Bombay High Court
Rasika Rajesh Pohare vs Director General Of Health ... on 10 August, 2017
Bench: B.P. Dharmadhikari
WP.4704.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NOS. 4704/17 & 4761/17
1] WRIT PETITION NO. 4704 OF 2017
1] Samiksha d/o Raju Dhole,
Aged about 18 years, Occ. Student,
Resident of Gawande Lay Out,
Opposite Saturna Hanuman
Temple, Sai Nagar Road, Amravati,
2] Raju s/o Tulshiram Dhole,
Aged about 50 years, Occupation :
Service, resident of Narayanpeth,
Amravati. .... PETITIONERS
// VERSUS //
1] Union of India,
through its Ministry of Health &
Family Welfare, through its
Director General Health Services,
Nirman Bhavan, New Delhi,
2] Employees State Insurance
Corporation, through its Director,
Panchdeep Bhavan, CIG Road,
New Delhi.
3] Employees State Insurance
Corporation, through its Regional
Director, Maharashtra having
office at Panchdeep Bhavan,
108, MN Joshi Marg, Lower
Parel, Mumbai.
4] Employees State Insurance
Corporation, Regional Office,
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WP.4704.17
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ESIC, Ganeshpeth, Nagpur. .... RESPONDENTS
Mr. T.D. Mandlekar & Mr. R.V. Malviya, Advocates for petitioners.
Mrs. Mugdha Chandurkar, Advocate for respondent no. 1,
Mrs. B.P. Maldhure, Advocate for respondent nos. 2 to 4.
2] WRIT PETITION NO. 4761 OF 2017
Rasika Rajesh Pohare,
Aged : 20 years, Occ. Student,
R/o C/o Rajesh Ramdas Pohare,
MHADA Colony, Quarter No. L-86,
Akola, Tah. & Dist. Akola. ... PETITIONER
// VERSUS //
1] Director General of Health
Sciences, Ministry of Health &
Family Welfare, (Government
of India), 444-A, Nirman Bhavan,
Maulana Azad Road,
New Delhi-110108.
2] Director General,
Through Dy. Medical Commissioner
(ME-II), Employees' State Insurance
Corporation, Panchdeep Bhavan,
CIG Road, New Delhi-110002.
3] Employees State Insurance
Corporation, Regional Office,
ESIC, Panchdeep Bhavan,
Ganeshpeth, Nagpur. .... RESPONDENTS
Mr. U.J. Deshpande, Advocate for petitioners.
Mrs. Mugdha Chandurkar, Advocate for respondent no. 1,
Mrs. B.P. Maldhure, Advocate for respondent nos. 2 & 3.
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WP.4704.17
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CORAM : B.P. DHARMADHIKARI & ARUN D. UPADHYE, JJ.
DATED : AUGUST 10, 2017.
ORAL JUDGMENT (PER ARUN D. UPADHYE, J.).
1] Rule. Rule made returnable forthwith. Heard the learned
Counsel for the parties finally by consent.
2] By this petition, the petitioners have prayed to hold and
declare that the petitioner No.2 is an "insured person" as defined
under Clause 8 of Admission Notice dated 28.6.2017 and direct the
respondent Nos. 2 & 3 to issue Ward of Insured Persons Certificate to
petitioner No.1 in Group-I category. By way of amendment, they have
also challenged to quash and set aside the admission notice dated
28.6.2017 (Annexure A-10) issued by respondents to the extent the
same provides for making of Group I, II and III of insured persons on
the basis of 5/4/3 years insurable service in the employment,
immediately prior to the crucial date, i.e. 1.1.2017 being violative of
Article 14 of the Constitution of India. They have further prayed to
quash and set aside the paragraph 5.2.3 (B) (page 53) and 4.5 of
Annexure-1 (page 57) inter alia also to quash illustrations Annexure 2-
A - Group-I (page 61), Annexure 2-B - Group II (page 62) and
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Annexure-2-C-Group - III (page 63) of Admission Notice dated
28.6.2017.
3] The petitioner No.1 is the daughter of petitioner No.2, who
is in the employment of M/s. Nielsen (India) Private Limited at Baroda.
