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Milind Agarwal And Others Versus The Institute of Chartered Accountants of India

2018 (2) TMI 947 - DELHI HIGH COURT

Appeal against Chartered Accountants Final Examination result - petitioners are aggrieved by the result declared and published on its website by the respondent-institute wherein all of them have failed in their respective Groups - credence given to the alleged notification being circulated on the whatsapp/facebook declreing the petitioners as passed - Held that:- 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 websi .....

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itioners 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. - 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 al .....

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ct 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. No ground to interfere with the final results published by the respondent on its websites. - .....

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ared and published on its website by the respondent-institute wherein all of them have failed in their respective Groups. Vide the present petition under Article 226 of the Constitution of India, the petitioners have prayed for summoning of the records of the respondent including tabulations in the codified and de-codified form based on which the result of the aforesaid examination was sent to their Regional Council and branches of the institute. 2. The brief facts as set out in the petition are .....

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pp 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 .....

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ebook/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 what .....

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that as the Respondent uses the system of codification in the examination whereby answer-sheets are given unique codes, the results are first tabulated in the codified format and grace marks, if any, are added thereto for the purpose of moderation in accordance with provision of Regulation 39 (2) of the Chartered Accountants Regulation 1988 (hereinafter referred to as Regulations) and it is only thereafter that the decoding is done and the result connected to a particular student/examinee which .....

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ome mismatch had occurred in the file containing the list of successful candidates attached 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 1 .....

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o 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 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 Re .....

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ce 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 shall be indicated in the list. (c) Every candidate shall be individually informed of his re .....

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ed by the Council. (7) In any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other matter, of whatever nature, the Council shall have the power to amend such result, in such manner as shall be in accordance with the true position and to make such declaration as the Council shall consider necessary in that behalf: PROVIDED that no such amendment shall be made which adversely affects a candidate, without giving him an op .....

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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 registrat .....

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ternal 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 .....

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query as to whether any result once decodified could be reviewed and sent for change again. He submits that this vital query raised by the Government nominated member has remained unanswered clearly showing that the Respondent had acted de hors the regulations and in blatant violation of principles of natural justice. 12. The last submission of Mr.Khemka, is that despite repeated requests made by the petitioners, the Respondent has not disclosed the criteria adopted for moderation of the result .....

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a for moderation is disclosed, the method of moderation will become arbitrary and will depend on the whims and fancies of the Respondent/Institute. 13. On the other hand, Mr.Chandhiok, learned senior counsel appearing on behalf of the Respondent-Institute 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 .....

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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 that the internal communications on which the petit .....

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dually 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 Balakris .....

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e petitioners and other students were always well aware that only the result notified on the three websites was the official result and no reliance could be placed on any alleged screenshot circulated on whatsapp and facebook. He submits that there was never any error in the result declared by the respondent, and therefore, the plea of the petitioners that there was a change in the result without following the procedure prescribed under Regulation 39(7) is wholly misconceived. While responding t .....

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bsite 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 .....

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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 .....

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stitute in respect of Meerut, Ghaziabad, Lucknow, Jaipur and Bhopal Centre is annexed herewith as ANNEXURE P-2(COLLY.). Copy of the relevant portions of the notification dated 17.01.2018 circulated by the Respondent Institute in respect of Mumbai, Pune, Nagpur, Dhule and Vasai Centre is annexed herewith as ANNEXURE P-3. (ii) That it would not be out of place to mention here that it is also being circulated on Facebook, whatsapp and other social media platforms that the Results‟ (annexed as .....

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in view of the admitted fact that there is a said procedure prescribed in the regulation, is whether the alleged notification was ever published on any of the websites of the respondent or in any manner communicated to the petitioners. The only plea raised by Mr.Khemka, learned counsel for the petitioners is that once the alleged notifications record that they are being published for General Information , the respondent-institute cannot deny that the said notifications were published. 18. In my .....

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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, i .....

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itute 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 .....

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my conclusion by the observations of the Supreme Court in Sethi Auto Service Station and another v. Delhi Development Authority and others (2009) 1 SCC in which the Supreme Court has made a distinction between internal communications and final communications made to the public by the decision making authority. Paragraph 14 of the aforesaid decision reads as under:- It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an of .....

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d the final order 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 neces .....

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