2020 PLP 734 (YLR)

QAISER RASHID KHAN, J.

Through the instant petition, the petitioner has sought the review of the judgment of this court dated 01.03.2018 in W.P. No. 5009-P/2018 whereby his petition was disallowed.

2. All that the learned counsel for the petitioner vehemently urges is that the petitioner had filed a declaratory suit against the respondents before the learned Senior Civil Judge, Peshawar wherein the learned court after preliminary arguments referred the case of the petitioner to the respondents to treat the same in accordance with the PM&DC Regulations and that without any order of interim relief from the trial court in her favour, she was allowed to avail the 5th chance in the MBBS 1st Professional Exam and thereafter she continued her studies till her final year when one fine morning she received the impugned notification whereby her registration was cancelled. He contends that undoubtedly, the PM&DC Regulations allow four chances in a single Professional Exam to all students to qualify the exam but in the case of the petitioner, she had not resorted to any suppression of facts or for that matter deceived the respondent-university in respect of the order dated 03.11.2012 of the learned trial court and that it was for the respondent-university to have seen for itself as to whether the petitioner was entitled to be allowed to participate in the MBBS 1st Professional Exam when she had already availed of 4 chances. He contends that it is a hardship case and that she has suffered on account of the respondent-university by not fully comprehending the court's order. The learned counsel for the petitioner also presses into service the doctrine of Locus Poenitentiae and states that an act once consented to and acted upon by the respondent-university cannot be rescinded subsequently through the impugned notice. The learned counsel or the respondent-university as well as PM&DC on their turn support the impugned notification on almost on the same grounds as mentioned therein besides contending that there is no concept of 5th chance for a student to appear in any Professional Exam of MBBS.

3. Arguments heard and the available record perused.

4. Before attending to the respective arguments of the learned counsel for the petitioner, it would be more apt to state that the review jurisdiction can only be exercised under section 114 and Order XLVII, Rule 1, C.P.C. when its pre-conditions so warrant. Review jurisdiction of a court can be invoked under the above provisions of law when new and important matter or evidence is discovered, which despite due diligence was not in the knowledge of the petitioner or could not be produced at the time when the decree or order was passed and secondly, on account of some mistake or error apparent on the face of the record or for any other sufficient reason.

5. As is evident from the judgment of this court dated 01.03.2018 in W.P No. 509-P of 2018 and the facts emanating from the petition, the petitioner got admission in 1st year MBBS Jinnah Medical College way back in the year 2008-2009 and appeared in 4 chances but could not qualify her 1st year professional exam and, on being denied permission by the respondent-university to appear in 5th chance, she filed a declaratory suit before the learned civil court wherein only directions were issued to the respondents to entertain her application in accordance with PM&DC Regulations. The record further shows that thereafter the petitioner withdrew her very declaratory suit but somehow she kept on studying in the medical college and ultimately in the final year she was confronted with the impugned notification whereby her registration with respondent-university was cancelled.

6. The primary question before us is as to whether there is any provision under the PM&DC Regulations for a candidate to appear in a Professional Exam by way of 5th chance, the answer is of course a big "NO" in view of the explicit regulations of the PM&DC which have laid down a criteria detailed in the judgment under review of this court. We understand that, if, for whatever reason, the petitioner continued with her studies at the said medical college, the same by no count would mean to defeat the PM&DC Regulations as there is no provision to avail of a 5th chance in any Professional Exam of MBBS. Not only that the PM&DC Regulations but the judgments of this court as well as Hon'ble Apex Court are abundantly clear on the subject and this matter has been settled once and for all and accordingly the fate of an aspirant to appear in the 5th attempt after availing of four chances in a Professional Medical Exam has been sealed. Any departure from the same be that by PM&DC or by the respondent-university is deemed by us to be entirely in violation of law and regulations and would be treated accordingly. The contentions of the learned counsel for the petitioner have been adequately addressed through the judgment under review.

7. Both through the contents of the review petition as well as through the arguments of the learned counsel for the petitioner, in fact the matter decided earlier is being reopened and re-argued. At the time of arguments in the main petition, this court while taking stock of the material available on file as well as the arguments, had decided the matter both on legal and factual side.

8. Accordingly, given the limited scope of review, re-arguing the petition afresh is an exercise which cannot be undertaken in review jurisdiction at this stage. While reviewing the judgment, only clerical or arithmetical error or any mistake floating on the face of record can be corrected. In exercise of review jurisdiction, the court cannot sit as a court of appeal against its own judgment and consequently form a different opinion as is sought by the petitioner in the instant case. As such no such circumstances exist which could warrant the review of the judgment. Reliance placed on Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 Supreme Court 335) wherein the review jurisdiction of the court has been exhaustively discussed.

9. In view of the above discussion, this review petition being without any substance stands dismissed. MH/316/P Petition dismissed.