' UMAR ATA BANDIAL, J.--- This Intra-Court Appeal challenges the order dated 28-11-2006 passed by the learned single Judge in a number of connected writ petitions filed by companies whose applications to become Hajj Group Organizers ("HGOs") had been turned down by the respondent No,1 Ministry of Religious Affairs, Zakat and Usher (Ministry). In some petitions, a common order dated 28-9-2006 passed by the Secretary of the Ministry on grievances of those petitioners has been challenged whilst in other petitions a prayer has been made for directions to the Ministry to register and authorize the petitioners therein as HGOs for Hajj December, 2006 (1427 A.H.). The consolidated order by the learned Single Judge has disposed of the petitions after scrutinizing the terms of the order by the Secretary which gives the main reasons for rejecting applications by the petitioners to be appointed as HGOs.
2. Serious allegations of discrimination, patronage and partiality are made by the petitioners against the selection process for HGOs adopted by the respondents for Hajj December 2006.
However, being un-supported by specific material and being of entirely a factual nature the learned Single Judge rightly declined adjudication of these allegations for involving a factual inquiry. The second point about the allocation to the petitioners of an additional quota available with the respondents was rejected by the learned Single Judge also for requiring a factual inquiry.
The third point considered and commented forcefully by the learned Single Judge is the failure of the respondents to show any published policy for registration and authorization of private HGOs. He notes that the allocation of rights to private HGOs is left to the "discretion of individuals and vague instructions issued by the respondent No,1". He has also observed that the respondents failed to show any legal instrument or executive decision that authorizes the terms of even the public notice inviting application of HGOs. A direction is consequently given to the respondents to frame a clear, unambiguous and transparent policy for engagement of private HGOs before the next Hajj so that their selection is based on defined criteria establishing merit.
3. The appellants have assailed the aforesaid order by the learned Single Judge for its failure to award practical relief to them. That grievance, however, could not be given any indulgence by us also as interference with the impugned selection of HGOs in mid-December would have caused severe hardship to Hajis booked with such HGOs, many of whom were by then already travelling to the Holy Land. Thus no interim relief for Hajj December, 2006 was granted to the appellants but the respondents were, nevertheless, asked to demonstrate that their impugned selection of HGOs was made on the basis of legally valid criteria. On 18-1-2007 the respondent No,2 Secretary of the Ministry, entered appearance and verbally explained, the mechanics and considerations applied in the selection of HGOs for Hajj December, 2006. The gist of his account is that due to paucity of time the primary criterion of selection of HGOs applied by the respondent is the previous. Hajj service experience of candidates and the absence of complaints received about their performance. On this score all 322 HGOs of Hajj January, 2006 were retained for the next Hajj. The same criteria was also applied to the 1928 new applicants out of which 226 were appointed as new HGOs for Hajj December, 2006. He was candid to state that the said 1928 applications for HGOs were considered but not opined upon individually. As Hajj December, 2006 selections were prima facie made summarily on the basis of past satisfactory performance of the applicants as HGOs, therefore, the grievance of the appellants who were never given a chance to perform appears to carry some weight. In the foregoing background the Court asked the Secretary whether compliance with the direction of the learned Single Judge for framing objective policy criteria for selecting HGO.s had been rendered. He sought time until end March, 2007 to formulate the relevant objective criteria that represent the Government's policy to select HGOs.
4. On 2-4-2007 further time was sought by the respondents to provide the criteria; for which an adjournment was granted until 26-4-2007. However, it transpired a few days later that by letter dated 6-4-2007 the Ministry authorized HGOs for Hajj December, 2006 to commence bookings with parties for Hajj 2007. This authorization letter was brought to the notice of the Court by the appellants who assailed it for obliging again, without fixing the policy criteria of selection of HGOs, the very persons whose appointment was challenged in the writ petitions before the learned single Judge. It is contended before the Court that the choice of HGOs appointed for Hajj December, 2006 that is challenged as opaque, partial and discriminatory in the writ petitions stands sanctified and renewed for Hajj 2007 solely because these persons possess the objected status of previous HGO which was conferred on them without competition on merit. The fresh authorization for Hajj 2007 is condemned as an act of personal largesse and patronage because admittedly on 6-4-2007 the respondents had not finalized the objective policy criteria for making such selection.
