Judgment :- K. Chandru, J. Heard the arguments of Mr. Karthik Rajan, learned counsel appearing for the petitioners, Mrs. R. Maheswari, learned counsel for the first respondent and Mr. V.K. Rao, learned counsel representing Mr. M.T Arunan, learned counsel for the respondents 2 and 3 and have perused the records. 2. These writ petitions are filed by the petitioners against the common judgment dated 27. 2005 passed by the Central Administrative Tribunal [for short, CAT] in dismissing the Original Applications in respect of withdrawal of 40% fitment benefit and consequent recovery of amounts. But the CAT in the very said order protected the interest of the petitioners by restraining the respondents from making any recovery on account of excess payment paid due to pay revision given to the petitioners. The respondents have not challenged the said portion restraining the recovery of amounts. 3. Even at the time of entertainment of the writ petitions, this Court refused to grant stay of the consequential refixation. .4. The petitioners were all employed by the Indian Council of Medical Research [ICMR] as project staff and their services have not been regularised. The Central Government constituted Fifth Pay Commission for revising the scales of pay of the Government staff. The recommendation of the said Commission was accepted by the Central Government with effect from 01.01.1996. The question of extending the revised scale of pay to the staff engaged in the adhoc research centres / projects in the Institutes was considered by the Board of Governors of ICMR and by an order dated 07. 1999, the ICMR directed the pay of staff on adhoc projects to be computed in terms of the recommendations of the Fifth Pay Commission and the effective date was mentioned as 04. 1998 instead of 01.01.1996 as per the Commissions recommendations. It was also decided that the pay of the adhoc staff will be computed without allowing the benefit of additional 40% of the basic pay in the existing scale. If the said benefit of 40% of the basic pay in the existing scale of pay was allowed, it would have resulted in one additional increment for every three years of service and there would have been a difference in pay to persons, who are in long service as well as new entrants. 5. If the said benefit of 40% of the basic pay in the existing scale of pay was allowed, it would have resulted in one additional increment for every three years of service and there would have been a difference in pay to persons, who are in long service as well as new entrants. 5. After the pay fixation was done, it was found that it resulted in glaring anamolies and the respondents ICMR by an order dated 07. 2001 directed that pay of the staff appointed in running scales of pay working in various long term extra mural research projects will be revised with effect from 04. 1998 by adding the fitment benefit of 40% of basic pay in the pre-revised scales of pay. This was given effect to in respect of the petitioners and they have also got arrears of pay consequent on such fitment done. 6. However, on a clarification being sought by the ICMR from the Government, the Government of India, Ministry of Health and Family Welfare, by a letter dated 05. 2004, informed that the project staff of ICMR are not covered by the order of the Department of Expenditure and they are not eligible for the 40% fitment benefit. The Ministry of Finance also directed the ICMR to rescind the said order. In the light of the same, the respondent ICMR, by an order dated 15. 2004, rescinded the fitment formula and also ordered for recovery of the arrears paid pursuant to the earlier letter received from the headquarters and refixation was made. As against the said order, the petitioners moved the CAT with various Original Applications. .7. The respondents filed detailed counter statement dated 14.02.2008 justifying the rescinding of the earlier order as well as the order of recovery. The Tribunal, after hearing the parties, came to the conclusion that there was nothing wrong in the Government taking a policy decision by not extending the fitment formula in respect of the project staff. Once the project staff are not eligible for such a fitment pursuant to the directions of the Government of India, the petitioners have no legal right to claim such a fitment. Once the project staff are not eligible for such a fitment pursuant to the directions of the Government of India, the petitioners have no legal right to claim such a fitment. However, the Tribunal, after noting the order passed by the Karnataka Bench of the CAT and also after referring to the Supreme Court judgment in Shyam Babu Verma and others v. Union of India [1994 ATT (SC) 260], directed the respondents not to recover the arrears already paid. Not satisfied with the said order, the present writ petitions have been filed. But, however, there was no interim order granted in their favour and revised fixation was already done in the case of the petitioners. 