TYAGI, J.—This second appeal of the State defendant is against the judgment and decree dated 6th December, 1972 of the Additional District Judge, Ajmer confirming the decree passed by the Munsif, Ajmer District, Ajmer declaring the order of termination of the plaintiff-respondents service as illegal and passing a decree for Rs. 3,400/- for the arrears of salary till the date of the suit in favour of the plaintiff. The facts giving rise to this litigation, in a nut shell, are as follows: Plaintiff Jagdish Chandra Heda was appointed as an L.D.C. in the office of the Deputy Commissioner (Administration) Excise and Taxation by order dated 20th April, 1963. The appointment was temporary. It is admitted by the parties that Shri Jagdish Chandra took charge of the post of L.D.C. on 22nd April, 1963. Later on Jagdish Chandra was transferred to the office of the Sales Tax Officer Survey and Investigation, Ajmer against a clear vacant post of an L.D.C. and thereafter he was again transferred to the office of the Sales Tax Officer, Ajmer City, Ajmer. According to the case of the plaintiff the plaintiffs initial appointment was made by the Deputy Commissioner Excise and later on it was extended by him to continue till further orders. On 22nd March, 1966 the Commercial Taxes Officer Ajmer, Mr. R. D. Gupta passed an order suspending the plaintiff. Two days after i.e. on 4th March, 1966, a notice was given to the plaintiff respondent that his temporary service shall stand terminated with effect from 5th May, 1966. This notice was served on the plaintiff on 5th April, 1966. The plaintiff was relieved of his duties on 5th May, 1966. The plaintiff sought his remedy by preferring and appeal to the Deputy Commissioner (Administration) challenging the order of suspension and the notice of termination but the plaintiffs appeal was dismissed by the Deputy Commissioner (Excise). The plaintiff again filed an appeal before the Government. But his grievance is that the Government did not take any decision on his appeal, therefore, he was compelled to file a suit in the court of Munsiff Ajmer City East, Ajmer for a declara-tion that the notice of termination was illegal and hence he should be deemed to be in service even after 5th May, 1966. In these circumstances the plaintiff prayed that a decree for Rs. In these circumstances the plaintiff prayed that a decree for Rs. 3,400/- for arrears of pay be passed against the State treating him in service after the date of termination. One of the grounds of the challenge was that the order of termination of service of the plaintiff was passed by Mr. R. D. Gupta who bore an ill will against the plaintiff as he had appeared against Mr. Gupta as a witness in a departmental enquiry and, therefore, the impugned order was mala fide. 3. The State denied the charge of malafides and came out with a plea that the plaintiff had no right to file a suit as he was a temporary employee of the State and under R. 23A of RSR. the Commercial Taxes Officer was competent to terminate the plaintiffs services after giving him one moth notice. It was, therefore, prayed in the written statement that the suit of the plaintiff be dismissed with costs. 4. The trial court framed as many as 7 issues out of which issue No. 1 relates to the illegality and unconstitutionality of the termination order and also about the mala fides of Mr. Gupta. 5. The plaintiff besides himself produced two witnesses while the State examin-ed only Mr. Rameshwar Das Gupta, Commercial Officer, Ajmer. 6. The learned Munsiff held that the order of termination was void because the plaintiff was in continuous service of the Government for more than 3 years at the time when he was actually removed and, therefore, R. 23A(l) which was pressed into service was not attracted to terminate the plaintiffs services. According to the learned Munsif it was R. 23A(2) of the RSR which could be attracted in the circumstances of this case. He also held that the order of termination was passed by an authority who was not competent under Art. 311 of the Constitution to terminate the plaintiffs service because the plaintiff was initially appointed by the Deputy Commissioner Excise. As regards the mala fides, the learned Munsiff held that the order was not bonafide, it, therefore, could not operate against the plaintiff. 7. As regards the mala fides, the learned Munsiff held that the order was not bonafide, it, therefore, could not operate against the plaintiff. 7. On appeal the learned Additional District Judge confirmed the finding of the learned trial court but regarding the mala fides the reasoning given by the learned Additional District Judge was different and, therefore, it was urged before me by the learned counsel appearing on behalf on the State that the question of fact regarding mala fides of Mr Gupta could be re-examined by this Court with reference to the evidence of the parties. 8. The first question canvassed before me by learned counsel appearing on behalf of the appellant is that the order of termination was issued under R. 23A(1) of the R.S.R. and therefore it was termination simpliciter and does not attach any stigma to the plaintiff attracting the provisions of Art. 311 of the Constitution to justify the finding of the courts below that the order impugned could not be passed by any other authority except the Deputy Commissioner Excise who had appointed the petitioner. In this connection notice dated 4th March, 1966 given by the Commercial Taxes Officer was read over to me. The ropy of this notice is on the record at page 58. It does not in any manner show that the plaintiffs service was terminated by way of punishment. It is true that two days prior to the date of the issue of this notice the same Officer Mr. Gupta had served a suspension order Ex. 22 of the plaintiff but in the notice of termination there is no mention or indication that as a result of departmental enquiry against the plaintiff his service was being terminated. The copy of the notice reads as follows: "OFFICE OF THE COMMERCIAL TAXES OFFICER, AJMER. No. 298/Estt/Per/ Dated the 4-4-1966 Shri Jagdish Chandra Heda, Lower Division Clerk, Commercial Taxes Officer, Ajmer. You are hereby informed under R. 23A(b) of the Rajasthan Service Rules that your services are terminated w.e.f. 5-5-1966. Sd/- R.D. Gupta, Commercial Taxes Officer, Ajmer." 