CH. MUHAMMAD TARIQ, J.---This Intra-Court appeal has been directed against the judgment dated 8-7-2010 passed by learned Single Judge in Writ Petition No,1087 of 2009.
2. Brief facts of the case as narrated in the Intra-Court Appeal are that vide Letter No, 43165/2249/PA-3(c), dated 3-11-2003 issued by General headquarters (GHQ) AG's Branch PA Directorate, respondent No,1 was selected for admission in the Army Medical College for 28th M.B.B.S. Course. Respondent No,1 was selected as M.C. to serve Pakistan Army after completion of his M.B.B.S. at Army Medical College. He was also allotted army number. At the time of admission with the said college, respondent No,1 executed and signed a bond with GHQ which inter alia provides and binds respondent No,1 and states "Know all men by these presents that we (Trainee Utba Safwan Khan) (hereinafter called the trainee) and surety (Allah Bakhsh Khan) (hereinafter called the surety) do hereby bind ourselves and each of us and our heirs, executors to pay on demand to the President of Pakistan (hereinafter called the President) the sum paid to and expended on the trainee at Army Medical College as may he determined by the President, if the trainee is found wilfully creating such conditions, as to get himself out of the Army Medical College, by the Adjutant General Pakistan Army or if the trainee is allowed to resign or is withdrawn for his/her application for admission into Army Medical College or disciplinary standards of Pakistan Army for which the trainee will also be considered rusticated for two years unless otherwise stated or if the trainee fails in annual and supplementary examination of any class, he/she will be treated as Paying Cadet. If allowed by the Executive Committee of the Governing Body and will bear all expenses on his training etc. till he clears that examination or the sums as follows if the trainee is allowed to resign during training or after being commissioned."
3. In the Army Medical College, students of four categories are admitted: (i) Medical Cadets (MCs),
(ii) NUST Cadets (NCs), (iii) Paying Cadets (PCs) and (iv) NUST foreign Cadets (NFCs). Respondent No,1 is a Medical Cadet and a Medical Cadet is given admission by GHQ Adjutant General's Branch.
His terms of completion of education and service with Pakistan Army are governed by law and rules of Pakistan Army.
4. Respondent No,1 appeared in 2nd professional M.B.B.S. examination 2007-2008. Unfortunately, in spite of availing 4 chances, respondent No,1 could not pass the 2nd professional M.B.B.S. examination and as a consequence, respondent No,1 was withdrawn by GHQ vide letter No,4316/2366/PA-III(c) dated 29-11-2008. Respondent No,1 filed Writ Petition No,1087 of 2009 which was allowed by the learned Single Judge of this Court. The operative paras of the impugned judgment is reproduced as under:- "(9) In order to determine as to whether the petitioner has a right to seek his conversion into a NUST Cadet, a reference may be made to the Surety Bond which must be regarded as a source of not only the obligations of the petitioner but also that of his rights. Being in the prescribed form, it has to be said that the Surety Bond, though executed by the petitioner, is equally binding on respondent No,2 and respondent No,3 in relation to any rights that the petitioner may have under the Surety Bond. Primarily, the Surety Bond is designed to ensure that the petitioner completes his M.B.B.S. and becomes available to serve in the Army Medical Corps failing which the petitioner is bound to reimburse the expenses incurred on his medical education. In terms of the Surety Bond, a decision can be taken to withdraw the petitioner as an Army Medical Cadet if he fails in the exam but in such an event it is also provided that the petitioner is to be converted into a Paying Cadet as against NUST Cadet. I may here refer to the first para of the Surety Bond which provides "if the trainee fails in annual and supplementary examination of any class he/she will be treated as Paying Cadet."
(10) As per the terms of the Surety Bond, upon his withdrawal as an Army Medical Cadet, the petitioner has not only lost the future financial support but is also obliged to reimburse the money incurred on him. However, the Surety Bond does not prescribe the further punishment of expulsion of the petitioner from the Army Medical College but provides for his conversion and therefore retention as a Paying Cadet thereby enabling the petitioner to avail further chances for the exam which are also allowed under the Regulations, issued by the Pakistan Medical and Dental Council, as they do not impose any ceiling on the number of attempts for any M.B.B.S. exam other than the first profession exam.
