Bombay High Court
Sunil Kiran Noothi vs The Union Of India And Another on 20 December, 2016
Bench: R.M. Borde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8095 OF 2016
Dr. Sunil Kiran Noothi,
age : 39 years, Occu.: Scientist,
Currently Residing at B-604,
Sea Crown, Sector - 8, Plot No.19,
Near Old Telephone
Exchange Charkop, Kandivali (W),
Mumbai 400067 PETITIONER
VERSUS
1. Union of India, Through
a) Mr. Ghanshyam, Under Secretary,
(Scholarship Division),
Department of Higher Education,
Ministry of Human Resource
Development, having its office
at West Block - 1, Wing -6,
2nd Floor, R.K. Puram,
New Delhi - 110066
b) Mr. N. Kumarswamy, Under Secretary,
or Deputy Secretary Ministry of Health
& Family Welfare, having its office
at A Wing, Nirman Bhawan,
Maulana Azad Road,
New Delhi - 110 011 RESPONDENTS
[Names of respondent nos. 1 (a) and 1 (b) in-person
are deleted as per the leave granted by Court's
order dated 10.08.2016]
----
Mr. R.F. Totala, Advocate for the Petitioner
Mr. S.B. Deshpande, A.S.G.I. for the respondents
----
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CORAM : R.M. BORDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 2nd DECEMBER, 2016
PRONOUNCED ON : 20th DECEMBER, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.)
Rule, returnable forthwith. With the consent of
the learned counsel for the petitioner and learned
Additional Solicitor General of India (A.S.G.I.), heard
finally.
2. The petitioner has assailed the communications
dated 04.03.2016, 06.04.2016 and 23.05.2016, whereby his
claim for grant of "No Obligation to Return to India"
("NORI", for short) certificate came to be rejected by
the respondents.
3. The petitioner obtained the degree of M.B.B.S.
from Rajeev Gandhi University of Health Sciences,
Bangloor, Karnataka in July, 2002. He was selected for
Ph.D. programme at Tata Institute of Fundamental
Research, Mumbai through a Nationwide Entrance Test. He
worked as Postdoctoral Fellow at Orchid Chemicals and
Pharmaceutical Ltd., Chennai from September, 2008 to
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September, 2009 and simultaneously worked on research
publication and thesis. He worked as Analyst for
Competitive Intelligence Reporting in Pharmaceutical
Industry at Chennai and Gangavath from September, 2009
to January, 2011. He was conferred with the
Doctorate of Philosophy (Ph.D.) for the research work
leading to the thesis on "Non-sequence Specific Protein
DNA Interaction : a Mechanistic Study" by the Tata
Institute of Fundamental Research, Mumbai, a National
Centre of the Government of India for Nuclear Science
and Mathematics, on 30.07.2010. He then applied to the
Department of Physiology and Biophysics, Case Western
Reserve University, Cleveland, Ohio, USA for further
research training as Postdoctoral Fellow from January,
2011 to December, 2011 and on being selected, travelled
to U.S.A. on J1 (Research Scholar) Visa. He wanted to
do cancer research and therefore, moved to the
Department of Cancer and Cell Biology, University of
Cincinnati, Ohio from December, 2011 to August, 2013.
In the meanwhile, he got an offer letter dated
20.08.2013 from the University of Kentucky, USA for the
post of Postdoctoral Scholar in the Department of
Microbiology, Immunology and Molecular Genetics. The
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petitioner accepted the said offer and has been working
since then with the University of Kentucky. He is a
Scientist as evidenced by his research publications. He
was not involved with patient care or clinical practice.
He never practised medicine nor is inclined to practise
it in future. Considering his research abilities and
credentials, he has been offered by the University of
Kentucky an appointment under the State Department J1
Title of Research Scholar whereunder he would be working
as a Postdoctoral Scholar at the University of Kentucky
in the Department of Microbiology, Immunology and
Molecular Genetics Markey Cancer Center.
