ORDER Gulab C. Gupta, J. 1. The Petitioners, employed as Naib Subedars under the respondent No.4 at the present, feel aggrieved by inclusion of their names in the order of Discharge dated 28-2-1993 (Annexure-F) and challenge its legality and validity in this petition under Article 226 of the Constitution of India. 2. The petitioners are qualified Engineering diploma holders and were appointed as Junior Commissioned Officers-(JCOs for short)-by orders dated 27-6-88 (Annexure-A) and 22.6.1988 (Annexure-A-1). Their appointment was for a period of 5 years for which they also executed bonds. This appointment was, however, subject to extension for a further period of two years and thereafter for another period of two years. The petitioners could, therefore, serve as JCOs upto a maximum of 9 years from their appointment. The petitioners are also entitled to be considered for regular commission after successful completion of 5 years service. It appears that their cases for appointment in regular commission and / Or extension as JCOs was considered and since they did not meet the eligibility criteria, they were neither granted regular commission nor extension as JCOs. The respondents have in para-4 of their return submitted that a Board of Officers was convened to screen their applications and since both the petitioners did not meet the Annual Confidential Report criteria, they were found ineligible for grant of regular commission. According to respondents. Annual Confidential Report criteria consists of consideration of last 3 reports out of which two should be high average' and none of the three should be less than 'average. It appears that 'High Average' report carries 5 marks whereas 'Average' carries only 4 marks. According to para-4 of the return of the respondents, both the petitioners had only one high average and two average reports during the last three years and hence did not fulfill the eligibility criteria. 3. The submission of the learned counsel for the petitioners are that the aforesaid criteria was laid down after their entry into the service of the respondents and did not exist at the time of their appointment and hence they could not be governed by the said criteria. It is vehemently urged that the respondents have not legal right to fix any new criteria and thereby change conditions of their service. Even otherwise, the criteria has not been applied retrospectively and hence it would not govern the cases of the petitioners. It is vehemently urged that the respondents have not legal right to fix any new criteria and thereby change conditions of their service. Even otherwise, the criteria has not been applied retrospectively and hence it would not govern the cases of the petitioners. It is also submitted that application of the criteria without giving the petitioners an opportunity of hearing was against the rule of natural justice and void. It is further submitted that the petitioners have excellent record of service and their cases for regular appointment/extension were duly recommended by the supervising officers and hence inclusion of their names in the discharge list is arbitrary and violative of Article-16 of the Constitution. The learned counsel for the respondents, however, submitted that no new criteria has been introduced and nothing new is being applied to the petitioners. According to the learned counsel, this criteria is being followed since long. Even otherwise, it is submitted that since the petitioners claim appointment/extension now, they would be governed by the criteria and such an application would not be hit by the rule of retrospective operation. It is, further submitted that the criteria ensures excellence and is being uniformly applied in all cases. There is, therefore, nothing that may by termed as arbitrary or violative of any provision of the constitution or the law. 4. As regards rule of retrospective operation, it operates in two-fields, namely, with regard to statute and with regard to policies. It is well settled and cardinal rule of construction that every statute is, prima facie, prospective, unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burden or to impair existing obligations. See M/s Punjab Tin Supply Co, v. Central Govt. AIR 1984 SC 87 , Govind-das v. I. T. Officer AIR 1977 SC 552 & Gopala Rao v. Sitharam Amma AIR 1965 SC 1970 . But the rule against retrospective operation is not applicable to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing. See T. K. Lakshmana v. State of Madras AIR 1968 SC 1489 . But the rule against retrospective operation is not applicable to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing. See T. K. Lakshmana v. State of Madras AIR 1968 SC 1489 . In certain cases a distinction is drawn between an exisiting right and a vested right and it is said that the rule against retrospective construction is applied only to save vested rights and not existing rights see Bakul Oil Industries v. State of Gujarat AIR 1987 SC 142 . There are, however, cases where statute prescribes posterial qualification, based on past conduct and the rule of retrospective construction does not apply to such cases. The decision in P. Mahendran and others v. State of Karnataka AIR 1990 SC 405 , very strongly relied upon by the learned counsel for the petitioners, is also based on these principles. In this case, Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 were under consideration. The Rules, as originally framed, permitted holders of Diploma in Mechanical Engineering to apply and be selected for the post. By an amendment dated 14-5-87 the provision regarding Diploma in Mechanical Engineering was omitted. The selection of persons holding Diploma in Mechanical Engineering made prior to the amendment was the subject matter of consideration. It was in that context the Suprme Court held that the amendment made in 1987 could not affect the legality of selection, which had commenced in 1983 and which had to be completed in accordance with law, as stood at that time. According to the Supreme Court, the amended rule could not be applied to invalidate the selection made by the Commissioner. This decision is important, inasmuch as, the Supreme Court has considered its earlier decisions on the said and explained them. The question requiring consideration is 'whether the aforesaid rule would govern the present case' ? In the present case, no statutory rule or its amendment is involved. Though the petitioners referred to rules made in exercise of section-191 of the Army Act, better known as Army Rules, 1954. Rules do not provide anything relevant to the matter in controversy. The question requiring consideration is 'whether the aforesaid rule would govern the present case' ? In the present case, no statutory