Samiksha D/O Raju Dhole And ... vs Union Of India, Thr. Ministry Of ...
2017 Latest Caselaw 5821 Bom

                                                                           WP.4704.17
                                            1

              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
                                            2

           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
                                               3

      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.

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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

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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.

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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.

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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.

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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.