Bombay High Court
Avani Sudhir Vaishnav vs Union Of India on 15 September, 2021
Bench: R.D. Dhanuka, R. I. Chagla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
KANCHAN by KANCHAN
VINOD
ORDINARY ORIGINAL CIVIL JURISDICTION
VINOD MAYEKAR
MAYEKAR Date: 2021.09.15
13:19:27 +0530 WRIT PETITION NO. 1679 OF 2021
Avani Sudhir Vaishnav
Aged 27 years
having her permanent residence at
101, Mayfair Residency, 9th Road,
Khar (West), Mumbai - 400 052.
and currently residing at
201 E 69th Street, Apartment 6L,
New York, NY - 10021 ... Petitioner
Versus
1. Union of India
through
1(a) The Under Secretary
(Scholarship),
Department of Higher Education,
External Scholarships Division,
Ministry of Education,
(formerly known as Ministry of
Human Resource and Development
Having its office at
2nd Floor, Wing 6, West Block-1,
RK Puram, Delhi - 110066.
1(b) The Under Secretary,
Ministry of Health and Family Welfare,
having its office at A Wing, Nirman Bhavan,
New Delhi - 110001. ... Respondents
******
Mr. Y. S. Jahagirdar, Senior Advocate a/w Mr. Vyom Shah and Mr. Virendra
Pereira, Mr. Anagh Pradhan i/by M/s. Divya Shah Associates for the
Petitioner.
Mr. R. V. Govilkar a/w Mr. Ashutosh Gole for the Respondents.
******
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CORAM: R. D. DHANUKA AND
R. I. CHAGLA, JJ.
RESERVE DATE : 30th AUGUST, 2021
PRONOUNCE DATE : 15th SEPTEMBER, 2021
JUDGMENT (Per R.D. Dhanuka, J.) :-
. Rule. Mr. Govilkar, learned counsel for the respondents waives
service. By consent of all parties, writ petition is heard finally.
2. By this petition filed under Article 226 of the Constitution of
India, the petitioner seeks a writ of certiorari for quashing and setting
aside the impugned communication dated 9th June, 2020 issued by the
respondent no.1(a) and also the communication dated 22nd March, 2021
issued by the respondent no.1(b) rejecting the application/
representation made by the petitioner for No Objection Certificate for
'No Objection to Return to India Certificate' (for short 'NORI
Certificate').
Some of the relevant facts for the purpose of deciding this petition
are as under :-
3. Sometime in the year 2011, the petitioner enrolled herself in a
private deemed university namely D.Y. Patil Medical College for
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pursuing the Bachelor of Medicine / Surgery degree (MBBS). It is the
case of the petitioner that since she was not interested in practicing as a
Doctor, she did not enroll her in a Government college which provides
medical education at very subsidized or no fees in return for a
mandatory bond. In the year 2017, the petitioner completed her one
year internship mandated under the MBBS course and graduated with
her MBBS degree with distinction in her university exams and
accomplished first rank under the Maharashtra Medical Councils Act.
The Registration is valid for a period of five years.
4. The petitioner and her family applied for the United States
Citizenship and Immigration Services, formed under the Department of
Homeland Services of USA (for short 'USCIS') for availing family
Immigration. The Aunt of the petitioner i.e. real sister of the
petitioner's father is a citizen of the United States of America. She has
sponsored and applied for the family based immigration as per US
Laws by filling petition I-130 with the US immigration authorities
some time in 2004. It is the case of the petitioner that her family's
application was approved by USCIS on 15 th October, 2009. The
petitioner started looking for professional opportunities for doing
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academic research in USA in alignment with the petitioner's and her
family's plans to immigrate to the USA and in furtherance of her
academic inclinations. The multi-faceted research programs available
in USA enable graduates to gain experience to conduct research,
observe, teach and consult in connection with research projects.
5. It is the case of the petitioner that during the period between 20 th
June, 2017 and 20th June, 2019, the petitioner accepted an internship,
which was offered to her by Hospital for Special Surgery in US. This
role did not involve patient contact or clinical privileges. In the month
of August 2017, the petitioner applied for a J-1 Visa (Research Scholar
Visa). The employer of the petitioner issued DS-2019 work
authorization forms extended annually. It is the case of the petitioner
that the petitioner cannot reside in USA on J-1 Research Scholar Visa
beyond five years.
