2000 PLP 1222 (SCMR)

SAIDUZZAMAN SIDDIQUI, C.J:

In the abovementioned two petitions, leave is sought by the petitioners against a consolidated judgment of Hon'ble Division Bench of High Court of Sindh dated 22-9-1999 whereby as many as 9 Constitutional petitions, wherein validity of the following rule in the Prospectus of Medical Colleges in Sindh for the years 1994-95 was called in question, were dismissed. "

8. Any student who fails to clear first Professional M.B.,B.S./B.D.S. Examination in four chances availed or unavailed shall cease to be eligible for further Medical/Dental Education ire Pakistan. " The admitted position in Civil Petition No.646-K of 1999 is that the petitioner, who was the student of Sindh Medical College, failed to clear First Professional M.B.B.S. Examination in 4 attempts which she availed. The petitioner's contention before the High Court was that she failed in her attempts to clear First Professional M.B.B.S. Examination as she had fallen sick, but despite her illness she appeared in the examination and failed to qualify the same. Since ,the petitioner failed to qualify the First Professional M.B.,B.S. Examination in 4 attempts, in terms of the rule 8 of the prospectus, there is hardly any scope for the argument that she should be allowed a further chance to qualify the same. The validity of a -similar rule was examined by this Court in the case of Akhtar Ali laved v Principal. Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 and it was observed as follows:-- "The above rule being the part of the prospectus for the academic year 1986-87, under which the appellant was admitted to M.B.,B.S. Classes, his right to continue his studies was governed by that rule. The appellant having availed four clear chances to clear his First Professional M.B.,B.S. Examination, and failed could not claim any right to continue his studies in view of the . abovementioned rule. The learned counsel for the appellant is unable to show that the above-quoted rule contravened or came in conflict with any provision of law made applicable to the respondent's institution. The learned counsel for the appellant is also unable to demonstrate that the above-quoted rule contravened any of the fundamental rights guaranteed under the Constitution. The right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above-quoted rule, in our view, does not infringe upon the right of a student to pursue his studies in the Medical College. On the contrary it ensures arrest of falling standards of education in such institutions. We, therefore, do not find any arbitrariness or unreasonableness in the aforesaid rule." The dismissal of Constitutional petition by the High Court, in view of abovestated legal position, is unexceptionable.

2. In Civil Petition No. 619-K of 1999, the petitioner, a Saudi National and a student of Dow Medical College, also failed to qualify First Professional M.B.,B.S. Examination in 4 chances which were available to him under the above-quoted rule of the prospectus. The learned counsel for the petitioner, however, very vehemently contended that the petitioner had availed only 3 chances as he could not avail the first chance in January, 1997 on account of his illness. The learned counsel for the petitioner went on to argue that it cannot be held in these circumstances that the petitioner failed to qualify his First Professional, M.B.,B.S. Examination in four chances, availed or unavailed, as according to learned counsel for the petitioner was prevented by circumstances beyond his control from appearing in the examination held in January, 1997. To support his contention, the learned counsel relied on the cases of Asim Siddiqui v. Principal, Ayub Medical College, Abbottabad PLD 1992 Peshawar 52 and Zubair Ishtiaq Qureshi v. Chairman, Academic Council and Principal of Sindh Medical College 1993 CLC 1675. The learned counsel also contended that under the interim orders passed by the High Court in his case on 18-1-1999, the petitioner appeared in the examination and he qualified the same, and therefore, he is entitled to pursue his studies further. In so far the contention of the learned counsel for the petitioner that the petitioner appeared in the supplementary examination under the interim orders passed by the High Court in his Constitutional petition on 18-1-1999 and passed the same and therefore, he is entitled to continue his studies, is concerned, it may be mentioned here that the interim order allowing the petitioner to appear in the examination, which was to be held in January, 1999, was subject to the condition that the petitioner may appear in the examination at his own risk and subject to the final decision of the case on merits. Since the High Court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January, 1999 under interim orders of the Court the petitioner passed the examination, would be of no avail. The learned counsel for the petitioner, however, has very vehemently contended that since the petitioner was sick during the period from 20-1-1997 to 27-1-1997 when the first chance arose, he shall not be deemed to have availed that chance as he was prevented for reasons beyond his control; to appear in the first chance. To support his contention, the learned counsel has relied on the case of Asim Siddiqui v. Principal, Ayub Medical College, Abbottabad (supra). In Asim Siddiqui's case relied by the learned counsel for the petitioner, the petitioner could not avail 4 chances provided to clear the First Professional M.B.B.S. Examination because of his illness for which he had duly obtained leave from college authorities. It was in this context that the learned Judges of Peshawar High Court observed in that case, that the above rule in the prospectus cannot be interpreted in a manner that under all circumstances which may be even beyond the control of the student, he has to avail 4 chances provided in the prospectus. The cited case is quite distinguishable on facts. Asim Siddiqui's case was cited with approval by the Bench of High Court of Sindh in the case of Zubair Ishtiaq Qureshi v. Chairman, Academic Council and Principal of Sindh Medical College (supra). However, from the facts stated in Zubair Ishtiaq's case (supra), it appears that the matter regarding illness of the student was not examined by the authorities concerned and the counsel appearing for the college authorities had conceded before the Court to provide one last chance to the student and consequently, the petition was disposed of on basis of that statement. In the case before us, we find that in the comments filed on behalf of college authorities in the High Court, it is clearly stated that the petitioner did not inform the college authorities about his illness which prevented him in appearing the examination in 199"

7. The medical certificate, which the petitioner produced before us, though dated 27-1-1997, was submitted to the college authorities in the year 1998 alongwith an application filed by the petitioner after he was issued notice for his expulsion from the college. In these circumstances, there was hardly any occasion for the college authorities to have examined the contention that the petitioner was prevented by some unavoidable circumstances from availing the first chance. We are, therefore, of the view that the learned Judges of the Division Bench of High Court of Sindh rightly came to the conclusion that the petitioner was not entitled to any further chance in view of the provisions contained in the prospectus of the college which governed continuation of studies of the petitioner in the college. No case for interference with the judgment of High Court is made out. The C petitions are, accordingly, dismissed and leave is refused. Q.H./M.A.K./A-27/S

Petition dismissed.