Thursday, 10 October 2013

RTI Application of 03/09/2013 to CGDA and PCDA (O) and Replies thereof



RTI Application to O/o CGDA


SYS/RTI/CGDA/2013                                                                    03.09. 2013

To,                                                                                         
(1) CPIO (Audit Wing),
Shri Vinod Kumar, IDAS
Senior Dy CGDA (IT), Office of the CGDA,                                                         
Ulan Bator Road, Palam, New Delhi – 110 010

REQUEST FOR INFORMATION
Sir,

1.         Reference is made to CPIO/AT/HQ/2013/II/1184 dated 26.8.2013. A fresh application with signature is submitted herewith. The error is regretted.

2.         The following chronology in Maj Dhanapalan Vs UoI & Others and UoI Vs N.K. Nair & Others is placed below for perusal: -

(a)       Maj (Retd) A K Dhanapalan Vs UoI & Others (OP No 2448/1996, W.A. No. 518/1999 & SLP (CC) No. 5908/2005)
           
(i)        6th February 1996: Maj A.K. Dhanapalan filed the Original Petition (O.P.) No. 2448 of 1996 in the Hon’ble High Court of Kerala challenging deduction of Rank Pay from revised pay.
(ii)       30th January 1997: 5th CPC submitted its Report and Recommendations to Govt of India.
(iii)      31st August 1997: Maj Dhanapalan retires prematurely from the Army.
(iv)      30th September 1997: GoI approved 5th CPC Report vide MoF Notification No. 50 (I)/IC/97.
(v)       19th December 1997: MoD issues SAI/SNI/SAFI 2/S/1998 including the impugned methodology recommended by 5th CPC for fixation of pay of Defence Services Officers.
(vi)      5th October 1998: Learned Single Judge of Hon’ble High Court of Kerala passes judgment upholding Maj Dhanapalan’s O.P. and directs Respondents (UoI & Ors) to make corrections from 01.01.86.
(vii)     23rd February 1999: UoI files Writ Appeal No. 518 of 1999 against judgment of the Single Judge in OP No. 2448 of 1996; UoI does not mention either the 5th CPC Report of issue of SAI No. 2/S/1998 nor seek any approval/views/directions from the Court (please see attached photocopies of MoD letters).
(viii)    December 2000: UoI files additional affidavit (WA 510 of 2000) in WA 518 of 1999 providing clarifications but again there is no mention of 5th CPC or SAI No. 2/S/98.

(ix)      4th July 2003: Division Bench of the Hon’ble High Court of Kerala dismisses UoI’s Writ Appeal No. 518 of 1998 against judgment of Learned Single Judge.
(x)       12th July 2005: Supreme Court dismisses UoI’s Special Leave to Appeal 5908 of 2005.
(xi)      2005-2006: Correspondence between CDA (O) and Maj Dhanapalan wherein CDA (O) informs Maj Dhanapalan that the Kerala High Court judgment does not mention 5th CPC. (Para 5 of Note 10 dated 21/11/12 of O/o CGDA provided under RTI refers).

(b) UoI & Others Vs N. K. Nair & Others ((TP (C) No. 56/2007, IA No. 9/2010 in TP (C) No. 56/2007 & IA No. 11/2013 in IA No. 9/2010) Please also refer to pages 137 to 141 of reply to RTI ibid dated 25.6.2013): -

(i)        2006-2009: Several officers approach High Courts (W.P. No 11056/2006, 11128/2006 etc) and two Petitioners (WP 96/2009 Sunil Kumar & Ors Vs UoI and 34/2009 K.K. Rohatgi & Ors Vs UoI) approached the Hon’ble Supreme Court directly for same benefit (not deducting Rank Pay for re-fixation) of the judgment in the Maj (Retd) Dhanapalan Vs UoI case;

(ii)       All Writ Petitions transferred as UoI Vs N.K. Nair & Ors in TP (C) No. 56 of 2007; Maj (Retd) Dhanapalan is not a litigant.         

