ZUBAIR ISHTIAQ QURESHI vs THE CHAIRMAN OF ACADEMIC COUNCIL AND PRINCIPAL OF SINDH MEDICAL COLLEGE, KARACHI and 3 others

1. ' WAJIHUDDIN AHMED, J.---Central to the disputes in these petitions is Note (ii) of Regulation No, 4(1) of the Pakistan Medical and Dental Association Regulations, which runs thus:-- "(ii) Any student who fails to clear First Professional M.B.,B.S. Examination in four chances availed or unavailed shall cease to be eligible for further medical/dental education in Pakistan."

2. ' The learned counsel in the context of the Note, above-reproduced, have referred us to the decision of the Peshawar High Court in Asim Siddique v. Principal, A.M. College, PLD 1992 Peshawar 52, declaring that the quoted rule could not "be interpreted in the manner that under all circumstances which may be even beyond the control of a student he has to avail the four chances provided for the examination".

3. ' We are in respectful agreement with the opinion expressed by the learned Judges of the Peshawar High Court. It is, therefore, a correct proposition of law to say that the phrase, "a student failing to clear First Professional M.B.,B.S. Examination in four chances availed or unavailcd" in the reproduced rule is applicable only to such cases where the said four chances have either been fully but unsuccessfully availed of or have remained "unavailed", in circumstances, involving voluntary failure or designed inaction on the part of the student. In other words, if the concerned student is able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause, beyond his control, from availing of a chance he cannot be said to have failed in availing one of such four chances, as aforesaid.

4. ' We have reached the conclusion that we have reached, apart from the language on which the regulation proceeds, also on the ground that a provision disqualifying a student from further pursuit of education in a faculty is necessarily penal in nature and doubts as to its interpretation, if any, are required by law to be resolved in favour of the affectec.

5. ' In the specific context of these petitions, it is an admitted position that the petitioners have alleged sickness of various characters, which have not specifically been denied. Such sickness i,e, acute gastro-enteritis, hepatitis, painful skin eruptions etc., if actually, suffered could undoubtedly result in the debilitation of a student to an extent where he could not be deemed fit enough to take examination in a professional course. In one case an additional fact pleaded is that the relevant student became incapacitated to avail one of the chances due to transfer from one University to another, losing opportunities at both, one University declining the test because of impending transfer and the other becoming helpless, the examination being over before the transfer materialising. All these were matters requiring scrutiny and verification and if confirmed could be valid grounds for holding the failure to avail the chance in question beyond control or totally unavoidable. Unfortunately these facts were not examined at the level of the respondent and the Regulations were interpreted so as to exclude all possibilities of redress once four chances "availed or unavailed" stood fruitlessly exhausted. This is evidenced by Office Order dated 25-8-1992 of the Principal, Sindh Medical C College, addressed to the four petitioners declaring them ineligible for any more chances, the resultant applications of the students with forwarding note dated 30-84992 of the Principal to the Pakistan Medical and Dental Council and the rejection order of the Council communicated through letter dated 11-9-1992. It, therefore, follows that the alleged disabilities of the petitioners, not controverted at any stage or level, shall be deemed as admitted facts.

6. ' In view of the foregoing, the learned counsel appearing for the respondents have expressed their concurrence in an order to the effect that the petitioners in the connected petitions would be provided one further and last chance to take the relevant examination to the extent necessary. All parties, such as they may be, would be prepared to abide with the result of such a chance so provided. To that extent and in the foregoing terms relevant orders of the respondents are set aside and these connected petitions are allowed.

7. ' While this order was being dictated in all the connected petitions, the petitioner in Constitution Petition No, D-3120/1992 has pointedly urged that he availed of only two chances and was absolutely unable to avail the remaining two. This aspect will require deeper examination of facts, which we, at this stage, are not inclined to undertake. All that we would do in the context of this petitioner is that in case he fails to succeed in the one chance, provided to him in terms of this order, he can apply to the Principal of the College to consider his entitlement, if any, on the rule spelled out as above, for a 4th chance, if arising within the ambit of the quoted Regulations. This aspect of the order also satisfies all the learned counsel.

8. ' Petitions disposed of accordingly.