Celeena Vinod v. Employees State Insurance Corporation

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940** **WP(C).No. 17672 of 2018** **----------------------** **PETITIONER(S) --------------** **CELEENA VINOD, NEERAMTHANATH HOUSE, EAST MARADY P.O, MUVATTUPUZHA, ERNAKULAM, PIN-686 673.** **BY ADVS.SRI.P.RAMAKRISHNAN,** **SMT.PREETHI RAMAKRISHNAN, SRI.T.C.KRISHNA, SRI.C.ANIL KUMAR, SMT.ASHA K.SHENOY, SRI.PRATAP ABRAHAM VARGHESE.** **RESPONDENT(S):** ## **--------------** **1. EMPLOYEES STATE INSURANCE CORPORATION, PANCHDEEP BHAVAN, CIG ROAD, NEW DELHI - 110 002.** **2. THE DEPUTY DIRECTOR,** - **SUB REGIONAL OFFICE, EMPLOYEES STATE INSURANCE CORPORATION, MALUS COMPLEX, ST. FRANCIS CHURCH ROAD, KALOOR, KOCHI - 682 017.** **R1-R2 BY SRI.K.SANDESH RAJA, SC. SRI.P.SANKARANKUTTY NAIR, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2018, ALONG WITH W.P.(C)NO.7795 OF 2018 AND CONNECTED CASES, THE COURT ON 22/06/2018 DELIVERED THE FOLLOWING:** **rs.** **25/06/2018.** **WP(C).No. 17672 of 2018 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ADMISSION NOTICE DATED 09.05.2018 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 25/06/2018.** ## **P.B. SURESH KUMAR, J.** **------------------------------------------------** **W.P.(C).Nos. 17672, 7795, 9322, 16325, 16820, 16852, 16878, 17007, 17307, 17705, 17973, 18073, 18075, 18797 & 19843 of 2018** **-----------------------------------------------Dated this the 22[nd] day of June, 2018** ## **JUDGMENT** The issue arises for consideration in this batch of writ petitions is common and as such, they are disposed of by this common judgment. 2. The matters relate to admission to MBBS/BDS Courses in the medical colleges established by the Employees State Insurance Corporation (the Corporation) against the quota earmarked for wards of persons insured under the Employees State Insurance Act (the Act). Clause 8(f) of Annexure-1 to the admission notice issued by the Corporation for selection of candidates for admission against the said quota in the W.P.(C.) No. 17672/18 & con. cases 2 ensuing academic session, is under challenge in the matters. Some of the writ petitions are instituted by the insured persons, some by their wards and the rest by the insured persons along with their wards. 3. In terms of the admission notice, the insured persons are grouped into three categories namely, those who are in continuous insurable employment for a period of 5 years, 4 years and 3 years respectively, immediately preceding the first day of January of the year of admission. The admission notice provides, among others, that candidates will be allotted seats against the quota based on their groups and merit cum preference of institutions through a centralized online counseling process to be conducted by the Director General of Health Services. Clause 5.2.3 of the admission notice provides that candidates seeking admission under the quota shall secure, among others, a valid 'Ward of Insured person' certificate. Clause 8 of Annexure-1 to the admission notice provides, among others, that the combined earning of the insured person and spouse shall not exceed Rs.6,00,000/- W.P.(C.) No. 17672/18 & con. cases 3 per annum. The combined earning of the insured persons involved in these matters and their spouses would exceed Rs.6,00,000/-. Their wards, therefore, are not entitled to the 'Ward of the Insured Person' certificate. The petitioners, therefore, challenge clause 8(f) of Annexure-1 to the admission notice prescribing the said criterion for admission as arbitrary and contrary to the scheme of the Act. 4. A counter affidavit has been filed on behalf of the Corporation. The stand taken by the Corporation in the counter affidavit is that the quota was introduced with a view to uplift the insured persons who are in the lower strata of the society and therefore, fixation of an outer limit of income for the parents of the candidates is neither arbitrary nor contrary to the scheme of the Act. It is stated by the Corporation in the counter affidavit, among others, that if the candidates whose parents' income exceeds Rs.6,00,000/- are not excluded from the process of selection against the quota, the very purpose of the quota would be defeated. W.P.(C.) No. 17672/18 & con. cases 4 5. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Corporation. 6. Clause 8(f) of Annexure-1 to the admission notice which is impugned in these matters reads thus: f) The combined earnings of the IP and spouse (parents of the applicant) should not exceed Rs.06 (six) lakh per annum. The Act as also the Rules and Regulations framed under it do not provide for preferential admission in the medical colleges established by the Corporation for the wards of the persons insured under the Act. As held by this Court in **Director General, ESIC, New Delhi and others v. Jemil Elizabeth Mathew and others** [2014 KHC 706]), the quota therefore is only a privilege extended by the Corporation to the wards of persons insured under the Act. The Corporation, therefore, is free to fix appropriate norms for extending the said privilege. Of course, the Corporation being an instrumentality of the State, such norms shall conform to the constitutional principles. The 5 W.P.