JUDGMENT Per Dev Darshan Sud,J. The petitioners are serving doctors (General Duty Officers), ‘GDOs’ for short, have filed the present writ petition praying that they be given the benefit of preferential marks to be awarded in terms of the Regulations of Medical Council of India known as Postgraduate Medical Education Regulations, 2000. 2.Bereft of details,the case of the petitioners is that according to the proviso to clause-9, which was inserted in 2012, they should be granted incentives in the award of marks obtained by them in the Entrance Examination to Postgraduate subjects in Medicines, which examination was conducted by the National Board. The proviso inserted in the Regulations in 2012, relied upon by them, reads:- “Clause-9. .... Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by State Government/Competent authority from time to time. ... ... ... ... ... ...” 3.It is undisputed before us that the examination is conducted by the National Board which is not a party to these proceedings.It is also undisputed that the petitioners herein are in-service candidates have served in various tribal/hard areas. 4.Before proceeding with the case further, we note that in Himachal Pradesh, 50% of the seats are reserved to be filled in by All India Competitive Examination and 50% by the State out of which 66.66% are reserved for in-service candidates. It is over and above this preferential treatment that the petitioners pray that incentive at the rate of 10% to 30% of addition in the marks for each year of service in remote and difficult areas up to maximum 30% of the marks be added to the award by the National Board. 5. This aspect has been considered in detail by the Supreme Court in Satyaprata Sahoo and Others vs. State of Orissa and Others, (2012)8 SCC 203 . There, the Supreme Court was dealing with clause 11.2 of the Prospectus issued by the Post Graduate (Medical Selection Committee of the State) on the basis of clause-9 of the Medical Council Regulations. 5. This aspect has been considered in detail by the Supreme Court in Satyaprata Sahoo and Others vs. State of Orissa and Others, (2012)8 SCC 203 . There, the Supreme Court was dealing with clause 11.2 of the Prospectus issued by the Post Graduate (Medical Selection Committee of the State) on the basis of clause-9 of the Medical Council Regulations. The Supreme Court, while considered the factual matrix, holds:- “12. The Medical Council of India, in exercise of its powers conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956, framed the Postgraduate Medical Education Regulations, 2000. Clause 9 of the Regulations 2000 deals with the selection of the postgraduate students. Clause 9(1) was substituted in terms of Notification published in the Gazette of India on 20.10.2008 and the same now reads as follows: “9(1) (a) Students for Post Graduate medical courses shall be selected strictly on the basis of their Inter-se Academic Merit. (b) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas.”(emphasis supplied) 13. Clauses 9(1)(a) and 9(1)(b) when read together would indicate that 50% seats are earmarked for direct category candidates and 50% seats are earmarked for in-service category. Clause 9(1)(a) clearly states that students for post graduate medical courses shall be selected strictly on the basis of their inter-se academic merit and Rule 9(1)(b) states that 50% of the seats stand reserved for in-service candidates who have at least three years service in remote and difficult areas. 14. Clause 9(1)(a) clearly states that students for post graduate medical courses shall be selected strictly on the basis of their inter-se academic merit and Rule 9(1)(b) states that 50% of the seats stand reserved for in-service candidates who have at least three years service in remote and difficult areas. 14. The methodology to be adopted for determining academic merit is provided in Clause 9(2), which is relevant for our purpose and hence extracted hereunder: “9(2) For determining the ‘academic merit’, the university/institution may adopt the following methodology:- (a) On the basis of merit as determined by a ‘competitive test’ conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same State; or (b) On the basis of merit as determined by a centralized competitive test held at the national level; or (c) On the basis of the individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise. Or (d) Combination of (a) and (c) Provided that wherever ‘Entrance test’ for postgraduates admission is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Provided further that in Non­governmental institutions fifty percent of the total seats shall be filled by the competent authority notified by the State Government and the remaining fifty percent by the management(s) of the institution on the basis of inter-se academic merit.” However, the following proviso was added after clause 9(2) (d) in terms of Gazette Notification published on 17.11.2009 and the same reads as follows: “Further provided thatin determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas up to the maximum of 30% of the marks obtained.” (Emphasis supplied) 15. Above Clause 9, therefore, stipulates the methodology to be adopted for determining the inter-se academic merit of candidates who fall under direct category and of those candidates who ultimately fall under 50% seats reserved for in-service candidates. Above Clause 9, therefore, stipulates the methodology to be adopted for determining the inter-se academic merit of candidates who fall under direct category and of those candidates who ultimately fall under 50% seats reserved for in-service candidates. Clause 9(1) (a) clearly stipulates that