MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.1086/2023, 1127/2023, 1167/2023, 1186/2023, 1255/2023, 1256/2023, 1257/2023, 1317/2023, 1482/2023 and 4498/2022 since they entail certain common features.
2. All the petitioners have called in question the Hajj Policy 2023 to the extent whereby it does not allocate quota for non-quota holder Hajj Group Organizers ("HGOs"). Furthermore, the petitioners seek a direction to the Ministry of Religious Affairs and Interfaith-Harmony ("Ministry of RA&IH") to allocate a reasonable percentage of quota to non-quota holder HGOs out of the quota allocated to the Private Hajj Scheme for the Hajj Year-2023.
3. The petitioners are engaged in the business of providing services as travel agents. They also provide umrah services and are registered with the Ministry of RA&IH as HGOs. This year the petitioners have not been allocated any quota.
4. The Hon'ble Supreme Court, in its judgment in the case of Dossani Travels (Pvt.) Ltd. Vs. Messrs Travels Shop (Pvt.) Ltd. (PLD 2014 SC 1), took note of the fact that several hundred HGOs applied for the allocation of quota from the share of Private Hajj Scheme all of whom cannot be accommodated. Therefore, the Hon'ble Supreme Court required to frame and announce a Hajj Policy. In paragraph 8 of the said judgment, the Hon'ble Supreme Court made reference to the recommendations of the Competition Commission of Pakistan, which included the recommendation that the Ministry of RA&IH "shall also allocate a specific percentage of Hajj quota to the new entrants to encourage entry of new players in the market and such quota may be allocated based on a separate criteria." In paragraph 51(iv) of the said report, the Hon'ble Supreme Court directed that while framing the Hajj Policy, the Ministry of RA&IH should be guided by the recommendations made by the Competition Commission.
5. In the case of Muhammad Arif Idrees Vs. Sohail Aamir (2017 SCMR 1379), it has been explained that there are two categories of enrolled HGOs. The first category is the one to whom Hajj quota has been allocated by the Ministry of RA&IH and is renewed every year. The second category, (which is far in excess in number from the first category) is the one which had been enrolled in the year 2012 through due process and their credentials had been scrutinized by a firm of chartered accountant in the year 2013. This category had not been allocated any Hajj quota.
6. The classification of these two categories has been termed as "artificial, unjust and unfair" as well as violative of Article 25 of the Constitution. It was also held that the classification between the two categories has no rational nexus to the objective of the Hajj Policy. It was also held that creating a monopoly for the quota-holder HGOs was violative of Article 18 of the Constitution. This judgment was given by the Hon'ble Supreme Court as the Ministry of RA&IH had been consistently avoiding allocating a quota to non-quota holders HGOs on the pretext that there was no quota available.
7. In the year 2018, the Ministry of RA&IH reserved a quota of 2% to be allocated to new entrants out of the 40% quota allocated to the Private Hajj Scheme at that time. Out of the total quota allocated by the Kingdom of Saudi Arabia (KSA) for Pakistan, 60% would be reserved for the government whereas 40% would be allocated to the private HGOs.
8. In the year 2019, the KSA allocated an additional quota of 5,000 pilgrims to Pakistan all of which was distributed amongst 102 newly enrolled HGOs. The letters issued by the Ministry of RA&IH to the newly enrolled HGOs clearly mentioned that the offer for the quota of fifty Hujjaj to each such HGO for the Hajj2019 should not be construed as a grant of the license as HGO.
9. It is an admitted position that no Hajj was performed in the year 2020 and 2021 due to the Covid- 19 Pandemic. In the year 2022, the KSA allocated a quota of only 81,132 pilgrims to Pakistan whereas earlier this quota was 179,210. Due to this limited quota, no new HGO was entertained for the allocation of Hajj quota for the Hajj-2022.
10. The Hajj Policy-2023 made by the Ministry of RA&IH was approved by the Economic Coordination Committee ("ECC") of the Cabinet on 06.03.2023 and by the Cabinet on 09.03.2023. As per the said Hajj Policy, the KSA has allocated a quota of 179,210 Hujjaj for Pakistan. Out of which, 50% is to be allocated to the government and 50% to the Private Hajj Scheme. Due to the prevailing economic conditions in Pakistan, the said Policy also provides for 50% of the quota for the government and Private Hajj Scheme, to be reserved for sponsorship scheme under which applicants are required to deposit their Hajj dues and foreign exchange remitted from abroad only and are not to be allowed to deposit the Hajj dues from foreign currency accounts in Pakistan. It is also by reason of the current economic condition that the Government of Pakistan, on 02.05.2023, surrendered a quota of 8,000 Hujjaj out of the total quota of 179,210. After the surrender of the said quota, the quota for the Government Hajj Scheme stood reduced from 89,605 to 80,380 whereas the quota for the Private Hajj Scheme was slightly increased from 89,605 to 90,830. The said decision was taken on the basis of ECC's decision dated 10.04.2023 which was ratified by the Cabinet on 10.04.2023.
