M. TABASSUM AFTAB ALVI, J.---The captioned writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of Assessment Policy Faculty of Health and Medical Sciences, made by Board of Studies. University of Azad Jammu and Kashmir, Muzaffarabad, dated 08th November, 2012, has been challenged for having been issued as without lawful authority. A further direction in the nature of mandamus is also solicited against respondents Nos,1 and 2 to act upon order of the Chancellor dated 15th August, 2016 and add marks obtained by petitioners in internal re-assessment in their Supplementary Examination, 2015, as submitted by Medical College, Muzaffarabad.
2. The summary of the case is that petitioners are regular students of MBBS 2nd year in Medical College, Muzaffarabad, affiliated with University of Azad Jammu and Kashmir, governed by Pakistan Medical and Dental Council. It is stated that Pakistan Medical and Dental Council- respondent No,5, is a supervisory and regulatory body for medical and dentistry education in the country, which is empowered to frame Policy, Statutes, Rules and Regulations. It is claimed that all Medical Colleges are bound to adapt Policy, Statutes, Rules and Regulations framed by the said Council and no Medical College or University can frame any Policy etc. Contrary to Pakistan Medical and Dental Council. It is maintained that petitioners appeared in MBBS 1st Professional Annual Examination Part-I, under Roll Nos,70 and 02 respectively, held in November and December, 2015. The result of above mentioned examination was announced and petitioner No,1, was declared as fail in subject of LMR Module Block-II, while petitioner No,2, was failed in CMB & LMR Module Block-I, as well as, RES & CVS Module Block-II respectively. It is stated that petitioner No,1, due to accident of his elder brother, blockage of roads and heavy rain could not appear in internal assessm ent of LMR Module Block-II in July 2015, while petitioner No,2, was hospitalized in Al-Shifa International Hospital Islamabad, hence, she also could not appear in the said internal assessment in Modules Block-I and Block-II. The petitioners along with others took up the aforesaid issue with the Medical College-respondent No,4, hence, before commencement of Supplementary Examination, 2015, the said respondent took internal re-assessment examination from petitioners, as well as, students of MBBS 2nd and 3rd years and then sent result to Controller Examinations- respondent No,2, for adding marks in their Supplementary Examination, 2015. Meanwhile, petitioners also appeared in Supplementary Examination, 2015, however, they were again declared as fail because marks obtained by them in the internal reassessment were not added in the preparation of their Supplementary result. The petitioners submitted applications before Controller of Examinations-respondent No,2, regarding review of the result, who were apprised that according to regulation made by Board of Studies- respondent No.3, internal re-assessment was not permissible, therefore, marks obtained by them could not be added in their Result Intimation Cards.
It is stated that marks of internal re-assessment pertaining to 2nd and 3rd years MBBS students were added by respondents Nos.1 and 2, however, petitioners were discriminated against vis-a-vis to basic provisions of Interim Constitution Act, 1974. It is further claimed that on application of petitioners the Chancellor of University also directed to revise their result according to PM&DC Rules and recommendations of Medical College, Muzaffarabad, however, needful was not done. It is maintained that the impugned regulation of Board of Studies had been issued by violating Statute 5.13.6 of Curriculum (Statutes) of Pakistan Medical and Dental Council, 2011, hence, the instant constitution petition.
3. The writ petition has been resisted by respondents Nos.1 to 3 through written statement filed on 18th November, 2016. It is stated that petitioners invoked jurisdiction of this Court with unclean hands, hence, they are not entitled to any relief. It is further averred that letter addressed by respondent No.4, to Vice Chancellor, is an attempt to sabotage the transparency of tabulation of result and the same is an outcome of afterthought to extend undue favour to petitioners. It is maintained that decision of Board of Studies made in its meeting held on 4th August, 2016, as well as its policy, did not provide any favour to petitioners, hence, submitted for dismissal of writ petition.
4. The Azad Jammu and Kashmir Medical College, Muzaffarabadrespondent No.4, has filed separate written statement on 18th November, 2016. It is averred that petitioners attended remedial classes and made up their deficiencies who were declared pass by the College in internal reassessm ent of disputed Modules, however, Controller of Examinations-respondent No.2, did not add the marks of the said internal reassessment in Supplementary Examination, 2015 and declared them as fail. It is further stated that students of 2nd year and 3rd year MBBS, having similar cases, were declared as pass by the said respondent No.2, by adding their internal re-assessment marks.
