1. Heard Mr. Kharadi, learned advocate for the petitioners, Mr. Shah, learned advocate for respondent No.1 and Mr.
Yagnik, learned AGP for respondent No.2.
2. Having regard to the submissions made by the learned advocate for the petitioners and considering the facts and circumstances of the case, Rule. Mr. Shah, learned advocate waives service of Notice of Rule on behalf of respondent No.1 and Mr. Rohan Yagnik, learned AGP waives service of Notice of Rule on behalf of the respondent No.2. At the request of learned advocate for petitioners and with the consent of the learned advocates appearing for the respondents and in view of the facts, the petition is taken up for final orders today.
3. In present petition the petitioners have prayed that:-
“18 (A).......
(B) Allow present petition by quashing and setting aside the decision taken by the respondents rejecting the application of the petitioner for Hajj-2012 on the ground that the petitioner was a non-applicant for the year 2011, communicated to the petitioner by letter dated 22.8.2012 (at annexure “E” to the petition) and thereby directing the respondents to take back the passports of the petitioner and his family members for complying the procedure so that the petitioner and has family members can go for Hajj-2012, in the interest of justice.
(C) Grant interim relief by directing the respondents not to allot the 4 seats for which the petitioner and his family members were held eligible as per the letter dated 24.5.2012 (at annexure”C” to the petition) pending admission hearing and till final disposal of present petition, in the interest of justice and equity.
(D)......
(D) ”
4. Learned advocate for the petitioner has, in support of the relief prayed for in the petition stated, inter alia, that:-
“(3) The brief facts giving rise to present petition are as such that the petitioner and his family members are performing Islam Religion. As per the preaching of Islam there are 5 main pillars; (i) Sahada i.e. to say and believe that there is no God, but Allah and Muhammad (Peace Be Upon Him) is the Messenger of Allah i.e. the Islamic Monotheism; (ii) Five times Namaz every day; (iii) Fasting in the month of Ramadhan every year; (iv) Zaqat i.e. 2.5% compulsory charity of yearly income and (iv) Hajj to be performed once in the life. In view of the above referred 5 pillars every Muslim who can manage for the Hajj Pilgrimage is having a desire and will go for Hajj at lease once in his life. Every year from our country approximately 1,50,000/- people are going for Hajj, as per the quota allotted by the Saud Arabia Government, as the quota is of limited seats compared to the population of Indian Muslims, the draw is required to be held every year from the persons who are applying in large numbers. The Government of India, with a view to manage the affairs considering the Hajj Season, prior to Hajj Season i.e. to hold the draw, prepared the passport, endorsement of visas etc. the Hajj Committee was constituted by enacting the Hajj Committees Act, 1959 (hereinafter referred to as “the Act”) for the smooth management of the affairs nation-wide as well as State-wise. Over and above the Central Hajj Committee is having its office at Mumbai, almost all the State are having their separate Hajj Committee also who can manage the affairs of the Hajj Pilgrimage of a particular State, who expect the Hajj Pilgrimage through the respondents. The petitioner states that the entire procedure, since involves endorsement of visa and other niceties attached to the Hajj Pilgrimage and as everything is to be done under the direct supervision of Ministry of External Affairs, the entire process starts at least 6 months prior to the actual Hajj Committees. As per the process known to the petitioner and the public at large, the State Hajj Committees are publishing advertisement in the newspaper to invite the applications from the Hajj Expectant. In view of the new procedure developed by the respondent every Hajj expectant is supposed to make an application along with an un-refundable amount of Rs.200/- per person. If a person succeeds in the Draw arranged by the respondents, then whatever amount is fixed by the Hajj Committee is to be paid in a time bound schedule as provided by the respondents. As per the procedure laid down by the respondents, those candidates who have applied for 3 consecutive years could have definite selection for the 4th year.
