' JAVED IQBAL, J.---This is a Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:- - "It is, therefore, respectfully prayed that the Writ Petition may very kindly be accepted and the impugned Clauses 67 and 69 mentioned in the Prospectus be declared ultra vires and illegal with no legal effect, without lawful authority and are not applicable in the case of the petitioner and the Respondent No, 1 may kindly be directed to forward the Admission Form to Respondent No, 3 who may be directed to accept the same and allow the Petitioner to appear in the next subsequent examination of Second Professional M.B.,B.S. Examination to be conducted by the University of Balochistan. Moreover it is also humbly prayed that pending final decision of the main Writ Petition the Petitioner may be allowed to provisionally attend the classes of III Year M.B.,B.S. And to appear in incoming Examination of Bio-chemistry.
' Any other order deemed fit and proper in view of the abovementioned submissions may also be passed."
2. Briefly stating the facts of the case are that the petitioner is a national of United Arab Emirates who applied for seat in University of Punjab in the year 1989 and joined Medical College Rawalpindi on a seat reserved for foreigners. He thereafter migrated from Rawalpindi to Bolan Medical. College Quetta in First Year in the Session 1989-90 and cleared all the subjects and was promoted to 2nd year in the year 1991. In the said examination the petitioner passed Anatomy, Physiology, Islamiat and Pakistan Studies but could not pass the subject of Bio-chemistry. The petitioner due to Gulf war was recalled and inducted into national service during the emergency period and remained at Abu Zehbi with effect from 15-1-1991 to 5-3-1991. Since the petitioner was placed in compartment in Bio-chemistry, he approached respondent No, 1 for another chance to appear in the subject and also applied for admission to 3rd year M.B.,B.S. Class. The Respondent No, 1 recommended to respondent No, 2 but with no avail. The petitioner also approached the Governor Balochistan being Chancellor and other concerned authorities in this regard but his submission was not accepted keeping in view the provisions as contained in Rules 67 and 69 of the Prospectus for Sessions 1991- 92 and 1992-93 of the Bolan Medical College. These provisions have been made by Pakistan Medical and Dental Council (hereinafter referred to as P.M.D.C.) wherein it has been incorporated that any student who fails to clear First Professional M.B.,B.S. Examination in four chances availed or unavailed offered by the University shall seize to be eligible for further medical/dental education. It is also mentioned that the petitioner joined University of Punjab in the year 1989 prior to the Prospectus of 1991-92 and 1992-93 and thereafter migrated to Bolan Medical College. It is also pointed out that in a similar case other students who were admitted prior to the promulgation of the notification were allowed to appear in the examination. The petitioner has not been promoted to 3rd, year of M.B.,B.S. And has not been allowed to appear in the subject of bio-chemistry alongwith the subjects of 3rd year, i,e, Pharmacology Forensic Medicines by the respondents.
Hence this petition.
3. It is mainly contended on behalf of petitioner that the provisions as contained in Rules 67 and 69 of the Prospectus of Bolan Medical College is discriminatory in nature and violative of the fundamental rights as envisaged in the Constitution. It is also contended that Rules 67 and 69 are ultra vires of the Constitution. It is also argued with considerable vehemence that the petitioner could not avail the fourth opportunity due to unavoidable circumstances as he remained abroad due to emergency, but this aspect was not considered by the respondents which has caused a serious prejudice to the petitioner. It is further contended that the correspondence made by the Embassy of United Arab Emirates has been ignored without any justification. In the end the prayer as reproduced above was made.
