Meera Vinod and Anjali Vinod v Employees' State Insurance Corporation and Deputy Director, ESIC

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **WP(C).No. 18197 of 2018** ## **PETITIONER(S)** **1 MEERA VINOD AGED 44 YEARS, W/O. VINOD, SREERAGAM, KANNAMANGALAM SOUTH, CHETTIKULANGARA P.O, MAVELIKKARA, ALAPPUZHA DISTRICT.** - **2 ANAJALI VINOD, AGED 44 YEARS,W/O. VINOD, SREERAGAM, KANNAMANGALAM SOUTH,** - **CHETTIKULANGARA P.O, MAVELIKKARA, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN** **SRI.R.REJI** **SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** ## **RESPONDENT(S):** **1. EMPLOYEES STATE INSURANCE CORPORATION** - **PANCHDEEP BHAVAN, CIG ROAD, NEW DELHI-110 002, NEW DELHI- 110 002 REPRESENTED BY ITS DIRECTOR GENERAL.** **2. THE DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, ASRAMAM, KOLLAM, PIN 691 002.** **R1,2 BY ADV. SRI.K.SANDESH RAJA** **R BY SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 18197 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE DECLARATION FORM EVIDENCING ENROLLEMENT OF THE PETITIONER IN THE E.S.I SCHEME W.E.F 06-09-2007. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE ADMINISTRATIVE OFFICER DT 25-05-2018. EXHIBIT P3 TRUE COPY OF THE IDENTIRY CARD HAVING INSURED PERSON NO. 4805356473. EXHIBIT P4 TRUE COPY OF THE WAGES SLIP OF THE 1ST PETITIONER FOR THE MONTH OF APRIL 2018. EXHIBIT P5 TRUE COPY OF THE ONLINE APPLICATION BEARING NO. ESIC001478 SUBMITTED BY THE 2ND PETITIONER WHICH IS COUNTER SIGNED BY THE 1ST PETITIONER. EXHIBIT P6 TRUE COPY OF THE EXTRACT OF THE RATION CARD BEARING NO. 1421095171 EXHIBIT P7 TRUE COPY OF THE MARK STATEMENT OF THE 2ND PETITIONER EXHIBIT P8 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE TAHSILDAR DT 21-05-2018 EXHIBIT P9 TRUE COPY OF THE PROVISIONAL ADMIT CARD BEARING ROLL NO. 505905474. EXHIBIT P10 TRUE COPY OF THE INCOME CERTIFICATE DT 20-05-2018. EXHIBIT P11 TRUE COPY OF THE EXTRACT OF ADMISSION NOTICE BEARING NO. L- 11/12/3/UG ADMISSION/ 2018-19/MEC DT 09-05-2018. EXHIBIT P12 TRUE COPY OF THE CERTIFICATE ISSUED BY THE ADMINISTRATIVE OFFICER DT. 05.06.2018. EXHIBIT P13 TRUE COPY OF THE LETTER No.48-WPSRO4847-MBBS ADMN-2018-19 DT.08.06.2018 OF THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL** // True copy // PA to Judge das ## **DAMA SESHADRI NAIDU, J.** ================================= **W.P.(C). No. 18197 of 2018 (Y)** ================================= **Dated this the 2[nd] day of July 2018** ## **JUDGMENT** Meera Vinod and Anjali Vinod, the mother and the daughter, are the petitioners. Employees' State Insurance Corporation (the Corporation _)_ and its Deputy Director are the respondents. Anjali wrote NEET Entrance and emerged successful. To claim admission into undergraduate medical course, MBBS, in a medical college run by the Corporation, she must produce a certificate: the Ward of Insured Person Certificate. 2. Mother Meera Vinod, who under the Act can be called 'an insured person', applied to the 2[nd] respondent for the certificate. Through Exhibit P13 dated 08.06.2013, the 2[nd] respondent rejected Meera Vinod's request for the certificate. The authority assigned two reasons: (1) Meera Vinod’s employer did not contribute for the periods ending March-2015, September-2015, March-2016 and September-2016; (2) the aggregate income of Meera Vinod and her husband exceeds Rs.6,00,000/-. Aggrieved, Meera Vinod and her daughter Anjali Vinod filed this writ petition. 3. Sri R. Reji, the learned counsel for the petitioner, has strenuously -2- W.P.(C). No. 18197 of 2018 (Y) contended that Meera Vinod and her daughter belong to Scheduled Caste. Clause 5.2.2 of the admission policy expressly records that reservation policy of the Central Government for SC/ST/OBC/PH will apply for the allotment of seats. Therefore, according to him, the condition under Clause 8(f) of the Policy cannot be sustained. 4. In this regard, Sri Reji has drawn my attention to Article 341 and 342 of the Constitution of India. Eventually, he has drawn my attention to the Central Educational Institutions (Reservation in Admissions) Act, 2006 (the Reservation Act), and the Office Memorandum, dated 20[th] April 2008, issued by the Government of India, clarifying certain aspects of the Reservation Act. Sri Reji has relied on _Akhil P. Puzhkar v State of Kerala_ **[2012 (4) KHC 76]** _and Subhash Chandra v Delhi Subordinate Services Selection Board[1]_ , besides _SARV Rural and Urban Welfare Society v Union of India[2] ._ 5. On the other objection, Sri Reji has submitted that, in the light of salary cap for an insured person, on certain occasions Meera Vinod drew marginally higher salary and went beyond the ceiling. But once the Government raised the ceiling, she again came back. Therefore, only for > 1 2009(15) SCC 458 > 2 Judgment dated 12[th] September 2012 of Delhi High Court -3- W.P.