New Delhi: Round one of his battle on the age issue went to Army Chief Gen V K Singh when the Supreme Court on Friday gave an option to the government to "withdraw" its order rejecting statutory complaint saying, it “appears to be vitiated" and against the "principle of natural justice". Giving the government a week's time and posting the matter for further hearing on February 10, the Court said there were other remedies available for Gen Singh if the government withdraws its December 30 order. (Agencies)
Posing questions to the government, a Bench comprising justices R M Lodha and H L Gokhale said 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 or the High Court.
However, later the bench observed that approaching the Tribunal would not be the best option as only four months are left for him to retire.
It also said that though the tribunal is headed by a retired judge of the Apex Court, 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.
The Apex Court felt that the December 30, 2011 order rejecting Gen Singh's statutory complaint for treating his age as May 10, 1951 was "vitiated" as the decision taken by the authority was in consultation with opinion of the Attorney General on whose opinion also the first order was passed on July 21 last year.
"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 said.
The court, which said that the December 30 order was against the principle of natural justice and principle of ultra vires, asked Attorney General G E Vahanvati to take instructions whether the Government would like to withdraw its December 30, 2011 order. The AG said he would do so.
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.
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.
At the outset, the bench questioned the decision-making process of the government and said "when the statutory complaint was made to correct the date of both to the Defence Ministry and how can again AG's opinion be taken once the decision was taken on his opinion".
"The material on record will not withstand the test of principle of natural justice and principle of ultra vires," the bench further said.
The Court said though Government is within its right to seek legal opinion from highest law officer, it wanted to know to what extent AG's opinion influenced the decision making process as he had "reiterated" his opinion when the Army Chief had filed his statutory complaint.
It said there was "no independent evaluation" of Gen Singh's complaint and pointed out that the same legal authority had given his opinion in both the cases.
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.
Jethmalani explains his absence from SC
Army chief Gen V K Singh, who is engaged in a legal battle with the Centre over his age row, appeared fully prepared in the Supreme Court where his team of lawyers also included noted jurist Ram Jethmalani and some other senior advocates.
However, Jethmalani could not advance arguments to buttress Singh's stand when the matter came for hearing as he was in another courtroom.
When the matter had come up for hearing in the routine course, Jethmalani was present but senior advocate U U Lalit, who has settled Singh's petition, was unable to reach, prompting the junior advocates asking a bench headed by justice R M Lodha to take up the case later on.
After sometime, seeing that Lalit was present in the court, the bench took up the matter for hearing in the absence of Jethmalani.
Asked for the reasons for his absence during the crucial hearing, Jethmalani said when the matter was passed over, he came out of the courtroom as "the pass over did not suit me".
"I was asked by him (Singh) to appear. I went to the court on Friday and found that Mr. Lalit was already engaged and he was available," Jethmalani said and added a "passover was suggested by the court but passover did suit me, so I came away."
"Lalit had not been instructed that I am appearing", he added.
He further said that he was "approached on Thursday night" by Gen Singh and that he is "very much available" if his client requires him.
New Delhi: Round one of his battle on the age issue went to Army Chief Gen V K Singh when the Supreme Court on Friday gave an option to the government to "withdraw" its order rejecting statutory complaint saying, it “appears to be vitiated" and against the "principle of natural justice".
Giving the government a week's time and posting the matter for further hearing on February 10, the Court said there were other remedies available for Gen Singh if the government withdraws its December 30 order.