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whether reservation was inapplicable to specialty and super-specialty faculty posts in the All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.= While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” the Nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts. 19. We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney’s case. While reiterating the views expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of the two Civil Appeals in the light of the said views, which were also expressed in Dr. Jagadish Saran’s case, Dr. Pradeep Jain’s case, Dr. Preeti Srivastava’s case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney’s case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution. 20. There will be no order as to costs.

Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40578

REPORTABLE
IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4500 of 2002

 

1
2 FACULTY ASSOCIATION OF AIIMS … APPELLANT

 

VS.

 

2 UNION OF INDIA & ORS. … RESPONDENTS

 

WITH
CIVIL APPEAL NO. 5119 OF 2002

 

 

 

J U D G M E N T

 

ALTAMAS KABIR, CJI.
1. When Special Leave Petition (Civil) No. 2106 of 2002, filed by the
Faculty Association of AIIMS, was taken up for consideration, notice
thereupon was issued by a Bench of Two-Judges and it was stipulated that
any appointment to be made, after the order was passed in accordance
with the reservation policy, would only be tentative in nature until
further orders. When the Appeal was taken up for hearing on 20th
February, 2003, along with Civil Appeal No. 5119 of 2002, considering
the important nature of the issues involved for determination in the
said cases, as also the recurring nature of the problem, it was thought
appropriate that the matters be heard by a larger Bench. Thereafter, on
12th February, 2004, a Bench of Three-Judges headed by the Chief Justice
was of the view that the matters involved substantial questions of law
as to the interpretation of the Constitution and were required to be
heard by a Bench of Five-Judges. It is pursuant to such direction that
the matter appeared before the Bench of Five-Judges on several occasions
and ultimately they were listed before a Bench of Five-Judges on 2nd
July, 2013.
2. Although the matter is now before a Bench of five Judges, the terms
of reference are not very clear. From what we have been able to gather
from the pleadings and the judgment of the Division Bench of the High
Court, the question to be considered is whether reservation was
inapplicable to specialty and super-specialty faculty posts in the All
India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.
Faced with the decisions of this Court in the case of Indra Sawhney Vs.
Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran & Ors.
Vs. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain etc.
Vs. Union of India & Ors. etc. [(1984) 3 SCR 942], wherein reservation
in admission to specialty and super-specialty courses was disallowed,
the Division Bench of the High Court confined itself to the limited
issue, namely, whether reservation policy was inapplicable for making
appointments to the entry level faculty post of Assistant Professor and
to super specialty posts and also whether the resolutions adopted by
AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck down.
3. Appearing for the Petitioner, Mr. P.P. Rao, learned Senior
Advocate, firstly referred to the statement of objects and reasons of
the All India Institute of Medical Sciences Act, 1956, which provides as
follows :
“For improving professional competence among medical practitioners, it
is necessary to place a high standard of medical education, both post-
graduate and under-graduate, before all medical colleges and other
allied institutions in the country. Similarly, for the promotion of
medical research it is necessary that the country should attain self-
sufficiency in post-graduate medical education. These objectives are
hardly capable of realisation unless facilities of a very high order
for both undergraduate and post-graduate medical education and
research are provided by a central authority in one place. The Bill
seeks to achieve these ends by the establishment in New Delhi of an
institution under the name of the All-India Institute of Medical
Sciences. The Institute will develop patterns of teaching in under-
graduate and post-graduate medical education in all its branches so as
to demonstrate a high standard of medical education to all medical
colleges and other allied institutions, will provide facilities of a
high order for training of personnel in all important branches of
health activities and also for medical research in its various
aspects. The Institute will have the power to grant medical degrees,
diplomas and other academic distinctions which would be recognised
medical degrees for the purpose of the Indian Medical Council Act,
1933.”

 

 

4. Mr. Rao also referred to Section 5 of the Act which declared the
institute to be an institution of national importance. As pointed out
by Mr. Rao, Section 13 of the Act is in line with the objects for which
the institute was created and Section 14 deals with the functions of the
institute relating to the academic aspects of the institutes’s functions
as a teaching institute.

