2005 PLP 1925 (CLC)

7. Mr. Munir Ahmad Bhatti, Advocate, learned counsel for the petitioner raised the following contentions:- (i) That the Ordinance stands repealed on the expiry of four months from its promulgation as it was not laid before the National Assembly in accordance with the provision of Article 89(a) of the Constitution of Islamic Republic of Pakistan, 1973; (ii) That the letter, dated 14-7-2004 provide different number of chances to students of first, second and third professional examination; (iii) That the Regulations have no legal status; (iv) That the petitioners are being treated with sheer discrimination;

8. Syed Najam-ul-Hassan Kazmi, Advocate/learned Legal Advisor of the respondent-University in opposition argued:

(1) That the petitioners are not being treated with any discrimination in any manner. He relied on Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752 (Full Bench) and laid emphasis on the following observations:

"Right to education is a fundamental right but the State regulates it in more than one ways. In the context of this case it is the State, through Legislature, which establishes schools, colleges, universities and regulates affairs. The Universities are entrusted with the task of teaching of laying down curriculum or courses, of formulating admission policy, prescribing recruitment rules for the teaching staff etc. Affiliation and disaffiliation are some of the privileges, which a University grants under law. This affiliation is basically an association of two Corporate Bodies and is distinct from "right to Association" contemplated by Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. It is not a right created by any Constitutional provision. It is a right, which does not flow from right to education. It is, therefore, not a fundamental right. It is a right created by a Statute. Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights provision of Constitution. (2) He further submitted that Full Bench of this Court in clear terms has held that. the Ordinance, 2002, is not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 or the Pakistan Dental Counsel, 1962. The aforementioned judgment of this Court has been affirmed by the Honourable Supreme Court of Pakistan in Shafique Ahmad and others v. Government of the Punjab and others PLD 2004 SC 168. (3) As to internal assessment, he placed reliance on Abdul Wadood and 18 others v. University of Health Sciences, Sheikh Zayed Hospital, Lahore through Vice-Chancellor and 3 others 2005 CLC 467 and argued that internal evaluation system of Lahore Medical and Dental College has no place in the Punjab University Regulation. (4) He with reference to the aforementioned judgment stated that Regulations of 1998 of P.M.D.C. have not been approved by the Federal Government, therefore, have no statutory force; (5) As to number of permissible chances in 1st professional examination, he relied on Akhtar Ali Javed v. Principal Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 538, Maroof Khan v. Principal Ayub Medical College, Abbotabad and 4 others 1996 SCMR 1101 and Munza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790. (6) In reply to the contention that the Ordinance, 2002 has been repealed on account of its being not placed before the National Assembly on expiry of four months, learned counsel relied on Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973 to canvass that the Ordinance, 2002 promulgated on 15-10-1999 shall be deemed to have been validly made notwithstanding anything contained in the Constitution and shall not be called in question in any Court or forum or on any ground, thereafter. 8-A. Heard. 8-B. The petitioner in Writ Petition No.4142 of 2005 availed permissible three chances in first professional M.B.B.S. Part-II examination, 2003. The first chance was availed in January, 2004. The 2nd in April/May, 2004 and the third in December, 2004 and failed to clear the first professional Part-II examination in permissible three chances. Similarly, the petitioners in Writ Petition No.5574 of 2005 also availed permissible chances. Adil Ayub, petitioner appeared in examination held in January, 2004, then in April/May, 2004 and lastly in December, 2004. Petitioner No.2 Jauria Saeed and petitioner No.3 Faiqa Zulfiqar Ali appeared in B.D.S. first professional examination held in November, 2003, March/April, 2004, August, 2004 and in January, 2005. They exhausted the chances permissible and failed to clear the examination.

9. The University of Health Sciences retained the previous scheme of education in interregnum (i.e. till the notification of University of Health Sciences Regulations on 14-7-2004) for students already enrolled in various sessions, so as to avoid inconvenience. In that view, schemes of education of the petitioner as available to them prescribed by their previous universities was not changed. The petitioners had to clear the first professional Part-II examination within three permissible chances. The Notification dated 14-7-2004 for academic sessions, 2004 and 2005 and onwards in regard to permissible chances to clear professional examination did not bring any change in the number of chances for first professional M.B.B.;. Part-I and Part-II examination in the newly framed University Health Sciences Regulations. The change was relatable only to 2nd, 3rd and 4th M.B.B.S. examination. The petitioners had appeared under Punjab Medical and Dental Council Regulations and were eligible to get through in three permissible chances only.

10. The first contention of the learned counsel that the Ordinance, 2002, has been repealed on account of the provision of Article 89(a) of Constitution of Islamic Republic of Pakistan, 1973 is displaced in view of the provision of Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973. The University Health Sciences Ordinance, 2002 has been additionally declared to be a valid law by Full Bench of this Court in Ahmad Abdullah and 62 other's case supra. The contention of the learned counsel for the petitioner is, thus, rejected.

11. The next contention of the learned counsel as to internal assessment of the petitioner's has been adequately answered in a well-considered judgment of a learned Division Bench of this Court in Abdul Wadood's case supra. We respectfully subscribe to the view taken in the said judgment.

12. As to petitioner's discriminatory treatment, we have not been able to convince ourselves that the petitioners are being meted out with such treatment. The petitioners were originally affiliated with Baqai University. It provided three chances in first professional examination and three chances in second professional examination. The Punjab University provided four chances in all in composite first professional examination consisting of 1st and 2nd Part. The petitioners having failed to clear their IInd Part examination within prescribed chances cannot claim any further allowance. Reliance has rightly been placed on Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 and Maroof Khan v. Principal, Ayub Medical College, Abbottabad and 4 others 1996 SCMR 1101.

13. Case of Nabeel Iqbal is distinguishable. A learned Division Bench of this Court had allowed him to avail another chance subject to final decision of his Constitutional petition on the ground that he availed two chances to clear first professional examination. He was not allowed to avail third chance due to in action of two departments.

14. The petitioners on their failure to clear, 1st professional Part-II examination in three consecutive chances have ceased to become eligible for further medical education. Students at the top of merit are granted admission in institutions of learning medicines. Only bright, studious and hardworking students are selected in this field in view of difficult task ahead to render services in health sector. Students who are carefree in c studies cannot be allowed to sit in college for indefinite period of time and occupy the seat, which may become available to any other deserving student. It is a time of meritocracy. Those who failed to come up to the standard prescribed by the educational institutions, and fall below in merit should select some other field, and, be not allowed to waste time and money. The regulation in unequivocal terms provides that on failure to clear 1st professional Part-IInd examination in three consecutive availed or unavailed chances, a student shall cease to be a student. Regulation of statutory body cannot be set at naught by Courts in exercise of Constitutional jurisdiction without any basis. Constitutional jurisdiction is exercised in order to advance and promote justice in accordance with law and is not meant to bypass the provisions of statute.

15. For what has been discussed above, we do not find any force in these Constitutional petitions, which are dismissed. H.B.T./S-428/L Petitions dismissed.