Jaipal
& Ors Vs. State of Haryana & Ors [1988] INSC 171 (2 June 1988)
Singh,
K.N. (J) Singh, K.N. (J) Kania, M.H.
CITATION:
1988 AIR 1504 1988 SCR Supl. (1) 411 1988 SCC (3) 354 JT 1988 (2) 528 1988
SCALE (1)1198
CITATOR
INFO : RF 1989 SC 19 (27) F 1989 SC1256 (4) C 1989 SC1308 (8,10) F 1990 SC 883
(7) RF 1991 SC1173 (6)
ACT:
Constitution
of India: Articles 14 and 39(d)-'Equal pay for Equal Work'-Constitutional
obligation of the State- Difference it mode of selection for posts not
material- Similar functions and duties under the same employer- Relevancy of.
HEAD NOTE:
In the
State of Haryana two identical schemes are
simultaneously in operation with the object of imparting literacy (functional
and awareness) to adult illiterates and to provide literacy to children keeping
away from school.
The
first scheme, known as the Adult and Nonformal Education Scheme, is financed by
the Central Government under its Rural Functional Literacy Programme/Project,
but is administered by the State Government. Under this scheme, a number of
Adult Education Centres have been opened to impart literacy to adult
illiterates. The petitioners were appointed as Instructors at these centres on
different dates. They are being paid a fixed salary of Rs.200 per month. The
petitioners are given a deliberate break of one day in their service after the
lapse of every six months and have thus been treated temporary in service. The
second scheme, known as the State Social Education Scheme, has been framed by
the State of Haryana. Under this scheme Social Education
Centres have been opened in the State and teachers known as Squad Teachers
appointed at these centres to impart literacy among the illiterates. The State regularised
the services of the Squad Teachers working on ad-hoc basis with effect from
1.1.1980 and sanctioned them pay scale of Rs.420-700, the scale applicable to
primary school teachers in the State.
The
Petitioners' grievance is that although they are performing the same nature of
functions and duties as performed by the Squad Teachers, they are denied the
same scale of pay. The petitioners pray for the issuance of a writ, order or
direction to the respondents (i) to treat them in continuous service
irrespective of the deliberate breaks in their service, (ii) to grant them
regular pay scales of the Primary School Teachers plus consequential benefits
from the date of their initial appointment, and (iii) to treat the Department
of Adult Education and Non- formal Education as a permanent department and to regularise
the 412 services of the petitioners in that Department.
The
claim of the petitioners is based on the doctrine of 'equal work equal pay'.
The petitioners contend that (i) the two schemes are similar and the nature of
duties and functions performed by instructors are similar to those performed by
squad teachers, (ii) the instructors as well as the Squad Teachers are both
appointed by the District Adult Education officer and function under the
supervision of the Directorate of Education, (iii) the instructors are full time
employees and take regular classes of students in the age group of 5-15 years
for two and a half hours and of adult illiterates in the age-group of 15-35
years for one and a half hours. In addition, they have to motivate the children
and the adults to join the Adult Education Centres.
They
are further required to submit regular survey reports.
The
respondents, on the other hand, urge that the functions and duties of the
instructors and the squad teachers are quite different. The main points of
distinction relied upon are that (i) the instructors are appointed part time
while squad teachers are in full time employment, (ii) the squad teachers are
transferable while instructors are not, (iii) the squad teachers are required
to teach 7 hours daily while instructors are required to teach for four hours,
(iv) the social education scheme is permanent and squad teachers are working
under a permanent scheme while the instructors are working under a temporary
scheme, and (v) the qualifications and the mode of recruitment of instructors
are different; while the instructors are appointed locally, the squad teachers
are selected by the Subordinate Service Selection Board after competing with
candidates from any part of the country. It is emphasized that if a regular
selection was held, many of the Instructors may not have been appointed.
Earlier,
this court had in Bhagwan Das v. State of Haryana, [1987] 4 SCC 634 upheld the
claim of the Supervisors appointed to supervise the centres at which
instructors have been working under the Adult and Non-formal Education Scheme
for the grant of the same scale of pay as has been sanctioned to the Head Squad
Teachers of the Social Education Scheme.
