2000 PLP 1710 (MLD)

"Any student who falls to clear the First Professional M.B.B.S. Examination in four chances offered by the University availed or un availed shall cease to be eligible for further Medical/Dental Education in Pakistan. This will be effective from the First Year Admission of 1986‑87. " In this respect, the Hon'ble Supreme Court of Pakistan, though upheld the vires of Rule/Regulation but still allowed the appellant to avail of fourth chance during pendency of appeal.

5. The learned counsel appearing on behalf of all the respondents contested this petition and argued that language of this Rule is unambiguous. The rule has been made by Pakistan Medical and Dental Council of Pakistan and it is applicable to all the Medical and Dental Institutions in Pakistan and rule was made applicable taking into consideration the deteriorating standard of education; further .the learned counsel has emphasised on the language used in amended Rule which reads as under:‑‑ "Four chances offered by the University availed or unavailed shall cease to be eligible for further Medical and Dental Education in Pakistan. " It has been contended that the rule is to apply mechanically and no scope has been left open under the rule to see circumstances of the petitioner as to why he could not clear 1st Professional M.B., B.S. Examination in four chances, though he did not avail one chance; further argued that the vires of the Regulation were challenged and have been upheld by the Hon'ble Supreme Court of Pakistan in the judgment reported as Akhtar Ali Javed v. Principal, Quaid‑e‑Azam Medical College, Bahawalpur (1994 SCMR 532) and the same view was also followed in another judgment reported as Principal, Quaid‑e‑Azam Medical College, Bahawalpur and another v. Nasim Ahmad and another (1997 SCMR 583); further submitted that no application for leave and medical certificate was ever submitted by the petitioner to the respondent No. 1.

6. I have considered the arguments of the learned counsel for both the parties.

7. It is well‑established law that principle of natural justice has to be observed in all the proceedings which might result in consequences affecting the person or property or other right of the parties whether the proceedings are taken up by judicial body or administrative authority. Vide office order, dated 1st of April, 1999, the petitioner's right to continue his studies for medicines in Pakistan has been closed for all times, hence, valuable right of the petitioner is involved, therefore, applying the rule of natural justice, it was obligatory for the respondent No. l to issue a show‑cause to the petitioner and provide him an opportunity of hearing before passing the impugned office order. The rule of natural justice is imperative and also applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.

8. Had the respondent No. l provided an opportunity of hearing to the petitioner before passing the impugned order, the petitioner would have submitted his case as to whether non‑availing of one chance was due to restricting sickness which prevented the petitioner from taking the examination and thus was unavoidable and a just cause beyond the control of the petitioner. Hence due to failure on the part of the respondent No. 1, to provide opportunity of hearing, the case of the petitioner could not be considered in the light of the judgments referred by the learned counsel for the petitioner wherein the Regulation has been interpreted in favour of the affectee.

9. Furthermore, in the impugned order, dated 1‑4‑1999 name of the petitioner has been struck off from the Rolls of the College, while in the Gazette Notification issued by the respondents Nos.2 and 3 on 15‑3‑1999, the petitioners still has got a right to take examination up to 1st Annual, 2000.

10. No doubt, the amended Regulation of Pakistan Medical and Dental Council has been upheld by the Supreme Court of Pakistan in its judgment reported as 1994 SCMR 532 and maintained in 1996 SCMR p. 1101. However, while interpreting the said Regulation, it has been held by the Division Bench of Peshawar High Court in the judgment reported as PLD 1992 Pesh. 52 as under:‑‑ "The rule is applicable to such cases where the said four chances have either been fully but unsuccessfully availed of or have remained 'unavailed', in circumstances, involving voluntary failure or designed inaction on the part of the student. In other word, if the concerned student is able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause, beyond his control from availing of a chance, he cannot be said to have failed in availing one of such four chances, as aforesaid."

11. The same view was adopted by the Division Bench of Sindh High Court in reported judgment titled as Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal of Sindh Medical College, Karachi (1993 CLC 1675) and. Division Bench of this Court, in I.C.A. No.19 of 1992/BWP, judgment, dated 14‑3‑1993, also held the same view which was further upheld by the Hon'ble Supreme Court in the judgment reported in 1997 SCMR 583.

12. The superior Courts have consistently interpreted this Regulation in favour of the affectee on the ground that a provision disqualifying a student from further purs4it of education in a faculty is necessary penal in nature and doubts as to its interpretation, if any, are required by law, to be resolved in favour of the affectee.

13. Now taking into consideration, the case of the petitioner in the light of the above interpretation of the Regulation, the petitioner filed an application seeking leave from the Principal of Medical College on the ground of his illness as back as on 25‑12‑1997. The petitioner has at the first available opportunity i.e. alongwith this Constitutional petition also produced Medical Certificate, dated 8‑2‑1998, affirming his serious illness, which restricted him `to take the bed‑rest and prevented him to take the examination, hence, it was a just cause beyond his control.

14. The learned counsel for the respondents has raised objection that the said Certificate be not considered because the Doctor has given a note on the certificate to the effect that it is not valid for Court purpose. The objection is not tenable. In fact the petitioner had obtained the Certificate on 8‑2‑1998 to produce the same before respondent No. 1, if need be, but the respondent No. l has issued the impugned, order, dated 1‑4‑1999 without providing opportunity of hearing to the petitioner; otherwise footnote of the Doctor on the Certificate is not fatal to the case of the petitioner. Hence I see no reason to disbelieve the petitioner who is a foreigner in this country, and has come all the way to Pakistan to pursue his studies.

15. In these circumstances, this Constitution petition is allowed and the impugned order, dated 1‑4‑1999, issued by respondent No.1, is hereby) declared as illegal, void and without lawful authority.

16. Resultantly, the respondents shall offer one clear chance to take M.B.,B.S. 1st Professional Examination to the petitioner. However, there shall be no order as to costs. H.B.T./R‑17/L Petition accepted