IMPORTANT POINT
It is always open to Government to disqualify any registered PTO for subsequent year if there is rational complaint against service rendered by that PTO in any previous year.

JUDGMENT

Chelameswar, J.

1. This Court by its judgment in Union of India & Others v. Rafique Shaikh Bhikan & Others (2013) 4 SCC 699 (hereinafter Rafique Shaikh Bhikan, 2013), approved a policy (with some modification) framed by Government of India for the registration of Private Tour Operators (“PTOs”) for HAJ 2013 (hereafter referred to as “APPROVED POLICY”). This Court opined that such a policy “avoids creation of any monopoly and makes provision for entry of fresh players”.

2. The modified and APPROVED POLICY is appended to the judgment as Appendix-‘I’ [Para 27. Having heard the Attorney General and the counsel appearing for the different private tour operators, we approve the policy presented by the Attorney General with some slight modifications. The policy, approved after modifications by this Court, is enclosed as Appendix I and forms part of this order. The approved policy will be called “Policy for Private Tour Operators for Haj, 2013-2017”. It shall remain valid for five years and shall not be questioned before any court or authority]. It can be seen from the said judgment that though the policy as framed by the Government of India was meant only for one year i.e. for Haj 2013, this Court directed that it would be the “Policy for Private Tour Operators for Haj 2013-17” -valid for five years.

3. Under the APPROVED POLICY, the PTOs were categorised into two groups. Category-I consists of PTOs who were registered with the Ministry of External Affairs and facilitated Hajis at least for 7 or more years by conducting Haj tour operations. The second category consists of two classes of PTOs. Class-I consists of PTOs who had facilitated Hajis for less than 7 years and Class-II consists of the PTOs who had facilitated at least 50 umrah pilgrims in a year for any five years.

4. Obviously, the requisite experience for a PTO to be categorized in one of the abovementioned two categories must be anterior to Haj 2013. It is to be noticed that though the APPROVED POLICY stipulated “experience of conducting a Haj operation” for 7 years for Category-I and 5 years experience of conducting “umrah operation” in second class of Category-II, the Scheme did not stipulate that those years should be consecutive years, or that they should be the immediate past 7 years or 5 years, as the case may be. The consequences of classification are also specified in para 4 of the Scheme;

“4. 70% of the overall quota of seats will be allocated to eligible PTOs under Category 3(I) and 30% to eligible PTOs under Category 3(II). Distribution of seats among qualified PTOs will be done as follows:

(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to eligible PTOs under Category 3(I) at the rate of 150 seats per PTO. In case the number of PTOs exceeds 210, the allocation of seats will be done on draw of lots. If the number of qualified PTOs is less than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be distributed equally among them.

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to eligible PTOs under Category 3(II) at the rate of 150 seats per qualified PTO. If the number of qualified PTOs exceeds 90, the allocation of seats will be done by draw of lots. In case the number of PTOs is less than 90, each PTO will be allocated 150 seats. Balance seats, if any, will be transferred to Category I and distributed equally among them. A qualified PTO which fails to get selected under the draw of lots in any year will be allocated 150 seats in the ensuing year without qurrah if it remains a qualified PTO.

5. There is no separate scheme or statute regulating the PTOs conducting umrah operations. However, we are informed by the learned Additional Solicitor General that the Government of Saudi Arabia would not permit any pilgrim for umrah through a PTO unless such PTO has a contract with one of the agencies authorized by the Government of Saudi Arabia for the purpose. We are informed that as of today there are some 48 such agen