2007 PLP 447 (MLD)

SARDAR MUHAMMAD ASLAM, J.

The petitioners, through this constitution petition, are seeking direction against respondents to allow them to continue their studies and appear in the 2nd Professional BDS Examination.

2. Briefly the facts relevant for the disposal of this constitution petition are that the petitioners were admitted in the Lahore Medical and Dental College, Lahore, affiliated with Baqai Medical University, Karachi. On promulgation of University of Health Sciences Ordinance, 2002, all the Medical Colleges in Province of Punjab were affiliated with the said University, except King Edward Medical College, Lahore and Fatima Jinmah Medical College, Lahore who retained their affiliation with the University of Punjab. Petitioner No.1 along with Adil Ayub filed a Writ Petition No.5574 of 2005, which was dismissed on 14-4-2005. After dismissed of this writ petition, it is alleged that the college authorities told the petitioners that the University of health sciences has agreed upon to give them another chance. Consequently, requisite examination fee was deposited on 3-5-2005. Later on, respondents refused to issue roll numbers constraining them to file a civil suit for declaration on 11-5-2005. The petitioners were allowed to appear in examination commencing on 12-5-2005, as an interim measure. Petitioners appeared in the examination. Thereafter, the trial Court directed to intimate them their result before 14-7-2005. Order was attacked in revision by respondent-U.H.S. The learned Additional District Judge confirmed the order for declaration of result but set it aside to the extent of continuation of studies in the next class.

3. The petitioners then filed Constitution Petition No.14638 of 2005, which was dismissed mainly for the reason that during pendency of civil suit, constitutional remedy is not available. The suit, however, was withdrawn unconditionally and dismissed as such on 8-10-2005. The petitioners insisted that special supplementary examination held in September, 2004, was in violation of the University regulations, as such the petitioners cannot be penalized and examination held in May, 2005, wherein they appeared under injunctive order of Civil Court be treated as 4th chance in which they succeeded and pleaded exercise of parental jurisdiction.

4. The University Health Sciences filed report and para-wise comments. It was pleaded that the petitioners failed to clear 1st Professional B.D.S. Examination in stipulated four chances and have rendered them ineligible for further medical education. Constitution Petition No.5574 of 2005 was preferred seeking permission to sit the examination in spite of exhaustion of permissible chances, which was dismissed on 14-4-2005, along with number of petitions. Some of the petitioners challenged the judgment through C.P.L.A. No.1816 of 2005, which was dismissed by the Honourable Supreme Court of Pakistan on 10-11-2005. On dismissal of constitution petition and affirmance of judgment by the Honourable Supreme Court of Pakistan in C.P.L.A. of their co-petitioners, the petitioners adopted an illegal perverse route to attain their objective by filing a civil suit praying for grant of an extra chance. The petitioners were allowed to appear in the examination under an interim order passed by Mr. Zafar Iqbal Siyal, the learned Civil Judge Ist Class, Lahore on 11-5-2005 when the examination was to commence on 12-5-2005. Another order dated 12-7-2005 was passed requiring the University to place the result of the petitioners before the Civil Court so as to promote them to B.D.S. 2nd year. This order was assailed through a civil revision, which resulted into modification of order, but maintained the order of learned trial Court requiring to place the result. The petitioner filed another Constitution Petition No.14638 of 2005 seeking permission to continue study in B.D.S. 2nd year. It was dismissed on 22-8-2005. The University Health Sciences applied for rejection of plaint under Order-7 Rule-11, C.P.C. on the basis of judgment, dated 14-5-2005 and 22-8-2005 rendered in Constitution Petitions Nas.5574 of 2005 and 14638 of 2005. The University Health Sciences placed the result before the civil court as directed by it for the Court consumption. It was neither officially announced nor notified. Instead of filing reply to an application under Order-VII Rule-11, C.P.C. the declaratory suit was withdrawn on 8-10-2005, unconditionally. The permission to appear in the examination under an interim order, dated 14-4-2005 came to an end on withdrawal of suit, by operation of law.

5. It was pleaded that the petitioners are guilty of contempt of Court as they concealed the factum of dismissal of their Writ Petition No.74 of 2005 vide order, dated 14-4-2005 on the same subject seeking same relief and adopted a perverse/devious route of approaching civil court to frustrate the effect of judgment pronounced by this Court and secured an interim order. The University Health Sciences pleaded stern action against the petitioner for behaving recklessly and contemptuously.

