High Court of KeralaSingle Judge2014-09-30Writ petition allowed; seat to be allotted to p...

Jemin Elizabeth Mathew D/o K.K. Mathew v. Director General, Employees' State Insurance Corporation, and others

Case / Petition Number:WP(C).No. 23833 of 2014 (D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Judgment Date: 2014-09-30
Court Decision / Holding: Writ petition allowed. The ESIC is directed to allot one seat to the petitioner in the ESIC Management Quota, possibly today itself; if not possible today, within seven working days. The last date for allotment is 30.09.2014. No costs.
Final Disposition: Writ petition allowed; seat to be allotted to petitioner; directorate to communicate allotment today or within seven working days; last date 30.09.2014; no costs.

Parties to the Case

Appellants / Petitioners

Jemin Elizabeth Mathew D/o K.K. Mathew

Respondents

The Director General, Employees State Insurance Corporation, PanchaDeep Bhavan, C.I.G. Road, New Delhi-110 002
The Deputy Director, ESI Corporation Housefed Complex, SASTHRI NAGAR ROAD, Eranhipalam Kozhikode-673006
The Regional Director, ESI Corporation Housefed Complex, SASTHRI NAGAR ROAD, Eranhipalam Kozhikode-673006
The Manager, ESIC Malappuram Branch Office, Malappuram-676505
The Medical Commissioner, PanchaDeep Bhavan ESIC, C.I.G. Road, New Delhi-110002
Martha Mission Hospital Chungathara, Malappuram District-679334 (Addl. R7 to R13 impleaded)
The State of Karnataka represented by the Medical Entrance Commissioner WIDAN SOUDH, Bangalore
The State of West Bengal represented by its Secretary, Government Secretariat, Kolkata
The State of Tamil Nadu represented by its Secretary, Medical Education Department, Chennai
The Dean, ESIC Medical College, Rajaji Nagar, Bangalore, Karnataka
The Dean, ESIC Medical College, KK Nagar, Chennai, Tamil Nadu
The Dean, ESIC Medical College, Gulbarga, Karnataka
The Dean, ESIC Medical College, Joka, Kolkata, West Bengal

Legal Representation & Advocates

Counsels for Petitioners

• Sri U.K. Devidas

Counsels for Respondents

• Sri K. Sandesh Raja, SC
• Sri P. Sankaran Kutty Nair, SC

Case Synopsis & Summary

Jemin Elizabeth Mathew, a ward of an insured person under the Employees State Insurance Act, challenged the ESIC management quota admission rejection for the MBBS course for the 2014-2015 academic year. Ranked 27364 in the All India Medical Entrance Test, she sought admission under the ESIC Management quota as a ward of an insured person. The ESIC rejected her application by Exhibit P4 on the ground that she had not completed five years of insurable employment as on 1.1.2014. The hospital in which her insured father is employed was covered under the ESI Act only from 6.9.2007, and the hospital where the insured is employed was covered only from 1.6.2009; thus five years of insurable employment could not be reckoned as of January 1, 2014. The petitioner argued that the term “year” in the prospectus should be understood as the calendar year, interpreting the year as per ESIC Regulations, 1950, whereas the respondents contended the year should be read independently of Regulation and in accordance with the prospectus. The court held that reckoning the year as in the impugned order is unsustainable and arbitrary since the prospectus lacks a specific calendrical definition. If the Regulation’s definition is applied, the petitioner would qualify for ESIC Management Quota. Relying on a Supreme Court decision in Asha v. P.T. B.D. Sharma University (2012), the court extended time and directed the ESIC to allot a seat to the petitioner, today or within seven working days, with the last date of allotment fixed as 30.09.2014. No costs.

Provisions of Law Cited

Employees' State Insurance ActEmployees' State Insurance Regulations, 1950Rule 2(13)(A) of the ESI Regulations (definition of insurable employment)

Legal Doctrines & Maxims

Benefit of doubt should be given to the petitioner in case of ambiguity

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the term 'year' in the prospectus should be understood with reference to the ESIC Regulations, 1950, i.e., the calendar year, so that insurable employment from 1.6.2009 should count for the 2014–2015 admission. She contends that the Regulation definition should govern unless the prospectus expressly states otherwise. If the Regulation’s interpretation is applied, she would be eligible for ESIC Management Quota. The petitioner also seeks the benefit of doubt in cases of ambiguity and urges the court to extend time for allotment in line with the Supreme Court's decision in Asha v. P.T. B.D. Sharma University (2012).

