JUDGMENT : Janak Raj Kotwal, J. Petitioners have qualified National Eligibility-Cum-Entrance Test, 2017 for admission to the Post Graduate Medical Courses (hereinafter for short to be referred as 'NEET-PG') conducted in terms of Regulation 9 of the Medical Council of India Post Graduate Medical Education Regulations, 2000 (hereinafter for short to be referred as the 'MCI Regulations'). 2. By virtue of the MCI Regulations, which have been framed by the Medical Council of India (MCI) in exercise of powers under Section 33 read with Section 20 of the Indian Medical Council Act, 1956, the MCI has inter alia laid down the eligibility criteria and procedure for admission to the Post Graduate Medical courses, that is, MD, MS and PG Diploma and MDS. The procedure for selection of candidates for admission to the Post Graduation courses ail over the country is provided under Regulation 9. The proviso added after sub-clause IV of Regulation 9 by virtue of Notification No. MCI-18(1)/2010-Mad/62052 dated 15.02.2012, which provides for incentive marks to in-service candidates for remote or/and difficult area service (hereinafter to be referred as the 'fourth proviso'), is relevant and is reproduced thus: "Provided that in determining the merit of candidates who are in-service of Government/ public authority, weight-age 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. On a plain look, the fourth proviso to Regulation 9 provides that the weight-age by award of incentive marks shall be given to those candidates who are in service of the Government/Public Authority and have served in remote and/or difficult areas. What would be a remote or difficult area for the purpose of this proviso shall be defined by the respective State Government/competent authority from time to time. 4. As indicated above, the fourth proviso in the present form was added to the MCI Regulations in the year 2012 by virtue of the MCI, Notification dated 15.02.2012. What would be a remote or difficult area for the purpose of this proviso shall be defined by the respective State Government/competent authority from time to time. 4. As indicated above, the fourth proviso in the present form was added to the MCI Regulations in the year 2012 by virtue of the MCI, Notification dated 15.02.2012. Prior to the addition of the said proviso in the MCI Regulations, the State Government too had made a provision for similar incentive marks in terms of SRO 401 dated 29.12.2009 whereby Clause 4(A) was added to the Jammu and Kashmir Government Medical College (Selection of candidates for Post Graduate Degree and Diploma Courses) Procedure Order 1995. Clause 4(A) is reproduced: "Weight-age for serving in difficult areas: The candidate shall be entitled to a weight-age for serving in the difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of 2 marks for each completed year of service in such area subject to a maximum of 10 marks. Provided that each completed year of service shall mean actual service days even on ad hoc/contractual basis in such areas to be certified by the concerned Director Health Services and shall exclude the days spent on any training programme or absence of any kind except such absence on casual leave." 5. Contextually, it is in place to notice that the Government of Jammu and Kashmir, by virtue of Rule 15 of the Jammu and Kashmir Reservation Rules, 2005 framed under the Jammu and Kashmir Reservation Act, 2004, while giving benefit of reservation in distribution of seats in MD/MS/M.Tech. Engineering and Agriculture Science and similar other Post Graduate Courses, has earmarked 10 per cent of the seats for the open merit candidates, who have served for a minimum period of 5 years in Rural Areas, over and above the seats earmarked for normal open merit share. 6. It is worthwhile to mention here that in terms of the Regulation 9 of the MCI Regulations the NEET is to be conducted every year at the national level by the National Board of Education (NBE) under the overall supervision of the Ministry of Health and Family Welfare. The NBE prepares the National merit list of successful candidates having secured marks above the qualifying percentile fixed by the MCI. Out of that list state merit lists of all the states are prepared. The NBE prepares the National merit list of successful candidates having secured marks above the qualifying percentile fixed by the MCI. Out of that list state merit lists of all the states are prepared. After that the selection and admission process including the benefit of reservation, grant of incentive marks, counselling and allotment of colleges and streams shifts to the respective States and is conducted at the State Level by the competent authority, which in the State of Jammu and Kashmir is the Board of Professional Entrance Examination (BOPEE). 7. Petitioners- 1, 2, 3, 4, 6, 8, 9 and 10 have been engaged and are working as doctors under the National Rural Health Mission (NRHM) in the State of Jammu and Kashmir. Petitioner No. 5 was earlier engaged as doctor in NRHM and later has been appointed in the Health Department or the State. Petitioners- 7, 11 and 12 are in regular appointment of the Health Department. All of them produced before the BOPEE the certificates issued by the Director Health Services, Jammu, indicating the period for which they have served in 'difficult areas' in case of petitioners 1, 2, 3, 4, 6, 8, 9 and 10 as Medical Officers in NRHM/NHM, in case of petitioner No. 5 partially in NRHM and partially in Health Department and in case of petitioners 7 & 11 in the Health Department. The Director Health Services in all the certificates issued by him stated also that the certificates were issued in terms of SRO 401 dated 02.12.2009. Petitioner No. 12 had also produced a certificate indicating the period of the service rendered in 'Rural Area'. 