ORDER : Shree Chandrashekhar, J. WP(S) No. 5204 of 2011 was filed by Bharat Roy, Debjayoti Banerjee and Baban Ram. These persons were holding the post of Chargeman and Assistant Personnel (HR) under the Garden Reach Shipbuilders & Engineers Limited and fall under the unionized category. 2. WP(S) No.6846 of 2011 was filed by 16 persons who accepted the voluntary retirement with effect from 31st October 2009. They were working in various capacity such as Assistant, Fitter, Pipe Fitter, Clerk, Welder, Gas Cutter, Machinist, Store Keeper, Rigger etc. and they also fall under the unionized category. 3. Both the writ petitions were dismissed by an order dated 27th November, 2015 on the ground that the writ petitioners belong to a distinct class, different from Board-level officials, Executives and non-unionized Supervisors. 4. Against the order dated 27th November 2015 passed in WP(S) No. 5204 of 2011, the present Letters Patent Appeal has been filed by the persons who have now superannuated from service. The appellant Nos.1 & 3 have retired on 30th April 2010 and the appellant No.2 has superannuated with effect from 1st January, 2009. The appellants have challenged the office memorandum dated 26th November 2008 issued by the Ministry of Heavy Industries and Public Enterprises on the basis of which enhancement of gratuity amount from Rs.3,50,000/- to Rs.10,00,000/- for the Executives and non-unionized Supervisors was made payable from 1st January 2007. They have also challenged the circular dated 2nd August 2010 by which the aforesaid enhancement in the gratuity amount has been restricted to Boardlevel Executives and non-unionized employees. 5. The representations made by the appellants seeking parity in enhancement of gratuity with effect from 1st January 2007 was rejected by the competent authority by an order dated 19th February 2011 and, therefore, this order has also been challenged by the appellants. 6. The Garden Reach Shipbuilders & Engineers Limited contested the writ petition mainly on two grounds: (i) enhancement of gratuity amount from Rs.3,50,000/- to Rs.10,00,000/- with effect from 1st January 2007 was, in fact, wage revision and not pursuant to amendment in sub-section (3) to section 4 of the Payment of Gratuity Act and (ii) the amendment in subsection (3) to section 4 of the Payment of Gratuity Act has been made effective from 24th May 2010 and by that date the appellants had already superannuated from service. 7. 7. The relevant paragraphs of counter-affidavit filed on behalf of the respondent Nos. 2 to 4 are extracted below: “6. That the Payment of Gratuity Act 1972 was amended vide the Payment of Gratuity (Amendment) Act 2010 (Act No.15 of 2010). Assent of President was received on 17th May 2010 and the same was published in the Gazette of India on May 18, 2010 whereby in sub-section (3) of Section 4 of the Payment of Gratuity Act, 1972 for the word "Three Lakhs and fifty thousand rupees", the word "Ten Lakhs rupees" was substituted. The Ministry of Labour and Employment, Government of India vide Notification No. S.O.1217 (E) appointed 24th day of May, 2010 as the date on which the said Act shall come into force. The same was also published in the Gazette of India dated May 24th, 2010. 7. That a Circular being HR/OS/INT/617/10 dtd. 2nd September, 2010 was Circulated by Director (Personnel) of Respondent No.-2. 8. That on the representation dated 15th January, 2010 of Sri A.K. Nag and 47 others on the subject of effective date of Gratuity the General Manager (HR&A) of Respondent No. 2 has after considering the entire pros and cons intimated Sri A.K. Nag vide letter no. HR/IR/279/11 dated 19th February, 2011 that the effective date of enhanced Gratuity is effective from 24th May, 2010 to the Unionised category of employees of GRSE Ltd. 9. That time and again the retired operatives requested to maintain one effective date for implementation of enhanced Gratuity. The matter was thoroughly examined and duly informed to Ministry of Defence, Government of India vide letters dated 11th March 2011, 18th April 2011 and 25th July, 2011. 10. That the Petitioner No. 2 Sri Debjyoti Banerjee (D.J. Banerjee) who had retired with effect from 1st January 2009 has claimed amended Gratuity as per Act No. 15 of 2010. He was duly replied vide letters dated 22nd November, 2010 and 4th May 2011. However, the letter annexed as Annexture-2 to this writ application is not correct Xerox copy of letter no. HR/IR/279/2011 dated 4th May, 2011. 