8. Mr. Karthik Rajan, learned counsel appearing for the petitioners submitted that the petitioners, in so far as they were drawing the scales of pay and working in the projects for long number of years, are eligible for regularisation, which is pending consideration. In such of those cases, a conscious decision was taken to extend the benefit of 40% fitment and therefore, it cannot be withdrawn after sometime. The non-grant of fitment benefit will result in juniors and seniors getting the same scale and on that ground, the order rescinding the earlier order should be set aside. He also submitted that in as much as the ICMR is an autonomous body, it should not be directed by the orders of the Government to withdraw the benefit already granted to all the project staff by the ICMR. 9. Per contra, Mr. V.K. Rao, learned counsel appearing for ICMR submitted that the project staff are paid salaries from out of the project funds and they cannot get automatic revision of any scale of pay as are available to ICMR regular staff. Further, each project is budgeted in advance and if any increase is made, the same will create the project being closed due to financial crunch. The ICMR had mistakenly extended the benefits of 40% fitment to even the project employees and when the Government of India had clarified the same, there was no way in which the ICMR can take a different position and they are bound to obey the order of the Government since substantial funding is done by Government of India. The ICMR had mistakenly extended the benefits of 40% fitment to even the project employees and when the Government of India had clarified the same, there was no way in which the ICMR can take a different position and they are bound to obey the order of the Government since substantial funding is done by Government of India. He also submitted that the concept of equal pay for equal work claimed by the project staff vis-a-vi the regular staff of ICMR does not arise as they were dissimilarly placed. .10. In this context, the learned counsel referred to the judgment of the Supreme Court reported in S.C. Chandra and others v. State of Jharkhan and others [2007 (9) SCR 130] wherein M. Katju, J., in his concurring judgment, held that grant of pay scales is an executive or legislative function and not a judicial function. The said decision also came to be followed by the Supreme Court in the subsequent judgment in State of Punjab v. Surinder Singh and another [2007 (12) Scale 602]. The learned counsel further relied upon the following judgments of the Supreme Court in Union of India v. Mahajabeen Akhtar [ 2007 (12) Scale 771 ], K.S.Krishnaswamy v. Union of India [ 2006 (12) Scale 307 , Union of India v. Arun Jyoti Kundu and others [ 2007 (7) SCC 472 ] and Canteen Mazdoor Sabha v. Metallurgical and Engineering Consultants (India) Ltd. And others [ 2007 (7) SCC 710 ]. 11. The sum and substance of all these cases cited by the learned counsel was that the fixation of pay scale pursuant to the recommendations of the Commission are being done through a policy decision by the Government and that in the name of equal pay for equal work, the same cannot be directed to be implemented by orders of the Court. 12. We do not find that the petitioners have made out any case for the purpose of retaining the fitment formula and the consequential upward revision of the scale. The CAT has correctly rejected the case of the petitioners and also protected the interest of the petitioners by directing the amounts already paid not to be recovered by the respondents on the ground that it was not due to their misrepresentation, fixation was made. Reliance was placed by CAT upon the judgment of the Supreme Court in Shyam Babu Vermas case (cited supra). Reliance was placed by CAT upon the judgment of the Supreme Court in Shyam Babu Vermas case (cited supra). 13. Mr. Karthik Rajan, however, submitted that the petitioners had earlier got a favourable order before the CAT for regularising their services and on appeal, a Division Bench of this Court, by an order dated 28. 2006, in W.P. No. 25490 of 2002 and batch cases, had directed the ICMR to frame a scheme and absorb the existing project staff and since they were to be absorbed as regular staff, they should be given the benefit of pay fixation with 40% fitment formula. But, however, it was pointed out by the learned counsel for the ICMR that the said order of the Division Bench is under appeal before the Supreme Court in a S.L.P. and, therefore, unless such time the Supreme Court decides the matter, this Court cannot take note of the Division Bench order. In fact, precisely, for this reason, the Tribunal held that it does not want to prejudice the case of the petitioners claim for regularisation by rendering any findings. We are also not persuaded to take any contra view than that of the Tribunal. 14. In the light of the above, the writ petitions fail and the same are dismissed. However, there will be no order as to costs.