Panchal Babulal Maganlal vs State Of Gujarat on 28 April, 2026

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    Gujarat High Court

    Panchal Babulal Maganlal vs State Of Gujarat on 28 April, 2026

    Author: Nirzar S. Desai

    Bench: Nirzar S. Desai

                                                                                                                  NEUTRAL CITATION
    
    
    
    
                              C/SCA/10541/2023                                    JUDGMENT DATED: 28/04/2026
    
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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
    
                                R/SPECIAL CIVIL APPLICATION NO.                    10541 of 2023
    
    
                          FOR APPROVAL AND SIGNATURE:
    
                          HONOURABLE MR. JUSTICE NIRZAR S. DESAI
    
                          =====================================================
    
                                   Approved for Reporting    Yes     No
                                                             Yes
                          =====================================================
                                         PANCHAL BABULAL MAGANLAL
                                                   Versus
                                          STATE OF GUJARAT & ANR.
                          =====================================================
                          Appearance:
                          MR MEET A SHAH(9933) for the Petitioner(s) No. 1
                          MR HENIL SHAH ASSISTANT GOVERNMENT PLEADER for the
                          Respondent(s) No. 1
                          NOTICE SERVED BY DS for the Respondent(s) No. 1,2
                          =====================================================
    
                            CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
    
                                                         Date : 28/04/2026
    
                                                             ORAL JUDGMENT

    1. Heard learned advocate Mr. Meet Shah for

    the petitioner and learned Assistant Government

    SPONSORED

    Pleader Mr. Henil Shah for the respondent-State.

    2. With the consent of the learned advocates

    appearing for the respective parties, the matter

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    is taken up for final hearing. Hence, RULE.

    Learned Assistant Government Pleader Mr. Henil

    Shah waives service of rule on behalf of the

    respondent-State.

    3. By way of this petition, the petitioner has

    prayed for the following reliefs:

    “A. This Hon’ble Court may be pleased to
    admit and allow the petition;

    B. This Hon’ble Court may be pleased to
    quash and set aside the impugned actions
    of initiation of the recovery made from
    the petitioner by the respondents and
    reduction of the pension of the petitioner
    by the respondents;

    C. This Hon’ble Court may be pleased to
    issue a writ of mandamus and/or any other
    appropriate writ, order or directions to
    the respondent authorities to pay the
    pension to the petitioner as being paid
    till May 2023 and further be pleased to
    direct the respondents to refund the
    amount deducted by the respondents from
    the pension of the petitioner along with
    interest at the rate of 12% per month;

    D. Pending admission, hearing and final
    disposal of this petition, this Hon’ble
    Court may be pleased to stay the further
    operation, implementation and execution of
    impugned actions of making recovery from
    the pension of the petitioner and
    reduction of pension amount from the
    pension of the petitioner;

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    E. Any other and further relief or reliefs
    which this Hon’ble Court deems fit in the
    interest of justice and equity in the
    favour of the petitioner.”

    4. It is the case of the petitioner that he was

    appointed as Junior Clerk in Vasudev Someshwar

    Raval Primary Teacher Certificate College,

    Prantij, which is a grant-in-aid institution, on

    19.06.1978 after following due procedure for

    appointment, and thereafter he was promoted as

    Senior Clerk, and after serving for 26 years, 2

    months and 22 days in the said institution, he

    retired on attaining the age of superannuation

    on 30th September 2004 from the said institution.

    5. Thereafter, though the petitioner was receiving

    pension from September 2004, after more than 18

    years, on 05.05.2023, the petitioner came to

    know that recovery was sought to be initiated

    against him. It was informed to the petitioner

    that though the pension paid to him was properly

    paid till 2005, from 2006 to 2023, due to an

    inadvertent mistake on the part of the office of

    respondent No.2, the petitioner’s pension was

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    wrongly fixed and therefore, recovery of

    Rs.13,14,432/- towards excess pension amount

    paid to the petitioner is sought to be made.

