Ayesha A. Malik J: This common judgment decides upon the issues raised in the petitions detailed in Schedule "A" and " B" appended with the judgment as all the petitions raise common questions of law and facts.
2. The Petitioners before the Court have challenged the Hajj Policy and Plan 2019 ("Hajj Policy ") on the ground that they have not been issued the quota of pilgrims despite the fact that they are Hajj Group Organizer Companies ("HGOs") who are duly enrolled and entitled to the quota of pilgrims for Hajj 2019. The Petitioners before the Court claim that they are duly enrolled as HGOs with the Respondents and are providing services for performing Umrah for many years yet they have never been given quota of pilgrims for Hajj despite repeated judgments by the august Supreme Court of Pakistan calling for a fair and transparent hajj policy. The first case relied upon was the Corruption in Hajj Arrangements 2010, in Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P, 58118-K of 2010, 1291-K and 1292-K of 2011 decided on 29.7.2011 (PLD 2011 SC 963) followed by Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1) ("Dossani Travels Case") yet the Respondents have failed to make a transparent and fair policy on the basis of which there should be equal distribution of the quota of pilgrims for the performance of Hajj.
3. Learned counsel for the Petitioners argued that every year issues arise out of allocation of the pilgrims' quota on account of the wrong doings of the Respondents as they tend to give preference to their favourites; that they do not follow any formula nor is there criteria on the basis of which the quota of pilgrims is distributed. The Petitioners all claim to be eligible having requisite experience and state that they have been ousted from this process simply alleging that they do not have the requisite experience of carrying out Hajj, hence they have never been properly considered. Learned counsel further argued that the Petitioners are pre-qualified; that they are duly enrolled, however they have not been able to send pilgrims to Hajj as they have never given the quota of pilgrims despite all hectic efforts. Learned counsel further argued that under the Hajj Policy , there is 40% quota available for private HGOs which should have been equally distributed among all enrolled HGOs. This is in line with the spirit of the Dossani Travels Case, however , the Respondents have failed to comply with the judgments of the august Supreme Court of Pakistan and have once again issued the hajj quota to their favourites who happened to be members of the Hajj Organization Association of Pakistan ("HOAP "). Learned counsel further submitted that in some cases the Petitioners have provided a more cost effective Hajj package compared to the one the Government is offering yet despite the same, the Petitioners have not been considered.
4. Report and parawise comments have been filed by the Respondents. Learned DAG argued that the Hajj Policy is neither arbitrary nor discriminatory but in fact is based on a mathematical formula and criteria for assessment of profiles under which the Hajj quota has been allocated. She further submitted that it has been done in a transparent manner by a Hajj Policy Formulation Committee ("Committee ") comprising of Secretary , MORA as Chairman, representative from the office of the Attorney General for Pakistan, from the Ministry of Foreign Affairs, and Ministry of Law and Justice and also a repres entative from the Competition Commission. Further that Third Party Assessment is carried out for selection and the Hajj Policy has been approved by the Cabinet. She further explained that the Petitioners before the Court were all duly considered but they did not qualify on merit, hence they have not been allocated Hajj quota. She further explained that even in the previous years, the Petitioners did not meet the criteria, hence they were not allocated Hajj quota. Moreover the Committee recommended quota of 5000 pilgrims to newly enrolled companies for which the Petitioners did not qualify . She argued that it is the discretion of the Government to devise a policy and the Petitioners' contention that the Respondents are obligated to give equal distribution is unfounded as the Hajj Policy ensures a fair and transparent criteria on the basis of which allocation of quota is made. She has placed on file the merit list of the HGOs which has been put up on the website of Respondent No.1 and has also placed on file the criteria for assessment of profiles on the basis of which assessment of HGOs was made.
5. Heard. Record perused. The basic contention of the Petitioners is that the Hajj Policy is illegal and arbitrary because it does not equally distribute the quota of pilgrims for Hajj 2019. The Petitioners claim that on the basis of the criteria set out they are discriminated against as they do not have the requisite experience of conducting Hajj, hence they will never be eligible since this is the primary criteria. They also allege discrimination as the Respondents are still maintaining old HGOs and new HGOs list, such that the new are considered against a 2% quota only. This is against the Dossani Travels Case as per their contention. Therefore it is expedient to first consider the directions given in the Dossani Travels Case which are as follows:
51. Before we part with the judgment, we may add that the performance of Hajj is a sacred duty for Muslims. But the quota allocated to Government of Pakistan by the Saudi Government is limited and within that limited quota, it allocates a certain portion to private HGOs. Since several hundred HGOs apply for allocation of quota from the Private Hajj Scheme share as worked out by the MORA, all applicants HGOs cannot be accommodated and the dismay of those who are left out is understandable. We are conscious that the MORA has to take several steps to ensure that travel, accommodation and other arrangements are made to the satisfaction of Hujjaj. It requires a couple of weeks to complete the exercise. However since Hajj operation is a time bound exercise, arrangements have to be made within that limited time. 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 is also imperative that the Hajj Policy for the next year should be announced at the earliest after the conclusion of Hajj. In these circumstances, we are persuaded to direct as under:-
(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 Hajis from 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 Secreta ry, 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 Division and Parliamentary Affairs; and a nominee of the Attorney General for Pakistan;
(iii) The credentials of each applicant/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.
