State Free To Decide Eligibility Criteria Unless Shown Arbitrary: Rajasthan HC Rejects Challenge To Padmesh Mishra's Appointment As AAG In SC

Dismissing an advocate's plea challenging the appointment of Padmesh Mishra as Additional Advocate General (AAG) for the state at the Supreme Court, the Jaipur bench of the Rajasthan High Court reiterated that State is free to decide and change the "eligibility criteria" while making appointment of AAG, other law officers unless it is shown as arbitrary.

Notably, Mishra is the son of Justice PK Mishra, Judge of the Supreme Court. The plea claimed that Mishra was appointed as AAG despite not meeting the requisite experience to be eligible for the post in accordance with the State Litigation Policy 2018.

AAG's post not a public post, State can change eligibility criteria at any moment

Justice Sudesh Bansal in his order referred to judgment of the court's division bench in Shri Ishwar Prasad Vs. The State of Rajasthan wherein a challenge was made by petitioner Ishwar Prasad to the appointment of Additional Advocate Generals (AAGs) and Law Officers appointed by the State Government through Circulars dated 12.02.2024 & 12.03.2024. The division bench had ruled that posts of AAG are not in the nature of civil or public post and while dismissing the civil writ petition.

The division bench in Ishwar Singh referred to various judgments including the Supreme Court's decision in State of Punjab Vs. Brijeshwar Singh Chahal and had thereafter said, "...In our opinion, the appointment of bright young advocates as the Law Officers has unnecessarily been dragged to the Court. An advocate carries an independent identity and he cannot be projected as a ward or relative of any person holding a high post to scandalize his appointment as the Additional Advocate General or a Law Officer. There can be no fetters on the power of the State Government and the administrative instructions in the Rajasthan Manual and State Litigation Policy as regards the criteria of eligibility for appointment such as age, length of practice, place of practice, etc. of the Additional Advocate General and Law Officers and the same can be superseded, modified or changed at any time by the State Government. Therefore, it must be declared that the State of Rajasthan can make its own decision as to the eligibility criteria which can be changed at any moment and its choice of the advocates for making appointment on the post of Additional Advocate General or other Law Officers cannot be challenged in the Court unless shown arbitrary. It is really very difficult to explain an arbitrary action and there is no easy way to make a catalogue of state action that can be characterized as arbitrary state action. In common parlance, an act which  seemingly is not based on any reason or plan or is unfair would be an arbitrary action. In this context, we need to indicate that the petitioner has miserably failed to demonstrate how the appointment of the Law Officers is arbitrary...". 

Justice Bansal thereafter said the issue requires no further discussion in view of the binding effect of the judgment of the Division Bench, and rejected the petitioner's contention that post of AAG is a public office and public element is attached to it.

Not established if consultation with Advocate General is mandatory

Petitioner had also contended that Mishra's appointment  as AAG was made without effective consultation of the Advocate General, to which the court observed that it had not been established that consultation with Advocate General was mandatory. 

It said, "The contention seems to have been raised on the basis of assumptions & presumptions, moreso it has not been established that the consultation of the Advocate General is mandatory. This Court, in the foregoing paragraphs, has already observed that procedure of appointment of State Counsel, as envisaged under the State Litigation Policy- 2018, is in the nature of executive instructions for guidance and cannot be claimed as a legislation or law of statute. Thus, the contention of petitioner does not worth acceptance to declare the appointment of respondent No.2 as Additional Advocate General as illegal". 

Legislative Policy is expected to be followed but it is not law

Coming to the next issue of not possessing minimum experience of practice in High Court/ Supreme Court for a period of 10 years by the respondent No.2 and challenging his appointment, on the ground that same has been made de hors to Clauses 14.2 & 14.4 of the State Litigation Policy- 2018 as per which which stated that committee shall screen the aspirants possessing minimum experience of practice in High Court/Supreme Court as laid down in the table herein below or as prescribed by the State Government from time to time or any law for the time being in force. This clause states that minimum practice experience for Additional Advocate General is 10 years. 

The petitioner also challenged the addition of Clause 14.8 as per which notwithstanding anything contained in the Policy, the authority of the appropriate level shall have power to appoint any counsel to any post after considering his expertise in the respective field. 

Perusing through the police the high court observed that while the State Government is expected to follow the guidelines prescribed in the Litigation Policy- 2018 for appointment of counsel for the State, but it was "also equally true" that such a policy is in the "nature of executive instructions for guidance", which do not have a statutory force like a legislation/ legal statute.

It also said that Clause 14.4 itself has not been held as an "essential and mandatory pre-requisite" for appointment of Addition Advocate Generals. 

Amendment in Litigation Policy does not denote bias by state cabinet

The petitioner had contended that insertion of Clause 14.8 in State Litigation Policy- 2018 suffers from vice of arbitrariness and colourable exercise of powers as it grants unfettered powers to the Authority to appoint any counsel to any post, considering his/ her expertise in the respective field.

The high court however said that State Cabinet– consisting of Chief Minister and Council for Ministers, in its August 23, 2024 decision decided to add Clause 14.8 to the State Litigation Policy-2018. The court noted that though the appointment of Mishra as AAG on the same day as the amendment was introduced may be a coincidence but it does not allude to any biasness in the exercise of cabinet's powers. 

"It is easier to put a blame of arbitrariness, biasness or colourable exercise of powers by the Cabinet, but same is not to be interfered unless established by producing convincing and strong evidence/ material to prove such allegations. This Court finds that the input for levelling such allegations of arbitrariness and colourable exercise of powers by the Government of Rajasthan in introducing Clause 14.8, are merely a sequel of events that prior to appointment of respondent No.2 as an Additional Advocate General, he was appointed as panel lawyer in the Hon'ble Supreme Court vide order dated 20.08.2024 however his appointment of panel lawyer was withdrawn and he was appointed as Additional Advocate General vide order dated 23.08.2024 (Ann.8) and simultaneously, on the same date i.e. 23.08.2024, Clause 14.8 has been added to the State Litigation Policy- 2018. The sequence of events may be a coincidence, but cannot be made a basis to draw an assumption of arbitrariness, biasness or colourable exercise of powers by the Cabinet. Merely, on the basis of such input, provided by the petitioner, Clause 14.8 may not be declared arbitrary, illegal and invalid, moreso when legislative competence to introduce such amendment in the policy, is unquestioned and beyond under challenge," the court said. 

It further observed that the State Government through proper channel and after approval by the Cabinet and Council for Ministers including the Chief Minister, has introduced the amendment in the State Litigation Policy- 2018 by adding Clause 14.8 which begins with non-obstante clause. 

Case title: Sunil Samdaria v/s State Of Rajasthan and another

Citation: 2025 LiveLaw (Raj) 55

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