Dharmadhikari, J.:— The petitioner, Mrs. Premlata Sathe, was initially appointed by the Governing Body of the respondent No. 1 College on a purely temporary basis upto 31st March, 1971, as a Lecturer in Economics, vide letter dated 14th October, 1970. Thereafter, by a corrigendum dated 3rd December 1970 certain changes were effected in the initial appointment order already issued. By this corrigendum the petitioner was appointed on probation instead of on a purely temporary basis, upto 19th June 1971. By a letter dated 19th March 1971 her services were continued for the next academic year i.e 1971-1972 subject to the terms of the old agreement between the petitioner and the Management. By a letter dated 16th February 1972 her appointment on probation was further extended by one more year i.e till the academic year 1972-1973. Thereafter, vide letter dated 26th March, 1973 the petitioner was informed that the extended period of probation expires with the academic year 1972-1973, and as her work in the college was not found satisfactory, she was not being continued thereafter. This letter was in the nature of an advance intimation about the termination of her services after the working hours of 25th June 1973. Being aggrieved by this letter of termination, the petitioner approached the Governing Body of the respondent No. 1 college by a representation dated 27th March, 1973. Thereafter, she also filed a grievance before the Grievance Committee constituted by the Executive Council of the Nagpur University, vide her letter dated 11th April 1973. It appears from the record that the Grievance Committee submitted its report to the Executive Council, vide its report dated 19th July 1973, which was against the petitioner. Hence the petitioner approached this Court under Articles 226 and 227 of the Constitution of India, contending that the order of termination issued by the respondent No. 1 College terminating her services after the expiry of the working hours of 25th June 1973 is contrary to the provisions of Article 38(2) of Ordinance No. 4, popularly known as the College Code, read with Schedule-A attached to the said Ordinance.

2. In reply to these contentions raised in the petition, it was contended by the respondent No. 1 College that Article 38(2) of the College Code read with the agreement is not applicable to the case of the petitioner as no written contract in the form prescribed in Schedule-A was executed between the parties.

3. Initially when the matter was placed before a Division Bench, the Division Bench noticed two conflicting decisions of two Division Benches of this Court on this point.

4. In Shriram Tukaram Patil v. The Nagpur University . Special Civil Application No. 67 of 1970 decided on 21-1-1977. a Division Bench of this Court took a view that unless an agreement in writing as in Schedule-A is executed and an order of confirmation in writing is issued, the petitioner's period of probation is deemed to have been extended and it should be treated as if the petitioner continued on probation. While considering the provisions of Article 38(2) of the College Code, the Division Bench took the view that before the terms of the contract in the form contained in Schedule-A can be enforced, the contract must in fact come into being in writing, and unless such a contract is executed, the teacher cannot take advantage of the College Code or the terms and conditions incorporated in the written contract.

5. Another Division Bench of this Court, in Shrikant Kshirsagar v. G.S College of Commerce . Special Civil Application No. 2544 of 1976 decided on 24-12-1976. took a different view and held that the Schedule-A attached to the College Code should be read as a part and parcel of the College Code itself and the binding effect of the College Code or the contract is not dependent upon the actual execution of the agreement in writing between the parties. In view of these conflicting views expressed by the two Division Benches of this Court, the matter is referred to the Full Bench. The question referred, as refrained by us, is as follows:

6. Are the terms and conditions in the proforma of agreement under Schedule-A of Ordinance No. 4 of the Nagpur University, known as the College Code, binding and enforceable between the teacher and the Management even if no written contract is executed?

7. We have heard the learned counsel appearing for both the sides and have also gone through the relevant provisions of the Nagpur University Act, 1974, as well as of the College Code. It is not disputed before us that though the said College Code was framed under the repealed Nagpur University Act, 1963, by virtue of the provisions of section 91(1)(xiii) of the Act of 1974, the said College Code is still in force and is deemed to have been issued by the appropriate authority under the corresponding provisions of the Act of 1974. The relevant provisions of the College Code read as under:

“38. (1) The appointment of the teachers of a College, other than temporary teachers for a period not exceeding one academic year shall be made by the Governing Body of the College, after inviting applications for the posts by public advertisement, and after considering the recommendations of the Selection Committee as per Article 39.

