Judgment :- 1. The services of the petitioner who was a Lecturer in the Sree Narayana College, Cannanore, were terminated with effect from 3112 1963 on three months' notice by an order dated 20 91963. This order is Ext. P-3 and was passed by the third respondent to this writ application, the Convener, Managing Committee, Sree Narayana College, Cannanore; and it is impugned, in this writ application. 2. The petitioner joined the services of the Sree Narayana College in 1960 and it is undisputed that by order, Ext. P-2, she has been serving as a probationer from 161961 for one year. This period of probation must have expired on 161962. No order confirming the petitioner as a permanent Lecturer in the College has been passed and, of course, no order terminating her services was passed either. In these circumstances, the position of the petitioner must be that of a probationer. The Supreme Court had occasion to consider the cases of similar employees in more than one case. It is enough to refer to the decision in Accountant General P. P. v. B. P. Bhatnagar (Civil Appeal No. 548 of 1962) wherein Their Lordships said: " When a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the said period without any specific order of confirmation, he continues as a probationer only and acquires no substantive right to hold the post. If the order of appointment itself states that at the end of the period of probation, the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation which is necessary to give him such a right. When after the period of probation, an appointee is allowed to continue in the post without an order of confirmation the only possible view to take is that by implication the period of probation has been extended. Much can be said for the view that it is desirable in such cases that an express order extending the period of probation should be made, as otherwise the appointed person may be under a misapprehension about the exact position. Much can be said for the view that it is desirable in such cases that an express order extending the period of probation should be made, as otherwise the appointed person may be under a misapprehension about the exact position. There is however no basis for the conclusion that from the mere fact that an appointee is allowed to continue after the end of the period of probation stated is his order, he should be deemed to have been confirmed." 3. The order of appointment in this case (the relevant one being Ext. P-2) has not stated that at the end of the period mentioned therein, the petitioner will stand confirmed. So the contention of the petitioner as stated in the affidavit in support of the Original Petition that the petitioner had become a permanent employee cannot stand. This is so notwithstanding the fact that the petitioner had been permitted to receive increments and also been allowed to contribute to the Provident Fund. The counter affidavit filed on behalf of the first respondent, the University of Kerala, by its Registrar, has pointed out in Para.7 that the period of probation would count for increments and that teachers appointed on probation are also eligible to contribute to the Provident Fund. Nothing, therefore, turns on these facts and I proceed to deal with this case on the basis that the petitioner was a probationer at the time of the passing of the order Ext. P-3. 4. Before dealing with the questions argued in this case, I must also refer to the reliefs claimed and consider what reliefs, if at all, can be granted and against which respondents. As a result of the elucidation at the time of arguments, it is accepted on all hands that S.34 and 35 of the Kerala University Act, 1957, and the First Statutes passed under S.25 of that Act have no application. This Court had occasion to consider whether S.34 and/or S.35 of the Act would be attracted in Sasikumaran Nair v. University of Kerala (O. P. No. 1777 of 1962). In the absence of a written contract as envisaged in S.34 of the Act, Vaidialingam J. came to the conclusion in that case that these sections can have no application. This Court had occasion to consider whether S.34 and/or S.35 of the Act would be attracted in Sasikumaran Nair v. University of Kerala (O. P. No. 1777 of 1962). In the absence of a written contract as envisaged in S.34 of the Act, Vaidialingam J. came to the conclusion in that case that these sections can have no application. There has been no written contract entered into by the petitioner with the Management of the College and therefore, I accept the contention of the first respondent that the service conditions of a teacher must be governed by Ext. B. 2 (produced by the first respondent) which is an extract of Clause.7 of Chapter XXI Private Colleges of the statutes. This can be seen from the University Calendar Volume I, 1952-53 from page 120. 5. The prayers in this writ application are for the issue of a writ of certiorari quashing Ext. P-3 and to direct the second respondent, the Vice Chancellor, University of Kerala, to deal with the petition dated 9 111963 according to the Statutes of the University and/or the Kerala University Act. 6. I shall deal with prayer No.1 which, of course is neither directed against the first or the second respondent. And in order to understand the second prayer, it is necessary to refer to a few more facts. 