(4) The petitioner states that he has never performed the Hajj Pilgrimage. Neither his family members had ever gone for Hajj Pilgrimage. Upon having sufficient means to go for the Hajj Pilgrimage the petitioner applied in the year 2009 without success; again in the year 2010, without success and again in the year 2011 also without success. The copies document showing that the petitioner had applied for all the three years is annexed hereto and marked as ANNEXURE “A” (COLLECTIVELY) to the petition. Again the petitioner tried his luck for applying the Hajj 2012 and in view of the Guidelines of the Hajj Committee all his three consecutive attempts in the year 2009; 2010 and 2011 has remained unsuccessful, the petitioner along with his wife and two daughter succeeded in the draw for Hajj 2012. The copies of the document, the cover number given by the respondent NO.2 for Hajj 2011 is annexed hereto and marked as ANNEXURE “B” to the petition.
(5) Immediately thereafter by letter dated May 24, 2012, the petitioner was directed by the respondent No.2 to make the payment as per the Schedule mentioned in it. By having a final word in the letter “Hajj Mubarak”. Annexed hereto and marked as ANNEXURE “C” to the petition is a copy of the letter dated 24/5/2012 addressed by the respondent No.2.
(6) The petitioner states that on 7/7/2012 further amount was called for being the second installment for Exchange and Air Fare etc. Annexed hereto and marked as ANNEXURE “D” to the petition is a copy of the letter dated 7/7/2012 for second installment.
(7) The petitioner states that earlier amount of Rs.51,000/- per pilgrim was deposited on 4/6/2012 and the 2nd installment as per the letter dated 7/7/2012 was deposited by the petitioner on 25/7/2012. The said amounts were deposited in favour of the Hajj Committee of India for Hajj 2012. Annexed hereto and marked as ANNEXURE “E” to the petition is the copy of paying slip of the deposits deposited by the petitioner. The petitioner states that along with his application for Hajj 2012, he also provided the Affidavit as demanded by the respondents to state that he had applied for Hajj 2009, Hajj 2010 and Hajj 2011, without any success. Annexed hereto and marked as ANNEXURE “F” to the petitioner is a copy of the Affidavit provided by the petitioner, as demanded by the respondents.
(8) The petitioner states that after his making the complete payment for the Hajj 2012 as per the Guidelines of the respondents, he received a shock about a month after he completed the payment, upon receiving a letter from the respondent NO.2 by which his application for Hajj 2012 was rejected by the respondent NO.1 and the passports of the petitioner and his three family members were returned back. Annexed hereto and marked as ANNEXURE “G” to the petition is a copy of the letter dated 22/8/2012 addressed by the respondent No.2. The petitioner with too much difficulty hold himself and reported his case to the respondent NO.2 with complete proofs that the reason mentioned to reject the Application is incorrect and he had applied for Hajj-2011. Not only that, but he had paid the amount of Rs.800/- also for 4th pilgrims for Hajj-2011 (copy of the said payment can be seen on Annexure “A”). The respondent No.2 upon examining the case of the petitioner found out that though the application was received due to a mistake on the part of the respondents cover number could not be provided and accordingly the recommendation letter to consider the petitioner's case along with his family members was written to the respondent No.2 on 27/8/2012. Annexed hereto and marked as ANNEXURE “H” to the petition is a copy of the letter dated 27/8/2012 addressed by the petitioner to the respondent No.2.
(9) The petitioner states that the said copy of the letter dated 27/8/2012 was facsimile to the to the respondent No.1 on August 27, 2012 itself by the petitioner also. Annexed hereto and marked as ANNEXURE “I” to the petition is a copy of the facsimile report.
(10) The petitioner submits that though the petitioner has undertaken the complete exercise in accordance with guidelines, his application is rejected and despite he has produced to the satisfaction of the respondent No.2 all the papers to show that he was an applicant along with his family members for three consecutive years, 2009; 2010 and 2011, his application was wrongly rejected though with all such enclosures, the letter was sent to the respondent NO.1, the petitioner was telephonically told that his case may be considered only if the quota is increased.
