Bombay High Court
Damodar S/O Devrao Mangre And 2 Ors vs State Of Mah. Thr. Its Principal ... on 28 July, 2016
Bench: B.P. Dharmadhikari
Judgment wp2280.97
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 2280/1997, 2356/1997, 4035/2010, 2349/2011,
6244/2011, 3081/2012, 4185/2012.
..........
(1) WRIT PETITION No. 2280/1997.
1. Sunil s/o Gopalrao Pande,
Aged about 30 years, Occupation
Service in Amravati Zilla Parishad
Amravati, permanent address
c/o. Shri G.A. Pande, Shrama
Safalya colony, near Vidarbha
Mahavidyalaya, Amravati.
2. Ku. Vandans Eknath Shelke,
Aged 34 years, Occupation
Service in Amravati Zilla Parishad
Amravati, permanent address
c/o. Shri Eknathrao Shelke,
Nandgaon Khandeshwar, Tq. Nandgaon
Khandeshwar, District Amravati.
3. Smt. Kalpana Nilkanthrao Thakare,
Aged 30 years, Occupation
Service in Amravati Zilla Parishad
Amravati, permanent address
c/o. Shri Sharad Wankhede
Sai Nagar, Amravati.
4. Vinod Wasudeorao Tembhe,
Aged 33 years, Occupation
Service in Amravati Zilla Parishad
permanent address
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c/o. Shri R.S. Hadole, Brahman Sabha
colony, Paratwada, Tq. Achalpur
District Amravati.
5. Vinay Shridharrao Telange,
Aged 41 years, Occupation
Service in Amravati Zilla Parishad
permanent address resident of
Sawali Kheda, Tq. Dharni,
District Amravati.
6. Bhimrao Pendaji Malode,
Aged 44 years, Occupation
Service in Amravati Zilla Parishad
at post Sadara Badi, Tq. Dharni,
District Amravati. ....PETITIONERS.
VERSUS
1. The Amravati Zilla Parishad,
Amravati, District Amravati,
through its Chief Executive Officer.
2. M.R. Ramteke, Aged adult,
Occupation Service in Amravati Zilla Parishad
Amravati, c/o. Chief Executive Officer
Zilla Parishad, Amravati.
3. Bandu Motiram Patel,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Zilla Parishad, Amravati.
4. Gautam Abhiman Gajbhiye,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Zilla Parishad, Amravati.
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5. Ku. Nita P. Somawanshi,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer,
Amravati Zilla Parishad, Amravati.
6. A.P. Ingole,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
7. Punjab Bhimrao Pawar,
Aged adult, Occupationig
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer,
Amravati Zilla Parishad, Amravati.
8. R.U. Ingole,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
(deleted vide order dt. 25.11.02)
9. Ku. Vandana Pande,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer,
Amravati Zilla Parishad, Amravati.
10. D.B. Solanke,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
(Deleted vide order dt. 6.1.2004.
11. Sou. Usha Shinde,
Aged adult, Occupation
Service in Amravati Zilla Parishad
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c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
12. Smt. Indira P. Meshram,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
13. Radheshyam Malviya,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
14. S.S. Tidke,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
15. P.b. Sangitrao,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
16. A.K. Vairale,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
17. Ku. Sarita Mahalley,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
18. S.N. Chaudhari,
Aged adult, Occupation
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Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
19. A.S. Zoting,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
20. Ku. Asha Tayade,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
21. N.G. Nipane,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
22. V.F. Husangabade,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
23. Sheikh Sabirali Sayyad Jaffarali,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
24. Sheikh Guffru Sheikh Masjid,
Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
25. Aftaf Ahmedkhan
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Aged adult, Occupation
Service in Amravati Zilla Parishad
c/o. Chief Executive Officer
Amravati Zilla Parishad, Amravati.
26. The State of Maharashtra,
through the Secretary, Department
of Education, Mantralaya,
Mumbai - 32. ....RESPONDENTS
.
ig WITH
(2) WRIT PETITION NO. 2356/1997.
Mohammed Jameel s/o Mohammed Zaman,
Aged about 34 years, Occupation
Service, resident of at and post Adgaon,
Tq. Morshi, District Amravati. ....PETITIONER.
VERSUS
1. The Zilla Parishad, Amravati,
2. The Chief Executive Officer,
Zilla Parishad, Amravati.
3. Shri M.R. Ramteke, Aged adult,
Occupation Service in Zilla Parishad
4. Shri Bandu s/o Motiram Patel,
Aged adult, Occupation
Service in Zilla Parishad.
5. Shri Gautam Abhiman Gajbhiye,
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Aged adult, Occupation
Service in Zilla Parishad.
6. Ku. Rita P. Somawanshi,
Aged adult, Occupation
Service in Zilla Parishad.
7. Shri A.P. Ingole,
Aged adult, Occupation
Service in Zilla Parishad.
8. Shri Punjab Bhimrao Pawar,
Aged adult, Occupation
Service in Zilla Parishad.
9. Shri R.U. Ingole,
Aged adult, Occupation
Service in Zilla Parishad.
10. Ku. Vandana Pande,
Aged adult, Occupation
Service in Zilla Parishad.
11. Shri D.B. Solanke,
Aged adult, Occupation
Service in Zilla Parishad
12. Sou. Usha Shinde,
Aged adult, Occupation
Service in Zilla Parishad
13. Smt. Indira P. Meshram,
Aged adult, Occupation
Service in Zilla Parishad
14. Shri Radheshyam Malviya,
Aged adult, Occupation
Service in Zilla Parishad
15. Shri S.S. Tidke,
Aged adult, Occupation
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Service in Zilla Parishad
16. Shri P.B. Sangitrao,
Aged adult, Occupation
Service in Zilla Parishad
17. Shri A.K. Vairale,
Aged adult, Occupation
Service in Zilla Parishad
18. Ku. Sarita Mahalley,
Aged adult, Occupation
Service in Zilla Parishad.
