' Both of the above referred petitions were fixed before us on 1-7-2009 on which date learned counsel for the parties -concluded their submissions and judgment was reserved.
2. Since the facts and legal point involved in both are identical, we intend to dispose of the above petitions by this common order.
3. The admitted facts in both cases are as follows. Both petitioners (Ms. Shahrukh in C.P. D-497 of 2008 and Ms. Samreen in C.P. D-581 of 2008) were admitted to the University of Medical and Health Sciences at Jamshoro on the basis of a scheme (the Self Finance Scheme) pursuant to which a certain number of seats are reserved in each academic year for those local students domiciled in Sindh who are not able to obtain the minimum marks required for admission to a medical college run by the Provincial Government but are otherwise fit for admission to a course of study leading to the grant of the M.B.,B.S., degree. In addition to meeting these requirements, such students are required to pay tuition fee at rates that are much higher than the rates charged from students who secure more than the minimum marks required for admission.
4. The tuition fee payable under the Self-Finance Scheme is determined from time to time and was fixed at Rupees 175,000 per year at the time that the above petitions were filed. Payment of this fee entitles the student to attend all classes and practicals and to sit for examinations like any other student of the medical college.
5. Final examinations are held annually at the conclusion of each academic year. All students must obtain passing marks in each subject in which they are examined at one academic level before they are promoted to the next academic level. If they fail to obtain passing marks in one or more subjects, they must retake the examination and pass in order to be promoted. The examinations may be retaken at the time that supplementary examinations are held within a few months of the annual examinations or at the time of the following annual examinations.
6. The question for determination in these petitions arose when the petitioners were not successful in securing passing marks in all subjects in which they were examined at the end of an academic year. The petitioner in C.P. D-497 of 2008 obtained passing marks in all subjects of the 3rd Professional M.B.,B.S., except Pathology, in which she cleared the viva voce part but not the multiple-choice-question (MCQ) part of the examination. Similarly, the petitioner in C.P. D-581 of 2008 obtained passing marks in all subjects of the 2nd Professional M.B.,B.S., except Pharmacology and Pathology general, in both of which she cleared the viva voce part but not the MCQ part of the examination.
7. When the petitioners sought to retake the MCQ part of the examinations, they were asked to pay the full amount of the tuition fee payable under the Self Finance Scheme i,e, Rupees 1,75,000 in order to be able to retake the examinations.
8. According to the petitioners, this demand is not only unreasonable but also discriminatory, and, therefore, violative of Article 25 of the Constitution. This submission is made in view of the fact that similarly placed students who were admitted in the normal course (i,e,, those who were not admitted under the Self Finance Scheme) are only required to pay the examination fee (fixed at Rupees 1085 at the time that the above petitions were filed) before being permitted to retake an examination.
9. The petitioners have also pointed out that reappearing in the examination for a particular subject does not require any assistance to be rendered by the university, in that students are not required to attend classes in that subject or use other facilities including laboratory equipment provided by the university in order to be able to retake the examination. This being the case, they submit that it is unfair that they should be made to pay the entire tuition fee instead of only the examination fee before retaking the examination. According to the petitioners other universities including the Sindh University, Mehran University, and Quaid-e-Azam University at Nawabshah have similar schemes in various academic programs but do not require their students to pay the entire tuition fee in order to be able to resit one or two examinations.
10. In their comments the respondents Nos.2 and 3 (the Vice-Chancellor and Registrar, respectively, of the University of Medical and Health Sciences, Jamshoro) have denied that the demand for full tuition fee is extortionate as alleged and submitted that at all times they have acted strictly in accordance with the applicable rules and regulations of the university.
11. The respondents Nos.2 and 3 also submitted that while they sympathize with the petitioners and wish to help them, they are constrained from doing so by virtue of the judgment of an Honorable Division Bench of this Court in C.P. D-244 of 2003 and C.P. D-1247 of 2003. During the course of the hearing on 1-7-2009, learned counsel for the respondents Nos.2 and 3 elaborated that while the Syndicate of the University is ready to implement a resolution (No,AC-20-6) passed by the Academic Council pursuant to which students admitted on the Self Finance Scheme would only be charged the tuition fee on a proportionate basis in respect of only those subjects in which they are to be reexamined, this resolution cannot be implemented in view of the above referred judgment which has held that repeaters must pay the entire tuition fee before retaking an examination.
