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Judgment Sheet PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT Writ Petition No.09 of 2015

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Judgment Sheet PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT Writ Petition No.09 of 2015 Judgment Sheet PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT Writ Petition No.09 of 2015. JUDGMENT Date of hearing: 25.06.2015 (Announced on 30.06.2015) Petitioner(s) : (Umair Khan etc) by Khush Dil Khan, Advocate (Respondent(s) : (Gandhara University etc) by Mansoor Tariq, Advocate, Syed Saiser Ali Shah, AAG, Aurangzeb Khan, advocate for PMDC alongwith Taskeenuddin Khattak, Advocate. MAZHAR ALAM KHAN MIANKHEL , CJ.- The petitioners before us are three categories of students of various medical colleges of Khyber Pakhtunkhwa, who have been denied by the Administration of respective colleges to promote them to the next classes unless they clear all the subjects of the previous classes. The first category of petitioners have appeared in the first professional MBBS examination under the PM&DC Regulations 2013 (Admission in MBBS/BDS Courses and Conditions for House Job/Internship/Foundation Year Regulations), but did not succeed to pass all the papers, therefore, were denied to get admission in the next higher class i.e. 2 nd year. The second and third categories of petitioners are the students of 2nd year and 3rd year and onward. They too have not passed all the papers of their respective classes and, thus, were also denied promotion to the next higher classes. The administration of all the 2 respective Colleges have, in writing, informed all the students or their parents about the said decision, which has been challenged by the petitioners either through writ petitions before this Court or before the Civil Courts through their declaratory suits. In some of the cases, the Civil Courts have granted temporary injunction to the petitioners to attend the next classes whereas in some cases such a prayer has been refused and their plaints have been rejected for want of cause of action. Similarly, the petitioners, who have filed writ petitions before this Court, have been allowed to attend the next classes subject to the fate of writ petitions at their own risk and cost. 2. Since in all the writ petitions and civil revisions the question for determination is one and the same, therefore, we intend to dispose of the same through this single judgment in Writ Petition No.09-P/2015. The other connected Writ petitions and Civil Revisions are tabulated as under:- 1. W.P.No.349/2015 , Haseebullah and others vs. Principal, Kabir Medical College and others; 2. W.P.No.637/2015 , Amin Gul vs. The Principal Kabir Medical College and others; 3. W.P.No.759/2015 , Mst. Mehreen vs. The Principal Kabir Medical College and others; 3 4. W.P No.1021/2015 , Kamran Khan and others vs. The Principal, Al Razi Medical College, Peshawar and others; 5. W.P.No.1064/2015 , Sana Sajad vs. KMU and others; 6. W.P.No.1073/2015 , Naila Tabassum and others vs. KMU, Peshawar and others; 7. W.P.No.1151-P/2015, Ghazanfer Hussain etc. vs. KMU etc. 8. W.P.No.1165/2015 , Waqar Ahmad Khan and others vs. The Principal Pak International Medical College, Peshawar and others; 9. W.P.No.1328/2015 , Adeem Iqbal and others vs. KMU through V.C and others; 10. W.P No.1329/2015 , Saima Humayun vs. KMU and others; 11. W.P No.1330/2015 , Muhammad Salman vs. KMU and others; 12. W.P.No.1520/2015 , Shaista Haq and another vs. KMU and others; 13. W.P.No.1665/2015 , Bilal Zafar vs. Gandhara Institute of Medical Sciences through its Chairman and others; 14. W.P.No.1673/2015 , Ibrahim Imtiaz and another vs. The Principal, Peshawar Medical College, Peshawar and others; 15. W.P.No.1736/2015 , Adil Ahmad Khan and others vs. KMU through its V.C and others; 16. W.P.No.1737/2015, Rukhsar Saeed and another vs. Gandhara University through its V.C and others; 17. W.P.No.1778/2015 , Saqib Hussain vs. the Principal, Rehman Medical College, Peshawar and others; 18. W.P.No.1807/2015 , Atal Khan and others vs. KMU and others; 4 19. W.P.No.1960/2015 , Madiha Fatima Danish vs. KMU and others; 20. W.P.No.1961/2015 , Fiza Ayub vs. Gandhara University through its V.C and others; 21. W.P.No.1990/2015 , Zala Javid Khan vs. The Principal, Kabir Medical College and others; 22. W.P.No.2128/2015 , Muhammad Ali and others. Vs. Kabir Medical College through its Registrar and others; 23. W.P.No.2209/2015, Wagma Ali vs. Gandhara Institute of Medical Sciences and others. 