In
partly allowing the writ petitions, this Court, ^
HELD:
(1) There is no difference in the nature of duties of the instructors and squad
teachers and both of them carry out similar work under the same employer. The
functions and duties of both classes of 413 persons are primarily directed to
advance the cause of education to bring social awareness among the people in
the rural areas and to create interest in various social, economic and
educational activities. Bringing adults to centres for educating them is a
difficult task and to impart education to dropout children is not an easy job.
One of the main duties of the instructors is to motivate the adults and dropout
children to participate in the activities and to motivate them for taking
education. The instructors teach four hours a day and thereafter they have to
do survey work and motivation work. In addition to that, the instructors are
required to carry out additional duties which are assigned to them by the
Department. Further, the instructors are required to organise sports like kho-kho,
kabadi and athletics, and to participate in the local functions and to motivate
affluent villagers to give donations for the adult education scheme. [420C-E; 421D-E]
(2)
Having regard to their duties and functions, it is difficult to uphold the
respondents' plea that the instructors are part-time employees as they work
only for four hours. [421E]
(3) If
the two class of persons do same work under the same employer, with similar
responsibility, under similar working conditions, the doctrine of 'equal work
equal pay' would apply and it would not be open to the State to discriminate
one class with the other in paying salary. [421F-G]
(4)
The State is under a constitutional obligation to ensure that equal pay is paid
for equal work. Article 39(d) contained in Part IV of the Constitution ordains
the State to direct its policy towards securing 'equal pay for equal work' for
both men and women. Though Article 39 is included in the Chapter of Directive
Principles of State Policy, but it is fundamental in nature. The purpose of the
article is to fix certain social and economic goals for avoiding any
discrimination amongst the people doing similar work in matters relating to
pay. [421G; 422B-C]
(5)
The doctrine of 'equal work equal pay' would apply on the premise of similar
work, but it does not mean that there should be complete identity in all
respects. [421F]
(6) A
temporary or casual employee performing the same duties and functions is
entitled to the same pay as paid to a permanent employee. [422D]
(7)
The plea that instructors are not transferable does not affect 414 the doctrine
of equal pay for equal work. The instructors are appointed A locally because
they are in a better position to motivate the adults and dropout children for
participating in the scheme, while an outsider may be handicapped in motivating
the local residents. [423C-D]
(8)
Minimum qualification for the Instructors as well as the Squad Teachers is Matric,
though many among both are graduates and some of them are trained teachers.
Though the Instructors belong to the locality where they have been posted, but
they are appointed only after selection. The difference in mode of selection
will not affect the application of the doctrine of `equal work equal pay' if
both the class of persons perform similar functions and duties under the same
employer. [423D-E]
(9)
The instructors are entitled to the same pay scale as sanctioned to squad
teachers. The pay of each of the petitioners shall be fixed having regard to
the length of service with effect from the date of his initial appointment by
ignoring the break in service on account of six months fresh appointments. The
petitioners will be entitled to increments in the pay scale in accordance with
law notwithstanding the break in service that might have taken place. These
directions shall be implemented with effect from September 1, 1985. [424A-C]
10.
The petitioners' claim for regularising their services in the departments
cannot be accepted as admittedly the project of Adult and Non-formal Education
is temporary.
[424C-D]
Bhagwan Dass v. State of Haryana, [1987] 4 SCC 634; Ranjit Singh v.
Union of India, [1982] 3 SCR 298; Dhiren Chamoli v. State of U.P., [1986] 1 SCC 637 and Surinder Singh v.
Engineer-in-Chief CPWD, & Ors., [1986] 1 SCC 639 referred to.
CIVIL
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 455, 597, 635, 636, 777/1986,
1518, 1686/1987, 77, 78 and 395 of 1988.
(Under
Article 32 of the Constitution of India).
Govinda
Mukhoty and Mrs. Rekha Pandey for the Petitioners.
Madhusudan
Rao, Mahabir Singh, M. Satya Narayan Rao and C.V.S. Rao for the Respondents.
The
Judgment of the Court was delivered by 415 SINGH, J. The petitioners in all
these ten writ petitions filed under Article 32 of the Constitution of India
have raised grievance of discrimination against the State of Haryana in not following the doctrine of
"equal work equal pay".
