New Delhi: Army Chief Gen V K Singh seems to have won the first round in the legal battle on the age row with the Supreme Court on Friday saying the manner in which his statutory complaint was rejected by the Government "appears to be vitiated".

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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.