Service Law; Sadanandan Vs. State [Kerala High Court, 07-09-2016]

Service Law – Kerala State and Subordinate Service Rules – Rule 9(a)(1) – Regularisation of Service – the petitioner/applicant is entitled for regularisation of his service as Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits, as prayed for in the Transfer application, and for disbursement of all consequential benefits.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

O.P.(KAT)No.416 of 2014

Dated this the 7th day of September, 2016

AGAINST THE ORDER/JUDGMENT IN TA 7552/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08-07-2014

PETITIONER

SADANANDAN, AGED 60 YEARS, S/O.RAMAN, KUNNATHIL HOUSE, NANMINDA P.O., KOZHIKODE 673 613 (COOK RELIEVED ON SUPERANNUATION) BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE

RESPONDENTS

1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, FISHERIES & PORTS (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

2. THE CHIEF HYDROGRAPHER, HYDROGRAPHIC SURVEY WING, SASTHAMANGALAM, THIRUVANANTHAPURAM 695 010.

3. THE MARINE SURVEYOR, HYDROGRAPHIC SURVEY WING, BEYPORE 15.

BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN

JUDGMENT

Anil K. Narendran, J.

The petitioner is the applicant in T.A.No.7552/2012 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram. He originally filed W.P.(C)No.7693/2011 before this Court mainly seeking for a writ of certiorari to quash Ext.P11 order and a writ of mandamus commanding the 1st respondent to regularise his service as a Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits. The said writ petition was later transferred to the Tribunal, where it was re-numbered as T.A.No.7552/2012.

2. The reliefs sought for in the Transfer Application were opposed by the 1 st respondent by filing Annexure A3 counter affidavit. The petitioner has also filed Annexure A4 rejoinder. After considering the rival contentions, the Tribunal held in Annexure A1 order that, the petitioner is not eligible for regularisation of his service since his appointment is only a provisional appointment made under

# Rule 9(a)(1) of the Kerala State and Subordinate Service Rules

(hereinafter referred to as ‘the KS&SSR’) and as such, there is nothing wrong in Ext.P11 Government order. However, considering the fact that the petitioner is having more than 20 years of service, the Tribunal disposed of the Transfer Application by directing him to submit a representation before the 1 st respondent for ex-gratia pension, in the light of the Full Bench decision of this Court in

# State of Kerala v. M. Daisy, 2012 (3) KLT 366

and the said respondent was directed to consider and pass appropriate orders thereon within three months from the date of receipt of a copy of the order.

3. Feeling aggrieved by Annexure A1 order passed by the Tribunal, to the extent of declining regularisation of service for the period from 14.1.1983 to 31.5.2008, the petitioner is before this Court in this Writ Petition.

4. We heard the arguments of the learned counsel for the petitioner/applicant and also the learned Senior Government Pleader appearing for the respondents.

5. The pleadings and materials on record would show that the applicant was appointed as Cook in the office of the 3 rd respondent, in the scale of pay of Rs.280-400, by Ext.P1 order dated 14.1.1983 of the 2 nd respondent. As evident from Ext.P1 order of appointment, the applicant was a candidate sponsored by the Divisional Employment Exchange, Kozhikode and his appointment was only a provisional appointment made under Rule 9(a)(i) of the KS&SSR. However, the applicant was permitted to continue in service as Cook for more than two decades without the intervention of any orders of the Court or Tribunal. Claiming regularisation in service, the applicant represented before the Government, which was rejected by Ext.P2 communication dated 20.4.2005 of the 1 st respondent stating that the applicant cannot be permitted to continue in service till attaining the age of superannuation, in the light of G.O.(P)No.39/02/P&ARD dated 26.8.2002. The said order was under challenge in W.P.(C)No.21899/2005. The said Writ Petition was disposed of by Ext.P3 judgment, setting aside Ext.P2 order as it is vitiated by total non-application of mind and the 1 st respondent was directed to pass fresh orders in accordance with law, after affording the petitioner a reasonable opportunity of being heard.

