G. MEHROTRA J.: This is a petition under Art. 226 of the Con­stitution of India praying for the following re­lief: (1) Writ in the nature of Mandamus or Certiorari or other appropriate writs or directions directing the respondents, who are the State of Assam, the Director of Public Instruction, Assam, the Additional Assistant Director of Public In­struction, Assam, the Secretary, Middle School Leaving Certificate and Scholarship Examina­tion Board, Assam and the Secretary, Middle School Examination Board, Assam; (2) to can­cel or to recall, forbear from acting and giving effect to the orders contained in Memo No. 4030 M.S. lS/54 dated Shillong, 3-9-1954, and Memo N - 11062 M.S. IS/1/54, dated Shillong, 1-10-1954 and other connect­ed orders. (2) The petitioner is the elder brother of one Sukrit Ch. Nag, who lives under his guardian­ship and is a member of the joint family of the petitioner. The petitioner states that he was formerly an inhabitant of the district of Sylhet which was part of Assam before the partition. In September, 1947, after the partition of India, the petitioner came to Silchar along with his minor brother Sukrit Ch. Nag and other members of his family. Since then, he and other members of his family had been permanently residing at Silchar and he further asserts that he had no intention to go back to Pakistan. The petitioner alleges that he and his minor brother have acquired the rights of citizenship of India under the Con­stitution. In the counter-affidavit, filed in oppo­sition to this petition, it is not denied in clear terms that the petitioner is not a citizen of India and that after the partition he did not come and settle here with no intention to go back to Pakistan. The deponent of the affidavit, filed in oppo­sition is the Under-Secretary to the Government of Assam in the Education Department and as re­gards assertion of the petitioner that he came to Silchar after the partition and has been per­manently residing there, he has not denied it. The deponent of the affidavit, filed in oppo­sition is the Under-Secretary to the Government of Assam in the Education Department and as re­gards assertion of the petitioner that he came to Silchar after the partition and has been per­manently residing there, he has not denied it. The only averment is that the deponent had no reliable knowledge as to when the petitioner and his minor brother came tq Silchar from Pakistan, whether they have been permanently residing at Silchar since 1947, or whether they have any intention of going back to Pakistan or whether they have acquired the right of citizenship under the Constitution of India as alleged in paras 3 and 4 of the petition. (3) It is therefore, not seriously contended by the opposite party that the petitioner or his minor brother did not acquire the rights of the citizenship of India or that the petitioner did not come and settle in the District of Cachar after the partition of India, with no intention to go back to Pakistan. The other relevant facts necessary for the disposal of the petition, are that the petitioner's brother Sukrit Oh. Nag passed the Middle School Leaving Certificate and Scholarship Examination, held in 1952 from the Cachar High School, Sil­char, and that on the results of that examina­tion, he was entitled to an award of scholarship in order of merit. On 20-8-1953, the Secretary, Middle School Leaving Certificate and Scholarship Examination Board, Assam wrote a letter to the Head Master, Cachar High School, Silchar, asking him to ob­tain certain information from the Petitioner regarding the eligibility of his minor brother for a Middle English Scholarship to be awarded on the result of the examination, held in 1952. The requisite information was supplied by the petitioner by his letter dated 3-9-1953. The bro­ther of the petitioner was, however, not awarded the scholarship to which, according to the peti­tioner, he was entitled in order of merit on the result of the Middle School Leaving Examina­tion held in 1952. Thereafter, an application was submitted by the petitioner to the opposite party No. 2, the Director of Public Instruction, Assam on the 30-7-1954, pointing out to him that his brother was eligible for the merit scholarship as he ful­filled all the requisite conditions and asked him to reconsider the matter. Thereafter, an application was submitted by the petitioner to the opposite party No. 2, the Director of Public Instruction, Assam on the 30-7-1954, pointing out to him that his brother was eligible for the merit scholarship as he ful­filled all the requisite conditions and asked him to reconsider the matter. In the reply, he wad informed by the opposite party No. 5 by his letter dated 3-9-1954 that the brother of the petitioner was not entitled to get the scholarship as he did not fulfil the requisite conditions of domicile. Another