K. M. YUSUF, J, - (1.) The writ petitioner was appointed as a member of the Home Guard in 1.966 under Section 4 of the West Bengal Home Guards' Act, 1962 and joined' his duties. When he was posted at Jangipara Police Station an incident took place on 15th Tune, 1986 around 12 noon in his village at Bistupur when some persons attacked the petitioner and his family members with lathi and other weapons and injured him. The petitioner lodged a diary No. 5/52 and a police case was instituted under Sections 147/148/32 3/337/447 of I.P.C., on the other, hand the accused persons also lodged a diary and a Police Case No. 4 under sections 147/148/341/323/324/325 of I.P.C. was started. The petitioner was put under arrest and was kept under custody for whole day and night and the next day he was released on bail by the Court. On ,17th June, 1986 the petitioner joined his duties normally and continued till 19th June, 1986, but when on the next day he went into office he was served with a notice by Respondent No. 1, the Superintendent of Police, Hooghly, under G.R.No'.30 (Org. No. 2 41/HG) dated 29th June, 1986 demobilising the writ petitioner from Jangipara Group with immediate effect. He made representations to the respondent for the withdrawal of the order of demobilisation but there was no response.
(2.) An affidavit-in-opposition on behalf of the State Respondents has been filed stating, inter at a, that the police case involving the writ petitioner is pending and the petitioner is charge sheeted. He was not allowed to join Home Guard Organisation after being released on bail because a criminal case was pending against him and that he has been temporarily removed from the organisation by reason of his misconduct and breach of discipline and involvement in the criminal case which renders him unfit 'to act as Home Guard under rule 9(i) of the West Bengal Home Guard Rules, 1962. If the petitioner is acquitted by the Court his case would be considered forthwith for mobilisation as a Home Guard.
(3.) Mr. Mukherjee, the learned Counsel appearing for the petitioner, submits that there was no act of misconduct or breach of discipline in any way on the part of the petitioner which renders him unfit to continue as a Home Guard. He was involved in a criminal dispute when his family was attacked by some people in his native village and on the instigation of the accused persons the writ petitioner was arrested and put in custody for 2 4 hours. He refers to Rule 7(3) of the West Bengal Services (classification, Control! and Appeal) Rules, 1971 which says that a Government servant who is detained in custody for a period exceeding 48 hours under any law for preventive detention or as a result of a proceeding either on a criminal change or otherwise, shall be deemed to have been suspended, by an order of the appointing authority, with effect from the date of his detention and shall remain under suspension until further orders. He submits that the petitioner was detained only for 24 hours and, as such, he does not come under the mischief of this Rule. His contention is that the order of demobilisation passed on 20th June, 1986 is bad in law and must be set aside.;