8. The BOPEE vide Notification No. 10-BOPEE of 2017 dated 03.03.2017 has issued a list of 19 candidates, including herein petitioners - 1 to 11, to whom incentive marks have been awarded under SRO 401 of 2009. Petitioner No. 12, however, does not figure in this list and the stand of the respondents in this regard in the reply filed on their behalf is that he is not eligible as he has not served for minimum 5 years in rural area. Petitioners feel aggrieved by denial of the incentive marks in terms of proviso to Regulation 9. Hence this writ petition by them. 9. Petitioners feel aggrieved by denial of the incentive marks in terms of proviso to Regulation 9. Hence this writ petition by them. 9. Before adverting to the respective pleas on their merits and the relief sought in this writ petition, some important aspects have been noticed and need to be stated as they would be relevant for deciding the issues arising from the opposing stands of the parties. 10. After declaration of the NEET result the admission process including the award of incentive marks, shifted to the BOPEE. The BOPEE issued Information Brochure-2017 for registration, counselling and Preference Form Filling and admission process. A few provisions of the Information Brochure, which are relevant in regard to the issues arising in this writ petition, have been noticed and are culled out: (a) Sub-paras (4) & (5) of Para-8(e) under the head 'Eligibility Conditions' relate to the benefit available for service in 'Rural Areas' and service in 'Difficult Areas' respectively. They are reproduced: "(4) Rural service category candidates, who have secured a minimum of 50% percentile and served in and rendered service in rural areas as otherwise eligible under reservation rules, shall be eligible for consideration. (5) The eligibility of the candidates who have served in difficult areas shall be determined on the basis of marks as may be awarded to them in accordance with the rules (SRO 201 of 2006 read with SRO 401 of 2009)." (b) Note at the bottom of para-8 relates to the certificate in regard to the in-service candidates; it reads: "NOTE: In-service certificates of the doctors must be forwarded by the, Director Health Services; Jammu/Kashmir, as the case may be, and shall be submitted in the BOPEE Office Jammu/Srinagar within prescribed last date. Board reserves its right to have such certificates verified by the Government." (c) Para- 11 specifically deals with difficult area service, it reads: "Difficult Area Service: The candidates shall be entitled to a weight-age in terms of SRO 401, dated 29th Dec. 2009 (Annexure 'D') for service in difficult area as defined in Notification SRO 201 of 2006 dated 15.06.2006 (Annexure 'C') to the extent of two marks for each completed year of service in such area subject to a maximum of 10 marks. Each completed year of service shall mean actual service days, even on ad hoc/contractual basis in such areas. 2009 (Annexure 'D') for service in difficult area as defined in Notification SRO 201 of 2006 dated 15.06.2006 (Annexure 'C') to the extent of two marks for each completed year of service in such area subject to a maximum of 10 marks. Each completed year of service shall mean actual service days, even on ad hoc/contractual basis in such areas. Certificate for such candidate should be issued by the Director, Health Services to the effect that candidate has served in difficult areas as defined under SRO of aforesaid Notifications." 11. The BOPEE vide its. No. BOPEE/Exam-14/2017 dated 24.01.2017 issued a public notice indicating the tentative seat matrix for MD/MS/PG Diploma/MDS-2017. By virtue of this public notice, the BOPEE also issued further instructions on various counts. Instructions 1 and 2 are relevant for the issues involved in this writ petition and are reproduced : "1. The rural service seats/difficult area service shall be filled up strictly in accordance with the rules on the subject including MCI regulation proviso 9(2)d read with the Hon'ble Supreme Court Judgment in the case titled Dinesh Singh Chauhan v. State of U.P. and ors. (The relevant extract of the MCI regulations and the Hon'ble Supreme Court judgment is available on the BOPEE website and the candidates are advised to go through these in their own interest. 2. The certificate of belonging to rural service area/difficult area and having served in that area for the periods as specified in the rules including the MCI regulations viz 9(2)d shall be issued by the competent designated authority of the Health & Medical Education Department indicating all the details therein viz the difficult area served, period, eligibility as per rules and shall exclude the period spent on leave, absence, training etc. As stipulated in the relevant rules and regulations. The certificate signed by any unauthorized person shall in no case be entertained. Mere submission of such certificates shall not confer any right upon the candidates to seek admission in the courses, which shall purely be on the basis of eligibility/norms as laid down in the rules and regulations." 