Judgment

MATHEW, J.:- This appeal, by special leave, is directed against a judgment of the Delhi High Court , passed in appeal from the order of a learned single Judge of that Court partially allowing a writ petition filed by the appellant.

2. The appellant, while holding medical licentiate qualification ,was taken in the Army Medical Service as an Emergency Commissioned Officer in the rank of Lieutenant on December 14, 1943. He functioned as commissioned officer for a period of three years, ten months and 26 days, and was relieved on November 10, 1947. He was again taken as a Short Service Commissioned officer on June 1, 1950, and served in that capacity for a period of 3 years, 5 months and 17 days, and he was relived on November 17, 1953, Thus the total period of his full commissioned service, both as Emergency and as Short Service Commissioned Officer, came to 7 years, 4 months and 13 days. In the year 1954, it was decided to form a reserve of medical officers to be called A.M.C. Reserve and Army Instruction No. I/S dated May 27, 1954, was issued by the Government of India for that purpose. According to the instruction, the A.M.C. Reserve was divided into our classes, A , B C and X Reserve Officers. Class C comprised specialist officers liable to report for colour service within 60 days. The appellant was recruited in the class C service of specialists. Paragraph (13) of the Army Instruction provided that officers of the AMC Reserve service, when called for training or colour service were to receive the same pay and allowances as laid down for regular officers of the A.M.C. of the corresponding rank in the New Pay Code for the duration of training or colour service. It further provided that for the released Emergency Commissioned and Short Service Commissioned officers appointed to the Reserve, the previous full pay commissioned service would count for pay. On August 1, 1958, the appellant was granted a Reserve Commission in Class C in the rank of Substantive Major under the terms and conditions of the army Instruction. Thereafter, the appellant was called to colour service, which, for all practical purposes, means whole time active service, and he reported for duty on January 22, 1963, and served from that date as a specialist in ophthalmology. As a reserve candidate, before being recalled to colour service, he had remained on training for a total period of one month. Adding the period of one month, the appellant had to his credit, "full pay commissioned service" of 7 years, 5 months and 13 days on the date of his reporting for colour service.

3. In the year 1965, Army Instruction No. I/S of 1954, was superseded by Army Instruction No. 176 That provided for the terms and conditions of service of the regular reserve of Medical Officers.

4. Paragraphs 7, 8 9 of Army Instruction No. 176 concerning ante-date of commission read. as follows:

"7. Previous Commissioned Service - Full pay commissioned service as a medical officer in the AMC will count for pay and promotion on appointment to reserve commission provided the candidate was in possession of medical qualifications recognised for grant of commission as a Lieut, in the AMC. This service will also count for pay and towards qualifying service limits for substantive promotion. However, in all cases periods of service forfeited by sentence of court martial or by summary award under section 84 of the Army Act (Act XLVI of 1950) will be deducted from the total service reckonable for pay/promotion as the case may be. In case the service in AMC was rendered while holding licentiate qualifications, the previous commissioned service less than two years will count, for pay and promotion.

"Previous service in a non-medical crops or in the IMD will not count for pay and promotion.

"Ante-date of commission: On recall to colour service or employment with officer s consent ante-date in addition to the entitlement under para 7 above will be admissible for purposes of pay and subst