2003 PLP 753 (CLC)

IJAZ‑UL‑HASSAN, J.‑‑‑

Writ Petitions Nos.772, 854 and 730 of 2002 involving identical question of facts and law, shall be decided by this consolidated judgment.

2. Writ Petition No.772 of 2002 has been filed by Noor Muhammad Khan, Muhammad Ilyas Khan and Syed Adrian Alam, all students of 1st Professional Year, M.B.,B.S., Ayub Medical College, Abbottabad. Writ Petition No.854 of 2002 has been tiled by Zayad Tariq whereas Writ Petition No.730 of 2002 has been instituted by Miss Sana Shah, Ahsan M. Paracha, Miss Hina Sultan Khan, Miss Salma Rizvi, Muhammad Tufail and Miss Faryal Baddia, students of 1st Professional M.B.B.S. Khyber Medical College, Peshawar.

3. The petitioners in Writ Petition No.772 of 2002 after passing the prescribed entry test were admitted in 1st Professional M.B.,B.S. Ayub Medical College, Abbottabad for the Session 2000‑2001. Petitioners appeared in Annual Examination but failed to pass the 1st Professional (Part I) Annual Examination. Petitioners appeared in Supplementary Examination held on 6‑4‑2002 in which they failed in one paper of Physiology. Owing to failure in one paper of Part I, the petitioners were informed that according to the rule contained in the 'Prospectus and Regulation, the petitioners can neither attend the course of the Part II nor they are allowed to appear in the Examination of Part II, unless they qualify the paper in which they failed.

4. Zayad Tariq, petitioner in Writ Petition No.854 of 2002 appeared in 1st Professional (Part I) Examination in Session 2000‑2001 but remained unsuccessful in clearing all the subjects. He failed in Anatomy/Biology.

5. Miss Sana Shah, Muhammad Tufail Khan and Ahsan M. Paracha, petitioners in Writ Petition No.730 of 2002 failed in Physiology and Miss Hina Sultan Khan and Miss Faryal Baddia failed in Anatomy. Miss Salina Rizvi failed in two subjects i.e. Anatomy and Physiology They were also informed that according to rule and regulations incorporated in the prospectus they cannot attend the class of Part II nor allowed to appear in Part II Examination, unless they clear the subjects in which they failed.

6. We have heard in detail Syed Asif Ali Shah, Advocate for petitioners in Writ Petition No.772 of 2002, Mr. Muhammad Jamil Khan, Advocate for petitioners in Writ Petitions Nos.730 of 2002 and 854 of 2002 and Mr. Wasimuddin Khattak, Advocate for respondents. We have also gone through the record of the case with their able assistance.

7. There is no denial of the fact that petitioners in Writ Petition No.772 of 2002 appeared in Annual Examination but failed to pass the 1st Professional (Part I) Annual Examination. They appeared in Supplementary Examination held on 6‑4‑2002 in which they failed in one paper of Physiology. Petitioners in Writ Petition No.854 of 2002 and 730 of 2002 appeared in 1st Professional (Part I) but remained unsuccessful in clearing all the subjects. The 1st Professional was two years course of studies but subsequently bifurcated into Part I and Part II. The promotion from 1st year Professional to 2nd year Professional M.B.B.S. was carried after two years and it was considered to be promotion to the higher, class.

8. The grievance of the petitioners, ventilated through instant writ petitions in essence is, that refusal on the part of respondents to allow the petitioners to attend the course/classes of 1st Professional (Part II) and appearing in the Examination, is unjust aimed to nullify the judgment of this Court passed in Writ Petition No.750 of 2001 dated 18‑9‑2001 and as such it cannot be allowed to remain intact. The respondents cannot lawfully stop the petitioners from attending the classes in Part II and appearing in the examination.

9. Learned counsel for respondents, has raised certain preliminary objections regarding maintainability of the petitions and contended with justification that petitioners have been refused to attend the courses/classes of 1st Professional (Part II) and appear in the examination for valid reasons and in view of incorporation of clause 9 of Prospectus N.‑W.F.P. Medical/Dental College Session 2001‑2002 and as such they are not entitled of the relief claimed for.

