D.K. Seth, J. - (1.) It seems that the petitioner has a very good case. He ought to have come before he was retired. At least, he could have come as soon the notice was served on him that he was due to retire on the basis of his date of birth as on 25th December, 1939. But he preferred to come to this Court almost one month after the date of retirement. The question of wrong recording of the date of birth in the service book came to the notice of the petitioner in 1983. He did not take any step to get it corrected though in the School Final Examination Certificate his date of birth appears to have been reported in 1941 and in his previous employment it was so corrected in 1966. Only in 1988 he had attempted to get it corrected and his prayer was refused before he was retired in 1990. Even then, he did not take any step either by proceeding any appeal before the authority or by moving this Court. He had approached this Court only after retirement. Thus, by conduct the petitioner has allowed the opportunity to slip out. The delay and lathes on the part of the petitioner cannot be condoned, even if it was sought to be explained that the petitioner was being posted at different places from time to time. Since 1982 the petitioner waited till he was retired in 1st January, 1997. No amount of explanation could absolve the delay and laches for these long fifteen years. That too after his retirement. The Apex Court in Burn Standard & Co. v. Dinabandhu Mazumdar, 1995 JT (4) S.C. 23 : [1995(4) SLR 25 (SC)] had deprecated entertaining of such correction of age at the fag end of the career. It is not only at the fag end of the career but also after the retirement the petitioner has approached this Court. With the retirement of the petitioner the relationship of employer and employee ceases. The contract of employment is terminated. The service book is a record of employment. Any relations between the employer and employee having ceased or terminated the employee can not enforce anything which is not flowing from the contract as it stood on the dace of retirement. The retirement takes effect according to the date of birth recorded in the service book. It cannot be altered after an employee accepts retirement on the basis of such record. Unless challenged before the retirement such a right cannot be established. The right sought to be enforced is a right extinguished on the cedsation of employment on superannuation.
(2.) Even though prima facie the petitioner might have a very good case but still then he cannot seek to enforce the same after he had retired. That apart this opportunities were available to the petitioner since 1983 and then again since 1990. He could not make time to approach this Court during the seven years he had served after 1990. But he came to the Court one month after is retirement. In order to maintain a writ petition one must show that he is not so guilty of delay on laches and was diligent and that there was no delay. Delay defeats justice.
(3.) It is by now an established principle of law as has been laid down through various decisions of the Supreme Court and the High Courts that though there is no specific period of limitation, the High Court may refuse to exercise its extraordinary Jurisdiction under Article 226 of the Constitution of India. Where the petitioner is guilty of latches or undue delay for which he cannot offer satisfactory explanation. Right from the case of Union of India v. Verma T.R., AIR 1957 Supreme Court 882 , the view taken by the Supreme Court has laid down that extraordinary power is discretionary and such discretion is exercised where the Court finds that the person seeking to invoke the extraordinary jurisdiction is not guilty of latches or undue delay. The Court would intervene when it is satisfied that there is no latches or such latches are not due to the fault of the petitioner and that the delay is properly explained. Such explanation may not be near or similar to the explanation as required to be explained in an application wider section 5 of the Limitation Act but a possible explanation acceptable at the discretion of the Court. The Courts have been of consensus opinion that pursuit of extralegal remedy such as departmental representation or correspondence in the nature of an appeal for mercy are not grounds for condoning delay unless such appeal or representation is provided in the statute; Raja Lakshmaiah Setty v. State of Mysore, AIR 1967 SC 993 at page 997 ; Jagdish Narayan Maltiar v. State of Bihar, AIR 1973 SC 1343 : [1973(2) SLR 521 (SC)] , Gian Singh Mann v. High Court of Punjab and Haryana, AIR 1960 Supreme Court 1894 (para 3 ). Delay or latches have not been held to be absolute bar. Where it involves infringement of fundamental rights distinct from civil rights the doctrine leading to interfere as laid down in the case of Rochhunni v. State of Madras, AIR 1959 SC 725 ; Tata Iron and Steel Company v. Sarkar S.R., AIR 1961 SC 65 (68) ; Kharak Singh v. State of U.P., AIR 1963 SC 1925, was weakened seriously by latter decisions, viz., Trilok Chand Moti Chand v. Commissioner of Sales Tax, AIR 1970 SC 898 ; Rabindra Nath Bose v. Union of India, AIR 1970 SC 470 ; Amritlal Barry v. Collector of Central Excise, Central Revenue, AIR 1975 SC 538 (para 16) : [1975(1) SLR 153 (SC)] . The Courts refused to interfere even when there was invasion of fundamental rights on the ground of latches acquiescence or delay on the part of the petitioner. Making of repeated representation after the rejection does not exonerate dealy in moving the Court, State of Orissa v. Pyarimohan Samantary, AIR 1976 SC 2617 (para 6) : [1977(1) SLR 255 (SC)] and State of Orissa v. Arun Kumar, AIR 1976 SC 1639 (para 14) . Pursuing an ill conceived remedy is not a proper explanation for the delay. The question has been left to the discretion of the Court, Ram Chandra Shanker Deodhar v. The State of Maharashtra, AIR 1974 SC 259 (para 10 ). No hard and fast rule can be laid down. Each case is to be viewed on the facts and circumstances of each case. The consideration upon which the High Court refuses, to exercise its discretion in case of delay is not limitation but the matters relating to conduct of parties, Dhanyalakshmi Rice Mills v. Commissioner of Civil Supplies, AIR 1976 SC 2243, (para 26) . In some cases it has been held that the Court may take cognizance of the period of limitation where if the petitioner had brought a suit of the statutory remedy for the same relief it would have been barred by limitation, K.K. Srivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703 . The proper standard however seems to be whether in the circumstances of the case the time that has elapsed can be said to be reasonable, Babu Singh v. Union of India, AIR 1979 SC 1713 (para 11) or whether the delay has been explained properly, Arun Kumar Chatterjee v. South Eastern Railway, AIR 1985 SC 482 : [1985(1) SLR 500 (SC)] . The reasonableness has to be assessed by the Court having regard to facts and circumstances of the case touching the conduct of the parties the change in situation, the prejudice which is likely to be caused to the opposite party or to general public etc, Shri Vallabh Glass Works Ltd. v. Union of India, 1984 (3) SCC 362 (para 9) .;