This is plaintiffs second appeal. The plaintiff had filed suit for declaration that he held the permanent post of Graduate Assistant Teacher in Aided Malay High School and that the order dated 24.3.75 was void and illegal, on the allegations that he had been appointed Graduate Asstt. Teacher in the said school in the vacancy caused by up gradation of the permanent incumbent Shri B.B.Chakravorty by order 3.7.69 tempor­arily. The plaintiff had joined on 7.7.69. The appointment was regularised and the plaintiff was allowed to serve in substantive permanent post continuously. Sri B.B.Chakravorty was appointed in the permanent post of Asstt. Head Master with effect from 1.5.72, The plaintiff applied for confirmation on 14.8.1974. The plain­tiff's service was terminated by notice dated 18.8.74, w.e.f. IS.7.74, but it did not take effect, and the plaintiff was allowed to continue. However, by order dated 24.3.75 the plaintiff's service was terminated with immediate effect. Hence the suit was filed. The respondents the Management Committee and others contested suit on the ground that the plaintiff had held a temporary appoin­tment in a temporary vacancy, that after advertisement on selection made in which the plaintiff was also considered but was not selected, by order dated 24.3.75 the person selected was appointed, and the plaintiff was appointed to another post in a scheme but the plaintiff did not join. The learned trial Court framed the issues and held that the impugned order dated 24.3.75 was illegal and the plaintiff was entitled to relief. The suit was decreed. There were two appeals by the defendants. The learned appellate Court below held that the State of Assam appellant and other Government officials appe­llants had not been served with notice under section 80 C.P.C. when the suit was filed and further that the order dated 24.3.75 was valid. The appeals were allowed and the suit was dismissed. There were two appeals by the defendants. The learned appellate Court below held that the State of Assam appellant and other Government officials appe­llants had not been served with notice under section 80 C.P.C. when the suit was filed and further that the order dated 24.3.75 was valid. The appeals were allowed and the suit was dismissed. Aggrieved the plaintiff has come in appeal and Sri J.P.Bhattacharjee, learned counsel on his behalf has raised two contentions firstly that when the suit was filed on 24.3.1975 the defendants 16 to 18 the State of Assam and its two officers were only proforma defendant and no relief had been claimed against them, but later when by amendment dated 24.4.76 relief was claimed against them and the said defendant had ceased to be proforma defendants, notice under section 80, Code of Civil Procedure hereafter the Code had already been served on them and hence the view taken by the appellate Court that the suit was bad when it was filed on 24.3.75 for want of notice, was erroneous and secondly that there was no order of termination of service as such for order dated 24.3.75 was not an order of termination of service and hence the termination was illegal. Sri B.Banerjee, learned counsel for the State of Assam has refuted the submissions for the appellant. As regards the first submission for the appellant, the admitted facts are that when the suit was filed on 24.3.75, no notice under section 80 of the Code had been served on defendants 16 to 18. However, notice dated 3.4.75 was served on defendant No. 17 on 5.4,75, on defendant No.18 on 7.4.75 and on defendant No. 16 on 9.4.75, and an amend­ment in plaint was made by order dated 24.4.76. The contention for the appellant is that since the said defend­ants were only proforma defendants and no relief was claimed against them the suit filed against them, then, without notice was not bad and subsequently notice had been duly served and hence there was no defect in the suit as could be the reason for its dismissal. The contention for the appellant is that since the said defend­ants were only proforma defendants and no relief was claimed against them the suit filed against them, then, without notice was not bad and subsequently notice had been duly served and hence there was no defect in the suit as could be the reason for its dismissal. The suit filed on 24.3.75 was also against defendants 16 to 18 and even though defendants 17 and 18 were stated to be proforma defendants, the defendant 16 was not stated to be so, for in para 10 of plaint it was stated that advance copy of plaintiffs repres­entation had been sent to the defendants 17 and 18, but till then no report had been received. The relief claimed was for declaration and in a note below it was stated : 'The plaintiff does not claim any relief against the proforma defendants but the suit is required to be decided in presence of the proforma defendants. But if the proforma defendants contest the suit by filing W.S. then they would be treated as principal defendants with prayer of all reliefs against them/ The defendant No 16, the State of Assam was not shown as proforma defendant, in the array of defendants, for upto No. 16 were described as principal defendants and against only 17 and IS proforma defendants was stated. By amendment dated 24.4.76 the words "principal defendants" and "proforma" were scored out. The above facts just show that the plaintiff had no justiciable or reasonable basis for thinking that the defendants 16 to 18 were not required to be served with notice under section 80 of the Code, as indeed was also borne out from the fact that soon afterwards on 3.4.75 he had sent notice under section 80 of the Code to the said defendants. Section 80 of the Code in its part, relevant here, reads”. "80 (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Govt. Section 80 of the Code in its part, relevant here, reads”. "80 (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Govt. including the Government of the State of Jammu a ad Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of: (a) in the case of a suit against the Central Government, except where it relates to a railway a Secretary to the Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that Railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Gover­nment or any other officer authorised by that Government in this behalf; (c) in the case of a suit against any other State Governm­ent, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. The provision of section 80, above are explicit and mandatory, that no suit shall be instituted in respect of any act purporting to be done, until the expiry of two months next after notice in writing has been