11. That the Petitioner No. 2, D.J. Banerjee had also made a representation to the Ministry of Defence. On query after through scrutiny, the Respondent No. 2 vide letter no. However, the letter annexed as Annexture-2 to this writ application is not correct Xerox copy of letter no. HR/IR/279/2011 dated 4th May, 2011. 11. That the Petitioner No. 2, D.J. Banerjee had also made a representation to the Ministry of Defence. On query after through scrutiny, the Respondent No. 2 vide letter no. HR/IR/MOD/10 dated 1st March, 2011 intimated Ministry of Defence Government of India that since D.J. Banerjee had retired with effect from 1st January, 2009 and he being unionised employee, the Gratuity Amendment (2010) Act is not applicable to him. 12. That the answering Respondents do not deny and dispute the averments made in the writ application which are based on record of the case but emphatically deny all other statements. From perusal of Annexure A-2 & A-2/ I it would be evident that the Payment of Gratuity (Amendment) Act, 2010 is made effective from 24th day of May 2010, whereas the Petitioner Nos. 1 & 3 have retired with effect from 01.05.2010 and Petitioner No. 2 with effect from 1st January 2009. Hence the amended benefit is not applicable to them. 13. That so far the documents annexed as Annexure-4 with supplementary affidavit is concerned, it is respectfully submitted that the petitioner have not annexed the full and complete documents as it shows that the said office memorandum dated 26.11.2008 is for revision of scale w.e.f. 01.01.2007 and consequently the Gratuity has been raised and it is not under the Gratuity Act 1972 (Payment of Gratuity (Amendment)) Act 2010. The claim raised by the petitioners to provide enhancement of Gratuity amount in terms of Amendments of Gratuity Act has been made applicable from 24.05.2010 (vide Annexure -A/1) 14. That from perusal of Notification dated 26.11.2008 (Annexure G-2) it will be evident that this order is for the Board and below Board level Executives and not for all the employees. The amendment made in Gratuity Act is applicable to the employees which was made was effective from 24.05.2010 as per amendment Act (Annexure-A/1).” 8. In the aforesaid premises, the stand taken by the Garden Reach Shipbuilders & Engineers Limited is that the workmen like the appellants cannot lay a claim contrary to what has been agreed upon under the Wage Agreement which is binding upon the parties under section 18 of the Industrial Disputes Act. 9. In the aforesaid premises, the stand taken by the Garden Reach Shipbuilders & Engineers Limited is that the workmen like the appellants cannot lay a claim contrary to what has been agreed upon under the Wage Agreement which is binding upon the parties under section 18 of the Industrial Disputes Act. 9. Therefore, the respondents have referred to clause 59 of the memorandum of settlement between the trade union and the employer under which it was agreed upon by the parties that gratuity shall be paid to the unionized workers in terms of the applicable Act(s) and Rule(s) as notified/ amended by the Government of India from time to time. 10. Clause 59 of the memorandum of settlement reads as under: “59. General (a) Gratuity shall be paid as per the provision of the respective Acts and Rules as notified /amended by the Govt. of India from time to time. (b) The existing benefits and facilities not covered in this settlement will remain unchanged heretofore. (c) All statutory deduction will be applicable. Any advance / adhoc payment made against this settlement shall be recovered and adjusted with the wage arrear payment. (d) This Memorandum is in full and final settlement of all demands and issues raise by the Unions through the Charter of Demands submitted on 16 Jan 07, 11 Jan 07, 11 Jan 07, 18 Jan 07 and 04 Jan 07 by various Unions, after the expiry of the last wage settlement dated 05 Mar 2001. (e) It is agreed that any disagreement arising regarding the interpretation or implementation of the settlement, shall be resolved and settled through peaceful and legitimate means through mutual discussion. (f) During the currency of the Settlement, the Union and concerned employees agree that they shall not raise any demands involving additional financial expenditure / implication other than those covered by subsequent statutes if any, promulgated by the government. The Union and workmen also undertake that during the tenure of this settlement, industrial peace will be maintained and they will actively Co-operate with the Management to improve all round efficiency, Production / Productivity and maintain general discipline in the Company.” 