ORDER
1. Being dissatisfied with the declaration of his result of final examination of May 1993 of the Institute of Chartered Accountants of India (in short ‘Institute’) the petitioner has filed this petition. The Institute has declared petitioner to have failed in Group I of said examination, the examination being held in papers which are divided into two groups. The reliefs sought by writ petition are for quashing the petitioner’s result declaring him to have failed in Group I and to issue writ, order of direction in the nature of mandamus requiring the institute to declare him to have cleared the final examination.
2. The facts necessary for determining present controversy are that Central Government enacted The Chartered Accountants Act, 1949 (in short ‘Act’) for regulating the profession of Chartered Accountants and to establish an Institute of Chartered Accountants. The Act constituted an Institute of Chartered Accountants and every member of Institute is known as chartered accountant.
The Act provides for maintenance of a register under the Act and all persons whose name is entered in said register constitute a body corporate which is known by the name of Institute of Chartered Accountants. Section 4 of the Act specifies the persons who shall be entitled to have their name entered in the register which includes persons who passed such examination and completed such training as may be prescribed by regulations framed under the Act. The Act also provides for a Council of Institute (in short ‘Council’) for management of affairs of the Institute and discharge functions assigned to it under the Act. The Council has been empowered to make regulations under S. 30 for the purpose of carrying out the object of Act. It is specifically provided under said provision that such regulations may provide for standard and conduct of examination under the Act and Council, in exercise of such power, framed regulations wherein it provided syllabus for examination as well as conduct of examination. It is under these regulations framed by Council that examination was conducted at which petitioner appeared giving rise to present controversy.
3. The papers, in which a candidate had to take examination, were divided into two
groups, namely, Group-I and Group-II. This-was done in accordance with Chartered Ac-countants Regulations, 1988 (in short ‘Regulations’), which provided for the standard and conduct of examination. Each group had four papers of 100 marks each, the total maximum mark of each group being 400. According to mark-sheet of petitioners the petitioner obtained 181 marks in papers of Group I and 269 marks in papers of Group II. Petitioner did obtain 40 per cent or above in each paper of Group I but in aggregate, they were less than 50 per cent in this Group and therefore he has been declared to have failed in that group. The petitioner obtained above 50 per cent in aggregate in Group II and has been held to be successful so far that group is concerned. It is admitted case of parties that petitioner took examination in both groups simultaneously and obtained 40 per cent and above marks in each paper of both the groups as well as he obtained above 50 per cent marks
in aggregate of all the papers of both groups taken together.
4. The petitioner claims that by obtaining 40 per cent and above marks in each paper of both the groups and 50 per cent in aggregate of all papers of both the groups taken together, he is entitled for being declared successful at examination in question under Regn. 38(2) of Regulations as amended by notification dated 21 -2-1992, which came into force on 7-3-1992. The claim of petitioner has been contested by opposite parties who claim that the Regulations as amended by notification dated 21-2-1992 are inapplicable to petitioner’s case and petitioner’s claim has to be determined and has been determined under unamended regulations whereby petitioner has been declared to have failed. The opposite parties have claimed that petitioner could have been declared as passed had he obtained at least 50 per cent marks in aggregate in each of the two groups, under aforesaid circumstances, according to contesting opposite parties, the petitioner has rightly been declared to have failed.
5. For determining the controversy raised, it is necessary to refer to the relevant parts of Regn. 38 as it stood before amendment by notification dated 21-2-1992 (in short ‘Old Regulation’) and regulation as it stands after amendment (in short ‘New Regulation’) Regns. 38(1), 38(4) and 38(5) as it stood before amendment of the year 1992 are as follows :
“38. Requirement of passing the final examination-
(1) A candidate for the final examination shall ordinarily be declared to have passed the examination if:
(a) he is declared to have passed in both the groups taken simultaneously, securing at one sitting a minimum of 40 per cent marks in each paper of the group and a minimum of 50 per cent of the total marks of all the papers of each group; or
(b) he is declared to have passed in one group at one examination and in the remaining group at any subsequent examination,
securing at one sitting, a minimum of 40 per cent marks in each paper of the group and minimum of 50 per cent of the total marks of all the papers of that group.
