State of Odisha Vs Rabinarayan Barik

IN THE HIGH COURT OF ORISSA AT CUTTACK WA Nos. 607 of 2021 and 412 of 2021

( Appeals under Section-10 of the Letters Patent of Patna High Court read with Article 4 of the Orissa High Court Rules, 1948)

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WA No.607 of 2021

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_1. _State of **Odisha, ** represented
through Principal Secretary to
Government, Housing & Urban
Development Department,
Bhubaneswar
2. **Deputy Secretary to Government, **
Housing & Urban Development
Department, Bhubaneswar
	….	Appellants
-Versus-
*Rabinarayan Barik*	….	Respondent
WA No.412 of 2021
*Talcher Municipality*, represented
through its Executive Officer,
Talcher, Angul -Versus-	.....	Appellant
*1. Rabinarayan Barik*	.....	Respondent
**2. State of Odisha, **represented
through Principal Secretary to
Government, Housing & Urban
Development Department,
Bhubaneswar,
3.**Deputy Secretary to Government, **
Housing & Urban Development
Department, Bhubaneswar	.....	Proforma Respondents

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Page 1 of 8

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WA Nos. 607 & 412 of 2021

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Advocates appeared:

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For Appellant(s) : Mr. Siba Narayan Biswal, Additional Standing Counsel ( in W.A. No.607 of 2021 ) : Mr. Pradeep Kumar Panda, Advocate ( in W.A. No.412 of 2021 ) For Respondent : Mr. Sameer Kumar Das, Advocate ( W.A. Nos.607 and 412 of 2021 )

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CORAM:

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MR. JUSTICE K.R. MOHAPATRA MISS JUSTICE SAVITRI RATHO

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---------------------------------------------------------------------------Heard and disposed of on 25.09.2025

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----------------------------------------------------------------------------

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J U D G M E N T

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By the Bench:

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1. These Intra - Court appeals have been filed assailing the common judgment dated 18^th March, 2021 passed in W.P.(C) No.14217 of 2019. In WA No.607 of 2021, State of Odisha and its functionaries being the Appellants and in WA No.412 of 2021, the Talcher Municipality being the Appellant challenge the aforesaid judgment.

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2. Mr. Biswal, learned Additional Standing Counsel submits that W.P.(C) No.14217 of 2019 was filed by the Respondent challenging the Order No.13953/HUD dated 6^th August, 2019 issued by the Housing and Urban Development Department, Government of Odisha in deputing/deploying the Respondent to Notified Area Council, Hindol (for short, ‘Hindol NAC’) in the district of Dhenkanal. The Respondent was then continuing as Tax Collector under Talcher

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Page 2 of 8

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WA Nos.607 & 412 of 2021

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Municipality. In the writ petition, it was contended by the Petitioner (Respondent in the WAs) that in absence of a State cadre, the Petitioner could not have been deployed to another local body namely, Hindol NAC. Further, the deputation, if any, of the Respondent is also not permissible in absence of any consent from the borrowing Department, i.e., Hindol NAC.

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2.1 In the impugned judgment under Annexure-2, learned Single Judge, held as under:

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“ 8. Considering the rival contentions of the Parties, this Court finds, there is no denial to the fact that there is no such cadre namely "Odisha Municipal Finance Service Cadre" as of now, which makes it clear that there is no existence of common cadre. Now coming to the claim of the Parties, this Court finds, so long as common cadre rule is not framed, control over the services of the Petitioners lies on the Municipality and thus while observing that the deputation order involved herein becomes bad, this Court also observes, the Petitioners are deemed to be continuing under the jurisdiction of Talcher Municipality. This Court observes, the impugned order vide Annexure-2 involving all the writ petitions being passed by an Authority outside the Talcher Municipality becomes bad in law. This Court here, taking into account the statement of the State through paragraph nos.5 to 8 of the counter affidavit, finds, the .State Government in its counter affidavit has a clear admission. of not having the cadre namely "Odisha Municipal Finance Service Cadre". In this view of the matter this Court while setting aside the order vide Annexure-2, also sets aside the relieve order involving the Petitioners vide Annexure-3. It is, at this stage of the matter, taking into account the interim order passed on 5.03.2020 where this Court has directed, there shall be no coercive action involving the Petitioners, this Court on the setting aside of the orders ,vide Annexures-2 & 3, directs, the Petitioners may be deemed to be continuing in the Talcher Municipality and for they are not being able to discharge their duty involving this period, such period involved may be adjusted towards admissible leave and payment shall be made accordingly by

