M. Tabassum Aftab Alvi.J--The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in both the instant writ petitions, therefore, we proposed to decide the same through this single judgment.
3. Precise facts giving rise to Writ petition No. 1135/12 are that petitioners Iqra Ejaz; Rukhe-Zenib Aftab; Sahira Fayyaz; Ghulam Fatima and Muhammad Zanul Abidin, after passing entry test, were granted admission in first year MBBS course in Mohi-ud-Din Islamic Medical College Mirpur. All the above petitioners appeared in Annual Examination of 2011, however, petitioner Iqra Ejaz failed in Physiology, Petitioner No. 2 Rukh-e-Zainib Aftab failed in Anatomy, Physiology and Bio-Chemistry, Petitioner No. 3 Sahira Fayyaz and Petitioner No. 4 Ghulam Fatima also failed in all the above three subjects, whereas Petitioner No. 5 Muhammad Zainaul Abdin failed in Anatomy and Physiology. The said petitioners also appeared in Supplementary Examination, 2011. In the Supplementary Examination Iqra Ejaz petitioner could not pass Physiology, petitioner Rukhe-e-Nanib Aftab remained unsuccessful in all subjects; petitioners Sahira Fayyaz and Ghulam Fatima remained unsuccessful in Bio-Chemistry, whereas petitioner Muhammad Zainul Abidin passed subject of Anatomy, however, could not qualify subject of Physiology. It is claimed that after obtaining necessary dues, all the petitioners were promoted in 2nd year MBBS by the concerned College. It is averred that without providing three chances as required by rules, the College authorities were determined to relegate the petitioners in Part-I MBBS, hence they were constrained to file the instant Writ Petition.
4. The writ petition has been resisted by the respondents through comments which were treated as written statement on request, of the learned counsel for the respondents, wherein it is stated that as the petitioners failed to implead PMDC as party, therefore, writ petition merits dismissal due to non-joinder of necessary party. It is further stated that the petitioners were allowed to appear in Annual and Supplementary Examinations, held in December 2011, January 2012 and March 2012, but they could not qualify all the subjects hence, have no locus-standi to file the writ petition. It is averred that due to failure of the petitioners to clear all the subjects in second attempt, they were liable to be relegated to their previous class, i.e. MBBS Part-I however, they are continuing their studies in Part-II on the basis of the Court order.
5. Brief facts of Writ Petition No. 110/12 are that petitioner Amna Aftab after passing entry test was granted admission in MBBS 1st year in Mohi-ud-Din Islamic University Medical College Mirpur. It is averred that she appeared in MBBS 1st year Annual Examination and failed in Anatomy, Physiology and Bio-Chemistry. She appeared in the Supplementary Examination, 2011 in above failed subjects and passed only Anatomy and remained unsuccessful in Physiology and Biochemistry. Petitioner Ali Riaz after entry test was granted admission in MBBS 1st year, who appeared in Annual Examination, 2011. It is averred that he appeared in all subjects, however, could not pass Physiology despite availing chances. It is alleged that both the petitioners, however, after obtaining relevant dues were promoted in 3rd year MBBS by the College authorities. As the respondents, due to failure of the petitioners to pass all the subjects of MBBS Part-I and Part-II First Professional) determined to revert them, hence they filed the instant petition.
6. The Writ Petition has been contested by the respondents through comments which were treated as written statement on the request of their learned counsel. It is stated that as the petitioners failed to implead PMDC as party in the line of respondents, therefore, writ petition merits dismissal due to non-joinder of necessary party. It is further stated that as both the petitioners appeared in Annual and Supplementary Examinations held in December 2011/January 2012 and March, 2012, however, despite appearance, they could not pass all the subjects, hence; they have no locus standi to file the writ petition. It is averred that a student who failed in any subject in Annual Examination, shall be allowed to attend next classes till Supplementary Examination. However, if he or she fails in Supplementary examination then he/she will be relegated to his/her previous class, hence prayed for dismissal of writ petition.
7. The learned counsel for the petitioners, Mr. Mushtaq Ahmed Janjua, Advocate while reiterating the grounds of writ petitions, submitted that as the petitioners were promoted in higher classes after obtaining necessary dues on the part of the College authorities, therefore, they cannot be reverted to their previous classes. The learned counsel further submitted that according to Prospectus of Mohi-ud-Din Islamic University Medical College, Mirpur, it was obligation of the respondents to provide the petitioners three chances to clear all the subjects, however, excluding the Annual Examination which cannot be counted in the chances. The learned counsel emphasized that the respondents may be directed to provide the petitioners three chances for the purpose of clearing the failed subjects by excluding the chance of Annual examination. The learned counsel in support of his contention referred to and relied upon the case titled 'Alaptagin v. Principal, Saidu Sharif Medical College and three others" (PLD 2004 Peshawar 307).