It is maintained that answering respondent has got no objection to declare petitioner as passed in their Supplementary Examination, 2015, on the basis of one time waiver.
5. The Pakistan Medical and Dental council-respondent No.5, has also filed separate comments/written statement on 27th November, 2016, and stated that Rules framed under Section 33 of PM&DC Ordinance, 1962, are binding on all institutions. The contents of writ petition, however, have not been controverted by the aforesaid respondent.
6. Kh. Imtiaz Ahmed, the learned counsel for petitioners strenuously argued that Clause-VI of Assessm ent Policy, for internal assessment, framed by Board of Studies-respondent No.3, is against statute 5.13.6 of Curriculum (Statutes) of MBBS, 2011, promulgated by Pakistan Medical and Dental Council. He further argued that Board of Studies-respondent No.3, has got no authority as per clause (f) of subsection (2) of Section 21 of the University of Azad Jammu and Kashmir Act, 1985, to frame any regulation, hence, the impugned regulation is liable to be quashed. He further maintained that for valid reasons internal re-assessment was allowed by Medical College, in which petitioners and all other similar students of 2nd year and 3rd year MBBS had appeared, however, only petitioners were deprived of from marks of re-assessment, whereas, other students of 2nd year and 3 year were allowed marks of the said re-assessment. The learned counsel pressed into service that in accordance with provisions of Section 4(15) of the Interim Constitution Act, 1974, petitioners could not be discriminated against, hence, the omission of University authorities is accordingly bad in 'law. The learned counsel argued that petitioners were promoted in MBBS 2nd year who are likely to appear in examination of the aforesaid higher class, therefore, by setting aside the impugned regulation respondents Nos.1 to 3, be directed to add marks of internal reassessm ent of his clients like other students and issue their fresh Supplementary result. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Azad Government and 2 others v. Syed Tayyab Gilani and 14 others [2009 SCR 415]; ii. Muhammad Younas v. Azad Government and 3 others [2010 SCR 271]; iii. Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others [2003 PLC (C.S.) 1537]
7. Mr. Farooq Hussain Kashmiri, the learned counsel appearing on behalf of respondents Nos.1 to 3 vehemently argued that result of petitioners was announced on 09th February, 2015, in which they failed in subjects of RES & CVS, CMB & LMR, RES & CVS Modules respectively. He contended that Supplementary result of petitioners was also announced on 20th, June, 2016, therefore, petitioners were not entitled to marks of internal re-assessment. He emphasized that regulation of Board of Studies is not in favour of petitioners, therefore, no relief can be extended to them under law. The learned counsel, however, on Court query admitted at Bar that students of MBBS 2nd year and 3rd year were granted marks of internal re-assessment as their result was not announced, hence, craved for dismissal of writ petition.
8. Ch. Zafar Mehmood, Advocate, appearing on behalf of respondent No,5, does not oppose the writ petition and submitted that policy of Pakistan Medical and Dental Council, is binding on University authorities as per law.
9. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the appended documents made available with utmost care. The petitioners are regular students of MBBS in AJ&K Medical College, Muzaffarabad, affiliated with University of Azad Jammu and Kashmir. As per record petitioners appeared in MBBS 1st Professional Annual Examination Part- I, under Roll Nos,70 and 02 respectively, held in November-December, 2015. The result of above mentioned examination was announced and petitioner No,1, was declared as fail in LMR Module Block-II, while petitioner No,2, was failed in CMB & LMR Module Block-I and RES & CVS Module Block- II. The stance took by petitioners, before Medical College was that petitioner No,1, due to accident of his elder brother, blockage of roads and heavy rain could not appear in internal assessment of LMR Module Block-II in July 2015, while petitioner No,2, was hospitalized in Al-Shifa International Hospital Islamabad, hence, she also could not appear in the said internal assessment exam in Modules Block-I and Block-II respectively. The petitioners along with other similar students took up the aforesaid issue with the Medical College-respondent No,4, hence, before commencement of Supplementary Examination, 2015, the said college took internal re-assessment examination from petitioners pertaining to the aforesaid subjects, as well as, from students of MBBS 2nd and 3rd years and then sent result to Controller Examinations respondent No,2, for adding the same in marks of their Supplementary Examination, 2015. Meanwhile, petitioners also appeared in Supplementary Examination, 2015, which was held in March, 2016, however, they were again declared as fail because marks granted to them in the internal re-assessment, by Medical College-respondent No,4, were not added in their Supplementary result. The petitioners submitted applications before Controller of Examinations-respondent No,2, regarding review of their result, who were apprised that according to regulation made by Board of Studies-respondent No,3, internal reassessm ent was not permissible, therefore, marks obtained by them could not be added in their Supplementary Examination, 2015. In the given eventuality, petitioners constrained to challenge through the instant constitution petition vires of the impugned regulation C(vi) of Assessm ent Policy Faculty of Health and Medical Sciences, 2012, issued by Board of Studies respondent No,3, on 08th November, 2012, which is reproduced as follows:-- "(vi) The marks of internal assessment shall be submitted only once a year prior to annual examination and the same shall be counted both for annual and supplementary examinations. It is further emphasized that fresh assessment or a revision of assessment for supplementary examination shall not be permissible."
