M/S Abhaya Kalpa Technologies ... vs Tripura Rural Livelihood Mission ...
2022 Latest Caselaw 38 Tri

            HIGH COURT OF TRIPURA
                  AGARTALA

              WP(C) No. 657 of 2021

M/S Abhaya Kalpa Technologies Pvt. Ltd.,
a company registered under the Companies
Registration Act, 1956 represented by its
Managing Director, 69, Thrinethra, 10th
Main, Binny Layout, 2nd Stage, Vijayanagar,
Bangaluru- 560040, Karnataka State.

2. N G Lakshmisha
son of lt. NG Gujjegowda,
CEO & Managing Director,
M/S Abhaya Kalpa Technologies Pvt. Ltd.,
69, Thrinetra, 10th Main, Binny Layout,
2nd Stage, Vijayanagar, Bangaluru-560040,
Karnataka State
                                                -----Petitioner(s)
                               Versus

1. Tripura Rural Livelihood Mission (TRLM),
represented by Chief Executive Officer,
State Mission Management Unit (SMMU),
Near Bholagiri Ashram, Opp to EPFO Office,
Agartala,  P.S.    NCC,    P.O    Kunjaban,
PIN:799006, District: West Tripura

2. State of Tripura
Notice to be served upon the Secretary to
the   Government       of Tripura,   Rural
Development Department, New Secretariat
Complex,     Gurkhabasti,  P.O.    Agartala
Secretariat, P.S. NCC, Agartala, District:
West           Tripura,        PIN:799010

3. Union of India,
Notice to be served upon the Secretary to
the Government of India, Ministry of Rural
Development,     Krishi  Bhawan,      New
Delhi:110001

4.   NABARD           Consultancy   Services
(NABCONS),
a company registered under the Companies
Registration Act, 1956 represented by its
Managing Director, 24 Rajendra Place, 7th
Floor, NABARD Building, New Delhi:110125
                                               -----Respondent(s)

For Petitioner (s) : Mr. AL Saha, Advocate

For Respondent(s) : Mr. D Bhattacharjee, GA Mr. S Saha, Adv

HON'BLE MR. JUSTICE S. TALAPATRA

Judgment & Order (Oral)

12.01.2022

Heard Mr. AL Saha, learned counsel appearing for

the petitioners as well as Mr. D Bhattacharjee, learned GA

assisted by Mr. S Saha, learned counsel appearing for the

respondents No. 1 and 2. At the time of hearing, there is no

representation from the respondents No. 3 and 4 despite due

notice from this court.

2. By means of this writ petition, the petitioner has

urged this Court to direct the respondents to reconsider the

decision recorded in the minutes of the Project Approval

Committee's meeting held on 26.02.2021 as communicated by

the e-mail dated 10.03.2021. The said communication dated

10.03.2021 as issued by the SMM (Coordination), DDU -GKY,

Tripura Rural Livelihood Mission, Government of Tripura is

available at (Annexure-14 to the writ petition. By the said

communication, the project proposal submitted by the

petitioner was rejected.

3. The grievance of the petitioner can be encapsulated

at the outset by stating that the petitioner had participated in

the selection process of DDU-GKY project in the State of

Tripura. The mandatory initial screening the qualitative

appraisal were carried out by NABARD Consultancy Services

(NABCONS), New Delhi and the petitioner's name was cleared

in the said initial screening and hence, their name was

recommended to Tripura Rural Livelihood Mission (TRLM) for

referring their appraisal to the PAC/EC, Tripura.

4. The Chief Executive Officer of TRLM, Tripura had

admittedly conducted a pre-PAC meeting on 12.01.2021 by

video conferencing and thereafter, the records of all 15

agencies were forwarded for PAC meeting. The project was

for:

(i) To open one centre at Agartala for counseling and mobilization purpose;

(ii) To include all 8 districts in the proposal for mobilization; and

(iii) To submit a Letter of Intent (LOI) for 30 active placements for which it was ready.

