2005 PLP 1130 (MLD)

‑do‑ i. Medicine (Clinical ii. Surgery (Clinical) 1 mark 5 marks Total: 6 Two 6. 5197/05 Fahad Aman ‑do‑ Medicine (Clinical) 11 marks One 7. 5617/05 Khuram Nazir ‑do‑ Medicine (Clinical & Practical) 6 marks One 8. 5618/05 Zubair Ashraf ‑do‑ Medicine 16 marks One 9. 5619/05 Zahid Saleem ‑do‑ Surgery (Clinical) 9 marks One S.# W.P.# Petitioner's Name College Professional Result 10. 5535 Sultan Mehmood AIM Final Prof. MBBS Subject Failing Margin Surgery 1 Eye 1.5 Total 2.5

3. The above detailed result of the writ petitioners depicts that most of them could not clear two of their subjects and rest of them who failed in one subject, were short by more than 5 marks. .

4. Respondents in response to notice by this Court besides filing report and parawise comments, appeared through their Legal Advisor and maintained that none of the petitioners is entitled to the benefit of the regulation relied by them and according to respondents none of the regulations in question, equipped any of the functionaries of the respondents to grant the adjustment of marks from the other subject or to give grace marks in case of failure of the students in more than one subject or in case of failure in one subject, if the short marks are more than 5 marks. They stressed that these regulations have to be strictly construed/complied and violation of those, if any, in the earlier days, do not furnish lawful basis for alike treatment by coding those incidents as precedent. It was assertively argued that neither the petitioners have claimed any malice on the part of the respondents nor the same is made out from the record, hence, the arguments of treatment of the petitioners with discrimination has no substance. All the writ petitions were contested by them from tooth to nail except in one case (W.P. 4338 of 2005) filed by Zeeshan Hassan students of third Professional Examination MBBS who was declared unsuccessful in two subjects i.e. Community Medicine by two marks, and Pathology by 4 marks. The learned Legal Advisor for the respondents attempted to justify the adjustment of Zeeshan Departmentally by urging that his paper of Community of Medicines was falsely marked by the Examiner with total marks of 99 instead of 100 hence, his deficiency of 2 marks in this subject stood cured if the paper is marked with total marks of 100.

5. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record with their assistance. No doubt Vice‑Chancellor/Chief Executive of the University of the Health Sciences vide office order dated January, 23, 2004, granted 5 extra grace marks in Theory in all the Supplementary Professional Examination held for 2003‑2004, in each subject but through subsequent notification dated 24‑2‑2004, 5 grace marks were ordered to be added to the subject in Theory, Practical, Clinical etc., in various MBBS/BDS Examination provided the candidate who failed in one subject only. The question which hinges for determination is that as to whether Vice‑Chancellor/Chief Executive was competent to confer 5 extra marks in each subject under the Calander of the University of Health and Sciences, Lahore. In order to appreciate the controversy and for ready reference, Regulation No.2 of the Calander, being directly applicable which was notified by the respondents on 14‑7‑2004 is reproduced below namely:‑‑ "The minimum number of marks requires to pass this Examination for each subject shall be fifty per cent (50%) in written, fifty per cent (50%) of the aggregate in the oral and practical/clinical and fifty per cent (50%) in the clinical examination, separately at one and the same time. Candidates who secure eighty per cent (80%) in the Clinical Examination separately at one and the same time, candidates who secured eighty per cent (80%) or above marks in any subject shall be declared to have passed "with distinction" in that subject and no candidate who does not pass in all the subjects of the Second Professional Examination as a whole at one and the same time shall be declared to have passed "with distinction" in any subject. " Besides the above reproduced regulation, the controlling provision for conferment of grace marks, reads as under:‑‑ "Provided a candidate shall be deemed to have passed if he/she fails only in one subject (written, oral and practical and aggregate) by a margin of 5 marks, when, he takes, the Examination, either in all the subjects at one time or having appeared and failed in a part of the examination, re‑appear in the subject in which he had not passed provided further that he/she will be granted this concession only once in this Examination (Annual or Supplementary). The number of marks by which failing in more than one subject shall not be entitled to any grace marks. "

