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SC posers to Defence Ministry on Army Chief’s age row
R Sedhuraman
Legal Correspondent

New Delhi, February 3
The government today had a tough time defending Defence Minister AK Antony’s decision to treat Army Chief Gen VK Singh’s date of birth (DoB) as May 10, 1950 and not as May 10, 1951, as the Supreme Court repeatedly questioned the logic behind the minister’s order based on the second advice of Attorney General GE Vahanvati.

Pointing out that Antony’s ruling had come on a statutory complaint of Gen Singh challenging the MoD’s similar decision that was also taken on the AG’s advice, a Bench comprising Justices RM Lodha and HL Gokhale found fault with the procedure followed by Antony.

The Bench noted that the act of seeking the AG’s advice, particularly when Gen Singh had in a way questioned an identical opinion given by the AG earlier, “appears to have vitiated” the decision-making process and as such the procedure adopted by Antony would not “stand the test of the principles of natural justice or the ultra vires”, the basic features of the Constitution.

After the remarks by the Bench, Vahanvati, appearing for the Centre, said he would take instructions from the government as to whether Antony’s order should be withdrawn to enable Gen Singh to file a fresh statutory complaint with the Armed Forces Tribunal (AFT). At this, the Bench posted the next hearing for February 10.

The Bench was hearing for the first time a petition filed by Gen VK Singh, challenging two orders -- one passed on July 21, 2011 by the ministry and another on December 30, 2011 by Antony. Both orders said his DoB would be treated as 1950 and not as 1951, as claimed by him on the basis of his matriculation certificate and several other documents.

During the arguments that lasted nearly one hour, the AG contended that the minister had taken his decision “independent” of his opinion or of the views of four former Chief Justices of India -- JS Verma, RC Lahoti, GB Patnaik and VN Khare - that had been provided by Gen Singh. Unconvinced, the Bench asked the AG as to how he knew that his opinion had no bearing on the decision taken by the minister. On the other hand, the AG questioned the maintainability of Gen Singh’s petition, contending that the DoB dispute was essentially a service matter and as such he could not have come to the apex court bypassing the AFT.

At this, the Bench said this might pose practical problems as some AFT members could be either junior or senior to Gen Singh. Further, Gen Singh could approach the AFT only if Antony’s December 30 order, passed on a statutory complaint, was withdrawn or quashed.

At one stage, the Bench said it could quash the minister’s order, if the government so wanted to enable Gen Singh to approach the AFT. At the same time, it pointed out that it would be difficult for Gen Singh to get the issue resolved before his retirement that was only four months away in the event of his DoB being treated as 1950. Also, anyway the matter would have to come to the SC for final adjudication even after the AFT ruling, they pointed out.

The Bench also wanted to know the significance of the Army List that showed Gen Singh’s age as 1950.

court observations

l The entire process of deciding General VK Singh’s age “appears to be vitiated”

l Why was the Attorney General consulted a second time when the first order was passed on the basis of his opinion?

l “No independent evaluation” of Gen Singh’s complaint since the AG had given his opinion in both cases

l There are other remedies available for Gen Singh if the government withdraws its December 30 order


The age controversy

l The controversy stems from two sets of records with the Adjutant General and Military Secretary branches of the Army, one shows May 10, 1951 and the other May 10, 1950

l The Gen, citing birth records, says he was born in 1951 and is not due to retire until March 2013

l But Military Secretary Branch’s set of records show he was born in 1950, which means Singh is due to retire in May this year





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