Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified /- .. / , , HIGH COURT OF nELHI Date of decision: March 7;/1, 2005 + WP(C).4366/2001 # Amtl JobI1 Petitioner . through Mr.Tartque Siddiqui and Mr.S.D.Kinra, Advocates Versus $ Union of India & OIS. Respondents. through A Mr.P.P.Malhotra, Additional Solicitor Genera) w1th Mr.Suresh Ratt, Central Government Standing Counsel. Mr.Sanjay Jain, Amicus Curiae Coram: • Hon'ble Mr.Justice Manmohan Salin. (1) Whether reporters of local paper may be allowed to see the Judgment? (2) To be referred to the reporter or not? (3) Whether the JlIdgment should be reported/e() in the Digest? • Manmohan Sarin'. J 1. By this common Judgment, questions and issues, " \ I, , raised in a batch of writ petitions numbering around 183 i WP(C).436612OO1 page 1 of 42 J , ,,~ t-' ri .... " , , -::,,' . , - ;1 ) . filed by Tour1st Guides, are being decided. The above petition ha'3 been taken as a lead ca'3e since it by and large covered grievances and concerns of the petitioners in the batch of petition'3. Union of India wa'3 aL'30 permitted to me in th1s petition an additional affidavit. Durtng the course of heartng, Mr.G.D.Gupta, Sr. Advocate , Mr.Y.KJain, Sr. Advocate , M').Anjana Gusain, Mr.S.D.Kindra, Mr.AJay Malviya, Mr.S.g.Kazim, Mr.Falak. Mohd and Mr.Tarlque Siddiqui addressed the court on behalf of the petitioners. Coun'3el were also directed to file their synopsis of submlssion'3. Interim direction'3 were aL'30 given from time to time to which, I shall advert during the course of judgment later. Apart from Lead counsel') addressing the court, an opportunity wa') also given to , it coun'3el'3 in the batch of wr1t petItIon'3 to make submissions • ~ ... "J or file synopsi'3 of submissions With regard to common issues being taken up for con'3ideration in thi'3 petition. 2. Mr.Sanjay Jain had represented Union in these cases and subsequently due to change in Government panel WP(C).436612OO\ page2of42 counsel. Mr. P. P. Malhotra. Additional Solicitor General and Mr.Suresh Katt. Central Government Standing Counsel represented the Union. Mr.Sa.njay Jain who had been conducting the hearing a'S Union's cotm'Sel and had been Interacting with Tour1sm Department on guidelines being framed. was asked to assi'St the court a'S and when required. 3. Petitioner AnuJ Jobri filed the above petition seeking a direction to the Union to conduct examination/test'S evety year for the grant of licence to work a'S TOUrist Guide/Escort. Petitioner sought declaration that he was entitled to grant of licence having worked for the la'St several years and l.n the absence of any test being held since 1996. Petitioner claims to be working with travel agencies/foreign missions. who assigned him. to take foreign touri'St<; to various monument'S. histOrical places in Delhi, Raja'Sthan. Varan'Si. Kha.luraho etc. Petitioner 1'S a graduate. He completed certificate course In Tourism Studies In 1995. from Indira Gandhi Open Untverslty. He did a certificate Course In Italian Language from Italian Emba'Ssy Cultural Central. New Delhi In 1996. He WP(C).436612OO1 p!lge 30f 42 completed Inten'Sive Advance Diploma in Italian language m 1997 from Delhi University. Petitioner was a recipient of scholarship of Govt. of Italy and did an advance course m Italian Languages and Culture from the University of Stranieri Penlgia. Italy. Petitioner claims that hi'S a'Sstgnment comprised receMng tourist'S at Airport. taking them to the hotel'S and thereafter to the monument':1.histortcal places in northern regiOn. Petitioner i<:; well versed in the social. political and economic hi'Story of the country. Petitioner 1s al<:;o fully knowledgeable about architecture and hi'Story of various momlment'S as he had been escorting the tourist'S since 1988. 4. Petitioner avers that respondent'S conducted an exam1na.tion and a course only in the year 1986 and thereafter m 1996. There was dearth of tourist guides and petitioner and others in the absence of examination. continued to work without any interference. Pursuant to the orders passed in WP(C) 741/1994 on 281h February. 2004. directions were given for holding of a test for grant of licences within three months. Tourists Guides were WP(C).436612OO1 page4of~) , - ,-, ~-G~ permitted to continue to work. Uberty was, however, given to take action in respect of those guides again'3t whom there were complaint':>. Respondent':> submitted that under a m.1s-apprehen':>ion that some stay had been granted, they did not hold test since then. Petitioner at':>o submitted that department had i':>sued licenses to retired officers of the Department without gOing through any prescribed tra.ining or having any experience in handling tourist':>. Petitioner at':>o submit,:> that respondent':>, on the one hand, profess to take all measures to boost tourism to achieve 5 million tourist':> target in 2005, yet on the other hand, obstacles are sought to be created in the functioning