Citation : 2015 Latest Caselaw 4908 Del
Judgement Date : 13 July, 2015
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th July, 2015.
+ W.P.(C) 5719/2015 & CM No.10285/2015 (for stay).
ATUL KUMAR VERMA ..... Petitioner
Through: Ms. Meenakshi Arora, Sr. Adv. with
Mr. Yashvardhan, Mr. Rajat Khattry
and Mr. Piyush Singh, Advs.
Versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Vivek Goyal and Mr. Jitendra Kr.
Tripathi, Advs. for R-1/UOI.
Mr. Amit Bansal, Adv. for R-2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The petitioner, being the father of an aspirant for admission to the
Indian Institutes of Technologies (IITs), for admission whereto Joint
Entrance Examination (JEE) comprising of JEE (Main) and JEE (Advance)
is held by the respondent no.2 Central Board of Secondary Education
(CBSE) and the respondent no.1 Union of India (UOI), Ministry of Human
Resource and Development respectively and whose ward / daughter had
appeared in the JEE (Main) held on 4th April, 2015, has filed this petition
seeking declaration that the questions no.9, 22 & 57 in Set „C‟ of the said
examination are conceptually wrong and seeking a direction to the
respondent no.2 CBSE to award 14 additional marks to the daughter of the
petitioner and to prepare the All India Rank of the said examination by
making the said addition to the marks of his daughter.
2. The petition came up first before this Court on 29th May, 2015 when
the following order was passed:-
"The petitioner had appeared for JEE (Mains) Examination held on 04.04.2015. It is stated that more than 12 lacs students appeared for the said examination. The respondent released the answer keys to different sets of question papers in the public domain and also invited objections to the answer keys. It is stated that the petitioner objected to the answers in respect of question no.9, 20, 22, 57, 73 & 21 from the question papers (set C). The learned counsel for the respondent, who appears on advance notice, states that the objections received in response to the answer keys put in public domain were considered by the experts. And, in respect of certain questions the objections were accepted, while in respect of others the same were rejected. However, none of the objections furnished by the petitioner were found acceptable by the experts. Although, the leaned counsel for the petitioner contends that the answers as furnished by the petitioner are correct, it is not possible to conclude that her views should prevail over the views of other experts appointed by the respondent. However, since the petitioner insists that the answers with respect to the aforementioned questions are incorrect and this is confirmed by certain coaching centres as well, I consider it appropriate to call upon the respondent to furnish the views furnished by the experts appointed by the respondent, to consider the objections to the answer keys. Let the same be furnished on the next date of hearing.
List on 01.07.2015."
3. On 1st July, 2015 the counsel for the respondent no.2 CBSE stated that
the reply directed to be filed would be filed by the next date; an advance
copy thereof minus one annexure was however handed over to the counsel
for the petitioner in Court.
4. Since only a specified number of students who appeared in JEE
(Main) are entitled to take the subsequent JEE (Advance), it was on 1 st July,
2015 enquired whether the daughter of the petitioner had appeared in JEE
(Advance). It was informed that the daughter of the petitioner was not found
eligible for JEE (Advance) by one mark but was still interested in
improvement of her result of JEE (Main) since admissions to the Regional
Engineering Colleges and National Institutes of Technology depend upon
the rank in JEE (Main).
5. An affidavit as aforesaid has been filed by the respondent no.2 CBSE
and to which a rejoinder has been filed by the petitioner. The counsels were
heard on 7th July, 2015 and judgment reserved.
