Bombay High Court: The present petition challenged the refusal of Respondent 2, the Institute of Actuaries of India, to issue a Certificate of Practice (‘CoP’) to its Associate Members, and also challenged the constitutional validity of Regulation 10 of the Institute of Actuaries of India (Admission as Member and Issuance of Certificate of Practice) Regulations, 2017 (‘the 2017 Regulations’). The Division Bench of B.P. Colabawalla and Firdosh P. Pooniwalla*, JJ., opined that there was nothing unreasonable or disproportionate in Regulation 10 of the 2017 Regulations making only Fellow Members, who possessed a higher qualification, eligible for a CoP as it only ensured that persons who possessed higher qualifications would be entitled to practice.
Background
Petitioner 1 was an Associate Member of Respondent 2, since 1998 and was an Associate of the Actuarial Society of India having qualified as such in 1991 and continued as an Associate Member of Respondent 2 since its formation. Petitioner 1 applied to Respondent 2 for grant of a CoP, and he received an email from the Compliance Officer of Respondent 2, that the eligibility criteria for being entitled to issuance of a CoP was mentioned in Regulation 10 of the 2017 Regulations and that only Fellow Members were entitled to get a CoP. Thus, Petitioner 1’s application was not considered. Similarly, Petitioner 2 also applied for a CoP and received a similar communication from the office of Respondent 2. Aggrieved by the same, petitioners filed the present petition.
Analysis, Law, and Decision
The Court stated that as far as entitlement to practice was concerned, Section 9 of the 2006 Act provided that no member of Respondent 2 should be entitled to practice unless he fulfilled the qualifications as might be specified and obtained a CoP from the Council. Thus, the Court opined that Section 9 clearly required fulfillment of certain qualifications and obtaining of a CoP, for a member to be entitled to practice.
The Court noted that the qualifications for obtaining the CoP were specified in Regulation 10 of the 2017 Regulations, which provided that a Fellow Member of Respondent 2 whose name was entered in the register maintained by Respondent 2 under Section 6 of the 2006 Act and who possessed the experience and the norms laid down by the Council from time to time, should be entitled to apply for a CoP under the 2017 Regulations.
The Court stated the qualifications had been stipulated by the Council in exercise of the powers vested in it by Section 56(2)(g) of the 2006 Act, which provided that the Council might make regulations providing for qualifications required for a CoP under Section 9(1) and the form in which an application might be made under Section 9(2). Thus, specific power had been given to the Council to frame Regulation 10, which prescribed the qualifications for being entitled to a CoP and permitted only a Fellow Member of Respondent 2 to apply for a CoP.
The Court noted that an Associate Member must pass only 12 papers i.e., 9 papers of the Core Technical series and 3 papers of the Core Application series. In contrast, a Fellow Member, in addition to passing these 12 papers, also must pass 2 papers from the Specialist Technical category and 1 paper from the Specialist Application category. Thus, Regulation 10 of the 2017 Regulations provided that only a Fellow Member was entitled to apply for a CoP, because he had obtained a higher qualification than an Associate Member.
The Court opined that the Council of Respondent 2, in its wisdom, thought it fit that only a Fellow Member, who possessed a higher qualification, should be entitled to apply for a CoP. The Court stated that this exercise of power did not violate any of the provisions of the 2006 Act nor was it arbitrary. The Court observed that Section 9 of the 2006 Act leaves it to the Council to provide for the qualifications, and in Regulation 10, the Council had done exactly that, i.e., only a Fellow Member, who possessed higher qualifications, was entitled to apply for a CoP.
The Court stated that the submission of petitioners that Regulation 10 was contrary to Article 14 of the Constitution could not be accepted as Regulation 10, while making a difference between Fellow Members and Associate Members and permitting only Fellow Members to apply for a CoP, had a rational nexus to the object sought to be achieved by the classification between Fellow Members and Associate Members. It was obvious that Regulation 10 permitted only Fellow Members to be entitled to apply for a CoP because Fellow Members possessed higher qualifications than Associate Members by passing additional examinations and, therefore, the Council thought it fit that only such members should be entitled to practice. Thus, there was not only an intelligible differentia between Associate Members and Fellow Members but there was a rational nexus to the object sought to be achieved by the said classification.
The Court took note of the definition of the word “Actuary” under Section 2(a) of the 2006 Act and observed that it meant a person skilled in determining the present effects of future contingent events or in finance modelling and risk analysis in different areas of insurance, or calculating the value of life interests and insurance risks, or designing and pricing of policies, working out the benefits, recommending rates relating to insurance business, annuities, insurance and pension rates based on empirically based tables and included a statistician engaged in such technology, taxation, employees’ benefits and such other risk management and investments and who was a Fellow Member of the Institute. The Court further noted that in the definition of the word “Actuary”, an Associate Member had not been included and thus, an Associate Member was not an Actuary under the 2006 Act. Therefore, when the definition of the word “Actuary” was read with the definition of the words “Certificate of Practice” as defined in Regulation 2(b) of the 2017 Regulations, it was clear that only a Fellow Member was entitled to obtain a CoP.
The Court stated that the submission that Regulation 10 of the 2017 Regulations was in contravention of Article 19(1)(g) of the Constitution as it imposed unreasonable restrictions on the fundamental rights of the petitioner, could not be accepted. The Cout opined that firstly, Associate Members were not Actuaries as defined in the 2006 Act and secondly, Regulation 10 did not prohibit any member of Respondent 2 from obtaining a CoP and it only prescribed that such a member should be a Fellow Member. Thus, any member, including an Associate Member, could, by giving the requisite examinations and by obtaining the requisite qualifications, be a Fellow Member and could apply for a CoP. The Court opined that Article 19(6)(i) of the Constitution clearly provided that nothing in Article 19(1)(g) shall affect the operation of any law in so far as it imposed reasonable restrictions on the exercise of the right conferred by Article 19(1)(g), and in particular, any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thus, Article 19(6)(i) clearly permitted the stipulation of professional or technical qualifications necessary for practicing any profession.
The Court opined that there was nothing unreasonable or disproportionate in Regulation 10 making only Fellow Members, who possessed a higher qualification, eligible for a CoP. It only ensured that persons who possessed higher qualifications would be entitled to practice. Further, Regulation 10 was not ultra vires Article 21 of the Constitution as it did not deprive any member of the Institute of his livelihood but only prescribed certain qualifications to be entitled to apply for a CoP for the purpose of practicing, which was expressly permissible under Article 19(6)(i) and thus, Regulation 10 was neither unreasonable nor disproportionate.
The Court did not accept petitioners’ submission that Regulation 10 was inconsistent with parallel provisions under the Acts and Regulations governing the professions of CA, CS, CMA. The Court stated that just because certain other enactments might have provisions which permit Associate Members to practice, it did not mean that the 2006 Act and the 2017 Regulations could not prescribe that only Fellow Members, who have higher qualifications, should be entitled to practice as Actuaries. Each legislation had to be examined on its own merits, and it would not be correct to compare legislations.
The Court thus dismissed the petition as there was no merit in the challenge of petitioners to Regulation 10 of the 2017 Regulations.
[Divvela Ramaiah v. Union of India, 2024 SCC OnLine Bom 2527, decided on 06-08-2024]
*Judgment authored by: Justice Firdosh P. Pooniwalla
Advocates who appeared in this case :
For the Petitioners: Atharva A. Date a/w S. S. Bedekar, Advocate
For the Respondents: Rajeev N. Kumar [Through VC] a/w Neeraj Shekhar a/w Amey Kanse, Advocate
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