Petitioner No.2 is having status as an insured person as defined
under Section 2(14) of the Employees State Insurance Act, 1948,
having Insurance No. 3101103546 duly registered on 12.6.2011. The
present petitioner No.2 is from O.B.C. category and was appointed on
15.10.1997 and was having salary of Rs.2000/- per month at the time
of his appointment. According to the petitioner No.2, still he is in
employment and recent salary for the provisions of Section 2(9) of the
ESIC Act read with Rule 50 of the ESI (Central) Rules, 1950 was
Rs.16,075/-. According to him, he has been an insured person as
defined under Section 2(14) of the ESI Act throughout his
employment and more so as long as on 1.1.2017. He also
contended that a copy of "e-Pehchan Card" issued by respondent
nos. 2 & 3 is also enclosed. The petitioner has contended that he
has given contribution details of the period from April, 2015 to March,
2017. The petitioner No.1 has passed S.S.C. examination with
94.40% marks as well as H.S.C. examination by scoring 487 marks
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out of 650 marks. According to him, from the OBC category her All
India seat rank for 15% all India quota is 137239 and for the purposes
of her category rank (15% quota) she is at 55915. It is further
contended that counselling rank letter all India quota rank seat on
4.7.2017 in favour of the petitioner no.1 is issued. It is further
submitted that on 6.2.2017 pre-admission notice was issued by
respondent no.2 with regard to process of admission of medical
education seat in ESIC Medical/Dental Colleges for academic year
2017-18 under Insured Persons Quota (Annexure A-9). It is further
submitted that the admission notice issued on 28.6.2017 by
respondent no.2 is at Annexure A-10. It is further contended that on
4.7.2017 the respondent no.2 has conveyed its approval to the
Assistant Director General (ME), Ministry of Health & Family Welfare,
New Delhi that 337 seats for MBBS course have been reserved for
wards of insured persons at 9 medical colleges at different places in
the country, besides 22 seats for various courses and has informed
that the counselling for the MBBS and BDS seats for academic year
2017-18 shall be held.
4] It is further contended that on 6.2.2017 pre-admission
notices were issued by the respondent no.2 for admission to the
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under-graduate course in MBBS & BDS in ESIC Medical/Dental
colleges for the academic year 2017-18 under insured persons quota,
in which it was directed that the admission would be done on the
basis of National Eligibility-cum-Entrance Test, 2017 conducted by the
Central Board of Secondary Education (CBSE). The copy of pre-
admission notice dated 6.2.2017 was issued by the respondent no.2
for the purpose of admission to MBBS/BDS courses in ESIC colleges.
According to the petitioners, the ESIC, New Delhi issued guidelines to
all Regional Directors and Sub-Divisional Officers laying down 7
requirements for availing of 15% quota in the MBBS and BDS
admissions reserved for wards of insured persons. It was mentioned
that production of certificate (of ward of insured persons) by the
student for the purpose of availing the quota of the insured persons
could be placed in three groups as on 1st January of the year of
admission. It has been mentioned that insured persons should have
contributed to 78 days' contribution in each contribution period and
they will be placed in Group-I, Group-II and Group-III according to the
period stated in the certificate. It is further contended that for availing
benefits in Group-I, the insured person must have contributed for
minimum contribution during the period of 1.4.2012 to 30.9.2016, for
Group-II the period stated is 1.4.2013 to 30.9.2016 and for Group-III
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the period stated is 1.4.2014 to 30.9.2016. The certificate to be
issued to the ward of insured persons could be issued by
Regional/Sub-Regional Offices and that certificate be issued within 48
hours of the receipt of the application.
5] It is further contended that as per the admission notice
dated 28.6.2017 certificate in prescribed format by the ward of insured
person with form of affidavit and bonds are necessary. As per the
said notice, the critical date for determining the age of ward of insured
person and eligibility under the insured person quota would be 1 st
January, 2017. According to them, the further information and
instructions were issued on various dates. The Schedule for online
counselling for the ward of insured persons was also issued. The
process of seat allotment was to be made on 13th & 14th of July, 2017
for Round-I and results were to be published on 15 th July, 2017. The
reporting period at the allotted colleges against Round No.I was to be
done during the period from 16th July to 22nd July, 2017. The process
for Round-II is to begin from 1.8.2017 and reporting is scheduled
between 9th to 16th August, 2017.