6. On 20th May, 2019, the petitioner's family's interview at the US
Embassy in Mumbai was finally scheduled. However, since the
petitioner was engaged with research work, upon her request it was
postponed to April 2020. In the month of August/September 2019, the
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twin sister of the petitioner i.e. Aditi Vaishnav also completed her
MBBS degree and was also engaged in research work. She also
applied for US Green Card and attended her interview at the US
Embassy in Mumbai. She was asked to furnish a NORI Certificate to
complete her immigration process, since she possessed J-1 Visa. Same
condition was made applicable to the petitioner also.
7. The petitioner was required to obtain NOC from the respondent
no.1(b) in case of Medical Professionals and Doctors and respondent
no.1(a) in other cases. On 9 th March, 2020, the petitioner being a
Medical graduate, applied to respondent no.1(b) for seeking NOC for
NORI Certificate.
8. It is the case of the petitioner that in the Month of April, 2020,
due to covid-19 pandemic, the US Consulate had suspended all
immigration interviews, the US Government also in meanwhile froze
the issue of Green Cards. The interview of the petitioner thus could not
be conducted. On 13th May, 2020, in view of temporary suspension of
Visa interviews and as J-1 Research Scholar Visas are only valid for a
period of five years from the date of its issue, the mentor of the
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petitioner advised her to apply for a J-1 Clinical Visa so that she could
continue to say in USA and pursue a research focused clinical program.
9. It is the case of the petitioner that acting upon an incorrect
advise, the petitioner availed the SON Certificate from the respondent
no.1(b). Vide letter dated 15th May, 2020, the respondent no.1(b)
recorded that they did not have any remarks on the type of visa that
may be granted to the petitioner. On 19th May, 2020, the respondent
no.1(a) rejected the application made by the petitioner on the basis of
an alleged policy of the respondent no.1(b) refusing to issue NORI
Certificate to Medical Professionals. On 15th June, 2020 and 27th July,
2020, the petitioner sought a review of her application made to the
respondent no.1(a). On 28th July, 2020, the respondent no.1(a) rejected
the review application made by the petitioner on the ground that she
was a medical degree holder.
10. In the month of August 2020, the petitioner filed a Writ Petition
(L) No. 4336 of 2020 in this Court. On 10 th October, 2020 and 26th
October, 2020, the petitioner obtained legal advise that she would not
be able to get a J-1 Clinical Visa due to her pending immigration status.
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She was advised by her lawyer that she did not require a SON
Certificate in view of her interest in pursuing research carrier and her
intent to not apply for J-1 Clinical Visa and to pursue Clinical practice.
She also intended to immigrate to USA on Green Card. The petitioner
accordingly surrendered her SON Certificate and requested the
respondent no.1(b) to return the bond submitted by her.
11. On 13th October, 2020, the petitioner withdrew the said Writ
Petition bearing (L) No. 4336 of 2020 with liberty to file a fresh
petition. Pursuant to the said liberty, the petitioner filed this Writ
Petition on 31st October, 2020. On 5th November, 2020, the respondent
no.1(b) confirmed the cancellation of the Surety Bond submitted by the
petitioner. It was mentioned in the said letter that the petitioner had not
used her SON Certificate.
12. On 11th December, 2020, this Court called upon the respondents
to inform this Court as to which Department of Union of India was
entrusted with issuance of NORI Certificate and scrutiny of petitioner's
position. On 17th December, 2020, this Court noted that in the case of
Dr.Sunil Kiran Noothi v/s. Union of India decided by the Aurangabad
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Bench of this Court, a distinction is made between the Medical
Professionals and a Research Scholar and no contrary decision was
shown by the respondents. The respondent no.1(b) was directed to
examine the case of the petitioner in the context of her being a research
scholar and not medical professional and the decision so taken was to
be placed on record.
13. On 22nd December, 2020, the petitioner through her advocates
requested the respondent no.1(b) to allow the petitioner to make a
representation before arriving at a decision after re-examining her
matter as per the order dated 17th December, 2020. The respondent
no.1(b), however did not grant any hearing though the petitioner had
followed up by a request vide letter dated 5th January, 2021.
