JUDGMENT G.B. Singh, J. - These two writ petitions have been filed by Dr. I. B. Sinha regarding his confirmation as Professor and the appointment as Head of the Department of Commerce, Lucknow University, Lucknow. Since common question of fact and law are involved in these two writ petitions they shall be disposed of by this common judgment. Dr. I. B. Sinha joined the Lucknow' University in the year 1955 as a Lecturer in Commerce Department. In the month of March, 1974 the Selection Committee of Lucknow University recommended the name of Dr. I. B. Sinha for appointment as Professor of Commerce. The Executive Council approved the recommendations of the Selection Committee in its meeting on 17-12-1974. In accordance with that resolution a letter of appointment was issued on 18-12-1974 and the petitioner took over as Professor of Commerce, Lucknow University on the same day. The appointment was on probation for a period of one year. The petitioner was not confirmed after the completion of that period. The period of probation was extended by the Executive Council from time to time because an enquiry was pending against the petitioner. It appears that some complaints by the teachers of the Faculty of Commerce, Lucknow University had been made against Dr - I. B. Sinha due to which an enquiry committee was constituted by the Executive Council by its resolution dated 1-5-1976 to submit a report to the Council as early as possible and by the same resolution the probationary period of Dr. I. B. Sinha was extended by six months or till the consideration of the report of the enquiry committee by the Executive Council whichever was earlier (Annexure No. 3). This resolution was further amended by the Executive Council by another resolution dated 13-11-1976 Annexure No. 4. The probationary period was extended upto 30-4-1977 or till the consideration of the report of the enquiry by the Council whichever was earlier. Another complaint against Dr. I. B. Sinha filed earlier to the aforesaid complaint was that he was practising as Chartered Accountant illegally. The Executive Council considered the matter on 30-6-1976 and withdrew the permission granted to the petitioner earlier for practising as Chartered Accountant. The petitioner, therefore, filed Regular Suit No. 77 of 1976 in the Court of Civil Judge, Malihabad for perpetual injunction and declaration and obtained temporary injunction restraining the Executive Council from implementing the aforesaid resolution. The Executive Council considered the matter on 30-6-1976 and withdrew the permission granted to the petitioner earlier for practising as Chartered Accountant. The petitioner, therefore, filed Regular Suit No. 77 of 1976 in the Court of Civil Judge, Malihabad for perpetual injunction and declaration and obtained temporary injunction restraining the Executive Council from implementing the aforesaid resolution. That order was, however, set aside in appeal. The enquiry committee appointed on the aforesaid complaints of the teachers of the Commerce Faculty of the Lucknow University submitted its report on 10-1-1978 (Annexure No. A - 3 to W. P. No. 2912 of 1984). In this report the enquiry committee mentioned that the work and conduct of Dr. I. B. Sinha during his service as Professor and Head of the Department of Commerce cannot be considered satisfactory. The equiry committee, therefore, recommended that the case of Dr. Sinha may be dealt with according to the provisions of the Statute 11.08 (II) of the Lucknow University First Statute 1976 read with Section 31(2)(a) of the U.P. State Universities Act, 1974. Before the consideration of the report of the enquiry committee alongwith the matter of confirmation of the petitioner by the Executive Council, the petitioner filed another Suit No. 174 of 1978 in the Court of Munsif North, Lucknow and obtained temporary injunction restraining the University from considering the report of the enquiry committee alongwith the matter of confirmation. When the petitioner was not confirmed he made two Reference under Section 68 of the U.P. State Universities Act on 12-2-1977. Those References were rejected by the Chancellor by his order dated 14-8-1981 observing that there could not be any automatic confirmation of the petitioner as Professor as claimed by him. The petitioner thereafter filed Writ Petition No. 5539 of 1981 contending that the period of probation could not be extended beyond two years and on the expiry of that period he shall be deemed to have been automatically confirmed. He prayed in this writ petition that the resolutions passed by the Executive Council on 1-5-1976 and 13-11-1976 and the order dated 14-8-1981 be quashed and a writ in the nature of mandamus be issued commanding the Executive Council respondent No. 2 to declare the petitioner confirmed as Professor of Commerce with effect from 18-12-1976. 2. Dr. K. K. Saxena opposite party No. 3 is also a Professor in the Department of Commerce, Lucknow University. 2. Dr. K. K. Saxena opposite party No. 3 is also a Professor in the Department of Commerce, Lucknow University. He made representation on 3-8-1981 to the Chancellor under Section 68 of the U.P. State Universities Act challenging the appointment of Dr. I. B. Sinha as Dean Faculty of Commerce with effect from 11-8-1981 and his continuance as Head of the Department of Commerce. This representation was partly allowed by the Chancellor on 11-6-1984 holding that Dr. I. B. Sinha cannot act as Head of the Department of Commerce in preference to Dr. Saxena as Dr. I. B. Sinha is not a confirmed Professor whereas Dr. Saxena is a confirmed Professor and Dr. Saxena is senior to Dr. I. B. Sinha. The Chancellor, therefore, directed the University to take necessary steps to rectify the mistake in appointment of Dr. I. B. Sinha as Head of the Department in preference of Dr. K. K. Saxena. The Chancellor, however, rejected the prayer of Dr. Saxena for quashing the appointment of Dr. I. B. Sinha as Dean of Faculty of Commerce as it was to be made from amongst the Professors by rotation. Against this order of the Chancellor Dr. I. B. Sinha filed Writ Petition No. 2912 of 1984 praying that the order dated 11-6-1984 be quashed. In this writ petition Dr. I. B. Sinha pleaded that he was