GHULAM MAHMOOD QURESHI, J---By this common judgment we propose to dispose of Writ Petitions Nos. 12003 of 1995, 12006 of 1995, 863 of 1996, 4554 of 1997, 4525 of 1997, 21034 of 1997, 21369 of 1997, 21396 of 1997, 26142 of 1997, 4644 of 1998, Writ Petition No. 20471 and 24200 of 1998 as similar questions of law and facts are involved in all these petitions.
2. The petitioners have challenged the Orders of Principal declaring that they were not eligible to continue further studies in the Medicine as they had failed to pass their First Professional M.B.B.S. Examination in four chances. The petitioners have also challenged the Regulations contained in the Prospectus of Medical Colleges., enjoining passing of First Professional M.B.B.S. Examination in four consecutive chances availed or unavailed and prayed that this Regulation be declared without lawful authority and of no legal effect.
3. The petitioners as an interim relief also prayed that they may be allowed to take part in next schedule examination provisionally.
4. The respondents were directed to file report and parawise comments and in the meantime, the petitioners were permitted to take forthcoming examination, which would be subject to decision of the writ petition.
5. Reports and parawise comments had been furnished, respondent/University has been presented by Mr. Raza Farooq, Advocate
6. We have heard the learned counsel for parties and have perused the record with their assistance.
7. The validity of impugned regulation contained in the Prospectus has since been examined by the Supreme Court of Pakistan and their lordships in the case of Akhtar A.I Javed v. Principal, Quaid-e- Azam Medical College, Bahawalpur (1994 SCM R 532) and Munazza Habibi and others v. The Vice-- Chancellor and others (1996 SCMR 190) have held the same as valid and further clarified that the maximum number of chances available to such a student is four whether he avails or fails to avail the same. Therefore, respectfully following the dictum laid down in the abovesaid cases, the arguments of the learned counsel for petitioners as far as the validity of the, Regulation is concerned are repelled.
8. However, there is another important aspect of the case that under interim order of this Court many of the petitioners in the abovesaid writ petitions have been allowed to continue their studies and to take part in subsequent examination. The detail of which is given as under:-- Writ Petition No.12003 of 1995
9. The petitioner was allowed provisionally to take part in the examination by the order of this Court dated 20-9-1995 and the petitioner passed his 1st Professional M.B.B.S. Examination, Second Professional Examination and presently he has to appear in final year.
Writ Petition No.12006 of 1995
10. The position in this writ petition is also the same as in Writ Petition No.12003 of 1995.
Writ Petition No. 863 of 1996
11. On the statement made by the learned counsel for petitioner on 12-5-1996, that he does not want to press this petition insofar as it relates to Miss Shagufta Naheed petitioner No.2, because she has been able to get interim relief in Writ Petition No. 4644 of 1996 filed by her at principal seat The petition so far as it relates to petitioner No.2 was dismissed as withdrawn as per order dated 12-5-1996. However, petitioner No.1 was allowed to appear in 1st Professional M.B.B.S. Examination under interim order of this Court, but could not again succeed. However, he is studying it 2nd Professional M.B.B.S. Class.
Writ Petition No. 4644 of 1996
12. Same is the position in this writ petition as in Writ Petition No. 863 of 1996.
Writ Petition No. 4554 of 1997
13. The petitioner appeared in Ist Professional M.B.B.S. Examination and is presently studying in 3rd year of Second Professional M.B.B.S. Examination.
Writ Petition No. 4725 of 1997
14. In this writ petition the petitioner was provisionally allowe to appear in First Professional M.B.B.S. Examination vide order of this Court dated 13-3-1997 which reads as under:-- "In the meantime the petitioner shall be provisionally allowed to appear in the forthcoming 1st Professional M.B.B.S. (New Scheme) Examination in the subject of Physiology which shall be subject to the decision on this writ petition.
Writ Petition No. 21034 of 1997
15. Vide order dated 24-9-1998 passed by this Court, the petitioner was allowed to appear provisionally in the Examination.
