Allowed

Smt M.Rizwana Khathnoon, v. S.K.Khairun Bee

Telangana HC12 Sept 2012WA/307/2011

Case brief

AI extract

What is this about?

Appellants, temporary fair price shop dealers, filed writ appeals challenging the appointment of regular dealers. The High Court dismissed the appeals and held the writ petitions were not maintainable as appellants lacked the minimum educational qualification required under the relevant guidelines and were barred by res judicata from re-litigating the validity of the selection notification.

What did the court decide?

Writ appeals allowed; order of learned Single Judge setting aside the selection of regular dealers reversed; writ petitions dismissed as not maintainable.

Smt M.Rizwana Khathnoon, Vs S.K.Khairun Bee — Pension and Retirement Benefits | Telangana HC (2012)

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THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY, THE TWELFTH DAY OF SEPTEMBER TWO THOUSAND AND TWELVE

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PRESENT

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THE HON'BLE ACTING CHIEF JUSTICE PINAKI CHANDRA GHOSE AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR

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WRIT APPEAL Nos.307, 308, 309, 310, 311, 313, 1012 and 1013 of 2011

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BETWEEN

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Smt. M. Rizwana Khatoon and others.

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…APPELLANTS

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AND

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S.K. Khairun Bee and others.

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…RESPONDENTS

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Counsel for the Appellants: MR. A. SATYA PRSAD For MR. PRAKASH BUDDARAPU

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Counsel for the Respondents: GP FOR CIVIL SUPPLIES MR. K.V.N. BHUPAL

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The Court made the following:

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COMMON JUDGMENT: (per Hon’ble Sri Justice Vilas V. Afzulpurkar)

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Writ appeal Nos.307, 308, 309, 310, 311, 313 of 2011 are preferred against the order of the learned single Judge in WP.No.14130 of 2010 and batch dated 24.03.2011; WA.No.1013 of 2011 is preferred against the common order of learned single Judge in WP.No.11529 of 2010 and batch dated 29.04.2011 and W.A.No.1013 of 2011 is preferred against the order of

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learned single Judge in W.P.No.17537 of 2010 dated 20.07.2011, covered by the aforesaid batch in WP.No.14130 of 2010 dated 24.03.2011 whereunder the selection of permanent dealers of fair price shops, which was subject matter of the writ petitions, was set aside and further directions were issued to the appointing authority to issue another notification for all such shops and conduct fresh selections, as per the method prescribed under G.O.Ms.No.52 dated 18.12.2008 and till the completion of process of fresh selections, status quo as existing on the date of common order in respect of running of fair price shops was to be maintained.

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2. In this batch of appeals, while issuing notice before admission on 30.04.2011, an interim order was passed permitting official respondents to go ahead with the selection process, as per the impugned order in the batch, however, implementation of final list was stayed pending further orders. Various vacate petitions have been moved by the affected respondents in these appeals whereupon with the consent of all the learned counsel, we had finally heard the main appeals and had reserved them for judgment on 29.08.2012.

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3. The relevant factual matrix is as follows:

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A large number of vacancies existed for the dealers of the fair price shops in Kurnool and Nandyal divisions of the State and all those fair price shops were being run by appointing temporary dealers pending appointment on regular basis. The civil supplies authorities, therefore, took steps for filling up the said vacancies on regular basis and the Revenue Divisional Officer of the concerned division issued separate notification for each shop notifying the vacancy and proposing to make regular selection of dealers.

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4. Some of the temporary dealers filed writ petitions, being WP.No.5458 of 2010 and batch questioning the respective individual notifications. The said batch of writ petitions was, however, dismissed by a learned single Judge by order dated 10.03.2010, primarily, on the ground that the temporary dealers

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have no right to question the selection of regular dealers undertaken by the authorities.

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The temporary dealers, therefore, filed W.A.No.221 of 2010 and batch, which was dismissed by a Division Bench, to which one of us is a party (VVA, J), by judgment dated 12.07.2010. By the said judgment,

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the Division Bench agreed with the learned single Judge that the only right, which accrues to the temporary dealers from the order of their appointment, is to continue till regular appointment is made and

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as such, subject to such liberty, the authorities were free to proceed with the said selections. The Division Bench also took note of the specific assertion of the learned Government Pleader for Civil Supplies that in appointing regular dealers no pick and choose method will be adopted and such appointments will be made only by regular selection process. It was also made clear that the dismissal of writ appeals was only to the extent of basic notification and the questions with respect to final selection were not dealt with.

