Judgment N. Paul Vasanthakumar, J. 1. W.P.No.18206 of 2012:- The prayer in the writ petition is to quash the order of the Central Administrative Tribunal made in O.A.No.935 of 2010, dated 30.3.2012, wherein the petitioner has prayed to quash the order passed by the respondent dated 1.4.2009 and consequently direct the respondent to restore the petitioner to original status of scale of pay existing as on 31.3.2009 w.e.f. 1.4.2009 with all increments and attendant benefits. 2. W.P.No.18207 of 2012 :- The prayer in the writ petition is to quash the order of the Central Administrative Tribunal made in O.A. No.1027 of 2010, dated 30.3.2012, wherein the petitioner has prayed for a declaration to declare the action of the respondent in pre-closing the terminal dues payable and crediting the same in the SB account is invalid and without jurisdiction and direct the respondent to re-credit the terminal dues to their respective accounts by reversing the payment made by the respondent on 19.3.2010 and also direct the respondent that the terminal dues shall be paid only in accordance with the provisions of the relevant Acts/Rules as and when it becomes payable. 3. It is the contention of the petitioner that he was appointed as Project Scientist in Marine Archaeology project on 22.4.2002 for a period of one year. The tenure was extended till 21.4.2004, by order dated 23.4.2003. Thereafter, an advertisement was made inviting candidates for the post of Scientist in Category "D". The petitioner applied by submitting his application dated 9.10.2003. After following the due procedures, namely, interview, he was selected and appointed in the temporary post as Scientist-D on the project mode in the scale of pay of 12000-375-16500 on 18.12.2003 for a period of two years. The tenure was periodically extended upto 31.3.2009. While the petitioner was serving in the said capacity, on 1.4.2009, the petitioner's service was extended upto 31.3.2012 stating that the said appointment will be as Project Scientist-III under contract of employment. The said order was also signed by the Director and the petitioner served till 31.3.2012. Thus, the petitioner continuously served from April, 2002 without any break till 31.3.2012. 4. The grievance of the petitioner before the Central Administrative Tribunal was that even though vacancies were available for continuance, the respondent by order dated 1.4.2009 converted the post as contractual post with the consolidated package of Rs.56,800/-. Thus, the petitioner continuously served from April, 2002 without any break till 31.3.2012. 4. The grievance of the petitioner before the Central Administrative Tribunal was that even though vacancies were available for continuance, the respondent by order dated 1.4.2009 converted the post as contractual post with the consolidated package of Rs.56,800/-. In the said order, it was stated that the petitioner will be informed that the payment of provident fund benefit would be by NIOT CPF Rules as applicable and payment of gratuity shall be as per the Payment of Gratuity Act, 1972, if applicable and admissible. 5. The said contract employment was also stated as the whole time service. The respondent calculated the provident fund and gratuity payable upto 31.3.2009 and a sum of Rs.1,20,464/- being the gratuity and a sum of Rs.7,59,682/- by way of provident fund was credited to the petitioner's SB Account No.2874101008464, Canara Bank, NIOT Campus Branch. The said amount sanctioned was already returned by the petitioner by a Demand Draft with covering letter dated 1.4.2010 to the respondent. 6. Another communication was issued by the respondent on 5.7.2010 stating that the revised remuneration and terms and conditions was enclosed and the acceptance of the same may be given within fifteen days and in case, no acceptance of offer is received, the terms and conditions, remuneration will remain in force as per the offer of appointment dated 1.4.2009 until its expiry. The petitioner has not given any acceptance. Therefore, he continuously served as per the offer of appointment dated 1.4.2009. 7. On 6.8.2010, another communication was issued to the petitioner stating that the petitioner has to give his offer of acceptance pursuant to the letter dated 1.4.2010 latest by 13.8.2010, failing which it will be presumed that the petitioner will be no more interested in continuing on contract appointment and the appointment will be ceased to be operative after 13.8.2010. Having aggrieved, the petitioner filed Original Application No.935 of 2010 and obtained interim order. By virtue of interim order granted, he served and retired on 31.3.2012. Having aggrieved, the petitioner filed Original Application No.935 of 2010 and obtained interim order. By virtue of interim order granted, he served and retired on 31.3.2012. The said prayer in the original application was opposed by the respondent by filing a counter affidavit stating that due to the acceptance of Sixth Pay Commission recommendation by the respondent, the scale of pay paid to the contract employees were changed as consolidated pay scheme and the petitioner was one among the contract staff who served with the offer of engagement as Project Scientist-III with basic remuneration of Rs.49,550/- + HRA of Rs.9,940/- put together Rs.59,490/- per month with an increase of Rs.2,690/-, over the remuneration paid to him in 2009-2010 with other service conditions remaining the same except deleting the clause relating to CPF rules. 