(11) As a result of the foregoing discussion, I am of the view that the petitioner is at least entitled to be treated as a Paying Cadet in view of the terms of the Surety Bond which as stated earlier are equally binding on the petitioner as well as respondents Nos.2 and 3."
Hence this Intra-Court Appeal.
5. Learned counsel for the appellants contends that the impugned judgment is against the facts and law involved in the case. Respondent No,1 is a Medical Cadet. His admission and service is governed by Army laws. He was given admission by GHQ Adjutant General's Branch (PA Directorate). Respondent No,1 appeared in 2nd professional M.B.B.S. Exam-2007- 2008, however, unfortunately respondent No,1 could not clear 2nd professional M.B.B.S. examination in maximum allowed 4 chances, therefore, lie was withdrawn by the same Branch. The order impugned in the writ petition is the order which has been passed by the Army, therefore, under Article 199(3) of the Constitution of the Islamic Republic of Pakistan,. 1973, the writ petition filed after elapse of 5 months was not maintainable. The learned Single Judge in Chamber has failed to appreciate the said provisions of the Constitution. Moreover, since respondent No,1 was declared an army personnel, therefore, his writ petition was not maintainable on this count alone. Even otherwise there is no violation of any .law, rule or regulation which could be a reason or justification for the maintainability of the writ petition. In the absence. of such grounds, the learned Single Judge in Chamber has wrongly allowed the wite petition.
6. Learned counsel for the appellants further contends that. while passing the impugned judgment, learned Single Bench has misinterpreted the language of the bond submitted by respondent No,1 and has ignored the mandatory provisions of bond which were incorporated in para 1 of the bond which provide that it is only the executive governing body who can declare a cadet as paying cadet. Further contends that before the admission, all the candidates furnished these bonds after due consultations, without any .coercion or compulsion, therefore, the I.C.A. be allowed, the impugned judgment be set aside and the writ petition filed by respondent No,1 be dismissed.
7. On the other hand, learned counsel for the respondents have vehemently opposed this I.C.A. and have contended that the examinations and other ancillary and akin matters of the students of Army Medical College are dealt with by the NUST, being the University, organizing, controlling and processing the entire examination system of all categories of students of the Army Medical College, Rawalpindi, pertaining to M.B.B.S. students. As such, under the law, the said university is duty-bound to follow the Rules, Regulations and directions, received from time to time; from the Pakistan Medical and Dental Council (PMDC). Reference in this context can be solicited to the law enshrined by the Hon'ble Supreme Court of Pakistan reported as PLD 2007 Supreme Court 323.
Insofar as the academic control of the students of all categories, whatsoever, of the Army medical College is concerned, the same are supervised and controlled by the NUST authorities. Likewise, another student of the same college, also not belonging to GHQ category of students, was also treated in the same manner, which had appeared in the 2nd professional M.B.B.S, (supplementary)
Examination, 2009 conducted by the NUST.
8. Learned counsel for the respondents further argue that the Army Medical College itself had recommended to follow the rules and regulations of PMDC as is evident from the Report and Parawise Comments, filed by respondents Nos.1 to 3 in Writ Petition No,1087 of 2009, the relevant portion thereof is hereby reproduced advantageously, for ready reference:- As per PMDC regulations, there is a limit of 4 chances, for 1st professional part-I and II examinations and no restriction on number of chances, in 2nd 3rd and final professional examination. This is in practice in all medical institutions of the country. It is, therefore; recommended that policy on chances or examinations i,e, 4 chances in 1st professional Part-I and Part-II only and no, chance restriction in other professional examination be implemented, with effect from February, 2008. The GHQ was requested for this change in policy vide AM College letter No, Dean/30/J, dated 7-1-2008. Medical Directorate, GHQ vide their Letter No, 68/3/08/DMS1(1S), dated 22-2-2008 had no objection for change of this policy."
