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TMI Blog2017 (5) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reporting; (3) Cost Audit and Operational Audit. 3. According to Mr. Bindra, as per Regulation 41(2) of the ICAI Regulations of the Institute, the petitioner was granted an exemption from appearing in the Business Valuation paper in the subsequent exams/attempts. The said Regulation grants exemption to those students, who score more than 60% marks in a given paper from appearing in that paper again in their subsequent attempts. According to him, grant of this exemption to the petitioner was also recorded on the mark sheet, issued to him. He states, in view of the aforesaid Regulation the petitioner is entitled to the privilege of exemption for an unlimited time. He states, in May, 2012 an Amendment was carried out by the Institute in the Regulation 41(2) vide Cost and Works Accountants (Amendment) Regulations, 2012. 4. In the month of June, 2013 the petitioner once again appeared in the final year examination and availed the exemption from appearance from Business Valuation paper, which was granted by the Institute. In December, 2013 attempt of the final CMA examination, the petitioner was again allowed to avail the exemption from appearing in Business Valuation paper. In Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es viz exemption. Further, to ensure a smooth transition after the amendments, Regulation 41(3A) empowers the Respondent to effectuate and/or delay implementation of the Amendment. He would state, that the petitioner, contrary to his pleadings, had full knowledge of the Amendment to Regulation 41(2). In this regard, he would draw the attention of this Court to the terms and conditions printed on the Admit Card as well as to the Frequently Asked Questions (FAQs). The Admit card and the FAQs clearly and unambiguously mention the Amendment as well as the consequences thereof. In fact, the prospectus for the examination contained the rules of the Amendment which was duly signed, consented to and acknowledged by the Petitioner. Therefore, the averment of the petitioner that the respondent did not put him to notice of the Amendment is wholly misconceived, frivolous and false. It is his submission that the Rules of the Amendment were 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 before challenging the Amendment. This clearly dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of December 2011 earlier (Zero Year-which was not counted for calculating three chances), apart from three exemptions in December, 2012, June, 2013 and December, 2013. Additionally, the amendment was not applied for the term of June, 2012 since the call letters for the examination in the said term had already been dispatched to 62,670 students and applying of the amendment immediately would have created chaos. The petitioner in his rejoinder has made out a grievance as to why the said amendment was not given effect in the term of June, 2012. It is submitted that even if, an additional chance has been given to the petitioner as also to all other students, the same cannot be cause for grievance of the petitioner. It is his submission that in terms of Regulation 35, the Council is fully empowered to decide about granting exemption. In view of this, the Council had decided to grant exemption to all the students in the said term in the overall interest of all the students, who were already issued the admit card before coming into force of the Notification and all other pre-examination work was completed. 9. In so far as the submission of the petitioner that he was not informed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. He would rely upon the following judgments in support of his contention:- (i) (2009) 11 SCC 726 All India Council for Technical Education vs. Surinder Kumar Dhawan Ors.; (ii) (2015) 8 SCC 129 P. Suseela Ors. vs. University Grants Commission Ors.; (iii) 2013 SCC OnLine Guj 92 Bimal Patel, Director Anr. Vs. Pushkar Santosh Kumar Mehrotra ors. Lastly, he seeks the dismissal of the present writ petition. 11. Having considered the submissions made by the learned counsel for the parties, the only question, which arises for consideration is whether the Amendment as effected by the respondent to Regulation 41(2) whereby the respondent has limited the benefit of exemption granted with regard to the subject where a candidate has secured 60% marks for three consecutive terms immediately, would not be applicable to the petitioner, as, in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or carry forward that he shall not be entitled to the benefit of exemption or carry Provided further that the candidate shall not be entitled to the benefit of exemption or carry forward on and from the examination in which he appears for the same papers or as the case may be the exemption in which he appears after the withdrawal of the exemption or carry forward 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. On a specific query to the learned counsel for the petitioner whether the petitioner is challenging the power of the respondent to amend the Regulations; the answer was in the negative. If that be so, the issue needs to be proceeded on a premise that power exist with the respondent to amend the Regulations. 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the respondent cannot be faulted. In this regard, I would like to produce Para 23 and 24 of the Judgment of the Gujarat High Court in Bimal Patel (supra) as under:- 23. It is also settled law that a court an always take judicial notice of a valid law of the land. In the cases before us, there is no dispute that the Examination Rules of 2011 has been passed in exercise of the power of enactment by way of delegated legislation and once we find that there is no illegality in passing the said delegated legislation, we can also take note of the fact that by the said Rules which are part of Regulation framed under the Act, the earlier Rules for examination have been superseded. Therefore, when the examinations in question were held for the purpose of being promoted to the next year, the examination Rules of 2011 were very much in existence and those Rules are the only Rules applicable to the examinations in question. Such being the position, we approve the action of the University on the ground that the same is consistent with the latest Rules enacted for that purpose. 24. As regards the allegations of giving preferential treatment to some of the students by declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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