Citation : 2021 Latest Caselaw 1212 Ker
Judgement Date : 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
OP(KAT).No.262 OF 2020
AGAINST THE ORDER/JUDGMENT IN OA 1595/2019 DATED 13-01-2020 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
DR. PREEMA E.P.,
AGED 42 YEARS
W/O. RIYAS. Y, PROFESSOR(CAP), DEPARTMENT OF ORGANON OF
MEDICINE, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM,
MANACAUD P O, THIRUVANANTHAPURAM - 695009, RESIDING AT
SHANGRILA, PUNCHAKKARI, THIRUVALLAM PO, THIRUVANANTHAPURAM -
695027.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF AYUSH, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
- 695001.
2 THE CHAIRMAN,
DEPARTMENT PROMOTION COMMITTEE (HIGHER), DEPARTMENT OF
HOMEOPATHIC MEDICAL EDUCATION (SECRETARY, KERALA PUBLIC SERVICE
COMMISSION), PATTOM, THIRUVANANTHAPURAM - 695004,
3 THE CONVENER
(PRINCIPAL SECRETARY TO GOVERNMENT), AYUSH DEPARTMENT,
DEPARTMENTAL PROMOTION COMMITTEE, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
4 * ADDL.R4 SUO MOTU IMPLEADED
PRINCIPAL AND CONTROLLING OFFICER
GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE,
MANACAUD, IRANIMUTTOM,
THIRUVANANTHAPURAM - 695 009
* (ADDL.RESPONDENT NO.4 IS SUO MOTU IMPLEADED AS PER ORDER DATED
13.1.2021 IN OP(KAT) NO.262/2020
OTHER PRESENT:
SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.262 OF 2020 2
ALEXANDER THOMAS
&
T.R. RAVI, JJ.
=========================
O.P.(KAT) No. 262 of 2020
(arising out of order dated 13.1.2020 in OA No.1595/2019 of the
KAT, TVM Bench)
-------------------------------------------------------------------------
Dated this the 13th day of January, 2021
JUDGMENT
Alexander Thomas, J.
The prayers in the aforecaptioned OP(KAT) filed under Articles 226
and 227 of the Constitution of India are as follows :
i. "Call for the records leading to Ext.P4 order of the Tribunal and set aside the direction therein against convening DPC (Higher) for considering the promotion of the petitioner as Professor (Cadre) till the Government decides on laying down API norms and assessment under the PBAS. ii. Direct the respondents to include the name of the petitioner in Annexure A or convene the DPC (Higher) for considering the claim for promotion of the petitioner as Professor in the Department of Organon of Medicine pursuant to Annexure-A12 on similar lines in Ext.P5 order of the Tribunal forthwith and grant her all consequential benefits. iii. To allow the prayers sought for in Ext.P1 OA iv. Issue such other and futher reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
v. Award costs to the petitioner."
2. Heard Sri.K.Jaju Babu, learned senior counsel instructed by
Sri.Brijesh Mohan, learned counsel appearing for the petitioner in the
original petition/original applicant before the Tribunal and
Sri.B.Unnikrishna Kaimal, learned Government Pleader for all the 4 official
respondents in the OP/respondents in the OA.
3. The complaint of the petitioner is against the non-convening of
the Department Promotion Committee (DPC) for effecting further
promotion to the post of cadre of Professor. The original petitioner/original
applicant in the Tribunal is now placed as a Professor (CAS) as per the
career advancement promotion scheme in the Homeopathic Medical
Education Department under the 1st respondent, State Government in the
Ayush Department and the 4th respondent, Controlling officer of the
Homeopathic Medical College Education Wing in the State. She had
initially entered into that service as tutor in Organon Medicine as per
Annexure-A1 appointment order dated 27.9.2006. She was further
promoted to the post of Lecturer as per Annexure-A2 proceedings dated
5.4.2010 and then promoted to the post of reader as per Annexure-A3
proceedings dated 30.10.2014. It is later that the petitioner has been
granted career advancement promotion (CAP) as Professor, in terms of the
aforementioned career advancement scheme promotions (CAS) as per
Annexure-A4 order dated 28.3.2019. It is the case of the petitioner that her
probation in the post of reader was successfully declared by the competent
authority of the respondents on 1.5.2015. Incidentally, it is also pointed out
that she possess MD Homeopathy as on 26.7.2007 and the petitioner
would assert that she is fully eligible and entitled for promotion as
Professor, Department of Organon of Medicine.