    Though the petitioner made a detailed

    representation, he did not receive any response

    from the respondents. In the meantime, from May

    2023, the respondents started deducting

    Rs.30,284/- from his monthly pension. It is the

    case of the petitioner that till May 2023, he

    was receiving Rs.30,284/- towards pension,

    however in June 2023, the respondents deducted a

    sum of Rs.19,764/- towards recovery and paid

    only Rs.10,520/- towards pension to the

    petitioner. It is the aforesaid action of the

    respondents which is under challenge by way of

    the present petition.

    6. Learned advocate Mr. Meet Shah appearing for the

    petitioner submitted that there is no fraud or

    misrepresentation on the part of the petitioner.

    The fixation of pension is purely within the

    domain of the respondents and the same was being

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    paid to the petitioner on the basis of his last

    drawn salary. Therefore, if any mistake was

    committed by the respondents in fixation of

    pension of the present petitioner, the excess

    payment made to the petitioner cannot be

    recovered from him, as the mistake cannot be

    attributed to the petitioner, and the higher

    rate at which the pension was fixed and paid was

    not based on any fraud or misrepresentation on

    the part of the present petitioner.

    7. Learned advocate Mr. Meet Shah relied upon the

    decision of the Hon’ble Apex Court in the case

    of Jogeswar Sahoo & Ors. v. District Judge,

    Cuttack & Ors., decided on 04.04.2025 in Civil

    Appeal No. 4989 of 2025, and submitted that

    recovery is impermissible and, therefore, the

    recovery imposed against the present petitioner

    is required to be quashed and set aside. Learned

    advocate Mr. Meet Shah also relied upon the

    decision of the Hon’ble Supreme Court in the

    case of State of Punjab and Ors. v. Rafiq Masih

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    and Ors., reported in (2015) 4 SCC 334, and

    submitted that in view of the aforesaid

    decision, since the petitioner retired from a

    Class-III post and more than five years have

    already passed, such recovery is impermissible.

    8. Learned advocate Mr. Meet Shah also relied upon

    the decision in Jagdev Singh and Ors. (supra)

    and submitted that in view of the aforesaid

    decision, since the petitioner retired from a

    Class-III post and more than five years have

    already passed, such recovery is impermissible.

    9. Learned advocate Mr. Meet Shah also relied on

    the decision of this Court, rendered in the case

    of Jethalal Ambalal Patel Vs. Anand Agricultural

    University & Another, decided on 19.12.2024, in

    Special Civil Application No. 15865 of 2021 and

    more particularly, the observations made in

    Paragraphs- 6.1.4 and 6.1.5 thereof and also on

    the decision of the Apex Court in the case of

    ‘Pani Ram Vs. Union of India & Ors.‘, reported

    in AIR 2022 SC 182, submitted that even if, the

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    respondents may contend that the aforesaid

    higher pay-scales was granted to the petitioner

    on the basis of undertaking given by him, in

    view of the decision of the Hon’ble Apex Court

    in the case of ‘Pani Ram‘ (Supra), even if such

    undertakings was given by the petitioner,

    recovery cannot be imposed on the petitioner by

    the respondents.

    10. Learned Assistant Government Pleader Mr.

    Henil Shah appearing for the respondent – State

    has vehemently opposed the petition. He placed

    reliance on the decision of the Hon’ble Apex

    Court in the case of Balbir Singh Bhandari Vs.

    State of Uttarakhand, rendered in Civil Appeal

    No. 5933 of 2023 and the allied matters, Dated:

    10.01.2024, wherein also, the Hon’ble Apex Court

    confirmed the decision of the Punjab & Haryana

    High Court by permitting recovery of excess

    amount paid by the Respondents to the

    petitioners therein, as the same was paid by

    creating a separate class and the said class was

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    given a favourable treatment.

