Allowed

Smti Kalpana Devi v. the State of Assam and 5 Ors.

Gauhati HC14 Sept 2025WP(C)/4534/2022

Case brief

AI extract

What is this about?

Petitioner sought provincialisation of her teaching services as a Sanskrit tutor. The lower authority rejected the claim due to insufficient student enrollment in 2016. The High Court held that the 'last final examination' refers to the most recent exam prior to the order (2022), satisfying statutory criteria for provincialisation.

What did the court decide?

Set aside and quashed impugned order dated 25.04.2022; directed respondent authorities to provincialise the petitioner's services within 60 days.

Smti Kalpana Devi Vs the State of Assam and 5 Ors. — Education and Admissions | Gauhati HC (2025)

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GAHC010128722022

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IN THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Principal Seat at Guwahati

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WP(C) No. 4534/2022

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Smti Kalpana Devi, W/o – Sri Chinmoy Bhattacharya, Resident of Rangia, Ward No. 7, Mill Road, P.O.-Rangia, P.S.-Rangia, District-Kamrup(R), Assam,

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PIN-781354.

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…….. Petitioner

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- Versus -

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The State of Assam, Represented by Commissioner and

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Secretary to the Government of

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Assam, Department of Secondary Education, Dispur, Ghy-06, Assam

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The Director of Secondary Education, Assam, Kahilipara, Guwahati-19.

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The Inspector of Schools,

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Kamrup District Circle, Kamrup, PIN-781001.

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The State Level Scrutiny Committee, Represented by Commissioner and Secretary, Government of Assam,

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Page 1 of 13

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Department of Education, Kahilipara, Guwahati, District-Kamrup(M), Assam, PIN-781019.

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The District Level Scrutiny Committee, Kamrup, District-Kamrup, represented by Deputy Commissioner, Kamrup (Chairman) of the District Level Scrutiny Committee, Nalbari, PIN-781001.

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The Principal, Madhya Panduri Higher Secondary School, Jamtola, Rangia, District-Kamrup, Assam, PIN-781354.

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…….Respondents

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- B E F O R E-

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HON’BLE MR. JUSTICE ROBIN PHUKAN

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Advocate for the petitioner : Mr. T. J. Mahanta, Senior Advocate, assisted by Ms. P. Bhattacharya. Advocate for the respondents : Ms. D. Musahary, SC, Sec. Edu. Date of hearing : 22.07.2025. Date of judgment : 15.09.2025

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JUDGMENT & ORDER (CAV)

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Heard Mr. T. J. Mahanta, learned Senior Counsel, assisted by Ms. P. Bhattacharya, leaned counsel for the petitioner and Ms. D. Musahary, learned Standing Counsel for the respondent Nos. 1 to 5.

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Page 2 of 13

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2. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the Order dated 25.04.2022 (Annexure-17), issued by the Director of Secondary Education, Assam, Kahilipara, and also to issue direction to the respondent authorities to provincialise the service of the petitioner as Tutor in the subject of Sanskrit at Madhya Panduri Higher Secondary School, Jamtola, Rangia, under the provision of the Assam Education (Provincialisation of Services of Teachers and Reorganization of Educational Institutions) Act, 2017.

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3. Mr. Mahanta, learned Senior Counsel for the petitioner submits that the petitioner was appointed as subject teacher in Sanskrit at Madhya Panduri Higher Secondary School, Jamtola, Rangia, on 27.07.2009 and she joined in the said school on 01.08.2009 and is discharging her duties since then. The said school was provincialised in the year 2013 and though the petitioner was eligible for provincialisation of her services, but she was shown in excess and therefore, her service was not provincialised. Thereafter, on the enactment of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, which was later amended in 2018; the Principal of Madhya Panduri Higher Secondary School, Jamtola, Rangia submitted detailed information of individual teachers and students, who appeared in the Higher Secondary Final Year in Sanskrit from the said school, during the last seven years. Thereafter, the Inspector of Schools, Kamrup District Circle, forwarded the said proposal for provincialisation of services of the petitioner, vide letter dated 24.07.2018 (Annexure-6); and the petitioner has also submitted a representation before the respondent No. 2 on 05.08.2020 and in-fact, the respondent No. 3, vide his letter dated 11.09.2020, submitted his

