Madhya Pradesh High Court
Swami Pranavanand Tourist Guide ... vs Union Of India Judgement Given By: ... on 1 April, 2014
Author: A. K. Sharma
Bench: A. K. Sharma
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
W.A. No.1503/2012
Swami Prananvanand Tourist Guide Association
Vs.
Union of India and others
Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Shri A. K. Sharma, J.
______________________________________________________
Shri Siddharth Gulatee, learned counsel for the
appellant.
Shri S. A. Dharmadhikari, learned counsel for the
respondents.
__________________________________________________
ORDER
( 1/4/2014 ) This is an appeal filed by the appellant under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 calling in question tenability of orders dated 5.9.2011 passed by the Writ Court in W.P. No.5556/2011 and the subsequent order dated 7.12.2012 dismissing the Review Petition No.651/2011.
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2. Appellant filed the writ petition calling in question tenability of an order dated 11.3.2010 passed by the Regional Director of Tourism, Western Zone, Mumbai. Matter pertains to working of Tourist Guides in various Tourist establishment in the Western Region comprising of States of Maharashtra, Madhya Pradesh, Goa, Gujarat, Chhatisgarh, Daman and Diu and Dadra Nagar and Haveli. It is the case of the appellant that this order dated 11.3.2010 is not in conformity with the provisions of Clause 12 of the guide lines issued under the Regional Level Guides, 2007 and therefore, interference was called for.
3. It is the case of the appellant in the writ petition that by the order dated 11.3.2010 the intervenors who have been subsequently impleaded as respondents No.5 to 13 and who have been authorized to operate as Tourist Guide in the State of Gujarat will be permitted to work as Tourist Guides in various Tourism spots like Khajuraho and as this is not permissible and contrary to Clause 12 of the Regional Level Guides, 2007 and therefore, the writ petition was filed. The learned Writ Court took note of the provisions of the guide lines and Circular and found that the order dated 11.3.2010 is in strict conformity with the guide lines and dismissed the petition.
4. We have also considered the aforesaid finding of the learned Single Judge and find that Clause 12 of the guide lines pertaining to transfer of Guides, permit and make them eligible to work in the entire designated region irrespective of the place from where they have been issued
- 3 -3 the guide license. In view of this specific condition a Tourist Guide who has been issued with a license is entitled to work in the entire region and the interpretation given by the learned Single Judge to this Clause and finding that the Circular impugned dated 11.3.2010 is in conformity with the Rules of 2007 is a proper finding and there is no error in this interpretation.
5. However, learned counsel for the appellant argued that respondents No.3 to 15 were initially issued with the guide license from the regional office, Bombay to work in the State of Gujarat and when they were prohibited from working in other various places of the region except Gujarat, they filed a writ petition before this Court being W.P. No.13682/2007. It was the case of the appellant that in the reply filed by respondents 1 to 3 in this writ petition No.13682/2007, the Archaeological Department filed a detailed reply and took a stand that a Tourist Guide who is appointed for a particular State cannot operate beyond the State for which the license is granted. As the respondents No.3 to 5 in W.P. No.13682/2007 wanted to operate in the State of Madhya Pradesh particularly in Khajuraho and when they were prevented, the writ petition was filed and in the said writ petition in the return filed by respondent No.4, the averment was as indicated herein above. However, now in the present writ petition it is said that respondents have taken a somersault and have taken a stand which is contrary and opposite to the stand which was earlier taken by them in W.P. No.13682/2007. Accordingly, Shri Siddharth Gulatee tried to emphasize that the respondents
- 4 -4 No.1 to 3 cannot be permitted to change their stand in the manner done and once they have said that the Tourist Guide appointed with a license for a particular State cannot operate beyond the State, they cannot now permit the Guide to work beyond the State for which the license is granted. Accordingly, intervention is sought for by contending that this aspect of the matter was not considered by the learned Writ Court in the Writ Petition and even in the Review Application when this was highlighted, the same was not considered.
6. Shri S. A. Dharmadhikari refuted the aforesaid and argued that when W.P. No.13682/2007 was filed and when the respondent department filed its return in the said writ petition on 5th March, 2009 as is available on record, the Circular clarifying the provisions of Clause 12 i.e. the Circular dated 11.3.2010 was not in force. There was confusion with regard to interpretation of Clause 12 and as the return filed in W.P. No.13682/2007 was based on the original interpretation of the department but after the clarification was issued by the Competent authority on 11.3.2010, the position is now clarified. Accordingly, they say that the return filed in the earlier writ petition was prior to issuance of the Circular dated 11.3.2010 and now after the Circular dated 11.3.2010 is clarified the provisions of Clause 12 which is also interpreted by the Learned Single Judge, there is no infirmity and Shri Dharmadhikari argued that contention of the appellant cannot be accepted.
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7. Having heard learned counsel for the parties and on due consideration of the rival contentions, we find that the objections raised by the appellant are wholly misconceived.
8. Originally when the respondents No.3 to 5 were prevented from working in various areas in the Western region and when action was being taken, they filed W.P. NO.13682/2007 and in the said writ petition a return was filed by the Archaeological Department on 5.3.2009. In fact, the return was only filed by the Office of Assistant Superintendent, Archaeological Survey of India, Khajuraho, District Chhatarpur. It was his contention as made in the said return based on his interpretation of Clause 12. However, it seems that the Union of India found that the interpretation of Clause 12 advanced by the department/ authorities was not correct and that is why, a clarification memorandum was issued and after this clarification was issued on 11.3.2010, the writ petition was dismissed as withdrawn as having been rendered infructuous. That being so, the stand taken by the department in W.P. No.13682/2007 on 5.3.2009 apart from being contrary to the interpretation of Clause 12 of the Rules in question is also before the Circular dated 11.3.2010 was issued and therefore, we see no merit in the objections raised by Shri Siddharth Gulatee. Once the Circular dated 11.3.2010 was issued and the finding recorded by the learned Writ Court is found to be in accordance to the Circular, we see no reason to interfere. That apart, the stand taken by respondent No.4 in W.P. No.13682/2007 being contrary to the
- 6 -6 requirement of Rules of 2007 we are also inclined to accept the same. The provisions of the Rules clearly contemplates that a Guide will not be required to seek transfer from one place to another within the same region as they are eligible to operate in the entire designated region irrespective of the place from where they have been issued the guide license. Once this is a mandate of Clause 12 of the Rule pertaining to transfer of the guides, we see no error in the matter warranting consideration. That apart, the order passed by the learned Writ Court in the Review petition goes to show that respondents No.3 to 15 were issued the license for State of Gujarat has expired on 31st December 2012 and thereafter, fresh action was required to be taken and therefore, on this count also now no interference into the matter is called for.
Accordingly, in the totality of circumstances, we find no ground to interfere.
The appeal is therefore, dismissed.
( Rajendra Menon) ( A. K. Sharma )
Judge Judge
mrs.mishra