-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1741 OF 2008 1. The Sales Tax Tribunal Bar Association, A Society registered under the Bombay Public Trust Act 1950 constituted of persons practising before Maharashtra Sales Tax Tribunal and having its Office at Room No.713/B, Vikrikar Bhavan, Mazgaon, Mumbai--400 020. 2. Chandrakant B. Thakar, President, of the Sales Tax Tribunal Bar Association having his office at Room No.713/B, Vikrikar Bhavan, Mazgaon, Mumbai--400 010. : Petitioners V/s. 1. S.D. Mathane, Member, Sales Tax Tribunal appointed as such by order dated 25.6.2008 of Deputy Finance Secretary, Finance Department, Maharashtra and having his office at 7th floor, Vikrikar Bhavan, Mazgaon, Mumbai--10. 2. Nasima M. Shaikh, Deputy Secretary, Finance Department, The State of Maharashtra having her office at Mantralaya, Madam Cama Road, Mumbai--32. 3. The State of Maharashtra, having its office at Mantralaya, Madam Cama Road, Mumbai--400 032. : Respondents .... Mr.R.V.Desai with Mr.M.M.Vaidya for the petitioners. Mr.C.U.Singh with Mr.V.A.Sonpal for respondent no.1. Mr.D.A.Nalawade, Government Pleader for resp. nos.2 & 3. .... CORAM : SWATANTER KUMAR, C.J.& S.A. BOBDE, J. Date of Reserving ) : 20.10.2008 the Judgement. ) -: 2 :- Date of Pronouncing) : 18.12.2008 the Judgement. ) JUDGEMENT (Per S.A.Bobde, J.) 1. The petitioners have challenged the appointment of the respondent no.1 Mr.S.D. Mathane as Member of the Sales Tax Tribunal by an order dated 25.6.2008. They seek the issue of a writ of certiorari calling upon the respondents to place the records pertaining to the impugned appointment and a writ of quo warranto for quashing the said appointment dated 25.6.2008. The Sales Tax Tribunal to which the respondent no.1 has been appointed has been constituted under section 11 of the Maharashtra Value Added Tax Act, 2002, which has been brought into force from 1.4.2005. Sub-section (3) of section 11 provides for qualification and the terms of office of the members of the Tribunal which reads as follows:- "(3) The qualifications and the terms of office of the members of the Tribunal shall be such as may be prescribed, and a member shall hold office for such period as may be prescribed or as the State Government may, by special order in his case, specify." Qualifications have been prescribed under rule 6(1) of the MVAT Rules which read as follows:- "6. Qualifications of members of Tribunal and term of office: -: 3 :- (1) Every Member of the Tribunal shall be a person who, (a) is or has been a Judge of the High Court, or (b) is or has been a District Judge, or (c) is qualified for appointment as a District Judge, and has held judicial office for not less than ten years, or (d) has, for a continuous period of not less than three years held an office, not below the rank of Joint Commissioner of Sales tax, in the Sales Tax Department of the State Government, or (e) is a Chartered Accountant and has practiced as such for not less than seven years, or (f) not being a person described in clause (d), has in the opinion of the State Government, adequate knowledge, or experience in accounting, or has in the opinion of the State Government, special knowledge or experience in commerce or industry. Explanation: For the purpose of clause (b), the service as a Deputy Commissioner before the appointed day shall be considered for determining the period of three years." 2. It is common ground that the impugned appointments is under clause 6(f) alone. The thrust of the contention on behalf of the petitioners is that the respondent no.1 did not have adequate knowledge or experience in accounting and the Government could not have formed any opinion that he has special knowledge and experience in commerce or industry under clause 6(f). The respondent no.1 not being therefore qualified could not have been appointed -: 4 :- as a Member of the Sales Tax Tribunal at all. It is not necessary to go into the qualification of the respondent no.1 with reference to any other clause of rule 6 since the Government has appointed the respondent no.1 only under clause 6(f). 3. It must be noted at the outset that whether a person is qualified for appointment as a Member of the Tribunal is dependant on the opinion of the State Government as to adequate knowledge, or experience in accounting or special knowledge or experience in commerce or industry, vide clause 6(f). It is settled law that words such as "in the opinion of" or "reason to believe" suggest the requirement of the authority to arrive at a subjective satisfaction. However, the formation of the opinion has been considered to be a process not altogether subjective. It lends itself to a limited scrutiny by the Court that such an opinion was not formed on relevant facts or within the restraints of the statute, vide Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC 295 at page 324. Therefore, in assessing the validity of an administrative act under a law which provides that certain thing shall be done "if in the opinion of" a certain authority certain circumstances exist, an inquiry by the Court must be directed to whether the opinion, apart from being bona fide, is based on the existence of relevant objective facts. Once such objective fact or -: 5 :- material is shown to exist, then the opinion formed by the authority would not be liable to question i.e. to say it would not be open for the Court to consider whether the authority has come to the conclusion which it would come to itself, or whether the conclusion is what any other person would have arrived at as long as it is not an opinion which was impossible to be arrived at. The extent of intervention under such provision has been indicated in the following passage quoted with approval by J.S.Verma,J. in S.R.Bommai v. Union of India [(1994) 3 SCC 1]:- "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." With this, the formation of the opinion by the State Government may be examined. 