9. Learned counsel for the - respondents avers that even GHQ had got no objection for unlimited chances, to be provided to students of category, controlled by GHQ, in view of the. rules, regulations and policy of PMDC. Actually NUST had made it the point of prestige, for not following the rules, regulations and polices of PMDC and consequently the, above recommendations of Army Medical College, coincided by GHQ, were defied in toto. Learned counsel for the respondents has further contended that as submitted above, the academic control of M.B.B.S. classes of Army Medical College, inclusive of the students, given admission by GHQ, is with NUST. Even otherwise, in view of GHQ letter No,68/3/08 DMS-1(IS), dated 22-2-2008, the GHQ had no objection for unlimited chances, to be provided to the students of category related to GHQ, as prayed for. Under the rules, regulations and policy of PMDC, the writ petitioner can avail unlimited chances, after passing 1st professional M.B.B.S. Examination and the same is practiced in all Medical Colleges all-over Pakistan. Learned counsel point out that some of the students; since 1976 and 1977 are. appearing 2nd 3rd and 4th professional M.B.B.S. Examinations, while availing unlimited chances. Learned counsel for the respondents have prayed that the Intra-Court Appeal be dismissed and the verdict of the learned Single Judge in Chamber be upheld
10. We have heard the arguments put forth from all corners and have also gone through the impugned judgment as well as the record available on file.
11. So far as the question of maintainability of writ petition' filed by respondent No,1 is concerned, respondent No,1 is a mere student in Army Medical College, 'he is not a commissioned officer or governed under Military law, so the bar of Article 199(3) of the Constitution will not be attracted, hence the writ petition is competent. However, the other contentions raised by the learned counsel for the appellant need consideration.
12. Admittedly, the Government of Pakistan set up the institution of National University of Sciences and Technology (NUST) with the assistance of army and civil authorities. The board of governors of NUST exercise their powers under the statute known as "National University of Sciences and Technology (Enforcement of Academic, Service and Financial Matters) Statutes, 2005. These statutes were approved by the Government of Pakistan. The Army Medical College is a constituent, college of the NUST. The record reveals that respondent No,1 appeared in 2nd professional M.B.B.S. Examination -- 2007-2008 but despite availing 4 chances, he failed to qualify 2nd professional M.B.B.S. Examination. Respondent No,1 was admitted to M.B.B.S. course under the provisions of Army Instructions No,36 of 1997 but the educational career of respondent No,1 in Army Medical College remained very weak.
13.The record further shows that respondent No,1 was relegated twice; during his M.B.B.S. 1st professional examination and then in 2nd professional examination and despite availing 4 chances, he failed to clear the 2nd professional M.B.B.S. examination. The contention of learned counsel for the respondents that there is no restriction and respondent No,1 may pass his examination in countless efforts is not warranted under the law because the profession of medical is very sensitive one in which a weak person can A only play havoc with the health and life of the human beings. Respondent No,1 made 4 attempts but failed. No more latitude could be extended to respondent No,1 and the contention of learned counsel for the respondents is without logic that respondent No,1 and other students studying in Army Medical College are at liberty to pass the M.B.B.S. Examination according to their own wishes without restriction of limitation. The condition of unlimited chances is not only discriminatory but also against the concept of Article 24 of the Constitution.
14.Further, the learned Single Judge in Chamber has misinterpreted the language of bond which delegates power upon the executive committee of the governing body who is to treat a student as paying cadet. The categories of students studying in Army Medical College could not be changed in the writ petition.
15. As a result of above discussion, the Intra-Court Appeal is ACCEPTED, the impugned judgment dated 8-7-2010 passed by learned Single Judge in Chamber in Writ Petition No,1087 of 2009 is set aside and the writ petition filed by respondent No,1 is dismissed. The condition in the rules of PMDC that after qualifying first year, a student can pass his M.B.B.S. Examination without any restriction of chances is against the spirit of Constitution which is hereby declared illegal, null and void and discriminatory to other institutions.. 'The PMDC is hereby directed to strike down the condition of unlimited chances and to make amendment in the rules according to the rules and requirements prescribed by NUST.
16. The Office is directed to supply a copy of this judgment to PMDC for its compliance.