JUDGMENT IJAZ AHMAD CHAUDHRY, C.J.---Through this single judgment we propose to dispose of this petition as well As Writ Petitions Nos.9563, 9564, 9565, 10547, 10333, 11413, 10592, 11691, 11734, 11976, 12358, 12359, '11833, 12574, 12573, 12602, 12601, 12600, 12599, 12598, 12574, 12573, 12572, 10955, 12585, 12586, 12583, 12584, 12582, 12521, 12503, 12498, 12493, 12489, 12477, 12463; 12439, 12437, 12434, 12433, 12425, 12398, 12393, 12392, 12391, 12390, 8597, 11630, 11663, 10986, 11735, 11752, 11845, 11885, 11917, 11995, 12103, 12119, 12120, 12139, 12179, 12183, 12184, 12185, 9988, 9974, 10110, 10166, 10273, 10391, 10392, 10395, 10548, 10806, 10649, 11039, 11093, 11140, 11155, 9290, 9868, 10591, 10708, 11639, 10956, 11886, 12100, 12102, 12101, 11181 and 11121 of 2011 as having stemmed out of the same policy viz. In pith and substance in all the petitions Hajj Policy, 2011 in general and the restraint on enrolment of fresh Hajj Group Organizers (HGOs) in the year 2011, in particular, have been challenged.{{TABLE}}
2. Shorn of unnecessary details, the facts, forming background of these petitions, are that pursuant to the instructions issued by Saudi Government, private sector was involved in the Hajj arrangements. First, in the year 2006 Ministry of Religious Affairs, Hajj, Zakat, Ushr introduced a policy for registration of HGOs. The said policy was given were publicity in the National Press and applications were invited from the prospective candidates for enrolment as HGOs. Besides other conditions, it was necessary for the applicant either to be a private or public limited company, duly registered with the Securities and Exchange Commission of.Pakistan,. Having paid up capital of at least 3 millions with minimum experience of three years as Hajj or Umrah tour organizer. Pursuant to the said policy certain companies were registered as HGOs. The said number heaped up in the following years.
Most of the petitioners in these petitions have been avowing for their registration as HGOs since the year 2006 but their request in this regard has not been acceded to by the concerned authority on one pretext or the other. The petitioners were made shuttle cock to get themselves registered as HGOs inasmuch as on the one hand the Ministry of Religious Affairs was putting of their registration as Manazim under different Hajj Policies being issued each year' since 2006 on baseless excuses and on the other they were trying their luck before the Superior Judiciary by filing different petitions before this court as well as before the Hon'ble Supreme Court of Pakistan. Besides other matters, Writ Petitions Nos. 11035 of 2006 and 10733 of 2006 were filed before this Court which were disposed of vide order dated 28-11-2006 with a direction to the Ministry of Religious Affairs to, formulate, and implement a clear and unambiguous policy for private Hajj Organizers before the next Hajj.
Aggrieved by the said order the concerned persons filed I.C.A. No. 357 of 2006 which was partly allowed by a Division Bench of this Court. As the prayer of the appellants in the I.C.A was not accepted in totality, they filed civil petitions for leave to appeal before the Hon'ble Supreme Court.
In addition thereto Ministry of Religious Affairs and others also challenged the order passed in the ICA by this court before the Hon'ble Supreme Court of Pakistan. The leave was granted in all the matters and the petitions were _ converted into appeals. While finally hearing these appeals, the Hon'ble Supreme Court vide order dated 28-7=2009 directed the Ministry of Religious Affairs Zakat and Ushr to enlist names of the resfondents as is HGOs. Being encouraged by the order dated 28-7-2009 passed by the Hon'ble Supreme Court of Pakistan the petitioners applied for their registration as HGOs for Hajj 2010 but the respondents declined their request after lingering on the same for a considerable period. Thereafter, besides other petitions Writ Petitions Nos.9950 of 2010 and 12908 of 2010 were filed before this Hon'ble Court for registration of HGOs. The said petitions were dismissed by this Court vide order dated 30-6-2010 against which the aggrieved persons filed I.C.A. No.483 of 2010 which too was dismissed by a Division Bench of this court vide order dated 5-8-2010 whereafter the aggrieved persons challenged the order of this court passed in -I.C.A. Before the Hon'ble Supreme Court of Pakistan by virtue of C.P.L.A. No.1908 of 2010. However, in view of the fact that Hajj arrangements by that time were finalized and there was no scope for participation in case the petitioners were registered as HGOs, they opted to withdraw the said Civil Petition for Leave to Appeal.