(11) The petitioner submits that the exercise undertaken by the respondents, more particularly the respondent No.1 is illegal and contrary to their own guidelines and practice. The petitioner submits that as transpired from the letter dated 27/8/2012 (Annexure “H” read with Annexure “A”) there is no dispute regarding the application being made by the petitioner in the year 2011. It is an undisputed fact that though the application along with Rs.800/- for 4 pilgrims was received, no cover number could be provided due to the mistake committed by the respondent. It also transpires from the letter dated 27/8/2012 that despite the efforts were made by the respondent NO.2 to get cover number from the respondent NO.1, the said efforts have yielded no result. Still however, the fact remains that the petitioner with his family members was an applicant for the Hajj 2011, on receipt of the application and also after receiving amount of Rs.200/- per pilgrim, if the necessary consequential remedies were not done by the any of the respondent offices, the innocent pilgrims should not be penalized and necessary orders may be passed to quash and set aside the decision taken by the respondents and communicated to the petitioner by letter dated 22/8/2012.”
5. So as to support and justify the relief and the aforesaid aspects, learned advocate for the petitioners has relied on the documents at annexure -B page 20, annexure-C page 21, annexure-D page 22 and annexure-G page 26 and annexure-H page 27.
6. The respondent No.1 has contested the petition. The Deputy Chief Executive Officer, Hajj Committee of India has filed reply affidavit dated 20.9.2012.
6.1 Mr. Shah, learned advocate for the respondent No.1 has reiterated the details in the affidavit and submitted that due to mistake the petitioners were intimated about allotment and due to mistake the petitioners were asked to play the fees etc. since the said intimations were made by mistake, the respondent should not be asked to act as per the said intimation.
6.2 Mr. Yagnik, learned AGP has submitted that the respondent No.2 has not committed any mistake, and all details and documents were forwarded to respondent No.1.
7. Mr. Kharadi, learned advocate for the petitioners has submitted that the petitioners have complied all requirements including the requirement of making payment of prescribed fees as per the intimation and instruction by respondent Nos. 1 and 2.
7.1 Learned advocate for the petitioners has, relying on the above referred documents also submitted that respondent No.2 had forwarded necessary details, document and instructions to the respondent No.1 however, respondent No.1 has not allotted seats to the petitioners for Hajj Pilgrimage.
7.2 In response to the submission by Mr. Shah, learned advocate for respondent No.1, Mr. Kharadi, learned advocate for the petitioners has submitted that from the regular quota for allotment, respondent No.1 also has discretionary quota and in certain cases, such as the case of the petitioners, seats have been allotted by respondent No.1 from its discretionary quota as well.
7.3 So far respondent No.1 is concerned, it is submitted by learned advocate for the respondent No.1 that certain details which were required to be forwarded by respondent No.2 were not submitted or were not submitted within appropriate time limit to the respondent No.1 and that therefore petitioners' case could not be considered. Differently put according to the respondent No.1 some mistake has been committed and the mistake is allegedly committed by respondent No.2.
7.4 Thus, the respondent No.1 has tried to put blame for the said mistake on the shoulder of respondent No.2.
8. Having regard to the submissions made during the proceedings of present petition, this Court passed order dated 4.10.2012. The said order reads thus:-
“1. It is the case of the petitioner that upon completion of entire procedure the petitioner has been found to be eligible for being allotted cover number to consider the petitioner's case for Hajj Pilgrimage and for inclusion of his name in the list.
2. Learned advocate for the petitioner has also submitted that the petitioner's case can be considered in the “Discretionary Quota” available to the Hajj Committee more particularly because the petitioner has been left out because of mistakes committed either at the State Level Committee or Central Committee and not on account of any fault on part of the petitioner.
It is also submitted that several cases have been considered and allowed by the Committee in the “Discretionary Quota”.
It is also asserted that petitioner has completed all formalities including payment of necessary fees / expenses etc. and he is found to be eligible for inclusion in the list for this year (i.e. 2012)
3. Under the circumstances the respondent authority i.e. the Chief Executive Officer, Hajj Committee of India may consider the case of the petitioner in “Discretionary Quota” and expeditiously pass necessary and appropriate order deciding as to whether the petitioner's case can be considered and allowed in the discretionary quota, or not so that the petitioner can go for Hajj Pilgrimage on any date between 11.10.2012 to 17.10.2012.