19. Shri S.N. Chaudhari,
Aged adult, Occupation
Service in Zilla Parishad.
20. Shri A.S. Zoting,
Aged adult, Occupation
Service in Zilla Parishad.
21. Ku. Asha Tayade,
Aged adult, Occupation
Service in Zilla Parishad.
22. Shri N.G. Nirane,
Aged adult, Occupation
Service in Zilla Parishad.
23. Shri V.F. Husangabade,
Aged adult, Occupation
Service in Zilla Parishad.
24. Sheikh Sabirali Sayyad Jafiazali,
Aged adult, Occupation
Service in Zilla Parishad
25. Sheikh Guffru Sheikh Masjid,
Aged adult, Occupation
Service in Zilla Parishad.
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26. Aftaf Ahmedkhan
Aged adult, Occupation
Service in Zilla Parishad.
All respondent nos. 3 to 26 r/o.
Chief Executive Officer, Amravati
Zilla Parishad, Amravati. ....RESPONDENTS
.
WITH
(3) WRIT PETITION NO. 4035/2010.
Ramdas s/o Raghobaji Chaudhary,
Aged about 49 years, resident of
Dongargaon Railway, Tahsil Warora,
District Chandrapur. ....PETITIONER.
VERSUS
1. The Zilla Parishad, Chandrapur,
through its Chief Executive Officer,
Chandrapur.
2. The State of Maharashtra,
Department of School Education,
through its Principal Secretary,
Mantralaya, Mumbai - 32. ....RESPONDENTS
.
WITH
(4) WRIT PETITION NO. 2349/2011.
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1. Radhakrishna Wasudeo Talot,
Aged 43 years, Occupation -
Service, resident of Balaji Towers,
Shegaon, Tahsil Shegaon,
District Buldhana.
2. Sanjay Sukhdeo Pawar,
Aged 42 years, Occupation -
Service, resident of Ekta Nagar,
Near Shri Sheke's House, Buldhana,
District Buldhana.
3. Mansingh Hirasingh Rajput,
Aged 45 years, Occupation -
Service, resident of Tanaji Nagar,
Buldhana, District Buldhana.
4. Raju Suryabhan Jadhav,
Aged 44 years, Occupation -
Service, resident of Chikhali Road,
Vaijnath Nagar, Buldhana,
District Buldhana.
5. Ram Baburao Auti,
Aged 42 years, Occupation -
Service, resident of "Teertharoop"
Chaitanya Wadi, Buldhana,
District Buldhana.
6. Sudhir Govind Warhade,
Aged 42 years, Occupation -
Service, resident of ekta Nagar,
Near Shri Sheke's House, Buldhana,
District Buldhana. ....PETITIONERS.
VERSUS
1. The Zilla Parishad, Buldhana,
through its Chief Executive Officer,
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Buldhana, District Buldhana.
2. The Education Officer (Primary),
Zilla Parishad, Buldhana.
3. The State of Maharashtra,
through its Secretary,
Department of rural Development and
Water Conservation
Mantralaya, Mumbai - 32.
4. Shri Kewat Prakash Dalsingh,
Aged Major, Occupation - Service,
resident of Kathora, Tah. Shegaon,
District Buldhana.
5. Shri Ananda Mukunda Nage,
Aged Major, Occupation - Service,
resident of Centre incharge, Zilla Parishad
Central School, Atali, Tah. Khamgaon,
District Buldhana.
6. Shri Kaduba Shamrao More,
Aged Major, Occupation - Service,
resident of Mere Kh. Tah. Chikhali,
District Buldhana.
7. Shri Devidas Sitaram Parankar,
Aged Major, Occupation - Service,
resident of Shelapur, Tah. Motala,
District Buldhana.
8. Shri Ramesh Bhiwsen Sawdekar,
Aged Major, Occupation - Service,
resident of Centre Incharge, Zilla Parishad,
Central School, Jawla (BK), Tah. Shegaon,
District Buldhana.
9. Shri Kesjav Sitaram Kale,
Aged Major, Occupation - Service,
resident of Center Incharge, Zilla
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Parishad Central School, Kingaon Raja,
Tah. Sindkhed Raja, District Buldhana.
10. Mrs. M.M. Memane,
Aged Major, Occupation - Service,
resident of Korhala, Tah. Motala,
District Buldhana. ....RESPONDENTS
.
WITH
(5) WRIT PETITION NO. 6244/2011.
1. Damodar s/o Devrao Mangre,
Aged about 48 years, Occupation -
Assistant Teacher, resident of
Mahavir Nagar, Darwha Road,
Yavatmal.
2. Dr. Sunil s/o Anandrao Mankar,
Aged about 42 years, Occupation -
Assistant Teacher, resident of Itsari
Nagar, At PO Ghatanji,
District Yavatmal.
3. Kiran s/o Sahebrao Barse,
Aged about 46 years, Occupation -
Assistant Teacher, resident of Gurudev
Nagar, Digras, District Yavatmal.
4. Hemant s/o Prabhakarrao Dalvi,
Aged about 42 years, Occupation -
Assistant Teacher, resident of Holtekpura
Digras, District Yavatmal. ....PETITIONERS.