(C). No. 18197 of 2018 (Y) the period she was out of the reckoning there were no contributions. Sri Reji has relied on _Bindu Radhakrishnan v Employees' State Insurance Corporation,_ **[2017 (4) KHC 876]** to contend that a Division Bench has already held that for any reason beyond the control of the employee, an employee goes out of the reckoning and again comes back, a legal fiction must be applied. That is, the employee, to benefit from the scheme, shall be treated as if she had never gone out of the scheme. 6. Sri Sandesh Raja, the learned Standing Counsel for the Corporation, has submitted that Clause 5.2.2 cannot come to the petitioners' rescue. According to him, Clause 8 prescribes the basic eligibility criteria and it admits no dilution. Once candidates, without referring to their caste or community, fulfill the conditions under Clause 8, then among those qualified candidates the question of reservation comes into reckoning. And the Corporation has never diluted the resolution policy. In other words, whatever percentage of seats allotted to the Scheduled Caste stands undisturbed. 7. To elaborate, Sri Sandesh Raja submitted that the petitioners’ have failed on income criterion. It does not mean a seat reserved for the Scheduled Caste community would go to some other community. In the -4- W.P.(C). No. 18197 of 2018 (Y) same community, those who still fulfill the eligibility criteria, with lessor income, would be benefited. He stresses, the more needy and the more indigent would be preferred. 8. Referring to _Bindu Radhakrishnan_ , Sri Sandesh Raja has submitted that the entire interpretation of the scheme in that judgment pertains to the previous year’s policy. This time, after noting the deficiencies in that scheme and the judicial pronouncement in _Bindu Radhakrishnan,_ the Corporation has come up with this year's policy, which cannot be interpreted in the light of _Bindu Radhakrishnan's_ case. In this regard, he has drawn my attention to a judgment rendered by a learned single Judge’s judgment, dated 26[th] June 2018, in WP(C) No.17191 of 2018 and connected cases. 9. Heard Sri R. Reji, the learned counsel for the petitioners, as also Sri Sandesh Raja, the learned Standing Counsel for the Corporation. 10. Indeed, the Corporation rejected Meera’s claim on two grounds. As to Meera’s going out of the reckoning because of the enhanced wages and her coming back after the wage ceiling has been raised, true _Bindu Radhakrishnan_ may bind. But before that, we need not address that issue right now. Because whatever the decisional dilemma that precedent -5- W.P.(C). No. 18197 of 2018 (Y) presents can be saved up for another case. Instead, we will address Meera’s income cap and its impact on reservation. So we will, first, refer to one of the eligibility criteria fixed under paragraph 8 of the policy. Clause 8 (f) of the Admission Policy reads as follows: “f) The combined earnings of the IP and spouse (parents of the applicant) should not exceed Rs. 06 (six) lakh per annum. Note: The 'Competent Authority' to issue the income certificate are specified as under:  District Magistrate / Additional Magistrate / 1[st] Class Stipendiary Magistrate / Sub-Divisional Magistrate / Taluk Magistrate / Executive Magistrate / Extra Assistant Commissioner (not below the rank of '1[st] Class Stipendiary Magistrate')  Chief Presidency Magistrate / Additional Chief Presidency Magistrate / Presidency Magistrate  Revenue Officer not below rank of Tahsildar  Sub-Divisional Officer of the area where the candidate and/or his/her family resides.” 11. Clause 8 (f) has excluded no particular category of candidates or employees from its purview. Indeed, Sri Reji has vehemently insisted that the question of creamy layer or income criterion cannot be applied to the Scheduled Caste and Scheduled Tribe. Let us examine. 