 
5. Mr. Rao submitted that the question had earlier been gone into and
considered in Indra Sawhney’s case (supra), wherein while considering
the question of reservation the Bench also took into consideration the
provisions of Article 335 of the Constitution regarding the claims of
Scheduled Castes and Scheduled Tribes to services and posts. Referring
to the concurring Judgment of Jeevan Reddy, J., learned counsel referred
to Paragraphs 838 and 839 in particular and the observations made
therein. Since Paragraph 838 places in focus the view of the Nine-Judge
Bench, the same is extracted hereinbelow:

 

“838. While on Article 335, we are of the opinion that there are
certain services and positions where either on account of the nature
of duties attached to them or the level (in the hierarchy) at which
they obtain, merit as explained hereinabove, alone counts. In such
situations, it may not be advisable to provide for reservations. For
example, technical posts in research and development
organisations/departments/ institutions, in specialities and super-
specialities in medicine, engineering and other such courses in
physical sciences and mathematics, in defence services and in the
establishments connected therewith. Similarly, in the case of posts
at the higher echelons e.g., Professors (in Education), Pilots in
Indian Airlines and Air India, Scientists and Technicians in nuclear
and space application, provision for reservation would not be
advisable.”

 

 

6. In fact, both in Paragraphs 838 and 839, while specifying areas,
where it may not be advisable to put reservation, the learned Judge has
included posts in research and development organisations/ departments
/institutions, in specialties and super-specialties in medicine. The
same observation is repeated in Paragraph 839, wherein, categorically it
was held that the Bench was of the opinion that in certain services and
in respect of certain posts, application of the rule of reservation may
not be advisable and once again included as the fourth item – posts in
super-specialties in medicine, engineering and other scientific and
technical subjects. Mr. Rao submitted that as far as medicine is
concerned “super-specialty” means “post doctoral courses”.
7. Mr. Rao submitted that in the instant case, reservation was being
provided for up to the doctoral stage, but at the stage of recruitment
for a post doctoral courses and research at the initial stage of
candidates were required to sit for a written examination and those who
are successful, were, thereafter, recruited in the different disciplines
of teaching. Mr. Rao submitted that the problem begins at that stage
when posts are thereafter, reserved in respect of different courses.
Mr. Rao submitted that once a candidate qualified for recruitment in the
different posts of faculty beginning from the post of Assistant
Professor onward, there was no further logic in thereafter reserving
posts for candidates from the Scheduled Castes and Scheduled Tribes and
OBC communities. Mr. Rao submitted that at that level of super-
specialty, the question of reservation ought not to arise as was
observed by the Nine-Judge Bench in Indra Sawhney’s case (supra).

 
8. Mr. Rao submitted that while Article 16(4) empowers the State in
making provisions for reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, was
not adequately represented in the services under the State, the same
would have to be read and understood in the manner indicated in Indra
Sawhney’s case (supra). The learned Senior counsel submitted that
although definite directions have not been given in Paragraphs 838 and
839 of the judgment in Indra Sawhney’s case (supra), the observations
made therein were guidelines for the Government and institutions, such
as AIIMS, to follow, in order to provide the best candidates available
with the opportunity of going in for super-specialties which entail
higher degree of skill and where no compromise in quality and expertise
could be entertained.

 
9. In support of his aforesaid submissions, Mr. Rao also referred to
the decision of a Three-Judge Bench in Dr. Jagadish Saran & Ors. Vs.
Union of India [(1980) 2 SCC 768], wherein in Paragraphs 21, 22 and 23,
Krishna Iyer, J., writing the judgment, spoke about reservation and what
he referred as wholesale banishment of proven ability to open up,
hopefully, some dalit talent, total sacrifice of excellence at the altar
of equalisation – when the Constitution mandates for every one equality
before and equal protection of the law – may be fatal folly, self-
defeating educational technology and anti-national if made a routine
rule of State Policy. His Lordship further observed that a fair
preference, a reasonable reservation, a just adjustment of the prior
needs and real potential of the weak with the partial recognition of the
presence of competitive merit – such is the dynamics of social justice
with animates the three egalitarian articles of the Constitution. The
learned Judge goes on to observe in Paragraph 23 that flowing from the
same stream of equalism is another limitation. The basic medical needs
of a region or the preferential push justified for a handicapped group
cannot prevail in the same measure at the highest scales of specialty
where the best skill or talent, must be handpicked by selecting
according to capability. The learned Judge went on to restrict the
Indian Medical Council’s recommendations which indicated that students
of post-graduate courses therein should be selected strictly on merit,
judged on the basis of academic record in the undergraduate course.

 
10. The next decision referred to by Mr. Rao is a short judgment in the
case of Dr. Fazal Ghafoor Vs. Union of India & Ors. [(1988) Supp. SCC
794], which was a decision by two Judges, wherein, reliance was placed
on the decision of this Court in the case of Dr. Pradeep Jain & Ors. Vs.
Union of India & Ors. [(1984) 3 SCC 654], wherein, a Three-Judge Bench
of this Court, while considering the question of reservation in the
light of the aspirations of the citizens of India, as contained in the
Preamble to the Constitution, observed that while reservation was
acceptable with regard to the undergraduate course, different
considerations will have to prevail when it came to the question of
reservation based on residents’ requirement within the State or on
institutional preference for admission to the post-graduate courses,
such as MD, MS and the like. Following the decision in Dr. Jagadish
Saran’s case (supra), Their Lordship observed that “there we cannot
allow excellence to be compromised by any other consideration because
that would be detrimental to the interest of the nation. Their
Lordships also observed that if equality of opportunity for every other
person in the country is the constitutional guarantee, merit must be the
test when choosing the best.

