' KHALID MAHMOOD, J.--Zahoor Hussain Shah petitioner seeks the constitutional jurisdiction of this Court praying for-- "that on acceptance of this writ petition, the respondents may graciously be directed to allow imagination held eligible to continue his medical education to fulfil the dreams of his parents and to protect his life and future which is without prejudice to the rights of any of the individuals, keeping in view the directions/decisions made by this Honourable Court as well as the Honourable apex Court in identical circumstances".
2. As per contents of writ petition, petitioner joined MBBS Part-I and appeared in Annual Examination (Sessions 2009) but dropped the paper of Anatomy due to serious illness of his mother and was marked absent in the said paper. However, he was promoted to MBBS 1st Prof: Part-II and his examination form for appearing in the paper of Anatomy were sent but again could not manage to appear in the examination due to serious illness of her mother. Petitioner after completing the course of MBBS Part-II appeared in the Annual Examination of 2010 and he also appeared in his failed paper of Anatomy (Part-I) again once again was declared "fail" in the paper of Anatomy. Thereafter the respondents sent the examination forms of petitioner for appearing in the Supplementary Examination held in February, 2011 but petitioner again could not manage to appear in the examination and declared fail to qualify his 1st Prof: MBBS Part-I examination in 4 chances and ceased to be eligible for further Medical Education and name of petitioner was also struck off from the college roll. Petitioner challenged the illegal and discriminatory act of respondents by way of filing writ petition, which was withdrawn and petitioner filed civil suit, which too was withdrawn. Again petitioner filed another writ petition and petitioner appeared in the paper of Anatomy under the Court order, which was dismissed on 20-3-2012. However, petitioner was declared pass in the paper of Anatomy by securing 344 marks. Petitioner requested the College authorities to allow him to continue his medical education in MBBS 2nd Prof 3rd Year but to no avail.
Hence, this writ petition.
3. Learned counsel for petitioner argued that the act of respondents is against the Rules and Regulations framed by PM&DC as well as the decisions of August Court as petitioner has availed four chances and further one chance is still left with the petitioner. Learned counsel for petitioner argued that petitioner could not be able to clear the subject of Anatomy of Part-I due to severe illness of his mother and the acts of respondents being against law and contrary to natural justice are liable to be set aside and respondents be directed to allow imagination held eligible to continue his medical education to fulfil the dreams of his parents and to protect his life and future.
4. On the other hand, learned counsel for respondents opposed the contentions of petitioner and argued that petitioner has intentionally did not in appear in the paper of Anatomy, whereas he participated in other papers and has availed the available chances.
5. Arguments. Heard and record perused.
6. Admittedly, the petitioner has availed four continuous chances but could not succeed. The relevant conditions "f" & "g" of the Eligibility and Rules for Examination provided in the Prospectus for N.-W.F.P. Medical/Dental Colleges 2008-2009 read as under:- "f Any student who fails to clear the 1st Professional MBBS Part-I examination in FOUR chances availed or un availed after becoming eligible for the examination, shall cease to become eligible for further medical examination in Pakistan. g. Any student who fails to clear 1st Professional MBBS Pan-11 examination in FOUR chances availed or un availed after becoming eligible for the examination, shall cease to become eligible for further medical examination in Pakistan." h. Maximum of four chances availed or un availed will be allowed to a student to clear First Professional BDS Examination. If a student fails to pass First. Professional BDS in stipulated FOUR chances, his/her name will be struck off from the college. He/she will be considered ineligible (to undertake) BDS studies anywhere in the country.
7. The theme behind the policy is to evaluate the tendency, aptitude, ability and compatibility of a student, whether he is competent to carry on the study of a medical student. In this regard dictum laid down by the Apex Court in case of Miss Asnta Ghafoor v. Principal, King Edward College, Lahore reported as 2011 SCM R 1311, it is held as under:-- "Failure of petitioner to qualify first professional MBBS examination within prescribed four chances- --Refusal of College to give further chance to petitioner to appear in such examination--Validity- --Petitioner was admitted to first year about eight years ago, but could not qualify such examination within four chances--- Petitioner appeared not to be interested to continue her studies in Medical College--- Factual controversy between parties could not be resolved without elaborate inquiry Impugned action was in accordance with rules and regulations of the College-- -Constitutional petition was rightly dismissed in circumstances".
8. This Court has allowed the petitioner to attend the classes at his own risk and costs on 17-7-2012.
Petitioner has already cleared his Anatomy paper in consequence of the court order. Now grievances of the petitioner are that under the PM&DC Rules and the law laid down by the Apex Court in Ms Asma Ghafoor's case has already held that a student, who failed in 1st and 2nd Professional in FOUR chances cease to become eligible for further medical examination. Petitioner seeks indulgence of this court on the ground that as petitioner under the order of the Court has passed Anatomy (Part-I) paper, hence, he is eligible to appear in the forthcoming examination. In this respect petitioner relied upon judgment of this Court delivered in case of Mst. Maleena Alum Writ Petition No,1399 of 2005 but in that case it was clearly mentioned that the same will be applicable to the referred case only.
9. Counsel for the respondents cited the case of Ali Yousaf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others reported as 2000 SCM R 1222, wherein it was held as under:-- "Failure of medical student to pass first professional MB. B. S. Examination in four attempts--- Contention by student that she. Had fallen sick, but despite her illness she appeared in the examination and failed to qualify the same Validity---Right to seek admission in an educational institution and to continue studies therein was always subject to the rules of discipline prescribed by the institution, and therefore, a student who intended to pursue his studies in the institution was bound by such rules---Rule of passing first professional MB. B. S. Examination in four attempts did not infringe upon right of a student to pursue his studies in medical college on the contrary it ensured arrest of falling standards of education in the institutions and there was no arbitrariness and unreasonableness in the rule."
' It was further held:- "Studies in medical college---Qualifying examination under interim order passed by High Court-- -Validity---Interim order allowing the candidate to appear in the examindtion was subject to the condition that the candidate might appear at his own risk and subject to final decision of the case on merits---Where High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to the candidate in circumstances".
10. In the instant case, admittedly, the petitioner having availed four prescribed chances could not clear his First Professional M.B.B.S. Examination and in view of the laid down in the above referred case and the rule of the PM& DC, no benefit can be extended to the petitioner to continue his studies, as he has passed subsequently the paper of Anatomy under the' order of Court but on his own risk continued the study. Whereas under the rules and the law laid down by the Apex Court petitioner is not found eligible to avail 5th chance and cannot continue his studies as a medical student.
11. Consequently, this writ petition being bereft of merit is hereby dismissed.