(4) Notwithstanding anything contained in sub-regulation (1) above, a candidate who fails in one paper comprised in a group but secures a minimum of 60 per cent of the total marks, of the remaining papers of the group, shall be declared to have passed in that group if he appears at any one or more of the immediately next three following examination in the paper in which he had failed and secures a minimum of 40 per cent in that paper.
(5) Notwithstanding anything contained in sub-regulation (1) above, a candidate not covered by sub-regulation (4) who fails in one or more papers comprised in a group but secures a minimum of 60 per cent marks in any paper or papers of that group and a minimum of 30 per cent marks in each of the remaining papers of that group shall be eligible to appear at any one or more of the immediately next three following examinations in the paper or papers in which he had secured less than 60 per cent marks and shall be declared to have passed in that group if he secures at one attempt a minimum of 40 per cent marks in each of such papers and a minimum of 50 per cent of the total marks of all the papers of that group including the paper or papers in which he secured a minimum of 60 per cent marks in the earlier examination referred to above.”
6. The relevant part of new Regn. 38 as it stands after amendment of the year 1992 is as follows :–
“38(1) A candidate shall ordinarily be declared passed the final examination if he passes in both the groups. He may appear in both the groups simultaneously or in one group in one examination and in the remaining group at any subsequent examination.
38(2) A candidate shall be declared to have passed in both the groups simultaneously if he secures at one sitting a minimum of 40 per cent marks in each paper of both the groups and a minimum of 50 per cent marks in the
aggregate of all the papers of both the groups taken together.
38(3) A candidate shall be declared to have passed in a group if he secures at one sitting a minimum of 40 per cent marks in each paper of the group and a minimum of 50 per cent marks in the aggregate of all the papers of that group.
38(5) A candidate who has passed in any one but not in both the groups in the final examination held under the Chartered Accountants Regulations, 1988 shall continue to be governed by the provisions of those regulations till the commencement of final examination to be held under paragraph 3A of Schedule ‘B’ to these regulations.”
7. There is no dispute between parties that if declaration of result in respect of petitioner is to be governed by old regulations then he has failed but if it was to be declared in accordance with new regulations then he stands cleared. In such circumstances the short controversy which remain for consideration is as to whether petitioner’s result has been rightly declared under old regulations or it was to be declared in accordance with new regulation as claimed by petitioner, in which case he has to be declared as having cleared the examination.
8. To complete narration of facts, a reference to extract from the 156th meeting of Council held on 16, 17 and I8th July 1992 is also necessary. Item No. 10 and decision thereon are relevant for determining present controversy which is as follows :
“Item No. 10 :– Difficulties arising out of implementation of Chartered Accountants (Amendment) Regulation, 1992 removal of difficulties under Regulation 205.
xxxxx
(e) applicability of the pre-amended regulations to students appearing under the existing syllabus.
Decision :
It was decided that the students appearing in the Intermediate and Final examination
under the existing syllabus specified in paragraphs 2 and 3 of Schedule B to the Chartered Accountants Regulations, 1988 shall continue to be governed by the Chartered Accountants Regulation 1988 as in force on 6th March, 1992 till the commencement of the Intermediate or Final examinations, as the case may be to be held under the new syllabus.
xxxx x 9. The abovementioned resolution has been passed by Council in exercise of power under Regulation 205 which reads as follows : "205 Power to remove difficulties - (1) If any difficulty arises in giving effect to the provisions of these Regulations, the Council may, by general or special order, do anything not inconsistent with provisions of the Act which appears to it to be necessary or expedient for the purpose of removing the difficulty.