Writ Petition No. 21369 of 1997
16. Petitioner was allowed to take examination provisionally by the order of this Court dated 28-9- 1998.
Writ Petition No. 21396 of 1997
17. The petitioner was student of M.B.B.S. First Professional in Fatima Jinnah Medical College, Lahore for the Session 1992-93 and having completed two years' study she appeared in First Professional M.B.B.S. Examination (Annual), 1995. But there is no order available on the record to ascertain whether she continues her study and allowed to appear in examination provisionally.
Writ Petition No. 26142 of 1997
18. Petitioner was allowed to appear in Second Professional M.B.B.S. Examination vide order dated 16-6-1997.
Writ Petition No. 20471 of 1998
19. While admitting the abovesaid writ petition to regular hearing, the petitioner vide order dated 6- 10-1998, was allowed to formally appear in the examination but result was ordered not to be announced.
Writ Petition No.24200 of 1998
20. The petitioner was permitted to take part in the forthcoming examination held on 17-2-1999. The facts of the present case are slightly different from the other writ petitions. The petitioner is a foreigner. She got admission in King Edward Medical College, Lahore against a seat reserved for foreign students on Self-Finance Scheme. She according to averments of the petition was granted admission subject to payment of $ 2000 (U.S. Dollars) per annum and in the lump sum U.S. $ 100,000 were to be paid by the petitioner, for which the petitioner has furnished Bank-Guarantee which was duly acknowledged by the respondent No.1. It is further averred that the petitioner in fact paid this amount and she is entitled to continue and she being a student under Self-Finance Scheme and having paid the amount of U.S. $ 100,000 cannot be expelled from the college before completing her education.
21. From the narration of fact mentioned above, the petitioners in Writ Petition No: 12003 of 1995, Writ Petition No.12006 of 1995 and Writ Petition No. 4554 of 1997, who have availed another chance under the interim order of this Court and have admittedly passed the subject which they could not earlier clear in four chances. We are not prepared to allow the petitioners to be thrown out of the study even though they have passed the examination in violation of the Regulation referred above. It is well-settled that an act of the Court will not prejudice a litigant. The Hon'ble Supreme Court of Pakistan in a case reported as Riaz-ul-Haq v. Selection Committee constituted for Admission to Bolan Medical College, through Secretary, Principal Bolan Medical College, Quetta and 6 others (1997 SCM R 1845) directed the petitioner by an interim order to be admitted in M.B.B.S. Course and by the time of final hearing of the case, the petitioner had; reached the final year M.B.B.S. The Court, therefore, held that it could not allow the petitioner to be deprived of his brilliant medical career.
The Court followed its earlier precedent reported in the case of Hamza Khan v. Province of Baluchistan (1995 SCM R 711). Respectfully following the above dictum laid down by the Hon'ble Supreme Court, the petitioners in the abovesaid writ petitions are allowed to continue their studies.
In these circumstances we would dispose of all said writ petitions holding that although the regulation in question is valid but the petitioners having cleared the First Professional M.B.B.S. Examination under interim order of this Court shall continue their studies and their such clearance shall be deemed to be proper and legal and will not adversely affect their continuous educational career.
22. As far as Writ Petition No. 4644 of 1996, Writ Petition No. 4725 of 1997, Writ Petition No. 663 of 1996, Writ Petition No. 21034 of 1997, Writ Petition No. 21369 of 1997, Writ Petition No. 21396 of 1997, Writ Petition No. 26142 of 1997, Writ Petition No. 20471 'of 1998 and Writ Petition No.24200 of 1998 are concerned, if during the pendency of the above petitions they have passed their First Professional M.B.B.S. Examination under interim order granted by this Court, they are also allowed to continue their studies, but if they have failed to qualify their First Professional M.B.B.S. Examination, then, of course; they shall be hit by the Regulation in question and cannot be allowed to avail any further chance. 'The abovesaid writ petitions are disposed of in above terms. No order as to costs.