Najeemath E. and Harisanker S. v. Employees' State Insurance Corporation & Others (W.P.(C) Nos.14186/2019 & 14397/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **WP(C).No.14186 of 2019** **PETITIONER/S:** - **1 NAJEEMATH.E, AGED 43 YEARS, W/O. MUHAMMEDSALIM P.S, POTTUMANAYIL HOUSE, MANAPPALLY NORTH P.O, KARUNAGAPALLY, KOLLAM 690 574** - **2 P.M MUHAMMEDSABIR, AGED 20 YEARS S/O. MUHAMMEDSALIM P.S, POTTUMANAYIL HOUSE, MANAPPALLY NORTH P.O, KARUNAGAPALLY, KOLLAM 690 574** **BY ADVS. SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH** ## **RESPONDENT/S:** - **1 EMPLOYEES STATE INSURANCE CORPORATION REGIONAL OFFICE, NORTH SWARAJ ROUND, THRISSUR, 680 020, REPRESENTED BY ITS DIRECTOR.** - **2 SUB REGIONAL OFFICE, E.S.I CORPORATION, MALUS COMPLEX, ST. FRANCIS CHURCH ROAD, KALOOR, ERNAKULAM 682 017 REPRESENTED BY ITS DEPUTY DIRECTOR IN CHARGE.** - **3 DIRECTOR GENERAL OF HEALTH SERVICES, DIRECTORATE GENERAL OF HEALTH SERVICES, NIRMAN BHAVAN, MAULANA AZAD ROAD, NEW DELHI 110 108.** - **4 CO-OPERATIVE MEDICAL COLLEGE, HMT COLONY, NORTH KALAMASSERY,KALAMASSERY, KOCHI, KERALA 683503.** W.P.(C) Nos.14186 & 14397/2019 2 **5 ADDL.R5- THE DIRECTOR GENERAL, HEAD QUARTERS, OFFICE EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, C.IG.ROAD, NEW DELHI.-110001(ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER DATED 24.5.2019)** **BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.JAISHANKAR V.NAIR, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.07.2019, ALONG WITH WP(C).14397/2019, THE COURT ON 08.07.2019, DELIVERED THE FOLLOWING:** W.P.(C) Nos.14186 & 14397/2019 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** **WP(C).No.14397 of 2019** ## **PETITIONER/S:** **HARISANKER.S AGED 21 YEARS S/O.SAJEEV, MAMOOTTIL HOUSE, CHINGAOLI, ALAPPUZHA.** **BY ADVS. SRI.R.SUNIL KUMAR ARUN KRISHNA SMT.A.SALINI LAL** ## **RESPONDENT/S:** **1 EMPLOYEES STATE INSURANCE CORPORATION, HEADQUARTERS OFFICE, REP. BY ITS DIRECTOR, PANCHADEEP BHAVAN, CIG ROAD, NEW DELHI-110002. 2 THE DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, SUB REGIONAL OFFICE, PANCHADEEP BHAVAN, THYCADU, THIRUVANANTHPURAM-695014. BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.07.2019, ALONG WITH WP(C).14186/2019, THE COURT ON 08.07.2019, DELIVERED THE FOLLOWING:** W.P.(C) Nos.14186 & 14397/2019 4 **“CR”** ## **JUDGMENT** ## V.G.ARUN, J. The issue raised being common, the writ petitions are considered and decided together. The first petitioner, the mother of the second petitioner in W.P.(C) No.14186 of 2019, and the mother of the petitioner in W.P(C) No.14397 of 2019 are “insured persons”, within the meaning of Section 2 (14) of the Employees' State Insurance Act (ESI Act). Hence, the children can be termed as the ‘Wards of Insured Persons’. The wards appeared for the National Eligibility cum Entrance Test (NEET) (UG), aspiring for admission to MBBS course in the academic session 2019-20. 2. The Employees State Insurance Corporation (ESIC) has its own Medical Education Institutions in the country. W.P.(C) Nos.14186 & 14397/2019 5 Every academic year, the Central Government approves an admission policy and procedure for undergraduate (MBBS/BDS) Courses in ESIC Medical Education Institutions. The policy provides for an “Insured Persons” Quota in the admissions to those institutions, providing reservation for the Wards of Insured Persons. The quota consists of the seats remaining after allocation to All India Quota and the State Government Quota. The “Insured Persons Quota” set apart for allotment to the 'Wards of Insured Persons' on All India basis is to be filled up through merit-cum-preference basis. As far as the admission to UG (MBBS/BDS) Courses for the year 2019-20 is concerned, the ESIC has issued a notice dated 13.5.2019 (Ext.P1), based on Ext.P2 admission policy for the year 2019-20. _For the purpose of convenience, the Exhibits in W.P.(C) No.14186 of 2019 are being referred to._ W.P.(C) Nos.14186 & 14397/2019 6 3. The policy provides for admission to the Wards of Insured Persons, who meet the laid down eligibility criteria and have qualified in NEET (UG) 2019, to apply for admission to UG Course (MBBS/BDS) in ESIC Medical/Dental Colleges and some Government Medical Colleges under the Insured Persons Quota. Clause 7.10 of Ext.P1 notice, deals with the critical cut-off date for determining the eligible age under the Insured Persons Quota. As per Clause 7.10.2 of Ext. P1, the age of the dependant male 'Ward of Insured Person', should not be more than 21 years as on 31.8.2019. 