12. There is no quarrel with Article 341, which enables the President, after consulting the Governor, to notify or specify the Castes, Races, or Tribes which shall be Scheduled Castes in relation to each State. Article 342 correspondingly applies to the identification of the -6- W.P.(C). No. 18197 of 2018 (Y) Scheduled Tribes. Section 2(h) of the Reservation Act simply lays down who belongs to Schedule Caste: those notified under Article 341 of the Constitution will be treated as Scheduled Caste. Clause 3, on which Sri Reji has laid much emphasis, reads as follows: “3. Reservation of seats in Central Educational Institutions.- The reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the following manner, namely:- (i) out of the annual permitted strength in each branch of study or faculty, fifteen per cent. seats shall be reserved for the Scheduled Castes; (ii) out of the annual permitted strength in each branch of study or faculty, seven and one-half per cent. seats shall be reserved for the Schedules Tribes; (iii) out of the annual permitted strength in each branch of study or faculty, twenty-seven per cent. seats shall be reserved for the Other backward Classes:” 13. Section 3 prescribes the percentage of reservation for the Scheduled Caste. As rightly contended by the learned Standing Counsel, the income ceiling as one of the eligibility criteria does not dilute this percentage. Further, we may refer to the Office Memorandum, dated 20[th] April 2008, issued by the Government of India. Paragraph 3 of the Memorandum states that it was issued to clarify the process of implementation of reservation for the OBC. 14. Paragraph 3(vi) of the Memo emphasizes the concept of creamy -7- W.P.(C). No. 18197 of 2018 (Y) layer. It applies to OBCs. Sri Reji would have the Court conclude that since there is no specific mention about Creamy layer in the Act affecting the Scheduled Caste, it must be inferred that income criterion cannot be applied to Scheduled Caste. 15. Attractive as the submission is, a right cannot be conferred on or an exemption can be, regrettably, applied to a person, inferring from what has been absent in the statute. That apart, it is the Corporation's consistent stand that income criterion is part of the basic qualification and it does not, at any rate, dilute the reservation. 16. I may refer to the decisions relied on by Sri Reji in _Subhash Chandra_ . The Supreme Court has held that a person cannot be treated to be a member of Scheduled Caste for one purpose and not for another purpose. In paragraph 41 of the judgment, the Supreme Court has emphasized the sanctity of the percentage reserved for the downtrodden communities: the percentage cannot be diluted. 17. _Subhash Chandra_ has also held that for the posts or seats reserved for the Schedule Caste/Schedule Tribe persons, the principle of Creamy layer does not apply. The Supreme Court made these observations in the context of interpreting a circular issued by the Delhi Government insisting that the people belonging to the Scheduled -8- W.P.(C). No. 18197 of 2018 (Y) Caste/Scheduled Tribe must produce proof from the Delhi Government that they belonging to those communities. 18. In _Akhil P.Pushkar_ , a Division Bench of this Court was examining the admission prospects of SC/ST students who studied in self-financing colleges. In that backdrop, it has observed that SC/ST candidates form a separate clause by itself and they do not attract the creamy layer principle. 19. Here the admission policy contains a specific condition that income criterion must apply to all the candidates seeking ward of insured person certificate. Granted, the petitioners' challenged that condition as illegal and arbitrary. But, so long as the eligibility criteria including that of income, do not dilute the reservation provided for SC/ST under para 5.2.2, we cannot apply a generic observation that income criterion cannot be applied to reserved communities. After all, the Corporation still maintains that, if a person who goes beyond the prescribed income limit is not qualified, still the category-quota remains unaffected and the seat will go to a qualified person from the same category. 20. In these circumstances, I fail to persuade myself to accept the -9- W.P.(C). No. 18197 of 2018 (Y) petitioners' contentions; they are without merit. I therefore, dismiss the writ petition. No order on costs. Sd/- **DAMA SESHADRI NAIDU JUDGE** das 03.07.2018