JUDGMENT 1. Admission denied to a meritorious candidate who is a ward of an employee covered under the ESI Act/Scheme, for want of '78 days' contribution in one of the different contribution periods during the past 5 years by virtue of Clause '8' of Ext.P3 - Annexure I - Admission Policy, is the issue involved in this writ petition. 2. The petitioner's father is an employee of the Kerala Cashew Development Corporation having ESI coverage (Insurance No. 4801898806). The petitioner secured rank No. 10344 in the National Eligibility Cum Entrance Test (NEET for short) for the year 2013-2014 as revealed from Ext.P1. The 1st respondent Corporation has four Medical Colleges in India. Admission to the specified extent of 20% is reserved for the "Wards of the Insured Employees." Ext.P2 notification was issued on 16.08.2013 for filling up of the 162 seats of the Under Graduate Course (MBBS) under the 'ESIC Management Quota'. As per the said notification, it was stipulated that the application should be accompanied by a Certificate in 'Annexure III Form' issued by the concerned Regional Director, to the effect that the applicant is a "Ward of Insured Person". 3. Being an aspirant to have admission in the "ESIC Management Quota", the petitioner along with her father approached the 4th respondent on 28.08.2013 for getting the necessary Certificate, to the effect that the petitioner is the "Ward of the Insured person". The Certificate was refused to be given stating that, the petitioner's father had not effected 78 days' contribution, in one of the six months' wage period (between 1.4.99 and 30.9.1999) out of the total nine wage periods. According to the petitioner, her father was undergoing treatment due to sickness, availing 'Sickness benefit' during the relevant period. On moving the higher authorities, Ext.P4 application preferred by the petitioner was accepted. But her name was not considered or included in Ext.P6 provisional list published by the respondents, whereby '62' candidates alone were declared as eligible. 4. Met with the situation, the petitioner's father approached the employer and procured Exts. P7 and P8 Certificates, to the effect that he was undergoing treatment availing 'Sickness benefits' during the relevant period and hence, that the shortage of 'three' days was liable to be compensated/set off against the 'Sickness benefit' period of 25 days, which was supported by Medical Certificate. Met with the situation, the petitioner's father approached the employer and procured Exts. P7 and P8 Certificates, to the effect that he was undergoing treatment availing 'Sickness benefits' during the relevant period and hence, that the shortage of 'three' days was liable to be compensated/set off against the 'Sickness benefit' period of 25 days, which was supported by Medical Certificate. Out of the total '62' candidates, whose names were published in Ext.P6 list, '61' persons are standing behind the petitioner in the queue by virtue of lesser merits. The writ petition is filed mainly to declare that, the Medical Leave period availed between 19.04.2009 to 9.5.2009 and 30.05.2009 to 09.06.2009 is liable to be reckoned for counting the contribution period for certifying that the petitioner is a "Ward of the Insured person" and thus to consider the candidature of the petitioner accordingly. 5. A statement dated 30.09.2013 has been filed on behalf of the respondents pointing out that, the last date for receipt of the application for admission to the Management Quota was on 03.09.2013 and that counselling was conducted for allotment for Under Graduate seats on 11.09.2013. Since only '62' candidates were found eligible, as against the available 162 seats, the balance seats were surrendered to the respective State Governments by proceedings dated 13.09.2013 and 20.09.2013, in terms of Admission Procedure & Policy approved by the Central Government. Subsequently, an additional statement dated 4.10.2013 came to be filed by the respondents pointing out that, the course pursued by the respondents is strictly in conformity with the definition of the term "Insured Person" as given in the Prospectus and by virtue of the admitted position that the father of the petitioner did not have the requisite 78 days' contribution towards ESI during the relevant wage periods and that the claim of the petitioner is not liable to be entertained. It is also pointed out that, there may be several other candidates as well, who could not apply for admission in the "Management Quota" due to the non satisfaction of the relevant norms and as such, if any intervention is made, it is likely to be termed as discriminatory. It is also pointed out that, there may be several other candidates as well, who could not apply for admission in the "Management Quota" due to the non satisfaction of the relevant norms and as such, if any intervention is made, it is likely to be termed as discriminatory. It is further stated in paragraph '3' of the additional statement that, 'one' seat at ESIC Medical College -K.K. Nagar Chennai under the "ESIC Management Quota" could not be filled up on the closing date on 30.09.2013 (as insisted by the MCI guidelines) due to non joining of the particular candidate who was given admission. 