IDENTITY - MY BATTLE TO BE AN ESM

"Nemo Resideo - The Battle for My Identity

 April 12, 2019,   Lally Virk.   These are not my usual musings.

I am plucking a leaf from my life of the last five years, to tell you all how seemingly insurmountable obstacles can be overcome if one has the strength of one’s convictions, courage, will, grit, determination and perseverance.

No, no it’s not about what some of you close to me will be thinking……

This is about my fight for my ‘Identity’. This is about my fight to ‘Redeem my Honour’.

I have always believed that challenges are what make life interesting and overcoming them is what makes life meaningful.

World over from times immemorial, the Armed Forces have steadfastly and stoically believed in the motto, “Nemo Resideo” - “No one left behind”.

It is said, “The mechanics of warfare are sterile when you are sitting in an air conditioned office”.

Unfortunately, in the Indian context it is these very men sitting in air conditioned offices, sliding on shrimp sandwiches their whole lives, who call the shots making lopsided policies for the Armed Forces and thrusting them down the throats of our meek top brass sitting with drooping shoulders in the Army Headquarters. Just because these policies do not affect them, these red tabs are willing to abandon their own and steal the very identity of their soldiers who have given the prime years of their lives to this very Armed Forces in the service of the Nation.

Here is what happened……………..

About 6 years back I had visited the Zila Sainik Board in Gurgaon to get a document, which I thought would take just 5 minutes. It was an Ex-Serviceman Certificate to be given to a Government department. I got the shock of my life when I was told by this Air Force youngster sitting there as the Zila Sainik Officer, “Sir, as per the latest orders you do not qualify as an Ex-Serviceman”.

Aghast and feeling slighted I walked out of his office.

I came back home and, as is normal with most of us married folks, carried out the debriefing of my visit with my wife, Jasmin. Seeing me looking a bit upset, her immediate reaction was, “Relax Lally, what do we need it for. Forget it”.

Well, “Forget it….." I tried, but the uneasiness persisted for the next few days. The ‘humiliation of sorts’ at the Zila Sainik office started weighing heavily on my mind.

I had given the best years of my life in the service of the nation to the Armed Forces of the Union of India. With one stroke how could they just obliterate all those years I had spent in Olive Greens? What about all the tears, the sweat and the blood spilt over the years ? Did it all come to naught ? How could they, just on a whim, disown me ? How could they shake the very foundation on which  soldiers have laid down their lives and Armies have marched from times immemorial, "Nemo Resideo"?

Well, time moved on, and I tried to put this behind me with the thought that ‘well how does it matter at this late stage of my life? What difference does it make? What do I need it for?’

But try as I might I couldn’t put this behind me.

I had given 17 years of my life and soul to the Armed Forces. I was compelled to seek premature retirement for reasons far beyond my control, probably as ordained by Providence. I was honourably granted Pre-mature Retirement. I retired as a substantive Major. I had an excellent career profile with a brilliant track record. I was an ‘Alpha’ in every course that I attended. My men swore by me. I was playing a brilliant game of golf and had represented the Regiment of Artillery team besides the Southern Command team for the Services. I was also playing hockey for the Regiment of Artillery Hockey team, initially as a playing member and subsequently as the Manager of the Artillery hockey team, where we had two national level players with us. I had also served as an Instructor in my Alma Mater, the National Defence Academy. I had served in the toughest of terrains, be it the jungles of Assam, the deserts of Suratgarh in Rajasthan, the harsh mountains of Darbuk in Ladakh and the treacherous landslide prone hillsides of Sikkim. How could they just wipe out all those years? How could they suddenly decide to disown me?

For 21 years, after hanging my spurs prematurely, I was treated as a bonafde Ex-Serviceman. 

Who was I today ?

Wasn’t our credo, “We don’t leave our men behind”? 

That is when I decided to make amends and take necessary action.

I decided to take on the might of the Union of India.

But I had scant knowledge of the route to be taken. I was quite cut off from my comrades in arms. WhatsApp and social media were not very active then.

Years back, under the aegis of the Directorate of Resettlement, I had done a resettlement course meant only for bonafide Ex-Servicemen. So I decided to approach them. I checked who the DGR was and learnt it was some Maj Gen Amrik Singh. A little more probing and I discovered, “Ay teh sadda apna Amrika haiga, Echo Sqn wala”.

