The Supreme Court on Friday took the Union government to task over the issue of age of the Chief of the Army Staff, Gen. V.K. Singh, saying the government decision-making process went against the principles of natural justice and the Constitution.

The court questioned the process that fixed the date of birth of Gen. Singh as May 10, 1950. It said the entire exercise “appears to be vitiated.”

A Bench of Justices R.M. Lodha and H.L. Gokhale was hearing a writ petition Gen. Singh had filed against the order determining his date of birth as May 10, 1950, instead of May 10, 1951.

Justice Lodha told Attorney-General G.E. Vahanvati: “You withdraw Defence Minister A.K. Antony's order dated December 30, 2011, or if you agree, we will quash the order.” Mr. Vahanvati replied: “I cannot withdraw [it] on my own. I will take instructions [from the government].”

When he termed the petition not maintainable, Justice Lodha said: “What is the man supposed to do? He has only four months left in office.”

But the judge clarified that the court was not concerned with the decision per se, but the process for determining the age. “We are not sitting in judicial review of the merits of your decision.” After taking a decision on July 21, 2011 to fix the General's year of birth as 1950, in “consultation” with the Attorney-General, the government could not have referred his complaint against this decision to the statutory authority (Mr. Antony) and then back to the Attorney-General for a second time. “This is against all principles of natural justice and administrative law. It does not pass the test of constitutional principles.”

Earlier, senior counsel Uday Lalit, appearing for Gen. Singh, submitted that no seniority list was ever prepared on the basis of his date of birth.

Justice Lodha wondered how Mr. Vahanvati, after advising initially the Adjutant-General branch on the General's age, could have been asked again for an opinion on the very same issue.

Mr. Vahanvati explained that as the Attorney-General, he was “duty-bound” to advise the government each time his opinion was sought. The Defence Minister, he said, was not bound by his advice, and he had made a decision after an independent examination of facts and records. “He did not base his decision on my opinion.”

Mr. Vahanvati said: “There is something very serious in the matter as there was an attempt to get the opinion from a legal adviser of the Law and Justice Ministry to support the General's claim, bypassing the Ministry. He also gets the opinion of four former Chief Justices of India. This is not proper. That is why it was referred to me for an opinion.”

He said the July 21, 2011 decision was an Army officer's, not the Minister's. He said he would not appear in the case, if the court so desired. “But you never said a complaint against it was not maintainable,” Justice Lodha said. “If you had said it, the matter would have ended there. Since you did not, the decision [of the Minister] is against administrative law and natural justice and is vitiated, if it is affected by the earlier consultation.”

Solicitor-General Rohinton Nariman said the Minister's decision was based on an “independent” evaluation and on “merits.” He insisted that the issue first go to the Armed Forces Tribunal. But Justice Lodha countered him, saying: “The Tribunal has members from the Army. While in service, they may have been his subordinates or boss. In this peculiar facts and circumstances, this may not be the most efficacious remedy,” Justice Lodha said. “Prima facie, the material on record should withstand the tests of natural justice. Once you cross the hurdle, other issues will arise.”

The Bench directed that the matter be listed for further hearing on February 10.

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