IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12508 of 2009(G)
1. ABDUL JALAL, AGED 70 YEARS,
... Petitioner
2. IBRAHIM, AGED 64 YEARS,
Vs
1. HAJ COMMITTEE OF INDIA, 4TH FLOOR,
... Respondent
2. KERALA STATE HAJ COMMITTEE, HAJ HOUSE,
3. UNION OF INDIA REPRESENTED BY
For Petitioner :SRI.M.A.ABDUL HAKHIM
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice V.GIRI
Dated :01/07/2009
O R D E R
V.GIRI, J
-------------------
W.P.(C)s.12508 &15799/2009
--------------------
Dated this the 1st day of July, 2009
JUDGMENT
Common issues have arisen for consideration in
these two writ petitions. Therefore, they have been heard
together and are being disposed of by a common
judgment. I will refer to the facts in W.P.(C).12508/2009
for the sake of convenience.
2. Petitioners aged 70 and 64 belong to Muslim
Community and are desirous of proceeding on Haj.
Government Of India subsidizes travel and other facilities
for pilgrims who are desirous of proceeding on such
pilgrimage every year. Number of pilgrims doing so are
numerous. Therefore, a system has been devised by
which taking Muslim population in each State as the
basis, total number of seats have been apportioned
among the States.
3. Accordingly, going by the statement filed by the
learned Assistant Solicitor General, 7003 is the quota
allotted to the State of Kerala. Total number of applicants
W.P.(C).12508 & 15799/09
2
within the State is 44706. Respondents contend that
since the number of persons who apply far outnumber the
total number of seats available as a quota, a system has
been devised by which drawal of lots on line was
resorted to, in the present year also. A list is prepared
showing the names of chosen persons. Petitioners’
applications were also considered but they proved to be
unfortunate at the time of drawal. They have approached
this Court not only challenging the system by which
persons are chosen by drawal of lots but also against the
Government not providing adequate safeguards to see
that persons, who had already proceeded on Haj earlier,
are still not prevented from repeating their pilgrimage, to
the disadvantage of those persons who have not been
fortunate to be selected even once.
4. Petitioner in Writ Petition No.15799/2009 is an 81
year old senior citizen. He has also adopted the same
contention. He further contends that the system should
definitely provide for at least a minimum reservation in
favour of aged persons, aged above 70, so that, they do
not have to stand in a queue along with other persons,
W.P.(C).12508 & 15799/09
3
who for natural reasons would have a longer time frame,
to proceed on Haj.
5. I heard Mr.M.V.Bose and Mr.Abdul Hakhim, learned
counsel for the petitioners and the learned ASG. I have
perused the statement filed by the ASG in detail.
6. The system adopted by the 1st respondent for
choosing persons to proceed on Haj as sponsored by the
Government of India, cannot in the circumstances, be
treated as an arbitrary one. After all, number of
applicants far outnumber the seats that are allotted to the
State and in such circumstances, a non arbitrary method
will have to be adopted. The system of drawal of lots on
line cannot be considered as an arbitrary procedure,
which is bound to result in an unfair selection. Therefore,
I am unable to accept the contention that some other
system should be adopted. At any rate, the 1st respondent
a statutory body, has only implemented the policies of the
Government. This Court would be reluctant to interfere
unless there is a statutory infraction or non adherence to
any constitutional provisions. I do not find any reason to
W.P.(C).12508 & 15799/09
4
interfere with the system adopted in this regard.
7. But I find force in the submission made by the
counsel for the petitioners that by its very nature,
sponsorship given by the Government should provide for
at least a limited reservation in favour of persons who
have crossed the age of 70. The average life expectancy
in India could be taken as a safe indicator in this regard
and it may be unfair to group persons who are at the age
of 50, 60, 70 and 80 together and subject them to a
drawal of lots, either there must be a separate quota for
persons depending upon their age, segregating them in
different groups as such or there must be a reasonable
reservation in favour of persons who have crossed the
age of 70. Going by the stand as reflected in the
statement filed by the ASG, I am of the view that the
provision for reservation which was adopted in favour of
persons who have crossed the age of 70, implemented in
the year 2007, ought not to have been scrapped for the
subsequent years. If there is an inadequacy in the
system, same should have been addressed. Wisdom
behind adopting reservation of a specific number of seats
W.P.(C).12508 & 15799/09
5
for persons who have crossed the age of 70, is not open to
doubt and therefore, any teething problems the
Government might have faced in the year 2007, ought
not have persuaded the Government to straight away
scrap the system. So also, going by the number of
applicants and the limited number of seats available, a
larger period should have been adopted in relation to
which persons, who have already proceeded on Haj under
the sponsorship of the Government, should be omitted to
be considered when they apply again. It is now stated
that persons who have proceeded on Haj, during the last
five years, will not be considered for the year 2009. A
longer period should form a safer basis considering the
fact that number of applications are six times the number
of seats available. But I do not think that this revision
should be made applicable for the year 2009, going by
the fact that the chosen persons will have to proceed on
Haj within the next few weeks. Accordingly, writ petitions
are disposed of with the following directions.
(i). Respondents shall take note of the
observations made above, and lay down the
policy and guidelines relating to choosing the
W.P.(C).12508 & 15799/09
6
persons permitted to proceed on Haj
pilgrimage as sponsored by the Government.
The scheme shall either provide for
conducting selection on the basis of the age
or at least, provide for a reservation in favour
of persons who have crossed the age of 70.
(ii). Respondents shall also consider and
provide a period longer than five years, as a
period during which an eligible applicant
should not have already proceeded on Haj
under the Sponsorship of the Government. A
revised scheme, brought into force in the
year 2010 onwards shall reflect the
directions issued herein.
Petitioners shall produce a copy of this judgment
before the respondents.
V.GIRI,
Judge
mrcs