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K.C. Katoch Vs. State of Jammu and Kashmir - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in(1979)IILLJ100J& K
AppellantK.C. Katoch
RespondentState of Jammu and Kashmir
Excerpt:
- .....by virtue of holding that post, had got an edge over respondent no. 2. as already observed the two posts assistant labour commissioner/labour welfare officer were identical in nature and involved identical responsibilities and were equal in status, although it is a fact that the petitioner was placed in the lower grade of 200-400 as against 250-500, in which respondent no. 2 was placed.11. apart from this, even otherwise the government did consider the case of all eligible candidates including that of the petitioner vide para no. 4 of the reply affidavit. it was after considering the relative merit and ability that the promotion of respondent no. 2 was ordered as he was found more capable and was much more senior to others. the seniority of the respondent no. 2 over the petitioner stands.....
Judgment:

Mian Jalal-Ud-Din, C.J.

1. The petitioner has averred that he was appointed as Assistant Labour Commissioner vide Government Order No. 7-Lab/66 dated 30.3.1966 and this appointment was regularised vide Government Order No. 3-LAB/66 of 1967, dated 14.1.1967 on the recommendation of the Public Service Commission, vide documents forming Annexures 'A' and 'B' to the petition. The post of the Assistant Labour Commissioner was upgraded to 250-550 and the petitioner's efficiency bar was released in this grade with effect from 25.5.1969. Respondent No. 2, it is stated, was continuing as Labour Welfare Officer, Chandigarh in the junior grade of 225-500. He was promoted to the grade of Deputy Labour Commissioner vide Government Order No. 57-I & L/70 dated 9.6.1970 vide copy of the order forming Annexure 'D' to the petition, By this order the seniority and merit of the petitioner were ignored.

The petitioner has further averred that his representation to respondent No. 1 was rejected on the ground that he was junior to respondent No. 2 vide Annexures 'E' and 'F' to the petition. Respondent No. 1 in a mala fide way in order to defeat the right of the petitioner kept his case of crossing of the efficiency bar pending in the grade of 250-550 and decided the same on 7.4.1972. The post of Assistant Labour Commissioner is higher in grade and status to that of the Labour Welfare Officer and the promotion to the post of Deputy Labour Commissioner has been made from the post of Assistant Labour Commissioner, (sic) According to the petitioner he was kept in suspense up to 7.4.1972 when order forming Annexure 'C' to the petition was issued. The petitioner has challenged the order of promotion of respondent No. 2 vide Annexure 'D' on the following grounds:

1. The petitioner was senior to respondent No. 2. He was not considered for promotion to the post of the Deputy Labour Commissioner. Therefore, the impugned order is violative of Rule 25 of Jammu and Kashmir (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as 'the rules of 1956').

2. The petitioner being in senior grade of 250-550 respondent No. 1 having treated the petitioner at par with respondent No. 2 the impugned order is violative of Article 14 of the Constitution of India.

3. Respondent No. 2 is of a permanent resident of the State of Jammu and Kashmir and as such his appointment is violative of Rule 17 of the Rules of 1956 ab initio.

4. The appointment of respondent No. 2 as Labour Welfare Officer, being a gazetted post has not been regularised and cleared by the Public Service Commission, and this appointment being irregular, his case could not have been considered for promotion to the post of the Deputy Labour Commissioner.

5. The deprivation of the pecuniary benefits to the petitioner to which he was otherwise entitled by the illegal promotion of respondent No. 2 amounts to violation of the fundamental rights under Article 19 of the Constitution of India.

6. The petitioner has been unduly discriminated against on nepotic and sectarian basis. In this way the attitude of respondent No. 1 has been capricious and smacks of malice.

2. The petitioner has, therefore, prayed for issuance of a writ of certiorari for quashing the impugned order and for a writ of mandamus directing respondent No. 1 to consider the case of the petitioner for promotion to the next grade of Deputy Labour Commissioner.