With a bit of hesitation in my mind, thinking whether he would remember me or not after all those years, I approached him. He did remember me well and immediately asked his staff officer to get in touch with me who asked me to put up an application seeking clarification. I wrote that application which was forwarded by DGR to the AG’s branch. After a month came the reply from AG that as per the latest definition of DoP&T, I did not qualify as an Ex-Serviceman (ESM).

For the uninitiated, let me tell you briefly what this DoP&T definition of Ex-Serviceman is....As per this definition, a short service commissioned officer with just 5 years of service is classified as an Ex-Serviceman. Incredulously, a Regular Permanent Commissioned Officer who seeks Pre-mature Retirement even after 19 years 364 days of service is not classified as an Ex-Serviceman, and mind you the pre-commission training period, which for an Ex-NDA is 4 long years, is not counted towards your service. 
It is so ironical, that these same bureaucrats grant themselves pension if they take premature retirement after 10 years of service, besides counting their training period towards their service. But they wipe out the very existence of an Officer of the Armed Forces who takes premature retirement even after putting in 19 years and 364 days of service, by denying him the very basic identity and status of an Ex-Serviceman. 

Sadly, this travesty of justice has been accepted by our top brass, who have willingly abandoned their own. 

This injustice was not acceptable to me.

With the cause established, I could now knock on the doors of the courts. 

But how?

By then good friend Cheema had moved to Delhi as the Deputy Chief of Army Staff. I spoke to him about what I intended to do. He asked me to come to his office to discuss this. After a nice hearty lunch in the DCOAS's plush office, Cheema called the DG PS to his office. After hearing me out the DG PS said, “Sir, I am convinced of your case but as you are aware we are not in a position to amend any policy laid down by MOD. You will have to approach the AFT”.

After a nice hot cup of tea, I left Cheema’s office with a fresh resolve but a bit weary of the long haul ahead.

I made out a draft of my case and sent it to one of our own who is a legal eagle. Sadly, I received no response from him.

A bit disappointed, but with my resolve strengthened further, I drove down to the AFT in RK Puram, New Delhi and finalised a lawyer who had a good record. He heard me out and assured me that I had a very good case and we would win. I had already prepared the draft of my case, which I handed over to him.

After a delay of some 2 months which is normal with these lawyers, with some prodding and jostling, my case was finally filed in the AFT sometime in early 2017.

There are 3 courts/benches in AFT Delhi and depending on the case it is allotted to one of the courts. As bad luck would have it, my case was allotted to Court No. 2, a bench considered to be very hostile to Officers.

On the day of the first hearing, I drove down to Delhi with a lot of trepidation. At about 1030 hrs my turn came. I could not see my lawyer. The Union of India (UOI) was represented by 3 lawyers including one JAG Major. Suddenly I saw one dopey looking youngish lawyer get up and take the stand meant for Complainants. The first hearing is to ascertain if a case has merit and is worth admitting. The Complainants lawyer presents his case to the bench and the bench takes an immediate call to dismiss it or admit it. The bench consists of one Judicial Member who is a retired High Court Judge of repute and one Administrative Member who is a retired Lt Gen or equivalent from the Armed Forces.

I found this junior lawyer stuttering and stammering as he presented my case. The Judge asked this novice a few questions of which he had no idea at all. My case was on the verge of being dismissed on the first hearing itself. I was sitting on the 3^rdrow with panic written all over my face. Suddenly I saw this lady lawyer sitting in front of me turn around and say, “Sir, isn’t this your case.” I said, “Yes”. “It’s on the verge of being dismissed. Please stand up and go and stand next to that ignorant lawyer”. I immediately jumped up and took the stand next to this lawyer. The Judge looked at me and asked, “Are you Major Virk?” I said, “Yes Sir”. He started going over my OA again and kept asking me, “Do you have this document, and this and this…….”. I replied in the affirmative. “Then why haven’t you produced them to support your case?” “Sir I just went with the advice of the lawyer”. He looked at me and says, “Can I see all these documents”. Fortunately I had carried my original file with me. I quickly rummaged through my file and handed over all those documents to the court. The Judges scrutinised all the documents and looked at me and said, “Submit all these documents with an Affidavit in a week’s time. We find merit in the case. The case is admitted”.