9. The language of this notice does not indicate that the Officer issuing the order contemplated to terminate the service of the plaintiff by way of punishment. It is undoubtedly a notice under R. 23A(l)of the R.S.R. showing that the service of the plaintiff shall stand terminated with effect from 5th May, 1966. Sd/- R.D. Gupta, Commercial Taxes Officer, Ajmer." 9. The language of this notice does not indicate that the Officer issuing the order contemplated to terminate the service of the plaintiff by way of punishment. It is undoubtedly a notice under R. 23A(l)of the R.S.R. showing that the service of the plaintiff shall stand terminated with effect from 5th May, 1966. The question of removing the plaintiff respondent by way of punishment attaching any stigma to him does not arise in this case and therefore Art. 311 of the Constitution cannot be attracted to the present circumstances. 10. Learned counsel appearing on behalf of the respondent however urged that no doubt the impugned notice ex facie appears to be quite innocuous as far as the attaching of stigma is concerned, as it does not contain any imputation regarding the misconduct of the plaintiff but if it is considered in the light of the suspension order Ex. 22 passed by the same officer two days prior to the issue of the notice, there is no escape from conclusion that this notice was given to punish the plaintiff for his misconduct which necessitated the issue of the suspension order and, therefore, in such a circumstance it was incumbent for the Commercial Taxes Officer to place the paper before the Dy. Commissioner for necessary order after making enquiry in the misconduct of the plaintiff. He further argued that cl. (1) of Art, 311 contains a mandate that if an employee is dismissed, removed or reduced in rank then he should be dismissed or removed by an authority by which he was appointed. In this case according to Mr. Garg appearing on behalf of the plaintiff respondent the plaintiff was initially appointed by the Deputy Commissioner Excise and also the period of his initial temporary appointment was extended by the same officer and, therefore, Commercial Taxation Officer was not competent though he may otherwise be an appointing authority under the Rajasthan Civil Services (Classification Control & Appeal) Rules, hereinafter to be referred as C.C.A Rules 11. The terms dismissal, removal or reduction in rank as used in Art. 311, clearly indicates that the order of dismissal, removal or reduction in rank must be passed by way of penalty. The terms dismissal, removal or reduction in rank as used in Art. 311, clearly indicates that the order of dismissal, removal or reduction in rank must be passed by way of penalty. If the removal is only a termination of service simpliciter under R. 23A of the R.S.R., then that removal from service is not covered by the terms "removal" as used in Art. 311. If the service of a temporary employee is terminated under R. 23A of the R.S.R. then removal does not bring any stigma to him, and, therefore, such a removal is nothing but the termination simpliciter and does not attract the application of Art. 311 and as such the mandate contained in Art. 311 (1) cannot be pressed into service to demand that the employee should be removed by that very authority who appointed him. It is not disputed before me that the C.T.O. was a competent authority to terminate the service of an L D.C. in his office. Mr. Gupta who was then working as the C.T.O. was therefore competent under the C.C.A. Rules to issue notice under R. 23A(1) of the R.S.R. to terminate the plaintiffs service. As the impugned notice does not show that it was issued to award punishment to the plaintiff it is difficult to sustain the finding that Mr. Gupta being an appointing authority under the C.C.A Rules was not competent to take action against the plaintiff under R. 23A(1) of the R.S.R. 12. The next ground on which the order of termination has been declared illegal by the courts below is that it could not be issued within the ambit of sub rule (1) of R. 23A It is admitted by the parties that the plaintiff entered into service on 22nd April, 1963 and that his services were finally terminated on 5th May, 1966. The period during which the plaintiff served the State undoubtedly exceeds a period of 3 years. The contention of the plaintiffs counsel is that sub-rule (2) of R. 23A would in these circumstances be attracted for terminating the plaintiffs service because he was allowed to serve the State continuously for more than 3 years and, therefore, by simply giving him a months notice under R. 23A(l) his service could not be terminated on 5th May, 1966. 13. 