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Page 3 of 8

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WA Nos.607 & 412 of 2021

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completing the entire exercise within a period of two months. All the Petitioners in the meanwhile will be entitled to current salary forthwith.”

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3. Mr. Biswal, learned Additional Standing Counsel submits that by the time the impugned order dated 6^th August, 2019 was passed, Odisha Municipal Finance Service (Method of Recruitment and Conditions of Service) Rules, 2017 (for short, ‘the Rules’) was already in operation. Sub-rule (4) of Rule 3 of the said Rules defines Revenue branch of service in Odisha Municipal Finance Service, which includes Tax and Fee Collector. Rule 7 of the said Rules deals with Appointing Authority and jurisdiction of municipal services. Sub-rule (1) and (3) of Rule 7 of the Rules are relevant for our discussion, which read as under:

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7. Appointing Authority and Jurisdiction of Municipal Services :- (1) The Director, Municipal Administration in the Housing & Urban Development Department shall be the Appointing Authority for all categories of posts in the Service.

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(3) The service shall be a state cadre and the Officers and employees appointed to the service shall be transferred as per the transfer policy of the Government or deputed to all Urban Local Bodies across the State.”

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3.1 The Director, Municipal Administration in the Housing and Urban Development Department shall be the appointing authority for all categories of posts in the services. As per Subrule (3), the Tax and Fee Collector shall be a state cadre post and the officers and employees appointed to the post shall be transferred as per the transfer policy of the Government or deputed to all other local bodies across the State. Thus, by the WA Nos.607 & 412 of 2021 Page 4 of 8

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time the order impugned in the writ petition was passed by the Government, the Respondent was a state cadre employee of Odisha Municipal Finance Service. As such, there is no illegality in deputing/deploying the Respondent to Hindol NAC.

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3.2 Learned Single Judge failed to appreciate the scope of Rule 7(3) of the 2017 Rules and passed the judgment, which is impugned herein. He also referred to the counter affidavit filed by the State in the writ petition, wherein at paragraph-5, it has been categorically stated that earlier the posts of Octroi Tax Collector/Tax Collector were under the Urban Local Body which was non-LFS cadre post and the appointing authority was the Chairperson of the concerned Urban Local Body. The Respondent was continuing as such under Talcher Municipality. After coming into force of 2017 Rules, Government in Housing and Urban Development Department created a new cadre namely, Odisha Municipal Finance Service cadre inviting objections/suggestions from all persons likely to be affected. Accordingly, the Respondent was brought to the Odisha Municipal Finance Service and was re-designated as Tax and Free Collector. Thus, in exercise of power under Rule 7(3) of the 2017 Rules, the Respondent was deputed to Hindol NAC. These material aspects not being taken into consideration by the learned Single Judge, the impugned judgment is liable to be set aside.

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4. Mr. Das, learned counsel for the Respondent vehemently objects to the same. It is his submission that there is no dispute that by the time the order impugned in the writ

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Page 5 of 8

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WA Nos.607 & 412 of 2021

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petition was passed, i.e., on 6^th August, 2019, 2017 Rules was in force but the Odisha Municipal Finance Service cadre was not created by that date. It was created only on 14^th February, 2020 (Annexure-4) to the WA No.607 of 2021. The order impugned in the writ appeal being passed much before formation of the common cadre of Odisha Municipal Finance Service, Rule 7(3) of the 2017 Rules would not be applicable to the instant case. Learned Single Judge taking note of the same, passed the judgment impugned herein. As such, there is no illegality in the impugned judgment.