6. Pursuant to the direction contained in Ext.P3 judgment, the 1 st respondent conducted a personal hearing and thereafter issued Ext.P4 order. In Ext.P4 order, the Government found that the applicant was allowed to continue as Cook for the period from 24.1.1983 upto 10.8.2005 and that, there were two posts of Cook-cum-Bearer and two posts of Cook in the offices of Marine Surveyor at Kollam and Baypore. Among those four posts, two posts of Cook-cum-Bearer were abolished and the post of Cook in which the applicant had worked upto 10.8.2005 was lying vacant. Accordingly, by Ext.P4 order, the applicant was allowed to continue in service as Cook in the office of the 3 rd respondent till attaining the age of superannuation, on provisional basis. The 2 nd respondent was directed to issue necessary orders permitting the applicant to continue in service from the date of relief as this Court has quashed Ext.P2 order.

7. Feeling aggrieved by Ext.P4 order to the extent the request for regularisation of service was declined, Ext.P5 representation was submitted before the Government. Thereafter, the applicant approached this Court in W.P.(C) No.1322/2008, which Writ Petition was disposed of by Ext.P7 judgment, relegating him to approach the Government. It was made clear in Ext.P7 judgment that, if any such claim is received, it shall be independently considered de hors non-regularisation of his service as per Ext.P4 order.

8. The applicant was issued with a memo dated 17.4.2007 of the 3 rd respondent stating that he should refund the wages paid for the period from 10.8.2005 upto 2.1.2006, i.e., from the date on which he had been relieved from service upto the date on which he was reinstated in service based on Ext.P4 order. The said memo was under challenge in W.P.(C) No.14218/2007. The said Writ Petition was allowed by Ext.P8 judgment, setting aside the said memo, thereby restraining the respondents from taking any steps to recover the wages already paid to the applicant for the period from 10.8.2005 to 1.1.2006.

9. On attaining the age of superannuation, the applicant was relieved from service on 31.5.2008, vide Ext.P9 memo issued by the 3 rd respondent. Claiming regularisation of service and pensionary benefits, the applicant submitted Ext.P10 representation before the Government. However, the said request was rejected by Ext.P11 order passed by the Government, stating that by Ext.P4 order the Government has already allowed the applicant to continue in service provisionally till the date of superannuation and that, the existing rules/orders do not permit regularisation of a provisional employee for the purpose of pensionary benefits.

10. Challenging Ext.P11 order, the applicant filed W.P.(C) No.7693/2011 (which was later transferred to the Tribunal and re-numbered as T.A.No.7552/2012) in which the applicant claimed regularisation of his service from 14.1.1983 to 31.5.2008 as a contingent employee and to grant him all consequential benefits. The applicant has also pointed out that, in similar circumstances this Court ordered regularisation in the case of other provisional hands. Ext.P12 is one such judgment in W.P.(C) No.9863/2004, which was affirmed by the Division Bench in Ext.P13 judgment in W.A.No.1886 of 2008. Pursuant to Ext.P13 judgment, the petitioner therein has been granted regularisation of his service, by Ext.P14 Government order dated 21.12.2009. Therefore, applicant sought for regularisation of his appointment.

11. The 1 st respondent has filed a counter affidavit, resisting the prayers in the Transfer Application, asserting that provisional hands are not entitled for regularisation. The Government in Ext.R1(a) order dated 26.8.2002 ordered that the service of provisional employees continuing in service as per Circular No.9516/Adv.C1/92/P&ARD dated 9.3.1995 and Government letter No. 9516/Adv.C1/92/P&ARD dated 17.3.1998 need not be regularised. It was ordered further that, the case of each provisional employee continuing in service as per Circular No.9516/Adv.C1/92/P&ARD dated 9.3.1995 will be examined and those deserving exceptional consideration on humanitarian grounds may be permitted to continue in service on provisional basis invoking Rule 39 of the KS&SSR without regularising their services. The 1 st respondent contended further that the case of the incumbent covered by Ext.P12 judgment is entirely different from that of the applicant. In Ext.P12 judgment there was a specific direction from this Court to regularise the provisional service of the petitioner therein as Technical Assistant in the Hydrographic Survey Wing, Beypore under the Port Department, who was a Rule 9(a)(i) appointee with more than 26 years service. The SLP filed by the State against Ext.P13 judgment in the Writ Appeal was dismissed and hence his service was regularised as per Ext.P14 Government order. However, in the instant case, this Court by Ext.P7 judgment directed the Government to consider independently the claim for regularisation made by the applicant, which was considered and Ext.P11 order was issued rejecting the said claim. In the case of the applicant he was allowed to continue, as there was no Special Rules or Executive orders for the post of Cook till 1994. So, he cannot claim regularisation.