6] The petitioner no.1 has submitted that on 11.7.2017 she
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applied online for admission to MBBS inadvertently under Group-II,
for MBBS (ESIC Quota). According to her, said application was
made based upon wrong advice and under wrong presumption. The
admissions to Group-I are finalized and completed. According to her,
she is desirous to apply for Group-I as her father petitioner No.2 has
been insured person since 1997 and also the insured person as on
1.7.2017. The petitioner no.1, therefore, submitted her application on
13.7.2017 to the respondent no.2 at its Regional office at Mumbai for
grant of "certificate of ward of insured person" as required under
admission process on the ground that her father has been an insured
person as on 1.1.2017 and also paid 78 days' contribution.
7] It is further submitted that the respondent no.3 by e-mail
dated 13.7.2017 informed that as per the instructions of ESIC, New
Delhi the petitioner no.2 is not fulfilling the criteria for receiving
certificate in respect of his ward and, therefore, the application stands
rejected. The petitioner no.2 thereafter made representation dated
14.7.2017 for grant of certificate as he fulfils the criteria for all the
three Groups as he has been in the employment since 1997.
According to the petitioners, as per the provisions of ESIC Act,
Section 2(9) defines "employee" and prescribed wage limit for being
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an employee under the said definition. Rule 50 of Employees State
Insurance (Central) Rules, 1950 prescribes wage limit under
notification issued by the Central Government. According to them, as
per notification issued on 23.12.1996 the wage limit of Rs.3000/- per
month was enhanced to Rs.6500/- per month with effect from
1.1.1997. It was again revised to Rs.10,000/- with effect from
1.8.2007. By notification dated 20.4.2010 effective from 1.5.2010, the
same was enhanced to Rs.15,000/-. Now by notification dated
23.12.2016 the same has been enhanced to Rs.21,000/- with effect
from 1.1.2017 and same continues to be in force as on 1.1.2017.
According to them, the salary of the petitioner no.2 was Rs.13,770/-
and Rs.14,778/- during the period from 1.4.2012 to 30.9.2015. The
salary of petitioner no.2 was Rs.16,075/- from 1.10.2015. According
to them, as per the ESI Regulation, 1950 the person who has paid the
contribution of not less than 78 days shall be entitled to medical
benefits till the end of corresponding period.
8] The petitioners further submitted that as per the guidelines
dated 28.6.2017 in paragraph 7.8 the critical date for determination of
the age of ward of insured persons and eligibility criteria from insured
persons quota would be 1.1.2017. According to them, the
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respondents could not have framed 3 Groups, Group-I, Group-II and
Group-III according to the period stated in the certificate. According
to them, Regulation 103-A of the ESI Regulation, 1950 provides that
the insured persons who have contributed for 78 days contribution in
a contribution period as defined under Regulation 4 of the said
Regulation, no distinction could be made on the basis of past
insurable service as has been done in the notice dated 24.5.2017.
The petitioners thus challenge the grouping made by the respondents
in view of the Guidelines dated 28.6.2017 on various grounds as
mentioned in the petition. According to them, the fundamental rights
under Article 14 of the Constitution of India have been breached or
violated by classification of Groups.
9] The petitioners submitted that petitioner no.2 is admittedly
an employee as defined in ESIC Act, 1948 and continuously making
payment in ESIC through contribution since 1997. He has also given
chart in paragraph no. 22 of his petition. According to them, because
of non-issuance of certificate as ward of insured person by the
respondent no.2 to the petitioner no.1, she could not qualify in Round
No. I of the admission process. The petitioner, therefore, approached
this Court for the reliefs as mentioned above.
WP.4704.17
10] In Writ Petition No. 4761/17 filed by one Rasika Rajesh
Pohare, similar reliefs are claimed. She has also prayed for seeking
appropriate direction to respondents to consider the claim for
admission to MBBS course under insured persons quota in ESIC
Medical/Dental colleges. According to the petitioner, her father Mr.
Rajesh Pohare is an employee of Bhartiya Sindhu Sahakari Pat
Sanstha Limited, Akola and contributes towards the State Insurance.
His Insurance Number is 2303153074 and e-Pehchan card issued to
him by the Employees State Insurance Corporation on 23.5.2017
along with necessary documents is placed on record. According to
her, she is eligible and qualified to apply under the ESIC insured
persons quota.
