FERDINO I. REBELLO,J.

1. A learned Division Bench of this Court by its order dated September 30, 2008, noted that it was unable to agree with the interpretation placed by another Bench of this Court in Hitesh Dasiram Murkute v. State of Maharashtra & Ors., 2007 (4) Bom.C.R.784 on the Judgment of the Hon’ble Supreme Court in Mari Chandrasshekhar Rao vs. Dean, G.S. Medical College & Ors., (1990) 3 S.C.C. 130. The Bench further observed that prima facie they are also not in agreement with the interpretation placed by the Division Bench Judgment of this Court in Bankimchandra vs. State of Maharashtra, 2006 (Supp.) Bom. CR.769. The learned Chief Justice was thereafter pleased to constitute a Bench for hearing and final disposal of these matters. Considering the controversy, we had also by an order dated November 25, 2009, requested the learned Advocate General to assist the Court and also called on other Counsel, who may be directly affected, to address this Court.

2. The question framed for consideration reads as under :-

“Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State.”

3. In our opinion, the law as to whether a migrant belonging to the Scheduled Caste or Tribe is entitled to the benefits of reservation in the State of migration, considering the Constitution Bench Judgment of the Hon’ble Supreme Court in Mari Chandrashekhar Rao vs. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and the Judgment of another Constitution Bench in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and Anr. (1994) 5 SCC 244 may no longer be res-integra.

4. It appears that the learned Division Bench, which proceeded to pronounce the Judgment in the case of Hitesh D. Murkute (supra) relied on the Judgment of a Bench consisting of three Judges of the Supreme Court in the case of Sudhakar Vithal Kumbhare vs. State of Maharashtra & Anr., (2004) 9 SCC 481, which had been noted by another Division Bench of this Court in Bankimchandra Makanbhai Patel (supra). The view taken in Hitesh D.Murkute, appears to have been reiterated in Santosh Padoti v/s. Caste Scrutiny Committee, 2006 (Supp) BCR 797 and Sheetal Manikrao Dupare vs. State of Mahaashtra 2007 (6) BCR 332.

5. At the outset, we may note that in Marri Chandrashekhar Rao (supra), the issue before the Supreme Court was whether, a person who is a member of a Scheduled Tribe, notified in State A who or whose progeny migrate to State B, then is such person entitled to the benefit of reservation in the State of migration i.e. State B. After considering the various Constitutional provisions and more specifically after examining the scope and ambit of Articles 14, 15, 16 and on the one hand and Articles 341 and 342 on the other, the Constitution Bench of the Supreme Court was pleased to hold that such a migrant is not entitled for benefits as a Scheduled Tribe in the State of Migration. In the course of our discussion, we will refer to some of the observations of the Supreme Court on this aspect.

6. Then in the case of Action Committee (supra), the question posed by the Constitution Bench was as under :-

“Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Schedule Tribes in State B?”

In the course of the arguments, a contention was urged on behalf of the respondent, before the Supreme Court that all the arguments wh