12. Vide its Notification No. 008-BOPEE of 2017 dated 25.02.2017, the BOPEE issued over all Provisional State Merit List (PSML), indicating therein inter alia the NEET-rank, State-rank, NEET-score, State-score and Category of each candidate. Vide its Notification No. 008-BOPEE of 2017 dated 25.02.2017, the BOPEE issued over all Provisional State Merit List (PSML), indicating therein inter alia the NEET-rank, State-rank, NEET-score, State-score and Category of each candidate. It is noticed that in the PSML the NEET-score and the State-score of each candidate was shown the same meaning thereby that the incentive marks for rural service or remote or/and difficult area service were not awarded to any candidate. In this regard the BOPEE however, notified the following. "Since the issue regarding eligibility under rural service/difficult area service has been taken up with the Government, any change in the position consequent upon the clarification from the Government and decisions taken by the Board shall be incorporated appropriately and such changes will be notified also." 13. The BOPEE further clarified in the Notification dated 25.02.2017 (supra) that the PSML was purely provisional and shall not confer any right on candidates and that the merit list is subject to such changes, as may become necessary in the event of clarification received from the Government in respect of the difficult area service, and decision as may be taken by the Board on this issue and other representations, if any, received and any other consideration on merit. 14. Besides notifying the PSML on 25.02.2017, the BOPEE on the same day vide Public Notice No. 01/BOPEE of 2017 issued final counselling schedule starting from 04.03.2017 up to date of admission as 31.05.2017. Before the date of commencement of the counselling, the BOPEE vide Notification No. 10-BOPEE of 2017 dated 03.03.2017 inter alia issued a 'provisional list of eligible difficult area/rural service candidates', indicating the marks awarded to them for difficult area service in a separate column under the head 'DAM'. This list contains names of petitioners 1 to 10 also. Important in Notification dated 03.03.2017 needs to be reproduced: "The issues relating to difficult area service and rural service were discussed in detail and it was observed that despite large number of communications sent to the Government on the subject in the last one month or so, no response has been received as on date and any further delay in taking a decision would only stall the process of admissions in the medical institutions and the process cannot be completed within the time limits fixed by the MCI/Hon'ble Supreme Court. It was felt that SRO 401 of 2009 regarding giving incentives of two marks per year, subject to maximum of five years (10 marks) to those who have served in difficult and remove areas as notified under SRO 201 of 2006 may be considered as the said SRO is in operation. Further, as per Reservations Rules of 2005, there is a provision of 10% of reservations of seats for "OM" candidates other than those who are selected in the normal "OM" category. Since SRO 294 of 2005 is also in vogue/applicable, therefore, such candidates who possess a certificate issued by the Competent Authority be considered. Selection of such candidates shall, however, be purely provisional and subject to any change as may become necessary due to any further clarification as may be provided by the Government till the process of allotment of seats in the first round is notified. It was also decided that:- Candidates claiming benefit under Rural Area/Difficult Service shall produce:- (1) A certificate from the competent Revenue Authority/Director Health Services, Kashmir/Jammu to the effect that area where the candidate has served falls 20 Kms away from the municipal limits from the shortest possible route (for the purpose of Rural Service); (2) Certificate from the Director Health Services Jammu/Kashmir to the effect that the candidates in whose favour the certificate has been issued is eligible under the provisions of SRO 294 of 2005 with regard to the qualifying service of five years and the distance of the location where the candidate has served is twenty Kms away from municipal limits from the shortest possible route. (3) In respect of difficult areas the Director Health Services Jammu/Kashmir will certify that the Niabat/Tehsil/area in which the candidate has served is covered under SRO 201 of 2006. (4) The list of provisionally eligible candidates to claim benefit under SRO 401/SRO 294 be notified as Annexure "A" and other relevant deficiencies be pointed out against the names of such candidates who are yet to be declared eligible provisionally as per Annexure "B" to this Notification, which shall also include the clarifications required as such certificate are ambiguous." 15. Feeling aggrieved by having been given benefit in terms of SRO 401 of 2009 and not the incentive marks in terms of Regulation 9 of the MCI Regulations, petitioners have filed this writ petition. Feeling aggrieved by having been given benefit in terms of SRO 401 of 2009 and not the incentive marks in terms of Regulation 9 of the MCI Regulations, petitioners have filed this writ petition. They seek writ of certiorari to quash SRO 401 of 2009 being violative of Regulation 9 of the MCI Regulations, para-8.e(5) and para 11 of the Information Brochure issued by the BOPEE. Petitioners further seek quashing of Notification No. 008-BOPEE of 2017 dated 25.02.2017 and Notification No. 10-BOPEE of 2017 dated 03.03.2017. They also seek quashing of Notification 1/BOPEE of 2017 dated 25.02.2017 whereby counselling schedule has been issued. Besides, petitioners seek writ of mandamus directing respondents 2 and 3 (that is BOPEE) to grant weight-age to the petitioners on account of having served in 'remote/rural and difficult areas' as in-service candidates in terms of Regulations 9 of MCI Regulations. 16. Petitioners' case, precisely, is that the BOPEE is under obligation to determine the merit strictly in accordance with Regulation 9 of the MCI Regulations. The MCI regulations have statutory application and in the face there of SRO 401 of 2009 is illegal, bad and unconstitutional and therefore, liable to be quashed. 