New Delhi, Feb. 3: The Supreme Court today found fault with the government's decision-making process on the army chief's age, handing Gen. V.K. Singh a technical victory of sorts but the case is far from settled.
Gen. Singh's petition challenging the government order that set his date of birth at May 10, 1950, despite his claim that it should be May 10, 1951, has neither been admitted nor dismissed by the court.
Ambushed by a verbal barrage in court ' the judges prima facie dubbed the decision-making process which fixed his date of birth on May 10, 1950, as "vitiated" ' the government's lawyers beat a hasty retreat.
"We are not sitting in judicial review on the merits of your decision. We are sitting in judicial review of the decision-making process," Justice R.M. Lodha said.
The bench of Justices Lodha and H.L. Gokhale asked attorney-general G.E. Vahanvati and solicitor-general Rohinton Nariman, who were representing the Centre, whether the government would withdraw the December 30 order or should the court quash it.
The government lawyers asked the court for time to seek instructions. The matter will come up again next Friday (February 10).
The December 30 defence ministry order rejects the contentions made by the army chief in his statutory complaint to defence minister A.K. Antony. As in an order on July 22 last year, this order was also prepared in consultation with attorney-general Vahanvati.
After once taking a decision in July 2011 to fix the general's age at 1950 in "consultation" with the attorney-general, the government should not have referred Gen. Singh's complaint against this decision to the same law officer for a second time, the court observed.
"This is against all principles of natural justice… administrative law," Justice Lodha said. "It does not pass the test of constitutional principles."
The attorney-general said he was "duty-bound" to advise the government every time it was sought.
The court noted the circumstances of the case. "What is the man supposed to do? He only has four months left in office," Justice Lodha observed at one point, virtually giving an ultimatum to the government to either withdraw the December 30 decision and relook at the entire issue or have it quashed.
Gen. Singh retires on May 31, this year, if the government's decision holds. Otherwise, he may be entitled to an extension for 10 months.
"(The defence minister)… did not base his decision on my opinion," Vahanvati insisted. He then tried to portray the general's conduct in poor light.
"There is something very serious in the matter," he said, referring to an earlier attempt to get the opinion from a legal adviser of the law and justice ministry to support the general's claim, bypassing the ministry.
"He also gets the opinion of four former CJIs (Chief Justices of India). This is not proper," Vahanvati insisted. "That is why it was referred to me for an opinion," he claimed.
The attorney-general had said the dispute was a service matter and asked for the petition to be referred to the Armed Forces Tribunal. The court asked Gen. Singh to weigh his options. He has the options of going to the tribunal, the high court or staying with the Supreme Court.
But at one point during the questioning of the government counsel, the court observed that for the peculiar facts of this case, the tribunal was not the remedy.
"The tribunal has members from the army. While in service, they may have been his subordinates or boss…. In this peculiar facts and circumstances, this may not be the most efficacious remedy," Justice Lodha said.
Gen. Singh was represented in court by senior counsel Uday Lalit who said that no seniority list was ever prepared on the basis of his date of birth. Ram Jethmalani was also present in the court and he said later that the army chief had sought his counsel.
When Lodha said the defence minister should have decided the issue on his own, solicitor-general Nariman asked: "Does that mean that a declaration of his age as 1951?"
Justice Lodha said there were many ways out of this. The government could withdraw the December 30 order, he suggested.
The attorney-general was quick to agree. "That complaint was not maintainable and should have been thrown into the dustbin," he said. However, he realised that he may have committed more than required ' and criticised the government he was representing ' and hastily clarified that he would need instructions on this.
"Tell us, we will quash it and send the matter back to the defence minister," Justice Lodha said. "We can't shut our eyes."
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