D. Basu, J.
1. This application under Article 226 of the Constitution is directed against the order served upon the Petitioner to quit India, dated the 2nd August, 1962, issued under Section 8(2)(o) of the Foreigners Act, 1946, which Is in Annexure M to the Petition.
2. The Petitioner's case, in short, is that he was born in India, In the district Birbhum, in 1925, where his parents have all along been living, in the ancestral home. The Petitioner was brought up and educated in India and was, in 1945, appointed a Clerk in the Office of the Chief Commercial Manager, B. and A. Railway. At the time of the Partition of India, he exercised his option for service in Pakistan, but his parents remained in India. In January, 1950, he came home from Saidpur, in Pakistan, where he was posted, and remained at home till the 10th of October, 1952. Thereafter, he temporarily returned to Saidpur with the intention of resigning his post, but, the Passport system having in the meantime been Introduced, the Petitioner had to come to India, next time, in March, 1953, on obtaining a Pakistani passport He had to return to Saidpur on receiving a call from his office but had to come home again IB September, 1959, on account of his mother's illness, and, for overstaying at home, the Pakistani authorities discharged him on 21-12-1959. 8. The Petitioner, next, avers that after the discharge from service, he surrendered his Pakistani passport and, as advised by the D. I. B. Suri, made an application for Indian citizenship under Section 5(1)(a) of the Citizenship Act, 1956, but that application has been rejected on the 7th July, 1962 (Ann. L), by the State Government and this has bean followed by the impugned order to quit India, which was served on the Petitioner on 26-8-1962.
4. The primary ground upon which the petitioner challenges the impugned order is that he is a citizen of India under Article 5 of the Constitution and that, accordingly, that citizenship can be terminated only by a determination made by the Central Government under Section 9(2) of the Citizenship Act, and that the rejection of his application under Section 5(1) by the State Government is not conclusive or binding.
5. It may be stated at once that it has now been established by several decisions of the Supreme Court that once a person is held to have been a citizen of India by virtue of Article 5, the question whether he has subsequently lost that citizenship can be determined only by the Central Government under Section 9(2) of the Citizenship Act, read with the Rules made thereunder. It should also be stated that on the averments in the Petition, the Petitioner has made out a case that he comes under Clause (a) as well as Clause (b) of Article 5.
6. But, even where Article 5 is prima facie attracted, a person cannot be held to have been a citizen of India at the commencement of the Constitution in a case where Article 7 is applicable. In short, Article 5 is subject to and controlled by Article 7, and so it has been held by the Supreme Court, Mobarak Ali v. State of Bombay, (S) 0043/1957 : 1957CriLJ1346 . The relevant portion of Article 7 is as follows:
'Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India'.
7. On the Petitioner's own showing, he exercised his option for Pakistan at the time of the Partition of India, which event took place between March, 1947 and the 15th of August, 1947. Article 7 would, therefore, be attracted If the fact of going over to Pakistan for service under that Government, after voluntarily exercising one's option, constitutes 'migration' within the meaning of Article 7. On this point, however, there is some amount of Judicial controversy.
8. There is a direct decision of a Division Bench of the Allahabad High Court in Aslam Khan v. Fazal Haque Khan, : AIR1959All79 , which is clearly against the contention of the Petitioner that movement to Pakistan for employment or in connection therewith would, in no circumstances, constitute a 'migration' within the meaning of Article 7. In that case, it was held that where a Government Servant, employed under the Government of India, exercised his option for transferring his service to Pakistan and went over to that Dominion for that purpose, his removal cannot be construed as merely temporary. Of course, it may be taken as fairly settled that movement from one Dominion to another for the purpose of a casual employment or business would not constitute 'migration', inasmuch as 'migration' involves the intention of removal 'with the intention to reside permanently' Shanno Devi v. Mangal Sain, : 1SCR576 ; Abdul Sattar v. State of Gujarat. Cr. Ap. : AIR1965SC810 .
9. The question is whether in the case of option relating to Government service, such Intention may be predicated. I am in respectful agreement with the view taken by the Division Bench of the Allahabad High Court in the case just cited. In the words of Bhargava, J. in that case-
'When the appellant opted for Pakistan, he clearly did so with the object of residing in Pakistan and continuing in service under the Government of Pakistan ... At that time, persons opting were given the choice either to opt finally or to opt provisionally and give their decision within six months. The appellant chose to make a final option for Pakistan. The mere fact, therefore, that he later decided to come back in February, 1948, cannot be construed as showing that his option for Pakistan was only temporary or provisional and that he intended to continue to be a citizen of India and to come back to India.'