application was then submitted by the petitioner to the Director of public instruc­tion, Assam, on 7-9-1954, to which he received a reply from the Additional Assistant Director, pub­lic Instruction on 1-10-1954 informing him that un­der the revised rules, approved by the Government by letter dated 15-9-1954 and 20-8-1954 the minor brother of the petitioner was not eligible for a scholarship as he was not a son of a permanent resident of Assam as defined in R. 33, Ch. n of the Education Department Rules and Orders, which term included a 'Native of Assam' and one who had obtained a domicile in Assam un­der R. 307 (2) of the Assam Executive Manual. The petitioner then submitted another ap­plication on 18-10-1954 to the Director of Public Instruction, Assam; but no reply was received by him. Thereafter the petitioner approached cer­tain other influential members of the public as, well as of Government, but to no avail. Under the circumstances, the petitioner has filed the-present petition under Art. 226 of the Constitu­tion. (4) The petitioner has pressed three conten­tions. Firstly, it is urged by him that the peti­tioner's minor brother fulfils the necessary con­ditions and that on the correct interpretation, of the words "permanent resident", as contained ' in the rules, the petitioner was a permanent resident of Assam. The Education authorities have not properly interpreted the various rules. Secondly, it was contended that even if the? interpretation of the rule by the Education autho­rities is regarded to be true, the provisions of R. 307 (2) of the Assam Executive Manual are opposed to Art. 15 of the Constitution. The Education authorities have not properly interpreted the various rules. Secondly, it was contended that even if the? interpretation of the rule by the Education autho­rities is regarded to be true, the provisions of R. 307 (2) of the Assam Executive Manual are opposed to Art. 15 of the Constitution. In this connection, the argument advanced by the peti­tioner's learned counsel is that the definition of the words "permanent resident", has got to b& considered along with the provisions of R. 307 (2) of the Assam Executive Manual and when this rule is so considered, it discriminates between citizens on the ground of the place of birth and thus violates the fundamental right guaranteed by Art. 15 of the Constitution. Thirdly it was urged that the provisions of this rule are also hit by Art. 14 Of the Constitution. (5) In order to fully appreciate the conten­tions raised, it is necessary to refer to some of, the provisions of the rules referred to by the-parties. Certain rules have been framed by the-State Government regarding the award of School Scholarships. Part I of the rule deals with the preliminaries. The scholarships for the en­couragement of genera] education are of two-grades - Primary and Middle. Middle scholarships consist of - (1) Middle Vernacular scholarship, (2) Middle English scho­larship, (3) Middle Madrasa scholarship, (4) Middle English Madrasa scholarship and (5) Middle Sanskrit scholarship. Scholarships have been further sub-divided into three classes:- (1) Ordinary open scholarships, (2) Special reserv­ed scholarships for the Scheduled Castes and Scheduled Tribes; and (3) Special scholarships- for girls. All these scholarships are provided from the revenue of the State except some ordinary primary scholarship awarded by the Sub divisional Primary Education Boards which are provided from the funds of these Boards. One of the res­trictions to the award of the scholarships is that i it is to be awarded only to the pupils of recognised schools. (6) The petitioner claims one scholarship out of the ordinary open scholarships. Under para 21 of the rules, there are 67 ordinary open Middle English scholarships distributed as below:- (1) 10 scholarships are awarded on open com­petition among the pupils of all the seven plains districts; (2) 55 scholarships are awarded on districts-wise competition; (3) 2 scholarships are awarded to poor stu­dents. Under para 21 of the rules, there are 67 ordinary open Middle English scholarships distributed as below:- (1) 10 scholarships are awarded on open com­petition among the pupils of all the seven plains districts; (2) 55 scholarships are awarded on districts-wise competition; (3) 2 scholarships are awarded to poor stu­dents. Para 24 of the rules provides that the scholarships will be granted on the basis of the aggregate number of marks secured in the Assam Middle School Examination in Groups I and III. Part IV of the rules sets out general rules relat­ing to the candidates for the grant of scholar­ships. Para 51 lays down that the candidates must be children of "permanent resident of Assam". Para 52 provides that candidates for scho­larships which are distributed by local areas must be permanent residents in these