S. Ravindra Bhat, J.@mdashIssue Rule. Ms. Shilpa Singh and Mr. Jayant Tripathi, Advocates waive notice of rule and submit that these Writ Petitions can be disposed of at this stage since pleadings are complete in the main matter i.e. W.P.(C) 8798/2008.
2. The Writ Petitioners in all these proceedings seek directions to quash the decision of the respondents confining the grant of license to only 300 guides pursuant to the last examination held on 26.8.2007 and 4.11.2007, and further directions that such candidates who have secured 50% and above should be sent for training. It is argued, in WP(C) Nos. 128/2008 and 489/2009 that the respondents should select those who have secured 40% or more in the examination.
3. The brief facts necessary for deciding the cases are that the Union Department of Tourism, in terms of its guidelines used to conduct periodical examinations to test the aptitude of those wishing to engage in the vocation of tourist guides, to explain highlights of historical monuments to their visitors. No examination apparently had been conducted since 1996. In these circumstances, this Court had occasion to decide a batch writ petitions filed by tourist guides. The context there was, a challenge to Rule 8(d) of the Ancient Monuments and Archeological Sites and Remains Rules, 1959, (hereafter "the 1959 Rules") which empowered the Archeological officer to regulate the terms and conditions whereby a visitor could be shown around the monument for monetary consideration. The writ petitioners in the proceedings had complained that the inaction on the part of the respondents to hold tests and examinations, for licensing tourist guides, had rendered the rule unconstitutional. The Court even while negativing the challenge was constrained to observe that there was lacunae in existing system. This Court, therefore, in
36. For facility of reference the conclusions reached, directions given, observations made for review of Guidelines are summarized below:
(i) Petitioners challenge to the validity and vires of Rule 8(d) of the AMSR Rules and to the framing of Guidelines for grant of Guide Licences to Regional Level (Guides) thereunder is held to be devoid of merit and fails. (para 18)
(ii) Even otherwise, petitioners during the course of proceedings for all practical purposes had given up the challenge to Rule 8(d) and framing of Guidelines for issuance of Guide Licences and prayed for equitable reliefs seeking amelioration of difficulties and hardships encountered by them in the wake of amended Guidelines, prescribing eligibility conditions and examinations. (para 19)
(iii) Power of Union to regulate and limit the number of licenced/Regional Tourist Guides upheld based on flow of tourists, number of monuments, available Guides, growth potential and other relevant factors. In case determination is done in an irrational manner or arbitrary manner in disregard of relevant factors, it would be subject to challenge as not falling within reasonable restriction to practice profession. (para 27)
(iv) Revision in conditions of eligibility and qualifications for Regional Level Tourist Guides. Government has the power to revise eligibility criteria for grant of licence to Tourist Guides including Enhancing educational qualifications to strive for better quality of guides. As no examination held since 1996 and the minimum requirement of being a graduate introduced by 2003 guidelines, it prejudices all those who did not enrol or acquire higher qualification because of being eligible under 1996 criteria of 10 + 2 with two years foreign language course. Such persons in the absence of tests from 1996 were not granted licence and now find themselves ineligible under 2003 Guidelines. UOI is directed as a one time exemption to permit those Guides eligible under 1996 criteria and carrying on profession to appear in Stage II examination/Screening test. In case, they qualify in Screening test and Final examination, licence be granted subject to their obtaining requisite educational qualification as per eligibility criteria in 4-5 years.
(v) Plea of State Level Licenced Guides for exemption from Screening test and final examination based on their experience and qualifications is not accepted. Criteria, qualifications prescribed by State are different from Regional Level Guides. State Level Guides are not feeder posts to Regional Level Guides. Difficulty is arising from competing with younger persons, slowing of reflexes etc. Syllabus prescribes History and General knowledge and knowledge of monuments around the area as essential. No case made out for general exemption. Respondents to consider emphasis on making entrance and screening test and final examination as far as possible with objective questions, giving options of answers or a mix of objective and descriptive question. This would enable those who have withered with age to effectively compete with younger lot.
(vi) Government to hold a preparatory course of 4-6 weeks duration to enable refreshing knowledge and for acquiring requisite orientation to sufficiently equip candidates to take up entrance examination. Such course to be a paid optional Course. Fee/charges based on recovery of cost. Respondents to extend the date of holding of examination at stage II so as to absorb period of preparatory refresher course.
(vii) Intervenors applications misconceived and not entertained for reasons set out in para 20-22.
(viii) Cases of transfer from one region to another to be considered individually. Similarly cases of recognition of language courses-Tourist Guides training courses to be individually considered.