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VERSUS
1. The State of Maharashtra,
Department of School Education,
through its Principal Secretary,
Mantralaya, Mumbai - 32.
2. Zilla Parishad, Yavatmal,
through its Chief Executive Officer,
Yavatmal.
3. The Education Officer (Primary),
Zilla Parishad, Yavatmal.
ig .... RESPONDENTS.
...........
1. Ashok s/o Bapuraoji Hajare,
Aged about 54 years, Occupation -
Service, resident of Manihar Layout,
Jamb Road, Wadgaon Road,
Tah. and District Yavatmal.
2. Vijay s/o Madhukarrao Anduskar,
Aged about 48 years, Occupation -
Service, resident of Vithalwadi,
Yavatmal, Tah. and District Yavatmal.
3. Jaywant w/o Haribhau Vaidya,
Aged about 50 years, Occupation -
Service, resident of Dubbewar Layout,
Navjivan Convent School, Near Pusad,
District Yavatmal. .... INTERVENORS.
WITH
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(6) WRIT PETITION NO. 3081/2012.
1. Sau. Manjusha w/o Arvind Sakharkar,
Aged about Major, resident of Bramhapuri,
Behind Geet Lawns, District Chandrapur.
2. Vikas s/o Motiram Dupare,
Aged about Major, resident of Vidya Nagar,
Bramhapuri, District Chandrapur.
3. Gunwant s/o Yadavrao Moon,
Aged about Major, resident of Gajanan Nagar,
Sardar Patel Ward, Warora,
District Chandrapur.
4. Shri Sangrakashak s/o Maniram Dange
Aged about Major, resident of Near Huthatma
Smarak, Bramhapuri, District Chandrapur.
5. Sanjay s/o Tukaram Bhaisare,
Aged about Major, resident of Shri Nagar
Ward, Dehangwadi, Bramhapuri,
District Chandrapur. ....PETITIONERS.
VERSUS
1. Zilla Parishad, Chandrapur,
through its Chief Executive Officer,
2. The Education Officer (Primary),
Zilla Parishad, Chandrapur.
3. State of Maharashtra,
Department of School Education,
through its Principal Secretary,
Mantralaya, Mumbai - 32. .... RESPONDENTS.
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WITH
(7) WRIT PETITION NO. 4185/2012.
1. Prashant s/o Parashram Dhule,
Aged about 42 years, Occ - Primary
teacher, resident of Girija, Tathagat
Nagar, Washim Road, Pusad,
District Yavatmal.
2. Kazi s/o Tajuddin Bashiruddin,
Aged about 45 years, Occ - Assistant
teacher, Lower Division, Pandharkawada
District Yavatmal.
3. Uttam s/o Sahkaram Barwad,
Aged about 42 years, Occ -Assistant
Primary, resident of Satyashodhak Shikshak
Colony, Opp. Telephone Office,
Umarkhed, District Yavatmal.
4. Namdeo s/o Kisan Rathod,
Aged about 43 years, Occ - Assistant
teacher, c/o. Zilla Parishad High School
Mahagaon, Tahsil and District Yavatmal. ....PETITIONERS.
VERSUS
1. State of Maharashtra,
Department of School Education,
through its Principal Secretary,
Mantralaya, Mumbai - 32.
2. Zilla Parishad, Yavatmal,
through its Chief Executive Officer,
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Yavatmal.
3. The Education Officer (Primary),
Zilla Parishad, Yavatmal. RESPONDENTS.
....
-----------------------------------
Mr. A.M. Gordey, Senior Advocate with Mrs. R.D. Raskar, Advocate,
Mr. B.G. Kulkarni & Mrs. U.A. Patil, Advocates for Petitioners.
Ms. A.R. Kulkarni, Asstt. Govt. Pleader for Respondent - State Government.
Mr. Gopal Mishra, Mr. M.M.Sudame, Mr. N.W.Almelkar, Mr. D.G. Patil and
Mr. D.A. Sonawane, Advocates for Respondent - Zilla Parishad.
Mr. N.R. Saboo, Advocate for Intervenors.
------------------------------------
CORAM : B.P. DHARMADHIKARI
& KUM. INDIRA JAIN , JJ.
Date of Reserving the Judgment : 23.06.2016.
Date of Pronouncement : 28.07.2016.
JUDGMENT. (Per B.P. Dharmadhikari, J)
Prayer of 6 petitioners who are employees of Zilla Parishad,
Amravati in Writ Petition No.2280/1997, is to quash and set aside their
reversion from the post of centre incharge to the post of primary teacher by
order dated 10.07.1999 and to continue them on promotional post with all
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consequential benefits.
Petitioner in Writ Petition No. 2356/1997 challenges very same
order of same Zilla Parishad and a later order dated 22.07.1997. He has
prayed for similar reliefs.
In Writ Petition No. 4035/2010, petitioner - Ramdas is employee
of Zilla Parishad, Chandrapur. He seeks setting aside of seniority list
prepared by that Zilla Parishad on 26.08.2008 and 24.09.2009, with further
direction to said Zilla Parishad to prepare the seniority list as per directions
of this Court and to prepare seniority list by accepting date of joining B.Ed.
qualification as relevant date.
Petitioners in Writ Petition No. 2349/2011, are employees of Zilla
Parishad, Buldhana and they seek a writ commanding Zilla Parishad to
prepare seniority list of graduate teachers on the basis of date of obtaining
B.Ed. qualification and to quash and set aside order of promotion dated
14.02.2011 issued by that Zilla Parishad, by preparing seniority list,
ignoring that date.