The
petitioners are working as instructors under the Adult and Non-formal Education
Scheme under the Education Department of Haryana. The object of the Non-formal
Education and Adult Education Scheme is to impart literacy (functional and
awareness) to the adult illiterates in age group of 15-35 years and to provide
literacy to the children in the age group of 5-15 years who are drop-outs from
the primary and middle school level or who never joined any regular school. A
number of Adult Education Centres have been opened in the State of Haryana, which are maintained under the
Rural Functional Literacy Programme/Project (RELP) of the Central Government,
administered by the State of Haryana
although expenditure in respect of the project is borne by the Central
Government. The petitioners were appointed instructors to impart literacy to
adult illiterates at these Centres on different dates. The students who are
taught by the petitioners are permitted to appear at the Vth standard (primary
examinations) conducted by the Education Department of the State. On passing
the examination the students are issued a certificate of having passed primary
examination. On the basis of that certificate students are eligible for
admission to 6th class in the regular schools maintained by the State
Government. The petitioners were appointed instructors by the District Adult
Education officers of each district between 1978 to 1985 on the basis of
selection held by a Selection Committee.
Initially
the petitioners were paid a fixed salary of Rs. 150 per month but since April
1983 it has been increased to Rs.200 per month. Minimum qualifications for
being appointed an instructor is matric, many of the instructors are graduates
while some of them also hold junior basic training certificates. The
petitioners are given a deliberate break of one day after the lapse of every
six months and have thus been treated temporary in service notwithstanding the
fact that they have been continuously working ever since the date of their
appointment. There is another scheme known as Social Education scheme in the
State of Haryana for imparting education to illiterates in the villages, the
scheme is known as State Adult Education Programme also.
Under
that scheme a number of social education centres have been opened. The teachers
employed under that scheme were known as squad teachers who run the centres. In
1981 the head squad teachers and squad teachers were regularised as head
teachers and teachers, and granted the benefit of pay scale applicable to
regular 416 head-masters and teachers of primary schools maintained by the
State A Government. The petitioners' grievance is that although they are
performing the same nature of functions and duties as performed by the squad
teachers but they are denied the same scale of pay instead they are being paid
a fixed salary of Rs.200 per month. The relief claimed by the petitioners in
all these petitions is identical in the following terms (a) Issue a writ in the
nature of mandamus or any appropriate writ, order or direction that the
petitioners continue to be in the service of the respondents from the date of
their initial appointment irrespective of their being a deliberate break in
their services during the vacation period.
(b)
Issue an appropriate writ, order or direction to the respondents to put the
petitioners on regular pay scales to that of primary school teachers in the
Education Department of Haryana plus other consequential benefits from the date
of their initial appointment and further direct the respondents to pay the
petitioners the difference in arrears of salary accrued to them from the date
of their initial appointment.
(c)
Issue by appropriate writ, order or direction that the Department of Adult
Education and Non-formal Education is a permanent department of the State and
the petitioners are regularised teachers in the Department appointed against
sanctioned posts of instructors.
There
is no dispute that the State of Haryana has framed its own scheme for imparting
education to Adult illiterates in the villages, this scheme is known as the
State Social Education Scheme. Under this scheme the State of Haryana has
opened social education centres in various Districts. These centres have been
functioning under the Department of Education where teachers known as squad
teachers have been imparting literacy, functional and awareness among the
illiterates. The State of Haryana by its order dated 20.1.1981 regularised the
services of the squad teachers working on ad-hoc basis with effect from
1.1.1980 and sanctioned them pay scale of Rs.420-700, the scale applicable to
primary school teachers in the State of Haryana. The petitioners claim that the
job and functions of the instructors are similar to squad teachers for running
the social educa- 417 tion centres, therefore they are also entitled to the
same pay scale as granted to squad teachers. At this stage it is necessary to
note that supervisors are appointed to supervise the various centres at which
instructors have been working under the Adult Education and Nonformal Education
Scheme. A number of supervisors filed a writ petition in this Court under
Article 32 of the Constitution claiming same scale of pay as granted to head
squad teachers of the Social Education Scheme. Their claim was upheld by this
Court in Bhagwan Dass v. State of Haryana, [1987] 4 SCC 634 and direction was
issued sanctioning the same scale of pay to them as has been sanctioned to the
head squad teachers of the Social Education Scheme. The petitioners' claim that
as the supervisors who supervise their work have been granted pay scale
applicable to head squad teachers the petitioners are also entitled to the pay
scale applicable to squad teachers of the Social Education Scheme .