11] The respondent nos.2 to 4 in Writ Petition No. 4704/17
have filed their reply on 27.7.2017 and denied the claim of the
petitioners. The respondents have contended that the 'insured
person' for the purpose of availing benefit of "Insured Person's (IP'S)
Quota" for his/her ward is defined under Clause 8, which is
reproduced as under :-
"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
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five / four / three years as on 1st January of the year of
admission and should have paid at least 78 days of
contribution in each Contribution Period, during this five /
four / three year period. The Insured Person for the said
purpose shall be grouped as Group-I / II / III
respectively. The 05 / 04 / 03 year period would be
counted from the date of entry into the ESI Scheme. For
employees who entered the Scheme prior to 9th June, 2011,
the date of entry into the Scheme for the purpose of
availing benefit of Insured Persons (IPs) Quota for his/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 9th June, 2011, the date of entry into the
Scheme for the above purpose would be the date of
registration available in the IP dababase of the ESIC. In
case there is default or delay on the part of the employer in
getting itself or the concerned 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."
According to these respondents, requirement of contributions for five
years as on 1.1.2017, the contributions have to be paid for at least 78
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days in each contribution period mentioned in the chart during these
five years as per record, which is as under :-
Sr.No. Contribution periods for academic Contribution paid
session 2017-18 for No. of days
According to them, the insured person should be an employee as
defined under the ESI Act, should have been in continuous insurable
employment for a minimum period of five years as on 1.1.2017 and
should have paid at least 78 days contribution in each contribution
period shown in the chart for contribution period commencing from
1.4.2012 to 30.9.2016 during five years period to be grouped as
Insured Persons Group-I.
12] According to them, as per the online contribution details
available on ESI website, the contribution paid in respect of petitioner
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no.2 Raju Tulshiram Dhole INS 3101103546 during the contribution
period 1.10.2015 to 31.3.2016 is '0' (Zero). No record is found for
period 1.4.2016 to 30.9.2016. The chart is reproduced below :-
Sr.No. Contribution periods for academic Contribution paid
session 2017-18 for No. of days
9 1st April, 2016 - 30th September, 2016 No Record Found
According to these respondents, the petitioner no.2 was not fulfilling
the required days for contribution period in each contribution period,
i.e. 78 days and as such was not the eligible person for the purpose of
grant of ward of insured person certificate. It is further contended that
the salary of petitioner no.2 from 1.10.2015 is Rs.16,075/- per month.
According to them, as per Rule 50 of ESI (Central) Rules the ceiling
for being an employee is Rs.15,000/- till December, 2016. The wage
limit for coverage of an employee was enhanced to Rs.21,000/- per
month introduced vide notification dated 20.12.2016. The petitioner
WP.4704.17
no.2 goes out of coverage with effect from 1.10.2015 and comes into
coverage with effect from 1.1.2017. The petitioner no.2 was not in
continuous insurable employment and, therefore, does not qualify to
be an insured person and petitioner no.1 is not entitled for ward of
insured persons certificate. Lastly, it is submitted that there is no
merit in the petition and the same be dismissed.
13] The respondent nos. 2 & 3 have filed an additional reply
dated 7.8.2017 and denied the contention made by the petitioners
after amendment of the petition. According to them, the interpretation
of the petitioner as to 5/4/3 years' continuous period from the date of
entry is not in consonance with the Clause 8 of admission notice and
cannot be sustained. According to them, categorized groups as per
Clause 4.5 have nexus for the object of giving preference to the ward
of insured person with longer service can be seen from Clause 4.7.
Group-I of insured person is having five years' continuous insurable
employment as on 1.1.2017, Group-II having four years continuous
insurable employment as on 1.1.2017 and Group-III having three
years continuous insurable employment on 1.1.2017. The intention of
making group is clear, the person having more length of service - the
ward of such insured person will get preference over the ward of
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insured person having less service. This has nexus to give
preferential benefit to the ward of insured persons having more length
of service. Lastly, it is submitted that the petitioners are not entitled
for any relief even after amendment of the petition and sought
dismissal of the petition.
14] The respondent no.2 has filed reply in Writ Petition No.
4761/17 on 1.8.2017 and denied the contention made in the petition.