 
11. Mr. Rao lastly referred to the Constitution Bench decision of this
Court in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC 120],
which was a writ petition heard along with several other writ petitions
on various aspects of reservation. Mr. Rao pointed out that the
Constitution Bench also referred to the decision in Dr. Pradeep Jain’s
case (supra) and also Dr. Jagadish Saran’s case (supra), referred to
hereinbefore, in expressing its concurrence with the views expressed
therein. In Paragraph 25 of the judgment, Sujata V. Manohar, J.,
speaking for the Constitution Bench, observed that the specialty and
super-specialty courses in medicine also entailed on-hand experience of
treating or operating on patients in the attached teaching hospitals.
Those undergoing these programmes are expected to occupy posts in the
teaching hospitals or discharge duties attached to such posts. The
elements of Article 335, therefore, colour the selection of candidates
for these course and the rules framed for this purpose. Consequently,
in Paragraph 26, it was further observed that in the premises the
special provisions for SC/ST candidates – whether reservations or lower
qualifying marks – at the specialty level have to be minimal. There
cannot, however, be any such special provisions at the level of super-
specialties. In keeping with its findings the Constitution Bench
ultimately held that since no relaxation is permissible at the highest
levels in the medical institutions, the Petitioners therein were right
when they contended that the reservations made for the Scheduled Castes
and Scheduled Tribes candidates for admission to DM and MCH courses,
which are super-specialty courses, in not consistent with the
constitutional mandate under Articles 15(4) and 16(4), and that
Regulation 27 of the Post Graduate Institute of Medical Education and
Research, Chandigarh Regulations, 1967, would not apply at the levels of
admissions to DM and MCH courses.
12. Mr. Rao submitted that the Health Survey and Development Committee,
popularly known as the Bhore Committee, in its report published in 1946
recommended the establishment of a national medical centre at Delhi,
which would concentrate on training, well-qualified teachers and
research workers in order that a steady stream of those could be
maintained to meet the needs of the rapidly expanding health activities
throughout the country. It seems that pursuant to the said report and
after attainment of Independence, the Union Ministry of Health proceeded
to implement the aforesaid idea resulting in the enactment of the All
India Institute of Medical Sciences Act, 1956, with the All India
Institute of Medical Sciences as an autonomous institution of national
importance and defined its objectives and functions. Various other
decisions, including the decisions in Saurabh Chaudri and Others Vs.
Union of India and Others [(2003) 11 SCC 146] and T.M.A. Pai Foundation
Vs. State of Karnataka [(2002) 8 SCC 481] were referred to by Mr. Rao to
urge that the observations made in Indra Sawhney’s case as well as in
Preeti Srivastava’s case were binding, though in the nature of
observations made in the judgments. Mr. Rao referred to the decision of
this Court in Commissioner of Income Tax, Hyderabad-Deccan Vs. Vazir
Sultan and Sons [1959 Supp (2) SCR 375], wherein a Bench of Three-Judges
examined the doctrine of “obiter dicta” and arrived at a finding that
even obiter at times has the force of law declared by the Supreme Court
under Article 141 of the Constitution. Mr. Rao ended on the note that
the introduction of the concept of reservation in specialty and super-
specialty subjects or for the appointment of faculty in AIIMS, would
defeat the very purpose for which the institute was established. Mr.
Rao also submitted that if excellence was to be achieved at the level of
super-specialty disciplines, no compromise could be made in either
imparting such education or recruiting persons who would impart such
education at such level.
13. Dr. Rajiv Dhawan, learned Senior Advocate, who appeared in Civil
Appeal No. 5119 of 2002, submitted that the AIIMS Act did not empower
the Governing Body to impose reservation at any stage, much less at the
stage of super-specialty. Referring to the affidavit filed by the
Director of AIIMS, Dr. Dhawan submitted that the decision of the High
Court was contrary to the decision of this Court in Indra Sawhney’s case
and also in M. Nagaraj and Others Vs. Union of India and Others [(2006)
8 SCC 212] where it was held that there should be no reservation at the
super-specialty stage, and, in any event, the same would have to be
based on quantifiable data. Mr. Rao submitted that proportional
representation and not adequacy, as understood in Indra Sawhney’s case
or even in M. Nagaraj’s case, has been resorted to in the instant case
in the teeth of the said two cases. While making reference to the
concept of creamy layer, Dr. Dhawan urged that “equality” does not mean
that reservation had to be applied in each and every case to maintain
such equality, for example, the creamy layer concept as was considered
by this Court in E.V. Chinnaiah Vs. State of A.P. and Others [(2005) 1
SCC 394].
14. Appearing for the Institute, Mr. Mehmood Pracha, learned Advocate
