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Tourism Guide Association L.G -4 Gol Market Rajpur Agr Petitioner v. State Of U.P And 4 Others S

Allahabad High Court

Jul 28, 2014

Judgment

Subsequent
References

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Judgment Summary — Tourism Guide Association, Agra v. Superintendent (Archaeologist), Archaeological Survey of India, Agra Division

Factual and Procedural Background

The Tourism Guide Association, Agra (a Society representing State Level Tourist Guides) filed the present petition seeking quashing of an office note dated 12 May 2014 issued by the Superintendent (Archaeologist), Archaeological Survey of India (ASI), Agra Division. The office note recorded that the terms of licences of some State Level Tourist Guides had already expired, while for others the licences would expire on 17 May 2014, and that those whose licences had expired would not be permitted to operate as State Level Tourist Guides after expiry.

The petitioner sought consequential relief directing respondents to process renewals of licences in terms of the 2003 guidelines (framed by the Department of Tourism) pursuant to a Division Bench judgment delivered on 27 February 2009 in Government Approved Tourist Guides Association v. State of U.P. The record shows that:

Guidelines for guide licences were framed in 2003; an advertisement was issued in 2006; licences were issued in 2010.
During pendency of a Special Leave Petition before the Supreme Court (arising from the Division Bench judgment), licences were countersigned subject to the final decision in the SLP.
The licences expired by efflux of time between April and May 2014.

The petition challenges the Superintendent's office note and seeks a mandamus restraining respondents from interfering with the guides' functioning pending renewal of licences. The petition was ultimately dismissed by the Court.

Legal Issues Presented

Whether licences issued to State Level Tourist Guides under the 2003 guidelines were liable to be renewed after expiry on the basis that the 2003 guidelines remained operative.
Whether the office note dated 12 May 2014 (declaring expiry of licences and restricting entry for those whose licences had expired) was liable to be quashed and respondents restrained from interfering with the functioning of the petitioner's members as State Level Tourist Guides.
Whether the earlier Division Bench judgment (27 February 2009) entitling State Level Guides under the 2003 guidelines to operate at protected monuments continued to govern, despite the Ministry of Tourism issuing new guidelines on 22 September 2011 that purportedly superseded earlier guidelines.

Arguments of the Parties

Petitioner's Arguments

The licences held by members of the petitioner organization were obtained under the 2003 guidelines and, upon expiry of their term, were entitled to renewal for a further period of three years under the 2003 scheme.
Reliance on the Division Bench judgment of 27 February 2009 (Government Approved Tourist Guides Association v. State of U.P.) which, the petitioner submitted, supported their entitlement to operate as State Level Guides at protected monuments.
The petitioner also sought parity with Local Level Tourist Guides, implying that members should be allowed to continue operating until a new scheme (if any) was framed or applied.

Respondents' Position (as reflected in the opinion)

The Superintendent's office note of 12 May 2014 recorded that licences had expired and that those whose licences had expired would not be permitted to operate as State Level Guides inside protected monuments after expiry.
The Ministry of Tourism issued fresh guidelines on 22 September 2011 which, by their terms, superseded all previous guidelines; those guidelines changed the scheme for Regional/State/Local/Other categories and prescribed that State Level Guides could only be eligible to apply for Regional Level licences subject to meeting the common selection process and examination/viva voce.
The Supreme Court disposed of the Special Leave Petition in December 2012 as infructuous after the 2011 guidelines were issued, and the record includes a statement noted by the Supreme Court that future selections would be in accordance with the 2011 guidelines and that no person would be allowed to work as a Regional Guide unless he passes the prescribed test.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Government Approved Tourist Guides Association v. State of U.P., Division Bench judgment (27 February 2009) — cited in the petition	Interpreted the 2003 guidelines and held that State Level Guides licensed under 2003 could guide tourists at protected monuments under rule 8(d).	The Court held reliance on this Division Bench judgment to be inapposite for present purposes because that decision was rendered under the 2003 guidelines which have since been superseded by the 2011 guidelines. The 2009 interpretation of the 2003 scheme therefore did not entitle the petitioner to renewal under the new scheme.
Special Leave Petition arising from the above (SLP Special Leave to Appeal Civil No. 14778 of 2009) — Supreme Court disposal (5 December 2012)	The Supreme Court noted the issuance of the 2011 guidelines and observed that future selections would be made strictly in accordance with the 2011 guidelines; it disposed of the SLP as infructuous.	The Court relied on the Supreme Court's disposition and the recorded statement that selections would follow the 2011 guidelines to support the view that the 2011 guidelines govern future selection/licensing and that licences issued under 2003 could not be renewed as of right under the superseded 2003 regime.