Petitioners in Writ Petition No. 6244/2011 challenge seniority list
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prepared by Zilla Parishad, Yavatmal and its Education Officer as on 2011-
12 and to restore earlier seniority list finalized on 05.08.2004.
Petitioners in Writ Petition No. 3081/2012 are employees of Zilla
Parishad, Chandrapur and they challenge seniority list prepared by the Zilla
Parishad in the cadre of Higher Grade Headmaster and Kendra Pramukh as
on 01.01.2010, and Seniority list of assistant teachers dated 01.10.2010.
They also seek a writ to direct Zilla Parishad to prepare that seniority list on
the basis of date of obtaining B.Ed. qualification and date of entry thereafter
in promotional cadre.
Writ Petition No. 4185/2012 is by 4 petitioners. It was earlier
filed by an Association and one assistant teacher. However, thereafter,
Association has been deleted. Prayer in Writ Petition is to direct Zilla
Parishad, Yavatmal to prepare seniority list of teachers working in Standard I
to VII i.e. primary schools, from the date of acquisition of B.Ed. qualification.
They also seek preparation of separate seniority list of graduate teachers for
considering them for grant of higher pay scale as per government guidelines.
Though there is also a prayer to direct Zilla Parishad, Yavatmal to prepare
separate seniority list for middle school, high school and junior college
teaches for Upper Division Grade and Higher Division Grade from the date
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of joining a particular cadre, neither petitioners nor respondents have
advanced their arguments in this respect.
2. Since a common question about norm to be used for preparation
of seniority list of primary teachers working in Zilla Parishad Schools is
involved in all these matters, as requested by the parties, all these matters
have been clubbed and heard together. To understand the challenge it is
not necessary to go into the facts of each case at this stage. According to
Shri A.M. Gordey, learned Senior Counsel, Shri B.G. Kulkarni, Mrs. U.A.
Patil, learned Counsel who argued the cause of petitioners, seniority list
needs to be prepared not from the date on which a concerned primary
teacher joined the services, but, from the date on which he obtained
training qualification i.e. B.Ed. Qualification. They point out that the
seniority list is used for promoting teachers to the post of Kendra Pramukh
(Center Incharge) or then the Extension Officer (Education), and for that
post, graduate degree as also training qualification acquired thereafter is
must.
According to them, as only trained graduate primary teachers
qualify to become Kendra Pramukh [Centre In-charge] or Education
Extension Officer, date of obtaining B.Ed. qualification assumes importance.
They are relying upon certain judgments to which we will make reference
little later in the body of this judgment.
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3. As against this, Shri Gopal Mishra, Shri M.M.Sudame, Shri N.W.
Almelkar, Shri D.G. Patil, learned Counsel appearing for respective Zilla
Parishads (employer) state that the policy of the State Government in this
respect is clear from its Resolution dated 14.11.1994, there is no creation
of separate cadre for Kendra Pramukh or then for Trained Graduate
Primary Teachers. For the promotional post of Extension Officer
(Education), as per statutory rules, next below cadre is that of primary
teachers and hence, date of joining only as primary teacher is relevant.
Shri N.R. Saboo, learned Counsel who appears for the intervenors in Writ
Petition No.6244/2011, has invited our attention to the first policy decision
as contained in Government Resolution dated 27.06.1980, as also the later
policy decision dated 14.11.1994, to buttress his contention that boyh
unequivocally accept date of joining as primary teacher, as the relevant
norm. Respective Counsel therefore, also attempt to distinguish the
judgments on which the petitioners have placed reliance.
4. Shri D.G. Patil, learned Counsel has relied upon the judgment
reported in 2010 (6) All MR 213 (Santosh Ekoba Sonavane and
others .vrs. Sate of Maharashtra and others), to urge that as there is no
creation of a separate cadre, the challenge in the Writ Petitions is
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misconceived.
5. During hearing we found that in certain matters, petitioners before
this Court have been given the post of a Kendra Pramukh as promotion and
their attempted reversion as primary teacher has been stayed by this Court.
In Writ Petition No. 2280/1997 and 2356/1997, this interim relief is
operating since 14.08.1997. Similarly, in Writ Petition No.4035/2010, this
Court has given stay of reversion. In Writ Petition No. 6244/2011, though
there is no interim order, the petitioners claim that they are still working as
Kendra Pramukh. Writ Petition No. 4185/2012 is by an Association of
Primary Teachers. In Writ Petition No.3081/2011 there is no interim orders
and petitioners have been reverted.
6. In the background of these facts, Shri Gordey, learned Senior
Counsel submitted in alternate that even if date of securing B.Ed.
qualification is not accepted as relevant date for working out seniority by
this Court, the petitioners are entitled to their due placement in the list of
primary teachers prepared on the strength of date of their joining service.
Even as per that placement, they would have been promoted by now. As
such, petitioners who were continuing on superior post need not be reverted.
Commenting upon the Government Resolutions and fluctuating stance
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therein, he contends that petitioners cannot be blamed for this situation. He
therefore, submits that when petitioners in Writ Petition No.2280/1997,
2356/1997 and in other Writ Petitions, have continued to work on the post
of Kendra Pramukh, or Extension Officer (Education) for last several years,
no recovery from them can be allowed and permitted. Lastly, he points out
that few of them have already superannuated, and as such rejection of
these petitions cannot affect their salary or pension.