As per the online contribution details available on ESIC website, the
contribution paid in respect of father of petitioner Shri Rajesh Ramdas
Pohare, INS 2303153074 is as under :-
Sr.No. Contribution period for academic Contribution paid
session 2017-18 for number of days
According to this respondent no.2, the father of petitioner goes out of
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coverage with effect from 1.10.2016 and then comes into coverage
with effect from 1.1.2017, the date of appointment of father of the
petitioner is shown as 1.2.2017 and date of registration is shown as
23.5.2017. According to this respondent, as the father of petitioner
was not insured employee and not in continuous insurable
employment as on 1.1.2017, the petition deserves to be dismissed.
15] We have heard both the sides at length. Shri T.D.
Mandlekar, learned Advocate for petitioners in Writ Petition No.
4704/17 and Mr. U.J. Deshpande, learned Advocate for petitioner in
Writ Petition No. 4761/17, Mrs. Mugdha Chandurkar, learned
Advocate for respondent no. 1 and Mrs. B.P. Maldhure, learned
Advocate for respondent nos. 2 to 4, in both the Writ Petitions.
16] Shri T.D. Mandlekar, learned Advocate for petitioners,
submitted that the petitioner no.2 is an insured person. His insurance
number and date of entry are also on record. As per the record, the
date of entry in the service is October, 1997. The respondent has
also issued e-Pehchan card in his favour. According to him, the
affidavit filed by the respondent is contrary to the provisions of Clause
8 of the Admission Notice. He further submitted that the petitioner
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no.1 is eligible for admission to the MBBS course as her father was
insured person. The respondents have not considered the Clause 8
which specifies the criteria of eligibility. According to him, as per
Clause 8 for the employees who entered the scheme prior to
9.6.2011, the date of entry into the Scheme for the purpose of availing
benefit of insured persons (IPs) quota for his/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. The second category who entered the scheme
after 9.6.2011 the date of entry into the scheme for the above purpose
would be the date of registration available in IP database of ESIC.
Any period prior to the date of entry described above would not be
counted towards 05/04/03 year period of eligibility for the purpose of
availing benefit of Insured Persons quota. According to the learned
Counsel, the chart given of Group-I, Group-II and Group-III is contrary
to Clause 8. He further submitted that as per Section 2(9) and
Section 2(14) the definitions of 'employee' and 'insured persons' are
defined. According to him, as per Section 46(2) of the ESIC Act,
1948 the petitioner no.1 is entitled for the benefit, the groups category
are arbitrary and discriminatory and liable to be quashed. He further
submitted that the respondent has wrongly rejected the application for
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issuance of ward of insured persons certificate to the petitioner no.1.
He, therefore, prayed that the petition be allowed.
17] Shri U.J. Deshpande, the learned Advocate for the
petitioner in Writ Petition No. 4761/17 has adopted the arguments of
Shri Mandlekar. In addition to that, he submitted that the petitioner
has complied with the eligibility as he has contributed the amount for
the eligibility as required by the respondents. Chart is also on record.
The petition, therefore, be allowed.
18] Mrs. Maldhure, learned Counsel for the respondent nos. 2
to 4, has submitted that the petitioners are not fulfilling the eligibility
criteria for the admission of MBBS for the year 2017-18 as per Clause
8 of Admission Notice and the respondents have rightly refused to
issue certificate in their favour. There is no force in the submission
that Group-I, II & III are arbitrary and discriminatory as argued by the
learned Counsel for the petitioners. Both the petitions, therefore, be
dismissed.
19] Mrs. Mugdha Chandurkar, the learned Counsel for the
Respondent No.1, has submitted that there is no merit in the petitions
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and the same may be dismissed.
