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Petitioner: HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN through Authorized Officer and 8 others VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs and Interfaith Harmony and 7 others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Miangul Hassan Aurangzeb Title:HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN through Authorized Officer
and 8 others vs FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs and Interfaith Harmony and 7 others Case No.: Writ Petition No, 875 of 2018 Date of Judgment:2018-03-15 Reported As: PLD 2018 Islamabad 323 Result: Order accordingly Judgment ORDER ATHAR MINALLAH, J.---Through this consolidated judgment we propose to decide the petitions/appeals listed in Annexure-A attached hereto. These petitions/appeals were pending before the respective High Courts and transferred to this Court pursuant to the order, dated 26.02.2017, passed by the august Supreme Court in Constitutional Petition No,03/2018 titled 'Federation of Pakistan through Ministry of Religious Affairs and others v. Majmua-tun-noor Hajj and Umrah Services (Pvt.) Ltd., through its Member Mufti Abdul Majid etc'. These matters were placed before us on 13-03- 2018. 2. The controversy in all these petitions/appeals stems from the arrangements which are made for facilitating Pakistani citizens to perform Hajj, the annual pilgrimage to Mekkah that is mandatory for such followers of Islam who fulfill the prescribed conditions. Each year the Government of Pakistan issues a policy regarding matters relating to the performance of Hajj. Every year the Kingdom of Saudi Arabia allocates a quota in respect of each country. The quota which is allocated to Pakistan is regulated through a policy formulated by the Federal Government, since the Majlis-e-Shura [Parliament] has not enacted any legislation in this regard. Every year superior courts throughout the country are inundated with litigation relating to disputes emanating from decisions taken by the Federal Government. Prior to the year 2005 Hajj used to be organized exclusively by the Federal Government through a sponsorship scheme without the involvement of the private sector. However, after 2005 the concept of public/private partnership was introduced for the first time for organizing Hajj arrangements and facilitating citizens of Pakistan in this regard. Initially the quota
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allocated by the Kingdom of Saudi Arabia in favour of Pakistan was equally distributed i,e, 50% was earmarked to be utilized by the Federal Government while the remaining 50% was distributed amongst the registered Hajj Group Organizers (hereinafter referred to as the IIGO). The mismanagement during the performance of Hajj in the year 2010 lead to suo motu proceeding is before the august Supreme Court which culminated in the judgment titled 'Corruption in Hafi Arrangements in 2010' [PLD 2011 SC 963]. The dispute, however persisted in the following years. The controversy regarding the distribution of quota inter se the Government and the HGOs or amongst members of the latter was settled when a mechanism and guidelines were eloquently articulated by the apex Court in the judgment titled 'Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop (Pvt) Ltd and others' (PLD 2014 SC 1]. The august Supreme Court has observed that since Hajj operation is a time bound exercise for which arrangements have to be made within a limited time, therefore it was imperative that the Hajj policy be framed well in time in a manner which is fair, just, inspires confidence and evokes minimum criticism. The august Supreme Court, in the said judgment, has laid down guidelines regarding the formulation of the Hajj policy and it was directed as follows:- "(I) The Hajj Policy should be framed, announced and placed on the website of MORA preferably within six weeks of the arrival of last flight of Hails front KSA under intimation to the Registrar of this Court. This of course would be subject to any policy decision of the Saudi Government regarding allocation of Hajj quota for Pakistan; (ii) The Hajj Policy should be framed by a Committee headed by the Secretary, Ministry of Religious Affairs (MORA); a nominee of the Competition Commission of Pakistan. a nominee of the Secretary, Ministry of Foreign Affairs, Government of Pakistan; a nominee of the Secretary Ministry of Law and Justice Divisiop and Parliamentary Affairs; and a nominee of the Attorney General for Pakistan: (iii) The credential of each application/HGO should be examined and decision taken on merit; (iv) While framing the Hajj Policy, the MORA should be guided, inter alia, by the recommendations made by the Competition Commission of Pakistan to which reference has been made in Para 8 above: and (v) The MORA should constantly monitor the working and performance of each HGO during Hajj and this assessment should form basis for further improvements in Hajj Policy for next year's Hajj. The above guidelines were reaffirmed by the august Supreme Court in Civil Petitions Nos,1270, 1308, 1309 of 2014 titled The Federation of Pakistan through Ministry of Religious Affairs, Islamabad and others v. Muhammad Arif Idrees and others' by observing and holding vide order, dated 21-07-2014, as follows.