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15. It is the admitted case of the parties that even after the introduction of the proviso to sub clause IV of Clause 9, incentive marks were given to the inservice candidates in the State of Tamil Nadu in accordance with the earlier Government Orders and the last Government Order in G.O.Ms.No.332 dated 24 December 2010. The system worked very well without any complaint from the applicants for admission to the Post Graduate courses.

The First Issue - Maintainability of Writ Petition

16. There was no challenge to the method adopted by the State Government for giving weightage by incentive marks for remote and difficult area service. The Government Policy is reflected in the prospectus issued by the Directorate of Medical Education. The first respondent in W.A.No.498/2017 filed only a writ of mandamus to direct the Selection Committee to award him marks in accordance with the Post Graduate Admission Regulation 2000 issued by MCI. The first respondent, who filed the writ petition was well aware that there was a method evolved by the State for awarding weightage marks which was in operation all these years and the same was reflected in the Prospectus for 2017-18 also. He failed to challenge the vires of the State Regulation prescribing a method different from the method prescribed by MCI, for awarding incentive marks. The Selection Committee constituted by the Government is only an implementing agency of the policy adopted by the State. There was no legal right to the first respondent in W.A.No.498/2017 to direct the Selection Committee to award marks in accordance with MCI Regulations without challenging the method adopted by the State. Similarly, there was no corresponding duty on the part of the Selection Committee to follow the method suggested by MCI in view of the method adopted by the State. The mandatory condition for issuing a writ of Mandamus, was not satisfied by the first respondent in the writ appeal in W.A.No.498 of 2017. This fundamental defect was not taken note of by the learned single Judge. The learned single Judge without there being a challenge to the method evolved by the State by adopting a policy, issued a mandamus to the Selection Committee to follow the method prescribed under the MCI Regulations. It is a matter of record that even while issuing the writ to award marks as per MCI Norms, the learned single Judge has not quashed the State norms for awarding incentive marks. We are therefore of the view that the learned single Judge ought to have dismissed the writ petition filed for a Writ of Mandamus without there being a challenge to the policy adopted by the State and indicated in the prospectus. The first issue is therefore decided againt the first respondent in the intra court appeals.

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: