Medical university discharged the students from university after failed in first exams and supreme court upheld the decision of University.

میڈیکل کی تین طالبات، سندس، نائلہ خان، اور محترمہ۔ ریما ناز نے یونیورسٹی کے قواعد و ضوابط کے مطابق متعدد بار اپنے امتحانات میں ناکام ہونے کے بعد ان کی رجسٹریشن منسوخ کرنے کے یونیورسٹی کے فیصلے کو چیلنج کیا۔ ابتدائی طور پر انہیں عارضی عدالتی احکامات کے ذریعے اپنی تعلیم جاری رکھنے کی اجازت دی گئی تھی لیکن آخرکار یونیورسٹی نے درست ضوابط کے مطابق ان کی رجسٹریشن منسوخ کر دی۔

سپریم کورٹ نے یونیورسٹی کے فیصلے کو برقرار رکھتے ہوئے کہا کہ قواعد و ضوابط واضح اور پابند ہیں۔ عدالت نے اس بات پر زور دیا کہ تعلیمی حکام کی طرف سے مقرر کردہ تعلیمی معیارات کا احترام کیا جانا چاہیے اور ہمدردی ان قائم کردہ اصولوں کو زیر نہیں کر سکتی۔ اس طرح، طلباء کی درخواستوں کو خارج کر دیا گیا، جو یونیورسٹی کے اپنے ضوابط کو نافذ کرنے کے حق کی تصدیق کرتی ہے۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Qazi Faez Isa, C.J.

Mr. Justice Amin-ud-Din Khan

Mr. Justice Athar Minallah

CIVIL PETITION NO.1354, 355 &1447 OF 2020

(Against the judgment dated 12.02.2020 of the High Court of

Peshawar respectively passed in Writ Petitions Nos.219-A of

2018, 258-A of 2019 & 1312-P of 2018)

Sundas

…

(in CP-1354/20)

Naila Khan

…

(in CP-1355/20)

Mst. Reema Naz

…

(in CP-1447/20)

Petitioners

Versus

Khyber Medical University thr.

V.C. Peshawar & others

…

(in CPs-1354-1355/20)

The V.C. Khyber Medical

University, Peshawar and others

…

(in CP-1447/20)

Respondents

For the petitioners:

Ms. Shirin Imran, ASC

(in CPs-1354 & 1355 of 2020)

Mr. Amjad Ali, ASC

(in CP-1447 of 2020)

For the respondents:

Mr. Abdul Munim Khan, ASC

(in all cases)

Date of hearing:

12.10.2023

JUDGMENT

Athar Minallah, J. In all these petitions the petitioners have sought leave

against the consolidated judgment of the High Court, dated 12.02.2020,

whereby separate petitions filed by them invoking the jurisdiction under

Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

(‘Constitution’) were dismissed.

The petitioners were registered by the Khyber Medical University

(‘University’) as enrolled students of the affiliated medical institutions.

The affairs of the medical institutions and eligibility of students relating

to pursuing medical studies are regulated by the Pakistan Medical and

Dental Council (‘Council’) established under the Pakistan Medical and

Dental Council Ordinance, 1962 (‘Ordinance of 1962’). Pursuant to

CP 1354/2020 etc.

powers conferred under section 33 of the Ordinance of 1962, the Council

had made the 'Admissions in MBBS/BDS Courses and Conditions for

House Job/

Internship/

Foundation Year Regulations, 2013'

(‘Regulations of 2013’). The Regulations of 2013 had, inter alia, explicitly

determined the criteria regarding the right to continue medical studies by

providing that a student who failed to clear the first professional or the

2nd professional in four chances, availed or un-availed, would no more be

eligible to continue medical/dental studies of MBBS or BDS course, as

the case may be. It was further provided that such a student would also

become ineligible to seek admission as a fresh student. The regulations

were binding on all the recognized medical institutions and the University

and, therefore, the eligibility criteria was duly incorporated by the latter

in its own regulations i.e the Khyber Medical University Examination

Regulations, 2008 ('Regulations of 2008'). Admittedly, the petitioners

failed to pass the examinations in four chances, availed or un-availed

and thus they had become ineligible to continue their medical studies

under the Regulations of 2013. Before their respective registrations were

revoked by the University, the petitioners chose to invoke the plenary

jurisdiction vested in the civil courts by filing separate suits. Injunctive

orders, directing the University to allow the petitioners to take the

reexaminations, enabled them to pursue their medical studies despite

having lost their eligibility in the light of the aforementioned regulations.

It was on the basis of such injunctive orders that the petitioners were

allowed to pursue their studies in violation of the binding regulations of

the regulator. The University subsequently issued notifications whereby

the registrations of the petitioners were cancelled in accordance with the

Regulations of 2013. The notifications were challenged before the High

Court through constitutional petitions and which were dismissed through

the consolidated impugned judgment.

CP 1354/2020 etc.