Relief writ large on my face, I gathered my loose file and hurried out of the courtroom. Once outside, I blasted this amateur lawyer and made my way to the first floor of the AFT, Principal Bench, New Delhi where the bar room is located to bind my loose file back.

There I saw this lady lawyer who was my saviour and walked up to thank her. But for her, my case would have been dismissed. She turned out to be a Supreme Court lawyer, fighting her own husband’s case in AFT. To this day I remain grateful and thankful to her.

On the lighter side, she paid me a compliment by telling me that, “Major Virk, whenever your case comes up for hearing please stand up and let the Judges see you. You’ll win half the case with your personality only”.

Well, personality for me has always been a double-edged sword. It has mostly worked in my favour in life but there are times when people have gotten a bit intimidated and it’s worked against me. However, I did keep her advice in mind throughout the duration of the case.

At the end of the second hearing, I realised my domain knowledge was far superior to the lawyer I had hired because during the course of this hearing there were things that I wanted to tell the court but couldn’t as once you hire a lawyer and give him your mandate only he can speak and argue your case.

I came back home a bit disappointed at the way the second hearing had gone. It was then that I decided to take the reins in my hands and I recused the lawyer.

I decided to fight the case myself. Though it was a tough ask but in the hindsight it turned out to be the best decision I could have taken.

As the hearings progressed, the bench started showing its true colours with the way seemingly straightforward simple things were being twisted in legal jargon by the crafty Judicial Judge. I was beginning to realise that my battle was more with the bench than with the lawyer team of the Respondents.

The legal system in India relies on past precedence’s and judgments. Normally no Judge wants to stick his neck out and give a path breaking decision.

Not being a lawyer and having scant knowledge of the courtroom craftiness, I battled on in all my innocence and straight forwardness. My intention was not to rely on past precedence’s and judgments but win the case on its merits. This made it all the more difficult for me. With all the research and knowledge I had acquired on the subject, I wanted to turn the very definition on its head and prove to the court how defunct, redundant and faulty this definition was.

Unfortunately, during the course of the hearings I realised this retired Judge was not even interested in going over my well-researched submissions supported with documentary evidence. In each hearing it was like beginning from scratch and explaining the whole case over and over again.

Frustration began to set in. But I knew the key word was ‘Patience’.

The Judges summoned the ADG PS for certain clarifications on this DoP&T definition of Ex-serviceman. With great fanfare, our man came with three junior subordinates including a JAG Col from his Legal cell, and made a much prepared rehearsed statement in court, “Sir, over the years we have been very consistent with the definition of Ex-Serviceman…..etc etc etc”, which as such was the most incorrect statement to make. I told the court, “Sir out of sheer respect for his uniform I would not like to humiliate him in court so I will hold my counsel, but the statement made by him is laughable which I will prove to you subsequently”. And in the next hearing I did just that.

Months passed. Seasons changed. The case dragged on and on.

I think what turned the tide and got things in my favour, besides of course, the righteousness of the case and the strength of my convictions and pleadings, was what I said while addressing the bench in one of the hearings where I had proved to the court the number of times this so called ‘consistent definition’, as so wrongly claimed by the ADG PS, had been randomly changed at the whims and fancies of some Babu in MOD. To make matters worse, these changes over the years were meekly accepted by our heavy weight red tabs in AHQ.

After proving to the court with hard evidence how this definition had been changed 4 times in a span of 7 months, making a mockery of Ex-Servicemen, this is what I had told the court.

“Sorry for the harsh words My Lordships, but surely a Soldier serving at 50 degrees Celsius in Suratgarh, or -36 degrees in Darbuk or walking 30 kms in peak monsoon with a Mule Pack Artillery Regiment in the jungles of Assam needs to be shown more sensitivity by the Policy makers. My Lordships does the Ministry of Defence (MOD) even realise the damage being inflicted and the impact it is having on the lives of thousands of soldiers? Is the definition of an Ex-Serviceman that frivolous a commodity?” 

The respondent lawyers had no defence and the Judges had no answer.

What I was beginning to realise was that for good or for bad, much as I tried to keep it all on facts and merit, my pleadings always tugged at the emotional aspect. I was not a lawyer. So it was but natural for me to get emotional since it involved me and an important phase of my life. Probably, this also worked in my favour.

As the hearings progressed, gradually I could see this hostile bench beginning to see reason and was turning in my favour.

Strange are the ways of God. This is when calamity struck. During the course of this case, fate dealt a severe blow to the ‘Virk’ family.

