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2012 DIGILAW 692 (KER)

Shameena Rasheed v. Haj Committee of India

2012-07-23

A.M.SHAFFIQUE, MANJULA CHELLUR

body2012
JUDGMENT Shaffique, J. 1. Petitioners in the writ petition are the appellants. Writ petition is filed inter alia for a declaration that the stipulation in clause 9(B)(i) in Ext.P1 is not applicable to Mehram accompanying the women applicants who have not performed Haj in life time and for consequential reliefs including consideration of the application of petitioners 1 to 3 along with Ext.P5 application of the Mehram. 2. The facts involved in the case disclose that petitioners applied to the 2nd respondent for performing Haj ritual in the year 2012. Since the petitioners were women, they had to be accompanied by a male member who is a close relative, termed as Mehram. They submitted their applications along with the application of the husband of the 1st petitioner Sri.Abdul Rasheed as the Mehram. Sri.Abdul Rasheed had performed Haj in the year 2004. As per the Guidelines of the 2nd respondent Haj Committee, which is produced as Ext.P1 and the Guidelines for the Haj of 2012 published by Haj Committee of India, Ext.R2(a), certain reservations are provided to certain category of persons. Since Ext.P1 is published based on Ext.R2(a), it is better to refer to the Guidelines specified in Ext.R2(a) (hereinafter referred as the 'Guidelines'). As per Clause 7 of the Guidelines, pilgrims of 70 years and above will be registered under the reserved category (a). Fourth time applicants who had submitted their applications continuously for the last three years during Haj 2009, 2010 and 2011 and whose applications have been rejected come under Reserved Category (b). 3. Out of the total quantity of seats allotted to the Kerala Haj Committee first preference is to pilgrims above 70 years coming under Reserved Category (a) and the second preference goes to the Reserved Category (b) that is the fourth time applicants. If there are any seats vacant or left undistributed after considering the reserved categories, the other applicants are placed in the general category. 4. According to the petitioners, they applied under the reserved category (b) as 4th time applicants. Apprehending that they will not be considered the petitioners made representations to the Haj Committee as Ext.P3. But, they were not considered in the said category and was directed to be placed in the general category as per Ext.P6. 5. 4. According to the petitioners, they applied under the reserved category (b) as 4th time applicants. Apprehending that they will not be considered the petitioners made representations to the Haj Committee as Ext.P3. But, they were not considered in the said category and was directed to be placed in the general category as per Ext.P6. 5. It is the case of the petitioners that their applications ought to have been considered under the reserved category (b) since they complied with all the requirements. 6. Second respondent has filed a counter affidavit supporting their stand that the petitioners were not entitled to be considered in the reserved category (b), in view of clause 7 of the Guidelines issued by Haj Committee of India. It is submitted that there are two categories (a) and (b) who are entitled for reservation. But, according to them, as per clause 7, the Haj Committee of India had clearly indicated that from 2012 onwards reserved category status shall be given only to applicants including companions who had not performed Haj in their entire life time either through Haj Committee of India or private tour operators or any other means. In other words, it is contended that the companion mentioned in category (a) and also Mehram who has to accompany the reserved candidates under category (b) shall not be a person who had performed Haj in their life time. It is further stated that when they received Ext.P3 petition, the matter was referred to the Haj Committee of India and the Kerala State Haj Committee, in its meeting held on 03/03/2012, decided to request the Haj Committee of India to relax the condition, that the Mehram should not be a person who has not performed Haj in his life time. However, Haj Committee of India issued a circular on 30/03/2012 stating that any changes in the policy after the Haj announcement will create problems in so far as some may take the benefit and others will not be able to take such benefit for want of information of the subsequent changes made. 7. It is further stated that there were 49,429 applicants and out of that, reservation under Category (a) came to 3,120 applicants and under (b) category there were 4,987 applicants. 7. It is further stated that there were 49,429 applicants and out of that, reservation under Category (a) came to 3,120 applicants and under (b) category there were 4,987 applicants. Total quota for Kerala State is only 6,487 and after accommodating category (a) reserved applicants, the remaining seats under Category (b) which could be filled up is only 3,367 out of 4,987 applicants and a further 1,620 seats are required to fill up the reservation quota. In other words, according to them there are no seats available in the reservation quota or in the general quota. Under these circumstances, respondents sought for dismissal of the writ petition. According to them, there is no discrimination practiced in the matter and a uniform procedure had been adopted as far as all the applicants are concerned. 8. The learned Single Judge, after having taken into consideration the above facts, dismissed the writ petition on the finding that the categorisation in the reserved category does not suffer from any discrimination or arbitrariness and even if in clause 3(i) of Ext.R2(a) provides that those who have performed Haj during 2007 to 2011 will be under the ban, the provision made in clause 7 of the Guidelines is for different purpose and that the ban provided for persons who have performed Haj during their life time cannot be said to be illegal or improper. 9. Heard learned counsel for the appellant and learned Additional Advocate General. 