Vishesh Mahesh Shah vs The Institute Of Chartered ...
2023 Latest Caselaw 2825 Guj

     C/LPA/335/2023                              ORDER DATED: 10/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/LETTERS PATENT APPEAL NO. 335 of 2023
          In R/SPECIAL CIVIL APPLICATION NO. 21860 of 2022
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
             In R/LETTERS PATENT APPEAL NO. 335 of 2023


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                    VISHESH MAHESH SHAH
                           Versus
      THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
================================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 10/04/2023

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

1. By way of present appeal filed under clause 15 of the Letters Patent, the appellant - original petitioner has challenged the order dated 10.11.2022 passed by the learned Single Judge in Special Civil Application No.21860 of 2022, whereby the learned Single Judge was pleased to dismiss the petition.

2. Heard learned advocate Ms.Kirti Pathak for the appellant- original petitioner.

C/LPA/335/2023 ORDER DATED: 10/04/2023

3. The case before the learned Single Judge was that the petitioner was enrolled with the respondent - Institute of Chartered Accountants of India (for short, the 'ICAI') with Student Registration No.WRO0631708 and had cleared the Common Proficiency Test and Intermediate Levels of examination conducted by the ICAI. The petitioner had appeared in the C.A. final level examination in the month of May 2022. The examinations were held from 14.5.2022 to 29.5.2022. The Paper 6F 'Multi Disciplinary Case Study' was to be conducted as per the 'Open Book' methodology. Further, it was the case of the petitioner before the learned Single Judge that he had appeared in the papers consisted of Multiple Choice Questions accounting for 40 marks out of 100 and Descriptive type accounting for 60 marks out of 100 and he received a phone call informing him that his case has been considered for unfair means by the ICAI. Subsequently, it was clarified through the mark-sheet which was indicating the assessment of only the Multiple Choice Questions where the petitioner secured 32 out of 100 marks and so far as the Descriptive Questions were concerned, the petitioner was assessed as 'fail'. The mark-sheet further indicated that the petitioner failed in Paper 6F. A communication dated 25.8.2022 was issued by the ICAI informing the petitioner that the petitioner had not written the answers in the answer book, instead he had cut-pasted the answers from the study material on the answer book.

4. Learned advocate Ms.Kirti Pathak vociferously argued that there was no any instructions issued by the respondent ICAI that in the 'Open Book' methodology exam answers were

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required to be handwritten. Even, during the course of examination, the petitioner was not restrained from doing copy- paste the answers and without affording an opportunity of hearing, the respondent ICAI has declared the petitioner 'fail', thereby the petitioner has been denied the principles of natural justice. The career of the petitioner has been ruined due to the arbitrary act on the part of the respondent ICAI. Further, she has relied on the key-points note for information and guidance of the applicants issued by the respondent ICAI for the final examination to be conducted in the month of May 2023, wherein it has been clearly stated that the candidates should write the answers in their own handwriting and they are prohibited from pasting the answers from the reference material or any other source in their answer booklet and any violation of the same shall tantamount to unfair means. It is submitted that no such instructions were issued at the relevant point of time and due to this, the petitioner was misled. There was no any unfair practice on the part of the petitioner. Hence, she requested to quash and set-aside the order passed by the learned Single Judge and to direct the respondent ICAI to treat the petitioner as having passed in the Paper-6F of the C.A. final examination.

5. We have given our thoughtful consideration to the arguments canvassed by learned advocate Ms.Kirti Pathak for the appellant - original petitioner and have perused the materials on record. It is undisputed and admitted fact that the appellant - petitioner had appeared in the C.A. final examination held by the respondent - ICAI. The examination was on 'Open Book' methodology, wherein the appellant - petitioner had cut-

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pasted the answers from the study material on the answer book and considering the said act of the petitioner as 'unfair', the petitioner was declared fail in the Paper-6F examination.

6. We have perused the Chartered Accountants Regulations, 1988, more particularly, Section 176 of the Regulations enumerates the functions to be performed by the Examination Committee of the ICAI, viz. holding of examinations, admissions thereto, cancellation of examination, appointment and selection of examiners, prescription of books for the guidance of candidates, declaration of results, etc. The petitioner appeared in the C.A. final examination held in the month of May 2022 and the result was declared on 15.7.2022. As per the instructions specified on the admit card, the examinee was required to use black ink ball point pen only and the examinee was required to write answers in English/Hindi medium opted and mentioned on the admit card. So far as the instruction no.6(b) is concerned, it is with regard to Paper-6 of final (new) exam, which is a case study based paper on 'Open Book' methodology. Candidates are permitted to bring their own material to the exam centre for this paper and refer to them while answering the paper during the exam. Instruction no.7(a) stipulates that the answer should be written neatly and legibly and should, as far as possible, be brief. However, avoid use of sms type of language while writing your answers. Instruction no.7(b) stipulates that the answer to each question must be commenced on a fresh page and the question number clearly and prominently written at the top of each answer. Candidates are advised in their own interest not to leave full pages blank in between the answers. Candidates are advised

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to check the answer book carefully after completing the paper and score off any blank pages, i.e. draw a line across the blank page, if any. Instruction no.7(c) stipulates that the answer to each question in all parts should be completed fully in one page, or in a consecutive set of pages before the next question is taken up, i.e. all parts of a question be done together. Instruction no.7(d) stipulates that candidates are required to answer the requisite number of questions as per instructions printed on each question paper. Instruction no.7(e) stipulates that candidates should write the answers only in black ink and in no other colour. Though there is no specific prohibition against the use of Gel pen / Fountain pen, it will be advisable to use ball point pen only since its ink is indelible. Candidates are also advised not to use red, green, ink, highlighter, sketch pen etc. for underlining or highlighting any sentence/ para/ phrase as it amounts to making distinguishing mark which is prohibited. Candidates are permitted to use pencils for drawing graphs, diagrams, etc. However, candidates should take care not to use pencil for writing answers.

