C. P. NO. D-1292 of 2015
Present:
Mr. Justice Syed Sajjad Ali Shah.
Mr. Justice Muhammad Junaid Ghaffar.
Ghazna Mohammad Rafiq & others ------------------------ Petitioners
Versus
Province of Sindh & others ---------------------------------Respondents
Date of hearing: 04.06.2015
Date of judgment: 12.06.2015
Petitioners: Through Ms. Humaira Junaid Advocate.
Respondents: Through Mr. Afaq A. Saeed Advocate
Mr. Asadullah Lashari AAG.
J U D G M E N T
Muhammad Junaid Ghaffar, J. The instant petition arises due to refusal by respondent’s No. 2 to 5 to promote the petitioners to the next class (professional) of M.B.B.S., as they have not passed in all the subject of the previous class (professional). The petitioners claim that the respondent No.2 & 5 may be directed to arrange a minimester(sic) examination, by allowing the petitioners to avail third attempt / chance to clear the papers/subjects in which they have failed in earlier attempts, and in the meantime may be promoted to the next class (professional).
2. Briefly, stated facts as per memo of petition are that the petitioners who are students of MBBS program are studying at Dow University of Medial Sciences (Respondent No. 2) and Shaheed Mohtarma Benazir Bhutto Medical College (respondent No. 5) in 1st, 2nd, 3rd, 4th and final year. It has been further stated that prior to 2015, the respondent No. 2 had allowed the petitioners to appear in the annual exams of a semester, thereafter in supplementary exams, and, in case of failure, in a minimester(sic) exam, within two months’ time and again in case of failure in any of the subjects, a repeat exam after two months of the minimester(sic) exams. In short, the petitioners claim that they are entitled to at least four attempts, to clear each subject. It is further stated that uptil 2015 in the above situation, the petitioners were promoted to the next class, however, from 2015, a new policy has been announced, whereby, the petitioners are only being allowed 2 attempts i.e. to appear in the annual examination of a semester, and, then in the supplementary / repeat examination, and in case they could not clear all the subjects of a respective year, they are not being promoted to the next class, and would be required to attend classes with the junior batch and pass their respective papers/ subjects in which they had failed. It is further stated that the petitioners have approached the respondents, including the office of Chief Minister’s Secretariat, however, their grievance could not be addressed, whereas, the respondent No. 4 has announced a date for examination program in 2015, which is to be conducted on 12.3.2015(already held), and the petitioners have been asked to appear in such examination, along with the junior batch and such conduct of the respondents, has deprived them from availing four chances, to clear a subject during the year, whereas, they have also not been promoted to the next class.
3. Counsel for the petitioners has contended that the new procedure adopted by the respondents is against the policy on the basis of which the petitioners were admitted in their respective Universities / Colleges, hence, they must be promoted and allowed to attend classes of the next year, and further, they may also be given an opportunity to appear in repeat exams which should be conducted for the petitioners, independently, in respect of the subjects, in which they had earlier failed. It has been further contended that the petitioners cannot be demoted or relegated to a junior class.
4. Counsel for respondents has contended that there is no such policy in field, whereby, the petitioners could be allowed to be promoted to the next class without passing in all the subjects of the previous class in a maximum of two attempts i.e. Annual and supplementary / repeat exams. Counsel has also referred to Regulations for the Degree of Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) issued by the Pakistan Medical & Dental Council, Islamabad, (“PMDC”), duly approved by the Council in its 99th Session held on 29th and 30th April, 2003, and has contended that in terms of Regulation No.4 available in Section IV pertaining to examinations, no student can be promoted to a higher class unless he / she has passed all the subjects of the previous class. Counsel for respondents has further submitted that the M.B.B.S. course at Dow University has switched from Vertical Modular System to Spiral Modular System; hence, the petitioners are no more entitled for any further attempt, except with the junior batch. In support of his contention he has relied upon the case of Nadir Khan Vs. Principal Khyber Medical College Peshawar and others (1995 SCMR 421).
