In a blow to the government, the Supreme Court on Friday pointed out a “material legal flaw” in the order of defence minister A.K. Antony on the statutory complaint of the Army Chief, Gen. V.K. Singh, on his date-of-birth controversy and gave the government the option to withdraw the order or see it struck down.

The flaw, pointed out by a bench of Justices R.M. Lodha and H.L. Gokhale, was that Mr Antony’s decision of December 30, 2011 as “statutory authority” on the statutory complaint of Gen. Singh, against an earlier order of July 21, 2011 by the ministry of defence on his DoB issue, was on “repeated” legal advice from Attorney-General of India G.E. Vahanvati.
The top court told Mr Vahanvati that when the MoD had decided the application of Gen. Singh on July 21 on “your legal advice”, then how could it decide the matter again “on your legal advice for the second time while disposing his statutory complaint by the defence minister in the capacity of a quasi-judicial body hearing an appeal”.
Both orders had rejected Gen. Singh’s plea that his DoB be treated as May 10, 1951, as recorded in his Rajasthan school board matriculation certificate, instead of May 10, 1950 recorded by him “wrongly” in his UPSC form for the NDA exam in 1966.
“Prima facie it (Dec. 30 order) has to be withdrawn as it is vitiated against the principle of natural justice and principle of ultra vires. You have to cross this hurdle before we proceed further...” the bench told the attorney-general.
Gen. Singh submitted in his petition that he had applied for correction of his DoB to UPSC itself after the NDA results and before his name was recommended to the NDA. He had also stated that he had taken up the matter of recording his correct DoB with the NDA, IMA and Army authorities at different stages.
The top court gave the government the option of withdrawing the order after Mr Vahanvati questioned Gen. Singh’s move to file a petition in the top court instead of going to the Armed Forces Tribunal (AFT) as it was essentially a service matter.
But the bench made it clear that even if the December 30 order was withdrawn, Gen. Singh would have all three options open — to move the AFT, file a petition in the HC, continue with his petition in the SC.
The top court added, “The whole dispute on his DoB has to be decided as per proper judicial process, whether before the apex court or the AF. But why should you not consider the fact that he is retiring in four months? The matter has to come to an end before that, otherwise it will become infructuous.”
The A-G, who earlier argued that he could not “refuse” legal advice to the government, sought a week to take “instructions”. Mr Vahanvati said the defence minister’s decision was based not only on his legal advice but also on other material facts.
However, the bench, unimpressed, said, “We have gone through the order, we are not concerned with its correctness at this stage but we are concerned with the process followed in deciding the statutory complaint. That is vitiated because once they had taken a decision on your opinion, they should have not sought your opinion again.”