3..Like previous years, Hajj Policy 2011 has been announced by the Ministry of Religious Affairs, salient features whereof read as follows
(i) Pakistan Hujjaj quota has been increased from 159,647 to 179,256.
Hajj Scheme 2011 shall be implemented through Government Hajj Scheme and Private Sector i.e. Hajj Group Organizers (HGOs) with proportionate share of around 50:50 (i.e) There shall be no balloting this year under Government Hajj Scheme and applicants will be considered successful on the principle of "first come first serve".
(iv) The applications under Government Scheme will be invited from 15th April to 10th May, 2011 through designated banks.
(v) Under the Government Hajj Scheme, there will be two categories of accommodation i.e. Green Category within 200 meters without transport with a rental ceiling of Saudi Rayal (SR) 4000 per pilgrim and White Category beyond 2000 meters with transport with a rental ceiling of SR. 3600 per pilgrim.
(vi) The rent in Makkah Mukarramah will be charged on actual basis from pilgrims and at Madinah Munawwarah at a flat rate of SR.4501- per pilgrim.
(vii) PIA has agreed for airfare Rs.72,000 for truth zone and Rs.84,000 for north zone.
(viii)Hajj dues of White category will be Rs. 200,847 for south zone and Rs.212,847 for north zone.
(ix) Hajj dues of Green category will be Rs. 210,047 for south zone and Rs. 222,047 for north zone.
(x) Hujjaj will be airlifted by the national airlines of both countries in equal share, in pursuance of the revised Air Service Agreement (ASA) between Government of Pakistan and Kingdom of Saudi Arabia.
(xi) 15% of the total seats under Government Scheme will be reserved for hardship cases, pilgrims recommended and funded by charitable institutions and Labour/low paid Employees of different organizations/coiporate entities under corporate social responsibility etc. Balance number of seats, if any, will be allocated to late corners at an enhanced package a 5% of the Green category to till the resource gap for welfare activities.
(xii) A broad based Accommodation Hiring Committee comprising five members will hire the accommodation in Makah Mukarramah and Madinah Munawwarah.
(xiii)Hujjaj under Government Scheme will not be required to pay any amount on account of Personal Exchange Quota (PEQ) and same will be arranged by them from open market through banks or foreign exchange companies.
(xiv) There shall be no fresh enrolment of HGOs in the year 2011. HGOs already enrolled with MORA in the year 2010 shall continue in 2011 with the same quota.
(xv) HGOs will offer only two packages i.e. Economy and executive.
(xvi) For the welfare services, Medical Hajj Mission will be increased from 260 (2010) to 540 (2011).
230 khuddam ul Hujjaj to be drawn" from Armed Forces, Civil Armed Forces and Pakistan Boys Scouts and number of Local Khuddam ul Hujjaj to be increased from 250 (2010) to 900 (2011) subject to availability of resources.
(xvii) A comprehensive awareness campaign and training to the intending pilgrims will be launched.
(xviii) Hujjaj Mohafiz Scheme based on the concept of "Takaful" will be launched with the contribution of Rs. 400 non-refundable by each Haji for compensation due to death/accident during Hajj.
(xix) There will be a committee of Parliamentarians called "Hall Advisory Committee" to advise on policy, planning and management of Hajj operation 2011 in Pakistan as well as in KSA.
(xx) Any person who has performed Hajj during the last five years will not be eligible except Mehram, Group Leader or undertaking Haje-badal.
(xxi) International Machine Readable Passport, Computerized National Identity Card and medical certificate.
(xxii) All pilgrims (Male/Female) to affix - a Pakistan flag sticker on their "Ahrams" for identification.
Every female pilgrim to carry at least two "Abayas" preferably of black colour.
(xxiii) Pilgrims to ensure that their luggage is labelled bearing Name, Nationality, Passport Number, Air Carrier, Building and Flight Numbers.
(xxi v) Monitoring and supervision mechanism for Haji operation in Pakistan and KSA shall be strengthened.
(xxv) The new Policy 2011 shall be valid. For the three years subject to adjustment to be made by Ministry of Religious Affairs and on account of Saudi "Taleemat" from time to time.
(xxvi) The policy will he implemented in accordance with the proposed Work Besides these features, Hajj Plan has also been issued. According to clause 19(1) of Part 3 of the Hajj Plan 2011, restriction on new enrolment of HGOs for Hajj 2011 has been imposed.