6. Both the petitioners were admitted in B.D.S. course in Lahore Medical and Dental College, 2002-2003. Both exhausted maximum number of permissible chances and failed to clear the 1st B.D.S. Examination rendering them ineligible for further medical education. Relevant regulation limiting number of chances to pass the examination reads as follows:-- "a candidate who fails to pass First Professional B.D.S. in four consecutive chances, availed or unavailed, after becoming eligible for first examination shall cease to become eligible for further medical education. The regulation shall be applicable to all categories of candidates, whether fresh or failed."

7. As to special supplementary examination, it was asserted that supra supplementary examination was held under the following circumstances:-- (I) "On the promulgation of University of Health Sciences Ordinance, 2002, certain writ petitions were filed by the students of different colleges to question the vires of Ordinance and authority of U.H.S. to hold medical examinations. All these writ petitions were dismissed after number of hearings by the Hon'ble Full Bench, Lahore High Court, which was reported as (PLD 2003 Lahore 752). (II) It was held that the Ordinance was valid, University of Health Sciences was competent to hold examinations, the examination of last final and Fourth Professional, though will be held by the U.H.S. but the degree will be awarded by the University of the Punjab, as by then the Notification under section 11 of P.M.D.C. Ordinance had not been issued. The students of all the colleges except the students of Punjab Medical College accepted the decision and, therefore, the University held annual examination of the students of all the medical colleges except the Punjab Medical College, where the examination could not be conducted as some of the students had filed petition for to appeal in Supreme Court and obtained ad interim injunctive order. Later, notification under section 11 of P.M.D.C. Ordinance was also issued to recognize the medical qualification being awarded by the University of Health Sciences. The Hon'ble Supreme Court heard the case and dismissed the petition thereby upholding the verdict of the learned Full Bench, Lahore High Court. After the dismissal of petition for leave to appeal and withdrawal of injunctive order, the University held annual examination of the students of Punjab Medical College with the supplementary examination of students in other medical colleges. Later, when the supplementary examination of Punjab Medical College's students was announced, some of the students of other medical colleges, who had already availed the benefit of annual and supplementary, filed writ petition on the assumption as if the Punjab Medical College's students were given the second chance of supplementary, though in point of fact, it was first supplementary of the students of Punjab Medical College and not an additional chance. These facts were explained by the University in their reply to the writ petition. In cases filed at Principal seat, no interim relief was granted but, however, in Rawalpindi Bench, in Writ Petition No.349/04 ad interim relief for provisional appearance in the exam was granted to the students, which could not be vacated as the examination was being held next day. In this scenario, the learned counsel for the University proposed before the Hon'ble Division Bench, Lahore High Court that with a view to avoid discrimination, the students in the cases at Lahore will be allowed provisional permission to appear in the examination, subject to decision of writ petitions. (III) Later, other writ petitions were filed on the plea of granting a second supplementary benefit. Division Bench of this Court in their interim order directed that the students will be provisionally allowed to appear in the exam. they will give undertaking that if the writ petitions were dismissed, provisional chance will be considered as a consumption of one available chance under the Statute. The students furnished undertaking and provisionally appeared in the exam. (v) The petitioners appeared in the supra supplementary with the undertaking and condition that it will be a consumption of one of the available chances out of four chances. Having availed the supra supplementary, as one of the available chances, taking the risk with the hope to clear the exam. the petitioner, if remained unsuccessful cannot be allowed to take a `U' turn by avoiding the consequential effects on flimsy assertions".

6. The Honourable Supreme Court of Pakistan in C.P.L.A. Nos.1488/1459 and 1460 of 2005 vide its order, dated 24-10-2005 has held that the students who failed to clear examination in prescribed four chances are not entitled to claim any further chance. The observations of the Hon'ble Supreme Court of Pakistan are re-produced below: "Learned counsel for the petitioners contended that University of Health Sciences arranged schedule of examination in such a manner that they had to appear in one year for four times in the examinations. It may be noted that the petitioners voluntarily appeared in examination, whenever the same was scheduled and there is nothing on record to show that they ever agitated not to take the examination for the reasons, including on the premises on which the case is being argued. Even otherwise, the petitioners had to appear in different chances on account of their failure in earlier chances, therefore they opted to appear for four times in the examination to clear the examination as early as could be possible. As such we are of the opinion that there is no discrimination at all, besides, this Court in number of cases has held that the student who failed to clear examination in prescribed four chances, is not entitled to claim any chance, therefore, following the dictum laid down in these judgments we are not inclined to interfere in the impugned judgment."

