M A I N   N E W S

Tribune analysis
Army Chief’s Age Row-Part 6
A matter of propriety vs integrity
By Raj Chengappa
Editor-in-Chief

If the Government believed that the issue regarding the date of birth of General Vijay Kumar Singh had been settled once he had been appointed as Chief of Army Staff (COAS) on 31 March 2010 it would soon be mistaken.

Singh would bring it up again raising serious questions about propriety apart from misuse of office. There was a feeling that the General should have distanced himself from investigations into his age issue because as COAS the two crucial wings involved, the Military Secretary’s (MS) Branch and the Adjutant General’s (AG) Branch now reported to him. But we are getting ahead of the chronology of events.

After Singh took over as COAS, there was a six month lull on the age issue before it was reopened in the most curious fashion. In October 2010, the Army’s Central Public Information Officer (CPIO) got a flurry of queries under the Right To Information (RTI) Act with regard to General V.K. Singh’s date of birth.

The RTI route

On 11 October 2010, Lt Col Attar Singh living in Delhi requested information as to whether a Court of Inquiry had been conducted with regard to “the determination of the correct date of birth” of VK Singh, COAS. The MS Branch then directed the query to the AG’s branch stating, “it is the official custodian in respect of the information sought.” The AG’s Branch replied on 29 December 2010 that, “no Court of Inquiry has been conducted” on the subject.

Meanwhile, on 14 October 2010, Attar Singh had sent another RTI query, “seeking information as to the number of instances wherein the MS Branch had effected changes in the date of birth of the serving officers and ranks after two years of their commissioning. “The MS Branch replied on 17 November 2010 that there were five such cases where dates of birth were changed after the statutory period of two years. The point being that Singh’s case was not unusual.

Then on 28 October 2010, Dr Kamal Taori, a retired IAS officer, requested information regarding anomalies in Singh’s age with regard to his matriculation certificate and the Army records. Taori also wanted to know the age and date of birth of five serving General Officers of the army. There was another similar query by Ravikesh K Sinha, said to be a lawyer, on 12 January 2011.

In the interim, there occurs an apparently unrelated exchange of letters starting 25 November 2010 between the Indian Military Academy (IMA) and the National Defence Academy (NDA) from the Adjutant General’s (AG) Branch AAG Manpower Planning, MP, 6 (A) with regard to verification of the documents of Gentleman Cadet’s prior to being commissioned to the Army. General Singh cited these documents to bolster his arguments in his subsequent petitions to the Government on the age issue.

On 14 February 2011 in response to Taori’s RTI query, Major General Satish Nair, ADG MP, put out an unusually detailed letter to Inder Kumar, Legal Advice (Defence), LA (Def) Ministry of Law and Justice, that concluded, “The documents held with the AG’s Branch would lead only to one conclusion that the date of birth in respect of the officer is… 10 May 1951.”

Nair then stated, “Before reply to the RTI query to the applicant is given, advice of the LA (Defence) is requested on the above facts and circumstances on the issue whether the date of birth may be informed to the said application as 10 May 1951.”

Startlingly, on such a significant matter, Inder Kumar, replies to Nair’s letter on the same day i.e. 14 February 2011. It is an extremely detailed reply containing even Supreme Court judgments on the matter. Kumar’s opinion concluded: “We are of the view that the DOB recorded in the High School Certificate is having a greater evidentiary value. The PIO may accordingly give a reply to the applicant holding the DOB (Date of Birth) as 10 May 1951.”

On 23 February, 2011 an innocuous reply is sent to Taori by Brigadier A.K. Tyagi of the RTI Section giving an annexure that shows that the date of birth of General Singh as per AG records is 10 May 1951 and that of his High School Certificate is also 10 May 1951. Similar information is provided for five other general officers that the RTI petitioner had asked for.

