Ashitha S. Santhosh & Sheena R.H v. Director General, Employees' State Insurance Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **WP(C).No.23722 OF 2020(M)** ## **PETITIONERS:** - **1 ASHITHA S.SANTHOSH, AGED 19 YEARS, D/O SHEENA R.H, SREE RATNAM, PAYATTUVILA, NEYYATTINKARA, THIRUVANANTHAPURAM-695 501.** - **2 SHEENA R.H, AGED 44 YEARS, D/O RATNAKARAN, RATNAM, PAYATTUVILA, NEYYATTINKARA, THIRUVANANTHAPURAM-695 501. BY ADV. SHRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENTS:** - **1 THE DIRECTOR GENERAL, EMPLOYEES' STATE INSURANCE CORPORATION, PANCHDEEP BHAWAN, COMRADE INDRAJEET GUPTA (CIG) MARG, NEW DELHI-110 002.** - **2 THE MEDICAL COMMISSIONER, EMPLOYEES' STATE INSURANCE CORPORATION, PANCHDEEP BHAWAN, COMRADE INDRAJEET GUPTA (CIG) MARG, NEW DELHI-110 002.** - **3 DEPUTY MEDICAL COMMISSIONER, EMPLOYEES' STATE INSURANCE CORPORATION, PANCHDEEP BHAWAN, COMRADE INDRAJEET GUPTA (CIG) MARG, NEW DELHI-110 002.** - **4 DEPUTY DIRECTOR, EMPLOYEES' STATE INSURANCE CORPORATION, SUB REGIONAL OFFICE, PANCHDEEP BHAVAN, THYCAUD, THIRUVANANTHAPURAM-695 014. BY ADVS. SRI.T.V.AJAYAKUMAR, SC KUM.P.H.RIMJU SRI.T.V.AJAYA KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.23722 of 2020** **2** ## **JUDGMENT** **The 1[st] petitioner, qualified in NEET (UG) examination with rank no.115571. 2[nd] petitioner is her mother, who claims to be an insured person of ESI, on the strength of Ext.P2 Pehchan Card along with Ext.P3 contribution history. Petitioners are aggrieved by the cut off date viz.30.09.2019, fixed in Ext.P5 admission notice for determining the eligibility for admission to the UG Courses (MBBS/BDS) in the ESIC Medical Education institutions, in the Insured Person's (IP) quota. (Though the prayer no.1 in the writ petition is to declare clause 7.10.1 restricting the cut off date to 31.10.2018 is ultra-vires, the cut off date fixed in the relevant provision in Ext.P5 which relates to 2020-21, is 30.09.2019).** **2. The Employees' State Insurance Corporation (ESIC) has got medical educational institutions across the country. After allocation** **W.P.(C).No.23722 of 2020** **3** **of seats to All India Quota and State Government quota, admission is given to the wards of Insured persons in the Insured Persons' quota. As per Clause 3 of the Ext.P5 admission notice for the year 2020-21, the wards of insured persons under ESI scheme, who meet the laid down eligibility criteria and have qualified in NEET UG 2020 can apply for admission to UG course (MBBS/BDS) in ESIC Medical/Dental Colleges Educational Institutions and some Government Colleges in the Insured Persons' Quota for the year 2020-21 as per admission policy and procedure approved by Government of India/ESI Corporation. Clause 5.2.1 of Ext.P5 provides for the guiding principles. As per Clause 5.2.2 applicant must have a valid “ward of Insured Person” certificate. Clause 7.10 provides for “critical cut off date to determining eligibility of insured person in Clause 7.10.1 and the age of dependent in clause** **W.P.(C).No.23722 of 2020** **4** ## **7.10.2. Clause 7.10.1, which is relevant for the purpose of this case, reads as follows:** _**“7.10.1. Eligibility of Insured person for availing benefit under the 'Insured Persons' Quota for his/her child/children would be 30[th] September, 2019, i.e. only a person who is 'Insured Person' as per the Act, as on 30/09/2019 would be eligible for availing the benefit under the 'Insured Persons' Quota for his/her child/children.”**_ **3. Petitioner alleges that the cut off date fixed is illegal because the cut off date was 31.10.2018, in the previous year, which was only 7 months before the issue date of admission notice, whereas this year it is 1 year and 3 months from the issue date. Relying on the judgment of this Court in** _**Vaishna Vinod v. Employees State Insurance Corporation and Others**_ **[2018 (4) KHC 336], the learned Counsel for the petitioner argued that the cut off date is to be declared ultra-vires and contrary to the judgment of the Division Bench.** **W.P.(C).No.23722 of 2020** **5** **4. On the other hand Sri.T.V.Ajayakumar, the learned Standing Counsel argued that the judgment in** _**Vaishna Vinod's case (supra)**_ **does not restrict the respondents in fixing a cut off date for the purpose of eligibility of the insured person. The learned Standing Counsel relied on the judgment dated 08.07.2019 of another Division Bench in W.P.