14. On 28th January, 2021, the respondent no.1(b) contended in its
affidavit that the policy guideline of the respondent no.1(b) did not
permit NOC for NORI Certificate to be issued to Medical Professional
except above 65 years of age and there was no distinction between the
Research Scholar and the Medical Professional for this purpose. On
22nd February, 2021, this Court directed the respondent no.1(b) to place
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its decision concerning NORI Certificate on record.
15. On 22nd March, 2021, the respondent no.1(b) addressed a
communication of its alleged decision after re-examining the case of
the petitioner once again and rejected the request of the petitioner for
NOC for NORI Certificate on the ground that there was no distinction
between a Research Scholar and a Medical Practitioner. The petitioner
thereafter amended this writ petition to bring the said letter dated 22 nd
March, 2021 on record and to impugn the same.
16. Mr.Jahagirdar, learned senior counsel for the petitioner invited
our attention to various documents annexed to the writ petition, to
some of the averments made by the respondents in their affidavit in
reply in the additional affidavit filed by the petitioner and the judgment
of the Aurangabad Bench of this Court in case of Sunil Kiran Noothi
vs. Union of India (2017) 2 BCR 642 in Writ Petition No.8095 of 2026
delivered on 20th December, 2016.
17. It is submitted by the learned senior counsel that though the
petitioner has obtained her MBBS Degree, she has not engaged in
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clinical practice thereafter whether in India or outside India. She has
not practiced medicine. She is a Research Scholar who is currently
working in United States of America (USA) on the basis of Specialized
J-1 Visa (Research Scholar Visa). The petitioner was not required to
obtain Specialized of NEED (SON) or Exceptional NEED Certificate
from the Government of India as is required in the case of Medical
Graduate going Overseas to study on J-1 (Physician) Visa. SON or
ENC certificates obtained by the petitioner to return to India and
practice medicine after completion of their education / Visa is not
under any obligation.
18. It is submitted that the remarks on DA - 2019 Forms submitted
annually by the employer of the petitioner and further issued by the
US Government enabling the petitioner to study and continue her
research work in USA would clearly indicate that the the research work
of the petitioner does not include patient contact or clinical privilege
and that she is a Research Scholar. He invited our attention on various
research articles published by the petitioner. He submits that the
petitioner is ready and willing to surrender her license to practice
medicine in India. The petitioner requires NOC for NORI Certificate
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from the respondents for waiving Home Residence Requirement
(HRR) imposed by USA. HRR requires of persons in J-1 Visa to return
to India and stay for two years after completion of study in USA after
expiry of Visa.
19. It is submitted that obtaining NORI Certificate from the
Government of India is necessary in case of doctors/medical
professional or NOC from the respondent no.1(a) in other case. He
submitted that US Government treats J-1 Visa differently for Doctors
and Professionals / Research Scholars. J-1 Visa obtained by the
petitioner permits her to reside as a Research Scholar in USA for
practice of five years unlike seven years in case of Visa clearance
pursuant to SON Certificate. J-1 Visa issued by the US Government
would also indicate that the petitioner is being treated as Research
Scholar and that she will not have the benefit of clinical privilege or
contact the patient diagnosis / contact during her entire tenure of
conducting research work in USA.
20. It is submitted that the US Government has treated the petitioner
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as NON and clinical exchange participant having no form of patient
care involved. He submits that since the petitioner has not practiced
medicine and is interested in research work and not having obtained J-1
Clinic Visa on the basis of SON on ENC Certificate, the petitioner is
not bound by the condition under the respondent no.1 (b')s
administrative instructions to return to India and practice medicine. The
condition for providing of written assurance is squarely applicable for
obtaining a J-1 (Clinical Visa) which is apparent from the fact that the
US Government treats J-1 Visa differently of Doctors / Professionals /
Research Scholars.
21. Learned senior counsel placed reliance on the judgment
delivered by the Aurangabad Bench of this Court in case of Sunil
Kiran Noothi (supra) and would submit that this Court in the said
judgment has considered the alleged policy of administrative
instructions of the respondent no.1(b) and has held that in case any
Doctor engaged in Research work and neither practicing as Doctors /
Medical Practitioners nor intending to practice, cannot be a ground to
deny the application for NORI Certificate. He submits that the said
judgment of this Court has not been impugned by the respondents
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before the Hon'ble Supreme Court.
