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30. The State Government evolved a method for the grant of incentive marks for Post Graduate admission by drawing a merit list for a total marks of 100, by computing the NEET PG 2017 marks and 10 marks for experience. The NEET marks and experience marks would be taken in the ratio of 90 : 10.

31. It was only to award incentive marks for all the Doctors who have served in notified areas and to give weightage to their experience, the State prescribed the method by allotting 10% marks maximum by way of service incentive. In case the NEET mark alone is taken as the basis to award weightage by giving incentive marks, such method would not reckon the services rendered for the common public good. The Government order fixing the norms for awarding incentive marks should be tested on the touchstone of remote and difficult area service.

Indisputably, there is a wide gap between the demand for basic health care and commensurate medical facilities, because of the inertia amongst the young doctors to go to such areas. Thus, giving specified incentive marks (to eligible in-service candidates) is permissible differentiation whilst determining their merit. It is an objective method of determining their merit.

40. The decision taken by the Medical Council of India and the State to award incentive marks was with a definite purpose to encourage remote and difficult area service. The benefit of such policy taken in larger public interest must go to all the Doctors, who have opted for such Service. The State has given an assurance that weightage marks would be given in case of taking rural practice. The Doctors, acting on such promise, agreed to practice in the notified areas with the hope that they would be in a position to secure admission for Post Graduate courses. Since the State has been following this system of awarding incentive marks for many years, the Doctors have no reason to think twice before opting rural service. These doctors have to serve the period prescribed by the State for service in remote and other areas for admission to the Pot Graduate course. The State continued to follow the Policy (adopted even before the introduction of the Proviso to Regulation 9(iv) to award incentive marks), notwithstanding the MCI Regulations providing for a different method of assessment of incentive marks.

29. In the present case, we have held that providing 30% reservation to in-service candidates in Post Graduate Degree Courses is not permissible. It does not however, follow that giving weightage or incentive marks to in-service candidates for Post Graduate Degree Courses entails in excessive or substantial departure from the rule of merit and equality. For, Regulation 9 recognizes the principle of giving weightage to in-service candidates while determining their merit. In that sense, incentive marks given to in-service candidates is in recognition of their service reckoned in remote and difficult areas of the State, which marks are to be added to the marks obtained by them in the NEET. Weightage or incentive marks specified in Regulation 9 are thus linked to the marks obtained by the in-service candidate in the NEET and reckon the commensurate experience and services rendered by them in notified remote/difficult areas of the State. That is a legitimate and rational basis to encourage the Medical Graduates/Doctors to offer their services and expertise in remote or difficult areas of the State for some time. Indisputably, there is a wide gap between the demand for basic health care and commensurate medical facilities, because of the inertia amongst the young doctors to go to such areas. Thus, giving specified incentive marks (to eligible in-service candidates) is permissible differentiation whilst determining their merit. It is an objective method of determining their merit.  31. However, in the present case, the Medical Council of India itself has framed a Regulation predicating one merit list by adding the weightage of marks assigned to in-service candidates for determining their merit in the NEET.  33. As aforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post Graduate Degree Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post Graduate Degree Courses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as this subserves larger public interest. Our view is reinforced from the dictum in Dr. Snehelata Patnaiks case (supra). The three Judges Bench by a speaking order opined that giving incentive marks to in-service candidates is inexorable. It is apposite to refer to the dictum in the said decision which reads thus:

7 The Writ Appeals were listed for hearing on 02.05.2017 and after hearing the submissions made by the respective learned counsel appearing for the parties, Judgments were reserved on 02.05.2017 and were pronounced on 03.05.2017.

8 The Honble Mr. Justice K.K.Sasidharan, in the judgment dated 03.05.2017 found that MCI Regulations provide for 30% of the NEET marks as weightage by way of incentive marks and the State norms restricts the weightage marks at 10% and there is no dilution of the standards set by MCI by taking 90% of the marks secured by the candidate in NEET and 10% for rural service, calculated in the marks indicated in the Prospectus. The learned Judge further observed that two regulations have to be construed harmoniously to achieve the common object of encouraging service in remote and difficult areas and to award incentive marks for such service. The learned Judge further observed that there is absolutely no conflict between the Central Regulation and the State Policy on account of different criteria followed for awarding incentive marks and the method evolved by the State therefore, meet the Equality Test under Article 14 of the Constitution of India. The learned Judge has also considered the issue relating to reservation in favour of in-service candidates and found that the writ petitioner did not make a challenge to the legality and correctness of the Prospectus issued by the State of Tamil Nadu and challenge is made only to the method adopted by the State Government for awarding incentive marks and held that the question as to whether the State was correct in reserving 50% of the seats in each specialty and in each college for service candidates requires to be decided in an appropriate proceedings with opportunities to the parties to file counter affidavit. The learned Judge having found that the writ petition was filed only for the relief of Mandamus and therefore, it is not permissible to expand the scope of the related appeals and test the validity of all the Clauses in the Prospectus and felt that there is no need to consider the legality and correctness of the Prospectus fixing 50% each for the in-service candidates and the award of uniform marks for both service and non-service candidates for experience, in the present intra court appeals. The learned Judge further observed that 07.05.2017, being the cut off date prescribed by the Honble Supreme Court of India for counselling, the questions regarding reservation for in-service candidates and award of incentive marks for experience for both the in-service and non-service candidates are kept open to be decided in appropriate proceedings. The learned Judge, citing the said reasons, had set aside the order dated 17.04.2017 made in W.P.No.6031 of 2017 passed in the writ petition and moulded the relief by directing the Selection Committee, Directorate of Medical Education to consider the case of the petitioner in W.P.No.6031 of 2017 for awarding weightage marks in accordance with the method indicated in the Prospectus for the year 2017-2018.