CMA-Writ against 3 years exemption withdrawal in cost accountancy exam dismissed. Amendment to ICMAI Regulation 41(2) not retrospective-High Court
ABCAUS Case Law Citation:
ABCAUS 1146 (2017) (02) HC
Important Case Laws Cited/relied upon:
All India Council for Technical Education vs. Surinder Kumar Dhawan & Ors. (2009) 11 SCC 726
P. Suseela & Ors. vs. University Grants Commission & Ors.(2015) 8 SCC 129
Bimal Patel, Director & Anr. Vs. Pushkar Santosh Kumar Mehrotra & ors. 2013 SCC OnLine Guj 92
Brief Facts of the Case:
In 2010, after completing the intermediate stage of Cost & Management Accountancy (“CMA‟) Course, the writ petitioner had registered with the Institute of Cost Accountants of India (“institute”) as a final year student of the CMA Course under old syllabus of 2008, and was allotted a registration number.
In the month of December of 2011, the petitioner appeared in the final year examination conducted by the Institute and scored more than 60% marks in the Business Valuation paper of Group IV but could not clear the other papers in the same group being; (i) Management Accounting & Enterprise Performance Management, (2) Advance Financial Accounting and Reporting; (3) Cost Audit and Operational Audit.
As per Regulation 41(2) of the Institute, exemption is granted to those students, who score more than 60% marks in a given paper from appearing in that paper again in their subsequent attempts. Accordingly, the petitioner was also granted an exemption from appearing in the Business Valuation paper in the subsequent exams/attempts. This grant of this exemption to the petitioner was also recorded on the mark sheet, issued to him.
The petitioner appeared in the final year examinations held in June-2013, December-2013 and availed the exemption from appearance from Business Valuation paper. However, in June, 2014 the petitioner again appeared in the final CMA examination but the Institute revoked the exemption granted to the petitioner and marked him “absent” in the said paper.
When the petitioner enquired about the revocation of the exemption, he was informed that as per the amendment made in May-2012 to the Regulation 41(2), each student was allowed to take benefit of exemption from appearance in an examination passed by him earlier for three consecutive terms alone and not thereafter.
Defense of the Respondent Institute:
It was submitted that the legislature has empowered the Institute with discretionary powers to make rules and implement them in order to achieve its objectives. In particular, Regulation 35(3) empowers the council to provide guidelines viz exemption.
It was contended that the that the petitioner, contrary to his pleadings, had full knowledge of the Amendment to Regulation 41(2). The attention was drawn to the terms and conditions printed on the Admit Card as well as to the Frequently Asked Questions (FAQs) which clearly and unambiguously mention the Amendment as well as the consequences thereof. Also, the prospectus for the examination which contained the rules of the Amendment had been duly signed, consented to and acknowledged by the Petitioner.
It was submitted that the amendment was made uniformly applicable to all candidates including the ones appearing with the Petitioner. The petitioner did not challenge the Amendment in 2012 and waited to exhaust all his chances to appear in the exam and challenged the amendment on being unsuccessful in clearing the examination.
Regarding the contention of the petitioner that the amendment was being given retrospective effect, it was stated that the claim was also incorrect since the number of chances, given to the petitioner earlier before coming into force of the amendment on May 25, 2012, had not been taken into account.
It was stated that there would have been 150 students, who would have passed had exemption continued in June, 2014. However, none, except the petitioner, has challenged the carrying out of the amendment. They had appeared in the subsequent examination of December, 2014 and 111 out of 150 passed the same. As such, no special treatment could be given to the petitioner, different from other students.
Observations made by the High Court:
The Hon’ble High Court noted that on a specific query whether the petitioner was challenging the power of the Institute to amend the Regulations; the answer was in the negative.
The Hon’ble Court observed that the plea that the Amendment was being given a retrospective effect, was a fallacy.
It was observed that the amendment was notified on May 25, 2012 and the number of chances given earlier before coming into effect of the Amendment, had not been taken into account. The Amendment was not applied for the term of June, 2012. The three exemptions granted were for the exams of December 2012, June 2013 and December 2013. The plea of the petitioner that Amendment was not given effect to the examination of June, 2012 would not mean that the cases like that of the petitioner were not covered under the Amendment.
The Hon’ble High Court was convinced with the stand of the Institute that Amendment was not applied for the examination of June, 2012 as the call letters for the examination in the said term had already been dispatched to 62,670 students and applying the Amendment immediately would have created chaos. In fact the petitioner was benefitted, because, the exam of June, 2012 was not counted as an exemption.
Regarding the plea of the petitioner that there was a difference in the Hindi and English version of the amendment the Court noted that the Hindi version read as under:-
Whereas the English version of the Amendment read as under;-
“Provided also that any benefit of exemption or carry forward shall be available to a student for three consecutive terms immediately succeeding the term, in which such exemption or carry forward has accrued.”
The Hon’ble Court noted that an apparent reading of the Hindi and English version of the regulation showed they were at variance, inasmuch as the Hindi version referred to the exemption being applicable to three consecutive years, whereas the English version depicts, the same is applicable to three consecutive terms. However, the Court opined that in any case, the said plea would be of no help to the petitioner, inasmuch as it was not the case of the petitioner that he was entitled to the benefit of exemption for a period of three years and not three consecutive terms.
The writ petition was dismissed.