UMAR ATA BANDIAL, J.-This judgment shall dispose of the following three writ petitions filed by the students of different academic sessions at Lahore Medical and Dental College (''LMDC")seeking relief that they should be granted the benefit of internal assessment to the extent of 30% of their aggregate results for their respective examinations. The particulars of these writ petitions are as follows;-
(i) Writ Petition No. 14760 of 2004 filed by 10 students of IInd Year at Lahore Medical and Dental College who are interested in clearing their Professional MBBS Part-II Examination.
(ii) Writ Petition No. 12685 of 2004 filed by to students of Lahore Medical and Dental College Lahore who are interested in clearing their final Professional MBBS Examination 2003.
(iii) Write Petition No. 18509 of 2004 filed by 19 students who are interested in clearing final Professional MBBS Examination.
2. The LMDC was granted affiliation with Baqai University Karachi on 21.9.2000. It was a practice of the Baqai University that 30% of the aggregate examination grade of its candidates was based upon their internal assessm ent tests whilst the remaining 70% grade was based on their examination performance, It transpired that the applicable law does not permit an educational institution to be affiliated with University outside the territorial limits of the Province. The LMDC accordingly disaffiliated from Baqaiv University Karachi and approached the University of the Punjab for affiliation which was granted provisionally by notification dated 12.10.2002 of the said University subject to the condition that the LMDC shall follow the admission policy approved by the University. Almost contemporaneously the provincial legislature enacted the University of Health Sciences Ordinance LVIII of 2001 ("UHS Ordinance ") on 28.9.2002.
3. It took some time for the hew legislative scheme envisaged the UHS Ordinance to be recognized and understood by the concerned persons in the University of Health Sciences ("UHS") the administering body of all medical colleges in the Province. Accordingly, the LMDC was informed by the University of the Punjab through letter dated 28.4.2003 that its "affiliation already granted by University of the Punjab to your college stands withdrawn with immediate effect", In this legal vacuum on the issue of affiliation a number of students approached this Court about the vires and effect of the UHS Ordinance 2002. By a judgment dated 1.6.7.2003 a Full Bench of this Court in Ahmad Abdullah and 62 others Vs Government of the Punjab and 3 others (PLD 2003 Lahore 752) directed the UHS to affiliate medical colleges with itself including the LMDC on the same terms as they had previously enjoyed with University of the Punjab. Accordingly the LMDC sought affiliation with UHS by letter dated 19.7.2003 and was granted provisional affiliation on 24.7.2003 pursuant to the direction of the Full Bench judgment (supra).
4. Whereas the Baqai University Karachi recognized internal assessment test as a criteria of evaluation of its candidates performance, there was no such practice in vogue in the policy of University of the Punjab. Therefore, the terms of affiliation that were granted by the UHS to the LMDC did not include any system of internal assessment as a criteria of evaluation of the performance of the candidates in their final examinations. The petitioners before this Court appeared for the final examinations of the UHS of their respective years as students of LMDC but failed in the same. They made a second attempt in the supplementary examination and failed again. As is explained later in this judgment the UHS, acting on directions given by this Court, in certain other cases allowed a third attempt to the petitioners on one time basis, In this attempt also the petitioners failed to pass their examinations.
5. With the foregoing background of facts Mr. Iqbal Mahmood Awan Advocate, raised the following points:-
(a) The UHS has allowed Nishtar Medical College Multan to continue giving weightage to internal assessm ent at the rate of 30% of the aggregate score but has inconsistently disallowed such weightage being granted by the LMDC in the tabulation of examination result of its students. Such action is discriminatory and void.
(b) The affiliation of the LMDC with University of the Punjab was merely transitory. The past practice to be followed by the UHS should have been the one set by Baqai University Karachi rather than by University of the Punjab.
(c) The UHS is bound by the terms of PMDC Regulations issued in August, 1998 pursuant to powers conferred under sub-section (2) of section 33 of Pakistan Medical and Dental Council Ordinance 1962. Clause(1) of section IV of the said Regulations requires medical colleges to maintain continuous internal assessm ent through tests that "contribute 30% to the final total score of the candidates. Final University examinations of each subject should contribute 70% to the total score, and the students should pass on the aggregate." The refusal by the UHS to allow 30% of the aggregate score to be derived from internal assessment of a candidate is, therefore, violative of the PMDC Regulations and void.
(d) The impugned action is otherwise in derogation of the rule of locus Poenitentiae and illegal.
6. Mr. M. Aftab Iqbal Chaudhree Advocate, addressed the Court on behalf of the petitioners in Writ Petitioner No. 14760 of 2004. He adopted the arguments of Mr. Iqbal Mahmood Awan Advocate, but made the following additional points:-
(a) quoting from paragraph 40 of the Full Bench judgment (supra) the learned counsel emphasized the following observations-.