8. The learned counsel for respondents Sardar Abdul Hamid Khan, Advocate while controverting the arguments of the learned counsel for the petitioners, submitted that petitioners Iqra Eiaz and four others, were provided one chance of Annual Examination and another chance of Supplementary Examination, hence they will be granted one more chance of Annual Examination, 2012 for clearing the failed subjects, however, they cannot be allowed to study in MBBS 2nd part till clearance of failed subjects of MBBS 1st part. The learned counsel further maintained that as petitioners Amna Aftab and Ali Riaz were granted three chances, but could not clear all the failed subjects, therefore, under rules, they cannot be granted further chance for the purpose. The learned counsel vehemently argued that in third chance, Annual Examination is also included. The learned counsel while referring to Clauses 3 & 4 of Section (III) of the Pakistan Medical and Dental Council Regulations, 1998, submitted that as the petitioners Amna Aftab and another could not qualify the first professional examination in three chances, therefore, they cannot pursue further medical education according to the PMDC rules in any Medical College of Pakistan. The learned counsel in support of his contentions referred to and relied upon the case titled "Noor Muhammad Khan and 2 others v. Principal, Ayub Medical College, Abbdttabad and 4 others" (2003 at 753).
9. After hearing the learned counsel for the parties at great length, we have perused the contents of writ petitions and examined the record with our utmost care.
10. Before embarking upon the controversial points, it will be appropriate to reproduce Clauses 3 & 4 of Section (III) of the Pakistan Medical and Dental Council Regulations, 1998, which are as follows: Section III
(3) The first professional examination should be divided into two parts, each to be conducted by the university. Any student who fails to pass the first professional MBBS Part-1 and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical education in Pakistan;
(4) No student can be promoted to the higher classes unless he passes all the subjects of the previous classes."
Similarly Paragraph 8 of the Chapter titled "External Evaluation/ ' University Examinations" of Prospectus promulgated by the Mohi-udDin Islamic Medical College, Mirpur, is also relevant which is reproduced as under:- "(8) The students who fail to clear the First Professional MBBS examination in three attempts, availed or un-availed, after becoming eligible for examination shall cease to become eligible for further medical and dental education in Pakistan."
11. The Pakistan Medical and Dental Council (PMDC) has been constituted under Section 3 of the Medical Council Ordinance, 1962.
According to Section 3 read with Section 4 of the above Ordinance, PMDC consists of nominated and elected members headed by the President. It has been declared body-corporate having perpetual succession and a common seal. The combined study of various provisions of the Medical Council Ordinance and Schedule appended thereto leaves no room of doubt that PMDC is the only statutory body in the country vested with exclusive powers to recognize medical qualification taught by the Medical Institutions. Section 33(2) of the Ordinance empowers the Council to make Regulations, which shall inter-alia provide for:--
(a) "prescribing a uniform minimum standard of course of training for obtaining graduate and post graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing the conditions for admission to course of training as aforesaid."
12. According to Pakistan Medical and Dental Council Regulations. 1998 and Prospectus of the Mohi- ud-Din Islamic Medical College, Mirpur AJK, system of internal evaluation for medical/dental . studies has been explored wherein in the First Professional MBBS Part-I and Part-II, the students are required to take examination in Anatomy, Physiology and Biochemistry in theory and viva. However, it is worthwhile to observe here that both the subjects of Part-I and Part-II relate to one and the same field. The combined and careful reading of the entire scheme and courses of studies and pattern of examination provided for MBBS would show that First Professional (MBBS), which is described 1st Class, has been subdivided into two parts called Part-I and Part-II of the First Professional.
13. As observed in the earlier part of this judgment, PMDC being sole statutory body is empowered to provide broader principles of policies, criteria and standard for medical education in Pakistan which were admittedly adapted by the respondents. The Regulations, therefore, framed by it, are essentially to be adapted and applied by all the Medical Institutions. In the instant cases relevant regulations of PMDC and .Paragraphs of Prospectus of the Mohi-ud-Din Islamic Medical College, Mirpur, debar a student from promotion to the higher class only in case if he or she fails or does not qualify the papers of previous class. The word "Part or Parts" employed therein shall not be construed in a way that failure to qualify in Part-I would ipso facto disqualify a student to be promoted to Part-II of the First Professional. Therefore, it is our considered view that petitioners Iqra Ejaz and four others who are students of 1st year MBBS cannot be relegated on the ground of their failure in certain subjects in Part-I from move over and studying Part-II as statutory bar on the promotion of failed students is confined to from one class to other and not from Part-I to Part-II of the First Professional MBBS. Our this view is fortified from Full Court Judgment of the Peshawar High Court in case titled 'Alaptagin v. Principal, Saidu Sharif Medical College Swat and 3 others" (PLD 2004 Peshawar 307), in which it was held that:-- "As discussed in the earlier part of this judgment, PMDC being the sole statutory body empowered to provide broader principles of policy, criteria and standard for medical education in Pakistan, the Regulations thus framed by it are essentially to be adopted and applied by all the medical institutions operating elsewhere in Pakistan. In the instant case the relevant Regulations of PMDC debars a student from promotion to the higher class if he fails or does not qualify the papers of the previous class. The word/term "part or parts" employed therein shall not be construed in a way that failure to qualify in Part-I would ipso facto debar or disqualify a student to be promoted to Part-II of the first class (first professional).
