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TMI Blog2015 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... posed to be held under the election notification dated 09.09.2014 on par with the Fellow Members of the Institute. 3. The Company Secretaries Act, 1980 has been enacted to make provision for the regulation and development of the profession of Company Secretaries. Section 3(2) of the Act provides for incorporation of the Institute of Company Secretaries of India and states that the Institute shall have perpetual succession and a common seal and shall have power to acquire, hold and dispose of property movable or immovable and shall by its name sue or be sued. 4. The Company Secretaries Act, 1980 came into force w.e.f. 01.01.1981. In terms of Section 31, on commencement of the said Act the Company known as the Institute of Company Secretaries of India registered under the Companies Act, 1956 stood dissolved and as per Section 32 all the assets and liabilities of the said dissolved company stood transferred to and vested in the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980. Section 31(b) further made it clear that the right of every member to or in respect of the dissolved company shall be extinguished and thereafter no member of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(a) of the Act. 9. In exercise of the powers conferred by Section 38A(2)(a) read with Section 9(2)(a) of the Act, the Central Government made the Rules called the Company Secretaries (Election to the Council) Rules, 2006 (for short „the Rules‟). As per Rule 3 of the said Rules, the Regional Constituencies shall comprise of such States or Union Territories as listed out in Schedule 1 to the Rules and in turn Schedule 1 provides that the electorate for the purpose of election to the Council shall be constituted into four Regional Constituencies, namely, Western India Regional Constituency, Southern India Regional Constituency, Eastern India Regional Constituency and Northern India Regional Constituency comprising the States specified therein. 10. Rule 4 of the Rules provides that the election to the Council shall be held on a date to be determined by the Council which shall not be less than one month before the expiry of the term of the existing Council. Rule 5 provides for the members eligible to vote and Rule 6 read with Schedule-2 provides for preparation and publication of a list of members eligible to vote separately for each Regional Constituency. As per Rule 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every Associate or Fellow shall be entitled to vote in and stand for election to the Regional Council. Regulation 114 (1) as it stood prior to the amendment dated 26.07.2010, provided that the elections to the Regional Councils shall be held by the Council and the Regulations in Chapter IX relating to elections to the Council shall apply mutatis mutandis. In terms of the above provisions, prior to Amendment dated 26.07.2010, the Associate Members were also eligible on par with Fellow Members to vote in and stand for election to the Regional Councils. 16. However, by virtue of the Amendment dated 26.07.2010, Regulation 116 in Chapter XII was omitted. That apart, Chapters VIII and IX in entirety were omitted and there was a corresponding amendment to Regulation 114(1) to the effect that the elections to the Regional Councils shall be held by the Council and that the Company Secretaries (Election to the Council) Rules, 2006 shall apply mutatis mutandis. 17. The vires of Regulation 114(1) as substituted by Amendment dated 26.07.2010 and Rule 7 of the Rules, which provides for members who are eligible to contest, is questioned in this petition. The said provisions are reproduced here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e all the members of the Institute, i.e., both Fellow members and Associate members are eligible to cast their votes in the elections for the Regional Councils, there is no justifiable reason to disentitle the Associate members to stand for election. 21. Having heard the learned counsel for both the parties and having given our thoughtful consideration to the issues raised, we find it difficult to grant any of the reliefs sought in the petition for the following reasons: (i) The right to contest the election to the Regional Councils, being a statutory right created by the Companies Secretaries Act, 1980 and the Rules and Regulations made thereunder, it is subject to qualifications and disqualifications prescribed therein. The law in this regard is well settled and has been reiterated in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors., AIR 1952 SC 64, Jagan Nath v. Jaswant Singh & Ors. AIR 1954 SC 210, Jyoti Basu v. Debi Ghosal & Ors., (1982 ) 1 SCC 691 and Javed v. State of Haryana & Ors., (2003) 8 SCC 369, as under: "A right to elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary for at least five years or an Associate Member who possesses such qualifications or practical experience as the council may prescribe with a view to ensuring that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as Company Secretary are only entitled to be entered in the Register as Fellow Members. Thus, it is clear that the Fellow Members and Associate Members constitute two different classes. The concept of equality and equal protection under Article 14 of the Constitution of India is that persons who are in fact equals cannot be treated as unequals except where the classification is reasonable classification. In other words, the principle is that there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. Having regard to the admitted fact that the Fellow Members belong to a different class and that even according to the petitioners the Fellow Members are more experienced and knowledgeable, the impugned provisions in making only the Fellow Members eligible to stand for election to Regional Councils cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as a Company Secretary are entitled to be enrolled as Fellow Members. That being so, the elimination of the Associate Members from contesting and getting elected to the Regional Councils cannot be held to be arbitrary, unreasonable or discriminatory on any ground whatsoever. (vi) It may also be added that the Institute of Company Secretaries is a body corporate with persons holding a diploma in company secretaryship awarded by the Government of India or having other qualifications as prescribed in Section 4 of the Act as members thereof. The law is well settled that no citizen has a fundamental right under Article 19(1)(c) to become a member of a cooperative society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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