4. Aggrieved by clause 19(I) of Part 3 of Hajj Plan. 2011. Mentioned supra, whereby a ban has been imposed on enrolment of new HGOs under Hajj 2011, the petitioners have moved these petitions inter alia with the prayer that the Ministry of Religious Affairs be directed to enroll them as Hajj Group Organizers under Hajj Policy 2011 and they be allotted quota as per their entitlement.
5. The resume of the arguments advanced on behalf of the petitioners is that the concept of Hajj Group Organizers was introduced for the first time in the year 2005 and the criteria for enrolment of Hajj Groups Organizers laid down by the Government at that time bore only three conditions viz. The candidates/applicants were required to be limited companies, the paid-up capital of the company was fixed as three millions and the companies were required to deposit pay order amounting to Rs.50,000; that later on the controversy between different limited companies and the Government of Pakistan erupted on the issue or enrolment which remained subject-matter of writ petitions, I.C.As. Before this Court in different years and lastly in the year 2009 the Hon'ble Supreme Court of 'Pakistan while disposing of Civil Appeals Nos.759 to 767 of 2008 and other allied matters directed the Government to register the names of the respondents and send the same to Saudi Government for allocation of quota; that pursuant to the order passed by the Hon'ble Supreme Court the Ministry of Religious Affairs only enrolled.Those who were party in the petitions before the Hon'ble Supreme Court but unfortunately the petitioners are still running from pillar to post for their registration as HGOs despise the fact that their case is on same footing from all corners with those who have been enrolled as HGOs pursuant to the order of the. Hon'ble Supreme Court; that the order of Hon'ble Supreme Court is still holding the field but the respondents with mala fide intention have not complied with the same; that besides the order of the Hon'ble Supreme Court, the Sindh High Court has also directed the respondents for formulating uniform standard for allocation of quota to the HGOs and policy for enrolment of the selection for HGOs; that the respondents have been taking divergent stances at different occasions during the pendency of previous litigation on the pretext of some agreement between the Government of Pakistan and the Government of Saudi Arbia inasmuch as no agreement, prohibiting the new companies to be registered as HGOs for allocation of Hajj quota during or in the next year, is available between the two brethren countries; that the respondents have not annexed any document with their Report and Parawise comments tending to manifest that Saudi Government has ever laid down any criteria or imposed any condition upon the limited companies working in Pakistan to render their services to the persons who intend to parform Hajj through Private Hajj Operators/HGOs; that the condition of non-enrolment of new HGOs under Hajj Policy 2011 is aimed to establish monopoly in this specific field which speaks volumes about the non-transparent procedure adopted by the Ministry of Religious Affairs towards the registration of HGOs; that the basic concept and purpose to involve the private sector is to provide maximum facilities to the pilgrims within a reasonable budget but in view of the monopoly established by the blue eyed persons of those who are at the helm of affairs in the Ministry of Religious Affairs the said purpose cannot be achieved rather open competition amongst different groups would prove to be a healthy sign in this regard; that the Government has imposed.Ban on registration of fresh HGOs on the pretext that Saudi Government has asked to curtail the number of HGOs, however, the said stance of the respondents is nothing but mere assertion as nothing in black and white has been produced before this Court to show that such instructions were ever issued by the Kingdom of Saudi Arabia; that Hajj Policy, 2011 is based on the notions of the high-ups working in the Ministry of Religious Affairs and the same is also violative of Articles, 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; that even otherwise the policy is subordinate legislation which is not binding upon the courts and the jurisdiction of the courts of law cannot be ousted merely on the ground that the matter relates to policy decisions rather in appropriate cases while exercising the power of judicial review the court should-interfere with such policies which otherwise are repugnant to the mandate given in the Constitution.