appointed as Lecturer in Commerce in the year 1955 whereas Dr. Saxena was appointed as Lecturer in the Commerce Department on 29-9-1956. He further pleaded that he was made permanent Lecturer in Commerce in substantive vacancy on 16-1-1959 whereas Dr. Saxena was appointed as permanent Lecturer in substantive vacancy on 26-2-1963. It was further pleaded that the Executive Council of the Lucknow University in its meeting on 31-10-1973 held that the petitioner is senior to Dr. Saxena and a letter to that effect was issued by the Registrar of the University on 9-11-1973 (Annexure No. 2). In the year 1973 posts of Professor, Reader and Lecturers in the University were advertised and the petitioner was selected and appointed as Professor whereas Dr. Saxena was appointed as Reader in the year 1974. The petitioner was appointed in the Department as Professor on 18-12-1974 and the period of two years probation expired on 17-12-1976 The petitioner, is, therefore, deemed to be confirmed on 18-12-1976 and Dr. Saxena was appointed as Reader in the year 1974. The petitioner was appointed in the Department as Professor on 18-12-1974 and the period of two years probation expired on 17-12-1976 The petitioner, is, therefore, deemed to be confirmed on 18-12-1976 and Dr. Saxena who is in service as a Professor of Commerce Department since May, 1978, cannot be senior to the petitioner and as such cannot be appointed as Head of the Department of Commerce in preference to the petitioner. 2-A. Dr. K. K.. Saxena was impleaded as respondent No. 3 in Writ Petition No. 5539 of 1981 on his own application for his impleadment. In the other Writ Petition No. 2912 of 1984 Dr. K. K. Saxena has been impleaded as respondent No. 3 at the time of the presentation of the writ petition. In the first writ petition counter-Affidavit and supplementary counter-Affidavit were filed on behalf of the University as well as Dr. K. K. Saxena. In the other writ Petition Dr. K. K. Saxena alone filed counter-Affidavit and supplementary counter-Affidavit. The opposite-parties have pleaded in reply that Dr. I. B Sinha was not confirmed as Professor and since the enquiry was pending against him, his probation period was extended. When the enquiry committee submitted report against Dr. I. B. Sinha and the Executive Council was going to consider the recommendations of the enquiry committee, Dr. I. B. Sinha filed Civil Suit and obtained a temporary injunction restraining the Executive Council to consider the report with the result no order regarding his confirmation could be passed. Dr. K. K. Saxena was appointed as Professor in the Commerce Department in the year 1978 and thereafter confirmed in the year 1979. He was, therefore, senior to Dr. I. B. Sinha and he has been rightly appointed Head of the Commerce Department. It has been further pleaded that Dr. I. B. Sinha cannot be deemed to be confirmed and he cannot take into the advantage of his own wrong. It has also been pleaded that the enquiry committee submitted adverse report against Dr. I. B. Sinha and such a person cannot be appointed as Head of the Commerce Department. 3. The main dispute in the two writ petitions is that of Dr. I. B. Sinha v.as deemed to be confirmed from 18-12-1976 and he is senior to Dr. It has also been pleaded that the enquiry committee submitted adverse report against Dr. I. B. Sinha and such a person cannot be appointed as Head of the Commerce Department. 3. The main dispute in the two writ petitions is that of Dr. I. B. Sinha v.as deemed to be confirmed from 18-12-1976 and he is senior to Dr. K. K. Saxena as Professor of the Commerce Department and as such entitled to be appointed as Head of the Commerce Department. 4. It is undisputed that Dr. I. B. Sinha, petitioner was appointed as Professor in Faculty of Commerce, Lucknow University on 18-12-1974. In the letter of appointment dated 18-12-1974 issued by the Registrar it was simply mentioned that his appointment as Professors of Commerce is on probation for one year and on confirmation he was entitled to the benefits of the Provident Fund. It was also mentioned it that letter that he would be required to enter into an agreement with the University. It is also undisputed that he accepted the terms of the appointment and joined as Professor of Commerce in pursuance of that letter on the same day. It has been argued by the learned counsel for the petitioner that the period of probation for one year could be extended for a period not exceeding one year and in this connection he referred to Section 31(2) of the U.P. State University Act, 1973, (hereinafter referred to as the Act). Section 31 of the Act deals with the appointment of teachers of the University and the teachers of the affiliated or associated colleges. The word teacher has been defined in Section 2(18) of the Act. Section 31 of the Act deals with the appointment of teachers of the University and the teachers of the affiliated or associated colleges. The word teacher has been defined in Section 2(18) of the Act. It indicates that the word teacher includes Professor, Subsection (2) of Section 31 of the Act reads as follows : "The appointment of every such teacher, Director and Principal not being an appointment under Sub-section (3), shall in the first instance be on probation for one year which may be extended for a period not exceeding one year : Provided that no order of termination of service during or on the expiry of the period of probation shall be passed - (a) in the case of a teacher of the University except by order of the Executive Council made after considering the report of the Vice-Chancellor and (unless teacher is himself the Head of the Department) the Head of the Department concerned ; (b) in the case of Principal of an affiliated or associated college, except by order of the Management; and (c) in the case of any other teacher of an affiliated or associated college, except by order of the Management made after considering the report of the Principal and (unless such teacher is the senior-most teacher of the subject), also of the senior-most teacher of the subject. Provided further that no such order of termination shall be passed except after notice to the teacher concerned giving him an opportunity of explanation in respect of the grounds on which his services are proposed to be terminated : Provided also that if a notice is given before the expiry of the period of probation or the extended period of probation, as the case may be, the period of probation shall stand extended until the final order of the Executive Council under clause (a) of first proviso or, as the case may be, until the approval of the Vice-Chancellor under Section 35 is communicated to the teacher concerned." 