Court's Reasoning and Analysis

The Court's analysis proceeded along statutory and administrative lines and can be summarised step-by-step as follows:

Statutory framework: The Court reviewed the applicable statutory and rule-making provisions under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (the Act) and the Ancients Monuments Rules, 1959. It noted:
- Section 2(j) defines "protected monument".
- Section 3 deems certain monuments/sites to be of national importance for the Act's purposes.
- Section 38 confers rule-making power on the Central Government, and section 38(2)(c) empowers framing rules regarding public access and fees.
- Rule 8(d) of the 1959 Rules mandates that a person shall not show a visitor around a protected monument for monetary consideration except under a licence granted by an archaeological officer (this activity cannot be undertaken in the absence of a licence).
- Section 29 authorises delegation of powers (relevant to appointment of Additional Director General as authority for guide licences).
Delegation and guidelines: The Court observed that on 21 January 2003 the Union Government appointed an Additional Director General (Department of Tourism) as the statutory authority under section 29(a) to frame/issue guidelines for issuance of guide licences. Accordingly, guidelines were framed in 2003 providing for three kinds of guides (Regional, State Level, Local).
2011 guidelines supersede 2003: On 22 September 2011 the Ministry of Tourism issued fresh guidelines in exercise of delegated powers, expressly stating that they superseded all previous guidelines/clarifications. These 2011 guidelines restructured Regional Level Tourist Guides into four categories and included paragraph 3.1.5, which permitted State Level Guides (under State/UT-approved guidelines) to be eligible to apply for Regional Level licences provided they qualified the common selection process and passed the examination and viva voce after training.
Effect of supersession on renewals: Because the 2011 guidelines explicitly superseded the 2003 guidelines, the Court concluded that the 2003 guidelines no longer provided a basis for renewing licences issued under them. Thus, the petitioner's claim to automatic renewal for a further three years under the 2003 regime could not be accepted.
Precedent considered: The Court treated the Division Bench judgment of 27 February 2009 as having interpreted the 2003 guidelines correctly for that period, but found that decision inapposite for present-day rights because it pre-dated the 2011 guidelines which now govern. The Supreme Court's disposal of the SLP in December 2012 (noting that selections would be made under the 2011 guidelines) reinforced the conclusion that the 2011 guidelines govern future selection/licensing.
Comparison to Local Level Guides: The Court rejected the petitioner's attempt to equate State Level Guides' protection with that afforded earlier to Local Level Guides, noting that the Local Level Guides' protection persisted only until a new scheme was framed; by contrast, the 2011 guidelines explicitly provide for State Level Guides' eligibility to apply for Regional Level licences subject to the selection and testing regime (clause 3.1.5), and there was no challenge in the petition to clause 3.1.5.
Practical conclusion: The licences had expired by efflux of time; they carried an endorsement that they were subject to the decision in the pending SLP, which has been disposed of. In view of the supersession and the regulatory scheme, there was no entitlement to renewal under the superseded 2003 guidelines; consequently, no mandamus could be issued to restrain the Union Government from enforcing the 2011 scheme and the Superintendent's 12 May 2014 office note.

Holding and Implications

Holding: DISMISSED

Implications and immediate consequences:

The petition challenging the Superintendent's office note of 12 May 2014 was dismissed and the office note was upheld.
The Court held that the 2011 Ministry of Tourism guidelines supersede the earlier 2003 guidelines; therefore licences granted under the 2003 guidelines are not automatically renewable under the superseded 2003 regime.
Members of the petitioner Association who held State Level licences under the 2003 guidelines are eligible to apply for licences under the 2011 scheme (notably for Regional Level licences) only upon fulfilling the requirements of paragraph 3.1.5 (common selection process based on merit and examination/viva voce after training).
No mandamus was issued to restrain the Union Government from applying the 2011 guidelines or from enforcing the Superintendent's direction restricting operation by those whose licences had expired.
The Court did not set any new legal precedent beyond applying the existing statutory delegation/rule-making scheme and recognising the supersession of earlier administrative guidelines; the decision's effect is primarily on the parties before the Court (i.e., the petition was dismissed and the respondents' actions were sustained).

This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond that text.

Show all summary ...

Hon'ble Dilip Gupta, J.

Hon'ble Mahesh Chandra Tripathi, J.

This petition has been filed by Tourism Guide Association, Agra, which is a Society representing the State Level Tourist Guides for monuments under the Archaeological Survey of India, for quashing the office note dated 12 May 2014 issued by the Superintendent (Archaeologist), Archaeological Survey of India, Agra Division, Agra. The office note records that the term of the licences of some of the State Level Tourist Guides had come to an end, while for others it would come to an end on 17 May 2014 and that they will not be permitted to operate as the State Level Tourist Guides after the expiry of the aforesaid term of licences. The petitioner has also sought consequential relief that the respondents should initiate action for processing the renewal of licences in terms of the guidelines framed in 2003 pursuant to the judgment and order dated 27 February 2009 rendered in Government Approved Tourist Guides Association v. State of U.P 2009 3 ADJ 98 DB.

