(2012) 256 KLR 651 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 WP(C).No. 7164 of 2012 (U) ------------------------------------- PETITIONER(S): ------------------------ 1. SHAMEENA RASHEED, AGED 48 YEARS W/O. ABDUL RASHEED, PERUNILATH THODUPUZHA EAST P.O., IDUKKI DISTRICT, PIN-685 585. 2. HAJARA AGED 68, W/O. LATE HANEEFA KHAN, PUTHENVEETTIL NADACKAL P.O., ERATTUPETTA, KOTTAYAM PIN-686 124. 3. ANEESA AGED 51 , W/O. LATE MOOSA, PEEDIYAKKAPARAMBU CHANDIROOR P.O., AROOR, ALLEPPEY PIN-688 547. BY ADVS.SRI.P.K.IBRAHIM SMT.A.A.SHIBI RESPONDENT(S): -------------------------- 1. HAJ COMMITTEE OF INDIA HAJ HOUSE, 7-A, M.R.A.MARG (PALTON ROAD) MUMBAI-400 001, MAHARASHTRA, INDIA. 2. KERALA STATE HAJ COMMITTEE HAJ HOUSE, P.O. CALICUT AIRPORT, MALAPPURAM-673647 REPRESENTED BY ITS EXECUTIVE OFFICER. 3. THE DISTRICT COLLECTOR KOZHIKODE. R1 BY ADV. SMT.GOVINDA P.RENUKADEVI, CGC BY SRI. K.A. JALEEL, ADDL.ADVOCATE GENERAL R3 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2012, THE COURT ON 12-06-2012 DELIVERED THE FOLLOWING: DCS WP(C).No. 7164 of 2012 (U) APPENDIX PETITIONER(S) EXHIBITS :-
RESPONDENTS' EXHIBITS :-
/TRUE COPY/ P.A. TO JUDGE DCS T.R.RAMACHANDRAN NAIR, J. - - - - - - - - - - - - - - - - - - - W.P.(C).No. 7164 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of June, 2012 Head Note:- State Haj Committee guidelines - Clause 9(B)(i) - Gender based discrimination - Insisting that male members (Mehram) accompanying women applicants for Haj shouldn't have performed Haj before, cannot be held as discriminatory and anti-woman. Constitution of India, 1950 - Article 14 - Individual hardship in a given case may not be a ground to hold that a provision is violative. J U D G M E N T The subject matter of this writ petition concerns the claim raised by the petitioners for inclusion in the reserved category, to perform Haj for the year 2012. There is a challenge against the stipulation, viz. clause 9(B)(i) of Ext.P1 and it is contended that it is discriminatory and violative of Article 14 of the Constitution of India. 2. The petitioners had to approach this Court in the following circumstances. They have submitted applications Exts.P4(a) to P4(c) showing the name of the husband of the first petitioner Abdul Rasheed as Mehram, as it is obligatory for a woman to be accompanied by a male to perform Haj. He is related to the petitioners as being the husband of the first petitioner, son in law of the second petitioner and brother in law of the third petitioner. The petitioners have been applying for performing Haj for the last three years, viz. 2009, 2010 and 2011 showing his name as their Mehram. Actually he had performed Haj in 2004. 3. Going by the stipulations in clause 9(B)(i), the applicants should be those who have applied, but could not get selection for the years 2009, 2010 and 2011. It is provided also that the persons concerned should not have performed Haj in their entire life time. It is submitted that since this will apply to Mehram also, the petitioners will not be getting the benefit of the same. 4. According to the petitioners, a Mehram should be a very close relation coming within clause 9(A)(ii) of Ext.P1. The petitioners are not having any other person to join as Mehram. Therefore, they are totally deprived from getting the benefit of inclusion in the reserved category. Ext.P3 was thus filed pointing out these aspects. 5. The second respondent has filed a counter affidavit. In fact, the counter affidavit shows that the Haj Committee of Kerala had referred Ext.P3 application submitted by the petitioners for a decision of the Haj Committee of India and they have rejected the same as per Ext.R2(b) communication. Apart from the same, in the meeting held on 3.3.2012 the Kerala State Haj Committee decided to request the Haj Committee of India to relax the condition that the Mehram should not be a person who has performed Haj in his life time (Ext.R2(c) and a letter was forwarded to the Haj Committee of India as per Ext.R2(d). The matter was taken up again by the Chairman of the Kerala State Haj Committee with the Chairperson to Haj Committee of India as per Ext.R2(e) letter. Finally, by Ext.R2(f) the Haj Committee of India issued a circular which states that the policy cannot be changed. 6. Heard Shri P.K. Ibrahim, learned counsel for the petitioners, Shri K.A. Jaleel, learned Additional Advocate General and learned Asst. Solicitor General of India for the Union of India. 7. Learned counsel for the petitioners submitted that the condition as now stipulated under clause 9(B)(i) is violative of Article 14 of the Constitution of India, as the same discriminates women from performing Haj. The condition that the Mehram should be a person who had not performed Haj is an impossible one and all the relevant circumstances have not been considered by the authority concerned while prescribing the condition. It is submitted that going by clause 3, women who are not accompanied by Mehram, will not be allowed to perform Haj. Therefore, when a particular eligibility condition is again imposed, as far as Mehram is concerned, it will totally deprive the choice of Mehram in cases like the one herein. The Mehram can only be a male who must be in the prohibited category to marriage. 8. Learned counsel for the petitioners also submitted that the conditions prescribed in Ext.P1 vary from those fixed by the Haj Committee of India in the general guidelines produced as Ext.R2(a). Learned counsel, while advancing the said argument, submitted that in Ext.R2(a) what is provided under clause 3 regarding eligibility for Haj is that persons who have performed Haj during the last five years, viz. from 2007 to 2011, are banned. Herein, the Mehram is a person who has performed Haj in 2004. The Kerala Haj Committee therefore went wrong in fixing the condition as now provided in clause 9(B)(i). It is therefore submitted that the said clause cannot be justified. 