' ASAD MUNIR, J.--- The respondent, Ms. Nadia Riaz Chattha, was granted admission on merit in the MBBS class (1992-93 academic session) at the King Edward Medical College, Lahore. The MBBS course is spread over a period of.5 years and an MBBS degree is obtained by a medical student after passing four (4) professional examinations which are successively held at the end of second year, third year, fourth year and fifth year of the medical studies. No professional examination is held at the end of the first year of the studies but only a test is conducted for promotion to the second year. It appears that the respondent could not pass the promotion test until 28-10-1995.
However, even though she had not been promoted to the second year, she was allowed to appear in the 1st Professional MBBS Annual Examination 1995, held in September, 1995, but she failed. She availed her second chance when she reappeared in the Supplementary Examination 1995, held in March, 1996, but again failed. She appeared for the third time in the Annual Examination 1996, held in September, 1996 and once again failed. Her fourth attempt to pass the Supplementary Examination 1996, held in March, 1997, also proved abortive as she could not clear the subjects of Anatomy and Physiology. Thereafter, the respondent was not allowed to make any further attempt whereupon she filed a suit before the Civil Court and pursuant to an interim order dated 20-3-2001, she sat in the Supplementary Examination 2000 held in March, 2001 but her fifth attempt also ended in failure as could not clear the subject of Physiology. Later, her suit was also dismissed in default. On 15-10-2002, the respondent filed another suit for declaration and perpetual injunction and also sought an interim injunction to appear in the Annual Examination 2002, being held in October, 2002. By his interim order dated 22-10-2002, the Civil Judge, Lahore, allowed the respondent to appear in the said examination in the following terms; ' In the best interest of justice, the plaintiff/petitioner is provisionally allowed to appear in the examination subject to all just exceptions and that will be subject to final decision of the controversy by the Court".
2. The petitioners resisted the suit through their written statement, filed on 13-12-2002 and also sought rejection of plaint under Order VII, Rule 11, C.P.C., on the ground that the respondent had no cause of action. However, the petitioners' application for rejection of plaint was dismissed on 8-5- 2004. In the meantime, the respondent appeared in the examination and was on 31-8-2004 declared passed but provisionally without prejudice to University's right to appeal against the Civil Judge's order dated 8-5-2004. Thereafter, by another interim order dated 2012] Vice-Chancellor K.E. Medical College v. Nadia Riaz Chatha 1339 4-11-2004, passed by the Civil Judge, Lahore, the respondent was allowed "to attend the classes of 3rd year provisionally subject to final decision of the controversy". However, respondent's suit was dismissed by the Civil Judge, Lahore, vide judgment and decree dated 3-3-2010 whereupon the respondent filed an appeal which has been allowed by the Additional District Judge, Lahore, through his judgment/decree dated 24-3-2010, the operative part whereof is reproduced below:--- ".... The duty of the court is to do justice between the parties before it and in such situation the courts are to act in accordance with principles of equity, justice and good conscience as the hiterim/provisional orders allowing the appellant to appear in the examination and thereafter to attend the classes have got the finality being not challenged by the respondent before any Superior Court. It is an admitted position that the appellant has attended the classes of third year completely without any complaint against her So, she cannot be thrown out of the studies and the clock cannot be reversed as all she has done, is by an act of the court and no one can be prejudiced by an act of court.
3. Through this civil revision, the petitioners have challenged the legality and propriety of the impugned judgment and decree dated 24-3-2010, passed by the learned Additional District Judge, Lahore. While doing so, their learned counsel, Mr. Jawad Hassan, the Additional Advocate-General, Punjab, has contended that the impugned judgment suffers from material irregularity and is based on a misreading of evidence including the documents submitted by the petitioners and reflects a failure to understand the real issue raised by the pleadings in the suit. The main argument advanced by the learned Additional Advocate-General is that the respondent, having appeared unsuccessfully more than four times in the First Professional Examination, cannot be allowed to continue her medical education in view of Regulation 7 of the PMDC Regulations as well as Clause 4(b) of the College Prospectus. In support, reliance has been placed on a judgment of the Honourable Supreme Court judgment dated 21-1-2009, passed in C.A. No. 591 of 2006, titled Miss Asma Ghafoor v. Principal King Edward Medical College, Lahore and 3 others, Akhtar Ali' Javed v.
