Employees' State Insurance Corporation v. Sudheesh Das

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 1ST DAY OF OCTOBER 2014/9TH ASWINA, 1936** **WA.No. 1356 of 2014 () IN WP(C).21928/2014 --------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 21928/2014 of HIGH COURT OF KERALA DATED 19.9.2014** ## **APPELLANT(S)/APPELLANTS/RESPONDENTS: ------------------------------------** **1. EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY ITS DIRECTOR GENERAL PANCHADEEP BHAVAN COMRADE INDERJEET GUPTA (CIG) MARG NEW DELHI-110002.** **2. THE DEPUTY MEDICAL COMMISSIONER MEDICAL EDUCATION EMPLOYEES STATE INSURANCE CORPORATION PANCHADEEP BHAVAN COMRADE INDEERJEET GUPTA (CIG) MARG NEW DELHI-110002.** **3. THE MEDICAL DIRECTOR ESI CORPORATION, PANCHADEEP BHAVAN COMRADE INDERJEET GUPTA (CIG) MARG NEW DELHI-110002.** **4. THE REGIONAL DIRECTOR ESI CORPORATION, SUB REGIONAL OFFICE, KOLLAM-680020.** **BY ADV. SRI.P.SANKARANKUTTY NAIR** ## **RESPONDENT(S)/RESPONDENT/PETITIONER:** **------------------------------------** **SUDHEESH DAS, AGED 19 YEARS S/O M.P.DASAKUMAR, RESIDING AT SURYA, URATTIKKAD MAANNAR P.O., ALAPPUZHA-689622** **BY SRI.M.R.HARIRAJ** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J ----------------------------------------------** ## **W.A.No. 1356 of 2014** **---------------------------------------------Dated this the 1[st] October, 2014** ## **JUDGMENT** ## **Ashok Bhushan, Ag.CJ.** Heard learned counsel for the appellants as well as learned counsel for the respondent. 2. This Writ Appeal has been filed against the judgment dated 19.9.2014 in W.P(C).No.21928 of 2014 by which judgment, the Writ Petition filed by the respondents was allowed. The respondent/writ petitioner had applied for admission to the MBBS course conducted by the ESIC Medical Education Institution. He applied for consideration of his candidature under the quota earmarked for ESIC management quota. The application was under the category of “Wards of Insured Persons”. The criteria for qualification as an insured person is given as follows: 2 _**WA.1356/14**_ _“8. Insured person for the purpose of availing benefit ESIC Management Quota for his/her wards shall be, as under:_ _'The insured person' shall be an 'employee' as defined in the ESI Act; and he/she should have been in continuous insurable employment for a period of five years as on 1[st] January of the year of admission and should have paid at least 78 days of contribution in each contribution period, during this five year period”._ 3. Father of the writ petitioner was an employee of the Aluminium Industries Ltd., who admittedly was covered under the Employees State Insurance Scheme under the Employees State Insurance Act, 1948. The writ petitioner was informed that he could not be considered for the reason that his father had proceeded on leave for the period from 13.5.2009 to 13.10.2009 in connection with illness and therefore had not paid at least 78 days of contribution during the contribution period from 1.4.2009 to 30.9.2009. Aggrieved by the stand taken by the Corporation, the Writ Petition was filed praying for a direction to the respondents to consider the writ petitioner 3 _**WA.1356/14**_ as a ward of insured person for the purpose of Exhibit P2 and to consider him for admission to the MBBS Course under the ESI Medical Colleges in the quota for wards of insured persons in the ESIC Management quota. The learned Single Judge relying on an earlier judgment reported in _**Remya Krishnan R. v. Employees' State Insurance Corporation and others**_ (2013 KHC 3697) held that wards of whose employees, who were on leave due to illness were also entitled for the benefit of admission. In the Writ Petition an interim order was passed by the learned Single Judge under which, the writ petitioner was already given admission in the MBBS course. The learned Single Judge, by his final judgment, held that the writ petitioner was entitled for admission and confirmed the interim order. The Corporation, aggrieved by the judgment of the learned Single Judge, has come up in the Writ Appeal. 4. Learned counsel for the appellants submitted that against the judgment, which was relied on in the 4 _**WA.1356/14**_ impugned judgment, an appeal was filed before the Division Bench by the Corporation, which was allowed. The candidate, Remya Krishnan R. filed appeal before the Apex Court, which was decided as per Exhibit P8 judgment. The appeal was allowed by the Apex Court and the judgment of the Division Bench was set aside. The Apex Court, while restoring the judgment of the learned Single Judge made the following observations in paragraphs 6, 7, 8 and 9: _“6. After carefully going through the judgment(s) and order(s) passed by the Court (s) below and in view of the peculiar facts and circumstances of the case we are of the view that the judgment and order passed by the Division Bench of the High Court cannot be sustained and needs to be set aside._ _7. Accordingly, while allowing this appeal, we set aside the judgment and order passed by the Division Bench of the High Court._ _8. Now, while restoring the judgment and order passed by the learned Single Judge , we direct the respondent(s) to accommodate the_ 5 _**WA.1356/14**_ _appellant-herein for MBBS Course against the available vacant seat in the ESIC Medical College, K.K.Nagar, Chennai, for the present academic year. If such admission is granted, we direct the Medical council of India to accord necessary permission for such admission._ _9. We make it clear that we have not expressed any opinion on the Clause 8 of the Prospectus adverted to by the learned counsel for the respondent Nos. 3 and 4 and this order shall not be treated as a precedent in any other case.”_ 5. The Apex Court although directed to accommodate the candidate as the ward of an insured person, but specifically observed that the Court has not expressed any opinion on clause 8 of the Prospectus. 6. We are also of the view that admission granted need not be disturbed with. The reason being that last date for taking admission to MBBS course was over. The admission of the writ petitioner was confirmed by the learned Single Judge and the candidate has been admitted. 6 _**WA.1356/14**_ 7. Even if for argument sake, we proceed to examine clause 8 of the Prospectus and accept the submission of learned counsel for the appellants, no admission can be granted to the seat, which is already filled and the result might be to leave the seat unfilled. It is necessary that all the medical seats are filled up in the interest of the society. 8. In the light of the above, we are of the view that we need not enter into the various submissions raised with regard to the correctness or otherwise of clause 8 of the Prospectus. Leaving the question open, we confirm the judgment of the learned Single Judge. We clarify that the observation made in the judgment of the learned Single Judge regarding interpretation of clause 8 are left open for consideration afresh in an appropriate case. The Apex Court has already observed in its judgment as quoted above that the judgment shall not be treated as a precedent. We reiterate the said observation and clarify that the judgment of the learned Single Judge in _**WA.1356/14**_ 7 _**Remya Krishnan's case (supra)**_ need not be treated as a precedent. The Writ Appeal is dismissed. **ASHOK BHUSHAN ACTING CHIEF JUSTICE** **A.M.SHAFFIQUE, JUDGE** vgs1/10/14