22. Learned senior counsel also strongly placed reliance on the order
passed by this court in this writ petition on 17 th December, 2020 after
adverting to the judgment delivered by the Aurangabad Bench of this
Court in case of Sunil Kiran Noothi (supra) and observing that the
Aurangabad Bench of this Court in case of Sunil Kiran Noothi (supra)
has made a distinction between the medical practitioners and research
scholars. No contrary decision is shown of this Court by the
respondents. He submits that by the said order, this Court had directed
the Ministry of Health and Family Welfare to examine the case of the
petitioner in respect of NORI Certificate in the context of assertion of
the petitioner that the petitioner is not the medical practitioner but a
Research Scholar.
23. Learned senior counsel invited our attention to the
communication dated 22nd March, 2021 from the respondent no.1(b)
rejecting the request of the petitioner for grant of NOC to NORI
Certificate. He submits that the administrative instructions as far as
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issuance of NORI Certificate is concerned did not make a distinction of
Research Scholars and Medical Practitioners. He submits that in the
same communication, the respondent no.1(b) has rejected the
application of the petitioner on the basis of their administrative
instructions without applying a distinction between a Research Scholar
or the Medical Practitioner. The said communication dated 22nd March,
2021 is not in compliance with the directions given by this Court vide
order dated 17th December, 2020.
24. Learned senior counsel invited our attention to paragraph 4 of
the communication dated 22nd March, 2021 and also some of the
averments in the affidavit in reply and would submit that administrative
instructions governing the issue of NORI Certificate did not make any
distinction on the basis of experience of the Doctor. The respondents
in the said communication has informed that NORI Certificate will not
be issued under any circumstances except for the applicant aged above
65 years.
25. Learned senior counsel invited our attention to the averments in
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paragraph 7 of the affidavit in reply filed by the respondents notarized
on 28th January, 2021 and would submit that it is admitted by the
respondents that the petitioner had gone to USA as a Research Scholar
on J-1 Visa. He submits that it is admitted that NORI Certificate is a
certificate issued by the Home Country to the applicant certifying that
he is under no obligation to return to India.
26. Learned senior counsel invited our attention to the contention
raised by the respondents in paragraph 8 of the said affidavit that the
Union of India has taken a policy decision in view of the fact that there
are about 20.5 lakh Doctors in India and there is shortage of about 4.00
lakhs Doctors. Large number of Doctors have migrated to other
countries and consequently there is shortage of professionals. The
Government has taken a policy decision not to issue NORI Certificate
to the professionals under any circumstances except if the applicant is
more than 65 years of age. In paragraph 9 of the said affidavit, it is
contended that the policy does not make any distinction between the
practicing Doctors and Research Scholars. He reiterated his statement
that the petitioner does not wish to practice as a Doctor and is ready
and willing to surrender his license to practice medicine in India.
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27. It is submitted by the learned senior counsel that since the
petitioner has applied for green card, issuance of NORI Certificate
would be necessary. He submits that the petitioner has no objection if
the respondents even issue a conditional NORI Certificate with an
endorsement that the petitioner would not practice medicine in USA.
28. Learned senior counsel placed reliance on the judgment of the
Hon'ble Supreme Court in case of Hari Krishna Mandir Trust vs.
State of Maharashtra (2020) 9 SCC 356 and in particular paragraphs
102 to 104 and would submit that in appropriate cases in order to
prevent injustice to the parties, Court may itself pass an order and to
give directions which the Government or the public authorities should
have passed, had it properly and lawfully exercised its discretion. He
submits that the Court is duty bound to issue a writ of mandamus for
enforcement of a public duty. High Court is not deprived of its
jurisdiction to entertain a petition under Article 226 merely because in
considering the petitioner's right to relief, question of fact may fall to
be determined in a petition under Article 226 of the Constitution of
India. High Court has jurisdiction to try the issues both of fact and
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law. He submits that if this Court comes to the conclusion that the
respondents have failed to exercise their duties, this Court itself can
pass an order and issue such directions to issue NOC for NORI
Certificate instead of remanding the matter back to the respondents.
