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2018 (2) TMI 947

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....the petitioners had appeared in Group I/II of CA Final Examination held in November 2017. It emerges from the record that while petitioner Nos.1, 3, 4, 5, 6, 11, 20, 22 and 23 had appeared for both Group I and Group II Exams, the petitioner Nos.2, 8, 9, 12, 15 & 21 had appeared for only Group I of the Examination and Petitioner Nos.7, 10, 13, 14, 16, 17, 18 & 19 had appeared only for Group II of the Examination. 3. The Petitioners claim that on 17.01.2018 through messages on whatsapp and facebook, they learned that notifications declaring the result of the examination had been circulated by the respondent Institute to the respective Regional Councils, Branches, Centres, its office bearers and members according to which that they had all passed in Group I/II and in the case of petitioner no.23 in both the groups. It is claimed that upon getting the information through messages on whatsapp and facebook, they had contacted the respective branches of the respondent Institute and were informed that the exam notification being circulated on whatsapp/facebook showing the petitioners as having passed in their respective groups was correct. According to the petitioners, a copy of the e-mai....

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....hed to the internal communication sent to its branches and regional councils, which had inadvertently been shared outside resulting in some confusion as, the result declared vide the said internal communication was admittedly different from the actual and final result loaded on the ICAI websites (www.icai.nic.in; www.caresults.icai.org; www.icaiexam.icai.org). By placing reliance on this clarification dated 19.01.2018 issued by the Respondent, it is claimed that there was an admission on the part of Respondent that the results notified on 17.01.2018 were different from the results placed on the website of the Respondents/Institute, which according to the Petitioner was a case of changing the result without following the procedure prescribed under Regulation 39(7) of the Regulations. 8. The Petitioners further claim that though they made various representations to the Respondent, they have received no satisfactory reply and it is in these circumstances, they have approached this Court. 9. Arguing for the Petitioners, Mr.Amit Khemka, has raised three contentions. The first and foremost being that once a notification according to which all the Petitioners had been declared successfu....

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....rsely affecting the candidate shall not be initiated after the expiry of a period of one month from the date of the declaration of result." 10. Mr.Khemka contends that the issuance of the press release on 19.01.2018 by the Respondent was in itself sufficient to show that the result had been altered to the detriment of the Petitioners, though an impression is sought to be created by the Respondent that there was no error in the results declared on 17.01.2018. The relevant part of press release dated 19.01.2018 reads as under: "As per procedure, the CA Final results including marks scored by the candidates in individual subjects were hosted on the ICAI websites (www.icai.nic.in; www.caresults.icai.org; www.icaiexam.icai.org) which is accessible to every student. The students are required to enter their roll number and student registration number/PIN to access their result. The Institute also clarified that the results hosted on the websites mentioned above are error free and correct. The Institute has also clarified that the student can access and print the mark sheets from these websites through formal mark sheets are sent separately. ICAI Examination Department also sends a li....

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....nstitute on advance notice submits that the present petition is wholly misconceived and is liable to be dismissed. He submits that the entire premise on which the petition is based is fallacious as the result published on the respondents‟ website shows that there has been no change in the result by the institute at any time. He submits that the notification on which reliance is sought to be placed by learned counsel for the petitioner was not at all a notification and in fact while drawing my attention to the averments made in Para 10 and 11 of the petition by the petitioners themselves, he contends that once it is the own case of the petitioner that they are not sure about the authenticity and correctness of the mails or of the alleged notification which they claim to have obtained by way of whatsapp and posts on the facebook, they cannot even urge that the Respondent-Institute has changed the result after notifying the same. Mr.Chandhiok has placed reliance on the judgment of Seth Auto Service Station and Anr. vs. DDA & Ors., (2009) 1 SCC 180, in support of his plea that an internal communication between the departments cannot be treated as an effective order. He submits th....

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....il and the same cannot in any way alter the basic fact that the only result declared by the respondent-institute was the one which was placed on its website at 5.38 p.m. on 17.01.2018. He submits that once the regulation clearly specifies that the list of the candidates declared successful has to be published, no credence could be given to the alleged notification being circulated on the whatsapp/facebook. 15. Having considered the rival contentions of the parties, the foremost fact which emerges from the record is that there is no denial by any of the parties that the result declared on the websites of the respondent-institute has never been altered, which is not even the case of the petitioners. Thus, the only case set up by the petitioners is that a notification was purportedly issued by the institute and sent to all its councils, centres, members/office bearers as per which the petitioners had allegedly passed. It is however, interesting to note that even though the entire case of the petitioners is based on the said alleged notification, in which they claimed to have passed, the petitioners have very conveniently and for obvious reasons stated in the petition itself that they....

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....titute cannot deny that the said notifications were published. 18. In my considered opinion, merely because the alleged notification contains the term „published for general information‟ cannot lead to the conclusion that the said notification was actually published especially in view of the categoric statement by the respondent-institute that the said alleged notification was never published in any manner. It may be pertinent to note that even the learned counsel for the petitioners is unable to demonstrate the manner in which the said alleged notification was published except for reiterating that the same circulated on whatsapp/facebook. I also find merit in the submission of Mr.Chandhiok, learned senior counsel for the respondent that once it is the own case of the petitioners that the said alleged notification was sent only to their branches, centres and members, it is evident that the same was merely an internal communication in which subsequently certain mismatches were noticed and, therefore, when the final result was declared. The mismatches, if any, were rectified and only the correct result was published on the websites of the Respondent-Institute at 5.37 pm.....

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....er is communicated to the person concerned." 20. I also do not find merit in the plea raised by the learned counsel for the petitioners that the respondent ought to be directed to disclose the criteria, if any, employed by it, for carrying out moderation in the results. A perusal of the Regulation 39(2) in itself shows that the council has been granted a discretion to revise the marks obtained by the candidates in any particular paper/papers or aggregate, as may be considered necessary for maintaining the standards of passed percentage. Thus, it is evident that a discretion has been given to the Institute and, rightly so, as the criteria of moderation to be applied by the institute would necessarily depend on the overall result of the each examination and the criteria/grace marks, if any, to be granted to the students by way of moderation would vary in each examination and the same would be directly depending on the result and the pass percentage provided in the regulations. 21. The prescription of a fixed criteria for carrying out moderation would in fact be counterproductive to the very purpose of carrying out moderation and therefore in my considered view, a certain amount of ....