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5. Accordingly, the selection process was completed and

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181 regular dealers were appointed. Some of the temporary dealers, who felt aggrieved by the selection and appointment of regular dealers, once again filed writ petitions, being W.P.No.14130 of 2010 and batch, before this Court questioning the notification as well as the selection process and appointment of respective individual dealer relevant to such writ petition. It has to be noted, however, that only a few of the temporary dealers had filed the said batch of writ petitions and secondly, only a few of the regular permanent dealers appeared and contested the said batch, as party respondents in the respective case.

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6. Learned single Judge framed three points for consideration as follows:

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1. Whether the selection process followed by the appointing authority is valid and proper?

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2. Whether the petitioners are entitled to question the selection process?

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3. Whether the appointing authorities have acted correctly in fixing reservations?

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7. On consideration of the rival contentions, the learned single Judge held that the circular issued by the Collector (Civil Supplies) prescribing the mode of selection does not accord with the prescribed guidelines issued in G.O.Ms.No.52 Consumer Affairs, Food and Civil Supplies (CS.I) dated 18.12.2008 and since the said circular materially alters the selection procedure, point No.1 was held in favour of the writ petitioners. On point No.2, learned single Judge answered the same in favour of the writ petitioners by holding that merely because the petitioners have participated in the written test and oral interview, they were not precluded from questioning the selection process,

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as according to the learned single Judge the selection process itself was vitiated. On point No.3 also the learned single Judge found that the method of earmarking fair price shops for various communal reservations was improper.

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8. In this batch of appeals, at the instance of regular dealers,

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who were selected and who claim to be working as such, various contentions have been raised urging us to uphold the selection of regular dealers already made by the civil supplies authorities.

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9. Mr. A. Satya Prasad, learned senior counsel lead submissions on behalf of the appellants whereas the learned Government Pleader for Civil Supplies defended the action of the Department and Mr. K.V.N. Bhupal lead submissions on behalf of the respondents/writ petitioners supplemented by Mr. K.V. Raghuveer and other learned counsel.

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10. One of the principal contentions raised by Mr. A. Satya Prasad is that none of the respondents/writ petitioners are qualified to participate in the selection of regular dealers (except the unofficial respondent in W.A.No.307 of 2011). He, therefore, submits that challenge, at the instance of such

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ineligible temporary dealers to the selection procedure and the selection, ought not to have been allowed. He also submits that the notifications issued earlier were subject matter of challenge in the earlier round of writ petitions i.e. W.P.No.5458 of 2010 and batch, which was negatived and the said order was upheld by a Division Bench when W.A.No.221 of 2010 and batch was dismissed. In that view of the matter, except the selection, it was not open for the temporary dealers to once again question the notifications in the present batch of writ petitions and the learned single Judge has erred in permitting the writ petitioners/temporary dealers to once again question the notification on fresh grounds and further error is committed in setting aside the notification and the selection process by directing fresh notifications to be issued.

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11. Learned senior counsel contends that various grounds now raised by the respondents/writ petitioners to invalidate the notifications cannot be allowed to be urged on the principles of constructive res judicata. He also pointed out that out of 181 regular dealers selected and appointed in the two divisions, referred to above, only a few of the appointments were questioned and the order impugned now results in fresh exercise commencing from issuance of notification, as directed, which is beyond the scope of the writ petitions.

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12. Mr. K.V.N. Bhupal and the other learned counsel appearing on behalf of the respondents/writ petitioners contended that the writ petitioners have been continuing as temporary dealers for years and they have been issued authorizations, which are renewed from time to time. He points out that under the guidelines then existing, though the writ petitioners have not passed 10^th class but held qualifications of pass in 7^th class, were found eligible and working as such for years together. Learned counsel, therefore, submits that excluding them from consideration on the ground that they have not passed 10^th class is wholly arbitrary and amounts to ignoring their work experience

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as fair price shop dealers over the years. He placed reliance upon para 5(b) dealing with minimum general educational qualifications, as prescribed under revised guidelines under G.O.Ms.No.4 Consumer Affairs, Food and Civil Supplies (CS.I) Department dated 19.02.2011. For the sake of convenience para 5 is extracted hereunder:

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5. MINIMUM GENERAL EDUCATIONAL QUALIFICATIONS:

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5.1 A pass in 10^th class shall be the minimum general educational qualification required for appointment as a fair price dealer;

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(a) Persons possessing the minimum general educational qualifications and the persons having higher qualifications, if applied, shall be treated equally for the purpose of appointment; and

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(b) Where no candidate is available with the said minimum general educational qualifications and if a candidate possessing a lesser educational qualifications which shall not be less than a pass in 7^th class, applies, there shall be no objection to consider him for appointment, under special circumstances to be notified by the appointing authority.