(2) In particular and without prejudice to the generality of the foregoing power any such order may provide for continuing in force such provisions of the Chartered Accountants Regulations 1964, as were applicable to persons governed by the Auditor’s Certificate Rules 1932 or the Chartered Accountants Regulations 1949, or such other provisions as conferred any right or privilege or as imposed by any obligation or liability.”
10. The short argument advanced by learned counsel for petitioner is that the petitioner’s result was to be declared in accordance with new regulations as Regulation 38(5), as it stands amended, saves continuance of provisions of old regulations in respect of a candidate who has passed final examination in any one but not in both the groups when new regulations came into force and to none else. He argued that as petitioner appeared in both the groups simultaneously and did not pass any one group of final examination held under old regulation, the petitioner’s case is not to be governed by old rules. It has been argued that as he has obtained requisite marks in accordance with new regulations, he is entitled to be declared successful and his failure has been wrongly
declared by applying old regulations. The learned counsel for opposite parties opposed the argument. He argued that the petitioner appeared at examination which is governed by old regulations and, therefore, his result has been correctly declared. He contended that the time to hold final examination under paragraph 3A of Schedule ‘B’ to the amended regulations has not arrived and the earliest final examination under new regulation will be held in the year 1996. He contended that holding of final examination under old and new regulations at the same time is neither contemplated nor it could be as it will give rise to discrimination. The argument is that candidates appearing under same syllabus will then have different passing requirements, which will include differences in facility in passing such as exemptions, grace and passing in residual paper or papers, as one candidate may ask for benefit under 38(2) while the other under 38 (5). It has been contended that as regulations 38(2) and 38 (5) cannot be reconciled, it became necessary for council to remove difficulty under regulation 205 by resolution dated 16, 17 and 18th July 1992 by which continuance of old regulation was resolved till the commencement of final examination to be held under new syllabus. The learned counsel for opposite-parties relied on the cases of Shankeri Prasad v. Union of India, AIR 1951, SC 458 : 1951 All LJ 740. D. S. Garewal v. State of Punjab, AIR 1959 SC 512 Commissioner of Income Tax v. Ram Gopal Mills Ltd., AIR 1961 SC 338 and Goodland plantations v. State Bank, AIR 1965 Ker 297, to justify the exercise of power to remove difficulties under said conditions. To meet the arguments advanced by learned counsel for opposite parties, the learned counsel for petitioner reiterating his earlier arguments contended that regulation 38(5) permits continuance of old regulations only when the candidate succeeded in one group before regulations were given effect. He argued that as there is no ambiguity in giving effect to new regulations, the question of taking recourse to regulation 205 for removing difficulties did not arise. He submitted that old regulation for candidates who passed examination in one of the groups have been
kept intact specifically and such a regulation does not give rise to any discrimination.
11. The Chartered Accountants Regulations 1988, were amended by Chartered Accountants (Amendment) Regulations 1992 (in short amending regulations). Regulation 1 (2) of amending regulations provided that they shall come into force on the date of their publication in the Gazette and as they were published in Gazette dated 7-3-1992, they came into force on that date giving rise to regulations referred to earlier as new regulations. The petitioner appeared in examination in the month of May 1992. There is nothing in the amending regulations to indicate that it will be inapplicable to the next ensuing examination and, therefore, on bare reading of regulations as amended, it is apparent that the result of petitioner was to be declared in accordance with new regulations.
12. There is another reason for accepting the contention of learned counsel for petitioner that the result was to be declared in accordance with new regulations. The new regulation 38(5) specifically provided a candidate who passed any one group in the final examination held under Chartered Accountants Regulations 1988, shall continue to be governed by the provisions of these regulations while the amended regulations are silent in respect of all other candidates. The absence of such a regulation for others indicates that authority framing regulations specifically limited the application of old regulation to candidates who passed one of the groups and excluded all others. As petitioner appeared in both the groups and did not pass any one of them, his case did not fall within new regulation 38(5). The learned counsel for opposite-parties did not dispute that petitioner’s case is outside the ambit of amended regulation 38(5), which alone permits application of unamended regulations. He argued that petitioner’s result was to be declared under unamended regulations due to council’s resolution.
