' Vide order announced on 20-8-2002, W.P. No.3476 of 2002 filed by the applicant was dismissed. In the said petition, a letter issued by respondent No.1, whereby the applicant was expelled from Nishtar Medical College, was assailed.
2. The applicant was a student of first professional M.B.,B.S. And under the Rules, examination could be cleared in four chances availed or unavailed and in default thereof the student ceased to be eligible for future medical education in Pakistan.
3. The applicant had appeared in the first professional M.B.,B.S. Annual Examination 2000 and vide notification issued by the respondent-University was declared pass securing 350 marks whereafter he went to his native town in Sindh to spend the intervening days at home before the commencement of the next class.
4. Later on through another notification issued on 24-10-2000, he was declared fail in three subjects by the respondent-University. He did not appear in the consecutive successive three examinations viz. 2nd Annual 2000, first Annual 2001 and 2nd Annual 2001 on account of ailment. Vide the impugned letter he was expelled from the Medical College on the ground that he could not pass the said examination in four chances (availed or unavailed) hence under the Rules he had ceased to be eligible for future medical education in Pakistan. As stated above, writ petition against his said expulsion was dismissed on 20-8-2002.
5.Now the applicant seeks review of the aforesaid order on the ground that at the time of filing of the writ petition it was not in his knowledge that 2nd Annual Examination 2000 was to commence from 26-10-2000. The said fact came to his notice on 16-10-2002 when he was able to lay hand on a copy of schedule of the aforesaid examination A wherefrom it transpired that chance for appearing in the said examination was not available to him. It was contended that notification declaring him fail was issued by the University on 24-10-2000 when the said examination which was next consecutive was to commence on 26-10-2000 with only one day intervening between the issuance of notification of his failure and commencement of the examination and it was humanly not possible to complete the formalities for appearing in that examination such as submission of examination form and fee etc. In the said circumstances when chance for appearing in that examination was not available, it should not have been considered as a chance not availed by him, therefore, under the Rules he had got one chance at his credit for appearing in the said examination, of which he was illegally deprived by the respondent-University and the college.
6. The aforesaid fact could not be appreciated by the Court while deciding the writ petition because schedule of the said examination was not available on record. Along with review application a petition under section 5 of the Limitation Act, is also moved.
7. Review application is opposed by the respondents. They have, however, conceded that initially the application was declared as pass and subsequently vide notification dated 24-10-2000 he was declared as B having failed and that the next examination had commenced on 26-10-2000 with an intervening period of one day after notification of the applicant's failure.
8. It was, however, asserted that since the applicant had himself alleged in the writ petition that he could not avail the examination due to ailment, therefore, he was estopped from saying that chance for appearing in that examination was not available to him and that on 28-9-2000 another notification Annexure R-H, was issued much earlier to the notification dated 24-10-2000 wherein result of the applicant was declared as RLP (Court case) hence there was ample time available to contact the college for submitting his admission form for the next examination viz. 2nd Annual 2000. My attention was also drawn to notification regarding regulations for M.B.,B.S. First professional examination Annexure "RV", according to which four chances i.e. First Annual 2000, 2nd Annual 2000, first Annual 2001 and 2nd Annual 2001 were available to the applicant to clear the said examination. It was, therefore, urged that no further chance can be given as per said regulation.
9. Arguments heard. Review application, its Annexures, comments furnished along with Annexures appended therewith and record of Writ Petition No.3476 of 2000 perused.
10. It is not disputed that the applicant was initially declared as pass and notification declaring him fail in three subjects was subsequently issued on 24-10-2000. It is also admitted that the next subsequent examination commenced on 26-10-2000. It is also not denied that there was a gap of only one day between the issuance of notification of applicant's failure and commencement of the next subsequent examination viz. 2nd Annual 2000.
' Annexure "R-II", referred by the respondents in notification dated 28-9-2000 wherein against the name of the applicant, the words RLP (Court case) are stated. According to the learned counsel for respondents Nos.2, 5 and 6, the said words stand for result later on for want of permission. "This notification does not disclose the result and by no stretch of imagination it can be inferred from the said notification that the applicant was declared as fail hence argument of the respondents' counsel that in view of the said notification showing the applicant's result as RLP, the applicant had ample time to contact college for submitting the admission form for the next examination, is not only without force but is also misconceived.
