{"id":207971,"date":"2010-12-23T00:00:00","date_gmt":"2010-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-anvar-on-23-december-2010"},"modified":"2019-01-24T20:28:19","modified_gmt":"2019-01-24T14:58:19","slug":"state-vs-anvar-on-23-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-anvar-on-23-december-2010","title":{"rendered":"State vs Anvar on 23 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Anvar on 23 December, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSA\/80\/1993\t 12\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSECOND\nAPPEAL No. 80 of 1993\n \n\nWith\n\n\n \n\nSECOND\nAPPEAL No. 81 of 1993\n \n\nWith\n\n\n \n\nSECOND\nAPPEAL No. 79 of 1993\n \n\nWith\n\n\n \n\nSECOND\nAPPEAL No. 74 of\n1993 \n \n=========================================================\n\n \n\nSTATE\nOF GUJARAT & 1 - Appellant(s)\n \n\nVersus\n \n\nANVAR\nSULEMAN KANIYA - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMs\nMathur for\nAppellant(s) : 1 - 2. \nMR PM THAKKAR for Defendant(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 23\/12\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Being
\n\tan identical matter, papers of Second Appeal No.74 of 1993 has been
\n\tcalled from Registry as mentioned by learned advocate
\n\tMr.D.M.Thakkar.\n<\/p>\n
Heard
\n\tlearned A.G.P. Ms.Mathur appearing on behalf of appellants and
\n\tlearned advocate Mr.D.M.Thakkar on behalf of respondents in all four
\n\tmatters. Employee – original plaintiff – present
\n\trespondent in each case had filed Civil Suit before Joint Civil
\n\tJudge(S.D.), Jamnagar against State of Gujarat and Deputy
\n\tConservator Forests, Jamnagar, which was allowed and Civil Court had
\n\tdeclared that act of present appellant in not giving promotion to
\n\trespondent was illegal, unconstitutional and against principles of
\n\tnatural justice and directed to give promotion with effect from
\n\t01.07.1981 with consequential benefits in post of Forester. Trial
\n\tCourt has passed aforesaid judgment and decree on 24.04.1987 against
\n\twhich appeal was preferred by State of Gujarat before Assistant
\n\tJudge, Jamnagar. Lower Appellate Court dismissed said appeal and
\n\tconfirmed judgment and decree passed by Lower Court on 31.12.1991.
\n\tThereafter, present Second Appeal is preferred by State of Gujarat.\n<\/p>\n
Substantial
\n\tquestion of law involved in present appeal was formulated by this
\n\tCourt while exercising powers under Section 100 of Code of Civil
\n\tProcedure was, whether on interpretation of Rule-2 of Forester
\n\t(Subordinate Forest Service) Recruitment Rules, 1969, criteria for
\n\tpromotion to Forester from Forest Guard is Seniority-cum-merit,
\n\tseniority or proved merit and efficiency prevail? Page ‘D’.\n<\/p>\n
Learned
\n\tadvocate Mr.D.M.Thakkar submitted that in Civil Application No.7778
\n\tof 2006 to Civil Application No.7780 of 2006, this Court has passed
\n\tan order on 16.03.2007 (Coram: Hon’ble Mr.Justice R.S.Garg), which
\n\tis quoted as under:-\n<\/p>\n
\t\t\t“1.\tOn
\n\t\t\t26th
\n\t\t\tAugust, 1992, this Court granted stay against the execution on the
\n\t\t\tfollowing conditions:\n<\/p><\/blockquote>\n
(1)\tThe
\napplicant-State shall carry out the direction of the trial Court with
\nrespect to giving of promotion to the original plaintiff with effect
\nfrom 1st July, 1981 within a period of six weeks from
\ntoday.\n<\/p>\n
(2)\tThe
\npromotion order will be subject to the outcome of the appeal and the
\napplicant-State so shall state in the promotion order itself.\n<\/p>\n
\tIt
\nwas also observed: “it is clarified that the consequential
\norder granting monetary benefits granted to the original plaintiff is
\nstayed until further orders”.\n<\/p>\n
2.\tIt
\nappears that in accordance with the directions of this Court, the
\npromotion has been effected in favour of the applicants effective
\nfrom 1st July, 1981, however, they are still being paid
\nthe salary of the Forest Guard. Shri Pujari, learned Assistant
\nGovernment Pleader, says that certain further benefits are also being
\ngiven to the opponents because the promotional avenues are blocked.\n<\/p>\n
3.\tFrom
\nthe order passed by this Court, it clearly appears that the monetary
\nbenefits with effect from 1st July, 1981 upto 26th
\nAugust, 1992 were to remain stayed. The High Court did not intend to
\nsay that even after the order, the respondent would not be entitled
\nto any benefits attached to the promotional post. The Conservator of
\nForest, in his affidavits dated 15th March, 2007, has
\nsubmitted that the respondents  would be entitled for higher
\npay-scale and if are taken to be promoted with effect from 1st
