Protik Prakash Banerjee, J. - This ritual seppuku on the part of the writ petitioner involves, among other things, a challenge to the denial by the respondent authorities to the petitioner of his increments and refixation of his pay after factoring in such increments, in view of the training he had obtained and a challenge to the memorandum dated February 6, 2018 which extended it to many other teachers, who, like the petitioner, had been appointed without a teachers training qualification. Yet I have to deal with a writ petition as it comes to me, and not as ideally it ought to have been drafted. What is to be seen is how far on the face of the lack of material facts and the absence of the proper pleadings as would raise the questions of law which the respondents would be called upon to answer, can the writ petition be held to be maintainable or whether it should be dismissed with liberty to file afresh, since it would fail on purely formal grounds, for technical defects.

2. I confess, I tried my best to grant the writ petitioner the relief he had prayed for in prayer (a) of the Writ Petition. I tried to find a kernel of a case which I could sustain on the face of the instructions in writing which I had been able to extract from the respondents after a lot of chances and appointing a learned advocate in the panel maintained by the State of West Bengal to represent the statutory authorities, since none was appearing.

3. For this I went through the averments in the writ petition and tried to delve between the lines, to try and supply, in my mind, the averments which ought to have been made for the writ petition not to have failed for formal defects.

4. With that salutary purpose, the material averments in the writ petition are set out hereinbelow: -

"Paragraph 3: That petitioner moved the Honble High Court by filing writ petition inter alia for regularization/approval of appointment in the said post as organizing teacher of the said school. Pursuant to order of the Honble Court in terms of letter of approval dated 17.04.2009 issued by the D.I. of Schools South 24-parganas, the service of the petitioner was approved w.e.f. 04.10.2004 with the qualification bachelor of Arts (B.A.). A copy of the letter of approval dated 21.04.2009 issued by the D.I. of School, South 24-paraganas is enclosed herewith and marked with the letter- P-1.

Paragraph 4: That after the service of the petitioner was approved the petitioner applied for the School Management to allow the petitioner for undergoing B.Ed course.

Paragraph 5: That in terms of resolution dated 19.01.2009 the school Management resolved to permit the petitioner to undergo training course of B.Ed.

A copy of the Resolution dated 19.01.2009 is enclosed herewith and marked with the letter P-2.

Paragraph 6: That your petitioner applied for admission in B.Ed course in various institutions like Berhampore B.Ed College, Acharya Jagadish Chandra Bose College, Banipur B.Ed College from the year 2009 up to 2012 but owing to lack of percentage of marks fixed for admission of students under teachers category and dearth of seats available for admission of students under Teachers category, pendency of several cases before the Honble Court on the issue of admission in B.Ed course, you petitioner inspite of best possible of persuasion could not get opportunity of admission in any college for undergoing B.Ed Course during that period.

Some of the copies of applications, receipt of Application made for admission in B.Ed course are enclosed herewith and collectively marked with the letter P-3 collectively.

Paragraph 7: It is pertinent to refer herein that considering the availability of number of Institutions vis-a-vis intending Applicants (Students) number of teachers did not get opportunity of admission in B.Ed course during those period.

Paragraph 8: That for getting increment completion of B.Ed course is the basic condition. After appointment the concerned teacher is to complete B.Ed Course within five years of appointment otherwise the concerned teacher will not get the benefit of increment. As per Government Rule four increments allowed during first 5 years of service during which B.Ed course to be completed.

Paragraph 9: That taking into consideration the circumstances beyond control regarding opportunity of admission of Teachers for undergoing B.Ed course the Government of West Bengal Education Department in terms of Memo No. 759-SE (S)/2P-1/09 dated 30.07.09 granted one time relaxation upto the year 2012 in favour of untrained teachers to complete B.Ed training for the purpose of drawing increments up to the year 2012. A copy of the circular dated 30.07.2009 is enclosed herewith and marked with the letter P-4.

