Monday, January 9, 2012

The Ageless General

A comprehensive legal cum logical view on DOB in MAIL TODAY 7th EDIT by lawyer Dushyant Dave. This should put to rest any hopes of any "correction" of dates.

by Dushyant Dave, Advocate

In 1983 the Supreme Court defined why and what an ideal Armed Force should be in the following words: "It is elementary that a highly disciplined and efficient Armed Force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Every effort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the Armed Forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperilling the human rights of the entire people of the country."

Supreme Court

The public debate on the age of the Chief of Army staff, possibly generated because of the request by General V.K. Singh himself, seriously undermines the morale and strict discipline of one of the finest Armed Forces of the world, that the Indian Army is. Every Indian is proud of its Armed Forces and is bemused by this public spectacle.

The law as to correction of birth dates profoundly stated by the Supreme Court in Union of India vs Harnam Singh is:-

"The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record.......A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous."

The rationale for this explained by the Supreme Court in Home Department vs R. Kirubakaran is:-

"An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury... ... Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order."

In rejecting his request the Ministry of Defence appears to have acted as per the law governing the country. Indisputably General Singh has not suffered any injustice much less "real injustice" having been appointed Chief of the staff with a tenure of over two years.


The government could not have ignored the fact that while seeking entry into the National Defence Academy, a highly respectable and professional organisation, the date of birth claimed was 10th May 1950 which was also carried on to the Army List published in 1974-75. It is absolutely unclear why and how a wrong birth date could have at all been given by the son of a serving Army Officer. Could it be a simple mistake or was it given to gain an undue advantage at that stage? If the latter is true, then the matter assumes a very different complexion. If the initial entry is a question mark then questions can also be raised about subsequent events in the long career. But it would be in the interests of all to bury the past as it is too difficult to decipher the reasons for giving a wrong birth date and even if one wants to go into it, it may produce unfortunate results.

The nation is not interested in all this. But to be fair to him, it must be said that the original matriculation certificate showing 1951 as the birth year was indeed sent to the authority though six years later in 1971. This is not to reflect on General Singh's integrity, which is beyond doubt, but to put the point in correct perspective. What does really go against him is the fact that though he cites documentary evidence to support his claim, he never seriously and much
less legally challenged the authorities.

Perhaps, he thought it fit to let things rest for better reasons. The Rules require a claim for correction of birth date to be made within two years. True, some part of the record does mention 1951 as the birth year but then that is not conclusive as per the Rules.

This confusion is further compounded to the detriment of General Singh's case since in 2008, well before his appointment as the Chief, he was indeed called upon to confirm 1950 as the birth year. It seems that on three occasions between January and July 2008 he accepted this position in writing. May be he did it in "organisational interest" or with "reservations" but once he accepted this position, in law he is estopped from contending otherwise. On moral grounds he is absolutely forbidden to argue to the contrary. The case of some of the commentators that he was "coerced" or "left with little choice" is, to say the least, a sad commentary on an officer expected to maintain absolute integrity and one who leads one of the finest military institutions in the world and perhaps does disservice to him too.


The attempt, by some sympathisers of General Singh, to have this issue resolved by the Supreme Court through a PIL is, to say the least, unfortunate. His own attempt to re-kindle this issue by purportedly meeting senior ministers, if true, is equally distasteful. Once he accepted the highest position that he could have aspired for, even with reservations, on the basis of the birth date recorded on the date of entry, he himself should have gracefully allowed the issue to rest in the larger interests of the Armed Forces and the Nation.

Any attempt, directly or indirectly, to keep the issue alive is clearly contrary to what the Supreme Court described, as the very soul of an Army : "High Morale" and "Strict Discipline" and may lead to "Chaos" and "Ruination". General Singh, having a distinguished record, must himself put the debate to rest by declaring that he is no longer keen to have the date changed at this stage in the larger interests of the nation. Public interest will suffer irreparably unless this controversy is allowed to rest forthwith.

