[Cites 1, Cited by 0]
Gauhati High Court
Khairun Nessa Mozumder vs The State Of Assam And 4 Ors on 11 March, 2026
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GAHC010029972026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/53/2026
KHAIRUN NESSA MOZUMDER
W/O KUTUB UDDIN BARBHUIYA,
R/O DURGANAGAR, PART 06, P.O. AND P.S. UDHARBOND,
DIST. CACHAR, ASSAM, PIN 788030
VERSUS
1.THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM,
HEALTH AND FAMILY WELFARE DEPTT.,
DISPUR, GUWAHATI 06
2:THE DIRECTOR OF HEALTH SERVICES
HENGRABARI GUWAHATI 781036
3:THE JOINT DIRECTOR OF HEALTH SERVICES (NURSING)
CACHAR AT SILCHAR 06
4:THE SUPERINTENDENT
SILCHAR MEDICAL COLLEGE AND HOSPITAL
GHUNGOOR MASIMPUR SILCHAR UTTAR KRISHNAPUR PT III
ASSAM 788014
5:THE SUPERINTENDENT
TIKAL MODEL HOSPITAL
SALGANGA CACHAR ASSAM 78803
For the Appellant(s) : Mr. M.U. Mahmud, Advocate.
Ms. V. Khakhalary, Advocate.
For the Respondent(s) : Mr. D.P. Borah, Standing Counsel, Health Department.
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-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
11.03.2026
(Ashutosh Kumar, CJ)
We have heard Mr. M.U. Mahmud, learned Advocate for the
appellant and Mr. D.P. Borah, learned Standing Counsel, Health for the
respondents.
In this writ appeal, the appellant has challenged the order
dated 28.01.2026 passed by a learned Single Judge of this Court in WP(C)
No.5929/2023.
The appellant is a long-serving Nurse in Assam Health
Department. She was appointed as a Staff-Nurse on 26.09.1991 at Civil
Hospital, Gosaigaon, along with many others, including her colleague
Smt. Mira Saikia, who stood junior to her in the merit list. However, over a
period of time, she could not be promoted on time, whereas Mira Saikia
was promoted to the higher post much before.
When this was discerned by the appellant, she approached this
Court vide WP(C) No.5929/2023, which was primarily dismissed on the
grounds of laches and delay.
The learned Single Judge observed that it is a settled position of
law that in the event of an employee having a grievance with regard to
the promotions effected in respect of another employee, while his/her
own case for such promotion was not considered, is required to assail
such promotion within a reasonable period of time.
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In this context, the factual position was analyzed that the
promotion of the appellant was effected on 08.11.2019 to the cadre of
Ward Sister, while in the case of Mira Saikia, promotion was given to her
with effect from 22.01.2010.
Since the writ petition was preferred by the appellant only on
04.10.2023, i.e. after 13 (thirteen) years with effect from the date when
Mira Saikia was so promoted and perhaps, after 4 (four) years from the
date when the appellant herself was promoted, the learned Single
Judge was loathe in interfering with the same.
Mr. M.U. Mahmud, learned Advocate for the appellant submits
that the learned Single Judge, perhaps, mistook the reference to Mira
Saikia as a challenge to her promotion, which was not the case.
The reference to the case of Mira Saikiia was made only to
demonstrate that the appellant also has required to be considered for
promotion sometimes in 2010 which was granted to her without any
explicable reason only in the year 2019.
It was under such circumstances that the appellant had prayed
for notional promotion from an anterior date with monetary benefits.
The further contention of Mr. Mahmud is that the issue relates to
refixation of the date of promotion of the appellant which presently
remains unrelated to the seniority affecting any third party.
This delayed promotion, therefore, ought to have been
considered to be a continuing wrong where the delay in approaching
the Court ought not to have been made the sole reason for dismissing
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the writ petition.
In Union of India & Ors. -Vs- Tarsem Singh :: (2008) 8 SCC 648 ,
the Supreme Court has laid down the principles underlying continuing
wrongs and recurring/successive wrongs and applying the same to the
service law disputes. A "continuing wrong" refers to a single wrongful act
which causes a continuing injury. Recurring/successive wrongs are those
which occur periodically, each wrong giving rise to a distinct and
separate cause of action.
In Balakrishna S.P. Waghmare -Vs- Shree Dhyaneshwsar
Maharaj Sansthan :: AIR 1959 SC 798, it was observed that it is the very
essence of a continuing wrong that it is an act which creates a
continuing source of injury and renders the doer of an act responsible
and liable for the continuance of the said injury. If the wrongful act
causes an injury which is complete, then there is no continuing wrong
even though the damage resulting from the act may continue. However,
if a wrongful act is of such character that the injury caused by it itself
continues, then the act constitutes a continuing wrong.
True it is that a Court cannot be faulted for not permitting a
belated resort to the extraordinary remedy under Article 226 of the
Constitution of India for the reason that entertaining such petition might
result in creating confusion and public inconvenience and bring in its
train new injustices; but, where a service related claim is based on a
continuing wrong, there have been instances and precedents of relief
having been granted despite the delay in seeking remedy, if it does not
affect others or if the reopening of the issue would not affect the settled
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rights of the third parties.
In the present case, Mr. Mahmud argues that nobody including
Mira Saikia, who has now retired, would be inconvenienced or put to any
difficulty if the issue is reopened and the claim of the appellant is
considered that her entitlement to promotion in the year 2010 has been
negated for no good reason. Reopening the issue would only amount to
refixation or payment of arrears of the enhanced salary on promotion,
which also could have been considered in view of the judgment of the
Supreme Court in Tarsem Singh (supra), namely, limiting it to 3(three)
years from the date when the issue is reopened.
Mr. D.P. Bora, learned Standing Counsel, Health submits that he
shall respond to the memo of appeal by the next date by filing the
required affidavit.
Let such an affidavit be filed positively by the next date.
Re-notify on 04.05.2026.
JUDGE CHIEF JUSTICE
Comparing Assistant