Paragraph 10: That in terms of subsequent government order dated 10.02.2010 it has been clarified that the benefit of exemption for stoppage of increment as provided in memo dated 30.07.2009 will be counted from 01.07.2006 and such Memo was issued with the concurrence of the Finance Department.

A copy of the Memo dated 10.02.2010 is enclosed herewith and marked with the letter P-5.

Paragraph 11: it is submitted that in terms of circular/memo dated 30th July, 2009 issued by the School Education Department grant of benefit of to the Untrained Assistant Teacher not undergone/completed B.Ed training yet has been extended upto the year 2012. Such circulars cover all the Assistant Teachers who could not complete the B.Ed training extending the period of upto 2012.

Paragraph 12: That in effect of such circular benefit of increment has been extended to all such untrained teachers including your petitioner.

Paragraph 13: That your petitioner got the benefit of increment till joining to the school upto 01.06.2013 though remained untrained.

Paragraph 14: That subsequently w.e.f. 01.07.2013 upto 18.01.2015 the incremental benefit was not extended to the petitioner on the ground of expiry of extension period upto 2012 as accorded in terms of Memo dated 30th July, 2009 extending the period upto 2012 as the petitioner was not in a position to complete the training course during that period.

Paragraph 15: That the petitioner got admission in B.Ed course on 04.09.2013 in Netaji Open University through Open Distance Learning Mode, a two years course and the institution being affiliated by National Council of Teacher Education (N.C.T.E). the result of the said examination published on 15.03.2015, the petitioner successfully completed the course. The last date examination being 18.01.2015 it will be deemed that the petitioner has completed the course on 18.01.2015. Copy of the Mark sheet of B.Ed examination is enclosed herewith and marked with the letter P-6.

Paragraph 16: That after successful completion of B.Ed course the petitioner is getting the benefit of increment w.e.f. 19.01.2015 following declaration of result of B.Ed examination but incremental benefit for the period 01.07.2013 to 18.01.2015 has not been extended to the petitioner.

Paragraphs 17: That in terms memo dated 06.02.2012 the Joint secretary to the Government of West Bengal, School Education Department has issued one order directing that one time relaxation granted vide memo dated 30.07.2009 read with memo dated 29.03.2010 may be extended in support of increments for all un-trained teachers appointed during the period from 2006 to 2009 upto 01.07.2015 as usual. In terms of the said order it was also directed to restore to the incumbent teachers any loss of increments between the period from 01.01.2013 to 01.07.2015 suffered by such teachers. A copy of the memo dated 06.02.2018 issued by the Joint Secretary to the Government of West Bengal, School Education Department is enclosed herewith and marked with the letter P-7.

Paragraph 18: That it is learnt that in effect of such Memo/Order incremental benefit for the period of 01.07.2013 to 01.07.2015 which was stopped/not paid in respect of the Teachers who could not complete B.Ed course before that period, have been allowed the benefit of increment for such period and it is also learnt already such Teachers have been paid the arrears in terms of such benefit for the said period."

5. The respondent no.3 has submitted his instructions in writing under cover of a Memo No. L.C./404 dated August 10, 2018. In the said instructions the said records disclosed by the writ petitioner or their cumulative effect and contents have neither been denied nor disputed. Even though no affidavit-in-opposition has been used by the respondents, who appeared after service and my appointment of a learned advocate to represent the respondents from the panel of the State of West Bengal, as aforesaid, the State of West Bengal has contested the claim of the writ petitioner on merits on the following grounds: -

"(a) The Petitioner was an Assistant teacher in LangalBenkiPollyMongal High School, Village - LangalBenki, P.O Pithapukur, PS. Kashipur, DisSouth 24 Parganas

(b) The service of the petitioner was approved w.e.f 04.10.2004 (as a consequence of a court case) vide memo no 538/Gen dt 21.04.2009.

(c) The petitioner got himself enrolled into B.Ed course and completed the same in 2015.