9. Learned Additional Advocate General, while explaining the conditions in Ext.R2(a) and Ext.P1, submitted that the benefit of reservation cannot be claimed as a matter of right. So many applicants will be there every year and the seats allotted to the State will be minimum. Reserved category applicants will get the benefit of subsidy and therefore such benefit could be granted only to people who have not performed Haj earlier. Otherwise, the purpose of the scheme itself will be defeated when persons who have performed Haj are able to avail the benefit from time to time. It is submitted that with the said object alone clause 9(B)(i) of Ext.P1 is provided. It is also submitted that the same is not one contrary to any of the stipulations in Ext.R2(a). 10. I shall refer to the common features of Ext.P1 which is the guidelines issued by the State Haj Committee. Clause 2 permits five persons who are related each other, to submit application in one cover. It is specified that women should submit jointly with a Mehram, i.e. a male in the permitted category. Clause 3(1) provides that persons who have performed Haj during the last five years, viz. 2007 to 2011, shall not submit the application. Women who are not accompanied by Mehram, also cannot submit the application apart from persons having certain serious ailments, which are specified in clause 3.2. Clause 9 provides the reserved category. Under clause 9(A), persons who have completed 70 years of age as on 29.2.2012 can be included in the reserved category, if the other conditions in sub-clauses (i) to (iv) are satisfied. The important condition under sub- clause (i) is that they should have completed 70 years of age and the companion applicant should not have performed Haj at any time during his life. The companion should be from among any of the following relatives: "wife/husband, son/daughter, nephew/niece and brother/sister." Clause 9 (B) provides that persons who have applied during the years 2009, 2010 and 2011 but were not selected, will be included in the reserved category in terms of the conditions provided in sub clauses (i) to (iv). It is specified that persons who fail to be included in the reserved category will be treated as general category. Sub clause (i) is important which says that the persons who are submitting application in one cover, should be applicants continuously for the years 2009, 2010 and 2011 and were not selected and should not have performed Haj at any time during their life. 11. Therefore, the petitioners have not been considered in the light of clause 9(B)(i), as the Mehram will not satisfy the said condition, since he has performed Haj during the year 2004. 12. Since learned counsel for the petitioners contended that some of the clauses in Ext.P1 are not in tune with the clauses in Ext.R2(a) guidelines for Haj, 2012, I shall refer to the salient features of the clauses therein also. The important clauses are clauses 3 and 7. Clause 3 is under the heading "Eligibility for Haj". Sub clauses (i) to (iv) are extracted below: "i) Ban on Repeaters: Those who have performed Haj during last five years viz. Block Year 2007 to 2011. ii) Any person who is found to have furnished false information and concealed the fact of having performed Haj during last five years shall not be allowed to proceed for Haj and if found he/she will also be off-loaded even at the Embarkation Point and the entire amount deposited by him/her shall be forfeited. Besides, he/she may be prosecuted for making incorrect/false declaration. The restriction applies even for the performance of Haj-e-Badal. iii) Those suffering from Polio, tuberculosis, congestive cardiac & respiratory ailment, acute coronary insufficiency, coronary thrombosis, mental disorder, infectious leprosy, AIDS or any other communicable disability or handicapped. iv) Ladies not accompanied by Sharai Mehram (Mehram should not be a Repeater.)" Clause 7 reads as follows: "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. In case Reserved Category Haj Applications are received more than the alloted quota of their state then qurrah (draw of lots) will be conducted among the Reserved Categories as per the principles laid down under the Qurrah section. In such situation applicant can not claim Reserved Category status as a matter of right. * The reserved category applicants shall submit an affidavit in the format given below on Rs.10/- stamp paper duly notarized. * Categories a & b will be registered under reserved category for Haj 2012 subject to verification of the details furnished by Haj Committee of India. 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. b) Fourth Time Applicants. The competent authority has decided to register the applications of those pilgrims whose applications have been rejected continuously for last three (3) years during Haj 2009, 2010 and 2011 under Reserved Category. In order to get the benefit of this scheme during Haj 2012, the applicant along with co-pilgrims has to indicate the cover number of the last three years (without which the application will be treated as fresh cover) under this category in the relevant column. The applicants who have been applying continuously since last three years will be registered under reserved category provided they apply for Haj 2012 (without including any fresh applicant). Those applicants who have been selected during previous three years, but cancelled the journey on their own, will not be registered under Reserved Category and registered as fresh covers in General Category." In fact, clause 7 will show that persons who are to be included in the reserved category should be applicants (including companions) who have not performed Haj in their entire life time. 13. According to the learned counsel for the petitioners, under clause 3(i), ban is only for persons who have performed Haj during the years 2007 to 2011 and the specification in sub-clause (iv) is that "Mehram should not be a repeater." Therefore, it is submitted that the word 'repeater' is important and "he" will be a person who has performed Haj during the years 2007 to 2011 and hence the prohibition will apply only to those persons and herein, the Mehram being a person who has performed Haj in 2004, will not be covered under the ban provided in clause 3(i). It is submitted that in Ext.P1, clause 9(B)(i) provides for a general ban even in respect of such persons. Accordingly, it is submitted that both are conflicting. 