areas in addi­tion of being permanent residents of Assam. A candidate will be deemed to be a permanent resi­dent of a local area, whose parents or legal guar­dians, are permanent residents of Assam and have resided in that local area for at least a year previous to the date of the scholarship examina­tion. The award of scholarships is announced as far as practicable before the opening of the new school year, the scholarship examination being held in time to permit of this but not earlier 4han ten weeks from the close of the school year. The holders of scholarships are under the gene­ral control of the Inspector of schools concern­ed. Then, there are certain restrictions placed on the scholarship holders and certain amount of control Is exercised by the Education authorities over the scholarship holders. The scholarship was refused to the peti­tioner's brother on the ground that the petitioner, who is his guardian, did not fulfil the conditions enumerated in the paras 51 and 52 of the rules. Para 33 of the revised rules of the Education Department in Chapter II, the 'extent of appli­cation and definition of the words 'permanent residents' has been given as below:- "The term 'permanent residents' of Assam in­cludes the natives of Assam and those domiciled therein. Para 33 of the revised rules of the Education Department in Chapter II, the 'extent of appli­cation and definition of the words 'permanent residents' has been given as below:- "The term 'permanent residents' of Assam in­cludes the natives of Assam and those domiciled therein. A person shall be deemed to have ac­quired a domicile in Assam if he fulfils the re­quirements of R. 307 (2) of the Assam Execu­tive Manual which is reproduced below and if he or his parents can produce certificate to this effect from the District Officer as required by the aforesaid rule." Rule 307 (2) of the Assam Executive Manual is as follows: "(1) Save with the previous sanction of the Government appointments are limited to member of families native of, or domiciled in Assam. If in any case it is desired to appoint a person who is not a member of such a family to a post, whether permanent or temporary, an application for sanction should be submitted to Government before the appointment is made. (2) It has been laid down as a working prin­ciple that in the absence of any special rule gov­erning a particular case or class or cases a man who is not a native of the province shall be deemed to be domiciled in the province only when he has become the owner of homestead house or land) in the province, has already lived in that homestead for ten years and intends to live in that homestead until he dies. The children of such a man will automati­cally be domiciled in Assam unless and until they clearly show their intention of reverting to the country from which the family came. Where the above conditions are fulfilled, the Deputy Commissioner is authorised to give a certificate of domicile. If in any case there is any doubt whether any applicant for appoint­ment belongs to a family native of or domiciled in Assam, a reference should be made to Govern­ment," (7) The definition of the words 'permanent residents' does not confine it to the persons who fulfil the requirements of R. 307 (2) of the Assam Executive Manual. The definition of the words "permanent residents' in para 33 only includes certain categories and thus cannot be said to be exhaustive. It applies to the natives of Assam and those who are domiciled therein. The definition of the words "permanent residents' in para 33 only includes certain categories and thus cannot be said to be exhaustive. It applies to the natives of Assam and those who are domiciled therein. The sentence after the words 'domiciled therein', occurring in para 33 of the rules, only enlarges the scope of the word 'domicile1 and does not restrict it. Per­sons who fulfil the requirements of S. 307 (2) and have obtained a certificate mentioned there­in, will be deemed to have acquired a domicile in Assam. The persons other than those who fulfil the requirements of S. 307 (2), if otherwise they are domicile of Assam, cannot be excluded from the definition of the words 'permanent resi­dents'. The word domicile has a wider meaning than the requirements of S. 307 (2) of the Assam Exe­cutive Manual and the subsequent words in park 33 do not limit the meaning of the word domi­cile in the earlier sentence in the said paragraph. This being so, even on the interpretation of the definition Cl. 33, the petitioner fulfils the re­quirements of a permanent resident. The petitioner has categorically stated in the petition that after the partition, he came to the Cachar District with the intention of staying there permanently. He is, therefore, a domicile of Assam. The petitioner has further alleged that he is a citizen of India. He claims citi­zenship