Civil Appeal No 897 of 1987 From the Judgment and order dated 581986 of the Central Administrative Tribunal New Delhi in Regn
No T 853 of 1985 CWP No 2709 of 1985
G Ramaswamy Additional Solicitor General P Parmeshwaran and B Parthasarthy for the Appellant
Harish N Salve Pramod Dayal and Badri Dass Sharma for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The short question involved in this case is whether the members of the All India Services who had retired prior to 111973 are entitled to payment of gratuity as a part of retirement benefits at the rates specified in the Notification No 331273 AIS ii dated 241
This appeal by special leave is filed against the decision of the Central Administrative Tribunal dated August 5 1986 declaring that rule 286 of the All India Services Death cum Retirement Benefits Rules 1958 insofar as it tended to restrict pensioners to retirement benefits to which they were entitled on the date of their retirement and sought to deny them the benefits of the liberalised pension and 700 gratuity in the amended notification No 331273 AIS ii dated 2411975 was violative of Article 16 of the Constitution of India and further directing that all the members of the All India Services would be entitled to liberalised pensionary benefits including gratuity as per the said notification irrespective of whether they had retired prior to 111973 or thereafter
The above decision was given by the Central Administrative Tribunal New Delhi in REGN No T 85385 CW No 2709185 which was a petition filed by the All India Services Pensioners Association Rajasthan and one RD Mathur an IAS officer who had retired from service prior to 111973
The Union of India the appellant herein has not questioned the order of the Central Administrative Tribunal insofar as its liability to pay the pension in accordance with the judgment of the Tribunal is concerned
This appeal by special leave is confined only to that part of the order of the Tribunal by which the Union of India is directed to pay gratuity in accordance with the aforesaid notification even to those members of the All India Services who had retired prior to 111973
The crucial point for consideration in this appeal is whether the members of a service who had retired prior to the date on which there is an upward revision of the gratuity on retirement to the members of such service would also be entitled to claim the difference between the gratuity payable to members of such service on such upward revision and the gratuity which had been actually paid to them on their retirement even though the Government order revising the gratuity does not either expressly or by necessary implication state that the members of the service who had retired earlier should also be paid gratuity at the revised rates because of the decision of this Court in DS Nakara vs Union of lndia  A similar question came up for consideration before this Court in the State Government Pensioners Association  others vs State of Andhra Pradesh 1986 3 SCC 501
The facts of that case are these The Government of Andhra Pradesh by its order GOMs
No 88 dated 2631980 directed that retirement gratuity was payable to the officers to whom the said Government order was applicable as follows Retirement gratuity may be 13rd of pay drawn at the time of retirement for every six monthly service subject to maximum of 20 months  pay limited to Rs30000  The said order was made effective from April 1 1978
The question which arose for consideration in some writ petitions filed in the High Court of Andhra Pradesh was whether the pensioners who had 701 retired prior to 141978 would also be entitled to the payment of gratuity in accordance with the provision made in the aforesaid notification
The High Court of Andhra Pradesh held that the decision of this Court in DS Nakara s case supra was not applicable to the payment of gratuity and that pensioners who had retired prior to April 1 1978 would not be entitled to claim the difference between the gratuity payable under the Government order and the gratuity which they had actually received at the time of their retirement
In the Special Leave Petitions filed before this Court against the said decision two of the learned Judges of this Court Thakkar and Ray JJ
affirmed the view taken by the High Court of Andhra Pradesh and dismissed the petitions
In the course of their order the learned Judges observed as follows We fully concur with the view of the High Court
The upward revision of gratuity takes effect from the specified date April 1 1978 with prospective effect
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara s case    
An illustration will make it clear
Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision
Those who were in employment say in 1950 1960 or 1970 lived spent and saved on the basis of the then prevailing cost of living structure and pay scale structure cannot invoke article 14 in order to claim the higher pay scale brought into force say in 1980
If upward pay revision cannot be made prospectively on account of Article 14 perhaps no such revision would ever be made
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement
