Geetha N. and Geethika R.K. v. Employees' State Insurance Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **WP(C).No. 28892 of 2016 (J)** **----------------------------** ## **PETITIONER(S):** **-------------** **1. GEETHA N., 46 YEARS, W/O.RADHAKRISHNAN, ASSISTANT TEACHER, KANIKAMATHA CONVENT ENGLISH MEDIUM SCHOOL, PALAKKAD-678 004, RESIDING AT KRISHNAPADAM, PIRAYIRI, PALAKKAD-678 004.** **2. GEETHIKA R.K., 21 YEARS, D/O.GEETHA N., ASSISTANT TEACHER, KANIKAMATHA CONVENT ENGLISH MEDIUM SCHOOL, PALAKKAD-678 004, RESIDING AT KRISHNAPADAM, PIRAYIRI, PALAKKAD-678 004.** ## **BY ADV. SRI.U.BALAGANGADHARAN** **RESPONDENT(S):** **--------------** **1. THE EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY ITS DIRECTOR GENERAL, PANCHADEEP BHAVAN, CIG ROAD, NEW DELHI-110 002.** **2. THE DIRECTOR GENERAL, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, CIG ROAD, NEW DELHI-110 002.** **3. THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN ROUND NORTH, THRISSUR-680 001.** **4. THE BRANCH MANAGER, EMPLOYEES STATE INSURANCE CORPORATION, KANJIKKODE, NO.1669/2, A & E BUILDING, PUDUSSERY, PALAKKAD-678 007.** **BY ADV. SRI.P.SANKARANKUTTY NAIR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 28892 of 2016 (J) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: ----------------------EXHIBIT P1 : A TRUE COPY OF ADMISSION NOTICE ISSUED BY THE FIRST RESPONDENT DATED 17.8.2016. EXHIBIT P2 : A TRUE COPY OF ADMISSION POLICY ISSUED AS ANNEXURE 1 TO EXT.P1 NOTICE. EXHIBIT P3 : A TRUE COPY OF APPLICATION FORM SUBMITTED BY SECOND PETITIONER IN ANNEXURE III DATED NIL. EXHIBIT P4 : A TRUE COPY OF CERTIFICATE ISSUED BY EMPLOYER IN ANNEXURE I AND COUNTER SIGNED BY 4TH RESPONDENT DATED 26.8.2016. EXHIBIT P5 : A TRUE COPY OF FORMAT OF CERTIFICATE "WARD OF INSURED PERSON" TO BE ISSUED BY 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS: ----------------------EXT.R1: TRUE COPY OF THE INTERIM ORDER OF STAY DATED, 31.8.2009 OF THE HON'BLE EI COURT, PALAKKAD IN IC NO.106/2009. EXT.R1(A): TRUE COPY OF THE ORDER DATED, 4.7.2012 OF THE HON'BLE HIGH COURT IN IA.NO.1575/2012 IN INS.APP.NO.53/2012. EXT.R1(B): TRUE COPY OF THE E-PEHCHAN CARD DATED, 3.8.2012 OF THE 1ST PETITIONER. //TRUE COPY// P.S. TO JUDGE** ## **mbr/** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.28892 of 2016 ----------------------------------------------Dated this the 20[th] day of September, 2016** ## **JUDGMENT** This writ petition is filed by the petitioners seeking direction to the 3[rd] respondent to issue certificate of “Ward of Insured Person” to the 2[nd] petitioner and also seeking direction to accept application of 2[nd] petitioner on the strength of Ext.P4 certificate and permit her to participate in the admission process for MBBS/BDS in ESI Medical Colleges against “Ward of Insured Person” quota, and for other related reliefs. 2. Facts encapsulated for disposal of the writ petition are as follows: 3. First petitioner is an insured person under Employees State Insurance Act [for short, 'ESI Act']. Second petitioner is daughter of 1[st] petitioner who applied for MBBS/BDS in ESI Medical Colleges against “Ward of Insured Person” quota. Ext.P4 certificate countersigned by 4[th] respondent Local Office of Corporation, states that necessary contributions were made for the last 5 years from 01.04.2011 to enable the 3[rd] respondent to issue certificate to “Ward of 2 **W.P.(C) No.28892 of 2016** Insured Person” in order to submit application before the last date on 01.09.2016. However, 3[rd] respondent refused to issue certificate stating that date of registration of 1[st] petitioner is shown as 03.08.2012 in their Portal and hence 2[nd] petitioner cannot be issued with the certificate. 4. Ext.P4 is the certificate issued by employer and countersigned by 4[th] respondent showing contributions from 4/2011, and the subscriptions from 01.04.2011 paid manually by the employer is not reflected in the portal. According to petitioners, due to technical errors and lapse on the part of the respondents, 2[nd] petitioner is denied her right for applying for MBBS/BDS against 'Ward of Insured Quota'. It is in this background, seeking appropriate directions, this writ petition is filed. 5. Respondents have file a counter affidavit, basically contending that the respondent Corporation has started Medical Education Institutions in the country with the approval of the Central Government with respect to its admission policy, and procedure, for under-graduate MBBS/BDS Courses in the Institutions of the Corporation, providing _inter alia,_ 'Insured Persons Quota' after allocation to “All India Quota” and the **W.P.(C) No.28892 of 2016** 3 “State Government Quota”. Pursuant to Ext.P1 admission policy and Ext.P2 admission notice dated 17.08.2016, applications were invited for admission of 'Wards of Insured Persons' in under graduate course (MBBS) for the academic session 2016-17 by publication. 