# Electricity Board v. Naresh anwar3, reliance

- **Citation:** High Court of Judicature at Allahabad #39494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/electricity-board-v-naresh-anwar3-reliance-39494
- **Pages:** 8

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
70
not entitle a family to get employment as of
right irrespective of "the financial condition
of the family of the deceased". "The
compassionate appointment", it has further
been held, "cannot be granted after a lapse of
reasonable period which must be specified in
the
rules.
The
consideration
for
such
employment is not a vested right, which can
be exercised at any time in future. The object
being to enable the family to get over the
financial crisis which it faces at the time of
the death of the sole bread winner, the
compassionate
employment
cannot
be
claimed and offered whatever the lapse of
time and after the crisis is over."

5. In Jagdish Prasad v. State of
Haryana2 the question of appointment on
compassionate ground to an applicant who
was four years old at the time when his father,
an ex-employee died in harness came up for
consideration before the Apex Court. It was
contended that since the appellant therein was
minor when the father died in harness, the
compassionate
circumstances
having
continued till the date he made an application
for appointment, he was entitled to be
appointed on compassionate ground. The
contention was met with disapproval by the
Supreme Court in the following words.

"The very object of appointment of a
dependent of the deceased employees who die
in harness is to relieve unexpected immediate
hardship and distress caused to the family by
sudden demise of the earning member of the
family. Since the death occurred way back in
1971, in which year, the appellant was four
years old, it cannot be said that he is entitled
to be appointed after he attained majority long
thereafter. In other words, if that contention is
accepted, it amounts to another mode of
recruitment of the dependent of a deceased
Government servant which cannot been
encouraged, dehors the recruitment rules."

2 1996 (1) SLR 7
6. The view taken in Haryana State
Electricity Board v. Naresh anwar3, reliance
on which has been placed by Sri Dhan
Prakash during the course of his arguments is
not in any manner disparate with the view
taken by the Apex Court in the cases referred
to supra. The observations made in para 11 of
the report that if a representation is made, the
concerned authority namely, the Haryana
State Electricity Board would consider the
same with such benignity as the applicant
therein might deserve in the facts of the case,
was not a declaration of law extending
coverage of Art. 141 of the Constitution. The
impugned decisions do not suffer from the
blemish of any infirmity. As a result of
foregoing discussion the appeal is bereft of
merits. However, by reason of reliance upon
the said observations as also upon the Rules
which
envisage
consideration
of
an
application for compassionate appointment
made even after five years of the death of the
employee if the circumstances so warrant, the
appeal is disposed of post-fixed with the
observation that in case an application is
moved, the respondents may reckon with the
feasibility of a temporary appointment if the
family is still reeling under financial straits.

Petition disposed of.

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3 1996(2) SLR 11
1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another

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By the Court

1. The fate of this writ petition hinges on
the reply to the question as to whether an
enquiry
conduct
by
the
Administrative
Tribunal against the judicial officer, an order
of deduction of 50% of pension under Rule
351-A of Civil Services Rules, can be passed
by the Governor of the State.

2. Before dealing with this question, it is
pertinent to have a glance over the factual
matrix of the case as set out in the writ
petition by the deceased petitioner Suraj Bali
Katiyar, who expired on 26.4. 1987 and in his
place his wife, there sons and two daughters
were substituted as petitioners.

3. Late Shri Suraj Bali Katiyar was
appointed as a Judicial Officer under the
provisions of U.P. Judicial Officers Service
Rules, 1948 in the years 1955. On 30th
September
1967
in
pursuance
of
the
provisions of Clause (3) of Article 348 of the
Constitution of India, the Governor was
pleased
to
order

the
publication
of
Notification
No.P-7479/II-C-54/1961
in
exercise of powers conferred by Article 237
of the Constitution of India.
4. It has been averred that on 27.5.1971
one Pandit Triveni Sahai, M.L.A. and one
Radhey were shot dead in town of Dataganj ,
Dudaun , His Younger brother Radhey
Shyam was the Deputy Inspector General of
Police and Director of Vigilance, U.P. On
29.5.1971 one Balak Ram surrendered in the
Court of late Shri Katiyar and preferred an
application, in which it was mentioned that
men of the complainant party and the police
were hunting him out and if he would not be
taken into custody, he would be killed. Late
Shri Suraj Bali Katiyar ordered that accused
Balak Ram be taken into custody and he was
sent to jail.

