Early last month, in an unprecedented move, army chief General V K Singh moved a petition before the Supreme Court against the ministry of defence over his age row. On February 3, the Supreme Court said the manner in which General V K Singh’s statutory complaint was rejected by the government “appears to be vitiated” and asked the government to withdraw its December 30, 2011, order on the same. Ahead of the hearing of the petition again on Thursday, we present the final instalment of a two-part series on the genesis of this crisis.
In 2007, Chief of Army Staff General Vijay Kumar Singh, was a Lieutenant General and General Officer Commanding (GOC) of the 2 Corps in Ambala. He had by then been informed by the Military Secretary (MS) Branch that his appeal to have his date of birth corrected to 10 May 1951 in its records had been turned down and that it had been decided to retain his date of birth as 10 May 1950. On 10 December 2007, Singh wrote a letter to Lt Gen P R Gangadharan, the then Military Secretary, again raising the issue of having his date of birth corrected.
Singh was by then being considered for promotion to the rank of Army Commander to be posted as GoC-in-C, Eastern Army Command. His letter asking for his date of birth to be reconciled was brought to the notice of Bimal Julka, the then Joint Secretary (G/Air), Ministry of Defence (MoD), who then wrote to Gangadharan wanting to know the reasons behind it. On 20 December 2007, Gangadharan wrote back to Julka, giving reasons why it had been decided to retain Singh’s date of birth as 10 May 1950, including the rule that officers have to get any such change made within two years of being commissioned in the Army.
On 21 January 2008, Julka wrote back to Gangadharan, stating: “It is an oddity that the officer has continued to stand by a date of birth, which is not officially recognised and thereby revealing an attitude apparently questionable and not reflective of the qualities expected from an Army Commander. In view of this, the question of suitability of Lt Gen VK Singh as Army Commander calls for a revisit.”
Singh appears to have been conveyed the news of the displeasure his memos were generating in the MoD and that it may affect his chances of a promotion. For he wrote to Gangadharan on 24 January 2008 stating that, “I am constrained to point out that your letter raises questions of my integrity and hence I would like to clarify a few issues.” He then goes on to state that he never sought a date of birth change and all he was asking for was a reconciliation of records. ( His date of birth in the Adjutant General (AG) Branch, the official record keepers of the Army, is shown as 10 May 1951).
He ended on a conciliatory note stating: “I have total belief in the system as also great faith in the sagacity and wisdom of the organisation I have been serving. Therefore, anything which is required to be done in the larger interests of the organisation may be undertaken by the HQ.”
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That triggered a flurry of signals from Army HQ to Singh at Ambala to get him to give a written commitment that he accepted his date of birth as 10 May 1950.
After a telephonic conversation with Deepak Kapoor, the then Chief of Army Staff (COAS), who apparently briefed him about the consequences if he remained adamant about having his date of birth changed, Singh signalled on 24 January 2008, “ whatever decision taken in the org. interest is acceptable to me.”
Army HQ was not satisfied with such a vague commitment. So within hours of receiving Singh’s cable, Maj Gen K Purshotam, the Deputy (MS)X, sent a terse cable stating,” response vide ibid sig. not in conformity with response asked for vide para 5 and 6 of letter dt 21 Jan 2008. If reply not recd by 1000 hrs on 25 Jan 08 action deemed appropriate will be taken.”
While referring to this cable, Singh in his statutory complaint to the MoD, stated that, “This was done as the COAS had ordered me during the course of his discussion to only say/write that I accept the date as desired by MS Branch. He did not want me to write that this acceptance was due to his order to me.”
The MS Branch though was busy defending Singh to prevent the MoD from rejecting his promotion. Gangadharan wrote to Julka on 25 January 2008, that, “the officer (VK Singh) did not have any malafide intention in continuing to write his date of birth as 10 May 1951.”
And that “It is the considered view of this HQ that the officer is not blameworthy. He has all the attributes and credentials and deserves to be considered for the appointment of GOC-in-C/HQ as already recommended…this has the approval of COAS.”
Julka then called for a detailed inquiry, “to find out the correct date of birth of the officer immediately in consultation with the AG’s Branch.” The AG’s Branch came back with an ambiguous reply on 30 January 2008 for the first time indicating that within the AG directorates itself two sets of dates were being maintained. The note by Lt Gen K. R. Rao, DG (MP and PS) in the AG’s Branch, stated that while the Manpower Planning (MP) Directorate had Singh’s date of birth as 10 May 1951, the Recruiting Directorate had it as 10 May 1950.
Forcing his hand
The AG’s Branch ambiguous reply appears to have been communicated to Singh who wrote a letter on the same day now stating, “in accordance with the discussion of date, I will mention the date of birth as directed.”
But apparently Julka in consultation with the then Defence Secretary Vijay Singh was unconvinced with the wordings of Singh’s commitment to “mention the date of birth as directed.” That was communicated to Singh by Army HQ. He reluctantly wrote back on 31 January 2008, “Date as mentioned is accepted.” His promotion to the rank of Army Commander was then approved and he was appointed GOC-in-C, Eastern Command on 1 March 2008.
In his statutory complaint to the MoD of 26 August 2011, Singh gave the reasons why he finally acceded, stating, “In the highest traditions of the Indian army, I had no option but to comply with the orders and command of my superior officer as also assurances of my superior officer with the hope that he would bring the issue to a logical and ethical conclusion by accepting facts.”