Under the guidelines framed in 2003 for the grant of guide licences by the Department of Tourism, Government of India, an advertisement was issued in 2006 inviting applications from persons who were willing to work as State Level Guides. Licences were issued licences to persons as State Level Guides in 2010. During the pendency of certain proceedings before the Supreme Court, to which a reference shall be made shortly hereinafter, the licences were countersigned till their validity period subject to the final decision of the Supreme Court in Government Approved Tourist Guides Association v. State of U.P Special Leave to Appeal Civil No. 14778 of 2009. The licences have come to an end by efflux of time between the months of April and May 2014.

The petitioner has, in these proceedings, asserted that the licences as State Level Guides are entitled to be renewed for a further period of three years upon the expiry of the term of the licences. In the meantime, a letter was addressed on 12 May 2014 by the Superintendent (Archaeologist) Archaeological Survey of India, Agra recording that the term of the licences of some of the State Level Guides has come to an end and that entry into the protected monuments would be allowed only to those Guides whose licences as State Level Guides had not expired. These proceedings have been instituted seeking a direction for setting aside the order of the fifth respondent dated 12 May 2014 and for a mandamus restraining the respondents from interfering in the functioning as State Level Guides pending the renewal of their licences.

Section 2(j) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (the Act) defines the expression “protected monument” to mean an ancient monument which is declared to be of national importance by or under the Act. Under section 3, all ancient and historical monuments and all archaeological sites and remains which have been declared by Act No. 71 of 1951, or by Section 126 of the States' Reorganisation Act, 1956 to be of national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purposes of the Act. A rule making power is conferred upon the Central Government by section 38. Section 38(2)(c) empowers the Central Government to frame rules inter alia regarding the right of access of the public to a protected monument and the fee, if any, to be charged.

The Ancient Monuments and Archaeological Sites and Remains Rules, 1959 have been framed under the Act. rule 8(d) provides that no person, shall within a protected monument, hawk or sell any goods or wares or canvass any custom for such goods or wares or display any advertisement in any form or show a visitor around 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. Under rule 8(d), a licence of an archaeological officer is contemplated in order to enable a person to show a visitor around a protected monument. Such an activity cannot be undertaken in the absence of a licence. rule 8(d) was amended in 2010 to include the Additional Director General in the Department of Tourism of the Union Government.

On 21 January 2003, in exercise of powers conferred by section 29(a), the Union Government appointed an Additional Director General in the Department of Tourism as the statutory authority under the Act for framing and issuing guidelines for issuance of guide licences and for the approval and registration of qualified persons selected through due process by a Committee constituted for the purpose of operating in the protected monuments of national importance. Section 29 of the Act provides for a delegation of powers. In 2003, guidelines were framed in pursuance of the delegation for the grant of guide licences by the Union Government in the Department of Tourism. The guidelines of 2003 contemplate three kinds of guides, namely (i) Regional Guides; (ii) State Level Guides; and (iii) Local Guides.

In 2011, the Ministry of Tourism, noting the importance of the vital role which is played by guides in bringing about satisfaction to tourists visiting a Country/Region/State, introduced fresh guidelines on 22 September 2011. The guidelines were also made in accordance with the delegated powers under the Act and Rules and in supersession of all the previous guidelines/clarifications issued by the Ministry of Tourism. The guidelines of 2011 provide for Regional Level Tourist Guides which fall into four categories: (i) General; (ii) General-Linguistic; (iii) Expert Guides; and (iv) Expert-Linguistic. Paragraph 3.1.5 deals with the eligibility of State Level Guides under the guidelines approved by any of the State/Union Territory Administrations. Paragraph 3.1.5 provides as follows:-

“3.1.5 Eligibility of State Level Guides: The State Level Guides under guidelines approved by any of the State/Union Territory Administrations would also be eligible to apply for licences to work as Regional Level Guides provided they qualify (a) the common selection process based on merit as detailed above for the selection of various categories of RLGs and (b) the examination and viva voce after the training”

