2017 (5) TMI 541 - HC - Indian Laws

Entitlement for exemption from appearance in the business valuation paper for final CMA exam - Held that - The plea that the Amendment is being given a retrospective effect, is a fallacy. I agree with the submission of Mr. G.S. Chaturvedi that Amendment was notified on May 25, 2012 and the number of chances given earlier before coming into effect of the Amendment, have 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. In fact, the stand of the respondent 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, is appealing. That cannot be a cause for grievance of the petitioner, rather, he was benefitted, because, the exam of June, 2012 was not counted as an exemption. Whether the petitioner has a right to avail the benefit of exemption for unlimited terms? - Held that - The answer has to be No for more than one reason; (i) It is true that, the right of exemption has been incorporated in the Regulations. In other words, the petitioner was enjoying the benefit of the exemption, even before the impugned Amendment, in terms of the Regulations i.e. Regulation 41(2). In the absence of any challenge to the power of the respondent to amend the Regulations, which power, includes the power to limit the number of exemptions, the petitioner has no right to enjoy the benefit of exemption in perpetuity. (ii) The Amendment brought, whereby the exemption has been limited to three terms would still mean that the right of exemptions per se has not been taken away but has been limited to three terms and the benefit thereof has been given / availed by the petitioner. (iii) The objective being to improve the standard and conduct of the examination, by limiting the exemption to three terms, which is the subjective satisfaction of the concerned authority, no fault can be found with such a stipulation in the Regulation. That apart, the submission of Mr. Chaturvedi that the petitioner took advantage of the amendment and after exhausting all the three exemptions, being unsuccessful in clearing the examination has assailed the Amendment is appealing. Further the action of the respondent to limit the exemptions for three consecutive terms, i.e., December, 2012; June, 2013 and December, 2013, the same being consistent with the amendment, the action of the respondent cannot be faulted. Petition dismissed.

Summary

Issues Involved:
1. Entitlement to exemption from appearance in the Business Valuation paper.
2. Applicability of the amended Regulation 41(2) of the ICAI Regulations.
3. Retrospective effect of the amendment.
4. Notification and awareness of the amendment.
5. Validity and power of the respondent to amend the Regulations.
6. Difference between Hindi and English versions of the amendment.

Detailed Analysis:

1. Entitlement to Exemption from Appearance in the Business Valuation Paper:
The petitioner sought a writ of mandamus declaring entitlement to exemption from the Business Valuation paper for the final CMA exam conducted in June 2014. The petitioner argued that having scored more than 60% in the paper during the December 2011 exam, he was entitled to an exemption for unlimited terms as per the pre-amended Regulation 41(2). The petitioner had availed this exemption in subsequent exams until June 2014, when the exemption was revoked by the respondent, marking him “absent” in the said paper.

2. Applicability of the Amended Regulation 41(2) of the ICAI Regulations:
The respondent argued that the amendment to Regulation 41(2) limited the exemption to three consecutive terms and was applicable to the petitioner. The amendment was notified on May 25, 2012, and the petitioner was informed through various means including the Admit Card and FAQs. The court noted that the petitioner did not challenge the power of the respondent to amend the Regulations, and the amendment was applied uniformly to all candidates.

3. Retrospective Effect of the Amendment:
The petitioner contended that the amendment was being given retrospective effect. The court disagreed, stating that the amendment was notified on May 25, 2012, and did not count the number of chances given before its enforcement. The exemption was applied for the exams of December 2012, June 2013, and December 2013, and the term of June 2012 was not counted due to logistical reasons, benefitting the petitioner.

4. Notification and Awareness of the Amendment:
The respondent argued that the petitioner was aware of the amendment as it was mentioned in the Admit Card, FAQs, and the prospectus. The court found this argument convincing, noting that the petitioner had acknowledged and consented to the terms of the amendment. The court emphasized that the petitioner, after exhausting all exemptions and failing to clear the examination, challenged the amendment, which was not permissible.

5. Validity and Power of the Respondent to Amend the Regulations:
The court held that the respondent had the power to amend the Regulations under the Cost & Works Accountants Act, 1959, and the amendment aimed to maintain the standard of examinations. The petitioner’s right to exemption was not perpetual and could be limited by the respondent. The court cited previous judgments to support the validity of the amendment and the respondent’s discretion in implementing it.

6. Difference Between Hindi and English Versions of the Amendment:
The petitioner pointed out a discrepancy between the Hindi and English versions of the amendment, with the Hindi version referring to three consecutive years and the English version to three consecutive terms. The court noted that this discrepancy was irrelevant to the petitioner’s case, as the petitioner did not claim entitlement to exemption for three years instead of three terms. Therefore, the court did not delve into which version would prevail.

Conclusion:
The court dismissed the petition, holding that the petitioner was not entitled to exemption for unlimited terms and the amendment limiting the exemption to three consecutive terms was valid and applicable. The court found no merit in the petitioner’s arguments regarding retrospective effect, notification, and the discrepancy between the Hindi and English versions of the amendment.