(C) No.14186/2019 and argued that the respondent is very well within its powers to fix a cut off date to determine the eligibility of the insured person to have the benefit of reservation for his/her ward. The competence of the ESIC to fix a cut off date as fixed in clause 7.10.2 of the admission notice of the previous year was the question considered therein.** **5. I heard the learned counsel for the petitioner and learned Standing Counsel for the respondents.** **6. As the learned counsel for the petitioner** **W.P.(C).No.23722 of 2020** **6** **vehemently argued that the issue is covered by the judgment in** _**Vaishna Vinod's case (supra)**_ **, it is necessary to have a look at it.** **7. It is seen that as per the admission policy of that particular year, the candidates were grouped into I, II and III consisting of the wards of insured persons in continuous insurable employment of a minimum period of 5 years, 4 years and 3 years respectively. The continuous insurable employment was further explained to mean as the employee whose paid/payable contribution was for not less than 7 days in all the contribution periods of the respective groups, immediately preceding 1[st] January of the year of admission. Unless the contribution paid/payable was not less than 78 days in the respective 9, 7 or 5 contribution periods in the 5, 4, 3 year group, their wards were ineligible. There the definition of “continuous insurable** **W.P.(C).No.23722 of 2020** **7** **employment” under clause 4.5 was also under challenge. It was found that the said definition was contrary to the definition in the Act, where contribution is not a factor. As per the definition of Insured person in Clause 8, he should have the continuous insurable employment as defined in the admission policy and the 5/4/3 year period should lie between the recorded date of entry into the scheme and critical date of eligibility viz. 1[st] of January of the year of admission. The date of entry in the scheme was further defined in sub clause (c), as date of registration available in the data base of the ESIC as uploaded in the web portal of the ESIC and that any period prior to the date of entry in the database would not be counted. The Division Bench found that the aforesaid definitions in clause 4.5 and clause 8 were contrary to the intention of the Act. The definition of** **W.P.(C).No.23722 of 2020** ## **8** **continuous insurable employment in Clause 4.5 was struck down and it was held that the consequential definition to the three groups would be those having five, four and three years continuous insurable employment as defined in Section 2(13) of the Act immediately preceding 1[st] of January of the year of admission. While upholding sub clauses (a) and (b) of clause 8, which requires completion of 5 years, 4 years and 3 years respectively, it was held that clause** **8(c) was found ultra vires.** **8. The observation in para 35, of the judgment is relevant, which reads as follows:** **“** _**35. xxxxx Hence, going by Clause 8, if it had provided solely that for availing the benefits under it the insured person has to be an 'employee' under the Act and that he should be in continuous insurable employment for the relevant period immediately preceding 1[st] of January,2018., there would have been no disquiet or for the various petitioners to litigate.”**_ **W.P.(C).No.23722 of 2020** **9** **9. Further the Division Bench found that reckoning of date of entry based on the entry of the insured person in the database is contrary to the scheme and intent of the statute. It is clear from paragraph 35 also that the classification into three groups with those having 5 years, 4 years and 3 years continuous insured employment (with re-assigned meaning, as defined in Section 2(13A) of the Act), immediately preceding 1[st] January of the year of admission alone were found eligible for the benefit.** **10. Therefore the contention of** **Sri.Ajithkumar Sasthamangalam, the learned Counsel for the petitioner that the cut off date fixed is ultra-vires, solely relying on the aforesaid judgment is completely unfounded.** **11. In the judgment of the Division Bench in W.P.(C). Nos.14186 and 14397 of 2019, relied on by Sri.T.V.Ajayakumar, the learned Standing** **W.P.