The
main controversy raised on behalf of the respondents is that the instructors do
not perform similar duties as performed by the squad teachers. It was urged
that the nature of duties of instructors are quite different than those
performed by the squad teachers. The petitioners have stated that the
instructors are full time employees they take regular classes of students in
the age group of S- 15 years for two and a half hours and they further take
classes for adult illiterates in the age group of 15-35 years for one and a
half hours. This is not disputed. The petitioners further contended that in
addition to four hours teaching work they have to motivate the children and the
adults to join the centres for getting free education. They are required to
submit survey reports to the department every six months giving details as to
how many children in the age group of 5-15 years are not going to the schools
and how many adult persons are illiterate in their villages. The petitioners
further assert that adult education and nonformal education programme which is
implemented by the instructors is similar to social education programme. The
instructors as well as squad teachers of social education scheme are appointed
by the District Adult Education officer and both these class of persons
function under the control and supervision of the Joint Director, Adult
Education under the Directorate of Education of the State of Haryana. The
duties of instructors as contained in Chapter II of the Informal Education
Instructors Guide published by the Haryana Government, Directorate of
Education, are specified, a copy of the same has been annexed to the affidavit
of Prem Chand one of the petitioners. The duties of the instructors as
prescribed therein are as under:
418
"DUTIES OF THE INSTRUCTOR (A) AS ORGANISER OF THE CENTRE
1. To
contact the villagers and their children who can be given education at the
centre;
2. To
survey the villages to know who are the children who can be brought to the
centre for teaching;
3. To
tell the villages about the aims and objects of education programme; and (4) To
form local co-ordinating bodies.
(B) AS
A TEACHER
1. To
complete the syllabus in time and to create interest in the children by his
teaching;
2. The
instructor must be aware of multiple class and group teaching systems;
3. He
should give examples of village life and to link it with education; and
4. To
make cultural activities a part of education.
(C) AS
ADMISTRATOR OF THE CENTRE
1. To
contact such students who are irregular or late comers to the centre and to
encourage them/their parents to send their children regularly to the centre;
2. To
keep records of the following:
(i) personal
details of children and their progress charts;
(ii)
Their timely evaluation;
(iii)
The details of admission of children from Informal Education Centre (3rd, 4th
and 5th class) to formal school;
419
(iv) Copy of the monthly progress and copies of reports sent to the Supervising
and Planning offices and copies of other reports." The aforesaid publication
issued by the Government further states that Haryana is the first State which
has integrated the two schemes, namely, Informal Education Programme and Adult
Education Programme.
In the
counter-affidavit of J.K. Tandon, Assistant Director, Adult Education, it is
stated that the instructors who are seeking equality with the squad teachers of
Social Education Scheme are quite different. The social education squad
teachers are mobile in nature and they move from one village to another, after
completing their job in a village whereas in the case of instructors they are
employed from the same village and are from the nearby villages, the squad
teachers are full time employees and teaching work is carried out by them for
full day. However, in his affidavit Shri Tandon could not dispute the duties as
mentioned in the Informal Education Instructors Guide (extracted above).
Another
counter-affidavit has been filed by Sabira Khosla, Deputy Director, Adult
Education, in that affidavit it is stated that the squad teachers are full time
employees they work for 6-7 hours and besides working at night during 6 p.m. to 10 p.m. they do social work also. Another
additional affidavit has been filed on behalf of the respondents by S.R. Kaushal,
Assistant Director of School Education. In his affidavit he has stated that
social education squad teachers perform various duties under the Social
Education Programme which is divided into various divisions as under:
1.
Education division.
2.
Debate and discussion division.
3. Sports
division.
4.
Cultural activity division.
5.
Social service division.
It is
stated that the squad teachers undertake various functions to supplement the programme
under the aforesaid divisions. He has pointed out the difference in the working
of the instructors and the squad teachers. The main point of distinction relied
upon by him is 420 that the instructors are appointed part-time while squad
teachers and JBT teachers are in full time employment.
Social
education squad teachers are transferable while instructors are not
transferable. A social squad teacher is required to teach 7 hours daily while
an instructor is required to teach for four hours. The social education scheme
is permanent and squad teachers are working under a permanent scheme while the
instructors are working under a temporary scheme.
