The High Court of Kerala dismissed writ petitions challenging the cut-off date of 31.8.2019 used by ESIC to determine age eligibility for wards of insured persons seeking admission to medical colleges. The court held the date was arbitrary neither and within the corporation’s power.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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:
BY ADVS. SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH
RESPONDENT/S:
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
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.
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
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.
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.
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] .
counsel for the petitioners and Adv. P.Sankarankutty Nair, the learned Standing Counsel for ESI Corporation.
“(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;”
“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.
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.
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.
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 1st 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.; 1st 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, 1st 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.
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/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.
3 issues framed by the court
Whether fixing the cut-off date as 31.8.2019 for determining age eligibility of wards of insured persons under the ESI Act is arbitrary?
Whether the admission policy for MBBS courses under the Insured Persons Quota is a benefit envisaged under Section 46 of the ESI Act?
Whether the cutoff date for age eligibility can be varied from the previous year's practice of 1st January?
Colour shows how this judgement treated each authority
Director General, ESIC, New Delhi and others v. Jemin Elizabeth MathewFollowed¶11
Director General, ESIC, New Delhi and others v. Jemin Elizabeth Mathew [2015 (1) KLT 328]
Vaishna Vinod v. Employees State Insurance Corporation and othersExplained¶12
Vaishna Vinod v. Employees State Insurance Corporation and others [2018 (4) KHC 336]
3 provisions across 2 enactments
NAJEEMATH.E
P.M MUHAMMEDSABIR
HARISANKER.S
EMPLOYEES STATE INSURANCE CORPORATION REGIONAL OFFICE, NORTH SWARAJ ROUND, THRISSUR
SUB REGIONAL OFFICE, E.S.I CORPORATION, MALUS COMPLEX, ST. FRANCIS CHURCH ROAD, KALOOR, ERNAKULAM
DIRECTOR GENERAL OF HEALTH SERVICES, NEW DELHI
K.VINOD CHANDRAN
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