4. For the said purpose the respondent authority may pass appropriate order on emergent basis and if the case of the petitioner is not accommodated, even in discretionary quota then details about “Discretionary Quota” (i.e. what portion of existing quota is allotted and the quota which is still available / open and not exhausted) may be placed on record of present petition on the next date. The authority shall also give the details as to whether any persons have been allowed in exercise of Discretionary Quota after the petitioner raised his claim.
S.O. to 9.10.2012. Direct service is permitted today.
8.1 With reference to the said order, Mr.Shah, learned advocate for the respondent No.1 has brought to the notice of the Court the communication dated 8.10.2012. On perusal of the said communication dated 8.10.2012 it appears that 200 seats are available to the Hajj Committee under discretionary quota. It also emerges from the the perusal of the communication dated 8.10.2012 that the directions contained in order dated 4.10.2012 have not been fully complied by respondent No.1 and details which are asked for by the petitioners have not been mentioned in the said communication except stating that the respondent No.1 has already distributed the said 200 seats however the details thereof have not been mentioned and any other details are also not mentioned in the said communication.
8.2 On the other hand Mr. Kharadi, learned advocate for the petitioners has emphatically urged that according to the petitioners' information even on 8.10.2012, some seats were alloted to different applicants which means that after the petitioner filed application and after order dated 4.10.2012 also the respondent No.1 has alloted seats to several persons / applicants.
9. On consideration of all facts and circumstances including the details mentioned and explanation given by the respondent No.1, the fact which emerges is that the respondent No.1 has not come out with any explanation for not allotting seats to the petitioners except ground of mistake. It is claimed that due the mistake the respondent No.2 informed the petitioners about their selection and asked the petitioners to pay the fees. The respondent No.1 has tried to blame respondent No.2 for the alleged mistake.
9.1 Even if the submission by respondent No.1 about alleged mistake are to be accepted then also the relevant aspect which emerges is the fact that the petitioners are not at all in fault for the alleged mistakes committed by respondent No.1 or respondent No.2 which is said to have occurred due to communication gap between respondent Nos. 1 and 2 or due to misunderstanding or miscommunication on part of respondent Nos. 1 and 2.
9.2 It also emerges from the record and the submissions that the petitioners have duly completed all formalities, including the payment.
9.3 Considering from any angle or any perspective the petitioners cannot be said to be at fault.
9.4 Therefore, the petitioners cannot be made to suffer for no fault on their part fault and the respondents are not justified in denying the allotment of seats to the petitioners.
9.5 Since despite opportunity having been granted to the respondents particularly respondent No.1 under order dated 4.10.2012, the said respondent has not been able to clarify the position as regard the allotment of seats, in regular quota or in reserved quota or even in discretionary quota or even about cancellation.
9.6 Under the circumstances this appears to be fit case to pass order / direction to allot seats to the petitioners for Hajj Pilgrimage for the year 2012.
10. It is clarified that present order is passed in view of special circumstances wherein the petitioners are not at all in fault and the petitioners have been found eligible for allotment of seats and they were asked to deposit fees and they have completed all formalities including depositing the fees and completed relevant paper work etc. and it is only due to the alleged mistake said to have occurred on part of respondent Nos. 1 and / or respondent No.2 that the petitioners are not allotted seats for Hajj Pilgrimage for the year 2012.
10.1 Therefore, present order will not be taken as precedent or will not be cited in any other proceedings as a precedent.
10.2 The respondent authorities shall consider the applicants for allotment of seats against cancellation or in any available quota expeditiously and issue necessary instructions / orders to the concerned officer to allot seats to the petitioners so that the petitioners can undertake the Hajj Pilgrimage for the year 2012.
With the aforesaid clarification the petition is disposed of accordingly. Rule is made absolutely. Direct service is permitted today.
(K.M.THAKER,J.) Suresh*