Gujarat High Court
Shubham Pradeep Tulsian vs Institute Of Chartered Accountants Of ... on 10 February, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/16912/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16912 of 2019
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SHUBHAM PRADEEP TULSIAN
Versus
INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
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Appearance:
MR RUTVIJ M BHATT(2697) for the Petitioner(s) No. 1,2
MR.S.N.SOPARKAR, SR.ADVOCATE with MR.B.S.
SOPARKAR(6851) for the Respondent(s) No. 1,2
MR KV SHELAT(834) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 4
RULE UNSERVED(68) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 10/02/2020
ORAL ORDER
1. This petition is filed under Article-226 of the Constitution of India for following reliefs, which are as under:
"35a. That this Hon'ble Court may be pleased to issue a writ of Mandamus or writ in nature of Mandamus or any other appropriate writ, direction or order under article 226 of the Constitution of India be pleased to Call for the answer paper and thereafter be pleased to direct the respondent no:1 to declare the result and are eligible for all the rights of getting copy of papers and reverification of papers or all such rights as they were available if the result would have been declared on 13th August, 2019 and declare that the petitioners are entitled to admission m CA Intermediate Course commencing in from August-2019;
35b. That pending admission, hearing and final disposal of this petition, your lordships be pleased to direct the Page 1 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER respondent no:1 to declare the result of the petitioners for CA Foundation Exams and if declared pass then direct the respondent no:1 to immediately enrol the petitioner without any further delay in CA Intermediate Course wef from 13'"
August, 2019;"
2. Learned Advocate for the petitioners submitted that the petitioners who are students of Higher Secondary (XII Standard) were desirous to pursue their Provisional career as Chartered Accountant (C.A.) and had therefore, applied for Foundation Course of C.A. offered by respondent No.1. It is the case of the petitioners that when the petitioners applied for joining Foundation Course, the petitioners were eligible for appearing in the examination of C.A. Foundation Course and when results of C.A. Foundation Course was declared. At that time, the petitioners had cleared their XII standard Board examination, which is pre-requisite for getting their results declared for C.A. Foundation Course examination. It is the case of the petitioners that action of the respondents in withholding the results of the petitioners after they appeared in examination as illegal action and therefore, prayed for quash and set aside the communication dated 17th August, 2019.
3. Learned Advocate for the petitioners submitted that the petitioners as per the criteria and guidelines, the petitioners have appeared and passed in 12th standard exams in March- 2019 fulfilling the basic criteria of eligibility as communication and instructions of the respondent no 1 appearing in CA Foundation exams. As per the principal of Rule of estoppal, the petitioners were under bonaflde apprehension that they are eligible for appearing in the CA foundation Exam. It is submitted that the decision of respondent no:1 is hyper technical and harsh since on one Page 2 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER hand the students are allowed to appear in examination conducted in June -2019 (By various e-mail giving instructions and guidelines to appear in June,2019) and then after only on account of one day difference the student is denied of result. The said action of the respondent no:1 is completely arbitrary.
4. It is further submitted that the petitioners had applied for registration on 26th December, 2018 for C.A. Foundation Course, while they were students of XII standard Board. The petitioners had submitted all the necessary documents to establish themselves as students of XII Board and therefore, eligible to take admission in the C.A. Foundation Course. It is submitted that the respondent No.1 - Institute considering all the documents, issued Provisional Admission. It is submitted that the petitioners who are students, were live in contact with the respondent No.1 and as per the instruction of the respondent No.1, have furnished them their documents. Respondent No.1 once having accepted such documents and provided the Provisional Admission, meaning thereby the respondent No.1 has accepted the petitioners in their present status as eligible candidates and therefore, now on mere higher technical interpretation, once the petitioners were permitted to give their attempt, therefore, results cannot be withheld. It is submitted that the respondent No.1 is sensitive to the career of the petitioners and therefore, this Court by order dated 22-10-2019 to protect the interest of the petitioners as even permitted the petitioners to appear in the November, 2019 examination.
