JUDGMENT Rampal Singh, J.-1. This second appeal has been preferred by the appellants against the judgment and decree passed by the District Judge, Gwalior, in Civil Appeal No. 21-A of 1982, dated 9-5-1983. 2. Respondent Badar Mohammed filed a suit in the Court of 3rd Civil Judge Class I, Gwalior, for obtaining the relief of declaration and reinstatement in the service, with back wages and all benefits. His case was that he was appointed as Warder by the Superintendent of Central Jail, Gwalior, on 4-4-1979 vide Ex. P/1, as a temporary employee with the condition that his services can be terminated under rule 12 of the M.P. Temporary and Quasi Permanent Govt. Servant Rules 1960, i.e., after giving him a notice of one month. The plaintiff-respondent further averred that without giving him any notice, the appellant-defendant terminated his services vide order Ex. P-2 on 28-4-1979 and issued a fresh order of appointment Ex. P-3 dated 25-4-1979 with the direction to join as a Warder at open Jail Mungaoli within 15 days from the date of this fresh order of appointment. According to the plaintiff he went to join at Mungaoli on 12 and 14-5-1979 but was not permitted to join, instead on 15-5-1979 he wag told that as he has not joined within the stipulated period of 15 days, his appointment order has expired and hence is not entitled to join. 3. Appellant-defendants took the stand at the trial, without specifically denying the contents of the plaint, that after terminating his services, he was given a fresh appointment to join as a Warder in open Jail Mungaoli, but he failed to join within 15 days from the date of order and hence the plaintiff has no right to claim anything from them and hence the termination is proper due to non-compliance of the instructions. 4. The trial Court dismissed the suit of the plaintiff respondent, hence he appealed to the District Judge, who reversed the judgment and decreed his suit. Now the defendant State has preferred this second appeal against the impugned judgment and decree. 5. This appeal was admitted on the following substantial question of law:- "Whether on the facts and circumstances of the case, even in face of the specific condition that in case of failure to join within the stipulated period of 15 days, the appointment of the respondent shall automatically stand terminated vide Ex. D-1, Ex. 5. This appeal was admitted on the following substantial question of law:- "Whether on the facts and circumstances of the case, even in face of the specific condition that in case of failure to join within the stipulated period of 15 days, the appointment of the respondent shall automatically stand terminated vide Ex. D-1, Ex. P-3, one month's notice under rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Service) Rules, 1960 is mandatory?" 6. A preliminary objection was raised by the respondent that the copy of the judgment annexed with the memo of appeal was not obtained by the appellant. The copy of the judgment and decree annexed is the copy obtained by the respondent and was presented before the Superintendent Central Jail, Gwalior, for the purpose of joining the service. The same copy was used by the appellant and the appeal filed by them is beyond limitation. Shri Modi, Additional Government Advocate has candidly admitted this statement. He has also admitted at the Bar that his appeal is barred by limitation of one day and he has not filed any application under section 5 of the Limitation Act, for the condonation of his delay. 7. It has been settled by their Lordships of the Supreme Court in the case of Udavan Chinubhai v. R.C. Bai AIR 1978 SC 2319, that under section 12 (1) read with the Explanation of the Limitation Act, a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree, if he made the application for copy only after preparation of a decree. It is thus obvious that this is liable to be dismissed on that count only. 8. I would have stopped at this point but the technicalities are being brushed aside and I propose to decide this appeal on merits. 9. Shri M.L. Modi, learned Additional Government Advocate for the State has submitted that the respondent was in the service of the appellant as a Warder, appointed on the post of fixed pay for a period of 3 months only vide Ex. D-7 and Ex. D-8. According to Shri Modi the condition of the Service of the respondent was based upon a contract and hence he is not entitled to claim the benefits of rule 12 of the Govt. Servants (Temporary & Quasi Permanent Service) Rules, 1960. 10. D-7 and Ex. D-8. According to Shri Modi the condition of the Service of the respondent was based upon a contract and hence he is not entitled to claim the benefits of rule 12 of the Govt. Servants (Temporary & Quasi Permanent Service) Rules, 1960. 10. Neither this plea was taken by the appellant in the written statement nor Ex. D-7 and Ex. D-8 both these documents were referred thereto. Hence no issues were framed by the trial Court. Neither the plaintiff nor the defendant adduced any evidence as far as Ex. D-7 and Ex. D-8 are concerned. These documents were not shown to the plaintiff when he was in the witness box. When the services of the plaintiff-respondent were terminated, these documents were not referred by the appellants in the termination order. When the appellants were served with Ex. P-6, notice under section 80 of the Code of Civil Procedure, the appellants instead of replying it on the basis of Ex. D-7 and Ex. D-8 choose to remain silent. These two documents, though would not make any dent in the case of the respondent, yet it would be relevant to observe that these two documents were introduced by D.W. 1 Brij Mohan Tiwari after his statement was recorded and the case was adjourned. Be that as it may, this argument has no force as the fact was neither pleaded nor proved by the appellants. 11. Admittedly, no notice was given nor salary for notice period was paid to the respondent by the appellants. M.P. Government Servants (Temporary & Quasi Permanent Service) Rules, 1960 provide that subject to any provision contained in the order of appointment or in any agreement between the Government and Temporary Government Servant, the service of a temporary Government servant, who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by appointing authority to the Government servant. There is a proviso to the rule which says that the services of any such Government servant may be terminated forthwith by payment to him a sum equivalent to the amount of his pay plus allowances for the period of notice. The period of notice is also provided by clause (b) to the Rule. There is a proviso to the rule which says that the services of any such Government servant may be terminated forthwith by payment to him a sum equivalent to the amount of his pay plus allowances for the period of notice. The period of notice is also provided by clause (b) to the Rule. It says that the period of notice shall be one month unless otherwise agreed between the Government and the Government servant. The appointment order of the respondent Ex. P-1 shows that the respondents will be liable to be discharged by giving one month's notice or one month's pay and allowances in lieu thereof. It is apparent that there is no contrary term of condition contained in it dispensing with notice or payment of notice-pay, as referred to in rule 12. As the respondent was not given one month's notice before termination of his appointment and as he was also not paid any notice-pay at the time when his services were terminated, the order terminating his services is patently invalid as being in contravention of rule 12 of the rules. See D.B. Judgment in Prakash Chandra Singhai v. Engineer in chief 1978 (II) MPWN, Note 142. 12. In the result, the judgment and decree passed by the District Judge is maintained and this appeal is dismissed. The respondent shall receive from the appellants costs throughout. Counsel's fee Rs. 200/-, if certified.