2000 PLP 511 (YLR)

SYED ZAHID HUSSAIN, J.‑‑‑Writ Petition No.12203 of 1997 and W.P. No.12202 of 1997 on some what identical facts and points filed by the appellants were dismissed by the learned Single Judge of this Court vide judgment, dated 6‑3‑1998. I.C.A. No.575 of 1998 arises out of Writ Petition No. 12203 of 1997, whereas, Intra Court Appeal No.576 of 1998 arises out of Writ Petition No.12202 of 1997. The petitioners were heard together by the learned Single Judge, likewise, these appeals have been heard together and are being disposed of through this common judgment. Intro‑Court Appeal No. 575 of 1998.

2. Nighat Sultana, got admission in M.B.B.S. class, for the session 1989‑

90. She took part in the first professional examination M.B.B.S. Annual, held in the month of October, 1991 but could not clear the same. She availed second chance in the supplementary, 1991 and was unable to clear. She did not appear in the Annual, 1992 examination to avail third chance stately on account of sickness. She appeared to avail the fourth chance in supplementary 1992 but failed. She was, then informed that she was not eligible to continue studies as she had not been able to clear the examination in the four available chances. She filed Writ Petition No. 12203 of 1997 which was dismissed by the learned Single Judge on 6‑3‑1998 which is the subject‑matter of the present appeal. Intro‑Court Appeal No 576 of 1998.

4. Asima Khalil got admission in the M.B.B.S. class for the session 1990‑

91. She appeared in the first professional M.B.B.S. Annual Examination, 1992 but could not clear. She availed second chance in Supplementary 1992 and, thereafter, third chance in first Annual, 1993 but could not clear. The fourth chance available to her was the supplementary, 1993 to be held in April, 1994 but stately could not avail the same on account of her sickness. She was, thereafter, informed that she was no more eligible to continue her studies in accordance with the regulation. She challenged the same by filing Writ Petition No. 12202 of 1997 which was dismissed by the learned Single Judge on 6‑3‑1998 which judgment has been challenged through this Intro‑Court Appeal.

5. The same arguments as were addressed before the learned Single Judge have been advanced before us that if for any reason a student is not able to avail a chance the same should not be counted towards four chances available under the regulation. It is contended that the regulation cannot be interpreted in an unreasonable manner so as to deprive the student of a chance which could not be availed on account of the circumstances beyond control. The validity of the regulation has also been assailed on the ground of its being harsh and causing manifest injustice.

6. On the other hand, the learned counsel for the University has contended that in terms of decisions of Pakistan Medical and Dental Council and of the University, if a student fails to clear the first professional M.B.B.S. examination in four chances, offered by the University whether availed or unavailed, he/she ceases to be eligible for further studies. It is contended that the said rule/regulation has been held to be valid by the superior Courts. Reference has been made to Akhtar Ali Javed v. Principal, Quaid‑i Azam Medical College, Bahawalpur (1994 SCMR 532) to support his contention. It is further contended that Nighat Sultana appellant in Intro‑Court Appeal No.575 of 1998 had filed Writ Petition No‑11702 of 1993 which was dismissed on 26‑4‑1994 but the said fact has not been disclosed either before the learned Single Judge or before this Court by her. Her petition/appeal was liable to be dismissed for this reason alone.

7. The Pakistan Medical and Dental Council is a body constituted under the Medical Council Ordinance, 1962. It has the authority to lay down standards of study and proficiency for the purposes of granting qualifications. By letter, dated 20‑3‑1988, the decision of the council was conveyed that a student should clear his first professional M.B.B.S. examination in four chances offered by the University, availed or unavailed. This decision was implemented by the Universities through regulations adopted by the Syndicate. Thus, any challenge to the same on any ground has no valid basis.

8. That the law provides only four chances to a student to clear first M.B.B.S. professional examination is beyond doubt. The case of the appellants is that she missed chance for any reason should not be counted towards the four chances available to a student. In these appeals one thing is common that some‑how the appellants fell sick and could not avail one chance. Thus, they claim a further chance. The same contention was repelled by the Single Judge in view of the pronouncements by the Hon'ble Supreme Court in Akhtar Ali Javed's case (supra) and Muhammad Hamid Shah v. Pakistan Medical & Dental Council through Secretary and 4 others (1996 SCMR 1101) that not only the regulation is valid but in all circumstances an examinee is expected to clear the examination in four chances whether availed or unavailed. In C.P.S.L.A. No.1514‑L of 1997, decided by their lordships on 3‑2‑1998, the case of the petitioner was that he could not avail the chance on account of partial blindness. Referring to Akhtar Ali Javed's case (supra) it was observed that "if a student failed to clear first professional M.B.B.S. examination in four available chances whether availed or not shall be expelled from the college". The petition for leave was dismissed upholding the judgment of this Court. In view of the above state of law on the subject it can no more be argued that for counting four chances a chance missed or not availed by a student should be excluded.

9. The contention as to the unreasonableness of the action against the appellants is also not tenable for the reason that not one or two but four chances are made available to a student to clear the examination and if someone yet fails to clear the same he loses his right to continue to study in a professional college. It cannot be left open at the will of a student to avail as many chances as a student may like to have. Thus, neither the Regulation/Rule fixing the duration and number of chances be regarded as harsh or unreasonable nor the action taken in pursuance thereof.

10. In the case of Nighat Sultana, despite having failed to clear in four available chances, she filed a petition i.e., Writ Petition No. 11702 of 1993, appeared for the fifth time on account of an interim order in the writ petition which petition, however, was dismissed on 26‑4‑1994. This material fact was not disclosed in the writ petition, filed by her or in the appeal. She, thus, cannot take benefit of the fifth chance, which was not otherwise available under the law.

11. For the above said reasons, we are not inclined to take a different view in the matter and uphold the view taken by the learned Single Judge in dismissing the writ petitions, filed by the appellants. These appeals are accordingly dismissed. No order as to costs. Q.M.H./M.A.K./N‑190/L Appeals dismissed.