7. The petitioner, it appears, had addressed a communication to the Vice Chancellor of the Kerala University on 9111963 copy of which is Ext. P-4. She had also sent a reminder on 7121963 and that is Ext. P-5. Her complaint as seen from the affidavit in support of the writ application is that no action, much less prompt action had been taken by the University authorities in regard to the grievances expressed by her in these applications. This has been met, and I think successfully, by the averments in Para.10 of the counter-affidavit of the first respondent. Whatever that be, the question to be considered is whether any relief can be granted against the first or the second respondent. No provision either in the Kerala University Act, the Statutes framed under it or the Rules that are applicable excepting sub-clause (i) of Clause.7 of Ext. P-2 produced on behalf of the first respondent is claimed to have been violated. No provision either in the Kerala University Act, the Statutes framed under it or the Rules that are applicable excepting sub-clause (i) of Clause.7 of Ext. P-2 produced on behalf of the first respondent is claimed to have been violated. Sub-clause (i) of Clause.7 is in the following terms: "The Syndicate shall have power to enquire into and arbitrate on all complaints regarding the non-observance of the terms of the contract between teachers and their managements, and the award of the Syndicate shall be binding on either party." 8. As I said earlier, there has been no written contract in this case. It was suggested at one time in the course of arguments by counsel on behalf of the petitioner that a contract does not mean necessarily a written contract and that in all matters of employment there is a contract in existence. A fair reading of the relevant provisions as contained in Clause.7 and the form of the contract prescribed, which has also been produced by the first respondent as Ext. R5, leaves no doubt in my mind that the contract envisaged by these rules is a written contract. In the absence of such a contract, sub-clause (1) of Clause.7 can have no application. In any view of the matter therefore, no direction whatever can be issued to the first or the second respondent in this case. 9. Passing on to the first relief claimed, in answer to a preliminary objection raised by counsel on behalf of the third respondent, a number of decisions have been brought to my notice dealing with the question whether the university functioning under the Kerala University Act can be said to be a statutory authority, a public functionary, discharging public duties amenable to the writ jurisdiction of this Court. It was also urged on behalf of the petitioner that the fact that the Sree Narayana College is a private institution does not in any manner affect the power or jurisdiction of this Court to issue in appropriate cases writs against the governing body of that institution. It was also urged on behalf of the petitioner that the fact that the Sree Narayana College is a private institution does not in any manner affect the power or jurisdiction of this Court to issue in appropriate cases writs against the governing body of that institution. It was so contended on the basis that the College is an affiliated body affiliated to the University of Kerala in accordance with statutory provisions and is functioning on the basis of grants given by the State Government, routed no doubt through the University as also grants from the University Commission and that the University exercises control and supervision regarding the functioning of the College and at least to some extent, by rules,control the employment and the terms of employment of the staff of the College. In such circumstances, it is said, that if there is any violation of such rules governing even the terms of employment of a teacher engaged in such a College, if such violation affects the teacher's rights, there is no reason why a writ should not be issued by this Court. Reliance was placed on "The Law of Extraordinary Legal Remedies" by Forrest G. Ferries, 1926 Edition, paras 231 and 262, and also on 55 Corpus Juris Secundum Mandamus 233 Colleges and Universities and it was urged that even if the College be a private institution, a writ can issue; but according to counsel for the petitioner, it is unnecessary to go to that extent in this case for, according to him, the governing body of the College is a statutory authority and reliance for this proposition was placed on a ruling of the Assam High Court reported in Ajit Kumar Sarma v. State of Assam (AIR. 1963 Assam 46). Counsel also invited my attention to a decision of the Gujarat High Court reported in Shri Krishna Ranganath Mudholkar v. Gujarat University (AIR. 1962 Gujarat 88 F. B.) where a writ was issued by that court. This decision has apparently been approved by the Supreme Court in appeal in Gujarat University v. Sri Krishna Ranganath Mudholkar (AIR. 1963 SC. 705). Earlier, counsel for the petitioner had invited my attention to a decision of Subba Rao J. in C. D. Sekkilar v. B. Krishnamoorthy (AIR. 1952 Madras 151). This decision has apparently been approved by the Supreme Court in appeal in Gujarat University v. Sri Krishna Ranganath Mudholkar (AIR. 1963 SC. 705). Earlier, counsel for the petitioner had invited my attention to a decision of Subba Rao J. in C. D. Sekkilar v. B. Krishnamoorthy (AIR. 1952 Madras 151). The reference to these decisions was supplemented by fairly elaborate arguments pointing out the necessity of not denying the writ jurisdiction of High Courts to employees engaged in