11. The writ Court extensively referred to the communications between the parties and the recommendations of the Pay Revision Committee under the Chairmanship of Justice M. Jagannadha Rao, Retd. The writ Court extensively referred to the communications between the parties and the recommendations of the Pay Revision Committee under the Chairmanship of Justice M. Jagannadha Rao, Retd. Judge of the Supreme Court on the basis of which the pay scales of the Board-level Executives and non-unionized Supervisors were revised. The writ Court has also referred to the judgments in “Hari Ram Gupta (D) Thr. L.R Kasturi Devi v. State of U.P.” AIR 1998 SC 2483 and “Vice- Chairman and Managing Director, A.P. Sidc Ltd. and another v. R. Varaprasad and others” (2003) 11 SCC 572 to arrive at a conclusion that there was no discrimination between the writ petitioners and the other Board-level Executives and non-unionized employees who were granted enhancement in gratuity amount with effect from 1st January, 2007. 12. In the aforesaid background, the writ Court has held that the Board-level Executives and non-unionized Supervisors formed a distinct class whereas the writ petitioners were governed under the Wage Agreement/Settlement entered into between the trade union and the employer. 13. The writ Court has held as under: “9. I have considered the rival submission of the parties and gone through the relevant materials on record. As it appears that enhancement of gratuity on the previous occasion to Rs.3.5.Lakhs vide order dated 29th October, 1998 (Annexure-3) was brought into the effect only upon the amendment carried out in the Payment of Gratuity Act in the year 1998. It applies to all employees of the organization. The petitioners have been persuaded to draw parity with executive and non-unionized supervisor on the premise that there were no distinction between the different hierarchy and Grades of employees in the matter of gratuity as all are covered under the provisions of Payment of Gratuity Act, 1972. However as is borne out from the pleadings on record, it cannot be disputed that the pay structure and pay revision of executives, Board level employees, below Board level employees and non-unionized supervisors are guided by pay revisions effected on the recommendation of the Pay Commission through the Ministry of Heavy Industries & Public Enterprises. The pay structure, revision and other services conditions of such employees are not guided by any settlement or wage agreement entered into between the management and their trade Union as is the case in respect of petitioners who are unionized employees. The pay structure, revision and other services conditions of such employees are not guided by any settlement or wage agreement entered into between the management and their trade Union as is the case in respect of petitioners who are unionized employees. It is informed by learned counsel for the petitioners that wage agreement are entered at intervals of 5 or 10 years between the management and employee union. The Wage agreement which these petitioners are guided by, was last entered on 5th March, 2001 effective from 1st January, 1997 for a period of 10 years as would be evident from the memorandum of settlement (Annexure-E/3) to the counter affidavit of respondent nos.3 to 7 in W.P.(S) No. 6846 of 2011. The instant memorandum of settlement has been signed on 26th May 2010 and revision of wage and other benefits have been made effective from 1st January, 2007.The provisions at Clause 59 of the instant memorandum of settlement which relates to gratuity provides that it shall be paid as per the provision of the respective Acts and Rules as notified/amended by the Government of India from time to time. The amendment in the Payment of Gratuity Act through Act 15 of 2010 has been brought into force with effect from 24th May, 2010 in exercise of powers conferred Sub Section(2) of Section 1 of the Act. The amendment is prospective in nature and as per the provisions of Clause 59, enhancement of gratuity to all such employees covered under the Memorandum of Settlement dated 26th May, 2010 would be operative from the date of notification i.e.24th May, 2010.None of the serving employees have come before this Court alleging discrimination on the enhancement of gratuity of the executive and non-unionized supervisors/employees made effective from 1st January, 2007. 