In view of the above discussions when the two terms/words "Class" and "Part" have not been defined in the PMDC Regulations or in the rules then the proper course is to adopt the dictionary meanings which are considerably apart from one another in its meaning and effect. Both these words/terms do not signify one and the same thing nor these can be taken synonymous one. The statutory bar on the promotion of failed students is thus confined to from one class to the other i.e. from the low rung to the next rung of the same ladder and this would in no eventuality apply to a student who has failed or could not qualify the Part-I of the first professional (MBBS) hence he/she despite of failing in Part-I would be entitled to promotion to Part-II of the first professional (MBBS) because move over from Part-I to Part-II does not amount to promotion to a higher class. The view thus taken by the respondents on the strength of Rules 9 and 18 of the Prospectus read with Clause 3 of PMDC Regulation Section-IV is certainly misconceived one and could not he approved."
14. Against the above judgment of the Full Bench of the Peshawar High Court, Principal Ayub Medical College, Abbottabad, preferred CPLA No. 1992 of 2004 which was dismissed by the apex Court of Pakistan vide its judgment dated 13-11-2004. In para 5 of the case titled "Principal, Ayub Medical College, Abbottabad v. Miss Huda Waris Khan & others", it was held as under:-- "After hearing learned counsel for the petitioner at great length and examining the impugned judgment as well as the relevant Regulations and Paragraphs, discussed in the impugned judgment, we are firmly of the view that the interpretation placed by the Full Bench of the Peshawar High Court is in consonance with the spirit of the law makers. It is not disputed that the subjects prescribed in the -course of study for First Professional MBBS are actually the same but segregated in two parts for the sake of convenience of the students. These parts' have been termed as classes but virtually it is single course of study spread over two parts to be completed by each student within two years. There can be no cavil with the proposition that each MBBS student is required to clear all the subjects prescribed for Part-I and Part-II of First Professional MBBS before being promoted to 3rd year MBBS. Nevertheless, the fad remains that there is no legal impediment in allowing an student, who fails to clear all the papers prescribed for Part-I of the examination for being allowed to attend the classes of Part-II and to qualify in all papers at the end of the year in annual or supplementary examination. There is none denying the fact that Pakistan Medical and Dental Council is the supreme statutory body empowered to lay down the principles of policy, criteria and monitor the higher standard in medical education in Pakistan and the Regulations framed by it are binding on all Medical Colleges across the country. However, paragraphs 8 & 18 of the prospectus relating to eligibility 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 Regulation IV of the Pakistan Medical and Dental Council Regulations bars a student from being promoted to third year MBBS class without passing the First Professional MBBS 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 MBBS even if he has failed to qualify a subject in Part-I"
15. Respectfully following the above precedent we can safely hold that petitioners Iqra Ejaz and four others being students of MBBS part-II shall not be reverted to MBBS Part-I on the ground of their failure to qualify certain subjects of Part-I who will be granted three chances for the purpose of passing the failed subjects including Annual Examinations. Similarly petitioners Amna Aftab and another, who were promoted to MBBS 3rd year shall also be provided three chances for the purpose. However, their promotion in 3rd year MBBS was against the provisions of Section III (4) of Pakistan Medical and Dental Council Regulations, 1908. The said 'petitioners can be relegated to MBBS till availing the facility of third chance for the purpose of clearing the failed subjects. The contention of the learned counsel for the petitioners that an Annual Examination cannot be included in three chances is baseless which is hereby turned down.
16. The contention of the learned counsel for the respondents that petitioners Amna Aftab and Ali Riaz have already availed three chances, hence they cannot be granted any further chance to clear failed subjects, who ceased to pursue further medical education, is misconceived and is hereby repelled. The contention of the learned counsel is against the principle of pleadings. A perusal of para 2 of written statement filed by the respondents reveals that both the above petitioners were granted two chances Annual and Supplementary Examinations held in December 2011/January 2012 and March 2012. Even for our own clarification, we solicited report from the College authorities. According to the report duly signed by Brig (R) Liaqat Ali Khan, Vice Principal of Mohi-ud-Din Islamic Medical College, Mirpur dated 22-10-2012, both the petitioners were granted two chances to clear MBBS Part-I and II of First Professional, hence still they are eligible to study medical education till facilitation of one more chance of Annual Examination, 2012.
17. The nub of the above discussion is, that Writ Petition No. 1135/12 titled "Iqra Ejaz and 4 others v.
Mohi-ud-Din Islamic University and others" is accepted and respondents are hereby restrained from relegating the said petitioners in MBBS Part-I, who shall be provided one more chance for clearing the failed subjects. However, Writ Petition No. 110/12 titled "Amna Aftab and another versus Mohi-ud-Din Islamic University and others" is partly accepted in the manner as indicated in para 15 above of the instant judgment.