6. It is the case of the petitioner, (i) that after the JEE (Main) on 4 th
April, 2015 different reputed coaching institutes released the correct answer
key of the questions in the said examination; (ii) the respondent no.2 CBSE
also subsequently released the answer key; (iii) the daughter of the petitioner
(Ms. Amodini Vardhan) found several discrepancies and anomalies in the
answer key published by the respondent no.2 CBSE and made a cross check
of the said answer key with the answer key published by different reputed
coaching institutes like FIITJEE, Brilliant, Aakash Institute, Resonance and
the Time; the same also showed discrepancies in the answer key published
by the respondent no.2 CBSE; (iv) representation dated 21st April, 2015 was
made by the daughter of the petitioner to the respondent no.2 CBSE
disputing the answers as given in the key in respect of questions no.9, 20,
22, 57, 73 & 21 from the said Set „C‟ of the question paper; (v) however the
respondent no.2 CBSE vide its response reiterated that the answers in its
answer key to the questions aforesaid were correct; (vi) the result of JEE
(Main) was declared on 27th April, 2015 in which the daughter of the
petitioner scored 104 marks; the cut-off marks in the General Category
students who could appear in JEE (Advance) was fixed at 105 marks; (vii)
the daughter of the petitioner on 7th May, 2015 applied for her OMR sheet as
well as calculation sheet and which were supplied on 15 th May, 2015;
therefrom it was found that the marks of the answers of the questions which
were conceptually wrong not counted and negative marking was done
against such questions which led to the drop in the marks of the daughter of
the petitioner below the cut-off marks for the General Category; and, (viii)
that the answer key of the respondent no.2 CBSE with respect to questions
no.9, 22 and 57 of four marks each is incorrect and the answers given by the
daughter of the petitioner are correct and the daughter of the petitioner is
thus entitled to additional 12 marks on this account; she is also entitled to be
awarded additional two marks which have been deducted for wrongly
answering questions no.9 & 57.
The petitioner in the petition, besides referring to the answer key with
respect to the aforesaid questions published by the coaching institutes, has
also pleaded having obtained expert opinion of two academicians and whose
affidavits as to the incorrectness of the answer key of the respondent no.2
CBSE with respect to the aforesaid questions and correctness of the answers
given by the daughter of the petitioner have been filed with the petition.
7. The respondent no.2 CBSE in its affidavit pursuant to the order supra
dated 29th May, 2015 has stated, (a) that as per the scheme of JEE (Main) -
2015, the objections preferred by the petitioner were duly considered and
finding no merit therein the subject experts of respondent no.2 CBSE
rejected the same; (b) the petitioner has no vested right to a review or to
challenge the decision of the subject experts of the respondent no.2 CBSE;
(c) that it is a settled law that it is for the experts / academic bodies and not
for the Courts to go into the correctness of the answers contained in the
answer key, as experts are the best judge of the subject / academic issues and
these matters should be left to the wisdom of academic bodies and the
Courts should not ordinarily interfere in the same; (d) for admission to NITs,
Centrally Funded Technical Institutes like IIITs etc. and other participating
institutions, the merit / rank list is prepared by the respondent no.2 CBSE,
based on 40% weightage to school Board marks in class 12th or equivalent
examination and 60% weightage to JEE (Main) (the weightage to school
Board / equivalent examination marks is considered only after
normalization); (e) that under the scheme evolved by the respondent no.2
CBSE, answer key for JEE (Main) is uploaded on the website and challenges
/ objections to the answer key invited from the candidates; the objections so
received are considered and examined exhaustively by the subject experts of
the respondent no.2 CBSE; if the subject experts on examining the
objections find that any answer contained in the answer key was not the
correct answer, then on the advice of the subject experts the respondent no.2
CBSE modifies its answer key accordingly and gives appropriate benefit to
the candidates; if the subject experts are of the view that the answer
contained in the answer key is a correct answer, no modification in the
answer key is made; (f) the respondent no.2 CBSE, as a policy, does not
place any reliance on the assessment or evaluation made by the coaching
institutes; (g) the respondent no.2 CBSE‟s decision on the challenge /
objections stands final; (h) upon examining all the objections received for
the Set „C‟, the subject experts of the respondent no.2 CBSE came to the
conclusion that they found merit only in the objection to questions no. 51 &
53 as in the case of question no.51 there was an error and for question no.53
there were two correct options; accordingly full marks of question no.51
were awarded to all the candidates and marks of question no.53 were
awarded to the candidates opting for either of the correct options; and, (i) no
merit was however found in the objections raised by the daughter of the
petitioner to the questions no.9,20,22,57,73 and 21.
Reliance in the affidavit itself is placed on order dated 10th July, 2013
in W.P.(C) No.4323/2013 titled Master Gautam Bathla Vs. CBSE and on
order dated 15th May, 2015 of this Court in W.P.(C) No.4777/2015 titled
Sushant Jain Vs. CBSE and on University Grants Commission Vs. Neha
Anil Bobde (2013) 10 SCC 519.