3. Shri Sohan Singh, Secretary to Government Health and Labour Department, J. & K. State, has sworn the reply affidavit in which he has affiirmed that the petitioner, working as Social Education Officer, Badarwah, along with some other persons was appointed in the Labour Department in the scale of 200-400 in the year 1966 but as there was no post of Labour Welfare Officer available at the time, he was posted in Labour Commissioner's Office at Srinagar and was adjusted against the post designated as Assistant Labour Commissioner. Thus the petitioner though appointed as Labour Welfare Officer was adjusted against this available post of Assistant Labour Commissioner at the departmental headquarters at Srinagar. In this respect a clarification was sought by ths Labour Commissioner vide his letter No. 106/(civ)/720 dated 31.5.1966 (Annexure i). The required clarification to the effect that the petitioner working as (Assistant Labour Commissioner) stood adjusted as Labour Welfare Officer against the post of Assistant Labour Commissioner was sent to the Labour Commissioner by the Administrative

Department under its No. 17-LAB/66 dated 20.6.1966 vide Annexure (ii).

For the purpose of regulating the appointment of the petitioner as Assistant Labour Commissioner, the Government sought approval of the petitioner's having been posted to the Office of the Assistant Labour Commissioner/Labour Welfare Officer from the Public Service Commission. The Commission vide Annexure (iv) to the petition equated and bracketted the post of Labour Welfare Officer with that of the Assistant Labour Commissioner. In compliance with the Commission's notification, the petitioner appeared for interview and the Commission recommended the petitioner for the post of Labour Welfare Officer in the Public Works Department in the grade of 225-500. The petitioner did not like to avail of the Commission's recommendations but he continued as Assistant Labour Commissioner in the Labour Department. Thereupon the Commission revised their earlier recommendation and recommended the petitioner for the post of Assistant Labour Commissioner vide Annexure (v). Since the grade, qualifications, and the duties of Assistant Labour Commissioner, and the Labour Welfare Officer were identical, it was immaterial for the Government whether the petitioner would be adjusted as Assistant Labour Commissioner or as Labour Welfare Officer.

These material facts, it is averred, the petitioner has suppressed and they are germane for the disposal of the case. It is further averred that the petitioner along with other Labour Welfare Officers continued in the grade of 200-400 till 1.11.1967 when the grade of Assistant Labour Commissioner's post along with other posts of the Labour Welfare Officers were revised to 225-500 by general order of revision of grades. On 2.1.1969 the Labour Department was reorganized under Govt. Order of 1969 vide Annexure (viii) and the grade of Assistant Labour Commissioner's post was revised again and raised to 250-550. The Labour Welfare Officers were re-designated as Labour Enforcement-cum-Conciliation Officers/Labour Welfare Officers under this very Government Order. It is admitted that the petitioner was allowed to cross the efficiency bar in the higher grade of 250-550 but it is indicated that the circumstances which led to the passing of the order could not be delinked from the position under which the petitioner was allowed to retain the higher grade of 250-550.

By this the petitioner could not be said to have earned a superior position over other officers including the respondent No. 2 irrespective of the inter se seniority as it would actually obtain in this case. It is denied that respondent No. 2 was junior to the petitioner. While filling the post of the Dy. Labour Commissioner relative merit, suitability and seniority of the Labour-Enforcement-cum-Conciliation Officer/Assistant Labour Commissioner/Labour Welfare Officers were duly considered and examined. It was found that only respondent No. 2 had the superior claim in the context of the length of service in the gazetted cadre, merit and suitability and also being the only officer confirmed in the grade then. The department could not take cognizance of the petitioner's holding on to the higher grade. The retention of the higher grade and the sanction to the crossing of efficiency bar by the petitioner were allowed purely on compassionate grounds.

It is denied that the petitioner was not considered at the time of promotion of the petitioner. He was considered but was not found eligible for the post being far junior to respondent No. 2. It is denied that the impugned order violates Rule 25 of the Rules of 1956. Nor does the impugned order suffer from any violation of Article 14. The averment made in the petition that respondent No. 2 was not a State subject is denied. It is affirmed that this is misconceived. The appointment of respondent No. 2 stands regularised under Govt. Order No. 1829-C of 1955 dated 24.11.1955 (Annexure XIX). It is denied that the appointment of respondent No. 2 is violative of Rule 17 of the Rules of 1956. Respondent No. 2, it is submitted, has continued uninterruptedly in service in the Gazetted Cadre since 1955 as Labour Officer, Delhi, in the grade of 150-250. He was appointed as such by the Kashmir Trade Commissioner. New Delhi and his action was subsequently regularised by Government under Cabinet Order No. 1829-C of 1955, dated 24.11.1955.