12. In Annexure A1 order, the Tribunal held that appointment under Rule 9(a)(i) of the KS&SSR is an appointment otherwise than in accordance with the rules and Rule 9(a)(i) expressly provides that such appointees are not eligible for regularisation. Further, the general policy of the Government as contained in Ext.R1(a) order also stands in the way of regularising such persons. As such, there is nothing wrong in the stand taken by the Government in Ext.P11 order that, the applicant is not entitled for regularisation of his service. However, after taking note of the principle laid down by the Full Bench of this Court in Daisy‘s case (supra) the Tribunal observed that the applicant is prima facie entitled to get the benefit of that decision. Considering the fact that the applicant is having more than 20 years of service, the Tribunal disposed of the Transfer Application by directing him to submit a representation before the 1 st respondent for ex-gratia pension in the light of the Full Bench decision in Daisy‘s case (Supra) and the said respondent was directed to consider and pass appropriate orders thereon within three months from the date of receipt of a copy of the order.

13. We notice that, while disposing of the Transfer Application by Annexure A1 order, the Tribunal has not even adverted to the specific plea raised by the applicant for regularisation of his service, relying on Ext.P12 judgment of this Court, which was confirmed in Ext.P13 judgment of the Division Bench and implemented by the Government by Ext.P14 order after the dismissal of S.L.P.No.7038/2009 filed by the State before the Apex Court. Similarly, the Tribunal has also not adverted to the specific plea raised by the applicant for regularisation of his service in the light of observation made by the Apex Court in paragraph 53 of its decision in

# State of Karnataka v. Umadevi, (2006) 4 SCC 1

14. In Umadevi‘s case (supra) a Constitution Bench of the Apex Court has laid down the principle that, no temporary, contractual or casual employee can invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. Paragraph 47 of the judgment reads thus;

“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

15. However, in paragraph 53 of Umadevi‘s case (supra), the Constitution Bench carved out an exception to the general principles enumerated in paragraph 47. Paragraph 53 of the judgment reads thus;

“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in

# State of Mysore v. S.V. Narayanappa, 1967 (1) SCR 128

# R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409

and

# B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507

and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

16. In

# Amarkant Rai v. State of Bihar, (2015) 8 SCC 265

the Apex Court observed that, the objective behind the exception carved out in paragraph 53 of Umadevi‘s case (supra) was to permit regularisation of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who had served the State Government and its instrumentalities for more than ten years.

17. In

# State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247

the Apex Court explained the principles laid down by the Constitution Bench in Umadevi‘s case (supra) and also the meaning of ‘irregular’ and ‘illegal’ appointment referred to therein. In that context, the Apex Court held that, the exception contained in Umadevi‘s case (supra) is applicable, if the following conditions are fulfilled; (i) the employee concerned should have worked for ten years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years; (ii) The appointment of such employee should not be ‘illegal’, even if ‘irregular’. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be ‘illegal’. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be ‘irregular’. Therefore, Umadevi‘s case (supra) casts a duty upon the concerned Government or instrumentality, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of Courts or Tribunals, as a one-time measure.

18. In M.L. Kesari‘s case (supra), the Apex Court explained that, the object behind the direction contained in paragraph 53 of Umadevi‘s case (supra) is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ ad-hoc/casual for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. Therefore, the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi’s case) without the protection of any interim order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The Apex Court has also made it clear that, the fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi’s case or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi’s case as a one-time measure.