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13. Based on clause (b) above, the learned counsel points out that even a pass in 7^th class, which all the writ petitioners satisfy, has not been taken into consideration by the authorities. He placed reliance upon a decision of a Full Bench of this Court in M. VANAJA v.

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[1] B. BALASESHANNA . The said decision, however, is relevant for the proposition that the expression ‘any person aggrieved’ appearing in clauses 20 and 21 of the Andhra Pradesh Public Distribution System Control Order, 2001 comprehends within itself temporary fair price shop dealer and latter has locus to challenge an order made under clauses 5, 20(1) or 20(2) of the Control Order by filing an appeal or revision, as the case may be. We do not, therefore, think that the said decision is relevant for the purpose of questions arising in this batch of appeals.

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14. Learned counsel also raised various other contentions that as per the guidelines prescribed under G.O.Ms.No.52 dated 18.12.2008, all vacancies

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for fair price shops shall be notified on the 1^st of every month by the appointing authority and invite the applicants for walk-in-interviews. It further provides that selection shall be made on the basis of interview conducted by the appointing authority purely on merits to be decided on the basis of minimum general educational qualifications of the candidates. Learned counsel, therefore, submits that the selection procedure followed in the present impugned selections is contrary to the aforesaid guidelines and therefore, holding of written test and interviews by the authorities was rightly not approved by the learned single Judge apart from awarding 50% marks for the interview based upon the judgment of this Court i n JINKA CHINNA TIRUPELAIAH v. GOVERNMENT OF ANDHRA

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[2] PRADESH . Learned counsel, therefore, urged that in these appeals no interference is called for, as the order of the learned single Judge merely directed fresh selection process to be undertaken in accordance with the guidelines.

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15. In order to appreciate the rival contentions, it would be appropriate to first notice certain undisputed facts, as under:

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That the guidelines for selection and appointment of fair price shop dealers is prescribed under G.O.Ms.No.52 CAF &CS (CS.1) Department dated 18.12.2008 and the salient features thereof are as follows:

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(a) Para 1.4 provides that the appointing authority shall be the Revenue Divisional Officer/Sub-Collector/District Supply Officer (City), who shall notify the fair price shop vacancies, as per roster and there should not proportionate allocation of category of vacancy of the unit and percentage of reservations should be filled up scrupulously.

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(b) Clause 5 provides minimum general educational qualifications, as already extracted above, which provides that minimum qualifications shall be a pass in 10^th class.

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(c) Clause 6 provides maximum age limit of 40 years and

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clause 7 provides reservations to be followed while making appointment for SC/ST/Physically Handicapped/BC at 15%, 6%, 3% and 25% respectively and clause 8 requires that candidate shall be a resident of the Gram Panchayat or the Municipal limits of the town, as the case may be, in which the shop is to be located.

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(d) Preference as well as other general conditions are further provided, which includes the duties, a fair price shop dealer is required to discharge on being appointed.

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G.O.Ms.No.4 CAF & CS (CS.1) Department dated 19.02.2011 revised the said guidelines issued under G.O.Ms.No.52 dated 18.12.2008 wherein the selection procedure is modified providing written test, interview and selection apart from other modifications.

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16. It would, thus, be noticed that the minimum general educational qualifications of 10^th class is required to be fulfilled by any candidate desiring to participate in the selections notified. The principal contention of Mr. A. Satya Prasad, learned counsel for appellants,

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that none of the writ petitioners (except unofficial respondent in W.A.No.307 of 2011) possess the minimum educational qualification and as such, are neither competent to participate in the selection nor can they question the selection of eligible candidates, is not in serious controversy. In fact, Mr. K.V.N. Bhupal, learned counsel for respondents, very fairly stated before us that none of the writ petitioners hold qualification of a pass in 10^th class but he defends their eligibility on the ground that they were appointed several years ago based on their qualification of having passed in 7^th class and thereby their experience and working as dealers for all these years cannot be ignored.