6. Conversely the arguments put forth on behalf of the respondents can be summed up in the words that the present petitions are not maintainable being hit by the principle of old res judicata inasmuch as earlier petitions tiled by certain petitioners herein were dismissed by this Court; that decisions regarding arrangements of Hajj cannot be taken by the Government of Pakistan independently rather the policy is formulated in consultation with the Saudi Government and in such scenario, Ministry of Religious Affairs cannot relax the terms and conditions of the Hajj Policy, 2011; that Hajj Policy 20.11 has been implemented after approval by the Cabinet, therefore, it is not open for the petitioners to challenge the same before this Court by virtue of constitutional petition; that Hajj Policy 2011 was prepared after detailed analysis and consultation with all the stake- holders, therefore; vires thereof are not open to interference by this court; that Hajj Policy 2011 is a result of different agreements between the Government of Pakistan and Kingdom of Saudi Arabia, therefore, it cannot be revisited at this stage as the same would tantamount to violate the terms and conditions of the said agreements; that Hajj arrangements are time bounded proceedings and in case of any impediment in the were of decision in favour of the petitioners, the Hajj process is bound to suffer; that the fundamental rights of the petitioners have been protected only within the countries and when the' matter pertains to any foreign country the same cannot, come into force; that the petitioners were heard pursuant to the applications filed by them for their enrolment as HGOs and after affording an opportunity 'of personal hearing their requests were turned down on the ground that the do not fulfil the criteria laid down for the said purpose; that the petitioners have asserted that they are already dealing in providing Hajj and Umrah services, the. Said -stance of the petitioners entails penal action against them for the reason that they are indulging in such business without permission of the competent authority; that HGOs are registered according to requirement in the relevant years and no person can claim his enrolment as HGOs as of right; that there is no denying the fact that every citizen has a right to earn bread and butter through the profession of his choice but in certain professions skill and experience are of paramount consideration and in the instant matter the petitioners are seeking their enrolment as HGOs just on the ground that they are registered with Securities and Exchange Commission of Pakistan; that number of complaints were received from the public regarding substandard arrangements during Hajj 2010 by the HGOs and to eliminate the possibility of repetition of such exercise during Hajj 2011 registration of enrolment of new HGOs has been banned due to inexperience and lack of skill in the relevant field; that the Hajj Policy is formulated under the agreement with the Saudi Government, therefore, same cannot be challenged in constitutional petitions before this Court as this Court has no jurisdiction to give verdict regarding any matter pertaining to the foreign country; that the petitioners themselves have admitted that due to finalization of Hajj arrangements they withdrew their petitions from the Hon'ble -Supreme Court of Pakistan and in view of the fact that the Government has already taken certain, measures towards Hajj arrangements it would not be fair to interfere with Hajj Policy 2011 at this belated stage; that the petitioners' case_ is _quite distinguishable from those who were enrolled as HGOs under the order of Hon'ble Supreme Court and even otherwise the said order' was confined to the persons who were party in those appeals and the effect thereof cannot be stretched just to facilitate other persons alien to those proceedings; that the petitioners have not been discriminated in any manner whatsoever as no other person has been enrolled as HGO in the year 2011; that as the petitioners have not been registered with the Ministry of Religious Affairs, the respondents are not aware about their integrity and competency in the relevant field and in absence of such information it would be dangerous to enroll such persons as HGOs as after registration they indulge in illegal activities of facilitating the persons to slip away during Hajj process who not only bring bad name to the persons who are involved in the business of HGOs but also badly affect the reputation of the country at international level; that the purpose of criteria laid down for enrolment of HGOs is to introduce such persons who have sufficient experience and expertise in the relevant field proof positive whereof is that the registered HGOs have been divided under six categories according. To which, seats are allocated to them on the basis of experience and their past performance; that this being policy decision cannot be challenged in writ jurisdiction and that in case, Hajj Policy 2011 is interfered at this stage, the, Hajj arrangements would suffer a serious set back for the reason that the Ministry shall have to re-launch the Hajj process.
7. In view of the importance of the matter, we have given our anxious consideration to the arguments put forth by the learned counsel for the parties in support of their respective versions and have also gone through the, entire record with extreme care and caution to arrive at a just and fair conclusion. Firstly, taking up the objection of respondent that this being a policy decision cannot be interfered with by this Court in its constitutional jurisdiction, we are of the view that though ordinarily this court rarely interfere with the policy decisions while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, however, when a public functionary ex facie, acts in an unjust and oppressive manner this Court can exercise its constitutional jurisdiction to grant relief to an aggrieved party keeping in view the circumstances of each case. In this scenario the objection of the respondent qua the maintainability of these petitions before this Court is hereby spurned.
8. During the survey of the documents, appended with these petitions, we have noted that the petitioners have called in question the vires of the Hajj Policy 2011 in general, and the restriction on enrolment of fresh HGOs in particular. A survey of Hajj Policy and Plan for Hajj 2011 makes it crystal clear that besides other issues, criterion for enrolment of new HGOs has been provided under Clause 19(I) Part-III of Hajj Plan 2011 which reads as under:-- any criminal/civil administrative offence, particularly an offence relating to dishonesty, fraud/ forgery, financial/ investment/ business crime misconduct or other criminal acts or been involved in any acts of misfeasance or serious misconduct.