(iii)      8th March 2010: Hon’ble Supreme Court heard TP (C) 56 of 2007 and tagged Writ Petitions in UoI Vs N.K. Nair & Others; agrees with the reasoning of the Learned Single Judge in OP 2448/1996 & the Division Bench of the Hon’ble High Court of Kerala in W.A. 518/1999 and orders re-fixation of pay scale without deducting rank pay and payment of arrears with 6% interest p.a. with retrospective effect from 1.1.1986

(iv)      4th September 2012: Hon’ble Supreme Court hears all parties (UoI Vs N K Nair & Others)  in UoI’s IA No. 9 of 2010 in TP (C) 56 of 2007 confirms the Order of 8.3.2010 with one change i.e. interest on arrears to be paid from 1.1.2006;

(v)       21st November 2012: PCDA (O) in No. Tech/0321/4CPC/Court case dated 21 Nov 2012 extensively asserts non-applicability of Judgment/Orders to 5th CPC and 6th CPC, whereas views of PCDA (N) and CDA (AF) are different.

3.         A bare reading of the above facts show that SAI No.2/S/98 was promulgated on 19.12.1997 i.e. when the matter was still being heard by the Ld Single Judge of the Hon’ble High Court of Kerala. In other words, the matter was sub-judice. This is substantiated by MoD (D-Pay/Services) No. 35 (1)/2013/D (Pay/Services)  that (i) MoD does not have any record of having informed Hon’ble High Court of Kerala nor mentioned in Writ Appeal of Additional Affidavit (26.4.13), (ii) MoD not taken up the matter with the Hon’ble High Court while issuing the Special Army Instructions in Dec 1997 (18.6.2013) and (iii) while referring the file through LA (Defence) to the Ld Attorney General ‘it is stated that it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 when the case was sub-judice” (19.7.13). Photocopies of the three letters are attached to this application for easy reference. 

4.         As O/o CGDA is aware, the ibid SAI contained the impugned deduction of Rank Pay for re-fixation after 5th CPC. PCDA (O), in their letter of even reference dated 21 Nov 2012, has relied on SAI No. 2/S/98 in making observations/views negating applicability of Hon’ble Supreme Court’s Orders to period 1.1.96 to 31.12.2005 included in the Services HQ DGL.

5.         PCDA (O)’s views on non-applicability to 5th and 6th CPC is in minority and contrary to the majority view expressed by two Field Controllers viz. PCDA (N) and CDA (AF). In Parliament and in Courts, a majority decision prevails over the decision of the minority. 

6.         Please provide the following information by way of photocopies of letters, directives, emails, FAX, memos, ID Nos., UO Nos. Note(s) of Action, Noting and any other data: -    

(a)       Correspondence from PCDA (O) [or then CDA (O)] to Maj Dhanapalan who retired on 31.9.1997, informing him about SAI No. 2/S/98 being issued on 19.12.1997 (3 months after he retired from Army).

(b)       Correspondence with MoD/Competent Authority based on which PCDA (O) has justified not re-fixing Maj (retd) Dhanapalan’s pay from 1.1.1996 and/or asking him to obtain directions from the Hon’ble High Court of Kerala. 

(c)       Correspondence between O/o CGDA and MoD, the Competent Authority, on the legal status of SAI No. 2/S/98 when O/o CGDA was requested to make comments/observations on the DGL provided by Services HQ,

(d)       Correspondence on request for clarity by O/o CGDA, the Implementing Authority, on legal status of SAI No. 2/S/98 from MoD, the Competent Authority, when O/o CGDA was preparing and furnishing the DGL based on observations of PCDA (O),

(e)       Any intimation by O/o CGDA to the PCDA (O), PCDA (N), CDA (AF) to bear in mind the legality or otherwise of SAI No. 2/S/98 to assist them in making fair, just and objective comments/observations on the DGL provided by Services HQ,

(f)        Correspondence between O/o CGDA and PCDA (N) w.r.t Para 5 (i) as well as CDA (AF) w.r.t. Para 6 (a) that their observations is incorrect/not acceptable.   

7.         Indian Postal Order Number 19F 704634 issued by Indira Nagar PO on 21.6.13 payable to CGDA at New Delhi is attached as application fee. It is requested that the need for this applicant to visit the O/o CGDA to search of information may be dispensed with for reasons stated in an earlier request.