rule or its amendment is involved. Though the petitioners referred to rules made in exercise of section-191 of the Army Act, better known as Army Rules, 1954. Rules do not provide anything relevant to the matter in controversy. The submission of the petitioners, as has been clarified earlier, is that in 1988 when they entered into the service of the respondent as JCOs, the criteria now applied for grant of regular commission did not exist and, therefore, this criteria could not apply to them. The petitioners, however, do not dispute that they could not claim regular commission or extension without selection and without having been found suitable for the purpose, on merits. This criteria, even according to the petitioners, remains unchanged. What has been changed, according to the petitioners, is the criteria governing selection. Clearly, therefore, neither any statutory provision nor amendment to it is required to be considered, in the instant case and hence most of the law laid down aforesaid would not be relevant for purposes of this petition. 5. The learned counsel for the respondents has, however, relied upon Col. A. S Sangwan v. Union of India and others AIR 1981 SC 1545 ., to support the submission that mode and manner of selection is a matter of policy which can be changed from time to time subject only to the Constitutional limitations under Articles 14 & 16 of the Constitution. This was also a case of Colonel in the Army claiming promotion as Brigadier. The petitioner was put in the select-list on the basis of a policy statement made in 1964. In the year 1979, when the post became available, the respondent started preparing a fresh selection list, over-looking the claim of the petitioner, who had already been included in the select-list. Preparation of fresh list was challenged as arbitrary and unconstitutional. The Supreme Court noticed that the policy statement of 1964, which formed basis of petitioner's inclusion in the select-list, was not issued under any rules or regulations Or statute. It further noticed that the executive powers of the Union of India are very wide and included the power to make executive policy. The Supreme Court noticed that the policy statement of 1964, which formed basis of petitioner's inclusion in the select-list, was not issued under any rules or regulations Or statute. It further noticed that the executive powers of the Union of India are very wide and included the power to make executive policy. It further noticed that a policy once formulated is not good forever; it is perfectly within the competence of the Union of India to change it, rechange it. adjust it and readjust it, according to the compulsions of circumstances and imperatives of national considerations. The Court noticed that the only constraint under which the executive powers are to be exercised are those prescribed under Article--14 and, therefore, the executive is under the Constitutional obligation to change its policy, if required, but it should change it fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. This case is, therefore, the authority for the proposition that a criteria prescribed by an executive order could be changed subject to Article-14 of the Constitution. It is therefore, obvious that in cases where statutes are not involved, rule of retrospective operation does not apply. What is applicable in such cases is Article-14 of the Constitution and nothing more. Since on the petitioners' own showing, what has been changed is only the criteria of selection and nothing else. According to the petitioner, the criteria is now more stringent and, therefore, disqualifies them from being selected, even if there is no adverse entry in their annual confidential report and their cases have been recommended by the authorities. Can such a change violate Article-14 of the Constitution ? It is not as if this criteria is introduced only for the petitioners. Then the criteria is more objective and. therefore, avoids arbitrariness Insistence on two high average reports is directly rentable to excellence, which is the hallmark of Indian Army. Under the circumstances, the criteria cannot be said to be arbitrary and for that reason, it must be held that there is no violation of Article-14 of the Constitution, 6. The aforesaid is, however, based on the assumption that the criteria has been changed. Under the circumstances, the criteria cannot be said to be arbitrary and for that reason, it must be held that there is no violation of Article-14 of the Constitution, 6. The aforesaid is, however, based on the assumption that the criteria has been changed. The said submission seems to be based on the memo dated 4th May, 1992 (Annexure G), which mentions that a Board of Officers with a Colonel as Presiding Officer, will be convened every quarter to screen applications of the JCOs and recommend eligible cases for grant of extension/ regular Junior Commission. Para-2 of this memo mentions that qualitative requirement for grant of regular Junior Commission' extension Of service was enclosed with it and JCOs meeting the above qualitative requirement, will only be recommended for extension/grant of regular commission in future. This memo gives the impression that qualitative requirements were being fixed for the first time. The respondents have, however, denied the said assertion and submitted that they existed since inception of the category and had been applied in all cases in the past (para-5). There is no counter to this statement in the return. The respondents have also filed a memo dated 29th December, 1969 issued by the Union of India, Ministry of Defence and addressed to the Chief of the Army Staff, dealing with the subject in dispute. The criteria formed part of this letter. Indeed, the last part of this letter seems to have been extracted in the letter dated 4th May, 1992 (Annexure-G). This would, therefore, clearly indicate that the criteria applied to the petitioners had been in existence at least since 29th December, 1969 (Annexure-R/11). In this view of the matter, the whole agrument, based on change in criteria with retrospective effect, becomes irrelevant. 7. As regards submission based on violation of rule of natural justice, there is no scope for its application in the instant case, in view of the finding that nothing has been amended or applied retrospectively. Since the criteria existed from a date much before the appointment of the petitioners and has not been changed, there was no Occasion to give them hearing. The submission must, therefore, fail on this short ground only. We have been hastened to clarify that this should not amount to acceptance of the submission that the petitioners have a right to be heard before making any change in the criteria.