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Page 3 of 13

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opinion regarding the provincialisation of service of the petitioner; and there are sufficient students in the subject of Sanskrit since the last seven years, and the results of the Higher Secondary Examination in the subject of Sanskrit are very impressive; and the petitioner fulfils all the conditions of provincialisation in the post of Tutor of Sanskrit, as per the provision of the Act of 2017; but her service was not provincialised, in spite of fulfillment of all the conditions. Thereafter, she approached this Court by filing WP(C) No. 4783/2021 for provincialisation of her services as Tutor in the subject of Sanskrit, and vide letter dated 21.09.2021, the Court disposed of the said petition with a direction to the respondent No. 2 to verify the entire record and to pass appropriate order, by giving reasons regarding the provincialisation of the service of the petitioner as Tutor in the subject of Sanskrit in Madhya Panduri Higher Secondary School; but the respondent No. 2 without taking into consideration the materials on record and without considering the judgment of this Court dated 21.09.2021, issued the impugned order dated 25.04.2022 (Annexure-17), rejecting the claim of the petitioner.

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3.1. Mr. Mahanta, further submits that the petitioner is the only teacher in the subject of Sanskrit in Madhya Panduri Higher Secondary School, Jamtola, Rangia, for the last four years, and in spite of fulfillment of all the necessary conditions under the Provincialisation Act of 2017; the respondent No. 2, without examining and verifying the materials on record, dismissed the prayer of the petitioner, which is arbitrary and illegal and therefore, the petitioner approached this Court by filing the present petition, challenging the aforesaid order; and under such circumstances, Mr. Mahanta has contended to allow this petition.

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Page 4 of 13

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3.2. Mr. Mahanta has also referred to the additional affidavit filed by the petitioner, bringing on record the number of students who had appeared in the final examination, the total number of students who passed in the subject and the pass percentage for the years 2021, 2022, 2023, 2024 and 2025.

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4. Per contra, Ms. Musahary, learned Standing Counsel for the respondent Nos. 1-5; referring to the affidavit filed by the respondent No. 2, dated 28.02.2024, submits that while the matter of the petitioner was placed before the District Level Scrutiny Committee, the same was not recommended; and as per the report of the Assam Higher Secondary Education Council (AHSEC), the enrollment in Sanskrit subject during the year 2016, in the Higher Secondary Education Leaving Certificate (HSSLC) final examination was only six, for which, the service of the petitioner was not provincialised under the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, as amended in 2018. Moreover, as per the report of the Inspector of Schools, KDC, Kamrup, the enrollment in the Sanskrit subject during the year 2016 in the Higher Secondary Education Leaving Certificate (HSSLC) was only six and it does not fulfill the criteria of provision of Section 3(1)(vii) of the aforesaid Act, 2017, as amended in 2018; and the said section provides that at least 10 students must have appeared in the last final examination in each subject, including the core subject, in case of Venture High School, Venture High Madrassa or Venture Higher Secondary School or Venture Senior Secondary School or Venture Junior College; and in addition to fulfillment of other provisions of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017,

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Page 5 of 13

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as amended in 2018; Section 4(2)(iv) of the said Act provides that to provincialise the teachers and/or tutors of the schools for special subject like Sanskrit, Arabic, Hindi, Craft Teacher, Music Teacher and other Classical Teachers; the number of students appeared in the concerned final examination like HSLC and HS (10+2), conducted by the SEBA or the AHSEC, as the case may be, shall not be less than 10 (ten) students in each class per year during the last three years; and the impugned order dated 21.09.2021, passed in WP(C) No. 4738/2021, was passed after obtaining a report from the Inspector of Schools, KDC, Kamrup, wherein, it is stated that the enrollment in Sanskrit subject in the year 2016, in the HSSLC final examination was only 6 (six) and under such circumstances, the service of the petitioner cannot be provincialised.

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4.1. Referring to the additional affidavit filed by the respondent No. 3 dated 22.05.2025, Ms. Musahary submits that in the year 2015, the number of students appeared were 4 and passed were 4; in the year 2016, the number of students appeared were 6 and passed were 6; in the year 2017, the number of students appeared were 4 and passed were 4; in the year 2018, the number of students appeared were 12 and passed were 12; in the year 2019, the number of students appeared were 16 and passed were 16 and in the year 2020, the number of students appeared were 21 and passed were 20.

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5. In reply to the above, Mr. Mahanta submits that the term 'last final examination' in the Section 3(1)(vii) of the amended Act, 2018, cannot be considered as the year 2016, since the case of the petitioner was considered on 25.04.2022, the 'last final examination‟ should be 2022 itself, as the examination was held in the month of March in that year, and in worst case, it should be the year 2021 and in that event also, the

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Page 6 of 13

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petitioner fulfills the requirement of Section 3(1)(vii) as well as Section 4(2)(iv) of the Act of 2017, as amended in the year 2018, as in both the year, i.e., 2022, the number of students was 21 and in the year 2021, the number of students was 20 and in the preceding 4 (four) years, the number of students was 20, 23, 16 and 14, respectively.

