The apex court will hear Feb 10 the army chief’s plea to establish his date of birth as May 10, 1951 instead of May 10, 1950.
The discrepancy in the highly decorated soldier’s date of birth stems from two sets of records with the Adjutant General’s and Military Secretary’s branches of the Indian Army.
The defence ministry had in December rejected the General’s statutory complaint on setting his year of birth as 1950, going by which he would have to retire May 31 this year. The government had also stated last July that his date of birth is May 10, 1950.
Both the orders were issued on the basis of opinions from Attorney General G.E. Vahanvati, the government’s highest legal officer.
An apex court bench of Justices R.M. Lodha and H.L. Gokhale observed that it found an “administrative defect” in the decision-making process on Singh’s age. It questioned how the same legal officer could be asked for advice twice over on the same issue.
“We are not concerned as much with the decision but we are concerned with the decision-making process which is vitiated,” the court observed.
“Once you (attorney general) have committed an opinion to an authority to decide on the law, how can you again give your opinion in deciding the complaint? The problem is fundamental,” the judges told Vahanvati, who appeared for the defence ministry.
“We are not concerned with the correctness of the decision. But the decision-making process is vitiated.”
They said the the material on record “will not withstand the test of principle of natural justice and principle of ultra vires”.
The judges gave the option of withdrawing the December order to the government after Vahanvati contended that the complaint filed by the army chief was not maintainable.
They said the ministry could revise the order based on an independent legal opinion or the court will quash it.
The court adjourned the hearing till Feb 10 to enable the attorney general take instructions from the government on the fate of the Dec 30, 2011 order.
The court also asked Singh’s counsel to decide if it wants to challenge in the apex court or lower courts, including Armed Forces Tribunal.
Singh’s lawyer Puneet Bali refused to interpret the court’s observation, saying the matter was sub judice. He said: “The court has asked for clarifications on the Dec 30 order. The court has basically gone on the principle of justice. It is too premature to say what is going to happen.”
Sources said the defence ministry was now looking at withdrawing the December order and seeking independent legal opinion on decide the general’s statutory complaint that would be placed before the court at the next hearing.
The sources said the government was also trying to work on an out-of-court settlement with the army chief and his meeting with Finance Minister Pranab Mukherjee on Thursday night was a starter to break the impasse.
The meeting ended without any breakthrough but sources said the two sides were trying to work out a compromise after the first round in the court went against the government but “not necessarily in favour of the army chief”.