K.M. Joseph, J.@mdashAppellants are the respondents in the writ petition. The father of the writ petitioner is an employee of the Kerala Cashew Development Corporation. The writ petitioner secured rank No. 10344 in the National Eligibility Cum Entrance Test (NEET, in short) for the year 2013-2014. 1st appellant Employees'' State Insurance Corporation runs four Medical Colleges. 20% of the seats is reserved for wards of insured employees. As per the notification issued to fill up the seats, a certificate in Annexure-III Form issued by the concerned Regional Director to the effect that the applicant was a ward of the insured person should be obtained. The writ petitioner along with her father approached the 4th respondent on 28.08.2013 for getting such a certificate. It was refused stating that the writ petitioner''s father had not effected 78 days contribution in one of the six months wage period out of the total nine wage periods. Though the writ petitioner moved the higher authorities and it is stated, her application as such was accepted but, her name was not considered or included.
Exts.P7 and P8 certificates were obtained by the writ petitioner''s father to indicate that the writ petitioner''s father was undergoing treatment availing sickness benefits. The writ petition was filed seeking the following reliefs:
i. Declare that the medical leave period between 19/4/09 to 9/5/09 and 30/5/09 to 9/6/09 underwent by the petitioner''s father is liable to be reckoned for counting the contribution period for the sake of the Exhibit P5 Ward of Insured Person Certificate
ii. Issue a writ of Mandamus or any other writ, order or direction commanding the 1st respondent to consider the application of the petitioner and admit her for UG courses (MBBS) under ''ESIC Management Quota'' in any of the ESIC medical Colleges, taking into the consideration of her ranking in the qualifying examination, National eligibility cum entrance test for the year 2013-2014.
iii. Issue a writ of certiorari or other appropriate writ, order or direction quashing the condition for minimum 78 days period in all the six months period out of nine if it will not take into consideration the medical leave period with the ESI benefits.
Learned Single Judge allowed the writ petition. Learned Single Judge finds that a meritorious candidate like the writ petitioner ought not to have been left out and the deficit of three days in respect of a single wage period from 01.04.2009 to 30.09.2009 ought to have been supplemented with the days covered by Ext.P8 reckoned by the appellants for granting the sickness benefit u/s 46 of the Employees'' State Insurance Act, 1948 (Act, in short) read with Rule 55 of the Employees'' State Insurance (Central) Rules, 1950 (Rules, in short). He finds that a stalemate has been created because of the mechanical incorporation/reproduction of the clause as it appears in Rule 55 of the Rules. It resulted in such mechanical application, which is quite disastrous, whereby the writ petitioner who 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 her on merit. Learned Single Judge directed the appellants to accommodate the writ petitioner for MBBS course against the available vacant seat in the Employees'' State Insurance Corporation Medical College, K.K. Nagar, Chennai subsequent to the requirements being satisfied.
2. We heard the learned counsel for the appellants Sri K. Sandesh Raja and the learned Senior Counsel for the respondent/writ petitioner Sri M.R. Rajendran Nair supported by Sri C. Unnikrishnan.
3. Learned counsel for the appellants would point out that the learned Single Judge erred in granting the reliefs in a case where the condition which was prescribed for securing admission by a ward of the insured person against the 20% reservation under the prospectus was not fulfilled by her. Learned Single Judge was not persuaded to declare the provision illegal or unconstitutional. He would submit that the Corporation had only applied the law and no case is made out by departing from the normal inviolable cut off date fixed by the Apex Court and clarified in
4. Per contra, learned Senior Counsel for the writ petitioner would submit that the court may bear in mind that merit is the supreme consideration which weighs with the court in the matter of admission to medical colleges. Here is a case where the writ petitioner secured rank No. 10344. The rank of the last admitted candidate is pointed out to be 375273. He would advance arguments by alluding to the economic strata from which the writ petition is drawn. It is pointed out that writ petitioner is the daughter of a workman of the Cashew Development Corporation. He would complain that merit is buried deep by the denial of admission to the writ petitioner. He would submit that the learned Single Judge was satisfied that merit was sacrificed and justice was done and hence the appellate court may not interfere. He would submit that only because of the impossibility arising from the sickness of the writ petitioner''s father at any rate, contribution could not be paid. He drew our attention to Section 2(4) of the Act which defines ''contribution'', Section 2(9) which defines ''employee'' and Section 2(14) of the Act which defines ''insured person''. He also drew our attention to Sections 40, 42 and 73 of the Act. The sum and substance of his argument appears to be that duty is cast on the employer to deduct the contribution of the employee as also the employer''s contribution. He poses question as to when the writ petitioner''s father was sick and was paid sickness benefit, it could be expected that the contribution must be paid by the employee, viz, the writ petitioner''s father and that too when the liability is on the employer to pay the amount. He also drew our attention to Regulations 31 and 31A in support of his arguments. Learned Senior Counsel for the writ petitioner would submit that the undue delay cannot be attributed to the writ petitioner. The court was closed for Onam holidays and the writ petitioner who is drawn from a poor background filed the writ petition on 24.09.2013. Learned Senior Counsel for the writ petitioner would contend that the unjust law is no law. In this regard learned Senior Counsel drew our attention to the judgments of the Apex Court in
5. We are of the view that the appellants must succeed though we are not left undisturbed by the facts of the case. We cannot ignore the law declared by the Apex Court. The date 30.09.2013 is the cut off date which must be respected by the authorities and by the courts. As far as the superior courts are concerned, in view of the pronouncement of the law in Asha''s case (supra), it is no doubt true that the court has an element of discretion to interfere in rare or exceptional cases. The circumstances in which the court can interfere would appear to be dealt with by the Apex Court in Asha''s case (supra). The relevant paragraphs are extracted hereunder:
30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer.
