Gujarat High Court
Jigar Jitendrakumar Nayak Son Of ... vs Ahmedabad Municipal Transport Service ... on 11 September, 2025
NEUTRAL CITATION
C/SCA/11282/2018 ORDER DATED: 11/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11282 of 2018
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JIGAR JITENDRAKUMAR NAYAK SON OF JITENDRAKUMAR
BALDEVBHAI NAYAK
Versus
AHMEDABAD MUNICIPAL TRANSPORT SERVICE THROUGH CHAIRMAN
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Appearance:
MS SHEEJA G NAYAR(5458) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2025
ORAL ORDER
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"A. Your Lordships may be pleased to issued a writ of certiorari or any appropriate writ, order of direction in the nature of certiorari, quashing and setting aside decision dated 20.04.2017 passed by Labour Welfare Officer, Ahmedabad Municipal Transport Service, Jamalpur, Ahmedabad and further consider the case of the petitioner for compassionate appointment, expeditiously, so as to give immediate relief and respite to the petitioner, thereby, achieve the aim and object sought by compassionate appointment policy;Page 1 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025
NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined OR IN THE ALTERNATIVE B. Your Lordship may be pleased to issue a writ of mandamus or any appropriate writ, order of direction in the nature of mandamus, directing the respondent authority to consider the case of the petitioner for payment of Lump sum Compensation a per their own Circular Dated 22.12.2016 and if found eligible, release the said amount as expeditiously as possible, within period of one month;
D. Any other and further relief as may be deemed fit just and proper may kindly be granted in favour of the Petitioner, in the interest of justice."
2. Heard learned advocates. Rule returnable forthwith. The learned advocates for the respective parties have jointly submitted that the Coordinate Bench of this Court has passed an order in the case of similarly situated person vide order dated 19.12.2024 recorded on Special Civil Application No.2356 of 2018. They have fairly submitted that appropriate order may be passed on the same line.
3. The petitioner herein is the son of the deceased - Jitendrakumar Baldevbhai Nayak; having expired due to cancer on 30.12.2016 and was working as a Driver with the Page 2 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined respondent No.1. Upon death of the petitioner's father, as referred above, the petitioner applied for appointment on compassionate ground on 17.02.2017 duly produced at Annexure - C. The petitioner's name figured in the waiting list which is duly produced at page 67, dated 01.04.2016.
4. Learned advocate appearing for the petitioner relied on the facts, referred above, and submitted that the petitioner's husband expired while working with the respondent on 30.12.2016 as Driver. The petitioner herein applied for appointment on compassionate ground however, in view of the waiting list wherein, 325 employees whose legal heirs are in the waiting list, the petitioner's application is kept pending.
4.1 It is submitted that the remaining Rs.8,00,000/- be disbursed in favour of the petitioner in light of the policy applicable to the petitioner on the date of death of petitioner's husband i.e. 30.12.2016. Reliance is placed on the policy of the AMC for compassionate appointment dated 22.12.2016. Placing reliance of the same, it is submitted that the said policy is applicable in the facts of the present case. 4.2 Reliance is also placed on the order passed by the Hon'ble Division Bench in Letters Patent Appeal No.475 of Page 3 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined 2016 dated 16.06.2016 more particularly, paragraph 13 of the said order wherein, it is held that the AMTS is managed by Transport Manager and the AMC has adopted the service oriented attitude and it is not a firm or a company but, a service organization and AMTS is voluntary service managed by the AMC under the BPMC Act. It is held that the policy framed by the AMC is also applicable to AMTS. In view of the aforesaid, it was held that the petitioner in Special Civil Application No.13428 of 2012 was entitled for the lumpsum compensation as per the policy of the AMC. It is submitted that the aforesaid was subject matter of challenge before the Hon'ble Apex Court wherein, the appeal being Special Leave to Appeal (C) No.27561 of 2016 came to be dismissed by order dated 16.11.2018.
4.3 Reliance is placed on the ratio laid down by the Hon'ble Apex Court in case of Raghunath Rai Bareja and Anr. vs. Punjab National Bank & Ors. reported in (2007) 2 SCC 230 : 2006 SCC Online SC 1348 . Reliance is also placed on the ratio laid down by the Hon'ble Apex Court in case of Ashwani Kumar Singh vs. U.P. Public Service Commission & Ors. reported in (2003) 11 SCC 584 : 2004 SCC (L&S) 95 :
2003 SCC Online SC 684.
4.4 Placing reliance on the aforesaid, it is submitted Page 4 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined that the petitioner herein is governed by the policy prevailing on the date of death of the petitioner's husband i.e. 19.07.2016 and policy of AMC for compassionate appointment dated 22.12.2016 would be applicable to the petitioner. It is also submitted that at the relevant point of time, the AMTS had not come out with any policy. It is only in 2022 that the AMTS has come out with its own policy which would not govern the present petitioner.
