New Delhi, Feb 3: Round one of his battle on the age issue went to Army Chief Gen V K Singh when the Supreme Court today today gave an option to the government to “withdraw” its order rejecting statutory complaint saying, it “appears to be vitiated” and against the “principle of natural justice”.
Giving the government a week's time and posting the matter for further hearing on Feb 10, the Court said there were other remedies available for Gen Singh if the government withdraws its December 30 order.
Posing questions to the government, a Bench comprising justices R M Lodha and H L Gokhale said said in that case Gen Singh's statutory complaint against July 21 order can be reconsidered by the authorities and there was also an option for him to approach the Armed Forces Tribunal or the High Court.
However, later the bench observed that approaching the Tribunal would not be the best option as only four months are left for him to retire.
It also said that though the tribunal is headed by a retired judge of the apex court, there are also members who come from the services and there is a possibility that they could either be junior or senior to Gen Singh at some point of time.
The apex court felt that the December 30, 2011 order rejecting Gen Singh's statutory complaint for treating his age as May 10, 1951 was “vitiated” as the decision taken by the authority was in consultation with opinion of the Attorney General on whose opinion also the first order was passed on July 21 last year.
“We are not concerned as much with the decision but we are concerned with the decision-making process which is vitiated as the July 21 order was also based on the consideration of opinion given by the Attorney General and when the statutory complaint of the Army Chief was decided on December 30, there also Attorney General's opinion was taken into consideration,” the bench said.
The court, which said that the December 30 order was against the principle of natural justice and principle of ultra vires, asked Attorney General G E Vahanvati to take instructions whether the Government would like to withdraw its December 30, 2011 order. The AG said he would do so.
Defence Minister A K Antony had issued an order on December 30 turning down the statutory complaint of Gen Singh that his date of birth be treated in Army's records as May 10, 1951 and not as May 10, 1950.
During the hearing, the bench observed that when it was held that Gen Singh's complaint was not maintainable, the only remedy he had was to approach the apex court.
At the outset, the bench questioned the decision-making process of the government and said “when the statutory complaint was made to correct the date of both to the Defence Ministry and how can again AG's opinion be taken once the decision was taken on his opinion”.
“The material on record will not withstand the test of principle of natural justice and principle of ultra vires,” the bench further said.
The Court said though Government is within its right to seek legal opinion from highest law officer, it wanted to know to what extent AG's opinion influenced the decision making process as he had “reiterated” his opinion when the Army Chief had filed his statutory complaint.
It said there was “no independent evaluation” of Gen Singh's complaint and pointed out that the same legal authority had given his opinion in both the cases.
“It was on your opinion that the July 21 order was passed and when the statutory complaint was made again your opinion is sought,” the bench told the Attorney General.
“There is no problem in you giving opinion but the problem here is that the order passed by the authority (Defence Minister) in the name of the President is in consultation with your opinion,” the bench said.
“What we have understood is that the decision-making process appears to have been vitiated,” the bench said and added that the AG's opininion was in writing and the “impression is also that decision is on the basis of the AG opinion”.
“We have to see that the basic of the administrative law that the priciple of natural justice and principle of ultra vires is not violated and we have to ensure that the decision making process is not influenced by the AG's consultation,” the bench said.
Vahanvati, who was facing tough questions from the bench, said he has “no personal stake in the matter” and once offered to withdraw himself from arguing the case.
Solicitor General Rohinton Nariman joined the AG in defending the government action and said on the facts no prejudice is caused to Gen Singh.
However, the bench said “we are more concerned about Constitutional principles—whether this order of December 30 stands the test of constitutional principle of natural justice and principle of ultra vires.
“If we find that the decision which is before us is legally unsustainable because of violation of principle of natural justice and principle of ultra vires then it will have to go,” and asked the AG whether the government wants to withdraw the December 30 order.
“Be clear whether you want to withdraw this December 30 order, or we quash the order” it said.
To this the Attorney General replied, “I will take instructions.”
“You take your position about this order,” the court told him.
The bench also asked the government as to “why should the matter be not brought to an end”.
It also asked Singh's counsel U U Lalit to “take position” keeping in view the strong objections raised by the Government.
The bench said if the government withdraws the December 30 order, Gen Singh “can file statutory complaint again” which will be referred to the Raksha Mantri.
However, it also clarified that it was neither “foreclosing” government objections nor “expressing any opinion on the merits of the case.
Government said there were 25 disputed questions on facts of the case.