4. Further, it is the case of the petitioner that vacancies are indeed
available in the cadre of Professor in the abovesaid department in respect
of the vacancies which have arisen for the period from 1.11.2017 to 1.5.2019.
Further, she would say that she has been duly included in the Field of
Choice by the Department Promotion Committee (DPC) convened on
4.2.2019 for preparation of select list of eligible readers fit for promotion as
Professor. It appears that though the petitioner has already secured the
career advancement promotion scheme as Professor, she has not been
granted regular promotion to the cadre of Professor. Further that, the
original petitioner along with one Dr.B.Rithesh was duly considered by the
DPC and as per Annexure-A7 proceedings dated 4.2.2019. The DPC has
indeed prepared the select list including only one person therein,viz, the
abovesaid Sri.B.Rithesh for further promotion in the cadre of Professor. It
appears that the case is that the selection in the anticipated vacancies
which will then due to arise on 1.5.2019 was deferred seeking clarification
as to whether the UGC guidelines which required Performance Based
Appraisal System (PBAS) and Academic Performance Indicators (API)
would be applicable for further promotion.
5. According to the petitioner, she has been consistently seeking
for action at the end of the 3rd respondent, convener of the DPC to convene
the DPC forthwith and to effectuate further promotion to the post in the
cadre of Professor in the Organon Medicine without any further delay.
6. In the case set up by the respondents 1 to 4 in the OA before the
Tribunal, they would say as per GO (P) No. 48/2012/Fin dated 13.1.2012,
the competent authority of the State Government has duly implemented
the University Grants Commission (UGC) regulations to the teaching staff
of Homeopathic Medical Colleges with effect from 1.1.2011 and that the
norm based on API consideration is mandatory under the UGC regulations
for CAP. Further, there is an exception upto 31.5.2018 that was granted to
the Homeopathic Department for all regular promotions/CAPs. Further
that, clarifications in short from the higher authority as to whether the
incumbents could exercise option after the abovesaid cut off period of
31.5.2018 and whether state scale payable to us would be eligible for
exemption from API norms is pending consideration at the hands of the
competent authority of the Government, Finance Department. Hence, the
respondents in the OA have pleaded before the Tribunal that it is only after
receipt of requisite clarification from the competent authority of the State
Government in the Finance Department, that the issues regarding the
convening of the DPC could be duly settled for necessary constitutional
action for the actual convening of the DPC thereafter.
7. It appears that the Controlling officer (R4) has stated before the
Tribunal that the teacher incumbents of the Homeopathic Medical Colleges
are in the UGC scheme and they are governed by the API as well as PBAS,
which is mandatory with effect from 1.6.2018 as per GO(Rt.)
No.495/2018/Ayush dated 28.9.2018 issued by the competent authority of
the 1st respondent-State Government in the Ayush Department. Further
that, for convening DPC (higher) a clarification was indeed sought as to
whether teaching incumbents with post graduate qualification would
remain in State scale or has to be brought over in the UGC scale and also
the manner and method in which the valuation process has been carried
out under the UGC norms by resorting to API as well as PBAS norms. That
discussion is being conducted as between the competent authority of the 1 st
respondent-Ayush Department and 4th respondent-Controlling Officer. It
appears that the Principal of the Government Homeopathic Medical
College, Thiruvananthapuram is the designated controlling officer.
8. It is accordingly the case of the respondent-controlling officer
that it is only after due decision is taken and modalities of graduation of
API as well as PBAS is finalised that the actual process of convening of DPC
(Higher) would be taken up and that it is only on this basis that the case of
the petitioner herein for regular promotion to the cadre of Professor could
be considered by the DPC.
9. On the basis of the abovesaid facts and circumstances, the
Tribunal has found that though the name of the petitioner was also sought
to be considered along with the other incumbent concerned (one
Dr.B.Rithesh) his name has been omitted to be considered for the
aforestated reasons, whereas the other incumbent concerned has been
granted regular promotion based on DPC consideration. The purported
justification for this as urged by the respondents is that the Homeo
Department concerned was indeed exempted from the enforcement of the
API and PBAS norms upto 31.05.2018, though the UGC scheme was
implemented in the Homeopathic Medical Colleges with effect from
01.01.2011 as per the abovesaid GO dated 13.01.2012.
10. Further, the respondents would urge that the said exemption
was indeed taken away and the UGC regulations are made mandatory with
effect from 1.6.2018 as per the stipulations in GO (Rt.) No.
