1. ZULIFQAR AHMAD KHAN, J.---Through instant petition Petitioner seeks an order from this Court directing Respondents University of Karachi, Controller of Examination and the Dean of the Faculty of Medicine, University of Karachi to rectify the mistake and make correction in the result of the Petitioner by declaring her pass and also direct the Respondent to allow the Petitioner to attend the next higher class of the MBBS.
2. Counsel for the Petitioner contends that the Petitioner participated in MBBS First Professional Part-B Annual Examination 2014 and she was declared "Fail" in Theory as well as Practical of "Bio Chemistry". Thereafter she attempted the Theory as well as Practical of Bio-Chemistry in Supplementary Examination, 2014, wherein, she was passed so far as the Theory concerned but in Practical she was declared "Fail". According to the Petitioner heavy bribe was demanded by blackmailing her and since it was her last attempt therefore, if she would not acceded to the such demand she would again be failed.
3. On the other hand learned DAG as well as Syed Mehmood Alam Rizvi, learned counsel appearing for Karachi University contends that the Petitioner has concealed her first two unsuccessful attempts and since she has availed the maximum number of attempts, therefore, she was not allowed in the next commencing examination. Petitioner or her counsel were not able to dispute the fact that the Petitioner has made four attempts for MBBS First Professional Part-B as per following details:-- Attempt Seat No ExaminationResult First 132020 Annual - 2013Absent Second 132020 Supple - 2013Fail Third 141036 Annual - 2014Fail Fourth 141036 Supple - 2014Fail Mr. Rizvi also submitted a copy of the PMDC letter of June 2007 wherein it was stated that a maximum of four chances (each in Part-I and Part-II) of the First Professional of MBBS Examination (whether appear or not) are allowed to a student. Since the petitioner has already availed four chances in Part-I, the counsel contended that she has become ineligible to continue further MBBS Course and there is no legal possibility to provide her with another opportunity, thus she has to be removed from the University. In support of this contention the learned counsel places reliance on 2000 CLC 1097, 2008 CLC 1449, 2011 YLR 1838, 2005 YLR 1462 and 2012 M LD 392 of the Hon'ble High Courts and 2000 SCM R 1222, 2001 SCM R 1506 and 1994 SCM R 532 of the Apex Court.
4. To the contrary, the counsel for the petitioner and the petitioner herself pleaded that it is a matter of her future and by giving another opportunity, courts can save someone's career and imminent livelihood: The petitioner prayed that it would be extremely harsh for her if she is asked to leave the college as she has only come to Karachi from a far-flung area for the purposes of pursuing MBBS.
5. Since she finally only failed in viva voce, the College knew that it is her last chance, the Petitioner alleged that she was asked a hefty gratification to pay if she wanted to pass her viva voce. Since the petitioner was well confident of her performance, she declined to be a party to any such illegal plan. Result being that she has been deliberately failed in the viva voce.
6. With regards the humanitarian prayer, the petitioner was cautioned that Courts cannot grant relief to a party on humanitarian grounds contrary to law and any direction of the nature sought in the prayer for correction of the mark sheets by the Courts would be transgression of the provision of the rules and the Court cannot be a party to direct the student to blatantly disobey regulations, which would be destructive of the rule of law.
7. With regards merits, before we embark upon making a decision in this matter, it would be prudent to seek guidance from the earlier decisions made in similar circumstances by the Apex Court, in respect of a student who has exhausted maximum number of attempts permissible in respect of his/her MBBS Professional Examination.
8. Following is a summary of such cases:--I. 1994 SCM R 532 Akhtar Ali Javed v. Principal. Quaid-e- Azam Medical College Bahawalpur In the instant case, the student failed to qualify/clear the First Year MBBS Examination after making four attempts, the Apex Court held that whether he availed or not availed the given four attempts, the student was not entitled to continue his studies any farther. The Apex Court upheld the decision of the Medical College, Bahawalpur, holding that the decision does not infringe upon the right of the student to pursue his studies. The Court, even went to say that the College should not allow any additional attempt to the students in order to arrest the falling standards of education in the college. Since the Appellant had already been allowed five chances (one more chance by the order of the High Court) out of which he did not avail one and in spite of four attempts, and Appellant still failed to qualify the First Professional Examination, thus he was not entitled to ask for a further chance to pass the Examination.
2. 2000 SCM R 1222 Ali Yousuf v. Chairman Academic Council In this case also, the student failed the first professional MBBS Examination in four attempts, alleging that she had fallen sick, but despite her illness she appeared in the Examination and failed to qualify the same. The Apex Court held that the right to seek admission in all 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.
9. Bound by such Rules. Since there is a Rule of passing first professional MBBS Examination in four attempts, the said Rule in no way infringes upon right of the student to pursue his/her studies in medical college and there was no arbitrariness and unreasonableness in the said Rule.
3. 2001 SCM R 1506 University of the Punjab v. Mst. Samea Zafar Cheema In this case the student failed to pass M.B.B.S. First professional examination in four chances and raised the plea of her illness and High Court in exercise of Constitutional jurisdiction allowed the candidates to be provided another chance by holding that where a chance was not availed deliberately the candidate could not take advantage of his/her own unbecoming act of omission or-commission to nullify the effect of the rule, however, if the same was due to reasons beyond the control of the candidate, then that would fall within the ambit of the term unavailed. The Apex Court did not concede to this view and held that four chances being more than enough to clear First Professional M.B.B.S. Examination but where a candidate failed to do so, the reasonable conclusion would be that the candidate had no aptitude for medical education.
4. 2011 SCM R 1311 Miss Asma Ghafoor v. Principal, King Edward Medical College, Lahore The student having failed to qualify first professional MBBS examination within prescribed four chances was refused by the College to give further chance to appear in the examination and filed a writ petition against the College. The Court held that petitioner was admitted to first year about eight years ago, but could not qualify such examination within four chances thus appeared not to be interested to continue her studies in the medical college. Notwithstanding factual controversy between the parties, Court held that the impugned action of the College was in accordance with rules and regulations, thereby the constitutional petition was rightly dismissed in the circumstances.
10. In view of hereinabove facts and the dictum provided by the Apex Court in such circumstances, we are also of the view that the petitioner who has attempted to pass first professional of MBBS Examination in four attempts and still could not qualify within these four chances, appears not to be interested to continue her studies in the medical college nor has the required aptitude needed for the subject, thereby has very little likelihood to complete the four year long course.
11. As the rules provide for a maximum of four chances of the First Professional of MBBS Examination (whether appear or not) to a candidate and the petitioner has made four attempts and still did not pass the said examination, we therefore do not find any illegality in the acts of the respondents giving petitioner the right to invoke writ jurisdiction of this court.
12. This petition is therefore has no merit and dismissed.