5. The sole basis of fresh authorizations given by the respondents for ,Hajj 2007 is the previous appointment of the nominees as HGOs for Hajj December, 2006. As such the provisional selection of HGOs for Hajj 2007 is merely super structural upon their impugned appointment as HGOs for Hajj December, 2006. Consequently the fresh authorizations are merely a continuation of the disputed subject matter of writ petitions before the learned Single Judge and therefore also of the appeals before US.
6. The Ministry did not file pleadings before the learned Single Judge. However, before us its Secretary has in chronological order filed a report, a statement of facts contained both in a reply to C.M. And in written arguments and a signed statement about the Ministry's future action for Hajj 2007. These documents purport to answer the allegations made by the appellants about the opacity of the selection process of HGOs and consequently distribution of that office as largesse without application of reasonable criteria. The facts as narrated in the written arguments are that the respondents inducted private HGOs for the first time for Hajj 2005 to serve 50,000 Hajis. A committee comprising the senior most officers of the Ministry, including the Minister of Religious Affairs selected 251 persons as HGOs that year. After Hajj the performance of these HGOs was reviewed; 19 were blacklisted on account of complaints made and the remaining 232 were renewed as HGOs for Hajj January 2006. All these 232 entities performed satisfactorily and were retained for Hajj December, 2006. However, applications for fresh appointments were also invited in June 2006. Out of 1928 applicants, 219 new entrants and 7 from amongst past performers were selected as new HGOs.
7. Thus a total of 544 HGOs conducted some 75,000 Hajis through Hajj December, 2006. It is further reported that under its aforesaid authorization letter dated 6-4-2007, the Ministry has permitted 320 of the previous 544 HGOs to proceed with the bookings for 50,000 Hajis for Hajj December, 2007. The remaining 224 previous HGOs are also being scrutinized for the likely allocation of 20,000 Haji seats to them. In the expectation that the Saudi government would give an additional allocation of 5,000 seats for Hajis, there is possibility of 10,000 seats becoming available for which 100 new HGOs may be appointed pro rata on regional basis through regional balloting. In other words the respondents have as their policy gesture offered the regional quota out of an anticipated but not yet certain number of 10,000 Haji seats for competitive selection. The vast majority of HGOs appointments for Hajj 2007 are therefore being made from the retained HGOs from 2006.
8. The above division is made plausible by the ministry's report filed on 26-4-2007 containing the following policy conditions of eligibility for appointment of an HGO : -- ' An applicant must be a registered private limited company with minimum paid up capital of Rs,3.00 million; (ii) having three years experience in the field of Hajj and Umrah and allied business;
(iii) with an exclusive office having computer, internet and telecom facilities; (iv) bearing financial stability evidenced by audited accounts.
' There is also provision in the aforesaid policy criteria that regional priorities shall be observed in allotment of quota for different areas of the country and if the number of applicants satisfying the foregoing criteria exceeds the available seats, their selection shall be made publically by computer ballot.
9. It may be pointed out that all the appellants claim that they fulfil the aforesaid rudimentary and soft criteria; these conditions strengthen the subjective element of the selection process which revolves around the past performance of pre-selected persons. Such adherence to a singular factor is attacked by the appellants for being entirely preferential, in particular because no standard of performance is prescribed to assess previous accomplishment. It is also urged that awaiting written complaints is a primitive method for post facto assessment of performance of HGOs services because of its inadequacy to obtain feedback from all dissatisfied Hajis, including those who may be over tolerant, illiterate or simply too weak and aged to agitate. Moreover, it is objected that this approach suffers from the defect of excluding competition that could improve the quality of service provided by HGOs apart from lowering its cost to the Hajis. Finally, this system is challenged for rewarding persons previously selected as HGOs without reference to objective criteria by exercise of public authority on personal considerations to confer favour and patronage.