5. We have heard both the Counsel and have perused the record. At the very outset, we may observe, that the Counsel for the petitioners could not assist us properly, as she was not aware of the facts of instant petition, as the petition besides being drafted very badly, has been filed in respect of several students studying in different years / professional, having different facts, whereas, even such facts have not been elaborated individually in the Memo of Petition. For this reason we were compelled to permit the petitioners present in Court, to assist us in respect of their individual grievance. It may also be observed that in fact the documents annexed with the memo of petition are only in respect of Petitioner No.1 & 5, therefore, the discussion hereinafter, is only in relation to the facts pertaining to them. What we have been able to gather from perusal of the record and whatever assistance which has been provided to us, is, that the petitioner No.1 & 5 namely Ghazana Muhammad Rafiq and Mahira Wardah Aziz are students of 3rd professional in Dow Medical University (Respondent No.2) and had been admitted in the University in the year 2010 and 2011 respectively. From perusal of the documents annexed with the Memo of Petition, it appears that petitioner No. 1 having Roll No. 1004061, had appeared in the 3rd year MBBS Semester V Examination in July 2014, and had failed in 6 out of 8 subjects. She then appeared in the 3rd year MBBS Semester VI Examination in November, 2014, and had failed in 5 out of 6 subjects. Thereafter she appeared in the 3rd year Semester V (repeat) examination 2014, in 6 subjects and could only pass in 2 and again failed in 4 subjects. She then appeared in 3rd year Semester VI (repeat) exams 2014 in 6 subjects and could only pass in 1 and failed in 5 subjects. Similarly, Mahira Wardah Aziz, Petitioner No.5, having Roll No. 1104030 appeared in 3rd year MBBS Semester V Examination in July 2014, and could only pass in 3 Subjects, whereas, she failed in 5 subjects. She then appeared in the 3rd year MBBS Semester V (repeat) Examination 2014, and cleared all the 5 subjects in which she had failed in the regular exams of Semester V. She then appeared in the 3rd year MBBS Semester VI Examination 2014, in 6 subjects and had failed in all. Thereafter she appeared in Semester VI repeat examination 2014 in 6 subjects and could only pass in 2 and failed in the remaining 4. On the basis of this factual position available before us, it appears that respondents have not promoted these two petitioners to the next class i.e. 4th Professional, as both these petitioners have failed to clear all the subjects of 3rd professional, in the annual as well as in the repeat examinations 2014 and could only be promoted to the next class, once they clear all these subjects. This according to the respondents is in view of Regulation No. 4 issued by PMDC as referred to hereinabove, which does not allow promotion to the next class, in such a situation. It would be advantageous to refer to Regulation 4 of the MBBS Program issued by PMDC in respect of examinations which reads as under:-
“SECTION IV
EXAMINATION
OBJECTIVES:
-----------
The purpose of evaluation should be:
1. ---------
In order to achieve the objectives it is mandatory to adopt the following processes:
1. ----------
2. ----------
3. ----------
4. No students can be promoted to the higher classes unless he passes al the subjects of the previous classes.”
6. From perusal of the aforesaid regulation, it appears that respondents No. 2 & 5 are acting in compliance of the aforesaid regulation, which provides that no student can be promoted to a higher class, unless he or she has passed all the subjects of the previous class. On the other hand, the petitioners have vehemently argued that since they had been provided four chances / attempts to clear a subject in the previous years, they cannot be deprived from having four attempts, per subject in subsequent years, whereas, they are also entitled to be promoted to the next class, notwithstanding, that they have not cleared all the papers / subjects of the previous class. In support of such contention the petitioners Counsel has also relied upon some Regulations issued by PMDC in respect of admissions in MBBS & BDS Courses and Conditions of House JOB / Internship / Foundation Year Regulations 2013, wherein relevant portion of clause 9 provides as under:-
“9. The Scheme of the MBBS/BDS Program and approved as under:
|
YR |
PROFESSIONALS FOR MBBS |
|
EXAMINATION CONDUCTED BY |
|
YR |
PROFESSIONALS FOR BDS |
|
EXAMINATION CONDUCTED BY |
|
1 |
1st Professional |
|
Annual Examination shall be conducted by the respective University |
|
2 |
2nd Professional |
|
Do |
|
3 |
3rd Professional |
-- |
Do |
|
4 |
4th Professional |
-- |
Do |
The Executive Committee / Council also decided that as under:-
“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 for continuation of medical / dental studies of the MBBS or BDS and shall not be eligible for fresh admission as a fresh candidate in either MBBS or BDS.
