Judgement Summary:
The Court made an analysis of the old Indian Medical Council Act as well as the new National Medical Commission Act. After its perusal, the Bench held the rejection orders of the Respondents to be illegal and void. The Respondents were directed to make fresh decisions on the issuance of NORI certificate to the Petitioner.
Date of Judgement:
7th December 2020
Coram:
Justice Soumitra Saikia
Parties:
Petitioner: Rajdeep Das
Respondents:
1) The Union of India & 3 Ors., represented by its Secretary to the Government of India, Department of Higher Education, Ministry of Human Resource Development;
2)The Under Secretary to the Government of India, Department of Higher Education, Ministry of Human Resource Development;
3) The Secretary to the Government of India, Ministry of External Affairs;
4) The Secretary to the Government of India, Ministry of Health and Family Welfare;
5) The Medical Council of India, represented by its Secretary General.
Case Summary
The present case was filed by a Research Scholar in the medical field, who had obtained his medical degree from universities outside the Union of India. However, when he approached the Respondent-authorities seeking a NORI certificate to continue his work as a Research Scholar in San Francisco, his application was rejected. It was stated by the authorities that such certificate cannot be granted to those who have obtained their degrees from institutions recognized under the Second Schedule of the Indian Medical Council Act of 1956. However, the institutions from where the Petitioner had got his degree, doesn’t come under the same. When the matter was placed before the Gauhati High Court Bench, the Court held the rejection order as invalid, and directed the Respondents to take fresh decisions on the same.
Facts of the Case
- The Petitioner has completed his MBBS Degree from the Kathmandu Medical College in 2009, and pursued Master of Science in Clinical Pathology (MSCP) from Gulf Medical University, UAE in 2011. He has also obtained his Ph.D. from the University of Adelaide, Australia.
- The present case of the Petitioner is that he needed a “No Objection to Return to India” (NORI) certificate by the competent authority of the Indian Government to obtain a G-1 Visa to retain his research job in San Francisco.
- G-1 Visa is a non-immigrant visa issued by the USA Government to Research Scholars, Professors, etc.
- However, it was submitted that the Ministry of Health and Family Welfare rejected his application seeking the NORI certificate, on the ground that, applicants possessing medical qualifications like BDS, MDS and diploma after attaining BDS qualification, cannot be issued the NORI certificate under the Indian Medical Council Act, 1956.
- The Petitioner had again approached the department for NORI, and that too was rejected on the same ground.
- The present petition was filed before the Gauhati High Court alleging that the rejection of the Government Department is unlawful and inconsistent with the laws relating thereto.
Petitioner’s Submissions
- It was submitted that all the other relevant authorities, except the Ministry of Health and Family Welfare, has accepted to grant the NORI certificate.
- Moreover, the college from which the Petitioner had got his degree is not an institution recognized in India to come under the Second Schedule of the Indian Medical Council Act.
- Though, the Kathmandu Medical College was a part of the Second Schedule of the Act earlier, however, the same has been withdrawn from 2007.
- The Counsel for the Petitioner had cited several case observations to strengthen the arguments.
Respondents’ Submissions
- The Respondents maintained the validity of the rejection stating that as per the law, medical practitioners cannot obtain the NORI certificate except those medical practitioners who are above 65 years of age.
- Respondent No. 5, the Medical Council of India also pointed out the importance of complying with Sections 12 and 13 of the Indian Medical Council Act to seek a license to practice medicine in/across India.
Issues Involved
- Whether NORI certificate can be granted to those medical practitioners who have graduated from institutions and universities that were once covered under and later withdrawn from, the Second Schedule of the Indian Medical Council Act?
Important Provisions
- Section 12, Indian Medical Council Act, 1956:Section 12 contains provisions which allow the Medical Council of India to grant recognition to medical qualifications to the medical institutions in other countries, with which there is a scheme of reciprocity.
- Section 13, Indian Medical Council Act, 1956: This Section provides that medical qualifications granted by certain medical institutions would be recognized by the Act under this Section, for the fulfillment of the conditions laid therein, even if such qualifications are not included in the First or Second Schedule of the Act.
- Section 14, Indian Medical Council Act, 1956:Under this Section, the Act is empowered to recognize medical qualifications granted by certain medical institutions, even in absence of a scheme of reciprocity.
- Section 40, National Medical Commission Act, 2019:This Section, under the new Act, gives the National Medical Commission, the same powers stated above.
Judgement Analysis
- The Court observed that since the Kathmandu Medical College and the UAE University, in which the Petitioner had obtained his medical degrees, has been not recognized either under the Second Schedule of the Indian Medical Council Act or under the new National Medical Commission Act, the grounds of rejection put forth by the Respondents are not applicable in the case of the Petitioner.
- It also opined that the submissions of the Medical Council regarding the requirement of compliance with Sections 12 and 13 of the Act is also irrelevant because the Petitioner, at present, has no intent to practice in India.
- Similarly, the argument that the law does not permit the grant of the NORI certificate except in cases of medical practitioners above 65 years of age is also inapplicable. This is because the said provision serves as a remedy to meet the acute shortage of doctors in India, which is irrelevant for this case.
- The Bench also noted that unless the Government offers an opportunity to actively engage such practitioners within the country, there can be no justification for not issuing the NORI certificate to the Petitioner, on the aforesaid grounds.
- With these observations, the Court set aside the rejection orders, and directed the Respondents to make fresh decisions on the same within a period of six weeks from the date of order.
- The Indian Government’s order rejecting the petition’s application for NORI certificate seems superficial. The authorities haven’t provided any valid grounds of rejection, and they solely relied on the provisions under the Indian Medical Council Act.
- The said Act clearly reveals its principles. It states that only those medical practitioners who have completed their course from an institution/University recognized therein should be rejected NORI certificate.
- However, in the instant case, the institutions from where the Petitioner had obtained his degree are not recognised by the Act. This is enough for granting the certificate. Moreover, other contentions of the Respondents too seemed irrelevant to the case. This was rightly pointed out by the Court.
- The learned judge’s views, from the Petitioner’s perspective, provide relief to all such practitioners who are caught up in the issues involved in seeking NORI certificate. It was rightly said that the Government should not reject the certificate on such grounds unless they intend to engage such practitioners in India.
- This is a welcoming verdict for all those who are desirous of engaging themselves in such professions. It also puts a check on the Government, thereby preventing them from making superfluous orders.
Conclusion
The object of NORI certificate is to permit doctors to return to India after completing their higher education or training in the USA. This certificate is mandatory to obtain the G1 Visa which is issued by the US Government. The Indian Government recognized this scheme in 2014; however, it banned the grant of this certificate to practitioners below the age of 65 years. The main aim of this rule is to prevent young doctors to move to the US which would lead to shortage of doctors in India. However, this principle is applicable only to those who have the potential to work in India, and for this, they have to satisfy the provisions under Section 12 and 13 of the Indian Medical Council Act. These Sections provide recognition of medical qualifications under various circumstances. However, in the instant case, the Petitioner’s qualifications cannot be recognised under the Act. In such circumstances, denying him the NORI certificate would certainly affect his future. Therefore, the Government must take careful decisions in such cases; otherwise, it would be highly prejudicial. The Gauhati High Court’s order, in this regard, would serve as a good and effective precedent.
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