4. According to the petitioner, the Research
Scholar job that is being carried out by him in the
U.S.A. is not available in India. He is already in the
midst of his job and has invested huge time and money on
the research projects. The ultimate aim of his research
project is to find cures in blood cancer, which would
benefit the entire world. He is already under a
confidentiality and on IP protection agreement and as
such, cannot undertake the said research work anywhere
else.
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5. The petitioner is in need of NORI Certificate
so as to enable him to go to join his Research Project
in the University of Kentucky, U.S.A., as required under
the Rules of U.S.A. Therefore, he applied to the
respondents for issuance of NORI Certificate. However,
as per the impugned communications, his request has been
turned down on the ground that as per the extant policy
guidelines, NORI Certificate is not issued by the
Ministry of Health and Family Welfare to anyone except
in the cases where the age of the applicant is over 65
years on the date of submission of the application.
6. The learned counsel for the petitioner submits
that the petitioner is not at all a Medical
Practitioner. He never practised medicine after
obtaining the M.B.B.S. Degree. The petitioner is a
Research Scholar. He intends to go with the research
project taken up by the University of Kentucky, U.S.A.,
which would benefit the entire world in finding cures
for various types of cancers. Since the petitioner has
not worked as a Medical Practitioner and has no
inclination to practise medicine, he would not be able
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to earn anything for himself. He has been offered
monthly salary of Rs. 2,42,100/- per month for working
as a Research Scholar by the University of Kentucky.
Since he has not been granted NORI Certificate by the
respondents, he is not in a position to join the
Research Project. The petitioner, thus, is sustaining
loss of his salary. Moreover, his non-participation in
the Research Project is hampering the research work
which ultimately would cause loss to the entire world.
He submits that the impugned communications, rejecting
claim of the petitioner for grant of NORI Certificate,
is totally unjust, unfair, illegal, discriminatory and
unconstitutional. He, therefore, submits that the
impugned communications may be set aside and the
respondents may be directed to issue NORI Certificate to
the petitioner.
7. Respondent no. 2 filed affidavit-in-reply in
Writ Petition No. 8611 of 2015, wherein almost the
similar issue has been involved. With the consent of the
parties, the said reply has been treated as the reply to
the present petition as well. Based on the contents of
the said reply, the learned A.S.G.I. submits that there
7 wp8095-2016
are about 6.90 lakhs Doctors in India. However,
considering the population of India, four lakhs more
Doctors are required by 2022. It is noticed that a large
number of the Indian Doctors / Medical Professionals
have migrated to U.S.A. He states that the Doctors of
Indian origin are serving in U.K. and Canada to the
extent of 30% and 25%, respectively. There is acute
shortage of Doctors, Nurses, Paramedical Staff and
Health Workers in India. To bridge the gap of specialist
Doctors and utilize fully the clinical experience
available in the Medical Institutions, Diploma of
National Board (DNB) has been started in India which is
equivalent to the postgraduate degree and post doctoral
level qualifications of universities. A number of degree
and diploma courses have been started in India to
increase the number of Doctors/Medical Practitioners in
the country. As a part of capacity building efforts for
the Doctors in the country, the Government of India
facilitates medical students/Doctors joining training
programmes/courses in medical specialties in Medical
Institutions out of India and especially in U.S.A. by
issuing the Statement of Need (for short, "SON")
certificates or Exceptional Need Certificate ("ENC", for
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short), where the Government of India certifies that the
home country is in need of Doctors requiring admission
abroad to the medical courses/training covered in such
certificates. These certificates are issued under the
Exchange Visitors Programme of the Government of U.S.A.
(J1 Visa). At the time of issuing of SON certificate,
the applicant is required to furnish a written assurance
that after completion of the said training/course, he
would return to the home country and start practising in
the specialty for which SON certificate was sought by
him. Accordingly, J1 Visa is issued to such applicant
which enables him to stay in U.S.A. until the
training/course is completed, subject to maximum of
seven years. In case the duration of the training/course
exceeds the period of seven years, the ministry issues
ENC to facilitate the applicant to participate in the
concerned training programme. If the applicant is unable
to return to home country, he is required to obtain a
waiver approved by the Department of Homeland Security,
U.S.A. by obtaining NORI certificate or on certain other
grounds.