8. Insofar as the claim of petitioner seeking payment of gratuity upto 31.3.2012 is concerned, there is no answer in the counter affidavit filed. The Central Administrative Tribunal considering the counter affidavit filed, dismissed the original application stating that the petitioner has not paid the provident fund contribution and the respondent has also not remitted employees' contribution. 9. Insofar as the payment of provident fund and gratuity are concerned, in the offer of appointment dated 1.4.2009, two clauses were incorporated inadvertently, viz., for payment of gratuity and provident fund. Therefore, the petitioner has no enforceable right to claim the gratuity upto 31.3.2012 as well as provident fund arrears upto 31.3.2012. Aggrieved by the said order, these writ petitions have been filed by the petitioner with the above said prayer. 10. The learned counsel for the petitioner submitted that Section 4 of the Payment of Gratuity Act, 1972 contemplates the payment of gratuity on completion of five years service and the petitioner having served from 2002-2012, ten years period should be calculated for the payment of gratuity. The learned counsel also submitted that the respondent has not obtained any exemption from the Central Government under Section 5 regarding the applicability of Payment of Gratuity Act, 1972, as on today. The learned counsel also relied on Section 14 of the Payment of Gratuity Act, 1972, which states that the Payment of Gratuity Act will override other enactments, contract etc., which reads as follows:- "14. The learned counsel also relied on Section 14 of the Payment of Gratuity Act, 1972, which states that the Payment of Gratuity Act will override other enactments, contract etc., which reads as follows:- "14. Act to override other enactments, etc.- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." The learned counsel therefore submitted that the gratuity is payable to the petitioner as per the Payment of Gratuity Act, 1972 which is a statutory right, which cannot be taken away or by virtue of the fresh appointment order issued on 1.4.2009 particularly when there is no break in service. In support of his contentions, the learned counsel for the petitioner also cited the following judgments. (i) 1980 (1) LLN 460 (Transistor Products (Private) Ltd., vs. P. Ranganathan & Others) (ii) (1984) 3 SCC 518 (Katheeja Bai vs. Superintending Engineer and Others) (iii) (1998) 7 SCC 221 (Municipal Corporation of Delhi vs. Dharam Prakash Sharma and Another) The learned counsel finally submitted that in the recent decision reported in AIR 2013 SC 3383 (State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Another), it is held that right to get gratuity, pension and leave salary are declared as statutory right under Article 300A of the Constitution of India and therefore, the action of the respondent in not paying the gratuity and provident fund beyond 1.4.2009 is illegal. 11. In reply to the said submission, the learned counsel appearing for the respondent submitted that as per the Sixth Pay Commission recommendation, consolidated package was introduced and separate Provident Fund Scheme of NIOT was stated in the order dated 1.4.2010. The petitioner has also not contributed to his share to the provident fund and therefore, the petitioner is not entitled to get the provident fund upto 31.3.2012. Insofar as gratuity is concerned, the learned counsel submitted that the salary having been fixed at the rate of Rs.59,490/-, which is beneficial to the petitioner and the appointment made from 1.4.2009 to 31.3.2012 being a fresh contractual employment, the petitioner has not completed five years of continuous service. Insofar as gratuity is concerned, the learned counsel submitted that the salary having been fixed at the rate of Rs.59,490/-, which is beneficial to the petitioner and the appointment made from 1.4.2009 to 31.3.2012 being a fresh contractual employment, the petitioner has not completed five years of continuous service. Hence, the petitioner is not entitled to get payment of gratuity and the petitioner was appointed from 1st April, 2009 and served in the respondent till 31.3.2012. 12. It is true that on 1.4.2009, a fresh offer was made to place the petitioner as Project Scientist-III as contract basis with scale of pay of Rs.56,800/- (consolidated) and in the said offer, it is stated that provident fund benefit will be paid as per the NIOT CPF Rules as applicable and admissible. Insofar as the gratuity is concerned, the payment of gratuity will be paid as per the Payment of Gratuity Act, 1972, if applicable and admissible. Thus, it is evident that separate provident fund scheme of NIOT was stated and according to the learned counsel for the respondent, the petitioner was paid a sum of Rs.2,690/- additionally, which includes the total salary of Rs.59,490/-. 13. The learned counsel for the respondent, on the other hand, submitted that the petitioner was paid only a sum of Rs.56,800/- per month throughout and the submission of the learned counsel for the petitioner that Rs.59,490/- paid is not correct. The learned counsel also produced the salary certificate issued in November, 2009 to show that he was paid a sum of Rs.56,800/-. It is not in dispute that the petitioner has not contributed to the provident fund and if the amount of Rs.2690/- has not been paid towards the benefit arising out of NIOT CPF Rules, the petitioner can very well demand the same from the respondent. Therefore, the petitioner is not entitled to seek any provident fund amount apart from the amount payable as per NIOT CPF Rules. Insofar as the gratuity is concerned, Section 14 of the Payment of Gratuity Act, 1972 has an overriding effect on any other contract provided for the employees. In the offer of appointment dated 1.4.2009, it is clearly stated that the payment of gratuity shall be as per the Payment of Gratuity Act, 1972 and no contribution is payable for getting the gratuity on retirement. 