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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) 182 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, 183 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 184 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. 185