7. On going through the aforesaid facts, it is apparently clear that in the 'Open Book' methodology exam also the applicant was required to write the answers. However, the petitioner, appellant herein, copy-pasted the answers in the answer book. The instructions in this regard are produced from pages 26 to 33 of the compilation. So, noticing the irregularities in the answer- sheet, the matter was put before the Examination Committee of the respondent ICAI, and on 14/15.7.2022, the Examination Committee considered the matter and decided to award zero

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mark to the Descriptive paper and this was done after due deliberation.

8. The learned Single Judge has considered the scope of judicial review in educational and academic matters, which is within the exclusive domain of the professional experts and the role of the courts is very limited by relying upon the case of Sanchit Bansal and another vs. Joint Admission Board and others, reported in (2012) 1 SCC 157, more particularly paragraphs 25 and 27 of the said judgment. So far as the question of violation of principles of natural justice is concerned, the learned Single Judge has relied on the case of Ran Vijay Singh and others vs. State of Uttar Pradesh and others, reported in (2018) 2 SCC 357 and referred to the celebrated case Ridge vs. Baldwin (1964) A.C. 40. Referring to the said case, the Apex Court has held that though the principles of natural justice should itself be sufficient to grant relief, however, if on an admitted or undisputed factual position only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice. Thus, the question of violation of principles of natural justice also does not arise. Hence, the argument canvassed by the learned advocate for the appellant qua breach of principles of natural justice is not sustainable.

9. Further, on going through the aforesaid facts, it is crystal clear that the appellant has not written the answers and he has directly copy-pasted the answers in the 'Open Book' methodology exam. In the present case, nothing unfair can be inferred by not

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affording an opportunity to present and meet a case to the petitioner. In the present case, based on violation of principles of natural justice, the ends of justice could not be defeated or make the rules lifeless and absurd. Even if, for the sake of argument, the say of the appellant is accepted and pasting of answers is allowed in the 'Open Book' methodology exam, it would be nothing but amounts to thwarting the very object of the 'Open Book' methodology exam.

10. Before parting, it would be apposite to take note of the concept of 'Open Book' methodology exam. The 'Open Book' methodology exam is a form of examination in which students are allowed to refer to either class notes, memory aid, textbooks, or other approved material while answering questions. The 'Open Book' examination is introduced to remove rote learning and more superficial application of knowledge. The main reason for 'Open Book' examination is that teachers can devise questions that require students to answer in more analytical and critical ways thus encouraging high-order thinking skills in students as compared. The Open Book' examination has the ability to help the student in focusing on applying the available knowledge rather than memorizing the concepts to apply. It may be a big misconception in the students mind that most of them believe an 'Open Book' exam is easy to crack, but the reality is totally different; all the questions asked are in the form of case studies. It is really difficult to answer such creative questions if students' concepts are not clear about the topic. 'Open Book' assessment focuses on higher level learning skills and tests students' understanding of a subject matter or its application to a real-

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world problem, rather than recalling knowledge. As the students have access to their resources to write answers in the examination, much more details and contents than they would in a closed book exam are expected by the examiners.

10.1. Thus, the success of an 'Open Book' examination depends on the students' ability to understand the question, identify inherent issues, application of various techniques, principles, etc. while answering questions with the help of supporting reference material carried by the student to the examination hall. As the examinees have access to their books, notes, digital devices or other approved resources in their hands to answer the questions, the examiners obviously expect much more details and contents than they would in a closed book exam; this is the biggest challenge for a examinee to make the answer accurate, informative, detailed, and well structured.

10.2. The 'Open Book' examinations promote the development of higher-order thinking and problem-solving skills. When a student writes answers to questions, they should not copy information directly from the book and pass it off as their own work or answer on an open book test. Teachers are concerned with what their students have learned, not whether they can locate information in a book. It is permissible to use quotes from the book, or lecture notes, to support one's positions or analysis, but do not rely too heavily on them. Copying word-for-word has to be ignored by students if they want to make better results.

10.3. Time management is very important in 'Open Book' exams. The answers to the questions should not be unnecessarily

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broadened but accurate, concise and well referenced. The answer should be written specifically to the point. Looking over the question before writing starts can help an examinee in time management. Here, in the present case, the petitioner has opted to directly paste the answers, which is not in tune with the very object of the examination.

11. In the present case, the appellant is an aspirant student who aspires to become a Chartered Accountant. For that purpose, the respondent has decided to assess the ability, aptitude and acumen of the candidates. The concept of examination is a formal test conducted to evaluate a person's knowledge of a particular subject. The examination assesses a candidate's aptitude, skills and physical fitness and his mental acumen to assess the question and answer accordingly. It is a test to adjudge the skill of the candidate who appears for the exam. All these concepts were taken into consideration by the learned Single Judge.

12. In the facts and circumstances of the case and for the foregoing reasons, we are of the considered opinion that the learned Single Judge has committed no error, much less an error of law, in dismissing the petition. We are, therefore, not inclined to interfere with the said order. Hence, the present appeal is dismissed in limine.

(VIPUL M. PANCHOLI, J.)

(HASMUKH D. SUTHAR, J.) /MOINUDDIN