29. Mr.Govilkar, learned counsel for the respondents on the other
hand vehemently submits that it is not obligatory or duty on the part of
the respondents to issue any such NORI Certificate to the petitioner. He
submits that even if it may be the requirement of the US Government
for NORI certificate for issuing a green card in favour of the petitioner,
the respondents are not under any obligation to issue any such NORI
Certificate in favour of the petitioner to comply with the conditions
imposed by the US Government. He distinguished the judgment of the
Hon'ble Supreme Court in case of Hari Krishna Mandir Trust
(supra) on the ground that neither it is the the public duty on the part of
the respondents to issue NORI Certificate nor the legal duty on the part
of the respondents to issue NORI Certificate and thus no writ of
mandamus can be issued against the respondents. It is submitted that
the father of the petitioner is also a Doctor. He did not go to USA on J-
1 Visa. He submits that the petitioner had applied for green card. Her
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J-1 Visa was not considered. He strongly disputed the statement made
by the learned senior counsel for the petitioner that the petitioner
though had passed MBBS Degree in India had not come in any patient
contact.
30. Insofar as the prayer for writ of certiorari prayed by the
petitioner in the writ petition is concerned, he submit that no such
relief can be granted in favour of the petitioner since the impugned
communication issued by the respondents is within the parameters of
law. The writ of certiorari can be issued against a judicial decision.
31. Learned counsel invited our attention to a letter dated 28 th June,
2017 from the respondents to Dr.Sunil Kiran Noothi and would submit
that after adverting to the judgment delivered by the Aurangabad
Bench of this Court in case of Sunil Kiran Noothi (supra), the
respondents have already rejected the said application for NORI
Certificate submitted by the petitioner in that writ petition on the
ground that the NORI Certificate is required by the US Government
and if such certificate is issued would defeat the Government of
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India's endeavour to bridge the gap of medical professionals in the
country and utilize fully the clinical experience of trained medical
personnel in specialties / super-specialties and to increase their number
in India, and thus would be against public interest, NORI Certificate is
not issued since August, 2011 except in cases where the applicant is
more than 65 years of age. He submits that the policy does not make
any distinction between the medical practitioners and Research Scholar
for this purpose.
32. It is submitted that the said petitioner in that matter did not
challenge the said order passed by the respondents rejecting the
application for NORI Certificate. The petitioner was fully aware of the
said decision taken by the respondents in Sunil Kiran Noothi (supra)
after considering the order passed by the Aurangabad Bench of this
Court in case of Sunil Kiran Noothi (supra) and still applied for J-1
Visa under alleged wrong advice.
33. Mr.Jahagirdar, learned senior counsel in his rejoinder argument
invited our attention to the circular issued by the Ministry of External
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Affairs, Government of India annexed at Exhibit-L to the petition and
would submit that the said circular itself prescribes the procedure for
issuing NORI Certificate. He submits that the argument of the learned
counsel for the respondents that it is neither mandatory duty nor legal
obligation to issue any such NOC for NORI Certificate is contrary to
the said circular issued by the Ministry of External Affairs. The
respondents could not justify the argument that if the respondents have
not objected to issue NORI Certificate to the Doctor above of age of 65
years, then why such NORI Certificate cannot be issued in favour of
the degree holder in medicine who is willing to give undertaking not to
practice medicine in India or in the USA. The writ of mandamus is thus
maintainable against the respondents. Since the impugned orders
passed by the respondents are perverse and contrary to law, writ of
certiorari prayed by the petitioner is maintainable.
REASONS AND CONCLUSIONS
34. The question that arises for consideration of this Court is
whether respondents have mandatory duty or any legal obligation on
the part of the respondents to issue NOC for NORI Certificate to the
petitioner who has applied for green card to the US Government for
permanently settling in US for the purpose of research work and having
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undertaken not to practice medicine in India or in US or not.
35. It is not in dispute that the petitioner has obtained her MBBS
decree in India. The petitioner had accepted an internship which was
offered to her by the Hospital for Special Surgery in US during the
period between 20th June, 2017 and 20th June, 2019. The petitioner was
granted J-1 Visa (Research Scholar Visa). Under the said J-1 Visa
(Research Scholar Visa), the petitioner cannot reside in US beyond five
years. In the affidavit in reply filed by the respondents and more
particularly in paragraph 7, it is admitted that the petitioner went to the
USA as a research scholar on J-1 Visa.