right on the ground of domicile. Article 5 of the Constitution provides that at the commencement of the Constitution, every person who has his domicile in the territory of India and - (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preced­ing such commencement, shall be a citizen of India. (8) The petitioner claims citizenship right at the commencement of the Constitution on the ground of his domicile. This has not been denied by the contesting parties. We have already refer­red to the denial in the earlier part of the order. The petitioner, therefore, is a domicile of Assam. The only ground on which the opposite parties have denied the claims of the petitioner's minor brother is that the petitioner does not fulfil the requirements of para 307 (2). We have already refer­red to the denial in the earlier part of the order. The petitioner, therefore, is a domicile of Assam. The only ground on which the opposite parties have denied the claims of the petitioner's minor brother is that the petitioner does not fulfil the requirements of para 307 (2). The Education authorities have not stated that the petitioner is not a domicile of Assam on any other ground. In this view of the matter, it is not necessary for us to go into the ques­tion of the validity of R. 307 (2) of the Assam Executive Manual. Another aspect of the matter is that the question of the validity of B. 307 (2) cannot be considered divorced from the defini­tion of the words 'permanent residents' and the Use of the words 'permanent residents' in para 51 of the rules referred to above. What the petitioner is really concerned with is the validity of Rr. 51 and 52 of the rules re­gulating the scholarships and para 33 of the revised Education Department rules. The refer­ence to B. 307 (2) has been made for the pur­poses of finding out the scope and the ambit of the words "permanent residents" in Br. 51 and 52. The contention raised by the petitioner was that although the word used in Br 51 and 52 is 'per­manent residents', when this word is considered in light of the definition given in para 33 and R. 307 (2), it discriminates on the ground of the place of birth and is hit by Art. 15 of the Con­stitution. That the rule discriminates between the per­sons who are permanent residents of Assam and those who are non-residents of Assam, is clear from the perusal of the rule. The rule, there­fore, differentiates between the two classes of per­sons. The question, however, is whether the State Government in framing these rules, has dis­criminated on the ground of the place of birth. Article 15 of the Constitution only prohibits the State Government from discriminating against any citizen on the grounds only of reli­gion, race, caste, sex, place of birth or any of them. (9) Before the rule can be struck down, it has got to be seen how it purports to discrimi­nate on the ground of the place of birth. Article 15 of the Constitution only prohibits the State Government from discriminating against any citizen on the grounds only of reli­gion, race, caste, sex, place of birth or any of them. (9) Before the rule can be struck down, it has got to be seen how it purports to discrimi­nate on the ground of the place of birth. The rule, no doubt, uses the word 'permanent resi­dents', which, if it had stood by itself, only con notes the residence of parents of the candidate concerned. But if it is considered along with the definition of the word 'permanent residents' given in para 33, it is capable of being interpret­ed to mean as referring to place of birth to dis­criminate. The word 'permanent residents', as defined in para 33 also includes the natives of Assam, which refers to the persons, who are born in Assam and in this view of the matter, it may be said that the Br. 51 and 52 when read along with the definition, have discriminated on the ground of the place of birth, (10) Reliance was placed by the opposite party on the case of D. P. Joshi v. State of Madhya Bharat, 1955 S C A 511: ( (S) AIB 1955 SO 334; (A). The facts of that case were that in Indore Medical College - known as Mahatma Gandhi Memorial Medical College - run by the State of Madhya Bharat, the rules of the institution discriminated in the matter of fees between students who were residents of Madhya Bharat and those who are not, and that the lat­ter had to pay in addition to the tuition fees and charges payable by all students, a sum of Bs. 1500/- per annum as capitation fee. The validity of this rule was challenged by the students of the College on the ground that it was in contravention of Arts. 14 and 15 (1) of the Constitution. The rule only laid down that all students who are bona fide residents ' f Madhya Bharat were not liable to pay the capi­tation fees; but for other non-Madhya Bharat students, the capitation fee was to be paid. 14 and 15 (1) of the Constitution. The