"However, since the affiliation granted by the University of the Punjab to those colleges was in derogation to the mandatory provisions of University of Health Sciences Ordinance, 2002 was itself void, the order of withdrawal of the said affiliation becomes inconsequential and it is held so."
The learned counsel asserted that the transitory affiliation of LMDC with University of the Punjab having been declared void by the Full Bench, the UHS should have followed the examination policy of Baqai University Karachi rather than University of the Punjab.
(b) with respect to the foregoing, the UHS was bound by its consent recorded in order dated 14.7.2001 passed in Write Petition No. 11807 of 2004 wherein the Registrar of UHS had committed to grant "weightage to internal evaluation" in accordance with the practice and rules of the previous University to which the students were affiliated.
7. On the foregoing basis the learned counsel contended that refusal by the UHS to allow the said weightage in the case of the petitioner was illegal. Mr. Wajih- ud-Din Pervaiz Advocate, in Writ Petition No. 12685 of 2004 adopted the arguments already noted on behalf of other learned counsel in the aforementioned connected writ petitions. Prior to the enforcement of UHS Ordinance 2002, the LMDC had. As a matter of fact, voluntarily obtained affiliation with University of the Punjab on 12.10.2002. After the Full Bench judgment was announced on 16.7.2003, the LMDC applied to the UHS by its letter dated 19.7.2003 for affiliation with the following representation:- "The institution is arranging instructions in accordance with the syllabus and curriculum of the Punjab University for both MBBS and BDS since its affiliation with Punjab University and the current sessions of all classes will be completed around October, 2003."
8. On behalf of UHS, respondent No.1 Mr. Najam-ul-Hassan Kazmi Advocate, made the following submissions in defence of the action impugned in the writ petitions.
(i) The LMDC was given affiliation by the UHS under direction of the Full Bench in the following terms:- "In the meanwhile University of Health Sciences shall entertain the application of these colleges for the grant of affiliation and as their eligibility qua affiliation had already been determined by the University of the Punjab, they shall be granted the requisite affiliation in the same terms they had with the University of the Punjab i.e. Provisional or permanent affiliation as the case may be."
(ii) The UHS had acted strictly in accordance with the policies of University of the Punjab whilst establishing the criteria of promotion of the students of LMDC. The internal evaluation system invoked by the petitioners has no place in University of the Punjab Regulations and therefore this system has not been adopted in the assessment criteria of LMDC candidates.
(iii) Bahaudin Zikria University Multan, however, maintain an internal evaluation system and therefore Nishtar Medical College, Multan, which was previously affiliated with the said University, has been allowed to retain that practice in the evaluation of the over all performance of its students.
(iv) At the time when LMDC sought affiliation with UHS through its letter dated 19.7.2003, or at any time thereafter, no request has been made by LMDC to the UHS for introducing/allowing the internal, assessm ent of its candidates to be one of the criteria for evaluation of their performance.
(v) The PMDC Regulations have to be approved by the Federal Government in order to obtain legal effect. The Regulations of August, 1998 relied by the petitioners have not been approved by the Federal Government and, therefore, do not have statutory force to bind the UHS. Even if the Federal Government had approved these rules, they would be directory in nature.
(vi) That the conduct of the several writ petitioners before this Court is uniform for not seeking at any time prior to taking their annual examinations any dispensation from the UHS for inclusion of the criteria of internal assessm ent for the evaluation of the their performance. Having failed in the annual examination these petitioners appeared in supplementary examination without raising any demand for including the benefit of the internal assessment test, In fact the UHS, has thereafter, even provided a third opportunity to make up to the failing students in a supra supplementary examination. At that stage also no claim on the basis of internal assessment was raised by any of the petitioners The present petitions filed on the basis of the internal assessment are belated after though by the petitioners to pass their promotion examination.
(vii) The UHS has strived to treat all similarly placed students in the same manner without any discrimination whatsoever. Accordingly the treatment meted to the students of LMDC is the same as the treatment given to students of other colleges that were affiliated to the University of Punjab prior to their affiliation with UHS. These include Allama Iqbal Medical College Lahore, Punjab Medical College Faisalabad, Rawalpindi Medical College Rawalpindi and Fatima Memorial Hospital College of Medicine & Dentistry Lahore.
(viii) That certain essential conditions must exist to enforce the system of internal assessment.
These crucial features are absent in the present cases. The result of internal assessment must be forwarded to the University prior to the holding of the examination. This is necessary so that internal assessm ent cannot be manipulated to alter the aggregate result in case a candidate has done poorly in the examination, In the present case no internal assessment record had been forwarded at any stage by the LMDC to the UHS.