10. The report and other statements filed by the respondents and their advertisement inviting applications for HGOs show the qualifying criteria for HGOs to be simple, lax and facile leaving much in the selection process to subjective discretion. It is common ground that 75,000 Hajjis were sent through private HGOs during Hajj December, 2006 and that the most basic HGO package offered had a minimum price tag of Rs,1,30,000 per Haji. Assuming this to be the price paid by all Hajis, the Hajj pilgrimage extending from 15 to 41 days stay in Saudi Arabia involves the placement of public funds of Rs,10 billion or so in the hands of private HGOs. To say that the control and use to such a huge amount of public funds is entrusted in the hands of persons selected without competition acknowledges a state of facts conducive to the misuse of subjective discretion. It is not surprising that in these circumstances allegations of all shades have been made by the petitioners about the HGOs selected for Hajj December, 2006 and presently for Hajj 2007.
11. It is not for this Court to assess the stringency or scope of the criteria of selection of HGOs that is established by the respondents. However, it does remain a fundamental concern of the law that executive discretion in the hands of public authorities is duly structured on the basis of lawful criteria having nexus with the object of the applicable law or policy; and that government agency and licence are awarded on the basis of such criteria through a transparent process. To appreciate both the impact of and compliance with this principle, the Court can consider the nature, purpose and relevance of the criteria of selection adopted by a public authority. Reference may be made to Government of N.-W.F.P. Through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCM R 1804:- "In his Treatise 'Discretionary Powers' which is Legal Study of Official discretion D.J. Galligan has acknowledged that 'the general principles that discretionary decisions should be made according to rational reasons means (a) that there be findings of primary facts based on good evidence, and
(b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner'. According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers.
In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092 Shafiur Rahman, J. Who was sitting in the Full Bench has very ably propounded by now well-known doctrine of 'Structuring the discretion' in the following paragraph of the report at page 1147:-- ' Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary,, apart from the exercise of such power appearing arbitrary and capricious at times."
12. In the foregoing context of the award of franchise or licence rights by public authorities, the other crucial consideration before the Court is the legal right of citizen to be given, subject to regulation, an equal opportunity to engage in a lawful trade or business. Such a right derives from Article 18 of the Constitution which provides as under:-- "18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:-- Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
13. In the present case, the relevant right that is claimed by the appellants is to be given equal opportunity to participate in a transparent selection process of HGOs on the basis of fair criteria that is applied uniformly. The foregoing constitutional right imposes an onerous obligation on the respondents to ensure the grant of HGO appointments by free competition on a level playing field.
In Arshad Mehmood and others v. Government of Punjab PLD 2005 SC 193 the Hon'ble Supreme Court described the duties of an authority regulating trade or profession by licensing system to be as follows:-- "Argument of learned counsel for respondents is that competent authority can regulate any trade or profession by a licensing system. There may be no cavil but this clause has to be read conjunctively with proviso (b) of Article 18 of the Constitution, according to which an element of free competition to regulate a trade, commerce or industry has been introduced because if competition in the trade is discouraged, it would negate the provisions of Article 3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non- competition, franchise is granted on specified routes, it would tantamount to monopolize the trade/ business of transport."
