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 momentJustice 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 of the Additional Advocate General and Law Officers and the same can be superseded, modified or changed at any time by the State Government.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 mandatoryPetitioner 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 lawComing 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...

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

LIVELAW NEWS NETWORK

Tags