JUDGMENT Joshi A.H., J
1. Rule. Rule is made returnable forthwith by consent of parties.
2. Heard.
3. The foundation of the petition is based on one legal proposition and another factual submission, which can be narrated as follows:
[a] Whenever a person claiming to be belonging to De-notified Tribe - "Chhaperband" satisfies three conditions, namely [1] he is a Muslim, [2] his forefathers' names includes the term "Fakir", or they are locally known as "Fakirs", and [3] that the word ''Shah" appears in the name of his forefamers as a suffix; he is entitled for validation of his tribe claim.
[b] On facts of die case, according to petitioner, record of his forefathers is of 'Fakir', as well it consists of the suffix "Shah" and they belong to Muslim faith. The petitioner is, therefore, entitled to validation as 'Chapperband', Nomadic Tribe.
[c| The petitioner has placed reliance for this purpose on the report of Police Vigilance Cell, which, according to petitioner, helps him, since all the three conditions are found in favour of petitioner, namely being a Muslim, his ancestors known as "Fakirs? and "Shah' being found as suffix to his ancestors' names.
[d] The petitioner also relies upon the Government Circular dated 20th August, 2002, which clarifies thai if the word "Shah" is found in the name of the person, such person is liable to be considered as "Chhaperband".
4. Learned Advocate Mr. Mirza placed reliance on this Court's judgment dated 10th January, 2007 delivered in Writ Petition No. 1112 of 2006, to which one amongst us [Shri Justice R.C. Chavan] was a Member, whereby this Court held that the petitioner in the said case was held by this Court to be belonging to Chhaperband [Vimukta Jati].
On perusal of this judgment, we find that this Court found that the fact that the said petitioner was known as "Fakir" was not a ground for invalidating the caste claim. Moreover, the said petitioner's real brother was granted validation, and this Court found it proper to rely upon said adjudication in given circumstances.
5. When questioned, learned Advocate for the petitioner has agreed with the position that all those who are Muslims and in whose names the term "Shah" appears as the suffix are not essentially Chhaperband.
6. The aforesaid preposition seems to be the background in which the Government was required to clarify that those of the 'Chhaperbands' in whose names suffix "Shah" appears, are eligible to get the validation. The corollary that every one, who has "Shah" as suffix or identified as Fakir, should, by the very fact of such identification or suffix, be Chhaperband, is not either a factual or dictate of law.
7. It is the admitted position that those who belong to the sect/caste "Fakir" belong to other backward category as it is a notified class. It is also well known that 'Chhaperband' is a "Vimukta Jati", namely a former criminal tribe.
8. A person, who claims to be belonging to a criminal tribe, will have to prove his linkage with his forefathers, who, by virtue of the occupation, were part of said De-notified Tribe. For such factuality, evidence could be produced before the Committee and candidate can prove that his forefathers belonged to that criminal tribe. It is incumbent upon a candidate to prove the facts of these facts which have to be a mater of his personal knowledge, or knowledge of his kiths and kins.
9. The burden to prove one's own caste claim is now indelibly recorded in Section 8 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes [Vimukta Jatis], Nomadic Tribes, Other Backward Classes & Special Backward Category [Regulation of Issuance and Verification of] Caste Certificate Act, 2000, and dependence on another notion would result in impairing proof of fact which claimant must prove, if he wants certification/validation of his claim.
10. Learned Advocate urged one more point that the Police Vigilance Cell ought to have gone into the factuality of petitioner's belonging to De-notified Tribe.
11. We find that in the Rules framed under the new Act, affinity test has been prescribed under Rule 12 of the Maharashtra Scheduled Tribes [Regulation of Issuance & Verification of] Certificate Rules, 2003. These Rules have been framed only to scrutinize the tribe claims. The Notification proclaiming the Rules also defines in Sub-Clause [g] of Rule 1 the term "Scheduled Tribe Certificate." Admittedly, there is no other set of rules framed by the State pertaining to scrutiny of caste claims of other castes, such as Scheduled Castes, Other Backward Classes or De-notified Tribes. The term tribe' has occurred in De-notified Tribe, as it has nexus with the criminality of the group of persons. Moreover, these Rules are not by express notification applied to caste claim of other agencies.
12. Referring to the Test No. 4 laid down in the case of Madhuri Patil v. Additional Commissioner, Tribal Development , Lordships of Supreme Court have given emphasis to the ethnic test, particularly in relation to claim of Scheduled Tribe.
13. We find that an effort is made to connect the word tribe' to other than Scheduled Tribe as well. Any interpretation to this effect that affinity test shall be imperative for all other castes or De-notified Tribes or claims has not received any judicial sanction, and we do not consider it to be law or precedent. The test of ethnic linkage and affinity was applied to scrutiny of claim of Tribals', because tribals are having their distinction on these points as compared with all other members of civilized society.
14. We find, on facts of this case, that the Committee has found that barring the reliance that three factors [1] to be belonging to Islam, [2] being known as "Fakir", and [3) having the name "Shah" as suffix, the petitioner has not brought on record other evidence of linkage or any nexus of the forefathers of petitioner with the criminal tribe.
15. In this background, we are of the view that holding affinity test is not imperative, more particularly when the candidate has failed to bring any evidence. After evidence is brought by the candidate, it would as well be open for the Case Scrutiny Committee to test veracity thereof by such means and measures as may be necessary and within the power of the Committee.
16. We find that whatever linkage a person from criminal tribe is his linkage with said "Criminal Tribe" and for this he may bring any such evidence which he deems relevant and it would be tested by the committee to the touchstone of proof of fact as per law in force.
17. This Court, therefore, finds that the decision of Caste Scrutiny Committee cannot be said to have been rendered in disregard to any material on record, or based on considerations, which were liable to be taken into account.
18. In the result, petition does not merit interference. Rule is discharged.