5. The appointment of Dr. I. B. Sinha was not made under subsection (3) of Section 31 of the Act and as such it need not be referred to here. Sub-section (2) leaves no room for doubt that the period of probation cannot be extended beyond two years from the date of the appointment on probation. The appointment of Dr. I. B. Sinha was not made under subsection (3) of Section 31 of the Act and as such it need not be referred to here. Sub-section (2) leaves no room for doubt that the period of probation cannot be extended beyond two years from the date of the appointment on probation. If the period of probation cannot be extended beyond two years the question arises what shall be effect if the probation period is extended beyond two years by the Executive Council thereafter or if no order for extension is passed on the expiry of the period of probation. The learned counsel for the petitioner in order to show that the period of probation could not be extended beyond the period of two years by the Executive Counsel and even if extended by it beyond two years will have no effect and if no notice for termination is given during the period of probation or the extended period of probation, the teacher shall be deemed to be confirmed at the end of probation period, placed reliance upon Section 31(2) of the Act and three cases. They are (1) State of Punjab v. Dharam Singh, AIR 1968 SC 1210 ; Om Prakash Maurya v. U. P, Co-operative Sugar Factories Federation, 1986(53) FLR 281 (SC); and Laxman Ram Kushwaha v. Committee of Management Sadhan Sahkari Samiti Ltd. Pipri, Purakhar, 1986(4) Lucknow Civil Decisions 256. In my opinion there is much force in this argument of the learned counsel for the petitioner. 6. In State of Punjab v. Dharam Singh, respondents were teachers id the District Board of Punjab. The District Board Schools were provincial and and the services of the respondents were taken over by the Punjab State - The Governor of Punjab framed the Punjab Educational Service (Provincialism Cadre) Clause 3 Rules regulating the condition of services of teaching staff of the schools taken over by the State Government. The District Board Schools were provincial and and the services of the respondents were taken over by the Punjab State - The Governor of Punjab framed the Punjab Educational Service (Provincialism Cadre) Clause 3 Rules regulating the condition of services of teaching staff of the schools taken over by the State Government. Rule 6(3) of those rules provided that on the completion of the period of probation the authority competent to make appointment confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post. The proviso to this Rule 6(3) was to the effect that the total period of probation including the extensions, if any, shall not exceed three years. The respondents continued in service beyond the extended period of three years. Thereafter their services were terminated without any departmental enquiry. It was held in this case that Rule 6(3) forbids extension of the period may be deemed to have been confirmed in their posts on the expiry of that period of three years even though the appointing authority did not pass formal order of confirmation in writing because if should be presumed that he passed the order of confirmation by so allowing them to continue in their post and after such confirmation the authority had no power to dispense with their services on the ground that their work and conduct has not been satisfactory during the period of probation. 7. In the second case Om Prokash Maurya v. U.P. Co-operative Sugar Factories Federation, 1986 (53) FLR 281 (Supreme Court) ; O. P. Maurya appellant was appointed as Commercial, Officer by promotion in Kisan Sahkari Chini Mills Ltd., Bisalpur District Pilibhit, a Sugar Factory run and managed by the Uttar Pradesh Co-operative Mills Federation. He was appointed on probation for one year against regular vacancy with a condition that his probationary period may be extended further and during the period of probation he could be reverted without any notice if his work would not be found satisfactory. U.P. Co-operative Societies Employees Service Regulations 1977 framed under the U.P. Co-operative Societies Act, 1975 were applicable to him. Regulation 17 provides for probation. U.P. Co-operative Societies Employees Service Regulations 1977 framed under the U.P. Co-operative Societies Act, 1975 were applicable to him. Regulation 17 provides for probation. It lays down that all persons on appointment against regular vacancies shall be placed on probation for a period of one year. Proviso to the Regulation lays down that the appointing authority may individual cases extend the period of probation in writing for further period not exceeding one year. Regulation 18 provides for confirmation of the probationary period. O. P. Maurya appellant continued on that post for over two years and his period of probation was extended. After the expiry of the maximum period of probation an order dated 2-9-1983 for reversion was passed against him. He challenged that order by filing a writ petition in the High Court. The writ petition was dismissed. He, therefore, filed an appeal before the Hon'ble Supreme Court. It was held in this case that the Service Regulations did not provide for extension of probationary period beyond two years and on completion of that period the appellant-probationer was automatically confirmed to that post and he could not be reverted thereafter treating him on probation. The relevant observations made in this connection are reproduced below i "On the expiry of the maximum probationary period of two years the appellant could not be deemed to continue on probation ; instead he stood confirmed in the post by implication. The appellant acquired the status of a confirmed employee on the post of Commercial Officer and the appointing the lower post of Superintendent." In the third case Laxman Ram Kushwaha v. Committee of Management of Sadhan Sahkari Samati Ltd. Pipri Purakhar, 1986(4) Lucknow Civil Decisions 256, the Regulations provide probation period of two years which can be extended not beyond six months. The petitioner continued in employment much beyond the maximum period of probation. It was held that the petitioner must be deemed to be confirmed on the post by implication and the termination order passed on assumption of his continuing in service on probation was illegal. 