\nJuly, 1981, their salary\/total emoluments would be Rs.16,220\/-, but,
\nthe respondents are being paid a sum of Rs.11,480\/- only. Shri Pujari
\nlearned Counsel for the opponents, submits that the figures are
\ntentative and not final.\n<\/p>\n
4.\tThe
\npresent applications for early hearing have been filed on the ground
\nthat despite orders in favour of the respondents, the present
\nappellants are not paying the salary in accordance with law and the
\ndirections of this Court.\n<\/p>\n
\t\t\t5.\tLet
\n\t\t\tthe Conservator of Forest look into the matter and observe the
\n\t\t\tearlier order, as explained by today’s order, and pass necessary
\n\t\t\tand appropriate orders latest by 30th
\n\t\t\tMarch, 2007. It shall be his duty to place the matters before the
\n\t\t\tAudit Committee or the Higher Officials and obtain their approvals
\n\t\t\tand orders. It shall be his duty to inform the other authorities
\n\t\t\tthat the High Court has directed that the matter should be
\n\t\t\tconcluded by 30th
\n\t\t\tMarch, 2007 and if it is not, accordingly, done, then, it will be
\n\t\t\ttaken to be a serious lapse on the part of the Conservator of
\n\t\t\tForest and other authorities. The matters be taken up for
\n\t\t\tconsideration on 3rd
\n\t\t\tApril, 2007.”\n<\/p>\n
Learned
\n\tadvocate Mr.Thakkar submitted that in light of interim relief, which
\n\thas been granted by this Court, present respondents –
\n\temployees have been promoted in post of Forester by order of
\n\tConservator of Forest, Jamnagar dated 14.12.1992 and thereafter,
\n\tsalary of promoted post was also given. Deemed date for promotion
\n\twas also granted in favour of present respondent by order of
\n\tConservator of Forest, Junagadh dated 02.09.1995. Thereafter, by
\n\torder of Principle Chief Conservator of Forest dated  08.04.2009,
\n\tfirst higher pay-scale was also made available to respondents and by
\n\tthat order higher pay-scale benefits in post of Forester were
\n\tgranted in favour of respondents with effect from 11.11.1991, but,
\n\tarrears between the date when actually post was held by respondent
\n\tand deemed date is to be given.\n<\/p>\n
As
\n\tagainst that learned A.G.P. Ms.Mathur produced on record letter
\n\treceived from Deputy Conservator of Forest, Marin National Park,
\n\tJamnagar dated 18.12.2010, where according to accountant, a
\n\tdifference from the year 1982 to 1987 for respondent –
\n\tMr.A.S.Kania comes to Rs.12,313.10, for respondent –
\n\tMr.E.H.Solanki  comes to Rs.12989.40 and for respondent –
\n\tMr.M.M.Joshi comes to Rs.15935.10 and as per  letter of Deputy
\n\tConservator of Forest, Jamnagar Forest Division, Jamnagar dated
\n\t22.12.2010, a difference from the date 11.11.1982 to 30.05.1987 for
\n\trespondent – Mr.Chudamal Gala Patil comes to Rs.9,787\/-, which
\n\trequires to be paid after disposal of present appeal. Learned
\n\tadvocate Mr.D.M.Thakkar submitted that this calculation given by
\n\tappellants is not accepted by respondents.\n<\/p>\n
In
\n\tlight of this background of all four Second Appeals and considering
\n\tsubstantial question of law formulated by this Court on 19.04.1993
\n\tfor interpretation of Rule – 2 of Forester (Subordinate Forest
\n\tService) Recruitment Rules, I have considered submissions made by
\n\tboth learned advocates and I have also perused judgment and decree
\n\tpassed by Trial Court as well as judgment and decree passed by Lower
\n\tAppellate Court. Both parties lead their oral as well as documentary
\n\tevidence on record and thereafter, Trial Court has come to
\n\tconclusion that in seniority list dated 01.01.1980, though
\n\tplaintiffs were senior to some of juniors, even though, juniors were
\n\tpromoted in post of Forester. Promotion had been denied and this is
\n\thow it has been challenged before Trial Court that juniors were
\n\tpromoted to higher post, ignoring plaintiff’s seniority. This
\n\tquestion has been examined by Trial Court, after considering
\n\trelevant Rule – 2 as referred above and come to conclusion
\n\tthat promotion of a person to higher post is to be given to a person
\n\tof proved merit and efficiency from amongst Forest Guards meaning
\n\tthereby merits can be  considered, but, seniority should not be
\n\tignored. This principle has been considered by this Court in case of
\n\tK.L.Gadhvi Vs. Chief Conservator of Forest and Others
\n\treported in 1985(2) GLR Page No.1106. It has been held that
\n\twhile considering case of promotion to higher post on
\n\tseniority-cum-merit basis, seniority cannot be ignored. There must
\n\tbe positive demerits and vague adverse remark is not sufficient.
