Friday, June 1, 2012

Why the controversy now, asks court, and tells general to retreat and keep his word


General V.K. Singh got praise for his four decades of service but little else from the Supreme Court, which today refused to intervene on the army chief’s date of birth and asked him why he was creating “such a controversy” now after having earlier committed to accept whatever was in the “best interests” of the force.

At the end of a two-hour hearing, the two-judge bench gave Singh, who it described as a “meritorious” officer that the court was “proud” of, the option to withdraw his petition. “You withdraw. We want to ensure that as army chief you serve the country as you have served for years now. This (petition) should not come in the way of your commitment (to the country), in public interest, in national interest,” Justice R.M. Lodha said.

After making a last-ditch bid to persuade the court by offering to resign “within 48 hours” if his year of birth in official records was accepted as 1951 instead of 1950, the army chief withdrew his petition.

The court then disposed of the matter as “not pressed”, with the face-saver of an assurance from the attorney-general that the government had full “faith” in Singh and his capability to lead the Indian Army. The government had only contested his petition on a matter of principle, Attorney-General G.E. Vahanvati said.

At the outset, the government in deference to the court’s wish agreed to withdraw parts of its December 30, 2011, order that had made adverse references to Singh.

The dispute is over two records of the chief’s date of birth maintained by the army headquarters — the adjutant general’s branch shows it as May 10, 1951, the date on Singh’s matriculation certificate. The military secretary’s branch reflects it as May 10, 1950. The government has gone by the military secretariat, which is responsible for promotions and postings, and the army chief had appealed against this decision months before he is due to retire on May 31.

 The court saw nothing wrong with the general approaching it. “We have no doubts that you have been honestly pursuing your date of birth,” Justice Lodha said. “Right from the beginning you have been saying this. You have not come up suddenly for having some benefits.”

“You have just come to the court to point out the government’s fault in not correcting your date of birth… There is no malice in your seeking to restore the date of birth as May 10, 1951,” the court said. “It is unfortunate, inadvertent or a matter of destiny, whatever you call. You have been very candid and honest.”

Such matters “should not have been dragged into the public domain and should have been handled properly”, it further said.

But the bench expressed its inability to declare any date as his actual date of birth while sitting in judicial review on the government decision.

“There is a civilian authority, you have to accept it,” Justice H.L. Gokhale said at one point. “Let’s be fair to them, they could have very well said: ‘We don’t want you as a chief.’ But they didn’t.”

Justice Gokhale reminded the general that if he wanted to have his date of birth determined, he would have to file a civil suit and appear in the witness box and give evidence in support of his claims.

“This is not adjudication for determining date of birth but concerns the recognition of a particular date of birth by the respondent (Union of India) in the official service records,” the two-judge bench said.

The bench examined three letters, dated January 24, 2008, January 30, 2008 and November 12, 2009, to shrug off Singh’s plea.

“You say that you will accept what is determined in the best interests of the organisation. Why are you ruining it at this stage? Creating such a controversy?” Justice Lodha asked, citing the letters.

“We can’t deny that you hold such a high post. Why do you want to reopen all these issues? With all the pain in your heart, you ultimately left it to authorities. They have taken a decision. It was well thought out and well deliberated. You respected your commitment repeatedly. Why do you want to get out of it now?”

Justice Lodha also said that it would have been a different case had he been victimised, harassed and had not achieved anything. “You have achieved what you had to in the army. Why should a person of your stature, having given a commitment, go back on it now?”

The date of birth discrepancy should have been corrected at the UPSC level. But it wasn’t. “What can we do now?” he asked Singh’s counsel Uday Lalit.

“The records were reconciled at the stage of commissioning. UPSC records should have shown 1951,” Lalit contended, suggesting the army chief should not be penalised because this wasn’t done. “After that every single document has been 1951,” he said.

The bench, however, refused to accept his arguments. “All the documents at the threshold show your date of birth as May 10, 1950.”

Even as late as 2008, the military secretary’s branch and the adjutant general showed different dates of birth, it said.

“The matter was then discussed at the highest level. You were called, you accepted your date of birth as 1950…. if you had insisted on 1951, you would have exposed yourself to disciplinary action. Therefore, the concerned officer writes to bring to a close the controversy. You are reconciled to it (date of birth as 1950),” Justice Lodha observed.

“Having given that assurance, it would not behove a meritorious officer to go back on that position,” he said. “It is extremely unfortunate. You have every right to agitate your grievance in the highest court. It was an unfortunate inadvertence. But you accepted it in 2008, 2009.”

“We have to find fault with the government of India in deciding your date of birth,” the judge continued.

But Justice Gokhale was quick to cut him short. “It is not fair to criticise the ministry. Thereafter, you become chief,” he said.

After the two-hour hearing in a packed courtroom, the bench asked Singh: “Does it (date of birth as determined by the authorities) suffer from such a flaw that it has to be corrected by exercise of our extraordinary powers?”

Lalit insisted on arguing the case further, saying there was no such thing as official date of birth as opposed to actual date of birth. Justice Lodha shot down his arguments: “With all the inconsistencies in the records maintained by two branches in the army, you left it to the authorities to take a final call. This commitment must also be honoured.”

Lalit offered that the army chief would step down within 48 hours should the court agree to change his date of birth to May 10, 1951, and spoke of the morale of the 13-lakh strong force. “I have been wronged,” he maintained.

This prompted the court to ask: “Has the stage come where all the dirty linen has to be washed in public?”

The bench then asked Lalit to check with Singh whether he intended to press on further.

The attorney-general intervened at this stage to assure the court that the government had full faith in Singh.

Justice Lodha told Lalit: “You have rightly and gracefully, as a dignified officer, you left it to the government to act objectively. You will accept this.”

Justice Gokhale interjected: “You could have gone to court then. But you became chief of army staff.”

After Singh agreed to withdraw his petition, the court disposed of it.

“Given the constraints of judicial review, the government decision (on date of birth) stands,” the two-judge bench ruled at 2pm after a short recess. “Wise people are those who move with the winds.”

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