ORDER
1. The petitioner who has passed the Higher Secondary Examination (Standard XII) with Science Stream in the month of March 1985 has filed this petition and prayed for a writ and/or direction or order directing the respondents to give admission to the petitioner for Instrumentation and Control Branch in the reserved quota reserved for Socially and Educationally Backward Class (hereinafter referred to as ‘S.E.B. Class’). The petition has been subsequently amended and a further prayer has been made for a Writ, direction or order quashing and setting aside the order dt. 23-1-1986 (Annexure ‘h’) whereby respondent No. 3 has held that the petitioner did not belong to S.E.B. Class And, therefore, cancelled the certificate (Annexure ‘a’) issued by the Social Welfare Officer, Ahmedabad District.
2. There is no dispute that if the petitioner is found to belong to the S.E.B. Class, he will get admission in the reserved quota for Instrumentation and Control Course at Bhavnagar for which he has shown his first preference. The question that arises for my consideration, therefore, is whether the benefit of S.E.B. Class/caste is available to the petitioner in the facts and circumstances of the case.
3. In order to decide this issue, it is necessary to reproduce short facts. The petitioner has averred that he belongs to Hindu Nai Community which is recognised as S.E.B. Class by the Baxi Commission. On the aforesaid basis the petitioner applied for admission in the Instrumentation and Control Branch of Engineering on 17-1-1985 and has produced along with his admission application a Certificate dt. 16-1-1986 (Annexure ‘A’) issued by the Social Welfare Officer, Ahmedabad District, to the effect that petitioner Shri Rajendrakumar, son of Shrinivas Satyanarayan, belongs to S.E.B. Class. The petitioner was called for interview on 27-12-1985. According to the petitioner, he was given merit number for various groups mentioned in paragraph 3 of the petition. He has further averred that after the interview he was given admission in the Instrumentation and Control Branch in Bhavnagar College in the reserved quota of 10 per cent. Thereafter, when he went to pay his fees, respondent No. 1 told him that he belongs to Uttar Pradesh and, therefore, he is not entitled to get admission in the reserved quota for the Instrumentation and Control Course and, therefore, he was required to clarify the position and his admission was kept pending. Ultimately the petitioner tried to approach the concerned authorities, but could not succeed and, therefore, he has filed this petition.
4. During the pendency of this petition, by an order dt. 23-1-1986 (Annexure ‘H’) the Director of Social Welfare Department (respondent No. 3) has cancelled the certificate (Annexure ‘A’) granted to the petitioner by the Social Welfare Officer. Thereafter the petition was amended and certain facts were brought on record, by the petitioner. In the amendment, the petitioner has contended that at entry No. 76 of Annexure ‘I’ to the Resolution dt. 1-1-1978 (Annexure ‘I’ to the petition) a class of persons, either Hindus or Muslims, having traditional business of hair cutting have been accepted by the Bakshi Commission as belonging to S.E.B. Class/caste. The history of the petitioner’s family, as disclosed in the petition, is that since 1928 to 1934 Lalbahadur (grand father of the present petitioner) and his (Lalbahadur’s) father Mathuraprasad were residing and performing their traditional business of Nayi in Ahmedabad. Mathuraprasad died in year 1935 in U. P. and thereafter Lalbahadur came permanently to reside in Ahmedabad with his family in year 1940, and since then he is residing and performing his traditional business in Ahmedabad at No. 3241, Khas Bazaar, opposite Karanj Police Station, Ahmedabad. Municipal tax bills have also been produced. Further fact is that the petitioner and his further and grandfather are domiciled in Ahmedabad. It is not disputed that the petitioner’s father Satyanarayan was born at Ahmedabad and the petitioner has taken his education at Ahmedabad. Lastly, by the amendment the petitioner has also produced a duplicate of the Certificate issued by the Inspector of Shops and Establishments under the Bombay Shops and Establishments Act, 1948. The said Certificate shows that from year 1963 shop runs under the name and style of Hamam Hair Cutting Saloon and owned by Lalbahadur Mathuraprasad (i.e. grandfather of the petitioner) has been registered under the said Act. According to the petitioner, not only that his family belongs to Nayi community, but his grandfather is still doing the traditional business of Nayi at the aforesaid shop situated opposite Karanj Police Station, Three Gates, Ahmedabad.
5. From the aforesaid facts, the following position emerges:
(1) The petitioner’s family had migrated from Uttar Pradesh and settled in Gujarat at Ahmedabad, since 40 years.
(2) The petitioner’s grandfather is still doing the traditional business of Nayi and has a Hair Cutting Saloon in Ahmedabad at least since 1963.
(3) The petitioner’s father was actually born in Ahmedabad.
(4) The petitioner has taken his education in Ahmedabad though his mother had gone to Uttar Pradesh at the time of his delivery (i.e. the petitioner had been born in Uttar Pradesh).
