Regarding appointment of director

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

07 July 2010 suppose a additional director of a public company appointed in a board meeting died .now my question is that how vacancy will be filed.who will appoint new director.

Thanks

CMA. CS. Sanjay Gupta

CMA. CS. Sanjay Gupta (Expert)
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07 July 2010 fill the vacancy caused by death of director, by passing the board resolution in a validly convened board meeting under section 262 .

File form-32 for appointment with in 30 days of BM.

262. FILLING OF CASUAL VACANCIES AMONG DIRECTORS.

(1) In the case of a public company or a private company which is a subsidiary of a public company, if the office of any director appointed by the company in general meeting is vacated before his term of office will expire in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of directors at the meeting of the Board.

(2) Any person so appointed shall hold office only up to the date up to which the director in whose place he is appointed would have held office if it had not been vacated as aforesaid.

Querist : Anonymous

Querist : Anonymous (Querist)

07 July 2010 thanks for giving me reply but as u said vacancy can be filed by BOD if director is appointed in GM but in my question director was a additional director and additional director is appointed by board in board meeting.

Asha Kanta Sharma

Asha Kanta Sharma (Expert)
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20 July 2025 Great observation — you're absolutely right to raise this nuance.

Let's clarify your query step-by-step:

📌 Situation Recap:
A public company appointed an Additional Director under Section 260 of the Companies Act, 1956 (now Section 161(1) under the Companies Act, 2013).
The Additional Director was appointed by the Board, not in a general meeting.
That Additional Director died while in office.
You're asking: How is the vacancy filled? Can the Board fill it again?
✅ Legal Interpretation (Under Companies Act, 1956)
You referenced Section 262, which applies only to directors appointed in General Meetings (i.e., elected directors). Since an Additional Director is not elected at a GM, Section 262 does NOT apply.

👉 Therefore: The vacancy of an Additional Director cannot be filled under Section 262.

🔍 So, What Can Be Done?
Since the deceased director was an Additional Director (appointed by the Board), the Board can simply appoint another Additional Director under the same authority, i.e., Section 260 (now Section 161(1)), subject to Articles of Association.

✔️ Steps to follow:

Hold a valid Board Meeting.
Pass a resolution to appoint a new Additional Director.
File Form 32 (under Companies Act, 1956) or DIR-12 (under Companies Act, 2013) within 30 days of appointment.
📝 Key Distinction:
Vacancy Type Relevant Section (CA 1956) Who Can Fill
Elected Director (Appointed in GM) Section 262 Board can fill vacancy
Additional Director (Appointed by Board) NOT under Section 262 Board can appoint new Additional Director under Section 260
🔄 Under Companies Act, 2013 (for reference):
Section 161(1) permits the Board to appoint Additional Directors.
If an Additional Director dies or resigns, the Board can appoint another one as long as authorized by the Articles of Association (AOA).
✅ Final Answer:
The Board of Directors can appoint a new Additional Director under Section 260 (CA 1956) or Section 161(1) (CA 2013) to fill the role left vacant due to the death of the previous Additional Director. Section 262 does not apply, because that only covers directors appointed by the members in general meeting.

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