495/2018/Ayush dated 28.9.2018. The respondents have thus pleaded and
urged before the Tribunal that even going by the case of the
petitioner/original applicant, the claim put up by her is one as against the
vacancy which is said to have arisen on 1.5.2019, which is after the
enforcement of the UGC regulations which is after the adoption of the UGC
norms and the enforcement of the mandatory API and PBAS norms in the
Homeopathic Medical Education.
11. It is thus urged by the respondents that the non-consideration
of the name of the petitioner by the DPC was only on account of these
crucial factual aspects for which the respondents cannot be found fault with
legally, etc. Taking note of these factual aspects, the Tribunal, as per the
impugned final order dated 13.01.2020 has noted the abovesaid factual
aspects urged by the respondents and held that immediately after the
government and the department concerned finalises the modalities and
lays down the API norms and the assessment to be carried out by the PBAS,
it shall be ensured by the competent authority among the respondents that
the DPC is convened without any further delay and the claim of the
applicant is considered in accordance with the same, etc.
12. We also note that the petitioner also placed reliance on Ext.P-5
final order dated 14.08.2019, rendered by the Tribunal in O.A.
No.1124/2019. Therein, Sri.B.Unnikrishna Kaimal, learned Government
Pleader would point out that a mere reading of paragraph No.2 of Ext.P-5
order would indicate that the vacancy claimed by the incumbent therein in
a different branch is one which has arisen on 01.05.2018, which is before
the cut off date of 01.06.2018. Whereas the vacancy claimed by the
petitioner in this case for regular promotion is one which is said to have
arisen on 01.05.2019 and that therefore, the petitioner cannot place serious
reliance on Ext.P-5 order, though there was a direction therein to
immediately place the case of the petitioner therein before the DPC for its
consideration.
13. After hearing both sides in extenso and after giving anxious
consideration, it is seen that the impugned Ext.P-4 final order rendered by
the Tribunal as early as on 13.01.2020. It appears that not much has
progressed on the part of the 2nd respondent competent authority of the
State Government in the Ayush Department as well as the 4 th respondent
Controlling Officer, to get into the nitty-gritty of laying down the requisite
norms so as to ensure the early convening of the DPC, for making regular
promotion in the cadre of professor. It has to be borne in mind that the
service in question is one pertaining to Homoeopathic Medical Education,
which is one vital wing of medical education and the public health sector as
a whole and especially in the times of COVID-19 pandemic issues, there
cannot be two opinions that the services in such medical and health wings
are geared to its maximal or at least optimal efficiency and the last thing
that should be contemplated is any sense of demoralization among the
officials of such vital wings.
14. It appears that the instant original petition has been filed as
early as in the year 2019. We are not aware as to the reasons for the long
and inordinate delay in expediting the finalization of this administrative
process, which are fully within the domain and province of the
respondents. Presumably, some delay would have occurred on account of
the national lock down, which all of us face d since 24th March,2020 which
was partially lifted a month thereafter and certainl y the impact of COVID-19
pandemic issues will also had a decelerating effect on administrative
efficiency. That aspect of the matter is highly understandable. Incidentally,
it appears that today (13.01.2020) appears to be the first birth anniversary
of the impugned Ext.P-4 order dated 13.01.2020 rendered by the Tribunal.
At least about 10 months have elapsed after the lock down. Certainly
things are moving in the right direction as regards management of the
COVID-19 pandemic issues. But administrative delay and that too based
on COVID-19 pandemic issues cannot be the basis to prolong this process
any further.
15. Sri. K. Jaju Babu, learned counsel appearing on behalf of the
original petitioner has urged various aspects on the merits of the matter
and has also pointed out as an alternate submission that even going by the
stipulations so far, the norms based on API and PBAS are applicable in the
case of career Advancement Promotion Scheme and not necessarily for
regular promotion in the cadre of Professor etc. Further that, if the matter
is delayed and ultimately the competent authorities themselves decide that
PBAS and API norms are applicable only for CAP promotion and not for
regular cadre promotion, then any further delay would lead to a situation of
serious and manifest injustice and inequity.
16. Sri.B.Unnikrishna Kaimal, learned Government Pleader
appearing for the respondents would point out that the 4 th respondent-
Controlling officer has specifically pleaded before the Tribunal that the
teaching faculty members of the Homeopathic Medical Colleges, who are
indeed in the UGC scheme are governed by the API as well as PBAS system
norms, which is mandatory with effect from 01.06.2018 as per the
stipulations in GO(Rt) No.495/2018/Ayush dated 28.09.2018, not only for
non-cadre promotions like CAP promotions, but also for cadre promotions
as well etc.
