' MOHAMMAD IBRAHIM KHAN, J.---By, imploring and invoking the constitutional jurisdiction of this Court, Ms. Raheesa Zeb herein the petitioner pray for:-- "i) Declare the impugned office order No,2217/SAS/KGMC dated 03.03.2016 issued by respondent No,2 and the acts of respondents particularly respondent No,5 as unlawful, illegal and harsh. Ii)
Direct the respondent No,5 to allow to accept the application of the petitioner for re- totaling/recounting thereby adding her 5 and 7 marks of OSPE section that was - left inadvertently or due to some omissions/oversight from adding in her result and issue fresh DMC declaring her pass in the subject of physiology. Iii) Direct the respondent No,2 to forthwith withdraw the impugned notification, promote the petitioner to 3rd professional/3rd year MBBS and allow to attend the class of the same."
2. Laconic facts avow, she was admitted as a regular student in session 2012/13 in the Ist professional MBBS against the reserved seats for foreign self finance under registration No,2012/KMU/KGMC/74. On promotion to MBBS 2nd professional examination she was pounded grievously and remained unsuccessful in clearing the MBBS 2nd professional examination in three chances because of unpleasant homey worriments. The last chance under Roll No, 1499 issued by Khyber Medical University of Peshawar enabling her to appear in session 2015 examination despite burning the midnight oil in revising the entire course believing positively for first-rate result. This final chance posed rotten luck on learning through the detailed marks certificate (DMC) and thereafter the office order No,2217/SAS/KGMC dated 03.03.2016 issued by the Principal/Dean Khyber Girls Medical College, whereby her name was struck off from the College roll as an unsuccessful candidate for having failed in viva (OSPE) in subject of physiology (just by 5 & 7 numbers).
3. The matter was taken up with Head of Department of Physiology respondent No,3, who then after confirmation from record apprised her to have passed OSPE (station 5) by 3 and (station 7) by 4 numbers thereby with total 31 marks. The respondent No,3 in compassion then addressed the controller of examinations, his letter bearing No,23/ physiology/KGMC dated 07.03.2016 which was further endorsed to the said office by respondent No,2 vide office letter No,2407/Estt/KGMC dated 09.03.2016.
4. The grievance of the petitioner is that once the respondents Nos.2 and 3 admitting their over responsibility that award of marks 0 (zero) of station 5 and 0 of station 7 are inadvertently entered or perhaps on account of error in preparation of the OSPE result while need to be rectified there by the respondent No,5 is under compulsion to be bound down to allow the application of the petitioner for re-totaling/recounting by adding or substituting with the marks under the corrected OSPE result of station 5 and station 7 to be read as 3 and 4 marks instead of 0 and 0 respectively.
5. We have heard learned counsel for petitioner, respondents 2 and 5 with vehemence and with their valuable assistance gone through the record.
6. Learned counsel for the petitioner while developing his arguments admonishes the roll of respondent No,5 that when respondent No,3 has honestly admitting his inadvertence false move of wrong entries of marks awarded pertaining to station 5 and station 7 of overall OSPE result and the acknowledgement has been duly forwarded through the Dean (respondent No,2) communicated to respondent No,5 then when Rules and Regulations provide a thing to be done in a certain manner it ought to be done in that manner. Even otherwise when a student is not at fault rather the mistake or error been committed by teacher and examiner, therefore, students shall not suffer for the same, hence the respondent No,5 is imperatively bound to admit by correcting the entries in the OSPE result sheet for the substituted marks. The petitioner be declared successful and on doing so, the respondent No,2 shall withdraw by recalling the office order No,2217/SAS/KGMC dated 03.03.2016 while the interim relief dated 14.06.2016 of this .Court to merge in by acceptance of this petition. Reliance is placed W.P. No,2692/2011 (Decided on 26.08.2013).
7. Learned counsel for respondents Nos.2 and 3 is conciliatory with the above arguments, however learned counsel for respondent No,5 has afforded tough time in repelling the arguments.
8. Let us clarify in very lucid words that grant of relief in writ jurisdiction being entirely discretionary with the High Court. The Judges are certainly to act in aid of justice while accepting or refusing any relief A and every care and caution to be taken for granted in arriving at a correct conclusion either in acceptance or dismissal of writ petition under the prayer pry into.
9. The petitioner by and by on coming to know of announcement of 2nd professional examination result corresponded to the Head of Physiology Department respondent No,3 who after taken of good turn responded vide his letter No,23/Physiology dated 07.03.2016 which was further communicated vide letter No,2407/Estt/KGMC dated 09.03.2016 by respondent No,2 (Principal/Dean KGMC) consciously that the petitioner had already been rusticated, her name struck off and so ceased to be eligible for further medical education in Pakistan vide office order dated 03.03.2016.
Thereafter on 16.03.2016, the petitioner applied for rechecking/retotaling for practical/viva marks.
10. There are dressed Rules and Regulations governing re-checking and re-evaluation of Answer Books only where there is indicatively bar put to practical exams or viva voce. Rule VII is in specific applicable to the present version of petitioner prayer. This reads "The above rules will not be applicable to practical exam or viva voce where no re-evaluation will be allowed."
11. Unvarying otherwise in compilation of the OSPE Award lists, when are placed in juxta posed, the great Head of Physiology. Department KGMC while awarding 0 (Zero) marks to the petitioner per station 5 then added 3 marks in erstwhile Award list and likely marking 0 (Zero) at station 7 then adding 4 marks in the later OSPE Award list also generously and compassionately added .5 marks to Roll No,1500 at station 6' but has not added to its total marks. Another case in point is of Roll No, 1502 where at station No,7 of the later Award list .5 marks have been added with no rationale leaving behind room for skepticism.
12. The culture of seeking award of added marks in the OSPE AWARD LIST is against the settled principles of good governance and when it is for imparting medical education where doctors are very important moiety of our society who deal with precious lives, so every discreetness to be adhered to.
13. The Honourable Apex Court had time and again emphasized that High Court when confronting with matters pertaining to educational institutions coming up in constitutional jurisdiction are justified in refusing reliefs until grave injustice was made out, lest the University authorities will feel difficulties to run its internal affairs relating to examinations so much so in 2016 SCM R 134 (University of Health Science Lahore v. Arsalan Ali and another) based on wisdom contained in 2005 SCM R 961. "it is a settled law that in matters of admission and examination in educational institution, the University authorities concerned are the role edges of the criteria laid down in prospectus. The Courts in such matters desist from interfering due to the reason that it would create difficulties for the said institutions to run its affairs in an appropriate manner according to their rules and regulations."
14. Where its at, we are of the considerable view that when the respondent No,3 has already communicated the petitioner that her name was struck off from the College Roll as an unsuccessful candidate for having failed in viva (OSPE) in subject of Physiology so much so by availing four chances, hence ceased to be eligible for further medical education in Pakistan and that office order dated 03.03.2016 was issued to this effect, thus no locus standi to have addressed the Controller of Examinations (respondent No,5) in this behalf thereupon functus officio. The OSPE Award List under secrecy No,042 is a secret document which shall not be accessible to students or anyone representing nor its re-examination be allowed in any circumstances even the High Court is not expected to undertake in exercise of its powers of judicial review under Article 199 of the Constitution, therefore, directives to be given to respondent No,5 under prayers are inconsiderable.
15. This petition has no merit and is dismissed accordingly.