' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Zubair Azam, petitioner, assails the notification/order, dated 16-5-2003, passed by the respondent No.2/Vice-Principal, Islamic International Medical College, Rawalpindi, through which it was notified that the petitioner along with other students availed all the three chances of Professional M.B.,B.S. Part-I and Ist Professional M.B.,B.S. Part-II examinations but failed therefore they ceased to be the medical students as per PMDC Rules and Deputy Controller of Examination Riphsh International University, Islamabad Notification No.Exam/ COE/RIU/149, dated 13th May, 2003.
2. Brief facts of the case are that the petitioner appeared in the Ist professional examination Part-I and successfully cleared the same; however, in the first professional examination Part-II, he failed in a particular paper (Physiology) in three attempts; after declaration of the result of the third attempt the petitioner went to attend the classes of the respondent College but he was told by the College authorities that he could not continue his studies as a medical student in Pakistan having failed to clear M.B.,B.S. First professional examination Part-II in three attempts; the petitioner contested the said decision on the ground that he had still one chance to clear the examination in view of the provisions of Pakistan Medical and Dental Council Ordinance, 1962, but his grievance was not redressed and he was advised to approach the Pakistan Medical and Dental Council for the purpose; thereafter the petitioner approached the said Council with the same prayer, which was not acceded to by respondent No.1/Pakistan Medical and Dental Council, Islamabad, hence this writ petition.
3. The case of the petitioner is that the petitioner is being discriminated. Respondent PMDC was bound to adopt a uniform policy. In the N.-W.F.P. No discriminatory treatment exists as uniform policy of the PMDC is adopted in the said Province whereas in the present case the petitioner has been clearly discriminated as all the Colleges which were affiliated with the Punjab University were allowing four chances up to admission year, 2003.
4. In pursuance of the order of this Court, dated 28-5-2003, respondents Nos. 1 and 2 have filed their reports and parawise comments. In reply to para. 4 of the writ petition it was stated by the respondent No.1 that the decision made on the 77th Session of Pakistan Medical and Dental Council had become absolute and was superseded by decision of the Council made in the 92nd Session held on 22nd March, 1998 on the subject-matter, i.e. "Regulations for the Degree of Bachelor of Medicine and Bachlor of Surgery." Relevant portion of section IV pertaining to `Examination', in reply to the said para., has also been reproduced, i.e. "Any student who fails to pass the first professional M.B.,B.S. 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 education in Pakistan".
5. Respondent No.2, in reply to the petition, submitted that the petitioner appeared third time in 2003 but failed for the third time. The student knew that this is the third and the last chance as per PM&DC Regulations (Revised) and quoted in College Prospectus when he got admission in 1st year, 2000 as well as reminded by the college vide letter quoted in reply to para. 3 of the petition.
6. The learned counsel for the petitioner relies on the judgment of the Honourable Supreme Court, dated 11-2-2004, delivered in the case titled Syed Mafeed Shah v. Principal, Khyber Medical College Peshawar (C.P.L.A. No.674 of 2003) and contends that in the said case the petition was dismissed on the ground that no discriminatory treatment existed in N.-W.F.P. As the policy of PMDC was uniformly adopted in the said Province, whereas in the present case the petitioner has been clearly discriminated as all the colleges which were affiliated with the Punjab University were allowing four chances up to admission year, 2003. Further contends that the petitioner is entitled for the relief on the strength of the interim order, dated 5-6-2003 passed by this Court through which the petitioner was allowed to appear in the first professional examination Part-II in paper of physiology, which was conducted on 9-6-2003. Though the result of the said examination was subject to the final decision of this petition, yet, as the petitioner has passed the examination and his stay at the Medical College does not take the right of any other student, writ should be issued in his favour.
7. On the other hand, the learned counsel for the respondent contends that Pakistan Medical and Dental Council (PMDC), respondent No.1 is a statutory body duly constituted by the Federal Government in pursuance of the provisions as contained in the Pakistan Medical and Dental Council Ordinance, 1962; the main functions which are assigned to PMDC are to prescribe a uniform minimum standard of courses of training for obtaining Graduate or Post-Graduate Medical qualification, duration and conditions for admission to such courses. The learned counsel refers to section 33 (2) of the PM&DC Ordinance, 1962 which deals with Regulations; according to section 2, no student shall be promoted to the 3rd year M.B.,B.S. Class without passing the First Professional M.B.,B.S. Part-I and Part-II University Examination in Anatomy, Physiology and Biochemistry; section 3 says that no student can be promoted to the higher classes until he passes all the subjects of the previous classes, and section 13 says that any student who fails to clear the first Professional M.B.,B.S. 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 education in Pakistan. To substantiate his argument the learned counsel relies on the case titled Syed Mafeed Shah v. Principal Khyber Medical College Peshawar (C.P.L.A. No.674 of C 2003) reported in 2003 CLC 1348. Ms. Fabiha Parvez v. Peoples Medical College for Girls, Nawabshah and others (PLD 1999 Karachi 394), Akhtar Ali Javed v. Principal Quaid-e-Azam Medical College, Bahawalpur (1994 SCMR 532) and Nadir Khan and others v. Principal Khyber Medical College, Peshawar (1995 SCMR 421). On the strength of the case reported as Ali Yousaf and another v.