5. Learned Advocate for the petitioners submitted that during the course of arguments that the petitioners have now given two attempts held in May, 2019 and November, 2019. May, 2019 results should be declared before the Court without being disclosed to the petitioners and if the petitioners are Page 3 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER not passing in the said examination, then there is no question for the petitioners to pursue the results of May, 2019 examination, but would therefore, fall back on the results of the November, 2019 examination.
6. Learned Advocate for the respondents opposes to the petition by relying upon the Affidavit in reply filed on behalf of the respondent Nos.1, 2 and 5. It is contended that vide letter dated 17-08-2019 and further Email dated 21-08-2019, the Petitioners were informed by the Respondent Institute to prove their eligibility to the Foundation Course and the Foundation Examination latest by 27.08.2019, failing which their results were to be cancelled. It is submitted that Petitioners are well conversant with the fact that as per Regulation 25E and 25F of the Chartered Accountants Regulations, 1988 their registration for CA Foundation Examination is not valid for May, 2019 examinations being based on false and incomplete disclosures made at the time of registration regarding their eligibility and accordingly, have filed Examination form to appear in the Foundation Examination in November, 2019 on 10.09.2019.
7. Learned Advocate thereafter, draws attention of this Court to the relevant Sections of the Chartered Accountants Act, 1949, more particularly, Section-15 which pertains to foundation of the Counsel, Section-13 which provides for powers to make Regulation, etc. It is specifically draws attention to the Regulation-25(E) and 25(F) inserted by the Chartered Accountants (Amendment) Regulations, 2017, which provides for the registration for Foundation Course and admission to the Foundation examination, Fees and Syllabus respectively as per Section-25(E). It is submitted that candidates to be eligible for registration for Foundation Course, as to have appeared in the Senior Secondary (10+2 Examination) conducted by the Examining Body constituted Page 4 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER by the Law in India. In the instant case, it is the CBSE. It is submitted that the petitioners when they had filled up forms for admission, they ought to have appeared for the Board examination. He draws attention of this Court to application forms produced on record to indicate that both the petitioners, when they made application forms for enrollment in Foundation Course on 26-12-2018 under the column in Education Qualification in the year 2019, had filled results 'awaited'. It is submitted that this information was misleading to the knowledge of the petitioners as on 26-12-2018. The petitioners had not appeared for XII Board examination conducted by CBSE and had therefore, not fulfilled eligibility criteria of Section-25(E). It is submitted that very petitioners when they filled up the forms for November, 2019, in the application, they had correctly given information about the Board examination as 'already passed'. Therefore, the petitioners were live to the difference in results awaited meaning as having appeared in the examination and awaiting for results and having already for 'already passed'. It is submitted that in any case, as the petitioners did not fulfill eligibility criteria, were not eligible to appear in the examination conducted in May, 2019.
8. In rejoinder, learned Advocate for the petitioners submitted that the petitioners on the basis of Provisional Admission given were lead to belief that they were eligible candidates and made their preparation and had given examination. It is submitted that case of the petitioners were examined by the Committee and thereafter, the Committee held for Provisional Admission. Therefore, the respondent- Institute cannot be permitted to take 'U' turn and set at naught preparation made and examination given by the petitioners.
9. Learned Advocate emphasizes on Section-25(F) stating that the petitioners were fulfilling the conditions of Section-25(F), Page 5 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER which required the students to be registered with Board of Studies on or before 30th June or 31st December for the examination to be held in the month of November and May respectively. The petitioners were therefore, registered with the Board of Studies on 30th December and therefore, entitled to appear in May examination. Second requirement, is to have passed senior secondary examination conducted by the Examining Body. It is submitted in the present year, the Foundation Course examination was conducted on 4th June, 2019 and the petitioners had already passed on 02- 05-2019 Class-XII examination and as the petitioners were fulfilling both the clauses A, B of Section-25 (F), the petitioners should be declared eligible to appear in the examination of C.A. Foundation Course examination held in May, 2019 and therefore, results be declared.
