2009 PLP 708 (YLR)

GHULAM MOHY-UD-DIN MALIK, J.

By means of this Writ Petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, Zainab Idrees, petitioner seeks declaration to the effect that action of principal Ayub Medical College (respondent No.1) refusing her to take examination in Part-II M.B.,B.S. 1st Professional is based on mala fide, unlawful exercise of powers and of no legal effect against her rights. Further, that the respondents Nos. l and 2 may be directed to receive her admission Form and permit her to sit in the above said examination.

2. As an interim relief, prayer is made for directing respondent No.1 and Vice Chancellor, Khyber Medical University, Peshawar (respondent No.2) to receive her admission Form with the permission to appear in Part-II M.B.,B.S. First Professional Examination scheduled for 16th October, 2008.

3. After hearing the petitioner's counsel, this Court vide order dated 29-9-2008 granted her interim relief, as prayed for, by placing reliance on Full Bench Judgment of this Court reported in PLD 2004 page 307 & PLD 2006 SC page 300, at her own risk and costs.

4. Feeling aggrieved by this interim order, Vice Chancellor, Khyber Medical University, Peshawar (respondent No.2) filed appeal before the apex Court and the said Court vide its order dated 14-10-2008 while disposing of the appeal, directing this Court to dispose of the main petition within four weeks. On receipt of record, we tried our level best to hear and decide the matter at the earliest but sometimes due to non-availability of Division Bench at Circuit Bench Abbottabad and at some other times due to lawyers strike or on account of their indifferent attitude, arguments could not be head well within time. Lastly, we directed the parties/counsel to file their written arguments which the office could receive for the previous date.

5. We have perused the written arguments and have gone through the available record.

6. The petitioner Zainab Idrees, who is a student of Ayub Medical College, Abbottabad, studying in First year M.B.,B.S. Part-I could not clear her all subjects in Annual as well as Supple mentary Examinations held in the year 2007 and February, 2008, therefore, through notice dated 25-3-2008 she was directed by the respondent No.1 to re-take the class of First year M.B.,B.S, as on her failure in the Part-I, M.B.,B.S. Examination she could not be promoted to second part as per rules and regulations of the college as well the PM DC rules.

7. It is contended on behalf of the petitioner that though she could not clear all the subjects of the First Part yet she could appear in the examination of Second Part Profession on the basis of provisions contained in the College Prospectus and in view of decision of Full Bench of this Court reported in PLD 2004 Peshawar page 307, cited above, and it is further contended that the judgment of this Court was upheld by the apex Court in C.P.L.A. No.1992 of 2004 decided on 13-9-2004. Further it is contended that the said judgment was referred to in another case reported in PLD 2006 SC 300 as well. It is argued in the written arguments filed by the petitioner's counsel that view points of the respondents that a student cannot be promoted to higher class unless he had passed all the subject of previous classes is correct but in the instant case, the proposition has been settled down once for all in the manner that the First year M.B.,B.S. has two parts i.e. Part-I and Part-II which constitute First year M.B.,B.S. Class, and the higher class would be the next Class 2nd Professional, therefore, section 4 of the PMDC Rules referred to by the respondents would not come in the way of the petitioner.

8. We agree with the submissions of the learned counsel for the petitioner and observe that if the petitioner had failed in the First Professional Class, then of course she could not be promoted to Class-II Professional nor be allowed to take examination of the higher class. Actually, both Part-I and Part-II are part and parcel of Fist M.B.,B.S. Class and don't constitute two different classes. The second part cannot be termed as higher class nor Part-I as lower class. The bar contained in the above said College's Prospectus, rules and regulations of the University of Health Sciences and section 4 of the PMDC Rules in unequivocal terms imposes bar on the promotion to next higher Class i.e. if a student has not cleared all the subject of First Professional Year (Part-I and Part-II), he/she cannot be promoted to second class.

9. On the subject, reliance is placed on above cited case law, as well as on another unreported case of this Court titled Daud Ahmed Khan v. Principal Saidu Sharif Medical College, Swat and others, pronounced in W.P. No. 147/2008 dated 14-10-2008.

10. At the end, it may be mentioned that the case law relied upon by the learned counsel for the respondents, and referred to in his written arguments, is distinguishable on facts which hardly covers subject matter of dispute between the parties in the instant case, because all those are in respect of promotion of failed student to next higher class and does not relate to Part-I and Part-II of 1st M.B.,B.S. class.

11. For the foregoing reasons, this writ petition is allowed, with the direction to the respondents to allow the petitioners, to take examination in Part-II of the 1st M.B.,B.S. Professional Examination. Consequently, the ad interim order dated 23-9-2008 passed by this Court stands confirmed. H.B.T./34/P Petition allowed.