DOST MUHAMMAD KHAN, J.-- The Full Bench has been constituted because of the short order dated 14-5-2004 recorded by the subsequent Hon'ble Division Bench of this Court. The view expressed therein that there is a difference of opinion on a same and similar point of law between the two Hon'ble Division Benches, on given in W.P. 750 of 2001 decided on 18-9-2001 titled Miss Dure-e- Nayab Shama v. Khyber Medical College Peshawar and others and the other given in the case of Noor Muhammad and 2 others v. Ayub Medical College Abbottabad and 4 others (2003 CLC Peshawar 753). Whether the inference drawn is well perceived or the view held in the two cases ibid proceeds on distinct propositions of law, would also require consideration. As common questions of law are involved in all these petitions, the facts of which are stated below, therefore, this single judgment shall also decide all the connected writ petitions. In the present writ petition Alaptagin petitioner could not appear in the first professional M.B.,B.S. Part-I Examination commenced on 16-12-2002 because he had undergone surgery for Appendix.
He did appear in the Supplementary Examination but could not clear and was declared failed in the papers of Anatomy and Bio-chemistry. For his such failure in the first profession (Part-I) M.B.B.S. Supplementary Examination he was not promoted to Part-II of the first professional M.B.,B.S. He was also denied access to attend the lectures of Part-II nor he was given permission to appear in the examination for Part-II of the first professional (M.B.,B.S.) unless he qualifies the papers in which he has failed. The respondents 1 to 4 for the reason impugned have sought refuge behind the barring provision contained in Rules 9 & 18 of the Prospectus read with PMDC Regulation No,3 of 1998.
2. In W.P.No,206 of 2004 (1) Qadar Khan (2) Shabir Ahmad (3) Ali Haider (4) Nasir Shah (5 Muhammad Nasir Khan (6) Feroz Shah, students of Saidu Medical College, Swat (7) Shahzad Hayat
(8) Fayaz Ali Roomi and (9) Haidar Muhammad Iqbal, students of first professional year M.B.B.S. Khyber Medical College, Peshawar had appeared in the first professional M.B.B.S. (Part-I) but were declared failed. They re-appeared in the Supplementary Examination held on 30-4-2003 and in the result declared on 19th May, 2003 the petitioners were declared failed only in the paper of Anatomy.
For these reasons they were neither allowed to attend the class of Part-H of first professional M.B.B.S. Course nor they were permitted to appear in the examination of Part-II unless they qualify the paper in which they have failed. In W.P.192/2004 Hanbal Imam Ghaffari, a student of Khyber Medical College, Peshawar was admitted on foreign students reserved quota seat on self finance basis. He was declared failed in the papers of Anatomy and Physiology of Part-I of the first professional M.B.,B.S. Courses. He was allowed/permitted to attend the first professional M.B.,B.S. Part-II classes in Sessions 2003 and he also appeared in the Supplementary examination held in November, 2003 and qualified the two failed papers of Anatomy and Physiology thus was declared successful in the result, however, the respondents No,1 and 2, the Principal and Controller of Examination for Khyber Medical College, University of Peshawar did not accept his form to appear in the first professional Part-II examination which was scheduled to take place on 28-2-2004. In W.P. 374/2004 (1) Miss Huda Waris Khan (2) Zofishan Asghar (3) Sara Bano Ahmad (5)
Muhammad Shuja Saleem, students of first professional year M.B.B.S. Of Ayub Medical College, Abbottabad were declared failed in the First Professional Part-I (Annual) examination while petitioner No,4 Waseem Ali Khan could not appear in the said examination as fie was abroad by then. All of them appeared in the Supplementary examination held on 13th to 19th February, 2004 in which petitioners Nos.1, 2, 3 and 5 failed in one paper while petitioner No,4 in two papers of the Part- I of First Professional M.B.B.S. Thus on the strength of the same Paras. Contained in the Prospectus they were disallowed to attend Part-II course or to appear in the examination of Part-II of the first professional M.B.,B.S. Similarly In W.P.No,769 of 2004 (1) Miss Ayesha Sami (2) Miss Huma Daud Khan and (3) Miss Maria Gohar, students of Saidu Medical College, Swat were declared failed in Part-I of the First Professional (Annual) examination. They re-appeared in the Supplementary examination to qualify the failed papers which was held in March, 2004 and the result was declared on 20-4-2004 wherein they have been shown failed only in one paper of the Part-I thus they were refused promotion to Part-II and were also disallowed to appear in the examination of Part-II unless they qualify the papers in which they have failed. All the petitioners because of the ensuing examinations were granted interim relief through separate orders.