students for postgraduate medical courses shall be selected strictly on the basis of “inter-se academic merit”. The main controversy in this case is whether the candidates from direct admission category has to be selected strictly on the basis of their inter-se academic merit or whether it is legal to dilute the merit to the extent as indicated in the third Proviso to Clause 9(2) (d). Candidates who fall in the direct candidates category, whether they are fresh from the college or serving elsewhere, either on Government service or under public-sector undertakings, working in rural/tribal area or otherwise or doctors who are serving in private hospitals or nursing homes etc. situate in remote or difficult area, all fall in that direct category and all of them have to take a common entrance examination and admission criteria is only comparative merit. When the comparative merit is the only criteria in the open category, the question is whether a weightage can be given exclusively to those candidates who are in service of State of Odisha/Government of Odisha undertaking, whether contractual/temporary/ad-hoc/regular on the ground that they had worked in rural/tribal/backward areas. It may be noted that 50% seats have already been earmarked for such category of candidates which they can always claim depending upon the inter-se merit after complying with other eligibility criteria. Question is whether those in-service candidates can appropriate seats from the open category where seats are only few. 16. Clause 11.2 in the Prospectus issued by the P.G. (Medical) Selection Committee 2012, giving additional weightage to those in- service candidates, reads as follows: “11.2 Those in-service candidates who have qualified in the Entrance Examination and worked in Rural/Tribal/Backward areas shall be awarded an additional weightage of 10% of the marks secured in the P.G. Entrance Examination per year of completion of service (in Rural/Tribal/Backward areas), subject to maximum of 30% of marks secured in entrance examination, vide MCI Notification No.51210/ dt.17.11.2009 (In Form No.Appendix-III(A)).” 17. Candidates fall under the direct category are provided under Clause 6 of the prospectus, which reads as follows: “6. CATEGORY OF CANDIDATES: 6.1. Candidates fall under the direct category are provided under Clause 6 of the prospectus, which reads as follows: “6. CATEGORY OF CANDIDATES: 6.1. A Direct Candidate is one who at the time of application: 6.1.1 Is son/daughter/spouse of a person who has served in defence service for minimum of 5 years by 31.12.2011. 6.1.2 Is either unemployed or in the employment of Government of Odisha, but has not completed five years of service which includes all categories of employment like contractual/temporary/ad-hoc/ regular by 31.12.2011 6.1.3 in the employment of Government of Orissa Public Sector Undertaking/ Government of India Public Sector Undertaking located in Odisha. The employer has to sponsor the candidates for entire period & must submit the sponsorship certificate as in Appendix III.” Clause 6.2 deals with in-service candidate which reads as follows: “6.2 An in-service candidate is one who at the time of application: 6.2.1 Is in the employment of Government of Odisha and has completed a length of 5 years of service which includes all categories of employment like contractual/ temporary/ad-hoc/regular by 31.12.2011 excluding at-a-stretch leave of any kind, of 30 days or more. However, maternity leave is exempted from this exclusion and shall be counted towards the length of five years of service. Note: In-service and direct candidates in employment under Government of Odisha at the time of application are advised to submit their applications along with the required documents directly to the Convenor, P.G. (Medical) Selection Committee, 2012, under intimation to their employer. Copy of such intimation is to be attached.” 18. Clauses 6.1, 6.2 and 11.2, quoted above, clearly recognize two categories of candidates i.e. “direct” and “in-service”. “Direct” is a very wide category (open category) where students for P.G. Medical Courses shall be selected strictly on the basis of inter-se academic merit, as determined by a competitive test and in- service is a restricted category of candidates who are in service of the State Government/State owned undertakings. The details of the availability of seats are provided in Clause 4 of the prospectus which is as follows: “Categorywise distribution of seats Category MD/MS Course Unreserved ST(12%) SC(8%) PH(3%) Defence(3%) Green card (5%) Total In-service 62 10 7 3 0 5 87 Direct 59 11 7 2 3 4 86 Total 121 21 14 5 3 9 173" 19. The details of the availability of seats are provided in Clause 4 of the prospectus which is as follows: “Categorywise distribution of seats Category MD/MS Course Unreserved ST(12%) SC(8%) PH(3%) Defence(3%) Green card (5%) Total In-service 62 10 7 3 0 5 87 Direct 59 11 7 2 3 4 86 Total 121 21 14 5 3 9 173" 19. Seats in the direct category are also reserved for members of SC/ST communities and also to those SC/ST candidates migrated from their State of origin subject to certain conditions. Clause 6.4 reserves seats for children or spouse of service/ex­service personnel (defence). Clause 6.5 states that seats are reserved for physically handicapped candidates also subject to rules governing them. In other words, several reserved candidates have also to be accommodated in the 50% Open Category. 50% seats ear marked for the in- service candidates are kept intact, for which in-service candidates can always aspire and if they satisfy the condition of rural/tribal service, they will definitely get weightage. 