[CASE NUMBER] 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. [CASE NUMBER] 1] [CASE NUMBER] 1] [ENTITY] d/o [ENTITY], Aged about 18 years, Occ. Student, Resident of Gawande Lay Out, Opposite Saturna Hanuman Temple, Sai Nagar Road, Amravati, 2] [ENTITY] s/o [ENTITY], Aged about 50 years, Occupation : Service, resident of Narayanpeth, Amravati. PETITIONERS VERSUS 1] [ENTITY], through its Ministry of Health & Family Welfare, through its Director General Health Services, Nirman Bhavan, New Delhi, 2] [ENTITY], through its Director, Panchdeep Bhavan, CIG Road, New Delhi. 3] [ENTITY], through its Regional Director, Maharashtra having office at Panchdeep Bhavan, 108, MN Joshi Marg, Lower Parel, Mumbai. 4] [ENTITY], Regional Office, Uploaded on - 16/08/2017 Downloaded on - 17/08/2017 01:39:54 [CASE NUMBER] 2 ESIC, Ganeshpeth, Nagpur. RESPONDENTS Mr. [ENTITY] & Mr. [ENTITY], Advocates for petitioners. Mrs. [ENTITY], Advocate for respondent no. 1, Mrs. [ENTITY], Advocate for respondent nos. 2 to 4. 2] [CASE NUMBER] [ENTITY], Aged : 20 years, Occ. Student, R/o C/o [ENTITY], MHADA Colony, Quarter No. L-86, Akola, Tah. & Dist. Akola. PETITIONER VERSUS 1] [ENTITY], 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] [ENTITY], Regional Office, ESIC, Panchdeep Bhavan, Ganeshpeth, Nagpur. RESPONDENTS Mr. [ENTITY], Advocate for petitioners. Mrs. [ENTITY], Advocate for respondent no. 1, Mrs. [ENTITY], Advocate for respondent nos. 2 & 3. Uploaded on - 16/08/2017 Downloaded on - 17/08/2017 01:39:54 [CASE NUMBER] 3 CORAM : [ENTITY] & [ENTITY], JJ. DATED : AUGUST 10, 2017. [ENTITY] (PER [ENTITY], 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 [SECTION] of the [ACT]. 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 [CASE NUMBER] 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] of the [ACT], 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] of the [ACT] read with [SECTION] of the [ACT] was Rs.16,075/-. According to him, he has been an insured person as defined under [SECTION] of the [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 [CASE NUMBER] 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [ACT], [SECTION] defines "employee" and prescribed wage limit for being [CASE NUMBER] an employee under the said definition. [SECTION] of [ACT] 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 [ACT] 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 [CASE NUMBER] 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, [SECTION] of the [ACT] provides that the insured persons who have contributed for 78 days contribution in a contribution period as defined under [SECTION] 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 [SECTION] of the [ACT] have been breached or violated by classification of Groups.
9] The petitioners submitted that petitioner no.2 is admittedly an employee as defined in [ACT] 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.
[CASE NUMBER] 10] In [CASE NUMBER] filed by one [ENTITY], 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. [ENTITY] 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 [ENTITY] 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 [CASE NUMBER] 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 [ACT], and he/she should have been in continuous insurable employment for a minimum period of [CASE NUMBER] 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 [CASE NUMBER] 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 [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 [CASE NUMBER] no.2 [ENTITY] 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 [SECTION] of [ACT] 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [ENTITY], 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 [CASE NUMBER] 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 [ENTITY], learned Advocate for petitioners in [CASE NUMBER] and Mr. [ENTITY], learned Advocate for petitioner in [CASE NUMBER], Mrs. [ENTITY], learned Advocate for respondent no. 1 and Mrs. [ENTITY], learned Advocate for respondent nos. 2 to 4, in both the Writ Petitions. 16] Shri [ENTITY], 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 [CASE NUMBER] 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] and [SECTION] the definitions of 'employee' and 'insured persons' are defined. According to him, as per [SECTION] of the [ACT] 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 [CASE NUMBER] issuance of ward of insured persons certificate to the petitioner no.1. He, therefore, prayed that the petition be allowed. 17] Shri [ENTITY], the learned Advocate for the petitioner in [CASE NUMBER] has adopted the arguments of Shri [ENTITY]. 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. [ENTITY], 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 [SECTION] are arbitrary and discriminatory as argued by the learned Counsel for the petitioners. Both the petitions, therefore, be dismissed.
19] Mrs. [ENTITY], the learned Counsel for the Respondent No.1, has submitted that there is no merit in the petitions [CASE NUMBER] 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 [CASE NUMBER] 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 [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 [CASE NUMBER] 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.
[CASE NUMBER] 21] So far as the petitioner in [CASE NUMBER] 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 [ENTITY] 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 [SECTION] 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 [CASE NUMBER] 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 [SECTION] of the [ACT] 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 [ACT]C. Medical Education Institution reveals that insured person has to be an employee, as defined under the [ACT]. 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 [ACT], and [CASE NUMBER] 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 [CASE NUMBER] (father of petitioner no.1 [ENTITY]), was not an employee amenable to [ACT] 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 [CASE NUMBER] was not covered under [ACT] from October, 2016.
27] Till 31.12.2016, salary ceiling for being an employee under [ACT] was Rs. 15,000/- per month. It became Rs. 21,000/- per month from 01.01.2017. Thus, petitioner no.2 [ENTITY] in [CASE NUMBER] or father of petitioner - [ENTITY] in [CASE NUMBER] 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] of the [ACT], [CASE NUMBER] 1948 because of [SECTION] 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.
[CASE NUMBER] 29] Respondent ESI has pointed out that very same Authority which has formulated the rules regarding admission procedure, has also approved [SECTION], [SECTION] and [SECTION], which form part of admission procedure. The period and calculation mentioned in these illustrations also support above interpretation of [SECTION]. 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 [SECTION]. Even if any ambiguity is presumed in the language of [SECTION], 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 [SECTION] 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.
[CASE NUMBER] 31] In view of this finding, it is not necessary for us to consider the challenge raised by the petitioners on the basis of [SECTION] of the [ACT]. 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. [ENTITY] reported in AIR 1983 SC 130 and in the case of [PRECEDENT] .vs. [ENTITY] and others reported in [CASE NUMBER]. The above rulings, therefore, need not be looked into.
32] The learned Counsel for the petitioners also relied upon [SECTION] 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 [ENTITY] 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. [CASE NUMBER] 4704/17 and petitioner in [CASE NUMBER] 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.