Rasool Khan Vs Khyber Medical University

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

W.P. No.1161-D/2017 with Interim Relief.

Rasool Khan Vs.

Khyber Medical University & 5 others.

JUDGMENT

Date of hearing: 20.02.2018.

Appellant-Petitioner By: Inam Ullah Khan Kundi Advocate.

Respondent By: Mr. Salahuddin Khan Gandapur Advocate and Mr. Kamran Hayat Khan Miankhel AAG

SHAKEEL AHMAD, J.- By filing the instant writ petition, it is prayed that the respondents be directed to allow the petitioner to appear in the MBBS 1st Professional Supplementary Examination, 2017, and to take his further education completed successfully and not to create any hindrance in the way of his education to meet the ends of justice.

2.Briefly, the facts of the case are that the petitioner is a student of 1st Professional MBBS, Gomal Medical College, D.I.Khan. He has taken 1st Professional MBBS Examination, held in October/November, 2015, and failed in all the subjects i.e. Anatomy, Biochemistry and Physiology. Thereafter, he again appeared in the 1st Kifayat/*

MBBS Professional Supplementary Examination, 2015, and failed in all subjects. The petitioner did not appear in 1st MBBS Professional Annual Examination, 2016, on the ground of his illness and hospitalization in Civil Hospital, Kabal at Swat (as alleged). Third time, the petitioner appeared in 1st MBBS Professional Supplementary Examination, held in 2016, and failed in the subject of Physiology. The petitioner sought permission to avail 5th chance in the 1st Professional MBBS Examination, 2017, but was not allowed, hence this constitutional petition.

3.It is mainly argued by the learned counsel for the petitioner that the petitioner could not appear in 1st Professional MBBS annual Examination, 2016, due to his illness and hospitalization, thus could not avail the 3rd chance, therefore, he is entitled to appear in the next examination.

4.Conversely, the learned counsel for the respondents assisted by the learned Additional Advocate General, jointly argued that any student who failed to clear 1st Professional MBBS Examination in four chances, availed or un-availed, shall cease to be eligible for medical and dental education in Pakistan. In support of their contention, they read out Regulation 4(ii), framed by Pakistan Medical and Dental Council, and argued that he is debarred from appearing for further examination.

Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

5.Arguments heard and record perused.

6.Admittedly, the petitioner availed three chances to qualify 1st Professional MBBS Examination, but remained unsuccessful, he could not avail 3rd chance in 2016, on account of his illness and hospitalization, as alleged in the writ petition. The only question for determination before us, is as to wither un-availed 3rd chance to appear in 1st Professional MBBS Examination, could be counted towards 4th chance and whether he could be debarred from next examination on account of un- availed chance. In order to answer this question, it will be advantageous to reproduce Regulation 4(ii), framed by the Pakistan Medical and Dental Council, which reads as under:-

(i)................

(ii)“Any student who fails to clear First Professional MBBS examination in 4 chances availed or un-availed shall cease to be eligible for further Medical/Dental Education in Pakistan”.

7.The provision of Pakistan Medical and Dental Council Regulation remained under discussion before the superior Courts and it is the consistent view that failing to qualify 1st Professional MBBS Examination in four chances offered by the University would debar the student from availing 5th chance. In this respect, reliance can be placed on the case of Munaza Habib and others Vs.

Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

TheVice Chancellor and others (1996 SCMR 1790), wherein it was held as under:-

“The petitioners were offered 4 chances to qualify the 1st professional MBBS examination and having remained unsuccessful, cannot legally compel the University Authority to provide them further chances”.

Reliance can also be placed on the case of Akhtar Ali Javed Vs. Principal Qaid-i-Azam Medical College Bahawalpur (1994 SCMR 532), wherein the apex Court declined the relief while dismissing the appeal of the student asking for further chance beyond four.

Similar view was expressed by the apex Court in the case of Syed Mufeed Shah and another Vs. Principal Khyber Medical College, Peshawar and others (2006 SCMR 1076). Guidance can also be sought from Maroof Khan Vs. Principal Ayub Medical College, Abbottabad (1996 SCMR 1101), followed by the Peshawar High Court, Peshawar in the case of Lubna Hameed Vs.

Controller of Examination Khyber Medical University (2017 MLD 102) and Shakir Ullah Khan and another Vs. Khyber Medical University through Registrar and another (2015 YLR 2488) and held as under:- “All the petitioners were provided four chances, and they availed the same but they failed to clear all the subjects hence under the PMDC regulation they are debarred from appearing in ensuing examination”.

Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

8.In the instant case, the petitioner was given four chances, but he did not avail the 3rd one, therefore, the contention of the learned counsel for the petitioner that his un-availed chance could not be counted towards the 4th chance, is based on misconception. The Regulation, referred to above, has clearly provided that a student who failed to clear 1st Professional MBBS examination in four chances, availed or un-availed, shall cease to be eligible for further Medical/Dental Education in Pakistan. The case of the petitioner falls within the ambit of Regulation 4(2), therefore, relief sought by him, cannot be granted. Even otherwise, the petitioner has not challenged the vires of the ibid Regulation.

9.For what has been discussed above, we find no merit in the writ petition, therefore, the same is hereby dismissed in limine.

Announced.

Dt: 20.02.2018.

JUDGE

JUDGE

Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad