IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 12508 of 2009(G) ----------------------------------- PETITIONER(S): ---------------------- 1. ABDUL JALAL, AGED 70 YEARS, S/O.KHADERKUNJU, 11/99, MUCHETHU HOUSE, NEDUMTHODU, MUDICKAL P.O., PERUMBAVOOR, ERNAKULAM DIST., PIN 683547. 2. IBRAHIM, AGED 64 YEARS, S/O.ABOOBACKER, VARIKKADEN HOUSE, PALLIKKAVALA, MUDICKAL P.O., PERUMBAVOOR, ERNAKULAM DIST., PIN 683547. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): ---------------------- 1. HAJ COMMITTEE OF INDIA, 4TH FLOOR, HAJ HOUSE, 7-A MRA MARG (PALTON ROAD), MUMBAI-400001 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 2. KERALA STATE HAJ COMMITTEE, HAJ HOUSE, CALICUT AIRPORT P.O., MALAPPURAM DISTRICT 673647 REPRESENTED BY ITS EXECUTIVE OFFICER/ DISTRICT COLLECTOR. 3. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1&R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2009 ALONG WITH W.P.C.NO.15799/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dkr 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