6. The Kanikkamatha Convent English Medium Girls' Higher Secondary School in which the 1[st] petitioner is employed has been covered under the ESI Scheme from 08.10.2007. However, the employer challenged the coverage before the Employees Insurance Court under Sec.75 of the ESI Act and obtained stay, evident from Ext.R1 order dated 31.08.2009. The Employees' Insurance Court as per order dated 26.03.2012 in IC No.106 of 2009 disposed of the said application upholding the coverage under the Scheme. This Court in the appeal filed by the employer, as per Ext.R1(a) order, granted interim stay against the order of the Insurance Court, on condition that the appellant employer remits the contribution due regularly as per the provisions of the ESI Act from June, 2012 onwards. Pursuant to the said order, employer of the 1[st] petitioner registered their employees online through ESIC Web Portal and also remitted contribution 4 **W.P.(C) No.28892 of 2016** from June, 2012 onwards, evident from Ext.R1(b). As per the same, even though the date of appointment of the 1[st] petitioner was 11.06.2007, registration under the ESI Scheme was from 03.08.2012 only. 7. This Court as per judgment dated 18.07.2014 in Insurance Appeal No.53 of 2012 dismissed the appeal filed by the employer, along with other connected cases, in the judgment in _**'Don Bosco Higher Secondary School v. ESIC'**_ [2014 (4) KLT SN 89]. According to the respondents, the adjudication of dispute under Sec.75 of the ESI Act was done after impleading the employees of the employer in representative capacity in terms of the directives contained in _**'M/s. FACT Ltd. v. ESIC'**_ [2009 (3) KLT 946 (SC)]. That apart, it is also contended that, as per the IP data base of the ESIC, the date of registration of the 1[st] petitioner is 03.08.2012, which is the date of entry into the Scheme for the purpose and the Declaration Form in respect of her was not submitted to the ESIC prior to 03.08.2012 in any other manner. Therefore, the 2[nd] petitioner in the capacity of daughter of the 1[st] petitioner is not “Ward of Insured Person” entitled to seek admission in the said quota to the academic **W.P.(C) No.28892 of 2016** 5 session 2016-17, since the 1[st] petitioner has not completed 5 years as on 01.01.2016 as her date of registration in the Scheme is only 03.08.2012. It is under the said circumstances, the certificate was not provided for want of essential requirement under Clause 8 of Ext.P1. 8. It is also contended that, petitioners have no case against Ext.P1 admission policy and procedure but pray for allowing admission in terms of the same policy. So also, it is contended that, the entry in the ESI Scheme is as stipulated under regulation 14 of the ESI (General) Regulations, 1950, which is by submission of Declaration Form either in the prescribed proforma or on-line through Web Portal of ESIC by the employer alone. The contribution in respect of the 1[st] petitioner is remitted by the employer for the purpose, prior to the registration under the Scheme on 03.08.2012 pursuant to the judgment of this Court dated 18.07.2014. ESI benefits are admissible on satisfying/qualifying the conditions specified/prescribed for the purpose only. It is the settled principle of law in this regard that there was no _quid pro quo_ between the persons insured and the benefits available under the ESI Act. Therefore, according to the respondents, **W.P.(C) No.28892 of 2016** 6 petitioners have no right to pray for any benefits without satisfying the express conditions by virtue of the remittance of contribution due from the employer in arrears. Therefore, it is contended that, petitioners are not entitled to get any relief as sought for in the writ petition. 9. Heard learned counsel for the petitioners and learned Standing Counsel appearing for the Insurance Corporation. Perused the documents on record and the pleadings put forth by the respective parties. 10. The subject matter of the issue raised in the writ petition revolves round paragraph 8 of Ext.P1 Admission Policy, which read thus: _“8._ _**Insured person** for the purpose of availing benefit of Insured Persons (IPs) 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 minimum 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. The 5 year period would be counted from the date of entry into the ESI Scheme. For employees who entered the Scheme prior to 9[th] June, 2011, the date of entry into the Scheme for the_ **W.P.