company law

Aadish Jain (Querist) 05 March 2008 This query is : Resolved
if a person who is not the member of icsi than can he appointed as company secratary in a company who's paid up share capital is 1.5 crore

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Prakash Yedhula (Expert) 06 March 2008
The Government in the Department of Company Affairs (DCA) has issued a notification amending the Companies (Appointment and Qualifications of Secretary) Rules, 1988 to relax the provisions governing appointment of whole-time Company Secretaries in companies with immediate effect. Accordingly, it becomes mandatory for companies with a paid up capital of Rs. 2 crores and above to appoint a whole-time Company Secretaries against the existing provisions requiring whole time Company Secretaries in companies with a paid up capital of Rs. 50 lakhs and above.

The notification has been issued under clauses (a) and (b) of sub-section (1) of Section 642 read with Section 383 A of the Companies Act, 1956.

This is the third amendment effected in the Companies (Appointment and Qualifications of Secretary) Rules, first promulgated in 1988, followed by amendment in April 1993 when the paid up capital was raised from Rs. 25 lakhs to Rs. 50 lakhs in Companies for mandatory appointment of whole-time qualified Company Secretaries.

Prakash Yedhula (Expert) 06 March 2008
Companies (Appointment and Qualifications of Secretary) Rules, 1988

In exercise of the powers conferred by clauses (a) and (b) of section 642 read with clause (45) of section 2 and section 383A of the Companies Act, 1956 (1 of 1956), and in supersession of the Companies (Secretary's Qualifications) Rules, 1975, the Central Government hereby makes the following Rules, namely :
1.
Short title and commencement -
(1) These rules may be called the Companies (Appointment and Qualifications of Secretary) Rules, 1988.
(2) It shall come into force on the 1st day of December, 1988.
2.
Appointment, etc., of whole-time secretary -
(1) Every company having a paid-up share capital of not less than rupees fifty lakhs shall have a whole-time secretary.
(2) No person shall be appointed as whole-time secretary under sub-rule (1) unless he is a member of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980).
(3) A company having a paid-up share capital of less than rupees fifty lakhs may appoint any individual as its whole-time secretary to perform the duties of a secretary under the Companies Act, 1956, and any other ministerial or administrative duties :
Provided that no individual shall be eligible to be so appointed unless he possesses one or more of the qualifications specified in sub-rule (4).
(4) No individual shall be appointed as secretary pursuant to sub-rule (3) unless he possesses any one or more of the following qualifications, namely :-
(i) membership of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980) ;
(ii) pass in the Intermediate examination conducted either by the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (No. 56 of 1980), or by the earlier Institute of Company Secretaries of India incorporated on 4th October, 1968, under the Companies Act, 1956 (1 of 1956), and licensed under section 25 of that Act ;
(iii) Post-graduate degree in commerce or corporate secretary ship granted by any university in India ;
(iv) degree in law granted by any university ;
(v) membership of the Institute of Chartered Accountants of India constituted under the Chartered Accountants Act, 1949 (38 of 1949) ;
(vi) membership of the Institute of Cost and Works Accountants of India
constituted under the Cost and Works Accountants Act, 1959 (23 of 1959) ;
(vii) post-graduate degree or diploma in management sciences, granted by any university, or the Institutes of Management, Ahmedabad, Calcutta, Bangalore or Lucknow ;
(viii) post-graduate diploma in company secretary ship granted by the Institute of Commercial Practice under the Delhi Administration or Diploma in Corporate Laws and Management granted by the Indian Law Institute, New Delhi ;
(ix) post-graduate diploma in company law and secretarial practice granted by the University of Udaipur; or
(x) membership of the Association of Secretaries and Managers, Calcutta, registered under the West Bengal Registration of Societies Act, 1961 (XXVI of 1961) :
Provided that where the paid-up share capital of such company is increased to rupees twenty-five lakhs or more, the company shall, within a period of oneyear from the date of such increase, comply with the provisions of sub-rules (1) and (2) of rule 2.
Explanation - In this rule, "University" has the meaning assigned to it in the University Grants Commission Act, 1956 (No. 3 of 1956), and includes any university outside India which is recognised by the Union Public Service Commission for the purposes of recruitment to public services and posts in connection with the affairs of the Union or of any State.
3.
Provisions relating to existing secretaries -
Notwithstanding contained in sub-rules (1) and (2) of rule 2, the qualifications possessed by a person holding the office of whole-time secretary of a company immediately before 30th October, 1980, in terms of the