7. First communication on the norm for determination of seniority is
issued on 27.06.1980. It appears to be a letter sent by the Deputy Secretary
to Director of Education at Pune. It is on the subject of appointment of
trained graduate headmasters on Central Primary School in Zilla Parishads,
Municipal Councils and Board of Education. It stipulates that few schools
imparting education upto 7th standard [Primary Education], have been
designated as Central Primary Schools with a view to improve the standard
of education. It was decided to appoint trained graduate teachers as
Headmasters on 780 such schools, and therefore, 780 trained graduate
teachers were thus to be appointed as headmaster. In paragraph no.6, after
examining the Rules regulating appointment of primary teachers as
prevailing in the year 1972, it has been clarified that while appointing
trained graduate primary teachers in service as headmaster of such school,
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they shall be selected on the basis of their seniority in the cadre of primary
teacher.
8. On 03.05.1991, the State Government has written to the Chief
Executive Officer of Zilla Parishad, Jalgaon onsubject of seniority list of
trained graduate teachers for promotion as Education Extension Officer,
District Technical Services Class-III, Grade-II. It appears that Zilla Parishad,
Jalgaon had sent a query on 06.07.1990, and in response thereto the State
Government has clarified that if a primary teacher was already B.Ed. at the
time of his first appointment, date of his initial recruitment should be
looked into for computing his seniority. It is further clarified that for those
primary teachers who have secured B.Ed., after joining service, their
seniority should be computed from the date of passing B.Ed. Examination. It
is further mentioned that if more than one primary teacher has obtained
B.Ed. Qualification on same date, then date of joining should be looked
into.
9. On 14.11.1994 Education Department of State of Maharashtra has
issued a Government Resolution on the subject of Establishment of Central
Primary Schools. After mentioning previous history, the State Government
mentions that it has decided to establish 4860 such Central Primary Schools
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and to create one post each of a trained graduate Centre in-charge (Kendra
Pramukh) for each such school. The deviation in it from earlier policy in
the communication dated 27.06.1980 [supra], is therefore, apparent. There
the question was of appointing trained graduate headmaster on such school,
while this Government Resolution does not mention post of headmaster at
all, but, speaks about the post of Kendra Pramukh. These posts are created
in the pay-scale of Rs. 1400-2600 with special pay of Rs. 125/-. In clause 3
of this Government Resolution , an advisory committee has been formed.
Centre In-charge is convener thereof, while two headmasters of primary
schools within its area are its members. It is to be noted that 4860 posts of
Centre in-charge have been worked out by providing one such Centre In-
charge for 10 Zilla Parishad Primary Schools. Centre in-charge or Kendra
Pramukh is to be selected as per procedure given in Appendix-B. Appendix-
B stipulates that post of Kendra Pramukh is to be filled in through a cadre
of trained graduate primary teachers on the basis of seniority and merit.
This appendix refers to letter dated 27.06.1980, and reiterates that trained
graduate primary teachers are to be selected by looking at their seniority in
the cadre of primary teachers.
10. Government Resolution dated 02.02.2010, issued by the State
Government prescribes that 40% out of these 4860 posts are to be filled in
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by direct recruitment, 30% by promotion, while the remaining 30% through
limited competitive examination. It has been also mentioned that this
proportion should be kept in mind while filling in the vacancies becoming
available in future. It has taken note of the fact that till then posts of Centre
in-charge were filled in 100% by promotion. Thus, for the first time a direct
recruitment against 40% of these 4860 posts has been provided for.
11.
One more Government Resolution to which our attention has
been invited by the Zilla Parishad is dated 11.08.1999. It is on the subject of
making available trained graduate teacher to standard 5th to 7th standard
attached to primary schools. This Government Resolution takes note of the
same syllabus prescribed for primary and middle schools, but, their staffing
pattern was different. In standard 5th to 7th attached to middle schools, for
every 3 trained primary teachers, one teacher trained graduate teacher
was provided. Government thought that similar arrangement was needed
in primary schools of zilla parishads to which standards 5th to 7th were
attached. We need not comment more upon this policy decision because it
has been looked into by the Division Bench of this Court reported at 2006
(2) Mh.L.J. 124 (Vitthal Fakruji Madavi and others .vrs. Zilla Parishad,
Chandrapur and others).
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12. On 13.08.1999, a Government Resolution has been issued and it
deals with the appointment on the post of Kendra Pramukh. It mentions
that seniority of such graduate teachers in primary schools is to be computed
from the date of joining as primary teacher. This Government Resolution
specifically states that post of Kendra Pramukh is to be filled in by
promotion of such primary teachers who are graduates and also possess
B.Ed. as training qualification.
13. On 21.05.2004, State Government has written to the Chief
Executive Officer, Zilla Parishad, Nanded on the subject of promotion as
Middle School Teacher, Centre Incharge [ Kendra Pramukh], and Extension
Officer [ Education], Class-III, Grade-II. This communication mentions that
as per Government letter dated 03.05.1999, while promoting trained
graduate teachers as Extension Officer [Education], seniority list of teachers
is to be prepared on the basis of date on which he obtained B.Ed. training.
Another communication dated 03.06.2003, directed that if training
qualification of trained graduate Centre incharge was same, his original
seniority should be protected and as per it, he should be
transferred/promoted as Extension Officer [Education]. Zilla Parishad,
Nanded and Teachers Association pointed out inconsistencies in this
directions and hence on 21.05.2004, clarification was issued. It is directed
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that for the purpose of promotion to the post of Extension Officer
[Education], action should be taken as per letter dated 03.05.1991. As said
post of Extension Officer [Education], Class-III, Grade-II are to be filled in
only through trained graduate primary teachers, common seniority list of
such teachers and Centre In-charge should be prepared. It is reiterated that
date of obtaining B.Ed. Qualification should be treated as relevant date. We
have already taken note of a later contrary Government Resolution dated
14.11.1994 [supra]. On 12.08.2004, this letter dated 21.05.2004, came to
be cancelled. It is reiterated that seniority list of trained graduate primary
teachers must be prepared on the basis of date of their joining as primary
teacher. On 18.03.2006, this letter dated 12.08.2004 was cancelled. It was
clarified that the guidelines contained in letter dated 21.05.2004, would
continue to apply.