The integrity issue
After his promotion though it was not long before Singh raised his date of birth issue again. On 1 July, 2008, he wrote a personal letter to Kapoor, stating, “I have mulled over the entire handling of the issue in great detail. I must also confess to my Chief that I have been greatly hurt and pained by the aspersions cast on my integrity and military reputation, which we all jealously guard.” He ended by stating, “I would humbly request my Chief that necessary justice must be done and the damage to my integrity must be taken care of.”
With Kapoor apparently not responding, on 25 December 2008, he wrote to Lt Gen Avadesh Prakash, the then Military Secretary, stating, “My dear Avadesh, …Please let me know the procedure and methodology followed by MS Branch for verification of date of birth as also how my date of my birth has been determined by MS Branch.” After some correspondence on the issue, Prakash’s reply of 13 April 2009 closed it by stating, “vied your letter of 31 January 2008, date of birth ie 10 May 1950 has been accepted by you. Therefore, this issue stands closed.”
Quest to become Chief
On August 20, 2009, the MS Branch issued a notice of retirement to Singh informing him that he would retire on 31 May 2010 on attaining the compulsory retirement age for Lieutenant Generals at 60. That age was calculated on the basis of his date of birth being 10 May 1950. MoD pointed out in its order of December 2011 that there is ‘no record to show that this notice was contested” by Singh after that.
By October, with Deepak Kapoor retiring on March 31, 2010, as the senior most ranking Lieutenant General, Singh was in the zone of consideration to succeed him as Chief of Army Staff (COAS). His bio-data was forwarded by the Deputy MS, Eastern Command, to the Army HQ on 23 October, 2009 and his date of birth was shown as 10 May, 1950.
With the MoD clearly upset with Singh raking up the age issue again there were indications that it may come in the way of him being appointed as the next Chief of Army Staff. On 12 November 2009, Singh suo moto wrote to Deepak Kapoor, stating,
“My dear Chief,
1. I have learnt of some misgivings and doubts being raised on my commitment given on my date of birth as per your directions. You are well aware that I have not gone back on this commitment.
2. In July’08, when I wrote to you to seek justice and elaboration of MS Branch constraints, you had told me that this case is closed and will not be discussed. I have taken your directions in letter and spirit. My subsequent correspondence with the MS Branch has been on the verification process which I wanted to know for my own satisfaction. After the MS wrote saying that this function is of AG Branch, I have treated this issue as closed. I am sure you are well aware of these facts.
3. I once again reiterate my commitment to you stands and any doubt or misgivings need to be dispelled.
With best regards, Yours sincerely, Signed VK Singh.”
This would be the second time that Singh would put on record that he regarded the date of birth “issue as closed” even averring that, “that I have not gone back on this commitment.” In his statutory complaint to the MoD of August 2011, Singh maintained that, “This letter in no way was an acceptance of any kind and was written as part of culmination of my correspondence with the MS Branch.” A stand he reiterated in his writ petition.
The MoD though in its order of 30 December 2011 rejecting Singh’s statutory complaint, pointed out, “Thus at three stages ie at the time of his appointment as Corps Commander in 2006, Army Commander in 2008 and COAS in 2009-10, Army HQ confirmed his date of birth as 10 May, 1950. The complainant had also accepted this as his date of birth in 2008 and 2009.”
A matter of propriety
If the MoD thought the matter would rest after Singh had given his “commitment” it would be mistaken. For not long after he was appointed as Chief of Army Staff on 31 March 2010, General Vijay Kumar Singh would bring the issue of his date of birth on centre-stage again.
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.
On 14 February 2011 in response to one of these RTI queries by Dr Kamal Taori, a retired IAS officer RTI, 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 (VK Singh) 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, replied 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 was 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
The MS Branch does not reply immediately and when it does it tells AG to get MoD clearance for effecting a change in the date of birth of the Army Chief. Meanwhile, the MoD was alerted of the matter when the AG’s branch sent a communication to its Establishment Branch.
The MoD clearly looked upon it as a transgression of accepted procedure. Subhash Chandra, Joint Secretary (G and Air), in his letter of 29 March 2011 to the then 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. On 4 April 2011, the MoD formally sought clarifications from the AG’s branch on the matter.
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 of the matter and backed his argument with case studies. He took 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 concluded, “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 gave 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 charged the MoD with 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 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 startled 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 was clearly upset with Singh for getting opinions 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.”
A month later, based on Vahanvati’s advice and having sought the concurrence of the Defence Minister, Joint Secretary Chandra sent 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 declared the AG’s note of February 25, 2011 as, “unauthorised and illegal.” Chandra’s memo goes on to state, “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.
Singh then filed a statutory on 26 August 2011 complaint challenging the order. The statutory complaint was formally rejected by the MoD on 30 December 2011. 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 highest court of the land will now give its verdict on one of the most contentious and messy issues concerning the Army Chief that India has seen since Independence.
The author is Editor-in-Chief, The Tribune. The article is an excerpted version of a series of articles which appeared in The Tribune between January 23 and 30, 2012. For full text, visit www.tribuneindia.com. It is reprinted with the permission of The Tribune)