(C).No.23722 of 2020** ## **10** **Counsel for the ESIC, the question, which arose for consideration, was clause 7.10.2 of the notice issued on the basis of admission policy for the year 2019-20, according to which the age of the dependent male ward of insured person should not have been more than 21 years as on 31.08.2019. The petitioners therein, who were candidates who crossed the age of 21 years as on the said date, the cut off date as arbitrary. In that case 31.08.2019, which was the last date fixed for admission, was fixed as the cut off date. Analysing the definition of 'insured person” as well as that of 'family' of the insured person in Sections 2(14) and 2(11)(iii) of the ESI Act and Section 46 of the Act, it was found therein that the benefits available under Section 46 to the insured person does not include the benefit of reservation for MBBS course and that the same is solely based on admission** **W.P.(C).No.23722 of 2020** **11** **policy. It was also found that the admission to the course is not undertaken under any of the provisions in the ESI (General) Regulations, 1950 also and therefore the ESIC was free to choose any yardstick for processing the application of the wards of insured persons and the reasons stated for fixing such cut off date was well founded. It was held that such fixing of yardstick did not militate against the provisions of ESI Act, Rules or Regulations. The contention of the petitioners therein on the ground of deviation from cut off date fixed as 1[st] January in the previous years was also rejected and it was held that the respondents are not estopped from fixing another cut off date, after distinguishing the dictum laid down in** _**Vaishna Vinod's case (Supra)**_ **.** **12. In the present case, it is seen from Ext.P2 Pehchan card as well as Ext.P3** **W.P.(C).No.23722 of 2020** **12** **contribution chart that the date of appointment of 2[nd] petitioner was on 04.11.2019. As pointed out by the learned Standing Counsel, the petitioner's mother had joined the establishment only in November, 2019 subsequent to the cut off date. From the judgment in** _**Vaishna Vinod's case (Supra),**_ **it is seen that the three groups eligible for reservation for the wards were those having a minimum of 3, 4 and 5 years. The criteria of fixing minimum period of service for the insured person is not interfered with by this Court. The said minimum service is seen reduced from 3 years in the present case. As held by this Court, the Act, Rules or Regulations do not confer any right for reservation for admission to MBBS on the wards of the employees under ESI Corporation. The contention of the petitioner is that in Ext.P4 admission notice for admission for the year 2019-20, the cut off date fixed was** **W.P.(C).No.23722 of 2020** **13** **31.10.2018, whereas it is 30.09.2019 in Ext P15. Even if it was 31.10.2019, as in the previous year, the petitioner would not have been eligible. The right to fix the cut off date is entirely on the respondents. Petitioner cannot have any right to insist to have a particular cut off date or that there shall not be any cut off date. Petitioner cannot also insist that the period from the cut off date to the date of notification should be uniform. No material or statutory provision is pointed out in support of the contention of the petitioners other than the judgment in** _**Vaishna Vinod's case (Supra)**_ **, which apparently has approved the minimum period of 3 years' service as criteria for eligibility. Therefore it cannot be said that the cut off date namely 30.09.2019 fixed by the respondent Corporation is ultra-vires or unsustainable. (Though the prayer in the writ petition is to** **W.P.(C).No.23722 of 2020** **14** **declare clause 7.10.1 restricting the cut off date to 31.10.2018 is ultra-vires, the cut off date fixed in the relevant provision in Ext.P5, which relates to 2020-21, is 30.09.2019). When the respondents, who are well within their powers, have thought it fit to fix the cut off date as 30.09.2019, I do not find any reason to interfere with the same.** **Accordingly, the Writ Petition is dismissed.** **Sd/-** **P.V.ASHA JUDGE** ww/rtr **W.P.(C).No.23722 of 2020** **15** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CONFIRMATION REPORT OF NEET RESULT SUBMISSION TO KEAM-2020.** **EXHIBIT P2 THE TRUE COPY OF THE E-PEHCHAN CARD. EXHIBIT P3 TRUE COPY OF THE4 CONTRIBUTION HISTORY OF 7800364010000199 FOR NOV 2019. EXHIBIT P4 THE TRUE COPY OF THE ADMISSION NOTICE DATED 13.05.2019 (PREVIOUS YEAR).** **EXHIBIT P5 THE TRUE COPY OF THE ADMISSION NOTICE DATED 29.10.2020 (CURRENT YEAR)**