5. Late Shri Suraj Bali Katiyar in this writ
petition averred that Shri Radhey Shyam
Sharma, Deputy Inspector General of Police
and Director of Vigilance was very much
annoyed to him due to that reason and he
made a complaint to the Secretary to the
Government of U.P. Vigilance Department
leveling certain allegations against late Shri
Katiyar and Shri Mahabir Prasad , the then
District Judge, Budaun.

6. On 26.3.1973 Dr. Manohar Lal Gupta,
Deputy Secretary to Government of U.P.
requested the Registrar of this Court for
initiating proceedings at the behest of Shri
Radhey Shyam Sharma, Deputy Inspector
General of Police, Who made a complaint.

7. On 27.11.1974 an order of suspension
was passed against late Shri Suraj Bali
Katiyar under the signature of late Shri Gulam
Husain Commissioner and Secretary to the
State Government, wherein it was indicated
that under the order of the Governor, the case
of the petitioner will be referred to the
Administrative Tribunal under Rule 4(1) of
the
U.P.
Disciplinary
proceedings
(Administrative Tribunal ) Rules, 1947. The
said letter also contains a copy of the charge -
sheet and late Shri Suraj Bali Katiyar was
directed to submit an explanation against the
charge sheet. The Additional Registrar of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
72
High Court, Allahabad was asked to relieve
late Shri Suraj Bali Katiyar from the charge
of the judicial magistrate.

8. On 10.12.1974 late Shri Suraj Bali
Katiyar
submitted
his
reply
to
the
Administrative Tribunal and submitted that he
should be furnished with the copies of the
document upon which the imputation of
charges were based.

9. On 20th January, 1974 late Shri Suraj
Bali Katiyar, after attaining the age of
superannuation, was ordered to be retired with
effect from 31.12.1976.

10. After late Shri Suraj Bali Katiyar was
furnished with the copies of the document
upon which the imputation of charges were
based, on 9.4.1975 he submitted his detailed
explanation to the charge sheet. On 18.7.1975
the Ad hoc Administrative Tribunal, Lucknow
informed that the Governor Vide Notification
No. 1775/39-1-2-M dated 5.7.1975 transferred
the petitioner's (late Shri Suraj Bali Katiyar)
matter from Administrative Tribunal IInd to
Administrative Tribunal Ad hoc, comprising
two members namely, Shri P.C. Pandey,
I.A.S.(Chairman) and Shri A.P. Agarwal,
Member, U.P. Administrative Tribunal IInd.

11. The contention of the learned counsel
appearing on behalf of the petitioners is that
the Tribunal was not properly constituted in
accordance with Rule 3(7) of the Disciplinary
proceedings (Administrative Tribunal) Rules,
1947 and the Governor could not make
reference under Section 4(1) of the aforesaid
Rules against a judicial magistrate under the
control of the High Court in view of the
notification dated 30.9.1967 under article-237
of the Constitution of India for the reason
that the High Court was vested with a power
to hold disciplinary proceedings in relation
to the members belonging to U.P. Judicial
Officers Service Rules as well as under
Article 235 of the Constitution of India.

12. It was further contended by the
learned counsel for the petitioners that neither
the enquiry report was the petitioners that
neither the enquiry report was submitted nor
the recommendation of the Administrative
tribunal was furnished to late Shri Suraj Bali
Katiyar. On 25.3.1977 the District Judge,
Etah sent a letter to late Shri Suraj Bali
Katiyar asking him to show cause as to why
he be not dismissed from service as
recommended by the Administrative Tribunal
.
13. The thrust of the learned counsel for
the petitioners is that District Judge was not
competent to issue show cause notice under
Rule 10 of the Disciplinary proceedings
(Administrative Tribunal ) Rules, 1947. It was
mandatory for the Governor to send the
Tribunal's recommendation to the High Court
and after receiving the decision of the High
Court, the Governor could have passed the
order of dismissal, removal or compulsory
retirement or any other penalty.

