Allahabad High Court
Poonam Verma And 29 Others vs Union Of India And 4 Others on 15 February, 2019
Bench: B. Amit Sthalekar, Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 39 Case :- WRIT - C No. - 52591 of 2017 Petitioner :- Poonam Verma And 29 Others Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Jai Prakash Singh Counsel for Respondent :- C.S.C.,A.S.G.I.,S.K.Rai Hon'ble B. Amit Sthalekar,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
(Delivered by Hon'ble B. Amit Sthalekar, J) The petitioners who are 30 in number are seeking a direction to the respondents not to interfere in the working of the petitioners as local guides over the protected monuments situate in the Agra circle and Agra. They have also prayed for a direction to the respondent no.1 to formulate a permanent platform for the working of the local guides over the protected monuments. The petitioners claim to be residents of Agra and state that they are interested in working as local guides over the protected monuments situated in the city of Agra. Their contention is that they are not being allowed to work as local guides by the authorities of the Archaeological Survey of India on the ground that they do not have a permanent license of local guide. The petitioners claim to be well qualified for working as local guides and it is also stated that most of the petitioners are Graduate and are well versed in the vernacular language as well as foreign language.
The contention of the petitioners is that under Rule 8 Clause (d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (hereinafter referred to as 'Rules, 1959') no person shall 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 license granted by an archaeological officer. It is stated that from time to time, the respondents have framed guidelines for regulating the conditions for grant of license to a person who may take the visitors around the protected monuments for monetary considerations. It is stated that under the Notification dated 20.5.2010, the Additional Director General (Tourism) has also been made a statutory authority under Section 2(c) for purposes of granting a license. Reference has been made to the Government of India, Department of Culture, Archaeological Survey of India Notification dated 21.01.2003, Annexure-3 to the writ petition. Para 9 of the said Notification provides that on successful completion of training course the Regional Level Guides would be issued Guide License by the concerned Regional India Tourism Office by the Government of India; State Level Guides, on successful completion of their training course would be issued Guide Licenses by the Director of Tourism of the respective State which would be duly endorsed by the Department of Tourism, Government of India and Archaeological Survey of India. Para 9 of the Notification dated 21.01.2003 reads as under:-
"9. Issuance of guide license:
On successful completion of their training course the regional level guides would be issued license by the concerned regional Indiatourism office of Government of India.
State Level Guides, on successful completion of their training course would be issued guide licenses by the Director of Tourism of the respective state which would be duly endorsed by the Department of Tourism, Government of India and Archaeological Survey of India.
Identity cards of State-Level Guides would be endorsed by the respective State Archaeological Departments etc. State Governments would also be requested to extend similar endorsement on the Identity Cards of the Regional-Level guides for the coverage of the State monuments etc. under their control.
The local-level guides will have no authority to conduct visitors to the monuments controlled by ASI. As regards State-controlled monuments, it is for the respective State Departments of Tourism or the Archaeological Departments to take a decision on permitting them to conduct tourists to such monument."
Reference has also been made to the Government of India, Ministry of Tourism Guidelines dated 22.9.2011, Annexure-5 to the writ petition, which provides that in Clause (d) of Rule 8 of the Rules, 1959 after the word "archaeological officer", the words "or the Additional Director General, Department of Tourism, Ministry of Tourism, Government of India to the extent of showing a visitor round" shall be inserted. Therefore, it was laid down that all previous Guidelines/Clarifications issued by the Ministry of Tourism, Government of India from time to time shall stand superseded and new Guidelines for selection, training and licensing of the Regional Level Tourist Guides, 2011 have been issued. Para 16 of the Guidelines under the heading 'Jurisdiction' provides the area of operation of the Regional Level Guides under five sub regions, namely, Northern Region, Southern Region, Western & Central Regions, Eastern Region and North Eastern Region. The Northern Region constitutes the States of Delhi, Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh and Union Territory of Chandigarh. It is stated that a bunch of writ petitions, leading Writ petition being Writ petition no. 28274 of 2012 (Santosh Baghel and others Vs Union of India and others) were filed with the petitioners praying that they may be provided a license as a Local Guide so that they can be permitted to practice their profession in an around the protected monuments situate in Agra, Varanasi and at other districts in the State of Uttar Pradesh. Those writ petitions were disposed of by a Division Bench of this Court by its judgment dated 7.3.2014 with the following directions:-
"a) Ministry of Tourism, Union of India, is directed to frame guidelines within six months for issuance of a licence for a local guide who is proficient in the Hindi language and such other languages as depicted in the Eighth Schedule of the Constitution of India which would cater to the domestic market.
b) Till such time, the guidelines are not framed and licences to a local guide are not issued, all the respondents are restrained from interfering in the working of the petitioners as local guides in the protected monuments, which is declared by or under law made by Parliament to be of national importance.
c) As and when licences are issued to local guides, steps would be taken by the respondents to ensure that touts, fraudulent, unlicensed guides or any other unauthorised person(s) are not permitted for the purpose of taking the visitors around the protected monuments for a monetary consideration."
