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The pre-requisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly. bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class or posts are permanent or temporary. The rules in the instant case do not require that person belonging to the former category have to satisfy any particular prescription like consultation with the High Court. We are informed that in practice, persons who are promoted to the Delhi Higher Judicial Service on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement are appointed only after their names are cleared or approved by the High Court. That may or may not be so. The point of the matter is that there is no provision in the Rules which requires that such appointments must also be made in accor-

dance with any set formula. The courtesy shown by the authorities to the High Court when certain appointments are made, is one thing; The obligation imposed by the Rules on the authorities that the High Court shall be consulted when certain other appointments are made is quite another. Indeed, there is a distinction between the process of consultation with the High Court and the screening of the promotees done by the High Court, may be at the instance of the authorities, when their names are considered for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap basis.

Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service.

In the aforesaid view of the matter, it appears that by definition, temporary posts of District and Sessions Judges are `cadre posts'. See in this connection Rule 2(b) of the said rules. Holders of such temporary posts become members of the Delhi Higher Judicial Service if they are appointed to such posts in substantive capacity under rule 2(d) and rule 2(e) of the said rules. A person can be said to hold a post, permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or adhoc. A person appointed to a post as a stop gap arrangement cannot be said to hold that post in substantive capacity. In addition to the requirement that the appointment should not be fortuitous stop-gap or ad hoc nature, no appointment to a temporary post can be regarded as substantive unless it is made in compliance with the rules and regulations which have to be complied with while making appointments to permanent posts. In the instant case for example, an appointee to a temporary post of Additional District and Sessions Judge can only hold that post in a substantive capacity if he has completed not less than ten years of service in the Delhi Judicial Service as required by Rule 7(a) and if he was appointed on the basis of selection from amongst the members of the Delhi Judicial Service in consultation with the High Court as enjoined by Rule 5(1) of the said rules.