(vi) Has not been associated with any illegal activity especially illegal deposit taking.
(vii)Has not been blacklisted by the KSA or any other foreign government in connection with Tourism Affairs including Urnrah/ Zia rat.
(viii)Has not been declared defaulter by any bank or financial institution in connection with payment of loan or taxes in the capacity of individual as director/chief executive or company as a whole.
(ix) Audit reports of the last three years duly audited by a reputable chartered company.
(x) All directors should hold National Income Tax Number.
B
(i) Be a private limited Company duly incorporated with Securities and Exchange Commission of Pakistan (SECP).
(ii) Have a paid-up capital of rupees twenty (20) million.
(i.e) Have five years verifiable/ documented experience in Tourism/ Umrah/Ziarat.
(iv) Hold an IATA membership.
(v) Has not been convicted/involved in
(xi) All the new HGOs shall deposit non-refundable Rs. 5 lac in Pilgrim Welfare Fund, as processing fee.
(xii) The quota allocation for Hujjaj shall not be claimed as a right."
Strangely enough, under clause 19(II) of the Hajj Plan 2011 it has been mentioned that "there shall be.No new enrolment of HGOs for Hajj 2011." In this behalf, an attempt was made by the learned Deputy Attorney General to contend that such restriction was necessitated by the agreement between the Government of Pakistan and the Royal Kingdom of Saudi Arabia. He also presented to this Court copy of the document relied upon in this behalf, i.e,, the Minutes of the International Agreement between Government of Pakistan and the Royal Kingdom of Saudi. Arabia.
The said document has been placed on record and after examination in Court, was sealed. The learned counsel for the respondents and the learned Deputy Attorney General for Pakistan were unable to show any restriction on the enrolment of new HGOs In the Minutes of the International Agreement. Thus, it is beyond the comprehension of man of prudent mind that if no enrolment of new HGOs was to be made then why the criteria quoted above was laid down in Hajj Policy 2011. The said sub-clause seems to have been crept in surreptitiously due to the efforts of the persons who have already established their hegemony by creating a monopoly in the field of HGOs. The efforts of the persons at the helm of the affairs of Ministry of Religious Affairs right from inception till the filing of report and pare-were comments in these petitions are aimed to safeguard their blue-eyed persons by avoiding enrolment of new FIGOs as in such eventuality the hegemony being maintained by the HGOs already enrolled with the Ministry of Religious Affairs under the umbrella of high-ups of the said Ministry was bound to be scrambled. Just to put a safety wall round the illegal benefits given to their favorites the respondents are using Hajj Policy 2011 as a device. We have no hesitation in our mind to hold that the restriction imposed on enrolment of new HGOs to prevent competition was resit' t of mala fide on the part of the concerned authorities.
9, Insofa as the objection of ti respondents that the petitions are hit by the principle of res judicata is concerned, suffice it to observe that the same is not tenable in view of the fact that no petition has ever been dismissed against the Hajj Policy 2011. The petitions mentioned by the respondents in their report and parawise comments pertain to Hajj Policy 2010: Since these petitions have been filed against Hajj Policy 2011 total fresh cause of action has arisen in favour of- the petitioners, therefore, respondents have no cheeks to challenge their maintainability on the ground that the same are hit by the principle of res judicata.