The amount got crystalized on the date of retirement on the basis of the salary drawn by them on the date of retirement
And it was already paid to them on that footing
The transaction is completed and closed
There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively downward revision may not be legally permissible even
It would be futile to contend that no upward revision of gratuity amount can be made in har 702 mony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950 and the date of upward revision
There is therefor no escape from the conclusion that the High Court was perfectly right in repelling the petitioners  plea in this behalf
 When the above decision was brought to the notice of the Tribunal in the case out of which the present appeal arises the Tribunal declined to follow it and gave the following reasons for doing so We must however observe that the Supreme Court in that case was dismissing Special Leave Petition Civil Nos 14179 and 14180 of 1985 and was not disposing of an appeal
Further the Supreme Court in that case was considering the Andhra Pradesh Pension Rules and not rule 286 of the All India Services Death cum Retirement Benefit Rules 1958 and the liberalisation pension scheme of Andhra Pradesh notified on 2411985 and not the notification dated 2411975 amending the All India Services Death cum Retirement Benefit Rules 1958 with which we are now concerned in this application
Moreover the Special Leave Petition against the Andhra Pradesh High Court s judgment was rejected by a Bench of two Judges while the judgment in VP Gautam s case which expressly dealt with Rule 286 and the liberalised pension scheme notified on 2411975 in respect of Members of All India Services was the subject matter of an appeal before a bench of three judges of the Supreme Court
The relevant portion of the judgment of the High Court of Punjab and Haryana which must be deemed to have been affirmed by the three member Bench of the Supreme Court when it dismissed Civil Appeal Nos 2738 and 2739 of 1985 on 1221985 reads as follows In other words the provisions of rule 286 of the retirement benefits rules 1958 in so far as they were entitled on the date of their retirement and seeks to deny them liberalised pension under the amended rules referred to above which came into effect subsequent to that date are unconstitutional and are also accordingly struck down
It follows that the liberalised pensionary benefits including death 703 cum retirement gratuity granted to pensioners by the amendment made in 1975 and 1979 shall be payable to all persons entitled to pensionary benefits under the Retirement benefits rules 1958 irrespective of the date of the retirement from service
It has been repeatedly laid down by the Supreme Court that the decision of the larger Bench prevails over the decision of the smaller benches vide Ganapati Sitaram Balvalkar vs Waman Shripad Mage AIR 1981 SC 1956 Mattulala vs
Radhe Lal AI R  Union of India vs KS Subramanian AIR 1976 SC 433
Even assuming that some aspects have not been taken into account by the Supreme Court no Court or Tribunal of India can take a view different from that taken by the Supreme Court
As held by the Supreme Court in T Govindaraja Mudaliar vs State of Tamilnadu  merely because the aspect presented in the present appeal was not expressly considered or a decision given that will not take away the binding effect of those decisions of the Supreme Court
 Vide Somavanti vs State of Punjab  It may be pertinent to note that even in the Andhra Pradesh State Government Pensions Association case the judgment in VP Gautam s was specifically referred to but the Supreme Court did not state that it was not correctly decided
Further in all the above cases special leave applications were rejected following the principle laid down in Nakara s case
In Gautam s case the appeal filed by the Union of India was dismissed applying Nakara s case
In dealing with the claim of the other members of the All India Services who like VP Gautam had retired prior to 111973 we cannot hold otherwise in construing rule 286  in the context of the liberalised pension scheme of 1975 The conflict if any must be resolved by the Supreme Court
We must follow the decision in VP Gautam s case which is directly in point
 With great respect to the Tribunal it should be stated that the way in which it has tried to ignore the decision of this Court in the Andhra Pradesh State Government Pensioners Association case 704 supra is not correct
In the above decision the two learned Judges who decided that case have given reasons for not applying the rule in DS Nakara s case supra insofar as the liability of the Government to pay gratuity on retirement is concerned
The first ground relied on by the Tribunal not to follow the said decision is that it had been rendered by this Court while dismissing some special leave petitions
This is a wholly untenable ground
The special leave petitions were not dismissed without reasons
This Court had given reasons for dismissing the special leave petitions
When such reasons are given the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India