8. The petitioner in its rejoinder has reiterated his petition and referred to
Kanpur University Vs. Samir Gupta (1983) 4 SCC 309 and to Manish
Ujjwal Vs. Maharishi Dayanand Saraswati University (2005) 13 SCC 744.
9. The senior counsel for the petitioner contended, (i) that a question
relating to a Science subject could have only one correct answer; (ii)
however the subject experts consulted by the petitioner, with respect to the
questions to which objection has been taken by the petitioner opined that the
same were not capable of one answer; (iii) that the factum of the answer key
of the respondent no.2 CBSE being erroneous is established from the
respondent no.2 CBSE having admitted the answer key qua some other
questions being erroneous; (iv) some of the questions qua which objection
has been taken did not have complete particulars and required the examinees
to make assumption, making the question erroneous and incapable of a
single answer; (v) that since there was a difference of opinion between the
subject experts of the respondent no.2 CBSE and the other subject experts
equally competent and qualified, this Court in exercise of its writ jurisdiction
should refer the disputed questions to an independent expert viz. IIT, Delhi
or anyone else not connected with the respondent no.2 CBSE; and, (vi) that
the subject experts of the respondent no.2 CBSE would naturally be inclined
to, as far as possible, reiterate the answers in the answer key and would not
be completely open to re-consider.
Attention of course was invited to the affidavits of the experts
consulted by the petitioner and the reasons given by them in their affidavits /
annexures thereto for the answer in the answer key being incorrect. The
senior counsel for the petitioner during the hearing also handed over a chart
to show, (a) that with respect to question no.9, the answer as per the FIIT
JEE and Time was same as in the answer key, as per Resonance and Akash
the question was theoretically wrong; (b) with respect to question no.22
(which the petitioner did not answer), according to Time the answer was the
same as in the answer key, according to FIIT JEE the correct option was not
available and according to Resonance and Akash the question was
theoretically wrong; and, (c) with respect to question no.57, according to
FIIT JEE, Resonance, Akash, Brilliant as well as Time the answer given by
the daughter of the petitioner was correct and the answer in the answer key
was wrong.
Also, besides the judgments referred to in the rejoinder, reliance was
also placed on Guru Nanak Dev University Vs. Saumil Garg (2005) 13
SCC 749 with respect to the views of the subject experts of CBSE, which the
CBSE had been directed to produce in Court, it was argued that the same did
not give any reasons for the objections preferred by the daughter of
petitioner being not sustainable and the answer key being correct.
10. The counsel for the respondent no.2 CBSE argued that the daughter of
the petitioner, while preferring the objections to the answer key did not give
any explanation for the answer in the answer key being wrong as is now
given in the affidavits filed by the experts and thus the subject experts of the
respondent no.2 CBSE while considering the said objections did not have
the said opinion before them. It was further stated that the CBSE had been
directed to produce the views of its subject experts as received then and had
produced the views received of three subject experts consulted and of which
one contained explanation. Reference, besides to the orders / judgments
referred to in the counter affidavit was also made to the order dated 8 th April,
2015 of the Division Bench of this Court of which the undersigned was a
member in W.P.(C) No.2275/2010 titled Dr. Rajeev Kumar Vs. Union of
India concerning JEE and where it was inter alia observed / held as under:-
"20. As far as the suggestion, for the objections to the answer key to be reviewed by an independent body of experts, we are of the view that in the light what we have been informed, of the answer key prepared by the question setter being examined by the experts from all the seven IITs and the final answer key being prepared only thereafter, there is no need for the objections to the answer key being considered / reviewed by an independent body of experts. We have rather enquired from the counsel for the petitioner as to where the said process is to end - in the event of the independent body of experts differing from the experts of the IIT, whether not the next step would be to seek judicial review thereof. In our view no judicial review of the answer key is ordinarily permissible. The said aspect has been dealt in detail in recent judgments of this Court in Salil Maheshwari Vs. The High Court of Delhi MANU/DE/2085/2014 (DB) and in Manoviraj Singh Vs. University of Delhi (judgment dated 25th September, 2013 in WP(C) No.5074/2013) and need is not felt to elaborate further. Suffice it is to say that the process of examination and selection of the candidates cannot be made an unending exercise which would result in the admissions and the academic session being delayed and which cannot be permitted."