(ix) Petitioners grievance regarding licences being granted to employees of Tourism Department without examinations stands redressed Provision excluded from Guidelines.
(x) Age restriction on entry and compulsory exit from profession were unwarranted. Following judgment in B.P. Sharma v. UOI (Supra) - Provision amended. Any person above age of 21 years is eligible to get licence.
(xi) Government may consider a provision in the Guidelines for grant of Licence on preferential basis to the kins of those Licensed Guides who die in harness, if otherwise eligible.
(xii) The interim protection granted by court to enure to the benefit of the petitioners if they take the Screening test and Final examination and upto the declaration of result.
Writ petition stands disposed of with the above directions and observations.
5. In the meanwhile, the Union Tourism Department had prescribed age limit for grant of tourist guide license; it was 35 years. That was put to test in legal proceedings which ultimately culminated in the decision of the Supreme Court reported in
6. Pursuant to the directions of this Court, the Union Tourism Department started to hold examinations enabling such candidates who were desirous of obtaining licenses under Rule 8(d) of the Ancient Monuments and Archeological Sites and Remains Rules, 1959. The relevant provisions, i.e. Section 38(2) which empowers the Central Government to frame rules for carrying out purposes of the Act, and Rule 8 read as follows:
Section 38(2):
In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) xxxx xxx xxxx (b) xxxx xxx xxxx
(c) the right of access of the public to a protected monument and the fee, if any, to be charged therefore;
(d) the form and contents of the report of an archaeological officer or a licensee under Clause (a) of Sub-section (1) of Section 23;
XXX XX XXX
8. Prohibition of certain acts within monuments. -- No person shall, within a protected monument,-
*********************
(d) [hawk or sell any goods or wares or canvas any custom for such goods or wares or display any advertisement in any form or show a visitor round or take his photograph for monetary consideration, except under the authority of, or under, and in accordance with the conditions of, a licence granted by an archaeological officer;]
7. It is common ground that three batches of such examinations were conducted. In terms of the scheme formulated for the purpose, those deemed as successful in the written test were to be sent to undergo 16 weeks training, again conducted under the aegis of the Union Tourism Department. This regime or scheme for regulating the issuance of licenses license to tourist guides was challenged by regional guides before the Rajasthan High Court. The High Court after considering the decision of the Supreme Court in B.P. Sharma v. Union of India and Ors. (supra) and Section 29 of the Act held that in the absence of a specific statutory empowerment, the delegation of powers to the Additional Director General, Department of Tourism could not be sustained; the relevant Notification dated 21.1.2003, impugned in the writ petition before the High Court, was, set aside. It was concluded, therefore, that the scheme whereby the Union Tourism Ministry held examinations, was illegal. Consequent to this declaration, the entire process of holding examinations and issuing tourist guide licenses came to a grinding halt.
8. Many of the petitioners had, in the meanwhile, qualified in the examinations held to be eligible for further training in terms of the scheme. As a result of the Rajasthan High Court�s declaration, the respondents stopped issuing licenses. They, therefore, have approached this Court contending that the respondents are in any case bound to continue with the process since the examinations were conducted prior to the declaration of the High Court.
9. The petitioners rely upon Section 38 of the Act and contend that primary rule making power vests in the Central Government and that pursuant to such rule making power, the condition under Rule 8(d) has been spelt out. They rely upon a Division Bench ruling of the Allahabad High Court reported as
35. The second contention raised on behalf of the learned Counsel for the petitioners is that the Tourist Department of Government has no jurisdiction to interference by the grant of the license by the archaeological officer who is competent authority and as such the action of the Tourist Department is wholly without jurisdiction. We are unable to agree with this contention. It is primary object of the Tourist Department to see that the tourism is promoted of India. It is also the duty of the Tourism Department to see that the tourists whether they are national or international are properly looked after and they are also able to visit the various place of interest in the country. Practically every tourist is interested in visiting the protected monuments, namely, ancient monuments of national importance and consequently, if a tourist guide is to accompany a tourist inside the protected monuments, the Tourist Department has to see that the tourist�s welfare is maintained, it has to ensure that the tourist is given proper information and the information which is given to the tourist is actually in accord with the history and the culture of the country, In fact the work of a tourist guide is of such great importance that any lapse on the part of the guide would affect the prestige of the country. It is, consequently, essential that the Department of Tourism works in consonance with the Department of Archaeology and it cannot possibly be said that joint decision taken by the Tourism Department with the Department of Archaeology would in any manner be invalid in law. License, in any case, which is issued to a person is always by an archaeological officer as required under Rule 8(d) of the Rules. It may be that with the agreement of the Department of Archaeology, the Tourist Department may be holding the test under their authority but that does not mean that the power of the archaeological officer has been delegated to the Tourist Department. In our opinion, consequently, it cannot be said that merely because the Tourist Department is associated with the issue of the license to tourist guide, the whole procedure is without jurisdiction. The second submission, therefore, in our opinion, not well founded.