31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission.
32. Though there can be the rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. (Refer Arti Sapru and others v. State of J. & K., Chavi Mehrotra v. DG, Health Services and Aravind Kumar Kankane v. State of U.P.).
33. We must hasten to add at this stage that even if these conditions are satisfied, still, the court would be called upon to decide whether the relief should or should not be granted and, if granted, should it be with or without compensation.
Therefore, on a perusal of the same, we must consider whether the conditions have been fulfilled for interfering and granting admission on a date after the cut off date. In this case, the writ petition was filed on 24.09.2013, the judgment was rendered on 07.10.2013, i.e. after the cut off date. We must straight away repel the contention of the learned Senior Counsel for the writ petitioner that the matter must be decided with reference to the date on which the writ petition was filed and, therefore, the writ petition being filed on 24.09.2013, the cut off date which was breached only on account of the time taken by the learned Single Judge to decide the matter can be ignored. We are of the view that it cannot be said that the matter was pending for a long time. The writ petition was disposed of within two weeks by the learned Single Judge and by the time learned Single Judge rendered the decision the cut off date was crossed.
6. On the pleading of the writ petitioner when she approached the authorities on 28.08.2013 for the certificates, she was told that the certificate could not be granted. Pleading in the writ petition further shows that the writ petitioner made attempts by approaching the higher authorities. The courts were closed for Onam holidays from 13.09.2013 to 20.09.2013. 21.09.2013 and 22.09.2013 were holidays. Courts reopened on 23.09.2013 and the writ petition was filed on 24.09.2013. In a matter of speaking the cause of action for writ petition arose on 28.08.2013. But even in the decision of the Apex Court, what the Apex Court would say is that the writ applicant must pursue his rights and remedies as expeditiously as possible. In this case, we cannot completely ignore the section from which the writ petitioner is drawn. She is said to be the daughter of a cashew worker and according to her, she had approached the higher authorities. No doubt, certain developments took place in the interregnum in the form of counselling being completed on 11.09.2013, provisional list was drawn up on 05.09.2013, final list published on 13.09.2013 and the vacant seats being surrendered by 20.09.2013. One of the seats though filled up, it later fell vacant as a result of one of the students not joining and it is against the said vacant seat the learned Single Judge directed that the writ petitioner be admitted. Even if we were to find that the delay is excusable, we would think that the writ petitioner has an insurmountable obstacle in the form of there being no finding as such rendered by the learned Single Judge in terms of Asha''s case (supra) that there was violation of a rule or there was an illegality committed as such by the authorities. Apart from there being no fault attributable to the writ applicant and delay not weakening the writ petition, it must be found that there was some illegality committed by the authorities.
7. It is in this regard, we find that the learned Single Judge has erred in disregarding the cut off date and granting admission. We are not entirely oblivious to the fact which is pressed before us by the learned Senior Counsel for the writ petitioner that there is a vacant seat and if that seat is filled up by the writ petitioner, nobody else would be adversely affected.
8. The question which is pertinent to note here is whether there is an illegality committed by the authorities. An ''insured person'' is defined in clause 8 of Ext.P3 prospectus as follows:
8. Insured person for the purpose of availing benefit ESIC Management Quota for his/her wards shall be, as under
The ''Insured Person'' shall be an ''employee'' as defined in the ESI Acts 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.