The writer is a senior advocate

Sent by B Bates 


  1. The article above has been written by someone at the behest of someone else who has (have) an axe to grind.

    The point about “discipline and morale” of the armed forces has nothing to do with Gen VK Singh’s DoB issue.

    The armed forces have been screwed by every pay commission over the years, so much so, the status and salary of armed forces personnel today is only a fraction of what it was 60 years ago. THAT has affected the “morale” of the armed forces more than anything else, not the stand taken by the Gen VK Singh.

    Gen VK Singh is fully within his rights to take up his case as he seems fit.

    Gp Capt VK Vidyadhar

  2. Further to my message below I would like to add the following.

    Every pay commission degraded the status and salary of the armed forces. This did not happen by chance, the babus were responsible for this deliberate, wilful, cunning, malicious act while at the same time lining their own nests and enhancing their own salary and perks. The situation in the armed forces is now so bad that a career in the armed forces in one of the LAST choices of our bright youngsters.

    These same babus are now talking about “morale” in the armed forces. That’s a laugh. What happened to their perception of “morale” when they were screwing the armed forces and depriving them of their rightful dues? Couldn’t they see the effect on “morale” THEN?

    Gp Capt VK Vidyadhar

  3. A couple of days back MAIL TODAY published a mischievous centerpiece "Ageless General" by Mr Dushyant Dave, a 'senior advocate' as the paper announced.

    Noticing its blatant bias, including selective quoting of various Court Rulings, twisting/distorting facts of the case, I wrote to MAIL TODAY. Obviously, and as expected, it was not published.

    I Now find I am not alone in my observations about Mr Dave's article. I place below, the article, my letter and some views received by me. The advantage of the NET is that the monopoly of the print media in dissemination of news or views masquerading as news, can be countered to a fairly large audience- fortunately, the one having an interest in the issue.

    An interesting Post Script. In the article Mr Dave mentions "words to the effect", that the issue of Chiefs' DOB does not interest the nation.

    Question. Then why is the 'eminent Lawyer' wasting his time and ours, and Mail Today devoting not only space on his write up but alsoTwo pages next day, over the issue?
    Mr Dave, issues concerning the Chief of Army Staff, and particularly those related to shabby treatment meted out to him-OUR CHIEF- like this messy 'palace intrigue' controversy, have to interest us, particularly the Veteran community.

    With Warm Regards,
    Col RP Chaturvedi,

  4. Sir,

    Thanks, well said.

    The pettiness and partiality of the India Today group stands out loud and clear with the current issue of India Today. That the force may NOW feel alienated as a consequence seems of little importance to them.

    The murky levels- a USP of babudom- to which this non issue is being carried, with the entire resources at the command of the establishment deployed, creates a doubt on what the unpublished issues are. They don't seem related to a bid for couple of months extra in office.

    That seems obviously illogical. Nobody, me, you, or importantly the Chief with so much talent and experience could be that illogical.

    Alienating the chief seems a motivated move and apparently of most importance to someone. What is it?

    Also, the reason of a public debate, murky by the day, can not be so simplistic a matter as JUST the DOB.

    And some sections of the media are obviously playing ball. Unconcerned about the effect THEIR reports, much more than the stand taken by the Chief of Army Staff, may affect the morale, but also call into question, the credibility and honesty of such publications. India Today as a magazine lacks empathy and understanding for the Forces. Not only the current issue, I remember their distasteful cover showing a soldier's body sprawled in blood, lying somewhere in Sri Lanka, during Op Pawan. Gory it was. And on the Cover? I could not even understand then, as I can not even now, whether this Psyops is directed FOR or AGAINST our OWN ARMY????

    With Warm Regards,
    Col RP Chaturvedi,

    Please also see for an Article by Sheru Thapliyal and Manoj Joshi.
    http://epaper.mailtoday.in/epaperhome.aspx?issue=812012 )

  5. There is no doubt that the bureacracy is behind every demotion we have faced, especially from the 4th Pay Commission and including the Sixth CPC. But we should not forget, that each regressive step was taken, with full knowledge and sadly, acceptance of those at the helm of affairs in the Armed Forces. If they believed that those who because of the steep pyrimidal structure, could not rise to the next rank and therefore rightly deserved to be punished by a lowering of Status as compared to the Organised Group A Services, then I grant them the courage of their conviction. But if they had acquiesed for other considerations,then I need not say any more.

