IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
GEETHA N. - PETITIONERS
Vs.
THE EMPLOYEES STATE INSURANCE CORPORATION - RESPONDENTS
WP(C).No. 28892 of 2016 (J)
Decided On : 20-09-2016
Constitution of India - Article 226 - Writ Petition - Employees State Insurance Act, 1948 - Education - Securing Admission - Ward of Insured Persons Quota - Date of enrolment in the Scheme - Held, The said stipulation is a mandatory requirement which is clear from the imperative condition that, while counting 5 year period as on 1st January of year of admission, the employee should have at least 78 days of contribution in each Contribution Period during the 5 year period.
SHAJI P. CHALY, J.
This writ petition is filed by the petitioners seeking direction to the 3rd respondent to issue certificate of "Ward of Insured Person" to the 2nd petitioner and also seeking direction to accept application of 2nd petitioner on the strength of Ext.P4 certificate and permit her to participate in the admission process for MBBS/BDS in ESI Medical Colleges against "Ward of Insured Person" quota, and for other related reliefs.
2. Facts encapsulated for disposal of the writ petition are as follows:
3. First petitioner is an insured person under Employees State Insurance Act [for short, 'ESI Act']. Second petitioner is daughter of 1st petitioner who applied for MBBS/BDS in ESI Medical Colleges against "Ward of Insured Person" quota. Ext.P4 certificate countersigned by 4th respondent Local Office of Corporation, states that necessary contributions were made for the last 5 years from 01.04.2011 to enable the 3rd respondent to issue certificate to "Ward of Insured Person" in order to submit application before the last date on 01.09.2016. However, 3rd respondent refused to issue certificate stating that date of registration of 1st petitioner is shown as 03.08.2012 in their Portal and hence 2nd petitioner cannot be issued with the certificate.
4. Ext.P4 is the certificate issued by employer and countersigned by 4th respondent showing contributions from 4/2011, and the subscriptions from 01.04.2011 paid manually by the employer is not reflected in the portal. According to petitioners, due to technical errors and lapse on the part of the respondents, 2nd petitioner is denied her right for applying for MBBS/BDS against 'Ward of Insured Quota'. It is in this background, seeking appropriate directions, this writ petition is filed.
5. Respondents have file a counter affidavit, basically contending that the respondent Corporation has started Medical Education Institutions in the country with the approval of the Central Government with respect to its admission policy, and procedure, for under-graduate MBBS/BDS Courses in the Institutions of the Corporation, providing inter alia, 'Insured Persons Quota' after allocation to "All India Quota" and the "State Government Quota". Pursuant to Ext.P1 admission policy and Ext.P2 admission notice dated 17.08.2016, applications were invited for admission of 'Wards of Insured Persons' in under graduate course (MBBS) for the academic session 2016-17 by publication.
6. The Kanikkamatha Convent English Medium Girls' Higher Secondary School in which the 1st petitioner is employed has been covered under the ESI Scheme from 08.10.2007. However, the employer challenged the coverage before the Employees Insurance Court under Sec.75 of the ESI Act and obtained stay, evident from Ext.R1 order dated 31.08.2009. The Employees' Insurance Court as per order dated 26.03.2012 in IC No. 106 of 2009 disposed of the said application upholding the coverage under the Scheme. This Court in the appeal filed by the employer, as per Ext.R1(a) order, granted interim stay against the order of the Insurance Court, on condition that the appellant employer remits the contribution due regularly as per the provisions of the ESI Act from June, 2012 onwards. Pursuant to the said order, employer of the 1st petitioner registered their employees on-line through ESIC Web Portal and also remitted contribution from June, 2012 onwards, evident from Ext.R1(b). As per the same, even though the date of appointment of the 1st petitioner was 11.06.2007, registration under the ESI Scheme was from 03.08.2012 only.
7. This Court as per judgment dated 18.07.2014 in Insurance Appeal No.53 of 2012 dismissed the appeal filed by the employer, along with other connected cases, in the judgment in 'Don Bosco Higher Secondary School v. ESIC' [2014 (4) KLT SN 89]. According to the respondents, the adjudication of dispute under Sec.75 of the ESI Act was done after impleading the employees of the employer in representative capacity in terms of the
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