24. C.R.No.199/2015 , Malik Bilal Ahmad Khan vs. Chairman Gandhara University of Peshawar and others; 25. C.R.No.204/2015 , Aisha Bangash vs. Controller of Examination and others; 26. C.R No. 211/2015 , Syed Yawar Islam vs. The Principal, Kabir Medical College and others; 27. C.R.No.212/2015 , Mst. Sundas Shabir vs. The Principal, Kabir Medical College and others; 28. C.R.No.217/2015 , Zeshan Ahmad vs. The Principal, Kabir Medical College and others; 29. C.R.No.218/2015 , Ahmer Ijaz vs. The Principal, Kabir Medical College and others; 30. C.R.No.219/2015 , Jibran Khan vs. The Principal, Kabir Medical College and others; 31. C.R.No.244/2015 , Anam Ibrar vs. Gandhara Institute of Medical Sciences through its V.C and others; 32. C.R.No.329/2015 , Mehmood Ali and others vs. Gandhara Institute of Medical Sciences through its Chaiman and others; 33. C.R.No.366/2015 , Muhammad Salman Javid vs. Vice Chancellor and others; 5 3. Learned counsel for the petitioners contended that the subjects taught in 1st year and 2nd year are one and the same and for that matter both were considered as Part-I and Part-II of the 1st Professional of MBBS, therefore, it does not involve promotion to the next class. Reliance was placed on a full Court judgment of this Court in the case of Alapthagin vs. Principal Saidu Sharif Medical College, Swat and 3 others (PLD 2004 Peshawar 307), which was upheld by the apex Court in its judgment delivered in CPLA No.1992/2004 dated 13.09.2004. The learned counsel also relied upon the consolidated judgment of this Court passed in Writ Petition No.1844-P/2012 titled Muhammad Bilal and others vs. Khyber Medical University and others. Further contended that the students of 2nd year MBBS Class had successfully attended their classes and lectures by completing their course but unfortunately could not clear all the papers of Ist Year (they termed it as Part-I), therefore, refusal of respondents to allow the petitioners to sit in the next higher class of 2nd year MBBS and appear in the examination is unconstitutional, discriminatory, harsh and against the judgments of this Court as well as the apex Court in the cases referred to above. It was also averred that similar is the case of students of 2nd, 3rd years and onward, who have been 6 denied to attend the classes of next higher class because of their failure in some papers of the previous class which is against the terms and conditions of the Prospectus as well as the settled case law referred to above. The learned counsel also contended that the Regulations 2013 of PMDC cannot be given retrospective effect; which are aimed at to frustrate and nullify the effect of the judgments of the superior Courts; hence are liable to be struck down. 4. As against that, learned counsel for the respondents argued that the old Regulations framed under the Pakistan Medical & Dental Ordinance 1962 (PMDC) were repealed by Medical & Dental Council (Amendment) Act, 2012 whereby new Regulations have been framed in the year 2013 for Admission in MBBS/BDS Courses. The same have been given binding effect for admissions from 2013 and onwards. The Regulations of 2013 are thus applicable to the petitioners as their examinations were held in the year 2014. They further stated that after the issuance of regulations 2013, the scheme of MBBS/BDS programme has been replaced and MBBS course has been spread into five professionals instead of four, i.e. 1st Professional, 2nd Professional, 3rd Professional, 4th Professional and 5th Professional (Final Year). The petitioners appeared in the examinations after 7 the issuance of Regulations by PMDC in the year 2013 and they are thus not eligible to take any advantage of the previous concept of move over from Part-I to Part-II as the same is no more in the field. Further stated that the petitioners are not debarred from continuation of Medical Education and are allowed to pass all the fail subjects of the respective Professional Years in four chances under Paragraph-9 of the Regulations-2013, after which they would be eligible to be promoted to the next higher classes. 5. Arguments of the learned counsel for the parties were heard and record of the case was perused. 6. There is no denial to the fact that the Pakistan Medical and Dental Council is a regulatory body for regulating medical and dental profession, medical and dental education and institutions. I n discharge of its statutory obligations towards ensuring uniform standard of medical and Dental Education in the Country, by virtue of provisions of Section 37 of the Medical & Dental Council (Amendment) Act, 2012, Section 33(2) of the Pakistan Medical and Dental Council Ordinance, 1962 was amended and Admission in MBBS and BDS Course and House job/ Internship/ Foundation Year Regulations-2013 were approved to come into force for admissions from 2013 and onwards. Before the issuance of Regulations- 8 2013, Regulations-2003 were made under the PMDC Ordinance, 1962, which provided the Examination under Section-IV as under:- 1.
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