Miss Zaibunisa Khan etc. vs The University Of Health Sciences etc.

Stereo HCJAD 38

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Case No. W.P. No.40837 of 2016

Miss Zaibunisa Khan etc. Versus The University of Health Sciences etc.

JUDGMENT

Date of Decision: 09.01.2017

Petitioners by: Mr. Liaquat Ali Qureshi & Ms. Mehwish Khurshid, Advocates.

Respondents by: M/s Ch. Muhammad Atiq & Mufti Ahtsham ud Din, Advocates.

JAWAD HASSAN, J.- Through the instant Constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), the Petitioners have sought a direction to the Respondents to allow them to submit their admission forms to appear in the MBBS 2nd year supplementary examination 2016 being held on 12.01.2017 in the subject of Anatomy.

2.The facts revealed from the petition are that the Petitioners were admitted in MBBS 1st year in the year 2012 in their respective Medical Colleges i.e. Medical College Faisalabad and Sahiwal Medical College, Sahiwal. It is alleged in the petition that the Petitioners passed their 1st year examination held in the year 2014. It is further stated by the learned counsel for the Petitioners that in the

second year the Petitioners firstly attempted three times i.e. in Annual December, 2014, Supplementary January, 2015 and then Annual December, 2015 and subsequently in the fourth attempt due to some unavoidable circumstances and hardship the Petitioners remained unable to compete the same. It is also alleged that the Petitioners due to said hardship approached the Respondents for getting permission to appear in the supplementary examination, 2016 to be held in the year 2017 but the Respondents did not allow the request of the Petitioners. Hence, the instant writ petition.

3.In pursuance of order dated 30.12.2016, parawise comments have been filed on behalf of the University of Health Sciences (UHS)/ the Respondents No.1 & 2 vehemently denying the allegations levelled in the petition and praying for dismissal of the same.

4.Learned counsel for the Petitioners contended that disallowing the Petitioners from appearing in the supplementary examination by the Respondents is illegal and arbitrary. Learned counsel also argued that in the fourth attempt the Petitioner No.1 alongwith others were circulated question papers of Anatomy according to new syllabus and after one hour and fifteen minutes the same was replaced with old syllabus, as such she could not solve full paper in the remaining one hour. Learned counsel further added that under the Rules and Regulations, the Petitioner No.1 was entitled to attempt the Anatomy paper within old syllabus in full time rather only one hour. Learned counsel laid much stress on the point that due to the wrong of the Respondents, the Petitioner No.1 should not suffer which is clear

violation of fundamental rights of the Petitioner No.1 and in light of such hardship, the Petitioner No.1 is entitled to grace marks.

Similarly, the Petitioner No.2 requested the Respondents to freeze his 4th chance as the Petitioner No.2 was not medically fit to appear in the same but the said request of the Petitioner No.2 was not considered even on medical ground. Learned counsel also maintained that to oblige the students on hardship basis, the Regulations of Respondents are silent which is clear-cut violation of their fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 and the public welfare, as such the same need to be rectified. Learned counsel for the Petitioners also pointed out that the Regulations and Policies of the Respondents are against the principles of natural justice, as such, the Petitioners may be allowed to appear in the supplementary examination being held on 12.01.2017. Learned counsel for the Petitioners has placed reliance on the cases reported as Alaptagin v. Principal saidu Shahrif Medical College, Swat and 3 others (PLD 2004 (Peshawar) 307).

5.Learned counsels for the Respondents No.1 & 2 vehemently contested the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of the instant petition on the grounds that the Petitioners after availing four (4) consecutive chances have failed to pass the 1st Professional MBBS Part-II examination, as such, by virtue of Rules and Regulations of University of Health Sciences (UHS) and Pakistan Medical and Dental Council (PMDC) ceased to be eligible for further medical education. Learned counsels also argued that as

per information no such event, as alleged by the Petitioner No.1, took place in the examination center and that too no application by the Petitioner No.2 has ever been received for his surgery. Learned counsels also argued that the Respondents No.1 & 2 have abolished the policy for award of grace marks vide order dated 25.07.2006 by stating that in compliance of the judgment of Supreme Court of Pakistan, the Board of Governors in its 10th meeting held on July 14, 2006 has decided to abolish the system of awarding 5 grace marks or any such increase in marks by any other name. This will also confirm to the earlier directives of PMDC and HEC. Learned counsels for the Respondents No.1 & 2 also contended that the judgments cited by the learned counsels for the Petitioners have no relevancy to the case in hand as the same pertain to the case of promotion on carry on basis but not to the award of extra chance. Learned counsels for the Respondents No.1 & 2 have also argued that in a plethora of judgments the apex Court has held that the Petitioners cannot be allowed further chance after affording four consecutive chances and have placed reliance on the case titled Muhammad Salman Ghani v.

Government of Punjab through Secretary to Government of Punjab, Health Department, Lahore and 3 others (2006 CLC 463 [Lahore]).