6. The learned counsel for the petitioner points out that, the 3rd limb of the relevant Clause as contained in the Prospectus stipulating a minimum of 78 days' contribution during each wage period, for the past 5 years, so as to make the "Ward of the Insured person" eligible for the benefit of "Management Quota" admission, is an unconscionable one. The absence of the beneficiary employee from duty was never wilful, but because of his 'Sickness'; which stands certified as per the medical records and the factual position was accepted by the respondents, granting 'Sickness benefit' in tune with the relevant provisions of law as borne by Ext.P8. This being the position, 25 days' of absence from duty during the period between 01.04.2009 to 30.09.2009 certified by Ext.P8 is liable to be added to the actual No: of 75 days of contribution period, and as such, the petitioner ought to have been placed in the select list, much above the '61' persons out of the total '62' candidates, by virtue of the merit involved. The learned counsel further submits that, the 78 days' contribution as stipulated under Rule 55 of The Employees' State Insurance (Central) Rules, 1950 is only in respect of payment of 'Sickness benefit'. Even if the 'Sickness benefit' is not payable, still the beneficiary employee may be eligible for 'other benefits' which are payable and as such, the admission of Wards in the "Management Quota" cannot have any relevance or significance with regard to the contribution period, submits the learned counsel. It is also pointed out that, the ESI Act/Rules/Scheme is a beneficial piece of legislation, envisaged to safeguard the rights and interest of the beneficiary employees concerned, which naturally takes in the benefits payable to their dependents as well. It is also pointed out that, the ESI Act/Rules/Scheme is a beneficial piece of legislation, envisaged to safeguard the rights and interest of the beneficiary employees concerned, which naturally takes in the benefits payable to their dependents as well. The very stipulation of the Quota earmarked for the concerned employees/beneficiaries of the ESI Act/Scheme, is by way of a 'welfare measure'. By virtue of the course followed by the respondents, only '62' wards could be enlisted as eligible, as against the total No: of 162 seats available under the "Management Quota" and as a natural consequence, the remaining 100 seats came to be surrendered to the respective 'State Quota', which can never be termed as a step to promote the cause of the beneficiaries. 7. Mr. C Unnikrishnan, the learned counsel for the petitioner, besides making a reference to Section 46 of The Employees' State Insurance Act, 1948 and Rule 55 of the Rules also seeks to draw attention of this Court to Section 28 as to the 'purpose of the fund' and as to the mandate of Regulation 100 of the Employees State Insurance (General) Regulation 1950 providing power of relaxation in appropriate cases. It is also brought to the notice of this Court that, the Cashew Industry is a 'seasonal industry' and as such, continuous employment will not be available in all the calender months. It is further pointed out that, though the cut off date for closing the admission to MBBS course is already over as stipulated by the MCI (which was on 30.09.2013), the writ petition was filed much prior to that date and that the same cannot stand in the way of the petitioner, who is a 'meritorious candidate'; in view of the law declared by the Apex Court in Asha v. PT. B.D. Sharma University of Health sciences and Others (2012) 7 SCC 389 8. Mr. P. Sankarankutty Nair, learned Standing Counsel for the respondent Corporation points out that, the last date for submitting the application in the "Management Quota" was on 3.09.2013; that the counselling was completed on 11.09.2013 and that the eligible select list was published immediately thereafter. But the petitioner chose to approach this Court by filing this writ petition only on 24.09.2013, by which time the unfilled seats were surrendered by the Corporation to the respective States, in view of the relevant provisions of the Prospectus. But the petitioner chose to approach this Court by filing this writ petition only on 24.09.2013, by which time the unfilled seats were surrendered by the Corporation to the respective States, in view of the relevant provisions of the Prospectus. It is also pointed out that, there is nothing arbitrary or illegal on the part of the respondents, who have acted strictly in conformity with the provisions in the Prospectus, particularly in the light of Clause '8' and '9' of Ext.P3 - Annexure I Admission Policy, referring to the 'Wage Period' and the 'Insured Person'. 9. Ext.P2 Admission Notice issued by the respondent Corporation clearly stipulates under the head "Mechanism for filling up of ESIC Management Quota" that, the application must be accompanied by "Ward of Insured Person Certificate" issued by the concerned Regional Director in Annexure III Form. Instruction No. 5 (under the head "Other Important Instructions"), which forms part of Ext.P2, clearly stipulates that 'Insured Person' means, a person as dealt with in paragraph '8' of Annexure I. 10. In Annexure I paragraph '8' defines the term 'Insured Person' in the following terms: "8. Insured person for the purpose of availing benefit ESIC Management quota for his/her wards will be, 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 period of five 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 year period." From the above, it is clear that, three different limbs have to be satisfied and the 1st one is that, he shall be an employee as defined under the ESI Act. Section 2(9) defines the term employee as follows: "(9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and - (i) who is directly employed by the principal employer, on 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 an 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] - (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;]" 11. There is no dispute that the father of the petitioner does come