We
have given our anxious consideration to the material placed before us. On a
careful analysis of the same we find that the nature of duties and functions
performed by instructors are similar to those performed by squad teachers. The
functions and duties of both classes of persons are primarily directed to
advance the cause of education to bring social awareness among the people in
the rural areas and to create interest in various social economic and educational
activities. Bringing adults to centre for educating them is a difficult task
and to impart education to drop-outs children is not an easy job. One of the
main duties of the instructors is to motivate the adults and drop out children
to participate in the activities and to motivate them for taking education. The
instructors teach four hours a day and thereafter they have to do survey work
and motivation work in addition to that the instructors are required to carry
out additional duties which are assigned to them by the Department. This is
evident from the circular letter dated 4.3.1987 issued by the Joint Director,
Adult Education (Annexure B) to the affidavit of Rajinder Singh petitioner. The
letter was circulated to all the instructors of adult and informal education,
it reads as under:
"Dear
To bring adults in centres is a very difficult task. This is possible only when
our centres are attractive and adults feel happy to come to the centres and
forget all their worries after coming to the Centre. Instructors should behave
with the adults in such a way that they think him their friend and guide. The
adults should be told that by hearing, reading the writing, they can know about
the Government Scheme made for their benefit and progress. Every Instructor is
supposed to know about all such schemes so that they can guide their students.
The Adults should get the guidance from the instructors as to how they can get
loans from various banks and cooperative Societies. In the com- 421 ing year we
must equip the instructors with training so that they can fulfil the
responsibility given to them.
In a
meeting held at Karnal you were told about the facilities being given to widows
and old persons. You have to properly propagate the same.
I will
be very grateful to you for circulating this letter to all the instructors and
supervisors.
Office
Dist. Adult Education officer Karnal.
Page
No. A-d-4/3480-659, Karnal dated 13.3.1981.
One
copy of the letter to be circulated to all instructors and supervisors of Adult
and Informal Education for necessary action.
Dist
Adult Education officer Karnal 13.2.1987." The aforesaid duties which are
required to be performed by the instructors are in addition to their four hour
teaching duty. Further the instructors are required to organise sports like kho-kho,
kabadi and athletics, and to participate in the local functions and to motivate
affluent villagers to give donations for the adult education scheme.
This
is evident from a circular letter issued by the District Adult Education
officer, Ambala on 12.11.1986 (Annexure to the affidavit of Rajender Singh).
Having regard to these facts and circumstances we are of the view that there is
no difference in the nature of duties of the instructors and squad teachers and
both of them carry out similar work under the same employer. The doctrine of
equal work equal pay would apply on the premise of similar work, but it does
not mean that there should be complete identity in all respects. If the two
class of persons do same work under the same employer, with similar
responsibility. under similar working conditions the doctrine of 'equal work
equal pay' would apply and it would not be open to the State to discriminate
one class with the other in paying salary. The State is under a Constitutional
obligation to ensure that equal pay is paid for equal work.
The
respondents' contention that the adult education scheme is temporary, as the
posts are sanctioned on year to year basis and as such the instructors are not
entitled to claim equality with the squad teachers as the scheme under which
they work of a permanent nature is misconceived. This contention was rejected
by this Court in the case 422 of Bhagwan Dass (supra) while considering the
case of supervisors. A There is no doubt that instructors and squad teachers
are employees of the same employer doing work of similar nature in the same
department therefore the appointment on a temporary basis or on regular basis
does not affect the doctrine of equal pay for equal work. Article 39(d) contained
in Part IV of the Constitution ordains the State to direct its policy towards
securing equal pay for equal work for both men and women. Though Article 39 is
included in the Chapter of Directive Principles of State Policy, but it is
fundamental in nature. The purpose of the Article is to fix certain social and
economic goals for avoiding any discrimination amongst the people doing similar
work in matters relating to pay. The doctrine of equal pay for equal work has
been implemented by this Court in Ranjit Singh v. Union of India & Ors.,
[1982] 3 SCR 298; Dhiren Chamoli and ors. v. State of U.P.,[1986] 1 SCC 637 and
Surinder Singh & Anr. v. Engineer-in-Chief, CPWD & Ors., [1986] 1 SCC
639. In view of these authorities it is too late in the day to disregard the
doctrine of equal pay for equal work on the ground of the employment being
temporary and the other being permanent in nature. A temporary or casual
employee performing the same duties and functions is entitled to the same pay
as paid to a permanent employee.
