1998 PLP 330 (SCMR)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the order of the learned Judge in Chamber whereby her writ petition against the order of respondent No. l by which the petitioner having failed to succeed in four attempts to clear 1st Professional M.B.,B.S. Examination of the University of the Punjab, ceased to be a student of the College and Could not continue further education, was dismissed in limine.

2. It seems that by Notification No. First Prof. M.B.,B.S. (N.S)5-S of 1994, it was notified that the petitioner was not eligible for further medical/dental education. Such order was passed in view of the orders of the Vice-Chancellor dated 5-11-1988 and 13-4-1992 that a candidate who fails to clear the 1st Professional M.B.,B.S. Examination in four chances availed or unavailed offered by the University shall cease to be eligible for further medical/dental education. The petition was dismissed holding that no fundamental right was involved as claimed by the petitioner and that in view of the Regulations of the University she was not entitled to continue with her studies.

3. We have heard the petitioner in person and Mr. Khawaja Zia Nayyar, Advocate Supreme Court for the Pakistan Medical and Dental Council, Islamabad, respondent No.4. Mr. Khawaja Zia Nayyar contended that Pakistan Medical and Dental Council has made Regulations, which are applicable to all the Medical Colleges of Pakistan whereby any student who fails to clear 1st Professional M.B.B.S. Examination in four chances, ceases to be eligible for further medical education in Pakistan. In this regard, the learned counsel has placed on record extracts from the Regulations for the Degree of Bachelor of Medicine and Bachelor of Surgery framed by the Medical and Dental Council in which in section (iv) under title Examinations, certain standards and guidelines have been laid down and it has been provided as follows:-- In order to achieve above objectives it is necessary to adopt the following measures:-- (7) Any student who fails to clear first professional M.B.,B.S. examination in four chances availed or unavailed after becoming eligible for the examination shall cease to be eligible for further medical education in Pakistan. " Although it is not clear, but it seems that the order of the Principal of the College was passed in pursuance of these Regulations. Question arises whether Pakistan Medical and Dental Council is competent to make such 'Regulations. The learned counsel for respondent No.4 has referred to Nadir Khan and others v. Principal, Khyber Medical College, Peshawar (1995 SCMR 421) in which it was observed that Regulations framed by the Council particularly Regulations Nos.6 and 21 apply to all Medical Colleges of Pakistan irrespective of the fact whether the Prospectus issued by those colleges contains a similar provision or not. Regulation No.6 related to the promotion of the student to a higher class of M.B.,B.S. on qualifying the subjects mentioned therein. Similar provision was made in Regulation No.21 as well. However, the Regulation quoted above is completely different from these Regulations. The petitioner has challenged the competency of the Pakistan Medical and Dental Council to frame such Regulation, which may debar students from pursuing their studies in Medical Colleges in Pakistan. The learned counsel for respondent No.4 has not been able to point out at this stage any specific provision which may support his contention. Another aspect of the case is that by the Regulation quoted above the Council requires them to be adopted and such adoption can perhaps be made by the Universities. In any event, it is contended that the Regulation quoted above by itself cannot be enforced unless adopted.

4. The orders passed by the Vice-Chancellor on 5-11-1988 and 13-4-1992 1 show that the same have been passed in anticipation of the approval of the Academic Committee/Syndicate under section 15(3) of the Punjab University Act, 1973, but there is nothing to show that such approval was obtained subsequently. The same position operates in respect of the order, dated 13-4-1992 to which Regulation has been given retrospective effect from the year 1988. The contentions require consideration. Leave is granted.

5. The petitioner has filed application for condoning the delay. For reasons stated therein, delay is condoned. A.A./M-57/S Leave granted.