Judgment

MATHEW, J. :- This is an appeal by Special Leave from the order dated the 9th of September, 1966 passed by the High Court of Mysore in a Writ Petition filed by the first respondent.

2. The first respondent was a combatant Clerk in the Indian Army for a period of more than 14 years. He was discharged from the post on 9th June, 1953. On 2nd July 1953, he was re-employed as an ordinary clerk on the pay scale of Rupees 55-3-85-EB-4-125-5-130. His pay was re-fixed in the above scale at Rs. 70/- plus a personal pay of Rs. 2.50 by an Order dated 28th October, 1958, with effect from the date of re-employment, i.e., 2-7-1953.

3. On 15th July, 1960 the Government of India, Ministry of Defence, issued a general Order called "Office Memorandum" No. 2(54)58/5801/D (Civil) providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service. The general effect of that Order was that those who are entitled to its benefits, would get fixed in the scale applicable to them by adding to the bottom of their scales increments equal to the total number of completed years of military service. The Order so far as it is relevant for the purpose of this appeal is contained in paragraphs 3 and 4 thereof and they read as follows :

"3. These orders will apply to all cases of reemployment occurring on or after 25-11-58 and past cases will not be reopened. In the cases of pensioners who are in service on the date of issue of these orders and have been reemployed from a date prior to 25-11-1958 for an unspecified period or for a period which extends beyond the date of issue of the presents orders may, subject to their option, be brought under the provisions of these orders with immediate effect.

4. The option should be exercised in writing within a period of three months from the date of issue of these orders. The option once exercised shall be final."

4. The first respondent claimed that he was entitled to the benefit of the Order but the claidm was rejected by the Government and so he filed the Writ Petition contending that as he answered the description of one to whom the benefit of the Order could properly the extended he should be given its benefit.

5. The High Court allowed the writ petition and issued an order directing respondent No. 2 to refix the pay of respondent No. 1 in the scale of pay of Rs. 55-3-85-EB-4-125-130 at Rupees 89/- as from 2-7-1953 and to make consequential adjustments and payments.

6. The appellant contended before us that the Order was not applicable to the first respondent, as he was re-employed before 25-11-1958 and his pay and already been fixed after reemployment and therefore according to the terms of the Order the case of the 1st respondent, being a past one, could not have been re-opened. To resolve this question, it is necessary to understand the provisions of the Order. The first sentence in para 3 of the Order makes it clear that it is applicable only to persons re-employed on or after 25-11-1958. The respondent No. 1 clearly does not come within this category. The Order then goes on to say that past cases will not be re-opened. That means that cases of persons re-employed prior to that date will not be re-opened. But the contention of the first respondent is that although he was re-employed prior to 25-11-1958, he is governed by clause (3) of paragraph 3, and as he has exercised the option pursuant to clause (4) of the Order he is entitled to the benefit of the Order. In other words, the contention was that an exception to the general rule that past cases will not be re-opened has been created by clause (3) of paragraph 3 of the Order in favour of persons who were re-employed from a date prior to 25-11-1958 for an unspecified period or for a period which extended beyond the date of the issue of the Order and who exercised the option to be brought under the provisions of the Order with immediate effect and as his case fell within the exception, he was entitled