Mohammad Azam Khan, C.J.-Titled three appeals, by leave of the Court, arise out of the single judgment of the High Court dated 31.12.2015. As identica l question of law and the facts is involved in the case, therefore, all the appeals are being decided through the proposed single judgment.
2. The appellants got admission in MBBS in the Mohi-ud- Din Islamic University Medical College Mirpur Azad Jammu and Kashmir in November/ December , 2013.They participated in first professional examination, held in February/March, 2015. Saima Noor , Ayesha Rauf, Zoya Akhter , Seema Bashir and Faiza Kiran the appellants in Civil Appeal No.16/16, were failed in one subject i.e. physiology . Shiza Butt, the appellant in Civil Appeal No.17/2016 failed in the subject of Physiology . Naveeda Aslam, Salwa Shakeel, Muhadisa Laraib, and Mehr-un- Nisa, the appellants in Civil Appeal No 18/16, were failed in two subjects i.e. Physiology and Biochemistry , while Jamal Pervaiz, Mansoor Elahi Kiyni, Muhammad Hassan Talal were failed in three subjects i.e. Anatomy , Physiology and Biochemistry and Ahmed Mahsood, Nasir-ud-Din were failed in two subjects i.e. Physiology and Anatomy . The appellants were promoted in second professional of MBBS, and requisite fees was also received by the college. The appellants could not qualify the failed subjects in supplementary examination held in May/June, 2015. They applied to the concerned authorities of Mohi-ud-Din Islamic University Medical College Mirpur/respondents, herein, in all the titled appeals for allowing to continue the class and also to promotion in next class. The medical college issued the Notification dated 15.9.2015, whereby the students were intimated that PMDC has refused to grant promotion to next class and the appellants were relegated to the previous class.
Feeling aggrieved the appellants, herein, filed the writ petitions in the Azad Jammu and Kashmir High Court. The High Court through its judgment dated 31.12.2015, dismissed the writ petitions. Hence, these appeals by leave of the Court.
3. Raja Khalid Mehmood Khan, counsel for the appellants vehemently argued that the judgment of the High Court is against law and the record. According to the Pakistan Medical and Dental Council Regulations, 1998 and 2003, the appellants despite failing in supplementary examination, were entitled to be promoted in the next higher class.
The PMDC Regulations recognize three chances and appellants have been provided only one chance. The appellants were illegally relegated to the previous class. The High Court failed to consider the same. The learned counsel relied upon the case titled AJ&K University vs. Muddasar Tahir (Civil Appeal No.31/1 1, decided on 11.1.2016). The learned counsel referred to various provisions of the PMDC Regulations 1998 and 2003. The learned counsel submitted that the respo ndents promoted the appellants in seco nd year and received the fees.
When the University authorities were in knowledge that the students cannot be promoted in next professional class then they should not have promoted to second year, merely , for receiving fees. He requested for acceptance of the appeals and alternatively for refund of fee of the students.
4. While controverting the arguments of the learned counsel for the appellants, Barrister Hamayun Nawaz Khan, counsel for the Mohi-ud-Din Islamic University , Medical College, and Barrister Sultan Mansoor , Advocate for the PMDC, contended that the judgment of the High Court is perfect and legal. The PMDC Regulations 1998 and 2003, are not applicable in the case in hand. The new Regulations were enforced by the PMDC on 16.7.2013, before the admissions of the appellants, which were made in the months of November/Decem ber, 2013. The learned counsel argued that provisions of clauses 24 and 25 of the Regulations, 2013, are clear on the subjects, through these clauses all earlier Regulations on the subject are repealed and MBBS/BDS Regulations, 2003 are repealed to the extent of condition for admission in MBBS and BDS courses and condition for house job. The cases of the appellants are governed under the new Regulations. The learned counsel furthe r argued that for regulating the medical education the Azad Jammu & Kashmir Government has promulgated the AJ&K Medical Colleges (Governing Body) Act, 2014 (ACT No. XVIII, 2014). Section 6(1) of the said Act provides that the Governing Body shall govern the affairs of all medical colleges. Section 6(2) of the said Act provide s that the Governing Body shall in respect of policy making, coordination and maintenance of education standards be guided by such directions as the PMDC may issue from time to time. The learned counsel further argued that PMDC in its letter addressed to the Principal of Moh-ud-Din Islamic University Medical College Mirpur dated 31.5.2012, has intimated that any student, who fails in annual examination shall be allowed to attend the next class till the supplementary examination, however , if he fails to clear the subject in supplementary examination, then he will be relegated to his previous class. The learned counsel argued that there is no error in the judgment of the High Court, the appeal be dismissed with costs.