10. It is submitted that in view of the ruling of the Allahabad High Court which has also been in sense reiterated by another judgment of the same High Court in Government Approved Tourist Guide Association v. State of U.P. Civil Miscellaneous Writ No. 52805/2007 decided on 27.2.2009, it can no longer be said by the respondents that the Union Government has no concern in the regulation of conditions, particularly in regard to holding of examination that would lead to issuance of license under Rule 8(d).
11. Learned Counsel for the respondents does not dispute the facts. It is, however, submitted on behalf that once the Rajasthan High Court declared that the Central Government lacked power, the question of issuance of licenses in terms of the guidelines cannot arise even if the petitioners had qualified or attempted the examination earlier to such judgment. Counsel for the ASI submitted that whatever be the position, a decision has been taken by the Survey to work jointly with the Central Government and also the recommendations have been made for the amendment to Rule 8(d).
12. Evident from the preceding discussion, is that though the guidelines for conducting examinations to issue licenses to tourist guides, were framed long ago, as a matter of fact, the authorities were not holding examinations for a long time; this inaction led to attack to the vires of the Rules itself, on the ground that they impeded the right of tourist guides to carry on business or profession. The challenge was negatived, in Anuj Johri''s case, which also issued elaborate directions to the Central Government and ASI, in regard to holding of periodical tests, and issuance of licenses, after training the interested tourist guides. There is also no dispute that several tourist guides did complete the procedure, and were issued with licenses. At this stage, the Rajasthan High Court, at the behest of some Regional guides, declared that the Central Government lacked the power to hold such examination, since there was improper delegation.
13. The Allahabad High Court, as may be seen from the previous discussion, rejected the argument that the involvement of the Tourism Ministry in regard to licensing u/s 38 or for purposes of Rule 8, was unlawful. Similarly, in Civil Misc. Writ Petn. No. 948 of 1979 J.K. Agarwal v. Union of India decided by this Court by judgment and order dated 6th of May, 1980, it was observed as follows:
There is no law which regulates the profession of tourism guides. In absence of any such law government is free to regulate the profession by executive instructions provided they do not violate any existing law or the fundamental rights of the citizens. As regards the historical monuments, however, there is some difference. The Archeological Sites and Remains Rules 1959, issued under the Archeological Sites and Remains Act, 1958 regulate and restrict the entry of the visitors at such monuments. The petitioners'' objection is that, Rule 8 in so far as it empowers the authority to regulate entry of the visitors and the conduct of the tourist guides, is without any guideline and is violative of Article 14. There is no substance in the argument. It is true that Rule 8 does not specify under what conditions and under what circumstances, the said regulatory measures can be taken. However, this does not mean that practice of Archeology Department, permitting only the guides approved by the Tourism Department, to show round the visitors for monetary consideration, is either arbitrary or unreasonable. The primary function of Archeological Department is to protect and maintain the historical monuments. Incidently, Archeological Department is empowered with the regulatory powers. Tourism Department is a specialised department which looks after the tourist traffic and is, therefore, principally concerned with the work and remuneration of the tourist guides. There is nothing wrong if the Archeological Department takes help of the specialised department such as the Department of Tourism. The practice of the endorsement of an identity card issued by the Tourist Department, to signify its approval is neither illegal nor unconstitutional. Rule 8 does not suffer from any vice of arbitrariness or unreasonableness. There is no violation of Articles 14 and 19(1)(g).
14. The above observations in J.K. Agarwal were in fact considered, by the Supreme Court in B.P. Sharma�s case. Significantly, the Supreme Court observed the need for the tourism department and the ASI to work in tandem, and co-ordinate, as it were, to promote tourism, while exercising powers u/s 38 and Rule 8:
Now coming to Section 38, we find that the Central Government under Clause (c) 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 therefore. It is certainly referable to Section 18 of the Act. It may be that by implication, the access to the protected monument may include the entitlement of the members of the public to know about the details of the monument, its historical background and other connected matters, which information they generally obtain through the guides. Therefore, it could be considered necessary to regulate the other related matters of right to access to monuments e.g., matters pertaining to the profession of guides. The Central Government might like to see that the tourists are property informed and not misguided or fleeced by unscrupulous guides or such element posing to be guides, though to engage a guide is optional on the part of the tourist. In this light we now advert to Rule 8(d) of the Rules which provides certain prohibitions, saying that no person shall show a visitor around for monetary consideration except under the authority or conditions of licence granted by an Archaeological Officer. The purpose of Rule 8(d) is clear that the place may remain protected, be maintained and be kept neat and well and no person may charge a visitor for taking him around the place except one who is authorized as approved guide. His charges would be, as fixed.