5. The petitioner has claimed their eligibility,

conforming to the parameters, as adverted but in the meeting

of the Project Approval Committee (PAC) held on 26.02.2021

under the Chairmanship of Chief Secretary, Government of

Tripura their project implementing proposal was not accepted.

Such decision was taken without considering the substantive

records showing their experience and resourcefulness.

6. It has been observed for purpose of discarding the

petitioners that the petitioners' financial status is not at the

satisfactory level. The petitioners got 2 out of 10. The said

score was recorded in the minutes of Quality Approval (QA).

The petitioners have asserted that after clearance by the

NABCONS and being approved by the pre-PAC meeting headed

by CEO of TRLM, the selection that has been made in the

meeting dated 16.02.2021 was arbitrary and colourable

exercise of power. Hence, the petitioners on 13.03.2021 made

a representation for reconsideration of their proposal which

had again been discarded by affirming the questioned decision

taken by PAC by relying QA report that the score on the

financial strength of the petitioners was 2 out of 10, as

awarded by NABCONS.

7. It has been laid down in the representation dated

13.03.2021 that that was the second tender (application) for

initial screening and that application, as stated earlier, was

cleared by the NABCONS, on 25.09.2020. It has been

asserted by the petitioners that NABCONS recommended them

after qualitative appraisal. NABCONS had, on such appraisal

recommended 15 agencies including the petitioners.

Thereafter, pre-PAC meeting was held for having dialogue with

all 15 PIAs.

8. The petitioners have again contended that the pre-

PAC recommended their name to PAC for DDU-GKY but in the

said meeting held on 26.02.2021, PAC did not consider the

petitioners as eligible for the said work. It has been accepted

by the petitioners in their representation made to the

Secretary to the Ministry of Rural Development, Government

of India dated 17.04.2021 (Annexure-23 to the writ petition)

that the Project Appraisal Agency (PAA), i.e. NABDCONS while

assessing or mentioning the score have erroneously marked

02 points out of 10 despite one of their Director's CIBIL score

being 79 within six months period where the petitioner should

have been given 05 points as per the guidelines in the QA

application. The petitioner has in that representation further

laid that NABCONS due to their negligence and prejudice in

mind did not give credit more than 02 points out of 10. Such

assessment is injudicious and inappropriate in justice and

equity. The petitioners have challenged the mode of awarding

credit. According to them, the mode itself deviated from the

laid down procedure.

9. Acting on the said representation, CEO, TRLM was

requested to re-look the project proposal of the petitioners. It

appears that the petitioners had addressed a letter to the

Chief Secretary, Government of Tripura on 02.07.2021

(Annexure-25 to the writ petition). In the said letter, the

materials as placed before the Secretary of Rural

Development, Ministry of Rural Development, Government of

India have been replicated and hence, no detailed reference is

being made to the letter dated 02.07.2021. On 12.07.2021 a

reminder was sent to the Chief Executive Officer, TRLM,

Tripura by the petitioners pressing judicious consideration.

10. The Chief Executive Officer, TRLM by his letter

dated 27.07.2021 (Annexure-27 to the writ petition) apprised

the petitioners that appraisal of the project proposal under

DDU-GKY for awarding project under DDU-GKY has been

carried out with reference to the notification dated

07.07.2020. It has been clearly stated by CEO, TRLM that on

receipt of the petitioners' letter, the entire matter has been

revisited but it was found on such reconsideration that there

was no arbitrariness in rejecting the proposal. The decision as

taken was based on the guidelines of Ministry of Rural

Development and scoring awarded by the Project appraisal

Agency (PAA), NABCONS. Disposal of the proposal was made

after considering all available materials by PAC in its meeting

held on 26.02.2020. CEO, TRLM has submitted that after due

reconsideration of the proposal, PAC has regretted to make

any change in the decision of the meeting held on 26.02.2020.

