NARENDRAN NAIR and ANUPAMA NARENDRAN v. UNION OF INDIA and OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940 WP(C).No. 17191 of 2018** ## **PETITIONER(S) :** - **1 NARENDRAN NAIR, S/O.P.G.KRISHNAN NAIR, NANDANAM, VETTIPUZHA SOUTH, PUNALUR P.O, KOLLAM 691 305.** - **2 ANUPAMA NARENDRAN, D/O.NARENDRAN NAIR, NANDANAM, VETTIPUZHA SOUTH, PUNALUR P.O, KOLLAM 691 305.** **BY ADVS.SRI.SADCHITH.P.KURUP SRI.C.P.ANIL RAJ** ## **RESPONDENT(S):** **1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, SHRAMSHAKTHI BHAVAN, RAFI MARG, NEW DELHI 110 001.** **2. THE EMPLOYEE STATE INSURANCE CORPORATION PANCHDEEP BHAVAN, ESI CORPORATION, HQ OFFICE, CIG MARG, NEW DELHI 110 002, REPRESENTED BY THE DIRECTOR GENERAL.** **3. THE REGIONAL DIRECTOR, SUB REGIONAL OFFICE, ESI CORPORATION, PANCHDEEP BHAVAN, HOUSING BOARD, THYCAUD, THIRUVANANTHAPURAM- 695 014.** **4. THE BRANCH MANAGER, ESI CORPORATION, BRANCH OFFICE, ANCHAL, KERALA- 691 306.** **5. THE DIRECTOR GENERAL OF HEALTH SCIENCES, OFFICE OF DIRECTOR GENERAL OF HEALTH SCIENCES, ROOM NO. 446 A, NIRMAN BHAVAN, MOULANA AZAD ROAD, NEW DELHI 110 108.** **..2/-** **..2..** **WP(C).No. 17191 of 2018** **6. CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA 2, COMMUNITY CENTRE, PREET VIHAR, DELHI 110 092** **R1 & R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV. SRI.JAISHANKAR V.NAIR, CGC R2 TO R4 BY ADV. SRI.P.SANKARANKUTTY NAIR, S.C R6 BY ADV. SRI.NIRMAL S., S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, ALONG WITH W.P.(C)NO. 17376 OF 2018 AND CONNECTED CASES, THE COURT ON 26-06-2018 DELIVERED THE FOLLOWING:** ## **Msd.** **27.06.2018** **WP(C).No. 17191 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 COPY OF ADMISSION POLICY FOR UNDER GRADUATE (MBBS/BDS) ADMISSION FOR ACADEMIC SESSION 2018-19 ISSUED BY 2ND RESPONDENT. EXHIBIT P2 COPY OF ADMISSION PROCEDURE FOR UNDER GRADUATE (MBBS/BDS) ADMISSION FOR ACADEMIC SESSION, 2018-19 ISSUED BY 2ND RESPONDENT. EXHIBIT P3 COPY OF PRE -ADMISSION NOTICE DATED 12.02.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4` COPY OF CERTIFICATE DATED 10.07.2017 ISSUED BY THE FIRST PETITIONER. EXHIBIT P5 COPY OF JUDGMENT DATED 25.07.2017 PASSED IN WA.NO. 1563/207. EXHIBIT P6 COPY OF CERTIFICATE DATED 01.08.2017 ISSUED TO THE PETITIONERS. EXHIBIT P7 COPY OF APPLICATION SUBMITTED BY THE 2ND PETITIONER.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 27.06.2018** ## **P.B.SURESH KUMAR, J.** =============== **W.P.(C.) Nos. 17191, 17376, 17387, 17450, 17468, 17575, 17681, 18046, 18217, 18412, 18492 and 18493 of 2018** -------------------------------------------------- ## **Dated this the 26[th] day of June, 2018** ## **JUDGMENT** The issues arise for consideration in this batch of writ petitions are common and as such, they are disposed of by this common judgment. 2. The facts of one of the cases alone need be stated for the purpose of resolving the issues. I shall state the facts in W.P. (C) No. 18046 of 2018, which was taken up first for arguments, for the said purpose. The first petitioner therein is the son of the second petitioner. The first petitioner is qualified in the National Eligibility cum Entrance Test (UG 2018) for being considered for admission to MBBS and BDS courses. The second petitioner is a person insured under the Employees State W.P.(C).No.17191 of 2018 : 2 : and con. Cases. Insurance Act (the Act). A quota is earmarked for admission to MBBS and BDS courses in the medical colleges established by Employees' State Insurance Corporation (the Corporation) for the wards of persons insured under the Act. In terms of the admission notice issued by the Corporation for admission to the aforesaid courses against the said quota in the ensuing academic session, insured persons are grouped into three categories namely, those who are in continuous insurable employment for a period of 5 years, 4 years and 3 years respectively, as on and immediately preceding the first day of January of the year of admission namely 1/1/2018 and in respect of whom contributions were paid for not less than 78 days in all the contribution periods within the said continuous periods. The admission notice provides, among others, that candidates will be allotted seats against the quota based on their groups and merit cum preference of institutions through a centralized online counselling process. Clause 5.2.3 of the admission notice W.P.(C).No.17191 of 2018 : 3 : and con. Cases. insists that candidates seeking admission under the quota shall secure, among others, a valid 'Ward of Insured Person' certificate. The first petitioner being a ward of insured person under the Act preferred application for 'Ward of Insured Person' certificate to stake his claim for admission against the quota under group I category namely the category of wards of insured persons having continuous insurable employment for a period of 5 years as on and immediately preceding 1/1/2018. The application preferred by the first petitioner was, however, rejected in terms of Ext.P3 communication stating that the second petitioner was not in continuous insurable employment for a period of 5 years as on and immediately preceding 1/1/2018. The petitioners concede that the second petitioner was out of coverage from October, 2015 to December, 2016 as her wages during the relevant period had gone out of the wage limit prescribed for coverage under the Act. It is stated that she came under coverage again when the wage limit prescribed for W.P.