IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5819 of 2010 Umapati Devi, W/O Sri Madan Kumar, R/O Bari Tola, P.S.Buxar Nagar, Distt-Buxar. … Petitioner Versus 1. The State Of Bihar 2. The Collector Buxar 3. The Deputy Development Commissioner Buxar 4. The Sub-Divisional Magistrate Buxar 5. The Child Development Project Officer Barahmpur, Buxar 6. District Welfare Officer Buxar 7. Madhuri Devi W/O Sri Sunil Kumar Sinha R/O Bari Tola, P.S.Buxar Nagar, Distt-Buxar … Respondents ----------- 4 09.09.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the fact that despite her being the better candidate, Respondent No.7 came to be appointed as Anganbari Sewika. The latter was terminated on 08.10.2007. Notwithstanding the same, she continues to work. The second contention is that the petitioner was then required to be appointed as the next eligible candidate and there was no justification for a fresh selection. Counsel for the petitioner seeks to persuade the Court that this application is maintainable as observed by the Division Bench in LPA No. 262 of 2010 that the issue of fresh selection was not in question therein or in the writ petition. If the opportunity to challenge the subsequent action for fresh selection was available to the petitioner in the earlier round of litigation and she did not do so, the present writ petition is barred by principals of constructive of res judicata. Even otherwise, the Court finds from the order dated 08.10.2007 2 terminating Respondent No.7 that her appointment was made by adoption of a wrong criteria. The moment she came to be appointed the single vacancy stood exhausted. If she was subsequently removed for any reason, as held in (2009) 4 SCC 555 (Mohd. Sohrab Khan Vrs. Aligarh Muslim University) the vacancy did not revive, it was a fresh vacancy. The District Magistrate has rightly ordered for fresh selection. Notwithstanding the order dated 02.12.2010 of the Court requiring the respondents to file counter affidavit with regard to the status of Respondent No.7, no counter affidavit has been filed and none has appeared for Respondent No.7 despite valid service of notice. The Court is left with no option but to now issue a mandamus to the Director, ICDS that he shall within 72 hours of the production of this order before him ensure full compliance of the order of the District Magistrate removing Respondent No.7 from service dated 08.10.2007 unless already complied with or that order has been varied modified and or annulled in any proceeding at the behest of Respondent No.7. There is another serious aspect of the matter. The writ petition was filed on 02.04.2010 and after serving the copies in the office of the Advocate General, the second copy was to facilitate quick filing of a counter affidavit. Time was again granted on 02.12.2010 and 06.05.2011 for filing of counter affidavit. On the latter occasion costs of Rs. 1,000/- were 3 imposed to be paid in the manner directed. Counsel for the petitioner submits that the costs have not been paid as yet. Counsel for the State submits that despite communications to the authorities they have not received any response and are not aware if the costs have been deposited or not. The costs were directed to be paid to the petitioner. Obviously, the order does not stand complied. The Court would not like to go into the issue of violation of the directions of the Court amounting to contempt. That is one aspect of the matter which can be dealt with. The other aspect which the Court considers more appropriate is to enhance the cost to Rs. 5,000/-. The Court directs that the cost shall be paid in the manner directed on 06.05.2011 to be ensured by the District Magistrate, Buxar within a maximum period of six weeks from the date of receipt and a production of a copy of this order before him. Liberty is granted to the respondents to fix responsibility after holding proper inquiry with full opportunity to the concerned to recover the costs from their salary. The application stands disposed. Md. Ibrarul ( Navin Sinha, J.)