contended that people from Backward classes and the Scheduled Castes and
the Scheduled Tribes were often discriminated against and even in spite
of having excellent qualities, they were not provided with sufficient
opportunities to come up to the standards, as contemplated by the
various medical colleges and, in particular, the All India Institute of
Medical Sciences, which is an institution of national importance. Mr.
Pracha urged that although reservation at all different levels of the
Institute had been introduced, for quite some time, there is no
available data to indicate that there has been any deterioration in the
quality of medical services being provided in AIIMS. On the other hand,
AIIMS was one of the most sought after medical institute, not only for
promotion and research work, but also for the purpose of medical
education. Taking a leaf out of Hindu mythology, Mr. Pracha drew an
analogy from the story of Eklavya and Arjun in the Mahabharta. While
Arjun belonged to the princely class, Eklavya was a tribal boy, who
without actual training or guidance from any teacher, by his own
efforts, excelled in the art of archery. The famous Dronacharya was
Arjun’s teacher in archery and Eklavya had acquired the skills that he
had by merely watching Dronacharya guiding Arjun. However, when it came
to an archery competition, Dronacharya, who was more or less certain
that, if allowed an opportunity, Eklavya would possibly beat Arjun,
requested Eklavya that if he really loved and respected him, he should
give his right thumb as gurudakshina to his master. Eklavya dutifully
obeyed the person he had chosen as his master and was thus prevented
from competing in the competition which Arjun won. Mr. Pracha submitted
that simply because Eklavya was a tribal boy he was denied the
opportunity of competing with Arjun, despite his brilliance and
excellence. Mr. Pracha submitted that there are many more Eklavyas in
today’s society, who, if not suppressed and given a chance, would
possibly even outshine those belonging to the higher echelons of
Society.
15. Mr. Pracha strongly supported the concept of reservation at all
stages, including at the super-specialty stage. He urged that at the
entry level for recruitment to the faculty posts, which were all treated
as super-specialty disciplines after the Post Graduate course, a member
of the Backward Classes had to sit for an examination with others
without any separate weightage given for reservation. It is only after
having passed the written examination along with other candidates, was a
member of the Backward Classes appointed in a teaching post on the basis
of reservation. Mr. Pracha submitted that this was done only with the
intention of giving such a candidate an opportunity of reaching the
level of his other fellow faculty members. Mr. Pracha submitted that a
little support was intended to help people from the Backward communities
to make their presence felt in academia, so as to encourage others
similarly situated. Mr. Pracha also relied on the decision of this
Court in Indra Sawhney’s case, in support of his contention that members
of the Scheduled Castes and Scheduled Tribes and Other Backward Classes
were not adequately represented and for the said purpose a certain
amount of reservation was necessary so that they could compete with
others and excel in academics. Strongly supporting the policy adopted
by the Institute, Mr. Pracha submitted that the Civil Appeal filed by
the Faculty of Association of AIIMS was liable to be dismissed.
16. Appearing for the Union of India, the learned Solicitor General
repeated the submissions made by Mr. Pracha and added that the State had
a constitutional duty to empower certain sections of society who needed
help to uplift themselves from their particular situations. The learned
Solicitor General submitted that Article 46 of the Constitution, though
a Directive Principle, was in the nature of a guideline for good
governance to the Government of the day. The said Article was intended
to help the depressed classes, who otherwise had little opportunity of
raising their standards. Faced with the question as to when initially
the Central Government had opposed the doctrine of reservation on the
ground of excellence in education, why was it necessary in 1972 to take
a different stand and come out in support of reservation, even in super-
specialty courses, the learned Solicitor General urged that the policy
was based not on the question of adequacy, but as a measure of
empowerment for the Backward Classes. While referring to the decision
in M. Nagaraj’s case, which has been referred to by the other learned
counsel, the learned Solicitor General contended that with the
introduction of Article 16(4A) in the Constitution, the decision arrived
at in M. Nagaraj’s case, would have to be read differently. He,
however, also urged that there was no constitutional prohibition to
impose reservation, if it was felt necessary to benefit the Backward
Classes, who had little or no support to help them improve their lot.
Referring to the decisions of this Court in Dr. Jagadish Saran’s case
and Dr. Pradeep Jain’s case, which have been referred to hereinabove,
the learned Solicitor General urged that the direction given in Dr.
