MAHBUB ALI KHAN, J.--In the instant petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Astm Siddique, an ex-student of Ayub Medical College, Abbottabad has asked for a declaration, that letter No F-6/10/90/SAS/AMC/2308-13 dated 21-3- 1990 issued by the Principal of the said College, whereby the name of the applicant has been struck off from the College rolls is void, coram non judice, without lawful authority and of no legal effect.
The petitioner has further prayed that respondent No 1, i.e., Principal, Ayub Medical College may be directed try allow him to continue his studies as a regular student of 2nd year M.B.,B.S. Class in the College.
2. The record indicates that Asim Siddique obtained admission in 1st Year M.B.,B.S. Class of Ayub Medical College, Abbottabad in the year 1985 on merit basis. He started attending his class when in the meanwhile the petitioner fell ill and his disease was diagnosed as G.B. Syndrome. He remained on leave for medical treatment till 29-4-1989. However, the petitioner on ,the start of every new session $ought admission in 1st Year M.B.,B.S. Class of the College. He then, after having some relief from his ailment, re-joined the College and passed 1st Year M.B.,B_S. Examination with distinction.
The petitioner secured position amongst the 35 top students in the class of 120. He was thereafter promoted to 2nd 'Year M.B.,B.S. Class but restrained to take part in the First Professional Examination. Asim Siddique, however,-paid college dues etc upto 17-3-1990. The Principal of the College on 22-10-1989 made a reference to the Pakistan Medical and Dental Council, i.e., respondent No. 2 for advice, as to whether the petitioner was eligible to continue studies in the college in view of his failing to avail four chances to clear 1st Professional M.B.,B.S. Examination. On the receipt of the reply of respondent No 2 on 10-3-1990 respondent No. 1 ordered for the striking off the name of Asim Siddique from the College rolls with immediate effect.
3. Annexure `C' is the letter dated 22-10-1989 written by respondent No. 1 to the Secretary, Pakistan Medical and Dental Council, Islamabad on the prolonged illness of Asim Siddique. This letter shows that Asim Siddique was admitted to 1st Year M.B.,B.S. Class in 1985 and soon after his joining of the college he fell ill from G.B. Syndrome and remained on medical leave upto 29-4-1989. In his letter the Principal has admitted that the petitioner had been given fresh admission in M.B.,B.S. Class on the start of every new session. A reference was, therefore, made to the council to take advice, as to whether Mr. Asim Siddique vas eligible to continue his education in the college wherein he had already exhausted four years. Annexure `D' is the reply made by the Pakistan Medical and Dental Council to respondent No. 1 on 10-3-1990. The Council considered the matter in its 76th Session held on 31st January and 1st February, 1990 at Karachi and decided as under: "The Council considered letter No.F.6-10/89/SAS/AMC/13576; dated 22nd October, 1989, received from the Principal, Ayub Medical College, Abbottabad. Some of the members of the Council were of the opinion that if the candidate could not appear into the examination which was beyond his control, his case be considered sympathetically. However, if he was absent due to prolonged illness which was of such nature that was not curable and absence will continue no purpose would be served by granting one additional chance. Therefore, the council felt that the present Regulations of four chances availed or unavailed may be strictly adhered to and the competent authority of the College and University may take necessary action accordingly."
4.It is an admitted fact that the petitioner after having been sent on medical leave by the College Principal had been getting fresh admission to 1 Year M.B.,B.S. Class on the start of every new session. After his admission in Ist Year M.B.,B.S. Class in October, 1985 he got ailment from G.B.
Syndrome and remained on medical leave with permission of the college Authorities till 29-4-1989.
Thereafter he rejoined the College and passed 1st Year M.B.,B.S class examination with distinction.
He was not only promoted to the 2nd Year M.B.,B.S Class but the College Authorities also received from him due etc. Upto 17-3-1990.
5. We have been led through the prospectus of the Ayub Medical College for the session 1989-90.
At page 17 of this prospectus we find rules 10 and 14 on the Admission policy. It would be advisable to reproduce below the text of these rules: "10.Only candidates who are declared medically fit by the College Medical Board shall be eligible for admission."
"14.No student shall be re admitted in M.B.,B.S. Class who discontinues his/her studies for 2 years or more consecutively except on medical grounds."
In the language of rule 10 we see that Asim Siddique was free from all diseases when he got admission in 1st Year M.B.,B.S. Class in the College in October, 1985. There is no denial that his- admission was on open merit. It cannot be also now disputed in the light of the language of rule 10 as aforesaid, that when Asim Siddique thereafter sought fresh admission to 1st Year M.B.,B.S. Class on the start of every new session he was found medically lit. The petitioner never had discontinued his studies but for health reasons. The College Authorities allowed him leave upto 29-4-1989 for treatment of his disease. He passed 1st Year M.B.,B.S. Class with distinction and paid College dies etc upto March, 1990.
6. Note (ii) of Regulation No. 4 (i) of the Pakistan Medical and Dental Council, Islamabad speaks on the conduct of First Professional M.B.,B.S. Examination which reads as under:-- "Any student who fails to clear First Professional M.B.,B.S. Examination in four chances availed or unavailed shall cease to be eligible for further medical/dental education in Pakistan:"
Asim Siddique had no doubt exhausted his four chances and was no more eligible to continue studies in the College in the in the ordinary course but in the peculiar background of his case west see that this had happened for reasons beyond his control. He could not avail four chances provided for First Professional M.B.,B.S. Examination because of illness for which he duly obtained leave from the College Authorities. The Pakistan Medical and Dental Council has taken into consideration this aspect of the matter and some of the members were of the opinion that if a candidate could not appear into the examination for reasons beyond his control, his case was to be considered sympathetically.
7. From the perusal of Note (ii) of regulation 4(i) as reproduced before it clearly follows that only that student who fails to clear First Professional M.B.,B.S. Examination in four chances availed shall cease to be eligible for further medical/dental education in Pakistan or who has intentionally avoided to take part in the examinations held during the prescribed period of four chances and did not avail the concession. This rule cannot be interpreted in the manner, that under all circumstances which may be even beyond the control of a student, he has to avail the four chances provided for the examination. This has been further made clear by rule 14 in the prospectus which states that no student shall be re-admitted in M.B.,B.S. Class who discontinued his/her studies for 2 years or more consecutively except on medical grounds.
8.In this view of the matter which we take, we would be pleased to issue a writ and declare that the impugned letter No- F6-10/90/SAS/AMC/ 2.308-13 dated 21-3-1990 of the respondent No 1 relating to the striking off the name of Asim Siddique from the college rolls is void. Coram non judice, without lawful authority and of no legal effect and the petitioner would continue his studies as a regular student in tad Year M-B.B.S. Class in the Ayub Medical College at before.