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2014 DIGILAW 62 (RAJ)

Radhey Shyam Pareek v. State of Rajasthan

2014-01-06

AMITAVA ROY, VEERENDR SINGH SIRADHANA

body2014
JUDGMENT 1. - The validity of Clause 10(xxxii) of the Rajasthan Tourism Trade (Facilitation and Regulation) Rules, 2010 (for short, hereafter referred to as 'the Rules') has been impeached in the instant petition, to be ultra vires the Constitution of India as well as the other provisions of the Rajasthan Tourism Trade (Facilitation and Regulation) Act, 2010 (for short, hereafter referred to as 'the Act'). By the impugned provision, a ceiling of 65 years has been enjoined to be the maximum age for a Guide to act as such, under the Rules. 2. We have heard Mr. Bipin Gupta, learned counsel for the petitioner and Mr. Dinesh Yadav, learned Additional Advocate General for the State-respondents. 3. The pleaded case of the petitioner is that he has been holding a license from the Tourism Department of the State to act as a guide, on completion of the requisite training. He has claimed to be in this occupation since 1960, and that, over the years, has gained immense experience therein. Apart from contending that he is a highly qualified person, as well ideally suited to act as a guide, the petitioner has asserted that on the completion of his training in the year 2002, the Tourism Department had issued a license to him in the same year, facilitating his activities in the said capacity, and his license was last renewed in the year 2010 upto 31.12.2012. 4. According to the petitioner, on the expiry of the period of license as above, he applied for the renewal thereof and also submitted his license card No. 171 before the concerned respondent-authority for the said purpose. He has alleged that the respondent-Department however, did neither renew his license nor did otherwise respond to his request. However, after he had submitted all documents alongwith his health certificate, date of birth certificate etc. for consideration of his request for renewal of his license vide his letter dated 27.6.2013, he received a letter dated 29.7.2013 issued by the Tourism Department, whereby he was informed that his license cannot be renewed as he had meanwhile attained the age over 65 years, and that thus, he was ineligible for such renewal. for consideration of his request for renewal of his license vide his letter dated 27.6.2013, he received a letter dated 29.7.2013 issued by the Tourism Department, whereby he was informed that his license cannot be renewed as he had meanwhile attained the age over 65 years, and that thus, he was ineligible for such renewal. Contending in essence that the restriction of upper age limit of 65 years to act as a guide, as prescribed by clause (xxxii) of the Rule 10 of the Rules, amounts to an unreasonable restriction in contravention of the fundamental right to equality under Article 14 of the Constitution of India and to carry on any profession as guaranteed by Article 19(1)(g) thereof, the petitioner has mounted the challenge. 5. In reply, the respondents have asserted that Rule 10(xxxii) of the Rules is valid constitutionally and otherwise, as a tourist guide has to be essentially medically as well as physically fit, amongst others, primarily for his/her safety. According to them, the petitioner's license, he being aged 73 years, is not renewable in terms of the mandate of Rule 10 (xxxii) of the Rules. The respondents have underlined that the State Government is competent to impose restrictions and issue instructions inter alia for the safety of the tourist guide(s). They have asserted that in the backdrop of this perspective, the ceiling of 65 years, as enjoined by Rule 10(xxxii) of the Rules can, by no means, be faulted with. 6. Mr. Gupta, while abiding by the pleaded assertions, has insistently urged that the impugned provision of the Rules ought to be declared ultra vires, as attainment of 65 years per se does not, in any view of the matter, signify that a person is rendered incapacitated, disabled, inefficacious or unworthy of being a tourist guide. There being no nexus with this ceiling of age with the purpose sought to be achieved thereby, the impugned provision does not meet the twin tests of intelligible differentia for reasonable classification and a correlation with the purpose sought to be achieved thereby, he urged. Additionally, as the prohibition imposed on the vocational pursuit as a guide by prescribing the upper age limit of 65 years is per se unreasonable, it is violative of Article 19(1)(g) of the Constitution of India, and is thus, liable to be adjudged null and void. Additionally, as the prohibition imposed on the vocational pursuit as a guide by prescribing the upper age limit of 65 years is per se unreasonable, it is violative of Article 19(1)(g) of the Constitution of India, and is thus, liable to be adjudged null and void. To buttress his arguments, Mr.Gupta has placed reliance on the decision of the Apex Court in B.P. Sharma v. Union of India & Ors., AIR 2003 SC 3863 . 7. In reply, Mr. Yadav has argued that having regard to the nature of the works required to be undertaken by a tourist guide on daily basis and the toll of time on his or her health and faculties, the ceiling of age of 65 years, as prescribed by Rule 10(xxxii) of the Rules, is reasonable and valid, and thus, the plea of contravention of Articles 14 & 19(1)(g) of the Constitution of India merits rejection in limine. The upper age limit, having been predicated by the rule making authority on a conscious consideration of all relevant aspects, the bald and specious contention of discrimination and denial of fundamental right to carry on business is wholly misconceived, he urged. According to the learned Additional Advocate General, Rule 10(xxxii) of the Rules is constitutionally valid and having regard to the scheme of the Act and the Rules framed thereunder, the instant assailment ought to be negated. 8. We have traversed the pleaded facts and have examined as well the arguments advanced. 