Pradeep Jain’s case that reservation should not exceed 70%, did not take
into consideration Article 16(4A) of the Constitution, while giving such
directions.
17. Although, the matter has been argued at some length, the main issue
raised regarding reservation at the super-specialty level has already
been considered in Indra Sawhney’s case (supra) by a Nine-Judge Bench of
this Court. Having regard to such decision, we are not inclined to take
any view other than the view expressed by the Nine-Judge Bench on the
issue. Apart from the decisions rendered by this Court in Dr. Jagadish
Saran’s case (supra) and Dr. Pradeep Jain’s case (supra), the issue also
fell for considerate in Preeti Srivastava’s case (supra) which was also
decided by a Bench of Five Judges. While in Dr. Jagadish Saran’s case
(supra) and in Dr. Pradeep Jain’s case (supra) it was categorically held
that there could be no compromise with merit at the super specialty
stage, the same sentiments were also expressed in Preeti Srivastava’s
case (supra) as well. In Preeti Srivastava’s case (supra), the
Constitution Bench had an occasion to consider Regulation 27 of the Post
Graduate Institute of Medical Education and Research, Chandigarh
Regulations, 1967, whereby 20% of seats in every course of study in the
Institute was to be reserved for candidates belonging to the Scheduled
Castes, Scheduled Tribes or other categories of persons, in accordance
with the general rules of the Central Government promulgated from time
to time. The Constitution Bench came to the conclusion that Regulation
27 could not have any application at the highest level of super
specialty as this would defeat the very object of imparting the best
possible training to selected meritorious candidates, who could
contribute to the advancement of knowledge in the field of medical
research and its applications. Their Lordships ultimately went on to
hold that there could not be any type of relaxation at the super
specialty level.
18. In paragraph 836 of the judgment in Indra Sawhney’s case (supra),
it was observed that while the relevance and significance of merit at
the stage of initial recruitment cannot be ignored, it cannot also be
ignored that the same idea of reservation implies selection of a less
meritorious person. It was also observed that at the same time such a
price would have to be paid if the constitutional promise of social
justice was to be redeemed. However, after making such suggestions, a
note of caution was introduced in the very next paragraph in the light
of Article 15 of the Constitution. A distinction was, however, made
with regard to the provisions of Article 16 and it was held that Article
335 would be relevant and it would not be permissible not to prescribe
any minimum standard at all. Of course, the said observation was made
in the context of admission to medical colleges and reference was also
made to the decision in State of M.P. Vs. Nivedita Jain [(1981) 4 SCC
296], where admission to medical courses was regulated by an entrance
test. It was held that in the matter of appointment of medical
officers, the Government or the Public Service Commission would not be
entitled to say that there would not be minimum qualifying marks for
Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum
for others. In the very next paragraph, the Nine-Judge Bench while
discussing the provisions of Article 335 also observed that there were
certain services and posts where either on account of the nature of
duties attached to them or the level in the hierarchy at which they
stood, merit alone counts. In such situations, it cannot be advised to
provide for reservations. In the paragraph following, the position was
made even more clear when Their Lordships observed that they were of the
opinion that in certain services in respect of certain posts,
application of rule of reservation may not be advisable in regard to
various technical posts including posts in super specialty in medicine,
engineering and other scientific and technical posts.
19. We cannot take a different view, even though it has been suggested
that such an observation was not binding, being obiter in nature. We
cannot ascribe to such a view since the very concept of reservation
implies mediocrity and we will have to take note of the caution
indicated in Indra Sawhney’s case. While reiterating the views
expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of
the two Civil Appeals in the light of the said views, which were also
expressed in Dr. Jagadish Saran’s case, Dr. Pradeep Jain’s case, Dr.
Preeti Srivastava’s case. We impress upon the Central and State
Governments to take appropriate steps in accordance with the views
expressed in Indra Sawhney’s case and in this case, as also the other
decisions referred to above, keeping in mind the provisions of Article
335 of the Constitution.
20. There will be no order as to costs.
…………………………………………………CJI.

(ALTAMAS KABIR)

 

 

………………………………………………………J.
(SURINDER SINGH NIJJAR)

 

 
………………………………………………………J.

(RANJAN GOGOI)

 

 

 

………………………………………………………J.

(M.Y. EQBAL)

 

 

 

………………………………………………………J.

(VIKRAMAJIT SEN)

New Delhi
Dated: July 18, 2013.

 

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