' The relevant statute 5.13.6 of Curriculum (Statutes) of MBBS, 2011, of Pakistan Medical and Dental Council speaks as under:-- "5.13 Assessments and Examinations:
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6. Remediation and Re-sit Examinations. There should be opportunities for remediation and re-sit examinations for the summative component of continuous assessment and end-of year assessm ents.
7. ........."
10. A bare reading of the impugned regulation C(vi) of Assessment Policy, 2012, supra issued by Board of Studies-respondent No,3, reveals that fresh assessment or revision of assessment shall not be permissible. However, as per Curriculum 5.13.6 of PM&DC, 2011, continuous assessment of MBBS students are permissible, hence, the impugned regulation of the Board of Studies, is contrary with curriculum of Pakistan Medical and Dental Council, therefore, the same is liable to be struck down as such.
11. Even otherwise according to clause (6), subsection (2) of Section 21 of the University of Azad Jammu and Kashmir Act, 1985, Board of Studies-respondent No,3, is having no authority under law to promulgate regulations, which is reproduced as under:-- "21. Powers and Duties of the Academic Council.
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(f) to make Regulations, on the recommendations of the Boards of Studies, prescribing the courses of studies and the syllabus for all University examinations; Provided that, if the recommendations of a Board of Studies are not received by the prescribed date, the Academic Council may subject to the approval of the Syndicate continue for the next year the courses of studies already prescribed for an examination;
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(k) -------------------; The Board of Studies, therefore, as per law can only make recommendations, however, Academie Council, enjoys powers to make Regulations. The aforesaid position has been admitted by respondents Nos, 1 to 3 in their written statement filed on 18th November, 2016.
12. Admittedly impugned regulation was issued by Board of Studies, which has yet not been approved by Academic Council, therefore, on the basis of the impugned regulation, petitioners could not be deprived of from the marks of internal re-assessment who attended remedial classes and made up their deficiencies as per PM&DC curriculum.
13. The petitioners specifically pleaded in paragraph No,4 of memo of writ petition that along with them, various students of MBBS 2nd year and 3rd year also appeared in re-assessment examination who were granted marks by Controller of Examinations-respondent No,2, however, marks of petitioners were not added. The respondents Nos,1 to 3 have not denied the aforesaid assertion of petitioners in their written statement. The learned counsel for University authorities admitted at Bar that students of MBBS 2nd year and 3rd year were granted marks of re assessment on the ground that their result was not announced, while petitioners could not be extended the aforesaid benefit as their result was already announced. The claim of University authorities is ex- facie contradictory. On the one, hand, it is asserted by the University authorities that the impugned regulation of Board of Studies was not allowing them to add marks of internal re-assessment of petitioners and on the other hand they themselves granted the marks of re-assessment to students of MBBS 2nd year and 3rd year respectively. The omission of Controller of Examinations- respondent No,2, is therefore, hit by section 4(15) of the Azad Jammu and Kashmir Interim Constitution Act, -I974, which postulates that all State subjects are equal before law and entitled to equal protection of law. As per my humble view, petitioners were unlawfully discriminated against from the marks of re-assessm ent who are entitled to equitable relief of writ jurisdiction.
14. The crux of above discussion is that by accepting the instant writ petition the impugned regulations C(vi) Assessm ent Policy Faculty of Health & Medical Sciences, issued by Board of Studies-respondent No,3, approved in its meeting held on 8th November,. 2012, is hereby declared as without lawful authority, hence, having no legal effect. The respondents Nos,1 to 3 jointly and severally are directed to add marks of petitioners obtained by them in internal re-assessment examination, as submitted by Medical College-respondent. No,4, and issue Supplementary Result Intimation Cards to them afresh forthwith. The costs shall follow the eventuality.