2005 PLP 467 (CLC)

(d) The impugned action is otherwise in derogation of the rule of locus poenitentiae and illegal.

6. Mr. M. Aftab Iqbal Chaudhree, Advocate, addressed the Court on behalf of the petitioners in Writ Petition No. 14760 of 2004. He adopted the arguments of Mr. Iqbal Mahmood Awan, Advocate, but made the following additional points:‑‑ (1) quoting from paragraph 40 of the Full Bench judgment (supra) the learned counsel emphasized the following observations:‑‑ "However, since the affiliation granted by the University of the Punjab to those colleges was in derogation to the mandatory provisions of University of Health Sciences Ordinance, 2002 was itself void, the order of the withdrawal of the said affiliation becomes inconsequential and it is held so." The learned counsel asserted that the transitory affiliation of L.M.D.C. with University of the Punjab having been declared void by the Full Bench, the U.H.S. should have followed the examination policy of Baqai University, Karachi rather than University of the Punjab; (b) with respect to the foregoing, the U.H.S. was bound by its consent recorded in order dated 14‑7‑2004 passed in Writ Petition No. 11807 of 2004 wherein the Registrar of U.H.S. had committed to grant "weightage to internal evaluation" in accordance with the practice and rules of the previous University to which the students were affiliated.

7. On the foregoing basis the learned counsel contended that refusal by the U.H.S. to allow the said weightage in the case of the petitioners was illegal. Mr. Wajih‑ud‑Din Pervaiz, Advocate, in Writ Petition No.12685 of 2004 adopted the arguments already noted on behalf of other learned counsel in the aforementioned connected writ petitions. Prior to the enforcement of U.H.S. Ordinance, 2002, the L.M.D.C. had, as a matter of fact, voluntarily obtained affiliation with University of the Punjab on 12‑10‑2002. After the Full Bench judgment was announced on 16‑7‑2003, the L.M.D.C. applied to the U.H.S. by its letter dated 19‑7‑2003 for affiliation with the following representation:‑‑ "The institution is arranging instructions in accordance with the syllabus and curriculum of the Punjab University for both M.B.,B.S. and B.D.S. since its affiliation with Punjab University and the current sessions of all classes will be completed around October, 2003. "

8. On behalf of U.H.S., respondent No.1, Mr. Najam‑ul‑Hassan Kazmi, Advocate, made the following submissions, in defence of the action impugned in the writ petitions. (i) The L.M.D.C. was given affiliation by the U.H.S. under direction of the Full Bench in the following terms:‑‑ "In the meanwhile University of Health and Sciences shall entertain the application of these colleges for the grant of affiliation and as their eligibility qua affiliation had already been determined by the University of the Punjab, they shall be granted the requisite affiliation in the same terms they had with the University of the Punjab i.e. provisional or permanent affiliation as the case may be". (ii) The U.H.S. had acted strictly in accordance with the policies of University of the Punjab whilst establishing the criteria of promotion of the students of L.M.D.C. the internal evaluation system invoked by the petitioners has no place in University of the Punjab Regulations and therefore, this system has not been adopted in the assessment criteria .of L.M.D.C. candidates. (iii) Bahauddin Zikiria University, Multan, however, maintains an internal evaluation system and therefore, Nishtar Medical College, Multan, which was previously affiliated with the said university, has been allowed to retain that practice in the evaluation of the over all performance of its students. (iv) At the time when L.M.D.C. sought affiliation with U.H.S. through its letter, dated 19‑7‑2003, or at any time thereafter, no request has been made by L.M.D.C. to the U.H.S. for introducing/allowing the internal assessment of its candidates to be one of the criteria for evaluation of their performance. (v) The P.M.D.C. Regulations have to be approved by the Federal Government in order to obtain legal effect. The Regulations of August, 1998 relied by the petitioners have not been approved by the Federal Government and, therefore, do not have statutory force to bind the U.H.S. Even if the Federal Government had approved these rules, they would be directory in nature. (vi) That the conduct of the several writ petitioners before this Court is uniform for not seeking at any time prior to taking their annual examinations any dispensation from the U.H.S. for inclusion of the criteria of internal assessment for the evaluation of their performance. Having failed in the annual examination these petitioners appeared in supplementary examination without raising any demand for including the benefit of the internal assessment tests. In fact the U.H.S., has thereafter, even provided a third opportunity to make up to the failing students in a supra supplementary examination. At that stage also no claim on the basis of internal assessment was raised by any of the petitioners. The present petitions filed on the basis of the internal assessment are belated afterthought by the petitioners to pass their promotion examination. (vii) The U.H.S. has strived to treat all similarly placed students in the same manner without any discrimination whatsoever. Accordingly the treatment meted to the students of L.M.D.C. is the same as the treatment given to students of other colleges that were affiliated to the University of Punjab prior to their affiliation with U.H.S. These include Allama Iqbal Medical College, Lahore, Punjab Medical College, Faisalabad, Rawalpindi Medical College, Rawalpindi and Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. (viii) That certain essential conditions must exist to enforce the system of internal assessment. These crucial features are absent in the present cases. The result of internal assessment must be forwarded to the University prior to the holding of the examination. This is necessary so that internal assessment cannot be manipulated to alter the aggregate result in case a candidate has done poorly in the examination. In the present case no internal assessment record has been forwarded at any stage by the L.M.D.C. to the U.H.S. (ix) In fact the L.M.D.C. has not maintained any such record. If indulgence in this respect was to be granted by this Court, it would open the door for manipulating, such assessments to undo the effect of failed performance in the aggregate results. (x) Henceforth the U.H.S. has created a uniform system for requiring internal assessment of students according to the prescribed procedure by the respective Medical Colleges affiliated to it, on the basis of which U.H.S. shall award 10% weightage towards the aggregate score of the candidates.