Yours truly,
Sd/----------------
(S Y Savur)
Enclosures:    (1) Photocopies of letters of MoD No. 35 (1)/2013 – D (Pay/Services) stated in para 2 above. 
(2) Indian Postal Order No. 19F 704634 for Rs 10/- payable to CGDA at New Delhi


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Reply of CGDA dated 090913

Controller General of Defence Accounts
Ulan Batar Road, Palam, Delhi Cantt-10

No. CPIO/AT/2013/HQ/II/1196                                                                   Dated: 09/09/2013

To,

The CPIO,
O/o The PCDA (O),
Pune

            Subject: Seeking information under Right to Information Act, 2005
* * * * *

            Please find enclosed herewith a photocopy of the application dated 03/09/2013 alongwith its enclosures in respect of Shri S Y Savur for appropriate action.

            The points 6 (a) to 6 (b) of the above application are transferred in terms of section 6 (3) of RTI Act 2005 as the subject matter of information sought is connected with the functions of your office. The information desired at these points be furnished directly to the applicant under intimation to this HQrs office.

            Requisite application fee of Rs 10/- has been received in the form of IPO.

Encls: - (As above)                                                                                          Sd/----------------------------
                                                                                                                        (S. Murali Krishnan)
                                                                                                                        Sr ACGDA/CPIO
Copy to: -

Shri S Y Savur
141, Jal Vayu Towers,
NGEF Layout,
Indira Nagar (PO),
Bangalore – 560038             : for information w.r.t. your application mentioned above. The information requested at above points of the application pertains to O/o the PCDA (O), Pune. The points of your application have, therefore, been transferred to CPIO of that office. It is requested that the desired information in this regard may be awaited from them. The PCDA (O), Pune is the concerned appellate authority for the actions of CPIO of the office under the said Act. Response with reference to other points will follow from this office in due course.

Sd/-----------------------------
(S. Murali Krishnan)
Sr ACGDA/CPIO
Mailed on 11/9/13
Recd on 18/9/13 by ordinary post      

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Reply of CGDA dated 27 Sep 13

Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt -10

No. CPIO/AT/HQ/2013/II/1196                                                                   Dated: 27/09/2013

To,
Shri S Y Savur
141 Jal Vayu Towers,
NGEF Layout,
Indira Nagar (PO),
Bangalore – 560038

Subject: Seeking Information under RTI Act, 2005

Reference: Your application dated 03/09/2013 and this office letter of even No dated 09/09/2013.

In continuation of this office letter quoted above, it is intimated that the requested information with reference to points 6 (c) to 6 (f) of your above referred application dated 03/09/2013 have been received from the dealing Section being custodian of information on the subject matter and reply/information received in this regard vide U.O. Note No. AT/I/1483-Army/X(PC)/V dated 27/09/2013 is forwarded herewith as desired.

                                                                                                            Sd/--------------------------------
                                                                                                            (S. Murali Krishnan)
Encls: (One page as above)                                                               Sr ACGDA/CPIO  

Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt -10

Subject: Seeking Information under RTI Act, 2005: Shri S Y Savur

Reference: RTI Cell letter No. CPIO/AT/2013/HQ/II/1196 dated 09/09/2013

            With reference to request of the above named applicant at points 6 (c) to 6 (f) of his application dated 03/09/2013, it is stated that all the queries relate to the communications/records originated on the comments of this HQrs office on DGL prepared by Services HQrs and DGL furnished by this HQrs office. All the records for that period have already been furnished to the applicant alongwith noting portion running into total 255 pages with reference to his earlier request vide application dated 13th March 2013 on the same subject. However, Para wise information/reply with regard to present queries is furnished as under for information of the applicant.

Para 6 (c): The available correspondence/record has already been furnished to the applicant. No further correspondence in this regard is available.

Para 6 (d): The available correspondence/record has already been furnished to the applicant. No further correspondence in this regard is available.
 
Para 6 (e): There was no such intimation. And the available correspondence of that period has already been furnished to the applicant. No further correspondence in this regard is available.

