2006 PLP 2393 (YLR)

M. A. SHAHID SIDDIQUI, J.--This petition under Article 199, Constitution oh Islamic Republic of Pakistan, 1973 has been preferred by Rasikh Ajmal, a student of Allama Iqbal Medical College, Lahore which is affiliated with the University of Health Sciences, Lahore. The petitioner appeared in the 3rd Professional M.B.,B.S. Annual Examination held in September/October, 2005 and failed. Through this petition he has challenged the propriety of the result announced by the University and has prayed for a declaration to the effect that he had passed the said Examination by way of adjustment of his marks which he obtained in theory with the marks in Oral and Practical Examinations in the subjects of Community Medicine and Pathology.

2. Admittedly the petitioner was required to obtain 'fifty per cent' (50%) in Theory and fifty per cent (50%) in Oral and Practical Examination. He secured 44 marks out of 100 in Theory in the subject of Community Medicine and failed. Similarly he failed in the Oral and Practical Examination in the subject of Pathology by securing 96 marks out of

200. Consequently he was declared to have not passed the said examination.

3. Learned counsel for the petitioner relying upon a judgment of this Court in the case of Sheikh Nasir Subhani v. University of Health Sciences and 4 others (Writ Petition No.2896 of 2004) [Rawalpindi Bench] submitted that this Court in the exercise of parental jurisdiction may allow the adjustment of marks obtained by him in the Oral and Practical Examination with the marks in the Theory for each subject.

4. Learned counsel appearing for the University maintained that under the Statute and Regulations approved by the Board of Governors every candidate is required to secure 50% marks in written and 50% in Oral and Theory Examination separately and the adjustment proposed by the learned counsel for the petitioner being beyond the Statutes and the Regulations cannot be allowed. Learned counsel for the respondent has also brought to our notice that the Honourable Supreme Court of Pakistan has not approved the view taken by the learned Single Judge of this Court in the case of Sheikh Nasir Subhani. He placed a photocopy of the judgment of the Honourable Supreme Court of Pakistan in Civil Petition No.314 of 2005 titled "University of the Health Sciences Lahore and others v. Sheikh Nasir Subhani and others", Learned counsel for the respondent has also relied upon the case of Khurram Nazir v. University of the Health Sciences, Lahore and another (2005 MLD 1130), in which a Division Bench of this Court, besides disapproving the grant of 5 grace marks also did not allow the candidates failing in one subject to make up the deficiency from the marks obtained by them in other subjects in excess to the minimum standard.

5. We have considered the arguments put forth by the learned counsel for the parties. Under section 31 of Punjab Ordinance No.LVIII of 2002, University of Health Sciences, Lahore Ordinance 2002, the Academic Council, being the Academic Body of the University, is the authority to prescribe the courses of studies, the syllabi and the outline of tests for all examinations. As per Notification dated 14th July, 2004, the Board of Governor approved the Statutes and Regulations for M.B.,B.S. 3rd Professional Examination. Regulation No.2, which is applicable in the case in hand is advantageously reproduced below:-- "

2. The minimum number of marks required to pass this examination for each subject shall be fifty per cent (50%) in written and fifty per cent (50%) in the oral and practical examination separately and fifty per cent (50%) in the aggregate at one and the same time. Candidate who secures eighty percent (80%) or above marks in any subject shall be declared to have passed "with distinction" in that subject and no candidate who does not pass in all the subjects of the Second Professional Examination as a whole at one and the same time shall be declared to have passed "with distinction" in any subject: Provided that a candidate shall be deemed to have passed if he/she fails in only one subject (written, oral and practical, and aggregate) by a margin of 05 marks, when he takes the examination either in all the subjects at one time, or having appeared and failed in a part of the examination, reappears in the subjects in which he had not passed provided further that he/she will be granted this concession only once in this examination (annual or supplementary). The number of marks by which he/she is short shall not, however, be physically added. A candidate failing in more than one subject shall not be entitled to any grace marks." The words 'separately' and 'aggregate' reproduced above in italic are of marked significance. These words clearly express the intention of the framers of the Rules. There is no ambiguity that the petitioner was required to obtain 50% marks not only in the written and the oral examinations separately but also in the aggregate of all the subjects. Clubbing the marks of oral and practical examinations with the marks obtained by a candidate in the written examination is not permissible under the Regulation. This Court, in the exercise of constitutional jurisdiction while interpreting and enforcing the regulations of the University, cannot travel beyond the said regulation, especially in view of the law laid down by the Honorable Supreme Court of Pakistan Civil Petition No.314 of 2005, referred above.

6. In the light of the above discussion, we do not feel inclined to provide any relief to the petitioner and advise him simply to work hard for higher standard. This petition fails and is hereby dismissed. H.B.T./R-28/L Petition dismissed.