The State Constitution came into force with effect from 26.1.1957 and the Public Service Commission was constituted thereafter. The respondent No. 2 having been appointed much earlier, the question of his having been cleared by the Public Service Commission does not arise. The administrative control of the labour organisation attached to the Trade Commissioner's Office at New Delhi was transferred to Labour Department under Government Order No. 4-Lab/61 of 1962 dated 29.1.1962. Thereafter respondent No. 2 became a regular permanent officer of the Labour Department whereas the petitioner entered the Labour Department in March, 1966. Any act of mala fide is denied. It is denied that the petitioner has been discriminated against.

4. Respondent No. 2 has also filed a reply affidavit. In this affidavit he has affirmed that he was appointed as Labour Welfare Officer in 1955 and confirmed as such by the Government under its Order No. 53-T and 1 of 1969 dated 2.6.1969 with effect from 1962 much earlier than the petitioner had even joined Government service. He has further affirmed that he is senior to the petitioner and as such the petitioner has no cause of action against him.

5. The writ petition came to be heard by a learned single Judge of this Court (Mufti J. as he then was). He was of the opinion that the case raised important questions of law particularly one respecting the competence of the Government to waive the condition regarding a person being a permanent resident of the State for entry into the regular service of the State. He was of the view that as the question involved was of substantial importance, it was appropriate that the petition be heard and disposed of by a larger Bench of this Court. Accordingly the case has been referred to the Full Bench.

6. Appearing for the petitioner Shri Raina has submitted that the initial appointment of respondent No. 2 is violative of Rule 17 of the Rules of 1956, as according to that rule no person can be appointed to any service by direct recruitment unless he is a hereditary State Subject (Permanent resident) and also possesses the requisite qualification prescribed by the Rule. It is submitted that as the petitioner was admittedly a non-permanent resident of the State, therefore, by virtue of Rule 17 which operated as a bar to his appointment, respondent No. 2 could not be appointed against the post to which he was appointed by the Trade Commissioner at Delhi. This appointment could not even be made in relaxation of Rules 4 or 5 of the Rules of 1956. The Government did not relax the rule at any subsequent time nor could relaxation be made with retrospective effect and without recording reasons. Again, the order dated 15.6.1970 forming Annexure (XX) to the petition could not be said to have the effect of relaxing the rule as the said order was not the order made by the Government.

Reference is also made to Annexure (XVII) to the petition which according to the earned Counsel is indicative of the fact that respondent No. 2 was not confirmed. Even if the Government wanted to relax the operation of Rule 17 that should have been done in 1962 or in 1969 but that was never done. The real position was that the post of the Labour Welfare Officer which respondent No. 2 occupied was a tenure post and was to enure till the Trade Commissioner's organisation was to last. Therefore, the appointment of respondent No. 2 to the tenure post would not cure the bar raised by Rule 17 of the Rules of 1956, at the time when he was inducted into the main stream of service. In the case of respondent No. 2 direct recruitment would begin from the year 1962 when he was inducted into the main stream of labour service and the administrative control was assumed by the Secretariat. This is the crucial date of his service.

Therefore, the initial appointment of respondent No. 2 as also his subsequent promotion was violative of Rule 17 of the Rules of 1956, and the impugned order of promotion of respondent No. 2 was ultra vires of the Rule. It is further contended that the order of promotion of respondent No. 2 violates Rule 25 of the Rules of 1956, inasmuch as the order promoting the respondent No. 2 does not spell out that the petitioner who was eligible to be appointed to the post of Dy. Labour Commissioner and possessed the requisite qualifications was considered for promotion. Non-consideration of his claim has prejudiced his rights and in this way Articles 14 and 16 of the Constitution of India have been violated. The only reason why the petitioner was ignored appears to be as per reply affidavit that he was found junior to the respondent No. 2 which is not a fact. At the time of filling the post of the Deputy Labour Commissioner, the petitioner had better claim to be considered for promotion but no reasons have been given as to why the petitioner was not considered for the post.