- "Every year issues arise out of the allocation of pilgrim quota which are brought before the Court. This Court in the case of Dossani Travels Pvt. Ltd. and others (ibid) laid down the principles guiding interference by the Courts in the framing and implementation of Hajj Policies. While emphasizing the principle of trichotomy of power enshrined in the Constitution it was held that the High Court under Article 199 should generally refrain from interfering in the policy making domain of the Executive. The Court held that the allocation of quota for making arrangements for the pilgrims fell within the policy making domain of MORA and in the absence of any illegality or establishment of mala fide it was not open for the High Court to annul the policy framed by the competent authority. It was also explicitly held as follows.- "Before parting with this judgment we would like to reiterate that though the directions in Dossani Travels Pvt. Ltd. and others case (ibid) were expressly made for the Hall Policy of 2014 the same must be adhered to and strictly followed in formulating Hall Policies in future." 4. The august Supreme Court, vide judgment dated 03-05-2016, rendered in Civil Petitions Nos, 1180,
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1265 and 1297 of 2016 titled 'Hal Organizers Association of Pakistan and others v. Federation of Pakistan through Secretary Mb Religious Affairs and Interfaith Harmony, Islamabad and another' considered the controversy relating to the Hajj Policy 2016 in which the Federal Government had reduced the quota of the private sector from 50% to 40%. It was the case of the Federal Government, that the arrangements for Hajj should be conducted exclusively through the Government scheme by excluding the involvement of private sector. It was also argued that the status of the Committee referreld to in the Dossani case, supra, was for the purpose of providing suggestions and that it could not be delegated with the power to frame the Hajj Policy which is the exclusive domain of the Federal Government. In the aforementioned case the Government quota had increased its share on the ground that the maximum number of pilgrims would be able to perform Hajj at a considerably lower cost as compared to the price charged by the HGOs. The august Supreme Court, while acknowledging that it was not within the domain of the Court to interfere in policy making, nonetheless emphasized and observed that it was imperative that such policy could be subject to judicial scrutiny so as to assess whether it suffers from legal infirmity and whether its formulation was in an arbitrary and whimsical manner. The august Supreme Court has explicitly observed and held as follows.- "The Dossani case (supra) lays down essential directions which are to be adopted and complied with in the formulation of the annual Hajj Policy by the government." It was further held as under.- "In the present lis, this Court must regretfully observe that it does not find the decision for reduction in private scheme Hajj quota by the MoRA to be justified in law and it is pertinent to observe in this regard that the procedure adopted in the formulation of this policy decision appears shrouded in doubt. The record reveals that the manner in which this decision has been taken and such policy formulated does not comply with the directions given by this Court in Dossani case (supra) 'regarding the process which is to be given effect in the formulation of the annual Hajj Policy. The formulation of the Hall Policy by the Special Committee as directed by this Court and mandated in law is based upon the rationale of promoting transparency and ensuring participation of all interested parties/stakeholders in the Hajj Service Industry with the ultimate objective of the formulation of a more democratic Hajj Policy." It was also observed as follows.