10. Having considered the rival submissions of the parties and having perused the documents on record, it appears that both the parties vehemently argued on the point of suppression of facts and misleading by the petitioners and grant of Provisional Admission and thereby stopped from now refusing the outcome of such Provisional Admission by the respondent-Institute. However, issue involved is about the eligibility of the petitioners to appear in the Foundation Course examination conducted in May, 2019. Section-25(E) which is for registration for the Foundation Course, which reads as under:
"25E: Registration for Foundation Course - (1) No candidate shall be registered for the Foundation Course unless he has appeared in the Senior Secondary (10 + 2) Examination conducted by an examining body constituted by Law in India or an examination recognised by the Central Government or the State Government as equivalent thereto for the purpose of admission to Page 6 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER graduation course, (2) A candidate shall pay such fee, as may be fixed by the Council from time to time, which shall not exceed twenty-
five thousand rupees, along with an application in the form approved by the Council for registration to the Foundation Course.
11. Reading of Section-25(E) specifies the eligibility criteria for registration for Foundation course essentially for eligible candidates to have appeared in senior secondary examination. In the instant case, the petitioners had applied for Foundation Course on 26-12-2018, when they were students of CBSE Board. The examination of XII CBSE Board, examination of the petitioners by the XII Board were conducted on 14-01-2019. Meaning thereby, the petitioners had not appeared in the senior secondary examination conducted by CBSE, when they filled up the application form for enrollment in Foundation Course. It would be appropriate to reproduce the chronology to reflect the communications between the petitioners and the respondent - Institute.
12. On 26-12-2018, the petitioners had filled up registration form for Foundation Course. On 14-01-2019, the respondent - Institute noticed the absence of appearance in the Class-XII examination and therefore, called upon the petitioners to send the true copy of Class-XII marksheet by e-mail and had also informed the petitioners that the candidates who were students of Class-XII, but not appeared in examination, would attempt earliest in C.A. Foundation examination to be conducted in November, 2019.
13. Page-27 is e-mail communication to the petitioners, wherein relevant portion reads as under:
"Please note that as per the guidelines a student can register for CA Foundation course only after appearing in the class XII exam i.e. in March 2019. The earliest Page 7 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER attempt that a student currently studying in class XII can get will be in Nov 2019. The last date for registration for Nov 2019 exam is June 30, 2019."
14. In response, on 07-02-2019, the petitioners e-mailed the Admit Card of Class-XII examination in place of Class-XII marksheet.
15. On 08-02-2019, the Institute accepted copy of Admit Card and provisionally registered the petitioners. The relevant portion of the e-mail communication dated 8th February, 2019, which reads as under:
"4. You will be eligible to appear for Foundation Examination after passing in the Higher Secondary Examinations (10+2 Examination) in case you have not yet appeared, conducted by an examining body constituted by law in India or an examination recognized by the Central Government as equivalent thereto and after completing a specified period from the date of registration. For appearing May Foundation examination student should have registered with the Board of studies of the Institute on or before 31st December and for November Foundation Examination, 30th June respectively."
16. On 21-02-2019, one more e-mail communication was addressed to the petitioners mentioning categoric that only students who have passed Senior Secondary examination are eligible to appear in the Foundation Course examination held in May, 2019. On 06-03-2019, the petitioners filled up form for Foundation examination and the examination was to be conducted in May, 2019. The petitioners had thereafter appeared in Class-XII CBSE examination and results were declared on 02-05-2019. On 06-05-2019, the petitioners submitted Admit Cards of their XII Board examination. On 09- 05-2019, the petitioners were informed about their Page 8 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER Provisional admission for Foundation examination of May, 2019. This communication reads as under:
"1. You should have got yourself registered for the Foundation Course on or before 31st December, 2018 OR you should have converted from CPT to the Foundation Course on or before 28th February 2019.
