Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SAAD MUHAMMAD SHAHEEN AL SOOFI AND 8 Others VS Respondent: PRINCIPAL & JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter, Syed Sajjad Ali Shah Title:SAAD MUHAMMAD SHAHEEN AL SOOFI AND 8 Others vs PRINCIPAL &
JUDGMENT
Reported As: 1982 CLC 805 Result: Appeal accepted Judgment JUDGMENT SALBEM AKHTAR, J.-The petitioners are students of 4th year M. B., B. S. Class of Sind Medical College, Karachi. By this petition they have challenged. The order of Principal of the College debarring them from appearing in the examination of 4th year scheduled to be held from 16th June, 1981. The petitioners appeared in 3rd year examination held in September/October, 1979 but failed. Thereafter, they appeared in supplementary examination which was held in March, 1980. The result was announced on 18-5-1980 and they again failed. Again in supplementary examination held in September, 1980 they appeared and passed. The result was announced on 11-1-1981. Peti--tioners' case is that in accordance with the Regulation made by Pakistan Medical and Dental Council (hereinafter called the Council) in its session held on 3rd and 4th of May, 1980 at Quetta the 3rd year students on completion of their courses were allowed to continue their training in the 4th year regard--less of their results in 3rd year (also known as 2nd professional) examination, with the condition that they must clear all subjects of 2nd professional M. B., B. S. Examination before they are allowed to sit in 4th year (also known as 3rd Professional) examination. Taking advantage of this Regulation the petitioners allege to have joined the 4th Year Class in October, 1980, i.e. Before the announcement of their results, and they continued their studies and clinical postings. This decision of the Council was reconsidered in its meeting held in November, 1980 and certain amendments were made which do not in any manner concern with the petitioners' case. In a nutshell the same advantages were allowed to the students who having failed in 4th Year/3rd Professional Examination were promoted to 5th Year subject to the condition that they would be
---
## Page 2
eligible to appear in the final examination after they have passed all subjects of 3rd Professional and completed one year in 5th Year. The Principal of the College who is respondent No. 1 by his office order dated 30th November, 1980 clarified these decisions of the Council as under :- (1) The First Professional examination must be cleared before a student is promoted to 3rd year i.e. For clinical posting:- (2) The 3rd year students will, on completion, of their courses are allowed to continue their training in the 4th year, regardless of the result in the 2nd Professional Examination, but a candidate must clear all the subjects of 2nd Professional Examination, before he is allowed to appear in the 3rd Professional Examination. (3) Any students who might have failed in the 3rd Professional Examina--tion will continue his course in the final year, but shall not be allowed to take the final M. B., B. S. Examination unless he has passed all subjects of the 3rd Professional Examination and completed in the final year all the requirements of the resolutions of the Pakistan Medical and Dental Council. Petitioners have further alleged that by another office order of 2nd November/ December, 1980, which is reproduced hereunder, the respondent No. 1 clarified that the petitioners will be entitled to appear in the Supplementary examination to be held after the Annual Examination, scheduled for January, 1981. "OFFICE OF THE PRINCIPAL AND CHAIRMAN ACADEMIC COUNCIL, SIND MEDICAL COLLEGE, KARACHI Dated : 2nd Nov. 1980 No. F. 8-18/80-Estt : 4755 Dec. *Office Order* Subject :-Posting of IIIrd Year M. B., B. S. Class (Sd.) (Prof. Dr. Muhammad Iliyas) B. Sc., M. B., B. S. (Mys.) DPH (Cal.) MPH (Harvard). Principal and Chairman, Academic Council Sind Medical College, Karachi NOTICE BOARD Copy to :-- 1. The Clinical Co-ordinator, JPMC, Karachi. 2. The Heads of the All Deptts. JPMC & SNIC, Karachi. Principal & Chairman, Academic Council, Sind Medical College Karachi." By referring to this order the petitioners have stated that respondent No. 1 had assured that the petitioners will be entitled to appear in the examination scheduled to be held in June, 1981. The petitioners have submitted that having joined the 4th Year Class in October, 1980 they have regularly attended the classes, clinical postings and studies and are eligible to appear in the 4 Year M. B., B. S. Supplementary Examination scheduled to be held in June, 1981. However the respondent No. 1 issued a notice on 15th April, 1981, in the following terms "With reference to their joint application dated 4-4-1981. The 4th Year M. B., B. S. Students who commenced their clinical postings from 13-12-1980 and wish to appear in the forthcoming 3rd Professional Supplementary Examination, are hereby informed that their case has been carefully considered and it has been found that this is not covered by the Pakistan P. M. D. C. Regulations." The petitioners, therefore; filed this petition challenging the order of the respondent No. 1 on the ground that in terms of the Regulations of the Council and the clarification and assurance given byth