    I have read so much of the COAS defending his honour on the DoB issue. What about the honour of the Service Officer and the fratenity that looks up to him?

    Rear Adm Alan O'Leary(Retd)
    Rear Adm Stanley OLeary

  6. Part 1

    Comments of Air Cmde Murugan in Two Parts

    I am commenting on this forward with some hesitation as I am not particularly interested what will be the final outcome on change of DOB. Since this was forwarded with comments from my dear friend Balraj Bates, I thought that I should highlight some irrationalities in logic in the Article by a Lawyer who is trained to project an argument singling out from past judgements what is favourable to his case/client and concealing what is not. A lawyer is paid to do this and he does it well. I do not give him any additional credit.
    My concern is about larger questions raised by this case. Our Advocate friend again singles out portions of some judgement by Supreme Court extolling virtues of Discipline and Morale. This is indeed poor understanding of Discipline in Defence Forces. Does injustice to an individual by a heartless Bureaucracy siting in their ivory towers contribute to high morale and discipline? If one can inflict injustice to a high ranking Officer heading a hierarchical organisation, how can people at lower level expect to be treated?. We all saw this during these few years how a justifiable demand of OROP was treated by Bureaucracy.

    Bureaucracy is an organisational form evolved post-industrialisation. Bureaucracy administers or manages people and activities of routine nature through standardised procedures, past history and conventions, rules and regulations and also interpretation of law provided by its own in-house specialists. Change in DOB is a routine activity and there are stipulations about change in DOB. Gen VKS did not follow these procedures and hence he should consider as having born on a day that he was not even conceived by his Mother. All because, GEN VKS did not represent his case, before a particular date, as specified by Bureaucracy, for its EASE of administration of routine activities. Shall I twist this irrational logic little further with a simple example.
    2+2 is four as long as you solved this problem before (say) Sunday as per current rule. But on Monday, if you say 2+2 is indeed 4, you are wrong because you did not give the answer before Sunday. Giving the answer by Sunday is administratively convenient to Bureaucracy. But, to give zero marks to a student who gave this correct answer, it is injustice. It is of course, irrational to many of us because a stipulation of Bureaucracy that answer be given by Sunday, cannot veto mathematical or Scientific logic. Truth cannot be erased based on administrative convenience of Bureaucracy.

    I am making it very clear that this acceptance of a fact about DOB has nothing to do with future, his extensions etc that have been brought in unnecessarily. Please distinguish the fact or truth about DOB (that is a natural event) from extension, retirement etc that are indeed man made rules and procedures for convenience of a Bureaucracy.

    As Balraj Bates has rightly pointed out in one of the earliest mails, the problem was at first instance, created by ARMY HEADQUARTERS itself by maintaining two sets of records by two different branches. No body including the Government or these high priced, opinionated Lawyers have asked for an enquiry how such inconsistent records were maintained by two branches of a Government. (That will be embarrassment to almighty Govt you know!!!)
    Gen VKS as an honourable Soldier, has an indomitable right to ask why a Date of Birth that is not true should be perpetuated as his DOB even when he is dead and gone. What does the Govt gain by refusing an Officer's request except to say that this will open Pandora's Box of the administration? (this is like the logic that OROP is well deserved but if granted, Civilians also will ask for it). While everyone ignores the blunders committed by an organ of Bureaucracy in resolving this issue of DOB long time ago, they now claim that they will face embarrassment if this case is settled based on actual facts. How clever the bureaucracy is?

    Air Cmde (retd)

    Part 2 follows

  7. Part 2

    Another point often pointed out by some civilian lawyers is that GEN VKS had accepted the official DOB in writing before his promotions. This is a fig leaf to conceal the blunders of Administration. We all know the real value of such certificates obtained by administration, dangling baits both positive and negative. By all accounts, this episode brings out poor administration by Defence HQ (mainly Army HQ).