Seniority and not merit and ability has been taken into consideration which is the antithesis of Rule 25. It is submitted that respondent No. 2 was only a Labour Welfare Officer whereas the petitioner held a higher post that of Assistant Labour Commissioner. Mr. Raina has also convassed the proposition that the petitioner was appointed as Assistant Labour Commissioner in the year 1966 which was higher in rank and status than the post of Labour Welfare Officer held by respondent No. 2. The post of respondent No. 2 being tenure post in a temporary department, the appointment of respondent No. 2, therefore, could not be said to be substantive. All along promotions to the post of the Dy. Labour Commissioner have been made from the cadre of the Assistant Labour Commissioner and not from Welfare Officers. Moreover, the case of the respondent deserved no consideration as he was confirmed only in the year 1969. In support of the contention that Rule 25 should have been followed, reliance is placed on Lal Chand Pargal's case reported as AIR 1971 J & K 108 : (1971) L.I.C. 817 (FB)

7. Shri O.N. Tikku, appearing for respondent No. 2 has, on the other hand, submitted that the initial appointment of respondent No. 2 was made by the Trade Commissioner who was competent to appoint even a non-State subject vide Exception (3) to Rule 35(b) of the Jammu and Kashmir Civil Services Regulations, Vol. I. This Rule has been in force before the Rules of 1956, came into operation. Under Rule 35(b) of the aforesaid Regulations, the authority no doubt cannot make an appointment of non-permanent resident, but Exception (3) saves the operation of this Rule. This Exception gives the Trade Commissioner at New Delhi, power to appoint non-State subject in his office in case suitable State subject is not available. It is, therefore, submitted that the initial appointment of respondent No. 2 cannot be challenged either on the ground of Rule 35 of C.S.R. or on the ground of the operation of Rule 17 which came into force much after the appointment of respondent No. 2 was made by the Trade Commissioner and was regularised by the Government in 1955.

The appointment of respondent No. 2 was regularised by Cabinet order No. 1829-C of 1955 dated 24.11.1955 forming Annexure (XIX) to the petition. This order is under the signatures of the then Prime Minister of the State. Again attention is invited to Annexure (XVII) which is Government Order No. 53/TL/69 dated 2.5.1969 where under respondent No. 2 has been confirmed as Labour Welfare Officer by the Government from 18.4.1962. The post of the Labour Welfare Officers and that of the Assistant Labour Commissioner were of the same grade and involved the same qualifications and identical nature of duties. As a matter of fact the petitioner was appointed as a Labour Welfare Officer but was adjusted against the post of the Assistant Labour Commissioner which would not make any difference as that would not have the effect of making him higher in grade and status than respondent No. 2. The impugned order of promotion of respondent No. 2 as Deputy Labour Commissioner was made in the year 1970. At that time the petitioner had not even been confirmed. He was confirmed in the scale of 200-400 only in the year 1971, whereas the respondent No. 2 had already been confirmed in 1962. How could, therefore, the petitioner advance any claim to be considered when he was a mere temporary hand as against respondent No. 2.

It is, however, pointed out that although the petitioner had no claim to be considered for promotion even then he along with other eligible candidates was considered for the post of the Deputy Labour Commissioner. It was only after examining comparative merit and ability of the eligible candidates that respondent No. 2 was appointed as Deputy Labour Commissioner. Seniority was not the sole criterion. In this connection, attention is invited to para No. 4 of the reply affidavit filed by the State as also the impugned order (Annexure D.) Respondent No. 2 was decidedly senior to the petitioner vide Annexure XV in which the claim of the respondent No. 2 as being senior to the petitioner has been acknowledged by the Govt. It is pointed out that in Annexure (XVI) there is no mention of respondent No. 2 which shows that this respondent no longer figures in the latter seniority list issued. The petitioner never challenged the seniority of respondent No. 2 and he cannot do it now. Learned counsel for respondent No. 2 has also relied upon the observation made in A.I.R. 1965 S.C. 868.

8. The case of the parties lies within a narrow compass, The Court is called upon to consider two-fold propositions of law enunciated at the Bar.

(No. 1) Whether the appointment of respondent No. 2 is violative of Rule 25(b) of the Civil Services Regulations and Rule 17 of the Rules of 1956, and, therefore, the initial appointment of respondent No. 2 in the State Service was illegal as he was not a State subject, and whether bar to the appointment could be waived by the Government by relaxing the Rule.