---
## Page 3
the respondent No. 1, earlier, they are entitled to appear in the forthcoming Supplementary Examina--tion and the order passed by the respondent No. 1 is without lawful authority. The petition was filed on 2nd May, 1981 and was admitted for regular hearing on 6th of May, 1981. Notice was issued to the respondents for 4-5-1981. On that date the Advocate for the petitioner and respondent No. 2 were present but the respondent No. 1 did not appear. The matter was adjourned to 20th May, 1981. On that day Mr. A. Sattar Shaikh, the Additional Advocate-General appeared for respondent No. 1, and stated that he had received the comments, though it was not called by the Court, and requested for time. However the following order was passed by the Court :-- "20-5-1981 : Mr. Ibadat Yar Khan for the Petitioner. Mr. A. Sattar Shaikh, Addl. A. G. For Respondent. Learned Additional Advocate-General states that the comments have been supplied to him today and requests for time to submit them. How--ever, learned counsel for the petitioner requests that ad interim relief may be granted to the petitioners since the examination in which they are seeking admission is imminently to take place and if this applica--tion is not disposed of, the whole petition may become infructuous. We have made suggestion to the learned A. A. G. That in view of the fact that this petition has been admitted to regular hearing and the circumstances submitted by the learned counsel for the peti- -tioner, the via media seems to be to permit the petitioners to take the ensuing examination subject to the decision of this petition and in that case their results could be withheld until the decision of this petition. However, he submits that the comments indicate that the petitioners have not satisfied the rule requiring minimum attendance for eligibility to appear at the examination. Upon our inquiry as to the particulars of the period falling short in each case from the prescribed requirement regarding attendance, he is unable to give such particulars. On behalf of the petitioners, their learned counsel asserts that each of the petitioner has attended the classes for the required minimum period. (Sd/-) Judge (Sd/-) Judge." When the matter was taken up on 26th May, 1981 the Court ordered that the matter may be fixed for regular hearing immediately on the com--mencement of Summer Vacations. It was further ordered : "The records relating to the attendance of the petitioners shall be kept available by respondent No. 1 on the date of hearing." On 9th June, 1981. When the matter came up for hearing in view of the fact that the examination is to be held from 16th June, 1981, by consent of the parties the matter was fixed for final hearing on 10th June, 1981. Res--pondent No. 1 had filed his comments and again filed a short-counter-- affidavit on 10-6-1981 copy of which was supplied to the petitioners in Court and consequently no rejoinder affidavit could be filed by the petitioners. The respondent No. 2 has also filed his counter affidavit. We have heard Mr. Ibadat Yar Khan, Advocate for the petitioner, Mr. A. Sattar Shaikh, Additional Advocate-General for respondent No. 1 and Mr. R. H. Faruqi, Advocate for respondent No. 2. Mr. Ibadat Yar Khan the learned counsel for the petitioners has con--tended that by virtue of the Regulations of the Council which was passed in May, 1980, the petitioners become entitled to appear in the Supplementary Examination of 4th Year M. B., B. S. Class scheduled to beheld on 16- 6-1981. He has further relied upon the office orders and clarifications made by respondent No. 1 and has contended that in view of the fact that the peti--tioners have joined the 4th Year M. B., B. S. Class in October, 1.980 and complied with all the conditions laid down by the Council they. Are
---
## Page 4
eligible to appear in the forthcoming Supplementary Examination. The learned counsel for the respondent No. 1 has contended that the petitioners are not eligible to appear in the examination on the ground that they have not completed 75 Y, of the attendance required by the Regulation of the Council. The learned counsel for the respondent No. 2 has further contended that the Regulations neither create any right in the petitioners nor the same can be enforced by the Court. He has further submitted that the Regulations made by the Council at Quetta and Peshawar do not absolve the petitioners from completing 75 % attendance in ail the subjects. Before we consider the contention of the petitioners whether the Regula--tions entitle them to appear in the examination scheduled to be held in. June, 1981, we would first deal