Learned counsels also argued that even on hardship basis the similar issue was raised in Muhammad Mudassar Yaqoob v. Vice Chancellor etc. (W.P. No.18696/2008) which was declined by the Hon’ble Division Bench of this Court by holding that as rightly stated by respondents No.1 to 3 the unavailed third chance is a past and closed transaction and therefore, making of any direction as prayed for

would amount to transgress the statutory rules of four chances by making them five in the guise of reinstatement of already expired chance “availed or unavailed”. Lastly, learned counsel for the Respondents argued that the identical issue has also been dealt with by this Court in W.P. No.1105/2006 by holding that we are of the view that the right of the petitioner to seek education is subject to Statutes/Regulations framed by the University to regulate the studies.

If a student fails to clear the examination in the prescribed chances, he ceases to become eligible for further medical education.

6.Arguments heard record perused.

7.The main grievance of the Petitioners is that they be permitted to appear in the Supplementary Examination 2016 being held on 12.01.2017 in the subject to Anatomy on the basis of hardship. The Petitioners themselves have admitted in paragraph 3 of their petition that they have availed four chances in the said examination and could not succeed in the following manner:

It is important to mention here that the Petitioners had to face various hardships during or before appearing in the 4th attempt Supplementary examination held in January- February, 2016, individually, which lead to failure in 4th attempt as well.

4)That the Petitioners 1-2 approached the Respondents 1-7 in writing regarding above hardships and requested that the Petitioners may be allowed to appear in the Supplementary examination 2016 to be held on January/February, 2017, but remained unattended, hence this petition.

5)That the Petitioners 1-2 intend to appear in the Supplementary examination 2016 to be held on January/February, 2017 and the respondents 1-7 has restrained the Petitioners to appear in the same.”

8.The parawise comments filed on behalf of the Respondents No.1 & 2 also explicitly depicts that the Petitioners have exhausted all four consecutive chances permissible under the Rules and Regulations of the UHS and PMDC to pass 1st Professional MBBS Part-II examination but failed and therefore, have become ceased to be eligible for further medical education. It is to be noted that the comments also accompanied the Notification dated 19.04.2008 issued by the University of Health Sciences, Lahore which clearly reflects that amendment has been made to the Statute and Regulations for the Professional MBBS Part-I & II Examination to the extent of one more chance i.e. from three consecutive chances to four consecutive chances. In number of judgments of the Hon’ble Supreme Court of Pakistan it has been held that the right of the Petitioners to seek education is subject to Statutes/Regulations framed by the University to regulate the studies but if a student fails to clear the examination in the prescribed chances, he ceases to become eligible for further medical education. Reliance is placed on the case titled Saadia Firdous etc. v. Government of Punjab etc. (Civil Petitions No.1448, 1459, 1460-6/05) in which it was observed by the Hon’ble Supreme Court of Pakistan as follows:

“It may be noted that the Petitioners voluntarily appeared in examination, whenever the same was scheduled and there is nothing on record to show that they ever agitated not to take the examination for the reasons, including on premises on which case is being argued. Even otherwise, the petitioner had to appear in different chances on account of their failure in the earlier chances, therefore, they opted to appear for four times in the examination to clear the examination as early as could be passible. As such we are of the opinion the there is no discrimination at all, besides, this Court in number

of cases, reference of which has been made in the impugned judgment and relevant para there from has also been reproduced herein above, has held that the student who failed to clear examination in prescribed four chances, is not entitled to claim any chance, therefore, following the dictum laid down in these judgments we are not inclined to interfere in the impugned judgment”

Furthermore, the judgments of the Apex Courts and the Division Benches are binding upon this Court under Articles 189 and 201 of the Constitution, hence it has to follow the law laid down.

9.In Muhammad Sulman Ghani case Supra the Hon’ble Lahore High Court has held as follows:

“The Petitioner’s fundamental right to seek education is subjected to the Statute framed by the State to regulate the studies. The University and institutions are meant to impart education to the students who really are desirous to seek the same. In Medical Education hard work and devotion is not being exhibited by the students. Prior to promulgation of the rules., Petitioners were governed by statute and regulations of Punjab University which put embargo of clearance of examination in four chances availed or unavailed. If a student fails to clear examination in the prescribed chances he shall cease to become eligible for further medical education. The validity of rule restricting chances came up for consideration in case of Akhtar Ali Javid v. Principal , Quaid-e-Azam Medical College, Bahawalpur 1994 SCMR 532; Maroof Khan v. Principal Ayub Medical College, Abbottabad and 4 others 1996 SCMR 1101 and Munaza Habib and others v. Vice-Chancellor and others 1996 SCMR 1790, wherein the Honourable Supreme Court of Pakistan held that a student, who fails to clear the examination in the prescribed four chances is not entitled to claim any further allowance.”

10.In view of above position of law and facts, the petitioners have rightly been denied next chance after availing four consecutive chances in the 1st Professional MBBS Part-II examination. The Petitioners have appeared four times in the 1st Professional MBBS

Part-II examination but could not succeed and therefore, have left no room to get extra favour contrary to the Rules and Regulations of UHS & PMDC under the garb of hardship/ unavoidable circumstances. The Petitioners have also not relied on any relevant Regulation of the UHS or PMDC allowing them benefit of hardship.

The contention of hardship raised by the learned counsel for the Petitioners is a matter of fact which needs to be proved through evidence and this Court under the Constitutional jurisdiction cannot go into the factual controversy. Consequently, the instant petition being bereft of any merit is hereby dismissed.

(JAWAD HASSAN)

JUDGE

*M.NAVEED*