Principal, Quaid Azam, Medical College, Bahawalpur (1994 SCM R 532) and Munaza Habib and others v. The Vice-Chancellor and others (1996 SCM R 1790).
4. In response, the learned counsel for the respondent, Mr. Nadeem-ud-Din Malik has supported the impugned judgment with the argument that the respondent, having passed the examination pursuant to the interim order of the learned Civil Judge, must be allowed further medical education as her failure to pass the. Examination in her earlier attempts was due to circumstances beyond her control particularly because she was sick. In this regard, the learned counsel has placed reliance on unreported judgment dated 16-7-1998, passed in Writ Petition No.4553 of 1997 unreported judgment 23-6-1996, passed Writ Petition No.10447 of 1994 and Supreme Court's order dated 12-12-2009 passed in Civil Petition No.208-L of 2008 and Supreme Court's order dated 21-10- 1996, passed in Civil Petition No. 2003/L of 1996.
5. In the light of the arguments advanced by the learned counsel, the main issue that needs to be ,addressed is whether the respondent, having not passed the MBBS First Professional Examination in four attempts, can be allowed to remain a medical student after passing the exam under the Civil Judge's interim order dated 22-10-2002. In this respect, it would be necessary to keep in view Regulation 7 of the PMDC Regulations as well as Clause 4(b) of the College Prospectus which for ready reference are reproduced below:--- REGULATION 7 of PMDC REGULATIONS "Any student who fails to clear first professional MBBS examination in four chances availed or unavailed after becoming eligible for the examination shall cease to be eligible for further medical education in Pakistan".
CLAUSE 4(b) OF THE UNIVERSITY PROSPECTUS-EXAMINATION.
"Those students who fail to clear the first Professional M.B.B,S. Examination in four available chances whether actually availed or not shall be expelled from the College"
6. Thera is some controversy regarding the total number of attempts made by the respondent by reference to the availed and unavailed chances. According to the learned Additional Advocate- General, the petitioner has had nine availed/unavailed chances to clear the First Professional MBBS Exam. It appears that the respondent availed her first chance in 1995 when she had not been promoted to second year and was thus not eligible to sit in the exam. In view of the law laid down in. Principal, Quaid-e-Azam Medical College, Bahawalpur versus Nasim Ahmad and another (1997 S.CMR 583), the first attempt of the petitioner cannot be counted as an availed chance as it was made or allowed at a time when she was not even eligible. Thereafter, the petitioner appeared thrice in March. 1996, September, 1996 and March, 1997 but remained unsuccessful. The respondent was not allowed to make any further attempt as the petitioners were of the view that she had availed or exhausted her four chances. However, the respondent was able to sit in the Supplementary Examination 2000, held in March, 2001, by virtue of Civil Judge's interim order dated 20-3-2001, passed in a civil suit filed by her. After failing in her fourth attempt, the respondent filed another civil suit wherein she obtained another interim order dated 22-10-2002 to appear in the Annual Examination 2002, being held in October, 2002. Thus, it is in her fifth attempt that the petitioner can be said to have passed her exam. Resultantly, one cannot agree with the learned Additional Advocate-General that 8 chances availed/unavailed have been exhausted by the respondent. This is because there may be a gap between the petitioner's fourth and fifth attempts but the availability of chances during this gap is obviously not relevant as the college authorities were not willing to let the respondent appear in the exam.
7. According to Regulation 7 of the PMDC Regulations as well as Clause 4(b) of the College Prospectus, a medical student cannot avail more than four chances to pass the First Professional MBBS Examination. A similar issue arose in Akhtar Ali Javed versus Principal, Quaid-e-Azam.