14. On 08.02.2007, a circular has been issued by Rural Development
and Water Conservation Department of State Government mentioning
judgment delivered by the Aurangabad Bench in Writ Petition
No.1948/2006. It appears that this communication dated 18.03.2006 was
found inconsistent with Government Resolution dated 14.11.1994, hence,
through this circular issued by and in the name of Governor of State, it has
been ordered that the seniority list be drawn and promotions be made as
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per Government Resolution dated 14.11.1994.
15. It is in this background we have to decide the controversy. It can
not be disputed that a communication contrary to government resolution
can not survive. Similarly, in case of conflict of either with the Statutory
Rules, the Rules have to prevail.
16. Division Bench of this Court at Aurangabad has decided Writ
Petition No. 3424/1997 on 02.07.2010. That judgment is reported at
2010(6) All MR 213 (Santosh Ekoba Sonavane and others .vrs. Sate of
Maharashtra and others). There challenge was to orders of promotion
issued in favour of respondent nos. 5 to 14 therein as Extension Officer
[Education]. Petitioners had challenged those order unsuccessfully in
appeals before the Additional Commissioner, Aurangabad. On the basis of
their seniority, they were promoted as Kendra Pramukh. Subsequent to
their promotions, respondent nos. 5 to 14 came to be promoted as Extension
Officer [Education], in District Technical Service, Class-III, Grade-II.
Division Bench judgment in paragraph no.11 does not accept the contention
of respondent nos. 5 to 14, that there is a separate cadre for Kendra
Pramukhs. Division Bench has taken note of Section 248 of the Zilla
Parishads and Panchayat Samities Act, 1961 and found that such matters are
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to be regulated by Rules to be framed by the State Government in
accordance with Section 274 thereof. In paragraph no.12, it has found that
it was necessary for the State Government to make necessary amendments
to Rules after creation of post of Kendra Pramukh. Court has in paragraph
no.10 of the judgment taken note of absurdity which would otherwise arise,
and in paragraph no.13 found that existing Rules create an anomalous
situation and permit a junior person to travel to a superior post and become
senior and superior to a teacher who was earlier senior to him. We find it
important to note that this Division Bench has found that there is no creation
of a separate cadre for/as Kendra Pramukh, and this finding has attained
finality.
17. Division Bench at Nagpur has looked into the dispute about
seniority of primary teachers and said judgment delivered in Writ Petition
No. 4772/2004 and other connected matters on 21.10.2005 is reported at
2006 (2) Mh.L.J. 124 (Vitthal Fakruji Madavi and others .vrs. The Zilla
Parishad, Chandrapur and another). In said matter, Clause 3 and Clause
5 of the Government Resolution dated 11.08.1999 are looked into. Clause
5 of this Government Resolution envisages placement of a primary teacher
on higher pay scale of Rs. 365-760 and the basis on which the same is to be
done. Vide clause 5[1] trained primary teachers who have done graduation
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in Arts, Science having at least one subject taught in primary schools and
also who holds B.Ed. Degree in Education, is to be appointed as trained
graduate teacher. Vide sub-clause [2] the primary teachers who did not
have graduation in concerned subject, were given time of 5 years after their
appointment on the post of higher pay scale to acquire degree in such
relevant subject. Vide sub-clause [3], similar teachers as in category [2],
who have not acquired B.Ed. qualification are permitted to be placed in next
higher pay scale on condition that they would obtain degree in relevant
subject as also B.Ed. qualification. Thus, an entirely different scheme which
contemplate even a primary teacher holding graduate degree in
unconcerned subject and not possessing B.Ed., and allow him to aspire for
higher pay scale, has been looked into in this judgment. In said Writ
Petition No.4772/2004 and other connected matters, Secretary of school
Education Department had filed an affidavit on 26.09.2005 mentioning in
clear terms that Seniority-cum-obtaining of B.Ed. qualification is the criteria
for grant of higher pay scale in view of the Government Resolution . It is
clear that this judgment and the scheme looked into therein, is not decisive
in present controversy.
18. Our attention was also invited to a Full Bench judgment reported
at 2006 (6) Mh.L.J. 682 (Vaijnath Tatyarao Shinde .vrs. Secretary,
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Marathwada Shikahsn Prasarak Mandal and others). However, this Full
Bench judgment has been distinguished by the Hon'ble Supreme Court in
paragraph nos.17 and 18 of its judgment reported at (2014) 13 SCC 219
(Viman Vaman Awale .vrs. Gangadhar Makhriya Charitable Trust and
others).
19. In Viman Vaman Awale .vrs. Gangadhar Makhriya Charitable Trust
and others (supra), question of determination of seniority for the purpose of
promotion to the post of headmaster and relevance of possessing higher
qualification therefor, has been examined by the Hon'ble Supreme Court.
Though the judgment considers the provisions of the Maharashtra
Employees of Private Schools (Conditions of Services) Regulation Act, 1977
and 1981 Rules framed therein, discussion therein is germane even for
present matter. Appellant Viman had joined services of a private school as
assistant teacher on 24.08.1979, while respondent no.4 therein joined on
01.09.1980. Appellant had not completed graduation when she joined,
though she possessed requisite qualification for the post of assistant teacher.