13. The argument of the learned Assistant Government Advocate is that the termination of service must be taken to have come into effect on the day when the notice under R. 23A(1) was issued to a temporary employee and not from the date when he was actually relieved of his duties. On this basis he urged that the plaintiffs service for the purpose of R. 23A shall be counted only upto 4th March, 1966 when the notice was issued by a competent authority. This notice was served on the plaintiff on 4th April, 1966. These rival contentions gave rise to an important question as to when the service of the plaintiff shall be deemed to have been terminated and whether on 5th May, 1966 it could be said that the plantiff had put in a continuous service for a period of more than 3 years go as to attract the provisions of R. 23A(2) of the R.S.R. to terminate his service. 14. It is admitted by the parties that the impugned notice was issued on 4th March, 1966 and was served on the plaintiff on 4th April, 1966. Both these points of time undoubtedly fall within a period of 3 years when the plaintiff entered into the Government service. The plaintiff was relieved under this notice from his duties on 5th May, 1966 when he had already completed the period of 3 years continuous service in the Government. On that day the period of service completed by the plaintiff was exactly 3 years 13 days. 15. Sub-rule (1) of R. 23A of the R.S.R. is subject to sub-rule (2) which clearly lays down that a person who has been in continuous service of the government for more than 3 years will governed by sub-rule (2) and not by sub-rule (1) of R. 23A. The combined effect of sub rule (1)and sub-rule (2) of R. 23A is that the service of a temporary government employee is liable to be terminated before he actually completed 3 years continuous service in the government at any time by a notice in writing given either by the Government or the appointing authority under the rules and the service automatically comes to an end after the expiry of one month the period of notice unless the period was of more than one month under the agreement between the Government and Government Servant. It is not the case of the State that there was any agreement between the State Government and the plaintiff that the notice period under R. 23A will be more than a month. Simply because a notice under R. 23A is issued to a temporary employee his service does not automatically come to an end. The service of an employee stands terminated only when he is directed to relinquish the charge of his office and not on the issuance or serving the notice under R. 23A of the R.S.R. If for one reason or the other the Government allowed its employee to work in his job for a period of more than 3 years the pro-cedure to be followed to remove the temporary employee will be one which is contained in sub-rule (2) of R. 23A. 16. A bare perusal of the provisions of the R. 23A of the R.S.R., makes it clear that the service of a temporary Government employee shall terminate after giving one month notice under R. 23 A (1) but if he has served the State continuously for more than 3 years then the procedure that shall be followed is one given in R. 23A(2). The proviso attached to this rule gives a clue for correctly interpreting this rule. According to this proviso, the Government have been empowered to terminate the service of the temporary employee forthwith but in that event a sum equivalent to the amount of his pay for the period of notice (one month) shall have to be given to him. This proviso further contains that if the notice period falls short of one month then the payment can be made for such period which falls short of one month or any agreed longer period. This proviso shows that the temporary employee can be asked to relinquish the charge of his office forthwith though in that event he will be entitled to receive one months salary. In such circumstances the service of the employee shall be deemed to be terminated on the day when he finally leaves the office even though he may have received the salary for the notice period. This makes it abundantly clear that the termination of service is co-extensive with the permanently relinquishing of the charge of the office held by the temporary employee. This makes it abundantly clear that the termination of service is co-extensive with the permanently relinquishing of the charge of the office held by the temporary employee. In the present case the plaintiff was allowed to stay in service under the notice issued by an appointing authority under R. 23A(1) upto 5th May, 1966 which date definitely falls beyond a period of three years continuous service in the Government and, therefore, the question that arises for my determination is whether the plaintiff who had already received a notice of termination under R. 23A(1) could be removed from service after he was allowed to continue in service for a period exceeding 3 years under the notice issued under R. 23A(1) or whether the procedure incorporated in sub-rule(2) of R. 23A will be attracted 17. The language of sub-rule(2) of R. 23A is that the service of a temporary Government employee who has been in continuous Government service for more than 3 years shall be terminated in the same circumstances and in the same manner as a Government servant in permanent service. This makes the point of time when termination of the service is to come into effect assumes importance for deciding this question. 