(C.) No. 17672/18 & con. cases quota in fact is a provision in favour of the wards of persons insured under the Act to undertake MBBS and BDS courses at a subsidised fees. As stated by the Corporation in the counter affidavits filed in these matters, the object of the said provision is advancement of the insured persons who generally belong to the lower strata of the society. The question, therefore, is as to whether exclusion of the creamy layer among them, while conferring the privilege is justified. 7. It is common knowledge that only students from the affluent sections of the society are now in a position to aspire for admission to MBBS and BDS courses, as without the aid of expensive professional coaching classes, one may not normally be able to acquire the requisite rank in the entrance examinations conducted for admission to the said courses. In other words, economic backwardness is certainly an impediment for students belonging to the lower strata of the society in securing admission to the said courses. It is, therefore, clear that without a quota, students belonging to the lower strata of W.P.(C.) No. 17672/18 & con. cases 6 the society may not be in a position to secure admission to MBBS and BDS courses. No doubt, therefore, that the quota is evolved having regard to the said state of affairs. 8. It is settled that economic backwardness is also a criterion for determination of backward class. The quota for admission to professional courses like MBBS and BDS in favour of students belonging to an economically backward class is, therefore, in conformity with the constitutional scheme, especially, in the light of Article 15(5) of the Constitution. In **Ashoka Kumar Thakur v. Union of India and others** [(2008) 6 SCC 1], it was held by the Apex Court, following the decision in **Indra Sawhney v. Union of India** [1992 Supp (3) SCC 217] that the affluent sections of the society do not deserve any provision for further progress in life and they are to be excluded while identifying the backward class who deserve provision for progress in life. **Ashoka Kumar Thakur** (supra) was a case dealing with Article 15(5) of the Constitution conferring power on the State to make special provision for the advancement of backward W.P.(C.) No. 17672/18 & con. cases 7 classes for admission to educational institutions as also Article 16(4) of the Constitution conferring power on the State to make provision for reservation in appointments. It was also held by the Apex Court in the said case that if provision is made in favour of any affluent class, the weak would remain weak always, leaving the fortunate ones to enjoy the benefits. It was further held by the Apex Court in the said case that benefits of reservation must, therefore, be delivered only to those who really deserve them and the failure to exclude creamy layer from the benefits of reservation would render the reservation unconstitutional. Paragraphs 168, 170, 171, 297, 298 and 366 of the decision of the Apex Court in the said case, which are relevant in the context, read thus : **168.** As noticed earlier, determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness. It has been noticed in _Indra Sawhney case_[10] that among the backward class, a section of the backward class is a member of the affluent section of society. They do not deserve any sort of reservation for further progress in life. They are socially and educationally advanced enough to compete for the general seats along with other candidates. W.P.(C.) No. 17672/18 & con. cases 8 **x x x x x x x x** **170.** It is to be understood that “creamy layer” principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the “creamy layer” principle is not applied, it could easily be said that all the castes that have been included among the socially and educationally backward classes have been included exclusively on the basis of caste. Identification of SEBC for the purpose of either Articles 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of this Court and it is also against Article 15(1) and Article 16(1) of the Constitution. To fulfil the conditions and to find out truly what is socially and educationally backward class, the exclusion of “creamy layer” is essential. **171[.]** It may be noted that the “creamy layer” principle is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining SEBC is poverty. If that be so, the principle of exclusion of “creamy layer” is necessary. Moreover, the majority in _Indra Sawhney case_[10] upheld the exclusion of “creamy layer” for the purpose of reservation in Article 16(4). Therefore, we are bound by the larger Bench decision of this Court in _Indra Sawhney case_[10] and it cannot be said that the “creamy layer” principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic well-being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. ## **X x x x x x x** **297.** In our view, even non-exclusion of the creamy layer for the purpose of admission to the educational institutions cannot be countenanced. It is inconceivable that a person who belongs to the creamy layer is socially and educationally backward. The backward status vanishes when somebody becomes part of the creamy layer. W.P.(C.) No. 17672/18 & con. cases 9 **298.