Any student who fails to clear 2nd Professional in four chances availed or un-availed and has been expelled on that account shall not be eligible for continuation of medical studies of the MBBS and 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.”
7. After having perused the aforesaid provision, we are of the view that insofar as the facts and circumstances and the controversy raised in the instant petition is concerned, the same is not relevant. Firstly, it relates to 1st and 2nd professional students, whereas, the case of the petitioner No.1 & 5 pertains to 3rd professional. Secondly, even otherwise, it is pertinent to observe that this does not provide that the student who can avail 4 chances to clear a subject, would automatically, as a matter of right, be entitled for promotion to the next class, even if he does not clear all the subjects of the previous class. In our opinion, even otherwise, this provision has to be read with Regulation No.4 and cannot be read in isolation and or independently, as according to us, Regulation No.4 is a general provision applicable to all cases of promotion from one professional to another. The question before us is not, as to how many attempts are being provided by the respondents to the petitioners, but is, that as to whether, after having appeared in the annual examinations, as well as in the supplementary / repeat examinations, the Petitioner No.1 & 5, who have not passed all the papers / subjects of 3rd professional (Semester V & VI), can be promoted to the next class or not. Here in the instant case, the petitioner No.1 & 5 have admittedly failed in majority of the subjects in the 3rd professional, including Semester V and Semester VI and want to be promoted to the 4th professional, despite the fact that they have not cleared all the subjects of 3rd professional, which they intend to pass in the third and fourth attempt. In our opinion the contention of the petitioners being misconceived in facts and law is not correct and is hereby repelled. It also appears to be against Regulation No.4 issued by PMDC as referred to hereinabove, which provides that no student shall be promoted to the next class unless all the subjects of the previous class are cleared. The representative of the respondents present in Court has not denied that they are allowing the petitioners to make another attempt in the Regular Exams of junior batch, which according to the record placed before us has already been held in March 2015 and petitioner No.1 had applied to appear in such examination along with the junior batch and was also issued a fee challan in this respect, however, she, instead of appearing in the said examination has filed instant petition. It has been contended on behalf of the respondents that they can appear in Semester V and Semester VI examinations along with the junior batch and make an attempt to clear those papers / subjects in which they had failed, however, they cannot be promoted to the next class, pending examination and passing of the subjects, in which they have failed in 2014. Record further reflects that in fact one such exam has already been held in March 2015, in which petitioner No.1 had applied and was also issued a fee Challan, however, she has chosen to file instant petition along with others, through which they had also sought restraining orders in respect of conduct of such examinations. On 12.3.2015, this Court had refused to grant any interim relief to the petitioners, and the following passage from the said order is relevant and reads as under:
At the present time we are no minded to grant any interim relief since we do not have the assistance of Respondent University. However, it is directed that should any of the Petitioners choose to sit in the examinations commencing from today in the manner as directed by the University, then their appearance in the relevant examinations/paper shall be entirely without prejudice to the case of the Petitioners on the merits as they seek to make out before this Court. However, we leave it entirely to the discretion of each individual petitioner to appear or not to appear in the examinations commencing from today but should any Petitioner choose not to do so, notwithstanding the observation made in this order, then that petitioner may have to suffer the consequences. To come up on 27.3.2015. (Emphasis supplied)
It also reflects from perusal of Counter Affidavit of Respondents that petitioner No.6 has already appeared in such examinations held from 12.3.2015 to 22.3.2015. Therefore, insofar as any entitlement of the petitioners to appear in any future examinations is concerned, the same stands qualified and is subject to the aforesaid order.
8. After having perused the PMDC Regulations, specially Regulation No.4, pertaining to promotion to the next / higher class and the material placed before us, we are of the view that the contention of the respondents is correct and is in accordance with the Regulations as discussed hereinabove, and the petitioners are not entitled to be promoted to the next class, until and unless they pass in the failed subjects, whereas, this also does not amounts to demotion, rather, it only prevents them from being promoted to the next class for which they do not appear to be entitled in view of Regulation No.4 issued by PMDC which is to be followed by all the Medical Colleges and Universities of the Country.