The second ground given by the Tribunal is that the decision was one rendered in a case involving a notification issued by the Andhra Pradesh Government but not one touching the notification dated 2411975 involved in this case
This is also not tenable
The Supreme Court was considering the question of applicability of the principle enunciated in DS Nakara s case to the case of gratuity
The views expressed by this Court should therefore apply to all cases of gratuity where similar features exist and it should apply to the present case too
If what the Tribunal has held is correct then D section Nakaras case will not be applicable to any order of pension passed by any State Government
That would indeed be a startling proposition with which we do not agree
As regards the third ground it is no doubt true that the High Court of Punjab  Haryana in its decision in V P Gautama vs Union of India and Ors 1984 Labour and Industrial Cases 154 had observed that it follows that the liberalised pensionary benefits including death cum retirement gratuity granted to pensioners by the amendment made in 1975 and 1979 shall be payable to all persons entitled to pensionary benefits under the Retirement Benefits Rules 1958 irrespective of the date of the retirement from service
But at the end of its decision the High Court passed the following order In the result a writ of mandamus is issued to the Union of India and the other respondents directing them to compute and pay pensionary benefits to the petitioner along with interest on the amounts becoming payable to him in terms of this order
The petitioner shall also be entitled to the costs of this petition
 When the Special Leave Petition was filed against the said decision this Court passed the following order 705 Special leave to appeal was confined only to two questions 1 whether the enhanced pension under the liberalised pension scheme was payable with effect from 1st October 1974 and 2 whether the High Court had any jurisdiction to award interest at 12 per annum
So far as the first question is concerned it is fully covered by DS Nakara  Ors
vs Union of India
We are not inclined to go into the second question in the present appeals
The appeals are therefore dismissed
No costs
 The above decision was rendered by a bench of three Judges of which one of us was a member
It is seen from the above order that there is no reference to the liability of the Union of India and the State of Haryana to pay the gratuity to the pensioner who was involved in that case
The first question considered related to the payment of enhanced pension
It is not known whether the question relating to gratuity was pressed before this Court or not
There is no reference to the liability to pay gratuity in the said order
The only point considered by this Court by the above order was the point involved in question No 1 referred to therein namely whether the enhanced pension under the liberalised pension scheme was payable with effect from 1st October 1974 and insofar as that question was concerned the view taken by the High Court of Punjab  Haryana was affirmed
It may be that the decision of the High Court of Punjab and Haryana may be binding on the parties to that petition as res judicata
But the above order of this Court cannot be considered as a precedent under Article 141 of the Constitution to hold that the liability to pay gratuity was also governed by the decision in DS Nakara s case
It may be pointed out that in ML Abhyankar and others etc
vs Union of India Writ Petition Civil Nos
3531 34 of 1983 and connected cases decided on April 24 1984 a bench of three Judges of this Court which consisted of two of the Judges who dismissed the appeal filed against the judgment of the High Court of Punjab  Haryana referred to above has observed thus In view of our decision in DS Nakara vs Union of India  and for the reasons mentioned by the Allahabad High Court in Writ Petition No 3201 of 1979 dated 21311983 in the case of Bidhubhushan Malik and others vs Union of India which we have accepted as correct in Special Leave Petition No 9616 of 1983 just now dismissed by us we allow the writ petitions
The judges of the High Court and of the Supreme Court will be entitled to the pensionary benefits under the amended Act of 1973 706 irrespective of the dates of their retirement
They will be so entitled with effect from 1101974
Arrears of pension calculated under the provision of the new Act will be paid to those to whom it is due within four months from today
In the case of Judges who have died after 1101974 the amounts due will be paid to the legal heirs of the Judges within four months from today
The family pension due to the widows will be calculated under the provisions of the 1976 Amending Act and paid to them
Ad hoc payments made if any will be adjusted while making such payments
The writ petitions are disposed of accordingly
What we have said about pensionary benefits does not apply to payment of gratuity  underlining by us From the foregoing it is clear that this Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement
While pension is payable periodically as long as the pensioner is alive gratuity is ordinarily paid only once on retirement