On 25 February 2011, Nair, the ADG, MP, then wrote to Deputy MS (X) ordering that, “ The following amendment be made in the records of the COAS by the MS branch with info to all concerned that, “For: 10 May 1950; Read: 10 May 1951. The above amendment is in accordance with advice of LA (Def) and accepted on file by the Ministry of Law.”

MS doesn’t play ball

There is no immediate reply from the MS Branch. Meanwhile, Brigadier Tyagi writes another letter to Taori, the RTI applicant, on 8 March 2011 offering “additional information” and stating, “In this connection the Date of Birth as record in the HSC (Rajasthan Board) as well other documents of IC 24173 Gen VK Singh COAS is 10 May 1951. There are no averments in this regard. However, there was an omission in one Branch and as advised by LA (Def), Ministry of Law and Justice, necessary correction is being made to correct the omission.”

MoD called in

The MS Branch though does not cooperate with the AG Branch and wanted MoD clearance to be obtained on such a significant issue. R. Chandrashekaran, the Deputy MS, in his letter of 16 March 2011 to Nair, the ADG MP, stated, “As per policy…changes in the date of birth in respect of Commissioned Officers are required to be accepted by the Competent Authority in the MoD. It is requested that requisite approval of the Competent Authority to the acceptance of the change in the instant case be obtained and intimated to this Branch to enable relevant records being amended accordingly.”

Nair of AG’s Branch is back with a detailed reply on 21 March 2011, clarifying that, “the subject case does not pertain to request for change in the date of birth of the said officer but only a correct after a mistake has come to light.” He claimed that the “MoD had been informed about the same” and “ in light of the facts stated above you may initiate necessary action at your end to correct the anomaly of incorrect entry of the date of birth of the said officer in your records.”

Adding to the pressure on the MS Branch is a reply sent by M.D. Paliath, Principal Controller of Defence Accounts (Officers), CDA, to the AG’s Branch on 30 March 2011 referring to the RTI query and stating that its records from the time of VK Singh’s commissioning show the date of birth as 10 May 1951.

MoD gets tough

The MoD was alerted of the matter when the AG’s branch sent a communication to its Establishment Branch and clearly looked upon it as transgression of accepted procedure. Subhash Chandra, Joint Secretary (G and Air), in his letter of 29 March 2011 to the Defence Secretary Pradeep Kumar, stated, “It must be pointed out that the RTI applicant has sought information. The AG has clearly gone beyond the furnishing of information to getting an issue investigated by the LA( Def), Ministry of Law and proceeding to rectify an omission by another branch. This is most irregular as it involves the date of birth of the COAS and has implication for his tenure.”

In the letter Chandra pointed out that Singh at the time of the selection of COAS had accepted his date of birth as 10 May 1950. He stated: “Thus Gen VK Singh’s date of birth is a settled matter as far as the Government is concerned. It is surprising that the AG Branch has not taken note of these developments which are in its knowledge… Instead of furnishing facts to the applicant, the AG Branch has empowered itself to change the official date of birth of the COAS as 10 May 1951 on the basis of an RTI application.”

On 4 April 2011, the MoD formally sought clarifications from the Army HQ, asking it four telling questions: 1) what is the policy for effecting such corrections and who is the Competent Authority 2). Who approved the correction of dates 3). What was the legal issue referred to the Ministry of Law and Justice? A copy of the reference made to the LA (Def) may be furnished 4). Why was the issue not routed through the Ministry of Defence as per norms?

AG dodges query

To which the AG Branch in its reply of 18 April 2011, claimed that as “it is the custodian of all such records of date of birth, the said Branch is competent to convey to any other Branch in case any correction in error is required.” But on the question as to why it bypassed the MoD it blandly stated, “It is our understanding that the office of LA (Def) is an integral part of the MoD and hence clarifications, owing to a legal nature, was referred to it; this is a normal practice in all legal matters related to other cases also. If, however, there are instructions to the contrary the same may please be intimated for our information and necessary action.”