6. Subsequent thereof in Muhammad Arif Idrees and others v. Sohail Aamir and others (2017 SCMR 1379 ), the august Supreme Court of Pakistan held that the distinction between Hajj quota holders and non-quota holders was discriminatory and has no rationale or nexus to the allocation of Hajj quota. Hence the Court reiterated the direction in Dossani Travels Case whereby the Competition Commission of Pakistan should provide its recommendations and that the credentials of each HGO should be considered on merit.
7. The Criteria for Assessment of Profiles of New HGOs was placed before the Court for assessment of new profiles and as per the criteria it is based on the judgment of the august Supreme Court of Pakistan in Dossani Travels Case in terms of which the following factors are considered: i) Past performance of Hajj or Umrah or Ziarat Operations. ii) Economy of financial packages of fered. iii) Quality of management and services provided. iv) The financial strength of the NGOs. v) Weight age should be allocated to these variables in a manner which does not give undue consideration to experience only . vi) MORA shall also allocate specific percentage of hajj quotas to the new entra nts to encourage entry of new payers in the market and such quota may be allocated based on the separate criteria. vii) MORA shall ensure that the NGOs to whom the quota is allocated, should perform the Hajj operations on their own and this fact should also be verified from their financial statement. In case, any NGO continues with such practices, MORA should consider it for blacklisting for an appropriate period. viii) All the variables mentioned above should be evaluated by a third party , preferably a chartered accountancy firm approved by ICAP , to ensure transparency for the process. ix) MORA should consider forming a panel whose responsibility will be to monitor all the NGOs. All the complaints against the NGOs shall also be reviewed by that panel. The recommendations and the finding of that panel shall be taken into account when allocating the quota to the NGOs. The panel shall be completely independent to ensure transparency of the process.
The documents that are scrutinized as per this criteria are as follows: i) Paid up and authorized capital are not less than Rs.5 million and Rs.7.5 million respectively . ii) No management dispute. iii) Having appropriate office located at proper place, at least three employees with adequate furniture and IT facilities. iv) The company is not Bank defaulter/loan defaulter , tax defaulter and is on the Active Taxpayer List. v) Non-conviction of management in criminal case(s) by any court of law. (Affidavit on stamp paper of Rs.500/- duly attested by notary). vi) The company is not presently debarred for carrying out its operation by the government of Pakistan or KSA as the case may be.
Subsequently the allocation of marks is as follows: a) Company should be a private/public limited company duly incorporated under Companies Ordinance, 1981- with Securities and Exchange Commission of Pakistan (SECP) since; i) 2001 or before 20 Marks ii) 2005 18 Marks iii) 2006 16 Marks iv) 2007 14 Marks v) 2008 12 Marks vi) 2009 10 Marks vii) 2010 08 Marks viii) 201 1 06 Marks ix) 2012 04 Marks On the basis of this criteria a merit list has been made which provides for the names of HGOs, the Province from which it is applying, year of its incorpora tion, year of its tax return filling, year of SECP filings and experience in carrying out Umrah. On the basis of the marks obtained in these categories, the overall marks sets out the merit. In terms of the merit list provided, the cases of the Petitioners have been considered and their names are duly incorporated in the merit list.
However , for the purposes of the allocation of quota of pilgrims to new HGOs, the first 35 HGOs have been selected as the quota is satisfied till Serial No.35.
8. With reference to old HGOs a criteria has also been placed on file in terms of which: The honourable Supreme Court of Pakistan' s orders dated 27.08.2013 passed in Civil Appeal Nos.800-L, 801-L and 802-L of 2013 contain following recommendations by the Competition Commission of Pakistan:- i) Past performance of Hajj or Umrah or Ziarat Operations. ii) Economy of financial packages offered. iii) Quality of management and services provided. iv) The financial strength of the HGOs. v) Weight-age should be allocated to these variables in a manner which does not give undue consideration to experience only . vi) MORA shall also allocate specific percentage of hajj quotas to the new entra nts to encourage entry of new payers in the market and such quota may be allocated based on the separate criteria. vii) MORA shall ensure that the HGOs to whom the quota is allocated, should perform the Hajj operations on their own and this fact should also be verified from their financial statement. In case, any HGO continues with such practices, MORA should consider it for blacklisting for an appropriate period. viii) All the variables mentioned above should be evaluated by a third party , preferably a chartered accountancy firm approved by ICAP , to ensure transparency for the process. ix) MORA should consider forming a panel whose responsibility will be to monitor all the HGOs. All the complaints against the HGOs shall also be reviewed by that panel. The recommendations and the finding of that panel shall be taken into account when allocating the quota to the HGOs. The panel shall be completely independent to ensure transparency of the process.
