' FAZAL-E-MIRAN CHAUHAN, J.---This judgment will dispose of I.C.A. No,87 of 2005 filed by the petitioner against the judgment dated 4-4-2005 passed by learned Single Judge in Chamber.
2. Brief facts of the case are that the appellant was admitted to M.B.B.S. First professional class in Nishtar Medical College, Multan in June, 2003, and was eligible to take first professional examination in May, 2004 in which she failed. The next examination in which she was eligible to appear was held in November, 2004 and thereafter in March, 2005 for last chance. However, certain students of first professional examination filed constitutional petition in this Court, and they were allowed a special chance by the Court to appear in the examination, which was held in September, 2004. The grievance of the appellant is that she was forced to take this examination despite the fact that she was not eligible to appear in the said examination. She failed in this examination held in September, 2004. According to the learned counsel for the appellant after having failed in the first examination held in May, 2004, the next examination in which appellant was eligible to appear was November, 2004 (but unfortunately she could not clear that examination because the result of the examination held in September, 2004 was declared on 1st of November, 2004. So she could not prepare herself for the examination). It is contended that hei next eligible chance in examination was March, 2005 and she applied for the same but respondent No,1 did not allow her to take this examination, on the pretext that she was entitled to only three chances, which she had availed in May, 2004, September, 2004 and November, 2004.
3. Learned counsel for the appellant argues that as per sub-clause 13 of section IV of the regulation any student who fails to pass the first Professional M.B.B.S. Part-I, Part-II examination in three chances or does not avail the chance despite being eligible for each examination shall cease to pursue further medical examination. Subsection (7) of section IV states that there should be only two Professional Examinations in one year. The petitioner availed the first chance in May, 2004 and she was eligible to appear in November, 2004 as per regulation. Petitioner was forced to sit with special examination decided to be held in September, 2004 for student/Writ petitioner as a special favour under the direction of this Court. Petitioner was neither party in that writ petition nor she was eligible to appear in the same.
4. On the other hand, learned counsel for the respondents explained that the appellant availed three chances to get through the first Professional (Part-I, M.B.B.S. Examination). So far as contention regarding availing of 4th chance is concerned, he argues that as per Pakistan Medical and Dental Council Rules and Regulations for M.B.B.S., there are three availed and unavailed chances to get through first professional M.B.B.S. Examination. Since the appellant has availed three chances, she has no right to get an extra chance. It is further contended that some litigation commenced upon setting up of the respondents-University. The matter was ultimately decided by a Division Bench of this Court vide judgment dated 28-5-2004 in Writ Petition No,349 of 2004.
Learned counsel further states that students similarly placed as the petitioner was opted to take the said extra chance as they wanted to save their several months involved in taking the examination in the following year. Consequently they, including the petitioner, gave an undertaking that they be allowed to take examination and the same shall be treated as a chance availed.
Consequently they were allowed to take said examination in August, 2004 and admittedly the petitioner failed in the same. Thereafter, she availing her 3rd chance by appearing in November, 2004. Having availed the third chance, she is not eligible to 4th chance as prayed for.
5. We have heard the learned counsel for the parties and perused the record. Admittedly, the appellant was admitted in the first Professional examination in the year 2003 as student of Nishtar Medical College, Multan who appeared in first professional class in June, 2003. She was eligible to take professional examination in 2004 in which she failed. The next examination in which she was eligible to appear was to be held in November, 2004. However, some students of Rawalpindi Medical College filed a Writ Petition No,349 of 2004 praying therein that they may be provided a 3rd chance to clear 3rd professional M.B.B.S. Examination with other students of Punjab Medical College, Faisalabad who were taking their supplementary examination, the Court provided them the interim relief and they were allowed to avail their 3rd chance to clear the Professional Examination. Students of Allama Iqbal Medical College, Nishtar Medical College, Quaid-e-Azam Medical College and Fatima Medical Health Model College also filed similar writ petition. The High Court in view of earlier judgment in Writ Petition No,349 of 2004 and the interim relief granted in Writ Petition No,1268 of 2004 at Rawalpindi Bench, granted the same interim relief with the undertaking that third attempt availed would be considered as a regular attempt. The respondent-University organized 3rd Examination for the 3 students. The legal advisor of the respondent-University stated before the High Court at the Principal Seat that since the petitions for 3rd chance are pouring in and provisions of 3rd chance to the students of 2nd Professional M.B.B.S., 3rd Professional M.B.B.S. And 1st Professional composite in the light of earlier judgment created a disparity. He proposed to the Court that the Syndicate was authorized to decide about additional chance and the matter be referred to it for decision. The writ petitions were disposed of agreeing with the proposal. The Syndicate in it its meeting dated 21-6-2004 recommended the 3rd chance may be given to all M.B.B.S./BOS students and shall be the last chance once for all and not to be quoted as precedent in future. This chance will be considered as a regular attempt availed or un-availed chance. The learned counsel had placed on record the proceedings of the meeting held on 21-6-2004 and the decision taken by the Syndicate. Agenda before the Syndicate to consider the writ petitioners allowing them to avail their 3rd chance to clear their result of 3rd Professional Examination along with the student of Punjab Medical College, Faisalabad who were taking their supplementary examination. The Syndicate after deliberation on the same recommended that 3rd chance may be given to all M.B.B.S./BOS students and the same shall be the last chance once for all. Petitioner who had availed only once chance in May, 2004 and her second chance was due in November, 2004 and 3rd chance in May, 2005 was asked to appear in the special supplementary examination to be held in September, 2004. An undertaking was taken from her that the additional chance availed in September, 2004 (in the current academic year) shall be counted towards the chance permissible under the rules and regulations of respondent-University. She failed in the said examination, the result of which was announced in November, 2004. Thereafter, she availed her regular 2nd chance of November, 2004 which was considered to be 3rd chance by the respondent.