It is, therefore, necessary to consider, as stated earlier, whether the family of the petitioner who admittedly belongs to Nayi community can be considered to be a family belonging to S.E.B. Class/caste. It also cannot be disputed that the petitioner has chosen Ahmedabad as the place of his domicile. The petitioner’s father joined Government service in year 1969 in the Post and Telegraph Department.
6. With the aforesaid facts, I will now consider the Government Resolution dated 1-4-1978 (Annexure ‘I’ to the petition) which confers certain benefits to the persons belonging to S.E.B. Class. For this purpose the Government appointed a Commission consisting of a retired Judge of this High Court, popularly known as Bakshi Commission, to examine and recommend the persons of castes/classes/groups falling under S.E.B. Class. The Commission has recommended in all 82 castes/classes/groups mentioned in Annexure ‘I’ to the said Resolution to be S.E.B. Class for the purpose of Arts. 15(4) and 16(4) of the Constitution of India. The said recommendation of the Commission has been accepted by the Government by the said Resolution. The operative portion (i.e. para 2) of the said resolution reads:
“2. Government is pleased to direct that 82 castes/classes/groups mentioned in the accompanying Annexure I should be considered as Socially and Educationally Backward for the purposes of Art. 15(4) and Art. 16(4) of the Constitution of India.”
Annexure ‘I’ to the said Resolution shows the castes/classes and groups recommended by the Bakshi Commission. Entry No. 76 of the said Annexure ‘I’ which is relevant for our purposes reads:
“76. Valand, Nayi and Barber (Hindu); Hajam, Khalipha (Muslim).”
It may be noted that this entry cannot be said to relate only to a particular caste because both Hindus and Muslims belonging to a Class or Group have been included therein. In order to get the benefit of this entry, a class of persons or a group of persons must be either Valand, Nayi or Barber (Hindu); Hajam or Khalipha (Muslim). In my opinion, entry No. 76 is not an entry relating to a particular caste but it relates to a class of persons of any community, either Hindu or Muslim whose family is socially and educationally backward on account of its profession. It is a known fact, that a profession of Barber or Hajam is considered to be a profession which is generally adopted by the lower class of people which is considered to be socially and educationally backward by the Bakshi Commission. It cannot, therefore, be disputed that the petitioner comes from a family of Socially and Educationally Backward Class/caste and his grandfather up to this date is carrying on the profession of Nayi and has a Barber’s shop near Karanj Police Station in Ahmedabad.
7. Mr. M. A. Malik learned Assistant Government Pleader, has raised a contention that the petitioner may be belonging to Nayi or Barber community, but he belongs to Uttar Pradesh and, therefore, the benefits of Government Resolution of 1978 cannot be made available to him. This argument of Mr. Malik requires a little close consideration. By the said Resolution dt. 1-4-1978, 82 castes/classes/groups have been notified to be considered as belonging to S.E.B. Class both for the purpose of Arts. 15(4) and 16(4) of the Constitution of India. In this petition, we are concerned with Art. 15(4) of the Constitution only. It reads:
“15(4). Nothing in this Article or in Clause (2) of Art. 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes.”
By the resolution of 1978 the State Government has made special provision for the advancement of the persons belonging to S.E.B. Class as well as Scheduled Castes and Scheduled Tribes mentioned in Annexure ‘I’ to the said resolution.
8. In Para 3 of the said resolution certain concessions mentioned in Annex. II to the resolution have also been granted to the members of the 82 castes/classes/groups mentioned therein within the limits of available State resources. Para 4 of the resolution shows that agricultural labourers, rural artisans, marginal farmers, unorganised and unprotected urban casual labourers and other persons belonging to Economically Backward Classes who are self-employed, such as hand-cart pullers, Drivers of pedal rickshaws and auto-rickshaws (and not owners of these rickshaws), drivers of horse or camel drawn vehicles and of cattle drawn carts, cattle breeders, fishermen and small shopkeepers whose family’s income from all sources does not exceed Rs. 4,800/- per annum, should be considered as members of the Economically Backward Classes and they should be granted various benefits as shown in Annexure ‘III’ to the resolution within the limit of available State Resources.
9. A bare look at Annexure ‘I’ to the Resolution of 1978 shows that some of the entries relate to certain castes and other entries to certain classes/groups, e.g. entry No. 78 which relates to “Vansfoda, Vansfodia, or Vanza”. It cannot, therefore, be said that under the said resolution only persons belonging to Scheduled Castes and Scheduled Tribes have been included, but persons who, are employed in certain profession or are doing manual labour have also been included.
10. In the light of what is referred to above, I have to consider whether the family of a Nayi of Uttar Pradesh who has migrated to Gujarat before the Constitution of India came into force can, be said to be a family not belonging to Gujarat? In other words, whether the family of the petitioner and the petitioner himself can be said to be the inhabitants and domicile of Gujarat to whom the benefits of the resolution of 1978 will be available?