with the aforestated contentions of the learned counsel for respondent No. 1. Mr. A. Sattar Shaikh the learned Additional Advocate-General has submitted that the Regulations made by the Council do not create any right. His main contention in this regard is that the Regulations made by the Council only allow the petitioners to carry on the clinical work but its duration and commencement has to be fixed by the respondent No. 1. The Regulations relate to internal management of the College and therefore, the Court cannot interfere in it. The argument of the learned counsel seems to be based on some misconception of facts and law both. The Council was first created by Ordinance XXXII of 1962. At that time it was known as Medical Council but later an amendment was made in the year 1973 by Medical Council Act X of 1973 whereby its-name was amended as Medical and Dental Council of Pakistan. Under section 33 of the Ordinance the Council is empowered to make Regulations with the previous sanction of the Central Government in respect of matters categorised in section 33 (1). Under section 33, subsection (2) it is provided that in respect of matters categorised under this subsection Regulation can be made by the Council without the previous sanction of the Central Government. It empowers the Council to make Regulations "(a) prescribing a uniform minimum standard of courses of training for obtaining graduate and post--graduate medical and dental qualifications; (b) prescribing minimum require--ments for the content and duration and courses of study as aforesaid ; (c) prescribing the conditions for admission to courses of training as aforesaid ; (d) prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions; (e) prescribing the standards of examination, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance; (f) prescribing the qualifications and experience required of examiners for Professional examinations in medical and dentistry and antecedents to the granting of recognised medical qualifications; (g) registration of medical or dental students at any medical or dental college or school or any university and the fee payable in respect of such registra--tion". The Council in pursuance of this provision of law made Regulations for the degree of Bachelor of Medicine and Bachelor of Surgery (M. B., B. S.) which was amended from time to time. A copy of these Regulations was supplied to us by the learned counsel for respondent No. 2, which includes the Regulations made by the Council which are subject matter of the present controversy. It is nobody's case that the Regulations made by the Council which are subject matter of this petition are ultra vires or without jurisdiction. The Council has been vested with vast powers to prescribe the standards of medical education. It is authorised to make Regulations prescribing minimum requirement for the content and duration of courses of studies. It is there--fore futile on the part of the learned Additional Advocate-General to contend that it is the internal matter of the College and it has nothing to do with the Council. The Council has full power and total control over the medical education. The Medical Colleges are bound by the Regulations. The Medical education has to be imparted and examinations are to held within the ambit of the Regulations. In this regard we would particularly refer to the statement of Mr. R. H. Faruqi, the learned counsel for the respondent No. 2 i.e. The University of Karachi, that the Regulations made by
---
## Page 5
the Council are binding upon the University and in this regard he has submitted that if the respondent No. 1 sends the examination forms of the students certifying that they are in accordance with the Regulations made by the Council, the Univer--sity will accept such form without in any manner challenging the same. "Before parting with this case we may observe that the High Court appears to be right in thinking that the recommendation of a sub--committee laying down conditions for promotion to Senior Class I (Junior Grade) could not be regarded as being in the nature of statutory Rules, even though they were approved by the Council itself in its meeting held on 17th of November, 1964. It would be recalled that the College Governing Council itself was created by the Admi--nistrator of the Municipal Committee of Burewala, and certain powers were delegated to it under section 33, Punjab Municipal, Act, 1911, read with section 39 thereof. The effect of this delegation was that the teaching staff and the other employees of the Municipal College, Burewala, could be appointed and removed by the College Governing Council, subject to the provisions of the Act and Rules and bye-laws made thereunder. The power to frame rules under the Act is rested, by sections 240, in the Provincial Government. Clause (n) of sub--section (1) of this section deals with the subject of employment, punishment, suspension or removal of officers and servants of the committee. 