(d) As per G.O. No. 181- SE(B) dt 08.10.2009, it is mandatory to complete B.Ed course within 5 years of appointment in order to enjoy periodical increments. In this instant case the petitioner could not complete the same within the stipulated time period of 5 years.

(e) As a significant number of the untrained teachers could not undergo/complete B.Ed course due to several court cases, a G.O was issued vide no. 759-SE(S) dt 30.07.2009 wherein such untrained teachers were allowed to enjoy increments upto 2012.

(f) Another G.O. Vide No 118-SE/S dt 06.02.2018 has been issued extending the benefit of drawing increment the untrained teachers upto 01.07.2015. But the purview of the order has been restricted to those teachers who were appointed between 2006 to 2009

(g) As the service of the petitioner was approved w.e.f. 04.10.2004 in terms of G.O. No. 118-SE/S dt 06.02.2018 the petitioner is not entitled to get the relief as claimed by him."

6. So, the short point that the respondents have taken against the writ petitioner is that the memoranda he has claimed under, were issued on or after July 30, 2009 and the latest one, of February 6, 2018 was expressly restricted to those teachers who were appointed between 2006 and 2009, and since the service of the writ petitioner was approved with effect from October 4, 2004 by a memo dated April 21, 2009, he was not covered by the said memoranda, which applied only to those who were appointed between 2006 and 2009.

7. It is a separate matter that the liability of the State of West Bengal to pay any salary to the writ petitioner arose only on his services being approved, which admittedly occurred in 2009, and therefore qualitatively, the writ petitioner could have made out a case that this is a distinction without real difference. It is a matter of record that the writ petitioner continued to receive increments during the initial 5 years of his appointment and even after that by virtue of Memo No. 759-SE (S)/2P-1/09 dated July 30, 2009 issued by the Government of West Bengal Education Department granting one-time relaxation up to the year 2012 for untrained teachers who could not manage to obtain the requisite B. Ed. qualification. Thus, the petitioner, like all other teachers in the untrained category, enjoyed the increments from the year 2004 up to the year 2012. This is supported by the averment of the petitioner made at paragraph 13 of the writ petition where the petitioner has stated that he has enjoyed the benefit of increment till joining the said school upto June 1, 2013 though he remained untrained.

8. He could therefore, have made out a case this increment and its extension were benefits which were given by the respondent authorities to all untrained teachers who were appointed pursuant to the recommendation of the School Service Commission regardless of when they were appointed, whether before or after the enforcement of Article 21A of the Constitution of India and Section 18 of the Right of Children to Free and Compulsory Education Act, 2009 prescribing the qualification of teachers training as mandatory and necessary rather than desirable, came into vogue. He could have made out a case that he and those who got the benefit between 2006 and 2009 even thereafter, formed a homogeneous class as far as the object of the classification was concerned, and this was accepted by the respondent authorities when they extended the benefit not just to those appointed between 2006 and 2009 but also to those like the petitioner, appointed in 2004, whose appointment was approved in 2009. He could have averred that the memo dated February 6, 2018 continued this benefit even after the period of five years from the date of appointment initially contemplated memoranda in 2004, in 2006 and 2009 - otherwise the extension of the increments to those teachers who were yet to enrol themselves in the teachers training courses or qualify therein, even in 2015 or 2018 would not arise, since 5 years from 2009 would expire in 2014. Instead, he has challenged the memo dated February 6, 2018, and sought its modification, in complete misunderstanding of the law forbidding double classification on the same subject when there is already a homogeneous class with a reasonable differentia and rational nexus with the object of classification. A mere perusal of the writ petition would show that the writ petitioner has not been advised about the existence of the ratio of D.S. Nakara-v-Union of India, (1983) AIR SC 130 or its exceptions being Indian Ex-Services League and Others-v-Union of India and Others, (1991) AIR SC 1182 and United Bank of India and Others-v-United Bank of India Retirees Welfare Association and Others, (2018) AIR SC 2941 and Krishena Kumar and Others-v-Union of India and Others, (1990) AIR SC 1782 when it was held that those retiring under a scheme of provident fund and those retiring under a scheme of pension did not form a homogenous class.