There is no dispute that the father of the writ petitioner was an employee as defined in the Act. There is also no challenge to the fact that the father of the writ petitioner was in continuous insurable employment for a period of five years as on 01.01.2013. The area of controversy is whether the father of the writ petitioner has paid at least 78 days contribution in each contribution period. In this regard Ext.P7 issued by the Kerala State Cashew Development Corporation Ltd. in which the writ petitioner''s father works, shows that for the contribution period 01.04.2009 to 30.09.2009 there was a shortage of attendance by 3 days. As provided in clause 8 of the prospectus there must be a contribution period for 78 days. But, in this case during 01.04.2009 to 30.09.2009, there was a shortage of three days. During that period, that is to say from 30.05.2009 to 09.06.2009 and from 19.04.2009 to 09.05.2009 the writ petitioner''s father was given sickness benefit. Sickness benefit is given by the appellant Corporation.
9. There can be no dispute that contribution being paid for 78 days during each of the contribution periods is required by the prospectus. We must remind ourselves that the said requirement is insisted upon for the grant of benefit of reservation to the ward of the insured person against 20% of the seats in the medical colleges of the appellants. It is the very basis for gaining admission against the reserved seats. We must pose the question whether the Corporation acted illegally in denying admission in accordance with the prospectus. The answer that can only be given is that there can be no illegality committed by the Corporation when it denied the admission to the writ petitioner. It is be found that the writ petitioner''s father could not be treated as an insured person under clause 8 of the prospectus. Once that is the finding which we render we are of the view that the learned Single Judge erred in granting relief as was granted.
10. We notice in this regard that one of the grounds taken in the writ petition that there was no just and reasonable reason to exclude the period of treatment underwent by the father of the writ petitioner from the contribution period. We also notice the first prayer sought is to declare that the medical leave periods were liable to be reckoned for counting the contribution period for the purpose of grant of certificate in question. We further notice that there is a writ of certiorari sought to quash the condition for minimum 78 days period in all the six months period out of nine if it will not take into consideration the medical leave period with the ESI benefits. Learned Single Judge has not granted writ of certiorari. No declaration as such has been granted. Therefore, we must proceed on the basis that the learned Single Judge was called upon to decide the matter on the basis of existing rule and the existing rule is to be found in the form of clause 8 of Ext.P3 prospectus. This is not interfered with by the learned Single Judge. Yet the learned Single Judge has granted a direction to the appellants to admit the writ petitioner. No doubt the learned Single Judge finds that 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 writ petitioner 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. We are of the view that it is a legal issue which is raised. Learned Single Judge in fact hopes that a correction or modification from the next year onwards will be made noticing the lacunae in the same. Learned Senior Counsel for the writ petitioner is correct that the courts of law are also courts of equity. However, that does not mean that when the law is clear and laid down by the Apex Court it may not be appropriate for the courts on its understanding of what is just to grant the relief contrary to the settled legal position. We are also not impressed by the contention of the learned Senior Counsel for the writ petitioner that it is an employer who must pay the contribution and since the employee who was sick was in fact in receipt of sickness benefit (paid by the Corporation) it would be asking the employee to perform an impossible act by insisting that 78 days contribution must be paid. It is the Corporation which has come up in appeal. There is no appeal filed by the writ petitioner. We are not called upon to consider whether the clause in question must be interfered with by declaration or certiorari in view of there being no appeal. Insistence of payment of contribution for 78 days in each contribution period is a requirement arrived at by the appellants for granting admission against the reservation quota. We cannot ignore the contention of the learned counsel for the appellants that contribution is fixed and payable with reference to the wages (see Rule 51 of the Rules). Even though it is contended by the learned Senior Counsel for the writ petitioner that even during the period when the employee is in receipt of sickness benefit there is an obligation to deduct contribution by the employer at least in respect of his share, we are not shown any basis for the same. At any rate, what is required under clause 8 of the prospectus is that the contribution must be paid. There is no case as such for the writ petitioner in the writ petition that despite having earned the right to have the contribution deducted and paid by the employer it was not paid by the employer. Learned Senior Counsel for the writ petitioner would also submit that even the payment by way of sickness benefit is to be treated as wages as defined in Section 2(22) of the Act which includes any payment to an employee in respect of any period of authorised leave. Learned counsel for the appellants would point out that it covers the amount paid by the employer and not by the Corporation. We notice that such a contention was not raised in the writ petition. Learned Senior Counsel for the writ petitioner would submit in this regard that no appeal was filed as he could support the judgment of the learned Single Judge. We would think that the argument may not hold good in the facts of the case as what is involved is granting of further relief which cannot be done in the absence of an appeal or cross appeal. In such circumstances, we are of the view that the writ petition ought not to have been allowed by the learned Single Judge and we allow the appeal and the judgment will stand set aside and the writ petition will stand dismissed.
Even though an oral application is made by the learned Senior Counsel for the writ petitioner for the certificate under Article 134A read with Article 133 of the Constitution of India, we are of the view that the case does not involve a substantial question of law of general importance which is to be decided by the Honourable Supreme Court. Hence leave is refused.