Medical College, Bahawalpur, supra, wherein it was held by the Honourable Supreme Court that a medical student, who had failed to qualify the First Professional MBBS Examination in four attempts, was not entitled to seek another chance to pass the examination in view of the limit of four chances imposed by the college Prospectus. It was observed by the Hon' ble Supreme Court that:- "The right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above-quoted rule, in our view, does not infringe upon the right of a student to pursue his studies in the Medical College. On the contrary, it ensures arrest of falling standards of education in such institutions. We, therefore, do not find any arbitrariness or unreasonableness in the aforesaid rule."
"Another case in point is Munaza Habib and others v. Vice-Chancellor and others, supra, where a similar view was taken by the Honourable Supreme Court".
8. As stated earlier, the respondent has not, admittedly, passed the Exam. In four attempts but has passed it in the fifth attempt pursuant to the learned Civil Judge's interim order dated 22-10-2002.
It has been argued on behalf of the respondent that the respondent, having passed the Exam.
Under the interim orders of the Court, should not be prejudiced by the act of the Court. In support, reference has been made to an unreported judgment dated 16-7-1998, passed in Writ Petition No.4553 of 1997 and Supreme Court's order dated 12-12-2009, passed in Civil Petition No. 208-L of 2008 and Riaz-ul-Haq v. Selection Committee (1997 SCM R 1845) and Hamza Khan v. Province of Balochistan (1995 SCM R 711). The aforesaid judgments were followed by a Division Bench of this Court in Writ Petition No.12003 of 1995 passed on 21-9-1999. Relying on the aforesaid judgments, the learned counsel for the respondent has submitted that the medical education of the respondent should not end as she has passed her first professional Exam. And has also completed her lectures for the third year whereafter she is eligible to take the second professional MBBS exam.
9. In reply, the learned Additional Advocate-General has referred to the case titled Ms. Asma Ghafoor v. Principal, King Edward Medical College, Lahore and others (C.P.L.A. No.872-L of 2005). The said civil petition for leave to appeal was filed against the Lahore High Court's judgment dated 24- 3-2005, passed in Writ Petition No.6556 of 2004, whereby the medical student's petition for fifth chance to appear in the MBBS First Professional Exam . Was dismissed. On 6-10-2005, the Hon'ble Supreme Court by its interim order dated 6-10-2005 allowed the medical student to appear in the Exam. Which she passed. Thereafter, on 21-3-2006 the Hon'ble Supreme Court granted leave to appeal to consider the question whether the petitioner having availed her chance to appear and having passed the examination could be deprived of her right to pursue her medical education in view of the law laid down in Riaz-ul-Haq v. Selection Committee, Bolan Medical College through Secretary, Principal Bolan Medical College, Quetta, supra. However, by its judgment dated 21-1- 2009, the Hon'ble Supreme Court dismissed the appeal and upheld the order of the Lahore High Court despite the fact that the medical student had passed the First Professional MBBS Exam.
Pursuant to the interim order passed by the Hon'ble Supreme Court.
10. The aforesaid precedent of the Hon'ble Supreme Court is apt and applicable to the facts of the present case as the respondent has passed the First Professional MBBS Exam. In her fifth attempt on account of Civil Judge's interim order. One may also refer to the case of Ali Yousaf and another v: Chairman of Academic Council and Principal, Dow Medical College, 'Karachi and others (2000 SCM R 1222) wherein also a medical student had made four attempts to pass the First Professional MBBS Examination but had failed whereafter she sought another chance on the ground that .He had failed in his earlier attempts due to illness. An interim order was passed by the Hon'ble Sindh High Court to allow him to take the Exam. Which he passed. However, the Hon'ble Sindh High Court held that a fifth chance was not available and dismissed the writ petition even though the medical student had passed the examination in his fifth attempt. The judgment of the Hon'ble Sindh High Court was upheld by the Honourable Supreme Court who observed as under:--- "Insofar as the contention of the learned counsel for the petitioner that the petitioner appeared in the supplementary examination under the interim orders passed .By the High Court in his constitutional petition on 18-1-1999 and passed the same and therefore, he is entitled to continue his studies, is concerned, it may be mentioned here that the interim order allowing the petitioner to appear in the examination, which was to be held in January, 1999, was subject to the condition that the petitioner may appear in the examination at his own risk and subject to the final decision of the case on merits. Since the High Court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January, 1999 under the interim orders of the Court passed the examination, would be of no avail."