7. The petitioners availed permissible chances as indicated below: Johra Saeed/petitioner No.1 1st Attempt., Ist Professional B.D.S. Annual Examination, 2003 held in November, 2003. Failing subject Marks obtained Passing score Remarks Human Theory (75) 16 37.5 Anatomy & Practical (75) 38 37.5 Failed in Theory Histology Total (150) 54 by 21.5 marks Physiology & Theory (75) 19 37.5 Biochemistry Practical (75) 49 37.5 Failed in Theory Total (150) 68 by 18.5 marks Sciences of Theory (75) 17 37.5 Dental Material Practical (75) 38 37.5 Failed in Theory Total (150) 55 by 20.5 marks 2nd Attempt. Ist Professional B.D.S. Examination, 2003 held in March/April, 2004. Failing subject Marks obtained Passing score Remarks Human Theory (75) 18 37.5 Anatomy & Practical (75) 38 37.5 Failed in Theory Histology Total (150) 56 by 19.5 marks Physiology & Theory (75) 22 37.5 Biochemistry Practical (75) 40 37.5 Failed in Theory Total (150) 62 by 15.5 marks Sciences of Theory (75) 27 37.5 Dental Practical (75) 42 37.5 Failed in Theory Material. 'Total (150) 69 by 10.5 marks 3rd Attempt Ist Professional B.D.S. Supra Supplementary Exam., 2003 held in August, 2004 Failing subject Marks obtained Passing score Remarks Human Theory (75) 22 37.5 Anatomy & Practical (75) 41 37.5 Failed in Theory Histology Total (150) 63 by 15.5 marks Physiology& Theory (75) 32 37.5 Biochemistry Practical (75) 40 37.5 Failed in Theory Total (150) 72 by 5.5 marks Sciences of Theory (75) 20 37.5 Dental Practical (75) 38 37.5 Failed in Theory Material Total (150) 58 by 17.5 marks 4th Attempt/(Final Attempt) Failing subject Marks obtained Passing score Remarks Human Theory (75) 38 37.5 Anatomy & Practical (75) 58 37.5 Histology Total (150) 96 Pass Physiology & Theory (75) 24 37.5 Biochemistry Practical (75) 57 37.5 Failed in Theory Total (150) 81 by 13.5 marks Sciences of Theory (75) 38 37.5 Dental Practical (75) 50 37.5 Material Total (150) 88 Pass. Fiaqa Zulfiqar/petitioner No.2 Ist Attempt Ist Professional B.D.S. Annual Examination, 2003 held in November, 2003. Failing subject Marks obtained Passing score Remarks Human Theory (75) 37.5 37.5 Anatomy & Practical (75) 37.5 37.5 Histology Total (150) 75 Pass Physiology & Theory (75) 24 37.5 Biochemistry Practical (75) 42 37.5 Failed in Theory Total (150) 66 by 13.5 marks Sciences of Theory (75) 33 37.5 Dental Practical (75) 38 37.5 Failed in Theory Material Total (150) 71 by 4.5 marks 2nd Attempt Failing subject Marks obtained Passing score Remarks Human Theory (75) 37.5 37.5 Anatomy & Practical (75) 37.5 37.5 Histology Total (150) 75 Pass Physiology& Theory (75) 40 37.5 Biochemistry Practical (75) 20 37.5 Failed in Theory Total (150) 60 by 17.5 marks Sciences of Theory (75) 47 37.5 Dental Practical (75) 41 37.5 Material Total (150) 88 Pass. 3rd Attempt Human Theory (75) 37.5 37.5 Anatomy & Practical (75) 37.5 37.5 Histology Total (150) 75 Pass Physiology& Theory (75) 36 37.5 Biochemistry Practical (75) 50 37.5 Failed in Theory Total (150) 86 by 1.5 marks Sciences of Theory (75) 47 37.5 Dental Practical (75) 41 37.5 Material Total (150) 88 Pass. 4th Attempt (Final Attempt) Ist Professional B.D.S. Annual Examination, 2004 held in January/February, 2005. Human Theory (75) 37.5 37.5 Anatomy & Practical (75) 37.5 37.5 Histology Total (150) 75 Pass Physiology& Theory (75) 19 37.5 Biochemistry Practical (75) 54 37.5 Failed in Theory Total (150) 73 by 18.5 marks Sciences of Theory (75) 47 37.5 Dental Practical (75) 41 37.5 Material Total (150) 88 Pass.

9. The petitioners' learned counsel vehemently urged discrimination being meted out to the petitioners as Syed Hamad Bin Hamid was allowed 5th chance after having exhausted his maximum permissible chances by the respondent-University of Health Sciences. He also argued that Messrs Yaqoob and Nosheen Iftikhar have been given relief by the Punjab University. He relied on Riaz-ul-Haq v. Selection Committee Constituted for admission to Bolan Medical College, Quetta and 6 others (1997 SCMR 1845) to canvass that the Court exercise the parental jurisdiction and do utmost to promote education, rather than create stumbling blocks.