(C).No.17191 of 2018 : 4 : and con. Cases. coverage under the Act was raised with effect from 1/1/2017. According to the petitioners, though the second petitioner was not under coverage during the period mentioned in Ext.P3 communication, she continued to pay contributions payable under the Act for coverage without default and therefore, the first Petitioner is entitled to the benefit of the quota. It is also the case of the petitioners that even if the second petitioner had not paid contributions for coverage during the relevant period, the benefit of the quota cannot be denied to the first Petitioner in the light of the decision of the Division Bench of this Court in **Bindu Radhakrishnan v. Employees State Insurance Corporation, New Delhi** **and others** [2017 (4) KHC 876]. The Petitioners, therefore, challenge Ext.P3 communication on those grounds in the writ petition. 3. The facts of the remaining cases are not identical, but similar. The insured persons involved in all the matters are persons who were in continuous W.P.(C).No.17191 of 2018 : 5 : and con. Cases. employment for the requisite period, but they have gone out of coverage when their wages exceeded the wage limit for coverage and came back under coverage when the age limit was raised. Unlike in W.P. (C) No. 18046 of 2018, contributions have not been paid by the insured persons involved in the remaining cases for the period during which they were not under coverage. As such, some among them conceded that they do not satisfy the definition of 'insured person' contained in the admission notice, and challenged the provision in the admission notice which insists that the insured person shall be in continuous insurable employment for the requisite period as on and immediately preceding the first day of January of the year of admission and that contributions shall be paid in respect of them for not less than 78 days in all the contribution periods within the said continuous periods. 4. Counter affidavits have been filed by the Corporation in the matters. The stand taken by the Corporation in the counter affidavits is that the insured W.P.(C).No.17191 of 2018 : 6 : and con. Cases. persons involved in these matters do not satisfy the requirement in the admission notice that they shall be persons in continuous insurable employment during the period in respect of which they have applied for Certificate, as on and immediately preceding 1/1/2018 and that contributions were not paid in respect of them for not less than 78 days in all the contribution periods within the said periods. As regards the challenge against the provision in the admission notice, it is contended by the Corporation in the counter affidavit that the quota is not a statutory conferment, but only a privilege extended by the Corporation to the wards of persons insured under the Act and therefore the Corporation is free to prescribe the norms for conferring the said privilege. It is contended that the norms prescribed by the Corporation for conferring the privilege is in accordance with the constitutional scheme and that therefore the petitioners cannot challenge the same. As regards the contention of the second petitioner in W.P. (C) No.18046 of 2018 that W.P.(C).No.17191 of 2018 : 7 : and con. Cases. the contributions were being paid in respect of her without default, notwithstanding the fact that she has gone out of coverage, it is stated by the Corporation in the counter affidavit that the Act does not contemplate coverage of a person who does not satisfy the requirements for coverage under the Act. 5. Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Corporation. 6. I shall first deal with the challenge against the requirements in the admission notice. The requirements for claiming admission against the quota in terms of the admission notice are that the insured person shall be in continuous insurable employment for a period of 5 years, 4 years and 3 years respectively, as on and immediately preceding the first day of January of the year of admission and that contributions were paid in respect of them for not less than 78 days in all the contribution periods within the said continuous periods. The Act as also W.P.(C).No.17191 of 2018 : 8 : and con. Cases. the Rules and Regulations framed under it do not provide for preferential admission in the medical colleges established by the Corporation for the wards of the persons insured under the Act. As held by this Court in **Director General, ESIC, New Delhi and others v. Jemil Elizabeth Mathew and others** [2014 KHC 706]), the quota therefore is only a privilege extended by the Corporation to the wards of persons insured under the Act and the Corporation, therefore, is free to fix appropriate norms for extending the said privilege and only those who satisfy the norms fixed by the Corporation can claim the benefit of the quota. Of course, the Corporation being an instrumentality of the State, such norms shall conform to the constitutional principles. It is seen that the requirements aforesaid are challenged on the ground that the same would go against the ratio in **Bindu Radhakrishnan** (supra). **Bindu Radhakrishnan** (supra) was a case dealing with the admission notice issued by the Corporation for admission against the quota in the W.P.