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2016 DIGILAW 853 (KER)

Balachandran K. R. v. Employees State Insurance Corporation

2016-10-07

MOHAN M.SHANTANAGOUDAR, SATHISH NINAN

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JUDGMENT : Mohan M. Shantanagoudar, J. First appellant is the watchmen of an establishment covered under the Employees State Insurance Act. Second appellant is the daughter of the first appellant. The ESI Corporation is running Medical Colleges in different parts of the country and the management quota for admission to MBBS Course is for the 'Ward of Insured Person'. The insured person is defined in clause 8 of the prospectus/admission notice which is reiterated as clause 3 of Ext.P1 pre-admission notice. As per the said provision, the insured person shall be an employee as defined in the ESI Act and should have been in continuous insurable employment for a minimum period of five years as on 1st January of the year of admission and should have paid at least 78 days contribution in each contribution period. To be more precise, the said clause reads thus :- "3. Insured person for the purpose of availing benefit of Insured Persons (IPs) Quota (erstwhile ESIC Management Quota) for his/her wards shall 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 minimum 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. The 5 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 database 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. 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 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota. 4. Ward of Insured Person' will be a legitimate natural born child who is wholly dependent on the earnings of the insured person and who is - (i) receiving education, till he or she attains the age of twenty-one years, or (ii) an unmarried legitimate natural born daughter." 2. Though the first appellant has got more than five years continuous insurable employment, there is shortage of one day during the contribution period ie., 1.4.2013 to 30.9.2013, as evident from Ext.P2 produced in the writ petition. The second appellant has been qualified in the National Eligibility-cum-Entrance Test (NEET 2016) and based on the same she has applied for admission in the ward of insured persons quota. Since there was shortage of one day in one contribution period, the Ward of Insured Person Certificate was not issued to the second appellant and hence she was not included in the list of candidates eligible for admission to the ward of insured persons quota. 3. The appellants herein approached this Court in W.P(C). No. 30540 of 2016 for a direction to the first respondent to issue 'Ward of Insured Persons Certificate' to the second appellant and for a declaration that the second appellant may be admitted to UG Courses (MBBS) ESIC Medical Colleges for the academic year 2016-2017 under the Insured Persons Quota. The said writ petition came to be dismissed by the impugned judgment. Hence this writ appeal is filed. 4. We do not find any ground to interfere with the impugned order in as much as the same is just and proper in the facts and circumstances of the case. It is no doubt true that the first appellant is an employee in the records of the third respondent. It is not in dispute that the second appellant is the daughter of the first appellant. It is evident from Ext.P3 NEET result that the second appellant has become qualified to secure admission to MBBS Course. It is no doubt true that the first appellant is an employee in the records of the third respondent. It is not in dispute that the second appellant is the daughter of the first appellant. It is evident from Ext.P3 NEET result that the second appellant has become qualified to secure admission to MBBS Course. However, the respondents have denied to issue Certificate of Ward of Insured Persons, on the ground that the first appellant has contributed only for 77 days from 1.4.2013 to 30.9.2013, of the prescribed period (one day less than the prescribed period). 5. On reading the policy guidelines as mentioned supra, it is amply clear that the five year period prescribed therein was further clarified with a stipulation that the employee should have at least 78 days of paid contribution period. 6. However, the first appellant is not having the said qualification. In the case of non-availability of candidates falling within the category of ward of insured persons, all unfilled seats will go to the State quota. If this Court shows leniency in favour of one person, it will have cascading effect all over the State as well as the country. Such guidelines will have to be strictly construed in order to streamline the system. It is no doubt, true that as is clear from certain orders, this Court has taken a lenient view in one or two matters. That does not mean that such leniency should continue in future also without following the guidelines which are being followed in the entire country. In view of the same, we do not find any ground to interfere with the judgment passed by the learned Single Judge. Hence no interference is called for. The writ appeal fails and the same stands dismissed.