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8. The learned A.S.G.I. submits that there is
increasing trend in the Indian Doctors of not returning
to India after completion of their study/training in
U.S.A. and preferring to stay back in U.S.A. only. This
defeats the basic objective of issuing SON and ENC
certificates, since there is acute shortage of Doctors
in the country. Therefore, it was considered appropriate
to put in place a system to ensure that the commitment
made by the applicant while seeking SON certificate is
honoured. Accordingly, as per the US laws, J1 Visa
holder has to necessarily go back to his home country
and stay there for at-least for two years after
completion of study in U.S.A. or on expiry of J1 Visa,
which is called Home Residency Requirement (HRR). The
NORI certificate, which is requirement of the US
Government, mandates the home country to certify that
the applicant is under no obligation to return to India,
before they consider the request for applicant's waiver
from two years mandatory HRR, associated with issue of
J1 Visa. The learned A.S.G.I. submits that as per the
policy of the Government, in view of the prevailing
shortage of Doctors in India, NORI certificates are not
being issued by the ministry since August, 2011, except
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in the cases of the applicants aged over 65 years. He
submits that in view of this policy, the request of the
petitioner for issue of NORI certificate has been
rejected and rightly so. He, therefore, prays that the
writ petition may be dismissed.
9. The impugned letters dated 04.03.2016,
06.04.2016 and 23.05.2016 are produced at Exhibits-Q, R,
and W, respectively, whereby the claim of the petitioner
for issuance of NORI certificate has been rejected. The
last letter dated 23.05.2016 addressed to the petitioner
by the Ministry of Health and Family Welfare reads as
under:
"This has reference to your e-mail dated 09th
May, 2016 and representation dated 11th May,
2016 addressed to Hon'ble Minister of Health &
Family Welfare on the subject mentioned above
and to say that as per extant policy
guidelines, No Obligation to Return to India
(NORI) Certificate is not issued by the
Ministry of Health & Family Welfare to any
applicant, except to an applicant who is over
the age of sixty-five (65) years on the date of
submission of application."
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10. As contended by the learned A.S.G.I., because
of acute shortage of Medical Practitioners in India, the
policy decision has been taken by respondent no. 1(b)
that NORI certificate should not be issued to the
Medical Practitioner except in the case where the age of
such a Medical Practitioner is over 65 years. According
to him, this policy decision has been taken for stemming
brain drain of Doctors, having Indian origin. The
working conditions of the Indian Doctors have been
improved by the Central Government by enhancing their
pays and allowances, age of superannuation and other
conditions. He submits that in view of policy decision,
the petitioner, who is holding M.B.B.S. Degree, is not
entitled to claim NORI certificate.
11. As seen from the certificate (Exh-A), the
petitioner has got registered himself in the register of
Medical Practitioners maintained by the Karnataka
Medical Council, vide Section 13 of the Karnataka
Medical Registration Act, 1961, on 25.07.2002. However,
it is the specific case of the petitioner that he never
practised medicine even after getting certificate of
registration. It is further his case that he does not
12 wp8095-2016
intend to practise medicine in future also because he is
interested in research work in the medical field.
12. The meaning of word "Doctor", according to
Oxford Advanced Learners Dictionary - 5th Edition, is "a
person who has been trained in and practising medical
science". "Medical Practitioner" as defined in Section
2(d) of the Maharashtra Medical Council Act, 1965, means
a person who is engaged in the practice of modern
scientific medicine in any of its branches including
surgery and obstetrics, but not including veterinary
medicine or surgery or the Ayurvedic, Unani, Homeopathic
or Biochemic system of medicine. It is clear from the
specific contention raised by the petitioner that he
never practised medicine and does not intend to practise
as such in future. He has given his career track since
after obtaining the degree of M.B.B.S. in 2002, which
shows that he never practised in medicine. This factual
position has not been denied by the respondents. In the
circumstances, only because the petitioner obtained the
degree of M.B.B.S. in 2002, it cannot be said that he
worked as a Doctor/Medical Practitioner.
