Ashish Middha v. Institute of Company Secretaries of India

SANJIV KHANNA, J FEBRUARY 08, 2011 sv

* IN THE HIGH COURT OF DELHI AT NEW DELHI 23. Date of decision: 8th February, 2011 + W.P.(C) 4670/2010 ASHISH MIDDHA ..... Petitioner Through: Petitioner in person. versus INSTITUTE OF COMPANY SECRETARIES OF INDIA ..... Respondents Through: Mr.Sandeep Sethi, Sr. Advocate with Mr.R.D.Makheeja, Advocate for R-1. Mr.A.S.Chandhiok, ASG with Mr.Sachin Datta, Mr.Bhagat Singh, and Mr.Manikya Khanna, Advocates for Union of India. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for declaring clause (iv) of the proviso to Rule 7 of Company Secretaries (Election of Council) Rules, 2006 (hereinafter referred to as "2006 Rules") as ultra vires and further to issue a writ of mandamus commanding the respondents not to hold the election of the council scheduled for December, 2010. 2. Bereft of unnecessary details, the facts which are imperative to be exposited for adjudication of the writ petition are that the respondent institute, namely, Institute of Company Secretaries of India, is managed by a Council and it was earlier governed by the provisions contained under the Company Secretaries Act, 1982 (for short "the Act") and the Regulations framed thereunder. Certain amendments were inserted in the statute by the Company Secretaries (Amendment) Act, 2006. After the amendments in the Act were brought by the Parliament, a set of Rules, namely, the Company Secretaries (Election to the Council) Rules, 2006 (for brevity, "the 2006 Rules") were framed and it came into force w.e.f. 5th September, 2006. After the rules came into force, certain amendments were carried out in the 1982 Regulations. The significant Regulation that was obliterated on 26th July, 2010 was Regulation No. 58 (3) that provided the entitlement of a member to contest the election. 3. It is contended in the petition that clause (iv) of the proviso to Rule 7 is ultra vires the Act as it travels beyond the language employed in the enactment. A stand is also taken that by virtue of introduction of such a Rule, arbitrariness has crept in for the reason that certain members who enjoyed the benefits of membership in the Central Council before the amendment of 2006 came into force, can still be allowed further two consecutive terms. 4. Counter affidavits have been filed by the Union of India as well as by the Institute stating, inter alia, that the Rule neither suffers from the vice of incompatibility nor does it transgress the provisions in the Act. It is also urged that it does not remotely smack of any kind of arbitrariness and hence, the second limb of Article 14 of the Constitution of India is not attracted. 5. We have heard Mr.Midha, the petitioner in person, Mr.A.S. Chandhiok, learned Additional Solicitor General for the Union of India, and Mr.Sandeep Sethi, learned senior counsel along with Mr.R.D. Makheeja for the respondent-institute. 6. The singular question that emanates for consideration is whether the relevant Rule is ultra vires the provision of the Act or plays foul of Article 14 of the Constitution. Section 9 of the Act deals with the constitution of the Council of the Institute. Sub-section (2) provides for what will be the composition of the Council. The said provision reads as follows: "9. Constitution of the Council of the Institute. - (1) xxx (2) The Council shall be composed of the following persons, namely:- (a) not more than fifteen persons elected by the members of the Institute, from amongst the Fellows of the Institute chosen in such manner and from such regional constituencies as may be specified: Provided that a Fellow of the Institute, who has been found guilty of any professional or other misconduct and whose name