and so, he sought a direction from the Tribunal on
the appellant to count the aforesaid period as a qualifying
period for the purpose of grant of pensionary benefits.
This prayer has come to be allowed by the Tribunal. Hence
this appeal.
5.The relevant provisions governing pension for an incumbent
like the respondent are to be contained in Rules 13 and 28
of the Central Civil Services (Pension) Rules, 1972 (the
Rules) which read as below:
"13. Commencement of qualifying service -
Subject to the provisions of these rules,
qualifying service of a Government servant
shall commence from the date he takes charge
of the post to which he is first appointed
either substantively or in an officiating or
temporary capacity:
Provided that officiating or temporary service
is followed without interruption by
substantive appointment in the name or another
service or post:
Provided further that
x x x x x x
28. Condonation of interruption in service -
(a) in the absence of a specific indication
to the contrary in the service book, an
interruption between two spells of civil
service rendered by a Government servant under
Government including civil service rendered
and paid out of Defence Services Estimates or
Railway Estimates shall be treated as
automatically condoned and the pre-
interruption service treated as qualifying
service.
(b) Nothing in clause (a) shall apply to
interruption caused by resignation, dismissal
or removal from service or for participation
in a strike.
(c) The period of interruption referred to
in clause (a) shall not count as qualifying
service."
6. The principal contention of the appellant is that a
Pool Officer like the respondent is riot an employee of the
Council, and so, the service rendered by the respondent as
Pool Officer cannot count as qualifying service. The
contention of respondent on the other hand is that if the
aforesaid scheme and its various provisions are borne in
mind, there would be nothing to doubt that a Pool Officer
has to be regarded as an employee of the Council, as was the
view taken by Central Administrative Tribunal, Bangalore in
Dr. MG. Anantha Padmnabha Setty v. Director, National
Institute of Oceanography, (1990) 14 Administrative
Tribunals Cases 314.
7. For the disposal of the present appeal it is not
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necessary to express any opinion on the aforesaid question
inasmuch as, according to us, even if we were to agree with
the respondent on the aforesaid question,
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the service rendered by him as a Pool Officer cannot be
counted towards quailfying service in view of what has been
mentioned in the first proviso to Rule 13 of the Rules.
This is for the reason that there was admittedly
interruption in the temporary service and the substantive
appointment. The submission of Shri Tiwari for respondent
No.1 is that this interruption must be taken to have been
condoned because of what has been provided in Rule 28 of the
Rules. For the reasons to be alluded, we have not been able
to persuade our-selves to agree with Shri Tiwari.
8. There are two reasons for our disagreement. The first
is that Rule 28 as quoted above was substituted by
Notification of even number dated 19th May, 1980. Prior to
that, Rule 28 was in the following language :
"28. Condonation of interruption in service
(1) The appointing authority may, by order,
condone interruptions in the service of a
Government servant:
Provided that -
(i) the interruptions have been caused by
reasons beyond the control of the Government
servant:
(ii)the total service excluding one or more
interruptions, if any, is not less than five
year’s duration; and
(iii) the interruption including two or more
interruptions, if any, does not exceed one
year.
(2) The period of interruption condoned
under sub-rule (1) shall not count as
qualifying service.
9. If the aforesaid Rule were to determine the question of
condonation, specific order of the appointing authority was
a prerequisite. Admittedly, there is no such order.
Secondly, even if the substituted Rule to apply because of
the superannuation of the respondent in 1992, by which date
substituted Rule had come into force, we are of the view
that Rule cannot override what has been mentioned in the
aforesaid proviso to Rule 13. This is for the reason that
any contrary view would make the proviso altogether otiose.
It is a settled rule of interpretation that where two
provisions operate on one field, both have to be allowed to
have their play, unless such operation would result in
patent inconsistency or absurdity. If Rule 28 were to be
confined to the interruption between two substantive
appointments, as is the contention on behalf of the
appellant, we are of the view that both the aforesaid
provisions can co-exist, and harmoniously. Rule 13 being on
the subject of ’commencement’ of qualifying service, the
same has first to commence, which, in case the incumbent be
in temporary service first would not if there be
interruption between temporary service and substantive
appointment because of what has been mentioned in the first
proviso. Where the qualifying service has commence, Rule 28
would take care of interruption; and the period of in-
terruption would then stand condoned in the absence of a
specific indication to the contrary in the service book.
This is the field of operation of these two Rules, according
to us, as the same would permit,in such a case, both the
provisions to coexist.
10. For the aforesaid reasons, we hold that there being
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interruption in the present case between the temporary
service of the
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respondent as Pool Officer and the subsequent substantive
appointment, the period of temporary service cannot be
counted as qualifying service for the purpose of pensionary
benefits. The appeal is, therefore, allowed by setting
aside the impugned judgment. We, however, to make no order
as to costs.
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