Meanwhile, Singh was apparently drumming up support for his case even approaching the Prime Minister’s Office. On 21 April 2011, Defence Secretary Pradeep Kumar received an unsigned petition from VK Singh that had been submitted to TKA Nair, the then Principal Secretary to the PM, enclosing all the documents of his case including the LA (Def) advice on the matter.

As the matter had turned extremely serious, Chandra in his letter to Pradeep Kumar, Defence Secretary on May 6, 2011, pointed out, “The amendment of the date as a ‘technical’ correction of an error at this stage by the AG Branch of AHQ on the basis of an RTI application in direct consultation with the Law Ministry without bringing the entire facts to the latter’s notice has given rise to a situation where the date of birth is effectively getting changed to 10 May 1951 without the officer himself applying for a change. This issue has implications on the tenure of the officer concerned and the organisation. It also has implications of setting a precedent that may override extant procedures.”

Antony acts

Chandra recommended getting the opinion of the Attorney General of India Goolam Vahanvati on the issue. Kumar agreed with Chandra and in his note of 7 May 2011 to Defence Minister AK Antony on the file stated “A decision regarding amendment in the date of birth of the COAS will have implications on the succession plan on the Army. The possibility of those affected by the decision seeking redressal in the court of law cannot be ruled out. Therefore, it is essential that whatever decision the Government takes in this sensitive matter should be defendable in a court of law.” Antony gave his approval on 9 May 2011 and the matter was referred to Vahanvati.

On 16 May 2011, Vahanvati in his 22 page reply to the MoD got into great detail with case studies that have been brought out in the previous parts of the series by The Tribune. He takes a serious view of the transgressions by the AG’s Branch using an RTI query to change Singh’s date of birth and states, “I find the procedure which was adopted completely untenable in law and to put it mildly, strange. Both on facts and in substance the reply to the queries on the RTI application make disturbing reading.”

Vahanvati then came down strongly on Army HQ stating: “In my opinion… there is a clear case of estoppels and waiver and this position in law is well settled.” The charge of estoppels is serious as, by dictionary definition it is ‘a legal principle that bars a party from denying or alleging a certain fact owing to the party’s previous conduct, allegation or denial.’ Vahanvati concludes, “My answer to the query is that the amendment of the date of birth is not legally tenable and the issue cannot be reopened at this stage on any basis whatsoever.”

Raising doubts

Singh though is not waiting for Vahanvati’s verdict. On 12 May 2011, he gives a detailed petition to Defence Minister Antony, “seeking justice from the Hon’ble Raksha Mantri based on facts and records,” as he is known for his “judicious, dispassionate, unbiased and kind nature.” He charges the MoD of trying to “confuse the entire issue” as a “change in his date of birth” when it was one of “reconciliation of wrong records.”

Raising doubts over the decision of the MoD to refer it to Attonery General Vahanvati, Singh stated that the “ whole process smacks of prejudice and malice as a mere legal advice unilaterally obtained cannot be enough to change the date of birth followed for 41 years.” Apart from charging the MoD of sending “tailor-made” queries to ensure his plea is rejected he startles the MoD by stating that he is attaching “advice obtained by my well wishers from two former Chief Justices of India for your perusal.”

Odd actions

The MoD waits for Vahanvati to give his opinion before taking up VK Singh’s petition to Antony. It is clearly upset with Singh asking for opinion from two former Chief Justices of India without consulting it. Joint Secretary Chandra in his note of 1 June 2011 to the Defence Secretary Kumar pointed out, “It is odd that the Gen Singh and the then DG MP&PS Lt Gen VK Chaturvedi have in a personal matter of the COAS chosen to make a reference to two former Chief Justices of India. Justice G.B. Patnaik has commented that he is unable to comment on the Attorney General’s opinion as he has not seen it whereas Justice J.S. Verma had remarked that while he has perused the opinion furnished by the LA (Def) to the AG’s Branch, it is true that the Attorney General has taken a different view, it is likely the query for his opinion may not be framed correctly.”