10. As per N.‑W.F.P. Medical/Dental Colleges Prospectus which is approved by the Government of N.‑W.F. P. and framed in the light of P.M.D.C. Rules, the petitioners are not entitled for promotion to next higher class in view of insertion of clause 9 in the Prospectus because the 1st Professional Examination is bifurcated in two parts and any student who fails in any of its part is not entitled from promotion. Clause 9 strengthened by rule 18, is reproduced below for facility sake:‑‑ "

9. A student who has failed/detained in a professional examination or its part both in Annual and Supplementary in any subject shall not be promoted to the next higher class. He/she shall undergo the course of study in the subject(s) in which he/she failed/ detained and pay the tuition fees alongwith all college dues same class in which failed/detained. There will be provisional promotion to the next class for the failed students. Reads:

"A student who fails in any subject(s) will not be promoted to the next higher class and shall be required to attend the lectures and practical courses regularly with the subsequent class after declaration of the supplementary result."

11. It has been vehemently contended by learned counsel for the petitioners that incorporation of clause 9 in the Prospectus is highly unjust and the same has been made with sole object to nullify the effect of the judgment of this Court, dated 18‑9‑2001 passed in Writ Petition No.750 of 2001 titled Miss Dur‑e‑Nayab Shama v. Principal, Khyber Medical College and others. The submission is not tenable. The issue involved in instant writ petitions is totally different and has no nexus with the point involved in the aforesaid writ petition. The petitioners cannot be allowed to take benefit of the judgment announced in the said writ petition. It is true that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger E Bench should have been made, but the fact cannot be lost sight of that the issue involved in the present writ petitions proceeds on different facts and has no similarity with the controversy involved in Writ Petition No.750' of 2001 decided by this Court on 18‑9‑2001. It is not denied that at the time of obtaining admissions, the petitioners had given an undertaking /agreement to the effect that they have read the Prospectus of Medical/Dental College of N.‑W.F.P. and agree to conform to all provisions of the statute of the college or statutes and rules as may hereafter be framed by the appropriate authorities. The petitioners at this juncture cannot be allowed to turn round and assail the incorporation of clause/rule 9 in the Prospectus, and term the same as "un‑Constitutional" and "whimsical".

12. The refusal on the part of respondents to allow the petitioners to attend the classes of 1st Professional (Part II) and appearing in the examination, has been termed as mala fides and in total disregard to the rules and regulations framed'' on the subject from time to time. This objection is equally without force. Mala fides is one of the most difficult thing to prove and the onus is entirely upon person alleging mala fides to establish it, because there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched upon merely on the 4 basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving inquiry into the files of Government for the purpose of fishing out some kind of a case. "Mala fides" liberally means "in bad faith". Action taken in bad faith is usually action taken `maliciously in fact, that is to say, in which the person against whom the action is taken or to benefit oneself. A person alleging that an action has p been taken mala fide is required to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. (PLD 1974 SC 151).

13. Discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner. Jurisdiction possessed by the High Court in such matters, is discretionary which must, like all other judicial discretion be exercised in accordance with reason and on sound judicial principles. Wherein an administrative or Executive Officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law in exercising a jurisdiction not vested in him by law. Proceedings under Article 199 of the Constitution will be competent against action found in violation of law laid down by the superior Courts. In the instant case counsel for the G petitioners have remained unable to persuade us to hold that petitioners are sufferers at the hands of the respondents and the equality and rule of propriety demands of this Court to come to the rescue of the petitioners and strike down clause 9 incorporated in the Prospectus as un Constitutional and whimsical. The learned counsel have failed to point out that respondents violated the rules and regulations with ulterior motives. The action of respondents is in accordance with law and we do not feel inclined to interfere in internal affairs of the respon0ent management and declare the newly‑incorporated clause/rule 9 as illegal or unconstitutional. PLD 1971 Lah 972, PLD 1992 SC 221, 1984 CLC 378, PLD 1974 SC 151, PLD 1990 SC 1092 and 1996 SCMR 616.

14. Having held that clause/rule 9 has been rightly incorporated in the Prospectus in order to raise standard of education and the judgment of this Court dated 18‑9‑2001 in Writ Petition No.750 of 2001 is no help to the petitioners, we dismiss the writ petitions as non‑maintainable. S.A.K./697/P Petitions dismissed.