19. In

# Nihal Singh v. State of Punjab, (2013) 14 SCC 65

applying the ratio laid down in Umadevi‘s case (supra), the Apex Court directed regularisation of Special Police Officers, who were appointed under Section 17 of the Police Act, 1861, when there was large scale disturbance in the State of Punjab in 1980s and the State was not in a position to handle the prevailing law and order situation with the available police personnel. Relying on the Constitution Bench decision in Umadevi‘s case (supra) the State contended that, in the absence of sanctioned posts the regularisation sought for cannot be granted. Further, the employees are working as guards with various Banks and their wages are being paid by such Banks and, therefore, their claim for regularisation, if any, lay only to the concerned Bank, but not to the Police Department. On the other hand, it was contended on behalf of the employees that, after extracting their work for decades, the State cannot turn around and contend that their services cannot be regularised, as their appointments were not made against any sanctioned posts. After considering the rival contentions the Apex Court held that, the powers under Section 17 of the Police Act are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts. But, after permitting utilisation of the services of large number of employees for decades, the State is not justified in taking a defence that there are no sanctioned posts to absorb such employees.

20. In Nihal Singh‘s case (supra), in the context of the contention of the State of Punjab regarding absence of sanctioned posts, the Apex Court observed that, sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need. It is no doubt that the assessment of the need to employ a certain number of people for discharging a particular responsibility of the State under the Constitution is always with the Executive Government of the day, subject to the overall control of the Legislature. That does not mean that an examination by a Constitutional Court regarding the accuracy of the assessment of the need is barred [See:

# S.S. Dhanoa v. Union of India, (1991) 3 SCC 567

When the facts obtaining in a case demonstrate that there is need for the creation of posts, the failure of the Executive Government to apply its mind and take a decision to create posts or stop extracting work from persons for decades together itself would be arbitrary action (inaction) on the part of the State. Repelling the contention of the State regarding absence of sanctioned posts, the Apex Court has stated in categorical terms that, neither the State of Punjab nor the public sector Banks can continue such a practice consistent with their obligation to function in accordance with the Constitution and that, the decision in Umadevi‘s case (supra) cannot become a licence for exploitation by the State and its instrumentalities. Accordingly, the appeals were allowed directing the State of Punjab to regularise the services of the employees by creating necessary posts and upon such regularisation such employees were found entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State.

21. In the instant case, though the appointment of the applicant as Cook in the office of the 3 rd respondent by Ext.P1 order of appointment was a provisional appointment under Rule 9 (a)(1) of the KS&SSR, the applicant who was a candidate sponsored by the Divisional Employment Exchange, Kozhikode was permitted to continue in service for more than two decades, without the intervention of any orders of the Court or Tribunal. The Government has also found in Ext.P4 order that, the applicant was allowed to continue in service as Cook for the period from 24.1.1983 upto 10.8.2005 and that, the post occupied by him was lying vacant from that date. It was accordingly that, by Ext.P4 Government order the applicant was allowed to continue in service as Cook in the office of the 3 rd respondent purely on provisional basis till attaining the age of superannuation, i.e, till 31.5.2008.

22. Ext.P4 order to the extent the request for regularisation was declined was under challenge in W.P.(C) No.1322/2008. The said Writ Petition was disposed of by Ext.P7 judgment, relegating the applicant to approach the Government, and the Government was directed to consider the said claim independently, de hors non-regularisation of his service as per Ext.P4 order. However, the said request was rejected by Ext.P11 order, stating that the existing rules/orders does not permit for regularisation of a provisional employee for the purpose of pensionary benefits.

23. In Annexure A4 rejoinder filed before the Tribunal, the applicant has stated that the qualification prescribed for the post of Cook in the Special Rules, which came into force on 8.10.1994, much after his appointment, is literacy with experience in Army as Camp Cook or in Air/Port Department and the ability to cook cosmopolitan food. Relying on Annexure A1 proforma produced along with the rejoinder, containing the details of provisional hands in Hydrographic Survey Wing, the applicant contended that he has passed 8 th Standard and had experience as Cook in Army from 10.7.1975 to 17.12.1975. The applicant contended further that his appointment was after undergoing due selection process and against a sanctioned post of Cook. In Annexure A3 counter affidavit filed before the Tribunal, the respondents have no case that the applicant lacks the qualification/experience prescribed for the post of Cook in the Special Rules which came into force much after his appointment. They have also no case that his initial appointment was not against a sanctioned post.