    10.1 It was submitted that in the instant

    case also, the petitioner was treated

    differently and not in consonance with his

    entitlement and therefore, in view of the above

    referred judgments of the Hon’ble Apex Court,

    the recovery sought to be made from the present

    petitioner cannot be interfered with and the

    order imposing recovery on the petitioner may

    not be interfered with by this Court.

    11. By relying upon the aforesaid decisions,

    learned Assistant Government Pleader Mr. Henil

    Shah prayed for dismissal of the petition.

    12. I have heard learned advocates appearing

    for the respective parties and perused the

    record. On perusal of the record, it cannot be

    said that the petitioner was granted pension at

    a higher rate on the basis of any fraud or

    misrepresentation attributable to the

    petitioner, and therefore, recovery after 18

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    years on account of alleged wrong fixation of

    pension resulting in excess payment is

    impermissible. In State of Punjab and Ors. v.

    Rafiq Masih and Ors., reported in (2015) 4 SCC

    334, the Hon’ble Supreme Court in para 18

    observed as under:

    “18. It is not possible to postulate
    all situations of hardship, which would
    govern employees on the issue of recovery,
    where payments have mistakenly been made by
    the employer, in excess of their
    entitlement. Be that as it may, based on
    the decisions referred to herein above, we
    may, as a ready reference, summarise the
    following few situations, wherein
    recoveries by the employers, would be
    impermissible in law:

    (i) Recovery from employees belonging to
    Class-III and Class-IV service (or Group
    ‘C’ and Group ‘D’ service).

    (ii) Recovery from retired employees, or
    employees who are due to retire within one
    year, of the order of recovery.

    (iii) Recovery from employees, when the
    excess payment has been made for a period
    in excess of five years, before the order
    of recovery is issued.

    (iv) Recovery in cases where an employee
    has wrongfully been required to discharge
    duties of a higher post, and has been paid
    accordingly, even though he should have
    rightfully been required to work against an
    inferior post.

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    (v) In any other case, where the Court
    arrives at the conclusion, that recovery if
    made from the employee, would be iniquitous
    or harsh or arbitrary to such an extent, as
    would far outweigh the equitable balance of
    the employer’s right to recover.”

    13. The Hon’ble Supreme Court, while

    considering the case of Jogeswar Sahoo & Ors.

    (Supra), in paragraphs 8 to 13 wherein the

    Hon’ble Apex Court has considered various

    judgments by which the issue is settled has

    observed as under,:

    “In the case of ‘Jogeswar Sahoo & Ors.’
    (Supra), the Hon’ble Apex Court, in
    Paragraphs- 8 to 13, has observed as
    under, where, the Hon’ble Apex Court has
    considered the various judgments, by which
    the issue is settled;

    “8. The law in this regard has been
    settled by this Court in catena of
    judgments rendered time and again; Sahib
    Ram vs. State of Haryana1
    , Shyam Babu
    Verma vs. Union of India2
    , Union of India
    vs. M. Bhaskar3
    and V. Gangaram vs.
    Regional Jt. Director4
    and in a recent
    decision in the matter of Thomas Daniel
    vs. State of Kerala & Ors.5
    .

    9. This Court has consistently taken the
    view that if the excess amount was not
    paid on account of any misrepresentation
    or fraud on the part of the employee or if
    such excess payment was made by the

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    employer by applying a wrong principle for
    calculating the pay/allowance or on the
    basis of a particular interpretation of
    rule/order, which is subsequently found to
    be erroneous, such excess payments of
    emoluments or allowances are not
    recoverable. It is held that such relief
    against the recovery is not because of any
    right of the employee but in equity,
    exercising judicial discretion to provide
    relief to the employee from the hardship
    that will be caused if the recovery is
    ordered.