Contentions of Respondents

The respondents submit that the 'year' should be read independently of the Regulation and as per the prospectus, with five years of insurable employment reckoned from 1.6.2009. Since the petitioner did not have five years of insurable employment as of January 1, 2014, she is ineligible for ESIC Management Quota. They rely on the prospectus language and the regulatory definitions to argue that the year should be understood in a manner that excludes the petitioner’s eligibility.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Asha v. P.T. B.D. Sharma University of Health Sciences and others	2012(7) SCC 389	Positive	The Supreme Court decision is cited to justify extending time in cases of arbitrary exclusions and is used to support the court’s discretionary remedy.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 30TH DAY OF SEPTEMBER 2014/8TH ASWINA, 1936** ## **WP(C).No. 23833 of 2014 (D)** **----------------------------** ## **PETITIONER :** **--------------------** **JEMIN ELIZABETH MATHEW D/O.K.K.MATHEW, AGED 20 YEARS, KARAKKATTUPEEDIKAYIL HOUSE EDAKKARA P.O., MALAPPURAM DISTRICT- 679331.** **BY ADV. SRI.U.K.DEVIDAS** **RESPONDENT(S) :** - **----------------------------** ## **1. THE DIRECTOR GENERAL** **PANCHADEEP BHAVAN, EMPLOYEES STATE INSURANCE CORPORATION, C.I.G. ROAD, NEW DELHI-110 002.** ## **2. THE DEPUTY DIRECTOR** - **EMPLOYEES STATE INSURANCE CORPORATION HOUSEFED COMPLEX, SASTHRI NAGAR ROAD, ERANHIPALAM KOZHIKODE-673006.** **3. THE REGIONAL DIRECTOR** - **EMPLOYEES STATE INSURANCE CORPORATION HOUSEFED COMPLEX, SASTHRI NAGAR ROAD, ERANHIPALAM KOZHIKODE-673006.** **4. THE MANAGER BRANCH OFFICE, EMPLOYEES STATE INSURANCE CORPORATION MALAPPURAM-676505.** **5. THE MEDICAL COMMISSIONER** - **PANCHADEEP BHAVAN EMPLOYEES STATE INSURANCE CORPORATION,** - **C.I.G. ROAD, NEW DELHI-110002.** **6. MARTHOMA MISSION HOSPITAL CHUNGATHARA, MALAPPURAM DISTRICT-679334.** - ***ADDL. R7 TO R13 IMPLEADED** **--------------------------------------------** - ***7. THE STATE OF KARNATAKA REPRESENTED BY THE MEDICAL ENTRANCE COMMISSIONER WIDAN SOUDH, BANGALORE.** **...2/-** ## **WP(C).No. 23833 of 2014 (D) -2-** - ***8. THE STATE OF WEST BENGAL REP. BY ITS SECRETARY, GOVERNMENT SECRETARIAT KOLKATTA.** - ***9. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY MEDICAL EDUCATION DEPARTMENT CHENNAI.** - ***10. THE DEAN, ESIC MEDICAL COLLEGE RAJAJI NAGAR, BANGALORE, KARNATAKA.** - ***11. THE DEAN, ESIC MEDICAL COLLEGE K.K. NAGAR, CHENNAI, TAMIL NADU.** - ***12. THE DEAN, ESIC MEDICAL COLLEGE GULBARGA, KARNATAKA.** - ***13. THE DEAN, ESIC MEDICAL COLLEGE JOKA, KOLKATA, WEST BENGAL.** ***ADDL. R7 TO R13 ARE IMPLEADED AS PER ORDER IN IA NO. 12635/2014 DATED 30.09.2014.** **R1 TO 5 BY ADVS. SRI. K. SANDESH RAJA, SC** **SRI.P.SANKARANKUTTY NAIR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WP(C).No. 23833 of 2014 (D) ---------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **EXHIBIT-P1: TRUE COPY OF THE ADMIT CARD OF THE PETITIONER. EXHIBIT-P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER. EXHIBIT-P3: A TRUE COPY OF THE FORMAT OF THE CERTIFICATE. EXHIBIT-P4: TRUE COPY OF THE LETTER DATED 19.8.2014. EXHIBIT-P5: TRUE COPY OF THE IDENTITY CERTIFICATES ISSUED BY THE ESI CORPORATION. EXHIBIT-P6: TRUE COPY OF THE VISIT NOTE DATED 07.08.2007 PREPARED BY THE INSPECTORS OF THE ESIC. EXHIBIT-P7: TRUE COPY OF THE ADMISSION NOTICE DATED 13.08.2014. EXHIBIT-P8: TRUE COPY OF THE REPRESENTATION DATED 23.08.2014. EXHIBIT-P9: TRUE COPY OF THE COUNSELING NOTICE DATED 05.09.2013. EXHIBIT-P10: TRUE COPY OF THE COMBINED MERIT LIST OF PROVISIONALLY ELIGIBLE CANDIDATE. EXHIBIT-P11: TRUE COPY OF THE RESULT OF THE AIPT - 2014 SHOWING THE RANK NO.OF THE PETITIONER. RESPONDENT(S)' EXHIBITS : -------------------------------------------EXT. R1 COPY OF THE MEMORANDUM NO. 11/12/3/UG.ADMN. 2014-2015/MEC DATED 11/09/2014 ISSUED BY THE 1ST RESPONDENTS SURRENDERING THE ABOVE SEATS TO THE STATE GOVERNMENT. EXT. R2 COPY OF THE INSPECTION REPORT DATED 9/10/2009 RECOMMENDING COVERAGE W.E.F. 1/6/2009. EXT. R2(a) COPY OF THE VISIT NOTE DATED 6/10/2009 AND 9/10/2009. EXT.R2(b) COPY OF THE FORM 01 DATED 17/9/2014 DULY SIGNED BY THE EMPLOYER. EXT.R2(c) COPY OF THE C11 NOTICE NO. 54000185940001401/INSPN. DATED 18/11/2009. //TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **A.MUHAMED MUSTAQUE, J.** ------------------------------------------------------------ W.P.