1998 PLP 313 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above petition for leave to appeal has been filed by the Principal, Khyber Medical College, Peshawar, and others to call in question the two orders of learned Division Bench of Peshawar High Court dated 12-12-1995 and 15-1-1996 passed in Writ Petition No.211 of 1995 filed by respondent No.

1. The grant of leave is opposed by respondent No. 1, who has filed a caveat in the case. We have heard the learned counsel for the petitioners as well as caveator and after hearing them converted the petition into appeal which is disposed of as under. Respondent No.1, is a student of Khyber Medical College, Peshawar, (hereinafter to be referred as 'the College' only). She appeared in the first professional M.B.,B.S. annual examination 1993 but she failed to pass all the subjects. She again appeared in the supplementary examination held in June 1994 but she again failed in the subject of bio-chemistry. Respondent No.1 for the 3rd time appeared in annual examination of 1994 but again failed in bio chemistry. As respondent No.1 failed in the subject of bio-chemistry; she was denied promotion to the 3rd year M.B.B.S. class (2nd professional) in accordance with the terms of the prospectus of the College. Respondent No.1 feeling aggrieved by the refusal of the College authorities to promote her to 3rd Year M.B.B.S. class instituted Writ Petition No.226 of 1994 before the Peshawar High Court. In the said petition, on a civil miscellaneous application, a learned Division Bench of Peshawar High Court passed the following ad interim order on 27-2-1994:-- "Notice. Provisional admission in 3rd Year M.B.,B.S. class is granted to the petitioner on her own risk and cost." After obtaining the above ad interim order the petitioner withdrew her writ petition on 20-12-1994 which was dismissed as withdrawn. As a result of dismissal of Writ Petition No.226 of 1994 on 20-12-1994 the ad interim order dated 27-2-1994 passed by the Court, also stood vacated. However respondent No. l despite dismissal of Writ Petition No.226 of 1994 not only continued attending 3rd Year M.B.,B.S. classes on the strength of the interim order passed in Writ Petition No.226 of 1994 but also appeared in the 2nd professional examination held in December 1994. Simultaneously, respondent No.1 also appeared in the supplementary examination held on 24-12-1994 and was declared successful in the subject of bio-chemistry on 14-1-1995. It appears that respondent No.1 could not pass in all the subjects of the 2nd professional examination held in December, 1994. She, accordingly, approached the College authorities for permission to appear in the supplementary examination of 2nd professional course scheduled to be held in March 1995. At this stage, the College authorities refused to allow her permission to appear in the supplementary examination of 2nd professional course as she had passed in the subject of bio-chemistry through supplementary examination only on 14-1-1995. Respondent No.1, consequently, filed a second Writ Petition No. 211 of 1995 on 8-3-1995 and on a miscellaneous application sought order from the High Court for direction to College authorities to allow her permission to appear in the supplementary examination scheduled to be held on 16-3-1995. The learned High Court allowed respondent No.1 to appear in the examination through an interim order dated 16-3-1995. Having appeared in the supplementary examination, respondent No. 1, filed yet another miscellaneous application in Writ Petition No.211 of 1995, seeking further direction against the College authorities to declare her result and a learned Bench of Peshawar High Court passed the following order on 12-12-1995:-- "12-12-1995. Present : S. Masood Kausar, Advocate for the petitioner. Mr. Saifur Rehman Kiani, Advocate General for respondent No.

1. Mr. Nisar Muhammad Khan, Advocate for respondent No.2. Mr. M. Sardar Khan, Advocate for respondent No.4. After hearing the learned counsel for the parties we direct the respondents to declare the result of the petitioner forthwith. The writ petition which is in motion should come up for hearing on 15-1-1996. (Sd.) Acting Chief Justice (Sd.) Judge" After obtaining the above interim order, respondent No.1 withdrew her petition from the High Court which was allowed on 15-1-1996 as follows:-- "15-1-1996. W.P.211 of 1995. Present: S. Masood Kausar, Advocate for the petitioner. JALALUDDIN AKBARJI, J.

Submits that this petition was filed on 8-3-1995 for the relief that the petitioner be allowed to appear in the examination of the Khyber Medical College, Peshawar to be held on 16th March, 1995 and further direction to declare the result of the petitioner. The petition came up for hearing in civil misc. from time to time and on 9-3-1995 in C.M. No.306 of 1995 a direction was issued that the petitioner be allowed to appear in Supplementary Examination in 2nd Professional M.B.B.S. Classes. Lastly, on 12-12-1995 in C.M. No.437 of 1995 this Court directed the respondents to declare the result of the petitioner forthwith. Learned counsel for the petitioner, therefore, submits that the writ petition has served its purpose and it is of no use to proceed further in the matter. The petition is, therefore, disposed of in limine." The appellants, thereafter, filed C.P.L.A. No.63 of 1996 before this Court, in which following order was passed in Chambers on 30-1-1996:-- "The effect of impugned orders dated 15-1-1996 is stayed. Petition for leave to appeal may be fixed in the next week." The learned counsel for the appellants contended that in view of the decision of this Court in the case of Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421) respondent No.1 could not have been allowed admission to the 3rd Year M.B.,B.S. classes unless she passed in all the subjects in her first professional examination of M.B.B.S. It is further contended by the learned counsel for the appellants that respondent No.1 has grossly misused the process of the Court to circumvent the requirement of rules contained in the College prospectus. The learned counsel for respondent No. 1, on the other hand, contends that although respondent No.1 continued her studies in the 3rd Year M.B.,B.S. classes (2nd professional) on the basis of interim order of High Court passed in Writ Petition No.226 of 1994 but in the changed circumstances of the case namely, that respondent No.1 has meanwhile passed in bio-chemistry in the supplementary examination held in December 1994, she was entitled to have her result declared in respect of 2nd professional examination in which she appeared in the meantime. After hearing the learned counsel for the parties, we are of the view that the learned Judges of the High Court while passing the interim order dated 12-12-1995 and subsequently allowing withdrawal of writ petition by respondent No.1 utterly failed to see through the real intent and purpose of filing of writ petition by respondent No.1, which was, firstly, to circumvent the provision of rules contained in the prospectus of College and secondly, to frustrate adjudication of case on merits by the Court. We have refrained from making any observation on the merits of the case as we propose to remit to the High Court for decision on merits. Keeping in view the circumstances of the case, we are, however, constrained to observe that the manner in which respondent No.1 used the process of Court to her advantage, needed serious consideration by the High Court, before granting her any relief under discretionary jurisdiction of the Court under Article 199 of the Constitution. The High Court will also determine the effect of the decision of this Court in the case of Nadir Khan and others v. Khyber Medical College, supra, on the maintainability of the writ petition filed by respondent No.1. As a result of above discussion, we allow the appeal, set aside the impugned orders dated 12-12-1995 and 15-1-1996, and remit the case to the High Court for a fresh decision in accordance with the law. There will be no order as to costs. A.A./P-8/S Appeal accepted.