Para 6 (f): There was no such correspondence. The available correspondence of that period has already been furnished to the applicant. No further correspondence in this regard is available.
                                                                                                            Sd/---------------------------------
                                                                                                            (J. P. Kukade)
                                                                                                            Sr A.O (AT-I)

RTI Cell (AT) (Local)
UO Note No. AT/I/1483-Army/X(PC)/V dated 27/09/2013
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Reply of PCDA (O) dated 04/10/2013 Received on 10/10/2013

No. Tech/0321/Dhanapalan
O/o The PCDA (O)
Golibar Maidan,
Pune -1
Dated: 04/10/2013
To
Shri S. Y. Savur,
141 Jal Vayu Towers,
NGEF Layout,
Indira Nagar (PO).
Bangalore – 560038

Sub: - Information under Right to Information Act, 2005

Ref: - Your letter No. SYS/RTI/CGDA/2013 dated 03/09/2013 received under CGDA New Delhi letter No. CPIO/AT/2013/HQ/II/1196 dated 09/09/2013 addressed to this office with a copy to you.

            The copies of under mentioned letters are enclosed herewith, with reference to the Information called for under the RTI Act vide your above quoted letter at points 6 (a) and 6 (b):

            i.          Arch/D/158747 dated 12/02/2007           

            ii.         Arch/D/158747 dated 26/04/2007

iii.                Arch/D/158747 dated 16/10/2007
CPIO

Sd/----------------------------------
Rekha Raikar Kumar
Addl CDA
O/o the PCDA (O)
Golibar Maidan,
Pune – 1
Tel No. 020 – 26401103
Fax No. 020 – 26453446
Copy to:

The Sr ACGDA/CPIO                                       …..       for information with reference to HQrs
O/o The CGDA                                                            letter No. CPIO/AT/2013/HQ/II/1196
Ulan Batar Road                                                         dated 09/09/2013

 Sd/----------------------------------
Rekha Raikar Kumar
Addl CDA, CPIO

*          *          *          *          *
No. Arch/D/158747
Office of The CDA (O)
Golibar Maidan,
Pune -411 001
Dated: 8th Feb 2007

To,

Major  A. K. Dhanapalan (Retd),
Tharayil Kausthurabham,
Pathirappally (PO),
Alappuzha – 688521

Sub: -  fixation of pay

Ref: -   Your letters dated 6.11.2006, 2.12.2006 and 20.12.2006 and this office letter of even No. dated 24.11.2006
*****

            The case regarding your pay fixation has been re-examined and the following is mentioned: -

1.         Pay Fixation as on 1.7.1995.     Consequent on your crossing of efficiency bar w.e.f. 1.7.95, your basic pay has been raised from Rs 4200/- to Rs 4350/-. The details of your pay due and drawn are as under: -

                                                            Due as on                                           Drawn as on
Details                                                 1.7.95                                                 1.7.95

Basic Pay                                            Rs 4350/-                                           Rs 4200/-
Rank Pay                                            Rs  600/-                                            Rs  600/-
DA (102% on BP+RP)                                    Rs 5049/-                                           Rs 4896/-
KMA                                                    Rs   100/-                                           Rs  100/-
IR-I                                                       Rs   100/-                                           Rs 100/-
IR-II (10% of BP +RP)                         Rs   495/-                                           Rs  480/-
                                               
                                                            Rs 10694/-                                         Rs 10376/-

Hence, a difference of Rs 318/- p.m. for the period from 1.7.1995 to 31.12.1995 (Rs 1908/-) was due to you out of which Rs 1818/- have been remitted to you vide cheque No. 539433 dated 12/10/06 and only Rs 90/- is due for payment for which a cheque number ??? has been issued to your Bankers.

Since you were not entitled to draw stagnation increment (subsequent words scored out are ‘Rs 495/- as on 1.7.1995’) pay due (subsequent words scored out ‘pay due as per re-fixation i.e. Rs 10, 999/- and arrears /) of Rs 11844/- on this account as mentioned in para (I) of your letter dated 6.11.2006 (subsequent words scored out ‘are not correct and not due for payment.’)                                          

2.         Pay Fixation as on 1.1.1996                   - You have been admitted Basic pay of Rs 4350/- p.m. w.e.f. 1.7.95. The minimum of pay scale of the rank of Major in the pre-revised scale was Rs 3400/- and you have drawn eight increments thereafter. Para 5 (g) of SAI 2/S/98 states that the fixation thus made shall ensure that every officer will get at least one increment in the revised scale of pay for every ____ (illegible) increments (inclusive of stagnation increment(s) if any in the existing scale of pay.  