14. In the offer of appointment dated 1.4.2009, it is clearly stated that the payment of gratuity shall be as per the Payment of Gratuity Act, 1972 and no contribution is payable for getting the gratuity on retirement. 14. We have considered the rival submissions and perused the orders of the Central Administrative Tribunal. 15. The Supreme Court in the decision reported in 1998) 7 SCC 221 (Municipal Corporation of Delhi vs. Dharam Prakash Sharma and Another) held that Section 14 of the Payment of Gratuity Act, 1972 will have effect notwithstanding the fact that an establishment is paying pension to its employees or any other benefits and the same view is taken by the Supreme Court in the decision reported in (1984) 3 SCC 518 (Katheeja Bai vs. Superintending Engineer and Others), in paragraph-4, it is held thus:- "4. In 1972, Parliament enacted the Payment of Gratuity Act, 1972 to provide for a scheme for the payment of gratuity to employees in certain establishments. There is no dispute that the Act applies to the Tamil Nadu State Electricity Board. Section 4 of the Act requires payment of gratuity to an employee who has rendered continuous service for not less than five years, on the termination of his employment on superannuation or on retirement or on his death or disablement due to accident or disease. The employer is required to pay the gratuity to the employee at the rate of fifteen days’ wages for each completed year of service or part thereof in excess of six months. The amount of gratuity is not to exceed 20 months’ wages. The employer is not required to pay any gratuity to an employee if the service of the employee has been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, or if the services of the employee have been terminated for riotous or disorderly conduct or any other act of violence on his part or if his services have been terminated for any act involving moral turpitude provided that such offence is committed by him in the course of his employment. Section 14 provides that the contribution of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than the Payment of Gratuity Act." Thus, it is evident that the respondent cannot take a stand that the gratuity is not payable to the petitioner by contending that the appointment from 1.4.2009 to 31.3.2012 is a fresh appointment and there is no continuity of five years of service. As already stated, the petitioner is continuously serving from April, 2002 to 31.3.2012 without any break. Merely because the conditions of appointment is modified as a contract appointment with consolidated salary from 1.4.2009 from that of the scale of pay paid earlier, the petitioner cannot be treated as an employee appointed afresh from 1.4.2009. It is not disputed by the respondent that no exemption was obtained under Section 5 of the Payment of Gratuity Act, 1972 from the Government of India. Thus, the petitioner is entitled to get gratuity as per statute. In the judgment of this Court in the decision reported in 1980 (1) LLN 460 (Transistor Products (Private) Ltd., vs. P. Ranganathan & Others), it is held that merely because the services are extended, the same cannot be treated as a fresh appointment for the purpose of calculating the gratuity and gratuity is payable to a person who serves more than five years continuously. Hence, the petitioner has satisfied the eligibility to get gratuity upto 31.3.2012. 16. In the judgment of the Supreme Court in the decision reported in AIR 2013 SC 3383 (State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Another), in paragraph-14, the Honourable Supreme Court held that payment of gratuity, pension and leave salary are the property of the person concerned, which cannot be taken away as it is guaranteed under Article 300 A of the Constitution of India. 17. Applying the said judgments to the facts of this case, we are of the considered and firm view that the order passed by the Central Administrative Tribunal is liable to be set aside and the writ petitions are allowed in part. Insofar as the claim of gratuity is concerned, the respondent is directed to calculate and pay the gratuity upto 31.3.2012. Insofar as the claim of gratuity is concerned, the respondent is directed to calculate and pay the gratuity upto 31.3.2012. Insofar as the claim of provident fund is concerned, as per the scheme of the respondent, the petitioner is entitled to get a sum of Rs.2690/- per month from 1.4.2009. If the said amount is not paid to the petitioner for any reason, the respondent shall pay the said amount till 31.3.2012. The gratuity amount payable to the petitioner shall be worked out and paid to the petitioner as per Payment of Gratuity Act, 1972 and the same shall be paid within a period of two months from the date of receipt of a copy of this order. The respondent is also directed to pay interest as per the Payment of Gratuity Act, 1972 from 31.3.2012 till the date of payment. No costs.