4. Mr. Ehsanul Haq, Advocate appeared on behalf of Respondent No, 1 while Mr. Riaz Ahmed, Advocate Standing Counsel represented Respondent No,
2. The said position has been controverted strenuously and the learned counsels for respondents challenged the maintainability of the petition on the ground that since alternate remedy by way of approaching the Secretary Pakistan Medical and Dental Council was available, as such the provisions as contained in Article 199 of the Constitution could not have been invoked. It is also contended that Rules 67 and 69 of the Prospectus of Bolan Medical College were neither discriminatory in nature nor in violative of the fundamental rights as guaranteed by the Constitution but on the contrary provide safeguard to the public interest. It is further contended that the petitioner could not qualify his examination in three attempts and one opportunity could not be availed due to Gulf War but it hardly makes any difference as the relevant rule provides four opportunities availed or unavailed. It is also pointed out that the petitioner remained abroad for a short period of two months which could not constitute a base for his promotion to 3rd year M.B.,B.S. And provision of 5th chance for re- appearance in the paper of biochemistry in violation of the Prospectus.
5. We have carefully examined the respective contentions as adduced on behalf of the petitioner and respondents in the light of relevant provisions of law and record made available. The pivotal point to be determined is whether the provisions as contained in Rules 67 and 69 of the Prospectus of Bolan Medical College are ultra vires of the Constitution enacted without lawful authority, in violative of the fundamental rights being discriminatory in nature or otherwise? The provisions as contained in Rules 67 and 69 of the Prospectus are reproduced hereunder for ready reference:-- "67:- There will be no carry over system. Students who fail in the Professional Examination shall not be promoted to the next higher class until they have cleared all the subjects of their respective.
Professional Examination. This is in accordance with the instructions as laid down by the P.M.D.C.
69:- Any student who fails to clear the first professional M.B.,B.S. Examination in four chances offered by the University availed or unavailed shall cease to be eligible for further Medical/Dental Education in Pakistan, this decision of P.M.D.C. Is to be effective from the First year admission of 1986-87. The students admitted before 1986-87 will have to clear the First Professional M.B.,B.S./B.D.S. Examination within four years from the date of their admission irrespective of the number of chances they avail, whether four or more."
6. A bare perusal of the above reproduced rules would indicate that the language which has been used in Rules 67 and 69 of the Prospectus is free from any sort of ambiguity and makes the following three points crystal clear:-
(a) There will be no carry over system till clearance of all subjects;
(b) In case of non-clearance of First Professional M.B.,B.S. In four chances availed or unavailed the candidate shall seize to be eligible for further medical/dental education in Pakistan;
(c) The formulation of said rules is in accordance with the instructions as laid down by the P.M.D.C.
7. The categorical policy as contemplated in Rules 67 and 69 does not call for any interpretation.
The clearance of all subjects is one of the essential and mandatory pre-requisites for promotion to the next higher class and any student who fails to clear the first professional M.B.,B.S. In four availed or unavailed chances shall seize to be eligible for further medical/dental education. The word 'shall' has been used to give a binding effect to the provisions of Rule 69 of the Prospectus. We may make it clear here at this juncture that the term 'shall' in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequences or be at variance with the intent of the legislature (which also includes rule making body) to be collected from the other parts of the applicable enactment, regulation or bye-laws/rules made thereunder. The construction of the said expression depends on the provisions of a particular enactment, the setling in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. We cannot ignore the context in which the word 'shall' occurs and the other circumstances. We are conscious of the facts that use of the word 'shall' alone is not conclusive on the question. As in all the matters of statutory consideration decision of the question depends on the ascertainment of the rule making body's intention. To ascertains said intention the Court must examine with all care and caution the object of the rule in question, the consequences that may follow from insisting on a strict observance of that A particular provision and above all the general scheme of the other provisions of which it forms a part. (PLD 1958 SC (Ind.) 170 and PLD 1965 Dacca 231 and (1967) ISCR. 120: AIR 1967 SC 1974). Such examination has become more essential keeping in view the alarming deterioration in medical education and the Courts thus cannot and should not be oblivious of this circumstance specially when they are approached in this regard. We may point out that Rules 67 and 69 of the Prospectus have been framed in accordance with the instructions as laid down by the P.M.D.C. Which is a statutory body duly constituted by the Federal Government in pursuance of the provisions as contained in Pakistan Medical and Dental Council Ordinance, 1962. The main functions which are assigned to P.M.D.C. Are to prescribe a uniform minimum standard of courses of training for obtaining graduate/post graduate medical qualification, duration and conditions for admission to such courses. It is worth mentioning that to achieve the said objectives the P.M.D.C. Has been conferred with the powers to frame Regulations and the Prospectus of Bolan Medical College is in accordance with the directions and in conformity with the provisions of Regulations framed to regulate the medical education in the country. The adherence to all such Regulations is obligatory for all Medical Colleges and Universities in Pakistan in order to attain the basic minimum standard prescribed by the P.M.D.C. The Prospectus of Bolan Medical College has thus a legal sanctity behind it. The main contention, therefore, seems to be devoid of merits that Rules 67 and 69 of the Prospectus are without any lawful authority. The prospectus has been framed in the light of Regulations made by the P.M.D.C. In exercise of powers conferred under subsection (2) of section 33 of the Pakistan Medical and Dental Council Ordinance, 1962.