14. This contention is opposed by the learned Additional Advocate General and learned Assistant Solicitor General who submitted that the general purport and object of the scheme is that a person who has performed Haj whether as an applicant, companion or as a Mehram, cannot be included in the reserved category. 15. On examining the relevant clauses Exts.P1 and R2(a), it can be seen that the clauses mentioned are not contradictory. Under clause 9(A), even in respect of persons who have completed 70 years of age, it can be seen that the companion should be a person who has not performed Haj during the entire life time. Clause 9(B)(i) is also identical in that respect. When we come to Ext.R2(a), clause 7 will show that persons to be included in the reserved category should not have performed Haj during their entire life time which is applicable to companions also. Therefore, clause 9(B)(i) of Ext.P1 and clause 7 of Ext.R2(a) operates in the same field and have the same purpose. These are common stipulations insisted for inclusion in the reserved category. Therefore, in fact there is no contradiction between the terms in clause 9 of Ext.P1 and clause 7 of Ext.R2(a). When the general purpose and object of providing reservation is that applicants who have not performed Haj should get precedence over persons who have performed Haj earlier, it cannot be said that there is any discrimination also as pleaded by the petitioners. The avowed object is to see that from among the persons who may have performed Haj at any time before and from the applicants who had no occasion to perform Haj reservation should go to the benefit of the latter. It is wellknown that persons included in the reserved category will get the benefit of subsidy also. 16. Therefore, the categorisation in the reserved category either in Ext.P1 or in Ext.R2(a) does not suffer from any discrimination or arbitrariness. Clause 3(i) in Ext.R2(a), even though provides that those who have performed Haj during the years 2007 to 2011 will be under the ban, the provision for reservation under clause 7 being for a different purpose, the ban provided therein for persons who have performed Haj in their entire life time cannot be said to be illegal or improper on any ground. 17. The main contention raised by the learned counsel for the petitioners is that persons like the petitioners who are not having any other person to act as Mehram, are suffering discrimination. I cannot agree. It is evident from the scheme that applicants can be included under general category as well as in the reserved category. They can perform Haj registering with the private tour operators also. Therefore, there is no denial of the facility to perform Haj at all leading to a discrimination as such. The counter affidavit filed by the second respondent will show that the policy adopted is applicable throughout India. Even though Ext.P3 petition was forwarded to the Haj Committee of India, they have rejected it as per Ext.R2(b). The further communication seeking relaxation forwarded as per Ext.R2(c), was also not accepted by the Haj Committee of India. The Chairman of the State Haj Committee again took up the matter with the Chairperson to the Haj Committee of India, which was also rejected as per Ext.R2(f). In Ext.R2(f), against column 11, the reason for rejection is stated as follows: "Any change in the policy after the Haj announcement is made will create problems like some will take benefit and others will not be able to take benefit for want of information on the subsequent changes made. In any case every policy decision is bound to affect some people positively and negatively." There cannot be a dispute that any modification during the middle of the selection process will create problems. As rightly pointed out by the Additional Advocate General, as far as the petitioners are concerned, there is no denial of opportunity. That women should be accompanied by a Mehram, is stated to be a prescription of Islamic Shariat. The petitioners are being considered under the general category and the reply given as per Ext.R2(g) makes it clear that they have been included in the general category. 18. Even though it is contended that there is discrimination as already pointed out, the said contention cannot be accepted. There will be applicants from among women itself, accompanied by a Mehram who would not have performed Haj at any time. Women as such are not discriminated under clause 9B(i). There is no total ban in performing Haj as far as such categories are concerned, as they are having other opportunities. Therefore, I am of the view that clause 9B(i) does not suffer from any infirmity and it is not violative of Article 14 of the Constitution of India. It is well settled that individual hardship in a given case may not be a ground to hold that a provision is violative of Article 14 of the Constitution of India. 19. Section 9 of the Haj Committee Act, 2002 provides for duties of Committee and sub-section (iv) has given them the power to finalise the annual Haj plan with the approval of the Central Government. It is well- known that in terms of the provisions of the Act, the Haj Committee has been framing guidelines every year and therefore there is no lack of power for them also. For all these reasons, the writ petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/ |
