No Fifth Chance

The SHC upholds the PMDC rule of four attempts for medical students

KARACHI: The Sindh High Court (SHC) upheld a rule formulated by the principles and deans of all recognised medical colleges and universities in the country and approved by the Pakistan Medical and Dental Council (PMDC) that any student who fails to pass the First Professional or Second Professional in four chances availed or unavailed shall be ineligible for continuation of medical or dental studies in the MBBS or BDS.

The court’s ruling came recently on a petition filed in 2015 by Mehwish Saleh challenging her expulsion from Shaheed Mohtarma Benazir Bhutto Medical College (SMBBMC) Lyari.

She had previously filed a petition on the same grounds in 2014, claiming to be a first-year MBBS student at SMBBMC. However, she was expelled from the college on July 30, 2013, via letter SMBBMCL/(Student)/2013-14/28952, citing certain rules and regulations of the Pakistan Medical and Dental Council as mentioned in the PMDC letter of July 16, 2013.

The petitioner claimed that when the SMBBMC admitted her, neither was she informed nor the university prospectus made mention of such rules. On September 3, 2013, the petitioner filed an appeal against her expulsion with the Secretary of Health, the Health Department, and the government of Sindh, as well as a petition with the provincial high court.

During the hearing on her petition, her counsel admitted that the appeal filed with the provincial health secretary was still pending adjudication, and he would be satisfied and would not press the petition if the secretary was directed to decide the said appeal in accordance with law and in accordance with the statutory rules and regulations within a period of one month.

In the circumstances, a SHC bench dismissed the petition and directed the Secretary to dispose of the petitioner’s appeal within one month of the order’s date and to provide a compliance report to the court’s Member Inspection Team (MIT).

In compliance with the court’s order, the secretary of the health department convened a meeting on May 2, 2014, during which the petitioner’s case was thoroughly investigated. It was discovered that she and another girl were first-year MBBS students at SMBBMC Lyari, and they had availed themselves of four chances but failed to pass the First Professional MBBS Examination. As a result, according to the PMDC rules, the principal of SMBBMC cancelled both students’ admissions because they had exhausted all four chances.

As per the rules, both students had no further chance to appear in the examination, according to the secretary of health’s report. Therefore, their request was not covered by the rules. However, due to the students’ pleadings, their case was referred to the PMDC for comment.

In its comments, the PMDC concurred with the Sindh Health Secretary, stating that both students had no further opportunity to appear in the examination.

Mehwish then approached the SHC again in 2015, arguing that because the impugned rule was not in effect at the time of her admission, it could not be applied retrospectively in her case.

However, in opposing the petition, the deputy attorney general argued that while the impugned rules were not in effect at the time of the petitioner’s admission, they were in effect when she took the exams, so the question of retrospective application did not arise.

He also contended that a lack of knowledge of a rule was not a valid ground to challenge its application or legality.

The court also pointed out that the petitioner had not raised the issue of the retrospective application of the rule in her 2014 pleadings.

An SHC bench headed by Chief Justice Ahmed Ali M. Shaikh raised questions about how arguments advanced in the earlier petition could be re-agitated in light of its outcome or how the question of retrospectivity could be introduced via a second petition when it could and should have been agitated in the earlier round but was not. The query also mentioned that the petitioner’s counsel attempted to shift his argument from one of retrospectivity to one of inapplicability and contended that the finding of the provincial secretary of health on the petitioner’s appeal suffered from error as he neither considered the question of retrospectivity nor its applicability.

The bench further noted that, while the petitioner’s counsel disputed the number of attempts made by his client during the first petition’s hearing, he later dropped this line of argument in favour of the rule’s retrospective application.

Given that the petitioner had taken four attempts to pass her first professional MBBS examination, the SHC maintained that the PMDC rule prohibiting her from taking another chance was fully applicable in her case, and the petition was dismissed.