institutions similar to the Sree Narayana College and also pointing out the lack of any impediment which stands in the way of exercising that jurisdiction. On the other hand counsel on behalf of the respondents has mainly relied on though be too has relied on a number of decisions three decisions of the High Courts of Madras, Travancore-Cochin and Calcutta. The Madras decision is reported in University of Madras v. Shantha Bai (AIR. 1954 Madras 67). Their Lordships Rajamannar C. J. and Venkatarama Ayyar J. held that a University is not an authority within the meaning of that term in Art.12 of the Constitution of India. This decision has been commented upon at least by one commentator, Basu, in his Commentary on the Constitution of India, Fourth Edition, Volume I, page 124, and it is submitted by counsel on behalf of the petitioner that in view of the confirmation by the Supreme Court of the issue of a writ which was directed not only against the University of Gujarat, but against the Principal of a College too, the decision can no longer stand. The Travancore-Cochin High Court in Dr. G. F. Pappali v. University of Travancore (1956 K. L. T. 563) has definitely ruled that the proprietor and/or the managing Committee of a private educational institution affiliated to a University (in that case the Travancore University) and functioning under a statute and in receipt of grant from the University and under an obligation to conform to conditions by virtue of affiliation are not amenable to the writ jurisdiction of the High Court under Art.226 of the Constitution.. Similar is the ruling of the Calcutta High Court reported in Swapan Roy Choudhury v. Khagendra Nath Sen (AIR. 1962 Calcutta 520). The conclusion reached in this case is directly opposed to that of the Assam High Court already referred to by me. It is not easy to reconcile this conflicting judicial opinion. Similar is the ruling of the Calcutta High Court reported in Swapan Roy Choudhury v. Khagendra Nath Sen (AIR. 1962 Calcutta 520). The conclusion reached in this case is directly opposed to that of the Assam High Court already referred to by me. It is not easy to reconcile this conflicting judicial opinion. It seems to me unnecessary to attempt to reconcile these conflicting view points in this case or express any categorical opinion regarding it. I will assume, without deciding, for the purpose of this case, that a writ against the governing body of a private College, similar to the Sree Narayana College, affiliated to a University functioning under a statute similar to the Kerala University Act, 1957, can be issued by this Court in exercise of the powers vested in this Court under Art.226 of the Constitution. 10. So the only further question to be discussed and decided is whether the action of the convener as embodied in Ext. P-3 order is an act which is in violation of Clause.7 of the Statutes, an extract of which is Ext. R.2 produced along with the counter-affidavit filed on behalf of the first respondent It is necessary to read certain sub-clauses of Clause.7. It appears to me the relevant sub-clauses are (d), (e) and (f). They are in these terms: "(d) If a teacher's work or conduct during the period of probation is found unsatisfactory his service may be terminated after giving him three months' notice. (e) On confirmation the teacher confirmed & the management shall enter into a contract. The agreement executed shall contain details of the salary, scale, terms and conditions of service, notice for termination, rates of provident fund subscription, leave etc. A specimen contract form will be prescribed by the University. (f) Every teacher shall be entitled to three months' notice before his services are dispensed with. If such notice is not given, he shall be given an amount equal to three months' salary. No teacher shall resign his appointment without giving three months' notice, except with the consent of the management. The management however, shall have the fight to dismiss a teacher without notice for serious misconduct. If such notice is not given, he shall be given an amount equal to three months' salary. No teacher shall resign his appointment without giving three months' notice, except with the consent of the management. The management however, shall have the fight to dismiss a teacher without notice for serious misconduct. Teachers whose services are terminated under this rule shall have the right to appeal to the Syndicate against the decision of the management." I have come to the conclusion earlier in this judgment that the petitioner is a probationer, and so the sub-clause of Clause.7 that is applicable is sub-clause (d). Counsel on behalf of the petitioner also proceeded on this basis. He, however, contended that the meaning to be attributed to this sub-clause is that it provides for action being taken against a probationer for what may be termed to be a misconduct and/or with a view to imposing a punishment or penalty. He sought to gain support for this argument from the expressions used in the sub-clause. The sub-clause refers not only to work but to conduct and what is more important, it is suggested, is the word 'found' which, at least has as one of its meanings "a determination after an enquiry of fact". Reference was made to Black's Law Dictionary, Fourth Edition, page 785, and it is said that there must, therefore, be an investigation or an enquiry with a view to find out whether there has been any unsatisfactory nature in the work of the probationer or the probationer's conduct qua the probationer's services as a teacher. This can be done only by following the principles of natural justice, that is, after letting the teacher know the cause or the complaints, if any, against the teacher, and after giving the teacher an opportunity to explain those circumstances. This is the bare minimum that the principles of natural justice demand. And, since there has been no such thing in this case, it is said, there has been a contravention of sub-clause (d) of Clause.7 entitling this Court to interfere. 