            As such, the pay has been fixed correctly to Rs 12,250/- as on 1.1.196 i.e. Rs 11, 600/- minimum of the scale of Major in the revised scale plus Rs 650/- (two increments @ Rs 325/- p.m. for every three increments drawn in the pre-revised scale).

            It is also mentioned that the court judgment of Kerala High Court given on the petition filed by you is for not deducting Rank Pay at the time of pay fixation as on 1.1.86 i.e. IVth RPC. Further, it is not applicable for pay fixation as on 1.1.96 consequent on Vth Pay Commission.

            In view of the above, it is reiterated that your  pay as on 1.1.96 has been fixed correctly and you are not entitled to get any further arrears of pay and allowances on this account.
                                                                                                                        Sd/--------------------
                                                                                                                        Dy CDA (Tech)
                                                                                                                        2/2

Copt to: -

Shri Ajay Goel,
Dy Director,
Military Secretary Branch,
MS-8A,
Integrated HQ of MoD (Army),
South Block,
New Delhi – 110 011            with reference to your letter No. 37852/Gen/Misc/MS-8A dated 16 Nov 2006

                                                                                                                        Sd/--------------------------
                                                                                                                        Dy CDA (Tech)
                                                                                                                        2/2

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Court Case


No. Arch/D/158747
Office of The CDA (O)
Golibar Maidan,
Pune -411 001
Dated: 26/4/07

To,

Major  A. K. Dhanapalan (Retd),
Tharayil Kausthurabham,
Pathirappally (PO),
Alappuzha – 688521

Sub: -  fixation of pay w.e.f 1/1/96 in r/o Maj A. K. Dhanapalan SL 2805 W,  A/C No. Arch/D/158747

Ref: -   Your letters No. 2805W/RPR 96 dated 2/07

*****

            Parawise reply r/o your letter under reference are furnished as under: -


1)         Arrears upto 31.12.95 are now since settled.

2)         Arrears due (1.1.96 to 31.8.97) consequent on re-fixation of pay w.e.f. 1.1.86. Your basic pay as on 31.12.95 becomes Rs 4350/-. As such your pay fixation as on 1.1.96 as per provisions of SAI 2/S/98 works out as under: -

            Basic Pay                    Rs 4350
            Rank Pay                    Rs 600
DA (111 %)                 Rs 5495
IR I                               Rs  100
IR II                              Rs  495 (10% of Rs 4350 + 600)
+ 40% of BP + RP      Rs 1980
Total                            Rs 13020
(-) Rank Pay                Rs    1200

            Revised total              Rs 11820

            Next above                 Rs 12250/-

As such there is no change in pay fixation as already done and the same  has already been paid to you w.e.f 1/1/96.


3)         As regards the minimum pay of the integrated scale for Major Rs 3400/-, your attention is invited to Para 6 (a) (ii) of the SAI 1/S/87 (copy enclosed), for grant of one increment for every three increments in the existing scale, it is stated that you were Capt as on 1.1.86 and drawing pay @ Rs 3200/- p.m. + Rank pay of Rs 200/-, Subsequent on your promotion as A/Major you were paid pay @ Rs 3800/- plus rank pay of Rs 600/-  (emphasis supplied). It is further clarified that the minimum basic pay for the rank of Major as per the 4th Pay Commission was Rs 3400/-. As such, the rule increment for every three increments in your case is applicable as under: Rs 3500-3600-3700 (1), 3800-3900 – 4050 (2) Rs 4200-4350-4500 (3).

As you reached Rs 4350/- as on 1.1.96, you are entitled for two increments only which has already been given to you (Rs 11600+325+325= 12250) as mentioned above. Since there is no change in basic pay as on 1.1.96, no further arrears of pay and allowances are due to you in this accord.