On the basis of the above it was argued that the matter is no longer res
integra. It was further contended that in Kanpur University supra the experts
of the examining body themselves had admitted to the wrong and the said
judgment is thus not applicable.
11. The senior counsel for the petitioner in rejoinder contended that, (i)
unlike as per the procedure in JEE (Advance) where objections to the answer
key are referred to persons other than those who had framed the answer key,
even though of the IITs only, the consideration of the objections to the
answer key of JEE (Main) conducted by respondent no.2 CBSE is not by
independent persons; (ii) that thus the observations aforesaid of the Division
Bench in Dr. Rajiv Kumar pertaining to JEE (Advance) would not have
application to JEE (Main); (iii) that once according to all the coaching
institutes as well as the experts consulted by the petitioner including the
expert whose affidavit is filed along with the rejoinder, the answer in the
answer key to question no.57 is wrong, the same ought to invite a reference
by this Court of the dispute to an independent expert and the petitioner will
be bound thereby.
12. During the course of hearing it was enquired whether any other
objections besides from the petitioner were received to the aforesaid three
questions. The counsel for the respondent no.2 CBSE answered in the
affirmative and informed that the objections of the others also to the said
questions were negated. The senior counsel for the petitioner responded that
it matters not whether the challenge is by one candidate or by several in as
much as once there is a difference of opinion, an independent expert
necessarily has to be consulted.
13. Before considering the rival contentions I may observe that this Court
is inundated with writ petitions concerning academic matters, so much so
that a separate Roster therefor has been created. Though the said matters in
the past pertained to challenge to the administrative actions of the academic
institutions / bodies viz. of cancelling an examination, rusticating a student,
but off late the said challenge has expanded to all facets of education and the
zenith thereof is evident from the challenge in this petition, seeking judicial
review of the marking in an examination or of the decision of an examining
body of what the correct answer to a question in an examination should be. I
have pondered, whether the power conferred by the Constitution of India on
the High Courts under Article 226 to issue to any person or authority orders
or writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari or any of them, for the enforcement of any of the
rights conferred by Part-III and for any other purpose extends to the High
Courts in exercise of said power reviewing the appropriate / correct answer
to a question in an examination held whether to test comparative merit or for
admission or for selection or posting.
14. The Supreme Court, in Tata Cellular Vs. Union of India (1994) 6
SCC 651 was concerned with the extent of judicial review of decisions bona
fide arrived at in tender cases and on a review of case law it was inter alia
held that:-
(i) there are inherent limitations in exercise of power of judicial
review;
(ii) judicial review is a great weapon in the hands of the judges; but
the judges must observe the constitutional limits set by our
parliamentary system upon the exercise of this beneficient
power;
(iii) the restraint has two contemporary manifestations - one is the
ambit of judicial intervention; the other covers the scope of the
court's ability to quash an administrative decision on its merits;
(iv) these restrains bear the hallmarks of judicial control over
administrative action;
(v) judicial review is concerned with reviewing not the merits of
the decision in support of which the application for judicial
review is made, but the decision-making process itself;
(vi) unless that restriction on the power of the court is observed, the
court will, under the guise of preventing the abuse of power, be
itself guilty of usurping power;
(vii) that the concern of the Court while exercising the power of
judicial review should be confined to, (a) whether a decision-
making authority exceeded its powers; (b) committed an error
of law; (c) committed a breach of the rules of natural justice;(d)
reached a decision which no reasonable tribunal would have
reached or; (e) abused its powers;
(viii) therefore, it is not for the Court to determine whether a
particular policy or a particular decision taken in the fulfilment
of that policy is fair;
(ix) the Court is only concerned with the manner in which those
decisions have been taken;
(x) if the decision-maker understood correctly the law that
regulates his decision-making power and has given effect to it,
his decision cannot be said to be illegal, inviting interference;
(xi) a decision would be regarded as unreasonable if it is impartial
and unequal in its operation;
(xii) a decision taken after taking into account all the factors which
ought to be taken into account is ordinarily not to be held as
unreasonable;
(xiii) if the scope of judicial review is too broad it would turn the
various authorities / agencies into little more than media for
transmission of cases to the courts and that would destroy the
value of the agencies created to secure the benefit of special
knowledge acquired through continuous administration in
complicated fields;
(xiv) it is not the function of a Judge to act as a super board or with
the zeal of a pedantic schoolmaster substituting its judgment for
that of the administrator;
(xv) no judicial review by the non-expert Judge is permitted of the
discretion exercised by the expert; and,
(xvi) if a Court were to review fully the decision of a body such as a
State Board of medical examiners, it would find itself
wandering amid the mazes of therapeutics of boggling at the
mysteries of the pharmacopoeia - such a situation is not a case
of the blind leading the blind but of one who has always been
deaf and blind insisting that he can see and hear better than one
who has always had his eyesight and hearing and has always
used them to the utmost advantage in ascertaining the truth in
regard to the matter in question.