- "This highlights the MoRA's deliberate deprivation of CCP from their right to negotiate the terms of the Hajj Policy 2016 which consequently also defeats the very purpose for which the Special Committee was directed by this Court. Suppressing CCP from voicing their concerns regarding the reduction in private scheme Hajj quota and leaving such contentions unaddressed is indicative of the MoRA's failure in formulating the 2016 Hajj Policy as per the directions laid down in the Dossani case (supra) which renders the same as bad in law. In Para 51 of the said case, this Court has made the following observations: "...It is therefore imperative that the Hajj Policy be framed well in time in such a manner which is fair, just, inspires confidence and evokes minimum criticism..." It was also observed as follows.- "This is reflective of the arbitrary manner in which the decision to reduce the private Hajj schemes quota has been undertaken, that is without providing any sound and cogent reasons, rationale or justification of the decision and without substantial consultation of the Special Committee and the CCP in the formulation of the same. In direction (iv) under Para 51 of the Dossani case (supra), emphasis has been implied upon the role of the CCP as a stakeholder of the Hajj Service Provider Industry and its recommendations regarding annual Hajj Policies." The august Supreme Court yet again reiterated as follows.- "Before parting with this judgment, we may emphasis here that the Government has the exclusive
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power to review/reframe the Hajj Policy every year keeping in view the latest developments and expediencies which would be subject to guidelines given by this Court in Dossani case (supra) and this case may not be cited as precedent which would debar the Government from exercising such powers as such there would be no restriction on the Government to alter or vary the Hajj Policy (quota system)." 5. A Bench consisting of five Hon'ble Judges of the august Supreme Court further reiterated and reaffirmed the guidelines laid down by the apex Court in the Dossani case (supra) vide order, dated 06.06.2017, passed in the Intra Court Appeals Nos,10 to 17 of 2017 titled 'Hajj Organizers Association of Pakistan v. Messrs Kalf Intl (Pvt) Ltd. and others' and the relevant portion is as follows.- "Thus, there is consensus that in allocation of quota of Hajj to HGOs the guidelines as laid down in Dossani's case have to be followed in letter and spirit and there appears to be no room for deviating from it. Judgments in the case of Muhammad Arif Idrees (supra) so also in the case of HOAP (supra) have followed and approved guidelines given in Dossani's case." 6. The controversy in the context of the Hajj policy yet again came before the august Supreme Court in the case titled 'Muhammad Arif Idrees and others v. Sohail Aamir and others' [2017 SCM R 1379] wherein it has been held and observed as follows.- "In the case of Muhammad Arif Idrees (supra), this Court ordered that directions as contained in the case of Dossani Travels (supra) must be strictly adhered. to in formulating Hajj policy in future. Whereas in case of HOAP v. Al. Qasim Hajj and Umra Services (Pvt.) Ltd. (supra), this Court, whilst holding that 'government has the exclusive power to review or reform Hajj policy, has bridled the same with guidelines as contained in Dossani Travels (supra). However, the official respondents in clear violation and defiance of the above dicta of this Court and their clear undertaking as discussed above, are still avoiding to grant any quota to the non-quota holder HGO, including the petitioners, and have thus, prima facie, made themselves liable to be proceeded against accordingly. We would, however, taking a lenient view, grant an opportunity to them to review their decision and reframe their policy, allocate quota to the petitioners and all other like them in the light of the above judgments." 7. It is obvious from the above enunciated principles and law that generally Courts refrain from interfering in the policy making domain of the executive. The allocation of quota also falls within the ambit of the policy making authority of the executive. Interference by a High Court could only be justified if the policy suffers from illegality or it is based on mala fide which is established. The object of the directions in the Dossani case, supra, is to promote transparency and to ensure meaningful and purposive consultation with all the stakeholders. The apex Court has declared its object as the formulation of a 'democratic Hajj Policy'. The sanctity and role of the formulations made after deliberations by the committee constituted and referred to in paragraph 51(ii) has been consistently emphasized by the august Supreme Court in the above mentioned judgments. There is no cavil to the proposition that the ultimate authority to approve a policy of the Federal Government is the Cabinet as has been held by the august Supreme Court in the case of 'Messrs Mustafa Impex, Karachi and others v The Government of Pakistan through Secretary Finance and others' [PLD 2016 SC 808]. However, by now it