36. It is admitted in the reply that it is the condition that the USA
Visa holder has to return to his home country and physically stay there
for two years, after expiry of the programme for which J-1 Visa was
issued which is called as Home Residence Requirement (HRR). The
NORI is also a requirement of the USA for waiver of this condition of
HRR. NORI is a certificate issued by the home country to the
applicant certifying that he is under no obligation to return to India.
37. A perusal of the circular issued by the Ministry of External
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Affairs, Government of India annexed at Ex.`L' clearly indicates that
the said circular provides for the procedure for issuing NORI
Certificate. The said circular provides that the applicant who is in
India should submit application for issue of NORI Certificate at the
CPV Division (Consular-I Section), Ministry of External Affairs, New
Delhi. For those who are applying from a third country where they are
currently staying, the concerned Mission/Post should issue NORI
Certificate by accepting all the documents prescribed in the said
circular. We are thus not inclined to accept the submission of the
learned counsel for the respondents that the respondents are neither
under legal obligation nor under any moral obligation to issue any such
NORI Certificate. The prayer for writ of mandamus prayed by the
petitioner for an order and direction against the respondent 1(a) to issue
NOC for NORI Certificate in favour of the petitioner is thus
maintainable.
38. Insofar as submission of the learned counsel for the respondents
that no writ of certiorari can be issued in this matter is concerned, the
respondents have not disputed that both these respondents are
Departments under Union of India. Even if any quasi judicial orders
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are passed or if the mandatory duty and legal obligation on the part of
the Government or other authorities falling under Article 12 of the
Constitution of India, the writ petition under Article 226 of the
Constitution of India is maintainable. If such order is in breach of legal
and mandatory duty, the writ of certiorari can be issued by the Court
exercising power under power under Article 226 of the Constitution of
India.
39. It is the case of the petitioner that the petitioner has completed
her MBBS course in India without any Government aid and always
wanted to do research. She is desirous to do research in the United
State of America and had accordingly obtained J-1 Visa. Her family
members are already issued green card by the USA authorities. The
petitioner has already surrendered her Statement of Need (SON) to the
respondent no.1(a) by her e-mail dated 10th October, 2020. The
petitioner also requested the respondent no.1(b) to cancel surety bond
submitted by the petitioner along with SON Certificate. The
respondent no.1(b) has already cancelled surety bond submitted by the
petitioner in view of the petitioner not using the SON. The respondent
no.1(b) has informed about such cancellation of such surety bond to the
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petitioner vide letter dated 5th November, 2020.
40. In the writ petition, the petitioner has annexed several documents
in support of her contentions that the petitioner has published several
research articles in USA and is very active in the field of research. The
research of the petitioner has been appreciated by the USA
Government. In the affidavit in reply filed by the respondents, these
factual aspects have not been disputed by the respondents at all.
41. Supreme Court in case of Hari Krishna Mandir Trust (supra)
has held that in appropriate cases, in order to prevent injustice to the
parties, the Court may itself pass an order or give directions which the
government or the public authorities should have passed, had it
properly and lawfully exercised its discretion. The Court is duty bound
to issue a writ of Mandamus for enforcement of a public duty. This
duty must be shown to exist towards the applicant. The High Court is
not deprived of its jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner's right to relief questions
of fact may fall to be determined. It is held that in a petition under
Article 226, the High Court has jurisdiction to try issues both of fact
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and law. Exercise of the jurisdiction is, it is true, discretionary, but the
discretion must be exercised on sound judicial principles.
42. In our view, since the MBBS degree was conferred by the
University controlled by the Ministry of Health and Family Welfare
and Ministry of Education, whether NOC for NORI Certificate should
be issued or not to an applicant having possessed such MBBS degree
for obtaining green card in USA is within the powers of the
respondents, which power is coupled with duty. The principles laid
down by the Hon'ble Supreme Court in case of Hari Krishna Mandir
Trust (supra) applies to the facts of this Court. Thus, this Court has
ample power under Article 226 of the Constitution of India to issue
writ of mandamus against the respondents for compliance with
mandatory duty and obligation to issue NOC for NORI Certificate in
accordance with law.