of ~al1fted, accompli':>hed and experienced tourl':>t gUides like the petitioner. Reference is made to an advertisement taken j out by the Ministly of Tourism in Hindustan Times on 2P' September, 1998. It reads as l.mder:- He may not have gone to coUege But he teaches history to the world He takes them around the tombs and monuments. Narrates tales of yore-battle won. ldngdOOlS gamed, sacrtfices made. He shares with WP(C).436612OO1 page50f~~ tourlstc;; the ]egendc; of the land. Recreating bJstory and keeping it alive. in the minds and hearts of all the toU11sts who listen to them spe1l-boW1d. Thousand like him discover their calUng- light in their towns and villages. Serving as guides. Travel Agents, Taxi drivers. Gift shop owners, Managers for hotels and restaurantc; ... Working. Earning And Building a better life. Jobs are created. When people travel Come, discover the tremendouc; potenti~ of Tourism. 5. Petitioner states that the Licenced Tourtst Guides somehow w1sh to maintain their monopoly in taking fore1gn tourists to var:lOllS histortca1 places and are, therefore, creating obstacles. Hence the prayer to conduct examination/test for grant of licence 'to 'work as TOllrtst ~ G1l1de/Escort and for a declaration that petitioner on ,..- account of his expertence .Is entitled to grant of licence. 6. Mr.G.D.Gllpta, Sen10r Advocate, submitted that Rule 8(d) of the Ancient Monumentc; and Archaeological Sites Remains Rules. 1959, hereinafter referred to as the Ai\1SR Rules, did not proyjde any statutory basiS or power to WP(C).436612OO1 page6of~~ restrict canylng out of the trade and profession of tourist guides. There was singular absence of law, seeldng to prohibit or n;strict the tourist guides from cany1ng on their profession. A prohibition or reasonable restriction on the carrying out of profession could only be put a'S per law, contemplated under Article 19(6) of the Constitution of India. He submitted that Section 18 of the Ancient Monument'S and Archaeological Sttes and Remains Act, 1958, hereinafter referred to as the 'Act' , dealt with the right of access to the protected monument'S. It runs a'S under: "Subject to any nIles made tmder the Act, the public shall have a right to access to any protected monument'S." Thus, the said Section confers a right of access which could only be restricted by rules made under the Act. Rule 8(d) of the AMSR Rules Is in the nature of a supplement to Section 18. \. '~ It does not provide any statutory ba'Sis or power to restrict canytng on of trade and profession of tourist guides. It i'S in positive terms to enable and authorize showing the vL'Sitor arotmd the monument'S. The condition'S of a licence to be granted by ASI are to confer such an authority. WP(C).4366!2001 page 7of~" Mr.Gupta submitted that non-holding of the examinations all th1~ whJle during which the tourist guides and escorts have continued to work, they should not be rendered jobless and left to fend for other vocation~ in the evening of their lives. 7. Mr.Y.K.Jain, Senior Advocate, submitted that Rule I. 8(d) is beyond the mle maJdng power, as conferred tmder Section 38 of the Act. The object is preservation and protection of monuments. The present gllidcl1nes, as sought to be framed to restrict the carrying on of the profession of tourist gUides, has no nexus with the object of the Act being protect1on of monuments. Mr. Jain submitted that there has been a Singular failure on the part of the respondents to frame a responsive polley and gUidelines with regard to the tourist gUides. Respondents have faUed to hold the examinations from 1985, except for one year In 1996. In these circumstances, the tour operators and tourist guides should be permitted to continue till examinations are held and a clear cut polley framed. He submitted that there should be no age bar as the WP(C).436612OO1 page 8 of ~,. age bar would result in debarring those carrying on the profession. Experienced tour operators arc essential for promoting tourtsm. He submttted that any attempt to arbitrartly fix number of gUides would be infrtngement of the fundamental rights to cany on trade and profession. There could not be a fetter put on the right to cany on a vocation. He submttted that on the one hand respondents seek to promote tourtsm aggressively and actively, which would entail requirements for more gUides, yet at the same time the number is sought to be restr1cted without any basis. He submttted that the State of Madhya Pradesh had admJtted in the proceedings in a w11t petition that KbaJu Rao it,:>elf needed many more gUides. He submitted that most. of the petitioners are tour ",t'" operators, who receIve t.he tourists from the Airport and accompany them through out. their trip, including taking them around the monument':>. The tour operators were mostly graduates, proficient. in foreign language. knowledgeable about the hlstory and clilture of the country and adept in the art of making their narration interesting to WP(C).4366J2001 page 90f42 the totlrist~. He submitted that experience tour operators should not be debarred either on account of the age bar or not possessing requisite decree in education. 