rule only laid down that all students who are bona fide residents ' f Madhya Bharat were not liable to pay the capi­tation fees; but for other non-Madhya Bharat students, the capitation fee was to be paid. Bona fide resident for the purpose of this rule was defined as:- 'One who is (a) a citizen of India whose original domicile is in Madhya Bharat, provided he has not acquired a domicile elsewhere, or (b) a citizen of India, whose ori­ginal domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission. (11) The contention raised in that case on behalf of the petitioners was that the words 'bona fide resident' in the rule had to be interpreted along with its definition and Cls. (a) and (b); of the definition clause discriminated citizens on. the ground of the place of birth. The majority judgment was against this contention and held that the residents of Madhya Bharat were ex­empt from the payment of capitation fees. All other students were liable to pay it. Hav­ing regard to the language of the rule and the definition, it was held by the majority that when, the rule-making authority referred to domicile-in Cls. (a) and (b), of the definition clause, they were thinking really of residence. Jagannath Das J., however gave a. dissenting judg­ment and came to the conclusion that the rule in question has reference to the -place of birth in Madhya Bharat. Relying upon this case, it was strenuously contended by the learned counsel for the oppo­site party that any discrimination made on the ground of domicile is not hit by Art. 15 inasmuch' as the word 'domicile' necessarily hag a reference to the residence and not the place of birth. We-do not think that the case applies to the facts of the present case. (12) In the present case, the word 'perman­ent resident' has not been defined only as to in­clude domicile, but has further said it will in­clude a native of Assam. Any person who is born in Assam, may claim to be a native of Assam and a person who is born outside Assam will not be regarded as a native of Assam. Any person who is born in Assam, may claim to be a native of Assam and a person who is born outside Assam will not be regarded as a native of Assam. Thus the use of the word 'native' does indicate that the framers of the rule had in mind the place of birth and the clauses when read as a whole may be said to discriminate on the ground of the place of birth. In the Madhya Bharat case, the word 'bona fide' resident' wag differently defined. The other contention urged by the learned counsel for the-petitioner was that the rules are hit by Art. 14 of the Constitution. In order to test the validity of the argument, several questions, will have to be considered. It will have to be seen whether the rules can be regarded as laws, so as to attract the provisions of Art. 14 of the Constitution. (13) The next question which will have to be determined will be whether the classification is based on the ground which has a reasonable relation to the subject-matter of the legislation, and is thus not in contravention of Article 14. of the Constitution. As we are accepting the con­tention of the learned counsel for the petitioner that the petitioner fulfils the requirements of the permanent resident and comes within the ambit and scope of Br. 51 and 52 of the Scholarship! Rules, it is not necessary for the purposes of this case to examine this question in detail and the respective contentions of the parties on this point. It is also not seriously contended by the opposite party that the petitioner has no right which has been infringed and which he can get enforced by means of a direction under Art. 226 of the Constitution. It may reasonably be argued that the award of the scholarship is only a privilege granted by the State Government to certain students and refusal to grant such a pri­vilege by itself gives no right to a candidate to come to this Court under Art. 226. But this point was not argued on behalf of the State and the arguments were addressed to us on the basis that the petitioner has a right which entitles him to get a relief under Art. 226 of the Constitution and as such it is not neces­sary for us to decide that point. But this point was not argued on behalf of the State and the arguments were addressed to us on the basis that the petitioner has a right which entitles him to get a relief under Art. 226 of the Constitution and as such it is not neces­sary for us to decide that point. (14) In the result, therefore, we allow this petition, issue a direction to the opposite parties not to give effect to the orders contained in 4030 M. S. Memo No. ~fcj.1.54 - dated Shillong, 3-9-1954 11062 M. S. and Memo No. -13/1/54- dated Shillong, 1-10-1954 and to consider the claim of the peti­tioner's brother in accordance with the rules. (15) SARJOO PROSAD C. J.: I agree. D.R.R. - Petition allowed.