JUDGMENT
Prabir Kumar Majumdar, J.
1. The above matters were taken up for hearing together since the subject matter of the dispute is same in all these three matters. The Matter No. 2353 of 1987 (Ajit Kumar Doshi v. Institute Company Secretaries of India and Ors.) was taken up for hearing first and the parties agreed that the order to be made in this matter will also govern the other two matters, I will deal with the first matter.
2. The petitioner in this matter is asking for a direction upon the respondents particularly the respondent No. 1 the Institute of Company Secretaries of India to enrol the petitioner as an associate member of the Institute on the basis of the application filed by him. The petitioner has also challenged in this proceeding a letter dated 16th January, 1987 whereby the petitioner’s application for enrolment as an Associate Member was rejected.
3. The Company Secretaries Act, 1980 came into force on and from January, 1981. By the said Act the Institute of Company Secretaries of India which was incorporated under the Companies Act, 1956 stood dissolved. It is further claimed by the petitioner that none the less the Company Secretaries (Qualification) Rules, 1975 dated 7th March, 1975 and a notification dated 15th May, 1975 are still operative and have not been affected by the said Company Secretaries Act, 1980. It is, therefore, claimed by the petitioner that the respondent No. 1 cannot take away the right of the petitioner to be admitted as an associate member of the Institute of Company Secretaries of India. It is also claimed by the petitioner that the petitioner’s application was pending when the said Company Secretaries Act, 1980 came into force in January, 1981. Therefore, under Section 32(4) of the said Company Secretaries Act, 1980 (hereinafter referred to as the said Act) which, inter alia, provides that if, on the commencement of this Act, any suit, appeal or other legal proceedings of whatever nature by or against the dissolved company is pending, the same shall not abate but the same may be continued or enforced by or against the institute. In the same manner and to the same extent as it would or may be continued.
4. Section 4 of the said Act, however, prescribes the qualification for entering the name in the Register.
4.(1) Any of the following persons shall be entitled to have his name entered in the Register, namely :-
(a) any person who immediately before the commencement of this Act was an Associate of a Fellow (including an Honorary Fellow) of the dissolved company ;
(b) any person who is a holder of the Diploma in Company Secretary ship awarded by the Government of India ;
(c) any person who has passed the examinations conducted by the dissolved company and has completed training either as specified by the dissolved company or as prescribed by the Council, except any such person who is not a permanent resident of India ;
(d) any person who has passed such examination and completed such training, as may be prescribed for membership of the Institute ;
(e) any person who has passed such other examination and completed such other training without India as is recognised by the Central Government or the Council as being equivalent to the examination and training prescribed under this Act for membership of the Institute.
Provided that in the case of any person belonging to any of the classes mentioned in this sub-section who is not permanently residing in India, the Central Government of the Council may impose such further conditions as it may deem to be necessary or expedient in the public interest.
(2) Every person belonging to the class mentioned in clause (a) or clause (b) of sub-section (1) shall have his name entered in the Register without the payment of any entrance fee.
(3) Every person belonging to any of the classes mentioned in clauses (c), (d) and (e) of sub-section (1) shall have his name entered in the Register on application being made and granted in the prescribed manner and on payment of prescribed entrance fee which shall not exceed four hundred rupees in any case.
(4) The Central Government may take such steps as may be necessary for the purpose of having the names of all persons belonging to the classes mentioned in clauses (a) and (b) of sub-section (1) entered in the Register at the commencement of this Act.
(5) Notwithstanding anything contained in this section, the Council may confer on any person Honorary Fellow Membership, if the Council is of the opinion that such person has made a significant contribution to the profession of Company Secretaries and thereupon the Council shall enter the name of such person in the Register but such person shall not have any voting rights in any election or meetings of the Institute and shall not also be required to pay any fee to the Institute.
5. It is, however, contended by the petitioner that though the said qualifications are prescribed in the said Act, the said Act has not affected the qualifications already prescribed in the said notification dated 15th May, 1975.
6. It has been contended on behalf of the respondents that Institute of the Company Secretaries had been dissolved and the Institute of Company Secretaries is now formed under the said Act, 1980. Under the said Act Institute “means the Institute of Company Secretaries of India constituted under this Act” and the dissolved company “means the Institute of Company Secretaries of India registered under the Companies Act”. It is the contention of the respondents that the application for enrolment as an associate member was made to the Institute of Company Secretaries constituted under the Companies Act, 1956. Sometime in February, 1975 the said application was rejected. Thereafter, the petitioner made an application again on 19th December, 1976 for renewing his prayer for enrolment as an associate member. This application was also rejected and again the petitioner made an appeal on 18th December, 1977 but the said appeal was also disposed of against the petitioner. Thereafter, the petitioner made an another appeal and the same was also followed by rejection on 9th September, 1978. Thereafter again the petitioner made an attempt to renew his prayer on 14th May, 1979 which was also turned down.
7. This writ application, as contended by the respondent, was moved on 10th June, 1989, after the commencement of the said Act. The petitioner, however, maintains that in view of the decision reported in 60 Company Cases 536 (S. P. Oberoi v. Institute), which was approved by a decision of this court (Kalyan Kumar Mukherjee v. Institute) reported in 66 Company Cases 466.