8. Mr.S.D.Klnra. Advocate. submitted that most of the petitioners. whom he L~ representlng, in the batch of w1rt petition~. are post graduates. proficient in foreign language. ;J., He submitted that the respondents' action amotmted to . - . Infringing the right to carry on trade and profession under Article 19(1)(g). Rule 8(d) did not confer power upon the respondents to hold an examination. He submitted that there was no requirement to weed out existing tourL'3t guides. Petitioners are not opposed to licencing of tourL'3t .~ guides. subject to the same being done in a proper and ,.~ -. ... orderly manner. He submitted that the bureaucrats and executive should not be left with unfettered power. He pleaded for an independent body. other than Department of Tourism to avoid faVOUritism and nepotism. He appealed for framing a licensing polley taking care of needs and concerns of the tounst gUides and indUStry. He·submitted that a prov1sion WP(C).436612OO1 5/ should be made for grant of compa~sionate licences to son~/daughters of touri~t guides, who die in harness, subject to fulflll.ing ba~ic el1g1bility requ1rement~. He submitted that totlnst guides, who are licen~ed at the state or District level could enter a centrally protected monument~ upon endorsement being made on the licence by AS!. ici S1milarly, as a matter of reciprocity, regional guides could J enter State and local monument~. He submitted that consensus with the entry was to have this practice continued. He submitted that the ex employees of tourism have been granted licences without any examInation, training and unaffected by the age bar. 9. Mr.AJay Malviya submitted that some of the petitioners, whom he i~ representing, had completed the two years co-ordinate training course, held by Indian ASSOCiation of Tour Operators (llTM), Gwalior. Tht~ course had the blessings of the Department of Tourism. Petitioners al~o claim. that on the same parity they should be granted licence and exempted from the proposed test or examination. He submitted that respondent~ themselves were respon~ible for WP(C).43661lOO1 - - -' .......... _~-bO"~l _ not holding of t.he examination every year. In the absence of any clear cut policy, petitioners, who had been operating a'3 gUides, should be permitted to so work. He submitted that there should be no ceUJng on the total number of guides. He cited the analogy of Advocates to urge that restricting the number of Advocates by Bar CouncU would be violating ,.1, 1 Article 19(1)(g) and not protected by 19(6) of the Con'3titution of India. He submitted t.hat there should be no age restriction. The age restriction proposed L'3 irrational for different classes, such a'3, foreign language guides, Eng11'3h speaking guides and retired person'3. Any restriction on total number of guides would be self defeating ex.erci'3e and contrary to ground realities. 10. Mr.Tariq Siddiqui submitted that most of the petitioners, whom he t'3 representing, are qualified graduates and eligible as per 1996 criteria to function a'3 Regional tourist gUides. He submitted that in Writ petition Nos.611/02, 2769/03, 7443-50/03, 693-99/04, right of local guides are rat'3ed. He also question'3 the clau'3e in the proposed gtudel1nes, providing for a period of 5 years before WP(C).436612OO1 p:!ge 12of~)'" , « transfer is conc;;ldered. He submitted that if a tran'3fer had been sought under the 1996 guideUnes. which were in operation. it should be governed by the said guideUneS. 11. Mr.M.ANlazi submitted that petitioners in wrtt petition Nos.2807/97. 1389/03 and 1992/03 completed 8 months course conducted by DTM. Gwaltor. called Destination Management. The admission to this course wac;; on the basic;; of All Ind,ia Entrance Test. It wac;; an extensive and comprehenc;;lve course. He submitted that accordingly. those who have qualified and completed this course. should be exempted from entrance test. 12. M'3.Anjana Gosain. Advocate. representing State level guides in the State of Rajac;;than. submitted that petitioners are graduates with 15 years experience. She ":t: submitted that keeping in mind the fact that they are State level guides and duly recognised with conc;;1derable experience. they should be exempted from the screening test ac;; well ac;; open examination and Regional Level Guide Licence be 1ssued to them. 13. A batch of writ petltlon'3 pert:a1n1ng to Regional WP(C).436612OO\ plIge 13 of~" . -..h.- --.-------------------- 5; ToUIist Guides, where the grievance was confined to entrance examination not be1ng held s1nce 1996 for appo1ntment of Tourtst Guides were disposed of on 20th September, 2004, on recorcUng Union of India's tUldertak1ng that the examination would be held within a maximum period of six months. It was also made clear that only such ~" person'S, who were eligible, a'S per the norms to take the examination, would be entitled to take the examination. 