P L D 1999 Karachi 394 (PLP)

NAZIM HUSSAIN SIDDIQUI, C.J.

Petitioner, Ms. Fabiha Parvez, has impugned the order of respondent No.2, whereby she was not permitted to appear in First Professional M.B.,B.S. Examination, having already availed four chances and not cleared the same. The case of the petitioner, in brief, is that she was admitted on 2-7-1995 in 1st Professional M.B.,B.S. at Peoples Medical College for Girls, Nawabshah and later on she was allowed migration from said College to Sindh Medical College, Karachi i.e. respondent No.2. She availed four chances, but failed to clear 1st Professional M.B.,B.S. Invoking rule 8 of Chapter I of Prospectus of the Medical Colleges in Sindh for the year 1994-95, the respondent No.2 declined to grant her further permission for appearance in said Examination. Said Rule is as follows:- "

8. Any student who fails to clear First Professional M.B.,B.S./B.D.S. .examination in four chances availed or unavailed shall cease to be eligible for further Medical Dental Education in Pakistan. " The petitioner, therefore, prayed that enforcement of said rule be declared as mala fide, without jurisdiction, illegal, and contrary to the rights guaranteed under the Constitution of Pakistan. She has also prayed that she be permitted to appear in next examination of 1st Professional M.B.,B.S. to be held in future. The case of respondent, in brief, is that the petitioner had availed four chances and only cleared two subjects viz. Islamic Studies and Pakistan Studies and failed in others. Mr. Syed Zaki Muhammad, learned counsel for the petitioner contends that petitioner could not clear 1st Professional M.B.,B.S. Examination for reasons which were /beyond her control. According to him, at the time of examination either the petitioner herself or her mother were seriously ill and this prevented her to concentrate upon her studies, as such, she failed to clear the same. Learned counsel also referred to leave granting order dated 7-3-1995 passed in Appeal No.332-K of 1994 by Supreme Court, whereby leave was granted to consider whether the learned Judges of this Court while deciding C.P. No.D-1629 of 1994 by order dated 19-9-1994 had applied their mind correctly in respect of said matter, wherein also the question of interpretation abovequoted rule was involved. It was contended in said matter before the Supreme Court that the petitioner of said case was prevented for reasons beyond his control to take the examination, as such, action taken against him was not warranted by law. ????????????????? As against above, Mr.Sarwar Khan, A.A.-G. argued that rules provide that a student shall clear 1st Professional M.B.,B.S. in four chances, availed or unavailed, and thereafter, he/she ceases to be eligible for medical education in Pakistan. 1n support of above contention he cited (1) Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532, (2) Muhammad Hamid Shah v. Pakistan Medical and Dental Council and 4 others 1996 SCMR 1101 and (3) Shahid Ali v. Karachi University and 3 others 1998 CLC 1449. ?????? - In the case of Akhtar Ali Javed with reference to Prospectus of Quaid-eAzam Medical College, Bahawalpur, the provisions of which are identical to that i?~.n College for Girls (Nazim Hussain Siddiqui, C J) of the rules cited above; the following was observed by the Supreme Court: "The above rule being the part of the prospectus for the.academic veal- 1986-87, under which the appellant was admitted to MR.,B.S. classes, his right to continue his studies was governed by that rule. The appellant having availed four clear chances to clear his First Professional M.R;,B.S.. Examination, and failed, could not claim any right to COntnluC his studies in view of the abovementioned rule. The learned counsel for the appellant is unable to show that the abovequoted rule contravened or came in conflict with 'any provision of law made applicable to the respondent's institution. The learned counsel for the appellant is also unable to demonstrate that the above-quoted rule contravened any of the fundamental rights guaranteed under the Constitution. " In case of Muhammad Hamid Shah, the rule laid down in aforesaid case was followed. In case of Shahid Ali. the ratio of aforesaid two cases was followed and it was also observed that the provisions of Articles 2-A. 4, 8 and 25 of the Constitution were not violated when further chance was not given to the student for appearing in 1st Professional M.B.,B.S. Examination. .,?,.,;xsp,~f; It is noted that the phrase "four chances availed or unavailed" in aforesaid rule underlines the importance of clearing 1st Professional M.B., B.S. Examination maximum in four chances. On the one hand, it provides ample opportunity to a student to clear the examination by availing those chances and on the other it protects the interest of those students, who because of shortage of seats. do not easily get admission. After availing four chances as provided in said rule, a student must vacate the seat for other deserving candidates. Otherwise very purpose of said rules would be frustrated, if under any circumstances, further opportunity is provided. As regards leave granting order, it is noted that it does not lay down any law but merely records, the pleas, which later on are examined on their merits. Since the Supreme Court has already examined the scope of said rule in the case of Akhtar Ali Javed referred to earlier any :aterim order with regard to said rule would not override the well-considered rulc'law laid down by the Full Bench of the Supreme Court. Accordingly, we do not find any merit in this petition and the same is dismissed in limine alongwith the listed Application. M B.A./F-63/K???????????????? Petition dismissed.