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M/s. Abhaya Kalpa Technologies Pvt. Ltd., Represented by its Managing Director, Karnataka & Another v/s Tripura Rural Livelihood Mission (TRLM), Represented by Chief Executive Officer, Tripura & Others

    WP(C) No. 657 of 2021
    Decided On, 12 January 2022
    At, High Court of Tripura
    For the Petitioners: A.L. Saha, Advocate. For the Respondents: D. Bhattacharjee, GA, S. Saha, Advocate.

Judgment Text
Oral Order

1.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 domainauthority 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

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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.