is settled law that meaningful and purposive consultation with the Committee identified in Paragraph 51(ii) of the Dossani case, supra, is mandatory. A deviation from the formulations finalized by the said Committee, in the absence of meaningful and purposive consultation therewith, would not be sustainable. Moreover, a deviation besides meaningful and purpositve consultation has to be based on cogent reasons and rational justifications. It has been consistently held that the directions in the Dossani case, supra, must be strictly adhered to and followed while formulating the Hajj policy every year. In case the Cabinet has reservations regarding the formulations of the Committee identified in paragraph 51(ii) then
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deviation therefrom without meaningful and purposive consultation, and that too without rational justification or sound and cogent reason, would not be sustainable. It is emphasized that even obiter observations of the august Supreme Court are binding. 8. We would examine the Hajj Policy and Plan 2018 impugned before us in the light of the above principles and law later, but it would be useful to record some relevant facts. The Committee referred to by the august. Supreme Court in paragraph 51(ii) of the judgment rendered in the Dossani case, supra, held three sessions to deliberate the matter. The meetings were held on 07.11.2017, 22.11.2017 and 04.12.2017. After extensive deliberations the Committee concluded that the quota between the Federal Government and the private sector for Hajj Policy and Plan 2018 be distributed in the ratio of 60:40 i,e, 60% for the Federal Government scheme and the remaining 40% to be distributed amongst the HGOs. Moreover, it was further unanimously decided that the applicants over the age of eighty years would be exempt from balloting if their number is less than 5,000. It was also decided that those applicants who remained unsuccessful for the last three years shall also be exempt from balloting to the extent of accommodating 5,000 applicants falling in this category. The Ministry of Religious Affairs and Interfaith Harmony forwarded the formulations of the Committee for approval to the Cabinet. The Federal Cabinet, in its meeting held on 26.12.2017, considered the summary and accorded its approval. The relevant decision for the purposes of adjudication of the matter at hand are reproduced as follows.- "(i) Out of Hajj quota of Pakistan i,e, 179,210, the share of the Government scheme will he 2/3rd whereas the Private sector shall be allocated 1/3rd. In case Hoff quota of Pakistan is increased, this may also be afforded to the Private sector." (ii) .................... (iii) ................ (iv) ............ (v) .................. (vi) The applicants over 80 years of age along with one physically fit attendant will be exempted from balloting, provided their number is less than 10,000. In case their number is more than 10,000, selection will be made on the basis of age wise seniority. (vii) The applicants who remained unsuccessful continuously for the last three years will be selected through separate balloting and their number will be restricted to 10,000 only. The leftover applicants will also be included in the general balloting." 9. It is obvious from the above decision taken by the Federal Cabinet that the formulations made by the Committee constituted pursuant to the Dossani case, supra, rendered by the august Supreme Court, were materially deviated from by increasing the Government quota and reducing the allocation in respect of the HGOs. The number of applicants falling under the two categories which were to be exempt from balloting were also increased. After the above approval granted by the Federal Cabinet, the Ministry of Religious Affairs and Interfaith Harmony published the Hajj Policy and Plan 2018 which is attached with the instant petition at pages 35 to 67. The reason stated in the policy for reducing the quota allocated to the private sector as against the formulations made by the Committee are as follows.- "Due to the lowest package and on the persistent demand of the general public to perform Hall under Government Hajj Scheme where the number of applicants has increased from 86,919(2013) to 338,696(2017) and in the best interest of general public, out of the total Hajj quota of 179,210, 2/3rd (119,473) would be allocated to Government Hajj Scheme which provides an economical package with reasonable facilities for the pilgrims while the rest I/3rd (59, 73) would be allocated to Private Scheme i,e, Hajj Group Organizers (HGOs). In case Hall quota of Pakistan is increased, this may also be offered to the Private sector." 10.The quota allocation for Pakistan by the Kingdom of Saudi Arabia for Hajj 2018 is 179,210.