24. Before the Tribunal, the applicant relied on Ext.P12 judgment of this Court in W.P.(C)No.9863/2004, which was confirmed in Ext.P13 judgment of the Division Bench in W.A.No.1886/2008. The said Writ Petition was filed by one Shri.M.K. Balakrishna Panicker, a candidate sponsored by the Employment Exchange, who was appointed as Technical Assistant (Electronics) in the office of the 2 nd respondent on 20.8.1976, on provisional basis, under Rule 9(a)(1) of the KS&SSR, who was permitted to continue in service till attaining the age of superannuation, i.e., till 31.3.2003. He claimed regularisation of his service, placing reliance on the judgment of this Court in O.P.No.15005/1996 filed by one Shri.M.C. Thomas (who was appointed as Field Assistant in the office of the 2 nd respondent under Rule 9(a)(1) of the KS&SSR on provisional basis), which judgment was confirmed in W.A.No.956/2003. This Court by Ext.P12 judgment allowed the Writ Petition filed by Shri.M.K. Balakrishna Panicker and ordered regularisation of his service with effect from 20.8.1976 with consequential service benefits. The said judgment was confirmed by Ext.P13 judgment of the Division Bench in W.A.No.1886/2008. S.L.P.No.7038/2009 filed by the State also ended in dismissal and thereafter, Ext.P12 judgment was implemented by issuing Ext.P14 Government order.

25. The decision of the Apex Court in Umadevi‘s case (supra) casts a duty upon the respondents to take steps to regularise the provisional service of the applicant, who is an irregularly appointed employee under the 2 nd respondent, who had served for more than ten years as on 10.4.2006, i.e., the date of decision in Umadevi’s case, without the benefit or protection of any interim orders of the Court or Tribunal. As clarified by the Apex Court in M.L. Kesari‘s case (supra), the fact that the respondents have not undertaken such exercise of regularisation within six months of the decision in Umadevi’s case or that such exercise was undertaken only in regard to a limited few, will not disentitle the applicant the right to be considered for regularisation in terms of the directions in Umadevi’s case as a one-time measure. In that view of the matter, the applicant is entitled for regularisation of his service as Cook under the 2 nd respondent for the purpose of pensionary benefits, as prayed for in the Transfer Application, and for disbursement of all consequential benefits. The stand to the contra taken by the 1 st respondent in Ext.P11 order is per se arbitrary and patently illegal.

26. In Daisy‘s case (supra) a Full Bench of this Court directed the State to sanction and disburse pension to a provisional employee invoking the power conferred on the Government under Rule 7 of Part I of the Kerala Service Rules read with Rule 11 of Part III thereof, having regard to ex gratia pension sanctioned to regular employees who have less than ten years of service. In the case on hand, the claim made by the applicant is not for ex gratia pension for his provisional service, but for regularisation of such service in terms of the directions in the decision of the Apex Court in Umadevi‘s case (supra) for the purpose of pensionary benefits and disbursement of consequential benefits. Therefore, the Tribunal went wrong in disposing the Transfer Application by directing the applicant to submit a representation before the 1 st respondent for ex-gratia pension in the light of the Full Bench decision in Daisy‘s case (Supra). In that view of the matter, we find no valid grounds to sustain Annexure A1 order of the Tribunal.

27. For the reasons stated above, we hold that the petitioner/applicant is entitled for regularisation of his service as Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits, as prayed for in the Transfer application, and for disbursement of all consequential benefits. Accordingly, we set aside Ext.P11 order passed by the 1 st respondent and allow T.A.No.7552/2012 to the above extent.

28. The respondents shall issue necessary orders regularising the service of the petitioner/applicant as Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits, within three months from the date of receipt of a certified copy of this judgment, and all consequential benefits shall be disbursed to him within a further period of one month.

The Original Petition is disposed of as above. No order as to costs.

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