17. Further, Sri.B.Unnikrishna Kaimal, learned Government
Pleader would submit that since he has no precise factual instructions on
the subsequent developments of this case, this Court may not enter into the
merits of the controversy, if the matter is being finally disposed of.
18. The said submission made by Sri.B.Unnikrishna Kaimal,
learned Government Pleader appearing for the respondents has to be
countenanced by this Court. However, though the Tribunal has very
liberally left the matters to the full discretion and liberty of the competent
authority of the respondents to ensure the expeditious finalization of the
action to be taken by them in this regard, for the convening of the DPC
and thereafter, the case of the petitioner will be considered by the said DPC
process, so far, no effective action is forthcoming even though more than
one long year has elapsed after rendering of the said impugned order by the
Tribunal.
19. If duties and responsibilities are not effectively and
expeditiously performed by the competent authorities concerned, then
certainly, there cannot be two opinions that mandamus would lie at least
to ensure that those duties and responsibilities are duly discharged by the
authorities, without any further delay.
20. Accordingly, it is ordered that the competent authority of the 1 st
respondent-State Government in the Ayush department as well as the 4 th
respondent-Controlling Officer of the Medical Educations Service and if
necessary, the Government in the Finance Department will ensure that all
necessary action is taken up immediately to ensure that the final details of
the matter are finalised without any further delay and due decision is taken
as to whether the API and PBAS norms are indeed applicable not only to
CAP promotions, but also to cadre promotions and if that be so, the further
final details for laying down the methodology for effectuating such regular
cadre promotions by laying down the stipulations and norms in that regard
for effectuating such API and PBAS systems should indeed be finalised,
without any further delay, at any rate, within an outer time limit of two
months from the date of production of a certified copy of this order. In that
regard, we also note the fervent plea made by Sri.B.Unnikrishna Kaimal,
the learned Government Pleader appearing for the respondents that at least
4 to 5 months may be granted by this Court.
21. After giving anxious consideration to both sides, we have
constrained to hold that we cannot countenance the said appeal made by
the learned Government Pleader for and on behalf of the respondents.
There has been significant and inordinate delay in matter. Any further
delay will only be detriment to the public interest and would go against the
good morale of the public service concerned.
22. Accordingly, we are not in a position to grant such long time of
4 to 5 months to the competent authority of the 1 st and 4th respondents for
ensuring the due completion of the minimal things that are to be
effectuated by them on this crucial aspect. It has been urged by the learned
senior counsel appearing on behalf of the petitioner that all similarly
situated senior incumbents of the petitioner have already secured regular
promotion to the cadre of Professor of Organon Medicine under the
Homeopathic Medical Education service of the State Government and that
though the petitioner's name was placed before the DPC, he has been made
to miss the best only on account of the abovesaid aspects and that this
Court may at least direct that he should be provisionally/temporarily
promoted to the post of Professor of medicine of Organon to the existing
vacancy, by virtue of the enabling powers conferred under Rule 31(a)(i) of
KS & SSR Part II.
23. Sri.B.Unnikrishna Kaimal, learned Government Pleader
appearing for the respondents would submit that he has no factual
instructions as to whether the petitioner is the senior most claimant and as
to whether any vacancy for such regular promotion is indeed arisen and is
available, etc.
24. Per contra, the learned senior counsel would point out that the
factum of the arising of the vacancy and its continued availability with
effect from 01.05.2019 is indeed admitted by the respondents as can be
seen from a mere reading of the impugned order rendered by the Tribunal
in this case at Ext.P4.
25. Having regard to the facts and circumstances of this case and
taking note of the inordinate delay in the matter and also taking note of the
fact that the petitioner's case was indeed put up before the DPC along with
another incumbent and his name to be considered only on account of the
abovesaid circumstances, it is ordered in the interest of justice that the
competent authority among the respondents more particularly, the 1st and
4th respondents will immediately ensure that in case vacancies are available
and the petitioner's turn for promotion as against the available vacancy has
arisen, and no senior to the petitioner is awaiting for any such promotion,
then it shall be ensured that the case of the petitioner for
provisional/temporary promotion in terms of Rule 31 (a)(i) of the KS &
SSR Part-II is taken up for consideration, without any further delay and
orders in that regard may be passed without any further delay, at any rate,
within an outer time limit of 3 weeks from the date of production of a
certified copy of this order.
26. We hope and trust that the competent authority among the
respondents, more particularly, the 1st respondent and 4th respondent will
not unnecessarily delay the consideration of the case of the petitioner at
least for such temporary promotion under Rule 31 (a) (i), on untenable and
inappropriate grounds and that the said competent authorities would rise
up to the occasion to appreciate the gravity of the situation and do the
needful, in accordance with law, without much delay, at any rate, within the
abovesaid outer time limit of 3 weeks.