4. At the relevant time, the respondent no.1 was a Joint Commissioner of Sales Tax which is equivalent to the post of Deputy Secretary and was appointed in the Finance Department as a Deputy Secretary. He had, apart from long experience in the Department, three years’ -: 6 :- experience as Deputy Secretary. At the outset, it must be stated that the Government has formed its opinion on the basis that the 1st respondent has been working for about three years on the post of Deputy Secretary and has selected him, considering his deep study of Sales Tax laws and long experience in dealing with the same. In the meeting of the Selection Committee held on 26.5.2008, the respondent no.1’s candidature was considered along with that of two other departmental candidates who had no experience of working on the legal side. The question is whether the Government could have validly formed an opinion under clause 6(f) that the respondent no.1 has special knowledge or experience in commerce or industry. Even though it is true that the Selection Committee, in its minutes referred to the deep study of Sales Tax laws and long experience in dealing with the same without expressly referring to the respondent no.1’s knowledge or experience in commerce or industry, the Committee has made it clear that the selection is under rule 6(f). The learned counsel for the petitioner submits that non-mentioning of experience or knowledge in commerce or industry in the minutes of the meeting of the Selection Committee was sufficient to show that the respondent no.1 is not qualified. We have examined the various notings which show that the various officers who processed the file, in fact, considered the knowledge of the candidate in regard to industry and commerce. From the file, it -: 7 :- appears that an adequate appraisal of the respondent no.1’s qualifications to hold the post has been made at every stage. The respondent no.1’s application was received and appraised by the Desk Officer who also appraised the applications of other candidates. A reference was made to a Government Resolution which provides that persons who have worked for a minimum of two years in the legal branch should be given preference for appointment. Thereafter, it was suggested that the Sales-tax Department be asked to certify whether the respondent no.1 had knowledge of accounts and commerce. On this the Finance Secretary made the following observations:- "‘X’ may be approved. 2. Shri Mathane’s record is outstanding. He has extremely good knowledge of sales tax, VAT Laws and accounts. Accordingly, he was especially chosen to work in Mantralaya first as O.S.D. (but given DS level work taxation) and then as DS (taxation/VAT) where he was promoted as Jt. Commissioner level in the Department. He is still working in the F.D. 3. In view of the above ‘x’ is put up for approval, so that Shri Mathane could be considered for appointment as a member on Sales Tax Tribunal. He is eminently qualified to discharge that responsibility. Sd/- 8/5/08" Finance Secretary -: 8 :- 5. It appears that it is on the basis of the above that the Government formed the opinion that he had sufficient knowledge and experience in commerce and industry within the meaning of rule 6(f). The Government is conscious that it has made the appointment under rule 6(f). We are not inclined to set it aside because the Minutes of the Selection Committee do not reflect the words of rule 6(f), particularly since knowledge or experience in commerce and industry is allied to the key and implementation of Sales Tax laws. The knowledge and experience of commerce and industry contemplated by rule 6(f) does not appear to be that of a trader or an industrialist as the scheme of the Rules does not suggest such an appointment. We find from the notings that there was sufficient material before the Government to form such an opinion which indeed is a subjective opinion based on the career graph and the abilities of the candidate. It is, therefore, not possible to accept the argument on behalf of the petitioner that the respondent no.1 was clearly disqualified. In such a case, even if it is pointed out that there are certain contradictions in the affidavit of the Government and the office files, we are of view that such an appointment should not be lightly interfered with on such grounds provided it is found that the Government formed its opinion on the basis of consideration of relevant material. The office file shows that the question of the appointment was processed -: 9 :- at various stages of the Department. The initial note was put up by the Desk Officer. The matter was then referred to the Law & Judiciary Department which eventually gave an opinion. The issue was then forwarded to the Principal Secretary (Finance) and the entire file was thereafter put up before a High Power Committee under the chairmanship of the Chief Secretary and Addl. Chief Secretary (Finance) and Principal Secretary (Law & Judiciary). The recommendation of the High Power Committee had been accorded sanction by the Finance Minister and the Chief Minister. We find no merit in the challenge to the appointment of the respondent no.1. 6. Writ Petition is dismissed. Sd/- CHIEF JUSTICE Sd/- S.A. BOBDE, J.