SC poses questions to Govt on Army Chief age row

Posting the matter for hearing on February 10, the court sought to know whether the Government would like to withdraw its December 30, 2011 order.

Defence Minister A K Antony had issued an order on December 30 turning down the statutory complaint of Gen Singh that his date of birth be treated in Army`s records as May 10, 1951 and not as May 10, 1950.

Posing questions to the Government, the bench of Justices R M Lodha and H L Gokhale was of the view that the Defence Ministry`s order of July 21, 2011 holding the date of birth as May 10, 1950 was based on the opinion of Attorney General and so was the case when the December 30 order was passed on the statutory complaint.

After the court asked whether the Government would like to withdraw the December 30 order, Attorney general G E Vahanvati said he will seek instruction from the government on the issue.

The court said there were other remedies available for Gen Singh if the government withdraws its December 30 order.

It said in that case Gen Singh`s statutory complaint against July 21 order can be reconsidered by the authorities and there was also an option for him to approach the Armed Forces Tribunal.

During the hearing, the bench observed that when it was held that Gen Singh`s complaint was not maintainable, the only remedy he had was to approach the apex court.

From the outset, the bench questioned the decision-making process of the government.

"We are not concerned as much with the decision but we are concerned with the decision-making process which is vitiated as the July 21 order was also based on the consideration of opinion given by the Attorney General and when the statutory complaint of the Army Chief was decided on December 30, there also Attorney General`s opinion was taken into consideration," the Bench observed.

The bench further said, "The material on record will not withstand the test of principle of natural justice and principle of ultra vires."

The Attoreny General and the Solicitor General Rohinton Nariman defended the government action and said on the facts no prejudice is caused to Gen Singh.

Reacting to the court order, one of Gen Singh`s counsel Punit Bali said they were definitely happy with the order but would not go into the merits of the case since it is sub judice.

He said the main question raised by the court was can the authority which rejected the General`s statutory complaint base its decision on the advice of the Attorney General who had earlier advised the Government to come to a conclusion in its July 21 order.

Telling the media not to read too much, Bali said it is normal procedure for courts to raise queries.

While the Attorney General was defending his action in giving opinion, the bench said "we are more concerned about Constitutional principles--whether this order of December 30 stands the test of constitutional principle of natural justice and principle of ultra vires.

It also asked the AG whether the government wants to withdraw the December 30 order.

"Be clear whether you want to withdraw this December 30 order," it said. To this the Attorney General replied, "I will take instructions." "You take your position about this order," the court told him. The bench also asked the government as to why should the matter be not brought to an end.

While suggestions were being made that Gen Singh can also approach the Armed Force Tribunal, the bench said, only four months are left for him to retire and it is probably not the best remedy.

The bench also said that though the tribunal is headed by its retired judge, there are also members who come from the services and there is a possibility that they could either be junior or senior to Gen Singh at some point of time.

Gen Singh had moved the apex court in January this year accusing the government of treating him in a manner reflecting total lack of adherence to procedure and principles of natural justice in deciding his age.

The Army Chief took the unprecedented step of dragging the government to the apex court after the Defence Ministry had insisted upon treating May 10, 1950, as his official date of birth, necessitating his retirement on May 31 this year.

Challenging the government`s decision to determine May 10, 1950, as his date of birth and not May 10, 1951, Gen Singh, in a 68-page petition, has maintained that his acceptance of 1950 as the year of his birth was given in good faith at the behest of the then chief of Army Staff and not due to agreement with the conclusion of the Military Secretary`s Branch.

"The respondent (government) needs to explain as to why the senior most officer of the Army could be treated in a manner which reflects total lack of procedure and principles of natural justice and that too on an opinion obtained from the Attorney General," his petition said.

Gen Singh stated that the government`s action and conduct in refusing to accept his contention on his birth date was affecting his image before the general public and the armed forces.

It was his right to have a "dignified life", he pleaded in the petition, adding that an army chief has "a right to retire with dignity".

Referring to the ministry`s orders of December 30 and earlier rejecting his case, the Army Chief has said that these orders have "conveniently ignored" his matriculation certificate, entire service record including entry into service, promotions and annual confidential reports.

He has stated that being a highly decorated officer, he had received all his awards, decorations and promotions as per the date of birth being 10.5.1951.