5. We have heard the learned counsel for the parties and perused the record with utmost care. The facts are admitted that the appellants got admission in Mohi-ud-Din Islamic University Medical College Mirpur in Part-I MBBS course in the month of November/Decem ber, 2013. They appeared in first professional MBBS annual examination, 2014, held in February/March, 2015.
The appellants failed in the different subjects.They appeared in supplementa ry examination 2014, held in May/June, 2015. But before supplementary examination they were promoted in MBBS second professional class.
In this regard they also paid the full dues.The appellants could not pass all the subjects in the supplementary examination. They requested the Principal Mohi-ud-Din Islamic University Medical College Mirpur to allow them to continue in the second professional, second year of MBBS. The Principal of the said college through Notification dated 15.9.2015, intimated that PMDC has not agreed to the suggestion and the appellants were relegated to the previous class. This order has been challenged through the writ petitions.
6. Medical education is governed unde r the PMDC Regulations. The PMDC enforced new Regulations for admission in MBBS/BDS courses and condition for house Job Internship Found ation Years Regulations, 2013.
Through Regulations Nos.24 and 25 of the Regulations, 2013, earlier Regulations on the subjects were repealed including Regulations, 2003, for MBBS/BDS, and conditions for house job and all previous decisions of the Council on these subjects were declared of no legal effect. For proper appreciation Regulations No.24 and 25 of Regulations, 2013 are reproduced herein:- "24. All earlier regulations on the subject are repealed. 25. 2003 MBBS/BDS Regulations are hereby repealed to the extent of conditions for admission in MBBS and BDS Course and conditions for house job and all previous decision of the Council on these subjects in these regulations no longer hold field."
There remains no doubt that previous regulations on the subject have been repealed and are not relevant.
7. Under Regulations 9 of the Regulations, 2013 MBBS/BDS programme is approved, which is reproduced as under:-
9. The scheme of the MBBS/BDS Programme and approved as under:- YR PROFESSIONALS FOR MBBS EXAMINA TION CONDUCTED BY 1 1 Professional MBBS-Part-I examination is replaced by Ist Prof. (semester 1&2) Annual Examination Shall be conducted by the respective University 2 2 Professional MBBS-Part-II examination is replaced by 2 Prof. Semester (3&4) Do 3 3 Professional Do 4 4 Professional Do 5 5 Professional Do Final Professional YR PROFESSIONALS FOR MBBS EXAMINA TION CONDUCTED BY 1 1 Professional MBBS-Part-I examination is replaced by Ist Prof. (semester 1&2) Annual Examination Shall be conducted by the respective University 2 2 Professional MBBS-Part-II examination is replaced by 2 Prof. Semester (3&4) Do 3 3 Professional Do 4 4 Professional Do 5 5 Professional Do The Executive Committee/Council also decided as under:- "Any student, who fails to clear first profe ssional in four chances availed or un-availed and has been expelled on that account shall not be eligible for contin uation of medical/dental studies of MBS or BDS and shall not be eligibleSt nd nd rd th th St nd nd rd th th for fresh admission as a fresh candidate in either MBBS or BDS.
Any student who fails to clear 2nd Profess ional in four chances availed or un-availed and has been expelled on that account shall not be eligible for continuation of medical studies of the MBBS and shall not be eligible for fresh admission as a fresh candidate in either MBBS or BDS.
A student who has availed the chances to clear the First Professional examination or part thereof in four chances availed or un-availed and has been expelled on that account shall not be eligible for continuation of medical/dental studies of the MBBS or BDS course and shall not be eligible for fresh admission as a fresh candidate in either MBBS or BDS."
A perusal of Regulation 9, reproduced hereinabove, reveals that in the new Regulations the MBBS study programme is divided into five profession als, whereas, in previous Regulations it was divided in four professionals, and according to the Regulations students shall be provided four chances availed or un-availed to clear first professional, if they fail, they shall be expelled on that account and shall not be eligible for fresh admission in either medical/dental studies. The question in the case in hand is that, whether a student can be promoted in next professional class despite failing to pass all the subjects in supplementary examination. The PMDC on 31.5.2012, addressed the letter to the Principal Mohi-ud-Din Islamic University Medical Colle ge Mirpur , which is reproduced here for proper appreciation:- "The Principal, Mohhiuddin Islamic Medical College, D/4, Industrial Area, Mirpur AJ&K SUBJECT : PERMISSION T O ATTEND CLASSES.