She completed B.A. in 1984 and thereafter also obtained B.Ed. qualification
with due permission of school authorities on 20.05.1986. She obtained M.A.
(Post Graduate degree) in 1997. Respondent no.4 was already B.A. on
01.09.1980, and he also obtained B.Ed. on 01.11.1984. In seniority list
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appellant Viman was shown junior to said respondent no.4. Respondent
no.4 was subsequently promoted as headmaster and statutory appeal filed
by Viman before the School Tribunal came to be dismissed. High Court
dismissed her writ petition. Appellant Viman then approached Hon'ble
Supreme Court contending that she was senior to respondent no.4. Hon'ble
Supreme Court in this background has taken note of relevant Rules
prescribing qualification for appointment as a head and for qualification as
teachers and Rule 12 dealing with preparation of seniority list. It has also
looked into Schedule-F prescribing guidelines for fixation of seniority of
teachers in primary schools. Said guidelines stipulated that seniority of a
primary school teacher in primary school is based on continuous officiation
counted from the date of acquiring the education qualification as prescribed
in Schedule-B appended to M.E.P.S. Rules, 1981. In paragraph no.14 after
taking note of these qualifications, the Hon'ble Supreme Court has in
paragraph no.15 found that the appellant Viman was fulfilling necessary
qualifications when she first joined her employment. Thereafter it has
proceeded to examine whether acquisition of B.Ed. Degree by respondent
no.4 earlier than the appellant would allow him to steal a march over the
appellant. It found that the reliance upon Full Bench judgment of the High
Court in case of Vaijnath Tatyarao Shinde .vrs. Secretary, Marathwada
Shikshan Prasarak Mandal and others (supra), was erroneous. It found that
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in facts before the Full Bench of Bombay High Court, concerned teacher did
not have prescribed qualification of the concerned post and therefore, he
could not have been treated as a person duly qualified in terms of Rule 6
read with Schedule-B of the Rules on the date of joining. In paragraph
no.19, the Hon'ble Supreme Court reiterated that the appellant Viman was
fully qualified when she was appointed as a assistant teacher in primary
school and hence, possessing higher qualification was not determinative for
fixing seniority. It has also held that though such higher qualification may
be essential for next higher post, it did not affect determination of the
appellants' seniority as an assistant teacher in primary school. The Hon'ble
Supreme Court therefore, accepted the contention of Viman and has set
aside the promotion given to respondent no.4 by setting aside the judgment
of High Court as also the School Tribunal.
20. Here, we find it appropriate to refer to the judgment of Hon'ble
Apex Court reported at (1995) 5 Scale 459 (J.G. Prasada Rao and
others .vrs. The Secretary to Government and others), relied upon by
Shri B.G. Kulkarni, learned Counsel. The question before the Hon'ble
Supreme Court was - Whether seniority was required to be reckoned from
the date of passing of Divisional Account Test. The appellant contended that
since some of the contesting respondents had passed that test later, after
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him, they were junior to him. The relevant norm/qualification is mentioned
in paragraph no.4 of the judgment, where passing of Divisional Test is
stipulated to be a condition. In paragraph no.11, the Hon'ble Supreme Court
has found that the State Accountants on probation, Divisional Accountants
and clerks who passed SAS examination, constituted feeder posts for
subordinate accounts service. For Divisional Accounts Officer, Grade-I,
Grade-II was the feeder post. Passing of Divisional Accounts Test was held
to be a precondition for promotion to Grade-I. Paragraph 320 of the Manual
prescribed that date of passing Divisional Accounts Test was the criteria for
determination of the inter-se seniority. Thus, the Hon'ble Supreme Court
concluded that the inter-se seniority needed to be reckoned with reference to
the date on which respective candidate passes accountants test. It therefore
accepted stand of the appellant that as he has passed accounts test earlier he
was declared senior to respondents. Thus express stipulation in manual was
found decisive.
21. The communications relied upon by the parties to advance their
contentions either way cannot be held to be decisive in the background of
Government Resolution s. We find that the Government Resolution dated
14.11.1994 and Appendix-B thereto is decisive in the matter. By that
Resolution newly created post of Kendra Pramukh are directed to be filled
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in through promotion from amongst the trained graduate teachers. It is
further mentioned that the seniority of such teachers be looked into as per
their seniority in the cadre of primary teachers. It is not in dispute that
obtaining or passing B.Ed. [training qualification] is not prerequisite for
being appointed as assistant teacher in Zilla Parishad Primary School.
22. The last judgment delivered by this Court and reported in case of
Santosh Ekoba Sonawane and others .vrs. State of Maharashtra and others
(supra), specifically holds that there is no creation of a separate cadre as
Kendra Pramukh. That judgment also looks into the provisions of
Maharashtra Zilla Parishad District Services (Recruitment) Rules, 1967. In
these Rules the post of Extension Officer (Education) is included in District
Technical Services (Class-III)(Educational) Grade-II. Along with it other
posts forming part of that service and cadre are also mentioned. Thus, post
of Extension Officer [Education], Assistant Education Officer and Senior
Education Deputy Inspector form part of this cadre. Post of Kendra
Pramukh is neither included there nor mentioned in these Rules. There is
no independent cadre of trained graduate primary teachers. In pursuance of
these observations and need of amending these Rules pointed out by the said
Division Bench at Aurangabad on 02.07.2010, no steps have been taken till
date. It is therefore, obvious that no separate cadre as ' Kendra Pramukh'
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has ever been created and has not come into existence. Even otherwise, the
petitioners have also not pointed out relevant pay scales, service conditions
or a promotional hierarchy & there is no effort to demonstrate creation of
any separate cadre as understood in service jurisprudence.