(C).No.17191 of 2018 : 9 : and con. Cases. previous academic session. The stipulations contained in the said admission notice were different. There was no challenge in the said case against any of the stipulations in the admission notice. The rights of parties involved in the said case are seen decided therefore interpreting the provisions contained in the admission notice. The said case, according to me, will not help the petitioners, in any manner, in challenging the provisions contained in the admission notice which is the subject matter of the present batch of cases. Further, it is seen that the quota in fact is a provision in favour of the wards of persons insured under the Act to undertake MBBS and BDS courses at a subsidised fees. It has come out that the object of the said provision is advancement of the insured persons who generally belong to the lower strata of the society. When the object the quota is advancement of the insured persons who belong to the lower strata of the society, exclusion of the creamy layer among them, who go out of coverage when they receive higher wages is certainly a W.P.(C).No.17191 of 2018 : 10 : and con. Cases. provision in conformity with the constitutional scheme. 7. Once this Court finds that the quota is not the statutory conferment, but only a privilege and that the norms fixed by the Corporation for conferment of the said privilege are in conformity with the constitutional scheme, one has to satisfy the norms for claiming the benefit of the quota. As noted, the stand the Corporation is that the insured persons involved in these matters do not satisfy the requirement that they shall be persons in continuous insurable employment during the period in respect of which they have applied for Certificate, as on and immediately preceding 1/1/2018 and contributions were not paid in respect of them for not less than 78 days in all the contribution periods within the said periods. The question is as to whether the petitioners involved in these matters would satisfy the definition of 'insured person'. Clause 8 (a) of Annexure-I to the admission notice provides that insured person for the purpose of availing the benefit of Insured Person's quota for his / her wards W.P.(C).No.17191 of 2018 : 11 : and con. Cases. ## shall be an Insured person as defined therein. The relevant portion of the said clause reads thus: _“Insured person for the purpose of availing benefit of Insured Persons (IPs) quota for his / her wards shall be, as under (a) 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/four/three years as on, and immediately preceding the 1[st] January of the year of admission; and contribution in respect of him/her were paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1[st] January of the year of admission with the proviso that the return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulations be filed within 42 days of termination of contribution period to which it relates, during this five/four/three year period'. However, if the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution as above in the specified CPs on account of exigency beyond control of IP, 78 days of paid/payable contribution shall be allowed to reckon from among the 02* contribution periods shown in the tables in para (4.5) during the five/four/three year period for determining eligibility. The five/four/three year period along with extended period of one year for the purpose 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.”_ In the light of the said definition, among others, the insured person shall satisfy the conditions namely (1) that he/she shall be in continuous insurable employment for the requisite period as on, and immediately preceding W.P.(C).No.17191 of 2018 : 12 : and con. Cases. 1/1/2018, and (2) that contributions in respect of him/her were paid/payable for not less than 78 days in all the contribution periods immediately preceding 1/1/2018. It is seen that in **Bindu Radhakrishnan** (supra), this Court took the view that in the light of the decision taken by the Corporation on 5/12/1999 that the period of interruption of persons who may go out of coverage due to enhancement of wages and brought under coverage subsequently, shall be taken as insurable employment for the purpose of the term 'continuous service', the corporation cannot be heard to contend that such persons were not in continuous employment. Paragraph 50 of the decision of the Apex Court in the said case reads thus: _“50. As many employees have been dogged by the uncertainty because of this periodic rise in wage limit and the employees' going out of the reckoning for a limited period, the Corporation has clarified. Ext.P5 in WA No.1532 of 2017 is the clarification issued_ _by the Corporation. The Head Quarters acknowledges that “instances have come to notice that the Insured Persons who had gone out of coverage due to crossing the earlier wage ceiling of Rs.15000/- and have subsequently re-entered into Insurable_ W.P.(C).No.17191 of 2018 : 13 : and con. Cases. _Employment due to enhancement of wage ceiling w.e.f. 01/01/2017 have been facing difficulties in getting the benefits because of doubt over reckoning of interruption period.” The letter, then, refers to Branch Office Manual, Chapter VIII, para L.8. 15.2.C containing the Corporation's Resolution dt. 05/12/1999:_ _“A person in insurable employment may go out of coverage due to enhancement of wages and may be brought under coverage subsequently. The period of interruption should also be taken as insurable employment for the purpose of the Term “Continuous Service.”_ In the light of the said finding of the Division Bench, the case of the petitioners that they shall be treated as persons in continuous insurable employment for the requisite period as on, and immediately preceding the 1/1/2018 has to be accepted. But insofar as it is conceded that contributions were not paid in respect of the insured persons involved in these matters except the second Petitioner in W.P. (C) No.18046 of 2018, for a period not less than 78 days in all the contribution periods immediately preceding 1/1/2018, it cannot be contended that they would satisfy the definition of 'insured person'. W.P.