10. Learned counsel for the respondent-University of Health Sciences state that the petitioners having exhausted permissible chances ceased to be a medical student and, thus, rendered them ineligible to continue further medical education; as far as Hamad Bin Hamid is concerned, he challenged the decision of U.H.S. whereby his name was struck off through constitutional petition which was dismissed by a learned Division Bench of this Court on 13-1-2005, the principle of res judicata is applicable with full force. He cited Abdul Majid and others v. Abdul Ghaffor Khan and others (PLD 1982 SC 146) and Abdul Majid and another v. Qazi Abbas Hussain Shah (1995 SCMR 429). As to effect of withdrawal of the suit after obtaining an interim order he heavily relied on Principal Khyber Medical College and others v. Miss Faiqa Manzor, and others (1998 SCMR 313) to contend that provisions of law cannot be allowed to circumvent to gain advantage and frustrate adjudication of the case on merit.

11. We have heard the learned counsel for the parties at length, who have rendered able assistance, in resolution of controversial issue.

12. Undeniably the petitioners availed four permissible chances and failed to clear 1st B.D.S. Professional Examination. Under the Rules they have rendered themselves ineligible to continue further medical education. Details of chances availed by them have been given in the preceding paragraph. The controversy on this count stand resolved by the judgment rendered by Hon'ble Supreme Court of Pakistan in Akhtar Ali Javed v. Principal Qauid-I-Azam Medical College, Behawalpur (1994 SCMR 538) and Maroof Khan v. Principal Ayub Medical College, Abbot Abad and 4 others (1996 SCMR 1101).

13. Argument of the learned counsel that supra supplementary examination was held by U.H.S. against the provisions of rules is misplaced. The petitioners voluntarily appeared in the examination after giving an undertaking that it will be consumed as one available chance out of permissible chances cannot take summersault to wriggle out of their undertaking. The Hon'ble Supreme Court has not allowed taking such a position while rendering judgment-dated 24-10-2005 in C. P. L.A. Nos. 1488, 1459 and 1460 of 2005.

14. The petitioners did not exhibit clean conduct in seeking equitable relief from the Court. They firstly approached through constitution) petition for permission to continue studies after exhaustion or 4 permissible chances, which was dismissed. Some of the petitioner un?successfully challenged the judgment before the Hon'ble Supreme Court of Pakistan. In spite of adjudication of their rights, the petitioners filed a declaratory suit in civil court and under an injunctive order appeared in the examination. They deliberately did not disclose the factum of adjudication on the question, at their instance, by this Court. This act was reckless and contemptuous. The petitioners tried to circumvent and frustrate the law to gain advantage. The Hon'ble Supreme Court of Pakistan in Khyber Medical College supra has disapproved such conduct. The petitioners are guilty of contempt, as they have tried to undermine the confidence of public in judiciary by resorting to institution of suit on controversy, stood adjudicated earlier. Case of Abdul Majid and others supra deals such-like cases. The petitioners and female students, though beneficiaries, might have pursued the matter under advice of their elders. We would not like to proceed against the petitioners in contempt; however, this conduct is not approved on any ground whatsoever.

15. The petitioners appeared in the examination under an interim order passed by the civil Court. The said civil suit was withdrawn, unconditionally. The life of interim order lasts till decision is rendered in the main suit. Once the suit is disposed of the interim order terminates automatically. After having withdrawn the suit unconditionally, the interim injunction and all consequential steps taken have become ineffective.

16. After rendering of decision of controversy in exercise of constitution jurisdiction at the instance of the petitioner, further proceedings could not have been taken before the civil Court, as the judgment of this Court had attained finality. Principle of res judicata was clearly attracted. Reference may be had to Abdul Majeed and others v. Abdul Ghaffor and others (PLD 1982 SC 146) for guidance.

17. Discrimination voiced by the learned counsel for the petitioners in regard to Hamad Bin Hamid is without any foundation, Hamad Bin Hamid appeared in four permissible chances and failed. His name was struck of by the respondent. He filed constitution petition against the decision of U.H.S., which was dismissed by a Division Bench of this Court. The same has attained finality. No discrimination has been meted out to the petitioners. As to the case of Muhammad Yaqoob and Nosheen Iftikhar are concerned, firstly no material has been placed on the file to prove that under what circumstances relief, if any, was granted to them and secondly if relief was granted by the Punjab University, it will have binding force on the respondents. The respondent's learned counsel categorically state that no student who has availed permissible chances under the rules was given further chance. Case of Muhammad Riaz supra cited by learned counsel to exercise parental jurisdiction is based on distinguishable facts and have no application to the controversy raised herein.

18. For what has been discussed above, we find no substance in this petition, which is dismissed. S.M.B./J-32/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.