ISLAMABAD: The apex court has ruled that the judiciary cannot grant relief that breaches a law, nor create a right in favour of a litigant which they do not possess under the law.

The judgement, autho­red by Justice Athar Minallah while dismissing an appeal filed by medical students, also notes that while every citizen is unquestionably entitled to choose a profession or trade, such a right was not absolute.

Justice Minallah was member of a three-judge Supreme Court bench including Chief Justice of Pakistan Qazi Faez Isa and Justice Amin-ud-Din Khan that had taken up the appeal moved by the medical students who had become ineligible to continue their studies after failing to clear their professional (prof) exams in four attempts.

Ms Sundas, Ms Naila Khan and Ms Reema Naz had challenged the consolidated order issued by the Peshawar High Court (PHC) on Feb 12, 2020 that had also dismissed the pleas of enrolled students of the Khyber Medical University (KMU).

Dismisses plea by medical students who couldn’t clear first, second prof in four attempts

But the SC judgement explained that the affairs of medical institutions and eligibility of students to pursue medical studies were regulated by the Pakistan Medical and Dental Council (PM&DC) established under the Pakistan Medical and Dental Council Ordinance, 1962. Pursuant to powers conferred under Section 33 of the ordinance, the PM&DC had made the admissions in MBBS/BDS courses and conditions for house job/internship/ foundation year regulations, 2013.

The regulations explicitly determine the criteria about the right to continue medical studies by providing that a student who fails to clear the first or second prof in four chances — availed or un-availed — would no more be eligible to continue medical or dental studies.

Such a student would also become ineligible to seek admission as a fresh student.

These regulations were binding on all recognised medical institutions and KMU. Therefore, the eligibility criteria were duly incorporated by the university in its own regulations.

Admittedly, the petitioners failed to pass the examinations in four chances and thus they had become ineligible to continue their medical studies under the regulations. Before their respective registrations were revoked by the KMU, petitioners filedseparate suits in civil courts.

Injunctive orders, directing the KMU to allow the petitioners to take re-examinations, enabled them to pursue their medical studies despite having lost their eligibility in the light of the regulations. The KMU subsequently notified the cancellation of the petitioners’ registrations. The notifications were challenged before the PHC and were subsequently dismissed.

It is a settled law that courts exercise utmost restraint in matters relating to policies, discipline and other academic affairs of educational institutions, Justice Minallah observed.

He further observed that an authority regulating a trade or profession may set minimum standards in the context of exercising the right in order to safeguard the interests and welfare of people. Compassion and hardship cannot be relevant considerations when there is no scope for it in the relevant laws, the judgement said, adding the petitioners had become ineligible and the right to pursue their studies was lost when they failed to pass the examinations after four chances — availed or un-availed.

Published in Dawn, October 22nd, 2023