Dear Sir/Madam, In reference to the subject noted above. It is informed that a student who fails in any subject in the annual examination shall be allowed to attend the next class till the supplementary Examination. However if he fails to clear all subjects in the supplementary examination, then he will be relegated to his previous class. Extra classes shall be held by all colleges to facilitate students to make up deficiency of attendance appropriately.
For strict compliance. Thank you for your cooperation. Yours sincerely Sara Rubab Nasir Legal Officer"
The letter dated 31.5.2012, is unambiguous and in categorical terms lay down that any student, who fails in any subject in annual examination shall be allowed to attend the next class till supplem entary examination. If he fails to qualify all the subjects in supplementary examination then he will be relegated to the previous class.
8. Section 6 of the Azad Jammu and Kashmir Medical Colleges (Governing Body) Act, 2014, is relevant to the case in hand. For proper appreciation it is reproduced as under:- "6. Powers and function of the Governing Body:-
(1) Governing body shall govern the affairs of all the Medical Colleges and issue policy/guidelines from time to time for which it has been constituted and shall subject to any rules made in this behalf, have all powers necessary for the purpose.
2. In the exercise of its powers and performance of its functions, the Governing Body shall, in respect of policy making, coordination and maintenance of education standards, be guided by such directions as the Pakistan Medical and Dental Council (PM&DC) and other accreditation body may issue from time to time."
Sub-section (2) of section 6 of the AJ&K Medical Colleges (Governing Body) Act, 2014, imposes a condition on the power of the Governing Body that while exercising powers and maintaining education standard the Governing Body , in respect of making policy , coordination and maintenance of education standards, be guided by such directions as the Pakistan Medical and Dental Council (PMDC) and other accredita tion body may issue from time to time. The Governing Body constituted under section 4 of the said Act, cannot travel beyond the limitations imposed by the PMDC and has to follow the direction issued by it. The PMDC issued direction in respect of promotion of students in next professionals, who failed to pass in all the subjects of MBBS first professional in supplementary examination. In the light of provisions contained in section 6 of the AJ&K Medical Colleges (Governing Body) Act, 2014, the Principal Mohi-ud-Din Islamic University and Medical College Mirpur was under a legal obligation to follow the Notification dated 31.5.2012, in letter and spirit, which in unequivocal terms provides that, if a student, who fails in any subject in the annual examination shall be allowed to attend the next class till supplementary examination. If he fails to pass all the subjects in supplementary examination, then he will be relegated to the previous class. In the light of this Notification, which was in existence when the appellants got admission in MBBS first year class, the appellants were promoted to the second professional, in second year .
9. The appellants could not pass all the subjects of first professional examination in the supplementary examination 2014, they have no right to continue in next higher class. There is another aspec t of the case that the appellants have not challenged the basic notificatio n, which imposes a condition on the failed students that they will be allowed to attend next class till supplementary examination, however , if they failed to pass first professional MBBS examination in supplementary examination they will be relegated to previous class and will not be entitled to continue in the next class. The appellants have only challenged the notifica tion dated 15.9.2015, without challenging the letter notification dated 31.5.2012, the requisite relief cannot be granted to the appellants. The writ petitions were not maintainable. There appears no illegality in the judgment of the High Court.
The letter dated 31.5.2012, is addressed to the Principal Mohi-ud-Din Islamic University Medical College Mirpur , whereby in the categorical terms the PMDC has intimated the Principal that a student who fails in any subject in annual examination shall be allowed to attend the next class till supplementary examination, however if he fails to qualify the subjects in supplementary examination then he will be relegated to his previous class. The Principal of the said medical college instead of intimating the students the true position of letter dated 13.5.2012, allowed them admission in next higher classes, and received the fees against the interests of students, when he was in knowledge that the students cannot continue the studies in the next professional without passing all the subjects in supplementary examination. The students are entitled for adjustment/refund of fees under the PMDC Regulations, 2013. If the four chances have not already been exhausted then the students be admitted in first professional on the fees already received from the students. The appeals are disposed of with no order as to costs.