11. Mr. AL Saha, learned counsel appearing for the

petitioners has strenuously argued that while making

qualitative appraisal, the documents/records produced by the

petitioners were not appreciated and credit was awarded

mechanically to the serious prejudice of the petitioners. In this

regard, Mr. Saha, learned counsel has drawn attention of this

Court to the averments made in the writ petition at para 38

where it has been asserted that NABCONS has given 02 out of

10 despite all documents being available. They could have

given 06 out of 10 points as stipulated in the project

application at serial No. 15 to 23 under financial head as per

Government of India, Ministry of Rural Development

Notification No. 20/2017 dated 03.04.2017. The said

averments have not been responded to by the respondents

No. 1 and 2 when they filed their reply on 07.12.2021. They

avoided giving reply by stating that since the matter is related

relating to NABCONS, it is NABCONS who would respond to

such assertion.

12. Mr. Saha, learned counsel has further submitted

that sufficient documents have been placed with the proposal

application, to facilitate the qualitative appraisal of the

financial strength of the petitioners. It has been further

asserted that all documents showing the financial strength of

the petitioners are duly 'certified' by the Chartered Accountant

and these show that the petitioners have sufficient financial

strength to carry out the project for which they had

participated but, arbitrarily, those documents were not taken

into consideration by learned counsel for the petitioners,

NABCONS.

13. Mr. Saha, has surprisingly contended that

NABCONS recommended the petitioners to the Project

Approval Committee but it is the Project Approval Committee

(PAC) which did not approve the proposal most arbitrarily.

14. In terms of the Government of India, Ministry of

Rural Development Guidelines as available in the Notification

No. 20/2017 dated 03.04.2017 (Annexure-18 to the writ

petition), there are two primary stages for screening of

proposal applications viz, (i) Initial screening: all applications

pending in initial screening shall be appraised on the basis of

existing documents filed by the applicant. The same shall be

done as per new appraisal criteria for initial screening. All

application pending on the system shall be disposed of within

a prescribed time other wise those proposal application shall

be treated as lapsed.

(ii) Qualitative Apprisal: When the application is recommended

for further screening the applicants have to submit the

appraisal fees and documents for qualitative approval within

15 days. After the qualitative appraisal is carried out based on

the documents filed by the applicant, the Project Appraisal

Committee shall forward all the applications for consideration

by PAC.

15. Having referred thus, Mr. Saha, learned counsel has

quite categorically stated that there had been no qualitative

appraisal, but a mechanical process. That is how the

petitioners have been awarded the poor credit.

16. The written guidelines of the appraisal of the

project proposal are available with the writ petition at

Annexure-18. The relevant part relating to the qualitative

appraisal is reproduced hereunder:

"2.7 Qualitative Appraisal Process:

2.7.1 Qualitative appraisal requires the appraiser to assess the project on five parameters as details below:

(i) Organization Strength: This parameter is about getting to know the organization and to understand the experience of the directors in running an organizations. The responsibilities of the team to ensure quality training and placements for the candidates. Includes verification of experience of promoters & management team and accountabilities defines for various KPIs.

(ii) Training Delivery & Infrastructure: This parameter is to assess the training capability and training delivery. Aspects assessed will be Assessment of past experience or approach of the proposed sector/trade, alignment of courses

curriculum; Engagement with Employers; Quality of trainers and Training-of-Trainer process.

(iii) Placement: DDU-GKY is a scheme about gainful employment of youth below poverty level to alleviate poverty and ensure they get placed and gainfully employed. To check this aspect the appraiser will validate the claims on the a. Robustness of Pre-Placement and Post- Placement Support process b. Tie-ups with employers for proposed project and mapping with skill gap assessment for the state and trades proposed c. Assessment of past placement records for the PIAs d. Employer feedback process

(iv) Quality Assurance: The Quality Assurance process followed by the PIA will be assessed for compliance to processes and learning from mistakes. Collection and Storage of data and how it is used to assess the quality of training by reviewing the performance indicators.

(v) Financial Strength: Appraise the financials status of the organization. Check the compliance of the organization to various government statutory payments, net worth debt servicing history and CIBIL scores of the directors."

