JUDGMENT IJAZ-UL-HASSAN, J.-- This order rs proposed to dispose of W.P. No. 147/2(301 filed samin Akbar and 4 others petitioners, students of 2nd year of Ayub Medical College Abbottabad, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking a declaration to the effect that respondents be directed to . Afford petitioners chances for clearing, examination according to the rules and regulations of prospectus with further direction to respondents to take examination lst professional part-ll and 2nd professional part-1 together by promoting petitioners to 2nd professional MBBS A
2. Appearing on behalf of the petitioners, Syed Asif Ali Shah, Advocate contended before us, inter alia, that the petitioners got admission in Ayub Medical College in Session 1998-99 MBBS; that before the sessions of petitioners First professional, which consists of part-l part-ll, the examination of lst professional was used to be taken .In part-ll combinely; that in the petitioners' sessions for: the first time, the1 examination of First professional got split into two parts, i.e., part-1 and part-ll the examination of which is tb be taken in part I and part-ll separately; that according to rules 9 and 16 prospectus,' the students shall be given three chances for passing the lst Prof: for part-ll; that the petitioners in the new examination system appeared in part-l Annual and got failed they again appeared in part-l supplementary examination and again remained unsuccessful; that a meeting- dated 12.4.2001 of principals of alb the Medical Colleges was convened which was also attended by the Controller , of Examination, i.e., respondent No.1 in which it was agreed that all those students who have failed in the lst professional part-l and Supply examination be allowed to attend the classes of part-ll. They will appear in coming Annual Examination for passing their, part- l only and if they do not they will be expelled, In the last leg Of arguments learned counsel for the petitioners argued that the petitioners are. Discriminated and made victim of excesses qua their class-fellows without any justifiable reason which has materially prejudiced the interest of the petitioners.
3. Pursuant to the direction of this Court respondents Nos.1 and 2 have submitted comments in the case wherein it is stated that the matter has been dealt with in accordance with the Regulation and as it has not violated any law, therefore, the writ petition is not maintainable, it is further submitted that the petitioners have failed to qualify the examination even after availing chances, therefore, they have been rightly refused permission to the higher class.
4. We have heard at length Syed Asif Ali Shah, Advocate for the petitioners, Mr. Wasim-ud-Din Khattak, Advocate for respondent No.1 and Mr. Adam Khan Jadoon, Advocate for respondent No.2 in the light of the material on record and comments submitted on behalf of respondents Nos.1 arid 2.
5. Article 199 of the Constitution provides inter alia, for a declaration, a prohibitory order, a mandatory order and an order in the nature quo warranto and it is long settled that the jurisdiction possessed by the High Court in such like matters is discretionary. The object of such orders is to foster justice and to right a wrong Discretionary relief under constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to court with clean hands for enforcement of a legal right obtained in a lawful manner, In the instant case we find ourselves in agreement with learned counsel for respondents Nos. 1 and 2 that petitioners on the one hand have raised the factual controversy which cannot be resolved without the recording of pro and contra evidence which is beyond the scope of writ jurisdiction whereas on the other, they have not been able to, point out as to which provision of law or rule of prospectus or the regulations framed by PMDC, has been violated which has deprived them of their vested rights. A perusal of the provisions of College prospectus would reveal that the petitioners had to qualify and pass all subjects before they are promoted to 3rd Year MBBS arid before the clearance of previous year papers the failed students cannot be promoted to higher class, it is n6t denied that any student who fails to clear lst professional MBBS Examination part-il in three chances availed or unavailed after becoming eligible for the examination shall cease to become eligible for further medical education in Pakistan. Such students are expelled from the college permanently. Rule 16 of the College prospectus for the sessions 2000-2001 meant for the purpose expulsion from the college permanently' is reproduced below:- "Any student who fails to clear lst professional MBBS Examination part-!! In three chances availed or unavailed after becoming eligible for the examination shall cease to become eligible for further medical education in Pakistan. Such students are expelled from the college permanently."
We may pause here to mention that the case of petitioners is different in nature, as they could not clear their lst professional part-ll Examination in supply, thus they are not eligible for promotion to 3rd Year Class. They shall remain 2nd Year Class as per rule of the College prospectus/Pakistan Medical Dental Council (PMDC). The petitioners have already availed the lst chance in lst professional part-ll Examination and they can avail further two chances only for the purpose passing of examination but they are not eligible for the promotion to 3rd Year MBBS Class before passing previous Year Examinations.
6. It may be stated here with advantage that during the meeting of all the Principals of NWFP held on 12.4.2000, it was decided to allow the failed students to attend the 2nd Year MBBS classes on their on. Risk subject to the condition that these students would appear in the lst Professional Part-1 Annual Examination 2000. And these who would clear the .Said Examination should be allowed to appear in their lst professional part-ll Supply Examination 2000 and those who could not clear their lst professional part-ll Examination be expelled from the college permanently as per rule of the College prospectus and of the Pakistan Medical and Dental Council. Most of the students cleared their lst professional part-ll Examination but petitioners, could not clear their said Examination in- spite of receiving sufficient time for the purpose. The petitioners having availed the special concession, cannot be extended such facility all the times.
7. Itneeds no reiteration that prospectus of any educational institution is a complete code in itself providing for the courses and other allied matters to regulate its day to day affairs. At the time of admission the Admission policy and prospectus was given to the petitioners and they have submitted their acceptance of rules and regulations in the form of undertaking. Learned counsel for the petitioners has not been able to show any regulation, instruction or rule through which regulation relating to promotion to higher class has been modified or over-rule. On the other hand, there is no provision under the college prospectus to provide to the failed students the facility of promotion to the higher class, In case the petitioners are extended such facility, it will disturb the whole academic system of the college Which will adversely affect the other students. The august Supreme Court of Pakistan in such like matters declined to interfere in the educational affairs as no violation of rules of the respective institution or discrimination to the students therein was established. So far as the question of discrimination is concerned, nothing has. Been brought on record in support thereof. The mere assertion of the petitioners that they had been discriminated and refused promotion to the higher class qua their class-fellows without a positive attempt on.
Their part to substantiate the same is of no consequence. 'Miss Sakina Begum appellant Vs. Selection Committee for Bolan Medical College Quetta through Secretary and 3 others respondents' 1995 SCM R 334. -
8. Having held that the petitioners have been dealt with fairly and no case for interference has been made out for exercise of constitutional jurisdiction of this Court, we dismiss the writ petition in limine as non-maintainable alongwith the listed C-M. No.. 136/2001.