CA Exams -No RTPCR Needed For Opt-Out; Student Can Opt-Out For COVID Related Difficulties Of Oneself Or Family Members : Supreme Court

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Aniruddha Bose issued the directions while disposing of three petitions related to the CA exams, scheduled to start from July 5.

The Court directed the ICAI to conduct the exam and arrange the logistics in strict adherence to the Standard Operating Procedure notified by the competent authority, including the Disaster Management Authority.

The bench confined the relief only to the issue of "opt-out" option and refused to entertain other issues raised by the petitioners.

The order passed by the bench is as follows :

(i) A candidate who has suffered Covid personally or any of his family members, so certified by a registered medical practitioner, as a result of which he is unable to appear for exam, or disabled from preparing for the exam, is entitled to exercise the option of opting out. It will not be considered as an attempt. Such candidate will be permitted to appear for the next examination for both old and new syllabus.

(ii) We make it clear that a candidate need not produce RTPCR report if medical certificate issued by registered medical practitioners for his family members is produced along with request for opting out.

(iii) As regards candidates affected by lockdown during the relevant period of exam, we are informed that the scheme itself provides that such candidate will be allowed to opt-out and will not be treated as an attempt and such candidate will be allowed to appear in the next examination.

(iv) As regards the logistical arrangements, both infrastructural and human resources-wise,  the ICAI shall ensure that there is strict adherence to the SOP notified by the competent authority, including the Disaster Management Authority.

(v) It is also clarified if any candidate who is attempting exam gets COVID during exam, he will be allowed to opt out and it will not be treated as an attempt. They can give the exam in the next November cycle. He may be permitted to appear in backup exams as per the rules.

(vi) In case of last minute change of examination centres, we disapprove the suggestion of ICAI that if it's in the same city, the candidate will not be allowed to opt out. We direct that candidate should be allowed to opt out and it will not be treated us an attempt. Such candidate can appear in backup when situation is conducive".

The Supreme Court observed that these directions "should assuage the concerns of all candidates for appearing for the CA exams".

Courtroom Exchange

ICAI's note in line with Court's observations, Arora submits

Senior Advocate Meenakshi Arora started submissions in one of the petitions by saying that the ICAI's note submitted yesterday was not in line with the observations made by the Court.

She pointed out that the note says opt-out option is for those who suffered COVID "recently". The word "recently" is vague, and a timeline should be specified.

She also said that the ICAI has not done away with the requirement of RT-PCR certificate, despite the Court's suggestion. The ICAI is now asking for both medical certificate and RT-PCR certificate.

The ICAI has also not addressed the issue of travel difficulties for students in containment zones or curfew areas. She also flagged the concerns of schools, which are selected as exam centres, being used for other events. Also, the SoP says that examiners need only have a "No Risk" sign in Aarogya Setu.

The bench told Arora to confine with the issue of "opt out" alone and said that the conduct of exam and logistics will be as per the SOP laid down by the competent authority.

At this juncture, Arora pointed out that as per the ICAI's note, "opt out" option won't be there if the change of exam centre is within the city. The bench said that it can order to give "opt-out" option within the city as well.

Also, as regards a student falling sick due to COVID during the middle of exams, the ICAI is giving the carry-forward option to the next cycle only if the papers in one group were completed in the first attempt. If the Opt-out option is exercised while the Examinations are in progress, the candidate has to re-appear in all the papers that constitute a Group. This means, Arora urged, would mean that the student will have to re-appear in all papers.

The bench said that if the rules require a candidate to re-appear for the entire group, then it cannot be changed by the Court. There cannot be a debate on that, the bench said.

"We will only confine ourselves to general observations. If rules say that you have to appear for whole exams; then you have to appear. If Rules require you to appear for the whole exams, we will not interfere with that. We will not tweak with the rules. You will have to take your chance", Justice Khanwilkar said.

"You can't go on tweaking the rules in the name of COVID", Justice Dinesh Maheshwari added.

Advocate Bansuri Swaraj, appearing in another petition, said that she is only asking for an alternate option for students who opt out. The bench said they will have the option in the November cycle.

"Give full option for students to opt-out, without any preconditions of COVID certificate etc. If a student opts out, it will not be treated as an attempt and he will have option in November", Justice Khanwilkar told Senior Advocate Ramji Srinivasan, the counsel of the ICAI.

 "Last time we had given general opt out. 50% or so had suddenly elected to opt out at the last moment. They took advantage. More than 50% simply decided to walk out. There has to be a nexus. You need to have some COVID disability", the ICAI counsel responded.

The bench pointed out that the ICAI's note does not address the disabilities caused to a student due to family member getting affected with COVID.

"Yesterday we used the phrase "COVID related problems". It was not candidate specific", Justice Maheshwari pointed out. The ICAI counsel said that the institute will clarify that the family members can also be added in the note.

Ultimately the bench, expressing dissatisfaction with the ICAI's response, proceeded to pass directions to dispose of the petitions.

Background

The Bench had observed that the effects of COVID could be long-lasting, and a mere negative result in the RTPCR certificate would not reflect the fitness of the candidate. ICAI was then asked to submit a note during the course of the day on certain issues raised by the Bench.

Consequently, ICAI submitted a Brief Note stating that the Opt-Out option would now be extended to both candidates under Old and New syllabus who have recently suffered from COVID-19 or are yet to recover from the after-effects and are consequently unable to appear.

Plea For Opt Out Option:

The plea by Child Right Activist Anubha Shrivastava Sahai has sought directions to provide an "Opt Out" option to all the aspirants going to appear in the exams willing to opt out before and during the exam, with a carry forward of all benefits. The plea has also sought an extra chance to candidates appearing for the intermediate and final exams under the old syllabus.

The Petitioner has prayed for directions to increase the number of Examination Centres for CA Exams so as to ensure that at least one Examination Centre is kept in every District of India and not more than 50 students are allotted one Centre.

The Petitioner has also sought formulation and implementation of specific MHA guidelines for CA Examinations, free medical treatment to students infected during examination, conducting examinations in a staggered manner and free vaccination for all the students/candidates and other staff , invigilators amongst various other welfare measures.

Plea by 22 CA Students for Alternate Attempt and Revised SOP:

The plea moved through Advocates Hardik Gautam and Divyansh Tiwari has sought directions to the Centre and Institute of Chartered Accountants of India (ICAI) to formulate revised Standard Operating Procedure (SOP) to be adopted in the examination centres across India. (Sathya Narayan Perumal vs UOI).

The plea also sought direction to the ICAI to provide an option of alternate attempt to any candidate who fails to appear in the July, 2021 examinations on account of any impediment, caused by the Covid-19 pandemic.

Plea For Exam in Two Cycles:

Other than an Opt Out Option, the plea has sought directions for examinations for all the courses to be conducted in two cycles i.e, "July, 2021- Cycle I and July, 2021-Cycle II", as was done for the November Cycle of CA examinations, 2020. (Amit Jain and Ors vs ICAI).

The plea filed by a Chartered Accountant and 17 candidates through Advocate Nirnimesh Dube, has sought the direction to provide the candidates who may fail to appear in the July 2021 examinations on account of any impediment, caused by the Covid-19, an alternate attempt by carrying forward their candidature to the alternate cycle.