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."
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