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Saturday 11 February 2012

Age of civilian age and service age

Age of civilian age and service age

New Delhi, Feb. 10: The Supreme Court’s decision today means that the entry made for the Union Public Service Commission (UPSC) exam has been recognised without going into the “civilian” matriculation certificate that is used often to settle age-related disputes.
“All the documents at the threshold show your date of birth as May 10, 1950,” the court told Gen. V.K. Singh’s counsel, referring to the entries made when forms were filled for the UPSC-conducted exam to the National Defence Academy. (Gen. Singh’s supporters have been saying 1950, instead of 1951, was scribbled by mistake, possibly by a teacher who inspired him to join the military.)
Under established law, the matriculation certificate (the general’s lawyer has said civilian documents such as PAN card shows 1951 as his year of birth on the basis of the matriculation certificate) is usually taken into consideration.
In the absence of such a certificate or if it’s proved that the certificate has been falsified, courts often recognise school-leaving certificates issued by headmasters. Bone tests are also allowed when no other options are available.
However, in this particular case in which the general directly went to the Supreme Court because of paucity of time and to avoid hierarchical complications, the matriculation certificate faced a legal hurdle.
The Supreme Court, under Article 32 of the Constitution, cannot examine such certificates as evidence. For that, a civil suit has to be filed and the person has to prove the authenticity of the certificate.
The court declined to go into “the civilian aspect”, taking the UPSC entry as the threshold. “We are not adjudicating the real date of birth. We are only concerned with the recognition of the date of birth. The controversy is confined to the date of birth recorded in service records,” the bench said.
The court added that “nobody has challenged the matriculation certificate about his date of birth…. None, even the government has not challenged his date of birth in the matriculation certificate”.
Declining to pass any directive on the documents issued by civilian agencies like the school board and the income-tax department, the bench said: “We can’t say so as none of the authorities is before us.”
If Gen. Singh wanted to rest his case on the matriculation certificate, he would have had to go to a civil court or the Armed Forces Tribunal where an officer junior to the army chief would have adjudicated the matter.
So, the Supreme Court today broadly based its decisions on a well-known principle of administrative law, known as the doctrine of estoppel in which a person cannot go back on a claim once it is legally made. Under the doctrine, Singh cannot go back on his acceptance, made in 2008 and 2009, of 1950 as his date of birth, wherein he implicitly gave up his rights.
However, in cases of estoppel too, lower courts normally carry out an inquiry into whether the right had been waived without fear or favour.
This assumes significance in Singh’s dispute as an annexure to his complaint includes excerpts of communication that suggest he was issued an ultimatum to accept the date preferred by the army headquarters.
The Supreme Court made a reference to this today. “…if you had insisted on 1951, you would have exposed yourself to disciplinary action. Therefore, the concerned officer writes to bring to a close the controversy. You are reconciled to it (date of birth as 1950),” Justice R.M. Lodha of the two-judge bench said.
However, the top court cannot inquire if the waiver was voluntary in a judicial review, where it is only authorised to examine whether the decision-making process was vitiated or mala fide.
Singh had not alleged any mala fide and the court chose not to look into whether the process was vitiated.
The court today suggested that if Singh persisted with his plea, “we will refer the case to the tribunal. Other service matters go to the tribunal. If you are going to the tribunal, you may have to go to the witness box”.
Had Gen. Singh gone to a civil court, it would have been time-consuming and a conclusion may not have been found before this May 31, the scheduled date of his retirement if 1950 is taken as his year of birth.

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