8. It is next contended by Raja Rab Nawaz, Advocate that fundamental rights are protected in the Constitution and as such nobody should be allowed to take any action in violation thereof. We are conscious of the facts and it is well-settled by now that the fundamental rights as enshrined in the Constitution preclude any authority, institution, organisation and tribunal from encroaching upon the privileged domain meant for the citizens and any interference with such rights will constitute violations of a serious nature touching upon the fundamental rights guaranteed to the citizens. It is also correct that in this regard no preferential treatment can be given to educational institutions but the violation a fundamental right is to be proved." A right is an interest which is recognised and protected by law. As it is recognised by law, a man is entitled to have it. As it can be protected by law the possessor can enforce it by an appropriate action in a Court". The existence of a legal right is to be shown first and only thereafter its infringement can be pleaded. But it is always to be kept in mind that every right is subject to certain lawful restrictions which can be imposed in the interest of society. A law imposing such sort of restrictions cannot be declared void or in violation of the guaranteed fundamental rights by the Constitution merely because it prescribes certain conditions in the social or public interest and, therefore, the Regulations enacted by the P.M.D.C.
And Rules framed thereunder and their promulgation as such, by no stretch of imagination can be treated as unlawful or without any authority. We are also of the considered view that the powers to regulate implies a power to foster, protect, control restrain and thus the P.M.D.C. Being a statutory entity is fully competent to take any step, frame any rule, bye-law and impose any condition for the betterment of medical education throughout the country within the limits as prescribed under the Pakistan Medical and Dental Council Ordinance, 1962 and the Regulations made thereunder.
9. We have also examined the matter under consideration from another angle as it seems necessary to recapitulate the cardinal principle of interpretation of statutes, i,e,, statutory provisions ought not be construed in isolation and if considered essential the Court must examine the whole of the statute in order to find out the real intent of its authors. While following the principle we must advert not only to the provisions as contained in Rules 67 and 69 of the Prospectus but also the provisions as mentioned in Pakistan Medical & Dental Council Ordinance, 1962 and the Regulations made thereunder. We have carefully perused the provisions as contained in the abovementioned Ordinance, and thoroughly thrashed out the Regulations made thereunder and Prospectus. On the careful consideration of the said Ordinance, Regulations and Prospectus, it emerges clear to us that all these are designed to safeguard public interest and to achieve the objectives which are mentioned at para 7. A thorough scrutiny, however, reveals that all the provisions contained in the said Ordinance, Regulations and Prospectus are neither ultra vires of the Constitution nor .Against the public policy as contended by the learned counsel for petitioner.
We have no hesitation in our minds to hold that 'Public Policy' being a vague term and treacherous ground cannot be made a sole base for legal decision (per Lord Davey quoted by Jenkins, CJ., in S.B. Fraizer & Co. v. Bombay Ice Manufacturing Co., I.L.R. R-29-Bom. 107 p. 120). We may not forget the remarkable remarks of Mr. Justice Borroughs that "Public Policy is an unruly horse and if a Judge get up it he is very apt to be run away with". The concept of public policy is subject to various changes, expansions and modifications in accordance with the circumstances and as such the Courts should be vigilant enough to see whether F in such sort of cases the concept of public policy can be invoked or otherwise? Whatever may be the position it must be shown that the specific provisions sought to be set aside had occasioned some injustice or caused any prejudice. Where such provisions did not cause any injustice or prejudice to any party F rather introduced some policy beneficial in nature and for the benefit of the entire community the principle of public policy cannot be entertained for striking down such provisions as prayed for.