17. The respondents' opposition to the writ petition coming through reply filed on their behalf read along with reply to the supplementary affidavit of the petitioners is two folds. It is contended that as per amendment dated 15.12.2012 to the MCI Regulations, the benefit of remote or/and difficult area service is required to be given to candidates who are 'in-service of Government/Public Authority'. The "Regulation is not mandatory in nature but is discretionary as the word 'may' has been used. This is more so for the reason that while granting benefit of seats in Post Graduate Diploma Courses word 'shall' has been used." The second contention of the respondents is that the benefit under Regulation 9 of the MCI Regulations of 2009 is not applicable to the petitioners 'for the reason that the language used in the regulation is unambiguous and provides for grant of weight-age to candidates who are 'in-service of Government/Public Authority', whereas 'admittedly, the petitioners except that of petitioner No. 12 are working under National Rural Health Mission Scheme and thereto are not 'in-service' candidates'. It is contended in this regard that the National Rural Health Mission is a Scheme of Central Government and the nature of engagement is contractual. It is contended in this regard that the National Rural Health Mission is a Scheme of Central Government and the nature of engagement is contractual. No right flows to a candidate engaged under a Scheme as is available to a Government employee. About petitioner No. 12 it is contended that he is not eligible as he has not served for a minimum of 5 years in a rural area. It is, however, contended that petitioners are entitled to benefit in accordance with SRO 401 of 2009 and benefit under the said SRO has been given to them. The reply filed on behalf of the respondents indicates also that even though the Reservation Rules or the Procedure Order of 1995 does not provide for any benefit of rural service to the candidates working under NRHM, the benefit in terms of SRO 401 has been extended to them in terms and under Communication dated 24.01.2014 of the Administrative Department to the BOPEE. 18. Mr. Abhinav Sharma, learned counsel for the petitioners, argued that Regulation 9 of the MCI Regulations have statutory force. With the addition of the proviso in the year 2012, the SRO 401 of 2009 ceases to operate and the benefit of rural and difficult area service is to be granted in terms of said proviso. Learned counsel argued further that the BOPEE has committed illegality in preferring SRO 401 over the MCI Regulations and depriving the benefit under MCI Regulations to the petitioners. Learned counsel would say that benefit available under the proviso to MCI Regulations of 2009 is higher than that available under SRO 401 of 2009 so prejudice has been caused to the petitioners in assessment of their merit. Learned counsel relied upon Sudhir N. and ors. v. State of Kerala and ors, (2015) 6 SCC 685 and a judgment of this Court in OWP No. 498/2016, Aijaz Ahmed Lone v. J&K Board of Professional Entrance Examination dated 25.04.2016. Learned counsel opposed the stand taken by the respondents that the doctors engaged under NRHM cannot be treated as in-service doctors. v. State of Kerala and ors, (2015) 6 SCC 685 and a judgment of this Court in OWP No. 498/2016, Aijaz Ahmed Lone v. J&K Board of Professional Entrance Examination dated 25.04.2016. Learned counsel opposed the stand taken by the respondents that the doctors engaged under NRHM cannot be treated as in-service doctors. It was argued that the NRHM is a Mission launched by Central Government to augment the public health delivery system in the country and is implemented at State level so as long as a doctor engaged under this Scheme is in place he shall have to be deemed as in service of the Government of the State and cannot be deprived of the incentive available to the regular doctors of the State Government. In support, learned counsel relied upon a judgment of Rajasthan High Court in Civil Writ Petition No. 12972/2011, Dr. Richa Tiwari and ors. v. The State of Rajasthan and ors. dated 24.09.2011. Learned counsel argued further that State is estopped from taking such a plea after not having raised any such objection and having implemented the judgment of this Court in Aijaz Ahmed Lone's case (supra), in which the petitioner too was engaged under NRHM. 19. Per contra, learned Advocate General argued that the doctors engaged under NRHM, like most of the petitioners herein, cannot be equated with the in-service doctors of the State Government entitled to incentive marks under the fourth proviso to Regulation 9. Learned AG would say that under the NRHM, Doctors are engaged on contractual basis and tenure of their engagement is Co-terminus with the life of the Scheme. These doctors are likely to be discontinued as soon as the Scheme is over so no benefit similar to that given to in-service doctors of the State Government can be extended to them. Learned AG argued and sought to explain that benefit under the fourth proviso to Regulation 9 is in the nature of incentive for rendering service in remote and/or difficult areas, whereas under NRHM local doctors are engaged so one cannot be said to have rendered service voluntarily in such an area. Reliance has been placed on a Delhi High Court Judgment in WP(C) 497/2013, Stuti Ranjan and ors. v. Government of NCT and ors. dated 04.01.2016. 20. Reliance has been placed on a Delhi High Court Judgment in WP(C) 497/2013, Stuti Ranjan and ors. v. Government of NCT and ors. dated 04.01.2016. 