5. Learned advocate appearing for the respondent authority vehemently submitted that by the Resolution of the Transport Committee dated 04.10.2022 duly accepted by the Committee, it is resolved to pay 50% of the amount of compensation to the concerned applicants. It is submitted that the petitioner herein is governed by the aforesaid Resolution of 04.10.2022 and the compensation payable to the petitioner is duly paid in accordance with the said policy. 5.1 Reliance is placed on the order passed in Special Civil Application No.3175 of 2016. Reliance is also placed on the order passed in Special Civil Application No.3414 of 2002 wherein, in the said petition also, the dispute was with respect to the retiral benefits of the employees in which, the Court considering the financial condition of the respondent - corporation, did not interfere with respect to the grant of the Page 5 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined retiral benefits. It is submitted that the present petition is with respect to compassionate appointment and as such no fundamental right accrues in favour of the petitioner for consideration for compassionate appointment. It is submitted that however, the petitioner is granted the benefits that are available to the petitioner in accordance with the policy. Placing reliance on the aforesaid submissions, it is submitted that the present petition be dismissed.
6. Learned advocate appearing for the petitioner reiterated the contentions raised earlier and submitted that the prayers as prayed for be allowed wherein, the petitioner's husband expired on 19.07.2016 and at the relevant point of time, the policy of the AMTS was not inforce and the petitioner is governed by the policy of AMC dated 22.12.2016. Analysis:-
7. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner's husband expired on 19.07.2016. The petitioner applied for compassionate appointment by application dated 3/12.08.2016. The petitioner's name figured in the waiting list which is duly produced at page 67 at serial No.250. The petitioner made various representations to the respondent authority seeking compassionate appointment however, the petitioner Page 6 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined was informed by the impugned communication dated 22.12.2017, which is duly produced at Annexure - A to the petition, that there are 325 legal heirs of employees in the waiting list for compassionate appointment and the respondent is not in a position to appoint the present petitioner therefore, the petitioner's application is also put in the waiting list.
10. It is apposite to refer to the order passed by the Hon'ble Division Bench in Letters Patent Appeal No.475 of 2016 dated 16.06.2016. Paragraphs 11, 12 and 13 of the said order read thus:
"11. From the various provisions contained in the BPMC Act, it is revealed that AMC shall constitute different committees like Standing Committee as per Section 20, Special and Ad hoc Committees as per Sections 30 and 31 and Joint Committees as per Section 32 of the BPMC Act. However, merely because separate Transport Committee is constituted as per the provisions of the BPMC Act, it does not mean that it is a separate entity. Further, there is no denial to the averment made by the petitioner in her further rejoinder filed on 15.10.2015, and more particularly para 4 of the said rejoinder, which reads as under:
"4. It is also contended that the AMTS has Page 7 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined not adopted the policy of lump sum compensation of government of Gujarat or the AMC. Said contention is also not true. Because from very beginning it is the case of the petitioner that the AMTS is one of the division of AMC administered and managed by AMC. All the rules and regulations and the policies of the AMC is applicable to the AMTS also. The employees and the officers of AMC and AMTS are inter-transferable. This also proves by one another document available from the internet that shows that the AMTS is managed and administered by the AMC."
12. There is also no denial with regard to the document produced by the petitioner along with aforesaid rejoinder which is taken from the concerned site of AMTS. The relevant part of the said document is produced at page 151 of the compilation, which reads as under:
"AMTS is managed by Transport Manager
under Transport Committee and Municipal
Corporation from the very inspection (sic
inception), the organization has adopted service oriented attitude, so one should not consider it as a firm or a company, but as a service organization. AMTS is voluntary service managed by Municipals Corporation under B.P.M.C. Act."
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NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined
13. Thus, from the aforesaid facts and circumstances of the present case, it is clear that AMTS is managed by Transport Manager and AMC which has adopted service oriented attitude and it is not a firm or a company but a service organization and AMTS is voluntary service managed by AMC under BPMC Act. In short, the policy framed by AMC is also applicable to AMTS. In view of the above and in view of the reasoning given by the learned Single Judge, we are of the opinion that no error is committed by the learned Single Judge by giving the direction to the present appellants to grant lump sum compensation as per the policy of AMC to the petitioner with interest. The present appeal being devoid of any merit is dismissed."
11. It is also apposite to refer to the order passed by the Hon'ble Apex Court in Special Leave to Appeal (C) No.27561 of 2016 dated 16.11.2018 which reads thus:
"Learned counsel for the petitioner submits that the payment as directed by High court has already been made. The counsel for the respondent does not dispute the said statement. In above view of the matter, the Special Leave Petition has virtually become infructuous.
In the facts of the case, we do not find any good ground to entertain the Special Leave Petition. The Special Leave Petition is dismissed. Pending applications Page 9 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined if any, stand dismissed. We have not entered into the question of law involved."
