Gurjot Kaur & Anr. vs Director General Employee State Insurance Corporation & Ors.

Dharam Chand Chaudhary, J.

Heard.,

In this writ petition, the petitioner No. 1 who is ward of petitioner No. 2 and insured under Employee State Insurance Act, 1948 is a candidate for

admission in MBBS/BDS course in the State of Himachal Pradesh against 15% ESIC special quota termed as “Insured Person (IPs) quota†in

the colleges situated in the State of Himachal Pradesh. In the State of Himachal Pradesh 30 seats are reserved for this category in Shree Lal Bahadur

Shastri Government Medical College, Ner Chowk, District Mandi.

The petitioner No. 2 was not issued the IPs of Group-I category certificate on the ground that she does not satisfy the requisite conditions. Also

that, the records qua deposit of the contribution for the period April 2014 to May 2017 has been prepared only to avail the benefits of seeking

admission in ESIC Medical College in the capacity of ward of IP (Insured Person). In the interim, following order was passed on 3.7.2018 in CMP

No. 6106 of 2018:

“In the interim on having considered the given facts and circumstances and also that petitioner No. 2, mother of petitioner No. 1, is an insured

person under the provisions of Employees State Insurance Corporation Act, 1948 and is making subscription under the scheme, therefore, subject to

final order to be passed in the writ petition, petitioner No. 1, Gurjot Kaur shall be permitted to join second round of counselling, scheduled to be held on

9th/10th July, 2018, after her registration for the course on the scheduled date i.e. 6.7.2018. She however shall not be admitted to the course, without

seeking permission from this Court. The application stands disposed of. Authenticated copy of this order be supplied to the parties.â€​

On filing of response by the respondents, the matter came to be heard further on 31.7.2018 when following order came to be passed:

“Heard for some time. The impugned order Annexure P-3 reveals that request for issuance of requisite certificate has been rejected by the

Employees’ State Insurance Corporation, the 3rd respondent on the ground that petitioner No. 2 does not satisfy the requisite condition and also

that the records seems to have been prepared only to avail the benefit for getting admission in ESIC Medical College under this category for her ward,

petitioner No. 1. The impugned order further reveals that contribution of insured person for the period from April, 2014 to May, 2017 was submitted

after three years by creating supplementary challan and the amount was realized on 19.6.2017 and 20.6.2017, respectively. The contribution from the

salary of petitioner No. 2 was being submitted on deduction from her salary during every month during this period or not is a question which needs

consideration during further course of hearing in this writ petition. There is however nothing on record to show that the contribution of her share were

being deducted from her salary regularly or not. In case it was being deducted and it is her employer Adarsh Management & Consultants, where, as

per her own case she started working perhaps on and w.e.f. 1.4.2014, who has not deposited the same.

She may have been registered with Employees’ State Insurance Corporation on 24.12.2011 while on the establishment of M/s Preet Enterprises,

Nalagarh, District Solan. However, the impugned order Annexure P-3 reveals that she was re-registered/re-entered by her employer Adarsh

Management & Consultants on 19.6.2017, but what was status of her registration w.e.f. April, 2014 till 19.6.2017 also needs clarification. Let

supplementary affidavit clarifying all these aspects be filed by the petitioners within a week. Learned counsel for the respondents also to seek

instructions in this regard. List on 7th August, 2018.â€​

Consequently, petitioner No. 2 has filed supplementary affidavit dated 7.8.2018 which reads as follow:

“That in compliance to the direction issued by this Hon’ble Court dated 31.7.2018 it is submitted that the petitioner No. 2 has been continuance

employment with Adarsh Management Consultants since April 2014 till 30.4.2018. that the salary was remitted to petitioner No. 2 by the employer

Adarsh Management Consultants in cash. However only after deducting the contribution towards employee state insurance. The above fact is

certified by the employer to the certificate annexed herewith as Annexure P-12. The employer Adarsh Management Consultants have also supplied

the copy of the e-challans as well as the salary register for the relevant period which are Annexed as P-13 and P-14 respectively. Thus the petitioner

No. 2 was under continuance employment with Adarsh Management Consultants from April 2014 up to 30.4.2018 and the contribution towards

employee state insurance was being deducted from the salary of petitioner No. 2 every month. Thus the delay if any has been on the part of the

employer as the ESI Act obligates the employer to deposit the employee state insurance contribution deducted from the salary of employee and that to

be remitted by employer with ESIC and employee has no role to play in same.â€​

In response thereto the respondents have also filed the counter affidavit reiterating that deposit of contribution late violates the provisions contained

under Section 44 of the ESI Act and as such, the certificate was rightly denied to the petitioners in terms of clause 8 of the admission notice

(Annexure P-1) issued by the ESIC.

What we could gather from the supplementary affidavit filed by the petitioners is that the employer of petitioner No. 2 had been regularly making

deduction towards ESIC contribution. It is, however, the employer i.e. Adarsh Management and Consultants failed to deposit the same further along

with its share of contribution for pretty long time i.e. up to three years. Now the employer has deposited the due and admissible amount towards the

ESIC contribution which is not disputed by the respondent also.

In view of a recent judgment rendered by the High Court of Kerala at Ernaklam in WP (c) No. 17305 of 2018, Clause 8 (a)(d) of admission notice

which debar a candidate from obtaining Ward of IP certificate and resultantly admission in ESIC Medical College for default or delayed on deposits of

contribution has been quashed and set aside. Therefore, the point in issue brought to this Court in the present petition is squarely covered by this

judgment. Since nothing to the contrary has been brought to our notice, therefore, we are also in agreement with the decision so rendered by the High

Court of Kerala.

We, therefore, quash and set aside the impugned orders Annexures P-3, P-9 and P-10 and allow the writ petition. Consequently, there shall be a

direction to the respondents to issue Grade-I ward of Insured Person (I.P.) Certificate so that the same can be produced by the petitioner No. 1

before the Counseling Committee.

Though the petitioner No. 1 was considered in second round of counseling being holder of Grade-II IP Ward certificate, however, being found to

be not in merit in this category could not be selected as stated by learned Counsel for the respondents at Bar. Learned Counsel further submits that

Mop-up round of Counseling as per amended schedule will now take place on 19th and 20th August, 2018 qua which registration will start on

16.8.2018 and will continue up to 18th August, 2018 till 5.00 P.M. Therefore, in modification of the interim order passed in this writ petition, we now

direct the respondents to allow petitioner No. 1 to appear in Mop-up round of counseling and consider her the ward of IP under Group-I category.

The writ petition is accordingly disposed of, so also the pending application(s), if any.

Authenticated copy of this judgment be supplied to learned Counsel on both sides for compliance.