' The honourable Supreme Court, thus, took the view that a medical student, in the absence of having any case on merits, was not entitled to continue his medical studies even if as he had passed the Exam. Under the Court's interim order. The honorable Supreme Court also rejected the argument that the medical student should be allowed another chance because he was ill as he had never informed the college authorities about his illness before the examination or before appearing in the examination.
11. The case-law cited by the learned counsel for the .Respondent does not advance the case of the respondent as the distinguishing feature of those cases is that the interim order was passed without opposition by the college authorities. In the present case, the University authorities have continuously opposed the stand of the respondent as they feel that it is a clear violation of Regulation 7 of the PMDC Regulations which would set a wrong precedent as would to contribute to the decline in the standards of medical education. The ground of unavoidable circumstance cannot be considered in the present case as neither the respondent informed the authorities about her illness nor can it be believed that she was ill when she took the Exam. It also needs to be emphasized that the Civil Judge's interim order "provisionally allowed" the respondent to appear in the examination and that too "subject to final decision of the A controversy by the Court".
Respondent's argument of being prejudiced by the act of court has no relevance in view of the unambiguous terms of the interim order which was sought by the respondent herself. Such an argument, if accepted, would mean that if she passed the Exam., the suit would automatically stand decreed in her favour without being decided on merits. It may be emphasized that the respondent could have the benefit of the interim order upon passing the examination only if she was able to succeed in her suit by establishing her right to appear in the examination for the fifth time and not otherwise. However, it has been authoritatively. Laid down by the honourable Supreme Court in Miss Asma Ghafoor v. Principal King Edward Medical College, Lahore and 3 others (C.P.L.A. No. 591 of 2006), Akhtar All Javed v. Principal, Quaid Azam, Medical College, Bahawalpur (1994 SCM R 532) and Munaza Habib v. Vice-Chancellor and others (1996 SCM R 1790) Ali Yousaf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others that a medical student cannot be allowed to avail a fifth chance to sit in the First Professional MBBS Examination. As has been observed in Akhtar All Javed v. Principal, Quaid-e- Azam, Medical College, Bahawalpur (i994 SCMR 532), the rationale for not allowing a medical student more than four chances is to ensure that standard of medical education does not decline.
12. The case reported as Riaz-ul-Haq v. Selection Committee, Bolan Medical College through Secretary, Principal Bolan Medical College, Quetta (1997 SCM R 1845), Hamza Khan v. Province of Balochistan and others (1995 SCM R 711) and Miss Salma Mughal v. Selection Committee, Bolan Medical College (1993 SCMR 2023) are distinguishable as they involve the issue of admission to a medical college rather than that of a medical student availing. More than four chances.
13. In view of the foregoing discussion, particularly the law laid down by the Hon'ble Supreme Court, it follows that a medical student, who has made four unsuccessful attempts to pass the MBBS First Professional Exam., cannot be allowed to continue his or her medical education even if he or she has passed the Exam. In a later attempt pursuant to a court's interim order where he or she has no case on merits.
14. Resultantly, this civil revision is allowed and the learned Additional District Judge, Lahore's judgment/decree dated 24-3-2010, being illegal, is set aside and the learned Civil Judge's judgment and decree dated 3-3-2010, whereby the respondent's suit has been dismissed, is restored. There is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.