14. The Hon'ble Supreme Court also elaborated the necessity of open and free competition in the award of licensing right by public authorities to private persons:- "Definition of "franchise" from the American Jurisprudence and Black's Law Dictionary has already been noted hereinabove, crux of which is that a special privilege granted to a particular person/party to do a specific business, to the exclusion of all other persons, dealing in the same business would not be reasonable. A perusal .Of proviso (b) of Article 18 of the Constitution indicates that regulation of the trade, commerce or industry is permissible in the interest of free competition therein. Meaning thereby that without free competition amongst traders, no trade commerce or industry can be regulated. To understand the concept of free competition, this clause may be read, keeping in view proviso (c) of Article 18 of the Constitution, according to which only Federal Government or Provincial Government or a Corporation controlled by such Government can carry on any trade, business, industry or service to the exclusion, complete or partial, of such other person, which would mean that under clause (c), a right has been given only to the Government to create monopoly and confer right of franchise to any of the functionaries mentioned therein for the purpose of carrying on a business. As far as private persons are concerned, they cannot be excluded from carrying on trade for the purpose of creating monopoly and granting franchise of a particular trade."
15. It is patent from the respondents' action that simplistic considerations were applied to renew existing HGOs and likewise to induct new HGOs for Hajj December, 2006 without open competition.
Thereafter these HGOs were granted an automatic renewal for Hajj 2007 which tanta mounts to a government policy that confers exclusive rights akin to monopolies upon such HGOs which runs foul of the constitutional principle noted above and otherwise lacks transparency and fairness that is derived from inter alia objective criteria specified to structure and regulate discretion.
16. In this regard the learned counsel for the respondents acknowledges that the over-riding priority of the Federal Government in the selection of HGOs can be and is the promotion of public interest. Quite simply this means the provision of quality service to the Hajis at a competitive and fair price. Indeed the past performance of a private HGO applicant at Hajj is a valid criterion but it cannot be made the sole or ruling factor. There is nothing in the criteria allegedly applied by the respondents that may have nexus with the qualitative aspect of the service to be provided by private HGOs. No minimum standards of facilities or services to be provided by HGOs are prescribed by the respondents to safeguard the interests of the ordinary, illiterate and often elderly Hajis. Correspondingly, there is no disclosure requirement in the criteria as to the price of the package offered by an HGO. Such disclosure would valuate the scope and quality of services to be provided by an HGO and would promote its accountability. Reliance on written complaints made by Hajis in response to the public advertisement in the newspaper may be a tedious means of obtaining comment from returning Hajis. There can certainly be other and possibly better means available to obtain the opinion of every Haji about his treatment by his private HGO. All these priorities would find satisfactory answers if the selection of HGOs is opened to competition. The applicants themselves shall design and offer packages that answer the priorities for safeguarding public interest that is surely the predominant concern of the respondents. Most likely, competition would drive down the price that the public has to pay for a standard package having specifications that may be prescribed by the respondents. Transparency and competition shall bring not only fairness but also efficiency to the private HGO system run by the respondents.
17. By the foregoing discussion, the present state of the record of the respondents seems unsatisfactory insofar as selection of HGOs for Hajj December 2006 was primarily subjective due to lax conditions of eligibility. Effectively the only objective test is the lack of complaints received from past users/Hajis. This criterion favours past HGOs and discriminates new applicants for failing to test the capacity and capability of all applicants objectively. In order to bring fairness into the selection process and efficiency in its outcome, transparency and competition are its essential attributes as mandated by settled legal rules. It is, therefore, declared that in so far as super structural rights are concerned the selection of HGOs for Hajj December, 2006 suffers from non- transparency, non-competition and therefore, illegality. Such selection is, accordingly, declared to be void and of no legal effect for the purposes of allocating to parties new rights and liabilities that are extraneous to the appointments for and obligations rendered at Hajj December 2006. It is further declared that the respondents are under a duty to select their HGOs through a process that is fair, transparent, based on free and open competition for appointment strictly on merit. As the authorizations given by the respondents for Hajj 2007 are provisional therefore no vested right of nominees can arise with respect thereto; in any event such provisional nominees can conveniently complete in a selection process of HGOs for Hajj 2007 that is framed by the respondents strictly in accordance with law. Appeal partly allowed.