Chairman of Academic Council and Principal, Dow Medical College, Karachi and others (2000 SCMR 1222) it is contended that the qualifying examination under interim order passed by the High Court allowing the candidate to appear in the examination was subject to the condition that the candidate might appear at his shown risk and subject to final decision of the case on merits and where the High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to the candidate. Further contends that the petitioner has already availed three chances and has been declared unfit to continue his studies of M.B.,B.S. And was rightly expelled from the college where he was studying and that at the time of admission the petitioner had given an undertaking that he will abide by all the rules and regulations contained in the prospectus and that at this stage it does not lie in his mouth to agitate that the regulations regarding promotion or availing more than three chances is harsh and not binding on his right and he has been discriminated.
8. I have heard the learned counsel for the parties and perused the record. Admitted position on the record is that respondent No.1 Pakistan Medical and Dental Council, Islamabad (PMDC) is a statutory body duly constituted by the Federal Government in pursuance of the provisions contained in the Pakistan Medical and Dental Council Ordinance, 1962. Reading of section 33(2) of the PMDC Ordinance is necessary, which is reproduced hereunder:- "Notwithstanding anything contained in subsection (1), the Council shall make Regulations which may provide for-
(a) prescribing a uniform minimum standard of courses of training for obtaining graduate and postgraduate medical and dental qualifications to be included or included respectively in First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing the conditions for admission to courses of training as aforesaid;
(d) prescribing minimum qualifications and experience required of teachers for appointment in medical dental institution;
(e) prescribing the standards of examinations, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance;
(f) prescribing the qualifications and experience required for examiners for professional examinations in medicine and dentistry antecedent to the granting of recognized medical qualifications;
(g) registration of medical or dental students at any medical or dental college or school or any university and the fees payable in respect of such registration."
9. Section IV of the Regulations deals with the examination. According to this section, no student shall be promoted to the third year M.B.,B.S. Class without passing the first Professional M.B., B.S. Part-I and Part-II university examination in Anatomy, Physiology and Biochemistry; no student can be promoted to the higher classes unless he passes all the subjects of the previous classes.
Further, according to this section, any students who fail to pass the First Professional M.B.,B.S. 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 education in Pakistan. These Regulations framed by PMDC under section 33 of the Ordinance are binding on all the Medical and Dental Colleges of Pakistan and have been implemented since 22nd March, 1998. Honourable Supreme Court of Pakistan in the case of Syed Majeed Shah and others v. Principal, Khyber Medical College, Peshawar (C.P.L.A. No.674/2003), decided on 11-2-2004, upheld the Division Bench Judgment reported in 2003 CLC 1348. Relevant portion of the judgment is reproduced as under:-- "The N.-W.F.P. Government by a policy decision followed the Regulations made by the Council under section 33 of the Medical and Dental Council Ordinance, 1962. We are not called upon to substitute the policy decision taken by the N.-W.F.P. Government which was not shown to be arbitrary or unreasonable.
' The Condition No.16 of the Prospectus 1999-2000 for eligibility of the students for examination in three chances availed or unavailed shall cease to become eligible for further medical education in Pakistan."
' In the case reported as Ms. Fabiha Parvez v. Peoples Medical College for Girls, Nawabshah and others (PLD 1999 Karachi 394) the Division Bench relying on the Prospectus of the College held that, "Student, after availing four chances as provided in R. 8 of the Prospectus, must vacate the seat for other deserving candidates." The case reported as Nadir Khan and others v. Khyber Medical College, Peshawar (1994 SCMR 421) was also relevant and heavily relied upon by the respondent PMDC, wherein it was held that Regulations framed by Pakistan Medical and Dental Council under section 33 of the Ordinance shall be binding on all Medical Colleges of Pakistan irrespective of the fact whether the prospectus issued by these colleges contained a similar provision or not. The Prospectus of respondent No.2 Islamic International Medical College, Rawalpindi for the year, 2000- 2001 clearly mentions that any student, who fails to clear the First Professional M.B.,B.S. Examination in three chances availed or unavailed, after becoming eligible for each examination, shall cease to become eligible for further medical education in Pakistan.
10. The petitioner who has already availed three chances and has been declared unfit to continue his studies of MBBS was rightly expelled from College where he was studying. At the time of admission the petitioner had given an undertaking that he will abide by all the rules mid regulations contained in the Prospectus and that at this stage it does not lie in his mouth to agitate that the regulations regarding promotion or availing more than three chances is harsh and not binding on his right and he has been discriminated.