11. In the context in which the word 'found' is used in Sub-clause (d) of Clause.7, I am not prepared to accept the contention of counsel that it contemplates or envisages an enquiry with a view to determine, as in the case of a lis between the teacher and the management, certain facts. 11. In the context in which the word 'found' is used in Sub-clause (d) of Clause.7, I am not prepared to accept the contention of counsel that it contemplates or envisages an enquiry with a view to determine, as in the case of a lis between the teacher and the management, certain facts. I am not unaware of the pronouncement of the Supreme Court where Their Lordships had to consider a word similar to that in this case, viz., 'consider'. The Supreme Court in the context in which that word was found in the rule which was interpreted, came to the conclusion in the decision reported in Board of nigh School and Intermediate Education, U. P. v. Ghanshyam Das Gupta (AIR. 1962 S. C. 1110) that'consider' meant 'considered after sifting the material' and, therefore a quasi-judicial enquiry was intended and meant. I do not think that the same meaning or similar meaning can be attributed to the word 'found' occurring in the sub-clause. Sub-cl. (d) deals with a probationer and on completion of the period of probation, it appears to me an accepted principle, that it is open to the employer to terminate the services of a probationer. This does not contemplate any enquiry nor the entering of any findings. This appears to me to be so even in regard to industrial law where action taken by an employer against an employee is made subject at least to a scrutiny by an Industrial Tribunal. Even those Tribunals, I think, are not entitled to interfere with the termination, after the period of probation of a probationer's employment, on the sole ground of unsuitability. If that is the position, I do not think this word 'found' seen in the sub-clause can be given a meaning which would lift the determination by an employer of the suitability of a probationer to the realms of a quasi-judicial enquiry resulting in the position that such determination is subject to judicial review. 12. The position of a probationer has now been clarified by at least three decisions of the Supreme Court. In State of Bihar v. Gooi Kishore Prasad (AIR. 1960 SO. 689). 12. The position of a probationer has now been clarified by at least three decisions of the Supreme Court. In State of Bihar v. Gooi Kishore Prasad (AIR. 1960 SO. 689). Their Lordships said: "It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersions on his honesty or competence, his discharge was not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court. Instead of taking that easy course the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and incompetent officer. He had the right, in those circumstances, to insist upon the protection of Art.311 (2) of the Constitution." To the same effect is the observation contained in State of Orissa v. Bam Narayan Das (AIR. 1961 S. C. 177). The head note to the decision contains a correct rendering of what is found in the judgment, and that is in these terms: "A probationer can be discharged in the manner provided by R.55B of the Civil Services (Classification, Control and Appeal) Rules. Mere termination of employment does not carry with it 'any evil consequences' such as forfeiture of pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion, etc. An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he was fit to be confirmed, is not of that nature. And to such a case Art.311 (2) does not apply." And in State of Bombay v. F. A. Abraham (AIR. 1962 SO. 794), dealing with the position of a person who was holding an officiating post, the Supreme Court said: "A person officiating in a post has no right to hold it for all times. And to such a case Art.311 (2) does not apply." And in State of Bombay v. F. A. Abraham (AIR. 1962 SO. 794), dealing with the position of a person who was holding an officiating post, the Supreme Court said: "A person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reasons. When the permanent incumbent comes back, the person officiating is naturally reverted to his original post. This is no reduction in rank for it was the very term on which he had been given the officiating post. Again sometimes a person is given an officiating post to test his suitability to be made permanent in it later. Here again, it is an implied term of the officiating appointment that if he is found unsuitable, he would have to back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank, when the reversion has not in any way affected him so far as his condition and prospect of service are concerned." 