ORDER

1.Leave granted.

2. The appellant was born on 1-9-1929. A notice of retirement was given

on 15-5-1984 that the appellant would retire on 31-8-1984 upon attaining the age of superannuation. On 28-9-1984, a circular was issued by the State Government extending the age of retirement with effect from the date of the circular for a further period of three years.

3. Seeking to take advantage of the circular, the appellant filed a writ petition before the High Court inter alia claiming that he was entitled to the benefit of the circular. The ground for this claim was twofold. The appellant claimed that he was born after 3.00 p.m. on 1-9-1929 and, therefore, it should be taken that he was actually born on 2-9-1929. The second ground was that the rule which prescribed the calculation of the age of retirement was ultra vires the Constitution.

4. The learned Single Judge dismissed the writ petition relying upon the decision of this Court in Prabhu Dayal Sesma v. State of Rajasthan1• The Division Bench dismissed the appellants appeal on the basis of the same judgment. The appellants application for review was also rejected.

5. Before us, the appellant has contended that the review application was improperly rejected on the misconception that the challenge to the constitutionality of the retirement rules had not been raised before the learned Single Judge. Our attention was drawn to the decision of the learned Single Judge from which it is apparent that the challenge had been raised in the writ petition itself. The rule in question is contained in a Note introduced by the Rajasthan Service (Amendment) Rules, 1975. The Note reads as follows:

"Note.-A government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty-five years."

6. The contention of the appellant is that there was no reason to discriminate between a person born on the 1 st of a month and a person born on any subsequent date of that month for the purpose of giving such person the benefit of service till the end of that particular month.

7. In support of this submission, the Indian Majority Act, 1875 has been referred to where according to the appellant, it was clear that the majority was to be calculated with effect from the date of birth and not from the date preceding.

8. Learned counsel appearing on behalf of the respondent has stated that even though the challenge to the Rules may have been made before the Single Judge, nevertheless, it was not argued before the Division Bench and that this was recorded in the decision of the Division Bench. On the merits, it is submitted that the decision in Prabhu Dayal Sesma1 made it amply clear that the age of superannuation was to be calculated up to the date preceding the date of birth. It has also been submitted that the reference to the Majority Act was inapposite as that Act dealt with the commencement of the age of majority and, therefore, the actual date of birth was taken as the first date of majority.

9. In our opinion, the High Court had clearly erred in recording that the issue regarding the constitutionality of the Note in question as quoted by us earlier had been raised only pending the appeal by way of amendment. The appellant is right to the extent that the issue had in fact been raised even before the learned Single Judge.

10. However, we are unable to sustain the challenge to the retirement of the appellant on either of the grounds urged. As far as the first ground is concerned, that is a question of fact which this Court will not go into and in any event, it has not been pressed before this Court. Emphasis has been placed on the second ground. It is clear that the age of superannuation refers to the age of completion of a period of service. The attainment of majority on the other hand relates to the beginning of the age of majority. Clearly, therefore, the date of completion and the date of beginning can