3. While constituting this Larger Bench, no clear reference was made probably for the reasons that the questions of law confronted with and to be determined, to some extent are emanating from the short order of the subsequent Hon'ble Division Bench of this Court. After going through The two judgments in the cases supra decided by the Hon'ble Division Benches and the proposition put forth in all these petitions, in our view the following law points require to be determined. These are stated below:--
(a) Whether Part-I and Part-II shall be construed as two different classes or they are parts of one and the same class i,e, First Professional M.B.,B.S.?
(b) If Part-I and Part-H are of one class then what are the affects of para. 3 of Regulation No IV of P.M.D.0 and rule 9 read with rule 18 contained in the prospectus?
(c) Is there any difference of opinion between the two Hon'ble Division Benches, the one given in Noor Muhammad case and the other in Miss Dur-e-Nayab Shama case?
4. We have heard at great length M/s Abdul Sattar Khan, Advocate for petitioner Alaptagin, Asif Ali Shah, Advocate for petitioner in W.P.No,769 of 2004, W.P.No,374 of 2004 and in W.P. No,2006 of 2004 and Astaghfirullah, Advocate for petition in W.P. No,192 of 2004 while from respondents' side Barrister Jehanzeb Rahim, learned Advocate-General for the Government of N.-W.F.P., Aziz Akhtar Chughtai, Advocate for P.M.D.C. Addressed arguments and for the Medical Institutions (respondents) Wasimuddin Khattak appeared and made detail submission.
5. As the learned counsel for the petitioners and those for the respondents have extensively referred to and relied upon the relevant Paras of the P.M.D.C. Regulations enacted by P.M.D.C. Under the provision of section 33(2) of the Medical Council Ordinance, 1962 and (Paras. 9, 18) contained in the Prospectus for N.-W.F.P. Medical/Dental Colleges issued for the Session 2003-2004 and also reliance was placed on the view taken by the Hon'ble Division Bench in the case of Miss Dur-e- Nayab Shama as well as on the view taken in the case of Noor Muhammad (2003 CLC Peshawar 753), therefore, all these relevant provisions and the case-law require in-depth study for proper construction.
6. The P.M.D.C. (Pakistan Medical and Dental Council) was constituted under section 3 of the Medical Council Ordinance, 1962 (Ordinance No,XXX of 1962). The preamble to the Ordinance reads as follows:-- "Whereas it is expedient to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualification in medicine and dentistry: Now, Therefore, in pursuance of the Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance."
According to section 3 read with section 4 of the Ordinance, the P.M.D.C. Consist of nominated and elected members headed by A President. It has been declared Body Corporate having perpetual succession and a common seal. The combined study of the various provisions of the Medical Council Ordinance and the schedules appended thereto leave nothing in doubt that the P.M.D.C. Is the only statutory body in the country with exclusive powers to recognize medical qualifications granted by medical institutions of Pakistan or abroad. It has authority and powers to have effective academic control over all Medical and Dental Institutions in Pakistan and to grant recognition to the new one but for the disposal of these petitions suffice it to say that the P.M.D.C. Has been invested with powers under section 33(2) of the Ordinance, to make Regulation which shall inter alia provide for:--
(a) prescribing a uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing the conditions for admission to courses of training as aforesaid. On reading the scheme of the law, it becomes clearer than crystal that the law maker with the object of providing one uniform policy and standard of medical education has given overriding and superimposing effects to this special law over other laws whether enacted/promulgated by the Provincial Government/legislatures or by the Universities in Pakistan, therefore, for all practical purposes the P.M.D.C. Thus constituted is the sole and supreme body to control, regulate and recognize the academics of all the Medical and Dental Institutions in Pakistan both at graduate and post-graduate level. The P.M.D.C. For achieving the objects set by the law framed and approved regulations on 22nd March, 1998 which were notified in August, 1998. In section IV under the Head Note "Examination"
(Objectives) Paras 2 and 3 of Regulation No,IV being relevant to the questions involved herein, are reproduced below:-- Regulation No,IV.