23. In (1996) 9 SCC 266 (State of Maharashtra .vrs. Purushottam
& others), the Hon'ble Supreme Court has pointed out that in service
jurisprudence, expression 'cadre' means unit of strength of service or part of
it, as determined by the employer. Section 248[a] of Zilla Parishad and
Panchayat Samities Act, obliges the State Government to make Rules to
regulate the terms and conditions of service. Though the State Government
has time and again issued communications contrary to each other and
withdrawn the same, it did not discharge this obligation. It is therefore,
obvious that an assistant teacher working in primary school of Zilla Parishad
does not have post of Kendra Pramukh as next promotional post. Perusal
of Appendix-IV of Maharashtra Zilla Parishad District Services (Recruitment)
Rules, 1967 shows that the assistant teacher in primary school who has
completed not less than 5 years of continuous service can be appointed by
promotion as Extension Officer [Education] or then as Assistant Education
Officer or then as Senior Assistant Deputy Education Inspector. Primary
school teacher in District Services (Class-III) (Subordinate Education) who
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possesses at least 3 years of post-B.Ed. teaching experience in primary or
secondary school or junior college of Education can also be transferred to
such post, temporarily. Similarly those who posses 5 years teaching
experience after passing the S.S.C. Examination and acquiring teacher's
training qualifications are also made eligible for consideration. It is
therefore, obvious that B.Ed. cannot be treated as an essential qualification
for joining service as Assistant Teacher in primary school. Infact that is not
the case of any of the parties. B.Ed. has been made an essential
qualification for the post of Kendra Pramukh, and as per the Government
Resolution dated 14.11.1994, seniority of such primary teachers possessing
B.Ed. training qualification needs to be worked out on the basis of their date
of joining service initially as primary teacher. Contention of petitioners that
said seniority must be computed from the date of acquiring B.Ed.
qualification is, therefore, unsustainable. The law explained by the Hon'ble
Apex Court in its judgment in case of Viman Vaman Awale .vrs. Gangadhar
Makhriya Charitable Trust and others (supra), is clearly attracted in present
facts.
24. Hence, seniority list of primary teachers in Zilla Parishads needs to
be prepared on the basis of their continuous officiation in the cadre of
primary teachers i.e. as assistant teachers with respective Zilla Parishads.
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Thus, those who were fully qualified for joining as primary teachers will get
date of their joining service for the purpose of seniority. While filling in the
post of Kendra Pramukh, such of these primary teachers who hold B.Ed.
qualification when that exercise is undertaken, shall only fall in the zone of
consideration as per their joining date. Thus, on a given date for filling in
such vacancy of a Kendra Pramukh, primary teachers who are trained and
graduate, would only be eligible for consideration. A primary teacher who
has joined first will rank senior most, though he may be last to secure the
B.Ed. qualification.
25. In view of this discussion we find that contention of petitioners
that the seniority list of primary teachers in Zilla Parishad must be drawn on
the basis of date of obtaining the B.Ed. qualification is, erroneous and
misconceived. The seniority list needs to be prepared on the basis of date of
joining the service only. Those with B.Ed. therein shall be eligible for
consideration when the post of Center Incharge or Kendra Pramukh is
sought to be filled in.
26. This controversy regarding norm to be applied for preparation of
seniority list has been engaging attention of the Court since 2004, and
judgments have been delivered on more than two occasions by it. Similarly,
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the State Government itself has either acted inconsistently or then did not
amend the Rules. Hence, we are not inclined to permit recovery from any of
the Kendra Pramukh who may suffer displacement , as this court has stayed
the same in some petitions and interim orders are operating since last
several years. We do not permit the respondents to effect any recovery from
any Center Incharge or Kendra Pramukh as they cannot be blamed for the
situation. This situation is governed by the law as laid down by the Hon'ble
Apex Court in (2015) 4 SCC 334 - (State Of Punjab vs. Rafiq Masih). But,
then, those who are legally entitled to said post cannot be deprived of it.
Hence, we direct the respondent Zilla Parishads to draw seniority list of
primary teachers on the basis of their date of joining the service and then to
proceed with the selection process as per Appendix-B of Government
Resolution dated 14.11.1994 & to place senior eligible trained graduate
primary teachers as Kendra Pramukh. The exercise will be undertaken in
stages depending upon the date on which the vacancies as Kendra Pramukh
have been filled in. Senior primary teachers who were not eligible to be
considered when such vacancies were first filled in, may have qualified for
consideration lateron, if they have obtained B.Ed. qualification thereafter. In
this exercise, if it becomes necessary to displace any of the parties before this
Court and/or to give him the post of Kendra Pramukh from some later
date, we permit the Zilla Parishads also to undertake that exercise.
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However, no recovery from such displaced person shall be effected. If any of
the petitioners or respondents or intervenors or other primary teachers
becomes Kendra Pramukh, deemed date shall be given to them accordingly.
However, consequential benefits shall be released only in favour of those
who are either petitioner or the respondent or the intervenor before this
Court in any of these matters. This exercise be completed within a period of
6 months from today.
27. Accordingly with these observations and directions, we dismiss all
the Writ Petitions. Pending civil applications, if any, are also disposed of.
Rule discharged. No cost.
JUDGE JUDGE
Rgd.
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