Judgment Sheet 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 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 , 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. through its V.C and others;

17. W.P.No.1778/2015 , Saqib Hussain vs. the Principal, , 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 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

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. ...……… 2. ……….. 3. The first professional examination should be divided into two parts each to be conducted by the university. Any student who fails to pass the first professional MBBS Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical . 4. No students can be promoted to the higher classes unless he passed all the subjects of the previous classes. 5. No student should be eligible for a university examination without having attended 75% of the lectures, demonstrations, tutorials and practical or clinical work both in-patients and out-patients. 6. No student shall be promoted to the 3 rd year of MBBS class without passing the First Professional MBBS Part-I and Part-II university examination in , Physiology and ….

The grievance of the petitioners under the new

Regulations-2013 is almost the same in nature, whereunder;

“Any student who fails to clear first Professional in four chances availed or un-availed and has been expelled on that account shall not be eligible 9

for fresh admission as a fresh candidate in either MBBS or BDS; nd Any student who fails to clear 2 professional in four chances availed or un-availed and has been expelled on that account shall not be eligible for fresh admission as a fresh candidate in either MBBS or BDS; A student who has availed the chances to clear the First Professional examination or part thereof in four chances availed or un-availed and has been expelled on that account shall not be eligible for continuation of medical/dental studies of the MBBS or BDS course and shall not be eligible for fresh admission as a fresh candidate in either MBBS or BDS.”

Similarly, in the Prospectus for Admission 2013-14, almost similar Examination Rules have been made, relevant provisions whereof reads as under:-

“A student, who has failed/detained in a professional examination or its part both in Annual and Supplementary in any subject, shall not be promoted to the next higher class. He/She shall undergo the course of study in the subject(s) in which he/she failed/detained and pay the tuition fee for failed subject; rd No student shall be promoted to 3 Professional rd st MBBS (3 Year MBBS) without passing the 1 st nd Professional MBBS (1 Year MBBS) and 2 nd Professional MBBS (2 Year MBBS) University examinations.”

10

7. The petitioners before us are the students who got admissions under the Regulation 2013 by accepting all terms and conditions of the admission/examination criteria and had also filed their affidavits in this regard. Controversy between the students and administration of Medical Colleges arose when certain students failed to qualify some of the papers prescribed for the First Professional MBBS and they were not allowed to attend the classes of 2 nd Professional as provided in the Regulations 2013 whereas in the previous regulations, as quoted above, both the classes comprised of Part-I and Part-II of the 1 st Professional. When the matters came up for consideration before this Court in

Writ Petition No.750 of 2011 titled Miss Dure-e-Nayab

Shama Vs. , Peshawar and

Writ Petitions No.772, 854 and 730 of 2002 titled Noor

Muhammad and 2 others vs.

Abbottabad and 4 others before two different learned

Division Benches of this Court, they differed in opinion on the same and similar point of law, one given in

W.P.No.750 of 2001 and the other given in W.Ps No.772 etc of 2002. So, in this view of the matter, a Full Bench was constituted in W.P.No.1074 of 2003 titled Alaptagin vs. Principal Saidu Sharif Medical College (reported in 11

PLD 2004 Peshawar 307), which resolved the controversy in the following terms:-

“Apart the above dictionary meaning of the two terms, a look on the pattern of division of the classes which are four in number and the terminology employed and the nomenclature given convey a clear intention that mainly the entire five years M.B.B.S course has been divided into four classes called first professional, 2 nd professional, 3rd professional and final professional, however, for convenience sake first professional has been further sub-divided into two parts and whatever the object behind this division might be, the subjects taught in Part-I and Part-II are one and the same. In Part-II although the same subjects are taught but probably that consists of advanced course therefor. Our this construction of the term is further re-enforced by the addition of the words in Para.9 of the Prospectus to the effect “or its part both Annual and Supplementary in any subject shall not be promoted to the next higher class” .

The above judgment was challenged by the College

Authorities before the apex Court through C.P.L.A.

No.1992 of 2004, which was decided on 13.11.2004 .

The learned Bench of the august Supreme Court of

Pakistan, while upholding the judgment of this Court, also made the following observations:-

“It is not disputed that the subjects prescribed in the course of study for First Professional 12

M.B.B.S. are actually the same but segregated in two parts for the sake of convenience of the students. These parts have been termed as classes but virtually it is single course of study spread over two parts to be completed by each student within two years……..Nevertheless, the fact remains that there is no legal impediment in allowing a student, who fails to clear all the papers prescribed for part-I of the examination for being allowed to attend the classes of Part-II and to qualify in all papers at the end of the year in annual or supplementary examination……..It does not, however, restrict an student to attend the classes of Part-II in the First Professional M.B.B.S. even if he has failed to qualify a subject in Part-I.”