4. The date of birth of the second petitioner in W.P.(C) No.14186 of 2019 is 2.6.1998 and that of the petitioner in W.P. (C) No.14397 of 2019 is 15.5.1998. Hence, they attained the age of 21 years as on 2.6.2019 and 15.5.2019 respectively. Consequently, their applications, submitted pursuant to Ext.P1 W.P.(C) Nos.14186 & 14397/2019 7 notice, were not accepted for the reason that both of them had attained the age of 21 years prior to the cut-off date of 31.8.2019. In these writ petitions, the challenge is against the cut-off date fixed at 31.8.2019, which according to the petitioners, is arbitrary, being without any reason or justification. It is contended that the date of submission of application should be fixed as the cut-off date, in which event the petitioners would be eligible for consideration. It is further contended that the fixing of an arbitrary cut-off date goes against the very objective of the Employees State Insurance Act, a beneficial legislation. 5. It is contended that Regulation 4 of the ESI (General) Regulations, 1950 prescribes the contribution period and corresponding benefit period. The contributions having been paid by the insured persons, the wards of insured persons W.P.(C) Nos.14186 & 14397/2019 8 cannot be denied a benefit which arises during the benefit period. Reference is made to Section 2 (11) of the ESI Act, 1948 wherein ‘family’ of an insured employee has been defined. It is contended that the petitioners having attained the age of 21 years after submission of application, the refusal to consider their claim is arbitrary and illegal. 6. In the counter affidavit submitted on behalf of the ESIC, it is contended that the term 'ward of IP' has been drawn from the word 'family' defined under Sub-sections 6 A and 11 of Section 2, wherein the children of insured persons, according to their gender, are entitled for differential treatment in the matter of receiving medical care and dependant benefit. It is pointed out that the ESI Act allows a female and infirm child to avail the benefits under the ESI Act as long as they are dependent on the insured person covered W.P.(C) Nos.14186 & 14397/2019 9 under the Act, whereas, a male child is barred from availing ESI benefits after 21 years, if his father/mother, who is an insured person, is alive. It is in implementation of this provision that a cut-off date is prescribed. In order to bring all beneficiaries to equal footing, the last date fixed for admission to MBBS/BDS UG courses (31.8.2019) was fixed as the cut-off date for fixing the eligibility based on age. The learned Standing Counsel for the ESIC submitted that reservation in the matter of admission to MBBS/BDS UG Course is not a benefit envisaged under Section 46 of the ESI Act and therefore, the contention that since the benefit had arisen during the benefit period contemplated under Regulation 4 of the ESI (General) Regulations, the petitioners right cannot be curtailed, is misplaced. In support of this proposition, reliance is placed on the decision in **Director General, ESIC, New** W.P.(C) Nos.14186 & 14397/2019 10 **Delhi and others v. Jemin Elizabeth Mathew [2015 (1) KLT** . **328]** 7. Heard Sri. R.Sanjith and R. Sunilkumar, the learned counsel for the petitioners and Adv. P.Sankarankutty Nair, the learned Standing Counsel for ESI Corporation. 8. In order to find an answer to the issue arising for consideration, one has to look into the objective of the ESI Act, as also some of its provisions. The preamble of ESI Act declares the laudable objective of the Act, which is to provide certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. ‘Employee’ is defined under Section 2 (9) as follows:- “(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and - (i) who is directly employed by the principal W.P.(C) Nos.14186 & 14397/2019 11 employer, or any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or through an immediate employer, on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; [and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment] [or any person engaged as apprentice, not being and apprentice engaged under the Apprentices Act, 1961 (52 of 1961), [and includes such person engaged as apprentice whose training period is extended to any length of time] but does not include]- W.P.