Thereafter, again guidelines for selection and grant of license to Local Guides by State Governments/UT Administrations was issued by the Government of India, Ministry of Tourism dated 30.12.2014, Annexure-7 to the writ petition which in Para 3 under the heading of 'Eligibility' provided the 'Educational Qualifications' and in Para 3.2 the 'Age Limit'. Para 3.3 deals with 'Domicile Proof' and requires that the candidates who wish to get admission in training programmes and work as Local Level Guides will have to submit their residence proof of the State in which the destination comes. Para 4 lays down the 'Process of selection'. Para 4.2 onward deals with the 'Entrance test, Preparation of Merit List, Counseling, document verification and allotment of training seats' etc. Para 8 of the Guidelines under the heading of 'Issuance of guide license' provides that on successful completion of Local Level Guide Training course, the successful candidates would be issued Local Level Tourist Guides License by the State Government/ UT Administration/ District Administration. The license would be valid for a period of 10 years. In case any ASI protected Monument falls within the area of operation, the Guide License being issued will be endorsed by the designated officer of Archaeological Survey of India who is custodian of these monuments. Para 9 deals with 'Renewal of guide license'.
Paragraphs 3 to 9 read as under:-
"3. Eligibility:
3.1 Educational qualification(s):
The following educational qualifications are prescribed for the selection of local level tourist guides and all applicants should have fulfilled the criteria on or before the date of publication of the first advertisement for selection and training.
(a) At least class 12th (10 plus 2) pass out from a recognized institution board or
(b) Candidates should have knowledge and fluency in any language depicted in any one language of the 8th Schedule of the Constitution of India i.e. Assamese, Bangali, Bodo, Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Nepali, Odia, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu, and Urdu. The fluency shall be tested at the time of written examination which shall be given in the local language of the destination selected by the candidates.
3.2 Age limit:
The applicant should be at least 18 years of age on the date of the first advertisement appearing in the media for selection of Local Level Guides.
3.3 Domicile Proof:
(a) Candidates who wish to get admission in training programme and work as Local Level Guides will have to submit their residence proof of the State in which the destination comes.
(b) Candidates have to submit the proof of Domicile with the application of admission for the Local Level Guide Training Course. The following will be accepted as documentary proof for Domicile:
(i) Certificate of Residence proof by the competent authority (not below the rank of Tehsildar)
(ii) Passport.
(iii) Voter Identity Card.
(iv) Ration Card.
(v) Aadhar card
4. Process of selection:
4.1.1 The assessment of the recruitment of Local Level Tourist Guides, destination-wise, could be as per the domestic tourist arrivals, number of ASI monuments, available licensed guides, growth potentials, availability of assignments to guides and all other relevant factors and would normally be done once in three years by the state Government/UTs through a pre-defined process involving the stake holders. The Archaeological Survey of India in consultation with State Governments will decide the requirement of Local Guides at the respective Archaeological Survey of India Protected Monuments
4.1.2 The process of selection would be undertaken by any recognized institution that the State Government/UT Administration may deem fit for conducting this process.
4.1.3 The applications shall be invited through open advertisement specifying the seats available for training, destination wise. Applicants shall submit their applications in the prescribed Proforma along with photocopies of all documents required as proof of their eligibility and in no case; applicants would be allowed to submit any additional documents as proof at a later stage.
4.2 Entrance Test:
4.2.1 An entrance test would be conducted to evaluate the general intelligence and suitability of applicants for admission to local level guide training. The entrance test would be of two hours duration and cover the following subjects:
(a) Knowledge of monuments / tourism products of the destination (Paper A) 100 marks
(b) Indian and local history & culture- (Paper- B) 50 marks
(c) General Knowledge (Paper C) 50 marks Note:
(i) For local level guides, the written test would be conducted in the concerned local language as per the 8th schedule of the constitution of India.
(ii) All applicants shall obtain at least 100 marks out of total marks of 200 for qualifying the written test.