10. We have also focused our attention to another important aspect of the matter that up to what extent interference can be made by this Court while exercising its jurisdiction under Article 199 of the Constitution in the affairs of educational institutions. It is well-settled by now that "If there is any violation of any bye-laws, Rules and Regulations etc., by a statutory body itself, Constitutional jurisdiction can be successfully invoked so as to keep a statutory body within its limits and in obedience to the Rules which govern it because taken in the light of Article 4, Constitution of Pakistan (1973), a citizen of Pakistan dealing with a statutory body can claim to be dealt with according to Bye-laws, Regulations or Rules. Therefore, in fit cases High Court can make its writ to run against a statutory body where a citizen of Pakistan complains of violation of the Bye-laws, Regulations or Rules affecting his right, position or withholding of any benefit due on Rules, provided all the conditions precedent to the issuance of a writ are satisfied. The reliance can be placed on the following authorities:-- ' Controller of Examinations, Board of Intermddiate and Secondary Education v. Waqar Hashmi PLD 1977 Lah. 1029, Miss Rifat Parveen v. Selection Committee through Principal/Administrator, Bolan Medical College, Quetta PI,D 1980 Quetta 10, Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another 1977 SCMR 213, R.V. Duasheath, Ex parte, Meredith (1950) All ER 741, Theme v. University of London (1966) 2 All ER 333, Muhammad Sayyar v. Vice-Chancellor Peshawar University PLD 1974 SC 257, Abdul Aziz v. Punjab University PLD 1979 Note 49 at p. 34 and Board of Intermediate and Secondary Education Lahore v. M. Massadaq Naseem PLD 1973 Lah. 600 ref'.
11. It is an admitted position that the petitioner took admission and joined University of Punjab in the year 1989 prior to the Prospectus of 1991-92 and 1992-93 came into being and thereafter migrated to Bolan Medical College but it hardly renders any assistance to the case of petitioner as the decision of P.M.D.C. That any student who fails to clear the first professional M.B.,B.S. Examination in four chances offered by the University availed or unavailed - shall seize to be eligible for further medical/dental education was made applicable from the first year admission of 1986-87 and as such it would be equally applicable to the petitioner who had accepted all the terms and conditions as mentioned in Rule 183 of the Prospectus and, therefore, the petitioner at this belated stage cannot be allowed to agitate any plea contradictory to the provisions as contained in Rule
183. No specific instance was quoted that any student was afforded 5th chance to clear a subject.
Before concluding we may point out that bio-chemistry and physiology are not one and the same subject in spite of various similarities as bio-chemistry mainly deals with metabolic disorder whereas physiology deals with the knowledge pertaining to general principles of the functions of human body, with special emphasis on those areas where disorder of physiological functions are more common.
12. In the case under consideration neither any bye-laws, Rules or Regulations has been violated nor any action taken in contravention thereof, hence no interference is called for. In the light of what has been stated above no direction can be given to Principal Bollan Medical College for forwarding the admission forms of the petitioner to Controller of Examinations for its acceptance and allowing petitioner to appear in the next subsequent examination of 2nd Professional M.B.,B.S. And provisional admission in 3rd year M.B.,B.S. And to appear in the forthcoming examination of bio-chemistry, for the reason that this Court has never taken upon itself the role of a recommendatory body. It passes orders and issues directions or commands which by Constitution and law, the concerned authorities are bound to obey and this Court has the power to enforce. We do not wish to multiply reasons as enough has been said to bring home our considered opinion.
The petition is accordingly dismissed, with no order as to costs.