10. It is therefore evident that there is a distinct intelligible differentia between two classes i.e. executive and non-unionized supervisor/other employees compared with the petitioners and others who are unionized employees and are governed by Wage Agreement/settlement entered into under the provisions of Industrial Disputes Act and the Rules framed thereunder between the management and labour union. As is evident from the office memorandum dated 26th November, 2008 issued by Ministry of Heavy Industries & Public Enterprises (Annexure-G-2) to the counter affidavit of respondent no. As is evident from the office memorandum dated 26th November, 2008 issued by Ministry of Heavy Industries & Public Enterprises (Annexure-G-2) to the counter affidavit of respondent no. 2 to 4 in the first writ petition (Annexure-14 to the second writ petition) that the last revision of the scale of pay of below board level and Board Level executive and non-unionized supervisors in Central Public Sector Enterprises was made effective from 1st January, 1997 for a period of 10 years. As the next pay revision fell due from 1st January, 2007, Pay Revision Committee was set up under the Chairmanship of Justice M. Jagannadha Rao, Retd. Judge of Supreme Court of India to recommend revision of pay and allowances for above categories of employees following IDA pattern of pay scales. The Government has after consideration of the recommendation taken the decision in respect of the revision in pay scale in the manner prescribed in the said office memorandum. Clause 13 of the said office memorandum relates to Gratuity-;The ceiling of gratuity of the executives and non-unionized supervisors of the CPSEs would be raised to Rs.10 lakhs with effect from 1st January, 2007. As per Clause 16, the financial implication of the pay revision are to be borne by the concerned CPSE from their own resources and no budgetary support were to be provided. As has been discussed hereinabove classification is writ large in the two categories of the employees i.e., board level official, executive and non-unionized supervisor and those unionized employees, to which category the petitioners belong. Therefore, the plea of the petitioners of unreasonable classification or discrimination is not at all made out. Both the categories of employees are governed by different structures and pay revisions arrived at in a different manner and methodology. Therefore, no parity can be drawn by the petitioners with the executive and non-unionized supervisors/ employees of the Respondent-Company.” 14. There is no dispute that with effect from 24th May 2010, which is the date the amendment in section 4(3) of the Payment of Gratuity Act has been made effective, the benefit of enhancement in the gratuity amount from Rs.3,50,000/- to Rs.10,00,000/- has been extended to and made applicable to all including the employees like the appellants also. 15. There is no dispute that with effect from 24th May 2010, which is the date the amendment in section 4(3) of the Payment of Gratuity Act has been made effective, the benefit of enhancement in the gratuity amount from Rs.3,50,000/- to Rs.10,00,000/- has been extended to and made applicable to all including the employees like the appellants also. 15. The gazette notification dated 24th May 2010 is extracted below: MINISTRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi, the 24th May, 2010 S.O. 1217(E).-In exercise of the powers conferred by subsection (2) of Section 1 of The Payment of Gratuity (Amendment) Act, 2010 (15 of 2010), the Central Government hereby appoints the 24th day of May, 2010, as the date on which the said Act shall come into force. [F. No. S-42012/1/2008-SS-11 (Vol. II)] S. K. SRIVASTAVA, Addl. Sccy. 16. The judgment in “Justice S.S. Dewan” has been rendered in a different set of facts in the light of which the said judgment must be read and applied. 17. In “State of Punjab v. Justice S.S. Dewan” (1997) 4 SCC 569 , on which the appellants have placed reliance, the Hon’ble Supreme Court has held that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired earlier and some retired later, but this decision shall have no application to a case of this type. 18. In “Justice S.S. Dewan” the Hon’ble Supreme Court has observed as under: “8. Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. In D.S. Nakara case the change in the formula of determining average emoluments by reducing 36 months' service to 10 months' service as measure of pension, made with a view to giving a higher average, was regarded as liberalisation or upward revision of the existing pension scheme. In D.S. Nakara case the change in the formula of determining average emoluments by reducing 36 months' service to 10 months' service as measure of pension, made with a view to giving a higher average, was regarded as liberalisation or upward revision of the existing pension scheme. On the basis of the same reasoning it may be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum of pension can also be regarded as liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit. What has been done by amending Rule 16 is to make the period of practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retiral benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may be tempted to join it. Though Rule 16 does not specifically state that the amended rule will apply only to those who retired after 22-2-1990, the intention behind it clearly appears to be to extend the new benefit to those only who retired after that date. For these reasons the principle laid down in D.S. Nakara case that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired earlier and some retired later, will have no application to a case of this type. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S. Nakara case to this case. As rightly contended on behalf of the State, benefit of the amendment would be available to only those direct recruits who retired after it has come into force.” 19. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S. Nakara case to this case. As rightly contended on behalf of the State, benefit of the amendment would be available to only those direct recruits who retired after it has come into force.” 19. The reliance on “D.S. Nakara v. Union of India” (1983) 1 SCC 305 which lays down that there cannot be a distinction between two class of pensioners also does not lend help to the case of the appellants inasmuch as the amendment in the Payment of Gratuity Act has not been given retrospective effect. 20. The stand taken by the appellants that enhancement of gratuity to the Board-level Executives and the non-unionized Supervisors with effect from 1st January 2007 is discriminatory arises from a misreading of the notification dated 24th May 2010. Their contention is that the payment of gratuity does not discriminate between two class of employees. However, it is clear from a plain reading of the gazette notification dated 24th May 2010 that the amendment in the Payment of Gratuity Act has been made effective from 24th May 2010 and, therefore, the employees who had already superannuated from service cannot lay a claim for enhancement in gratuity amount payable to them at the time of their superannuation from service. 21. The basic distinction in the status of the appellants and non-unionized officers has brought in difference in their treatment. The office memorandum dated 26th November 2008 has been issued only in respect of the non-unionized officers and that the memorandum shall not cover the unionized employees take the appellants whose entitlement shall be decided with reference to the Wage Agreement. 22. This is well accepted in law that there can be a cut-off date fixed in every scheme or a revised scheme for granting benefit to the serving and retired government employees. The appellants who had superannuated from a date prior to 24th June 2010 from which date amendment in section 4(3) of the Payment of Gratuity Act for enhancing the gratuity amount has been made effective cannot claim the benefits thereunder. The amendment in section 4(3) of the Payment of Gratuity Act has not been made effective from a retrospective date rather the gazette notification dated 24th May 2010 makes it clear that the amendment shall become effective from the said date. 23. The amendment in section 4(3) of the Payment of Gratuity Act has not been made effective from a retrospective date rather the gazette notification dated 24th May 2010 makes it clear that the amendment shall become effective from the said date. 23. In “Union of India v. P.N. Menon” (1994) 4 SCC 68 the Hon'ble Supreme Court has held as under: “8. Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of postretirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to “picking out a date from the hat”, as was said by this Court in the case of D.R. Nim v. Union of India in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government.” 24. There is no provision under the Gratuity Act or any judgment to the effect that contrary to the appointed date fixed under the gazette notification the benefit flowing from the amendment in sub-section (3) to section 4 of the Payment of Gratuity Act can be given from a retrospective date. 25. In view of the aforesaid discussions, we are unable to record our disagreement with the findings recorded by the writ Court and, accordingly, LPA No.29 of 2016 is dismissed.