(C) No.23833 of 2014 -----------------------------------------------------------Dated this the 30[th ] day of September, 2014 ## **JUDGMENT** The petitioner has appeared for All India Medical Entrance Test and ranked 27364. The petitioner is an 'ward of insured person under the Employees State Insurance Act (hereinafter referred to as “the Act”). The petitioner submitted an application for admission in ESIC Medical Colleges for MBBS Course under the ESIC Management quota for the academic year 2014-2015 as the ward of the insured person. By Ext.P4, the application has been rejected stating as follows: “you have not completed 5 years of insurable employment as on 1.1.2014”. 2. Ext.P4 is dated 19.8.2014. Challenging Ext.P4, this writ petition is filed. 3. In this matter, a counter affidavit has been filed by the third respondent. It is stated in the counter affidavit that the petitioner's father is employed in a hospital. The hospitals are covered under the ESI Act only with effect from 6.9.2007 and the hospital in which the insured is employed covered only with W.P.(C) No.23833 of 2014 2 effect from 1.6.2009. Reckoning the period of five years from 1.6.2009, it is stated that the insured has not completed five years as on the first January of the year of the admission, thus the request of the petitioner has been declined. The stand of the respondent is that, five years has to be reckoned from 1.6.2009 and that must be there before January, 2014. Since the petitioner does not have five years as on January, 2014, the petitioner's request cannot be considered for ESIC Management quota. 4. The learned senior counsel with reference to the “year” defined under the Employees State Insurance Regulations, 1950 submits that the 'year' has to be understood as the calendar year. Therefore, the petitioner having insured in the year 2009. The year has to be reckoned as the calendar year from January to December. According to the petitioner, unless and until a different expression of the year is made mentioned in the prospectus, the “year” has to be understood with reference to the definition accorded in the Employees State Insurance General Regulations, 1950. However, the learned counsel for the respondents submits that the 'year' as mentioned in the prospectus has to be understood detached W.P.(C) No.23833 of 2014 3 from the definition accorded under the Insurance Regulations. It is to be noted, as rightly pointed out by the learned senior counsel for the petitioner that the insurable employment as also has been mentioned in the prospectus. Insurable employment is defined under Rule 2(13)(A) means an employment in a factory or establishment the Act applies. Therefore, all the parameters mentioned in the prospectus to be understood with reference to the Act and Regulations and it cannot be discerned differently for the purpose of admission in ESIC Management Quota unless the prospectus specifically states. 5. Therefore, I am of the view, reckoning of the year in the impugned order is unsustainable and arbitrary. There is no mention in the prospectus that “year” has to be understood with reference to the completion of 365 days. In the absence of the above, only guidance that could be followed with reference to the definition accorded to the “year” in the Regulation. If the definition accorded to the “year” as accorded in the Regulation is reckoned, necessarily, the petitioner ought to have been considered for the ESIC Management Quota. Non-consideration of the petitioner is on account of non-application of mind with reference to the Act, Rules and Regulations. If at all there is an W.P.(C) No.23833 of 2014 4 ambiguity in definition, that benefit of doubt should be given to the petitioner. In view of the above, the writ petition is allowed. It is admitted that there are eight seats available and no allotment has been made sofar, since the petitioner's application is in conformity with the prospectus, one seat shall be allotted to the petitioner. Last date of allotment under the MCI Regulation is 30.9.2014. I am of the view, this is a fit case where this Court can follow the direction of the Hon'ble Supreme Court in **Asha v. P.T. B.D. Sharma University of Health Sciences and others [2012(7) SCC 389]** . The Hon'ble Supreme Court held that on account of arbitrary exclusion, the Court can exercise the power to extend the time. However, this order being passed today, the learned counsel for the respondents is directed to intimate the Corporation to allot seats today itself; if not possible today, within seven working days. The writ petition is disposed of as above. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ln