' EJAZ AFZAL KHAN, J.---The abovementioned four Constitutional petitions have been filed by the students of the Khyber Medical College Peshawar, seeking to impugn the Pakistan Medical and Dental Council Regulation and their expulsion pursuant thereto as being harsh, unreasonable and violative of the provisions ensuring equity and equality amongst the citizens of the country.
2. The facts relevant for the disposal of the above petitions which we propose to dispose of by this single judgment, are that after the promulgation of the impugned regulation examination of the first professional has been split into two parts, chances to qualify it which were previously 4 in number, have been reduced to 3 and that the students who failed to qualify examination of the first professional in 3 chances have been expelled form the college, vide: Office Order, dated 7-2-2001.
3. The learned counsel appearing on behalf of the petitioners contended that the Regulation being harsh, unreasonable and violative of the Constitutional provisions is apt to be struck down; that the Regulation despite pretended generalisation has not been enforced in the Medical Colleges of the other Provinces; that the principal, Khyber Medical College in the minutes of a meeting characterised it to be harsh and unreasonable and that the memorandum forwarded to the Controller of Examination by the principal shows that it has not been enforced and adhered to in stricto senso. The learned counsel for the petitioner Iyaz Shah, by adding to the arguments of the learned counsel for the remaining petitioners contended that before ordering the expulsion of his client the relevant provisions of the Regulation have not been interpreted in accordance with the recognized principles of the interpretation in statute. He by elaborating his argument submitted that according to section IV(13) of the regulation, eligibility of a student to avail a chance is a condition precedent and if a student is not eligible to avail a chance of examination because of any handicap or illness, as in this case, that chance cannot be debited to his credit. He by placing reliance on the case of Federation of Pakistan v. Shaukat Ali Main PLD 1999 SC 1026 contended that though a statute cannot be struck down on the ground of its being used in a discriminatory manner, nonetheless, a discriminatory action taken pursuant to such statute can be struck down.
4. As against that the learned counsel appearing on behalf of the respondents contended that the Regulation having been promulgated after due thought and deliberation is pre-eminently meant to bring about uniformity in the Medical Colleges of the country vis-a-vis minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications, contents and duration of study, condition for admission thereto, standard of examination and method of conducting them. The learned counsel next contended that none of the provisions contained in the Regulation are harsh, unreasonable, discriminatory or violative of the Constitutional provisions and that if some of the Colleges in country have not acted upon this Regulation, it will not per se make this Regulation discriminatory.
5. We have seriously considered the contentions of the learned counsel for the parties and perused the judgments so relied upon by them. The argument that the Regulation is harsh and unreasonable remained unsubstantiated notwithstanding the fact that all these Constitutional petitions were heard at length for two days. The argument that the Regulation is discriminatory and violative of the Constitutional provisions also remained unsubstantiated as no convincing reasons whatever have been advanced to prove it as such. The fact that two of the petitioners because of their being ill and handicaped could not have been considered eligible so as to deprive them of a chance for reappearance in the examination may be a quite ingenious and artful argument but in fact their handicap or ailment preventing them from being eligible has not been established through any above-board and reliable evidence. The other additional argument of the learned counsel for one of the petitioners that though a statute cannot be struck down on the ground of its being used in a discriminatory manner", nonetheless, a discriminatory action taken pursuant thereto can be struck down is not without substance. A photo copy of the minutes of meeting held on 12-4-2000 attended by all the principals of the Medical Colleges in the N.-W.F.P. On special invitation, which was brought to our notice, by the learned counsel for the respondents, would show that certain decisions contrary to the provisions of the Regulation were taken and acted upon, as the students of the first professional part-1 were allowed to attend the classes of the 2nd year M.B.,B.S. Provisionally in spite of the fact that section IV(3) of the Regulation provides that no student shall be promoted to higher classes unless he passes all the subjects of the previous classes. To see whether the Medical Colleges in other provinces follow the Regulation in its letter in spirit, it is worthwhile to reproduce the para meteria provisions of the Quad-i-Azam University Islamabad which reads as under:-- XV. First Professional M.B.,B.S. Examination.--- (1) .......................
(2) .........................................................................................................................
(3) A candidate who fails (whether appeared or absent) in one or more ' subjects in any of annual professional Examination shall be eligible to re-appear in the subsequent University Examination (Supplementary/Annual) in the subject or subjects in which he/she has failed,for a maximum of four chances, consecutively. (Approved by the Syndicate in its IX meeting held on 4th December, 1980)."
6. The corresponding provisions from the prospectus of the Medical College in the Punjab may also be quoted with advantage which runs as under:-- "University Examination. (1) .....................................................
(a) ...............................................
(b) .........................................
(c) .........................................
(d) ...............................................
(2)
(3) (a-i)
(a-ii) ...............................................................................
(b) Those students who fail to clear the First Professional M.B.,B.S. Examination four consecutive whether actually availed or not shall be expelled from the college."
7. A perusal of the above quoted provisions of the prospectuses would show that the very rationale of the Regulation which was preeminently meant to bring about uniformity in the Medical Colleges of the country vis-a-vis minimum standard of courses of training for obtaining graduate and post- graduate medical and dental qualifications, contents and duration of study, condition for admission thereto, standard of examination and method of conducting them, has been defeated as it has not been followed by the Medical Colleges in the other Provinces. There is no doubt, nothing in the Regulation showing it to be discriminatory but at the same time it cannot be denied and disputed that the Regulation is capable of being used in a discriminatory manner. Absence of express provision in the Regulation as to the date of its taking effect, the consequence of neglect to comply therewith and even the lack of willingness on the part of P.M.D.C. To enforce it in its true letter and spirit, reduced it to a farce and thus, led the College Authorities to take discriminatory action hereunder. Difference in the number of chances for qualifying the first professional examination between the Medical Colleges in the N.-W.F.P. And the Medical Colleges in other Provinces of the country, enforcement of the Regulation at the whim and pleasure of the principals and application of different yardsticks in alike situations are the glaring instances of discriminatory action. In the case of Federation of Pakistan and others v. Shaukat Ali Mian (supra) it was held that a Statute which is capable of being used in a discriminatory manner cannot be struck down simply because of its being used in a discriminatory manner but a discriminatory action taken pursuant thereto can be struck down in the exercise of Constitutional jurisdiction. The relevant paragraph is reproduced as under:- "We may also point out that there is a marked distinction between a provision of a statute which may be ex facie discriminatory and a provision thereof which may be capable of being pressed into service in discriminatory manner. The former would be liable to be struck down on the ground of violation of Article 25 of the Constitution, but the latter provision cannot be struck down on the ground that it is capable, of being used in discriminatory manner. However, any discriminatory action which may be taken pursuant to such provision can be struck down."
8. In the light of the above cited judgment we hold that notwithstanding its susceptibility to being used in a discriminatory manner the Regulation is not discriminatory by any stretch of imagination but the discriminatory action taken thereunder cannot be allowed to stand, that too, for a handful students of a College in the remotest Province of the country. We, therefore, by accepting these petitions strike down the office Order, dated 7-2-2001 and direct the respondents to regularise their admission to enable them to avail one more chance in the examination in line with the Medical Colleges of other Provinces. We may, however, direct the makers of the Regulation to ensure its uniform application throughout the country as provided by the Regulation itself to guard against any possible duality, discrimination and double standards in its application if at all it is really meant to ensure uniformity in all the Medical Colleges of the country. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.