8. The observations made in those cases apply with full force to the present case because Section 31(2) of the Act also contains similarly provision and the period of probation of a teacher cannot be extended beyond two years from the date of his appointment on probation. Dr. 8. The observations made in those cases apply with full force to the present case because Section 31(2) of the Act also contains similarly provision and the period of probation of a teacher cannot be extended beyond two years from the date of his appointment on probation. Dr. I. B. Sinha could, therefore, be deemed to have been confirmed by implication on 18-12-1976 on which date the maximum period of two years of probation expired. 9. Learned counsel for the opposite-parties in order to show that Dr. I. B. Sinha could not be deemed to have been confirmed by implication argued that a enquiry committee had been appointed against Dr. I. B. Sinha to enquire into the complaints against him and the Executive Council which is the appointing authority itself extended the period of probation. There is no force in this arguments. Section 31(2) of the Act specifically provides that the probation period can not be extended beyond two years. Thus, the Executive Council could not extend the probation period after 17-12-1976 when Dr. I. B. Sinha completed two years period of probation. It is true that two enquiry committees were appointed against Dr. I. B. Sinha on the basis of certain complaints against him but on account of those enquiry proceedings it cannot be held that the period of probation must be deemed to be extended beyond the period of two years The reason is that this extension or deemed extension of probation period would be an contravention of the specific provision contained in Section 31(2) of the Act that the period of probation cannot be extended beyond two years. 10. It was also argued by the learned counsel for the opposite parties that the Executive Council could not take decision about confirmation or termination of service of Dr I. B Sinha because he filed two suits in the Civil Court and obtained temporary injunctions from there. It was further argued in this connection that Dr. I. B. Sinha in these circumstances should not be allowed to take advantage of his own wrong and he should not be deemed to be confirmed. I do not find any force in this argument also. 11. It appears from Annexure No. A - 10 (W. P. No. 2912 of 1984) that Dr. K. K. Saxena claimed seniority against Dr. I. B. Sinha in these circumstances should not be allowed to take advantage of his own wrong and he should not be deemed to be confirmed. I do not find any force in this argument also. 11. It appears from Annexure No. A - 10 (W. P. No. 2912 of 1984) that Dr. K. K. Saxena claimed seniority against Dr. I B. Sinha sometime before the month of June, 1973 and had made certain complaints against Dr. I. B. Sinha Dr. I. B. Sinha was practising as a Chartered Accountant while holding the post of a teacher in the Commerce Department. One of the complaints against him was that he could not practice as a Chartered Accountant. The committee consisting of Sri T P. Bahala Honorary Treasurer and two others expressed the majority opinion against his private practice as Chartered Accountant. The Executive Council in its meeting dated 30-6-1976 passed a resolution Annexure No. A that the permission to practice as Chartered Accountant is withdrawn. Against that resolution Dr. I. B. Sinha filed Suit No. 77 of 1976 in the Court of Civil Judge, Malihabad. It is undisputed that Suit No. 77 of 1976 related to resolution withdrawn to give the permission to Dr. I. B. Sinha to practice as Chartered Accountant and temporary injunction was obtained in that connection. There was no dispute in that suit regarding probation or confirmation of Dr. I B. Sinha. Thus the temporary injunction obtained in Suit No. 77 of 1976 did not restrain the Executive Council to consider the confirmation of Dr. I. B. Sinha. 12. Annexure No. 1 (W. P. No. 2912 of 1984) shown that there were some complaints against Dr. I. B. Sinha. The Executive Council, therefore, by its resolution dated 1-5-1976 appointed an enquiry committee consisting of Dr. G. S. Misra Pro - Vice Chancellor and two others to enquire into the allegations. The committee submitted its report on 10-1-1978. The committee held that Dr. I. B. Sinha misused his authority as Professor and Head of the Department of Commerce and Dean Faculty of Commerce, violated the provision of the Statute and Ordinances of the University and indulged in harassment of teachers and discrimination amongst them and his work and conduct cannot be considered satisfactory. The committee held that Dr. I. B. Sinha misused his authority as Professor and Head of the Department of Commerce and Dean Faculty of Commerce, violated the provision of the Statute and Ordinances of the University and indulged in harassment of teachers and discrimination amongst them and his work and conduct cannot be considered satisfactory. The committee, therefore, recommended that Dr I. B. Sinha be dealt with in accordance with the provisions of the Statutes and the provisions of the State Universities Act. Before the Executive Council could consider the report of the enquiry committee as take decision on it. Dr. I. B. Sinha filed Suit No. 174 of 1978 in the Court of Munsif North Lucknow and obtained a temporary injunction restraining the Executive Council from considering the report of the enquiry committee Since the report was submitted much after the expiry of the probation period, the temporary injunction obtained in the Suit No. 174 of 1978 is of no effect so far as the point relating to deemed confirmation is concerned. 