The letter of appointment of a temporary teacher shall specify the period of notice of termination on each side, but it shall not be less than one month.

A temporary teacher who resigns his services after giving notice shall not be entitled to his summer vacation salary.

(2) Such teachers shall be appointed on a written contract in the form prescribed in Schedule-A.”

8. Article 39 of the College Code deals with the selection of teachers and the procedure to be followed for the said selection. Article 40 then lays down that a teacher already in service whose appointment is required to be made on a written contract shall enter into such contract within three months of the commencement of the Code. Then Article 41 deals with the appointment of Professors on a written contract for a specified period, with which we are not concerned in this petition. Schedule-A to the College Code lays down a form of agreement with the members of the staff in affiliated colleges. In the present case, though there was some dispute as to why the written agreement was not executed, it is an admitted position that in fact the parties have not entered into a written agreement in the form prescribed by Schedule-A. However, in our opinion, the form prescribed by Schedule-A cannot be read divorced from the substantial provisions of the College Code, namely, Chapter-V, which deals with the selection and appointment of teachers. It is an admitted position in the present case that the petitioner was appointed on probation, which clearly indicate that the appointment was in a clear vacancy, qua a permanent post. It can safely be presumed that the appointment was made after following the procedure prescribed by Articles 38 and 39 of the College Code. Here the first appointment was made vide letter dated 14th October, 1970, and the termination took place obviously after a period of two years. Clause 2 of the agreement provides that the party of the first part is employed in the first instance on probation for a period of one year, the period of probation may be extended by such further period as the party of the second part may deem fit but the total period of probation shall, in no case, exceed two years. Therefore, if the petitioner is right in contending that irrespective of the fact as to whether in reality a written contract is executed between the parties in the form prescribed in Schedule-A or not, she is entitled to the protection of the College Code as well as the terms and conditions therein incorporated, then obviously as rightly observed by the Division Bench relying upon the decision of the Supreme Court in State Of Punjab v. Dharam Singh . AIR 1968 SC 1210., the petitioner will have to be treated as a confirmed teacher after the expiry of the maximum period of probation of two years i.e 14th October 1972. Such a view has also been taken by a Division Bench of this Court in G.R Pimpalkar v. The Chandrapur Municipal Council . Special Civil Application No. 3221 of 1976 decided on 20-7-1976.. If the provisions of Article 38(2) of the College Code are read together with the terms and conditions incorporated in the written contract in Schedule-A, they clearly indicate that the maximum period of probation in the case of a teacher appointed on probation is two years. It follows from this that the Management is not empowered to extend the period of probation beyond the said period. The College Code itself has made a distinction between the two types of appointments, namely temporary and on probation. For an appointment on probation which is obviously in a clear vacancy qua a permanent post, a procedure is prescribed under Article 38(1). If an outer limit is fixed by the Code itself beyond which the Management is not authorised to extend the period of probation of a teacher, then, it is quite obvious that the teacher should be deemed to be confirmed after the expiry of the said maximum period of probation. The Management has the power to take necessary action, if so advised, within the said period of probation, and it cannot keep the teacher on probation after the expiry of the period of two years. Therefore, the only question which requires consideration in this reference is to find out as to whether the petitioner is entitled to the protection laid down in the form of agreement prescribed in Schedule-A irrespective of the fact that no written agreement was executed by the parties.