within the purview of the said definition under Section 2(9)of the Act. There is no dispute that the father of the petitioner does come within the purview of the said definition under Section 2(9)of the Act. Similarly, the father of the petitioner also has been in continuous insurable employment for a period of 5 years as on 1st January of the year of admission; thus satisfying the 2nd limb. As such, the remaining question is, whether the beneficiary employee has paid at least 78 days of contribution, in each contribution period, during the period of 5 years, i.e., in respect of the 3rd limb. The particulars of the wage period and the contribution paid as discernible from Ext.P7 are extracted below: "Contribution Period Attendance 01.04.2008 to 30.09.2008 176 01.10.2008 to 31.03.2009 150 01.04.2009 to 30.09.2009 75 01.10.2009 to 31.03.2010 105 01.04.2010 to 30.09.2010 166 01.10.2010 to 31.03.2011 182 01.04.2011 to 30.09.2011 183 01.10.2011 to 31.03.2012 183 01.04.2012 to 30.09.2012 172" 12. It is seen that, only in respect of the wage period from 1.04.2009 to 30.4.2009, there occurs a deficit of '3' days. But Ext.P8 benefit payment docket issued by the Employer reveals that, the petitioner's father was given 'Sickness benefits' for the period from 30.05.2009 to 09.06.2009 and from 19.4.2009 to 9.5.2009. This clearly shows that, it was not because of any fault on the part of the petitioner's father, that he was not able to effect the contribution for the said wage period, but because of the 'Sickness' as certified and accepted by the competent authorities; which made the respondent Corporation to effect payment of 'Sickness benefit', as provided under the relevant provisions of law. 13. 13. The 'Sickness benefit' payable takes its origin from Section 46, r/w Rule 55; which are extracted below: Section 46.Benefits:- "(1) Subject to the provisions of this Act, the insured persons, [their dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to the following benefits, namely: (a) periodical payments to any insured person in case of his sickness certified by a duly appointed medical practitioner [or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf] (hereinafter referred to as sickness benefit); [(b) periodical payments to an insured woman in case of confinement or mis-carriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit);] (c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit); (d) periodical payments to such dependants of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependants' benefit); (e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit); [and] (f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person, or, where the insured person did not have a family or was not living with his family at the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as [funeral] expenses]): Provided that the amount of such payment shall not exceed [such amount as may be prescribed by the Central Government] and the claim for such payment shall be made within three months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorised by it in its behalf may allow.] (2) The Corporation may, at the request of the appropriate Government, and subject to such conditions as may be laid down in the regulations, extend the medical benefits to the family of an insured person. Rule 55. Sickness benefit:- (1) Subject to the provisions of the Act and the regulations, a person shall be qualified to claim sickness benefit for sickness occurring during any benefit period if the contributions in respect of him were payable for not less than [seventy eight days] the corresponding contribution period and shall be entitled to receive such benefit at the daily standard benefit rate for the period of his sickness. Provided that he shall not be entitled to the benefits for the first two days of sickness in the case of a spell of sickness following, at an interval of not more than fifteen days, the spell of sickness for which sickness benefits were last paid: Provided further that sickness benefits shall not be paid to any person for more than ninety one days in any two consecutive benefit periods. [provided that in case of a person who becomes an employee within the meaning of the Act for the first time and for whom a shorter contribution period of less than 156 days is available, he shall be qualified to claim sickness benefit if the contribution in respect of him were payable for not less than half the number of days available for working in such contribution period.] [(2) The daily rate of sickness benefits in respect of a person during any benefit period shall be twenty per cent more than 'the standard benefit rate' specified in Rule 54 corresponding to the average daily wages of that person during the corresponding contribution period. " Going by the Scheme of the statute, particularly being a Welfare Legislation, on establishing 'Sickness', a portion of the wages is made available to the beneficiary during the 'Sickness Period' and even in cases where 'Sickness benefit' is not payable under the relevant provisions, other eligible benefits are not liable to be denied. The reservation under the "Management Quota" for the "Ward of the Insured Person" is with a definite purpose and there is no fault or lapse on the part of the petitioner herein, whose rights to be considered in the "Management Quota", cannot be simply thrown to wind by giving a hyper-technical interpretation to the provisions contained in the Prospectus, stipulating a minimum of '78 days' contribution period', for each wage period during the past 5 years; which in fact is applicable only in respect of 'Sickness benefit' payable to the insured person. 