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13. It seems that since before obtaining the degree
of M.B.B.S., the petitioner was inclined towards
research work. He started his first research project
with the Professor of Micro-Biology in the Medical
College on Sero-Diagnosis of staphylococcus aureus
infections in acute and chronic osteomyelitis from
August, 1998 to July, 2001. He was selected for Ph.D.
programme for his research work leading to the thesis on
"Non-sequence Specific Protein DNA Interaction : a
Mechanistic Study" at Tata Institute of Fundamental
Research, Mumbai from 2002. He worked as postdoctoral
fellow at Orchid Chemicals and Pharmaceutical Ltd.,
Chennai and also worked on research publication and
thesis from September, 2008 to September, 2009. He
worked as Analyst for Competitive Intelligence Reporting
in Pharmaceutical Industry at Chennai and Gangawat from
September, 2009 to January, 2011. He applied to the
Department of Physiology and Biophysics, Case Western
Reserve University, Clevland, Ohio, U.S.A. for further
research training as postdoctoral fellow from January,
2011 to December, 2011 and travelled to U.S.A. on J1
(Research Scholar) Visa. He has produced the Certificate
of Eligibility for Exchange Visitors (J VISA) Status at
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Exhibit-E, wherein under the caption 'Exchange Visitor
Category', he has been referred to as 'RESEARCH SCHOLAR'
(see clause 4).
14. The petitioner received offer letter dated
20.08.2013 (Exhibit-D) from the University of Kentucky,
U.S.A. for the post of postdoctoral scholar in the
department of Microbiology, Immunology and Molecular
Genetics, Markey Cancer Center, which reads as under:
ig UK
UNIVERSITY OF KENTUCKY
College of Medicine
Dept of Microbiology,
Immunology and Molecular Genetics
303, Combs Cancer Bldg.
Lexington, KY40536-0230
Phone : (859) 323-4705
Fax : (859) 257-8940
E-mail :
[email protected]
August 20, 2013
Dr. Sunil K. Nooti,
Postdoctoral Fellow,
University of Cincinnati,
Dept. of Cancer & Cell Biology,
3125 Eden Avenue,
Vontz Room 3208,
Cincinnati, OH 45267
Dear Dr. Nooti,
My Colleagues and I at the University of Kentucky have enjoyed our
conversations with you and believe you would be an excellent fit in our Dept
of Microbiology, Immunology and Molecular Genetics, Markey Cancer
Center and the University. We were impressed with your experience and
credentials and very much look forward to you joining our team.
Therefore, on behalf of the University of Kentucky, Dr. Rangnekar and I are
pleased to offer you an oppointment under the State Department J-1 title of
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Research Scholar. You will be a Postdoctoral Scholar at the University of
Kentucky within the Dept. of Microbiology, Immunology and Molecular
Genetics, Markey Cancer Center. Your compensation includes a pay rate of
$41483 per year. The position will start on 8-28-13. It is for one year and
is renewable for one more year after satisfactory progress.
The University of Kentucky has an exceptional benefits package. You will
receive the standard paid leave benefits (temporary disability leave,
vacation leave and holiday leave) available to all employees who are
similarly situated. The University also generously contributes to UK
employees' retirement plan, medical coverage, life insurance, and long term
disability (after one year). In addition, UK offers optional dental, vision,
and accidental death and dismemberment insurances, and other retirement
plan opportunities. Other voluntary benefits include short-term disability,
long-term care, group home and auto insurance, etc. To learn more about
these benefits and many more, please visit:www.uky.edu/HR/benefits.
As you may be aware from the application process, this offer of employment
is contingent upon your successful completion of a pre-employment drug
screen and/or national background check.
We are excited about the prospect of you joining us at the University of
Kentucky. If the terms of this agreement are acceptable to you, please notify
me by 8-25-13 by your acceptance and to confirm your availability to start
on August 28, 2013). I look forward to hearing from you soon. Please let
me know if you have any questions.