The whole reading of all the three provisions viz. Sections 18, 38 and Rule 8(d) lead only to the conclusion that the nature of power is only regulatory. It does not in any manner lead to creation of relationship of master and servant between the State and the approved guides : nor even to any relationship, contractual in nature. It is already indicated earlier in reference to the conditions laid, that minimum standard of basic knowledge has been provided for and the conduct and behaviour of guides has been channelised in many ways but it is to be seen as to whether the condition of Clause No. 17 can be said to be within the regulatory power derived from the above noted provisions or not.
It may be pertinent to mention that one of the submissions made on behalf of the petitioners is that the identity card has been issued and conditions have been laid by Regional Director, Tourism, Government of India and not by the Archaeological Officer of the Archaeological Survey of India, Government of India. As a fact, we find that an officer of the Archaeological Survey of India has countersigned the identity card and the conditions laid down by the Department of Tourism. However, it may not be necessary to go into that aspect of the matter since no other objection has been raised before us in respect of any other condition laid down in the identity card for the approved guides. The case of the respondents is that the two departments namely, Archaeological Survey of India and the Department of Tourism; they have to work in collaboration of each other as access to the protected monuments is intimately connected with the tourism and the tourists. Therefore, both departments are equally involved. An officer of the Archaeological Survey of India has also countersigned the identity card and the conditions laid for their conduct etc.
15. The above extracts would show that though the issue was different, and concerned the prescription of an age cut off, for the purpose of issuing licenses, the Supreme Court acknowledged the Union Government''s interest and involvement in regard to regulation of the activity, and prescribing of standards, as well as evolving conditions (of license). This obviously is because of the exclusive rule making power, conferred upon the central Government, by virtue of Section 38. This aspect as well as the judgment of the Division Bench, were not considered in such perspective, by the Rajasthan High Court. This Court is not persuaded to accept its reasoning. Moreover, the court is also bound by the previous ruling in Anuj Johri as well as J.K. Agarwal, which have upheld the Central Government''s legitimate concern in regard to evolution of conditions of license, which can be issued to tourist guides, due to Section 38.
16. There is one more aspect which is of vital importance. The formulation of a scheme to hold tests, send candidates for training, and issue licenses to those found successful in the process, is not only to professionalize the activity, and thus achieve better standards; the scheme is akin to a state or Government agency asking an expert outside agency to carry on specialized training programme. Not un-often, specialized agencies undertake such work, to assist the Central or state government in training and imparting skills. Surely factoring in such activity, as an aid to undoubted regulatory power u/s 38, is legitimate and within the bounds of law. That is precisely what is achieved by the process of holding tests, and sending the candidates for training.
17. In view of the above discussion, it is concluded that the respondents are bound to proceed and forward the names of those candidates who qualified according to the criteria spelt out under the scheme. They shall adopt the same yardstick in determining who should be sent and for which batch, endeavoring to ensure that all those who are deemed successful are allowed to undergo training within reasonable time, after which those who are entitled to be issued the license, are so issued with reasonable dispatch.
18. As regards the challenge in WP(C) Nos. 128/2008 and 489/2009 to the criteria of 50% marks in the test held by the respondents, though some court orders were relied upon, this Court is of opinion that such decisions are best left to administrative judgment, having regard to various relevant factors, such as specialized knowledge of history and the monuments, communication skills, etc. These perhaps are a few discernable relevant criteria; keeping these in mind, the prescription of a minimum cut off of 50% in the written test cannot be considered unreasonable or arbitrary. The petitioner is not seriously disputing that such part of the respondents� policy is uniformly applied, and evolved in a bona fide manner. WP(C) Nos. 128/2008 and 489/2009 are therefore, unmerited; and are accordingly dismissed.
19. The other writ petitions, WP Nos. 8798/2008, 7111/2009, 7154/2009, 7842/2009, 7953/2009 are therefore partly allowed, in terms of Para 17 of the judgment. There shall be no order on costs.
