' SYED HAIDER ALI PIRZADA, J.---The petitioner through this petition has claimed the following reliefs:- "(A) Declare that the order dated 25-8-1992 of Respondent No,2 and the order dated 16-9-1992 of Respondents Nos.2 and 3, are illegal, mala fide, void, are of no legal effect, are without any lawful authority and are not enforceable in the case of the petitioner.
(B) Declare that the action of Respondent No,2 by the impugned order dated 25-8-1992, striking off the name of the petitioner from the roll of the College with immediate effect is illegal, void, mala fide and having no legal effect and the petitioner is legally entitled to take 1st Professional M.B.,B.S. Examination.
(C) Declare that the impugned order dated 16-9-1992 of Respondent No,3 is not binding upon the petitioner and such directions cannot be issued by Respondent No,3 to Respondent No,2.
(D) Direct Respondent No,2 to allow the petitioner to take the Examination of Respondent No,4 of the 1st Professional M.B.,B.S. Examination to be held in December, 1992.
(E) Any other relief that this Hon'ble Court deems fit and proper in the circumstance of the case.
(F) That the costs of the petitioner shall be borne by the Respondents."
2. The facts leading to the filing of the above petition are that he was admitted in the Session 1986- 87 in the Ist Year M.B.,B.S, on merit basis from the District quota of Dadu in the Chandka Medical College, Larkana and he studied in the said College till 1991. The petitioner applied for the transfer from Chandka Medical College, Larkana to Sindh Medical College, Karachi and as per orders contained in Letter No,S.O. (IN)/2-233/90 dated 14-11-1991, the petitioner, who was a student of IInd Year M.B.,B.S. Class in Chandka Medical College, was allowed to join the Sindh Medical College, Karachi and thereafter the said migration was approved by the University of Karachi in accordance with law and the migration was finally effected and the petitioner joined the classes and continued his study in the Sindh Medical College, Karachi.
3. In the month of August, 1992 the Principal and Chairman of the Academic Council, Sindh Medical College, Karachi, issued an Office Order No,F.6-5/92-ST 2859 dated 25-8-1992 stating therein that according to the Pakistan Medical and Dental Council's Rules as laid down in their Letter No,PF-3F- 87/130-15-34, dated 23-8-1988, the petitioner was required to clear his Ist Professional M.B.,B.S. Examination within four chances availed or unavailed, but he failed to clear the same within the speculated chances, as such, the petitioner is not eligible to appear in the 1st Professional M.B.,B.S. Examination and to continue as student in the Sindh Medical College, Karachi, therefore, his name was struck off from the roll of the College with immediate effect. Against the aforesaid order, the petitioner moved a representation to the Pakistan Medical and Dental Council, Islamabad and made it clear that he has only appeared in Annual Examination of 1992 and also in Supplementary Examination of 1992 and he has passed Physiology, Pak Studies, and Islamic Studies. In the representation, the petitioner has stated that due to the law and order situation of Sindh specially in Larkana as well as his family problems at time he could not appear in Chandka Medical College, Larkana.
4. The respondent No,3 had filed parawise comments on behalf of the respondents. The respondents contended that the petitioner was eligible to sit in the First Professional M.B.,B.S. Examination after two years of his study, but he appeared for the first time in Annual Examination of 1992, which means that he availed first chance after five years for which he exhausted his requisite chances. The action of the respondents has been challenged by the petitioner in his petition.
5. The Additional Advocate-General Sindh has placed before us Prospectus of M.B.,B.S. And B.D.S. For Medical Colleges of Sindh Province 1986-87 onwards. The relevant regulation for the disposal of this petition is Regulation No,8. It reads: "8. Any student who fails to clear First Professional M.B.,B.S./B.D.S. Examination in four chances availed or unavailed shall cease to be eligible for further Medical Dental Education in Pakistan."
The Regulation lays down that any student who fails to clear First Professional M.B.,B.S./B.D.S. Examination in four chances availed or unavailed shall cease to be eligible for further Medical Dental Education in Pakistan.
6. It is an admitted fact that the petitioner was admitted on 11-1-1988 in the Session (1987-88) and he availed only two attempts (First Professional M.B.B.S. ANNUAL AND SUPPLEMENTARY EXAMINATION 1990 held in 1991). The explanation for unavailing the chances is (1) due to law and order situation in Sindh specially in Larkana, (2) as well as his family problems.
7. This question was considered in the case of Asim Siddique v. Principal, Ayub Medical College, Abbottabad and another PLD 1992 Pesh.
52. It was held as under:--- "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. The above decision was followed by a Division Bench of this Court in an unreported decision dated 18-3-1993 (Coast. Petitions Nos.3120 to 3123 of 1992) Zubair Ishtiaq Qureshi and others v.
Government of Sindh and others 1993 CLC 1675. It was held as under:--- "It is, therefore, a correct proposition of law to say that the phrase, a student failing 'to clear First Professional M.B.,B.S. Examination in four chances availed or unavailed' in the reproduced rule is applicable only to such cases where the said four chances have either been fully but unsuccessfully availed of or have remained `unavailed', in circumstances, involving voluntary failure or designed inaction on the part of the student. In other words, if the concerned student is able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause, beyond his control, from availing of a chance he cannot be said to have failed in availing one of such four chances, as aforesaid."
9. We are in respectful agreement in the above observations. In the instant case, the petitioner has not placed any material in support of his contention. He failed to show that he was prevented to avail a chance due unavoidable cause or sickness or it was beyond his control to avail the chance.
10. The principle laid down in the above two decisions is not applicable to the instant case. The circumstances shown by him do not come within the principle laid down in the above decisions.
11. For the aforesaid reasons, the petition is dismissed in limine. Consequently the application is dismissed as having become infructuous.
12. The above are the reasons for our short order dated 6-4-1993 passed on conclusion of arguments.