Rajasthan High Court Upholds Appointment of Additional Advocate General, Rules State Litigation Policy Lacks Enforceable Force

Overview of the Decision

In a significant ruling, the Division Bench of the Rajasthan High Court at Jaipur, presided over by the Acting Chief Justice, dismissed D.B. Civil Special Appeal No. 151/2025 filed by advocate Sunil Samdaria against the State of Rajasthan. The court affirmed the single judge's order dated 04.02.2025, which had rejected a writ petition in the nature of quo warranto challenging the appointment of Respondent No. 2 as Additional Advocate General (AAG) for Supreme Court cases. The core holding was that the Rajasthan State Litigation Policy, 2018, does not possess statutory enforceability, rendering it merely a guideline. Consequently, a writ of quo warranto was deemed inappropriate to question the appointee's eligibility, particularly the lack of 10 years' practice experience.

The decision, delivered on an unspecified date in 2025, emphasizes judicial restraint in interfering with state government appointments of counsel, distinguishing such roles from public offices under Article 165 of the Constitution.

Background of the Case

Sunil Samdaria, a practicing advocate, filed the writ petition to challenge the appointment order dated 23.08.2024, which named Respondent No. 2 as AAG for Supreme Court matters under Clause 14 of the State Litigation Policy, 2018. Samdaria argued that the appointee lacked the mandatory 10 years of advocacy experience required for the role. He also contested Clause 14.8 of the policy—introduced via gazette notification on 23.08.2024—which empowers the state to appoint any counsel based on expertise, bypassing standard experience criteria. Additionally, Samdaria sought to declare Clause 14.8 arbitrary, illegal, and invalid, claiming it enabled colorable exercise of power without consultation from the Advocate General.

The single judge dismissed the petition, citing prior rulings like Ishwar Prasad vs. State of Rajasthan (D.B. Civil Writ Petition No. 5313/2024) and Supreme Court observations in Dr. Abhinav Sharma vs. Sunil Samdaria (Civil Appeal No. 4501/2015). The judge held that the AAG post is not a public office and that the 10-year requirement is not inflexible.

Arguments Presented by the Parties

Appellant's Contentions

Samdaria reiterated before the Division Bench that the policy, inspired by Supreme Court observations in State of Rajasthan vs. Man Sukh Das (SLP Diary No. 4941/2018, dated 03.07.2018), carries legal enforceability. He argued that the gazette notification of Clause 14.8 imparts statutory force, making deviations from the 10-year experience rule challengeable. He invoked Article 226 of the Constitution for quo warranto, asserting the appointment usurped a public office. Samdaria relied on precedents like B.R. Kapur vs. State of T.N. (2001) 7 SCC 231, emphasizing that quo warranto lies against unqualified holders of public posts. He also highlighted the lack of Advocate General consultation as a procedural flaw.

State's Defense

Counsel for the State countered that the Litigation Policy is advisory, not statutory, and creates no enforceable rights or liabilities. Appointments of AAGs and other government counsel are professional engagements, not public offices, allowing the government discretion based on expertise needs. They distinguished the policy from rules under Article 309 or CrPC, noting it does not bind the executive in appointments. The state urged non-interference in policy matters, citing judicial precedents that limit quo warranto to statutory violations.

Legal Precedents and Principles Applied

The court extensively reviewed Supreme Court jurisprudence to delineate the scope of quo warranto under Article 226. In B.R. Kapur vs. State of T.N., it was clarified that quo warranto targets usurpers of public offices lacking qualifications, but only on indisputable facts (Bharati Reddy vs. State of Karnataka, (2018) 6 SCC 162). The bench distinguished public offices like the Advocate General (under Article 165) from AAG roles, which are assistive and tenure-based without fixed responsibilities.

Key precedents included:

- Kumari Shrilekha Vidyarthi vs. State of U.P. (1991) 1 SCC 212 : Affirmed public elements in government counsel appointments but stopped short of equating them to statutory posts.

- State of U.P. vs. Johri Mal (2004) 4 SCC 714 : Held that government counsel engagements are professional, not governed by service rules; courts intervene only for procedural unfairness or mala fides, not performance or discretion.

- State of U.P. vs. Ajay Kumar Sharma (2016) 15 SCC 289 : Reiterated state discretion in counsel appointments, emphasizing public interest over rigid criteria like tenure renewal.

- Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo : Limited quo warranto to eligibility failures under statutory rules, excluding policy guidelines.

The court applied the principle from Union of India vs. S.L. Abbas (1993) 4 SCC 357 that policies are guidelines without statutory force, and from Shilpi Bose vs. State of Bihar (1991) that judicial interference in executive actions like appointments is unwarranted absent statutory violation or mala fides.

Distinctions were drawn between public prosecutors (statutory roles under CrPC) and AAGs (discretionary engagements). The Delhi High Court's ruling in Bridge and Roof Company vs. M.K. Singh (2015 SCC OnLine Del 6419) was cited to affirm that quo warranto does not extend to guideline breaches.

Pivotal Excerpts from the Judgment

• On policy enforceability: "The State Litigation Policy is not having any statutory character and would not be enforceable in law... No statutory right is created in any person for claiming under the policy enforcing any of the clauses of the policy, nor any right is taken away if there is departure from the State Litigation Policy."
• On quo warranto scope: "The jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules."
• On AAG role: "The posts of Additional Advocate General... are the lawyers who are appointed to assist the office of Advocate General... Their tenure is not fixed and therefore, they cannot be said... to be responsible for any Government action."
• Dismissing arbitrariness: "Merely on account of sequence of events... inference cannot be drawn of arbitrariness or the colourable exercise of power by the State."

Court's Final Ruling and Implications

The Division Bench dismissed the appeal, upholding the single judge's order and ruling that Clause 14.8's deviation for expertise-based appointments is neither arbitrary nor unjustified. The policy's gazette notification does not confer statutory status, as it falls outside rule-amending provisions.

This decision reinforces executive autonomy in appointing government counsel, limiting judicial review to statutory breaches. It signals to states that litigation policies remain flexible tools for efficient governance, not rigid laws enforceable via writs. For legal practitioners, it clarifies that AAG roles prioritize expertise over fixed experience, potentially influencing similar challenges nationwide. The ruling promotes non-interference in administrative decisions, ensuring courts avoid micromanaging state litigation strategies.

All pending applications were disposed of, with no costs imposed.