' This single order will dispose of Writ Petition No,15885 of 2005 titled "Miss Shaumaila Shahnawaz and 9 others v. University of-Health Sciences and 4 others". Writ Petition No,5215 of 2006 titled "Aasia Noor Muhammad and 6 others v. University of Health Sciences and 2 others", Writ Petition No, 3626 of 2006 titled "Bilal Akhtar and 2 others v. University of Health Sciences and 3 others" and Writ Petition No,5227 of 2006 titled "Said Ashraf and 24 others v. University of Health Sciences and 5 others" as common question of law and facts is involved in all these four petitions.
2. Petitioners herein are students of various medical colleges andare studying in different classes.
They have not succeeded in their respective examinations in qualifying all the subjects. Some have failed in one subject while others have failed either in two or in three subjects. They claimed promotion to the next higher class and to attend classes and practical besides the permission to take examination for the papers in which they failed in their existing class. Petitioners have made the basis for their claim, on the provision, which subsists in the prospectus of the college and also in the Calendar of Punjab University and in the calendar of Engineering University. This practice is commonly known as "carry on system". The petitioners approached University of Health Sciences and thy Controller of Examination for extending the benefit of "carry on system" to the petitioners but they were not allowed to attend the next classes, hence these petitions.
3. Learned counsel for the petitioners has emphasized in his arguments that the wisdom behind "carryon on system" is to enable the students to continue their professional education without wastage of time. It was argued that the intervening examination are intended to facilitate the students and denial to allow the students to sit in the next higher class, is to retort students to earn degree within the prescribed period of five years. Learned counsel while referring to Writ Petitions No,5642 of 2005, 4869 of 2005, 2687 of 2005, 1764 of 2005 and 4 of. 2004, has contended that students from various colleges who failed to qualify/pass all the subjects, were allowed to sit in the next higher class and attend the classes as well as the practical under "carry on system". The petitioners, who are placed in identical and similar situation, are required under law to be treated equally. The petitioners are given discriminatory treatment in disregard to the various decisions of the superior Courts. Learned counsel has referred to a recent decision of the Hon'ble Supreme Court of Pakistan, rendered in Civil Petition No,1992 of 2004 titled "Principal, Ayub Medical College, Abbotabad v. Miss Huda Waris Khan and others", whereby it was observed that relevant regulation of PM & DC does not impose a bar on the students to attend the next higher class in the event of failing in one or more subjects in Part-I or Part-II examination. After referring to the above decision of the Hon'ble Supreme Court, learned counsel has argued that dictum of the judgment has the binding force, these petitions are required to be decided on the same principle. The petitioners have the vested right to be permitted to sit in the next higher class, on the basis of "carry on system".
4. Learned counsel for the respondents, on the other hand, has contended that according to provisions of section 37(1) of the University of Health Sciences Ordinance, it is mandatory for all medical institutions, either in public or in private sector, within the boundaries of Province of Punjab, to be affiliated with the University. The petitioners in these petitions are studying in the colleges, which are affiliated underthe above referred provision of Ordinance, 2002, with respondent No,l.
Learned counsel has referred to the case of Ahmad Abdullah (PLD 2003 Lahore 752) to contend that according to the decision of Full Bench, rules and regulations framed under section 35 of University of Health Sciences Ordinance, 2002 are applicable to the petitioners. The rules do not permit the promotion in the next higher class unless a candidate qualifies or passes all the subjects in the existing class. Learned counsel referred to the relevant part of the prospectus, wherein it has been provided that on failureof the students to qualify professional examination in second annual examination, the provisional promotion to next higher class stands cancelled.