14. Taking a cue from the decision of
Hon'ble Supreme Court in Shamsher Singh
Vs. State of Punjab , (A.I.R. 1974 SC 2192,)
it was submitted that petitioner (Late Shri
Suraj Bali Katiyar) was a Judicial Officer
under the control of the High Court and as
such enquiry through Vigilance department
and by one member of Administrative
Tribunal
without

consultation

and
recommendation of the High Court was void
abinitio and without jurisdiction.

15. However, on 24.9. 1977 another show
cause notice was received from the State
Government, Which was served upon late
Shri Suraj Bali Katiyar through the District
Judge, Etah containing a notice dated 12.09.
1977, wherein it was indicated that the
Administrative Tribunal vide its enquiry
report dated 18.12.1976 found charges No.1
and 2 proved and exonerated from charge
No.3 and since the Petitioner (Late Shri Suraj
Bali Katiyar) had retired from Service with
effect from 31.12.1976, the Governor directed
1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another

73
the State Government to issue a show cause
notice as per the report of the Tribunal that as
to why 50% of the pension may not be
deducted under the provisions of Article 351A of the Civil Service Regulation. Late Shri
Suraj Bali Katiyar submitted his explanation
against the show cause notice.

16. Charge no.1 mentions that on April
15, 1971, the deceased petitioner had taken a
sum of Rs. 10,000/= at his residence from one
Hifzul Hasan, Son of Daud Ali, residence of
village Gabhiyai, P.S. Allapur, district
Buduan as illegal gratification for granting
bail to the nine persons case crime No. 77 of
1971,
P.S.
Allapur,
under
Sections
147/148/307/452/436 I.P.C. (S.T.No.292 of
1971. Although the deceased petitioner had
rejected the bail applications of two accused
on 15.4.1971. The deceased petitioner was
also charged with a view to minimize the
gravity of the charges leveled against the
accused. The deceased petitioner in his order
dated 16.4.1971 granted bail by indicating
that co-accused Ameer Hasan had fired with a
Tamancha and Monis Ali Khan had fired in
the air.

17. Charge No.2 indicates that the
deceased petitioner in the month of October,
1971 had taken illegal gratification, of which,
two bottles of liquor, 15 Kg. Of kalmi
Mangoes, 2 Kg. of sweet as well as meat and
Rs. 1,000/- cash from the complainant Shri
Makhan Lal to show him favour in
complaint case No. 717 of 1970, in re:
Makhan Lal Vs. Deep Chand, under Section
379/215 I.P.C. In the same month the
deceased petitioner further took Rs.6,00/-
from Deep Chand, accused in that case for
acquitting him and obtaining an order for the
return of the alleged stolen property, i.e. a
camel.

18. As stated earlier the enquiry report of
the
Administrative
Tribunal,
IInd, U.P.
Lucknow was sent along with a copy of the
letter of the Additional Registrar of the High
Court and the deceased petitioner was asked
to submit a reply against the same.

19. In his reply, which late Shri Suraj Bali
Katiyar submitted on 15.6.1980, it was
mentioned that the entire proceedings were
vitiated due to non furnishing of the report of
the tribunal and denial of opportunity to show
cause against the said notice inasmuch as after
his retirement the petitioner ( late Shri Suraj
Bali Katiyar) was lying on his death bed. It
was also stated that the proceedings suffer
from colourable exercise of powers
inasmuch as enquiry was initiated at the
behest of Shri Radhey Shyam Sharma,
Deputy Inspector to be the brother of Pandit
Triveni Sahai, Who was murdered and the
petitioner (late Shri Suraj Bali Katiyar )
allowed the application of the accused for
surrender and remanded him to judicial
custody.

20. The first question which falls for
consideration before this Court is as to
whether the petitioner (Late suraj Bali
Katiyar ) could be subjected to investigation
by the vigilance department and thereafter
proceeded with in an enquiry by the
Administrative Tribunal and the Governor of
the State without the decision of the High
Court under Article 235 of the Constitution of
India can pass the impugned order under
regulation 351-A of the Civil Service
Regulations deducting 50% from the pension
of the petitioner (Late Shri Suraj Bali
Katiyar).

