JUDGMENT :

1. Heard Ms. D Ghosh, learned counsel for the petitioner and Mr. H Sarma, learned Additional Senior Government Advocate for the respondents.

2. The petitioner was appointed as a Home Guard as per the order dated 12.11.1996 of the District Commandant, Home Guards, Nalbari. The petitioner also underwent advance training for Home Guards in the Central Training Institute of Home Guards and Civil Defence at Panikhaiti, Guwahati. As per the terms of engagement of Home Guards, the petitioner continued to serve in the department. On 15.03.1997, the Manager of Nagrijuli Tea Estate namely Sukhpal Singh who came to Guwahati was provided with the escort cum security and in one of the cars carrying the security personnel, the petitioner Pradip Barman was also detailed for duty. On the way back to the Tea Estate at a place near Rarne Subri village on the Nagrijuli Tamulpur road, the convoy of the Manager of Nagrijuli Tea Estate was attacked by certain extremist elements and while performing his duty of providing security to the Manager of the Tea Estate, the petitioner sustained certain bullet injuries. The incident also resulted in Tamulpur PS Case No. 46/1997 u/s 120/120(A)/357/302/326 IPC3.

3. The petitioner who had received bullet injuries in the incident was admitted to the Nalbari Civil Hospital and later referred to the Guwahati Medical College and Hospital for better treatment of his injuries and the said incident had resulted in a disability of the petitioner leading to a disability certificate in the form of Unique Disability ID issued by the Government of India. The Unique Disability ID of the petitioner provides that the petitioner is suffering locomotor disability with a percentage of 50%.

4. This writ petition was instituted with the grievance that the petitioner because of his disability is not engaged in any duty and was discharged from service by the order dated 31.07.2017. In the circumstance, there is an interim order dated 04.12.2017, by which the order of discharge of the petitioner dated 31.07.2017 was stayed with the clarification that the implication of the stay order would be that the respondent authority would not dispense with the service of the petitioner and treat him to be in service as he was earlier. Pursuant to the interim order, it is stated that the petitioner is still continuing to serve as a Home Guard with the respondent authorities.

5. Section 20(4) of the Rights of Persons with Disabilities Act, 2016 (in short Act of 2016) provides as extracted:-

“20 (4). Non-discrimination in employment- No Government shall establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits.

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.”

6. A reading of the second proviso to section 20(4) of the Act of 2016 makes it discernible that it is a clear and unambiguous provision of the statute that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. The first proviso to section 20(4) of the Act of 2016 again provides that if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits, whereas section 20(4) of the Act of 2016 itself provides that no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service.

7. In the instant case, we have already taken note that the petitioner was detailed on duty