(2) If the appointment of respondent No. 2 is found in order whether the impugned order of promotion of respondent No. 2 has affected the rights of the petitioner inasmuch as his case was not considered for promotion and in this way Articles 14 and 16 of the Constitution have been violated.

9. Now in so far as, the first proposition is concerned, it is clear that the Trade Commissioner at Delhi has been vested with power to appoint even a non-State subject when no State subject is available. Therefore, when respondent No. 2 was appointed by the Trade Commissioner, he did so in exercise of the power conferred on him by Exception (3) to Rule 35(b) of the Civil Services Regulations. Not only this, vide order No. 26330-32 dated 10.3.1955, issued by the Trade Commissioner, respondent No. 2 was appointed as Labour Welfare Officer, in the grade of 150-250. This Order was made by the Trade Commissioner in pursuance of the Cabinet Order No. 116-C of 1955, dated 5.3.1955. This was followed by another Cabinet Order No. 1829-C of 1955 dated 24.11.1955, whereunder the post of the Labour Welfare Officer, created under Cabinet Order No. 116-C of 1955 was classed as gazetted and the tenure of the post of the Labour Welfare Officer was to be the same as the Trade Commissioner's organisation. By this order the appointment of respondent No. 2 made by the Trade Commissioner was regularised by the Cabinet.

Again, vide Order No. 27-LB/62 of 1962 dated 18.9.1962 copy of which has been made available by the respondent, the posts and scales of pay of the department of labour and the Labour administration have been declared permanent by the Government. Also vide Government Order No. 539-FSI of 1972 dated 28-10-1972 the organisation of the Trade Commissioner, in Delhi is no longer a temporary organisation but the same has been made permanent. Vide Annexure (XX) to the reply affidavit dated 150.6.1970. The Finance Minister observed that once a non-State subject is taken into service, he has to be dealt with at par with his other colleagues. All this shows that the order of the Trade Commissioner in appointing respondent No. 2 a non-State subject was regularised as early as in 1955. Thereafter respondent No. 2 was confirmed in 1962. The regularisation of appointment and confirmation of respondent No. 2 is indicative of the fact that the action was taken by the Government in relaxation of Rule 17 of the Rules of 1956 although the Government has not said so in so many words. This the Government could do retrospectively. I do not agree with the contention of the learned Counsel for the petitioner that regularisation could not be made retrospectively and that it must be made at the time of the initial appointment In the first instance, no such question arises in this case as the appointment was made by the Trade Commissioner in exercise of the power conferred on him by Exception (3) of Rule 35(b) of the C.S.R. Even his action in appointing respondent No. 2 as Labour Welfare Officer has been regularised and confirmed by the Cabinet itself. Secondly, the order of relaxation of Rule 17 can be made retrospectively. There is nothing to suggest otherwise. Rule 5 of the Rules of 1956 has been made to meet a particular situation which may arise at any time. The Government may come to know of any irregularity in appointment afterwards. Suppose a person is appointed against a post and it is subsequently found that at the time of the initial appointment, he did not possess the requistie qualification or that he was overaged or under-aged. Then after putting in considerable number of years in service, can the Government not waive the condition as imposed by Rule 17 of the Rules of 1956 in order to cure the defect and irregularity?' In the instant case after respondent No. 2 was appointed and his appointment was regularised by the Cabinet and he was confirmed as Labour Welfare Officer and was inducted into the main stream of Labour service, it is not open to the petitioner to contend that the appointment of respondent No. 2 is invalid because of the operation of Rule 17. The Government has power to waive the condition and the order of relaxation can be made retrospectively.

10. I also do not see any force in the argument that the petitioner should have been considered at the time of making promotion to the post of the Deputy Labour Commissioner. It is pertinent to mention here that at the time when respondent No. 2 was appointed as Deputy Labour Commissioner, the petitioner was not even a confirmed hand. He was merely working in a temporary capacity whereas respondent No. 2 had already been confirmed. How could the case of a temporary hand be considered for promotion to the next higher post, when a confirmed hand was available for th5 post? It goes without saying that the petitioner has no claim to be considered as against respondent No. 2. Vide Annexure A to the petition, the petitioner as admitted was appointed temporarily in the year 1966 as Assistant Labour Commissioner for six months. His lien was retained in his parent department (CD and NES) till he could be permanently absorbed in the Labour Department. At that time respondent No. 2 had already been inducted into the main stream of Labour department. He was confirmed much earlier, i.e., in the year 1962.