13. It cannot, therefore, be said that the matter relating to confirmation of Dr. I. B. Sinha could not be considered during the period of two years from the date of his appointment on account of any temporary injunction obtained by Dr I. B. Sinha from any court of law and as such he wants to take advantage of his own wrong. 14. It was further argued by the learned counsel for the opposite-parties that Dr. I. B. Sinha did not execute any deed of contract as required under Section 32 of the U.P. State Universities Act and as such his appointment was incomplete and he cannot be deemed to be confirmed. I do not agree with this argument also. Section 32 of the Act reads as follows : "Contract of appointment of teachers of the University: - (1) Except as otherwise provided by Statutes, no salaried officer and teacher of the University shall be appointed except under a written contract which shall be consistent with the provisions of this Act, the Statutes and the Ordinances. (2) The original contract shall be lodged with the Registrar and a copy thereof shall be furnished to the officer or teacher concerned. (2) The original contract shall be lodged with the Registrar and a copy thereof shall be furnished to the officer or teacher concerned. (3) In the case of an officer or teacher employed before the commencement of this Act, all contracts in force, immediately before such commencement, shall, to the extent of any inconsistency with the provisions of this Act, or the Statutes or the Ordinances be deemed to have been modified by the said provisions. (4) Notwithstanding anything contained in any contract of other instrument, teachers of any constituent medical college shall not have the right to private practice, except to such extent if any, and subject to such conditions and restrictions as the State Government may, by general or special order specify." 15. A perusal of this section makes it clear that the teacher should be appointed under a written contract. Statute 16.01 of the First Statute of the Lucknow University lays down certain exceptions where a written contract is not necessary. The case of Dr. I. B. Sinha does not fall within those exceptions. In para 4 of the supplementary counter affidavit filed on behalf of Dr. K. K. Saxena (Writ Petition No. 2912 of 1984), it was pleaded that the petitioner has not filed any documentary evidence of having entered into a contract in writing as required under Section 31(1) of the U.P. Universities Act. In the counter affidavit of opposite-party No. 3 in W. P No. 5539 of 1981 it was pleaded in para 4 that Dr I. B. Sinha has not signed the contract with the University as laid down in the Act and the Statute and so his own alleged appointment is defective. It was no where pleaded in the rejoinder affidavits of Dr. I. B. Sinha that he executed the deed of contract as required under Section 32 of the U.P. State Universities Act. It can, therefore, be presumed that Dr. LB. Sinha has not executed the contract provided under Section 32 of the Act so far. The question to be seen now is what shall be the effect of such an omission. In the appointment letter Annexure No. 1 (W. P. No. 5539 of 1981) it was provided that Dr. I. B. Sinha would be required to enter into an agreement with the University. The question to be seen now is what shall be the effect of such an omission. In the appointment letter Annexure No. 1 (W. P. No. 5539 of 1981) it was provided that Dr. I. B. Sinha would be required to enter into an agreement with the University. There is nothing on behalf of the opposite-parties indicating that the University ever pressed for execution of the deed of agreement by Dr. I. B. Sinha as required under Section 32 of the Act. The contract is a statutory form of contract. The terms and conditions of the service of teachers have been laid down by the Statutes and the form of contract to be entered into by the teacher is also given in the Appendix B of the First Statutes. 16. In these circumstances whenever a teacher is appointed can be presumed that the Executive Council intended to make appointment subject to terms and conditions indicated in the form of contract and the Statute. The execution of the contract by the teacher, therefore, remains a formality and it cannot vitiate the appointment. A similar question was raised and considered in Premlata Sudhakar Sathe v. Governing Body of G. S Tompe College and others, 1981 (l)SLR 610 (Bombay) Full Bench, it was held in this case that the execution of the contract after the appointment is ad ministerial act and a formality of non - execution of the contract cannot change the substance of the contractual obligation or liabilities. 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 this reported case also the petitioner was appointed on probation. The form prescribed in Schedule-A was applicable to the appointment of the petitioner. It was held that the terms and conditions indicated in the written contract prescribed in Schedule-A automatically became applicable to the petitioner as soon as she was appointed on probation as per the provisions of Chapter V of the College Code. The form prescribed in Schedule-A was applicable to the appointment of the petitioner. It was held that the terms and conditions indicated in the written contract prescribed in Schedule-A automatically became applicable to the petitioner as soon as she was appointed on probation as per the provisions of Chapter V of the College Code. It was further observed in this case that though it is better that a written contract should be executed by the parties in the form prescribed in Schedule A, mere non - execution of the written contract cannot vitiate the appointment and after the expiry of the period of probation such a teacher shall be deemed to have confirmed. This case appears applicable to the present case with full force. I am, therefore, of the view that the absence of execution of contract provided in Section 32 of the Act cannot vitiate the appointment and on expiry of the probation period the petitioner shall be entitled to the benefit if deemed confirmation. 