Baidhya’s allegation came during a crucial hearing on a government application seeking nullification of the order that stayed the pensioning off of the generals. “The stay order was issued based on the Army Regulations 1963, which is dead from the day the new Army Act was enacted in 2006. So the court should not continue the March 24 stay order,” Baidhya, who is the chief legal advisor to the government, argued during the hearing. [break]The case is being heard by a division bench of Justices Anup Raj Sharma and Prem Sharma.
Acting on a writ petition filed by the eight brigadier generals, Justice Kalyan Shrestha had issued the stay order against the government by invoking the Army Regulations 1963 that governs appointments and promotions in the national army. Unhappy with the stay order, that also invited street protests from the Maoists; the government had on March 25 moved the court to vacate the stay order.
The court will decide whether to vacate the stay order or not at the end of the ongoing hearing that is expected to take a couple of days. A total of 18 lawyers, including 12 private lawyers hired by the Defense Ministry, will plead on behalf of the government while over 10 lawyers will plead on behalf of the generals.
“The regulations were a part of the then Army Act that is no longer in existence,” Baidhya argued and urged the court to fully understand the spirit of the new Army Act that was enacted to incorporate the people’s aspirations expressed during the People’s Movement in April 2006.
The judge-turned-attorney general also argued that the government reserved the right to extend the tenure of the generals or not. The generals were pensioned off after the government refused to extend their tenure as recommended by the Chief of Army Staff.
“The extension of tenure (of the generals) depends on the discretion of the government. The extension should be taken as a privilege, not as the right of the generals,” Baidhya said.
Earlier, opening the hearing in the morning Deputy Attorney General Tika Bahadur Hamal asked the sitting justices to consider the wrong date mentioned in the retirement letters handed over to the generals as a human error.
The letters bear that the cabinet decided to give retirement to the brigadier generals on March 19, 2008, a year earlier than the generals’ tenure actually expired. The government has already punished then Defense Secretary Baman Prasad Neupane for the mistake.
Justice Kalyan Shrestha had considered the wrong date as one of the grounds to issue the stay order.
kiran@myrepublica.com
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