10. The question of intention has to be determined with reference to the point of time when the person removed to the territory of the other Dominion. Hence, the fact that he has returned subsequently after some time is not material. In the case of Government service, the intention to reside for an indefinite time in the territory of employment is obvious, inasmuch as service under the Government has certain incidents which are known or supposed to be known to every employee. Whether in India or in Pakistan, a Government servant may normally expect to continue in service till superannuation, which takes place some 30 years after the date of appointment. Hence, if an employee exercises his option to serve in another Dominion, in the first year of his service, his evident intention is to continue to reside in that Dominion for some 29 years, if not more. The question of allegiance also becomes material, in the case of employment under the Government, which may not normally arise in the case of service under a private employer, and that makes the option more deliberate. The option, in the instant case, as in the Allahabad case, was made deliberately and finally. The statement in para. 3 of the Petition that, at the time of exercising the option, the Petitioner supposed that after the option, he would be posted somewhere in the District of Murshidabad, which was close to his home, and was likely to be assigned to Pakistan, also discloses his real intention, namely that he would serve under the Government of Pakistan till the normal end of his service, and he would have done that unless he was discharged from service in Pakistan in 1960 (Ann. H), that is, after over thirteen years' service in that Dominion. The fact that his parents continued in India matters little in determining the intention of the Petitioner when he exercised his option, for he might have had the intention of removing his parents subsequently at some convenient time and, further, for the purpose of 'migration' under Article 7 of the Constitution, it is not essential that one must also remove his parent. The fact that he later married a girl in India is also immaterial for determining his intention at the time of option inasmuch as he was not married, when he had exercised his option. Even assuming that he preferred to keep his wife at his ancestral home in India, after marriage, there was nothing to prevent him from taking his wife to Pakistan at any time subsequently, had he continued in the service there. As I have already said, the normal duration of service under the Government being for a fairly long period of a man's life, and such service being subject to various rule of discipline, there was nothing to experiment upon it. When the Petitioner did not revoke his option within the period of six months, It must be held that he made a deliberate choice of residing in Pakistan permanently, or for an indefinite period of time, and it cannot he held that he went over on a 'casual' business or for a 'temporary' period.
11. Mr. Ali, on behalf of the Petitioner, how-ever, relies upon the Patna case of Zaki v. State of Bihar, : AIR1953Pat112 . In that case, the question was whether it could be said that a person had 'left' India within the meaning of Section 2(d) of the Administration of Evacuee Property Act, 1950, and it was held that where a person had not abandoned his 'Indian domicil', he could not be said to have 'left' India, merely, because he went over to Pakistan, after exercising his option, leaving his wife and children in India. Further, Article 7 of the Constitution was referred to only incidentally, by one of the two Judges and the consideration relating to option for service under an alien Government which weighed with the Allahabad Bench was not referred to at all in the Patna case, which was also earlier in point of time.
12. Mr. Ali next relies upon an unreported decision of Banerjee, J., of this Court, sitting singly, in C. R. No. 4643(W) of 1960 (Cal), Abdul Kaseem v. Supdt. of Police. In this case, Banerjee. J., of course, held that movement to Pakistan after exercising option tor service under the Government does not constitute 'migration' under Article 7 of the Constitution, where the person left his properties and his wife and children in India. No decisions were, however, referred to by his Lordship and the implications of exercise of the option do not appear to have been analysed. I am also relieved of the obligation to refer the matter to a Division Bench on account of my difference of opinion with Banerjee, J., in view of the observations of the Division Bench, sitting in appeal from the decision of Banerjee, J., in another case Abdul Halim v. Sub-divisional Officer, F. A. No. 414 of 1962: : AIR1965Cal160 (Mandamus Appeal), which are self-explanatory:
'He opted for Pakistan in 1947, and remained there for six years. He came back to India under a Pakistani passport. He also applied for grant of Indian citizenship under Section 5(1)(a) of the Citizenship Act, 1955. That application was dismissed in due course. All these facts show prima facie that the appellant is not a citizen of India, and, is, therefore, a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946.'
13. In that case, Banerjee, J., himself had rejected, in limine, an application under Article 226, having facts similar to those in the case before me, and that order was upheld by the Division Bench with the foregoing observation, per Bachawat, J.
14. In my opinion, Article 7 of the Constitution applies in this case, and the Petitioner cannot, therefore, be deemed to be a citizen of India under Article 5. Section 9(2) of the Citizenship Act is not also applicable, for the same reason.
15. This application must, accordingly, fail. In view of the fact, however, that from the counter-affidavit filed on behalf of Opposite Party No. 2 it appears that the Petitioner has moved the Central Government in revision under Section 15 of the Citizenship Act against the order of rejection of his petition for registration under Section 5, and that revision proceeding is still pending, it would not be proper to allow the impugned order to be operative until the completion of that proceeding. It appears from the papers on the record that the materials called for by the Central Government from the State Government to enable it to dispose of the Revision Petition were furnished by the latter about one year ago. In matters like this, one might reasonably expect a speedier disposal.
16. In the result, therefore, this Rule is discharged, without any order as to costs. But the in terim order granted by this Court on September5, 1962, shall continue to be operative until theresult of the Revision petition submitted by thePetitioner under Section 15 of the Citizenship Act iscommunicated to the Petitioner.