17. It was also argued by the learned counsel for the opposite-parties that the petitioner has approached the Executive Council for his confirmation and as such the writ petitions have become not maintainable. I do not find any force in this argument also. The reason is that Dr. I. B. Sinha has approached the Executive Council during the pendency of the two writ petitions through his letter dated 24-6-1986 for considering his case of confirmation The main relief claimed in the petitioners is for quashing the orders dated 14.8.1981 and 11-6-1984 passed by the Chancellor. This relief cannot be granted by the Executive Council. Moreover the cause of action for these two writ petitions had arise much before the aforesaid letter dated 24-6-1986. Apart from this bar of alternative remedy can be raised at the time of admission or as a preliminary point. It cannot be pressed at the time of final arguments because when the writ petition has been entertained it cannot be dismissed subsequently on the ground of existence of alternative remedy. It may also be added that the jurisdiction of the Executive Council to extent the probation period has been challenged here and in such a circumstance plea of alternative remedy before the Executive Council cannot be entertained. The conduct of Dr. It may also be added that the jurisdiction of the Executive Council to extent the probation period has been challenged here and in such a circumstance plea of alternative remedy before the Executive Council cannot be entertained. The conduct of Dr. I. B. Sinha in approaching the Executive Council through the aforesaid letter does not, therefore, make the two writ petitions not maintainable. 18. The last point argued by the learned counsel for the opposite-party No. 3 is that there could not be automatic confirmation of the petitioner on the expiry of the period of two years because the appointing authority must get sometime to consider the work and conduct of the probationer after the expiry of the period of probation and since the Executive Council could not consider his confirmation on account of some enquiry pending against him he cannot be deemed to be confirmed. In support of this argument, he placed reliance upon six cases. They are Ajit Singh v. State of Punjab, 1983 Reported and Unreported Cases SC 225 ; Samsher Singh v. State of Punjab, AIR 1974 SC 2.192; Kedar Nath Belli v. State of Punjab, AIR 1972 SC 873 ; Binoy Kumar Mukherjee v. State of Bihar, 1971 SLR 314 SC; State of U.P. v. Akbar Ali, AIR 1965 SC 1843; and Chief Conservator of Forest v. D. A. Lyall, AIR 1961 All 450 (FB). 19. The case of Ajit Singh v. State of Punjab, 1983 Reported aid Unreported Cases SC 225 does not deal with the point of deemed confirmation involved in the present case. In this case it has been explained as to how the concept of probation was devised. The following observations in this connection are relevant: "To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is observed in service or gets a right to the post period of probation gave a sore of locus patentiae to the employer to observe t.he work, ability efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service during or at the end of the prescribed period which is styled as period of probation." 20. In Samsher Singh v. State of Punjab, AIR 1974 SC 2192 the point under consideration was not involved. In Samsher Singh v. State of Punjab, AIR 1974 SC 2192 the point under consideration was not involved. One of the points involved in that case was when the termination of service of probationer can amount to punishment. In the present case the termination of the service of the probationer is not involved and, thus, this case also does not help the opposite-parties in any way. 21. In Kedar Nath Bahl v. State of Punjab, AIR 1972 SC 873 , Kedar Nath Bahl appellant was appointed on probation for six months. The period of probation expired on 5-5-1955. Thereafter the period of probation was extended from time to time. The contention of the appellant was that he was automatically confirmed on the expiry of the period of probation. His contention was that either he should have been discharged within the period of probation and if he was not so discharged he was entitled to automatic confirmation In this connection the following observations were made at page 876 : "The law on the point is now well settled Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed in that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period, or there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the. officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer." 22. The above observations do not help the opposite-parties in any way. In the reported case the point, if the rule provides that the period of probation cannot be extended beyond a particular period and if the probationer is allowed to continue after the extended period, what shall be its effect was not involved. No observation has been made in this regard. In the reported case the point, if the rule provides that the period of probation cannot be extended beyond a particular period and if the probationer is allowed to continue after the extended period, what shall be its effect was not involved. No observation has been made in this regard. Thus, this case also appears of little assistance to the learned counsel for the opposite-parties specially in view of the clear observations made in this connection in the two Supreme Court cases relied upon by the learned counsel for the petitioner. 23. In Binoy Kumar Mukherjee v. State of Bihar, 1971 SLR 314 SC the appellant was appointed in a temporary capacity and his appointment was extended from time to time. Subsequently the official continued in the post without any order of extension. It was held that no inference can be drawn that the appellant was confirmed automatically and became permanent. This case is also distinguishable from the facts of the present case. The petitioner was not appointed temporarily nor his appointment was extended from time to time. He was appointed on probation and he was allowed to continue in the post without any order after the expiry of the period of probation and the extended period of probation and without any order of discharge. Thus, the observations made in this case cannot lead to the inference that Dr. I. B. Sinha petitioner could not be deemed to be confirmed and shall be deemed to be on probation. 