4.3 Preparation of Merit list:
4.3.1 A merit list of all applicants who pass the entrance test would be prepared on the basis of aggregated marks. In case of a tie at cut-off level in the merit list, the merit will be decided on the basis of following:
First on the basis of score in paper A followed by score in paper B. If the tie still persists, score on paper C will be considered. If the tie is not resolved through the above, the age of applicants will be considered for deciding merit and those older in age will be placed higher in merit list.
4.4 Counseling, document verification and allotment of training seats:
4.4.1 On the basis of merit in the entrance test, the qualifying applicants would be called for an open counseling and documents verification. The admission against available seats would be offered strictly on the basis of merit basis subject to fulfillment of all the prescribed eligibility conditions. The candidates shall present themselves in person to claim seat for training and shall report on the time and at the venue notified by State Government/District Administration/the designated institute.
4.2.2 The applicants shall be submit all original documents for verification at the time of counseling. Failure to produce original documents would lead to rejection of candidature.
Note:
i. In no case would qualifying the written test give right of admission to training. The seats advertised for training would be allotted strictly as per the merit list of the qualifying written test. In case the number of candidates qualifying the written test happens to be lesser that the number of seats available, the admission would be limited to the qualifying candidates only.
ii. All documents submitted by candidates shall be sent for verification to the issuing agencies. If the documents are not verifiable or found to be incorrect at any time during the training, the candidature of applicant would be cancelled.
5. Duration and Training inputs:
5.1 The duration of Guide Training Courses and training inputs are as under:
Duration of class room training : 6 weeks Duration of field training : 2 weeks During the training, the trainees would be imparted knowledge of essential guiding skills, tourism products / aspects of the destination & state, and fair knowledge of social, political and economic policies etc., of the destination/region in specific and entire country in general. The detailed syllabi would be laid down with the approval of state Government/UT Administration and would be regularly updated.
5.2 Field Training :
(i) The field training would be given to cover all important places of Tourist interest in their designated area of operation including Archaeological Survey of India (ASI) Protected Monuments which are open to tourists.
(ii) During the training course frequent group discussions & role plays shall be arranged to improve their interactive and relational abilities.
(iii) After the training is over, the candidates would submit a report of their learning before the viva-voce.
6. Evaluation:
Examination constituting of a written test and viva voice shall be conducted at the end of the training programme for the evaluation of the trainees 6.1 . Written Test:
The written test would be of 200 marks covering the entire syllabus during the training course and the guide-trainees must secure minimum 100 marks in the written test to be eligible for viva voce . The written examination shall be conducted in the local language for which the guide is being selected.
6.2 Viva voce 6.2.1 After passing the written test the trainees would undergo a viva voce test of 100 marks where the guiding skills, knowledge of the monuments/destination, communication skills,etc, would be tested.
6.2.2 Trainees would be eligible for successful completion of local level guide training certificate after passing both the written test and viva-voce.
6.3 Supplementary Examination In case the candidate does not secure minimum passing marks in the written test or viva voce after training ; he would be given two opportunities to appear for supplementary examination and viva voce, at an interval of three month, each counted from the date of declaration of last result . If a candidate fails to pass in the supplementary chances, his candidature would be canceled.
After all supplementary chances are exhausted are exhausted; candidate would have to seek fresh admission and repeat the guide selection and training process.
7. Attendance:
A minimum of 80 per cent attendance, both in class room teaching and field training, taken separately, would be essential before taking the final examination. However, relaxation up to 10% can be given by the concerned authority in the approved/ designated Institute handling/ conducting the course, in genuine cases of sickness, specif family circumstances or other-wise satisfactory reasons.
8. Issuance of guide license:
On successful completion of their local level guide training course, the successful candidates would be issued Local Level Tourist Guide License by the State Government/ UT Administration/ District Administration. The license would be valid for a period of 10 years. In case any ASI protected Monument falls within the area of operation, the Guide License being issued will be endorsed by the designated officer or Archaeological Survey of India who is custodian of these monuments.
8.1 Verification of antecedents:-
Prior to issuing of guiding license, the candidates would have to undergo a verification of their antecedents through the Police and any adverse report would lead to immediate disqualification of the candidate.
9. Renewal of guide license:
The Local Level Tourist Guide licenses would be renewed every ten years and subject to the performance of guides and passing one Refresher Course conducted by the State Government/UT Administration or any other institute identified/designated by the State/UTs.
The guide must submit the guide license for renewal 30 days prior to date of expiry of its validity along with certificate of successful completion of Refresher Course."