20. Now by virtue of third proviso to Clause 9(2) (d) and clause 11.2 of the Prospectus candidates who fall under the in-service category are given a weightage through which they can make an in-road into the direct candidates category while retaining their rights to get admission for P.G. Course through in-service category. Appellants lament that already 66% reservation is there in the State for P.G. Admissions, including all reservations and only 34% seats are available for direct unreserved category on merit and if the third proviso to Clause 9(2) (d) of the M.C.I. Regulation and Clause 11.2 of the Prospectus are given effect to then those seats would be occupied by the in-service candidates large in number and candidates who comes strictly on the basis of merit through the competitive examination will have to stand out. 21. This Court in Gopal D. Tirthani (supra) upheld the allocation of 20% seats for in- service candidates and held that weightage can be given to in-service candidates for their having rendered specified number of years of service in rural/tribal areas which is not hit by Article 14 of the Constitution of India. This Court held that: (Tirthani case SCC p.107, para 36) “... ... This Court held that: (Tirthani case SCC p.107, para 36) “... ... ...allocation of 20% (of) seats in Post Graduation in the University of Madhya Pradesh for in-service candidate is not a reservation, it is a separate and exclusive channel of entry or source of admission, validity thereof cannot be determined on the constitutional principles applicable to communal reservations.” Having so said, the Court held as follows: (Tirthani case SCC p.106, para 33) “33. ... ... ... Firstly, it is a case of post-graduation within the State and not an All-India quota. Secondly, it is not a case of reservation, but one of only assigning weightage for service rendered in rural/tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning of weightage for service - rendered in rural/tribal area does not at all affect in any manner the candidates in open category.” 22. Therefore, in Tirthani case, it has been categorically held that: (SCC pp.107-08, para 36) “36(4) it is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by the in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India.” Regulation 9 framed by the Medical Council of India was also noticed by this Court so also the existence of two categories: (1) direct category (open category) candidates and (2) in-service category candidates. Weightage given for rendering service in rural/tribal areas, so far as in-service candidates, was upheld noticing that the assigning of weightage for service rendered in rural/tribal areas would not affect in any manner the candidates in open category. 23. We may, in this connection, refer to few earlier judgments in the matter of giving weightage to in-service candidates although those decisions were also considered in Tirthani case. In State of U.P. v. Pradip Tandon, (1975)1 SCC 267 , reservation in favour of people in “hill areas” and Uttarakhand was held to be constitutionally valid as they were socially and educationally backward classes of citizens. Reservation in favour of “rural areas” was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. Reservation in favour of “rural areas” was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. This Court held that rural element did not make a class by itself because it could not be accepted that the rural people were necessarily poor or socially and educationally backward just as the urban people were not necessarily rich. What was being dealt with in Pradip Tandon case was a reservation and not a weightage. Later in Dinesh Kumar (2) v. Motilal Nehru Medical College (1986) 3 SCC 727 , the two- Judges Bench examined a scheme of examination for admission to postgraduate courses suggested by the Government of India stipulating a weightage equivalent to 15 per cent of the total marks obtained by a student at the All-India Entrance Examination, being given if he had put in a minimum of 3 years of rural service. In that case, of course, this Court observed that it was eminently desirable that some incentive should be given to the doctors to go to the rural areas because there was concentration of doctors in the urban areas and the rural areas appeared to be neglected. The observation made in Dinesh Kumar case was considered by three-Judges Bench of this Court in Snehelata Patnaik vs.State of Orissa, (1992)2 SCC 26 , and this Court opined that the authorities might well consider giving weightage upto maximum of 5 per cent of marks in favour of in-service candidates who had done rural service for five years or more, the determination of which have to be made by the authorities. 24. We have referred to the above mentioned judgments only to indicate the fact that this Court in various judgments has acknowledged the fact that weightage could be given for doctors who have rendered service in rural/tribal areas but that weightage is available only in in-service category, to which 50% seats for PG admission has already been earmarked. The question is whether, on the strength of that weightage, can they encroach upon the open category, i.e direct admission category. We are of the view that such encroachment or inroad or appropriation of seats earmarked for open category candidates (direct admission category) would definitely affect the candidates who compete strictly on the basis of the merit. 25. The question is whether, on the strength of that weightage, can they encroach upon the open category, i.e direct admission category. We are of the view that such encroachment or inroad or appropriation of seats earmarked for open category candidates (direct admission category) would definitely affect the candidates who compete strictly on the basis of the merit. 