20. Contention of the respondents that the MCI Regulations or the fourth proviso to Regulation 9 added vide Notification No. MCI-18(1)/2010-Med/62052 dated 15.02.2012, providing for incentive marks, is not mandatory cannot sustain. The admission to the Post Graduate Medical Courses all over the country is to be made strictly in accordance with the MCI Regulations and the State Governments on their part are under obligation to follow the MCI Regulations and not to devise any method by legislative fiat or executive orders that infracts or impinges the said regulations. Position in this regard is now well settled and it is unnecessary to rack up the issue every time. It is not understandable how the BOPEE entertained and nourishes doubt about applicability of the fourth proviso to Regulation 9 even after having referred to Dinesh Singh Chauhan's Judgment in the Information Broucher and in spite of the recent judgment of this Court in Aijaz Ahmed Lone's case (supra) in which the BOPEE was a party respondent. 21. In Sudhir N. (supra) Supreme Court has dealt with the MCI Regulations in relation to admission process commenced in the year 2009-2010 in the State of Kerala. The Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act, 2008 (Act No. 29 of 2008), inter alia envisaged a quota for Medical Officers in the service of State Government in Post Graduate Medical Courses, besides setting apart seats not exceeding 40 per cent of the total seats for any academic year for them under 'Service Quota'. More importantly, under the Act No. 29 of 2008 the selection of the in-service Medical Officers for admission to Post Graduate Courses was to be made by a Selection Committee and not in accordance with the requirements under the MCI Regulations. The said legislation was called in question before the High Court of Kerala on the ground that the same violated the MCI Regulations. The said legislation was called in question before the High Court of Kerala on the ground that the same violated the MCI Regulations. The High Court of Kerala held that the MCI regulations framed under section 33 of the Indian Medical Council Act, 1956 were insulated from any contradiction by any State Legislation and that State cannot make a law doing away with the requirement of participating in Common Entrance Test for the in-service candidates and obtaining the minimum eligibility requirement prescribed by the MCI Regulations. 22. The Supreme Court held in para 14 of the reporting in that case: "14. Regulation 9 is, in our opinion, a complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the candidates including the method to be adopted for determining the inter se merit which remains the only basis for such admissions. To the performance in the entrance test can be added weight-age on account of rural service rendered by the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. Suffice it to say that but for the impugned legislation making an attempt to change the basis on which admissions can be made, such admissions must, in all categories, be made only on the basis of merit as determined in terms of the provision extracted above. That method, however, is given a go-bye by the impugned legislation when it provides that in-service candidates seeking admission in the quota reserved for in-service doctors shall be granted such admission not on the basis of one of the methodologies sanctioned by Rule 9(2) of the Rules but on the basis of inter se seniority of such candidates. The question is whether the State was competent to enact such a law. Our answer to that question is in the negative. The reasons are not far to seek. The question is whether the State was competent to enact such a law. Our answer to that question is in the negative. The reasons are not far to seek. As noted earlier, the subject is fully covered by several pronouncements of this Court to which we shall presently refer but before we do so we may extract Article 246 of the Constitution which reads as under;" (Underlining by me) It needs to be pointed out that the admission process under reference before the Supreme Court in that case was of the time prior to the amendment dated 15.02.2012, whereby fourth proviso in its present form has been added, so the relevant proviso has been referred to as the "third proviso" as it at that time was. 23. The Supreme Court after referring to the Constitutional provisions of the law making power of the Parliament and the legislature of States enshrined under Article 246 of the Constitution of India read with Entry 66 of the Union List and Entry 25 of the State List and surveying the case law on the point observed also that "it is in the light of the above pronouncements futile to argue that the impugned legislation can hold the field even when it is in clear breach of the Medical Council of India's Regulations. The High Court was, in our opinion, right in holding that inasmuch as the provisions of Section 5(4) of the impugned enactment provides a basis for selection of candidates different from the one stipulated by the MCI Regulations it was beyond the legislative competence of the State Legislature." (para 20). 24. In State of U.P. v. Dinesh Singh Chauhan, AIR 2016 SC 3841 , the U.P. Government Notification-cum-Government Order dated 28.2.2014 provided for thirty per cent quota fixed for in-service candidates who had worked in remote and difficult areas. Petitioners therein did not have worked in such areas but claimed that they should also be treated eligible for the said quota benefit. The MCI stated before the High Court that in terms of the MCI Regulations no reservation for the in-service candidates is permissible in respect of the Post-Graduate "Degree" courses, unlike the Post-Graduate "Diploma" Courses. Further that the State Government could not have framed any statutory Rules much less provided any different dispensation by executive fiat. The MCI stated before the High Court that in terms of the MCI Regulations no reservation for the in-service candidates is permissible in respect of the Post-Graduate "Degree" courses, unlike the Post-Graduate "Diploma" Courses. Further that the State Government could not have framed any statutory Rules much less provided any different dispensation by executive fiat. The High Court was pleased to hold that the State Government had no authority to frame any Rules or issue any executive order to provide for such reservation contrary to the MCI Regulations. 