13. I have not been able to discern anything against the above propositions stated in Jagdish Mitter v. Union of India (Civil Appeal No. 718 of 1962), This is clear from the following passages: "But since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasised that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and as a result of the said findings, his services are terminated, the fact that the order by which his services are terminated, ostensibly purports, to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounts to the dismissal of the temporary servant. That is way the form of the order is inconclusive; it is the substance of the matter which determines the character of the termination of services." Dealing with the facts of that case, Their Lordships said: "We have already stated that before the services of the appellant were terminated, some enquiry was held on the complaint of one Sham Lal and at this enquiry it transpired that Vishwa Mitter, the brother of the appellant, had used a reply paid post card sent by Sham Lal without scoring the address of Sham Lal written on it by him. In fact, it appears that Viswa Mitter admitted that he had illegally used the said card. But we do not know when this enquiry was held, how it commenced and what was the final order passed as a result of it.... It is quite possible that even if the respondent intended to hold a formal enquiry with a view to take disciplinary action against the appellant, it may have thought that a preliminary investigation in that behalf may first be conducted and then a decision may be taken as to whether a formal enquiry should be held or not. If that was the scope of the enquiry which was apparently held in this case, the appellant cannot rely upon the said enquiry in support of his plea that his discharge amounts to dismissal. Their Lordships then relied on the form of the order passed in that case for coming to the conclusion that that was a case of dismissal and not discharge. The order read: "Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government Service is hereby served with a month's notice of discharge with effect from November 1,1949." This was held to be a dismissal and not a discharge. 14. In the light of the above decisions, it has to be found from all the facts and circumstances made available to me whether this has been a case simpliciter of taking action against the probationer finding her unsuitable for being confirmed or whether the action in this case is camouflage; and the question is whether it can be said that the termination of the services of the petitioner is by way of punishment for some misconduct regarding which no enquiry was held. 15. 15. The action in this case was not preceded by any enquiry. In fact what can possibly be the reason for the termination of her services has to be gleaned from the correspondence that followed Ext. P-3. All these have been produced by the third respondent along with the counter-affidavit filed by that respondent and have been marked as Exts. B. 4, R.5, R.6, R.7, R.8 and R.9. A perusal of these exhibits leaves no doubt in my mind that the action was taken apparently because of the insistence by the petitioner that she should leave the services of the College at any time that suited her. In Ext. R.5, proceedings of the Convener, Local Managing Committee of the Sree Narayana College, the Committee took the attitude that "if the Lecturer agrees to give an undertaking to the effect that she will continue in this College till the end of the academic year, her request will be considered." The request of the petitioner was that the order, Ext. P-3, may be reconsidered and that she may be allowed to continue in service. This undertaking demanded by Ext. R.5 the petitioner was at no time prepared to give. 16. The lack of such an undertaking, it is alleged by counsel on behalf of the third respondent on the basis of the averments made in the counter-affidavit, would completely dislocate the work of the educational institution particularly at a time when the examinations were nearing. It was also pointed out that a new incumbent had been already appointed and the Managing Committee insisted that such an incumbent should undertake not to leave in the midst of an academic year and that he had so undertaken. This is seen from Exts. R.10 to R.12. 17. I do not think it is for me to sit in judgment on the question whether it would be appropriate for the Management of the College to terminate the services of a probationer because he/she showed an indifference to the institution and the consequences of a teacher not being available at the middle or towards the fag-end of an academic year. I am of the view that these matters must be left entirely to the Management of the College and their decisions in that regard can be interfered with, if at all, only when they are arbitrary or perverse. I am of the view that these matters must be left entirely to the Management of the College and their decisions in that regard can be interfered with, if at all, only when they are arbitrary or perverse. I am not prepared to say that the decision in this case is such a one. Nor am I prepared to spell out from what happened a case of imposition of a punishment which leaves a stigma so far as the petitioner is concerned. 18. In the light of the above, this writ application must be dismissed and I do so. I, however, do not wish to part with this case without expressing a hope that the differences between the petitioner and the College authorities would be amicably settled. In that fond expectation, I make no order as to costs. Dismissed.