14. Pursuant thereto, Department of Tourt'Sm had published an advertisement on 16th December, 2004, titled REGTONAL GUTDE TRATNTNG COURSE FOR THE NORrHERiV REGION. By thi'S advertisement, applications were invited from unemployed candidates to work a'S freelance tou11.'St guides in the Northern Region. For facility ~j of reference, the advertisement Is reproduced a'S under:- UApplications from unemployed candidates are inv1ted by the India Tourtsm Office, New Delhi to work as Freelance Tourist Guides in the Northern Region. The eligibility requirements are as follows:- WP(C).4366!2001 page 14of~~ .,-' . j ·A '--- 1. Educational Qualiftcation: a) M1n1m.um: Graduate of a recognized university. OR Three year Degree Holder in Tourism/Hospitality from a recognised University/Institute. OR Diploma in Archaeology from the Institute of Archaeology under the Archaeological SUlVey of India. New Delhi or from any other recogrused Institution/University . b) Fluency in Engllsh language L~ essential. c) Candidates proficient in any foreign language other than Engllsh and having sound knowledge of HIstory and Culture will be given preference. They should have completed at least a six months regular course in the foreign language frOUl a recognL~ed University/approved tutions/ Embassy or Consulate or their cultural centres. 2. Age Limit.: The applicants shall be between the age of 20-65 years as on the date of the first advertisement appealing in the media. Persons holding regular or part time employment till not be eligible. Application~ forms can be collected from the Indiatourism office, 88-Janpath, New De1h1- 110011 from 09.30 hrs. to 17.30 hrs. Application complete in all respect~ should reach the Regional Director (North). Indiatourtsm Office, 88-Janpath, New De1h1- 110011 with a Demand Draft for R~.500/- WP(C).4366/2001 page 15 of~~. 15. st payable to 'Pay & Account~ officer, Ministry of Tourism. New Delhi' on or before 15th Januruy, 2005. application forms can also be downloaded from the official Website www.incred1ble1ndia.org of the M1n1~try of Tourism. Government of India. Davp8505(8)2004 ... By a subsequent Comgendum issued on 30th January, 2005, the last date of receipt of application was e.xtended to 15th February, 2005. 16. During the course of bearing of the wrtt petition, petitioners had also made submissions regarding the injustice and prejudicial effect of the proposed guidelines, ~ which bad been filed by Union of India dUri..lIg the course of hearing. Certain anomalies, inconsistencies, d1filculties and .,~ hardships likely to be encountered were pointed out dunng the course of heanng. Respondent Union of India had taken note of the concerns of the petitioners and bad fUed a draft of the revised gUidelines 2003, which sought to redress the legitimate concerns of the petitioners. Learned counsel for the petitioners, as noted earlier, had made submissions and WP(C).436612OO1 page 16 of ~'- 57 prayed for certain d1rectlon~ to be i~sued by the Court to Union of India for con~ider1ng certain exemptions and mod1ftcation in requirement of educational qua1lflcation. experience. screening test/entrance test and open examination and training course in respect of Regional Guides. to which I shall advert dunng the course of the judgment later. 17. Let us first consider the plea of the petitloners that the guidelines. purported to be framed under Rule B(d) of the Rules. are beyond the nile making power. The need for attracting foreign tourists and providing them with a good account of ollr histoty and heritage cannot be under scored. Rule B(d) of AMSR Rules not only regulates the entry to the , . ., monument but also controls user of the monument. * Reference is invited to the judgment of the Supreme Court in Rajeev Mankotta Vs. Secretruy to the PresIdent of India and ers. reported at (1997) 10 Supreme Court Cases 441. where in para 19. It was observed that "similar efforts should also be made by the Govemment oj India. in particular. the Tourism Department to attract Joreign tourists and to give WP(C).43661lOO1 page 17of!:}1- . -" T , Sf{ them a good account of our past and glory of the people of India. as a. message to other countries and terrl.tories." Reference may also be invited to the decic;ion of tb:e Allahabad High Court in M/s.Paramount Studio Vs.Union of India reported at AIR 1981 Allahabad 186 wherein the Court while repelling challenge to Rule 8(d) held as under:- 'We find that the provisionc; of Clause (d) of Rule 8 are in conformity w1th the object of the Act and they have been made w1th the purpose of regulating the access of the visitors to the monuments and the use of the precinctc; of the monumentc; by those visitors. No person can claim as ·of right that he shall cany on business at a place which Is not for which he does not have the requisite permission. The rule in question not only regulates the actual entry in the precincts of the monumentc; but also controls the user of the monument. The Act and the rules in question raic;e the citizens' sense of responsibility in protecting and maintaming these monuments of national importance in their original form. Thic; sense of responsibility develops to a real factor of social life which exerts its impact on official pollcy. The principal task. therefore. 