delivered. The only exception is under sub-section 2 on which the plaintiff did not rely. The provisions of sub-section 1 of section 80 do not make any distinction in the case of proforroa defendant, i.e. if the State or public officer was a proforma defendant no notice was required. In my opinion, therefore it shall not be correct to say that defendant 16 was proforma defendant and further that because they were proforma; no notice was required. The true test to determine if notice was necessary is whether the suit was in respect of "act", done -by a public officer. If it was, notice was necessary even though the plaintiff described the defendants 17 and 18 as proforma defendants. The true test to determine if notice was necessary is whether the suit was in respect of "act", done -by a public officer. If it was, notice was necessary even though the plaintiff described the defendants 17 and 18 as proforma defendants. In para 6 and 7 of the plaint, the plaintiff had stated that resolu­tion dated 10.12.74 was adopted for sending the entire matter to the defendant No 17 and further that the defendant No 17 by letter dated 4.1.75 had intimated to advertise the post and to appoint a suitable candidate as per need of the school. It was undisputed, that as directed by defendant No 17 advertisem­ent was made, the plaintiff too was a candidate, and in the selection made defendant No. 15 was selected but the plaintiff was not selected and defendant No 15 was appointed to the post in question. The defendant's plea on the basis of above facts precisely was that the plaintiff could have no claim to the post. The impugned order dated 24.3.7S itself was issued at the direction of the Inspector of Schools as was clear from the endorsement in respect of the pe­titioner. On careful consideration, I think it should not be said that the suit was not in respect of "act" done by the defendant No 17, a public officer and even if the plaintiff did not say so, may be on purpose, the suit was clearly also in respect of "act" done by the defendant 17 a public officer. In my opinion therefore notice under section SO of the Code to the defendant No 16 and also to defendant 17 and 18 was necessary before the suit was filed. The fact that notice was served before amendment in plaint dated 24.4.76, whereby the words 'principal defendants' and 'proforma' were deleted would not make any difference, because the suit filed on 24.3.75 against the State of Assam, defendant No 16, who was not even described as profoma defendant and also against defend­ants 17 and 18 even though described as proforma defendants could not be instituted without notice under section 80 of the Code. The finding of the learned appellate Court below was correct. The finding of the learned appellate Court below was correct. As regards the next question, the main thrust of the submission for the appellant was there was no termination of plaintiff's service by the impugned order dated 24.3.75 which was as under : "OFFICE OF THE SECRETARY MORLEY HIGH SCHOOL. SALGONGA, CACHAR. ORDER Shri Matilal Dey, B.A. under Graduate Asstt. Teacher of the school is hereby appointed as Graduate Asstt. teacher of the school on the scale pay as admissible under the rules vice Sri Benoy Bhusan Chakraborty, B.Com, appointed as Asstt. Headmaster of the school. Sd/-G.RDas 24.3.75 Secretary Morley High School Salgonga, Cachar. MES/2/74/255-57 dated 24 March 75 Copy for information and necessary action to :- 1) Shri Matilal Dey, B.A.Asstt Teacher of the school. He is requested to join his new duty with immediate effect. 2) Shri Sudersan Paul, B.Sc. Asstt. Teacher of the school. As per direc­tion from the Inspector of Schools, Cachar District Circle, your service may also be retained id the school against new post under "Half a Million Job Programme” You are therefore requested to join your new duty with immediate effect. 3) Inspector of Schools, Cachar Dist. Circle, Silchar vide his office Memo No.41648 dt. Silchar the 22nd March, 1975. Sd/-G.R.Das. Secretary,, Morley High School, Salgonga 24.3.75.” By letter dt. 4.1.75 Ex.9 the Inspector of Schools C.D.C Silchar had directed that "as the departmental procedure was not followed at the time of appointing Shri Sudarsan Paul (the plaintiff) the vacancy should be advertised and a suitable candidates be selected for appointment against that post by the Managing Committee of the School." Accordingly as said earlier the post was advertised. The plaintiff applied. The plaintiff was not selected. The defendant No 15 Shri Matilal Dey was selected. The action of the Managing Committee selecting Matilal Dey for appointment as Graduate Asstt. Teacher vice Sri B.B. Chakrabarty appointed as Asstt. Head Master was approved by the Inspector of Schools (defendant No 18) by order dated 22.3.75 Ext. N. By order dated 24.3.75 defendant No 15 Sri Matilal Dey was appointed and Sri Sudarshan Paul the plaintiff as per direction of the Inspector of Schools was to be retained in the school against a temporary post under "Haifa Million Jobs Programme" which he was requested to join with immediate effect. N. By order dated 24.3.75 defendant No 15 Sri Matilal Dey was appointed and Sri Sudarshan Paul the plaintiff as per direction of the Inspector of Schools was to be retained in the school against a temporary post under "Haifa Million Jobs Programme" which he was requested to join with immediate effect. There is no merit in the plaintiff's contention, for even though he had filed the suit on the allegation that his service had been terminated by order dated 24.3.75, in fact, not having been selected for the post in question, he was appointed to another post under a scheme. Since the plaintiff had held the post of Graduate Asstt, Teacher no doubt from 7.7.69 yet it was only in a vacancy and he had no right to hold the said post and so when another person the defendant No 15 was selected and appointed, the plaintiff had to go and cannot be heard to complain. He was however given another appointment no doubt under a scheme. possibly temporary and while it may be said that his service as Graduate Asstt. Teacher as a result stood terminated, it was not termination as the said word is commonly understood to mean. In any case, even though, the post of Graduate Asstt. Teacher was permanent and the post under the Haifa Million Job Scheme was temporary, since the plaintiff had only held the post temporarily in a vacancy and had no right to hold the post the impugned order dated 24.3.75 suffered from no infirmity or illegality. The appeal fails and is dismissed. The parties to bear their own costs of this appeal.