(C) Nos.14186 & 14397/2019 12 (a) any member of [the Indian] naval, military or air forces; or (b) any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;” 9. An “insured person” has been defined under Section 2 (14) of the Act as 'a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is by reason thereof, entitled to any of the benefits provided under the Act'. The contextually relevant portion of the definition of 'family' of an insured person at Section 2(11) (iii), reads as under: - “2(11) “family” means all or any of the following relatives of an insured person, namely: - W.P.(C) Nos.14186 & 14397/2019 13 ## (i)xxx ## (ii)xxx (iii) a child who is wholly dependant on the earnings of the insured person and who is - (a) receiving education, till he or she attains the age of twenty-one years, (b) an unmarried daughter.” The definition of ‘dependent’ provided at Section 2 (6A), takes in only relatives of a deceased insured person. The benefits to which the insured persons and their dependants and others are entitled, has been enumerated under Section 46. Clauses (a) to (e) of Section 46(1) enumerate the benefits available to the insured person under the Act, and are hence not relevant here. Clause (f) of Section 46 (1) provides for payment to the eldest surviving member of the family of an insured person who has died, the expenditure towards the funeral of the deceased insured person. Section 46 (2) empowers the Corporation, at the request of the appropriate Government, to W.P.(C) Nos.14186 & 14397/2019 14 extend the medical benefits to the family of an insured person subject to such conditions as may be laid down in the regulations. It is therefore clear that the benefits available under Section 46 to the insured person and the family of an insured person does not take in the benefit of reservation for MBBS Course, which is based solely on the admission policy. 10. The essential conditions to be satisfied by a male child to be included in the definition of family are:- (a) the child should be wholly dependent on the earnings of the insured person (b) should be receiving education and (c) should not have attained the age of twenty-one years. Therefore, the moment a male child of an insured person attain the age of twenty-one years, he would be ousted from the definition of members of the family of the insured person, who are entitled for certain benefits under the ESI Act. It is in W.P.(C) Nos.14186 & 14397/2019 15 tune with this provision that the Corporation has fixed 31.8.2019 as the cut-off date. 11. We find substance in the contention of the learned Standing Counsel for the ESIC that 31.8.2019 was fixed as the cut-off date since that is the last date fixed for completing the process of admission to MBBS/BDS Course. Going by Section 2(11) (iii), even if no cut-off date is prescribed, the petitioners would stand disentitled for the benefit under Exts.P1 and P2, on their attaining 21 years of age _viz,_ 2.6.2019 and 15.5.2019 respectively. As held by this Court in _Jemin Elizabeth Mathew_ 's case, the admission to MBBS Course is not undertaken by the ESIC under any provisions of the ESI (General) Regulations, 1950. The Corporation was free to choose any yardstick for processing the application of the Wards of Insured Persons. For the year 2019-20, one of the yardsticks chosen by the W.P.(C) Nos.14186 & 14397/2019 16 Corporation is that the critical date for determining age of the Ward of Insured Person, for the benefit of admission to MBBS/BDS Course under the Insured Person Quota would be 31.8.2019. Fixing of such yardstick by the Corporation does not in any manner militate against the provisions of the ESI Act, the Rules or the Regulations. We are of the considered opinion that there is no arbitrariness in fixing the cut-off date as 31.8.2019 and on the other hand, the reason for fixing the cut-off date is well-founded. 12. It is contended by the learned counsel for the petitioners that for the year 2015-16, the cut-off date was fixed as 1.1.2016, for the year 2016-17 it was 1.1.2017 and 1.1.2018 was for the year 2017-18. It is submitted that if the same practice was followed for the year 2019-20, the petitioners would have been eligible for consideration. W.P.(C) Nos.14186 & 14397/2019 17 Reliance is placed on a decision of this Court in **Vaishna Vinod v. Employees State Insurance Corporation and others [2018 (4) KHC 336]** in support of the contention that any stipulation in the admission policy, which is contrary to the provisions of the ESI Act, the Rules and the Regulations, is _ultra vires_ . _Vaishna Vinod's_ case, was with reference to the academic year 2018-19, wherein by the admission policy for the year 2018-19, the ESI Corporation had qualified the definition of 'Insurable Employment' at Section 2 (13A) and of 'Insured Person' at Section 2 (14), by providing that, to be eligible for the benefit under the admission policy, 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/four/three years, as on and immediately preceding, the 1[st] January of the year of W.P.