Rajasthan High Court upholds appointment of sitting Supreme Court judge's son as AAG

The Rajasthan High Court has ruled that the appointment of advocate Padmesh Mishra as an Additional Advocate General (AAG) for the State government before Supreme Court was not illegal [Sunil Samdaria v State of Rajasthan and Anr].Mishra was appointed as AAG on August 23, 2024 and is the son of a sitting Supreme Court Justice Prashant Kumar Mishra. His appointment was challenged on ground of lack of sufficient experience. On December 2, a division bench of Acting Chief Justice Sanjeev Prakash Sharma and Justice Baljinder Singh Sandhu ruled that a writ of quo warranto would not lie against the appointment of a government advocate in Rajasthan. The Court also said that it cannot examine State government's reasons for selecting a particular lawyer to argue its case. It further opined that that art of advocacy is not dependent on experience."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. A writ of quo warranto would, therefore, not lie," the Court said..Mishra's appointment had been challenged by Advocate Sunil Samdaria, who alleged that he did not have the requisite 'minimum experience of practice for 10 years’ as required under the Clause 14.4 of the Rajasthan State Litigation Policy, 2018. Mishra had only about 5 years of experience in legal profession since he was enrolled only in 2019, the plea alleged. .On February 4, a single-judge dismissed Samdaria's plea, ruling that though the State government was expected to follow the Litigation Policy, the same was only in the nature of executive instructions for guidance and it cannot be claimed to have a statutory force like a legislation.It further said that 10 years experience was not mandatory for the post. Samdaria had also challenged Clause 14.8 of Litigation Policy of 2018 and alleged that the same was incorporated at the eleventh hour to facilitate Mishra's appointment.The clause allowed the State to appoint any counsel to any post "after considering his expertise in the respective field". The single-judge said the inclusion of Clause 14.8 in the Litigation Policy was an executive decision of the State Cabinet led by the Chief Minister which cannot be interfered with by the Court without convincing evidence. Samdaria then filed an appeal against the single-judge decision..The division bench agreed with the single-judge's view that policy was only a guideline that advises how State as a litigant should function. The State nowhere intended it to become a hard and fast rule, the Court said.If the State would have wanted to make a rule, it could always make a Rule in terms of Proviso to Article 209 of the Constitution which would have resulted in creation of posts, it added.The Court, thus, dismissed the appeal against Mishra's appointment."We, therefore, while following the reasoning as adopted by the learned Single Judge on examining further, as above, conclude that the nomination of respondent No.2 as Additional Advocate General for the Supreme Court by the State Government in terms of the State Litigation Policy departuring from the general rules cannot be said, in any manner, to be illegal, arbitrary and unjustified or whimsical. A writ of quo warranto filed by the lawyer petitioner, based on unforceable State Litigation Policy which does not have any statutory character, therefore, was rightly dismissed by the learned Single Judge and the appeal also deserves to be dismissed," the Court held..Advocate Sunil Samdaria appeared in person.Additional Advocate General Vigyan Shah with advocates Priyam Agarwal, Rohit Tiwari, Ritika Naruka, Tanvisha Pant, Vivek and Kshitij Jain appeared for the State.Senior Advocate Gagan Gupta and advocate Shashwat Purohit represented AAG Padmesh Mishra. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.