The decision in Writ Petition No.1844-P/2012 titled

Muhammad Bilal and others vs. Khyber Medical

University and others (decided on 24.09.2014) is also based on the judgment rendered by this Court in the case of Alaptagin (supra).

8. Writ Petition No.1399 of 2006 was decided by a learned Division Bench of this Court on 15.5.2006 wherein the petitioners had not qualified first professional examination in first attempt and they were informed that they would neither be promoted nor allowed to take up their classes, unless they qualify the subjects, they failed.

It was found that the petitioners had subsequently 13

passed the examination and had also completed the required number of attendance by attending the classes, though under the order of the Court, therefore, no order can be passed to reverse the process. Another Writ

Petition bearing No.2698-P/2014 came up for hearing before a learned Division Bench of this Court on

05.03.2015. Petitioners No.2 and 4 therein had failed in the 3rd year Professional Examination (MBBS) and the supplementary examination, therefore, they had sought to appear in the 4th year Professional MBBS Examination but the same was refused to them unless they first clear the 3rd year examination. Another matter was dealt-with by this Court in C.R. No.747 of 2014, wherein the petitioners had sought to appear in the 4th Professional

M.B.B.S Annual Examination. The learned trial Court had granted temporary injunction to the petitioners to the effect that they may appear in the 4th Professional MBBS examination but subsequently their suit was dismissed, as they had failed to pass all the subjects of the previous class. The appeal preferred against the said judgment was dismissed to the extent of those students who had failed to pass all the subjects of the 3rd Professional. This Court while affirming the judgments of the Courts below vide judgment dated 17.04.2015 also observed that:- 14

“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.C 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.

15

It was, therefore, concluded that the petitioners have failed to pass the 3rd professional so, by no way they can be permitted to participate in the 4th professional examination.

9. Though the earlier confusion of Part-I and Part-II of the first professional was settled through the Full Bench judgment of this Court in Alaptagin’s case ibid and was upheld by the apex Court and the system was running smoothly but the introduction of this new Regulation of

2013 and the examination rules provided in the Prospectus for the year 2013-2014 once again worked as a triggered reaction and the contention of the learned counsel for the petitioners in the cases of 1st Professional and 2nd

Professional (as per new Regulation) is the same based on the same old analogy that subjects in both the professionals are the same, so the act of the respondents being based on malafide is nothing less than flouting the judgments of this Court as well as of the apex Court.

Apparently and ostensibly it appears so but we don’t think that scrutiny of the intention of the respondents in this regard falls within our domain as this being their policy/technical matter would not allow us to look into the matter with this angle when none of the petitioners has questioned the vires of the Regulations 2013 and

Examination Rules in Prospectus 2013-14 though the 16

learned counsel tried to argue their cases with this perspective. But we are afraid that this aspect cannot be considered or dilated upon, at least, at this stage.

Regarding this change if an optimistic view is taken, then we can simply say that the respondents have brought these changes just for streamlining their system of administration and legally they cannot be questioned in this regard in absence of anything to the contrary available on the record. On mere allegations, we cannot go to that extent. We can just quote examples of Secondary School

Certificate courses and Intermediate courses specially the science subjects in support of our view. Though the subjects are the same but are taught in parts. As far as the cases of the students of 2nd, 3rd professionals and onward are concerned, there is no change in the scheme and every student to become eligible for next higher class has to pass/clear all the subjects. But at this juncture, we would like to intervene and that too for the sake of the precious time of the students of the medical profession by holding that a failing student in some subjects of any class would be entitled to sit in the next higher class to get/secure the required number of attendance for the reasons that if he passes all the failed subjects in the supplementary examination then he would become eligible to sit in the next professional exam without wasting his one complete 17

year but let it be clear that it would remain his own risk and cost as after attending the required number of classes, he would not be able to claim as of right to sit in the next higher exam unless he passes/clears all the subjects of previous class.

10. So, all the writ petitions and C.Rs are disposed of in the above terms. However, the C.Rs against the interim orders are sent back to the trial Court to dispose of the suits in above terms but at their earliest by keeping in mind the precious time of the students whereas the C.Rs against the judgments/orders of rejection/return of plaints are dismissed. Needless to say that the students of these petitions and all others have to be dealt with in above terms. No orders as to costs.

Announced 30.06.2015 CHIEF JUSTICE

J U D G E