Dear Members
This discussion has gone completely "off teh rails" and needs
moderation intervention.
1 This is an RTI group. Where is the RTI angle so far ?
2. What is the locus standi of our members to discuss this topic ?
To put the discussion back on track.
http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2165We should discuss this in the light of the RTI which started this
business, and the views of this gentleman who says he is a senior
advocate in the Supreme Court.
Sarbajit.
<snip>
Army Chief birth date row: Who is right, who is wrong?
Bhim Singh
03 Feb 2012
An undesirable and unhealthy controversy relating to the date of birth
of four-star General Vijay Kumar Singh has flooded the media and upset
the public, thanks to the games played by the higher echelons of power
in the South and North Blocks. The Supreme Court had an opportunity to
address this issue of massive public interest, but failed to act in
accordance with the principles laid down in its judgments vis-Ã -vis
Public Interest Litigation.
A Division Bench headed by the Chief Justice of India was carried more
by its anger than logic while hearing a Public Interest Litigation
filed by Grenadiers Association, Rohtak, an NGO, and did not address a
national issue regarding the legitimacy of the decision of the
Ministry of Law & Justice which clearly held that record of service on
the date of birth of Army Chief General V.K. Singh shall be read as 10
May 1951. This record of service notification was issued by the
Adjutant General's Branch dated 25 Feb 2011, which was reversed by a
branch of the defence Ministry with mala-fide intention and ulterior
motives.
Former Chief Justice J.S. Verma while giving his opinion precisely
stated that the date of birth of General V.K. Singh has to be read as
is mentioned in his school leaving certificate (matriculation) which
is 10 May 1951. Interestingly, there has been no challenge to the
authenticity of his date of birth mentioned in his matriculation
certificate. The former Chief Justice had given his opinion on an
official request by the Adjutant General's Branch of Army
Headquarters. His 'considered' opinion was ignored by the Defence
Ministry and silenced by the judgment of the Supreme Court, which said
it shall not entertain any petition if it carries the opinion of a
retired Judge of the Supreme Court.
An angry Chief Justice, while presiding over three judge bench,
refused to even hear the mentioning of opinion of a former CJI. The
four former Chief Justices who had given their opinion on the
General's date of birth had stated categorically that Gen V.K. Singh's
DoB stands as 10 May 1951 as mentioned in his school certificate.
Justice Verma in his introductory remarks has observed that, "Any
controversy about the Army Chief's DOB is not in the interest of the
nation as also the morale of the Army."
He concluded that, "The other contextual observation is of greater
national significance. In the prevailing environment of a crusade
against corruption, supported by the Union Govt. with the Prime
Minister repeatedly promising 'Zero Tolerance' to corruption, any
injustice done to a high public functionary whose public image
according to media reports is of combating corruption, is bound to
erode the sincerity of this promise. Recent media reports give this
impression of Army Chief, General V.K. Singh, for not sparing even the
highest in the Armed Forces of their involvement in the Housing and
Land Scams. I am afraid edging out such an Army Chief before the end
of his legitimate tenure on this pretext may give the public
impression of silencing the voice of an 'inconvenient truth'. That
would be unfortunate and detrimental to the national interest. I do
hope this does not happen."
The other former Chief Justices, namely, Mr. Justice R.C. Lahoti, Mr.
Justice G.B. Pattnaik and Mr. Justice V.N. Khare, in their respective
legal opinions firmly stood on the ground that the matriculation
certificate has to be the foundation of proof of date of birth. The
important issue involved in the entire episode deserves the attention
of law-makers, jurists, and intellectuals in the country.
Can a Department of the Union Government, such as the Ministry of
Defence, change, modify or reverse the decision taken by another
Ministry of the Union? This very important issue shall answer
questions raised in hundreds of thousands of words scripted in leading
journals, newspapers by galaxies of noted writers and editors in their
continuous tirade to justify the wrong on the front pages of their
respective newspapers.
Just one look at the most relevant documents answers all questions on
the subject. The opinion of the Legal Advisor of the Ministry of
Defence has been systematically ignored by the Ministry. The Legal
Advisor submitted a two-page report which was drafted for the reply of
an RTI application under section 6, with regard to the date of birth
of General V.K. Singh and other Lt. Generals. The Legal Advisor in his
findings submitted to the Ministry on 14 February2011 came to the
conclusion that:
- Identity Card issued by IMA in June 1970 at the time of
Commissioning and thereafter records date of birth as 10 May 1951
- As per 10th Class School Certificate, Rajasthan Board, date
of birth is 10 May 1951
- All ACRs and course reports maintain date of birth as 10 May 1951
- Medical Examination since first examination before entering
NDA and thereafter also lists date of birth as 10 May 1951
- As per documents maintained by MP-5 and IMA, the date of
birth is recorded as 10 May 1951
- The Legal Advisor in this report further verified that, "We
have examined the matter and perused the relevant records. We have
also perused decision of the Hon'ble Supreme Court in State of MP vs.
Mohan Lal Sharma (2002) 7 SCC 719 wherein it has been held that Date
of Birth recorded in Matriculation Certificate, held, carries a
greater evidential value than that contained in a certificate given by
the retired Head Master of the School or in the Horoscope."