9. In somewhat similar situation the Peshawar High Court in its judgment dated 29.6.1994 in Writ Petition No. 516 of 1994 and several others had dismissed petitions of the students, wherein, they had claimed promotion to the next higher class of MBBS, though they had failed in some of the subjects of the previous year. The matter went up to the Hon’ble Supreme Court in the case of Nadir Khan and others supra, and the Hon’ble Supreme Court has upheld the judgment of Peshawar High Court. In the aforesaid judgment, the Hon’ble Supreme Court has interpreted Regulation No. 6 and 21 of the then PMDC Regulations, applicable at the relevant time. The Regulation 21 is identical to the present Regulation No.4 under discussion. Before coming to the relevant finding of the Hon’ble Supreme Court in the aforesaid case, it would be advantageous to refer to Regulation No. 6 & 21 of the then PMDC Regulations and the relevant finding recorded by the Hon’ble Supreme Court at Para 6 which reads as under:-
“REGULATION NO.(6)
“No student should be promoted to 3rd year class till he/she passes the University examination in Anatomy, Physiology and Bio-Chemistry.”
REGULATION NO.(21).
“No student can be promoted to the higher classes unless he passes all the subjects of the previous class.”
“6. From reading of the above regulations it is evident that Regulation No.6 which specifically deals with the promotion of medical students to 3rd year M.B.B.S class, clearly provides that a student who fails in the subjects of Anatomy, Physiology and Bio-Chemistry will not be promoted to the 3rd year M.B.B.S class unless he passes in these subjects. Regulation No.21 ibid on the other hand provides that no student will be promoted to the next higher class unless he passes all the subject of the previous class. It is, therefore, quite clear that Regulation 6 is a special regulation dealing only with the cases of promotion of students to 3rd year M.B.B.S class, while Regulation No.21 is a general provision dealing with the promotion of student of M.B.B.S. generally to next higher classes. Regulation 6 ibid, therefore, will be attracted in the cases involving promotion of students to the 3rd year M.B.B.S class while all the other cases of promotion to the next M.B.B.S classes will fall under Regulation No.21. Therefore, under Regulation No.6 ibid a student of 2nd year M.B.B.S class who fails in the subjects of Anatomy, Physiology and Bio-Chemistry is not entitled to promotion to 3rd year class of M.B.B.S unless he/she qualifies in these subject. Similarly, the students of 3rd and 4th year M.B.B.S classes could not be promoted to the next classes of M.B.B.S unless they passed all the subjects of previous classes as provided in Regulation No.21 ibid. Even on the basis of Regulation No.4 ( which is not part of the Regulations of PDMC) relied by the learned counsel for the petitioner in Petition No.410-P/1994, it cannot be argued that the student who fails in the subjects of Anatomy, Physiology and Bio-Chemistry is entitled to promotion to 3rd year class. No doubt the note appended to Regulation No.4(i) mentions that no student should be allowed to attend classes in the clinical group of subjects until he has passed the university examination in Anatomy, Physiology and Bio-Chemistry, it does not follow from it that he is to be promoted to the next class of MBBS even if he fails in these subjects. Since promotions to next class of M.B.B.S are governed under Regulations Nos.6 and 21 ibid a student who fails in the subjects of Anatomy, Physiology and Bio-Chemistry cannot claim promotion to the next class on the strength of Regulation No.4 (i) reproduced above.” (Emphasis supplied)
10. From perusal of the aforesaid finding of the Hon’ble Supreme Court with regard to and in respect of Regulation No.21, which appears to be pari materia to Regulation No.4 of current Regulations, no further deliberation is required as it has been categorically held by the Hon’ble Supreme Court, that the students of 3rd and 4th year M.B.B.S. classes could not be promoted to the next class, unless they pass all the subjects of previous classes. Subsequently, the Hon’ble Supreme Court, in the case of Muhammad Umar Wahid and others Vs. University of Health Sciences Lahore reported in (PLD 2006 SC 300) has followed the same principle and has upheld a judgment of the Lahore High Court, whereby the students of Quaid-e-Azam Medical College Bahawalpur, were prevented from appearing in the examination of next higher class, on the ground that they had not cleared all the subjects of the previous class. This was in respect of students of 1st professional and on their failure in some subjects, were not promoted to the 2nd professional, on the ground that Regulation III of the Statute and Regulation for MBBS issued by the University of Health Sciences, Lahore, provided that under no circumstances a candidate shall be promoted to the second year MBBS if he / she does not pass all the subjects in the first professional Part I Examination. The Hon’ble Supreme Court repelled the contention of the petitioners Counsel, that such provision in the Prospectus / Regulation of the University / College was not in conformity with the PMDC Regulations in this regard, which proved that such condition shall not be applicable and therefore, the same must give weight to the latter. The Hon’ble Supreme Court has also interpreted clause III of Section IV of the PMDC Regulation dated 22.3.1998, which is pari-materia to Regulation 4 of the PMDC Regulations, as referred to hereinabove, and went on to hold that no student can be allowed to be promoted to the next class until he / she clears all the subjects of the previous class. The relevant findings of the Hon’ble Supreme Court reads as under:-