(2) No student shall be promoted to the 3rd year M.B.B.S. Class without passing the First Professional M.B.,B.S. Part-I and Part-II university examination in Anatomy, Physiology and Biochemistry.
(3) No student can be promoted to the higher classes unless he passes all the subjects of the previous classes. Again paras. 12, 13 and 17 having nexus with the subject are also quoted below:--
(12) The first professional examination should be divided into two parts, each to be conducted by the University.
(13) Any student who fails to pass the first professional M.B.B.S. Part-I and Part-II examination in three chances or does not avail the chances despite being eligible for each examination shall cease to pursue further medical education in Pakistan.
(17) At least three academic years should intervene between the dates of passing the first professional examination and the final professional examination.
7. From the above it thus appears that a change has been introduced in the courses of studies and mode and method of internal examination as under the old system the M.B.,B.S. Academic course consisted of first year M.B.,B.S., 2nd year, 3rd year, 4th year and final year but by now while maintaining the length of study period, the courses have been rearranged by dividing it into four professional examinations/courses. These are called first professional M.B.,B.S. (Part-I and Part-H), 2nd professional, 3rd professional and final professional (M.B.,B.S. Course). Although the entire course of five years has been mainly divided into four classes but within the first class further sub- division has been made splitting it into Part-I and Part-II with academic course duration of two years.
8. The guidelines and broader principles given in section III under the title "Corriculum (General Principles)" of P.M.D.C. Regulation No,I have been adopted by all the medical and dental institutions in the N.-W.F.P. In the Prospectus issued by the Department of Health, Government of N.-W.F.P for the N-.W.F.P. Medical and Dental Colleges session 2003-2004 the courses of studies have been mentioned in Part-IV at page-28 while at page-31 on the direction of P.M.D.C. The system of internal evaluation for Medical/Dental studies have been explained wherein, in the first profession M.B.,B.S. Part-I & Part-II, the students are required to take examination in Anatomy, Physiology and Biochemistry in theory and practical/viva in other words both the subjects of Part I & Part-II relate to one and the same field.
9. It was argued from the petitioner side, that, keeping in view, the length of courses of the three subjects taught in first professional M.B.,B.S., the class has been sub-divided into Part-I and Part-II for convenience sake but we would avoid to discuss this aspect of the case because reasons and objects are nowhere expressly given in support therefor.
10. The combined and careful reading of the entire scheme and courses of studies and pattern of examination provided for M.B.B.S. Undeniably would show that the first professional (M.B.B.S) which is described the first class has been sub-divided into two parts called Part-I and Part-II of first professional.
11. As the respondents Nos. 1 to 4 herein are placing their own construction on Clause-3 of section IV of the P.M.D.C. Regulation read with Rules 9 and 18 contained in the Prospectus under the head notes "Eligibility and Rules for Examination, therefore, to understand the said provisions and to see as to whether there is any inconsistency in between the two different provisions, the same are reproduced below:-- P.M.D.0 Regulation Clause-3, Part-I, Section IV Examinations.
"No student can be promoted to the higher class unless he passes all the subjects of the previous classes." Rule 9 of the Prospectus.