11. According to the examination schedule, photocopy whereof is produced by both the sides, the 2nd Annual 2000 examination had commenced on 26-10-2000 and the first paper was that of Anatomy in which the applicant was declared fail.
12. Now referring to Annexure "RV" produced by the respondents which is notification regarding regulations it is provided that a candidate who fails to pass may be admitted to subsequent examination on payment of prescribed fee and on presenting a certificate, that he has, subsequent to his last failure, attended a course of training in Anatomy and Histology, Physiology and Bio-Chemistry.
13. From the above notification it is evident that for re-appearing in the examination, following formalities were to be complied with by the candidates:---
(i) Submission of examination form.
(ii) Payment of examination fee.
(iii) Subsequent to his failure; to attend a course of training in Anatomy, Histology, Physiology and Bio-Chemistry, and
(iv) To obtain a certificate that he had attended the aforesaid courses and to submit the same so as to become eligible for admission in the next examination.
14. It is my considered view that it was virtually not possible for anyone to have complied with the aforesaid formalities in a single day.
15. In the circumstances explained above, the applicant, in fact, had virtually no chance of appearing in 2nd Annual 2000 examination. In order to saddle a student with the liability of not availing chance, the chance should be provided to him for appearing in the examination. Without making chance available to him the applicant could not be blamed for not availing chance.
16. Rule 3(v) of the Prospectus of the Government Medical Colleges in the Punjab, Session 1999- 2000 (applicable in this case) provides that those students who fail to clear first professional M.B.,B.S. Examination in four consecutive available chances, whether availed or not, shall be expelled from college.
17. It is evident from the above rule that chance has to be made available to the student before alleging that it was not availed by him. In the light of the above discussion, it is quite evident that chance for appearing in 2nd Annual 2000 examination was not available to the applicant hence that examination should not have been considered to have been unavailed by him.
18. Resume of the foregoing discussion is that the applicant had failed in first Annual 2000 examination, chance of appearing in 2nd Annual 2000 was not available to him due to the fault and negligence of the respondent-University in declaring his result late hence his non-appearance in that examination could not be deemed as a chance available and not availed by him; he had admittedly not availed the next two consecutive available chances viz. First Annual 2001 and 2nd Annual 2001. He had, therefore, got only three chances and one chance for appearing in the said examination was still available to him.
19. The aforesaid facts could not be brought to the notice of this Court during the disposal of writ petition as an important document viz. Schedule of examination Annexure "C", was not in the knowledge of the applicant and it was, therefore, not produced. As soon as the said document came to the notice of the applicant, he had promptly filed this review application along with an application for condoning the delay which is supported by his affidavit which has not been rebutted by any counter-affidavit by the respondents.
20. A review can be made for any sufficient reason including, misapprehension regarding true circumstances which is precisely the case of the applicant.
21. For the reasons stated above, I hereby allow the review application as well as application for condonation of delay. Order dated 20-8-2002 passed in Writ Petition No.3476 of 2002 is set aside, letter, dated 26-1-2002 issued by respondent No.1, whereby the applicant was expelled from the college is declared as illegal and without lawful authority only to the extent of the applicant and it is further declared that under the rules, the applicant has still got one chance for appearing in the first professional M.B.,B.S. Examination. He shall be deemed to be a bona fide student of Nishtar Medical College shall be enrolled by the respondent-University. The respondents are directed to accept his admission form and to allow him one chance for appearing in the first professional M.B.,B.S. Examination schedule whereof allows the applicant to conveniently complete the formalities prescribed by the respondent-University vide its notification Annexure "RV". If schedule of the forth coming first professional M.B.,B.S. Examination does not allow the applicant sufficient time to complete the requisite formalities for appearing in the examination, he shall be allowed to appear in the next first professional M.B.,B.S. Examination. Review application is accepted.
Review .