1c; to raise the safety measures and to provide safety regulation for protecting and maintain1ng the monumentc; 1ncluding their compound. The provision in the impugned rule seems to be based upon ethic principle WP(C).436612OO1 page 180f42 '-- ~ , j >f of responoslbility. It Los a duty of every citizen to protect monuments of national importance in their original foml. Hence special and personal factors pertaining to the photographers, if left unregulated or uncontrolled may lead them under the prevailing condition os to take irresponosible decisions for violation of that duty. So in order to avoid threats and hazards which may emerge in the different situations precautionwy and safety regulations have been provided for by granting licenses subject to certain conditionos. Adherence to those conditions guarantees that foreseeable hazards do not arise. Society by elabOl'ating and introducing these legal provisions accepts responsibility that every thing necessary is done to guide the citizens by way of law to move about within the precincts of the monuments as also in their compound in a careful considerable and safe manner. The licence holders are also charged for any Situation with easily fu1fi11ed obligations which they can adhere to without any difficulty. Protection and maintenance of the monument like Taj Mahal and Forts at Agra, Fatehpur S1101 and Delhi as well as rational uose thereof are typical tasks in our country. Starting from this position the legal provisions had to be created and the methods of legal regulation had to be determined. The law stipulates the rights, duties and responsibilities of all those persons who secure licence to do a particular bUSiness or profession within the precincts of the monuments in question. We hold the view that the legal provioslons in question for the protection of the monuments have conbibuted towards more effectively WP(C~436612OO1 page 19 of~.). tncreastng the role of law in the administration and organization of the social relations in this sphere. They ensure rational utilization of tbe monuments by the enterpI1ses, organs and citlzens. The legal objective is to ensure that citizens, public authorities and professionals meet their legal duties w1th greater seI10usness and consciousness in order to take into account the demands for protecting these monuments. The contention of the petitioners that R81d) Is ultra vtres of the Act to; therefore. merit less and accordingly rejected. " Again in Deepak Theatre Vs.State of Punlab reported at 1992 Supreme Court 1519, the Court on the meaning and scope of word "Regulate" he1d:- "3 .... The question emerges whetber the word regulation would encompass the power to fix rates of admiss10n and classification of the seats. The power to regulate may include the power to licence or to refuse the licence or to require taking out a lIcence and Ulay also include tbe power to take or exempt from taxation, but not the power to impose a tax for the revenue in rule making power unless there 1s a valtd legto;latlon in that behalf. Therefore. the power to regulate a particular business or call1ng implIes the power to prescrtbe and regulations as may be deemed necessary to conduct the business in a proper WP(C).436612OO1 pnge20of42 , .J~ '~ 6/ and orderly manner. It al')o includes the authority to prescrtbe the reasonable rules, regulations or conditions subject to which the business may be permitted or conducted .. ". 4.Art1cle 19(1)(g) of the Constitution accords fundamental right to cany on any profession, occupatlon, trade or business, but would be subject to reasonable restrictions on the exercise of the said light imposed by a law, in the interest of the general public. " The Supreme Court again in a recent judgment in Civil Appeal No.2539/98 titled B.P.Sharma Vs.Union of India & Ors, whUe consIdering the validIty of fixation of age beyond which the identity cards of gUides were not being renewed, had the occa')ion to consIder the provisIon') of ~ Section 18 and 38 of the Act and Rule 8(d) of .AJ.\1SR Rules. ~ • The Court held as under:- "Now coming to Section 38, we find that the Central Government under clause (cl of sub- section (2) can make rules In respect of right of access of the public to a protected monument and the fee etc.. which may be charged therefor. It is certainly referable to Section 18 of the Act. It may be that by implications the access to the protected monument may incl