Relevant Regulations of Punjab University and also of University of Health Sciences were also referred to show the prohibition against carry on system. It was contended that the petitioners have no right to claim their promotion without passing the existing examination. Learned counsel for the respondents in support of his contentions has referred to the cases of "Muhammad Umar Wahid and others v. University of Health Sciences Lahore and others (PLD 2006 SC 300), "Amina Farrukh etc. v. University of Health Sciences Lahore and others" (W.P. No,19217 of 2005), "Sahab Ameen etc. v. University of Health Sciences Lahore and others" (W.P. No,1742 of 2006), "Miss Khalida Zafar v. Controller, Nursing Examination and others "(1996 CLC 1750), "Iftikhar Ali v. Principal, Ayub Medical College Abbottabad and 4 others" (1994 MLD 2472), "Ghulam Akbar Ansari v. Pakistan Medical Council and others" (1996 CLC 1729), "Tahir Husnain Aziz and another v. University of Punjab through Vice-Chairman and 2 others" (2005 CLC 1389), "Mst. Shama Roshan and others v. The Vice- Chancellor, University of the Punjab and others" (1988 CLC 1137), "Mrs. Sara Malik v. Federation of Pakistan" (2001 MLD 1026), "Shafique Ahmad and others v. Government of Punjab and others" (PLD 2004 SC 168), "Muhammad Sadiq and others v. University of Sindh and others" (PLD 1996 SC182), "Muhammad Ilyas v. Bahauddin Zakriya University Multan and another (2005 SCMR 961), "University of Health Sciences Lahore and others v. Sh. Nazir Subhani and others" (PLD 2206 SC 243), "Khurram Nazir v. University of Health Sciences Lahore and others" (PLD 2006 SC 243) "Zahoor Ahmed Azhar v.
Islamia University, Bahawalpur through Vice-Chancellor and 4 others" (PLD 1998 Lahore 324), "Zahid Iqbal v. Secretary Health and 2 others" (2003 CLR 209), "Chandighar Administration v. Jagjit Singh"
(AIR 1995 SC 705), "Adnan Tariq v. Vice Chancellor of the University of Punjab" (PLD 1993 Lahore 341) and "Miss Sultana Khokhar and 2 others v. The University of Punjab through the Registrar" (PLD 1962 SC 35).
5. Heard learned counsel for the parties and examined the record.
6. The only question agitated by the learned counsel for thepetitioners, in these petitions is the validity of "carry on system", which according to the learned counsel, is in accord with the prospectus of the respective colleges and regulations of different Universities, including Engineering University and University of Punjab. According to the learned counsel the wisdom behind this practice is to facilitate the students to complete their professional education and earn the degree at the end of the stipulated period. Main emphasis of the learned counsel was on recent judgment of the Hon'ble Supreme Court of Pakistan, in C.P.L.A. No, 1992 of 2004, and the other interim orders, passed in several writ petitions, wherein the students were provisionally allowed to sit in their examination or provisional permission to sit in the next higher class.
7. It is to be noted that the questions raised in these petitions, were, earlier examined by the superior Courts. While discussing the similar proposition in the case of Ms. Khalida Zafar (supra), it was observed that "carry on system" in education field would eclipse and vanish for it was a source of indiscipline in educational institutions which are the places to inculcate and breed up discipline.
It was further observed that "carry on system" in educational field should not be blessed by the Courts for the same not only offends law but also against ethics.
' It was held by this Court in another case i,e, Ms. Sara Malik's case (supra) that Calendar of the University cannot be changed through verdict of Court and that existence of rule of law would have paramount consideration. Hon'ble Supreme Court of Pakistan in Shafique Ahmad's case (supra) has settled the proposition that prospectus of medical colleges in Punjab is revised yearly to update the changes and contains the inbuilt provisions to effect that the medical students be bound to abide and changes issued by the Government of Punjab from time to time. Government reserves the right of additions or alterations of any rules in prospectus at any stage. It was laid down in the case of Muhammad Sadiq (supra) that it is the domain of the Government to consider a particular qualification sufficient for promotion from any C particular grade to a higher grade and government is vested with the power to change such policy from time to time. The apex Court in the case of Muhammad Ilyas (supra) observed that Rules and Regulations framed by the University Authorities for the purposes of conducting/regularizing its examinations etc. Were required to be interpreted by the university authorities themselves, and not by the Courts, otherwise it would be difficult for the University administration to run its internal affairs relating to the examination. In a recent judgment the Hon'ble Supreme Court of Pakistan in the case of University of Health Sciences Lahore and others v. Sh. Nasir Subhani and others (PLD 2006 SC 24) while dealing with the issue of award of five grace marks in failing subjects, has observed that medicalpractitioners are expected to be fully equipped with professional skill, knowledge and expertise in medical discipline to practice the profession to deal with the patients and looking with their health and hygienic. While observing so the apex Court has held that award of grace marks would be against settled principles of good governance and improving of higher standard of professional education.