14. A stalemate has been created because of the mechanical incorporation/reproduction of the Clause (as it appears in Rule 55) when it came to be incorporated under paragraph '8' of Annexure I in Ext.P3 Admission Policy. The consequence resulted because of such mechanical application, is quite disastrous, as evident from the instant case, whereby, the petitioner, by virtue of her merits, ought to have been placed in front of the queue, but came to be omitted so as to give way to '61' other persons who were standing far behind on merit, who were fortunate that their parent did not suffer any Sickness and came to be included in the select list out of '62' candidates declared as eligible. The remaining 100 seats admittedly could not be filled up and the same had to be surrendered to the respective States, which course has defeated the purpose of reservation provided to the "Ward of the Insured Person", intended to serve as a welfare measure to be given to the deserving lot, i.e., the beneficiaries of a welfare legislation. 15. After hearing both the sides, this Court finds that, a meritorious candidate like the petitioner ought not to have been left out and the deficit of '3' days in respect of a single wage period from 1.04.2009 to 30.09.2009, ought to have been supplemented with the days covered by Ext.P8 reckoned by the respondent/ESI Corporation for granting the 'Sickness benefit' under Section 46 of the Act r/w Rule 55 of the Rules. This Court earnestly hopes that, necessary correction/modification as to the relevant Clause in the Prospectus would be effected by the respondent Corporation from the next year onwards, so as to have clarity and transparency and to make available the desired benefit to the deserving lot. 16. With regard to the contention of the respondents that, the benefit, if at all any extended to the petitioner will lead to discrimination, in so far as several other similarly situated persons may be there, who might not have applied because of the restrictive Clause in the prospectus as it now stands, this Court does not find much pith or substance in it; for the primary reason that they have not approached this Court, projecting their cause. Regarding the alleged delay in filing the Writ Petition, it is to be noted that the Management Quota was introduced for the first time only now onwards; the last date for submitting the application in the Management Quota was only on 03.09.2013; the counselling was completed on 11.09.2013 and the select list was published only thereafter. It was only on realising that the attempt made by the petitioner to have the mistake rectified by including her name as well in the select list did not turn to be fruitful, that the petitioner approached this Court by filing this Writ Petition on 24.09.2013, i.e., much prior to the cut off date of 30.09.2013 for closing the admission. That apart, the lapses if at all any, on the part of other similarly situated candidates who are not conscious of their rights and who did not intend to challenge the relevant clause of the Prospectus but chose to remain on arm chair, cannot place any hurdle on the way of a person who is conscious of her rights and has approached this Court by filing the writ petition for immediate intervention, well before the cut off date. 17. The remaining question is whether, the 'cut off date' stipulated by the MCI for effecting admission to the MBBS Course as 30.09.2013, should non suit the petitioner by denying admission. It is true that, the last date for effecting the admission to MBBS was on '30.09.2013'. But the fact remains that, the petitioner approached this Court by filing the writ petition on '24.09.2013' and the matter was being adjourned on 5 previous occasions (from 25.09.2013 till it was finally heard on 04.10.2013). It has been made clear by the Apex Court as per the decision reported in Asha v. PT. B.D. Sharma University of Health sciences and Others (2012) 7 SCC 389 that, admission can be given in exceptional circumstances even after the cut off date, i.e., after 30.09.2013; if (a) no fault is attributable to the candidate in respect of the admission, (b) there is fault on the part of the authorities, and (c) there is violation of principles of equality and rule of merit. Applying the above principles to the given case, it is seen that, all the above three circumstance stand satisfied in the case of the petitioner and as such, the petitioner, who is a meritorious candidate (standing in front of '61' candidates out of the total '62' in the select list) shall not be left to be ruined with mere reference to fate, but the ends of justice demand that the arms of this Court be extended to save the situation. This is more so, when the respondents in their additional statement dated 4.10.2013 have conceded in paragraph '3' that, 'one' seat is available at the ESIC Medical College -K.K. Nagar, Chennai under "ESIC Management Quota", as a selected candidate could not join before the closing date of 30.09.2013. As such, by granting a positive direction to admit the petitioner against the vacancy, no prejudice whatsoever will be caused to anybody and the mistake committed in denying the chance to the meritorious candidate can be effectively rectified. It is ordered accordingly. 18. In the above circumstance, there will be a direction to the respondents to accommodate the petitioner herein for MBBS course against the available vacant seat in the ESIC Medical College - K.K. Nagar, Chennai forthwith, subject to the satisfaction of prescribed fees and such other requirements in accordance with law. The writ petition is allowed to the said extent. No cost.