2015 PLP 2488 (YLR)

MAZHAR ALAM KHAN MIANKHEL, C.J.

The petitioners are feeling aggrieved of the judgment/order dated 16-9-2014 of the Additional District Judge, Peshawar, whereby the appeal of petitioners was dismissed against the judgment/order dated 14-5-2014 of the Civil Judge, Peshawar.

2. Petitioners along with 12 others filed a suit against the Khyber Medical University, Peshawar and Principal Jinnah Medical College, Peshawar for declaration to the effect that they are entitled to appear in the 4th Professional (Final Year) M.B.B.S Annual Examination commencing from 6-5-2014. Application for grant of temporary injunction was also submitted, wherein status quo in the terms that the petitioners and others may appear in the 4th Professional (Final Year) MBBS examination subject to notice to the opposite party was also granted. On the next date, the question of maintainability of the suit was raised, on which arguments of learned counsel for the parties were heard. The trial Court while referring to the PM&DC Rules and Regulations as well as the criteria adopted by the KMU for promotion to the next class came to the conclusion that a prima facie case did not exist in favour of plaintiffs Nos. 3 to 5, 7 to 10 and 14 (including the petitioners), as they have failed to pass all the subjects of the 3rd professional, therefore, they were not eligible to appear in the 4th Professional Final Year MBBS Examination. Accordingly, to their extent the suit was dismissed whereas to the extent of other plaintiffs, who had cleared their subjects of the previous classes, the suit was ordered to proceed further.

3. The petitioners and others filed appeal before the District Judge against the decision of the Civil Court, which was dismissed for non-prosecution. An application for restoration of the appeal was moved, which was accepted and the appeal was restored and decided in the terms that the result of the candidates/appellants, who appeared in the 4th professional on Court orders and had passed the 3rd Professional, be declared, whereas the candidates/ appellants, who could not get through the 3rd Professional have failed to satisfy the Court regarding their eligibility to be promoted as well as to participate in the examination of the 4th Professional, so relief to their extent was refused. 3.(sic) Out of the failed candidates, only the petitioners have filed the instant revision petition for setting aside the impugned judgment/order of the appellate Court. When the revision petition came up for hearing before a learned Bench of this Court on 3-10-2014, the following order in C.M. No.610-P/2014 was passed. The same reads as under:-- "Notice to the respondents. In the meanwhile the result of petitioners be communicated to them without giving them the final DMC as well as final result or clearing certificate even course completion of whatever nature, in case they have cleared all the subjects in the final year without first clearing/ passing 4th year (3rd year Professional MBBS). In case they have not cleared full subjects of final year, then the DMC be given to them for further examination according to the ,rules, however, the petitioners are bound to clear their 4th (3rd Professional MBBS)." The respondents though provided DMCs to the petitioners as per directions of this Court, but they did not allow the petitioners, as per rules, to participate in the 4th Professional Exam as they had failed to pass all the subjects of 3rd Professional; hence the petitioners filed a Contempt of Court Petition bearing No.416-P/2014 with C.M.No.610-P of 2014. The said petition came up for hearing before the Court on 24-10-2014 wherein the respondents were directed to allow the petitioners to take their exam of 4th year as well as final year scheduled on 27th of October, 2014 and onward. Show-cause notice was also issued to the respondents for not complying with the earlier orders of the Court dated 3-10-2014. The respondents filed review petition No. 143-P/2014 against the orders dated 24-10-2014, which was accepted and direction to the respondents to permit the petitioners to appear in the final MBBS (4th Professional) was withdrawn. However, it was directed that the respondents shall allow the petitioners to appear in the 4th year MBBS examination (3rd Professional) whenever it is scheduled.

4. Learned counsel for the petitioners argued that under the orders of the Courts below as well as of this Court the petitioners appeared in the 3rd as well as 4th Professional Examination jointly but the respondents have failed to declare their 4th Professional result, which is even against the judgment of this Court in W.P. No. 147-M/2013.

5. On the other hand, learned counsel for the respondents submitted that the petitioners failed to pass 3rd Professional, so they, under the rules, were not eligible to be promoted to next class and thereby they were also not entitled to appear in the 4th professional exam. So, the judgments/orders of the two Courts below are in accordance with law.

6. Arguments heard and record perused.

7. Case of the petitioners is very simple in view of the Rules regulating the MBBS Examinations. Rule-4 of Section-IV of the Regulations of P.M.D.0 deals with the matter as under:-- "No students can be promoted to the higher classes unless he passes all the subjects of the previous classes." A bare look at the above rule will make it clear that a medical student can only be promoted to next higher class when he passes the entire subjects of the previous class. But the matter before the Court has been confused a bit. Again a practice of filing suits and getting interim orders therein for attending the classes of next higher class and the moment the term is near to completion, they again come with another application for seeking permission to sit in the forthcoming examinations. Fortunately or unfortunately, they get such permission and the intention of the Courts in this regard is also based on bona fide as to secure and save the precious time of the students. It has been observed by this Court in many cases that such a laxity/latitude becomes a great problem not for the institution but also for the Courts. If this aspect of leniency is excluded then everything will come into a right direction because the institution and the students both have to follow the rules of discipline made for the purpose. But for smooth sailing of the entire process, the Courts of law have also to follow the rules of discipline. We can only produce good professionals when the rules of discipline are strictly followed. If at all there is a question of leniency in favour of a student for securing his precious time, then that should also be within the parameters and frame work of law.

8. While reverting back to the facts and circumstances of the case, the petitioners who were students of 4th year MBBS (3rd Professional) failed to pass their 3rd professional examination in the prescribed four chances, as per data provided by the learned counsel for the, petitioners. Thereafter, the petitioners along with many others filed instant suit but only those students were permitted to pursue with the case who had passed their 3rd professional exam and were refused to participate in the next professional exam i.e. 4th professional. Again in appeal, similar relief was granted to all those who had passed their 3rd professional exam, whereas the petitioners are the students who still have failed to pass the 3rd professional so, by no way they can be permitted to participate in the 4th professional examination. Though, they were successful in getting favourable orders from this Court during pendency of instant revision petition and they also filed a petition for Contempt of Court, but that order of this Court was clarified in Review Petition.

9. So, the nut shell of the above discussion is that the petitioners have failed to establish their prima facie case and balance of convenience in their favour, what to talk of irreparable loss. Hence, this Revision Petition along with C.O.0 No.416-P/2014 and C.M. No.610-P/2014 are dismissed with costs. The trial Court is also expected to conclude the trial of the main case within a period of two months. Before parting with the judgment, this Court has also observed that the learned trial Court had also issued some directions in its order dated 14-5-2014, which apparently relate to policy matters relating to defendant/respondents. Such like directions by the trial Courts are not within their domain and be avoided in future. Copy of this judgment be also sent to the Judicial Officer concerned along with his order dated 14-5-2014 for information. SL/244/P Petition dismissed.