43. During the course of the arguments, learned counsel for the
respondents led emphasis on the issue that a large number of students
having passed medical degree in India and have become doctors go
abroad thereby there being shortage of about 4 lakh doctors and that
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also being a factor considered while taking the policy decision not to
issue NORI to the medical professional under any circumstances
except if applicant is more than 65 years. The petitioner in this case
has not only averred that the petitioner has not come in contact with
any patient but has also agreed to give an undertaking that the
petitioner will not practice medicine in India or in USA and would only
do research work and the respondents may impose such condition in
the NORI certificate. The submission of the learned counsel for the
respondents that there is being shortage of the medical doctors who
migrate to other countries after obtaining the medical degree from
India is of no significance in the facts of this case and more particularly
in view of the undertaking given by the petitioner. The petitioner had
taken admission in the private medical college. The undertaking given
by the petitioner is accepted.
44. The respondents failed to appreciate that the petitioner was
issued J-1 Visa under the Research Scholar category which is provided
to the students for the purpose to develop their research based skills
and to promote exchange of ideas. The petitioner did not obtain J-1
Visa for graduate medical education/training visa necessary for medical
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graduates aspiring to undergo medical training and healthcare. The
petitioner has already surrendered her SON certificate, has not applied
for nor intends to apply for J-1 'physician' visa and does not have any
obligation to return to India to practice in medicine. There is no
obligation imposed by the Indian law, rules or governing authorities
mandating that the petitioner is required to practice as a doctor in India
for any period of time.
45. Aurangabad Bench of this Court in case of Sunil Kiran Noothi
(supra) has considered the submission of the respondents herein that
there is acute shortage of Doctors, Nurses, Paramedical Staff and
Health Workers in India. It was contended before the Aurangabad
Bench by the respondents that there was 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
causing acute shortage of Doctors in the country. The respondents had
also contended that 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
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65 years.
46. This Court in the said judgment took notice of the fact that the
petitioner before obtaining degree of MBBS was inclined towards
research work leading to the thesis on various medical subjects. The
petitioner in that matter also had travelled to USA on J-1 (Research
Scholar) Visa. In this case also the petitioner has brought on record
that the petitioner has published various research articles in USA and
the said research work was appreciated. This Court noticed that the
petitioner therein had actually neither practiced as a Doctor/Medical
Practitioner, nor intended to practice as such. It is held that 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, could not be
made applicable to the petitioner.
47. This Court also noticed that it was 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,
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perseverance and deep concentration. There may be a number of
Doctors holding medical qualifications included in the Schedules to the
Indian Medical Council Act, 1956. All of them cannot work as
research persons. It is held that there may be very few persons, who
would have the inclination to go for research work instead of practicing
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 does not
appear to be fair, reasonable and proper. The research work taken up by
the petitioner is likely to help the entire mankind.
48. It is held that 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 practicing medicine, the NORI
Certificate would stand cancelled and he would be required to come
back to India. This Court accordingly held that the policy decision
taken by respondent No.1 (b) of not issuing NORI Certificate to the
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person holding medical qualifications cannot be made applicable to the
petitioner who is a Research Scholar and not a Medical Practitioner.
This Court directed the respondents to take decision on the claim of the
petitioner for issue of NORI Certificate within three months from the
date of the said order on its own merits keeping in mind the fact that
the petitioner is a Research Scholar and not a Medical Practitioner.
49. In our view the principles laid down by this Court (Aurangabad
Bench) in case of Sunil Kiran Noothi (supra) squarely applies to the
facts of this case. Merely because the respondents therein refused to
allow the claim of the petitioner therein inspite of the decision of this
Court (Aurangabad Bench) in case of Sunil Kiran Noothi (supra) and
he did not challenge the decision of the respondents therein would not
be a precedent for the respondents to reject the claim of the petitioner
for grant of NORI Certificate on similar ground.