20] Having gone through the contentions made on behalf of
the petitioners in their Writ Petitions and the replies submitted on
behalf of respondents and documents placed on record, we are of the
considered view that there is no merit in both the Writ Petitions and
they are liable to be dismissed. So far as petitioner No.1 in Writ
Petition No. 4704/17 is concerned, her father - petitioner no.2 is not
fulfilling the criteria as required under Clause 8 of the Admission
Notice dated 28.6.2017. The submission put forth on behalf of the
petitioner No.2 that he was in employment since 1997 and continuous
insurable employment since 1997 and registration from 12.6.2011 is
eligible for grant of certificate cannot be accepted. The submission
put forth on behalf of petitioners that the respondents have not
considered the prior service of the petitioner no.2 and wrongly refused
to issue certificate in his favour cannot be accepted. It is to be noted
that as per Clause 8, it is clearly mentioned that the insured person
shall be an employee as defined in ESI Act and he/she should have
been in continuous insurable employment for a minimum period of
5/4/3 years as on 1st January of the year of admission and should
have paid at least 78 days of contribution in each contribution period
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during these 5/4/3 years period. It is also made clear under Clause 8
that the period of 5/4/3 would be counted from the date of entry into
the ESI Scheme. It is further clarified that for employees who entered
the scheme prior to 9.6.2011 the date of entry in the scheme for the
purpose of availing benefit of insured persons (IPs) quota for his/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 ESIC. The petitioner no.2 has
registered on 12.6.2011. However, thereafter he was continued till
30.9.2015. As per the chart given by the respondents and admitted
fact, he was not paying contribution from 1.10.2015 to 30.3.2016 and
no record found from 1.4.2016 to 30.9.2016. The salary of petitioner
no.2 was Rs.16075/- from 1.10.2015. In such circumstances, the
petitioner no.2 is not fulfilling the criteria to issue the ward of insured
persons certificate and, therefore, not eligible. The fact that by virtue
of notification dated 12.12.2016, the wage limit of coverage of
employee was enhanced from Rs.21,000/- per month and the
petitioner no.2 again comes into the coverage with effect from
1.1.2017 also is not helpful to him. The fact that he was out of
coverage from 1.10.2015 till 30.9.2016 disentitled him for grant of
certificate in his favour.
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21] So far as the petitioner in Writ Petition No. 4761/17 is
concerned, her father was not continuous insured person on 1.1.2017
and out of coverage with effect from 1.10.2016 and, therefore, not
entitled for ward of insured persons certificate. Submission put forth
on behalf of the petitioner that she has fulfilled the criteria for grant of
certificate cannot be accepted. It is to be noted that the father of the
petitioner Rajesh Pohare was allotted Insured Persons number and
date of registration was shown as 25.5.2017. It is also brought on
record that after amendment of Rule 50 the ceiling of wages was
enhanced to Rs.21,000/- with effect from 1.1.2017. Thereafter the
father of the petitioner was re-entered with effect from 1.2.2017 and
on e-Pehchan card date of appointment is shown as 1.2.2017 and,
therefore, he was not in continuous employment as on 1.1.2017.
22] Both petitioners claim status as Insured Persons (I.P), and
submit that they have completed 5 years of continuous service as
insured persons, before they went out of coverage, as their salary
increased. The second contention is about classification of insured
persons into Group I, Group-II and Group-III posts depending on
length of their insurable employment. Submission is, reservation for
M.B.B.S. Admission is for ward of insured person and therefore, the
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classification also must have nexus with this object. Duration of
continuous insurable employment put in by I.P. is, therefore not
relevant and lacks nexus with the object. It is obvious that if
petitioners satisfy test laid down for being an I.P., then only their
children become ward of insured person and the later argument
based upon Article 14 of the Constitution of India may in that event,
be required to be gone into.
23] The reading of Clause 8 of Annexure-1 with Annexure-A-
10 of the Writ Petition, contain admission policy for under-graduate
courses in E.S.I.C. Medical Education Institution reveals that insured
person has to be an employee, as defined under the Employees State
Insurance Act, 1948. He also should have been in continuous
insurable employment for a minimum period of 5/4/3 years, as on 1st
January of the year of admission i.e. in present matter 01.01.2017.
He should have been paid at least 78 days contribution in each
contribution period, during this period of continuous insurable
employment.
24] These requirements therefore, show that petitioners must
as on 01.01.2017 be employees, as defined under the E.S.I. Act, and
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they should have also paid at least 78 days contribution in each
contribution period continuously during preceding 5/4/3 years. This
period of 5/4/3 years needs to be computed as on 01.01.2017, and
therefore, immediately preceding thereto continuously.
