Migration to Pakistan for employment after exercising option for service under the Government of Pakistan constitutes 'migration' within the meaning of Article 7 of the Constitution, and such a person is not a citizen of India under Article 5.

( 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.

( 3 ) 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.

( 4 ) 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.

( 5 ) 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 ). 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".

( 6 ) 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.

( 7 ) THERE is a direct decision of a Division Bench of the Allahabad High Court in Aslam Khan v. Fazal Haque Khan, which is clearly against the