Before the enforcement of the guidelines of 2011, a batch of writ petitions was filed before this Court which culminated in the judgment of a Division Bench of this Court in Government Approved Tourist Guides Association The said writ petition was filed by an Association representing the interest of Regional Level Guides who had been recognised by the Department of Tourism of the Union Government for accompanying tourists at protected monuments. The writ petition basically sought relief to the effect that the State Level Guides who had been licensed under the guidelines of 2003 could not be permitted to act as guides in relation to protected monuments within the meaning of Act. This submission was rejected by the Division Bench holding that under the guidelines of 2003, the State Level Guides who had been selected for the purpose of rule 8(d) could also guide tourists at protected monuments in the State. The judgment of the Division Bench was carried in an appeal to the Supreme Court in Government Approved Tourist Guides Association (supra) which was decided on 5 December 2012. The Supreme dealt with the decision of the Division Bench and disposed of the special leave petition as infructuous, holding that after the issuance of the 2011 guidelines, it was not necessary for the Court to adjudicate upon the correctness or otherwise of the judgment of the Division Bench of this Court and on the entitlement of the State Level Guides to operate in the areas to which the Act is applicable. In the judgment, the statement of the learned Additional Solicitor General of India that all future selections for recruitment of Regional Level Tourist Guides will be made strictly in accordance with the guidelines issued on 22 September 2011 and no person will be allowed to work as a Regional Guide unless he passes the prescribed test, has been noted.

Now, it is in this background that it would be necessary to deal with the entitlement that is claimed by the petitioner. The licences were obtained when the guidelines of 2003 were in force and it is admitted that these licences were obtained under the guidelines of 2003. The submission of the petitioner is that the guidelines of 2003 continue to remain in force and that the licences are liable to be renewed under the guidelines of 2003. This submission cannot be accepted. The guidelines which have been issued on 22 September 2011 specifically clarify that they are in supersession of all the previous guidelines and clarifications issued by the Union Ministry of Tourism. New guidelines were notified for the selection, training and licensing of Regional Level Tourist Guides. With effect from the date of notification of those guidelines, four categories of Regional Level Guides are contemplated. In fact, paragraph 3.1.5 of the guidelines makes it clear that the State Level Guides under guidelines approved by any of the State/Union Territory Administrations would also be eligible to apply for licences to work as Regional Level Guides provided they qualify in the common selection process based on merit and in the examination and viva voce after training. The guidelines of 2003 stand superseded and, hence, there can be no renewal of a licence, as claimed by the petitioner, on the basis that the guidelines of 2003 continue to remain operative. Thus, the State Level Guides under the guidelines which have been approved by the State or Union Territory Administrations would be eligible to apply as Regional Level Guides subject to fulfilment of the requirement of paragraph 3.1.5

Reliance which has been placed on the judgment of the Division Bench of this Court in Government Approved Tourist Guides Association (supra) is inapposite. The judgment was delivered on an interpretation of the guidelines of 2003. The petitions were filed in 2006-07 and the judgment of the Division Bench was delivered on 27 February 2009 much before the new guidelines were notified by the Union Ministry of Tourism on 22 September 2011. The guidelines of 2003 have now been superseded in 2011. The Division Bench had, during the subsistence of the guidelines of 2003, dealt with the submission that the Tourists Guides who had been licenced as State Level Guides under the guidelines of 2003 could not be permitted to operate in respect of protected monuments but this submission was found to be incorrect. Now, that the guidelines of 2011 hold the field, they have to be given effect to. The entire statutory scheme in relation to protected monuments has to be understood by reading the rule making power in section 38, the delegation contemplated in section 29 and the statutory rule 8(d) which mandates a licence for showing a visitor around a protected monument. Ancient and historical monuments and archaeological sites and remains declared by or under a law made by Parliament to be of national importance is a subject which falls in Entry 66 of the Union List contained in the Seventh Schedule to the Constitution. It is the law made by Parliament under Article 246 of the Constitution read with Entry 66 that governs the field. The term of the licences has expired. The licences admittedly contained an endorsement that they will be subject to the decision of the Supreme Court in the pending special leave petition which has been disposed of.

The contention of the petitioner that the members of the Association should also be permitted to operate as State Level Tourist Guides as in the case of Local Level Tourist Guides cannot be accepted because the protection was given to the Local Level Tourist Guides till such time as the new scheme was framed. In the instance case, the 2011 scheme makes a provision for the State Level Tourist Guides as is clear from clause 3.1.5 These State Level Tourist Guides are eligible to apply for licences to work as Regional Level Tourist Guides provided they qualify the common selection process based on merits and the examination and viva voce after training. There is no challenge in this petition to the provisions of clause 3.1.5 of the 2011 scheme. The petitioner, therefore, is not justified in making any comparison with the Local Level Guides. The members of the petitioner Association can obviously appear in the examination as and when it is held.

For these reasons, we are of the view that no fault can be found with the order passed by the Superintendent on 12 May 2014. No mandamus can be issued restraining the Union Government from interfering in the functioning as State Level Guides as the petitioner has staked a claim on the basis of the guidelines of 2003 which have been superseded. Hence, no case for interference is made out.

The petition is, accordingly, dismissed.