' It was held in the case of Ms. Sultana Khokhar (supra) that candidates have no vested right that they must be examined in accordance necessarily with provisions of statute, Ordinance or regulation, which was prevalent at the time of their embarking upon studies of their respective courses. A similar view was taken in the case of Adnan, Tariq wherein it was found that a candidate could not claim as of right to be governed by the regulations prevalent at the time of their admission. The Regulations take effect from the date of their approval by the Syndicate and are applicable to the examinations subsequent to such approval.
8. The above survey of case-law brings us to the conclusion that the Government is competent to change policy, incorporate additions and alterations in the prospectus. It is domain of government to consider a qualification sufficient for promotion from a particular grade to a higher grade, the Regulations take effect from the date of their approval and are applicable to subsequent examination.
9. Reverting to the main issue raised in these petitions that petitioners be allowed to attend classes and practical in the next higher class and appear in their failed subjects of the existing class.
University of Health Sciences, Lahore approved "the statutes and regulations for M.B.B.S. 1st, 2nd, 3rd and final professional examination. Regulation 9 relevant in the instant controversy is reproduced as under:-- "A candidate who passes in one or more subjects but failed in the examination shall if he so desires, provisionally be allowed to join third year M.B.B.S. Class till the commencement of the supplementary examination. The candidate, however, shall have to pass the failed subjects in this supplementary examination failing which he/she shall be detained in the second year. Under no circumstances a candidate shall be promoted to the third year M.B.B.S. Till he/she has previously passed all subjects in the First Professional Part-II Examination."
10. Learned counsel for the petitioners tried to find escape from above regulation of respondent No,1, by referring to the judgment of Hon'ble Supreme Court, quoted by a Division Bench of this Court in Writ Petition No, 1753 of 2005 titled "Shafqat Ejaz etc. v. University of Health Sciences Lahore and others". Relevant part of the judgment of the Hon'ble Supreme Court is reproduced hereunder:-- " However paragraph 9 and 18 of the prospectus toeligibility and rules for examination appear to be in conflict with the Regulations framed by Pakistan Medical and Dental Council and reproduced in the earlier part of this judgment. Clause (2) of the Regulation IV of the Pakistan Medical and Dental Council Regulations bars a student from being promoted to 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. It does not, however, restrict a student to attend the classes of Part-II in the First Professional M.B.B.S. Even if he has failed to qualify a subject in Part-I."
11. The same issue came up before the Hon'ble Supreme Court in a recent case of Muhammad Umar Wahid. Relevant portion of the judgment is reproduced 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 2-3-1998 which states that "no student can be promoted to the higher classes unless he passes all the subjects of the previous classes". In Alptagin case PLD 2004 Pesh. 307 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 Regulations of P.M.D.C.
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 the 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 P.M.D.C. But is a step further in achieving the objects for which the provision was incorporated, namely, to strengthen the academic competency of the students."
12. The judgment of the Hon'ble Supreme Court of Pakistan citedby the learned counsel for the petitioners is distinguishable; the facts thereof do not qualify to the case in hand. Finding of the Hon'ble Supreme Court are based on the conflict between the prospectus and Regulations of P.M.D.C. while in the instant case there is no conflict between the prospectus and Regulations of University of Health Sciences. Both prohibit the "carry on system". Law enunciated by the Hon'ble Supreme Court of Pakistan, in the case of Umar Wahid is judgment of subsequent date, is precedent and has binding force.
13. Permitting study to next higher class, without qualifying/passing the current examination will result into indiscipline in medical institutions. It will hinder in improving higher standard of education we do not agree with the arguments of learned counsel for the petitioners that petitioners are entitled to the relief claimed in these petitions, on the basis of principles of equity between the citizens, keeping in view the order passed in several constitutional petitions the orders referred by the learned counsel are interim in nature passed in civil miscellaneous applications, where permission allowed was subject to final decision of the writ petition. The apex Court has enunciated law in Umar Wahid's case in view whereof promotion in next higher class to failed candidates, is not legally tenable. There is no sense in giving prudence to interim orders passed in several writ petitions as against the judgment of Hon'ble Supreme Court. Thus the case of the petitioner on the touchstone of principles of equality between citizens is not sustainable.
14. For the foregoing, these petitions have no force and are accordingly dismissed.