24. In State of U.P. v. Akbar Ali, AIR 1966 SC 1843 it was held that in view of the scheme of the rules, confirmation in the post which a probationer was holding does not result merely from the expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. In this reported case the period of probation was two years - Rule 13 of Subordinate Revenue Executive Service Rules provided that the candidate appointed shall be required to pass such tests in departmental subjects and the languages of the province and to undergo such training as the Governor may from time to time prescribe. In this reported case the period of probation was two years - Rule 13 of Subordinate Revenue Executive Service Rules provided that the candidate appointed shall be required to pass such tests in departmental subjects and the languages of the province and to undergo such training as the Governor may from time to time prescribe. Rule 14 further provided that in case it appears at any time during or at the end of the period of probation that a person appointed on probation has not made sufficient use of this opportunities or has failed to pass the departmental examination completely or if he has otherwise failed to give satisfaction he may be reverted to his substantive appointment. The proviso to this rule provided for the extension of the probation period for 3 years by the Board and thereafter by the sanction of the Governor. No restriction for such extension was imposed under these rules. Rule 15 further provided for confirmation of a probationer at the end of the period of probation if he has passed the departmental examination for Tahsildar's and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. In these circumstances it was held that the order of confirmation was necessary and there could not be any automatic confirmation. The present case is undoubtedly distinguishable from the reported case. The provisions of the act as well as the Statute do not require that before confirmation he has to get through some tests and to undergo training. There was no rule in the reported case that the probation period could not be extended beyond a particular period. The provisions of Section 13(2) of the Act are clearly in favour of Dr. I. B. Sinha. Thus, the observations made in this reported case also do not support the view that there could not be any deemed confirmation in favour of Dr. I. B. Sinha. 25. The case reported as Chief Conservator of Forests v. D. A. Lyall, AIR 1961 All 450 (FB) is also distinguishable on facts from the present case. No doubt, it was observed in this case that a Government Servant on probation is nor to be deemed to be confirmed on the expiry of the period of his probation, if no order confirming him in his substantive post or extending his period of probation has been passed by the competent authority. No doubt, it was observed in this case that a Government Servant on probation is nor to be deemed to be confirmed on the expiry of the period of his probation, if no order confirming him in his substantive post or extending his period of probation has been passed by the competent authority. He acquires the statues of a confirmed Government Servant on that post only as a result of an affirmative order passed in that behalf by the competent authority. It is also held in this case that if within a reasonable time the authority does not pass an order confirming him or extending his period of probation or terminating his service it will still not lead to the assumption that he had been confirmed, his remedy would simply be to apply for a mandamus calling upon the authority to pass an appropriate order within a certain time. What is a reasonable period within which the authority must pass an order one way or another is a question of fact depending upon the circumstances. In this case also Rule 16 of the U.P. Forest Service Rules required certain conditions to be fulfilled before a person could be confirmed. In these circumstances it was held that mere expiry of the period of probation was not enough for confirmation. This case is also distinguishable on facts from the present case. Moreover, the doctrine laid down in it cannot be made applicable to the present case in view of the observations made in the two Supreme Court cases reported as Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation and others, 1986 (53) FLR 281 SC and State of Punjab v. Dharam Singh, AIR 1968 SC 1210 . 26. It was also argued by the learned counsel for the opposite-party No. 3 in this connection that Section 31(2) of the Act should be read alongwith Statute 11.80 of the First Statutes of the Lucknow University and the expression at the end used in the Statute 11.08 indicates that the confirmation should be considered after the end of the period of probation or the extended period thereof. If it is so, there cannot be deemed confirmation on the expiry of the extended period of probation. do not agree with this argument also. Statute 11.08 reads as follows : "11.08. If it is so, there cannot be deemed confirmation on the expiry of the extended period of probation. do not agree with this argument also. Statute 11.08 reads as follows : "11.08. If the work and conduct of a teacher appointed under Section 31(2) - (i) is considered satisfactory, the Executive Council may at the end of period of probation (including the extended period, if any) confirm the teacher ; (ii) is not considered satisfactory, the Executive Council may terminate in the services of the teacher in accordance with the provisions of Section 31 during or on the expiry of the period of probation (including the extended period, if any)." 