7. It is manifest from the above regulation that a candidate failing in more than one subject was not entitled to any grace marks and the candidate failing in one subject only was to be bestowed with 5 grace marks in order to make up his deficiency in that subject if that be of 5 marks or less. Likewise, minimum pass marks for each subject was prescribed as 50% in writing, 50% of the aggregate in the oral anti practical/clinical examination were separately: required at one and the, same time. In this background, the marks tabulation method would be:‑‑ Examination (1) Theory 50% of the (1) Viva/Practical/clinical/exami allocated marks of the nation/internal assessment Subject. Constituted 50% of the total Allocated marks of the subject. (2) 50% marks out of total (2) 50% marks out of total allocated marks of the allocated marks with at least theory would be the pass 50 % marks in clinical marks. examination were required to pass Examination.

8. Departure from the formula flowing from the above‑referred regulation was not permissible under law, and in expressing this principle, we have backing of earlier precedent set by the superior judiciary of this country in the cases of Karim Bakhsh v. Controller of Examination and others (1997 CLC 1524) and Murid Hussain v. Bahauddin Zakariya University, Multan through Vice‑Chancellor and another (2004 YLR 1375).

9. Office Order dated 23‑1‑2004 and the judgment by the learned Single Judge in Chamber of this Court in, Writ Petition No.2896 of 2004 have no legal basis, as Vice‑Chancellor could not confer 5 grace marks in each subject, in violation of the controlling regulation of the Calander and thus, we feel ourselves handicapped to contribute to this view that such grace marks should not be given to the students in each failing subject. If the view canvassed by the petitioner is adopted, the result would be annulling the regulations which is not the function of the Courts. In alike circumstances, this Court took of its hands from interfering in executive orders, in the judgment in the case of Zahoor Ahmed Azhar v. Islamia University, Bahawalpur, through Vice Chancellor and 4 others (PLD 1998 Lahore 324). Besides it, law has now settled about the proposition that the acts have to be done in the manner prescribed and in no other method. Office Order dated 23‑1‑2004 was unauthorizedly issued, hence, the same did not confer any right on the petitioners to claim that the same treatment be met with them on the basis thereof. Judgment if needed in support of this principle of law, reference can be made to the case of Jalil Ahmad v. Public Service Commission and another (1998 CLC 435).

10. As regard the submissions of the petitioners that the regulations under discussions having been notified on 14‑7‑2004 i.e. during the course of their studies, could not be given retrospective effect, and would apply to students who get admission in MBBS after promulgation of these regulations. We do not see an eye to eye with the petitioners because, these regulations, become instantly applicable and would control the students already getting education with the respondents. This controversy was examined by the Honourable Supreme Court and decision was against the writ petitioners in the case of Miss Sultana Khokhar and 2 others v. The University of the Punjab through its Registrar (PLD 1962 SC 35). The judgment was followed in the case of Muhammad Akbar v. Bahauddin Zakariya University through its Registrar and others (1997 CLC 280).

11. There is no assertion by the petitioner that regulations in hand were tainted with malice towards of the respondents which as a matter of fact were brought in order to get better result and well oriented doctors. Similarly, no case of treatment of the petitioners with discrimination could be made out, as they were treated at par along with 1285 candidates who appeared in final Professional Examination of MBBS. The respondents used one yardstick for all the students in tabulating their results, hence we are not ready to accept that the petitioners were treated with any discrimination. The case of Zeeshan Hassan in Writ Petition No.4338 of 2005 really deserved indulgence by the departmental authorities as his paper of community medicine was marked on the basis of total marks as 99 instead of 100.

12. For the reasons noted above, we have no ambiguity that the petitioners were not entitled to benefit of 5 grace marks having been failed in two subjects, and the candidates failing in one subject, were deficient by more than 5 marks. Their excessive marks in other subjects could not be used to make up deficiency in the failing subjects thus, all these petitions being devoid of force deserved dismissal. Even otherwise this Court cannot undertake exercise of tabulation of marks falling within the exclusive ambit of jurisdiction of the respondents. All the petitions noted above are accordingly dismissed being devoid of any force, with no order as to costs. M.B.A./K‑100/L Petition dismissed.