(PER HON'BLE THE CHIEF JUSTICE)

1. The petitioner is an Advocate by profession, enrolled with Bar Council of Rajasthan vide Enrolment No.R/100/1999, and is practicing in the High Court of Rajasthan, Bench at Jaipur. By this writ petition, he has prayed for a declaration that appointment of Dr. Abhinav Sharma, respondent No.2, as an Additional Advocate General, by the State of Rajasthan, through its Principal Secretary, Department of Law and Legal Affairs, State Secretariat, Jaipur, dated 22.01.2014, be declared as non est and void ab initio. He has also prayed for a writ of quo warranto, quashing and setting aside the order of appointment of respondent No.2, dated 22.01.2014, as an Additional Advocate General of the State of Rajasthan.

2. The challenge to the appointment of Dr. Abhinav Sharma as an Additional Advocate General of the State of Rajasthan, vide order dated 22.01.2014, and the prayer for issuing a writ of quo warranto, is mainly on four grounds, namely:-

(i) Lack of eligibility to hold the Office of the Additional Advocate General of the State;

(ii) Lack of institutional integrity attached to the Office of the Additional Advocate General;

(iii) Lack of effective consultation with the Advocate General; and

(iv) Official arbitrariness and on the principles of Wednesbury unreasonableness.

3. On the question of lack of eligibility, it is submitted that Dr. Abhinav Sharma, respondent No.2, had not put in 10 years of practice as an Advocate as on 22.01.2014, to be eligible, for appointment as an Additional Advocate General of the State. He was enrolled as an Advocate with the Bar Council of Rajasthan on 02.10.2004, vide Enrollment No.R/2399/2004. He had practiced only for 9 years, 3 months and 20 days, as on 22.01.2014, when he was appointed as an Additional Advocate General, and thus, he did not possess the minimum length of practice, which is required to be possessed by an Advocate for his appointment as an Additional Advocate General. He did not satisfy the minimum eligibility, qua the length of practice on the date of his appointment. In Badreshwar Tanti Vs. S.N. Choudhary, AIR 1985 Gauhati Page 32, it was held that by the Gauhati High Court in paragraphs 5 and 8, that the essential requisite for an incumbent, to be appointed as an Additional Advocate General, is that one must be on the rolls of Advocates for more than 10 years, when he is appointed as an Additional Advocate General.

4. It is submitted that in M.T. Khan Vs. Govt. of Andhra Pradesh, (2004) 2 SCC 267, the Supreme Court had disagreed with the High Court on the applicability of Section 13 of the General Clauses Act, while considering the competence of the Government of Andhra Pradesh in appointing an Additional Advocate General. Relying on the opening words of Article 367 of the Constitution of India, which reads; “unless the context otherwise requires”, the Supreme Court held that the appointment of Additional Advocate General is not under the Constitutional scheme, and thus, the Additional Advocate General does not hold the constitutional office. It is submitted that the Supreme Court did not disagree with the requirement of 10 years of practice as an Advocate before one could be appointed as an Additional Advocate General. The judgment of the Gauhati High Court was not varied, modified, or watered down by the Supreme Court.

5. It is submitted that a combined reading of the provisions of the Rajasthan Law and Legal Affairs Department Manual, 1999 (for short, 'the Department Manual, 1999'), and the Litigation Policy, 2011 of the State of Rajasthan, as well as the information received by the petitioner, in response to his application dated 05.02.2014, made under the Right to Information Act, 2005, provides that the Law Officers of the Government are, under Rule 4(A) of the Department Manual of 1999, Advocate General; one or more Additional Advocate General; Senior Standing Counsel in the Supreme Court; Advocate on record of Supreme Court; Governme