27. It is also directed that the specific directions in para.20 of this
judgment are complied with by the authorities of the Government in the
Ayush Department, the Controlling Officer and the Government in the
Finance Department (if involved) within 2 months from the date of receipt
of a certified copy of this judgment. Thereafter, the case of the petitioner
for regular cadre promotion as Professor shall be placed for the DPC's
consideration and decision within 1 month thereafter. It is made clear that
if the authorities do not comply with the directions in para 20 of this
judgment within 2 months, then the case of the petitioner for regular cadre
promotion shall be considered and decided by the DPC within 1 month
thereafter, as has been done in the case of the abovesaid Sri.B.Rithesh.The
Secretary to the office of the Advocate General will forward copies of this
judgment to the Principal Secretary to Government in the Ayush
Department and the Controlling Officer of Homeopathic Medical
Education immediately for information and necessary action for
compliance.
28. The impugned final order dated 30.01.2020, rendered by the
Kerala Administrative Tribunal, Thiruvananthapuram bench in O.A.
No.1595/2019 will stand modified to the abovesaid extent.
With these observations and directions, the aforecaptioned original
petition will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
sd/-
T.R.RAVI, JUDGE SKS
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A NO.1595/2019 ALONG WITH ANNEXURE A1 TO A12 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
ANNEXURE A1 TRUE COPY OF THE APPOINTMENT ORDER OF THE APPLICANT DATED 27.09.2006 WITH NO.3266/E#1/2001/GHMCT ISSUED BY THE 4TH RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER OF PROMOTION OF THE APPLICANT FROM THE POST OF TUTOR TO THE POST OF LECTURER DATED 05.04.2010 VIDE GO(RT) NO.1466/2010/H&FWD, ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE PROMOTION ORDER OF THE APPLICANT FROM THE POST OF LECTURE TO THE PO ST OF READER VIDE GO(RT) NO.
3532/2014/H&FWD DATED 30.10.2014 OF THE 1ST RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE GOVERNMENT ORDER
SANCTIONING CAP TO THE APPLICANT VIDE
GO(RT) NO.197/2019/AYUSH DATED 28.03.2019
OF THE 1ST RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE DEGREE OF DOCTOR OF
MEDICINE -MD HOMEOPATHY DATED 26.07.2007
ISSUED BY THE FACULTY OF HOMEOPATHY,
CALICUT UNIVERSITY TO THE APPLICANT.
ANNEXURE A6 TRUE COPY OF THE NOTES SUBMITTED TO THE
MEETING OF DPC HIGHER OF HOMEOPATHIC
MEDICAL EDUCATION DEPARTMENT FOR THE POST
OF PROFESSOR FOR THE YEAR 2018 ALONG WITH
THE FILED OF CHOICE.
ANNEXURE A7 TRUE COPY OF THE MINUTES OF THE MEETING
DPC(HIGHER) DEPARTMENT OF HOMEOPATHIC
EDUCATION HELD ON 04.02.2019.
ANNEXURE A8 TRUE COPY OF KERALA STATE HOMEOPATHIC
MEDICAL COLLEGES SERVICE RULES, 2001
PUBLISHED BY GO(P) NO. 79/2001/H&FWD DATED
19.03.2001.
ANNEXURE A9 TRUE COPY OF GO(P) NO.48/2012/FIN DATED
13.01.2012 OF THE 1ST RESPONDENT.
ANNEXURE A10 TRUE COPY OF GO(MS) NO.37/2018/AYUSH DATED
21.12.2018 OF THE 1ST RESPONDENT.
ANNEXURE A11 TRUE COPY OF THE KERALA STATE HOMEOPATHIC
MEDICAL EDUCATION(TEACHING) SERVICES
SPECIAL RULES 2019 PUBLISHED BY GO(p0
NO.6/2019/AYUSH DATED 11.03.2019.
ANNEXURE A12 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE APPLICANT BEFORE THE 3RD RESPONDENT
DATED 25.03.2019.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
19.11.2019 FILED ON BEHALF OF THE 1ST
RESPONDENT IN OA NO.1595/2019 BEFORE THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED
24.12.2019 FILED ON BEHALF OF THE 4TH
RESPONDENT IN OA NO.1595/2019 BEFORE THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.01.2020 IN
OA NO. 1595/2019 OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14.08.2019 IN
OA NO.1124/2019 OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
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