Zeest shah Vs Gomal Medical College

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

W.P. No.379-D/2016 with Interim Relief.

Zeest Shah Vs.

Gomal Medical College, D.I.Khan & 4 others.

JUDGMENT

Date of hearing: 20.02.2018.

Appellant-Petitioner By: Mr. Tahir Hussain Shah Advocate

Respondent By: M/S Salahuddin Khan Gandapur Advocate and Mr. Kamran Hayat Khan Miankhel AAG SHAKEEL AHMAD, J.- Through this single judgment, we propose to decide the instant writ petition bearing W.P.

No.379-D/2016 and connected writ petition Nos.458- D/2016, 770-D/2017, 791-D/2017 and 928-D/2017, as common question of law and facts are involved therein.

2.By filing the instant writ petition, it is prayed that the respondent No.1 be directed to allow the petitioner to attend the classes of 4th year MBBS and take his education completed successfully and restraining the respondents not to create hindrance in the way of her education to meet the ends of justice.

3.Brief facts of the case are that the petitioner is 3rd year student in Gomal Medical College. She appeared Kifayat/*

in the 3rd year MBBS, supplementary session, 2014, and failed in the subject of Pharmacology Therapeutics. In earlier round of litigation, the petitioner brought a civil suit at Abbottabad, assailing therein the notice No.2087- 9/SAS/GMC/DIKhan dated 28.5.2015, and also sought injunctive relief seeking direction to the respondents to allow her to attend 4th year MBBS classes and to appear in the 4th year MBBS classes, after clearing her failed subject of 3rd year MBBS. Vide order dated 16.6.2015, partial ad-interim relief was granted to the petitioner and she was allowed to attend the classes of 4th years MBBS, subject to any contrary rules and regulations of PMDC and concerned college. Not contended with the same, the petitioner filed an appeal before the learned District Judge, Abbottabad, which was marked to the learned Additional District Judge-VII, Abbottabad for disposal. After hearing the arguments of the learned counsel for the petitioner, the order of the learned trial Judge dated 16.6.2015, was modified in the following manner:-

“Parties counsel present. Arguments heard and impugned order perused. After hearing arguments and perusal of record it revealed that on the very first date of the institution of instant appeal the appellant was granted permission to appear in fourth year MBBS after passing her third year MBBS and in subsequent date of hearing she was allowed to sit in regular classes of fourth year which in itself through above mentioned order both the prayer of the

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

appellants have been accepted. So the impugned order is modified in the light of above prayers of the appeal and the parties are directed to appear before the learned trial Court to proceed on with their trial. Parties are directed to appear before the trial Court on 30.10.2015. File of this Court be consigned to record room”.

4.In pursuance of the order of the learned appeal Court, the petitioner attended the classes and thereafter, appeared in her failed paper and cleared the same in 3rd professional annual examination held in year 2015. It was further asserted in the petition that the petitioner had attended the 4th year MBBS classes regularly and completed her attendance under the umbrella of the order of the learned appeal Court, and submitted her examination form for the MBBS 4th professional annual examination, but the same was returned by the respondent No.2 on the ground that she has passed the 3rd MBBS professional examination on 12.01.2016, and as per rules she is not eligible to appear in two different professional examination in a single academic year, and held her not eligible to sit in the 4th professional MBBS examination and demanded to attend the classes of 4th year MBBS, hence this constitutional petition.

5.It has been argued by the learned counsel for the petitioner that in pursuance of the order of the learned Civil Judge, Abbottabad and order dated 10.8.2015, passed Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

by the learned Additional District Judge-VII, Abbottabad, the petitioner attended her 4th year MBBS classes, therefore, demand of the respondent to attend it again after passing her 3rd professional MBBS annual examination on 12.01.2016, is illegal, without lawful authority, without jurisdiction and malafide, therefore, the same are liable to be set aside.

6.As against that, the learned counsel for the respondent Khyber Medical University and Gomal Medical College assisted by the learned Additional Advocate General, Khyber Pakhtunkhwa, opposed this writ petition by arguing that the University Regulation prohibits a student without passing the corresponding professional examination; that the ad-interim order passed by the learned Civil Judge indicates that it was a conditional order and subject to any contrary provisions of Rules and Regulations of Pakistan Medical and Dental Council and concerned college.