(C).No.17191 of 2018 : 14 : and con. Cases. The definition of 'insured person' in the admission notice which was the subject matter of the decision of the Division Bench in **Bindu Radhakrishnan** (supra) was altogether different. The said definition as extracted in para 24 of the decision of the Division Bench in **Bindu Radhakrishnan** (supra) reads thus: _“Clause 8 of the Ext.R1(a) admission policy defines 'insured person': 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/four/three years as on 1[st] January of the year of admission and should have paid at least 78 days of contribution each Contribution Period, during this five/four/three year period. The insured persons for the said purpose shall be grouped as Group-I/II/III respectively. The 05/04/03 year would be counted from the date of entry into the ESI Scheme. For employee who entered the Scheme prior to 9[th] June 2011, the date of entry into the scheme for the purpose of availing benefit of Insured Persons (IPs) for his or 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 data base of the ESIC, in case there is default or delay on the part of the employer in getting itself or the concerned_ W.P.(C).No.17191 of 2018 : 15 : and con. Cases. _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 05/04/03 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota”._ Interpreting the said definition in the light of the provisions contained in the Act as also the Rules made thereunder, this Court held that the continuous insurable service of 5/4/3 years need not be co-terminus with the first day of year of admission and insured persons who complete requisite period prior to 1/1/2017 are entitled to the benefit of the quota. It was also held by this Court in the said case that the payment of contribution need not also be continuous and without break. It is seen that the expression ' **he/she should have been in continuous insurable employment for a minimum period of five/four/three years as on 1[st] January of the year of admission and should have paid at least 78 days of contribution each Contribution Period, during this five/four/three-year period'** as contained W.P.(C).No.17191 of 2018 : 16 : and con. Cases. in the admission notice issued during the previous year has been substituted with the expression ' **he/she 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 admission; and contribution in respect of him/her were paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1[st] January of the year of admission** ' in the admission notice which is the subject matter of the present batch of cases. As noted, unlike in the admission notice issued for admission to the previous academic session, in order to satisfy the definition of 'insured person' as contained in the admission notice issued for the ensuing academic session, the insured person shall be a person in respect of whom contributions were paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1/1/2008. As noted, except in the case of the second W.P.(C).No.17191 of 2018 : 17 : and con. Cases. Petitioner in W.P.(C) No.18046 of 2018, the insured persons involved in the matters are not persons in respect of whom contributions were paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1/1/2008. In the light of the definition of 'insured person' contained in the admission notice issued for admission to the ensuing academic session, it cannot be said that they would satisfy the definition of 'insured person' in order to claim the benefit of the quota. As far as the second petitioner in W.P. (C).No.18046 of 2018 is concerned, the payment of contributions provided for and contemplated in terms of the admission notice is payment in accordance with the provisions of the Act and the Rules. The payment of contribution on behalf of the second petitioner during the period during which she was out of coverage was otherwise than in accordance with the provisions of the Act and the Rules, and the first petitioner in the said case cannot claim the benefit of the quota on the basis of the W.P.(C).No.17191 of 2018 : 18 : and con. Cases. said payment. 8. It is seen that the definition of 'insured person' as contained in the admission notice provides that if the insured person does not fulfil the requirement of minimum 78 days of paid/payable contribution on account of exigency beyond the control of the insured person, 78 days of paid/payable contribution shall be allowed to be reckoned from among the two specified periods shown in the tables in paragraph 4.5 during the 5/4/3 year periods for determining the eligibility. In the light of the said provision, in so far as it is found that the period during which the insured person has gone out of coverage on account of wage revision shall be treated as continuous service in the case of persons who have been brought back under coverage when the wage limit was raised, it has to be held that if any of the insured persons involved in these matters are denied the benefit of the additional contribution periods mentioned in the admission notice for the reason that they were not under continuous coverage, W.P.(C).No.17191 of 2018 : 19 : and con. Cases. they shall be extended the benefit of the additional contribution periods for ascertaining their eligibility. Since the said right has not been adjudicated upon in the orders impugned, I do not propose to venture into an adjudication on the said rights of parties. In the result, the writ petitions are disposed of subject to the observations made in Paragraph 8. **sd/-** **P.B.SURESH KUMAR, JUDGE.** SKS