9. It is needless to say that the College Code was framed by the University to protect teachers from unscrupulous Managements from terminating their services or making appointments at their whims. The intention behind the framing of the College Code is to provide for better conditions of service to the teachers in the affiliated colleges and also to provide protection against unscrupulous removal, termination and dismissal from service. If that is the intention behind the framing of the College Code, then the provisions of Chapter-V relating to the selection and appointment of teachers will have to be construed in this background. Article 33 of the College Code deals with the appointment of teachers and provides for the procedure to be followed for such appointments. By sub-article (2) of the said article it is provided that such teachers shall be appointed on a written contract in the form prescribed in Schedule-A. The phraseology used in sub-Article (2) clearly indicates that the appointment is not contemplated in any other manner except on a written contract in the form prescribed in Schedule-A. It is not open to the parties to vary the terms of this written contract to the disadvantage of the teacher. Thus, in substance, the form prescribed in Schedule-A is a statutory form of contract and is a part and parcel of Chapter-V of the College Code itself. If that is so, then mere non-execution of the contract cannot vitiate the appointment, nor can it affect the enforceability or the binding nature of the contract itself. When applications are invited by the Management for appointment of a teacher as per the provisions of Article 38 of the College Code, it can safely be presumed that the Management intends to make the appointment of teacher subject to the terms and conditions incorporated in the form prescribed by Schedule-A. Article 38(2) makes it clear that such teacher can only be appointed on a written contract in the form prescribed in Schedule-A. The word “shall” is indicative of this intention. Similarly, a candidate who offers himself for appointment as a teacher on probation is also presumed to do so with the requisite knowledge of his rights and liabilities incorporated in the form of written contract prescribed in Schedule-A. If this is so, then the execution of a written contract is nothing but a mere formality. Normally a dispute or fight between an individual teacher and the Management is unequal in nature, in these circumstances, an unscrupulous employer cannot be permitted to take advantage of his own wrong of not getting a written contract duly executed, nor a teacher can avoid his responsibility under the said contract only because he has not signed the written contract. This is case where a form of contract is prescribed by the statute and the rights and liabilities flow from this statutory contract itself. Article 38(2) will have to be read together with the Schedule-A which forms a part and parcel of the said article of the college code. the provisions of the college code cannot be read in isolation divorced from the Schedule-A. The parties cannot be permitted to evade their liability under this statutory contract only because the ministerial act of signing the contract was not carried out. It is the substance of the matter which should take precedence over mere form. It is well settled that a construction should be put on such provisions of law which will suppress the mischief and advance the remedy. It must be so construed as to defeat all attempts of evasion or to avoid the obligations flowing from it even indirectly or in the circuitous manner. A construction will have to be preferred which will help avoiding injustice and absurdity and a construction which will help the party to escape from the obligation or will enable him to defeat the statute or to impair the obligation of the contract by his own act or otherwise will be profited by his own wrong will have to be avoided. If two interpretations are possible, then the one which will suppress the mischief and advance the remedy will have to be preferred. The execution of the written contract is contemplated after following the procedure for selecting a candidate for appointment. After the appointment letter is issued a written contract would be executed. If this is so, the execution of a written contract is followed by the initial appointment of the teacher after following the procedure prescribed by Articles 38 and 39 of the College Code. If no option is left to the Management in the matter of appointment, then, in our opinion, the ministerial act or a formality of non-execution of the contract cannot change the substance of the contractual obligation or liabilities. By the College Code itself, a statutory form of agreement is prescribed. This means that the terms and conditions of the contract are also prescribed by the statute itself. In view of this, the execution of the written contract is a mere formality and not the substance of the matter. Any infirmity or formal defect in the actual execution of the contract cannot vitiate the contract itself, nor can it rob the parties of the rights and obligations flowing from the statutory contract. In the present case, it is an admitted position that the appointment of the petitioner was not made on a temporary basis but she was appointed on probation. This being the position, the form prescribed in Schedule-A was applicable to the appointment of the petitioner and, therefore, the terms and conditions incorporated in the written contract prescribed in Schedule-A automatically become applicable to her as soon as she is appointed on probation as per the provisions of Chapter V of the College Code. This is the net result of the appointment made under Articles 38 and 39 of Chapter V of the College Code. Though it is better that a written contract should be executed by the parties in the form prescribed in Schedule-A, in our opinion, mere non-execution of the written contract cannot vitiate the appointment, nor it can rob the teacher of his rights under the agreement prescribed in Schedule-A itself. Therefore, the question referred to this Full Bench is answered in the affirmative. As a necessary consequence of this, the matter will have to be placed now before the Division Bench for disposal of the writ petition in accordance with law. Costs of this reference will be costs in the cause and in the discretion of the Division Bench.

Reference answered in the affirmative.