9. Rule 10(xxxii) of the Rules, which admittedly, forms the foundation of the rejection of the petitioner's request for renewal of his license, as communicated by the letter dated 29.7.2013, is extracted hereinbelow:- "(xxxii) The Guide shall retire on attaining the age of 65 years and the identity card issued to him/her shall have to be surrendered to the Department of Tourism, Government of Rajasthan. However, an exemption can be granted by the prescribed authority after approval of the Commissioner up to three years after a personal interview of the Guide and on producing a fitness certificate issued by a Medical Jurist." 10. However, an exemption can be granted by the prescribed authority after approval of the Commissioner up to three years after a personal interview of the Guide and on producing a fitness certificate issued by a Medical Jurist." 10. The above quoted clause is one of the general conditions for all guides, as set out in Rule This condition unequivocally imposes prohibition on issuance of the identity card to a guide, who had attained the age of 65 years, subject however, to an exemption in that regard, that can be granted by the prescribed authority after the approval of the Commissioner upto three years, after a personal interview of the guide and on producing a fitness certificate issued by a Medical Jurist. The petitioner, on the date of the rejection of his request for renewal of his identity card, however was aged above 68 years, and thus, was within the coils of the impugned clause. 11. The Hon'ble Apex Court, in B.P. Sharma (supra), was seized with an identical challenge, stemming from a similar prohibition on attainment of age of 60 years (which, during the pendency of the lis, was enhanced to 65 years), traceable to Rule 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 framed under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The offending clause to the above effect rendered renewal of card/license of a guide on attainment of age of 60 years, impermissible. On a scrutiny of the scheme of the Act and the Rules, their Lordships did not only conclude that the fixation of upper age limit was beyond the scope of Sections 18 & 38 of 1958 Act and Rule 8(d) of 1959 Rules, it was held as well to be violative of Article 19(1)(g) of the Constitution of India. Their Lordships were of the view that a guide professed an independent profession, and that, neither there was any relationship of master and servant between him/her and the Government of India nor there did exist any contractual relationship between the two, and that thus, ordinarily there would be no good reason for the State to completely prohibit, at its choice, the pursuit of a private profession or self employment, on attaining a certain age. Responding to a similar plea of the respondents therein, that the job of a guide requires a lot of physical stamina to undertake the same, in course whereof, he/she would have to climb steps and walk long distances in the monuments etc., for which, the upper age limit of 60 years was a valid prescription, their Lordships observed that as the occupation of a guide was an independent profession, and young and old guides are available, it would be for the visitors to choose, whom to engage, and at times, a more matured and elder guide could be more informative and make the tour more interesting. Their Lordships commented that in a private profession of a guide, it would be better left to the consumer of the service to make his own choice, more particularly, as the visitors come to see the places of interest, not because of the energetic guides, but due to importance of a monument, its beauty, historical background or things of that kind. Their Lordships propounded that regulatory measures may be for better efficiency, conduct and behaviour in public interest, but ordinarily, the same cannot prohibit a person totally debarring him from carrying on his profession at an age chosen by the Government, unless there are special reasons for it. Referring to Article 19(1)(g) of the Constitution of India, and more particularly, the phraseology "in the interest of general public", encompassing notions of better health and morals, economic stability of the country, equitable distribution of essential commodities at fair prices, maintenance of purity in public life, prevention of fraud etc., it was held that the restriction of age, as a decisive factor for issuance/renewal of identity card to a guide, was not a reasonable one. It was held that tourists are attracted by the place, its beauty, importance and historical background etc., and that, no harm would be caused to the general public if young and old people both profess their profession of guides and are available for service to them. The decision refusing renewal of the identity card of the appellant therein, on the ground of age, was interfered with. 12. The decision refusing renewal of the identity card of the appellant therein, on the ground of age, was interfered with. 12. Having regard to the striking identicalness of the contextual facts and the offending provision involved as well as the emphatic enunciation of the legal principles culminating in the ultimate repudiation of the prohibitive determinant of age qua issuance/renewal of the identity card/license to a guide, we are of the unhesitant opinion that the instant challenge to Rule 10(xxxii) of the Rules merits acceptance. 13. Noticeably, the Hon'ble Apex Court in B.P. Sharma (supra), on an elaborate analysis of the pleas, as asserted by the respondents therein, had rejected the same, principally on the anvil of Article 19(1)(g) of the Constitution of India, holding the occupation of a guide to be an independent and self employed profession, and not subject to any master servant relationship vis-a-vis the Government. The materials on record as well as the scheme of the Act and the Rules, in our estimate, lacks in persuasion, to adopt any other view. The ceiling of age, as enjoined by Rule 10(xxxii) of the Rules, is thus, adjudged to be invalid. It would however, be open to the Prescribed Authority to insist for a personal interview of the guide and production of a fitness certificate issued by a Medical Jurist, before taking final decision with regard to issuance and/or renewal of his/her identity card, so as to ensure that the person concerned is overall suited to undertake the assignment of a guide. 14. The petition is thus allowed to the extent indicated hereinabove. The stay application stands disposed of.Writ Petition allowed to above extent. *******