4)         Regarding the rank pay, it was already mentioned vide our letter of even No. dated 12/2/07 that the court judgment of Kerala High Court given on the petition filed by you is for not deducting Rank pay at the time of pay fixation as on 1/1/86 i.e. IVth RPC. Further it is not applicable for pay fixation as on 1/1/96 consequent on Vth pay commission.
                                                                                                                        Sd/--------------------------
                                                                                                                        ACDA (O) 18/4
                                                                                                                        Sd/----- 02/04/07

Copy to

Shri Avinash Goyal
Dy Dir,
MS Br MS-8A,
Int HQ of MoD (Army)
South Block, New Delhi -110 011 – with reference to your letter no. 37587/Gen/Misc/MS-8A dated 16/11/2006 and this office letter of even No dated 12/2/2007. A copy of letter No 2805W/RPR-96/dt 2/07 received from Mak A. K. Dhanapalan is forwarded herewith for your perusal and necessary action please.                            
Sd/--------------------------
                                                                                                                        ACDA (O) 18/4
                                                                                                                        Sd/----- 02/04/07
*          *          *          *          *
No. Arch/D/158747
Office of The CDA (O)
Golibar Maidan,
Pune -411 001
Dated: 16/10/07

To,

Major  A. K. Dhanapalan (Retd),
Tharayil Kausthurabham,
Pathirappally (PO),
Alappuzha – 688521

Sub: -  Pay fixation under RPR-96

Ref: -   Your letters No. Nil dated 15th July 2007 (Received in this office on 28.08.2007
*          *          *          *          *
            Reply to your letter under reference is furnished as under: -

Para 1 -           The pay fixation has been done as per SAI – 2/S/98.

Para 2-            Additional increment – in this connection, a copy of para 5 (g) of SAI 2/S/98 is enclosed herewith for ready reference.

                        Your contention that no pay fixation has been done on promotion to the rank of Major is totally incorrect and not acceptable. Since only one integrated scale of pay  was admissible to the Officers of the rank of Lt to Brig i.e. 2300-100-3900-150-5100 and there was no other scale of pay on promotion from Capt to Major, you continued to draw the basic pay of Rs 3800/- per month. However , the rank pay of Rs 600/- for Maj was admitted against Rs 200/- for Capt from the date of your promotion.

            In this connection a copy of Rule 13 (a), (b) and (c) of SAI 1/S/87 is forwarded herewith for your information which provides regulation of pay on promotion subsequent to 01.01.86. Your pay has been correctly fixed with reference to the provisions of SAI 1/S/87 from 1.1.86 on subsequent promotion from Capt to Major. All this has already been explained to you in para 3 of this Office letter of even No 26,04. 2007.

As regards number of increments to be granted at the time of fixation of pay on 01.01.1996, you were Major as on 1.1.96 and not Capt. As per para 5 (f) Note 2, the minimum pay prescribed for Major is Rs 3400 and the next stage starts from 3500-3600-3700 only as already explained in para 3 of this Office letter of even No dt. 26.04.2007, and hence not repeated here again. Therefore, you are entitled for 2 increments only and not 3 for fixation of pay as on 01.01.96.

Para 3 -           Deduction of Rank Pay -        It was mentioned vide our letter of even No. dat 12/02/07 that the court judgment of Kerala High Court given on the petition filed by you is for not deducting rank pay at the time of pay fixation as on 01.01.1986 i.e. IVth RPC. Further, it is not applicable for pay fixation 01.01.1996 consequent on Vth pay commission.

                                                                                                                        Sd/----------------------------
                                                                                                                        (I L Yaden) 15/10
                                                                                                                        Addl CDA (O)
                                                                                                                                    Sd/--- 10/9/07
Copy to: -

Shri Ajay Goel
Dy Director
MS Br MS-8A, Int HQ of MoD (Army)
South Block
New Delhi – 110 011            - with reference to your HQ letter No. 37587/Gen/Misc/MS-8A dt. 16.11.2006 and this Office letters of even No. de 12.02.2007 and 26.04.2007. A copy of letter dated 15.07.2007 received from Maj A K Dhanapalan Retd is forwarded herewith for your perusal and necessary action please

Copy to: -

The CGDA
West Block V, R K Puram
New Delhi – 110 066            -           With reference to HQ Office last reference  No. AI/I/1483/Army-X  dated 28.06.2006. A copy of Officer’s application dt 15.07.2007 is forwarded herewith for information of HQ office.
            
Sd/----------------------------
                                                                                                                        (I L Yaden) 15/10
                                                                                                                        Addl CDA (O)
                                                                                                                                    Sd/--- 10/9/07


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