15. When I apply the aforesaid principles to a plea, seeking judicial
review of the answer key which the question setter / s with or without
consultation with other subject experts has prepared and who, upon
objection being raised thereto has reiterated the answer key, with or without
the assistance of other experts, and which answer key has been uniformly
applied to all the candidates taking the examination, in my view the answer
is unequivocal that no judicial review lies.
16. Judicial review, as aforesaid is of the decision making process and not
of a decision which the authority / body has been entrusted in the scheme of
things to take. If that be the case, how, without there being any averments
impugning the process by which answer key has been processed, can the
Court be said to be empowered to review the answer key or for that matter
the question paper. It is settled position in law that merely because the
decision / action, of which judicial review is sought, being wrong in the
opinion of the Court or of several others, is no ground for entertaining
judicial review thereof unless any illegality or unreasonableness in arriving
of the decision or taking of action is shown. The parameters of illegality and
unreasonableness also are, as laid down in Tata Cellular supra. Applied to
questions in an examination and answer key thereto, they would be say,
where the preparation of question paper and the answer key is by person not
an expert in the subject or in violation of any rule prescribed therefor or if
inspite of merit being found in objection preferred thereto no correction
thereof is carried out inspite of procedure prescribed therefor or if there is
any bias or other uncalled for motivation in preparation thereof. This list is
certainly not meant to be exhaustive but is certainly meant to be illustrative.
17. Unless the Courts, though accustomed to resolve / adjudicate on
disputes, curb their temptation to interfere with the question paper and
answer key inspite of counter view, of other subject experts, being brought
before them and there being thus a dispute as to which view is correct, the
Universities and the examining bodies on whom the said function has been
entrusted, would loose their sheen and the respect in which they are held. I
would go to the extent of saying that if the Courts, which cannot possibly be
experts in all subjects, on the basis of opinions to the contrary obtained from
other „ independent‟ subject experts, were to start setting aside the questions
and answer keys bona fide prepared by the subject expert and who bona fide
continues to believe in correctness thereof, we may reach a day where no
self respecting expert would agree to partake in the exercise of setting the
question papers and answer key (and which mostly is honorary or for
nominal remuneration) for the fear of his / her opinion, bona fide held being
pitted against that of other in Court and his name and honour being sullied in
the process. We, in my opinion, ought not to allow our Universities and
examining bodies being so reduced to a „medium‟ as the Supreme Court
observed in Tata Cellular instead of Centres of learning and expertise. If
they have ceased to be so, the jurisdiction under Article 226 ought to be
exercised to set right their functioning rather than the Court taking over the
mantle of correcting the question paper set and answer key thereto framed
by them.
18. Notice may be taken of H.P. Public Service Commission Vs. Mukesh
Thakur (2010) 6 SCC 759. The petitioners therein had sought re-evaluation
of the paper of Civil Law in the examination held for selection for the post
of Civil Judges. The High Court directed the answer sheet of the petitioner
to be sent to another examiner for re-evaluation and as per the re-valued
marks held the petitioner eligible for appointment and disposed of the writ
petition directing the petitioner to be appointed. The Supreme Court, while
setting aside the said judgment, held, (a) that it was not permissible for the
High Court to examine the question paper and the answer sheet itself
particularly when the examining body has assessed the inter se merit of the
candidates; (b) if there was a discrepancy in framing the question or
evaluation of the answer, it was for all the candidates appearing in the
examination and not for the petitioner alone; (c) it is a matter of chance that
the High Court was examining the answer sheets relating to law; had it been
other subjects like Physics, Chemistry and Mathematics, such a course could
not have been adopted by the High Court; (d) that the course adopted by the
High Court was not permissible.