25. Learned 3-Judge Bench of the Supreme Court in the facts and circumstances of the case, while upholding the view taken by the High Court, held in para 16 of the reporting that "it is not open to the State Government to provide for a dispensation different than the one specified by the Central Act and Regulations made thereunder". The Supreme Court in this case has accorded consideration to Regulation 9 of the MCI Regulations as amended in the year 2012, vide Notification dated 15th February 2012 and held: "20. By now, it is well established that Regulation 9 is a self-contained Code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to Post Graduate Medical Courses enunciated by the Central Legislation and Regulations framed thereunder, being a subject falling within the Entry 66 of List I to the Seventh Schedule of the Constitution (See: Preeti Srivastava (Dr.) v. State of M.P.). The procedure for selection of candidates for the Post Graduate Degree Courses is one such area on which the Central Legislation and Regulations must prevail". Underlining by me) 26. The Supreme Court Judgment in Dinesh Singh Chauhan's case, which seems to be the latest pronouncement on the point and has been referred to with approval by a learned 2-Judge Bench of the Court in Neeraj Kumar Sainy and ors. v. State of U.P. and ors, Civil Appeal No. 11974 of 2016, Judgment dated 02.03.2017, makes it an open-and-shut case that for admission to the Post Graduate Medical Courses all over the country, all the conditions and requirements as envisaged under the MCI Regulations shall apply including the award of the incentive marks under fourth proviso to Regulation 9. v. State of U.P. and ors, Civil Appeal No. 11974 of 2016, Judgment dated 02.03.2017, makes it an open-and-shut case that for admission to the Post Graduate Medical Courses all over the country, all the conditions and requirements as envisaged under the MCI Regulations shall apply including the award of the incentive marks under fourth proviso to Regulation 9. No State Government by virtue of a legislation, sub-ordinate legislation or executive order can add to, subtract from or substitute any requirement or condition as envisaged under the MCI Regulations or continue with a provision contrary or in conflict thereto. Any pre-existing condition/provision relating to admission to Post Graduate Medical Courses in any State, law or executive order shall cease to operate and pave way for corresponding provision in MCI Regulations. 27. As pointed out here in above also, the fourth proviso in its present form was added to the MCI Regulations by virtue of Notification dated 15.02.2012 and the SRO 401 had been issued prior thereto. Both these provisions are similarly aimed at providing incentive to in-service doctors for having rendered service in difficult areas though in the fourth proviso term used is 'remote and/or difficult areas' as against the term 'difficult areas' used in SRO 401. However, there cannot be any real difference between a remote area and difficult area. The benefit of incentive marks under the fourth proviso, however, is far higher than that available under SRO 401 and in that, SRO 401 comes in clash with the fourth proviso and has to pave way for the latter. SRO 401, therefore, can be said to have become redundant and cannot be given any effect to. It is not understandable nor it has been stated, much less explained, on behalf of the respondents as to why the State or the BOPEE should insist upon continuing with SRO 401 and hesitate in extending the greater benefit permissible by virtue of fourth proviso to Regulation 9 of the MCI Regulations. 28. The only stand taken on behalf of the respondents to justify award of incentive marks in terms of SRO 401 is that the proviso to Regulation 9 of the MCI Regulations is not mandatory as the term used there in is 'may'. Taking such a stand is preposterous when tested on the touchstone of the legal position explained and laid down by the Supreme Court in aforementioned judgments. Taking such a stand is preposterous when tested on the touchstone of the legal position explained and laid down by the Supreme Court in aforementioned judgments. Similar question had been raised by the respondents in Aijaz Ahmed Lone's case also and the learned coordinate Bench of this Court after analysing the impact of word 'may' and 'shall' in back drop of the object and purpose to be achieved by award of incentive marks has held that "MCI Regulations have statutory force, therefore, prevail vis-a-vis award of marks for working in 'difficult areas'" and the State cannot keep the benefit on the lower side in derogation of the MCI Regulations. 29. It was argued at one stage by learned Advocate General that the fourth proviso to Regulation 9 of the MCI Regulations requires identification of the "remote and/or difficult areas" of the State for giving the incentive benefit under the proviso and such areas having not been identified by the State Government, benefit under the proviso cannot be granted till such areas are so identified. The argument in this regard is trumpery rather than having any substance. State Government, firstly, cannot take refuge under so called failure on its part. Such a situation, however, does not exist. As indicated above, the incentive marks provided under the proviso to Regulation 9 of the MCI Regulations is in line with the similar benefit earlier provided by the State Government under SRO 401 in respect of the areas identified under SRO Notification 201 of 2006 dated 15.06.2006. The laudable purpose to be achieved is to encourage the doctors to work in remote and difficult areas to provide good health care and facilities to the masses of those areas. The only difference in benefit under these two provisions is that the benefit available under Regulation 9 is higher than that available under SRO 401. The State Government having made SRO 401 applicable to the areas defined under SRO Notification 201 of 2006 dated 15.06.2006, the benefit is now to be given in terms of MCI Regulations instead of SRO 401. 30. No difficulty should have been felt by the BOPEE in meeting with the situation in view of the judgment rendered by the learned Single Bench of this Court in Aijaz Ahmed Lone's case (supra) in which among others BOPEE was a party. 30. No difficulty should have been felt by the BOPEE in meeting with the situation in view of the judgment rendered by the learned Single Bench of this Court in Aijaz Ahmed Lone's case (supra) in which among others BOPEE was a party. The said judgment has been rendered by this Court in a fact situation similar to that involved in the case on hand. There also the petitioner therein was awarded incentive marks in terms of SRO 401 as against his claim in terms of the MCI Regulations. The question raised before this Court in that case was "whether the petitioner for having served in 'Difficult Rural Areas' is entitled to incentive of maximum 30% of the marks what he has obtained in the written test", that is, benefit in terms of the MCI Regulations. Learned Single Bench in that case, having relied upon Sudhir N. and others (supra) and other judgments has held that "the MCI Regulations have statutory force, therefore, prevail vis-a-vis award of marks for working in difficult areas as defined in SRO 201". 31. The legal position being clear too, contention advanced on behalf of respondents that the fourth proviso to Regulation 9 of the MCI Regulations is not mandatory or, to say, that State can still continue with the benefit available under SRO 401 and deny the benefit in terms of the proviso to Regulation 9 is rejected and it is held and reiterated precisely that the MCI Regulations including award of the incentive marks under the fourth proviso to Regulation 9 shall prevail upon the benefit available under SRO 401 and all the in-service doctors (candidates), who have worked in the difficult area as defined under SRO 201 of 2006 dated 15.06.2006, are entitled to the benefit of incentive marks in terms of the MCI Regulations. 32. The other stand taken on behalf of the respondents is that the incentive benefit provided under the MCI Regulations is not available to the doctors who are engaged under the NRHM for the reason that such benefit is available only to the doctors in-service of 'Government/Public Authority'. The stand taken before this Court, however, has been found in conflict with the undisputed position within the government as would be clear hereafter. 33. The stand taken before this Court, however, has been found in conflict with the undisputed position within the government as would be clear hereafter. 33. Annexure-G to this writ petition is the letter No. HME/HRM/03/2014 dated 24.01.2014 written by the Government, Health and Medical Education Department, to the Chairman, BOPEE, the Director, Health Services, Jammu/Kashmir and the Mission Director, NRHM, Jammu. By virtue of this letter, the Government has clearly directed the BOPEE to accord benefit under SRO 401 in MD/MS examination to the in-service doctors engaged under NRHM for the purpose of weight-age. This letter in its sum and substance reads: "Subject: Admission for MD/MS under Rural Service category-clarification & instructions thereof in BOPEE. Sir, I am directed to enclose herewith a copy of SRO-401 dated 29th Dec. 2009 regarding the weight-age to doctors in MD/MS exam for serving in difficult areas and no advise you to consider the rural services rendered by the doctors in difficult areas to be certified by the concerned Director Health Services, while working on adhoc/contractual basis including services rendered under National Rural Health Mission, as per the provisions of aforesaid SRO." (underlining by me) 34. Likewise, Annexure H to the writ petition is a letter written by the Government, Health and Medical Education Department, to the Public Service Commission under subject head: "clarification regarding in-service status of contractual employee of National Rural Health Mission." By virtue of this letter, the Government while referring to letter dated 24.01.2014 (supra) has conveyed to the Public Service Commission that "the Doctors working (on contract) under NRHM in the State shall be treated as in-service candidates for the purpose of age relaxation for recruitment to the post of Medical Officer, provided they subsist in contractual appointment as on the date of issue of the Advertisement by the Selection Agencies." 35. In view of the said two letters, it is evident that the Government (Administrative Department) in principle has taken a clear executive decision that the doctors engaged on contract basis under NRHM shall be treated as in-service candidates for giving them benefit under SRO 401 of 2009 for admission to Post Graduate Medical courses as also for the purpose of age relaxation for recruitment to the post of Medical Officer in the government service. It should be on the same analogy that those petitioners herein, who are engaged under NRHM, have been given the benefit of incentive marks under SRO 401. 