2016 PLP 1622 (YLR)

QAISER RASHID KHAN, J.

Aggrieved of the judgment dated 05.12.2013 of this court passed in W.P. No.2283-P/2013, Messrs Al-Razi Medical College, Peshawar (hereinafter referred to as "the college") had preferred a CPLA No.2098/2013 before the Hon'ble apex court which was remitted to this court on 07.01.2014 to treat the same as a Review Petition.

2. Learned counsel for the college argued on various aspects of the case. However, his main grouse and grievance against the judgment dated 05.12.2013 of this court is that despite arrayed as a respondent college in the writ petition, no notice was issued to it to appear before this court and to defend itself and thus the college was condemned unheard. He contended that in the absence of the representative of the College or for that matter its counsel, certain remarks were passed in the judgment under review which are detrimental to the interests of the College and the same are not in accordance with the facts relevant to the matter. He further contended that after getting recognition from the PMDC, as directed by the respondent/university, then the latter was under a legal and moral obligation to accord affiliation to the college but the same was/is being unnecessarily delayed by the authorities of the respondent/university for patent mala fide reasons which is a typical case of victimization and discrimination. He thus urged that the observations made in the judgment under review against the college as well as the directions to the college to pay the amount to the petitioners be recalled. He further contended that the college has also brought a separate W.P. No. 164/2014 seeking the redressal of its grievance vis- -vis affiliation by the respondent university which is also pending adjudication.

3. The learned counsel for the petitioners/students in the main W.P. No.2283-P/2013 on their turn defended the impugned judgment of this court in its entirety. They expressed their total satisfaction over the same and made a firm statement in the court that the petitioners i.e. students of Al-Razi Medical College would under no circumstances like to enter its portals once again as all through their one year stay at the college, they were confined in small premises with no medical and clinical facilities for the students as widely publicized by the college in its prospectus and moreover, the commitment by the college that they would get affiliation with the respondents/university has not materialized. The learned counsel argued that the poor students were in fact hoodwinked despite paying millions of rupees to the college authorities and through the judgment whereby directions were issued to the respondents/university to adjust and accommodate them in the other colleges of the province came as sigh of relief for them as their future career has been saved through the said judgment.

4. The learned counsel for the respondents/university on his turn, also forcefully defended the impugned judgment of this court and argued that it is not incumbent upon the respondents/university to grant affiliation to the college when the latter has failed/neglected/refused to fulfill the laid down criteria for the grant of affiliation. He argued that the college authorities have been practically playing hide and seek with the university authorities during all this time and have been deliberately delaying the affiliation as it is failed to live up to the mandatory and statutory pre-requisites.

5. Arguments heard and available record perused with the assistance of the learned counsel for the parties.

6. Admittedly, it was the students of the college who preferred the writ petition under review before this court, wherein, they sought the following prayers:-- (i) Declare that petitioners having studied in duly recognized medical college in consequence of judgment of apex court and having been registered with the PMDC as medical students for current session, are entitled to appear in the MBBS 1st Professional Part-I exam to be conducted by Khyber Medical University, being their degree awarding university as per gazette notification dated 12.12.2012. (ii) Direct the respondent (Khyber Medical University) to immediately issue formal affiliation letter to the Al-Razi Medical College and after issuing them roll numbers petitioners and other eligible students of the college shall be allowed to appear in MBBS 1st Professional Part-I exams.

7. Undoubtedly, the said order was passed in the absence of the college/ respondent No.5 in the petition. Since it was more of the grievance of the petitioners/students before this court and when nobody from the college was in attendance before this court then we feel that certain observations passed against the college in para-7 as well as directing them to pay the amount to the petitioners/ students so received by them were not in the fitness of circumstances. In this respect we always seek guidance and inspiration from the golden principle of audi alteram partem. Moreover, the question of grant of affiliation of the college is the subject matter of another pending W.P. No.164/ 2014 wherein comments have been sought from the university authorities.

8. As a sequel to the above discussion, we allow this Review Petition to the extent whereby we recall the observations made in para-7 of the judgment of this court dated 05.12.2013 in Writ Petition No.2283-P/2013 as well as the directions to the college authorities to pay the amount so received by them at the time of admission to the petitioners/ students. Before parting with this judgment, we deem it imperative that any observations recorded in the main judgment as well as the present one should in no manner prejudice the decision in the pending W.P. No.164/2014, which should be decided strictly on its own merits and in accordance with law. ZC/433/P Petition allowed.