No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray JJ
in the Andhra Pradesh State Government Pensioners Association s case supra and to the decision in M L Abhyankar s case supra has been brought to our notice
The observations made in these two cases are binding on us insofaras the applicability of the rule in DS Nakara s case supras to the liability of the Government to pay gratuity on retirement
We respectfully agree with the views expressed in those decisions
It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 111973 would be entitled to any additional amount by way of gratuity
The Tribunal was therefore in error in upholding that gratuity was payable in accordance with the Government Notification No 331273 AISii dated 2411975 to all those members of the All India Services who had retired prior to 111973
The Judgment of the Tribunal is set aside to the extent indicated above
We make a declaration that the members of the All India services who had retired prior to 111973 are not entitled to claim gratuity on the basis of the Notification referred to above
The appeal is allowed to the above extent
There will be no order as to costs
NVK Appeal allowed


Summary:
 The 1st respondent was appointed as a Lecturer in the appellant College on 26th July 1971 and was placed under probation for one year
He was informed by a letter dated 28th March 1972 that his services were no longer required and would stand terminated with effect from the afternoon of 30th April 1972
The 1st respondent challenged the aforesaid termination order by a writ application contending that his appointing authority was The Managing Committee or the Governing Body of the College and as such the order of termination of his services by the Principal of the College was without jurisdiction
The writ application was contested on behalf of the Appellant by contending that the Principal who was the Ex officio Secretary was the appointing authority and was vested with the power to terminate the appellant s services
On behalf of the director of Public Instruction who was also a party to the writ application it was stated that both the orders of appointment and termination h ad been passed by the Governing Body and the Principal who communicated the same to the 1st respondent was acting on behalf of the Governing Body and that the DPI was not concerned with the termination orders passed before 3rd of May 1972 the date from which 1974 Amendment of the Orissa Education Act 1969 took effect and that the DPI had no power to look into the matter
The High Court rejected the objection to the maintainability of the writ application on the ground that the College was a private institution and held that in view of the provisions of the orissa Education Berhampur University Act 1966 and the Berhampur university Statutes 1966 the college must be considered to be a statutory body amenable to the writ jurisdiction
It held that undoubtedly until confirmation petitioner had no right to the post and during the period of probation he could be turned out from his service but in view of the language of the appointment letter and the termination order both the orders have been passed by some authority other than the Principal and the Principal was merely a communicating agent
It opined that the termination order did not emanate from the Governing Body of the College which alone had the power to terminate the services of a teacher and as such held that the termination order was issued without jurisdiction
The writ application was allowed and the 1st respondent was declared to have continued in service
Allowing the appeal by the College this Court  HELD l
The writ petition was founded on the assumption that it was the Principal who had passed the termination order by himself and that he had no jurisdiction to do so
Instead of merely pointing out that it was not so the affidavit on behalf of the College made a confused statement forgetting that the Principal was only one of the members of the Governing Body
Both sides thus misrepresented the situation before the Court711D E 2
Although it is permissible for a tribunal to accept part and reject the rest of any witness s testimony so far as admission in pleading is concerned it cannot be so dissected
It may be accepted as a whole or not at all
7l2A B MM Essabhoy vs M Haridas AIR 1915 PC 2 referred to
The case of the College had been that both the appointment and the termination orders were given by the Principal
This plea is of course incorrect but for that reason the statement by the College cannot be truncated and part of it accepted while rejecting the other part
It had to be accepted as a whole or not at all
711H 4
The finding and the assumption made by the High Court that the termination order was passed by an authority other than the appointing authority being not supported by any material whatsoever on the record has to be set aside
712B 5
The burden of proving the necessary facts for grant of relief 709 was on the writ petitioner which was not discharged
The writ application was therefore bound to fail
The decision of High Court is set aside and the writ petition dismissed
712B C