Chandra recommended that since two former CJI’s have given their opinion they should get another opinion from Vahanvati. Kumar concurred with Chandra and in a note on 7 June 2011 requested Antony to clear the proposal to get a second opinion from Vahanvati which he does on 8 June 2011.

Out of the loop

Vahanvati in his second opinion dated 21 June 2011 pointed out, “The reference by the AG Branch to Justice Verma directly is highly unusual since the proper and well laid down procedures have not been followed. The Ministry of Defence as well as the Law Ministry was kept out of the loop and excluded completely.”

He then takes on the query raised to Justice Patnaik by Singh’s “well-wishers” that whether “the Central Government could rely on an opinion of the Attorney General of India which was based on tailor made queries.” To make his point Vahanvati quoted from the Union Law Secretary’s note dated 9 June 2011 in which he stated, “ The opinion given by the LA (Def) which has been countersigned by the Additional Secretary cannot be treated as a legal opinion for the purpose of change of date of birth.”

The Law Secretary’s note also stated that the reference made by the AG’s branch to the LA (Def) “ did not have any comments or views of the MoD who are the concerned authority for ordering any change in the date of birth of the concerned officer.” The note further observed, “Moreover such matters should have been placed for consideration at the highest level in this Ministry. I may point out that it is the consistent practice in this Department that all important matters especially in relation to very senior officers are invariably shown to the Law Secretary and Law Minister. The reply of the Legal Adviser (Defence) may be abrogated for these reasons.”

Vahanvati dismisses VK Singh’s suggestions that the queries to him by the MoD were “tailor-made” stating, “to impute motives to the MoD is not only unwarranted but in bad taste.” He ended by stating that, “taking all aspects into consideration I see no reason to revise my opinion.”

A month later, based on Vahanvati’s advice and having sought the concurrence of the Defence Minister, Joint Secretary Chandra sends an office memorandum on 21 July 2011 to Chief of Army Staff (COAS) VK Singh, the Adjutant General (AG) and the Military Secretary (MS) that declares the AG’s note of February 25, 2011 as, “unauthorised and illegal.”

Null and void

Chandra’s memo then stated, “The Central Government therefore declares order No 12918/RTI/MP-6(a) dated February 25, 2011 directing to amend the date of birth of Gen VK Singh (IC-24173), COAS to read as 10 May 1951 instead of 10 May 1950 as recorded, as null and void and non est. The officer’s official date will continue to be maintained as 10 May 1950 (Tenth May, Nineteen Hundred and Fifty).” This was then issued as a formal Government Order on 22 July 2011.

On 26 August 2011, General Vijay Kumar Singh became the first Chief of Army Staff, to file a statutory complaint with the Union Defence Minister AK Antony seeking redressal of his age issue. On 30 December 2011, the MoD rejected his statutory complaint “by order and in the name of the President,” for reasons discussed in The Tribune series. The order stated, “His officially recognised date of birth will continue to remain 10 May 1950. Accordingly there are no grounds for interfering with the impugned Official Memorandum dated July 21, 2011 and the Government order dated July 22, 2011.”

Over to Supreme Court

When the Government had admitted Singh’s statutory complaint it had held in abeyance its July 22, 2011 Order that his date of birth remain as 10 May 1950 and all the Army branches to conform its records with it. But with its 30 December 2011 order, the hold was lifted. On 23 January 2012, the MoD sent a note to the AG ordering it to reconcile its records. (see front page report)

Meanwhile, on 16 January 2012, in another unprecedented step by a Chief of Army Staff, Singh filed a writ petition in the Supreme Court challenging the Government’s order. The first hearing is fixed for February 3, 2012. The highest court of the land will now give its verdict on one of the most contentious and messiest issues concerning the Army Chief that India has seen since Independence.

(Concluded)