25. The purpose and object for giving weightage to in-service candidates who have rendered rural/tribal service is laudable and their interest has been taken care of by the Medical Council of India as well as the prospectus issued for admission to the various medical colleges in State of Odisha but they have to come through the proper channel i.e. the channel exclusively earmarked for in-service candidates and not through the channel earmarked for candidates in the open category. The in- service candidates are also free to compete through the open category just like any other who fall under that category. Further, it is also relevant to note those who get admission in post graduate courses through the open category have to execute a bond stating that they would serve rural/tribal areas after completion of their post-graduation. In fact, weightage is given to those candidates who have rendered service in rural/tribal areas when they compete for admission to PG (Medical) Courses in in-service category for whom 50% seats are earmarked. 26. We also find another fallacy in Clause 11.2 read with Clause 6.2.1 of the prospectus. Clause 6.2.1 of the prospectus says that in-service candidate is one who at the time of application is in the employment in Government of Odisha and has completed a length of 5 years of service which include all categories of employment like contractual/temporary/ad-hoc/regular by 31.12.2011. Therefore, a doctor who is doing rural service on contract or on temporary basis or on ad hoc basis by 31.12.2011 will also get the benefit. At the same time, the candidates who pass out MBBS either in regular service or in contractual / temporary/ ad hoc in a private hospital even though serving in remote/tribal areas would not get that benefit even though those doctors are also rendering the same service. Every doctor who goes out of medical college after MBBS would not get an opportunity to serve in a rural/tribal area by way of contractual/ temporary/ad-hoc or regular service offered by the State of Odisha or a public sector undertaking. Every doctor who goes out of medical college after MBBS would not get an opportunity to serve in a rural/tribal area by way of contractual/ temporary/ad-hoc or regular service offered by the State of Odisha or a public sector undertaking. Few may fall in that category for various reasons and they get an advantage and those who get that advantage of course can, claim weightage when they are being considered in the in-service category. 27. We notice that the seats earmarked for the open category by way of merit are few in number and encroachment by the in-service candidates into that open category would violate clause 9(1) (a) of the MCI regulations, which says that students for PG medical courses shall be selected strictly on the basis of the inter se academic merit i.e. on the basis of the merit determined by the competent test. Direct category or open category is a homogeneous class which consists of all categories of candidates who are fresh from college, who have rendered service after MBBS in Government or private hospitals in remote and difficult areas like hilly areas, tribal and rural areas and so on. All of them have to complete on merit being in the direct candidate category, subject to rules of reservation and eligibility. But there can be no encroachment from one category to another. Candidates of in- service category cannot encroach upon the open category, so also vice-versa. 28. We find that except State of Odisha and, to some extent, State of Tamil Nadu, none of the other States in India has incorporated such a clause in any of their prospectus for admission to the postgraduate medical courses and students who fall under the open-category in those States are, therefore, not affected by such weightage. 6.It is para-28 of the judgment on which learned Advocate General places reliance to substantiate his stand that these Regulations unless adopted and then applied by the State cannot be invoked. We are in agreement with the submission made by the State, more especially, when the Supreme Court holds that this clause has not been incorporated by the other States in their admission Regulations. 7.The second submission made by the learned counsel for the petitioners is that the Regulations issued by Medical Council of India are per se applicable to regulate Postgraduate Medical Education in every State in India. 7.The second submission made by the learned counsel for the petitioners is that the Regulations issued by Medical Council of India are per se applicable to regulate Postgraduate Medical Education in every State in India. Learned counsel has drawn our attention to the Prospectus(Information Brochure­cum-Application Form) which was issued by the State of Himachal Pradesh.According to this Prospectus, the last date for submission of application was 25.4.2013. Learned counsel submits that by virtue of clauses 2 and 7 of this Brochure, conditions of proviso to clause-9 have been adopted/enforced by the State by implication.These two clauses are instructions issued to the candidates, which read:- “Important Instructions” 1. ... ... ...2. Ineligible candidate(s) need not to apply. The candidate(s) found ineligible at any stage shall have no claim for admission or continuation of PG Degree/Diploma Course even if he/she qualifies the National Eligibility-cum-Entrance Test-2013.3. ... ... 