This appointment is contingent on your ability to obtain a visa for entry to
the United States. We will request that the International Student and
Scholar Services issue a form DS2019 for your J-1 visa application. Please
complete the Candidate Information Form attached to this letter and send it
to our office along with a copy of your C.V., passport, and proof of funding
source
Sincerely,
Sd/-
Subbarao Bondada,
Professor of Microbiology,
Immunology and Molecular Genetics,
Member, Markey Cancer Center,
Member, Graduate Center for Toxicology,
Member, Graduate Centre for Gerontologys
Sd/-
Vivek M. Rangnekar
Alfred Cohen Chair in Oncology Research
Dept of Radiation Medicine
Dept of Microbiology, Immunology and
Molecular Genetics
Member, Markey Cancer Center
Member, Graduate Center for Toxicology"
16 wp8095-2016
15. The petitioner accepted the offer contained in
the letter (Exhibit-D) dated 28.08.2013 and has been
working since then with the university of Kentucky.
16. From the above mentioned facts, it is clear
that though the petitioner has obtained degree of
M.B.B.S. and has got himself registered as a
practitioner under the Karnataka Medical Registration
Act, 1961, he actually neither practised as a
Doctor/Medical Practitioner, nor intends to practise as
such. If that be so, the policy decision taken by
respondent no. 1(b) of not issuing NORI certificate to
any Doctor for the purpose of stemming brain drain of
Doctors and to cope up with the acute shortage of
Doctors in India, cannot be made applicable to the
petitioner. It is obvious that even if he resides in
India, he is not going to render his services to the
citizens of India as a Doctor because of his inclination
in research work. It may be stated that research work
requires special aptitude, intelligence, dedication,
perseverance and deep concentration. There may be a
number of Doctors holding medical qualifications
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included in the Schedules to the Indian Medical Council
Act, 1956. All of them cannot work as research persons.
There may be a very few persons, who would have the
inclination to go for research work instead of
practising medicine. The Research Scholar cannot be
equated with a Doctor/Medical Officer. In the
circumstances, the refusal on the part of the
respondents in issuing NORI Certificate in favour of the
petitioner, making it difficult for him to prosecute his
research work as contained in the letter (Exhibit-D),
dated 20.08.2013, does not appear to be fair, reasonable
and proper. The research work taken up by the
petitioner is likely to help the entire mankind.
Therefore, it was expected of the respondents to
encourage the petitioner for doing the research work by
issuing NORI Certificate instead of creating technical
hurdles in his commendable research project. At the
most, the respondents could have imposed a condition
that in case the petitioner starts practising medicine,
the NORI Certificate would stand cancelled and he would
be required to come back to India. In our view, the
policy decision taken by respondent No.1 (b) of not
issuing NORI Certificate to the person holding medical
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qualifications cannot be made applicable to the
petitioner who is a Research Scholar and not a Medical
Practitioner.
17. In the above circumstances, the Writ Petition
deserves to be allowed partly and it is accordingly
allowed. The respondents are directed to reconsider the
claim of the petitioner for grant of NORI Certificate in
view of the fact that he is not a Medical Practitioner
and is a Research Scholar. Respondent No. 1 (b) shall
take decision on the claim of the petitioner for issue
of NORI Certificate within three months from today on
its own merits keeping in mind the fact that the
petitioner is a Research Scholar and not a Medical
Practitioner. In case respondent No. 1 (b) allows the
claim of the petitioner, after considering the merits
thereof, he shall communicate his decision to respondent
No. 1 (a), who, in turn, shall take decision on the
claim of the petitioner for issue of NORI Certificate
within three months from the date of receiving
communication from respondent NO. 1 (b).
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18. With the above directions, the Writ Petition is
partly allowed. Rule is made absolute partly in the
above terms. The parties shall bear their own costs.
19. In view of disposal of the Writ Petition, Civil
Application No. 4658/2016, filed by the Indian Medical
Association for intervention, stands disposed of.
[SANGITRAO S. PATIL]
ig [R.M. BORDE]
JUDGE JUDGE
npj/wp8095-2016
