IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 25044 of 2009(A) -------------------------- PETITIONER ------------------- AUGUSTINE LOPEZ, AGED 48 YEARS, S/O.THOMAS LOPEZ, VELIYATH HOUSE, B-39, JESUS CROSS ROAD, KOCHI, ERNAKULAM DISTRICT, PIN - 682023. BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GHE GOVERNMENT OF INDIA, DEPARTMENT OF TOURISM, NEW DELHI. 2. STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF TOURISM, TRIVANDRUM. 3. THE DIRECTOR, DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA, PARK VIEW, THIRUVANANTHAPURAM. 4. THE KERALA INSTITUTE OF TOURISM AND TRAVEL STUDIES (KITTS), REPRESENTED BY ITS DIRECTOR, THYCAUD, TRIVANDRUM. R1 BY ADVS. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, ALONG WITH WPC NO. 34416 OF 2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25044 of 2009(A) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1. COPY OF THE COMMUNICATION BY THE INDIAN RAILWAY CATERING & TOURISM CORPORATION LTD. DT. 17.09.2008. EXT.P2. COPY OF TRANSFER CERTIFICATE FROM THE INSTITUTION THE PETITIONER LAST STUDIED. EXT.P3. COPY OF THE BROCHURE OF THE 3 MONTHS TOUR GUIDE TRAINING COURSE. EXT.P4. COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT, DT. 29.2.08 ISSUED TO THE PETITIONER. EXT.P5. COPY OF THE SYLLABUS OF THE 3 MONTHS TOUR GUIDE TRAINING COURSE OF THE YEAR, 2007. EXT.P6. COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT ON 19.8.2008. EXT.P7. COPY OF THE ADVERTISEMENT IN MALAYALA MANORAMA DAILY, KOCHI EDITION DATED 12.8.09. EXT.P8.COPY OF THE FEE RECEIPT NUMBER 3985 DATED 15.4.2009. EXT.P9. COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT ON 15.4.2009. EXT.P10. COPY OF THE CARD ISSUED IN LIEU OF LICENCE. EXT.P11. COPY OF THE ORDER DT. 28.2.2098 DIRECTING THE 3RD & 4TH RESPONDENTS TO TAKE IMMEDIATE STEPS FOR COMMENCING TOUR GUIDING PROGRAMME. RESPONDENTS EXHIBITS : NIL ------------------------------------- P.A. TO JUDGE / TRUE COPY / VK ANTONY DOMINIC, J. ================ W.P.(C) NOs. 25044 & 34416 OF 2009 ========================== Dated this the 21st day of October, 2010 J U D G M E N T Petitioners in these writ petitions contend that for several years in the past, they have been working as Tourist Guides. In so far as the petitioner in WP(C) No.25044/2009 is concerned, he is not a Graduate, but says that he has completed a three months course conducted by the 4th respondent, an institution recognised by the Department of Tourism of the State of Kerala also. Ext.P4 is the certificate, which shows that he has passed the course with 'A' Grade. His prayer is that respondents 2 and 3 should be directed to issue a Tour Guide licence to him. 2. In so far as the petitioner in WP(C) No.34416/09 is concerned, he is a matriculate who also claims to be working as a Tour Guide for the last several years. He also claims that he should be issued a Tour Guide licence. 3. The prayer of the petitioners is resisted by the respondents on the ground that the respondents are bound to follow the Government of India Rules governing the issue of Tour Guide licence. It is stated that in 1996, the Government of India WPC Nos. 25044 & 34416 OF 2009 :2 : initially framed guidelines, which was revised in 2003 and again in 2007. According to the respondents, going by the provisions of the 2007 Rules, minimum qualification required for the issuance of Tour Guide licence is Graduation,which admittedly the petitioners do not possess. 4. However, from the counter affidavit that the 1st respondent has filed in WP(C) No.25044/09, it is seen that the Ministry of Tourism had issued the guidelines on the strength of notification dated 21/1/2003 issued under Section 29(a) of the Ancient Monument and Archaeological Sites and Remains Act, 1958. It is stated that it was accordingly the 2003 Guidelines and 2007 Guidelines were issued. It is pointed out that the guidelines of 2007 was under challenge before the Rajasthan High Court and that the Rajasthan High Court by its judgment dated 19/9/2008 held the notification dated 21/1/2003 delegating the power to Ministry of Tourism was without jurisdiction. 5. Although it is stated that against the said judgment, an appeal has been filed before a Division Bench of the Rajasthan WPC Nos. 25044 & 34416 OF 2009 :3 : High Court and that the appeal is pending, there is no averment in the counter affidavit that the judgment has been stayed. If that be so, necessarily, the 2007 guidelines framed in exercise of the delegated power cannot survive, in view of the judgment quashing the delegation of power on the basis of which the guideline was issued. 6. In that view of the matter, neither the petitioners can require the respondents to issue any tour guide licence under the 2007 guidelines nor can the respondents prevent the petitioners from working as tour guides on the basis that they do not satisfy the 2007 Rules. Therefore, so long as the position remains as such, in view of the judgment dated 19/9/2008 of the Rajasthan High Court setting aside the notification dated 21/1/2003 delegating power to the Ministry of Tourism, the petitioners cannot be prevented from working as tour guides, on the ground that they do not satisfy the requirements of the 2007 guidelines. 7. Therefore, these writ petitions are disposed of clarifying that in the light of the Rajasthan High Court judgment WPC Nos. 25044 & 34416 OF 2009 :4 : referred to above and in the absence of any other guidelines obliging the respondents to issue the tour guide licence, the petitioners cannot demand for tour guide licence to be issued under the 2007 guidelines and that the petitioners are free to work as tour guides, subject of course to any other rules that governs the same. However, their continued work will depend upon the outcome of the writ appeal, which is filed by the 1st respondent and pending before the Division Bench of the Rajasthan High Court. Needless to say that the benefit of this judgment will be available only to the petitioners. ANTONY DOMINIC, JUDGE Rp