11. Since the Ministry of RA&IH wanted to accommodate the new entrants but on the basis of merit, it awarded a contract to M/s IECnet after a competitive process to assess (i) non-quota holder companies (1,157 in number) which were declared eligible in an earlier assessment carried out in 2018, (ii) non-quota holder companies (690) which had been declared ineligible in the assessment carried out in 2018 and (iii) new applicant companies (1100).
12. M/s IECnet had submitted a draft report to the Ministry of RA&IH on 05.04.2022. Numerous objections were received by the Ministry of RA&IH against the assessments carried out by M/s IECnet. The Ministry of RA&IH had constituted a grievance committee on 12.05.2022 to address the objections. This committee was of the view that there were several discrepancies in the M/s IECnet's report. Accordingly, the said committee is said to have decided to "set aside" the report of M/s IECnet and approved a new criteria for enrolment of aspirant tour operator companies and also asked the Ministry of RA&IH to initiate a fresh process for engaging the services of a firm of auditors to assess the applications submitted by Tour Operator Companies.
13. On 08.10.2022, the Ministry of RA&IH published an advertisement inviting applications for selection of the firm of auditors. This process was assailed before the Hon'ble High Court of Balochistan in C.P.No.1649/2022 which was dismissed vide judgment dated 20.03.2023.
14. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
15. It is an admitted position that the process of assessment has not taken place. Since the arrangements for Hajj have already been made and the respective Hujjaj are due to depart to KSA in the near future, it was decided to allocate Hajj quota to those new entrants which had, in the assessm ent carried out in the year 2018, secured 44 marks. This decision was taken by the Ministry of RA&IH on 15.03.2023. On the basis of the said decision, Hajj quota of 3,400 Hujjaj was deducted from the existing HGOs and the same was allocated to the 68 new companies that had secured 44 marks in the assessm ent carried out in the year 2018.
16. Some of the petitioners are in the list of new companies compiled in the year 2018. It is an admitted position that none of the petitioners, who were in the said list, had attained more than 44 marks. The petitioners who were in the said list do not deny that the 68 new companies selected by the Ministry of RA&IH for the allocation of Hajj quota had obtained more marks than such petitioners. The vital question that needs to be determined is whether those new companies or non quota holder HGOs who had not attained 44 marks should also be allocated a Hajj quota.
17. The petitioners' stance was that the government should not have surrendered a quota of 8,000 from the Government Hajj Scheme but should have allocated this quota to the Private Hajj Scheme so as to accommodate the non quota holder HGOs and new companies. Since the decision dated 10.04.2023 of the Federal Government (i.e the Cabinet) to surrender a quota of 8,000 Hujjaj to KSA was a policy decision driven by the current economic situation in the country, it is not for this Court to sit in judgment over the said decision in exercise of its jurisdiction under Article 199 of the Constitution.
18. Some of the petitioners take the view that since they were allocated a quota in the year 2019 they had come within the category of quota holder HGOs and therefore should have been allocated a quota for the Hajj-2023. This contention is not tenable since such petitioners were the recipients of an additional quota that had been allocated by KSA to Pakistan for the Hajj-2019 as a special gesture. Furthermore, the Ministry of RA&IH had in clear terms made such petitioners aware that the allocation of such quota should not be treated as a grant of license as HGO. Since such petitioners were well aware since 2019 that they did not come within the meaning of quota holder HGOs, they cannot seek to be declared as quota holder HGOs by this Court.
19. The most crucial question agitated by the petitioners in the instant writ petitions is that the Hon'ble Supreme Court, through its judgments reported as Dossani Travels (Pvt.) Ltd. Vs. Messrs Travels Shop (Pvt.) Ltd. (PLD 2014 SC 1) and Muhammad Arif Idrees Vs. Sohail Aamir (2017 SCMR 1379), had required the Ministry of RA&IH to formulate a mechanism for accommodating the non quota holder HGOs and companies. The decisions taken by the Ministry of RA&IH show that out of the quota determined through policies of the government for the quota holder HGOs, a mere 2% has been reserved for non quota holder HGOs or new companies. It ought to be borne in mind that it is for the government to take a policy decision for determining the percentage of the Hajj quota for the Private Hajj Scheme and Government Hajj Scheme out of the total Hajj quota granted by KSA to Pakistan. True, the Hajj quota holder HGOs have been enrolled many years ago and every year a Hajj quota is allocated to them, but this results in depriving the non quota holder HGOs or new companies who may prove to be equally efficient or proficient in the process of assessment.