** In _Vasanth Kumar case_[25] it was aptly described that the benefits of reservation are snatched away by the top creamy layer of the backward classes and this has to be avoided at any cost. By inclusion of the creamy layer or in other words non-inclusion thereof a fresh lease of life to those who should have been left out is given. Their continuance would mean keeping weakest amongst the weak always weak and leaving the fortunate ones to enjoy the benefits. If the ultimate aim is a casteless and classless society in line with the dream of the Constitution-framers that has to be chewed out. As Father of the Nation had once said if the caste system as we know is an anachronism, then it must go. There is a feeling and it cannot be said without reason that reservation hits at the root of this belief and instead of its obliteration there is perceivable perpetuation. It is true that obliteration cannot be done immediately or within a short span of time but that is no answer to the lack of seriousness in seeking obliteration. ## **x x x x x** **366.** To attain an egalitarian society, we have to urgently remove socio-economic inequalities. All the learned counsel for the petitioners asserted that we must deliver the benefits of reservation to only those who really deserve it. This can only be done if we remove the creamy layer. Learned counsel for the Union of India and other respondents opposed this assertion. The principle of creamy layer emanates from the broad doctrine of equality itself. Unless the creamy layer is removed from admissions and service reservation, the benefits would not reach the group in whose name the impugned legislation was passed—the poorest of the poor. Therefore, including the creamy layer would be inherently unjust. Reverting to the cases at hand, I have no doubt that the impugned provision is one intended to exclude the creamy layer amongst the persons insured under the Act for the purpose of ensuring that the very purpose of the quota, namely, advancement of the economically weaker class among the insured persons is served. It is specifically W.P.(C.) No. 17672/18 & con. cases 10 pointed out by the Corporation in the counter affidavits filed in these matters that going by the present income limit fixed for coverage under the Act, the yearly income of the insured person would not exceed Rs.2,52,000/-. It is stated that nevertheless, the cap of Rs.6,00,000/- is fixed for the purpose of extending the privilege having regard to the income of the spouses of the insured persons coming within the said range as also additional incomes which they may earn by way of overtime wages etc. It is, therefore, clear that only candidates who are in a better financial environment and who are in a position to compete with candidates who do not have any reservation or quota for admission to MBBS and BDS Courses, alone are excluded from the class of beneficiaries of the quota. The quota, in the circumstances, cannot be said to be unconstitutional. The challenge against clause 8(f) of Annexure 1 to the admission notice, therefore, fails. 9. The learned counsel for the petitioners in some of the writ petitions contended that the insured W.P.(C.) No. 17672/18 & con. cases 11 persons involved in their cases are living separately from their spouses and that therefore, reckoning the combined income of the spouses for the purpose of considering the eligibility of their wards to claim admission against the quota would work out injustice to them. If there is a legal separation, then, the question of reckoning the combined income of the spouses does not arise. The mere fact that the spouses are living separately in some cases cannot be a reason to challenge a stipulation in the nature of Clause 8(f) of Annexure I to the admission notice as unconstitutional. 10. The learned counsel for the petitioners in some other writ petitions contended that the stipulation that the combined income of the spouses shall not exceed Rs.6,00,000/- is arbitrary in the sense that the same is too low an income limit for elimination of the creamy layer. It is pointed out that the income limit for elimination of creamy layer for reservation now fixed by the Central Government is Rs.8,00,000/-. As noted, an income limit is fixed in the instant cases for conferring preferential W.P.(C.) No. 17672/18 & con. cases 12 admission to the wards of insured persons in the medical colleges established by the Corporation. The aforesaid income limit has been fixed by the Corporation for the purpose of ensuring that the benefit conferred goes to the deserving. It has nothing to do with the income limit prescribed by the State and Central Governments for eliminating creamy layer while conferring other benefits. There is, therefore, no merit in this contention also. 11. In most of these cases, candidates are not eligible for “Ward of Insured Person Certificate” solely for the reason that the combined income of the parents of the candidates exceeds Rs.6,00,000/-. In some cases, the candidates concerned have other hurdles as well to claim the said Certificate. Even if the issues raised by the petitioners in the said cases relating to those hurdles are decided in their favour, they may not be able to claim the Certificate in the light of clause 8(f) of Annexure I to the admission notice. It is, therefore, unnecessary to consider those issues. W.P.(C.) No. 17672/18 & con. cases **==> picture [13 x 9] intentionally omitted <==** In the result, there is no merit in the writ petitions and the same are, accordingly, dismissed. sd/- **P.B. SURESH KUMAR JUDGE** SKS