    10. In Thomas Daniel (supra), this
    Court has held thus in paras 10, 11, 12
    and 13:

    “10. In Sahib Ram v. State of Haryana1
    this Court restrained recovery of payment
    which was given under the upgraded pay
    scale on account of wrong construction of
    relevant order by the authority concerned,
    without any misrepresentation on part of
    the employees. It was held thus:

    “5. Admittedly the appellant does not
    possess the required educational
    qualifications. Under the circumstances
    the appellant would not be entitled to
    the relaxation. The Principal erred in
    granting him the relaxation. Since the
    date of relaxation, the appellant had
    been paid his salary on the revised
    scale. However, it is not on account of
    any misrepresentation made by the
    appellant that the benefit of the higher
    pay scale was given to him but by wrong
    construction made by the Principal for
    which the appellant cannot be held to be
    at fault. Under the circumstances the
    amount paid till date may not be
    recovered from the appellant. The

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    principle of equal pay for equal work
    would not apply to the scales prescribed
    by the University Grants Commission. The
    appeal is allowed partly without any
    order as to costs.”

    11. In Col. B.J. Akkara (Retd.) v.
    Government of India2 this Court considered
    an identical question as under:

    “27. The last question to be considered
    is whether relief should be granted
    against the recovery of the excess
    payments made on account of the wrong
    interpretation/understanding of the
    circular dated 7-6-1999. This Court has
    consistently granted relief against
    recovery of excess wrong payment of
    emoluments/allowances from an employee,
    if the following conditions are
    fulfilled (vide Sahib Ram v. State of
    Haryana
    [1995 Supp (1) SCC 18 : 1995 SCC
    (L&S) 248], Shyam Babu Verma v. Union of
    India [(1994) 2 SCC 521 : 1994 SCC (L&S)
    683 : (1994) 27 ATC 121], Union of India
    v. M. Bhaskar
    [(1996) 4 SCC 416 : 1996
    SCC (L&S) 967] and V. Gangaram v.
    Regional Jt. Director [(1997) 6 SCC
    139 : 1997 SCC (L&S) 1652]):

    (a) The excess payment was not made on
    account of any misrepresentation or
    fraud on the part of the employee.

    (b) Such excess payment was made by the
    employer by applying a wrong principle
    for calculating the pay/allowance or on
    the basis of a particular interpretation
    of rule/order, which is subsequently
    found to be erroneous.

    28. Such relief, restraining back recovery
    of excess payment, is granted by courts

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    not because of any right in the employees,
    but in equity, in exercise of judicial
    discretion to relieve the employees from
    the hardship that will be caused if
    recovery is implemented. A government
    servant, particularly one in the lower
    rungs of service would spend whatever
    emoluments he receives for the upkeep of
    his family. If he receives an excess
    payment for a long period, he would spend
    it, genuinely believing that he is
    entitled to it. As any subsequent action
    to recover the excess payment will cause
    undue hardship to him, relief is granted
    in that behalf. But where the employee had
    knowledge that the payment received was in
    excess of what was due or wrongly paid, or
    where the error is detected or corrected
    within a short time of wrong payment,
    courts will not grant relief against
    recovery. The matter being in the realm of
    judicial discretion, courts may on the
    facts and circumstances of any particular
    case refuse to grant such relief against
    recovery.

    29. On the same principle, pensioners can
    also seek a direction that wrong payments
    should not be recovered, as pensioners are
    in a more disadvantageous position when
    compared to in-service employees. Any
    attempt to recover excess wrong payment
    would cause undue hardship to them. The
    petitioners are not guilty of any
    misrepresentation or fraud in regard to
    the excess payment. NPA was added to
    minimum pay, for purposes of stepping up,
    due to a wrong understanding by the
    implementing departments. We are therefore
    of the view that the respondents shall not
    recover any excess payments made towards
    pension in pursuance of the circular dated
    7-6-1999 till the issue of the

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    clarificatory circular dated 11-9-2001.
    Insofar as any excess payment made after
    the circular dated 11-9-2001, obviously
    the Union of India will be entitled to
    recover the excess as the validity of the
    said circular has been upheld and as
    pensioners have been put on notice in
    regard to the wrong calculations earlier
    made.”