"A student who has failed/detained in a professional examination or its part both in Annual and Supplementary in any subject shall not be promoted to the next higher class. He/she shall undergo the course of studies in the subject(s) in which he/she failed/detained and pay the tuition fees along with all College dues for the same class in which failed/detained. There will be no provisional promotion to the next class for the failed students."
Rule 18 "A student who fails in any subject(s) will not be promoted to the next higher class and shall be required to attend the lectures and practical courses regularly with the subsequent class after declaration of the Supplementary result."
The two terms i,e, "Class" and "Part" certainly connote and deal with two different status. According to Black's Law Dictionary "Class is defined as a group of person, things, qualities, or activities having common characteristics or attributes. The order or rank according to which persons or things are arranged or assorted. Securities having similar features. Also, a body of persons uncertain in number. A "Class" within rule relating to class action must be taken in broad colloquial sense of group of people ranked' together as having common characteristics. While the Dictionary meaning of "Part" is that, an integral portion, something essentially belonging to a larger whole; that which together with another or others makes up a whole. A portion, share, or purport. One of two duplicate originals of a convenience or covenant, the other being called "counterpart". Also, in composition, partial or incomplete; as part payment, part performance.
12. Apart the above dictionary meaning of the two terms, a look on the pattern of division of the classes which are four in number and the terminology employed and the nomenclature given convey a clear intention that mainly the entire five years M.B.B.S. Course has been divided into four classes called first professional, 2nd professional, 3rd professional and final professional however, for convenience sake first professional has been further sub-divided into two parts and whatever the object behind this division might be, the subjects taught in Part-I and Part-II are one and the same. In Part-II although the same subjects are taught but probably that consist of advanced course therefor. Our this construction of the term is further re-enforced by the addition of the words in Para 9 of the Prospectus to the effect "or its part both Annual and Supplementary in any subject shall not be promoted to the next higher class". These additions albeit apprehensively were deemed essential by Government or for that matter the Joint Committee for the medical institutions because of the view taken by the Hon'ble Division Bench of this Court in the case of Miss Dur-e-Nayab Shama (supra) (W.P.No,750 of 2001) which is to the following effect:--
(3) In our view, the arrangement with reference to rule 18 of the Prospectus and rule 3 of the P.M.D.C.
Regulation is having force in it. Rule-18 of the Prospectus read with Rule-3 of the P.M.D.0 Regulation only restricts promotion of a student to next higher classes, if he fails to pass all the subjects of the previous class. The petitioner are students of First Professional M.B.,B.S. Class which has been bifurcated into two parts. The petitioners appeared in Part-I Examination but were declared unsuccessful in one or two subjects. The attendance of class for the preparation of Part-II Examination on the part of the petitioners would never amount to their promotion to the next higher class, as they are still studying in the first Professional M.B.,B.S. Class, which consists of Part-I and II.
The next higher class, in the absence of anything contrary in the Rules/Regulations would be 2nd year Professional M.B.,B.S. Class and, therefore, the refusal of the Principal, respondent No:l, or for that matter of respondent No,2 is not based on correct interpretation of the relevant provisions of the prospectus and the Regulation."
The above strategy, as it prima facie appears, was contrived by the respondents to get away from the binding nature of the above view and the interpretation thus placed on the "Class" and "Part" but the begging question is that in the presence of P.M.D.C. Regulations whether the added phrase in Rules 9 and 18 have brought about any visible change in the meaning of the "Class" and "Part", the answer is a big "No".
13. As discussed in the earlier part of this judgment, P.M.D.C. Being the sole statutory body empowered to provide broader principles of policy, criteria and standard for medical education in Pakistan, the Regulations thus framed by it are essentially to be adopted and applied by all the medical institutions operating elsewhere in Pakistan. In the instant case the relevant Regulation of P.M.D.C. Debars a student from promotion to the higher class only in case if he fails or does not qualify the papers of the previous class. The word/term "part or parts" employed therein shall not be construed in a way that failure to qualify in Part-I would ipso facto debar or disqualify a student to be promoted to Part-II of the first class (first professional).
