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Rajasthan High Court · body

2018 DIGILAW 969 (RAJ)

Ayushi Jain v. President, Institute of Chartered Accountants of India

2018-04-10

INDERJEET SINGH

body2018
JUDGMENT : INDERJEET SINGH, J. 1. The instant writ petition has been filed by the petitioner with the following prayers:- (i) the communication letter dated 13th October, 2017 (Annexure-3) sent by the respondent Institute may kindly be ordered to be quashed and set-aside. The respondents may kindly be directed to assess the copy of Paper-6 of C.A. Final Exam, May-2017 of the petitioner through the independent examiner and in case the answers of the petitioner are found to be correct as per the Suggestion Book of the Exam, the respondents may kindly be directed to award 62 marks to the petitioner in Paper-6 of C.A. Final Exam, May-2017 and she may be declared pass in the exam; (ii) any other order or direction which this Hon'ble Court deems just and proper may also be passed in the facts and circumstances of the case." 2. Counsel for the petitioner submitted that the petitioner appeared in the Chartered Accountant's Final Examination held in the month of May, 2017. Counsel further submits that the copy of Paper-6 of C.A. Final Exam was not checked properly and marks have been reduced upto the 50% by the respondents, therefore counsel prayed that her answer book may be sent of re-evaluation by an independent examiner. 3. Counsel for the respondent submits that there is no provision of re-evaluation of the answer books in the C.A. Regulations, 1988. Counsel further submits that there is an internal procedure for evaluation of the answer books by the examiner throughout the country. The procedure has been mentioned by the respondents in the reply which reads as under:- "The following steps are taken in preparing/finalizing the model solution for being sent to the examiners for the purpose of evaluation of answer books. In the first instance, the solution is prepared by the Moderator who finalises the question paper. The concerned faculty of Board of Studies, academic wing of the Institute also prepares, the solution, independently, soon after the examination of the specific paper is concluded. The solution prepared by the Moderator is given to the Head Examiner for his advance study, soon after the examination is concluded. The solution prepared independently by the faculty of Board of Studies is also sent to the Head Examiner and is asked to prepare the Model solution and Marking Scheme, taking into account the solution prepared by Moderator and the faculty of Board of Studies. The solution prepared independently by the faculty of Board of Studies is also sent to the Head Examiner and is asked to prepare the Model solution and Marking Scheme, taking into account the solution prepared by Moderator and the faculty of Board of Studies. The Model solution and marking scheme so prepared would be finalized after arriving at a consensus between the Head Examiner and the concerned faculty of Board of Studies. The model solution so finalized along with the marking scheme are sent to the examiners for the purpose of evaluation. Alternate solutions that might emerge during the process of evaluation put forth by any examiner/Head Examiner/Associate Head Examiner during review of sample answer books in the paper are also given due weightage and if need be, supplementary instructions to that effect are circulated. Detailed Instructions to examiners and Model solution along with marking scheme are sent to examiners. They are required to evaluate a sample of 20 answer books and send them to the Head Examiner/Associate Head Examiners appointed for his review. The Head Examiner/Associate Head Examiner checks whether the evaluation done by the examiner is in accordance with the Model solution and Marking scheme, instructions given and gives appropriate guidance to examiners. The examiners are required to keep in view the guidance given by the Head Examiner/Associate Head Examiner on the basis of samples answer books evaluated by the said examiner while carrying out the evaluation of the main lot of answer books assigned to him. After receipt of the evaluated answer books from the examiners, a sample of answer books is drawn from the lot evaluated by each examiner and reviewed by the Head Examiners at the Exam Department at NOIDA to see whether the evaluation has been carried out properly and to ensure that the examinees are not put to any hardship on account of subjectivity of evaluation. Deviations, if any, i.e. +/- 7 on either side beyond prescribed limits, are dealt with suitably, including rejection of initial evaluation of the entire lot of answer books evaluated by such examiners. The Head Examiners also submit a report to the Examination Committee about the quality of the question paper, question wise performance of the candidates, evaluation by each examiner etc. The Head Examiners also submit a report to the Examination Committee about the quality of the question paper, question wise performance of the candidates, evaluation by each examiner etc. Based on their report, Exam Committee takes a view under Regulation 39(2) of the CA Regulations, as per the well-established criteria, which are as under: (i) Report of the respective Head Examiner (paper wise) on the performance of the candidates as well as of the examiners on the evaluation carried out by them and views emerging during discussion on such report by the Committee. (ii) Comments of the Faculty, Board of Studies, academic wing of the Institute covering inter alia-the following aspects: (a) Whether the question paper covered the syllabus and if any, question or part thereof, was out of syllabus (b) Whether there was any ambiguity in the language or any printing mistake in any question affecting the performance of the candidates (c) Whether the question paper could be answered in the prescribed time (d) Whether the questions were of the expected level of knowledge for a particular level of examination. (iii) Representations received from the candidates, members and public on the question paper. It may be added that the system of evaluation of answer books by ICAI is a time tested and robust process, with checks and balances as fool proof as possible evolved over the last 6 decades, to ensure justice to the examinees." 4. Counsel further submits that while obtaining the answer books in terms of Clause 40 of announcement dated 13.12.2013, the petitioner has also submitted an undertaking that he will use the answer book for his own academic guidance and shall not use for any other purpose. The said undertaking submitted by the petitioner is reproduced as under:- "I hereby declare that I have read and understood the terms and conditions of the Scheme framed by the ICAI regarding providing inspection/certified copies of evaluated answer books and that I shall abide by them in letter and spirit." I am seeking inspection/certified copies of my evaluated answer books for my own academic guidance and shall not use them for any other purpose." 5. In support of his contentions, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Ran Vijay Singh & Ors. v. State of U.P. & Ors. In support of his contentions, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Ran Vijay Singh & Ors. v. State of U.P. & Ors. decided on 11.12.2017 wherein Para 30 31 & 32 has been held as under:- "30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) If a statute, Rule or Regulation governing an examination permits the reevaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; (ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate-it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate. 31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse-exclude the suspect or offending question. 32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. 32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination-whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers." 6. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of HP Public Service Commission v. Mukesh Thakur & Anr. reported in ( AIR 2010 SC 2620 ) wherein it has been held as under:- "24. The issue of re-evaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kurmarsheth etc. ( AIR 1984 SC 1543 ), wherein this Court rejected the contention that in absence of provision for reevaluation, a direction to this effect can be issued by the Court. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kurmarsheth etc. ( AIR 1984 SC 1543 ), wherein this Court rejected the contention that in absence of provision for reevaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision." 7. The contentions raised by counsel for the petitioner regarding wrong assessment of the answer book by the respondent is not acceptable for the reasons firstly there is no provisions of re-evaluation of the answer-books in the C.A. Regulations, 1988. Secondly the process for examining the sample answer-books is for internal purpose of the head examiner and thirdly the petitioner herself has submitted an undertaking that the answer-book received by her shall be used for her own academic purpose and not for any other purpose. 8. In that view of the matter, the writ petition filed by the petitioner stands dismissed.