No Hard-And-Fast Experience Rule For AAG Appointments, State Has Discretion: Rajasthan High Court Upholds Appointment Of Sitting Supreme Court Judge’s Son As AAG
Safiya Malik
The High Court of Rajasthan Division Bench of Acting Chief Justice Sanjeev Prakash Sharma and Justice Baljinder Singh Sandhu has dismissed a special appeal filed by a practising advocate who sought a writ of quo warranto against the State’s appointment of an Additional Advocate General to appear before the Supreme Court. Affirming the order of the Single Judge, the Court held that the engagement of advocate Padmesh Mishra as Additional Advocate General for the State government before the Supreme Court was not illegal and that the State Litigation Policy, 2018 is only a guiding document without statutory force. It further observed that no rigid requirement of minimum years of practice can be prescribed for appointments as Advocate General or Additional Advocate General.
The appellant, advocate Sunil Samdaria, filed a writ petition under Article 226 challenging the State government’s order dated 23 August 2024 appointing advocate Padmesh Mishra, a private practitioner, and the son of a sitting Supreme Court Justice Prashant Kumar Mishra as Additional Advocate General to represent the State before the Supreme Court. The challenge was founded on the Rajasthan State Litigation Policy, 2018, including an amended clause prescribing a minimum of ten years’ practice for such appointments. The appellant contended that Mishra lacked sufficient experience to meet this requirement and alleged that the amendment inserting Clause 14.8 was arbitrary, illegal and invalid. He relied on the appointment order, the text of the Litigation Policy and judicial precedents on the status and appointment of law officers.
In reply, the State opposed the petition. It submitted that the engagement of law officers, including the Advocate General and Additional Advocate General, is a matter of executive choice and that the State Litigation Policy, 2018 is only an administrative guideline without statutory force or enforceable rights. Reliance was placed on constitutional provisions, including Article 165 governing the office of Advocate General and Article 226 governing the High Court’s writ jurisdiction, to contend that the challenge to the appointment was not maintainable.
The Division Bench first addressed whether the office in question was a public office. It observed that “in the opinion of this Court, while the post of Advocate General having its construe from Article 165 of the Constitution would fall in the category of public post and he would be categorized as holding a public office… However, the posts of Additional Advocate General and the Government Counsels would not fall in the same category. They are the lawyers who are appointed to assist the office of Advocate General”.
Discussing the nature of such engagements, the Court noted that “their tenure is not fixed and therefore, they cannot be said, in any manner, to be responsible for any Government action and their arguments are totally depend on the brief as received to them”.
On the enforceability of the Rajasthan State Litigation Policy, 2018, the Bench stated that “Policy is, thus, a guideline. It advises how State as a litigant should function” and that “the framers nowhere intended it to become a hard and fast rule”. It further held that “for the reasons as stated hereinabove, we, therefore, reject the contention of the petitioner that the State Litigation Policy is enforceable in law.”
Referring to the legal threshold for quo warranto, the judgment cited with approval that “a petition seeking a writ etc. of a quo warranto lies only against an appointment made which is in violation of a statutory provision or a statutory rule. A writ, order or direction in the nature of quo warranto cannot be sought merely on account of violation of any circular or guideline or direction”.
In this context, the Court remarked that “Art of presentation of a case and art of advocacy is not bound by years of experience.” It continued that “The years of experience, of course, may have its own importance for the purpose of assessing the knowledge of an individual. However, for the purpose of litigation, a persons who may be having vast knowledge like professor of law, may not be suitable to argue cases in the Court and we, therefore, do not agree that a hard and fast rule may be laid down for appointing any persons as Advocate General and Additional Advocate General or any of the post or any other government lawyer with a different nomenclature and it should be best to left for the litigant to decide. A writ of quo warranto would, therefore, not lie.”
The Court directed: “We, therefore, while following the reasoning as adopted by the learned Single Judge on examining further, as above, conclude that the nomination of respondent No.2 as Additional Advocate General for the Supreme Court by the State Government in terms of the State Litigation Policy departuring from the general rules cannot be said, in any manner, to be illegal, arbitrary and unjustified or whimsical.”
“A writ of quo warranto filed by the lawyer petitioner, based on unforceable State Litigation Policy which does not have any statutory character, therefore, was rightly dismissed by the learned Single Judge and the appeal also deserves to be dismissed.”
“In view of the above, the special appeal is dismissed accordingly.” All pending applications also stand disposed of.”
Advocates Representing the Parties:
For the Petitioners: Mr. Sunil Samdaria, appellant present in person
For the Respondents: Mr. Vigyan Shah, AAG; Mr. Priyam Agarwal; Mr. Rohit Tiwari, AGC; Ms. Ritika Naruka; Ms. Tanvisha Pant; Mr. Vivek; Mr. Kshitij Jain; Mr. Gagan Gupta, Sr. Adv.; Mr. Shashwat Purohit
Case Title: Sunil Samdaria v State of Rajasthan and Anr.
Neutral Citation: 2025:RJ-JP:46016-DB
Case Number: D.B. Civil Special Appeal No. 151/2025; S.B. Civil Writ Petition No.14130/2024
Bench: Justice Sanjeev Prakash Sharma (Acting Chief Justice), Justice Baljinder Singh Sandhu