17. Mr. Saha, learned counsel has drawn attention of

this court to the minutes of the meeting of the Project

Approval Committee held on 26.02.2021 to show the risk

identified in the appraisal. It has been observed that as per

qualitative appraisal report, the financial strength/score is 02

out of 10 and accordingly, the petitioners have not been

considered for awarding implementation of the project. It is

apparent that 10 PIAs have been discarded for similar or same

reason.

18. Though Mr. Saha, learned counsel for the

petitioners has repeatedly contended that the low score has

been awarded to the petitioners for non-appreciation of the

documents filed along with the application kit. As pointed out,

Mr. Saha, learned counsel was not advancing an alternative

argument, but asserted that NABCONS did recommend their

name after qualitative appraisal.

19. True it is that, NABCONS forwarded all the project

proposals of PIAs, but PAC having exercised their domain-

authority and taken into consideration NABCONS' QA report

has taken the decision as challenged in this writ petition. Even

having been persuaded by the petitioners, the entire process

was reconsidered by PAC. But no infirmities in the decision

making process could be located.

20. Mr. D Bhattachajree, learned GA has quite

emphatically submitted that all the major stages have been

followed meticulously for appraisal and sanction. The major

stages are as follows:

(i) PRN Registration

(ii) Project Application Submission

(iii) Initial screening, and

(iv) Qualitative Appraisal

21. According to Mr. Bhattacharjee, learned GA, the

qualitative appraisal has been made exclusively by NABCONS

as the expert agency crediting the due score to PIAs. The

qualitative appraisals have been regulated by the laid

guidelines as reproduced above. It has been quite

emphatically appraised that the petitioners have failed to

make out any tenable ground to challenge the appraisal, as

noted and as carried out by NABCONS. That apart, Mr.

Bhattacharjee, learned GA has contended that this litigation

falls in the category of frivolous litigations as there is no

substance for intervention by this Court.

22. This court having appreciated the disclosures made

under the Right to Information Act (RTI Act) and having

interfaced with the laid down procedure finds that the

pertinent question that falls for consideration of this court is

whether there is any apparent error in the QA done by

NABCONS in respect of the project proposal of the petitioners.

It is well settled that under the jurisdiction conferred by Article

226 of the Constitution of India, the writ court is not expected

to embark on a roving inquiry. Arbitrariness, illegality and

breach of laid down procedure for purpose of

unreasonableness should be evident on the face of the

records.

23. The petitioners have averred (see para 37) that had

PAC invited the petitioners in PAC meeting, the petitioners

(the company) would have been able to clarify its stand on its

financial strength score and would have been able to show

NABCONS' unreasonable and unfair recording. According to

the petitioners, reappraisal is also vitiated for failing to

appreciate the records, as produced by the petitioner.

24. This court has come across the averment of the

respondent that pre-PAC meeting is called upon to primarily

see whether the project wise appraisal report submitted by

Project Appraisal Agency, NABCONS herein, is in form before

placing the records to PAC for final approval/disposal. In pre-

PAC meeting, the authorized representatives of the PIAs were

invited and they were present for any clarification, if needed.

But pre-PAC does not have any authority to approve, appraise

or reject any project proposal. It stands to scrutinize the

relevant papers, documents and/or whether the qualitative

appraisal report was in place with each application or not. The

final authority to take a call is Project Approval Committee

(PAC).

25. Having scrutinized the entire process, this court

finds that the petitioners themselves have admitted that

NABCONS gave them 02 out of 10 points, not the Project

Approval Committee. Pre-PAC did not have any role. It is

apparent from the record that NABCONS have followed the laid

down guidelines of Ministry of Rural Development in

forwarding PIAs to Pre-PAC for forwarding their appraisal to

PAC. Even on reappraisal made by PAC, no infirmity has been

found. The plea that had the petitioners been allowed to

participate in PAC meeting they would have been able to

demonstrate how the qualitative appraisal carried out by

NABCONS is arbitrary is not only unusual but asking for

mending the procedure as laid down, and hence, cannot be

accepted.

26. As corollary, this court does not find any merit in

this petition. Accordingly, the same is dismissed.

There shall be no order as to costs.

Pending application(s), if any, also stand disposed

of.

JUDGE

satabdi