18 Learned Assistant Government Advocate urged that if the notice under R,23A(i) is served within a period of 3 years then the temporary Government employee cannot claim the benefit of sub-rule (2) because he knows the exact time when he has to get out of his employment and, therefore, it is not open for a Government employee to say that he was taken unawares in the matter of his removal from service. In my opinion the object of notice under R. 23 A is not that the Government servant should know the exact date of his removal but it is kept with a purpose that the temporary employee may gain some breathing time before he gets acclimatised to the new situation of being thrown out of employment. The provision of giving one month salary in lieu of notice if he is removed forthwith is also kept with a view to give him some respite to face the, problem of unemployment. In my opinion this argument of Mr. The provision of giving one month salary in lieu of notice if he is removed forthwith is also kept with a view to give him some respite to face the, problem of unemployment. In my opinion this argument of Mr. Singhvi hardly finds any root in the language of the Rule that one month notice is provided for the Government employee so that he may not be taken unawares when actually thrown out of employment. This argument of Mr. Singhvi has hardly any relevance to the provision of the Rule. 19. If this argument of Mr. Singhvi is accepted that a temporary employee shall be deemed to be removed from service as soon as the notice under R. 23A is served on him then it can do havoc to the temporary employees. The government in that event shall be free to terminate the service of any temporary employee after giving him notice under R. 23A within the period of 3 years even though the period of notice may be anything say 5 years and in that case even after the expiry of three years the service of a temporary employee shall stand terminated without attracting the provision of sub-rule (2) of R. 23A. This interpretation as is pleaded by Mr. Singhvi would virtually confer such power on the government which the rule never contemplated that if the government so likes it may make sub-rule (2) of R. 23A a nugatory provision by fixing any longer period for removing the temporary employee from service. It will also have another effect of doing away with the period of one month as prescribed by sub-rule (1) of R. 23A. Sub-rule (1) of R. 23A specifically prescribes a period of one month or any other period which could vary according to the agreement between the Government servant and the Government. According to this provision the Government can fix only the periods while issuing a notice under R. 23A i. e. either one month or any other period which has been agreed to between the Government and its temporary employee. It is not open for the Government to fix any other period depending on its whims while exercising its power under the said rule. It is not open for the Government to fix any other period depending on its whims while exercising its power under the said rule. The period of one month as prescribed by R. 23A of the R.S.R. is mandatory and the Government while exercising its power under this rule should strictly comply with the requirement of the rule and give one month notice unless of course there was an agreement between the Government and the temporary employee to vary this period- The Government no doubt, under the proviso can reduce this period of one month but in that case it shall have to pay one month salary or the proportionate emoluments if the employee is directed to relinquish the office either immediately before the expiry of one month. The notice is to be issued under sub rule (1) of R. 23A then it should be strictly in accordance with the terms of the Rule and not at the whims of the Government. In no case however, the Government can extend the period of notice to allow the Government servant to continue in Government service for more than 3 years. If deliberately or otherwise the Government permits a tempo-rary Government employee to remain in continuous service for more than 3 years then in that event it would not be open to the Government to ask the temporary employee to quit his job in accordance with the provision of R. 23A (1). In that case R. 23A (2) would be attracted which undoubtedly confers a very valuable right on a Government employee because he is to be treated like a permanent employee so far as the matter of the termination of his service is concerned. In this view of the matter it can be safely be held that the Government have no option to fix any other period of notice except one month and that the temporary employee shall be deemed to have been removed from service when he has actually to relinquish charge of his office in pursuance of the notice under R. 23A and not on the day when the notice was issued or served on an employee. The period of 3 years continuous service for the purposes sub-rule (2) of R. 23A shall therefore be counted upto the time when the temporary employee actually relinquishes his job In the present case the impugned notice was issued on 4th March, 1966. The appointing authority deliberately permitted two months time to the plaintiff before he was asked to relinquish the charge of his office On 5th of May when the plaintiff had to leave his job under the notice he was defini-tely in continuous Government service fore more than 3 years and therefore he has right to claim that procedure provided in sub-rule (2) of R. 23A was the proper pro-cedure to be followed. For the reasons given above I agree with the finding given by the two courts below regarding the validity of the impugned order on this ground. 20. As regards the question of malafides pleaded by the plaintiff it is clear from the statement of the plaintiff that he had appeared as a witness against Mr Gupta in a department! enquiry instituted against him. This fact that a departmental enquiry was actually held against Mr. Gupta stands fully proved from the testimony of P. W. 3 Poonamchand. The statement Poonamchand shows that he had a leaning towards Mr. Gupta rather than to help the plaintiff. I find no difficulty in placing reliance on the statement of Poonamchand P.W. 3 Mr. Gupta has come in the witness box and has denied the fact that any departmental enquiry was even instituted against him. The way in which Mr. Gupta has acquitted himself in the witness box does not inspire confidence in his statement. Mr. Gupta has stated that he terminated the plaintiffs service because he was holding the job in an illegal manner without getting a proper sanction for bis continuity in service. There is no warrant to accept this deposition of Mr. Gupta because I find on the record the order of the Deputy Commissioner Excise whereby the term of the plaintiffs temporary service was extended by him till further order. 