Krishnan, J.

1. This is an appeal by the State and three of its officers, the defendants in a suit before the Third Additional District Judge Indore, brought by the respondent a retrenched employee of the Madhya Bharat Government in the Police Department, for a declaration that the order retrenching him from service was really an order of punishment and was invalid and illegal for repugnance to Article 311 of the Constitution, and further claiming that he should be declared to be still in the service of the successor Government and to be entitled to the pay and privileges of that post. There was a claim for the arrear pay.

2. The trial Court granted the decree against all the defendants making the declaration desired and decreeing against defendant No. 1, that is the State of Madhya Pradesh arrear pay from a date beginning three years immediately before the suit.

3. The peculiar feature in this case is that the same plaintiff had come up with a writ petition (Misc. Civil Case No. 80 of 1956 decided on 22-10-59) praying for a direction that the Government should not implement its order of retrenchment but maintain him in service. That application was dismissed primarily on the ground of delay. On the merits the petitioner had alleged that his removal was really a punishment and as the procedure prescribed by Article 311 had not been followed it should be set aside. The State for its part had pressed only one ground in that case namely, the alleged consistently bad record and the consequent unfitness of the employee to be retained in the service. It is certain that there was another ground also, namely, this Government Servant is not having the minimum prescribed qualification of being at least a matriculate. That, however, was not mentioned in the return though it appears there was some mention of this during the argument still all references to it in that case are perfunctory and casual. After the dismissal of the writ petition the petitioner had filed this suit, as could be expected making use of the decision by the High Court that the ground that was taken by the Government in that proceeding was one for punishment and inadequate for Article 311. Though the trial Court held and rightly in my opinion that this decision on the writ petition was not res judicata, it was however guided by it as a "precedent" and held that it was a case of dismissal by way of punishment and not removal on retrenchment as it purported to be; accordingly it allowed the present suit in the manner already set out.

4. The central question for decision here is whether in a case like this when there is more than one ground upon which the servant is removed or retrenched, it is in principle impossible to separate them and assess the legal validity of the one without reference to the obvious invalidity of the other Secondly, whether on the facts of this case such separation is possible and if so, the application of the valid ground for retrenchment has been so coloured by the invalid as to become really un-separable. In addition to the central question there was before the trial Court the problem about the territorial jurisdiction, and of limitation, and as has been loosely used of "res judicata" with reference to the High Court's decision on the writ petition.

5. The facts of the case are the following. The plaintiff was appointed as long ago as 1934 as a police constable in the State of Gwalior. He was not qualified in the manner we understand and it is common ground that he was not at that time even a matriculate and had not since acquired that educational qualification a fact of great significance as will be seep presently. He rose up in service and by 1948 shortly before the merger of the Gwalior State in the United State of Madhya Bharat had risen to the rank of Sub-Inspector. From that time till certain happenings in 1952 he was in the list of the "provisionally absorbed servants" whose cases were being investigated in accordance with a set of r