1t is clear that this rule-making power cannot be delegated to any sub-committee or the College Governing Council. It was for this reason that the West Pakistan Local Council and Municipal Committee Service Rules, 1963, were framed by the Governor of West Pakistan in exercise of the powers conferred by Article 44 read with Article 89 of the Basic Democracies Order, 1959, and section 29 r/w. Section. 121 of the Municipal Administration Ordinance, 1960 (which had replaced the Punjab Municipal Act of 1911). Apart from the rules which can be framed only by the Government, the Municipal Act contemplates, by virtue of section 188, that bye-laws can be framed by a Municipal Committee. Here again, there is no provision for a Municipal Committee to delegate this power to any subordinate sub-committee or authority. Such being the case, the College Governing Council or any sub-committee constituted by it could only make regulations for the internal manage--ment of the College, and such regulations could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its extraordinary jurisdiction under Article 98 of the 1962 Constitution." The learned Additional Advocate-General has merely relied on the last paragraph quoted above without realising the facts of the case and she situation under which such observation was made. The present case is completely distinguishable on facts and the observation made by the Supreme Court is not applicable for the simple reason that in the present case the Regulations have been framed by the Council under section 33 of Ordinance XXXII of 1962. Under the statute the Council is vested with power to frame Regulation to prescribe 'minimum standard of courses, the contents and duration of study, the contention for admission to course the standards of examination and methods of conducting the examination. The examinations are therefore to be held as provided by the Regulations. The Respondent No. 1 cannot alter the duration of courses of study as fixed by the Regulation. He can however within the framework of the Regulations fix dates for the commencement of the sessions and holding of the examinations. The pros--pectus of M. B., B. S. And B. D. S. For Medical Colleges of Sind Province for the year 1979-80 issued by the Health Department, Government of Sind in clause (1) of Part II provides that "the courses curricula and examinations for the Degree of M. B., B. S. And B. D. S. Are governed by the rules and regulations of Pakistan Medical and Dental Council currently in force and as amended from time to time". This clearly demonstrates that the entire study for M. B., B. S. And B. D. S. Course is to be regulated by the Regulations framed by the Council. We are, therefore of the clear view that the Regula--tions made by the Council are enforceable and applicable to all the Medical Colleges. These Regulations
---
## Page 6
cannot be treated as rules relating to internal arrangement or management of the Colleges which may be optional and enforceable at the discretion of the administrative authorities of the College. Breach of the Regulations of the Council in some cases are likely to effect the right of the candidates and or students. The High Court can therefore interfere and grant relief in cases where breach has been committed in respect of fundamental Regulations effecter : the right of any person which he can claim under the Regulation. In such cases where procedural steps are required to be taken by the College authorities it will not amount to vesting them with the discretion to avoid the Regulations. The learned counsel for the respondent No. 1 vehemently contended that even if the Regulations referred above are applicable, the petitioners are not absolved from completing 75 j of the attendance in all the subjects. In the circumstances the question remains for consideration is whether the petitioners have not completed 75 % of their attendance. In this regard reference has been made to the Regulations of the Council entitled "Regula--tions for the Decree of Bachelor of Medicine and Bachelor of Surgery (M. B., B. S.). Regulation No. 3 under the heading "Regulation For Profes--sional Examination providers that "it is necessary that no student should be sent up for any examination unless he has attended 75 j5 of lectures, demons--trations, tutorials the practicals and clinical work both inpatients and out--patients. The 75 % attendance shall not be necessary for the failed students to repeat examinations even at the time of re-admission to any part of medical studies." It is true that the student's appearing for examination should have attended 75% of lectures, demonstrations, tutorials, practicals and clinical work as required by this Regulation. There can be no escape from this provision, unless relaxed by the Regulations. In this regard the petitioners have contended that they have been attending the 4th Year Class, clinical works and practical from October, 1980 and