Thereafter, the Ministry of Culture (Archaeological Survey of India) issued a Notification No. F.No. 33/35/2015-M(Pt.I), dated 31.01.2017, Annexure-8 to the writ petition. This Notification states that being a custodian of centrally protected monuments and responsible to manage all affairs related to protected monuments, the Archaeological Survey of India is mandated to take actions so that activities are taken up in harmony with the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as the Act, 1958) and Rules, 1959. This Notification provides for issuance of Guide Licenses and in Para 2 of the Notification it is stated that from now onward there shall be only one category of guides known as "ASI Monument guide" who would be authorised to work in the centrally protected monuments and sites maintained/administered/managed by the Archaeological Survey of India for which he is licenced. Para 2.4 provides that the Archaeological Survey of India shall be responsible for conducting the tests and work out mechanism for grant of such licenses. By this Notification dated 1.7.2017, the powers delegated to the Additional Director General, Ministry of Tourism, Government of India under the previous Notification dated 21.02.2003 for framing and issuing of guidelines, for issuance of the guide licenses, approval and registration of qualified persons selected through due process by a committee constituted for the purpose to operate in the protected monuments of national importance, has been withdrawn and further provides that the policy guidelines shall be applicable only to such guides who are allowed to work in the centrally protected monuments/sites maintained/administered/managed by the Archaeological Survey of India having valid license granted by the specified authority as required under Rule 8(s) of the Rules, 1959.
Para 2.1 and 2.4 of the Notification dated 31.1.2017 read as under:-
"2. Scope and effect:
2.1 That from now onwards there shall be only one category of guides known as "ASI Monument guide" who would be authorised to work in the centrally protected monuments and sites maintained/administered/ managed by the Archaeological Survey of India for which he is licenced. The policy shall be applicable only to such guides who are allowed to work in the centrally protected monuments / sites maintained / administered/ managed by the Archaeological Survey of India having valid licence granted by the specified authority as required under Rule 8(d) of the AMASR Rules, 1959.
2.2 .......
2.3 ........
2.4 The Archaeological Survey of India shall be responsible for conducting the tests and work out mechanism for grant of such licenses. Insofar as Monument Guides operating within the centrally protected monuments are concerned, the various categories of guides who have qualified to operate within the centrally protected monuments."
I have heard Sri Jai Prakash Singh, learned counsel for the petitioners and Sri S.K. Rai, learned counsel for the respondents and perused the documents on record.
The entire claim of the petitioners is that under the Guidelines of 2003 for the first time the status of 'local guides' was conferred to provide a permanent platform to Local Level Guides for working over protected monuments and since some of the petitioners are Graduates, the respondents should not interfere in their working as Local Guides over the protected monuments situate in Agra.
Sri S.K. Rai, learned counsel for the respondents on the other hand referred to the Notification dated 31.1.2017 and submitted that the Notification dated 21.01.2003 stood withdrawn by the subsequent Circular dated 31.01.2017 and, therefore, there is now officially no such post or designation as Local Level Guides and that only one category of guides exists known as ASI Monument Guide who would be authorized to work in the centrally protected monuments and States maintained/ Administered/ Maintained by the ASI for which he is licensed and this policy would only be applicable to such guides who have a valid license granted by the specified authority as required under Rule 8(d) of the Rules, 1959. Rule 8 clause (d) of Rules 1959 are extracted below:-
"8. Prohibition of certain acts within monuments.--No person shall within a protected monument,--
(a) ......
(b) .....
(c) .....
(d) 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 round for monetary consideration except under the authority of, or under and in accordance with the conditions of a licence granted by, an archaeological officer;"
The submission of learned counsel for the respondents is that none of the petitioners have previously worked as Local Guides or Regional Guides nor do they have any license to operate as such issued by the authority specified under Rule 8(d) of the Rules, 1959. A reference may be made to the Guidelines of 21.01.2003 though withdrawn but nevertheless, it would help us to appreciate the claims of the rival parties. Local Level Guides was explained in the Notification of 2003 as primarily being conceived for such cities as are far away from well-established destinations or less frequented tourist destination spots where it may be difficult for the tour operators etc. to send guides with the groups/FITs. The Notification further provided that this level of local guide is conceived to serve as a source of creating employment opportunities in comparatively remote areas. These Guidelines were issued by the Government of India, Department of Culture, Archaeological Survey of India. Thereafter, came the Guidelines of 22.09.2011 issued by the Government of India, Ministry of Tourism. This Notification refers to another Notification of the Archaeological Survey of India dated 20.05.2010 whereby the Rules of 1959 have been amended. The amendment inserted the words "or the Additional Director General, Department of Tourism, Ministry of Tourism, Government of India to the extent of showing a visitor round" after the words "archaeological officer" in Rule 8(d) of the Rules, 1959. However, the Government of India, Ministry of Culture (Archaeological Survey of India) Notification dated 31.01.2017 has withdrawn the powers delegated to the Additional Director General, Ministry of Tourism, Government of India for framing and issuing of guidelines, for issuance of the guide licenses, approval and registration of qualified persons selected through due process by a committee constituted for the purpose to operate in the protected monuments of national importance. The Notification of 2017 further provides that there shall be only one category of guides known as ASI Monument Guide who would be authorised to work in the centrally protected monuments and sites maintained/administered/managed by the Archaeological Survey of India for which he is licensed. The license of such guides would be issued by those authorities specified under Rule 8(d) of the Rules, 1959.