Basic Eligibility Criteria for further scrutiny of documents Only those HGOs will be eligible for further scrutiny of documents which meet following basic criteria: i) Paid up and authorized capital are not less than Rs.7.5 million and Rs.10 million respectively . ii) No management dispute. iii) Having appropriate office (located at a proper place, at least three operational staff with adequate furniture and IT facilities). iv) The company is not Bank defaulter/Loan defaulter or tax defaulter and is an active taxpayer . v) Non-conviction of management in crimi nal case(s) by any court of law. (Affidavit on stamp paper of Rs.500/- duly attested by notary). vi) The company is not presently debarred for carrying out its operation by the government of Pakistan or KSA as the case may be. vii) The company is organizing Hajj operations by itself and has not sublet it to any other operator , duly supported by a verifiable document. a) Compliance of SECP Regulation i.e. submission of regular audit reports of last three years prepared by an Auditing Firm of Chartered Accountants registered with ICAP i.e. i. Submitted audit report of last three years 15 Marks ii. Submitted audit report of last two years 10 Marks iii. Submitted audit report of last one year 05 Marks b) Filing of annual tax returns of the company: i. Last three years10 Marks ii. Last two years 06 Marks iii. Last one year 03 Marks c) Company is compliant to filing of annual returns to SECP for the last three consecutive years: i. Three years 10 Marks ii. Two years 06 Marks iii. One year 03 Marks d) Company has not been convicted by CDC on complaints of hujjaj and confirmed by the appellate committee for last three consecutive years (Conviction means reduction in quota or suspension for a specific period, imposition of fine deposited in government treasury etc.): i. No Conviction in complaints 0 marks ii. One or two convictions -5 marks iii. Three or more convictions -10 marks Hence even old HGOs are tested against a criteria to ensure that they meet the given standards.
9. Based on the above mentioned criterias the Respondents state that there are more than 2500 enrolled HGOs which include the Petitioners out of which 801 HGOs have been allocated Hajj quota. 79 new HGOs have been added over the years on the basis of the guidelines in Dossani Travels Case and subsequent cases. The Ministry of Hajj in 2019, reserved an additional 5000 Hajj quota for allocation to newly enrolled HGOs in compliance of the order of the Islamabad High Court, Islamabad dated 15.3.2018 and against another quota as promised by the Saudi King, will give newly approved HGOs the opportunity to be issued Hajj quota. The recommendations of the Competition Commission of Pakistan in compliance with Dossani Travels Case have been considered and a criteria for establishing the merit is being followed. With reference to the policy challenge, learned DAG has placed reliance on the judgment of this Court dated 14.2.2019 passed in WP No.8796/2019 titled Advocate Mian Asif Mehmood v. Federation of Pakistan etc. in which the Hajj Policy was challenged and it was found that there is no illegality or arbitrariness or malafide established on the part of the Executive.
10. The entire case of the Petitioners is that the process of selection is arbitrary , random and discriminatory .
However , in terms of the criterias set out before the Court, there appears to be no arbitrariness or randomness in the selection process. The Hajj Policy provides for a Hajj Policy Formulation Committee which includes Secretary , MORA as Chairman, representative from the office of the Attorney General for Pakistan, from the Ministry of Foreign Affairs, and Ministry of Law and Justice and representative from the Competition Commission of Pakistan.
A bare look at the members who sit in the Committee shows that it is an impartial Committee comprising of a diverse set of members who formulated the Hajj Policy and the criteria for allocation of Hajj quota. The Hajj Policy was approved by the Cabinet whereafter the quota allocation process was started. The Petitioners before the Court along with other HGOs were all duly cons idered, on the basis of which a merit list was made and the merit list has been duly posted on the website of Respondent No.1. The Court has also been informed that the assessment was made by engaging a Third Party being a well reputed Chartered Accountant, hence the question of favouritism and random picking of HGOs has no force. Therefore the Hajj Policy and quota allocated thereunder is in compliance with the pronouncement of the august Supreme Court of Pakistan especially the Dossani Travels Case.
11. With respect to the Petitioners' allegation that in certain cases HGOs have been selected contrary to the criteria or without due regard to the criteria is a question of record and fact. In such cases the Petitioners can raise specific objections before the Committee who can review the allegations and determine whether or not there is any merit in the same within the shortest possible time. In this context, the relevant HGO shou ld also be given a hearing so as to enable it to defend its position. In the event that such applications are filed before the Committee, the same shall be decided expeditiously so as to prevent any disturbance in the allocation of Hajj quota.
12. The only contention left is that of discrimination where the Petitioners seek equal distribution of the Hajj quota, such that all enrolled HGOs should be given equal quota, meaning that each of the enrolled HGO is awarded a quota if it meets the criteria. The Petitioners claim discrimination on the ground that the Respondents are still distinguishing between old HGOs and newly enrolled HGOs, thereby reducing their chance of getting a Hajj quota.
Learned DAG clarified that for the purposes of reference only old HGOs are those enrolled since 2005 who are carrying out the provision of Hajj services and are allocated Hajj quota. The merit of these HGOs is scrutinized against the given criteria. The new HGOs are the ones enrolled from 2012 and they are also allocated quotas.
However, not every newly enrolled HGO has been given Hajj quota as the same is determined on the basis of the given criteria and on its merit. In the cases before the Court the Petitioners do not satisfy the merit requirement but have been duly considered. It appears that this dispute for equal distribution has continued for some time and the Petitioners continue their demand for equal distribution of Hajj quota. The fact that every HGO cannot be accommodated while allocating Hajj quota does not tantamount to discrimination and the fact that HGOs before the Court have not been given Hajj quota does not suggest discrimination. A transparent process has been placed before the Court on the basis of which the selection was made and in terms of the HGOs before the Court, none of them were able to make it on the merit list. The judgment of the august Suprem e Court of Pakistan have been followed and a policy has been devised which allows HGOs to compete for the merit. Old HGOs are the HGOs who are providing Hajj services, hence are scrutinized considering their past Hajj services. New HGOs are those who have never carried out Hajj services yet are considered on the basis of Umrah services. This distinction does not suggest discrimination rather shows that a thought through process has been put in place to consider all HGOs favourably . Hence there is no merit in the discrimination argument. Learned DAG stated that it is expected that the quota promised by the Saudi King will be allocated shortly for which again an exercise shall take place for enrollment of new HGOs provided that they meet the criteria. Therefore as such the Petitioners can be considered again and may be allocated quota if they meet the given criteria.
13. In WP No.15188/19, the Petitioners seek a declaration that past performance of the tour operators is to be judged on Hajj or Umrah or Ziarat operations and the Respondents cannot exclude Ziarat operations as this Petitioner specializes in Ziarat operations and was previously considered for Hajj quota. Learned counsel stated that the applicants who only applied on the basis of Ziarat have not been given any quota this year, hence are discriminated against. Learned counsel further argued that in terms of the given criteria, Ziarat operation was also to be considered and that many of the old HGOs were granted quota only on the basis of Ziarat operations. It is also his case that this is against the dicta laid down by the august Supreme Court of Pakistan in Dossani Travels Case.
14. Report and parawise comments have also been filed in the stated Writ Petition. Learned DAG argued that the matter of Ziarat operations were duly considered by the Committee and it was decided that Hajj quota will not be given to those tour operators who only have experience in Ziarat operations as there is no way to verify their credentials or information on the basis of which it can be ascertained whether the tour operator has carried out Ziarat operations and whether there were any complaints or problems related thereto. She explained that for the purposes of Umrah, the Kindgom of Saudi Arabia issues Umrah ID, hence it is verified and only Umrah ID holders are considered. However there is no official ID given for the purposes of Ziarat operations, hence the Committee on the recommendations of the Competition Commission of Pakistan in the larger interest of allocation of Hajj quota decided that Ziarat operations would not be considered under the Hajj Policy. She again reiterated that this is a policy decision and as such the Petitioner has no fundamental right on the basis of which it can claim entitlement to Hajj quota as a reasonable and fair policy has been executed on the basis of which the Petitioners are not entitled to any Hajj quota.
15. On the basis of the contentions raised, there appears to be no arbitrariness or discrimination in this case as the Committee is well within its domain to determine the Hajj Policy and is not obligated to include Ziarat operations under any judgment of the august Supreme Court of Pakistan. It is also noted that the Committee has rationalized its reasons to explain why Ziarat operations have not been considered in this policy which explanation has been accorded by the Competition Commission as per the requirements of the Dossani Travels Case. The Cabinet has also approved the Hajj Policy which sets out a transparent process to allocate Hajj quota. Therefore as such there is no merit in this petition as well.
16. Therefore in view of the aforesaid, there is no merit to the challenge of Hajj Policy in these petitions, hence all the petitions are dismissed.