have regularly attended up to May, 1981. They have further placed reliance on the office order issued by the respondent No. 1, whereby he had clarified that "the old 3rd Year Classes will also be eligible to undertake the courses and 'the classes of 4th Year, class but will not be eligible to undertake the 3rd Professional Annual Examination to be held in January, 1981. They will, however, be in a position to undertake the Supplementary Examination provided they meet the requirements of the Pakistan Medical and Dental Council Regulations and the University of Karachi." According to the Petitioners this office order while clarifying the position had taken into consideration all the Regulations of the Council. The learned Additional Advocate-General contended that the petitioners had joined the 4th Year Class on 13-12-1980 and therefore, in May, 1981 obviously they could not be expected to complete 75% attendance during the academic year. If the situation was so clear that the petitioners' ineligibility was prima facie established then there was no need for the respondent No. I to have issued the aforestated office order dated 2nd. November/December, 1980 informing the students falling within the category of the petitioners that they would be entitled to appear in the supplementary examination. It seems that at the time of issuing the office order there was no such objection as contended by the learned Additional Advocate-General otherwise the same would not have been issued at all. This brings down to the question whether from the date of joining the 4th Year Class till the holding of supplementary examination the petitioners have attended 75 % of the lectures, demonstrations, practical and clinical works. The petitioners have asserted that they have complied with this Regulation. In the circumstances Respondent No. 1 who is required to maintain the record of regular attendance should have placed such material which may substantially dislodge the allegations made by the petitioners. We asked the learned Additional Advocate-General since when the academic year for the petitioners classes started in the College, but unfortunately neither he nor the representative of the respondent No. 1 who was present during the bearing were able to give any date and the Additional Advocate-General stated that he was not aware of it. We further enquired on what basis the respondent No. 1 is alleging that the petitioners have not attended 75 % of the classes. The
---
## Page 7
learned Additional Advocate-General was not able to show us any document or to specifically state the grounds and materials on the basis of which such a statement was made by the respondent No. 1. It is noteworthy that twice respondent No. 1 was ordered to produce the attendance record and make them available in Court but his counsel did not inform that such records were not available. These records were not produced by the respondent No. 1. We again enquired from the Advocate for respondent No. 1 about the record of the attendance but he for the first title stated that neither any record is available nor any such record is maintained by the College. He stated that a card is issued to the students who take signatures of their teachers on it and that is the basis for determining the attendance of the students. This was categorically denied by the petitioners. We, therefore, asked the learned Additional Advocate-General to produce the specimen card for our examination. The learned Additional Advocate-General then sought instructions from the representative of the respondent No. 1 who state that no such card is maintained by Sind Medical College. From this enquiry it transpired that Respondent No. 1 did not have any record in his possession from which he could satisfy himself and make a clear and positive statement that the petitioners have not completed 75 % of the attendance. We are unable to understand on what basis such statement was made by the respondent No. 1. The learned Additional Advocate-General wanted us merely to rely upon the bare statement of the respondent No. 1 made in his counter affidavit which was fled on the date of hearing in Court. We arc reluctant to accept the suggestion made by the learned Additional Advocate-- General as the documents and register for recording the attendance has neither been produced nor maintained by the Respondent No. 1. It's therefore difficult to believe the statement of the Respondent No. 1. Clause 17(c) of Part X of the prospectus issued by the Government of Sind in respect of M. B., B. S. Classes under the heading "Student Discipline and Conduct", provides that "for every lecture,/practical/clinic attendance will be recorded and presence or absence of students noted. A student coming late will be marked absent unless student's excuse is accepted by the teacher concerned". Clause (d) provides that "the examination forms of the student will not…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.