21. Article 235 of the Constitution of
India with the control of the High Court over
the Subordinate Courts, which reads as under:
"235. Control over subordinate courts:-- The
control over district court and courts and
courts subordinate there to including the
posting and promotion of and the grant of
leave to , persons belonging to the judicial
service of a State and holding any post
inferior to the post of district judge shall be
vested in the High Court , but nothing in this
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
74
article shall be construed as taking away from
any such person any right of appeal under
such Law:

22. In State of West Bengal Vs. Nripendra
Nath A.I.R. 1966 SC 447, a Constitution
Bench of Hon'ble Court observed in para 13
of the report:

" We do not accept this contention. The
word "Control" is not defined in the
Constitution all. In part XIV which deals with
Services under the Union and the State the
word "disciplinary control" or " disciplinary
jurisdiction" have not at all been used. It is
not to be thought that disciplinary jurisdiction
of services is not contemplated. In the contest
the word "control" must, in our judgement,
include disciplinary jurisdiction. In deed, the
word may be said to be used as a term of art
because the Civil Service (Classification,
Control and Appeal) Rules used the word
"Control" and the only rules which can
legitimately come under the only rules which
can legitimately come under the word "
control" are the Disciplinary Rules. Further,
as we have already show, the history which
lies behind the enactment of these articles
indicates that " Control" was vested in the
High Court to effectuate a purpose namely,
the securing of the independence of the
subordinate judiciary and unless it included
disciplinary control and unless it included
disciplinary control as well the very object
would be frustrated. This aid to construction
is admissible because to find out the meaning
of a law, recourse may legitimately be had to
the prior Sate of the Law, The evil sought to
be removed and the process by which the
law was evolved. The word "control" as we
have seen, was used for the first time in the
Constitution and it is accompanied by the
word "vest" which is a strong word. It shows
that the High Court is made the sole custodian
of the control over the judiciary. Control,
therefore, is not merely the power to arrange
the day to day working of the court but
contemplates disciplinary jurisdiction over the
presiding Judge. Article 227 gives to the High
Court superintendence over these courts and
enables the High court to call for returns etc.
The word "Control" in Article 235 must have
a different content. It includes something in
addition to merd superintendence. It is
control over the conduct and discipline of the
judges.
This
conclusion
is
further
strengthened by two other indications pointing
clearly in the same direction. The first is that
the order of the High court is made subject to
an appeal if so provided in the Law regulating
the conditions of service and this necessarily
indicates as order passed in disciplinary
jurisdiction, Secondly, the words are that the
High Court shall "deal" with the judge in
accordance with his rules of service and the
word administrative jurisdiction."

It was further held in para 18 of the report"

"There is, therefore, nothing in Article
311 which compels the conclusion that the
High Court is ousted of the jurisdiction to
hold the enquiry if Article 235 vested such a
power in it. In our judgement, the control
which is vested in the High Court is a
complete control subject only to the power of
the Governor in the matter of appointment
(including dismissal and removal) and posting
and promotion of District Judges. Within the
exercise of the control vested in the High
Court, the High Court can hold enquiry's,
impose punishments other than dismissal or
removal, subject however, to the conditions of
service, and a right of appeal if granted by the
conditions of service, and to the giving of an
opportunity of showing cause as required by
clause (2) of article 311 unless such
opportunity is dispensed with by the Governor
acting under the provisos (b) and (c) to that
clause. The High Court alone could have held
the enquiry in this case. To hold otherwise
will be to reverse the policy which has moved
determinedly in this circumstances."

23. In Samsher Singh Vs. State of Punjab
and another;
1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another

75
A.I.R. 1974 SC 2192 a Constitution Bench
Hon'ble Supreme Court observed in para 76
of the report "The High Court under Article
235 is vested with the control of subordinate
judiciary. The High Court according to the
appellant failed to act in terms of the
provisions of the Constitution and abdicated
the control by not having an inquiry through
judicial officers subordinate to the control of
the High Court but asking the Government to
enquiry through the vigilance department."

