New Delhi: The United Progressive Alliance (UPA) government’s political problems were compounded after the Supreme Court signalled that there was merit enough in hearing army chief General V.K. Singh’s plea in a dispute over his age, even as it castigated the defence ministry for the manner in which it had dealt with the sticky issue.

According to the apex court, the method employed by the defence ministry to reject the general’s claim that he was born in 1951 and not 1950 was “vitiated”.

Accordingly, a bench of justices R.M. Lodha and H.L. Gokhale asked the government to consider withdrawing its latest order, which wanted the army to change Singh’s year of birth from 1951 to 1950, or the court would “quash it”. The court said, “We simply can’t shut our eyes” to Singh’s petition, since he has “only four more months” in office.

A file photo of Army chief General VK Singh.

The court said that the 30 December order of the defence ministry concluding that Singh was born in 1950 prima facie appeared to be against the principles of natural justice since it was based yet again on Vahanvati’s advice, whose opinion had been used to dismiss the army chief’s first petition.

The government had passed an order on 21 July last year asking the army to change Singh’s year of birth to 1950, based on an opinion from Vahanvati.

However, Singh appealed against this to the defence ministry, which once again sought Vahanvati’s opinion. The 30 December order was also based on his opinion, which caused the court to observe that the order was “vitiated”.

Vahanvati justified this by arguing that if a matter was referred to him for legal advice by the Union government, it was his “constitutional duty” under Article 76 (2) to do so.

Singh had directly approached the apex court on 16 January, making him the first serving Indian defence chief to take the government to the Supreme Court on a service issue.

WATCH VIDEO

Mint’s Nikhil Kanekal says the defence ministry is on the back foot again after the Supreme Court criticized the way it dealt with army chief General V.K. Singh’s age issue

Loading video...

His writ petition questioned the government’s decision to treat his date of birth as 10 May 1950 instead of 10 May 1951, as claimed by him on the basis of his matriculation certificate and other documents. Singh had said the matter was related to his “honour and integrity”. He questioned why the government had chosen to “change” his date of birth after he spent 36 years in service and was promoted throughout his career.

To be sure, there is a discrepancy in the defence ministry’s own records on Singh’s date of birth. While documents in the military secretary’s branch record it as 10 May 1950, those with the adjutant general’s branch put it at 10 May 1951.

The military secretary’s branch handles postings and promotions of army personnel and the adjutant general’s branch handles issues related to their pay and perks. It is also the custodian of all official documents.

The defence ministry wants the latter to change the date to 10 May 1950. If this order of the government stands the test in court, Singh will have to retire on 31 May.

Singh’s date of retirement could impact the line of succession in the army. If Singh retires this year, Lieutenant General Bikram Singh, currently serving as the eastern army commander, becomes eligible for the position of army chief. If he retires in 2013, Lt. Gen. K.T. Patnaik becomes eligible for the post.

Vahanvati and Nariman had argued that Gen. Singh’s petition under Article 32 of the Constitution was not maintainable since he had by-passed the Armed Forces Tribunal and a high court by directly approaching the apex court in what was essentially a service dispute.

Article 32 is usually invoked by litigants as a measure of last resort, particularly when there has been an infringement of fundamental rights.

The government’s counsel were of the view that this case did not merit the use of Article 32 and consequently the attention of the apex court.

While several decisions of the top court have said that Article 32 must not be invoked in service matters, the court reserves the power to make exceptions in special circumstances.

There are two possibilities at this juncture—the government can withdraw the 30 December order, take an independent legal opinion on Gen. Singh’s birthday controversy and settle the matter with him outside court, or it can continue to fight its army chief before a bench that appeared quite adversarial on Friday.

nikhil.k@livemint.com