TMI Blog2003 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... the places. They charge for rendering such services. In this background it appears that it was thought necessary to regulate this profession and a need also seems to have been felt to issue identity cards to those persons who may act as authorized guides and charge fee for the service rendered. So as the guides may be presentable, well-up in their knowledge and their conduct towards the tourists may be cultured and ethical, certain conditions have been laid down including one relating to holding a test which any of such person is required to pass before being entitled to be issued an identity card as a guide. Detailed instructions in that connection have been issued in 1979 by the Ministry of Tourism and Civil Aviation, Department of Tourism, Government of India. A few of the conditions are that they should charge their remuneration only at the rates fixed by the Department of Tourism; they would not solicit tips or other material gains from the tourists; they would maintain good conduct and behaviour; they would carry out the assignments as may be made by the Department of Tourism for conducting any tour or site seeing etc. and they are also supposed to undergo written and oral ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly physical or manual. The improvement of general health standard is no ground for not fixing the upper age limit. In most of the employments (Government as well as private), the persons are retired at the age of 58. It is true that there is no such thing as retirement in a profession. In that sense a private tourist guide, who does not bother about the Government's approval, is free to carry on his profession as long as he wants. There would be no age bar. However, the considerations are different when it comes to the approval of guides by Government. A guide who has crossed the age of sixty years may not develop any physical handicap. But if the younger guides are available they would be more energetic and would ultimately be of greater assistance to the tourist. The validity of the age limit prescribed by clause 17 cannot be tested merely on the basis of the physical fitness of a particular guide. Young, energetic guide would certainly promote better tourism business in comparison. I, therefore, hold that clause 17 is neither arbitrary nor unreasonable. The Court then observed in the case of Virendra Kumar Chadha (supra) that it was in respectful agreement with the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for alms; or (f) violate any practice, usage or custom application to or observed in the monument; or (g) bring, for any purpose other than the maintenance of the monument, (i) any animal, or (ii) any vehicle except in areas reserved for the parking thereof. The main stress is on clause (d) of Rule 8 which provides that no person shall show a visitor around for monetary consideration except under the authority of, or under and in accordance with the conditions of a licence granted by, an archaeological officer. On the basis of the above provisions, it is sought to be explained on behalf of the respondents that by statutory rules framed under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, the profession of such persons who may take visitors around for monetary consideration can be regulated by laying down conditions of a licence granted for the purpose by an archaeological officer. An Archaeological Officer is defined under Section 2(c) of the Act : 2(c): Archaeological officer means an officer of the Department of Archaeology of the Government of India not lower in rank than Assistant Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 archeological officer. The purpose of rule 8(d) is clear that the place may remain protected, be maintained and be kept 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... master and servant between them nor there exists any contractual relationship. No benefit is conferred nor any emolument etc. is payable to the guides by the Government. No kind of protection nor any other benefit is provided to them by the Government. This is as much a matter of self-employment and private profession, as many others. In absence of any such relationship as that of master and servant or contractual in nature, ordinarily there would be no good reason for the State to completely prohibit at its choice, to carry on a private profession or self-employment, on attaining a certain age. The High Court expressed its agreement with an earlier decision of Allahabad High Court in the case of Virender Kumar Chadha, (supra) which in turn expressed its agreement with reasons given in the case of J.K. Agarwal, (supra), a passage from which has been quoted earlier. In the case of J.K. Agarwal, (supra), a distinction has been sought to be made between the profession of the tourists guides and the professions like that of lawyers and doctors and it has been observed that while the latter are primarily concerned with mental skills and mental faculties the former relates basically to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our in the public interest, but ordinarily it cannot prohibit a person totally debarring him from carrying on his profession at an age chosen by the Government unless there may be special reasons for it. The right which is guaranteed to all citizens under Article 19(l)(g) of the Constitution of India is to practice any profession or to carry on any calling, trade or business. Clause (6) of the article 19(1) however, places a restriction that nothing would prevent the State from making any law imposing reasonable restrictions in exercise of the right in the interest of general public Sub-clauses (i) and (ii) further provide that professional and technical qualification as may be thought necessary for practicing the profession can always be prescribed and exclusion of carrying on of any calling, trade or business etc. is also envisaged which is also carried on by a State or by a Corporation owned and controlled by the State. Subject to above noted restrictions the valuable right as provided under Article 19(l)(g) is available to all the citizens who are free to choose any trade, business, calling or profession etc. It obviously, also includes the manner and terms in which they wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. v. M/s Bhanamal Gulzarimal Ltd. and Ors.), for maintenance of purity in public life, prevention of fraud and similar considerations. On consideration of a catena of decisions on the point, this Court, in a case reported on [1998] 8 SCC p. 227, M.R.F. Ltd. v. Inspector, Kerala Government and Ors., has laid certain tests on the basis of which reasonableness of the restriction imposed on exercise of right guaranteed under Article 19(l)(g) can be tested. Speaking for the Court, Saghir Ahmad, J. (as he then was), laid such considerations as follows : (1) While considering the reasonableness of the restrictions the court has to keep in mind the Directive Principles of State Policy. (2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life social philosophy of the Constitution, prevailing conditions and the surroundi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) that it may promote tourism is far fetched and unrealistic. We have already considered this object sought to be achieved by placing the restriction of age. The tourists are attracted by the place, its beauty, importance and historical background etc. and not because of the more energetic guides. No harm is going to be caused to the general public if young and old people both are professing their profession of guides and are available for the service to the tourists. It is always better, nay, necessary too that the freedoms as guaranteed under the Constitution should be allowed to be enjoyed by the citizens to the fullest extent without putting shackles of avoidable cobweb of rules and regulations putting check and restrictions in the enjoyment of such freedoms. We find no reasonable ground to have put a condition of age bar, whereafter a guide may not be allowed to continue his profession as it does not fall in any of such categories which may justify placing such restrictions completely debarring him to act as guide. Curtailment of freedom must have some strong reasons and real nexus with the purpose sought to be achieved. It would not be imposed merely because it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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