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TMI Blog1984 (7) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... y of persons who are entitled to have their names entered in the register of members. The said article provides as under : "4. Any of the following persons shall be entitled to have his name entered in the register, viz .: ( i )any person who is a holder of Government Diploma in Company Secretaryship awarded by the Government of India; ( ii )any person who at the time of incorporation of this Institute is engaged in the service of the Secretarial Department of an established organisation even though does not possess the normal requisite qualification to be registered as a Member of the Institute and fulfils such conditions as the Council may specify with the approval of the Central Government; ( iii )any person who has passed such examination and completed such training as may be prescribed by the Institute; ( iv )any person who has passed such other examination and completed such other training without India as is recognised by the Government of India as equivalent to the examination and training prescribed for the Members of this Institute : Provided that in the case of any person who is not a permanent resident of India, the Institute may impose such other condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b )any person who on August 1, 1972, was working as secretary of a public limited company (including a company deemed to be a public limited company under the Companies (Amendment) Act, 1974, and continues to hold that position on the date of application, AND possesses one or more of the following qualifications: ( i )degree in law granted by a recognised university including barrister-at-law ; ( ii )membership of the Institute of Cost and Works Accountants of India constituted under the Cost and Works Accountants Act, 1959 ; ( iii )post-graduate degree or diploma in management science granted by a recognised university or the Indian Institute of Management, Ahmedabad, Bangalore or Calcutta; ( iv )post-graduate degree in commerce granted by a recognised university; ( v )membership of the Institute of Chartered Accountants of India constituted under the Chartered Accountants Act, 1949 ; ( vi )any other qualification recognised by the Council for this purpose as equivalent to post graduate degree or diploma in law, management sciences or commerce. Note : The Council has since recognised the following qualifications for purposes of clause ( vi ) above provided s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the decisions of the Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, and Som Prakash Rekhi v. Union of India [1980] 57 FJR 370; [1981] 51 Comp. Cas. 71 (SC), it may not be open to the respondents to take the above objection. Another objection taken is that the Institute is not a statutory authority and, therefore, it is under no statutory obligation to admit the petitioner as an associate member. I shall deal with this contention a little later. On merits, Mr. Saharya contended that since the petitioner did not in the opinion of the executive committee possess sufficient practical experience to be considered for direct enrolment as an associate member of the Institute, his application was rightly rejected. Mr. Saharya during the hearing of the petition filed some documents to show that the executive committee in its meeting held on August 27, 1975, had taken a decision to admit those applicants as members who were working as secretary from August 1, 1972, and continued to be the secretary of the company having paid-up capital of Rs. 25 lakhs or more and possessed qualifications as given in the notification dated May 15, 1975, and the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : "The Council considered the decision taken at the executive committee meeting held on May 15, 1975, and after discussion approved the amendment to regulations 6( c ) and 6( d ) as recommended by the executive committee. In this connection, the Council approved the procedures followed by the Secretary as under: ( a )applications for Associate Membership not strictly falling within notification issued by the Institute on May 15, 1975, will be rejected by the secretary; however, marginal cases may be withheld by the secretary at his discretion to be placed before the committee at its next meeting. ( b )When there is an appeal against the decision of the secretary in any particuler case, he will place the appeal for consideration at the next executive committee." The above resolution shows that the Council had decided that the applications which did not strictly fall within the notification dated May 15, 1975, shall be rejected and the marginal cases may be withheld by the secretary to be placed before the committee. The Council had not in any way modified the notification dated May 15, 1975. The next resolution pointed out by Mr. Saharya is dated August 27, 1975, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the petitioner was considered in the light of the above criteria laid down by the President and his application was rejected as it was considered that he did not possess sufficient experience. I find that in clause ( b ) of the notification there is no requirement of any experience of secretarial work for enrolment as a member of the Institute. As already stated, the only two conditions laid down are that an applicant must be working as a secretary of a public limited company on August 1, 1972, and, secondly, he should possess the academic qualification laid down therein. An examination of section 383A (introduced by the amending Act XLI 1974) shows that sub-section (1) makes it obligatory that every company having a paid-up capital of Rs. 25 lakhs or more is to have a whole-time secretary. The effect of this provision read with the definition of the expression "secretary" in section 2(45) is that a company having a paid-up share capital of Rs. 25 lakhs or more has to have a wholetime secretary and the secretary is to possess the prescribed qualifications. There is no statutory compulsion regarding the appointment of secretaries in the other companies but from the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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