The
respondents' contention that the mode of recruitment of petitioners is
different from the mode of recruitment of squad teachers inasmuch as the
petitioners are appointed locally while squad teachers were selected by the
subordinate Service Selection Board after competing with candidates from any
part of the country. Emphasis was laid during argument that if a regular
selection was held many of the petitioners may not have been appointed they got
the employment because outsiders did not compete. In our opinion, this
submission has no merit. Admittedly the petitioners were appointed on the
recommendation of a Selection Committee appointed by the Adult Education
Department. It is true that the petitioners belong to the locality where they
have been posted, but they were appointed only after selection, true that they
have not been appointed after selection made by the Subordinate Service
Selection Board but that is hardly relevant for the purposes of application of
doctrine of "equal pay for equal work".
The
difference in mode of selection will not affect the application of the doctrine
of "equal pay for equal work" if both the class of persons perform
similar functions and duties under the same employer. Similar plea raised by
the State of Haryana in opposing the case of supervisors in the case of Bhagwan
Dass (supra) was rejected, where it was observed that if the State deliberately
chose 423 to limit the selection of candidates from a cluster of a few villages
it will not absolve the State for treating such candidates in a discriminatory
manner to the disadvantage of the selectees once they are appointed provided
the work done by the candidates so selected is similar in nature. The
recruitment was confined to the locality as it was considered advantageous to
make recruitment from the cluster of villages for the purposes of implementing
the Adult Education Scheme because the instructors appointed from that area
would know the people of that area more intimately and would be in a better
position to persuade them to take advantage of the Adult Education Scheme in
order to make it a success.
The
respondents' plea that instructors are not transferable does not affect the
doctrine of equal pay for equal work. The instructors are appointed locally to
implement the Adult and Non-formal Education Scheme because they are in a
better position to motivate the adults and drop-outs children for participating
in the scheme. An outsider may be handicapped in motivating the local residents
for participating in the scheme. As regards the difference in qualification is
concerned it is true that the squad teachers possess JBT certificates and many
of them are graduates but minimum qualification for squad teachers is also matric.
Similarly minimum qualification for instructors is matric but many of the
petitioners are graduates and some of them are trained teachers possessing JBT
certificates.
Great
emphasis was laid on behalf of the respondent State that instructors are
part-time employees while squad teachers are full time employees. Similar
arguments were raised on behalf of the State in the case of Bhagwan Dass
(supra) in resisting the claim of supervisor but the submission was rejected by
this Court on the ground that having regard to the duties and functions which the
supervisors are required to perform it was difficult to uphold the plea that he
was a part-time employee. In the instant cases also we have already noticed the
details of the duties and functions assigned to an instructor which normally
say that the petitioners are required to teach at the centre for four hours and
in addition to that they are required to motivate adults and drop-outs children
of the locality and to prepare survey reports, in addition to that they are
further required to implement various schemes initiated by the Government, they
are further required to organise sports, athletics programme and to persuade
local affluent people for making donations. They are required to educate the
local residents with regard to the various welfare schemes initiated by the
Government for the welfare of the residents of the rural areas. Having regard
to their duties and functions it is difficult to uphold the respondent's plea
that the instructors are 424 part time employees as they work only for four hours.
In
view of the above discussion, we hold that the instructors are entitled to the
same pay scale as sanctioned to squad teachers. We, accordingly, direct that
the petitioners' salary shall be fixed in the same pay scale as that of squad
teachers. The pay of each of the petitioners shall be fixed having regard to
the length of service with effect from the date of his initial appointment by
ignoring the break in service on account of six months fresh appointments. The
petitioners will be entitled to increments in the pay scale in accordance with
law notwithstanding the break in service that might have taken place. We
further direct that these directions shall be implemented with effect from September 1, 1985 as directed by this Court in the
case of Bhagwan Das (supra). The petitioners' claim for regularising their
services In the department cannot be accepted as admittedlly the project of
Adult and Non-formal Education is temporary which is likely to last till 1990.
We accordingly allow the writ petitions partly with costs which we quantify at
Rs.5,000.
R.S.S.
Petitions allowed.
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