21. There is one other circumstance which throws ample light on the question of mala fides of the Commercial Taxes Officer and it is that two days prior to the date of the impugned notice he issued an order of suspension of the plaintiff. According to the statement of Mr. 21. There is one other circumstance which throws ample light on the question of mala fides of the Commercial Taxes Officer and it is that two days prior to the date of the impugned notice he issued an order of suspension of the plaintiff. According to the statement of Mr. Gupta that order was passed on certain complaints against the plaintiff but what was that complaint which necessitated the suspension order to be issued has not been brought on the record nor did the defendant try to prove as to what action on that complaint was taken against the plaintiff Even after the impugned notice was served on the plaintiff, the suspension order continued and was not revoked by the appointing authority even though no regular enquiry was instituted against the plaintiff. It means that the plaintiff remained under suspension till he relinquished the charge of his post which means that both the remedies were being simultaneously pursued. 22. Rule 13 of C.C.A. Rules of 1958 provides that the appointing authority or any other authority empowered by the government can suspend a government servant where a disciplinary proceeding against him is either contemplated or is pending. It has not been clarified by Mr. Gupta whether the disciplinary proceeding was actually initiated against the plaintiff when the suspension order was passed or it was only under contemplation. In any case when the suspension order is issued by the competent authority it becomes necessary for his to follow the procedure prescribed by the C C.A. Rules to initiate a disciplinary enquiry against the delinquent officer or to withdraw it if prima facie the delinquent officer was not found guilty of any misconduct. No light is thrown by the defendant State government as to how the disciplinary proceedings contemplated or initiated against the plaintiff were pursued. The suspension order shows that Mr. Gupta was very keen to do away with the services of the plaintiff. The continuation of the suspension order without any disciplinary proceeding for such a long time till the service of the plaintiff was finally terminated on 5th May, 1966 by itself shows that the appointing authority was not proceeding against the plaintiff in a bonafide manner. It is true that the appellate court while recording its findings about the malafides of Mr. It is true that the appellate court while recording its findings about the malafides of Mr. Gupta advanced different reasons which are not relevant for upholding the finding, but that does not deter this Court to uphold it on the ground relevant to the question in issue. After having gone through the statements of the witnesses that the plaintiff had offended Mr. Gupta by appearing as a witness against him in a departmental enquiry the C.T.O. was prompted to take action which resulted in the order of termination of the plaintiffs service and, therefore, in such circumstances the order cannot be said to have been issued in a bonafide manner. 23. For the reasons mentioned above, I am of the opinion that the judgments of the two courts below do not warrant any interference in this second appeal. Order of termination of plaintiffs service is not in conformity with the provisions of R. 23A (2) of the R.S.R. and, therefore, it is inoperative against the plaintiff. The decree passed by the courts below for the salary of the period when he remained out of employment is, therefore, upheld. 24. The learned Assistant Government Advocate tried to raise a new argument before this Court that the plaintiff has not proved damages and, therefore, decree for Rs. 3,400/ should not have been passed in his favour. The question of damages was never raised by the State in its written statement and therefore no issue was framed on this point. This was also not raised before the first appellate court. It cannot therefore be allowed to be raised for the first time in the second appeal. 25. The result is that the appeal of the State fails and is hereby dismissed with costs. 26. It is prayed by learned Assistant Government Advocate that this is a fit case for issuing a certificate under sec. 18 of the Rajasthan High Court Ordinance to file an appeal before the division bench. Learned counsel for the respondent says that R. 23A is very clearly worded and therefore the question does not raise a complicated point of law which requires the decision of the Bench I do not find it to be a fit case to be certified under sec. 18. Learned counsel for the respondent says that R. 23A is very clearly worded and therefore the question does not raise a complicated point of law which requires the decision of the Bench I do not find it to be a fit case to be certified under sec. 18. Looking to the circumstances of the case and the financial condition of the respondent who cannot indulge in the luxury of litigation, I am not inclined to give permission to file an appeal under sec. 18 of the Rajasthan High Court Ordinance. The prayer is, therefore, rejected.