10. According to Article 18 of Constitution of Islamic Republic of Pakistan, 1973, no enactment can be enacted and policy formulated which is discriminatory, and violative of the C Constitution. For facility of reference the sante is being reproduced hereinbelow:- "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 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, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
A bare perusal of the fore-quoted article makes it crystal clear that every citizen has inalienable right to adopt trade, business and profession' of his on choice to earn bread and butter for his survival. On the other hand, contents of Hajj Policy 2011 makes it crystal clear that while accommodating particular groups, the other citizens have been deprived of their constitutional right to adopt the business of HGO. The said approach of the concerned authorities cannot be approved of rather the same deserves to be discouraged. The reason advanced by the respondents before this Court is that restriction has been imposed pursuant to the instructions issued by the Kingdom of Saudi Arabia but despite repeated queries the respondents failed to substantiate the said assertion through documentary evidence. In this situation the said stance of the respondents cannot be taken as a gospel truth rather the same strengthens the apprehension of the petitioners that the said embargo has been put just to keep the field open for the near and dear ones of those who are occupying the key posts in the Ministry of Religious Affairs and to keep the others aloof from the said business. Further according to the respondents themselves private sector was introduced.First time in the year 2006 pursuant to the instructions issued by the Saudi Government with a view to 'better facilitate the persons performing Hajj and to provide solution for problems being faced by them during the said process. The respondents under the shelter of said instructions after enrolment of their kith and kin have shut the doors for the new entrants just to create monopoly and to avoid creation of atmosphere of healthy competition. The said issue was also dealt with by a learned Division Bench of the Sindh High Court, Karachi in a very comprehensive manner in a case reported as Messrs Al-Khair Services for)haji and Umrah Pvt. Ltd. v. Federation of Pakistan (PLD 2009 Karachi 01). Similarly while deciding Intra-Court Appeal No. 357 of 2006 a Division.Bench of this Court declared the procedure adopted by the Government for enrolment of HGOs is non- transparent and aimed at to monopolize just to avoid open contest amongst the prospective candidates. The operative part of the judgment passed by this Court in I.C.A. No.357 of 2006 reads as follows:-- "By the foregoing discussion, the present state of the record of the respondents seems un- satisfactory insofar as selection 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 insofar as superstructural 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 he void and of no legak effect for the #tbs F G #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 compete in a selection process of HGOs for Hajj 2007 that is framed by the respondents strictly in accordance with law. Appeal partly allowed".
The respondents instead of following the guidelines given in the said judgment are adamant to keep the process of enrolment of HGOs ambiguous and discriminatory as against selection of HGOs through open contest, the persons who have already been registered as HGOs with the Ministry of Religious Affairs irrespective of the fact that whether their performance was up to the mark or not or they were complained against for serious maltreatment with the pilgrims.Who were performing Hajj through their courtesy. The said approach of the respondents has not only deprived the eligible persons who intend to get themselves enrolled as HGOs but has also encouraged the delinquents to further humiliate and blackmail the persons who intend to perform Hajj in 2011 under private scheme.
11. Now adjudging the Hajj Policy 2011 on the touchstone of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 we are of the view that according to the mandate given under the said Article all the citizens are equal before law and are entitled to equal protection of law, i.e. All persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness.
It must be amongst the equal. The equality has to be between persons who are placed in the same set of circumstances. The guarantee contained in this right is only that no person or class of persons shall be denied the same protection of law which is being enjoyed by other persons or other #tbs G H #the classes in like circumstances. Unfortunately, in the instant case the Ministry of Religious Affairs has accommodated the persons of their choice While enrolling them as HGOs whereas the petitioners who are at par with them from-all angles have been deprived in clear violation of the provisions contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The principles for testing that any legislation or policy was discriminatory or not, following principles have been determined by the Hon'ble Supreme Court in its very illuminated judgment reported as Pakcom Limited and others v. The Federation of Pakistan and others (PLD 2011 SC 44):--
(i) The expression equality before law or the equal protection of law does not mean that it secures to all person the benefit of the same laws and the same remedies. It only requires that, all persons similarly situated or circumstanced shall be treated alike.
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.
(i.e) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.
(iv) The classification, if it is not to offend against the constitutional guarantee must be based upon some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation.
(v) Reasonableness of classification is a matter for the courts to determine and when determining this question, the courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.
(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.
If Hajj Policy 2011 is weighed in the scale on the basis of the principles laid down by the Hon'ble Supreme Court in the judgment supra one thing is clear that no plausible reason has been given either while imposing restriction on enrolment of new HGOs or before this Court during the course of arguments. Thus, we feel no hesitation to hold that in respect of uniform application the policy is unjust, unfair and discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
12. While submitting report and parawise comments, the respondents have averred that a number of complaints were lodged by the persons who performed Hajj in the previous years regarding the maltreatment by the HGOs. Although they have taken the stance that certain penalties were imposed against the delinquent HGOs in the past yet their continuation as HGOs under Hajj Policy 2011 speaks volume about the mala fide intention of the respondents to retain them as HGOs at all costs and to avoid, providing chance to the new entrants. As per respondents' on version private sector was involved in the Hajj process with a view to provide solution for the problems being faced by the persons who performed sacred ritual of Hajj, it was just and fair that the HGOs who were involved in uncalled for activities during Hajj in the previous years should have been ousted from the ay of HGOs and in place the other legible persons should have been given a chariatto prove their skill and expertise in the relevant field. Further, Hajj Policy for every year is formulated after deliberations and consultations with the stakeholders then the continuation of the old HGOs without examining their past conduct and output is unfair.
