P L D 1999 Quetta 25 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.--Petitioner Javed Hassan son of Gul Hassan, appeared in M.B.,B.S. First Professional Annual Examination, 1995, under Roll No.37, from the University of Balochistan, and vide Detail Marks Sheet, dated 23rd September, 1998, he secured, following marks, subject-wise:-- (1) Anatomy 400/206 (2) Physiology 400/200 (3) Bio-Chemistry 200/47 (4) Islamic Education & Pakistan Studies 100/59 As according to the Examination Rules/Regulation, for the Degree of Bachelor of Medicines and Bachelor of Surgery, M.B.,B.S., framed by Pakistan Medical and Dental Council. Islamabad, he was not declared "Pass," in Bio Chemistry Examination, therefore, he was not promoted to Second Professional (third year). Relevant law on Examinations i.e. Rule IV, clause (vi) being relevant, is reproduced hereinbelow:-- "No student should be promoted to 3rd year Class till he/she passes the University Examination in Anatomy, Physiology and Ba-Chemistry." Thus, instant petition has been filed in which following relief has been claimed:-- "It is prayed that in consideration of above, learned Court may be pleased to declare that impugned order dated 17-8-1998 passed by learned respondent No. l was without lawful authority and of no legal effect restoring the order of learned Land Commissioner, Naseerabad. " Mr. Tahir Muhammad Khan learned counsel for petitioner contended that above rule is oppressive because non-passing of examination of Bio Chemistry in the First Professional is equal to non-passing of examination of Islamic Education and Pakistan Studies because the subject of Rio-Chemistry being a subject of general science has no direct relation with the education of medicines and surgery, and if a student has not passed the subject of Islamic Education and Pakistan Studies he is promoted in 3rd year, but if he fails in the subject of Bio-Chemistry he is not promoted, therefore, this rule may be struck down being illegal and unwarranted. It is to be noted that learned counsel to emphasise his view-point with regard to importance of the subject of Bio-Chemistry for a medical student, did not produce any material on record, except arguing, as it has been noted hereinabove. However, in order to examine, as to why, subject of Bio Chemistry has been included in the course of 1st Professional M.B.,B,S. reference can be made to Dorland's Illustrated Medical Dictionary, which defines 'Bio-Chemistry', as under:-- "The Chemistry of living Organism and of vital processes, as Physiological Chemistry. " Similarly Robbert K. Marey, M.D., Ph.D. in his book Harper's Bio-Chemistry (24th Edition), introduced the subject of 'Bio-Chemistry' in following words:-- "Bio-Chemistry is the Science concerning with the various molecules that occur in living cells and organisms and with their chemical reactions. Anything more than an extremely superficial, comprehension of life - in all its diverse manifestations - demands of knowledge of Bio Chemistry. In addition, medical students who acquire a sound knowledge of Bio-Chemistry will be in a strong position to deal with two central concerns of the health sciences (1) the understanding and maintenance of health and (2) the understanding and effective treatment of disease." In this very book, while considering the scope of subject, the Author was of the opinion:-- "The scope of Bio-Chemistry is as wide as life itself. Whe;ever there is life, chemical processes are occurring. Bio-Chemistry study the chemical processes - that occur in micro organisms, plants, insects, fish, birds, mammals and human beings. Students in Bio-Medical Sciences will be particularly interested in the Bio-Chemistry of the two latter groups. However, an appreciation of the Bio-Chemistry of less complex form of life is often of direct relevance to human Bio Chemistry. For instance contemporary theories on the regulation of activities of genes and of enzymes in human emanate from pioneering studies on bread molds and on bacteria. The field of Recombinant DNA emerged from studies of bacteria and other viruses, their rapid multiplications and the ease of extracting their genetic material make them suitable for genetic analysis and manipulation, knowledge gained from the study of viral genes responsible for certain types of cancer in animals, viral oncogenes, has provided profound insights into how human cells become cancerous." On careful perusal of the definition of Bio-Chemistry as per the Dictionary meaning and its Introduction and Scope, reproduced hereinabove, one can conveniently understand the importance of the stlbJect of Bio-Chemistry, therefore, the assertions of the learned counsel, that it being a subject of general knowledge, has been included in the course just to understand the prospects of Bio-Chemistry of Organic creature, is not considerable. 1n addition to it, as it is indicative from its definition and scope, that the subject of Bio-Chemistry appears to be of an elementary nature, for the students of medicines and unless they have not studied this subject, it would not be convenient for them to diagnose the diseases. Thus, they cannot prove themselves to be good Doctors. Moreover a recognized Statutory body i.e. P.M.D.C. had included the study of Bio-Chemistry in the course of 1st Professional M.B.,B.S. after having considered its great importance, that's why under Section IV, clause (vi) of the Regulation, reproduced hereinabove, it has been provided that unless a student has not passed the Examination including the subject of Bio-Chemistry, he would not be promoted in 3rd year. In our opinion, the wisdom of the Rule makers cannot be based on a hypothetical argument of learned counsel, namely; that if a student had not passed examination of Islamic Education and Pakistan Studies, he can be promoted to 3rd year. Similarly promotion should be given to a student, who had not passed examination of Bio-Chemistry in the 3rd year M.B.,B.S. The Rule-makers have not created this distinction, specifically to the extent of petitioner, as it being the Rule which governs all the students studying in lst Professional M.B.,B.S. throughout in the country. Therefore, refusal by the competent authority to promote the petitioner in 3rd year, without passing' Bio-Chemistry Examination, does not constitute a discrimination. We are sorry to observe that if today, the petitioner's this argument is accepted, then on the same lines, there would be a claim by good number of students that they may be promoted to the next higher class, even without examination. Therefore, we cannot encourage such tendency, except holding that Rule (VI), clause (iv) reproduced hereinabove, has been incorporated in the Examination section of the Regulation, for the Degree of M.B.,B.S. by a competent Authority and this Rule is neither illegal nor unlawful, unjust, discriminatory or oppressive. Learned counsel also argued that to acquire knowledge is a human right and if the petitioner is not allowed to attend the classes of 3rd year, it would amount to denying a right to him, as guaranteed by the Constitution of Islamic Republic of Pakistan. There is no cavil, as far as right of acquiring knowledge by a human being is concerned, but such right is subject to relevant Rules and Regulation, as if a person intends to attend 3rd year class of M.B.,B.S., it is incumbent upon him to pass 1st Professional Examination in all the subjects, particularly those subjects, passing whereof is mandatory under the Rules, because unless he qualifies himself to go a step ahead in the field of Education, on the pretext that he intends to acquire the knowledge, it is his duty to show that he has fulfilled the conditions precedent for getting education or knowledge of the next class. Unless that examination is not qualified, as a matter of right, he cannot claim promotion to the next class. Lastly learned counsel contended that the Courts have been showing indulgence in the educational matters by issuing directions to grant grace marks etc. to the students, who are failing to qualify the examination with a margin of very few marks. In this behalf, he relied on PLJ 1994 Civil 378, 1997 CLC 4 and PLD 1997 Lahore

594. We have gone through these judgments. In our opinion, mainly in these judgments, question with regard to the granting of discretionary grace marks etc. by the Examiners has been considered, but in none of the authorities, it has been held that a student, who failed to pass examination of a particular subject, can be promoted to the next class, by-passing the Rules, which cast obligation upon him to must have qualified the examination, merely on a flimsy argument, that the subject in which, he has not passed examination, is not of much importance, as far as the course which the candidate is undertaking. For the foregoing reasons, we see no merits in petition, as such, the same is dismissed in limine. H.B.T./736/Q Petition dismissed