'Art Of Advocacy Not Bound By Years Of Experience': Rajasthan High Court Upholds Padmesh Mishra's Appointment As AAG In Supreme Court

The Rajasthan High Court upheld the single judge bench decision that rejected the challenge against the appointment of Padmesh Mishra as Additional Advocate General for the state of Rajasthan in the Supreme Court.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.The division bench of Acting Chief Justice Sanjeev Prakash Sharma and Justice Baljinder Singh Sandhu held that the Rajasthan State Litigation Policy 2018 was a guideline and not a hard and fast rule. And therefore, it was not enforceable in law against which writ of quo warranto could lie. The Court further held that it was not in its scope to examine the decision of the State Government regarding their choice of expert, who should argue their cases and present them before the court. The Court was hearing a special appeal against the decision of the single bench that had upheld the appointment of Mr. Padmesh Mishra as AAG for Rajasthan in Supreme Court. His appointment was challenged by another practicing advocate on the ground that he did not possess 10 years of practising experience which was prescribed in the State Litigation Policy. It was the case of the State that the policy was only in the nature of guidelines and thus not enforceable in law. It did not bind the State Government. After hearing the contentions, the Court accepted the argument put forth by the State and held that not every kind of policy wielded statutory force. It said that the policy is a guideline which advises how State as a litigant should function. It was highlighted that even the circulars that were issued prior to the Policy were allowed to continue. Hence, the framers never intended the policy to be a hard and fast rule.In this background, it was noted that it was not for the Court to examine State's decision regarding their choice of expert who shall represent their cases before Court. It was further observed, “Art of presentation of a case and art of advocacy is not bound by years of experience. The years of experience, of course, may have its own importance for the purpose of assessing the knowledge of an individual. However, for the purpose of litigation, a persons who may be having vast knowledge like professor of law, may not be suitable to argue cases in the Court and we, therefore, do not agree that a hard and fast rule may be laid down for appointing any persons as Advocate General and Additional Advocate General or any of the post or any other government lawyer with a different nomenclature and it should be best to left for the litigant to decide.”The Court also rejected another argument put forth by the appellant that since the amendment made in Clause 14.8 of the policy was notified in the Gazette, the same had to be treated as statutory amendment, and thus was amenable to writ jurisdiction.The court also said that while post of Advocate General having its construe from Article 165 of the Constitution would fall in the category of public post and he would be categorized as holding a public office; however the posts of Additional Advocate General and the Government Counsels would not fall in the same category."So far as Rajasthan is concerned, the State Government has only framed State Litigation Policy, 2018. In State of Rajasthan, we notice that in the District Courts, Public Prosecutor and Additional Public Prosecutor are appointed by the Rules framed under Proviso to Article 209 of the Constitution relating to Special Public Prosecutor Rules. Such persons appointed through the State Machinery are governed by the State Service Rules. In addition thereto, the State Government also has a process to appoint Special Public Prosecutor, Special Government Advocates who are assigned a specific work for appearance in the Courts in relation to a particular Department or in relation to particular case. Thus, appointment may be case centric and department centric," it said. The court noted that Additional Advocate General are assigned different department for whom they appear in the Court and their departments are also changed from time to time as per the directions of the State Government. It said that their tenure is not fixed and therefore, they cannot be said, in any manner, to be responsible for any Government action and their arguments are totally depend on the brief as received to them. "They are in the nature of assisting the Advocate General," the bench added. While rejecting this argument, it was highlighted that the Gazette of India notification were published in various parts having different content. The part in which this amendment was notified clarified that it was not an amendment to the Rule but only a notification that the new clause was added to the litigation policy. Such notification did fall within the scope of amendment. Accordingly, the appeal ...

'Art Of Advocacy Not Bound By Years Of Experience': Rajasthan High Court Upholds Padmesh Mishra's Appointment As AAG In Supreme Court

Nupur Agarwal

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