27. The expression at the end cannot be taken as after the end of the period of probation because of the clear language of Section 31(2) of the Act that period of one year of probation cannot be extended beyond a period exceeding one year. A Statute cannot override the clear provision of the section. Moreover, the principle of harmonious interpretation is always preferred to. If this principle is applied the period of probation cannot be extended beyond two years from the date of appointment. A perusal of Section 31(2) of the Act shows that in case the work and conduct of the probationer is not found satisfactory his services should be terminated after giving a notice and if the notice is given before the expiry of the period of probation or the extended period of probation, the probation shall stand extended until the final order of the Executive Council or the approval of the Vice-Chancellor is communicated to the teacher concerned. From this it follows that the period of probation can stand extended beyond the period of two years by operation of law if the notice for termination is given within the period of probation or the extended period of probation and this extension shall be upon the final order of the Executive Council or the communication of the approval of the Vice-Chancellor as the case may be. No other circumstances for extending the period of probation beyond two years has been provided in the Act. No other circumstances for extending the period of probation beyond two years has been provided in the Act. In view of all this the expression at the end used in the Statute indicates that the decision regarding confirmation should be taken within the period of two years of probation otherwise the probationer shall be deemed to be confirmed on the expiry of the period. It may also be mentioned in this connection that the provision regarding the extension of the period of probation has been made so that the decision of the appointing authority regarding confirmation may be taken within the extended period and it may not be postponed for an indefinite period. The provision contained in Section 31(2) is that the period of probation cannot be extended beyond two years cannot be held modified Statute it cannot be held that after the expiry of the period of two years some reasonable time should be given to the Executive Council to consider the confirmation and till the Executive Council takes its decision in this regard the period of probation shall be deemed to be extended. It is, therefore, evident that the argument advanced by the Learned Counsel for the opposite-party No. 3 does not hold water. 28. From the above discussion it is clear that Dr. I. B. Sinha is deemed to be confirmed on 18-12-1976. 29. The next point to be considered is whether Dr. I. B. Sinha is senior to Dr. K. K. Saxena. It is undisputed that Dr. I. B. Sinha was appointed Professor on 18-12-1974 in Commerce Department of Lucknow University. He is deemed to be confirmed on 18-12-1976. It is also undisputed that Dr. K.. K. Saxena was appointed as Professor in that Department somewhere in the month of May, 1978 and was confirmed as Professor after one year somewhere in the month of May, 1979. Dr. I. B. Sinha is continuing as Professor. In a substantive capacity since 18-12-1976 whereas Dr. K. K. Saxena is working as Professor in the same Department since May, 1978. While Dr. I. B. Sinha was holding the post of Professor Dr. K. K. Saxena was working as Reader in the same Department till he was also appointed as Professor in the month of May 1978. In a substantive capacity since 18-12-1976 whereas Dr. K. K. Saxena is working as Professor in the same Department since May, 1978. While Dr. I. B. Sinha was holding the post of Professor Dr. K. K. Saxena was working as Reader in the same Department till he was also appointed as Professor in the month of May 1978. According to Statute 18.05 a Professor is deemed senior to every Reader and in the same cadre seniority is determined according to the length of continuous service in a substantive capacity. It is, therefore, clear that Dr. I. B. Sinha is senior to Dr. K. K. Saxena, under Statute 2.20 of the First Statutes of the Lucknow University, senior-most teacher in the Department shall be the Head of the Department, Dr. I.B. Sinha can, therefore, claim the post of the Department on the basis of the seniority. 30. Now the point to be seen is what relief can be granted to the petitioner. It is true that a University is autonomous body and the Court of law does not readily interfere with its internal working without adequate care and caution. In such a case unless every strong case is made out, the Court is always reluctant to make interference with the affairs of the University. But when the University or its authorities are found to be acting clearly in breach of its own rules and regulations, or in excess of its lawful authority, then the High Court cannot abdicate its duty of stepping in to perform its lawful duty under the obligation which has been imposed upon the Court by the Constitution of the Country as enshrined in Article 226 thereof it is also true that there had been serious complaints against Dr. I. B. Sinha and two enquiry committees gave adverse reports against him and there are some observations of the Executive Council also against the conduct of Dr. I. B. Sinha in the Annexures filed in the two cases but for this the competent authority can take disciplinary action against him according to the prescribed procedure. He, however, cannot be denied for it the relief claimed with regard to him confirmation and quashing of order dated 11-6-1984 in which Dr. K. K. Saxena has been held senior to him. 31. He, however, cannot be denied for it the relief claimed with regard to him confirmation and quashing of order dated 11-6-1984 in which Dr. K. K. Saxena has been held senior to him. 31. The Writ Petition No. 5539 of 1981 is, therefore, allowed in part and the Executive Council respondent No. 2 is directed to declare Dr. I. B. Sinha confirmed as Professor of Commerce with effect from 18-12-1976 and the order, dated 14-8-1981 passed by the Chancellor respondent No. 1 holding that the period of probation stands extended till the Executive Council takes a final decision in view of the provisions of Section 31 of the Act is quashed. 32. Writ Petition No. 2912 of 1981 also succeeds in part. The order of the Chancellor dated 11-6-1984 holding that Dr. K. K. Saxena is senior to Dr. I. B. Sinha is quashed upto this extent only and the order, dated 14-6-1984 passed by the Lucknow University on its basis is also quashed. 33. In the special circumstances of the case the parties are directed to bear their own costs in both the cases.