The mere fact that the petitioner was appointed as Assistant Labour Commissioner would not militate against the fact that his status was equal to that of respondent No. 2 as he (the petitioner) had been appointed as Labour Welfare Officer but was adjusted against the post of the Assistant Labour Commissioner. This is clear from the reply affidavit filed by the State in the case as also from letter No. PF/106/Civ/720 dated 31.5.1966 Annexure I to the reply affidavit and letter No. 17-LAB/66 dated 20.6.1966, forming Annexure II to the reply affidavit. According to Annexure I a clarification was sought by the Labour Commissioner from the Secretary to Govt. Labour Dept. in this behalf Vide Annexure II the Deputy Secretary to Govt. Labour department clarified the position to the Labour Commissioner by stating that the petitioner (Assistant Labour Commissioner) stands adjusted as Labour Welfare Officer against the post of the Assistant Labour Commissioner. Atain, there is a reference in Annexure III to the reply affidavit. It is a letter addressed to the Public Service Commission by the Deputy Secretary to Govt. in which mention has been made of the petitioner's appointment as Assistant Labour Commissioner/Labour Welfare Officer in the scale of 200-400. Approval of the P.S. Commission was sought by this letter. After the Commission accorded its approval, the Commission on the representation made by the petitioner that he would like to work as Assistant Labour Commissioner rather than as Labour Welfare Officer in the grade of 250-500, the petitioner was appointed as Assistant Labour Commissioner in the lower grade of 200-400. All this would show that in no case the petitioner had any higher status or superior claim as against respondent No. 2. There is, therefore, no force in the argument of the petitioner that because the petitioner was working as Assistant Labour Commissioner, therefore, he (the petitioner) by virtue of holding that post, had got an edge over respondent No. 2. As already observed the two posts Assistant Labour Commissioner/Labour Welfare Officer were identical in nature and involved identical responsibilities and were equal in status, although it is a fact that the petitioner was placed in the lower grade of 200-400 as against 250-500, in which respondent No. 2 was placed.

11. Apart from this, even otherwise the Government did consider the case of all eligible candidates including that of the petitioner vide para No. 4 of the reply affidavit. It was after considering the relative merit and ability that the promotion of respondent No. 2 was ordered as he was found more capable and was much more senior to others. The seniority of the respondent No. 2 over the petitioner stands established from Annexure (XV) to the reply affidavit. It is a letter written by the Deputy Secretary to Govt. Labour Department to the Labour Commissioner. This letter was written on 11.3.1971. The following portion of the letter can be reproduced with advantage:

I don't think there can be any dispute of seniority between Shri Rajinder Lal and Shri Katoch. Shri Rajinder Lal is definitely senior.

From all what has been stated above, therefore, the decision rendered in Lal Chand Pargal's case (1971) L.I.C. 817 (J & K) (FB), has got no application to the facts of the present case. At any rate, it cannot be said that promotion of respondent No. 2 in any way ran counter to the ratio of the aforesaid authority.

12. In the course of arguments learned Counsel for the parties informed us that the petitioner too has been promoted as Deputy Labour Commissioner. In view of this relief to the petitioner has been afforded substantially. By promoting the petitioner to the post of the Deputy Labour Commissioner, for which he prays that the Court may issue a writ in his favour, his claim has been considered and his grievance, if any, has been redressed.

13. The only point which the petitioner may now urge is that his seniority be re-fixed vis-a-vis respondent No. 2. In our opinion, this argument may not deserve any consideration inasmuch as, as already stated above, the service records show that respondent No. 2 has all along remained senior to the petitioner. Any claim of the petitioner for re-fixation of his seniority in the cadre posts of the Deputy Labour Commissioners, appears to be unfounded.

14. For the foregoing reasons, I see no merit in the writ petition, which is hereby dismissed. However, having regards to the circumstances of the case, the parties are left to bear their own costs.

Dr. A.S Anand, J.

15. I agree.

I.K. Kotwa, J.

16. I agree.


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