- The Legal Advisor concluded his report thus , "It is evident
that the officer was issued an Identity Card by Indian Ministry
Academy in 1970 at the time of his passing out, is having a DOB as
10.05.1951. Further, all the CRs, Course Reports and the documents
maintained by the Manpower Planning (Official Custodian of Officers
Record), the DOB is recorded as 10.05.1951. There is overwhelming
evidence on record to show that the DOB of the Officer is 10.05.1951
and the only entry against it is the form filled up at the time of
applying for NDA. Such an entry is to be treated as an aberration and
credence is to be accorded to the DOB recorded in High School
Certificate issued by the Rajasthan Board."
Those raising an alarm on the issue may have a look at the findings of
the Legal Advisor of the Ministry of Defence and understand that they
were accepted by the Ministry of Law & Justice after due consideration
and application of mind. The Adjutant General's Branch in their
official notification dated 25 Feb 2011, addressed to the Ministry of
Defence as signed by Maj. General S.C. Nair, ADG, MP, directed the
Ministry to perfect their record of service of General V.K. Singh with
a clear direction that, "Date of birth shall be recorded as 10 May
1951 as has been recorded in his High School Certificate (Rajasthan
Board), which is in conformity with all records maintained by the AG
Branch."
The controversy was compounded into travesty when the Ministry of
Defence issued an office memorandum on 21 July 2011 with ulterior
motive, least realizing the gravity of the entire situation, by
reversing the findings of the Legal Advisor of the Ministry of Defence
which were duly accepted by the Ministry of Law & Justice, only to
outclass a visionary general.
An opinion was sponsored through the Attorney-General of India, a
Senior Law Assistant of the Union of India. He failed to impress
public opinion on the subject. He took an excuse to justify his
opinion that AG Branch had not provided full facts before the Legal
Advisor of the Ministry of Defence; this was contradicted by the Legal
Advisor who said he had consulted the entire record in detail before
formulating the legal advice to the Ministry.
Secondly, the Attorney-General concocted another excuse of 'wolf &
lamb' story, claiming that reference as mentioned above dated 14 Feb
2011 was not rooted through Administrative Ministry, which was
rebutted heavily in the legal advice itself.
The third excuse the Attorney-General found was that the Legal Advisor
of the Ministry of Defence had not sought approval of the Law
Secretary and the Law Minister! It is important to mention here that
the findings of the Legal Advisor were accepted by the Ministry of Law
& Justice (as stated above) and that fact was admitted in the
notification of 14 Feb 2011.
It is pertinent that the memorandum of 21 July 2011 was issued by the
Joint Secretary to the Govt. of India without any approval or
mentioning of approval by the Cabinet Secretary. In such a situation,
there was disagreement on the issue between the Ministry of Law &
Justice and the Ministry of Defence on 25 Feb 2011 on the issue of
date of birth.
The entire exercise to evolve a strategy through a memorandum was made
only to reduce the DOB of General V.K. Singh from 10 May 1951 to 10
May 1950. The concluding remarks in the memorandum of the Ministry of
Defence in which vested interests have tried to gain their point by
illegal, unconstitutional and mala fide means stand exposed.
It said, "The Central Government therefore declares Order No.
12918/RTI/MP-6(a) dated February 25, 2011 directing to amend the date
of birth of General V.K. Singh (IC-24173), COAS to read as May 10,
1951 instead of May 10, 1950 as recorded, as null and void and non
est. The officer's official date of birth will continue to be
maintained as May 10, 1950 (10th May Nineteen Hundred Fifty)."
Wherefrom was this authoritarian power to declare a notification of
the Ministry of Law & Justice as null and void drawn? Is it not a
dangerous precedent in the history of the world's largest democracy?
If four-star Generals can be treated this way, what will happen to the
fundamental rights of the wretched of the earth?
One must understand that the date of birth of General V.K. Singh as
mentioned in his matriculation certificate has not been challenged at
any stage or by any party whatsoever. Secondly, the Legal Advisor of
the Ministry of Defence has submitted the entire investigation report
which was duly approved by the Ministry of Law & Justice holding the
Date of Birth of General V.K. Singh as 10 May 1951, as stands recorded
in his matriculation certificate.
Thirdly, an opinion of a Senior Law Assistant in the Ministry of Law &
Justice i.e. Attorney-General, cannot change or reverse the legitimate
findings of the Legal Advisor of the Ministry of Defence which were
duly accepted by the Ministry of Law & Justice and approved by the
Ministry of Defence.
The important question of law which has to be answered by the Supreme
Court of India when the writ petition filed by Gen V.K. Singh comes up
for hearing, will pertain to the decision by the Chief Justice of
India that the Supreme Court shall not entertain any opinion of
retired judges even if sought by a lawful agency.
Does that mean that an opinion of the Attorney General, a senior law
officer of the Department of Law, shall be binding on the Government
and the Courts? As mentioned in his considered opinion, former Chief
Justice J.S. Verma is perfectly right when he opined on validity of
the report of the Legal Advisor of the Ministry of Defence that,
"I have reached the conclusion that the above opinion dated 14.02.2011
reiterating that the correct DOB of General V.K. Singh is 10 May 1951
as per the authentic service records is sound and there is no occasion
now to change it to an earlier date."
Let everyone judge for himself/herself as to who is right and who is wrong.
The author is a Sr. Advocate, Supreme Court of India & Member,
National Integration Council. He represented the Grenadiers
Association in its PIL on the subject, which was dismissed by the
Supreme Court so as not to prejudice the petition of the Army Chief