7.We have heard the learned counsel for the parties and gone through the documents annexed with this writ petition as well as the para-wise comments furnished by the respondents.

8.There is no denial to the fact that the Pakistan Medical and Dental Council is a regulatory body for regulating medical and dental profession, medical and Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

dental education and institutions. In discharge of its statutory obligations towards ensuring uniform standard of medical and Dental Education in the Country, by virtue of provisions of Section 37 of the Medical and Dental Council (Amendment) Act, 2012, Section 33(2) of the Pakistan Medical and Dental Council Ordinance, 1962, was amended and Admission in MBBS and BDS Course and House job/Internship/Foundation Year Regulation- 2013 were approved to come into force for admissions from 2013 and onwards. Before the issuance of Regulations 2013, Regulations-2003 were made under the PMDC Ordinance, 1962, which provided the Examination under Section-IV as under:-

3.The first professional examination should be divided into two parts each to be conducted by the university. Any student who fails to pass the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical education in Pakistan.

4.No students can be promoted to the higher classes unless he passed all the subjects of the previous classes.

5.No student should be eligible for a university examination without having attended 75% of the lectures, demonstrations, tutorials and practical or clinical work both in-patients and out- patients.

6.No student shall be promoted to the 3rd year of MBBS class without passing the First Professional MBBS Part-I and Part-II Kifayat/* (D.B) Hon’ble Justice Ijaz Anwar Hon’ble Justice shakeel Ahmad

university examination in Anatomy, Physiology and Biochemistry.

The grievance of the petitioners under the new Regulations-2013 is almost the same in nature, whereunder;

“4. No students can be promoted to the higher classes unless he passes all the subjects of the previous classes.

5.No student should be eligible for a university examination without having attended 75% of the lectures, demonstrations, tutorials, and practical or clinical work both in-patients and out- patients”.

Similar is the provision in the Prospectus for Khyber Pakhtunkhwa Medical/Dental Colleges 2012-2013, wherein almost similar Examination Rules have been made and it will be advantageous to reproduce the same as under:-

“10. A student, who fails to pass a subject/subjects in annual as well as in supplementary examinations, shall not be eligible in next higher class until he/she passes the failed subjects as per procedure. The same shall neither be allowed to attend the next higher classes, nor will his/her attendance be marked in any way. Any attendance of such student marked in subsequent classes, without promotion would be of no legal effect.

14.Only two examinations, one Annual and one Supplementary of the same professional exam/ of the same sessions/ class are allowed in any one academic year. No third or extra supplementary examination is permitted.

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

From bare reading of the above Regulations, it is evident that Regulation No.4 & 5, specifically deal with the promotion of the medical students to next higher class, unless he/she passes all the subjects of the previous classes, therefore, under the Regulation No.4 & 5 and the provisions contained in Regulation 10 of the Prospectus, the petitioners are not entitled for promotion to 4th year MBBS, until they qualify the subjects of previous classes”.

9.The petitioners before us are the students who got admissions under the Regulation 2013 by accepting all terms and conditions of the admission/examination criteria and had also filed their affidavits in this respect.

Controversy between the students and the administration of Medical College arose when certain students failed to qualify some of the papers prescribed for the previous classes of MBBS and they were not allowed to attend the next higher classes as provided in the Regulation 2013, and provisions contained in the Prospectus 2012-2013. The Regulations of the Pakistan Medical and Dental Council are unambiguous and binding on all the Institutions in Pakistan as well as students who had executed affidavits in this respect, thus without clearing all the subjects of previous classes, no one can be promoted. In this respect reliance can be placed on the following judgments:-

(1) 1990 SCMR 1282;

(2) 1998 SCMR 313;

(3) 1995 SCMR 421;

(4)PLD 2008 Lahore 211; and

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

(5) 2015 PLR 55.

10.For what has been discussed above, the

instant writ petition and the connected writ petitions, being bereft of merit, are hereby dismissed.

Announced.

Dt: 20.02.2018.

JUDGE

JUDGE

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