To leave the door open only by 2% for the non quota holder HGOs and new companies is most unreasonable and irrational. The quota holder HGOs are beneficiaries of state largesse. I say so because in the event that the Government of Pakistan in any particular year decides not to allocate any quota to the Private Hajj Scheme, it would be well within its rights to do so. Where it does decide to allocate a quota for the Private Hajj Scheme, the HGOs whether new or old and whether quota holders or non quota holders ought to be treated equally and in accordance with Article 25 of the Constitution.
This, in my view, is the thrust of the ratio in the judgment of the Hon'ble Supreme Court in the case of Muhammad Arif Idrees and Sohail Aamir (supra). Paragraphs 15 and 16 whereof are reproduced herein below:- "15. The non-quota holder HGOs are being denied quota merely on the pretext that no surplus quota is available with the government of Pakistan. The quota allocated by KSA to Pakistan is for the people of Pakistan and not for any particular group, segment or association. As noted above the quota for Pakistan is bifurcated by the government of Pakistan into two segments, one under the Government Hajj Scheme and the other for Private Hajj Scheme. There is absolutely no basis, rationale or justification to continue to grant quota only to those who have been granted such quota earlier also, as is presently being done, especially so when fresh entrants have been lured into joining the business/occupation of HGOs, through advertisement and have been enrolled as such through due process, as noted above. In terms of clause (c) of Article 18 of the Constitution, it is only the Federal or Provincial Government or a corporation controlled by any such government, that can monopolize any trade, business, industry or service to the exclusion of other persons. The artificial, unjust and unfair classification created by MORA between quota holder HGO, and the non-quota holder HGO also offends Article 25 of the Constitution, which guarantees to all citizens equality before and equal protection of law, as the above discussed differentia has no rationale nexus to the avowed objective of the Hajj policy, of developing plans for efficient Hajj arrangements through provision of services and logistics like affordable lodging and boarding, transport and health care during the Hajj, it rather runs contrary thereto. Creating monopoly like in the present case is also violative of clause (c) of Article 18 of the Constitution and defeats the provisions of clause (b) of Article 18 of the Constitution which provides for regulation of trade, commerce and industry in the interest of free competition therein, and as rightly laid down in the case of Arshad Mehmood v. Government of Punjab and others (PLD 2005 SC 193), as long as the trade or business is lawful, the citizen who is eligible to conduct the same cannot be deprived from undertaking the same subject to law which regulate it, and as noted earlier, the petitioners have been duly enrolled and as such permitted to operate as HGO and no handicap or disqualification has been alleged against them. Even in its comments, MORA has submitted that there is no rule that the Hajj quota once allotted cannot be reduced and further that the Hajj quota is allocated to private sector on yearly basis. Furthermore by monopolizing the private Hajj arrangements in the hands of the members of HOAP, the government is also depriving the intending Hujjaj of a larger, or may be better choices of HGO, and is thus facilitating/encouraging their exploitation at the hands of the former.
16. In fact the issues of competition or monopoly and transparency are since long being raised during the deliberations and meetings of MORA. In fact the representative of the Competition Commission of Pakistan have specifically addressed these issues through their recommendations, as discussed herein earlier and has also pointed out that by allocating Hajj quota on the basis of Hajj operations performed by the HGO, MORA is giving undue advantage to the HGO who have performed larger number of Hajj operations, and is putting the new entrants and the HGO who have performed lesser number of Hajj operations at a competitive disadvantage. This court being cognizant of the above has through its judgment in the case of Dossani Travels (supra), directed MORA that in framing the Hajj policy, it should seek guidance from the aforesaid recommendations of the Competition Commission of Pakistan, and that the credential of each applicant/HGO should be examined and decision regarding allocation of quota be made on merits."
20. Since the Hajj-2023 is to take place on 26.06.2023 which is only one month away, and the respective Hujjaj have completed their arrangements to depart to KSA, it would not be appropriate for this Court to interfere in the Hajj Policy 2023 and refer the matter to the Ministry of RA&IH so as to formulate a policy which as regards the distinction between the quota holder HGOs and non- quota holder HGOs / new companies is brought in conformity with Articles 18 and 25 of the Constitution. However, it would be appropriate to direct the said Ministry to frame a policy for the Hajj after the Hajj-2023, which reduces or eliminates the disparity between the quota holder HGOs and non quota holder HGOs / new companies.
21. In view of the above, all the writ petitions mentioned in paragraph 1 hereinabove are dismissed with no order as to costs.