    Instead of using this opportunity to set things right, they talk about honour of the high post of COAS, being compromised. Why no body is talking about a COAS who by means not very honourable, obtained a certificate from GEN VKS, violating a truth about DOB? These are the basic reasons that we are in total mess in many aspects of our administration.

    Finally, I would like to submit that we should look at this DOB issue in a larger context of Scientific rationality. To day some concepts well enshrined and admired by many about democracy are being questioned. They say that Parliament by law is only authorised to enact law for the People while some others say that the affected people have right to coerce the members of Parliament in complete transparency, to frame a law that is considered effective by many in Civil Society representing large sections of People.

    The market Capitalism provided Western Nations with unprecedented prosperity during many decades in the past is under cross roads as the Economies of these prosperous Nations lie tattered. The very economic and political rationality of market capitalism is questioned by the Youth and affected today. The Scientific rationality of Marxism is being questioned with the inglorious fall of Socialist Nations.

    Religious Dogmas which levy great penalty on the Poor of the World are being Challenged. Under such context, it is inconceivable that DOB case should be treated as closed as it did not meet the requirements Of "rules, Procedures and regulations" evolved by a selfish Bureaucracy to safe guard its flanks and not to render justice to an Individual. It is time that we questioned the soundness of concepts of Bureaucracy in rendering Justice to those who have no other avenues for agitation.

    Sorry for a long explanation on an important issue today.

    Air Cmde (Retd)


  8. A point has been made repeatedly in this group that the date stated in the matriculation etc certificate(s) submitted with the UPSC application form is sacrosanct and the final word with regard to the DoB of the applicant, as per UPSC notification and, hence, VKS has no case. To me, THIS appears to have been the very point the COAS has strenuously sought to make all along! The date ENTERED in the application form by his School teacher WAS and IS at variance with the date stated in EVERY SINGLE certificate (Birth, School Leaving & Matriculation) and document (post natal MH discharge form of his mother, his Passport, his father's Regimental Records etc). His plea does not seem to be for a 'change' of the DoB, it is for a 'correction' to it; legally, there is a distinct difference, I am told.

    That the necessary printed certificates attached with the UPSC application form must take precedence over an error made in hand in one of its columns, appears to be the very essence of the COAS' case.

    I also believe it is the latter date of birth which consistently appears also in ALL Service documents beginning with VKS's graduation from the NDA/IMA, his arrival report in his first unit of posting & every single ACR filled by him and ID Card issued to him during his entire career.

    During routine scrutiny of applications at the UPSC, this discrepancy ought to have been noticed and sought to be corrected by the Commission (which invariably is, in my long UPSC experience) for once and for all, because it is indeed THE DATE STATED IN THE ATTACHED CERTIFICATE(s) which was & is sacrosanct and is the last & final word in the matter of DoB of a candidate, and NOT what is entered by hand in the app form by the applicant or someone in his behalf, through error or otherwise. Depending upon the availability of time, such applications are either rejected outright or sent back for resubmission to the Commission after the necessary correction by the applicant. If this did not happen in this case...... it was a freak occurrence, in my experience!

    Also, at Army HQ, the custodian of DoB records, I am told, is the AG and NOT the MS and AG's records from Day-1 seem to show the latter date as the correct DoB.

    Quite independent of the assumed or attributed 'intentions' of VKS behind taking (according to many, wrongly being referred to as 'raking'!) up the issue, the two anomalies that perhaps needed to be addressed first and foremost by MOD, BEFORE allowing the matter to escalate and the issue to get convoluted, were the initial oversight at the UPSC (if there was one) and the subsequent mismatch between the AG's & MS' records at AHQ.

    I hold no brief for VKS but a recent mail in this regard by Gen Harwant Singh on the line of succession and the one below by Air Cmde Murugan are quite to-the-point and relevant.

    Once again, this is only an input of such facts as I have gathered from mails in this and other not an opinion or view on the speculated implications of the case.

    Air Mshl SG Inamdar
    Satish Inamdar