9. In consequence of the foregoing submissions, the learned counsel for the U.H.S: has asserted the validity of the impugned action and prays for dismissal of the writ petitions.

10. We have heard the learned counsel for the parties and have carefully perused the record with their help.

11. At the three stages of examinations that the petitioners have taken and failed, they did not raise any objection about the lack of internal evaluation system as a basis of their over all performance. By their conduct the petitioners, demonstrate that their present assertion is a belated initiative to get pass marks in their final examinations. On the other hand the petitioners rely upon the conduct of U.H.S. to establish their case. However, the record shows that the right of affiliating colleges that is recognized by the judgment of this Court as also by the representations of U.H.S., is to confer the same benefits on students of such college as were enjoyed by them under the policies of the University of the Punjab that was in vogue for those colleges. In the case .of L.M.D.C., its letter dated 19‑7‑2003 seeking affiliation with the University of Punjab declares that the L.M.D.C. is imparting instruction to its students in accordance with the syllabus and curriculum of University of the Punjab. The notification dated 12‑10‑2002 by University of the Punjab granting affiliation to the L.M.D.C. is subject, inter alia, to the condition that L.M.D.C. shall follow the admission policy approved by University of the Punjab. It is accepted by the petitioners that University of the Punjab does not have a system for internal assessment as a criteria for evaluation of performance of its students. 12. 'Therefore, the U.H.S. is justified in omitting such a system of evaluation from the examination criteria for the students of L.M.D.C The case of Nishtar Medical College, Multan, is distinguishable from L.M.D.C. because that college was not affiliated previously with University of the Punjab but with Bahauddin Zikiria University, Multan where the system of internal assessment was in vogue and was, therefore, recognized by U.H.S. The terms of previous affiliation are a reasonable criterion of distinction that was recognized by the Full Bench of this Court and has been duly implemented.

13. It may be observed that P.M.D.C. Regulations have binding force under the law declared by this Court in case of M. Umar Farooq v. P.M.D.C. and others 1997 CLC

534. However, for the P.M.D.C. regulations to be effective, it is necessary under section 33 of the Pakistan Medical and Dental Council Ordinance, 1962 that such Regulations should have received approval of the Federal Government. The Regulations relied by the petitioners have not been approved by the Federal Government and therefore, do not have the binding effect.

14. The treatment accorded by the U.H.S. to the students of Nishtar Medical College, Multan, cannot also attract the principle of locus poenitentiae in respect of the petitioners .because no representation, or decisive step had been taken by the U.H.S. in offering internal assessment to L.M.D.C. students that can 'be treated by this Court to constitute a bar for the U.H.S.

15. In any event, no vested right has accrued to the petitioners for claiming the benefit of internal assessment as a means of evaluation of their performance. This is because the policy in the matter of examination results was known at the time of the affiliation of the L.M.D.C. with the U.H.S. on 24‑7‑2003 whereas determinative date when the examinations in question were held is after April, 2004. In a lucid exposition of this point the Honourable Supreme Court in Miss Sultana Khokhar and 2 others v. The University of the Punjab through its Registrar PLD 1962 SC 35 observed as follows:‑‑ "Before parting with this matter we would like to add that, in spite of a careful examination of the provisions of the Punjab University Act and the statutes framed thereunder we have not been able to discover therefrom anything which would support the right sought to be asserted in this case. To uphold such a right would amount to placing an impossible burden upon the University, for, then it may well have to conduct' different examinations upon different standards in each year in respect of the same degree for different students or groups of students in accordance with the Statutes, Ordinances and. Regulations prevailing on the dates of their respective admission, even though the same may have long since been validly altered in accordance with the provisions of the Act. This could never have been the intention of the framers of the Punjab University Act. We have no hesitation, therefore, in coming to the conclusion that no such vested right exists in the examinees which can be enforced by a writ of mandamus."

16. Finally it is important to note that the system of internal assessment can be implemented only under specified safeguards. One of the safeguards is to have the result of the internal assessment conveyed to the examining authority of the administering university prior to the conduct of the examination itself. In this way such assessment cannot be changed in order to avoid the consequences of a poor or fail performance in the examinations. In the present case no such assessments have been forwarded by the L.M.D.C. to the U.H.S. In fact U.H.S. strongly contends that there are no records of such internal assessment of the; petitioners actually in existence with the L.M.D.C. If this Court were to allow incorporation of such assessment in the aggregate results of the petitioners at this stage then there is a serious possibility that these assessments may be exaggerated to undo the fail results that petitioners have obtained in their examination attempts.

17. In view of the abovementioned reasons, we see no merit in these petitions, which are accordingly dismissed. M.B.A./A‑340/L Petitions dismissed.