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6. The petitioner has filed her affidavit-in-reply to the affidavit-inopposition filed by the respondent No. 2, by taking a stand that the respondent No. 2 has not properly explained the provision of the Act and Section 3(1)(vii) of the Act of 2017, was amended in 2018 by substituting the provision; and the amendment Act received the assent of the Governor on 9^th May, 2018 and was published in the Assam Gazette on 16^th May, 2018 and the same was published for general information. As such, Section 3(1)(vii) came into effect w.e.f. 16.05.2018, in which, the amendment Act, 2018 came into force and moreover, as per provision of Section 3(1)(vii) of the amended Act, 2018, at-least ten students must have appeared in the last final examination in that particular subject from that institution and in that regard, the last final examination will be the final examination held in February, 2018. In 2018, the enrollment of students in Sanskrit in the Higher Secondary Final Examination of Madhya Panduri Higher Secondary School, Jamtola, Rangia were 14 numbers, and thus, satisfies the requirement of Section 3(1)(vii) of the Amended Act, 2018; and that the criteria laid down under Section 4(1)(iv) of the Act was fulfilled by the petitioner.

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7. Having heard the submissions advanced by the learned counsel for both the parties, I have carefully gone through the petition and the

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Page 7 of 13

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documents placed on record and also perused Sections 3(i)(vii) and 4 of the Act of 2017, as amended in 2018.

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8. The respondent No. 6, the Principal (i/c) of Madhya Panduri Higher Secondary School, Jamtola, Rangia has also filed his affidavit-inopposition, wherein, it is stated that the petitioner has been working since the date of her joining on 01.08.2009 till date, and she was found as excess in number and her subject „Sanskrit‟ was shown as affiliated under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. It has also been stated that the petitioner was dropped out at the time of provincialisation of the school under the Act of 2011, and under the Act of 2017, as amended in 2018. It is also stated that year-wise breakup for appearance and passed out students in the Higher Secondary Final Examination from the year 2014 to 2023 is as

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under –

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Subject	Year	Total students appeared in the final examination	Total students passed	Passed percentage
Sanskrit	2014	12	10	83.33%
Sanskrit	2015	04	04	100%
Sanskrit	2016	06	06	100%
Sanskrit	2017	04	04	100%
Sanskrit	2018	14	12	85.71%
Sanskrit	2019	16	16	100%
Sanskrit	2020	23	23	100%
Sanskrit	2021	20	20	100%
Sanskrit	2022	21	19	90.47%
Sanskrit	2023	32	25	78.12%

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And, that the pass percentage of the students in Sanskrit of Higher Secondary School Final Examination for the last 10 years is very good

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Page 8 of 13

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and more than ten students had appeared in the Higher Secondary Final Examination during the last six years. 9. The basic facts in this petition are not in dispute. The petitioner was appointed as subject teacher in Sanskrit at Madhya Panduri Higher Secondary School, Jamtola, Rangia, on 27.07.2009 and she joined in the said school on 01.08.2009 and since then, she has been working under the said school. The school was provincialised in the year 2013, but her service could not be provisincialised, as she was shown as an excess teacher and was dropped out as such. The Principal of the Higher Secondary School had forwarded the proposal for provincialisation of services of the petitioner (vide Annexure-6) to the Inspector of Schools and also the petitioner had submitted representation to the respondent No. 2 on 05.08.2020; but the same failed to evoke any response, for which, the petitioner had filed WP(C) No. 4783/2021; wherein, direction was issued to the respondent No. 2 to verify the entire record and to pass appropriate order. But, vide impugned order dated 25.04.2022 (Annexure-17), the respondent No. 2 rejected the claim of the petitioner.

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10. Perusal of the speaking order dated 25.04.2022, indicates that in the said speaking order, the Director had found that the District Level Scrutiny Committee (DLSC) has not recommended the name of the petitioner, and the enrollment in Sanskrit subject in HSSLC Final Examination, during the year 2016 was only six; and as per the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, as amended 2018; the enrollment in HSSLC Final Examination should be 10 (ten) in the year 2016 and in view of the above, the prayer of the petitioner could not be considered.