(ix) In fact the LMDC has not maintained any such record. If indulgence in this respect was to be granted by this Court, it would open the door for manipulating such assessments to undo the effect of failed performance in the aggregate results.
(x) Henceforth the UHS has created a uniform system for requiring internal assessment of students according to the prescribed procedure by the respective Medical Colleges affiliated to it, on the basis of which UHS shall award 10% weightage towards the aggregate score of the candidates.
9. In consequence of the foregoing submissions, the learned counsel for the UHS has asserted the validity of the impugned action and prays for dismissal of the writ petitions.
10. We have heard the learned counsel for the parties and have carefully perused the record with their help.
11. At the three stages of examination that the petitioners have taken. And failed, they did not raise any objection about the lack of internal evaluation system as a basis of their over all performance.
By their conduct the Petitioners demonstrate that their present assertion is a belated initiative to get pass marks in their final exams. On the other hand the petitioners rely upon the conduct of UHS to establish their case. However, the record shows that the right of affiliating colleges that is recognized by the judgment of this Court as also by the representation of UHS, is to confer to same benefits on students of such college as were enjoyed by them under the policies of the University of Punjab that was in vogue for those colleges. In the case of LMDC, its letter dated 19.7.2003 seeking affiliation with the University of Punjab declares that the LMDC is imparting instruction to its students in accordance with the syllabus and curriculum of University of the Punjab. The notification dated 12.10.2002 by University of the Punjab granting affiliation to the LMDC is subject, inter alia, to the condition that LMDC shall follow the admission policy approved by University of the Punjab, It is accepted by the petitioners that University of the Punjab does not have a system for internal assessm ent as a criteria for evaluation of performance of students.
12. Therefore, the UHS is justified in omitting such a system of evaluation from the examination criteria for the students of LMDC. The case of Nishtar Medical College Multan, is distinguishable from LMDC because that college was not affiliated previously with University of the Punjab but the Bahaudin Zikria University Multan where the system of internal assessment was in vogue and was, therefore, recognized by the UHS. The terms of previous affiliation are a reasonable criterion of distinction that was recognized by the Full Bench of this Court and has been duly implemented.
13. It may be observed that PMDC Regulations have binding force under the law declared by this Court in case M. Umar Faruq Vs P.M.D.C, and others (1997 CLC 534). However, for the PMDC Regulations to be effective, it is necessary under section 33 of the Pakistan Medical & Dental Council Ordinance 1962 that such Regulations should have received approval of the Federal Government. The Regulations relied by the petitioners have not been approved by the Federal Government and therefore, do not have the binding effect.
14. The treatment accorded by the UHS to the students of Nishtar Medical College Multan, cannot also attract the principle of locus Poenitentiae in respect of the petitioners because no representation or decisive step had been taken by the UHS in offering internal assessment to LMDC students that can be treated by this Courts to constitute a bar for the UHS.
15. In any event, no vested right has accrued to the petitioners for claiming the benefit of internal assessm ent as a means of evaluation of their performance. This is because the policy in the matter of examination results was known at the time of the affiliation o the LMDC with the UHS on 24.7.2001 whereas determinative date when the examination in question were held is after April, 2004. In a lucid exposition of this point the Hon'ble Supreme Court in "Miss Sultana Khokhar and 2 others Vs The University of the Punjab through its Registrar (PLD 1962 SC 35) observed as follows:- "Before parting with this matter we would like to add that in spite of a careful examination of the provisions of the Punjab University Act and the Statutes framed thereunder we have not been able to discovered therefrom anything which would support the right sought to be asserted in this case.
To uphold such a right would amount to placing an impossible burden upon the University, for, then it may will have to conduct different examinations upon different standards in each year in respect of the same degree for different students or groups of students in accordance with the Statutes, Ordinances and Regulations prevailing on the dates of their respective admission, .Even through the same may have long since been validly altered in accordance with provisions of the Act. This cold never have been the intention of the framers of the Punjab University Act. We have no hesitation, therefore, in coming to the conclusion that no such Vested right exists in the examinees which can be enforced by a writ of mandamus."
16 Finally it is important to note that the system of internal assessment can be implemented only under specified safeguards. One of the safeguards is to have the result of the internal assessment conveyed to the examining authority of the administering University prior to the conduct of the examination itself, In this way such assessment cannot be changed in order to avoid the consequences of a poor or fail performance in the examinations, In the present case no such assessm ents have been forwarded by the LMDC to the UHS. In fact UHS strongly contends that there are no records of such internal assessment of the petitioners actually in existence with the LMDC. If this Court were to allow incorporation of such assessment in the aggregate results of the petitioners at this stage then there is a serious possibility that these assessments may be exaggerated to undo the fail results that petitioners have obtained in their examination attempts.
17 In view of the above mentioned reasons, we see no merit in these petitions, which are accordingly dismissed.