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Sunday, July 22, 2018

SC brokers peace,General backs down

Withdraws petition after govt underlines faith,SC says we respect your pain.

Written by Krishnadas Rajagopal | New Delhi | Published: February 10, 2012 10:19:36 pm

THANKS to give and take by both sides nudged along by a Supreme Court — that blended both diplomacy and law — curtains were drawn today on the legal controversy over the Army Chief General Vijay Kumar Singh’s date of birth.

The bench disposed of his petition after the General said that he did not want to press his case for a final determination on whether he was born in 1950 or 1951. This came after the government withdrew its December 30,2011 order rejecting his statutory complaint and gave repeated assurances that at no point did it question the integrity of the “graceful soldier”.

Speaking to The Indian Express this evening,General Singh said: “The Supreme Court has given its verdict. And like every democratic citizen of this country,I hold the court in the highest regard. It has upheld my integrity and honour while asking the government to withdraw the December 30 order,against which I had gone to the court. I thank the hon’ble Supreme Court.”

A bench of Justices R M Lodha and H L Gokhale struck a conciliatory chord that led the government to assure that it had contested Singh’s petition only as a “matter of principle.” Attorney General G E Vahanvati went to the extent of writing down the government’s assurance and hand it over to the bench,which recorded the exact intent in its final written order.

The court made it plain that its power of judicial review under the extraordinary jurisdiction of Article 32 of the Constitution was only confined to the “recognition of age as per the service records” and not unearth the “actual age” of the Army Chief.

It pointed that the Army List — which Singh challenged for “discrepancies” — records Singh’s year of birth as 1950,and it was a vital document,baptised by a Presidential Order. Secondly,the Bench observed that there was no evidence to suggest that the UPSC records were later amended to record Singh’s date of birth as 1951 and not 1950. He had admitted in his petition to have “inadvertently” written 1950 as his birth year in his NDA application form as a boy of 14.

While the court referred to the “pain” of having two dates of birth recorded,it said that Singh had accepted — in letters written in 2008 and in 2009 — his date of birth as May 10,1950. And that he could not now go back on his “commitment”. The court also pointed to how he received three promotions to his final appointment as Chief on these acceptances.

“Were you resisting? You had given them the final call to record your date of birth. This is stated,re-stated and reiterated by you.” Justice Lodha asked the Chief’s counsel and senior advocate,U U Lalit.

Said Justice Lodha: “Why do you want at this pinnacle to wreck this litigation? We have full faith in you to defend this country. Why do you want to re-open all this now? We understand the pain in your heart of having your date of birth not being corrected and recorded as 1951,but ultimately you decided to leave it to the authorities and this decision of yours was a well-thought of one,and not taken in a rush of blood. And you have respected your commitment repeatedly. The two letters in 2008 and one letter in November 2009 is still relevant.”

“We respect your pain,” Justice Lodha said. “I can understand if you have been harassed or you have suffered by the government decision. But you have achieved,you have got what a person aspires for in the army. Why should you,having reached there,having given the commitments repeatedly. why this mess now?

“Very unfortunate,” Justice Gokhale agreed.

“Perhaps I am being looked at by some people who say that this General is lying,” Lalit responded after a moment’s pause.

“No,no,you have been honest,candid. But in January 2008,you left it to the authorities to take a final call. You said you will abide by their decision. If they have taken a decision you must honour the commitment. This (May 10,1950) may not be the actual date of birth,but the dispute before us is not that,it is only regarding the recognition of date of birth according to your official records. Remember,service is governed by rules and the recognised date does not suffer any perversity or error as agitated under our extraordinary jurisdiction. That is our prima facie view,” Justice Lodha said.

“Yes,no prejudice was done to you,” Justice Gokhale echoed.

“And still they (the Union of India) have faith in you. I fail to understand how by us recording your date of birth as May 10,1951 and with you retiring on May 31,2012 it will help you,” Justice Lodha observed.

“The idea of this petition is not to stick to office. As counsel I cannot say certain things.” Lalit hinted at other reasons for his agitation.

To this,Justice Lodha shot back: “I will not use the expression dirty linen washed in public. But if it has come to such a stage,you can wash. But we thought that both parties,being dignified.”

The morning session,which went well into the lunch break,ended with Justice Lodha advising the General that “wise are those who move with the wind”.

“As Chief you continue to serve the country as you have done for the last 38 years. This verdict should not come in the way of your duty. For us it is that a litigant has come and the case decided,” Justice Lodha said,giving time for Lalit to take instructions from his client.

“In any other matter we would not have spared two minutes. We thought that this is not a matter which should be left to a Tribunal,that we should hear it ourselves,” Justice Lodha said.

At 2 pm,when the Bench assembled,Lalit got up with a recommendation that at least the civil authorities should accept year of birth as 1951 to which the court said it could not make a pronouncement to that extent as the case was confined to the date as per the service records and no more.

With Lalit agreeing to not press the matter any further,the court set out to dictate the order,remarking “judges do what other avoid to do”.

In the order,it said: “As a matter of fact,the question before us in this writ petition is not about the determination of the actual date of birth,but it concerns the recognition of a particular date of birth of the petitioner (Singh) by the Respondent (Union of India) in the official service records”.

In the next and final paragraph,the court concluded that “in view of the statement made by the Attorney General and the limited controversy in the petition as indicated above,senior advocate UU Lalit for the petitioner does not wish to press the matter further.”

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