2003 PLP 1348 (CLC)

IJAZ-UL-HASSAN, J.

The petitioners namely, Syed Mufeed Shah and Waqas Hussain Shah, passed their F.Sc. Pre-Medical Examination, securing 789 and 838 marks respectively out of 1100 marks. They were admitted in Khyber Medical College, Peshawar for the Academic Session 1999-2000 after qualifying the requisite entry test anti interview. The petitioners passed Ist Part of the Ist Professional M.B.,B.S. Examination and availed three chances for the second part of the 1st Professional M.B.,B.S. Examination and cleared all the subjects, except Anatomy theory. Resultantly, in pursuance to the rules framed by Pakistan Medical and Dental Council and as reflected in the Prospectus of N.-W.F.P. Medical and Dental Colleges; names of the petitioners were struck off from the College roll and they were expelled froth the College, vide office order dated 3-3-2003.

2. The petitioners, feeling aggrieved, have filed instant Writ Petition (No.308 of 2003) under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenging their disqualification and expulsion from the college, on the ground-that the impugned act of the respondents i.e. not allowing the petitioners to reappear in the Ist Professional Part-II, M.B.,B.S. Supplementary Examination, 2003 and issuing the expulsion letters dated 3-3-2003 be declared illegal, void, without lawful authority and having no legal and binding effect on the petitioners.

3. Mr. M.S.H. Qureshi, Advocate, appearing on behalf of the petitioners vehemently contended that the impugned regulation declaring the petitioners not eligible for further medical education in Pakistan, has been prepared in violation to section 33 of Pakistan Medical and Dental Council Ordinance, 1962 and as such has no entity in the eyes of law. He also maintained that the impugned regulation has not been followed by any other college all over the country and imposition of this regulation in the Medical College of N.-W.F.P., is discriminatory and against the provisions regarding fundamental rights of the petitioners. The learned counsel further submitted that the regulation in question is harsh and suffers from unreasonableness, which in turn aims at curtailing educational rights and opportunities to the petitioners provided and guaranteed by the Constitution of Pakistan, 1973. Concluding the arguments, the learned counsel reiterated that roll numbers having been issued to the petitioners for 3rd year M.B.B.S. a vested right has accrued, to the petitioners which cannot be taken away without any justifiable reason. In support of the submissions, reliance has been placed on Muhammad Afzal Khan v. Principal, Khyber Medical College, Peshawar and 5 others 2002 CLC 49.

4. Mr. Sabahuddin Khattak, Advocate who appeared before us on behalf of the respondents on pre-admission notice, supported the impugned action taken against the petitioners and contended with justification that no case for interference of this Court in its Constitutional jurisdiction has been made out and the petition merits dismissal. The learned counsel controverted the submissions of learned counsel for the petitioners, that the petitioners have been treated discriminately and the regulation in question embodied in the prospectus of the College is harsh and arbitrary in any manner. He relied on Sameen Akbar and 4 others v. Principal and Chairman Joint Admission Committee, Khyber Medical College, Peshawar and 4 others 2002 CLC 338 Peshawar.

5. There is no denial of the fact that petitioners were grantee admission in Khyber Medical College, Peshawar for the Academic Session 1999-2000. They passed Ist Part of the 1st Professional M.B.B.S. Examination and availed three chances for the 2nd Part of the 1st Professional M.B.,B.S. Examination but failed in the subject Anatomy Theory. It is provided in the prospectus that no student shall be promoted to the 3rd year M.B.,B.S. Class without passing the Ist Professional M.B.,B.S. Part I and Part II University Examination in Anatomy, Physiology and Biochemistry. The prospectus also embodies regulation 13 which is to the effect that any student who fails to pass the Ist Professional M.B.,B.S. Part I and Part II Examinations in three chances or does not avail the chances despite being 'eligible, for such examination shall cease to pursue further medical examination in Pakistan. We have heard the arguments of the learned counsel for the parties at some length in the light of the material on the file and we final that the action of the respondents not allowing the petitioners to reappear in the 1st Professional Part II, M.B.,B.S. Supplementary Examination, 2003 and issuing the expulsion letters dated 3-3-2003, is in consonance with the various regulations contained in the prospectus of the college and the grievance of the petitioners is not well-founded. Learned counsel for the petitioners has remained unable to point out any regulation in the prospectus having element of harshness or violative of the articles of the Constitution of Islamic Republic of Pakistan, 1973. The mere assertion of the petitioners that they have been treated differently qua other students placed in similar situation, without a positive attempt on their part to substantiate the same, is of no consequence. The learned counsel for the respondents stated at the bar that uniform regulations are adopted, in all the Medical Colleges throughout the country and no distinction in this respect is made.

6. Under Article 199 of the Constitution only a person whose rights have been infringed can file a petition except a writ of habeas corpus and a writ of quo warranto which can be invoked by any person. A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been, pronounced which has wrongfully deprived him of something, or wrongfully refused him of something, which he has a right to demand or wrongfully affected his title in something. In order that a person be considered an "aggrieved person within the meaning of Article 199, he must show that his legal rights have been violated or that has been deprived of the fundamental rights guaranteed under the, Constitution or that he seeks performance of the legal duty by the State functionaries and that the non-performance of the duty is to result in loss of some personal benefits or advantage or the curtailment of a privilege. In this case, the petitioners having failed in the examination despite availing all the chances have been debarred from further medical education and the action of the respondents is not open to exception. At the time of obtaining admission in the Medical College, the petitioners had given an undertaking that they will abide by all the rules and regulations contained in the Prospectus and at this stage it does no lie in their mouth to agitate that the regulation regarding promotion is harsh and not binding on their rights. Admittedly no regulation. instruction or rule through which regulation relating to promotion to higher class has been modified or overruled. There is no provision under the College Prospectus to provide to the failed students the facility of promotion to the higher class. Much stress has been laid on the judgment of this Court referred to above Muhammad Afzal Khan v. Principal Khyber Medical College, Peshawar and 5 others 2002 CLC 49, and an attempt has been made to show that in the light of the above mentioned judgment, the petitioners are entitled for the relief claimed for. We have gone through this judgment very carefully and we find that the judgment is distinguishable and does not promote the case of the petitioners in any, manner. On the contrary, the judgment of this Court titled Sameen Akbar and 4 others v. Principal and Chairman Joint Admission Committee, Khyber Medical College, Peshawar and 4 others 2002 CLC 338 Peshawar, is fully applicable to the facts of the case in hand.

7. In the result and for the foregoing reasons finding no substance, in this petition we dismiss the same in limine. H.B.T./800/P Petition dismissed.