6. Clause 35 of the Ordinance, 2000 deals with framing of regulations in respect of all or of the following matter. Sub-clause (V) of rule 35, deals with framing of regulation for the conduct of the examination. In exercise of its power under sub-clause (V) of clause 35 of the Ordinance, 2000, the Academic Council prepare and submits the regulation to the Syndicate, which after discussing the same forward the same to the Board of Council for its approval. After its approval from the Board, the same were made applicable. Clause 36 of Ordinance, 2000 states that the Authorities and other bodies of the University may make rules, consistent with the Ordinance, the Statutes and regulation, to regulate the conduct of their business.
7. Section IV of the regulation pertains to holding of examination; subsection 7 of section IV reads as follows: "There should be no more than two Professional University Examinations in a year" and subsection (13) of section (IV) reads as under:-- "Any student who fails to pass the first Professional M.B.B.S. Part-I, Part-II examination in three chances or does not avail the chance despite being eligible for each examination shall cease to pursue further Medical examination in part."
' The appellant being one of the students who was asked by the University to appear in the special supplementary examination going to be held in September, 2004 and an undertaking was taken from her that she will be availing the additional chance (in the current academic year) which shall be counted towards the total chances permissible under the rules of the University of Health and Sciences. This undertaking from the appellant was not of her free will. She never applied to the respondents to avail this special supplementary examination. In fact, the respondents of their own after framing the policy to provide 3rd chance to the student of all profession as a general policy asked the all students to appear in the examination going to be held in September, 2004 irrespective of the fact whether they fall in the same category of student who were given one additional chance as 3rd chance. The petitioner who had availed only one chance and was eligible for 2nd chance to be held in November, 2004 was also asked to avail the chance by appearing in the said examination. To our mind, the petitioner was not obliged to appear in the examination held in September, 2004 as she does not fall within the category of those students for whom this special exam. Was going to be held. The decision of the Syndicate taken in meeting held on 21-6- 2004 was in violation and at variance of subsection (7) section IV of the regulation, which says that, there should be no more than two professional examinations in a year. As per this rule, the petitioner was only obliged to appear in two examinations in a year, whereas, she has been made to appear in three professional examinations in a year, which is in clear violation of the rules and regulation of the respondent-University.
8. Even otherwise, if there are two possible interpretation of any Ordinance, rules or regulation then the interpretation in favour of the petitioner shall be applied and not the one in favour of the respondent. Therefore, any decision taken by the Board compelling the students to avail 2nd chance in violation of the rules 7 and 13 are ultra vires to the same. Had the appellant taken the examination in November, 2004 she would have sufficient time to prepare and avail 2nd chance of November, 2004 and the final chance which she would have availed in May, 2005. In the present circumstances, she was forced to appear in September, 2004 and thereafter she was asked to avail her last chance in November, 2004 within a span of two months.
9. Reading of sub-clauses (7) and (13) of section IV of the regulation, it emerges as crystal clear that after having appeared to professional examination held in May, 2004, the petitioner was only eligible to appear in November, 2004, whereas, she was asked to appear in September, 2004 special exam. Is without any lawful authority. Even then she appeared in September, 2004, her appearance in November, 2004 was in clear violation of subsection (7) of section IV of the Regulation. As per rule of doctrine of expectation, the appellant who was supposed to appear in November, 2004, was given to understand that six months period would be available to her between the two examinations and thereafter she was forced to take the exam in September, 2004 by making a general policy. In view of the principle of locus poenitentiae the appellant cannot be deprived of her right to avail the chances available to her in May, 2005. In this view of the matter, this Intra-Court Appeal is accepted; the appellant shall be entitled to appear in her final chance in May, 2005 or the final examination, to be held by the respondents-University. Till then, the appellant shall be allowed to continue her studies by attending the circumstances.