It was further indicated in para 78 of the
report:

"The High Court for reasons which are not
Stated requested the Government to depute
the Director of Vigilance to hold an enquiry.
It is indeed strange that the High Court which
had control over the subordinate judiciary
asked the Government to hold an enquiry
through
the
vigilance
department.
The
members of the subordinate judiciary are not
only under the care and custody of the High
Court, but are also under the care and custody
of High Court. The High Court failed to
discharge the duty of preserving its control.
The request by the High Court to have the
enquiry through the Director of Vigilance was
an act of self abnegation. The contention of
the State that the High Court wanted the
Government to be satisfied makes matters
worse. The Governor will act on the
recommendation of the High Court. That is
the broad basic of Article 235. The High
Court should have conducted the enquiry
preferably through District Judges. The
members of the subordinate judiciary look up
to the High Court not only for discipline but
also for dignity. The High Court acted in total
disregard of article 235 by asking the
government to enquiry through the Director of
Vigilance."

24. In Punjab and Haryana High Court
Vs. State of Haryana, A.I.R. 1975 SC 613,
the Constitutional bench of Hon'ble Supreme
Court after Considering Samsher Singh
(Supra) held in para 47 of the report.

25. The Governor has power to pass an
order of dismissal, removal or termination on
the recommendations of the High Court which
are made in exercise of the power of control
vested in the High court. The High Court of
course under this control cannot terminate the
services or impose any punishment on District
Judges by removal or reduction. The control
over District Judges is that disciplinary
proceedings are commenced by the High
Court. If as a result of any disciplinary
proceedings any District Judge is to be
removed from service or any punishment is
to be imposed that will be in accordance with
the conditions of service."

26. It was further held in para 50 of the
report:

" This Court in the majority view in
Shamsher Singh Vs. State of Punjab (C.A.
No.2289 of 1970) and Ishwar Chand
Agarwal Vs. State of Punjab, (Civil) Appeal
No. 632 of 1971) decided on 23rd August ,
1974 (reported in A.I.R. 1974 SC 2192)
pointed out that the High Court is to hold
the enquiry preferably through District
Judges . The members of the subordinate
judiciary look up to the High Court for
discipline and dignity. The enquiry conducted
by the Director of Special Enquiry was
unconstitutional."

27. There is no necessity for this Court to
over burden the judgment by multiplying the
authorities on this question, suffice to say that
there are catina of decisions of Hon'ble
Supreme Court, wherein it has been observed
that under Article 235 of the Constitution of
India the control is vested with the High Court
over the subordinate courts in all matters
including the disciplinary proceedings and the
powers of the Chief Justice the High Court
under Article 229 includes the powers to
suspend, dismiss, remove or compulsory retire
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
76
from service an officer of subordinate
judiciary.

28. In view of the reasons mentioned in
the fore going paragraphs, we are of the view
that
the
entrie
disciplinary
proceedings
commencing from suspension order dated
27.11.1974 passed by the State Government,
issuance of the charge sheet under the
signature
of
Secretary
to
the
State
Government, order of the Governor referring
the matter to Administrative Tribunal to hold
the enquiry against the petitioner (Late Shri
Suraj Bali Katiyar) under Rule 4(1) of the
U.P. Disciplinary proceedings (Administrative
Tribunal) Rules,1947. The enquiry report
dated
18.12.1976
submitted
by
the
Administrative Tribunal, issuance of show
cause notice dated 25.3.1977 by the District
Judge Etah asking the petitioner (Late Shri
Suraj Bali Katiyar ) to show cause, even
when he retired on 31.12.1976, as to why in
pursuance of the recommendation of the
Administrative tribunal he will not be
dismissed from service under Rule 10 of the
Disciplinary proceedings ( Administrative
Tribunal) Rules, 1947, issuance of another
show cause notice dated 12.9.1977 by the
State Government to the effect that the
Administrative Tribunal in its enquiry report
dated 18.12.1976 found charges No.1 and 2
proved and as the deceased petitioner
retired from service with effect from
31.12.1976 and the Governor has directed
the State Government to issue show cause
notice as per the report of the
Administrative Tribunal as to why 50% of
the pension may not be deducted under the
provisions of Regulation 351-A of the
Regulations
and
the
report

of
the
Administrative Tribunal passed by the State
Government in the name of the Governor of
U.P. deducting 50% of the pension of the
deceased petitioner under Regulation 351-A
of Civil Service Regulations, are totally
vitiated and are liable to be set aside.