19. A Division Bench of this Court also recently in Salil Maheshwari Vs.
The High Court of Delhi MANU/DE/2085/2014 held that, (i) a candidate
in an examination who has not availed of the opportunity given for objecting
to the answer key is estopped from raising a challenge at a belated stage; (ii)
that the Supreme Court in Kanpur University has held that the answer key
must be assumed to be correct unless it is proved to be wrong and that it
should not be held to be wrong by an inferential process of reasoning or by a
process of rationalisation; it must be clearly demonstrated to be wrong, that
is to say, it must be such as no reasonable body of men well versed in the
particular subject would regard as correct; and if the traditional parameters
of judicial review - illegality, irregularity, non-consideration of material
facts or consideration of extraneous considerations or lack of bona fides in
decision making process as contrasted with the decision itself, are satisfied
can the decision be corrected in judicial review; (iii) in matters of judicial
review which involve examination of academic content and award of marks,
a circumspect approach, leaving evaluation of merits to the expertise of
academics has to be effected; (iv) and, else judicial review is permitted only
when decision is so manifestly and patently erroneous that no reasonable
person could have taken it.
20. Mention at this stage may be made of In Re: v. Askew [1768] 4 2168,
where Lord Mansfield considered the question whether mandamus should be
granted against the College of Physicians and held "it is true, that the
judgment and discretion of determining upon this skill, ability, learning and
sufficiency to exercise and practise this profession is trusted to the College
of Physician: and this Court will not take it from them, nor interrupt them in
the due and proper exercise of it. But their conduct in the exercise of this
trust thus committed to them ought to be fair, candid and unprejudiced; not
arbitrary, capiricious or biased; much less, warped by resentment, or
personal dislike".
21. In my view, it is the aforesaid principle which alone applies to the
scope of judicial review of answer key.
22. That brings me to the judgments relied upon by the senior counsel for
the petitioner. The ratio of Kanpur University has already been culled out
by the Division Bench in Salil Maheshwari supra. Moreover Kanpur
University and Guru Nanak Dev University pertain to an era where no
opportunity was given for objecting to the answer key, though the answer
key was published along with the result of the examination and where after
the result was challenged. Since then, most examining bodies themselves or
under directions of the Courts have devised a procedure of inviting
objections to the answer key and considering the said objections and if
satisfied therewith, correcting the answer key and thereafter declaring the
result. After the said procedure has been followed, in my view there is no
scope for judicial review of the answer key unless allegations of bias, mala
fide, non-consideration of relevant factors etc. which are traditionally the
grounds for invoking the power of judicial review are made out. The Courts
have directed the examining bodies which did not have the procedure of
inviting objections to the answer key to follow the said procedure which the
Courts felt was necessary to have a fair result of the examination and to
eliminate the possibility of mistakes in the answer key. Once such a
procedure has been followed, there can be no possible further challenges
except on the traditional parameters of judicial review. If such challenges
were to be allowed, the same would lead to disgruntled students filing one
petition after other with opinions of the subject experts and which can vary
and which will ultimately lead to delays in admissions and in
commencement of academic session and all of which will be contrary to
public interest and cannot be permitted and if permitted would amount to a
cure worse than the disease of a possibility of error remaining in the answer
key inspite of the procedure of inviting objections and considering the same
being followed.
23. No case for judicial review within the traditional parameters thereof
has been made out.
24. I am conscious that in some other cases also the Courts, in their zeal
to prevent injustice, without going into the question whether the power
exercised by them is within the confines of Article 226, issued directions for
obtaining an opinion of an independent expert to resolve the differing
versions of the examining body and the students as to the correctness of the
answer key. However, a judgment where the said aspect has not been raised
or considered cannot be a precedent. Now a time has come for a definite
opinion to be taken, so that the students, in future, owing to the uncertainty
in law, are not attracted to take a chance.
25. No merit is thus found in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
JULY 13, 2015 „pp‟
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