    12. In Syed Abdul Qadir v. State of Bihar3
    excess payment was sought to be recovered
    which was made to the appellants-teachers
    on account of mistake and wrong
    interpretation of prevailing Bihar
    Nationalised Secondary School (Service
    Conditions) Rules, 1983. The appellants
    therein contended that even if it were to
    be held that the appellants were not
    entitled to the benefit of additional
    increment on promotion, the excess amount
    should not be recovered from them, it
    having been paid without any
    misrepresentation or fraud on their part.
    The Court held that the appellants cannot
    be held responsible in such a situation
    and recovery of the excess payment should
    not be ordered, especially when the
    employee has subsequently retired. The
    court observed that in general parlance,
    recovery is prohibited by courts where
    there exists no misrepresentation or fraud
    on the part of the employee and when the
    excess payment has been made by applying a
    wrong interpretation/understanding of a
    Rule or Order. It was held thus:

    “59. Undoubtedly, the excess amount that
    has been paid to the appellant teachers
    was not because of any misrepresentation
    or fraud on their part and the appellants
    also had no knowledge that the amount that
    was being paid to them was more than what

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    they were entitled to. It would not be out
    of place to mention here that the Finance
    Department had, in its counter- affidavit,
    admitted that it was a bona fide mistake
    on their part. The excess payment made was
    the result of wrong interpretation of the
    Rule that was applicable to them, for
    which the appellants cannot be held
    responsible. Rather, the whole confusion
    was because of inaction, negligence and
    carelessness of the officials concerned of
    the Government of Bihar. Learned counsel
    appearing on behalf of the appellant
    teachers submitted that majority of the
    beneficiaries have either retired or are
    on the verge of it. Keeping in view the
    peculiar facts and circumstances of the
    case at hand and to avoid any hardship to
    the appellant teachers, we are of the view
    that no recovery of the amount that has
    been paid in excess to the appellant
    teachers should be made.”

    13. In State of Punjab v. Rafiq Masih
    (White Washer
    )4 wherein this court
    examined the validity of an order passed
    by the State to recover the monetary gains
    wrongly extended to the beneficiary
    employees in excess of their entitlements
    without any fault or misrepresentation at
    the behest of the recipient. This Court
    considered situations of hardship caused
    to an employee, if recovery is directed to
    reimburse the employer and disallowed the
    same, exempting the beneficiary employees
    from such recovery. It was held thus:

    “8. As between two parties, if a
    determination is rendered in favour of the
    party, which is the weaker of the two,
    without any serious detriment to the other
    (which is truly a welfare State), the
    issue resolved would be in consonance with

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    the concept of justice, which is assured
    to the citizens of India, even in the
    Preamble of the Constitution of India. The
    right to recover being pursued by the
    employer, will have to be compared, with
    the effect of the recovery on the employee
    concerned. If the effect of the recovery
    from the employee concerned would be, more
    unfair, more wrongful, more improper, and
    more unwarranted, than the corresponding
    right of the employer to recover the
    amount, then it would be iniquitous and
    arbitrary, to effect the recovery. In such
    a situation, the employee’s right would
    outbalance, and therefore eclipse, the
    right of the employer to recover.

    Xxxxxxxxx

    18. It is not possible to postulate all
    situations of hardship which would govern
    employees on the issue of recovery, where
    payments have mistakenly been made by the
    employer, in excess of their entitlement.
    Be that as it may, based on the decisions
    referred to hereinabove, we may, as a
    ready reference, summarise the following
    few situations, wherein recoveries by the
    employers, would be impermissible in law:

    (i) Recovery from the employees belonging
    to Class III and Class IV service (or
    Group C and Group D service).

    (ii) Recovery from the retired employees,
    or the employees who are due to retire
    within one year, of the order of recovery.

