Bombay High Court
Shubham Raju Khartadkar vs State Of Maharashtra, Through Tribal ... on 29 January, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
1 WP1120-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1120/2020
(SHUBHAM RAJU KHARTADKAR VERSUS STATE OF MAHARASHTRA & OTHERS)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri G.G. Mishra, counsel for the petitioner.
Shri S.M. Ukey, Additional Government Pleader for the respondent nos.1, 2 and 4.
Shri R.S. Charpe, counsel for the respondent no.3.
CORAM : NITIN W. SAMBRE AND ABHAY J. MANTRI, JJ.
DATE : JANUARY 29, 2024.
Heard.
2. Drawing support from the judgment of the Division Bench delivered in Writ
Petition No. 2725 of 2022 [Subhash Krushnarao Khartadkar Versus The Scheduled
Tribe Caste Scrutiny Committee, Amravati Division, Amravati & Others ], dated
December 21, 2023, the learned counsel for the petitioner would urge that the
blood relative (paternal uncle) of the petitioner has already been declared to be
belonging to 'Thakur' Scheduled Tribe, and that being so, in view of the judgment in
the case of Apoorva Vinay Nichale Versus Divisional Caste Certificate Scrutiny
Committee No.1 & Others [2010 (6) Mh.L.J. 401], the order impugned in the
present writ petition passed by the Scrutiny Committee, is required to be interfered
with. Apart from above, drawing support from the judgments of the Apex Court in
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Versus State of
Maharashtra & Others [2023(2) Mh.L.J. 785 (SC)] and Priya Pramod Gajbe
Versus The State of Maharashtra & Others [2023 SCC OnLine SC 909], it is
claimed that once the petitioner has demonstrated that he belongs to 'Thakur'
Scheduled Tribe, the respondent no.2-Scrutiny Committee erred in rejecting the
claim put forth by the petitioner solely by relying on the affinity test. Further,
the learned counsel for the petitioner would urge that but for recording the
factual finding that the petitioner has failed to satisfy the affinity test, there is no
material available on the record before the Court to test as to whether the aspect
of affinity test has been rightly so evaluated by the Scrutiny Committee.
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3. As against above, the learned Additional Government Pleader for the
respondent nos.1, 2 and 4 would urge that the applicability of the affinity test is
not a disputed issue before the Court. According to him, even if the Scrutiny
Committee has noticed that the documents produced by the petitioner speaks of
the petitioner belonging to 'Thakur' Scheduled Tribe, the petitioner has to make
an extra effort by discharging burden as required under Section 8 of the
Maharashtra Scheduled Castes and Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance of Verification of) Caste Certificate Act, 2000
by demonstrating that he belongs to 'Thakur' Scheduled Tribe and not upper
caste Thakur. According to him, in such an eventuality even if documents of
belonging to 'Thakur' Scheduled Tribe are produced on record, it can be
interpreted that those documents are not relating to the scheduled tribe based
on the affinity test.
4. From the rival submissions, we have noted that (a) the Apex Court has
already ruled in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti and
Priya Pramod Gajbe (supra) that the affinity test cannot be termed as a litmus
test. Still the petitioner or the applicant who claims to belong to Scheduled
Tribe category must establish affinity with that of 'Thakur' Scheduled Tribe and
the same can be looked into by the Scrutiny Committee is the submission which
can be borne out of the statutory provisions.
If the contention of the learned counsel for the petitioner that the affinity
test cannot be termed as a litmus test is evaluated in the facts of the present
case, it appears that the Scrutiny Committee has recorded a finding that the
petitioner has not satisfied the affinity test but only for recording the reason that
the petitioner fails to satisfy the same based on the material placed before the
Court to find out whether the finding of fact recorded by the Scrutiny
Committee is proper or not; and (b) in such an eventuality, learned Additional
Government Pleader submits that he shall assist the Court on the said issue if
reasonable time is granted.
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5. As far as the contention of the learned counsel for the petitioner that the
blood relative (paternal uncle) of the petitioner is granted validity by the virtue
of the order of this Court is concerned, the petitioner is entitled for grant of a
validity certificate of belonging to 'Thakur' Scheduled Tribe. Rightly so, the
learned counsel for the petitioner has invited our attention to the judgment of
the Division Bench of this Court in Apoorva Vinay Nichale (supra).
However, the learned Additional Government Pleader has claimed that the
exception to the view of this Court in Apoorva Vinay Nichale (supra) can be noted
in the judgment of the Hon'ble Apex Court in Raju Ramsing Vasave Versus Mahesh
Deorao Bhivapurkar & Others [(2008) 9 SCC 54]. He would urge that he may be
granted time to prepare and address this Court on the aforesaid issue.
6. Hence, list for further consideration on February 05, 2024.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 31/01/2024 10:52:26
