2009 PLP 876 (CLC)

The petitioner was admitted to First year M.B.,B.S. class in the Allama Iqbal Medical College, Lahore in the year, 2004. He availed first chance for the First Professional in Supplementary Examination, 2006. Having failed he availed his second chance in Annual Examination, 2007. Having again not been able to qualify he was expected to appear in Supplementary Examination, 2007. However, allegedly on account of chronic depression and psychiatric illness he could not avail that chance. Lastly, he appeared in Annual Examination, 2008 but again failed to clear vina voce part of practical examination of Anatomy.

2. Having exhausted the statutory four chances he made an application for reinstatement of third chance, which he earlier failed to avail on medical grounds. His request for reinstatement as also re-valuation of vina voce of the said paper of fourth chance was rejected by respondent No.3, Controller of Examination, University of Health Sciences, Lahore by way of his order, dated 17-12-2008 in the following words: -- "Your request of 3rd chance for 1st Prof. M.B.,B.S. Part-II Examination was declined being not tenable under University Rules and Regulations in the 16th Meeting of Board of Studies (Medicine)."

3. That order is sought to be challenged through this constitutional petition with the following prayer:-- "In view of the submissions made above it is therefore respectfully prayed that this petition may kindly be accepted and impugned order, dated 17-12-2008 passed by Respondent No.3, may kindly be declared to be illegal, arbitrary and of no legal effect and respondents may be directed to grant extra chance and allow him to appear in Supplementary Examination, 2008 scheduled to held on 29-1-2008. It is further prayed that during the pendency of the writ petition, petitioner may be provisionally allowed to register and appear in Supplementary Examination, 2008."

4. Respondents Nos.1 to 3 in their reply have opposed the grant of the aforesaid prayer. They have relied upon General Regulations of Statutes and Regulations for M.B.,B.S. First, Second, Third and Final Professional Examinations. That Regulation in extenso reads as under: "A candidate who fails to pass First Professional Examination Part-II Examination in four consecutive chances, availed or unavailed, after becoming eligible for First Professional Part-II Examination shall cease to become eligible for further medical education." It is also stated that at the time of availing of fourth chance, the petitioner never applied for either extension or reinstatement of the third chance, which he had admittedly not been able to avail. An application, as a matter of fact, is stated to have been made only after a lapse of more than one month of holding of the Supplementary Examination, in February, 2008, which was his third chance. According to them the rule regarding "availed or unavailed" must be followed in all circumstances as it was applicable to every student receiving medical education in the Province of Punjab. Accordingly, it is claimed that the petitioner wishes to avail fifth chance disguising the same as reinstatement of his third chance, which was neither countenanced by the aforesaid Regulations nor will it otherwise be in accordance with the policy laid down by the University of Health Sciences for medical education.

5. Learned counsel for respondents Nos.1 to 3 has relied upon a chain of judgments including re: Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and others 2006 SCMR 1076, re: Omer Nassar Muhammad v. Principal, Nishtar Medical College and others 2006 SCMR 695, re: University of the Punjab and another v. Mst. Samea Zafar Cheema and 4 others 2001 SCMR 1506, re: Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532, re: Munaza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790 and re: Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101. Incidentally, learned counsel for both parties also place reliance upon the judgment of the Honourable Supreme Court in re: University of the Punjab and another v. Mst. Samea Zafar Cheema and 4 others (supra). The Honourable apex Court was approached by the University of Punjab against the judgment recorded by a Division Bench of this Court on 21-10-1997 in Constitutional Petition Nos.11623, 12107, 12109 and 12469 of 1995. The learned Division Bench while interpreting the aforesaid regulations held that where a student was unable to avail a chance on account of the circumstances beyond her control, the examination in which she could not appear shall not be deemed to have been availed of by her. Accordingly in view of their Lordships the student was entitled to another chance. The Honourable apex Court, however, finally concluded otherwise. According to their Lordships of the Supreme Court the scope of the phrase "four chances" availed or unavailed" was absolutely clear and an artificial and unnatural meaning could not be attributed to the same to enhance or modify the scope of the expression. Para.9 of the judgment of the Honourable apex Court reads as under:

"(9) Perusal of the operative part of the impugned judgment indicates that the scope of phrase "availed or unavailed" was enlarged on totally unjustified ground. If deliberately a chance is not availed, then the student cannot take advantage of his/her own unbecoming act of omission or commission to nullify the effect of said rule. If it is due to reasons beyond his control, in such circumstances, it would fall within the ambit of term "Unavailed". Both words "availed or unavailed" have been used, in said rule. If the meaning and purpose of the rule is clear an artificial or unnatural meaning cannot be attributed to enhance or to modify the scope of the rule. No word or clause of a rule shall be treated as superfluous, nor beneficial construction can be resorted if the words are quite clear. In fact, the clear words are decisive by themselves. There is a logic behind said phrase. On the one hand it tends to enhance the status/standard of education and on the other provides a tangible guideline to effectively examine the aptitude of the students. Four chances are more than enough to clear First Professional M.B.,B.S. Examination, yet, if a student fails to do so, the reasonable conclusion would be that he has no aptitude for medical education."

6. Since the above case stands applicable on all fours to the facts in hand and since the availing of four statutory chances is admitted on the part of the petitioner, we find no justifiable reason to interfere with the impugned order or to make a direction that the third chance, which the petitioner failed to avail should be reinstated. As rightly stated by respondents Nos. 1 to 3 the unavailed third chance is a past and closed transaction and therefore, making of any direction as prayed for would amount to transgress the statutory rules of four chances by making them five in the guise of reinstatement of already expired chance "availed or unavailed".

7. Dismissed in limine. M.H./M-194/L Petition dismissed.