13. Another important. Feature of Hajj Policy 201.1 is that the enrolled HGOs have also been. Further divided into six categories. According to the said criteria while bestowing a specific group registered in the year 2006 being blue-eyed persons of those who were playing vital role in formulating Hajj Policy 2006 is being" awarded more than 250 seats each whereas the HGOs who succeeded to get themselves enrolled under the order of Hon'ble Supreme Court have been awarded quota of 50 seats each only. The said bifurcation by the respondents is illogical, illegal and unconstitutional as well. The persons who were enrolled as HGOs pursuant to the order of the Hon'ble Supreme Court are being given step-motherly treatment just for the reason that they raised their voice against the discriminatory attitude of the respondents. To avoid their responsibility the respondents have tried their best to. Establish that Hajj Policy 2011 has been framed in. Line with the instructions issued by the Kingdom of Saudi Arabia but the fact of the matter is that the Hill Policy 2011 and other documents appended by the respondents with their report and para were comments are totally silent about the said fact. This being the position the mala tide intention of the respondents while formulating Hajj Policy 2011 is very much 'apparent..
Further, if there was any restrict.' by the Kingdom of Saudi Arabia regarding mailing of number of HGOs, the consentof the Secretary for Ministry of Religious grA(fairs for registration of the petitioners as HGOs under Hajj Policy 2010 before the Hon'ble Supreme Court is meaningful, If the position was so, why the said fact was not brought to the notice of the Hon'able Supreme Court, In our view the criterion laid down by the respondents. For allocation of quota for HGOs was also unreasonable and illogical especially visualized in the light of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 which says that all citizens should be treated alike.
14. Though the respondents have taken the stance that the petitioners' case is not at par with those who were enrolled as HGOs under the orders of the Hon'ble Supreme Court of Pakistan but they have miserably failed to draw a line of distinction between the case of the petitioners and those who were enrolled as HGOs pursuant to the order of Hon'ble Supreme Court. Instead of pointing out distinguishing features between the case of the petitioners and those who were enrolled as HGOs under the order of Hon'ble Supreme Court, the respondents have blown hot and cold in the same breath viz on the one hand they are of the view that there is total ban on enrolment of new 11GOs under Hajj Policy 2011 and on the other while rejecting the applications of the petitioners for their enrolment as HGOs they have conveyed that their (the petitioners) request could not be acceded to as they did not fulfil the criteria laid down for said purpose. All these facts depict dismal affairs of the. State prevailing in the Ministry of Religious Affairi, The said approach would not only affect our social threadbare. But would also multiply the problems of the persons who intend to perform Hajj through private HGOs as under the said policy those whose conduct and work were questioned by number of people have been handed over the task to again play with the fare of the people who travel to Saudi Arabia to perform sacred ritual of Hajj.
15. According to Hajj Policy 2011 out of total number of 1,79,256 pligrims, 89,628 (being 50% of the total) have to perform Hajj under HGOs meaning thereby that such a huge number of people have been left on the mercy Of even those HGOs whose integrity work and conduct was below standard as according to the respondents themselves, there were more than 250 complaints regarding the ability and credibility of the HGOs. In these circumstances, such a large number of people cannot be allowed to be humiliated and blackmailed by a specific group of people rather they should be put to test by introducing new HGOs. In this way not only the output of the HGOs towards the persons who perform Hajj under their supervision would be enhanced but the public at large would be benefited both financially and with regard to choice of the facilities being provided by the HGOs during the Hajj 2011.
16. Now adverting to the objection raised by the respondents that in case of interference with Hajj Policy 2011 at this stage the Hajj process is bound to suffer, suffice it to note that the process of enlisting of pilgrims under private sector is still in the pipeline, therefore, we do not find ourselves in agreement with the assertions of respondents on this point.
17. As a necessary corollary to the above discussion; we have no doubt in our mind to hold that Hajj Policy 2011 is in conflict with the clear-cut provisions of Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 for the reason that the same is result of mala fide and, partisan selection on the part of the persons who are at the helm of affairs in L the Ministry of Religious Affairs and the same has the effect of putting unreasonable restriction on the citizens to adopt the profession of their on choice. Resultantly; these petitions are disposed of with a direction to the respondents to receive the applications from the petitioners and all other persons who intend to get themselves enrolled as HGOs if they otherwise fulfil the criteria laid down in the Hajj. Policy 2011 and their names be enlisted as HGOs. The respondents are further directed to apply the policy uniformly while allocating quota to the HGOs and.The seats reserved M for private sector would be distributed amongst the HGOs enrolled with the Ministry fairly and according to merits.