36. In face of the clear decision taken at Executive level and the benefit in terms of SRO 401 having been given to the doctors engaged under NRHM in the current admission process also, respondents cannot be heard saying that such a benefit is not available under the MCI Regulations. Such a stand rather is ridiculous and self contradictory and is liable to be rejected on this score only. 37. There would be no justification in depriving the doctors engaged under NRHM of the benefit of incentive marks by not treating them as in-service candidates for that limited purpose. A close look at the fourth proviso to Regulation 9 would show that it is an incentive for the service rendered by the doctors in remote or/and difficult areas. It does not make any distinction between a doctor appointed in government service on regular basis and a doctor engaged on ad hoc or contractual basis. The benefit is not restricted to a doctor who has volunteered for serving in remote/difficult area. The requirement simply is that one should have served in such an area, notwithstanding that his posting in that area was as an incident of service or because of area restricted engagement. The laudable purpose is to reward a doctor for having worked in such areas and to encourage others to work there in future. 38. It emerges as common ground of both the sides that NRHM is a Scheme launched by the Central Government for augmenting the public health delivery system, whereby the funds are allotted by the Central Government to the State Governments, whereas the engagement of the doctors and other staff is made by the State Governments. It is not denied that the doctors so engaged are identically qualified as the regular doctors in the State Government Service, they work under the control of the State Government and render duties similar to those rendered by the doctors in regular service. Similar issue had been raised before the Rajasthan High Court in Dr. Richa Tiwari and ors. (supra). It is not denied that the doctors so engaged are identically qualified as the regular doctors in the State Government Service, they work under the control of the State Government and render duties similar to those rendered by the doctors in regular service. Similar issue had been raised before the Rajasthan High Court in Dr. Richa Tiwari and ors. (supra). The issue raised was "as to whether the petitioners having been employed in the NRHM Scheme for varying period of three and two and a half years can be considered to be in-service candidates for the purpose of admission to the Post Graduate (MD/MS) Course in Ayurveda". The issue was answered in affirmative by the High Court and the petitioners were treated as in-service candidates for the purpose of consideration for admission to the Post Graduate Ayurveda Course (MD/MS). The judgement of the Delhi High Court in Stuti Ranjan's case cited to by the learned AG, does not apply to the proposition involved in this case because in that case the Delhi High Court has explained as to how the principle of equal pay for equal work cannot be applied to the doctors engaged under NRHM . 39. The contention in this regard, as indicated hereinabove, should not have been raised before this Court in view of the decision taken at the executive level and benefit under SRO 401 having already been extended to the doctors engaged under NRHM. 40. The contention, however, is rejected for the reasons discussed above and it is held that for the purpose of admission to Post Graduate Courses the doctors engaged on contractual basis under NRHM in the State are eligible for the benefit of incentive marks in terms of Regulation 9 of the MCI Regulations and granting such benefit in terms of SRO 401 of 2009 is illegal. 41. The irresistible conclusion that is arrived at is that the BOPEE has fallen in error in refusing benefit of incentive marks in terms of the fourth proviso to the MCI Regulations to the candidates, who have been given benefit in terms of SRO 401 of 2009, including herein petitioners 1 to 11. 42. The case of petitioner No. 12, however, stands on a different footing. He admittedly has not claimed benefit for remote or difficult area service as the benefit claimed by him is that for 'rural area service'. 42. The case of petitioner No. 12, however, stands on a different footing. He admittedly has not claimed benefit for remote or difficult area service as the benefit claimed by him is that for 'rural area service'. In this writ petition, the case of petitioner No. 12 seems to have unnecessarily intermingled with the case of other petitioners without setting out and explaining as to what error has been committed by the BOPEE in not giving the benefit on that score to him. This aspect was not addressed by learned counsel for the petitioner at bar also. 43. For all that said and discussed above, this writ petition to the extent of petitioners 1 to 11 is allowed and by issue of a writ of certiorari para 8.e.(5) and para 11 of the Information Brochure issued by the BOPEE, Notification No. 08/BOPEE of 2017 dated 25.02.2017, Notification No. 10/BOPEE of 2017 dated 03.03.2017 and the Public Notice No. 01/BOPEE of 2017 dated 25.02.2017 issued by the BOPEE, are quashed and by issue of a writ of mandamus, BOPEE is directed to award incentive marks in terms of the MCI Regulations to all the candidates, who have been found entitled to benefit in terms of SRO 401 of 2009, including the petitioners 1 to 11 and to immediately re-draw the State Merit List so that admission process is completed within stipulated period. 44. Writ petition to the extent of petitioner No. 12, however, is dismissed. 45. Disposed of.