TMI Blog2018 (2) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... tition itself that they were not sure about the authenticity and correctness of the e-mails or of the messages being circulated on the whatsapp and facebook. 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. - find merit in the submission of Mr.Chandhiok 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. on 17.01.2018 i.e. much before the circulation of the whatsapp messages containing the alleged notification. The Respondent-Institute had only published the correct result and, therefore, no reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was correct. According to the petitioners, a copy of the e-mail vide which the respondent-institute had forwarded the result notification to its branches, centres at 6.57 p.m. on 17.01.2018 was also being circulated on the facebook and other social media platform. 4. The petitioners have while annexing copy of the screenshots obtained from the facebook/website categorically admitted that they are not sure about the authenticity and correctness of the said e-mail and have got the same from the facebook. 5. The petitioners claim that upon learning that they had passed in Group I/II of the Exam, they logged on to the website of the respondent-institution in order to obtain their mark-sheets, but were shocked to see that they were all shown to have failed in their respective groups even though as per the notification being circulated on whatsapp/facebook, they had all passed. 6. It is further claimed in the petition that from subsequent messages being circulated on facebook, whatsapp and other social media, they have learnt that after the issuance of initial notification dated 17.01.2018, in which they were declared passed‟, the Respondent had sent another email at 12:0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which all the Petitioners had been declared successful had been issued by the Respondent on 17.01.2018 and circulated to all its branches, centers, member and office bearers specifically stating that it was published for general information, it was not open to the Respondent to change the result in any manner without following the procedure prescribed in Regulation 39(7) of the CA Regulations. Mr.Khemka contends that Regulation 39 is a complete code dealing with the subject Examination of Results‟ and the action of changing the result after it had been notified without giving any opportunity of hearing to the Petitioners and without following the procedure prescribed therein, was not only arbitrary, illegal and violative of principles of natural justice but also in breach of the regulations itself. At this stage, it may be appropriate to reproduce the relevant paras of the Regulation 39 on which reliance has been made by Mr.Khemka, the learned counsel for the petitioners:- 39. Examination results (1)(a) A list of candidates declared successful at each examination shall be published. (b) The names of candidates obtaining distinction in the examination sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal mark sheets are sent separately. ICAI Examination Department also sends a list of candidates who passed either group/both groups without marks of the individual candidates to its branches and the regional councils for their internal use. It is brought to notice that some mismatches had occurred in the file attached to the internal communication to the branches. The Department, realizing this mismatch, had immediately intimated the correct printing formats to branches and regional councils . 11. The second submission of Mr. Khemka is that the Petitioners have reliably learnt that after granting grace marks to the students in accordance with the Regulations, the results had been decodified and duly communicated to the branches, centers, members and office bearers of the Respondent. He submits that the power of tinkering with the result by way of moderation or otherwise, was not at all available with the Respondent, once the same had been decodified. Mr.Khemka, has placed heavy reliance on an e-mail dated 17.01.2018 sent at 2.37 p.m. by Mr.Vijay Jhalani, a Government nominated member of the Central Council of the Respondent addressed to the President of the Respondent/In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication between the departments cannot be treated as an effective order. He submits that the internal communications on which the petitioners have sought to place reliance were, even according to the petitioners sent only to the branches/centres and were not at all communicated to any of the petitioners or placed on any of the three official websites of the institute. 14. While drawing my attention to Regulation 39, he submits that there is a set procedure prescribed in the regulations according to which, the list of such candidates declared successful at each examination has to be published and every candidate has to be individually informed of his result. He therefore, submits that as per procedure, the respondent-institute only publishes its results on its three websites namely, www.icai.nic.in; www.caresults.icai.org; www.icaiexam.icai.org which websites are accessible to every student. He submits that in order to access their result, the students are required to enter their roll number and student registration number/pin. Mr.Chandhiok has handed over a copy of the e-mail exchanged between one Mr.Karthick Balakrishnan of Sify Technology Ltd. which is the service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have very conveniently and for obvious reasons stated in the petition itself that they were not sure about the authenticity and correctness of the e-mails or of the messages being circulated on the whatsapp and facebook. 16. The averments of the petitioners in this regard made in Paras 10 and 11 of the petition reads as under:- (i) The notifications containing the results are being circulated by a number of persons through whatsapp and internet and the petitioners have got a copy of the same from there only. Petitioners had checked from their respective branches and were confirmed that the Exam Notification being circulated on the Internet showing the Petitioners as having passed the above mentioned groups is correct. Copy of the relevant portions of the notification dated 17.01.2018 circulated by the Respondent Institute in respect of Delhi Centre containing the result of Petitioner No. 2 is annexed herewith as ANNEXURE P-1. Copy of the relevant portions of the notification dated 17.01.2018 circulated by the Respondent Institute in respect of Meerut, Ghaziabad, Lucknow, Jaipur and Bhopal Centre is annexed herewith as ANNEXURE P-2(COLLY.). Copy of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the correct result was published on the websites of the Respondent-Institute at 5.37 pm. on 17.01.2018 i.e. much before the circulation of the whatsapp messages containing the alleged notification. The Respondent-Institute had only published the correct result and, therefore, no reliance can be placed on the alleged notification dated 17.01.2018 in which the petitioners claim to have been declared as successful. In view of the categoric stand of the Respondent-Institute that only one result was published and that too on the three websites of the Institute, it is evident that there has been no change of any kind in the result published by the institute and in these circumstances the provisions of Regulation 39(7) are not at all attracted as the said regulation would be applicable only where the result already published is subsequently sought to be amended in any manner. It is only in a case where the published result is sought to be altered or amended and the same adversely affects a candidate has to be given an opportunity of being heard. Once I am unable to find that there has been any amendment of the result and on the other hand it is crystal clear that the result was publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very purpose of carrying out moderation and therefore in my considered view, a certain amount of discretion has to be given to the Institute to apply suitable criteria for carrying out moderation in every exam. Before I conclude, I must express my anguish at the manner in which the whatsapp and facebook posts are being circulated without any sense of responsibility. No doubt, the hopes of some students have been shattered, but unfortunately for them while the Court can only express its concern over the manner in which communications are circulated on whatsapp/facebook without any authenticity of the source thereof, the legal position does not in any manner support the petitioners who were, admittedly, found unsuccessful as per the official results declared by the respondent. It may also be noted that there is no challenge by any of the petitioners to the manner of marking used in the examination and the only ground raised by the learned counsel for the petitioners during arguments is that perhaps the petitioners were initially granted more grade marks which were then subsequently reduced. This unfortunately cannot be a ground to interfere with the final results published by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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