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Page 9 of 13

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11. On perusal of the Section 3(1)(vii) of the Act 2017, as amended in 2018; indicates that at least ten students must have appeared in the last final examination, in all subjects, including the core subject; in case of Venture High School, Venture High Madrassa or Venture Higher Secondary School or Venture Senior Secondary School or Venture Junior College and Section 4(2)(iv) of the Act provides that to provincialise the teachers and/or tutors of the schools for special subjects like Sanskrit, Arabic, Hindi, Craft Teacher, Music Teacher and other Classical Teachers, the number of students appeared in the concerned final examination like HSLC and HS (10+2), conducted by the SEBA or the AHSEC, as the case may be, shall not be less than 10 students in each class per year during the last three years. The prayer for provincialisation of the petitioner was considered by the respondent No. 2 vide impugned order dated 25.04.2022, and the affidavit-in-opposition filed by the Principal, specially from the chart in the paragraph No. 13 indicates the number of students as under -

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Subject	Year	Total students appeared in the final examination	Total students passed	Passed percentage
Sanskrit	2014	12	10	83.33%
Sanskrit	2015	04	04	100%
Sanskrit	2016	06	06	100%
Sanskrit	2017	04	04	100%
Sanskrit	2018	14	12	85.71%
Sanskrit	2019	16	16	100%
Sanskrit	2020	23	23	100%
Sanskrit	2021	20	20	100%
Sanskrit	2022	21	19	90.47%
Sanskrit	2023	32	25	78.12%

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11.1. And, while the impugned order was passed on 25.04.2022, the number of students as per Section 4(2)(iv), shall not be less than 10 (ten) numbers for the last three years and if that being so, the years to be considered are 2019, 2020 and 2021; and in the year 2019, the number of students appeared were 16 and passed were 16; in the year 2020, the number of students appeared were 23 and passed were 23 and in the year 2021, number of students appeared were 20 and passed were 20 and thus; the requirement of Section 4(2)(iv) of the 2017 Act, as amended in 2018; appears to be fulfilled and Section 3(1)(vii) of the Act, 2017, as amended in 2018; requires that at least ten students must have appeared in the last final examination and the last final examination, as required in the said Act of 2017; is the year 2022 itself, as the case of the petitioner was considered on 25.04.2022, when the examination was over in the month of March, 2022, in which year the number of students was 21; and in the year 2021, the number of students appeared was 20 and passed was 20.

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11.2. However, in the said impugned order, the respondent No. 2 had considered the number of enrollment in the year 2016, which, to the considered opinion of this Court, is an erroneous interpretation as well as application of law and in that view of the matter, the impugned order, dated 25.04.2022 fails to withstand the legal scrutiny and as such, the same is liable to be interfered with.

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12. It is to be noted here that the phrase “last final examination” used under Section 3(1)(vii) of the Act of 2017, as amended in 2018; was interpreted by a Co-ordinate Bench of this Court in WP(C) No.

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Page 11 of 13

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730/2023 , in its judgment and order dated 19.09.2023; wherein, it has been observed as under –

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“ The rival contentions advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined. The relevant provision of law has already been extracted above. The controversy in this case is only with regard to the meaning which can be assigned to the expression "last final Examination". The expression used namely "last final Examination" is not qualified by any other provision which may give the Department to contend that it is the examination held in the previous year. When the statute in question is plainly worded, there is no scope to give any other meaning than the one which appears from a plain reading of the statute. Under the principles of interpretation of statute, it is the plain meaning which is required to be taken into consideration unless such plain reading does not make any reasonable construction. In the instant case, there is no dispute with regard to the fact that the examination of the Higher Secondary Examination of the year 2017 was held between February, 2017 to March, 2017 and the expression used in the statute is with regard to appearance of at least 10 students. The Department has not disputed the data produced in this case with regard to the number of students which have been projected to be 13. ”

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12. Thus, the observation so made by a Co-ordinate Bench of this Court also supports the contention so made by Mr. Mahanta, the learned counsel for the petitioner. This Court finds substance in the submission of Mr. Mahanta, the learned counsel for the petitioner and accordingly, this Court records concurrence to the same.

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13. In the result, I find sufficient force in this petition and accordingly, the same stands allowed. The impugned order dated 25.04.2022, stands set aside and quashed.

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14. By a mandamus of this Court the respondent authorities are directed to provincialise the petitioner. And this exercise has to be carried out within a period of 60 (sixty) days from the date of receipt of certified copy of this order.

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15. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities, within a period of 1 (one) week from today.

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JUDGE

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Comparing Assistant

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Smti Kalpana Devi v. the State of Assam and 5 Ors.

Case brief

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Smti Kalpana Devi v. the State of Assam and 5 Ors.

Case brief

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