RESHMA PHILIP Vs. STATE OF M P

JUDGEMENT

(1.) THIS is an appeal filed Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 18-2-2008 passed by learned Single Judge in W. P. No. 17635/07 (S ).

(2.) THE relevant facts briefly are that the appellant was posted as lower Division Teacher in Government Primary School, Railway Sarai, jabalpur w. e. f. 1-8-2005. Respondent No. 4 was posted as Lower Division teacher in the aforesaid school w. e. f. 24-7-2006 and the respondent No. 5 was posted in the said school as Lower Division Teacher w. e. f. 20-7-2007. By an order dated 10-7-2007 the appellant was shifted from Government Primary school, Railway Sarai to Government Primary School, Chhui Khadan. Aggrieved, the appellant filed W. P. No. 17635/2007 (s) contending inter alia that as per the policy of rationalisation of the Government, the surplus staff was to be shifted on the basis of last come first go. The appellant's case was that the respondent Nos. 4 and 5 who had joined the appellant later than the appellant should have been shifted as per this policy of rationalization and appellant would not be shifted from Government Primary School, Railway Sarai to government Primary School, Chhui Khadan. The learned Single Judge admitted the writ petition on 9-1-2008 and after taking into consideration this contention raised in the writ petition passed an interim order directing the respondents to maintain status quo which existed as on 9-1-2008. But thereafter the order of transfer of the appellant was modified by another order dated 22-12-2007 and the learned Single Judge held in the impugned order dated 18-2-2008 that the order dated 22-12-2007 raised a fresh cause of action and hence the appellant may file fresh writ petition challenging the order dated 22-12-2007 and dismissed the writ petition as infructuous. Aggrieved, the appellant has filed his appeal.

(3.) MR. A. K. Pathak, learned Counsel for the appellant submitted that the case of the appellant all though was that she should not have been treated as surplus employee of the institution and instead respondent Nos. 4 and 5 should have been treated as surplus staff. He submitted even after the order dated 10-7-2007 was modified by the order dated 22-12-2007, this issue raised by the appellant could be decided by the Court in the Writ Petition No. 17635/07 (s)and for this reason the appellant had filed an application for amendment in the writ petition proposing to incorporate in the writ petition the challenge to the order dated 22-12-2007 by which the order dated 10-7-2007 was modified, but the learned Single Judge instead of allowing the application for amendment has dismissed the writ petition as infructuous after holding that a fresh cause of action arose for the petitioner to file a fresh writ petition.