(C) No.28892 of 2016** 7 _purpose of availing benefit of Insured Persons (IPs) Quota for his/her wards would be the date of submission of 'Declaration Form' by the employer in respect of the employee concerned at the Branch Office or another appropriate office of the ESIC. For employees who entered the Scheme after 9[th] June, 2011, the date of entry into the Scheme for the above purpose would be the date of registration available in the IP database of the ESIC. In case there is default or delay on the part of the employer in getting itself of the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay. Any period prior to the date of entry described above would not be counted towards the 05 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota.”_ 11. On a reading of paragraph 8 of Ext.P1, it is clear that the insured person shall be an 'employee' as defined in the ESI Act and should have been in continuous insurable employment for a minimum 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. The 5 year period would be counted from the date of entry into the ESI Scheme. That apart, it is also stipulated that, in case there is default or delay on the part of the employer in getting itself or the concerned employee 8 **W.P.(C) No.28892 of 2016** covered under the Scheme, the ESIC will not be responsible for the said default or delay. Any period prior to the date of entry described above would not be counted towards the 5 year period of eligibility for the purpose of availing benefit of Insured Persons Quota, is the further stipulation. 12. On a reading of paragraph 8, it would indicate that what is material is not the 5 year employment of the 1[st] petitioner, but the date of enrolment in the Scheme is that what matters for securing admission in the Quota. The said stipulation is a mandatory requirement which is clear from the imperative condition that, while counting 5 year period as on 1[st] January of year of admission, the employee should have at least 78 days of contribution in each Contribution Period during the 5 year period. It is also clear from the stipulations that the 5 year period would be counted from the date of entry into the ESI Scheme. Admittedly, 1[st] petitioner was registered only on 03.08.2012 and that too, as per Ext.R1(a) interim order passed by this Court. The contribution prior to the said period was paid after the judgment was rendered by this Court on 18.07.2014. The said aspects are virtually admitted by the petitioners. Therefore, it can be seen that 1[st] petitioner did not 9 **W.P.(C) No.28892 of 2016** have qualifying service of 5 years from the date of enrolment in the Scheme, the same being 03.08.2012, in order to secure admission in the quota in question for the academic year 2016-17. True, it is a hard case where the employer was contesting the litigations with respect to the liability of the employer to pay contribution under the ESI Act. However, it is clearly stated in the counter affidavit that the representatives of the employees were impleaded in the proceedings before the Employees' Insurance Court in representative capacity in terms of the directives contained in the judgment in the ' _**FACT case**_ ' ( _supra_ ). Therefore, it cannot be heard to say that 1[st] petitioner did not have any opportunity to contest the proceedings before the Employees' Insurance Court and later before this Court. 13. That apart, the terms and conditions in Ext.P1 were very well known to the 1[st] petitioner also. Merely because the contribution was paid in lump after the judgment of this Court, admittedly, the registration of the petitioner into the scheme is only on 03.08.2012. What is material is the registration and the 5 year period thereafter. Taking into account the totality of the circumstances and reckoning the provisions contained **W.P.(C) No.28892 of 2016** 10 under Ext.P1 Admission Policy, there is no doubt for me, to arrive at a definite conclusion that 1[st] petitioner did not have the qualifying service in order to secure admission for the 2[nd] petitioner under the quota “Ward of Insured Person”. Moreover, the contributions paid after the judgment rendered by this Court for the period prior to 2012, will not inure to the benefit of the 1[st] petitioner to seek admission to her ward to the medical course for the quota earmarked, but the same may only inure to the other ESI benefits provided to the 1[st] petitioner under the ESI Act. 14. Sequel to the above discussion is that petitioners are not entitled to get any relief, as sought for in the writ petition for the academic year 2016-17, since 1[st] petitioner is not qualified as prescribed under paragraph 8 of Ext.P1 Admission Policy. Above all, Quota fixation is an exception carved out from the general category, consequent to which a special circumstance bloom to the advantage of the beneficiary and therefore the stipulations accordingly contained under the provisions are to be strictly construed, in order to ascertain the qualification of the applicant. 11 **W.P.(C) No.28892 of 2016** Writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/22.09.2016