Irregular appointments contrary to rules cannot be regularized.

The petitioner has come up with this writ petition to direct the respondents to regularize the petitioner's services in the post of Night Watchman in the Panchayat Union Elementary School, Thirukkattupillai, Buthalur Panchayat Union, Thiruvaiyaru Taluk, Thanjavur District on completion of 10 years of service.

2. The petitioner was appointed on 20.12.1984 as Night Watchman in the Panchayat Union Elementary School, Thirukkattupillai and joined duty on 20.12.1984 in pursuant to the order of second respondent and is working continuously. On 11.04.1996, the fourth respondent sent a proposal to the second respondent to regularize the services of the petitioner. The second respondent did not take any action on the proposal sent by the fourth respondent. Therefore, he made a representation, dated 09.07.2010 to the respondents for regularisation of his service based on the G.O.Ms.No.856 Education, dated 08.02.1994. The respondents did not pass any orders on the representation. Therefore, the petitioner filed the present writ petition for the relief stated supra.

3. The second respondent has filed the counter affidavit denying the various averments made by the petitioner. The second respondent stated that the petitioner's appointment is an irregular appointment as there was a ban on contingent service appointment. The District Collector, Thanjavur, dated 29.09.2006 has taken action against the persons responsible for the irregular appointment. The petitioner was appointed as contingent employee and was paid from 29.09.2006. The petitioner's appointment was irregular. Therefore, he is not entitled for regularisation. The second respondent also stated that the representation of the petitioner was not received and hence, prayed for dismissal of the writ petition.

4. Heard Mr.A.Rahul, learned counsel for the petitioner, T.S.Mohamed Mohideen, learned Additional Government Pleader appearing for the respondents 1,3 & 4 and Mr.J.Gunaseelan Muthiah, learned counsel appearing for the second respondent.

5. The learned counsel for the petitioner and the respondents reiterated the averments made in the affidavit and counter affidavit. The learned counsel for the petitioner relied on the judgment reported in 2010(1) CWC 721 (P.Subramani vs. Director of School Education) in paragraph 11 of the judgment reads as follows:-

"11. Coming to the first reason assigned in the impugned order, the second respondent would state that the petitioner is not a daily wager but a person appointed on consolidated pay and the pay is met from contingent expenses. This could hardly be a reason for rejecting the case of the petitioner, the nomenclature by which the petitioner has been called by the fourth respondent or by the department is not the issue, the crux of the issue is a nature of employment and duties and responsibilities discharged by the petitioner. Likewise the test is not from under which head of account the expenses towards the petitioner's salary has been met, but the real test would be whether there is a need for the post. It is too late in the day for the respondents to state that there is no need for the post. This has been negatived by their own conduct in employing the petitioner for nearly 20 years. That apart at the level of the petitioner, he is not aware as to whether he is a part timer or a daily wager or a person on consolidate wage or a contingent worker on daily wages all that the petitioner is aware is that he is not a regular employee of the fourth respondent school, which is Government School."

and he relied order dated 25.10.2007 made in W.A.(MD)No391 of 2007 and in paragraph 5 to 7 reads as follows:

"5. We have heard the learned counsel on either side. In view of the Government order mentioned supra, the respondents are eligible for getting regularization in their service. It is not disputed that they have rendered service for over 10 years as on 01.01.2006 and all the respondents have completed more than 10 years of service so as