(C) Nos.14186 & 14397/2019 18 admission. It was also stipulated that the five/four/three year period along with extended period of one year for the purpose of eligibility should lie between recorded date of entry into the scheme and critical date for eligibility i.e.; 1[st] January of the year of admission. The Division Bench came to the conclusion that the impugned Admission Policy was adopted by the Corporation for purposes inviolably referable to those postulated under the Act and therefore, the ESI Corporation could have acted only and wholly in conformity with the Act and its provisions, including the definitions given by it to the phrases 'Insured Persons' and ‘Continuous Insurable Employment’. As far as prescription of the cut-off date as 31.8.2019, we do not find any conflict with the provisions of the ESI Act, the Rules and the Regulations. Merely for the reason that during the previous years, 1[st] January of the year W.P.(C) Nos.14186 & 14397/2019 19 of admission was fixed as the cut-off date, it cannot be contended that the respondents are estopped from fixing another cut-off date, even if such prescription is based on valid reasons. 13. It is contended by the learned counsel for the petitioners that as per Regulations 4 of the ESI (General) Regulations 1950, the benefits would accrue to the Insured Persons and consequently to the Wards of Insured Persons during the period corresponding to the contribution period. It is submitted that the insured persons having remitted the contribution, the benefit which accrued during the corresponding period cannot be taken away by prescribing a cut-off date, which falls within the benefit period. We are of the opinion that the contribution period and the corresponding benefit period have nothing to do with the W.P.(C) Nos.14186 & 14397/2019 20 stipulation of cut-off date in Exts.P1 and P2. As rightly submitted by the learned Standing Counsel for the ESIC, the cut-off date has been prescribed in terms of Section 2(1)(iii) of the Act. Irrespective of whether contribution have been paid, on the age of 21 years, even if it is during the corresponding benefit period, a male child would be ousted from the definition of members of the family of the insured person entitled for benefit. The contribution paid by the employee is not dependent on the number of members in the family and irrespective of the payment of contribution, in the corresponding benefit period, the male child who attained 21 years before the benefit period would be dis-entitled to reimbursement of medical expenses. In that view of the matter, the contention is liable to be rejected. Hence, we find no reason to hold Clause 7.10.2 of Ext.P1 W.P.(C) Nos.14186 & 14397/2019 21 and paragraph 9 of Ext.P2 to be invalid. For the reasons mentioned above, we dismiss the writ petitions. We had by interim order, in both the writ petitions, directed issuance of provisional certificates to the ward of insured persons, on a _prima facie_ consideration. The writ petitions having been dismissed, the provisional certificates will have no effect. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/ W.P.(C) Nos.14186 & 14397/2019 22 ## **APPENDIX OF WP(C) 14186/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ADMISSION NOTICE BEARING NO. L-11/12/3 UG ADMISSION/2019-20/MEC DATED 13-0-2019** **EXHIBIT P2** **TRUE COPY OF THE MEMORANDUM DATED 09/05/2019** **EXHIBIT P3** **TRUE COPY OF THE E-PEHCHAN CARD ISSUED BY THE ESI CORPORATION TO THE 1ST PETITIONER** **EXHIBIT P4** **TRUE COPY OF THE PROVISIONAL ADMIT CARD OF THE 2ND PETITIONER.** **EXHIBIT P5** **TRUE COPY OF THE REPLY GIVEN BY THE 2ND RESPONDENT TO THE APPLICATION OF THE 1ST PETITIONER.** **EXHIBIT P6** **TRUE COPY OF THE RELEVANT PAGES OF THE ADMISSION NOTICES OF THE YEAR 2016, 2017 AND 2018** W.P.(C) Nos.14186 & 14397/2019 23 ## **APPENDIX OF WP(C) 14397/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF IDENTITY CARD OF THE PETITIONER'S MOTHER.** **EXHIBIT P2 COPY OF THE HALL TICKET FOR THE NEET EXAMINATION. EXHIBIT P3 COPY OF ADMISSION NOTICE ISSUED BY THE RESPONDENTS FOR THE ACADEMIC YEAR 201920 DATED 13.5.2019. EXHIBIT P4 COPY OF THE GRADE CUM CERTIFICATE OF PERFORMANCE ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION AFTER COMPLETION OF HIS SECONDARY SCHOOL EXAMINATION.**