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ISLAMABAD: 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 law.

“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,” held a three-judge bench, headed by Chief Justice Qazi Faez Isa.

The petitioners, enrolled students of affiliated medical institutions registered with Khyber Medical University, admittedly 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 re-examinations, enabled them to pursue their medical studies despite having lost their eligibility in the light of the aforementioned regulations.

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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.

Pakistan Medical and Dental Council in pursuant of Section 33 of Pakistan Medical and Dental Council Ordinance, 1962 had made the admissions in MBBS/ BDS Courses and Conditions for House Job/ Internship/ Foundation Year Regulations, 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 recognised medical institutions and the university and; therefore, the eligibility criteria were duly incorporated by the latter in its own regulations, i.e., the Khyber Medical University Examination Regulations, 2008.

The judgment authored by Justice Athar Minallah, a member of the bench declared that 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 there from 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 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 judgment said that 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 1962.

The emphasis of the 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

There with, rather than on the basis of compassion.

The injunctive orders passed by the respective civil 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.

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.

Copyright Business Recorder, 2023

Comments

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Arif Oct 22, 2023 09:37am
‘ 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 law ‘ ….. but Nawaz Sharif is exempted . Judicial hypocrisy is clearly visible to everyone almost on daily basis .
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Zeeshan Oct 22, 2023 12:09pm
Convicted Nawaz Sharif roaming freely is an ugly blot on our country. Judiciary is already exposed through partisan trials of Imran Khan at every level of Judiciary.
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Rasheeda Qazi Oct 22, 2023 01:16pm
I began reading the post mistaking it with ref to Nawaz Sharif's case. Alas, no such luck.
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Rasheeda Qazi Oct 22, 2023 01:18pm
I thought this post was abt Nawaz Sharif's case. But alas! No such luck!
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Haroon Oct 22, 2023 01:34pm
It is settled law that courts should follow the law and law doesn't follow the Courts. Normally Civil courts discuss the facts ,High Court discuss the law and Supreme Court discuss the Constitution. So, Apex court should consider one thing that the right of any individual not damaged. It is really deliema that lower courts at least do something but superior court mostly politicized or polarized as compare to higher judiciary
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Jalaluddin Muhammad Oct 22, 2023 03:11pm
Grant of transitory bail to citizen is a guaranteed right.This right was exercised in favour of Imran several times rather he was allowed bail in cases which were not yet registered.He was given VVIP protocol in SC and bandyal provided him Mercedes car rest house with family. Every facility provided to IK was good but to others bad.Its youthia logic.
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