11. Mr. Malik has drawn my attention to the definition of word “Domicile” at page 105 from the Book “Words and Phrases under the Constitution” by K.P. Chakravarti, 1986 Edition, under the caption “Citizenship by domicile”, which is as under:
“The term ‘domicile’ is not defined in the Constitution. Every person is born with a domicile of origin. In other words, every person has a domicile at his birth, which is called domicile of origin, this continues to prevail until he acquires a new domicile Central Bank of India Ltd. v. Ram Narain, AIR 1955 SC 36.”
The further observations from the said book to which my attention is drawn by Mr. Malik are as under:
” …………. The domicile of choice is acquired by actually settling iii another country with the intention of permanently residing there. The onus to prove that a person has changed his domicile of origin lies upon him and for this purpose,. the course of his conduct both before and after the material time is relevant. Kedar Pandey v. Narain Bikram, AIR 1966 SC 160 (163-164).”
The paragraph below the aforesaid paragraph, to which Mr. Malik has not referred to, reads:
“The domicile of a minor is that of his father at the time of his birth, and in the case of a married woman is that of her husband. (Dicey, Conflict of Laws, 6th Edn. p. 44).”
So far as the case of Kedar Pandey (supra) is concerned, it was in respect of the election of the Bihar Legislative, Assembly from Ramnagar Constituency in Champaran District. The crucial question that arose for consideration before the Supreme Court was whether Narain Raja had acquired the domicile of choice in India to entitle him to contest, the election of the Legislative Assembly, The material observations made by the Supreme Court in that behalf are as under:
“The law on the topic is well-established but the difficulty is found in its application to varying combination of circumstances in each case. The law attributes to every person of birth a domicil which is called a domicil of origin. This domicil may be changed, and a new domicil, which is called a domicil of choice, acquired; but the two kinds of domicil differ in one respect. The domicil of origin is received by operation of law at birth; the domicil of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. The domicil of origin is determined by the domicil, at the time of the child’s birth, of that person upon whom he is legally dependent. A legitimate child born in a wedlock to a living father receives the domicil of the father at the time of the birth; ………. As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing to reside there indefinitely. For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending to it. If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material. The state of mind, or animus manendi which is required demands that the person whose domicil is the object of the inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or, in effect, he should have formed a deliberate intention to settle there.”
12. In the instant case it is proved beyond doubt that the petitioner’s father was born and resided and took Government Service in Gujarat and, therefore, he has acquired domicil of Gujarat by birth as well as by choice and, therefore, the domicil of the son, i.e. minor petitioner, will automatically be that of his father at the time of his birth. It is practically settled position of law that ‘domicile’ means, one’s connection with the territory, not connection with the membership of the community which is at the root of the notion of citizenship or nationality.
13. At the time of the coming into force of the Constitution of India, the petitioner’s father was a domicil of Gujarat both by birth as well as by choice. He was in Government service and, therefore, by no stretch of imagination it can be said that the petitioner who is minor was not a domicil of Gujarat where he has taken his education and is residing soon after his birth.
14. However, after the decision of the Supreme Court in case of Dr. Pradeep Jain v. Union of India, AIR 1984 SC 1420, the question of dornicil is not very material, but the only thing that has some connection or bearing with the issue is as to what was the permanent residence of the petitioner. It is proved beyond doubt that the family of the great-grandfather of the petitioner had migrated to Gujarat from Uttar Pradesh, and thereafter, the petitioner’s grandfather had settled in Gujarat since last’40 years, had opened a Barber’s shop in Ahmedabad, and is at present also having the said shop; the petitioner’s father is in Government service and the petitioner has taken his education in Gujarat at Ahmedabad. It cannot, therefore, be disputed that the petitioner belongs to Gujarat. Even if the great grandfather of the petitioner had migrated to Gujarat from Uttar Predesh which might be the origin of the family, since last three generations the petitioner’s family is residing in Gujarat and has merged with the mainstream of Gujarati people and culture and, therefore, the benefits of the Government Resolution of 1978 cannot be denied to the petitioner. In my opinion, the case of the petitioner, therefore, fairly and squarely falls within the ambit of the Resolution of 1978, and his case is covered under Entry No. 76, being a Nayi, and is I entitled to the benefits available under the said resolution.
15. In the result, the petition is allowed. The order dt. 23-1-1986 (Annexure ‘H’) of respondent No. 3 – Director of Social Welfare – cancelling the Certificate dt. 16-1-1985(Annexure ‘A’) issued by the Social Welfare Officer to the petitioner is hereby quashed and it is declared that the petitioner is entitled to get admission in the reserved quota of S.E.B. Class in the Engineering College, Bhavnagar in the Instrumentation and Control Course, and writ may be issued directing the respondents to give admission to the petitioner in the said College in the Branch taking the Instrumentation and Control Course in the reserved quota for S.E.B. Class. Rule made absolute to the aforesaid extent with costs.
16. Petition allowed.