\n\tRelevant para of said judgment is quoted as under:-\n<\/p>\n
\t“3.\tMr.M.B.Gandhi,
\n\tthe learned A.G.P. has urged even when the criterion for promotion
\n\tis seniority-cum-merit, a person has to show that he has sufficient
\n\tmerit to be promoted. In this case according to him, the petitioner
\n\thas been found to be weak in performance and therefore he could only
\n\tbe promoted when his efficiency improves. It is well laid down
\n\tprinciple that when the criterion for promotion is
\n\tseniority-cum-merit, the seniority prevails in absence of a clear
\n\tfinding that the person concerned is positively unfit to be
\n\tpromoted. In this case, there is nothing on the record to show that
\n\tpetitioner was positively unfit for promotion.  A mere vague
\n\tallegation of inefficiency or irregularity without any facts to
\n\tsubstantiate such an allegation cannot be regarded as positive
\n\tunfitness. There has to be something quite substantial against the
\n\tperson to show that he is not fit to be promoted. That requires much
\n\tgreater demerit than the mere allegation of inefficiency or
\n\tirregularity in attendance, Moreover, it does not seem to have any
\n\tbasis for making such allegation. This Court has held in the case of
\n\tDr.B.R.Kulkarni V. Government of Gujarat and others, XIX G.L.R.
\n\t1021, that an ephemeral roll should be maintained to show the day to
\n\tday performance of the employee which could provide material for
\n\tcoming to the conclusion that his performance is not good and that
\n\tthe adverse remarks entered in the confidential reports can be based
\n\ton the material contained in the ephemeral roll. It is therefore,
\n\tclear that the respondents have wrongly denied the petitioner  the
\n\tpromotion he was entitled to from the post of Forest Guard to that
\n\tof the Forester when it was due to him on the basis of his
\n\tseniority. The petitioner therefore will have to be given promotion
\n\tfrom Forest Guard to Forester with effect from the date on which he
\n\twas due for such a promotion on the basis of his seniority. It will
\n\thave to be from  the date on which the person immediately next to
\n\thim in the seniority was promoted from Forest Guard to Forester ”\n<\/p>\n
Trial
\n\tCourt has come to conclusion that there is no demerits or adverse
\n\tremarks about respondents for granting promotion to higher post.
\n\tTherefore, Trial Court has rightly come to conclusion, after
\n\tconsidering decision of Hon’ble Apex Court in case of Amarkant
\n\tChaudhary Vs. State of Bihar reported in AIR 1994 SC Page
\n\tNo.531 , wherein it was held that if adverse remarks are
\n\tnot communicated, his case requires to be considered for promotion.
\n\tSo long case of concerned employee is not found for demerits for
\n\tgiving promotion to higher post, therefore,  seniority cannot be
\n\tignored. Trial Court has considered undisputed fact that most of
\n\tjuniors have promoted, ignoring seniority of plaintiffs.\n<\/p>\n
This
\n\taspect is also examined in detail by Lower Appellate Court while
\n\tinterpreting Rule – 2 as referred above. Lower Appellate Court
\n\thas also considered aforesaid decision, reported in 1985(2) GLR
\n\tPage No.1106. Relevant discussion made by Lower Appellate Court
\n\tin his judgment in Para – 7 to 11 are quoted as under:-\n<\/p>\n
\t“7.\tI
\n\thave heard the learned advocate Shri H.G.Joshi for the respondent or
\n\tand the Learned A.G.P. Shri M.J.Parekh for the appellant and have
\n\talso considered the documents and evidence on record. Now, it
\n\tappears from the evidence or record that the plaintiff is serving as
\n\ta forest guard in the State of Gujarat. Now, looking to the
\n\tseniority list produced by the parties apparently it is clear that
\n\tseveral junior to the plaintiffs are promoted in the cadre of
\n\tforester by superseding the plaintiff. The plaintiff has deposed on
\n\toath that he was fit to be promoted as forester and no any adverse
\n\tremars were ever passed against his nor any such adverse adverse
\n\tremarks were ever communicated to him and the criterion for the
\n\tpromotion seniority cum Merits and therefore, he was entitled to
\n\tpromotion with retrospective effect with all other benefits as
\n\tprovided under the rules. As against that the defendants have
\n\texamined witness Kiritkant Pratapray who is serving in the office of
\n\tConservator of Foreast at Junagadh. He has deposed that the
\n\tplaintiff is not entitled to get promotion as promotions are
\n\treleased on the ground of proved merits and efficiency. He has
\n\tdenied the fact that the plaintiff is entitled to yet promotion as
\n\tper seniority list. He has further deposed that the Selection
\n\tCommission prepares list for the candidates to be promoted as
\n\tforester. But, at the same time he has not been able to show any
\n\tsuch rules wherein provisions for the selecti committee has been
\n\tmade. He has further deposed that the basis for the promotion are
\n\tconfidential reports of the candidates. But, looking to the record,
\n\tit appears that nothing is shown against the name of the candidates
\n\tthose who were juniors to the plaintiff and those who were promoted.