12. Before dealing with the judgment referred to above, it will be instructive to bring certain admitted facts on the record. During the course of the hearing all learned counsel confirmed that a student on the Self Finance Scheme who had failed in one subject during the annual final examinations has the option of retaking the examination during the supplementary examinations held a few months after the annual examinations or a year later at the time of the next annual examinations. During the intervening period (i,e,, the few months before the supplementary examinations or the full academic year before the next annual examinations) the student may, but is not required to attend classes and partake in the practical instructions offered by the university in that subject.
13. All learned counsel also confirmed that the fact that a particular student has been admitted under the Self-Finance Scheme does not mean that it is at the cost of a student who would be entitled to admission on merit by virtue of having obtained more than the minimum marks required for admission. In other words and by way of an example, if the university is capable of accommodating 100 students on merit in any academic year and admits 10 under the Self Finance Scheme, the total number of students admitted is 110 ensuring that none of the 100 students entitled to admission on merit is denied admission.
14. Having regard to the above facts, we note that the judgment in C.Ps. D-244 and D-1247 of 2003 was rendered on a consideration of facts that are distinguishable. In the first place the judgment notes that: "All of [the petitioners] failed at one time or the other annual examinations and were required to repeat themselves for another year". As noted above, the present petitioners have only failed to pass the MCQ part of the examination in one subject in CP D-497 of 2008 and two subjects in C.P. D-581 of 2008. That being so, they are not required to repeat themselves for another full year as appears to have been the case in C.Ps. D-244 and D-1247 of 2003. In addition to the foregoing, the petitioners in C.Ps. D-244 and D-1247 of 2003 were claiming a total exemption from payment of any tuition fee notwithstanding that they were "required to repeat themselves for another year'.
15. While we have noted that the judgment in C.Ps. D-244 and D-1247 of 2003 is based on facts that are distinguishable, we are in respectful agreement with the rationale of the same and hold that a student adthitted to any State-run educational institution under a Self-Finance Scheme must pay the full tuition fee in case he or she is required to repeat a full year. In other words, where such a student has failed in all subjects and elects to repeat the full year we see no reason why he or she should not be required to pay the full tuition fee again.
16. Extending the same principle to the facts of this case we hold that where such a student is only required to re-sit one or more, but not all, exams (including, as in this case, only one part of the exam in a particular subject), the tuition fee payable under the Self-Finance Scheme will be the amount attributable to the number of subjects in which the student is required to be re-examined.
Thus, a student who was examined in five subjects in an academic year but has to re-sit one exam in order to qualify to be promoted to the next academic level, the tuition fee payable by that student before being permitted to re-sit the exam will be one-fifth of the total tuition fee payable under the Self-Finance Scheme for the year in which he or she re-sits the exam.
17. We also clarify that the proportionate tuition fee shall be payable whether the student chooses to re-sit the examination during the supplementary examinations or during the next annual examinations. Further, the proportionate tuition fee (or full tuition fee in those cases where a student has failed in all, subjects and retakes all examinations) shall be payable whether or not he or she elects to attend any classes or practical instructions offered by the university in those subjects. The reason for this is the fact that while a student is not required to, he or she may attend classes and partake in the practical instructions offered by the university in that subject and it will neither be possible nor practicable to attempt to keep a track of students who have and those who have not opted to take advantage of this facility.
18. Having held as above, we do not see how the judgment in C.Ps. D-244 and D-1247 of 2003 constitutes an impediment to the implementation of resolution No,AC-20-6. To the extent that the resolution requires proportionate payment of the tuition fee, calculated as above, from those students who are required to retake one or more exams in order to be promoted to the next academic level, it is based on the same rationale as the above judgment and is, therefore, fully enforceable.
19. In view of the foregoing, these petitions are allowed in terms that the petitioner in C.P. D-497 of 2008 shall be permitted to retake the Pathology MCQ examination, and the petitioner in C.P. D-581 of 2008 permitted to retake the Pharmacology and Pathology MCQ examinations upon payment of the proportionate tuition fee calculated as above on the basis of the amount fixed for the academic year in which they retake the exams. These payments shall of course be in addition to the other usual charges such as examination fee payable by all other students.