“The relevant provisions on which reliance is placed by the learned counsel for the petitioners is contained in clause (3) of Section IV of the P.M.D.C. Regulations dated 22.34.1998 which states that “No student can be promoted to the higher classes unless he passes all the subjects of the previous classes.” In Alaptagin case (ibid) the Peshawar High Court had, while interpreting a provision in the Prospectus issued by the Provincial Health Department for regulation of admission and examination in Medical Colleges, held that in the light of the above Regulation of PMDC promotion to Part II of the first professional examination cannot be withheld on account of the students failure to pass the subjects of Part I examination. The said judgment turned on the interpretation of the relevant provision in the prospectus and cannot be cited as laying down a general principle. In the present case Regulation No. 3 of the Statutes and Regulations of the University of Health Sciences, Lahore, dated 14.7.2004, reproduced above, which admittedly is applicable to all the Medical Colleges falling under its authority, in unequivocal terms imposes a bar on the promotion of students to the second year until all the subjects in the first professional Part I examination have been cleared. The said provision is not only not in conflict with the restrictions imposed by the PMDC, but is a step further in achieving the objects for which the provision was incorporated, namely, to strengthen the academic competency of the students. Finding no error in the conclusion drawn by the High Court no case for leave to appeal is made out. The petition is dismissed and leave decline.” (Emphasis supplied)
11. Similar view has been expressed by a learned Division Bench of the Peshawar High Court in the case of Zainab Idrees Vs. Prinicpal Ayub Medical College, Abottabad and 3 Others (2009 YLR 708), wherein it has been held that the bar contained in Regulation No.4 of PMDC Regulations, is unequivocal to the effect that if a student has not cleared all the subjects of 1st Professional (Part-I & Part-II), he or she cannot be promoted to 2nd professional.
12. It may be pertinent to observe, that though the issue involves future and career of students and requires a sympathetic consideration, however, we cannot remain oblivious of the fact, that the profession of Medicine requires both a detailed knowledge of academic disciplines (such as anatomy and physiology) as well as understanding the underlying principles of diseases and its treatments, in addition to a decent competence in its applied practice. Petitioner’s claim of promotion as a matter of right to the next class, without passing subjects of the previous class, can have serious repercussions, if permitted. A Student who is unable to pass in the subjects of 3rd professional, cannot be allowed to be promoted to the 4th professional, as by that time the Student is in the advance stage of his Medical Profession, who must have adequate knowledge in the subjects of Anatomy, Physiology and Bio-Chemistry. At this stage of the Course, one cannot even think of skipping classes or failing in subjects, therefore, seeking promotion, in such a situation, does not appear to be appropriate in any manner.
13. In view of hereinabove facts and circumstances of the instant case, we are of the view that no student can be promoted from one professional to the other, until and unless he / she clears all the subjects of the previous professional / class, as the same is not permissible in view of Regulation No.4, of PMDC Regulations, in this regard, therefore, instant petition being misconceived in facts and law, is hereby dismissed.
14. However, before parting, we may observe that this shall not preclude the petitioners from appearing in the failed subjects of 3rd professional (Semester V & VI) along with the junior batch, as and when the same are conducted by the respondents. Moreover, considering the peculiar facts of instant case and the hardship already faced by the petitioners, and also for the reason that they have already paid substantial amount of tuition fee, we direct the respondents to consider the request of the petitioners, if any, sympathetically, with regard to reduction and or waiver of Tuition Fee payable in respect of the failed subjects, and if the rules so permit, accommodate the petitioners to the maximum extent possible. The petition stands dismissed, however, subject to above observations.
Dated: 12.06.2015
J U D G E
J U D G E
ARSHAD/