4.... ...5. ... ...6. ... ...7.The Merit list of NEET will be displayed on the Notice Board of Indira Gandhi Medical College, Shimla on the day of Counselling.8. ... ...9.... ... “ We are unable to accept this contention. The clauses are only informative and not adoptive. 8.The next contention urged by learned counsel for the petitioners is that the Regulations are mandatory and in this eventuality they apply by their own force. According to learned counsel, the word ‘may’ in the proviso should and ought to be read as ‘shall’ and therefore, by applying this criteria gradation in terms of award of marks as contemplated for candidates/doctors having served in difficult areas, ought to be granted. Learned counsel places reliance on a number of judgments to urge that ‘may’ should be read as ‘shall’. We are unable to accept this contention for two reasons. One the State provides in service reservation and preference to those candidates/doctors who have served in rural areas by grading different years and relaxing the number of years of service according to topographical conditions. It is in this context that the Regulations have to be interpreted because of its application on All India basis with discretion vested in the States to consider its own peculiar local conditions to provide preferential treatment. We advert to the eligibility criteria in distribution of seats. Clause 3.1(A) provides:- “3. ELIGIBILITY & DISTRIBUTION OF SEATS 3.1 (A) HPHS (In-service GDO) Group (i) 66.6% of the State Quota Seats will be filled-up by in-service Medical Officers. We advert to the eligibility criteria in distribution of seats. Clause 3.1(A) provides:- “3. ELIGIBILITY & DISTRIBUTION OF SEATS 3.1 (A) HPHS (In-service GDO) Group (i) 66.6% of the State Quota Seats will be filled-up by in-service Medical Officers. The in-service group will consist of two sub-groups i.e. one sub-group consisting of regularly appointed Medical Officer and second sub-group consisting of Contractual and Rogi Kalyan Samiti appointees. The distribution of seats between regular and those appointed on contract basis including Rogi Kalyan Samiti appointees will be made in the ratio proportionate to their total number as on 31.10.2012. For the academic session 2013-2015/16 the distribution of seats between above two sub-groups will be in the ratio of 3:1. (ii) The eligibility conditions regarding mandatory period of service (area- wise) in-respect of In-Service group will be as under:- Category Area Mandatory service period I Pangi SubDivision,entire Lahaul & Spiti 2 years Distt.,Pooh area of Kinnaur Distt.(Pooh Tehsil & Han grangsub. Tehsil) and Dodra Kwar-Sub-Di vision of Distt. Shimla. II Distt.Kinnaur (excludingTehsil Pooh and Han grang sub Tehsil) and Bharmour Sub-Division of Distt. Chamba,Development Block ofChopal,Chuhra(excludingDodra-Kawararea)San garh, Saraj,Anni, Tissa & Chhota Bhangal of Multan Tehsil and Bara Ban gal area (Baijnath Block).3 years III Development BlocksShillai, Jubbal Kothaki, Salooni, Rohru, Nankhari & Karsog. 3 years IV Other areas of the State (excluding the above and Below). 4 years V With the limits of Shimla Municipal Corporation, within the limitsof Municipal Corporation Solan and within Baddi -Brotiwala Nalagarh notified area. 5 years (iii) In case a Medical Officer has served in more than one above category of area, the mandatory service period will be calculated on pro-rata basis” The number of years of service for eligibility has been graded by the State according to the difficulty of the area. 9.Second, we find that the word ‘shall’ has been used in the Regulations at a number of places and ‘may’ in proviso to clause 9. If it was the intention to make this proviso mandatory the word ‘shall’ would have been used. Also discretion in the range of 10% to 30% has been granted with the State to be awarded for having served in the difficult area(s). This would be dependant upon each individual State and its topographical conditions, need and requirement to be implemented by them individually. Prescription of different period of service already stands incorporated as noted (supra). Also discretion in the range of 10% to 30% has been granted with the State to be awarded for having served in the difficult area(s). This would be dependant upon each individual State and its topographical conditions, need and requirement to be implemented by them individually. Prescription of different period of service already stands incorporated as noted (supra). 10.Lastly, we have no doubt in our mind that the judgment in Satyaprata Sahoo’s case, clearly lays down that implementation of the clause would depend upon its adoption. Merely because it has been stated in the Information Brochure that the test/competition would be restricted to those who appeared in the National Eligibility-cum-Entrance Test would not make the provisions of this proviso mandatory. 11.We may note at this stage that the learned Advocate General placed on record material in another connected petition with respect to the reservation in in-Service candidates to urge that the past experience of the State has been such that most of the seats remained unfilled and ultimately those have to be offered to the direct candidates. 12. Learned counsel urges that while interpretation of the two clauses in the instructions in the Information Brochure, the State is bound by the principle of Promissory Estopple since the examination was conducted in November/December 2012 and the Brochure was issued in March, 2013. We cannot accept this contention.Preferential treatment though acceptable within constitutional limits cannot be taken to be an indefeasible right. 13.In this situation, we find no merit in this petition which is dismissed. All miscellaneous applications are disposed of.