September 16, 2021 11:17:56 am
The Bombay High Court on Wednesday held that the policy decision of Union Ministry of Health and Family Welfare not to issue a No Objection To Return to India (NORI) certificate to medical degree holders desiring of obtaining Green Card in the United States cannot be made applicable to research scholars not intending to practice medicine in India or abroad.
Maintaining this, the court directed the central government to issue NOC for NORI certificate to a 27-year-old woman from Khar, Mumbai and currently residing in New York within four weeks and issue the certificate within a week after issuance of NOC.
The court also said that it should be clarified in the NORI certificate that in case the petitioner starts practising medicine in the US, her NORI certificate would stand cancelled and she would be required to come back to India.
A division bench of Justice Ramesh D Dhanuka and Justice Riyaz I Chagla passed a verdict in writ plea by one Avani Vaishnav seeking to quash and set aside the July 2020 decision of Under Secretary (Scholarship), department of higher education, Union education ministry rejecting her application for NORI certificate. Petitioner also challenged communication by the ministry this March this year, rejecting her application for NORI certificate.
The plea stated that Vaishnav completed her MBBS degree programme from the DY Patil Medical College in 2017. The petitioner said that she accepted an internship at a hospital for special surgery in the US during June 2017 and June 2019, and the said role did not involve patient contact or clinical privileges.
The petitioner applied for a J-1 Visa (research scholar visa) in August 2017 and the same was granted, after which she travelled to the US. Vaishnav said that she cannot reside in the US on the said visa beyond five years and when she applied for Green Card, she was asked to provide a NORI certificate.
The plea said that a US visa holder has to return to the home country and physically stay there for two years after completion of the J-1 visa, which is called Home Residence Requirement (HRR).
The NORI certificate by the home country is required to waive the HRR, wherein the home country certifies that the applicant is under no obligation to return to India.
On March 9, 2020, the petitioner applied for the certificate, which was rejected on July 28, last year, hence petition in HC.
The Centre rejected her plea as per a policy decision taken in view that there are about 20.5 lakh doctors in India and there is a shortage of about 4 lakh doctors and a large number of doctors have migrated to other countries increasing the shortage.
Senior advocate Y S Jahagirdar, representing Vaishnav, said that his client is ready and willing to surrender her license to practice medicine in India.
He said that the policy does not make any distinction between the practising doctors and research scholars, while the certificate was required for the petitioner, a research scholar, to waive HRR conditions and to avail of the Green Card.
Advocate RV Govilkar for the Centre submitted that NORI has not been issued to any medical course degree holder since August 2011 except in cases where the applicant is more than 65 years of age and the same was justified.
After hearing submissions, the bench noted that the petitioner had completed her MBBS degree from a private college and accepted an undertaking given by Vaishnav of not practising medicine as a condition to get NORI certificate.
Justice Dhanuka who authored the judgement for the bench observed, “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. It is held that the policy decision taken by MoHFW of not issuing NORI certificates 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.”
The HC held, “In our view, the said policy decision is not applicable to a research scholar not intending to practice medicine in India or abroad.”
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