13. The question, therefore, next arise for consideration is as to whether there was any difficulty in implementation of new regulation which could justify the stand of opposite
parties in respect of passing of resolution dated 16, 17 and 18th July 1992 in exercise of power under Regulation 205 as opposite parties claims declaration of result of petitioner being rightly done under old regulation in view of said resolution. There are two reasons due to which such a resolution could not be passed and implemented. The first reason is that the amending regulation, which became effective on 7-3-1992 on publication in Gazette, kept intact the governance of candidates under old regulations only in cases covered by amended regulation 38(5) whereby the old regulations were made applicable to Final examinations to candidates who passed in one of the groups before amended regulations were enforced. This implies that rule making authority considered feasibility to apply old regulations to final examination, which were to be held after amended regulations were enforced, and did not consider it necessary to apply the same to candidates other than those covered under said provision and, therefore, permitting any modification by resolution of a council will amount to adding something to regulations which was left out. Such an usurption of power cannot be permitted. The second reason is that the resolution of council was passed without there being any difficulty in giving effect to the amended regulations. I would like to observe that no difficulty arose in implementing regulation 38. The learned counsel for opposite party tried to justify the exercise of the power of removal of difficulty on the basis that though the syllabus for final examination is same but there will be two different criteria for declaring the result, one being under old regulations in respect of candidates who passed in one of the groups while other, who appeared in both examination under same syllabus, will have a different criterion in respect of declaration of the result. I am not inclined to accept the argument advanced for the reason that the candidates who passed one of the group form different class from those who have not passed any of the groups. There appears nothing wrong if the outcome is such. The examining body will not be discriminating amongst the two. What stands done by regulation framing authority is reasonable.
Such a classification has been made by regulation framing authority consciously when it allowed old rules to continue for candidates who have already cleared one of the group. For said reason the contention that the power under Removal of Difficulties could be taken recourse to by the council is unacceptable to me. As I am of the opinion that there was no removal of difficulty involved in this case, it is not necessary for me to deal with the cases cited by learned counsel for opposite party which justify conferment of power on a body under a statute.
14. As I am of the opinion that the result of petitioner is to be declared in accordance with new regulation and the resolution of council could not have the effect of differing the effect to rules till final examination of the year 1996, the argument of learned counsel for opposite-parties that the new regulations will be effective for the examination from that year also fails.
15. Learned counsel for the opposite party has also argued that despite resolution of council petitioner appeared in the examination without any objection and, therefore, he cannot be allowed to challenge it subsequently. As I am of the opinion that the petitioner’s result was to be declared in accordance with the new regulation 38, such an argument is liable to be rejected as there can be no estoppel against statute. Once the regulation is applicable and the result of the petitioner was to be declared in accordance with new regulations merely because petitioner has not raised any objection before appearing in the examination against resolution of the council cannot be impediment in granting relief to him.
16. For aforesaid reasons the declaration of result of petitioner in accordance with old regulations is liable to be quashed and the opposite parties are to be directed to declare result of petitioner afresh keeping in view amended regulation 38 (2).
17. The result of petitioner of final examination of May 1993 in respect of failure contained in statement of marks dated 13-7-1993 (Annexure-1 to writ petition) is quashed.
18. The respondents are directed to declare the result of the petitioner afresh keeping in view that Regulation 38(2) of the Chartered Accountants Regulation 1988 as amendment by Chartered Accountants (Amendment Regulation) 1992, which is applicable to him.
19. The result is to be declared within one month from the date of production of certified copy of this order.
20. The writ petition is allowed. Parties to bear their own costs.
21. Petition allowed.