\n\tIt further appears from the documents on record that the alleged
\n\tadverse remarks are vague and there is nothing on record to
\n\tsubstantiating such adverse remarks. The defendants have been unable
\n\tto show when suhc remarks were passed, upon what basis same were
\n\tpassed and whensuch remarks were communicated to the plaintiff<\/p>\n
2.\tThe
\nlearned advocate Shri. Joshi has invited my attention towards rule 2
\nof the Forester (Subordinate Forest Service) Recruitment Rules, which
\nreads as under:-\n<\/p>\n
Appointment
\nto the post of Forester in the lower subordinate forest service shall
\nbe made either by promotion of (e) person of proved merit and
\nefficiency from amongst the guards, or (b) by direct selection.\n<\/p>\n
Now,
\nlooking to this provision, it is very clear that the criterion for
\nthe promotion is seniority cum merits. No any special knowledge,
\nefficiency or training is required for the promotion of the Guard as
\na Forester.\n<\/p>\n
\t9.
\n\tShri Joshi cited 26 CLR 1106, K.I.Gadhavi V. Chief Conservator of
\n\tForests,<\/a> wherein the Hon’ble Gujarat High Court has held that it is
\n\ta well laid down principle that when the criterion for promotion is
\n\tseniority cum merit, the seniority prevails in absence of a clear
\n\tfinding that the person concerned is found or positively unfit to be
\n\tpromoted. In this case, there is nothing on the record to show that
\n\tthe petitioner was positively unfit for promotion. A mere vague
\n\tallegation of inefficiency or irregularity without any facts, it
\n\tsubstantiate such an allegation cannot be recorded as positive
\n\tunfitness. There has to be something quite substantial against the
\n\tperson to show that he is not fit to be promoted. That requires much
\n\tgreater demerit than the mere allegation of inefficiency or
\n\tirregularity in attendance. Shri Joshi also cited 1984 GLH OJ 26,
\n\tThakorlal M. Khambholja V. State of Gujarat, wherein the Hon’ble
\n\tGujarat High Court has held that unless the employee found to be
\n\tpositively unfit he ould not be denice promotion his juniors cannot
\n\tbe promoted overlooking his claim. Shri Joshi has also cited 1985
\n\tGLH OJ 60 Smt. Jyotsana Mati V. Y.M.Desai, wherein it was held by
\n\tthe Hon’ble Gujarat High Court that in case of Adverse remarks made
\n\tin the confidential report without any basis , promotion of the
\n\temployee cannot be denied Shri Joshi has also cited 25(1) GLR 264,
\n\tT.C. Bhargav V. State of Gujarat,<\/a> wherein it was held by the Hon’ble
\n\tHigh Court of Gujarat that in case where confidential remarks were
\n\tnot communicated  to the petitioner, such remarks cannot be
\n\tconsidered for assessing his performance at the time of crossing
\n\tefficiency bar. Shri Joshi also cited AIR 1984 SC  531, Amar Kant
\n\tChaudhary V. State of Bihar, wherein it was observed by the Supreme
\n\tCourt that were the case of employee was not considered by Selection
\n\tCommittee for promotion and his name not included in the selection
\n\tlist due to adverse remarks in his confidential roll which were
\n\teither not communicated to him or against which the representation
\n\tmade by him remained undisposed of any though those adverse remarks
\n\thad been expunged by the State Govervnemnt there were not removed
\n\tfrom the confidential roll and subsequent confidential roll which
\n\tcontained entries favourable to the employee were not placed  before
\n\tthe Selection Committee in the next meeting. It was held that the
\n\tdecision of the Selection Committee was vitiated. Shri Joshi has
\n\talso cited 1986(3)SLR 283, Hari Singh Verma V. Union of India,
\n\twherein the Hon’ble Bombay High Court has held that denial of
\n\tpromotion to the petitioner on the basis of uncommunicated adverse
\n\tremarks are illegal. Shri Joshi has also cited 1986(1)SLR 500,
\n\tArunkumar Chatterjee V. South Eastern Railway<\/a> wherein the Hon’ble
\n\tSupreme Court has held that in case where the promotion of the
\n\temployee was illegally denied, in that case the employee is entitled