9. That apart, the writ petitioner has failed to explain why, despite being appointed to the said post in October 2004 in the category of an untrained Assistant Teacher, he has failed to obtain the requisite training and qualification within the limited period of 5 years as was applicable to teachers appointed in the untrained category. To justify his helplessness to obtain the requisite qualification within the given time-frame, the writ petitioner has taken a feeble defence that despite applying to various institutions for admission in Bachelor of Education course, he was unable to secure for himself admission owing to lack of percentage of marks fixed for admission of students under teachers category and dearth of seats available for admission of students under Teachers Category as well as the pendency of several cases before the Honble Court on the issue of admission in the B.Ed. course. If this means that he lacked the adequate percentage required for admission to the available seats, till 2013 after his appointment with effect from October 4, 2004 then it was not something beyond his control but his fault. He cannot be, naturally, rewarded for this fault. I could even have overlooked this, had the petitioner satisfied this court on the genuineness of his claim that he tried but could not get admission between 2004 and 2013. Unfortunately, these applications annexed with the writ petition which can be found between pages 26-30 of the writ petition, show that they have been made for the first time in the year 2010. The petitioner brings nothing before the bench to show that he attempted to enrol himself for the course of B.Ed. orobtain the said qualification before 2010.

10. I would have thought that a writ petition which had such formal defects for which it was sure to fail, since the actual legal questions had neither been included as submissions in the petition, nor the material facts required for the said questions to be formulated, pleaded, ought not to have been pressed but sought to have been dismissed as withdrawn with liberty to file afresh. That a writ petition does not require arguments of law to be pleaded is not good law, and contrary to the peculiar nature of writ petitions and their pleading, has been held by the Honble Supreme Court in Bharat Singh and Others-v-State of Haryana and Others, (1988) 4 SCC 534 [LQ/SC/1988/464] at paragraph 13 which has laid down the law that where an ostensible question of law is to be decided in a writ petition, facts in support of that point ought to be pleaded and the evidence in support of those facts are to be annexed to the writ petition, for the court to entertain even those questions of law. Otherwise, the writ court cannot entertain even that question of law.

11. However, it appears that the mores and customs we were trained in, are now observed in the breach. Whereas at one time, Oliver Goldsmith could write without being melodramatic that

"When lovely woman stoops to folly,

And finds too late that men betray,

What charm can soothe her melancholy

What art can wash her tears away

The only art her guilt to cover,

To hide her shame from evry eye,

To give repentance to her lover,

And wring his bosom is - to die."

now such betrayal is not held to be an ignominy from which no salvation is possible. Rather, presently it is more commonplace to be indiscreet and withdraw, to sin again another day, as T.S. Eliot had the occasion to write, in Part III (The Fire Sermon) of the Waste Land: -

"She turns and looks a moment in the glass,

Hardly aware of her departed lover;

Her brain allows one half-formed thought to pass:

"Well now thats done: and Im glad its over."

When lovely woman stoops to folly and

Paces about her room again, alone,

She smooths her hair with automatic hand,

And puts a record on the gramophone."

12. I therefore feel, this is a fit case which ought to be dismissed for formal and technical grounds, and also because it does not disclose a case for the respondents to answer, even though the respondents have not considered and disposed of the writ petitioners representations as has been agitated by the writ petitioner in the petition. Merely directing them to consider and dispose of the same will result in a formal communication of the matters mentioned in the written instructions. It would therefore, subserve substantial justice if I dismissed the writ petition with liberty reserved to the writ petitioner to file afresh, if so advised, after considering the case made out by the respondents in its written instructions whose contents have been set out by me at paragraph 5 of this judgment on the basis of proper averments and the questions of law which arise on their basis which too I have indicated above. So ordered. The parties will bear their own costs. Urgent certified photocopy of this order, if applied for.