The petitioners are residents of Agra and they are seeking license to operate as Local Level Guides in respect of protected monuments in Agra. When specifically asked, the learned counsel for the petitioner could not deny that well know monuments such as the Taj Mahal, Fatehpur Sikri, Itimad-ud-Daula Tomb, Agra Fort, etc., were all ASI protected monuments. Learned counsel could not state which were the monuments protected by the State Government of Uttar Pradesh nor is there any disclosure of such information in the writ petition. The Guidelines of 2014 provides that on successful completion of Local Level Guides training course, the successful candidates would be issued Local Level Tourist Guide License by the State Government/UT Administration/ District Administration and such license would be valid for a period of 10 years and in case any ASI protected monument falls within the area of operation, the Guide License being issued will be endorsed by the designated officer of Archaeological Survey of India who is custodian of these monuments. Therefore, upon a conjoint reading of the various guidelines issued from time to time by the Government of India, Ministry of Tourism or Ministry of Culture (Archaeological Survey of India), in a case of local protected monuments, the Local Level Tourist Guide License has to be issued by the State Government/ District Administration for the State of U.P. and where there are also ASI protected monuments within the area of operation, such license has to be granted by the ASI. Clause (d) of Rule 8 of the Rules, 1959 also contemplates the granting of such license by an Archaeological Officer.
We may also note here that by the operation of the Guidelines of 22.9.2011, Annexure-5 to the writ petition, all previous guidelines and qualifications issued by the Ministry of Tourism stood superseded. The learned counsel for the respondents has placed reliance upon a Division Bench judgment of this Court dated 17.07.2017 passed in Writ petition no. 36182 of 2014 (Mohd. Subhan Ahmed Vs The Union of India Thru' Min. of Tourism & Others) wherein the writ petition had been dismissed. The judgment also noted that Guidelines of 22.9.2011 only provide for Regional Level Tourist Guides in four categories, namely, General, General-Linguistic, Expert Guides and Expert-Linguistic. However, the Government of India, Ministry of Tourism in its Guidelines of 30.12.2014 in para 8 again has provided for issuance of Guide Licenses to Local Level Guides who successfully complete training courses. We are, therefore, of the view that the judgment in the case of Mohd. Subhan Ahmed (supra) being prior to the Guidelines of 30.12.2014 would be of no assistance to the respondents.
For similar reasons, another judgement in Writ petition 'C' no. 36378 of 2014 (Ritesh Shukla & Others Vs Union of India Thru' Secy. & Others) decided on 18.7.2014 also relied upon by the respondents would for the same reason be of no assistance to them.
The petitioners have relied upon a judgment of the Supreme Court in (2003) 7 SCC 309, B.P. Sharma Vs Union of India and Others which in our opinion would have no application to the facts of the present case since in that case the appellants therein were already working as Guides by profession and held identity cards as such.
Since, the petitioners claim to be residents of Agra as stated in para 9 of the writ petition and are interested in working as Guides over the protected monuments situate in the city of Agra in the capacity of Local Guides, in our opinion, they will have to apply for grant of license to the authority designated by the Archaeological Survey of India authorised to grant such licenses. There is nothing on record to show that the petitioners in the past have worked as Local Guide Licensees, therefore, the petitioners would be applying for new licenses.
We, therefore, dispose of this writ petition with a direction that the petitioners may apply individually for grant of license to the Superintending Archaeologist, Agra-Respondent no.4 or any other Officer of the Archaeological Survey of India who may for the time being have been designated as the Archaeological Survey of India Officer for grant of licenses. Whenever such an application is filed along with the certified copy of this order, before such officer or Respondent no.4, as the case may be, the concerned officer shall consider the claim of each of the petitioner on its own merit having regard to the qualifications and other conditions laid down in the Guidelines from time to time.
There shall be no order as to costs.
Order Date :- 15th February, 2019 Kirti