    (iii) Recovery from the employees, when
    the excess payment has been made for a
    period in excess of five years, before the
    order of recovery is issued.

    (iv) Recovery in cases where an employee

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    has wrongfully been required to discharge
    duties of a higher post, and has been paid
    accordingly, even though he should have
    rightfully been required to work against
    an inferior post.

    (v) In any other case, where the court
    arrives at the conclusion, that recovery
    if made from the employee, would be
    iniquitous or harsh or arbitrary to such
    an extent, as would far outweigh the
    equitable balance of the employer’s right
    to recover.””

    14. The above decision would indicate that

    recovery post retirement is impermissible if the

    alleged excess payment is made before five years

    before the order of recovery was passed.

    15. The above decision would indicate that

    recovery after retirement is impermissible. In

    light of this, so far as the reliance of learned

    AGP Mr. Henil Shah on the decision in the case

    of Balbir Singh Bhandari v. State of

    Uttarakhand, rendered in Civil Appeal No. 5933

    of 2023 and allied matters, decided on

    10.01.2024, is concerned, the said decision

    pertains to a case where a special class of

    ‘Ayurvedic’ and ‘Unani’ medical officers was

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    created and they were given favourable treatment

    without there being any valid reason to grant a

    higher pay scale.

    16. In the instant case, there is nothing on

    record to show that the present petitioner was

    given any special treatment, and even the

    impugned order nowhere indicates that the

    petitioner is a beneficiary of any such special

    treatment, and therefore, the aforesaid decision

    shall not apply to the case on hand.

    17. As noted earlier, during the course of

    arguments, learned Advocate Meet Shah submitted

    that, at present, the petitioner is receiving

    his salary as per the revised pay scale, which

    is lower than the First and Second Higher Pay

    Scales that were allegedly granted to him

    erroneously; therefore, what is challenged by

    way of this petition is the action of the

    respondents in imposing recovery and directing

    him to refund or repay the excess amount paid.

    18. As far as the decision in the case of

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    ‘Balbir Singh Bhandari‘ (Supra), relied on by

    learned AGP, Mr. Henil Shah, is concerned, such

    a decision was rendered by taking into

    consideration the fact that a special class of

    ‘Ayurvedic’ and ‘Unani’ medical officers were

    created and they were given favourable

    treatment, without there being any valid reason

    to grant higher pay-scale.

    19. In the instant case, there is nothing on

    record to show that the present petitioner was

    given any special treatment, and even the

    impugned order nowhere indicates that the

    petitioner is a beneficiary of any such

    treatment; therefore, the aforesaid decision

    shall not apply to the case on hand.

    20. Learned advocate Mr. Meet Shah, at this

    stage, states that the petitioner is not in a

    position to dispute that his pension was fixed

    erroneously by paying him at a higher pay scale;

    however, as far as the petitioner’s existing

    pension being paid at the correct rate is

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    concerned, he is agreeable to the same.

    21. Learned advocate Mr. Meet Shah, at this

    juncture, could not dispute the affidavit-in-

    reply filed by the learned AGP and conceded that

    the petitioner is entitled to the rate of

    pension he was receiving prior to the order of

    recovery. Therefore, he submitted that this

    Court may pass an appropriate order with respect

    to the recovery.

    22. Considering the aforesaid decision, as well

    as the fact that the petitioner cannot be

    attributed with the mistake committed by the

    respondents in fixing his pension at a higher

    rate, the action of recovering the excess

    pension is hereby quashed and set aside. If any

    amount has been recovered from the petitioner

    and has not been repaid, the respondents are

    directed to repay the same. However, since the

    action was bonafide, no interest shall be

    payable thereon.

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    23. With the above observations and directions,

    the petition is partly allowed. The impugned

    action of the respondents in recovering the

    excess pension paid to the petitioner is hereby

    quashed and set aside. Rule is made absolute to

    the aforesaid extent only. No order as to costs.

    (NIRZAR S. DESAI,J)

    Pallavi

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