2001 SCMR 1506 (PLP)

NAZIM HUSSAIN SIDDIQUI, J.‑‑‑This judgment will dispose of Civil Appeals Nos. 1453, 1454, 1455 and 1456 of 1998, involving common questions of facts and law and the same are directed against judgment dated 21‑1‑1997 of a learned Division Bench, Lahore High Court, passed in Writ Petitions Nos.11623, 12107, 12109 and 12469 of 1995, whereby these petitions were allowed.

2. The respondent No. l of these matters namely (1) Mst. Samea Zafar Cheema, (2) Mst. Saira, (3) Mst. Nusrat Nazir and (4) Mst. Tallat Farzana were admitted in Fatima Jinnah Medical College, Lahore, as students of M.B.,B.S. and they failed to clear First Professional M.B.,B.S. Examination to four chances. The rule/regulation at the time of their admission regarding passing the First Professional M.B.B.S. Examination within four attempts was as follows:‑‑ "...A candidate who fails to clear the First Professional M.B.B.S. Examination in four chances, availed or unavailed offered by the University shall cease to be eligible for further Medical/dental education. The regulation shall be applicable to all the categories of the candidates whether they are fresh or failed candidates. "

3. Having failed to clear the First Professional M.B.B.S. Examination within 4 attempts, the respondents were not permitted to continue their studies further. They filed writ petitions before High Court, which, as stated earlier, were allowed to avail one more chance. Their plea of illness was accepted. The operative party impugned judgment is as follows: ‑‑ "...In .such a case where a student is unable to avail a chance on account of circumstance beyond her control, the examination in which she could not appear shall not be deemed to have been availed of by her, therefore, she was entitled to the grant of another chance therefore, the act of the respondents in declining her to appear in the examination thereafter is not sustainable under the law."

4. Vide order dated 18‑8‑1998 leave to appeal was granted to interpretate the above quoted rule.

5. It is contended on behalf of the appellants that above named respondents failed to clear their First Professional M.B.B.S. Examination, in accordance with rules quoted above in four chances, as such, they had no right to pursue their studies further. Learned counsel also argued that without any justification High Court allowed the respondents to avail the 5th chance. It is also urged that the phrase "Four chances availed or unavailed" was not properly interpretated by the High Court in its true perspective.

6. In the case reported as Akhtar Ali Javed v. Principal, Quaid‑e‑Azam Medical College, Bahawalpur 1994 SCMR 532, while interpreting above quoted rule, this Court observed its follows;‑‑ "...The above rule being the part of the prospectus for the academic year 1986‑87, under which the appellant was admitted to M.B.B.S. classes, his right to continue his studies was governed by that rule. The appellant having availed four clear chances to clear his First Professional M.B.B.S. Examination, and failed, could not claim any right to continue his studies in view of the above mentioned rule The learned counsel for the appellant is unable to show that the above‑quoted rule contravened or came in conflict with any provision of law made applicable to the respondent's institution. The learned counsel for the appellant is also unable to demonstrate that the above‑quoted rule contravened any of the fundamental rights guaranteed tinder the Constitution. The right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above‑quoted rule, in our view, does not infringe upon the right of a student to pursue his studies in the Medical College. On the contrary it ensures arrest of falling standards of education in such institutions. We, therefore, do not find any arbitrariness or unreasonableness in the aforesaid rule. " Dictum regarding maximum of four chances laid down in aforesaid case was followed by this Court in the case of Muhammad Hamid Shah ". Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101.

7. Another case on this point is of Rana Saeed Ahmed v. The Controller of Examination, Bahauddin Zakriya University, Multan 1996 SCMR

792. The petitioner of this case was granted admission of M.Sc. Zoology, Part I Class in Bahauddin Zakriya University. He made three attempts to clear the annual examination held each year by the said University, but failed to succeed. Before he could make a fourth attempt, the relevant Regulation was amended, which debarred him from the fourth chance to clear the said examination. It was argued before this Court that to appear in an examination is a right created by the Regulations and as such could not be taken away by any subsequent amendment made therein. Relying upon the judgment reported as Sultana Khokhar v. University of the Punjab PLD 1962 SC 35, above contention was repelled with an observation that Universities in Pakistan have been vested with powers to regulate the conduct of examinations and undisputably a complete autonomy is enjoyed by them in this regard. It was further observed that amendment in question have come into force before the petitioner had made a third attempt.

8. In the case reported as Mst. Fabiha Parvez v. People's Medical College for Girls, Nawabshah and others PLD 1999 Karachi 394, a Division Bench of High Court of Sindh, relying upon the dictum laid down by this Court in the case of Akhtar Ali Javed observed as follows:‑‑ It is noted that the phrase 'four chances availed or unavailed' in aforesaid rule underlines the importance of clearing 1st Professional M.B.B.S. Examination maximum in four chances. On the one hand, it provides ample opportunity to a student to clear the examination by availing those chances and on the other it protects the interest of those students, who because of shortage of seats, do not easily get admission. After availing four chances as provided in said rule, a student must vacate the seat for other deserving candidates Otherwise very purpose of said rules would be frustrated, if under any circumstances, further opportunity is provided.

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 tern: "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.

10. We are of the view that the scope of the phrase "four chances availed or unavailed" is now absolutely clear and no other interpretation is possible than stated above. Learned High Court erred in interpreting the above phrase otherwise,

11. Accordingly, we allow these appeals with no order as to costs, set aside the impugned judgment and dismissed the writ petitions of the respondents. The interim order is also recalled. Q.M.H./M.A.K./U‑11/S Appeal allowed.