10. It is pointed out that in so far as Mehram is concerned, that is a person who accompanies the woman, the only restriction that applies would be that he should not have performed Haj within the last five years that is between 2007- 2011. A perusal of Clause 3 of the Guidelines does not give a different idea. Clause 3 states as under. ELIGIBILITY FOR HAJ : Any Muslim citizen of India can apply for Haj pilgrimage except: i) "Ban on repeaters : Those who have performed Haj during the last five years namely block year 2007-2011. ii) X X X X X X iii) X X X X X X iv) Ladies not accompanied by Sharai Mehram (Meharam should not be a repeater) 11. As per clause 7 of the Guidelines, the restriction imposed is as under: 7. ii) X X X X X X iii) X X X X X X iv) Ladies not accompanied by Sharai Mehram (Meharam should not be a repeater) 11. As per clause 7 of the Guidelines, the restriction imposed is as under: 7. RESERVED CATEGORY: IMPORTANT: Keeping in view the ever increasing number of Haj Applications every year in general and particularly under Reserved Categories, the Haj Committee of India decided that from Haj 2012 onwards the Reserved Category status shall be given only to the applicants (including companions) who have not performed Haj in their entire life time either through Haj Committee of India or private tour operator or any other means. This applies to a & b categories mentioned below. 12. Clause 7(a) clarifies the situation in order to indicate that the word 'companion' is only referred to in Clause 7(a) which reads as follows: 7(a): 70+Category: The Pilgrims of 70 years and above will be registered under Reserved Category, subject to the following conditions: i) Applicant who completes 70 years of age as on 29th February, 2012 or above are entitled for reserved category. ii) Only one companion is allowed who should be immediate relative namely husband/wife, son/daughter, son-in-law/daughter-in-law and brother/sister. No other relation will be allowed to travel as companion. If there is no relative as mentioned he will be allowed to travel single. iii) No companion will be allowed to travel alone, if 70+ pilgrim cancels his/her journey. 13. In regard to category (b) namely 4th time applicants, the word Mehram is not used since it applies to men and women whose applications were rejected continuously for the last three years. Therefore, eligibility of the petitioners for applying under category (b) cannot be disputed. But the only point is whether the person accompanying such women who is known as Mehram should not have performed Haj in their life time either through Haj Committee of India or private tour operator or any other means. A reading of eligibility for Haj at Clause 3 along with Clause 7 of the Guidelines would clearly indicate that the qualification for ladies to apply is specifically provided under Clause 3 (iv) wherein in so far as Mehram is concerned it is clearly mentioned that Mehram should not be a repeater. A reading of eligibility for Haj at Clause 3 along with Clause 7 of the Guidelines would clearly indicate that the qualification for ladies to apply is specifically provided under Clause 3 (iv) wherein in so far as Mehram is concerned it is clearly mentioned that Mehram should not be a repeater. When the eligibility criteria is specifically provided for ladies and it is clearly indicated that Mehram should not be a repeater, in other words, he should not have performed Haj between 2007-2011, only the said disqualification applies to Mehram and not the disqualification which applies to a "companion" as mentioned in clause 7. If the qualification of companion is made applicable to 'Mehram' also, it may amount to discrimination of such women who could not go alone. 14. Though it is stated in clause 7 of the Guidelines that a policy decision is taken in view of the increasing number of Haj applicants every year particularly under the reserved categories, and that the reservation status will be given only to applicants including companions who have not performed Haj in their life time, when there is a specific provision like clause 3(iv) which speaks of the eligibility criteria of ladies as well as Mehram, we do not think that Haj Committee was justified in not providing reservation status under category (b) to the petitioners. 15. However, it is seen from the affidavits filed by the second respondent that the same procedure had been followed with reference to all the applicants and they have interpreted the word 'companion' including Mehrams and that a selection process by way of taking lots had been completed. 16. In an additional affidavit filed by the second respondent it is stated that though the original quota allotted to Kerala Haj Committee was 6487 seats, subsequently 1031 seats were also allotted. Hence the total number of seats available is 7518 and even the total number of candidates coming under reserved categories (a) and (b) could not be filled up. The candidates who have been included in the reserved (a) category were selected without drawing lots and in respect of remaining seats since there were 4987 category (b) applicants they were ranked by drawing lots. The candidates who have been included in the reserved (a) category were selected without drawing lots and in respect of remaining seats since there were 4987 category (b) applicants they were ranked by drawing lots. It is therefore stated that as far as the petitioners are concerned, they were not permitted to be put in the lot for selecting category (b) and if the list is disturbed now and since the Haj process had already started it will result in delay in finalising the list as persons who were included in the Haj list were already informed about the same. It is further indicated that 46 candidates who had already been selected have requested for cancellation and their details were furnished to the Haj Committee of India on 20/06/2012. 17. Having regard to the nature of contentions urged and the manner in which the process had been conducted we do not think, at this point of time a positive direction can be given to include the petitioners/appellants in the list of applicants coming under category (b). However, taking into consideration the fact that the petitioners/appellants were not included in the lot along with other similarly placed persons, there shall be a direction to the Central Haj Committee to consider whether the petitioners can be accommodated for performance of Haj in the year 2012 itself. The petitioners/appellants shall submit a representation to the 1st respondent along with a copy of this judgment within one week from the date of receipt of a copy of this judgment and the 1st respondent shall consider and dispose of the same as early as possible and not later than four weeks from the date of receipt of the representation. Writ appeal is disposed of as above.