\n\tto promotion from due date with all consequential benefits.\n<\/p>\n
\t10.\tThus,
\n\tlooking to the above proposition of law, it is apparently clear that
\n\tthe denial of the promotion to the plaintiff can only be justified
\n\tif he is positively found unfit to be promoted. Here in the present
\n\tsuit, there is nothing on record to show that looking to the
\n\tservices of the plaintiff, he was ground positively unfit to be
\n\tpromoted as forester and further when the Hon’ble Gujarat High Court
\n\thas positively held in case of K.I.Saghed V. Chief Conservator of
\n\tForest (Supra)<\/a> which was the similar case to the present one and Mr.
\n\tGadhvi was serving as a Forest Guard in case of which the Hon’ble
\n\tGujarat High Court has held that the criterion for promotion being
\n\tseniority cum mertis, seniority cannot be ignored on the basis of
\n\tbague remarks. Thus, considering the fact that the juniors to the
\n\tplaintiff were promoted overlooking the seniority of the plaintiff
\n\twas the act in itself illegal, unconstitutional and against the
\n\tprinciples of natural justice.\n<\/p>\n
\t11.\tThe
\n\tlearned Trial Judge has well discussed the documents and evidence on
\n\trecord and has also well discussed the law points and the ratio laid
\n\tdown in the said authorities cited before him in his judgment and it
\n\tis found that the judgment of the Learned Trial Judge is based on
\n\tthe sound legal principles and therefore, I am completely in
\n\tagreement with the findings arrived at by the Learned Trial Judge.
\n\tFor the above stated reasons, I answer point Nos. 1 & 2 in the
\n\tnegative. In the result the appeal deserves to be dismissed.”\n<\/p>\n
Both
\n\tLower Courts have concurrent findings on question of law, while
\n\tdeciding matter as per principle laid down in judgment in case of
\n\tK.L.Gadhvi Vs. Chief Conservator of Forest and Others
\n\treported in 1985(2) GLR Page No.1106. According to my
\n\topinion, both Court has rightly interpreted Rule – 2 of
\n\tForester (Subordinate Forest Service) Recruitment Rules and
\n\tconsidered case of each respondent that each respondent are entitle
\n\tfor post of Forester being a promotion post because positive
\n\tdemerits has not been established against respondents by Appellant
\n\tbefore Trial Court as well as Lower Appellate Court. Therefore,
\n\tcontention raised by learned AGP Ms. Mathur cannot be accepted. In
\n\tall Second Appeals, there is no substance, since question of law
\n\tformulated by this Court has been answered by both Courts below, as
\n\tdiscussed above. Therefore, all Second Appeals are dismissed.
\n\tInterim-relief, if any, stands vacated.\n<\/p>\n
Learned
\n\tadvocate Mr.D.M.Thakkar appearing on behalf of respondents submitted
\n\tthat these being an old matters and one or two respondents are
\n\talready retired, whatever service benefits are available in
\n\tpursuance to judgment and decree passed by Trial Court, let it be
\n\tpaid within some reasonable time. Considering submission made by
\n\tlearned advocate Mr.Thakkar, it is directed to appellants to
\n\timplement judgment and decree passed by Trial Court and confirmed by
\n\tLower Appellate Court and this Court, within a period 2(Two) months
\n\tfrom the date of receiving a copy of present order and to pay
\n\tmonetary benefits arising out of that.\n<\/p>\n
[H.K.RATHOD,
\nJ.]<\/p>\n
..mitesh..\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Anvar on 23 December, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SA\/80\/1993 12\/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 80 of 1993 With SECOND APPEAL No. 81 of 1993 With SECOND APPEAL No. 79 of 1993 With SECOND APPEAL No. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-207971","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Anvar on 23 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-anvar-on-23-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Anvar on 23 December, 2010 - 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