2. Passed Class 12th Examination before appearing the Foundation Course exam.
Candidates may ensure that his/her Registration Number to Foundation Course is valid.
It is seen from your application that you have not complied with above mentioned eligibility requirements.
In view of the above, you are admitted to the Foundation Course to be held in May 2019 on provisional basis, subject to submission of documents in support of your eligibility to appear in the said exam, on or before 25th May 2019.
Therefore, you are requested to contact your concerned Regional office of the ICAI and arrange to submit the following, on or before 25th May, 2019, to regularize your provisional admission to the above exam:
1. Letter issued from ICAI, registering you to the Foundation Course (Registration should be on or before 31st December 2018) or Letter from the ICAI, upon conversion to the Foundation Course from CPT (Conversion should be on or before 28th February 2019) and
2. Statement of Marks issued from the respective Education Board indicating your passing of Class 12th examination.
In case you are not able to comply with the above requirement(s) by submitting the relevant documents as stated above, your result for the Foundation Examination- May 2019 is liable to be withheld / cancelled."
17. On 20-05-2019, the petitioners had submitted the copy of Marksheet of Class-XII examination and on 4th to 13th Jun3, 2019, the Foundation Course examination was conducted. Ordinarily this examination is scheduled in May, 2019, apparently, on account of General Election, dates were pushed back to the 4th to 13th June, 2019.
18. Learned Advocate for the petitioners submission that they are fulfilling the requirement of Section-25(F) as they Page 9 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER were registered on 31st December of CBSE student and they had passed Senior Secondary examination before the results of Foundation Course were declared, cannot be accepted as it was only fortuitous circumstance of delaying the examination from May to June that the results of Board were declared prior to the results of Foundation Course. However, this cannot change eligibility criteria, which is also essential requirement, required to be fulfilled even before the fulfilling requirement of Regulation-25(F).
19. In the opinion of the Court, for the candidates to be fully eligible, they must meet with both the requirements of Section-25(E) and 25(F) simultaneously.
20. It is not open for the Institute to make it optional for the students either to apply with Section-25(E) or 25(F), if the case of the petitioners is accepted and if they are declared to be eligible for registration in the Foundation Course as well as examination of Foundation Course, then other students who are also identically situated that is to say were students of XII CBSE Board, but have not appeared in the examination of XII, would also require to be treated as eligible. That is to say, the petitioners would steal march over all the other candidates, who were similarly students of XII CBSE Board or other recognized Board, but NOT appeared in the XII Board examination and the petitioners were competing with these students, who have actually cleared or appeared in XII Board examination The Court does not deem it fit to single out the case of the petitioners and overlooked the eligibility criteria for the registration for the Foundation Course as stipulated under Section-25(E).
21. As it is submitted during the course of arguments that by virtue, this Court's order dated 22-10-2019, the petitioners have appeared in the Foundation Course examination conducted in November, 2019. The petitioners who had Page 10 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020 C/SCA/16912/2019 ORDER already registered for the course in December, 2018, appearing in the examination in XII Board examination in April, 2019 and therefore, results were declared on 2nd May, 2019, are fulfilling the criteria of Section-25(E) and 25(F) to appear in Foundation Course examination conducted in November, 2019.
22. Learned Advocate for the respondent-Institute produced written instruction dated 05-02-2020 that the petitioners would be treated as candidates eligible in all respects for the C.A. Foundation Course examination held in November, 2019 and their results be declared accordingly.
23. In view of the reasonings aforesaid, the Court does not find reasons to interfere with the decision of the respondent - Board communicated to the petitioners by communication dated 17th August, 2019. In view of the aforesaid, the petition deserves to and hereby dismissed.
24. However, the Institute is now directed to proceed and process the case of the petitioners as eligible candidates for the Foundation Course and examination conducted in November, 2019.
(A.Y. KOGJE, J) PARESH SOMPURA Page 11 of 11 Downloaded on : Mon Feb 17 01:08:00 IST 2020