18. Above are the reasons of our short order..
Ahmad Awais for Petitioners.
Ahmer Bilal Sufi for Applicant (in C.Ms. Nos.1826, 1877 and 1879 of 2011.)
Muhammad Imran for Applicant (in C.Ms. Nos. 1951, 1956 and 1958 of 2011).
Muhammad Nascent Kashmiri, Muhammad Ilyas Khan and,Zia-ul-Qamar, Deputy Attorney- General with Muhammad Arshad Bhatti, Additional Secretary, Religious Affairs, Islamabad and Ali Shahbaz Kirmani, Section Officer (Litigation) Ministry of Religious Affairs with record.
Qamar Zaman Respondents Nos. 1 and 2.
Qureshi for N ORDER This is a short order given in writ petitions mentioned in theschedule hereto for reasons to be recorded later.
2. During the course of arguments it is established that the Minutes of International Agreement between the Government of Pakistan and the Royal Kingdom of Saudi Arabia (shown to the Court) does not confine the allocation of HGO quota to persons who have been rendering service as Hajj group organizers in Hajj 2010 and in the immediately preceding years. Consequently, there is no restriction on the Government of Pakistan under the said Minutes of Agreement to allocate the Hajj Group Quota for the Hajj 2011 to qualified persons consequent upon a competitive selection.
3. The parawise comments filed by the respondents/government authorities of the Ministry of Religious Affairs, Hajj, Zakat and Ushr have stated-in paragraph (e) thereof, the conditions and criteria for enrolment of HGOs given in Paragraph No.19 of the Hajj Policy, 2011 which is reproduced as under:-- "(e) There is a laid down criterion for enrolment of HGOs in Hajj 2011 which is as follows:-
(i) Be a private limited tourism company duly incorporated with Securities and Exchange Commission of Pakistan (SECP).
(ii) Have a paid up capital of rupees twenty lac, (2) million.
(i.e) Have five years verifiable/ documented experience in Tourism/ Umrah/Ziarat.
(iv) Hold an IATA membership.
(v) Has not been convicted/involved in any criminal/civil/administrative offence, articularly an offence relating to dishonesty, fraud/
(vi) forgery, financial/ investment/ business/crime/misconduct or other criminal acts or been involved in any acts of misfeasance- or serious misconduct. Has not been associated with any 0 illegal activity especially illegal deposit taking.
(vii) Has not been black listed by the KSA or any other foreign government in connection with Tourism Affairs including Umrah/Ziarat.
(viii)Has not been declared defaulter by any bank or financial institution in connection with payment of loan or taxes in the capacity of individual as director/chief executive or company as a whole.
(ix) Audit reports of the last three years duly audited by a reputable chartered company.
(x) All directors should hold National Income Tax Number.
(xi) All the new HGOs shall deposit non-refundable Rs. 5 lac in Pilgrim Welfare Fund, as processing fee.
(xii) The quota allocation for Hujjaj shall not be claimed as a right. "
The foregoing conditions do not confine eligibility of HGOs of Hajj 2011 to persons that have experience of organizing and conducting Hajj pilgrims at Hajj 2010 and in the immediately preceding years. Consequently, we do not find that any' ground is available with the respondents/ government authorities to limit the allocation of HGO quota for Hajj 2011 to only such HGOs that have rendered service and obtained experience in Hajj 2010 or inip the immediately preceding years.
4. Therefore, it is held that the respondents are duty bound to solicit, receive, consider and decide all the applications for allocation of HGOs quota for Hajj 2011 filed by the petitioners or others who are qualified in terms of the criteria reproduced above. The respondents are also under a duty.To ensure competitive selection of HGOs for the Hajj 2011 fairly, transparently, and in accordance with law without imposing any extraneous conditions on the eligibility of qualified persons to compete in such selection. As a result the conditions imposed in the Hajj Policy 2011 limiting the selection of HGOs of Hajj 2011 to the persons; rendering service during the last Hajj 2010 or in the ones during the immediately preceding years is declared as illegal, without lawful authority and of no legal effect.
All the petitions are disposed of accordingly..