50. This Court by an order dated 17th December, 2020 in this petition
after adverting to the said judgment of Aurangabad bench of this High
Court in case of Sunil Kiran Noothi (supra) observed that no contrary
decision was shown to this Court and directed the Ministry of Health
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and Family Welfare to examine the case of the petitioner in respect of
NORI Certificate in the context of the assertions of the petitioner that
the Petitioner is not a Medical Practitioner but a Research Scholar. The
reasons recorded in the communication dated 22nd March, 2021
refusing to consider the claim of the petitioner for issuance of NORI
certificate on the ground that under the policy guidelines of Ministry of
Health and Family Welfare, there is no distinction between a medical
practitioner and a research scholar for this purpose is contrary to the
principles laid down in case of Sunil Kiran Noothi (supra) and the said
interim order dated 17th December, 2020.
51. During the course of the arguments, learned counsel for the
respondents submits that the relaxation in case of applicant having age
of 65 years having medical degree can be considered for issuance of
NORI certificate on the premise that at the age of 65 years, such
applicant would be hardly able to practice medicine on the basis of
such degree in India. In the facts of this case, the petitioner has already
volunteered and has given undertaking that she will not practice
medicine in India or in USA. The respondents thus could not have
refused to issue NORI Certificate on the ground of her case not falling
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under an exception carved out in the said Policy. The Aurangabad
Bench of this Court has already provided sufficient safeguard in the
facts of that case by directing the respondents to impose the condition
that in case the petitioner start practicing NORI certificate, NOC
certificate would stand cancelled and he would be required to come
back to India.
52. In our view, the respondents can impose condition in the NOC
for the NORI Certificate that in case the petitioner starts practicing
medicine in USA, the NORI Certificate would stand cancelled and she
would be required to come back to India. This Court in the said
judgment has already taken a view that such policy decision taken by
the respondent no.1(b) not to issue NORI certificate to a person
holding medical qualification cannot be made applicable to the
petitioner who is a research scholar and not a medical practitioner.
53. Neither in the affidavit in reply filed by the respondents nor
across the bar, the respondents disputed the factual aspect pleaded in
the petition regarding her research work. The petitioner intends to
carry out research work exclusively in USA and does not practice in
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medicine. The distinction carved out by this Court (Aurangabad
Bench) in the said judgment in case of Sunil Kiran Noothi (supra)
between the medical practitioner and the research scholar has been
totally overlooked by the respondents in the impugned decision dated
22nd March, 2021 under the guise of policy decision taken by the
Ministry of Health and Family Welfare. In our view, the said policy
decision is not applicable to a research scholar not intending to practice
medicine in India or abroad.
54. In our view, the decision taken by the respondents in refusing to
issue NOC for NORI Certificate is in breach of their mandatory duty
and legal obligation to issue such certificate which certificate can be
issued only by the respondents for releasing the students having
obtained medical degree from their obligation not to return to India and
none else. In view of the stand already taken by the respondents not to
issue NOC for NORI certificate, we are not inclined to remand the
matter back to the respondents for reconsideration. The Court has
ample powers to issue a writ of mandamus to direct the respondents to
issue NOC for NORI certificate or NORI certificate itself.
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55. We accordingly, pass the following order :-
(a) The impugned communication dated 28th July, 2020
rejecting the review application filed by the petitioner is
quashed and set aside.
(b) The review application filed by the petitioner for NOC
for NORI certificate is allowed.
(c) The application filed by the petitioner for NOC for
NORI Certificate made by the petitioner on 9 th March,
2020 is allowed.
(d) The communication dated 22nd March, 2021 issued by
the respondents to the petitioner is quashed and set
aside.
(e) The respondent no.1(a) is directed to issue NOC for
NORI Certificate in favour of the petitioner within four
weeks from today. It shall be made clear in the said
NORI Certificate that in case the petitioner starts
practicing medicine in USA, NORI certificate would
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stand cancelled and she would be required to come back
to India.
(f) The concerned authority shall issue NORI certificate
based on the NOC that shall be issued by the respondent
no.1(a) within one week from the date of issuance of
such NOC in favour of the petitioner.
(g) Writ petition is disposed of in the aforesaid terms. Rule
is made absolute accordingly in the aforesaid terms.
(h) The parties to act on the authenticated copy of this
order. There shall be no order as to costs.
[R. I. CHAGLA, J.] [R. D. DHANUKA, J.]