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According to the written report filed on behalf of the Federal Government, the latter has received 374,857 applications. Pursuant to the decision taken by the Cabinet in its meeting held on 28-02- 2018, balloting has already been conducted to the extent of 50% of the total Hajj quota and thus 87,813 Pakistani citizens who had applied for the performance of Hajj against the Government quota have been declared as successful. The number of applications received from citizens who are above the age of eighty years, along with their respective helpers, and those who were unsuccessful during the past three years or more are 4,928 and 12,212 respectively. Against the quota reserved for the category of hardship, including labour, 2,389 applications have been received. In case the ratio of allocation of the quota formulated by the Committee is maintained and the decision of the Cabinet in respect of applicants who are more than eighty years old and those who could not succeed in the last three years or more is implemented, then according to the report submitted on behalf of the Federal Government a balance of 3,006 is left to be distributed by the Federal Government amongst the applicants. In a nutshell, no person will be adversely affected at this stage if the formulations of the Committee regarding the determination of the quota is to be maintained. 11.The petitions/appeals at hand raise grievances which may be divided into three broad categories. The first category relates to the already registered HGOs who have challenged the reduction of its quota from 40% to 33%. In the second category the grievances have been raised by the New Hajj Group Organizers (hereinafter referred to as 'N-HGOs'). The latter are aggrieved on two grounds, firstly, delay in the completion of the reassessment process and, secondly, unreasonable conditions imposed as part of the eligibility criteria. The last category covers those petitioners/appellants who are seeking fresh enrollment as an HGO. In a nutshell, the latter category is aggrieved on account of the lack of transparency and delay in the processing of their cases. In some of the petitions the petitioners have alleged violation of the law laid down by the apex Court and orders passed by the High Courts and, therefore, they are seeking initiation of proceedings under the Contempt of Court Ordinance, 2003. 12.The learned counsel who have appeared for the petitioners/appellants falling under the first category have contended that; the Hajj Policy and Plan 2018 is illegal. mala fide, coram non judice and without jurisdiction as neither the Government nor the Cabinet was vested with the jurisdiction to alter or change the decision of the Special Committee; the guidelines laid down by the august Supreme Court in the Dossani case were upheld by a Larger Bench and, therefore, the same are binding; the Special Committee had held three meetings and, pursuant thereto, a unanimous formulation was made by allocating a quota of 40% to the private sector; the Committee had also agreed upon a maximum quota of 5,000 for elderly citizens over the age of 80 years and the same number for those who were not successful during the past three years or more; the deviation from the formulations made by the Special Committee cannot be sustained and is liable to be set aside; the Special Committee had taken a conclusive decision and the same had become a past and closed transaction; the HGOs have carried out operations in the past to the utmost satisfaction of their respective Hujjaj and had fulfilled all the conditions which were imposed by the Federal Government from time to time; a vested right has accrued in favour of the HGOs; the reduction of quota is a violation of the fundamental rights guaranteed under Articles 9 and 18(c) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution'); The Hajj Policy and Plan 2018 has been issued without waiting for the execution of contracts/agreements with the Kingdom of Saudi Arabia; the Hajj Policy and Plan 2018 fails to address the issues of distribution of quota between the private sector; the policy formulated by the Special Committee has been unlawfully and arbitrarily disregarded and the same is in violation of the judgments of the august Supreme Court. 13.The learned counsel who have appeared for the N-HGOs have argued that; the Committee
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constituted for the reassessm ent of the N-HGOs is delaying its proceedings which would inevitably deprive the petitioners/applicants from being considered for allocation of quota under the Hajj Policy and Plan 2018; some of the conditions are arbitrary and unworkable; the conditions such as having past experience of Umrah or Hajj does not meet the threshold of reasonableness; a special dispensation was required to have been offered in the case of the applicants who belong to the Federally Administered Tribal Areas (hereinafter referred to as the 'FATA'); the learned counsel have urged that the Federal Government be directed to expedite the process of scrutiny and that unreasonable restrictions such membership of IATA (International Air Transport Association) be held as illegal. 14.Mr. Afnan Karim Kundi, the learned Additional Attorney General, Mr. Sohail Mehmood and Mr. Arshad Kiyani, Deputy Attorney Generals and Mr. Shabbir Abbasi. Assistant Attorney General appeared along with Mr. Muhammad Aftab, Additional Secretary. Ministry of Religious Affairs and Interfaith Harmony and have argued on behalf of the Federation. They have contended that; the Hajj Policy and Plan 2018 was framed by the Special Committee, constituted in the light of the judgment of the august Supreme Court; the role of the Special Committee is to the extent of making recommendations which are not binding on the Federal Cabinet; the mandate of the Special Committee was to frame the policy whereas the Federal Cabinet is the appropriate forum to accord approval; the allocation of the fixed quota to the private sector is not a vested right nor was such a direction given by the…
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