“AAG is not public office”; Rajasthan High Court dismisses challenge to Padmesh Mishra’s appointment as AAG in Rajasthan

Rajasthan High Court: In a writ petition challenging the appointment of Padmesh Mishra, Additional Advocate General (AAG) for the State of Rajasthan, a single-judge bench of Sudesh Bansal, J., dismissed the petition and reiterated that executive decisions related to professional engagements of law officers fall within the domain of the State, subject to minimal judicial interference.

Brief Facts

In the instant matter, the petitioner, a practicing advocate with 26 years of experience in the Rajasthan High Court, filed a writ petition challenging the appointment of Respondent 2 as AAG for the State of Rajasthan by Respondent 1 (Government of Rajasthan) vide an order dated 23-08-2024.

The petitioner also contested the amendment of the Rajasthan State Litigation Policy 2018, specifically the introduction of Clause 14.8, alleging that it was hastily inserted to facilitate Respondent 2’s appointment despite his lack of the mandatory 10 years of legal practice required under Clause 14.4 of the same policy.

Moot Point

1. Is the post of AAG a public office, subject to public element and statutory requirements?

2. Does the appointment of an AAG require adherence to minimum experience criteria as per the State Litigation Policy 2018?

3. Does the insertion of Clause 14.8 in the State Litigation Policy violate constitutional principles of non-arbitrariness?

4. Is prior consultation with the Advocate General mandatory for appointing an AAG?

Petitioner’s Contentions

The petitioner contended that respondent 2 lacks the mandatory minimum 10 years of legal practice required by Clause 14.4 of the Policy (his Bar enrollment number is D/5258/2019). It was contended that the appointment was made without proper consultation with the Advocate General, violating Clause 14.2 of the Policy. It was contended that the appointment contradicts principles laid down in State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1, where the Supreme Court emphasised on the merit-based appointments to public offices. It was contended that the role of Additional Advocate General is a public office, warranting adherence to eligibility requirements and subject to judicial review via a writ of quo warranto. It was argued that Clause 14.8 was inserted solely to favor respondent 2, making other eligibility criteria under Clause 14.4 redundant.

Respondents’ Contentions

The respondents contended that Clause 14.4 provides alternative qualifications, not mandatory conditions, with the conjunction “or” allowing flexibility in appointments. It was asserted that the Government has the discretion to appoint any advocate as AAG based on subjective satisfaction of expertise, not bound by rigid eligibility criteria. It was contended that the amendment of the Policy through Clause 14.8 was duly approved by the State Cabinet, thereby underscoring the need for young legal professionals to adept in emerging legal fields. It was contended that the amendment and appointment do not breach any statutory provision or lack competence. It was argued that the role of AAG is contractual, not a civil or public post, and hence cannot be challenged through a writ of quo warranto. It was lastly contended that effective consultation with the Advocate General is not a mandatory requirement.

Court’s Analysis and Observation

Whether AAG is public post

The Court noted that the Division Bench of the Rajasthan High Court in Sunil Samdaria v. State of Rajasthan, 2015 SCC OnLine Raj 604, held that the role of AAG is integral to prosecuting or defending the State and constitutes a public office with significant responsibility. However, the Supreme Court set aside Rajasthan High Court’s judgment in Abhinav Sharma v. Sunil Samdaria, (2019) 13 SCC 443, Subsequent judgments like Ishwar Prasad v. State of Rajasthan,¹ clarified that posts such as AAG are not civil or public posts but are professional engagements based on executive discretion.

The Court held that in light of the binding nature of Division Bench’s judgment on single-judge bench, there exists no further necessity to delve into the present issue. The Court refused to accept the petitioner’s contention that the post of AAG constitutes a public office.

Minimum Experience Criteria

The Court noted that Clause 14.2 of the State Litigation Policy requires a minimum of 10 years of practice for certain appointments. However, Clause 14.4 allows the State Government discretion, and Clause 14.8, which was introduced later, overrides earlier clauses, giving flexibility for appointments.

The Court held that the State Litigation Policy is in the nature of executive instructions and does not carry the force of statutory law, therefore, the 10-year experience requirement is not a mandatory precondition for appointment as AAG.

Legitimacy of Clause 14.8

The court noted that policy decisions are the prerogative of the executive and not subject to judicial review unless they violate statutory or constitutional rights. The Court deemed the petitioner’s claims of arbitrariness as speculative, because the sequence of events leading to the appointment is coincidental rather than evidence of misuse of power.

The Court held that there exists no evidence to establish arbitrariness or colorable exercise of power and the insertion of Clause 14.8, providing the government discretion to appoint advocates based on expertise, is a legitimate executive decision.

Consultation with Advocate General

The Court found no statutory requirement mandating consultation with the Advocate General for appointing AAGs and held that the petitioner’s contention is based on assumptions and lacked legal foundation.

Judicial Restraint on Policy Decisions

The Court relied on Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, where the Supreme Court held that “the Courts ought not to venture into the question as to whether a particular public policy is wise and the Court should be loathe in interference with policy decisions.” The Court emphasised that it is not the domain of courts to interfere with executive policy decisions unless they are arbitrary and unconstitutional.

Court’s Decision

The Court held that —

1. The Court is bound by the Division Bench judgment in Ishwar Prasad (Supra) and AAGs do not hold public office.

2. The amendment is lawful, with no evidence of arbitrariness or bias and upheld Clause 14.8 of the State Litigation Policy, allowing flexibility in appointments and

3. Dismissed the argument for mandatory consultation with the Advocate General.

The Court dismissed the writ petition as the petitioner’s claims lacked merit and upheld the appointment of the AAG as valid.

[Sunil Samdaria v. State of Rajasthan, S.B. Civil Writ Petition No. 14130/2024, Decided on 04-02-2025]

Advocates who appeared in this case:

Mr. Sunil Samdaria, Petitioner-inPerson

Mr. Bharat Vyas, AAG assisted by Mr. Jay Vardhan Joshi, Ms. Anima Chaturvedi, Ms. Niti Jain, Mr. Praveer Sharma and Mr. Harshwardhan Katara, Counsel for the Respondent No. 1

Mr. Gagan Gupta, Sr. Adv. assisted by Mr. Shashwat Purohit, Counsel for the Respondent No. 2