12. The decisions relied upon by Mr. H.S. Munshaw, learned advocate appearing for the respondent, in the opinion of this Court, are not applicable in the facts of the present case.
12.1 In the facts of the Special Civil Application No.3175 of 2016, the petitioner in the said petition was at serial No.177 and it was held that when the petitioner was lower in merit, the case of the petitioner could not be considered.
12.2 In the facts of the Special Civil Application No.3414 of 2002, the said petition dealt with retiral benefits of the petitioner such as Provident Fund etc.
13. At this stage, it is apposite to refer to the ratio laid down by the Hon'ble Apex Court in case of Canara Bank & Anr. vs. M. Mahesh Kumar , reported in (2015) 7 SCC 412. Relevant paragraphs of the said decision read thus:
"12. The main question falling for consideration is whether the Scheme passed in 2005 providing for ex- gratia payment or the Scheme then in vogue in 1993 Page 10 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined providing for compassionate appointment is applicable to the respondent.
13. The appellant Bank has placed reliance upon the judgment of this Court in Jaspal Kaur's case (supra) to contend that the respondent's case cannot be considered on the basis of 'Dying in Harness Scheme 1993' when the new Scheme of 2005 providing for ex-gratia payment had been put in place.
14. In Jaspal Kaur's case (supra), Sukhbir Inder Singh employee of State Bank of India, Record Assistant (Cash & Accounts) passed away on 1.08.1999. Widow of the employee applied for compassionate appointment in State Bank of India on 5.02.2000. On 7.01.2002, the competent authority of the bank rejected the application of Jaspal Kaur in view of the Scheme vis- a-vis the financial position of the family. Against that decision of the competent authority, the respondent filed writ petition before the Punjab and Haryana High Court which has directed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08.2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in the year 2000 cannot be decided on the basis of a Scheme that was put in place much after the dispute.
15. By perusal of the judgment in Jaspal Kaur's case, it is apparent that the judgment specifically states that Page 11 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim.
16. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC 209, wherein it was held as under :-
"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer Page 12 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve. ......
17. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2) "2.
...The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts Page 13 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the [pic]rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet Page 14 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."
(emphasis supllied)
17. Applying these principles to the case in hand, as discussed earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force at that time. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant-bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993 dated 8.05.1993 was in force. Page 15 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025
NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993." 13.1 It is also apposite to refer to the ratio laid down by the Hon'ble Apex Court in case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh , reproted in AIR 2021 SC 2114. Paragraph 27 of the said decision reads thus:
"27. The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation Page 16 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
14. In the facts of the present case, the petitioner herein is governed by the Policy dated 22.12.2016. The said policy is governed by the Circular No.65 issued by the Ahmedabad Municipal Corporation. The petitioner's husband Page 17 of 19 Uploaded by M.H. DAVE(HC00193) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:23:14 IST 2025 NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined expired on duty on 19.07.2016 i.e. after 01.04.2016 and was a Class - III/IV employee and Clause (1) of the said policy provides for lumpsum compensation of Rs.8,00,000/-. Reliance as placed by the respondent authority on the policy framed by the respondent dated 11.10.2022 is not applicable in the case of the petitioner herein in view of the fact that the said policy was not in existence at the relevant point of time. In the opinion of this Court, the petitioner herein is governed by the policy prevailing as on the date of the death of the deceased. At the cost of repeatation, the petitioner's husband expired on 19.07.2016 and the policy as on that date was of 22.12.2016 and the petitioner is governed by the said policy and is entitled to be considered for the compensation in terms of the Policy dated 22.12.2016.
14.1 In the opinion of this Court, the aforesaid issue is no longer res-integra in light of the order passed by the Hon'ble Division Bench in Letters Patent Appeal No.475 of 2016 wherein, it is held that the Policy framed by the AMC is also applicable to the AMTS and the direction is issued to the appellants in the said appeal to grant lumpsum compensation as per the policy of the AMC to the petitioner with interest. The case of the petitioner herein is also identical.
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NEUTRAL CITATION C/SCA/11282/2018 ORDER DATED: 11/09/2025 undefined
15. In light of the aforesaid position of law and in the facts of the present case, in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, the impugned order dated 22.12.2017 is quashed and set aside. Accordingly, the consequential benefits that arise be granted to the petitioner herein.
15.1 The amount of Rs.8,00,000/- granted as consequential benefits to the petitioner, which shall be deposited before the Registry by the respondent, if not deposited, within a period of eight weeks from the date of receipt of this order.
15.2 The amount of Rs.8,00,000/- payable to the petitioner that is lying with the Registry of this Court, be disbursed in favour of the petitioner in accordance with the policy of 22.12.2016 along with amount of interest, if any. The aforesaid exercise be undertaken within a period of eight weeks from the date of receipt of this order.
16. The present petition is allowed. Rule is made absolute.
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