8. It appears from the facts as pointed out by the respective parties, that the petitioner made several attempts for considering his application for enrolment as an associate member from February, 1975 and every time he was unsuccessful. It is also not in dispute that there was no petition nor any appeal was pending at the time of commencement of this Act. By the said letter dated 16th January, 1987 the petitioner was only informed that erstwhile Institute which was registered under the Companies Act, 1956 stood dissolved with effect from 31st December, 1988 by the said Act. Now under the said Act, the Institute as a statutory body does not have any discretion in the admission of members except in accordance with the prevision contained in the Company Secretaries Act, 1980.
9. In my view, this letter is not a letter of rejection, it only referred to the petitioner’s letter dated 26th December, 1986 regarding rejection of the petitioner’s application for enrolment as an associate member by the dissolved company in 1978. Therefore, there is no pending lis between the petitioner and the Institute on the date of the commencement of the Act within the meaning of Section 32(4) of the said Act.
10. It also appears to me that there is an inordinate delay in presentation of the petition and there is no rational explanation of such delay except that the petitioner in view of the said decision of the Delhi High Court as also this court thought it fit to make an application for redressal of his grievance which was finally decided as far back as 1979 at the latest.
11. The rejection of the petitioner’s application for enrolment as an associate member was rejected by the dissolved company in 1978 and there-after the petitioner had not moved the Court for redressal of his grievance until this application is made. It also appears to me that the decision in those two cases do not give rise to any cause of action in favour of the petitioner. Even it will appear from those two decisions that the petitioner before Delhi High Court moved the Court immediately after rejection of his claim by the dissolved company and similarly in K. K. Mukherjee’s case the petitioner came before the Court without any inordinate delay and there the writ petitioner filed his application in September, 1980 challenging the rejection of the petitioners’ application which was conveyed to the petitioner by letter dated 10th September, 1980. Here in this case, the petitioner since the time of rejection of his application in 1978 did. not chose to move this court and did not ask for any relief against the dissolved Institute when such institute was very much in existence.
12. It has also been argued on behalf of the respondent that notification passed on 15th May, 1975 was no longer operative and Section 4 of the said Act governs the entries of the claims in the Register. According to the respondent, the petitioner did not have the prescribed qualification mentioned in Section 4 of the Act and as such he was not entitled to have his name entered in the Register as an associate member.
13. The qualification prescribed in the said notification dated 15th May, 1975 in my view cannot over-ride the statutory qualification prescribed in the said Act under Section 4 of the said Act. The respondent No. 1 is constituted under this Act and as such a statutory body. Whatever qualification prescribed under the Act the Institute will have to go by it. Further, the Company Secretaries Regulations 1982 has been framed under the said Act. There also Regulation 4 prescribes the qualification for members. The Regulation 4 of the said Company Secretaries Regulation Act, 1982 is as follows :
“4. Qualification for members:
1. Associate members : No person shall be entitled to have his name entered in the Register as an Associate, unless he-
(a) was an Associate of the dissolved company immediately before the commencement of the Act; or
(b) was admitted as an Associate under the earlier regulations; or
(c) is a holder of the Diploma in Company Secretaryship awarded by the Government of India ; or
(d) has passed the examinations conducted by the dissolved company and has completed practical training either as specified in the earlier regulations or as provided in Chapter VII of these regulations; or
(e) has passed the qualifying examinations and completed the practical training as specified in Chapter VII of these regulations; or
(f) has passed such other examination and completed such other training without India as is recognised by the Central Government or the Council as being equivalent to the examination and training as specified in Chapters VI and VII of these regulations;
(g) had registered himself as a student with the Institute of Chartered Secretaries & Administrators, London on or before 31st December, 1972 and had passed the final examination of that Institute and had either possessed the required practical experience or undergone the prescribed practical training as stipulated for candidates passing the final examination conducted by Institute ; or
(h) is an Indian citizen who is a “person resident outside India “as defined in clause (p) of Section 2 of the Foreign Exchange Regulations Act, 1973 (46 of 1973) and has become a member of the Institute of Chartered Secretaries and Administrators, London, after passing the qualifying . examination conducted by that Institute and had either possessed the required practical experience in India or abroad, or undergone the prescribed practical training as stipulated for the candidates passing the final examination conducted by the Institute.
14. Therefore, in my view, whatever qualification prescribed before the commencement of the said Act and/or framing of the said Regulations 1982 those by implication should be treated as no longer operative. For the purpose of enrolment of a member to the Institute, the concerned authority has to take into consideration the qualification prescribed in the said Regulations and also for the purpose of registration the procedure indicated in Section 4 of the said Act.
15. Therefore, even on merits I feel that the respondent No. 1 is justified in refusing to admit the petitioner to the Institute of Company Secretaries of India. Even if there is no delay in making the other two applications, the petitioner in the other two applications cannot, however, place any reliance on the said notification dated 15th May, 1975 in view of the Regulation 4 of the said Company Secretaries Regulation 1982. If the petitioner does not have the prescribed qualification under the said Act, the petitioner cannot claim any enrolment as member of the Institute.
16. In view of the aforesaid, all the said three applications are dismissed. Interim orders, if any, made in all the said three matters are hereby vacated. The Rule in all three matters are discharged. In the facts and circumstances of the case, there will be no order as to costs in each of the three matters.