We have heard the learned counsel for the petitioners. Though they

have conceded that the Regulations of 2013 were valid and applicable,

they have argued that the petitioners ought to have been allowed to

complete their studies because they had passed the 1st and 2nd

professional examinations. They have stressed that the petitioners would

be exposed to extreme hardship if they were prevented from completing

their studies. Ms. Shireen Imran, ASC, has argued that the eligibility

condition prescribed under the Regulations of 2013 were subsequently

repealed in 2020 and, therefore, it would be unjust and unfair to treat

the petitioners differently. The counsels have urged to allow the

petitioners to complete their degrees on compassionate grounds.

It is not disputed that the petitioners had lost their eligibility to

continue their medical studies in accordance with the standards set out

under the Regulations of 2013, which were declared by the High Court to

be valid and intra vires and, subsequently, the judgment was upheld by

this Court1. The regulator i.e the Council had prescribed the conditions

relating to eligibility and they were binding on all the medical

institutions. The eligibility criteria was prescribed in the context of

academic performance of a student and by no stretch of the imagination

could it be construed as unreasonable. It is settled law that courts are

required to exercise utmost restraint in matters relating to policies,

discipline and other academic affairs of educational institutions. Refusing

to interfere is a rule and deviation therefrom is an exception which can

only be justified on the basis of clear and undisputed violation of the law.

The reluctance of the courts to interfere with academic affairs is based on

the foundational principle that the academicians and educational

institutions are the best judges because formulating policies and

eligibility criteria falls within their exclusive domain. The standards

Sadia Nawaz Khan v. Federation of Pakistan and others (CP 928 of 2017)

CP 1354/2020 etc.

prescribed and set out in the regulations relating to academic bodies,

determination of eligibility to pursue studies and other related policies

are generally not open to judicial review unless they can be clearly shown

to contravene the law or to be shockingly unreasonable or perverse. The

courts are not equipped nor have the capacity to deal with academic

matters, let alone substituting opinions formed by experts or

professionals. This court has rigorously upheld and given effect to the

regulations made by the Council under the Ordinance of 19622. The

emphasis of the learned counsels regarding extending relief on the basis

of compassion and hardship is misconceived. It is the duty of every court

to implement the enforced laws and to decide the disputes in accordance

therewith, rather than on the basis of compassion. The courts cannot

grant any relief in breach of the law nor create a right in favour of a

litigant which the latter does not possess by or under the law3.

Compassion and hardship cannot be relevant considerations when there

is no scope for it in the relevant laws4.

The petitioners had become ineligible and the right to pursue their

studies was lost when they had failed to pass the examinations after four

chances, availed or un-availed. The Regulations of 2013 were binding

and the courts, by granting injunctive orders, had transgressed their

jurisdiction because it had the effect of suspending the regulations which

were competently framed under the Ordinance of 1962. The courts had

disregarded the principles enunciated by this Court in the

aforementioned judgments. The petitioners had chosen at their own risk

to continue their studies, knowing that under the binding regulations

they were not eligible. The injunctive orders passed by the respective civil

2 Muhammad Hamid Shah v. Pakistan Medical & Dental Council and others (1996 SCMR 1101)

2 Ms. Asma Ghafoor v. Principal, King Edward Medical College and others (2011 SCMR 1311)

2 Munaza Habib and others v. The Vice Chancellor and others (1996 SCMR 1790)

2 VC University of Punjab v. Mst. Maria Hidayat Khan and others (2007 SCMR 1231)

3 Director General, National Savings v. Balqees Begum and others (PLD 2013 SC 174)

4 Aina Haya v. Principal, Peshawar Model Girls High Court and others (2023 SCMR 198)

CP 1354/2020 etc.

courts did not create any right in favour of the petitioners nor were they

competent to make them eligible for the purpose of pursuing their

medical studies in violation of the standards set out by the regulator in

the Regulations of 2013.

We would add that every citizen is unquestionably entitled and

enjoys a right to choose the pursuit of a profession or trade but such a

right is not absolute. The regulating authority may set minimum

standards in the context of exercising the right in order to safeguard the

interests and welfare of the public. The Ordinance of 1962 and the

regulations made pursuant to powers conferred thereunder regulate the

medical profession, including the affairs of the medical education and

institutions, to promote the interest and wellbeing of the ultimate

stakeholders i.e the public who would repose and rely on the knowledge

and skill of medical practitioners. They will be placing their lives in the

hands of those students who would be graduating from the medical

institutions. The standards set by the experts under the Regulations of

2013 regarding the determination of eligibility, including the necessary

skills and knowledge required to pursue the medical profession are,

therefore, not open to judicial review, nor can the court substitute them

with its own.

7. For the foregoing reasons, no case is made out for grant of leave and

thus the petitions are dismissed as being without merit.

Chief Justice

Judge

Islamabad the

12th October 2023

APPROVED FOR

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