I was now fighting a battle on two fronts. But 'having crossed the Rubicon', there was no looking back now.

Not wanting to garner any kind of sympathy, I did not disclose anything to the court.

Well, to cut it all short, it was a long bitter battle I fought over 3 years. The Union of India/MOD/COAS was represented by a panel of 4 lawyers. Two civilians and two Jag officers. I was the lone crusader this side of the stand, but I fought my heart out.

The day finally dawned when having exhausted my entire arsenal, I addressed the court for one last time. I still remember verbatim what I told the bench.

“To sum up My Lordships, I have more than proved my case beyond a shadow of doubt with each word spoken by me supported by hard evidence. Other than flogging a defunct, redundant non-applicable definition, the respondents have no case at all. My Lordships, at this late stage of my life there is nothing that the Indian Army can give me. Probably, I can give back more. I had a brilliant career in the Indian Army. I had no reason to leave. But I was compelled to seek pre-mature retirement for reasons far beyond my control to probably fulfil a higher purpose in life. During one of the hearings, My Lordship, you had asked me, ‘What will you gain from it now’, and I had kept quiet. Well, let me tell you what I will gain from it.  Sir, I am a 3^rd generation soldier. For our creed it is more about Honour, Prestige, Pride & Izzat. We lay down our lives for our Naam, Namak aur Nishan. Having given the prime years of my life to the Indian Army in the service of the Nation, the least that I can expect now in the sunset years of my life is to be given a respectful burial in the Brar Square. Would you like to deny that to me, Sir? 

I have nothing more to say My Lordships”.

Spent and exhausted, I sat down.

I still remember there was pin drop silence in the court for a good about 15 seconds after I had finished. The Judges were visibly moved.

The case was reserved for Judgment.

As I collected all my files and walked out, five to six lawyers came to me and shook my hand. They said, “Sir, You have won your case. There were tears in the eyes of the courtroom”.

On 21^st Dec 2018, the bench pronounced my Judgment. My OA was allowed. My Ex-Serviceman status was honourably restored with all entitled privileges.

My stand vindicated, my honour restored, “Major Harpal Singh Virk (Veteran)” proudly made his way to his car.

As I sat down and triumphantly drove off in my car with the windows down, letting the crisp winter air sweep in, I remember singing “Auld Lang Syne” loudly till I reached home.

This chapter of my life came a full circle, when on 03^rd Apr 2019, the same Zila Sainik Board, Gurgaon came to my doorstep to ‘respectfully’ inform me that I was a bonafide "Ex-Serviceman" and invited me to collect the ESM Identity Card along with the “Ex-Serviceman Certificate”. 

The Take-Home :

Professional: There is no denying the fact that the MOD has over the years, supported by the Political Party in power, consciously and consistently made policies which have been against the welfare of the Soldier. Besides, of course, consistently downgrading the status enjoyed by us since independence which ironically has today dipped even below the CAPF. However, more often than not, it is our own top brass in the AHQ who meekly follow and implement these policies, who have done more harm to their own by axing our own feet time and again. Rather than firing all their 'policyed guns' from the MOD's shoulders against their own, if they ever bother to scratch a little below the surface they will realise that things can be resolved within our own fraternity most of the time. Mine was one such classic case where our own top brass was more to blame than the babus of MOD.

Personal: I have always been of the firm opinion that your convictions are the compasses of life that help you move in the right direction. They are the foundation stones that help us to stand firm when everything around us is shaking and sinking. They are the possessions that define who we are. They determine parameters that in turn chart the course of our lives.

When it comes to convictions, this old saying always stands true, “If you don’t stand up for anything,  you will fall down for everything”. 

That is why it is truly important and critical for us to solidify our non-negotiable values.

This was one such saga of non-negotiable values.

“Ire Fortiter Quo Nemo Ante iit”
~ Be a Trail Blazer ~

P.S. Throughout the course of this fight over the 3 years and continues to this day even after hanging his spurs, my pillar of support has been, AJ Singh. My friend, my brother, I have no words to express my gratitude and thankfulness to you. “General – they don’t make them like you any longer. I thank you from the core of my being”.

Major Harpal Singh Virk (Veteran)

*******   END   ******* 

HEARTIEST CONGRATULATIONS TO HARPAL
GOD BE WITH YOU


       
       

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