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17. The fact, which is not in controversy, however, is that none of the writ petitioners (except unofficial respondent in W.A.No.307 of 2011) are either eligible to apply and to compete for the said regular selections nor any of the

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writ petitioners have applied for appointment in pursuance of the notification. In the absence of eligibility and necessary locus, the challenge on their behalf to the selection of regular dealer itself is vitiated, as none of the writ petitioners are,

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in any case, entitled to be considered on account of their admitted lack of qualification.

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18. So far as the said unofficial respondent in W.A.No.307 of 2011, Smt. S.K. Khairun Bee, is concerned, she had filed WP.No.6029 of 2010, challenging the notification, which was dismissed by order dated 17.03.2010 following the decision of the learned single Judge in batch of writ petitions, being W.P.No.5458 of 2010 and batch. The said order was also confirmed by the Division Bench when W.A.No.221 of 2010 and batch was dismissed on 12.07.2010. She, however, filed subsequent W.P.No.15562 of 2010 challenging the very same notification and consequential appointment of the appellant.

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The records further show that during the selection she secured lesser marks than the appellant herein and thereby in preference to her,

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the appellant in W.A.No.307 of 2011 was selected. Thus, the said respondent, is the only qualified candidate among the writ petitioners, was not selected on merits.

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19. The further contention of Mr. A. Satya Prasad, learned counsel for the appellants, that none of the writ petitioners is eligible to question the notification also appears sustainable, as in the earlier batch of writ petitions all the writ petitioners had questioned the notification relevant to their shop and the batch of writ petitions were dismissed and the said judgment was confirmed by the Division Bench in WA.No.221 of 2010 and batch specifically holding that the only right which flows to the writ petitioners is to continue till regular appointment is made. The said judgment of the Division Bench dismissing the batch of writ appeals specifically confines it to the extent of basic notification and as such, the notification, impugned in that

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batch and upheld by the learned single Judge and the Division Bench, is not open to challenge in the fresh batch of writ petitions impugned herein.

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20. The further contention of Mr. A. Satya Prasad, learned counsel for the appellants, that the various grounds urged in support of the present batch of writ petitions regarding the selection procedure, marks awarded at the interview or the manner in which the reservation is applied are all matters touching the validity of the notification and as stated above, the same is not open to question in the second round of litigation in view of the finality attached to the first round of litigation negativing the challenge to the notification. Further more, all these contentions, which are now raised under the impugned order, were available for all the writ petitioners to be urged in the first instance and as such, even on the principles of constructive res judicata, it is not open for the writ petitioners to seek invalidation of the notification on any of the grounds aforesaid.

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21. Learned single Judge had framed point No.2, as extracted above, for consideration regarding the eligibility of the writ petitioners but has answered the said issue in favour of the respondents/writ petitioners without reference to any of the grounds, as noted above. We are, therefore, constrained to dismiss the writ petitions on the findings, as recorded above and consequently, the order of the learned single Judge impugned in this batch of appeals is reversed.

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22. Before parting with the case, it would be appropriate to deal with one submission of Mr. K.V.N. Bhupal, learned counsel for respondents/writ petitioners, that all the writ petitioners were appointed years ago on the basis of eligibility, as having passed

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7^th class. While it is true that the writ petitioners have been working for quite a long number of years, presumably satisfactorily, but in view of the eligibility criteria fixed under G.O.Ms.No.52 dated 18.12.2008 does not permit consideration of their cases merely on the ground of experience. The matter,

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as to what should be the eligibility criteria and the source of recruitment and as to whether the dealers can be appointed partly by direct recruitment and partly from out of the experienced temporary dealers, are all matters in the realm of the policy decision of the State. In terms of existing policy in G.O.Ms.No.52 dated 18.12.2008, laying down criteria for selection, it is not possible to accept the contention of Mr. K.V.N. Bhupal so as to permit consideration of the writ petitioners for the appointment of regular dealers.

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Consequently, the writ appeals are allowed. As a sequel,

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the miscellaneous applications, if any, shall stand disposed of as infructuous. However, there shall be no order as to costs.

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_________________________ PINAKI CHANDRA GHOSE, ACJ

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_____________________ VILAS V. AFZULPURKAR, J

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September 12^th , 2012 DSK

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[1] 2007 (4) ALD 388 (FB) [2] 2012 (4) ALT 189

Smt M.Rizwana Khathnoon, v. S.K.Khairun Bee

Case brief

What is this about?

What did the court decide?

Smt M.Rizwana Khathnoon, v. S.K.Khairun Bee

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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