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Dismisses Challenge to Appointment of Justice PK Mishra's Son as Rajasthan AAG
The today dismissed a challenging the 's judgment that upheld the appointment of advocate as an (AAG) for the to argue cases before the . Mishra is the son of Judge Justice Prashant Kumar Mishra.
A bench comprising Justice Aravind Kumar and Justice Vipul Pancholi rejected the plea filed by advocate , who had argued that Mishra did not possess the minimum ten years of practice experience required under the . The dismissal marks the end of a legal battle that raised significant questions about the enforceability of state litigation policies and the scope of judicial review over government appointments of counsel.
Background of the Controversy
was enrolled as an advocate in , giving him just over five years of legal practice at the time of his appointment. Initially, on , he was appointed as a panel lawyer at the — a post that under the 2018 Litigation Policy required a minimum of five years' experience. However, three days later, on , the amended its litigation policy by inserting .
This new clause provided that
"the authority of the appropriate level"
could appoint
"any counsel to any post"
after considering the counsel's expertise, regardless of other eligibility conditions in the policy. On the same day, the government withdrew Mishra's appointment as a panel lawyer and instead appointed him as an Additional
before the
— a post that previously required ten years of practice under the same policy.
The swift sequence of events prompted Samdaria to challenge the appointment in the by filing a , arguing that Mishra was not qualified and that the amendment was a designed to bypass the eligibility criteria.
High Court's Reasoning
The Single Judge of the dismissed the writ petition on , holding that the State Government had the power under to appoint any counsel to any post after considering the person's expertise. The court also rejected the challenge to the clause itself, finding no material to establish arbitrariness or .
Samdaria then appealed to a Division Bench, which on , dismissed the appeal. The Division Bench delivered a detailed judgment on several key points.
First, the court held that the
was not enforceable in law.
"The policy was a guideline on how the State should function as a litigant and was not intended to operate as a hard and fast rule,"
the Bench observed. The court rejected the argument that publication of the amendment in the Gazette gave the policy statutory force, noting that the notification merely informed the addition of
and was not an amendment to a statutory rule.
Second, the High Court ruled that a would not lie on the basis of an alleged violation of a non-statutory litigation policy. The court drew a distinction between the — whose post derives from — and Additional Advocate Generals and Government Counsels in Rajasthan. It noted that AAGs assist the , are assigned different departments, and do not have a fixed tenure, meaning they are not public offices in the same constitutional sense.
Crucially, the Division Bench declined to examine Mishra's eligibility and qualifications, stating that it was not for the court to assess whom the State Government considered suitable to represent it in court.
"The art of advocacy was not bound by years of experience and that a hard and fast rule could not be laid down for appointing an
, Additional
or other government lawyer,"
the court remarked.
The High Court concluded that Mishra's nomination as AAG for the , despite departing from the general provisions of the State Litigation Policy, could not be said to be illegal, arbitrary, unjustified or whimsical.
's Summary Dismissal
The 's dismissal of Samdaria's SLP means that the 's judgment stands. The Apex Court did not issue a detailed order, but by rejecting the petition, it effectively endorsed the High Court's reasoning that the litigation policy is non-statutory and that the government's discretion in appointing counsel is subject to limited judicial scrutiny.
Legal Implications
This case underscores several important legal principles. First, it reaffirms that state litigation policies — unless expressly given statutory force through legislation — are generally treated as internal guidelines rather than binding rules. Governments retain flexibility to depart from such policies when making appointments, provided the decision is not arbitrary or .
Second, the judgment clarifies the scope of quo warranto proceedings. A lies only against holders of public offices created by statute or the Constitution. Since Additional Advocate Generals in Rajasthan were found not to hold such constitutional offices, the remedy was unavailable even if the policy had been violated.
Third, the case highlights the judiciary's reluctance to second-guess the executive's choice of legal counsel. Courts typically defer to the government's assessment of an advocate's expertise and suitability, especially when the appointment is made after considering the counsel's field of practice.
Potential Impact on Legal Practice
The decision may encourage other state governments to adopt similarly flexible litigation policies, potentially bypassing experience-based eligibility criteria for government law officers. Critics may argue that this could lead to patronage appointments, while supporters will point to the need for governments to have the freedom to appoint the best available counsel regardless of rigid tenure requirements.
For legal practitioners, the case serves as a reminder that quo warranto is a limited remedy and that challenges to government law officer appointments based on policy violations face high hurdles. The emphasis on expertise over years of practice also opens the door for younger advocates with specialised knowledge to be appointed to senior government positions.
Conclusion
The 's dismissal brings to a close a high-profile challenge that intersected questions of judicial ethics, government discretion, and constitutional remedies. While the appointment of a judge's son naturally invites public scrutiny, the courts have held that without proof of mala fides or statutory violation, the executive's choice must prevail. The case stands as a precedent on the non-enforceability of litigation policies and the restricted scope of quo warranto in the context of government law officers.