25] Petitioner No.2 in Writ Petition No. 4704/2017 (father of
petitioner no.1 Samiksha), was not an employee amenable to E.S.I.
from 01.10.2015 to 31.03.2016 and thereafter from 01.04.2016 to
30.09.2016. This position declared on affidavit in their reply by
respondent nos. 2 to 4, is not in dispute.
26] Father of petitioner in Writ Petition No. 4761/2017 was not
covered under E.S.I. from October, 2016.
27] Till 31.12.2016, salary ceiling for being an employee under
E.S.I. Act was Rs. 15,000/- per month. It became Rs. 21,000/- per
month from 01.01.2017. Thus, petitioner no.2 Raju in Writ Petition No.
4704/2017 or father of petitioner - Rasika in Writ Petition No.
4761/2017 came under ESI Scheme again on 01.01.2017. They
therefore satisfy only one part of clause 8 mentioned supra. They
were not employees as defined under Section 2[9] of the E.S.I. Act,
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1948 because of proviso (b) under that sub-section on 31.12.2016
and for some period prior to it.
28] The words in Clause 8 "should have been in continuous
insurable employment for a minimum period" and "as on 1st January
of the year", show present continuous tense and therefore, need to
hold that status without interpretation for minimum period of 5/4/3
years as on 01.01.2017. These words employed in Clause 8 cannot
be read to mean "prior to" or "had been". If arguments of petitioners
are accepted, the plain language in Clause 8 is required to be twisted.
When literal meaning is clear and no absurdity results by plain
reading, artificial exercise attempted by petitioners is unwarranted.
Date of entry as explained in Clause 8 does not mean that period of 5
years needs to be computed with reference to that date. Reliance
upon the date of entry mentioned in declaration form or then in I.P.
database of ESIC is, therefore irrelevant to understand true import of
Clause 8 here. Last sentence in Clause 8 which stipulates that any
period prior to such date of entry would not be counted, therefore
does not help the cause of petitioners at all. On the contrary, import
thereof militates with their submission.
WP.4704.17
29] Respondent ESI has pointed out that very same Authority
which has formulated the rules regarding admission procedure, has
also approved Annexure-2(A), 2(B) and 2(C), which form part of
admission procedure. The period and calculation mentioned in these
illustrations also support above interpretation of Rule 8. The mode
and manner of working out continuous period of insurable
employment given in these charts militates with contention of
petitioners. The charts and calculations are issued by very same
authority and, therefore, enjoy very same sanction as Rule 8. Even if
any ambiguity is presumed in the language of Rule 8, in present
situation, the details given in the charts, support the respondents and
clear that ambiguity. This finding and observation is only in addition
to and without prejudice to conclusion that there is no ambiguity in
Rule 8 at all.
30] With the result, petitioners do not satisfy the requirement of
continuous insurable employment for a period of 5 / 4 / 3 years as on
01.01.2017, and hence, cannot claim any benefit as ward of insured
persons for admission in under-graduate course in ESIC Medical
Colleges.
WP.4704.17
31] In view of this finding, it is not necessary for us to consider
the challenge raised by the petitioners on the basis of Article 14 of the
Constitution of India. Petitioners lack necessary locus to raise it.
The learned Counsel for the petitioners has relied upon judgment in
the case of D.S. Nakara and others .vs. Union of India reported in
AIR 1983 SC 130 and in the case of State of Uttar Pradesh .vs.
Singhara Singh and others reported in 1963 AIR 358. The above
rulings, therefore, need not be looked into.
32] The learned Counsel for the petitioners also relied upon
Section 46(2) of the said Act. As per the said provision, the
Corporation may at the request of the appropriate Government and
subject to such condition as may be laid down in the Regulations
extend the "medical facilities" to the family of insured person. It does
not empower and oblige Employees State Insurance Corporation to
provide "medical education" that too, to the wards of insured persons.
The said provision is also not helpful to the petitioners.
33] After considering the submissions advanced by respective
sides and after considering the material placed on record, we are of
the considered view that the petitioner No.1 in Writ Petition No.
WP.4704.17
4704/17 and petitioner in Writ Petition No. 4761/17 are not entitled for
reliefs sought in these petitions. Both the petitions are devoid of any
merits and liable to be dismissed. Accordingly, both the Writ Petitions
are dismissed. Rule stands discharged. No order as to costs.
JUDGE JUDGE.
J.
