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32/73 WP Nos.1301/11,1314/11,1315/11,1978/11 & 1979/11 5 Termination of the services of any teacher shall Take place only in accordance with the provisions of the college code ordinance (No.24) and contract appended thereto.

"6 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 37/73 WP Nos.1301/11,1314/11,1315/11,1978/11 & 1979/11 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 teacher. Thus, in substance, 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 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 38/73 WP Nos.1301/11,1314/11,1315/11,1978/11 & 1979/11 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 39/73 WP Nos.1301/11,1314/11,1315/11,1978/11 & 1979/11 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 written petition in accordance with law. Costs of this reference will be costs in the cause and in the discretion of the Division Bench."