29. The impugned order dated 19.11.1981
reveals that late Shri Suraj Bali Katiyar, while
he was working as Judicial Magistrate at
Budaun, the Vigilance Department of the
High Court found certain allegations prima
facie to be correct against him. There after,
with the consultation of the High Court, the
matter was referred for enquiry by the
Administrative Tribunal, IInd. The Tribunal
after completing the enquiry found two
charges stood proved against the petitioner (
deceased). The consent/ concurrence of the
High Court was obtained on the report of the
Administrative Tribunal. In the meantime the
petitioner (deceased) retired on 31.12.1976.
As even against a retired officer action under
Regulation 351-A could be taken, hence the
question of deduction of pension was passed.
Thereafter, furnishing with a copy of the
decision of Administrative Tribunal, a show
cause notice was issued to the petitioner
(deceased), in which it was proposed that 50%
of his pension be deducted. The petitioner
(deceased) submitted a reply against the show
cause notice, which was considered by the
Administrative Committee in its meeting
dated
5.5.1979.
The
Administrative
Committee rejected the representation of the
petitioner (deceased) and had recommended
deduction of 50% of pension of the petitioner
(deceased). The State Government after
considering the recommendation of the High
Court
took
a
decision
to
accept
the
recommendation of the High Court, thereafter
the Governor of U.P. exercising his powers
under Regulation 351-A and Rule 28 of the
U.P. Judicial Officers Service Rules directed
that from the pension of petitioner (deceased),
deduction of 50% be made.

30. In view of the provisions contained in
Article 235 of the Constitution and Section 28
of the U.P. Judicial Officer Rules, the powers
is vested with the High Court to initiate and
conduct and enquiry against an officer
belonging to subordinate judiciary. After
coming into force of the notification dated
September 30, 1967, the petitioner (deceased)
1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another

77
became the member of the subordinate
judiciary and only the High Court, under
Article 235 of the Constitution of India, could
hold the enquiry, but unfortunately the High
Court abnegated its control by holding the
enquiry against the petitioner ( deceased).

31. We are of the view that the High
Court under Article 235 is vested with the
control of the subordinate judiciary, ought not
to have asked the State Government to hold
the
enquiry
through
the
administrative
Tribunal. It appears that the High Court failed
to discharge its duty of preserving its control.
It was nothing, but an act of abnegation of its
powers of control. If the High Court would
have conducted the enquiry through any
officer subordinate to it and recommended to
the State Government for the deduction of the
pension of the petitioner (Late Shri Suraj Bali
Katiyar), then the State Government could
have been perfectly justified in passing the
said order, but in the instant case the
Administrative
Tribunal
conducted
the
enquiry, submitted its report and the High
Court on the basis of the said report,
recommended for deduction of 50% of the
pension of the petitioner (Late Shri Suraj
Bali Katiyar) under Regulation 351-A of
Civil Service Regulations and the State
Government passed the impugned order.

32. As we have state earlier, it was the
duty of the High Court to have conducted the
enquiry preferably through the District Judge
and thereafter would have recommended to
the State Government for any appropriate
action.

33. In view of our observations indicated
in the foregoing paragraphs, as a result of
which this writ petition succeeds, we have not
delved into the other points raised in this writ
petition regarding malafide and denial of
reason of reasonable opportunity.

34. In view of what has indicated herein
above the writ petition succeeds and is
allowed. A writ in the nature of certiorari
quashing
the
impugned
order
of
the
Government directing 50% deduction from
the pension of the petitioner (Late Shri Suraj
Bali Katiyar), the order of the Government
dated 27.11.1974 suspending the petitioner
(Late Suraj Bali Katiyar) pending enquiry and
the report of the Administrative Tribunal
dated 18.12.1976, is issued. The respondents
are directed to make the payment of full
pension to the substituted heirs and legal
representatives of the deceased petitioner and
grant family pension to his wife in accordance
with rules form the date of death of the
deceased petitioner.
Petition Allowed.

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