' In view of the above discussion when the two terms/words "Class" and "Part" have not been defined in the P.M.D.C. Regulations or in the rules then the proper course is to adopt the dictionary meanings which are considerably apart frdm one another in its meaning and effect. Both these words/terms do not signify one and the same thing nor these can be taken synonymous one. The statutory bar on the promotion of failed students is thus confined to from one class to the other i,e, from the low rung to the next rung of the same ladder and this would in no eventuality apply to a student who has failed or could not qualify the Part-I of the first professional (M.B.,B.S) hence he/she despite of failing in Part-I would be entitled to promotion to Part-II of the first professional (M.B.,B.S.) because move over from Part-I to Part-II does not amount to promotion to a higher class.
The view thus taken by the respondents on the strength of Rules 9 of and 18 of the Prospectus read with Clause-3 of P.M.D.C. Regulation section-IV is certainly misconceived one and could not be approved. It is a cardinal principle of the construction of Statutes law that whenever two interpretations of Statute/Rules are equally possible then the one which suppress the mischief and advance the cause shall be adopted. In the instant case if the petitioners are refused the relief which they have prayed for, that will certainly cause them prejudice while to the contrary the respondents would neither suffer any loss nor the standard of education so provided would receive any set back because the petitioners are required under the rules to qualify all the papers of Part-I and Part-II of the first professional according to the laid down criteria whereafter they would be entitled to promotion to the 3rd year (2ndIG professional M.B.,B.S.).
14. Now coming to the question as to whether there is indeed any conflict of opinion between the two Hon'ble Division Benches in their judgments rendered in W.P.No,750 of 2001 (Miss Dur-e-Nayab Shama v. Principal Khyber Medical College, Peshawar and others) and in the case of Noor Muhammad (2003 CLC Peshawar 753), although it poses some difficulty but we are clear in our mind that in fact there is no clash of views between the two Hon'ble Division Benches albeit the approach to the matter by both the Benches is altogether different because of distinct propositions involved. In Miss Dur-e-Nayab Shama case, the proposition propounded therein was that in view of Rule 18 of the Prospectus and Regulation-III of the P.M.D.C. Restrict the promotion of a student from Part-I to Part-II if he/she does not qualify the papers/subjects of Part-I which was answered in the negative. In Noor Muhammad case, however, entirely a different proposition was put forth which was to the effect that the petitioners therein were debarred from challenging the propriety and legality/wires of Rules 9 and 18 of the Prospectus on the principle of promissory estoppel on the strength of head note No,1 under the title admission policy (Important notes) wherein it is provided as follows:--
1. This prospectus is approved by the Government of N.-W.F.P. And applies to all students of M.B.,B.S./B.D.S. Of medical/dental colleges. The Government of N.-W.F.P. Reserves the right of change of all or any of the rules and Regulations given in this Prospectus without previous notice whenever considered necessary. Each candidate must study it thoroughly before applying for admission to the Colleges. The above proposition was accepted and on the principle of estoppel the writ petition was dismissed, therefore, in our view there is no apparent conflict of opinion between the two Hon'ble Division Benches of this Court in the ibid cases as both the judgments proceed on different proposition.
For the above stated reasons and discussion, all these writ petitions are allowed and the prayer made therein against the impugned action/refusal of the respondents discussed in the earlier part of this judgment is granted to the petitioners. The interim relief granted to the petitioner in the present W.P.1074 of 2003 on 22-2-2004, to the petitioner in W.P. 769 of 2004 on 1-6-2004, to the petitioner in W.P 206 of 2004 on 24-2-2004, to the petitioner in W.P.374 of 2004 vide order dated 1-4-2004 and to the petitioner in W.P. 192 of 2004 vide order dated 27-2-2004, on acceptance of these writ petitions are hereby confirmed as the same have merged into this final judgment.