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4.1 He further referred to the case law in Ms. Sarita Singh vs. M/s. Shree Infosoft Private Limited , 2022 SCC OnLine SC 65 , wherein, Hon’ble Supreme Court discussing the ratio in State of Punjab vs. Inder Singh; (1997) 8 SCC 372 and Umapati Choudhary vs. State of Bihar; (1999) 4 SCC 659 held that deputation has a definite connotation in law and involves a third party. A deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. In the instant case, no consent from the Respondent was sought for the so-called deputation. Further, Hindol NAC had specifically expressed its inability to pay the salary of the employees sought to be deputed/deployed including the Respondent. He referred Annexure-7 to the rejoinder affidavit filed by the Petitioner/ Respondent (in the writ petition) in which, Letter No.2363 dated 18^th November, 2019 issued by the Chairperson NAC, Hindol to the Director

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Page 6 of 8

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WA Nos.607 & 412 of 2021

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Municipal Administration, Odisha, Bhubaneswar clearly indicates that since Hindol NAC was newly created, it had no fund to pay the salary of the Respondent including two other Tax Collectors deputed to the said NAC. Thus, there was apparently no consent either by the Respondent or the borrowing department for the deputation, if any. As such, the order dated 6^th August, 2019, which was impugned in the writ petition, was not sustainable in the eye of law. Hence, learned Single Judge has committed no error in setting aside the said order.

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5. Mr. Panda, learned counsel for the Talcher Municipality, however, supported the submission of Mr. Biswal, learned Additional Standing Counsel.

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6. Heard learned counsel for the parties. 7. Perused the record including the case records in the disposed of writ petition. From the record, it appears that Order No.13953 dated 6^th August, 2019 issued by the Housing and Urban Development Department, Government of Odisha deputing/deploying the Respondent to Hindol NAC, was under challenge in the writ petition. Admittedly, 2017 Rules was in force at the time when order dated 6^th August, 2019 was passed. But the question arises as to whether the Government had power to pass such an order under Rule 7(3) of the 2017 Rules or not.

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8. Rule 7(3), as quoted above, empowers the Government to transfer/depute an employee of Odisha Municipal Finance Service within the cadre. By the time the order dated 6^th August, 2019 was passed, the Respondent was not borne in the State cadre. His name was included in the State cadre only on 14^th February, 2020 WA Nos.607 & 412 of 2021 Page 7 of 8

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as would be apparent from Annexure-4 to the appeal memo. Thus, the Respondent was not a state cadre employee of Odisha Municipal Finance Service by the time the order impugned in the writ petition was passed. That apart, even if it is assumed that the Respondent could be deputed to the Hindol NAC, the impugned order dated 6^th August, 2019 would not sustain, as the consent of the Respondent and Hindol NAC is conspicuously absent in the instant case. On the other hand, Annexure-7 to the rejoinder affidavit filed by the Petitioner/Respondent (in the writ petition) clearly reveals that Hindol NAC has expressed its inability to pay the salary of the Respondent including other two employees deputed/deployed along with him. Learned Single Judge, at paragraph-8 of the judgment, has discussed the same, although not in too many words.

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9. Thus, taking into consideration the facts and circumstances in its entirety, this Court has no hesitation to hold that the Respondent could not have been deputed/deployed to Hindol NAC vide Order No.13953 dated 6^th August, 2019, which is rightly held by learned Single Judge.

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10. Accordingly, both the writ appeals merit no consideration and are accordingly dismissed.

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(K.R. Mohapatra) Judge

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Signature Not Verified

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Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal AssistantReason: Authentication Orissa High Court, Cuttack, Location: ORISSA HIGH COURT Dated, the 25^th Septe mbe r, 2025/Sisir Date: 10-Oct-2025 11:08:11

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(Savitri Ratho) Judge

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Page 8 of 8

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WA Nos.607 & 412 of 2021

State of Odisha v. Rabinarayan Barik

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State of Odisha v. Rabinarayan Barik

Case brief

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