Rajasthan High Court dismisses plea against appointment of sitting SC judge's son as AAG

The Rajasthan High Court on February 4 dismissed a petition challenging the appointment of advocate Padmesh Mishra as an Additional Advocate General (AAG) for the State government before Supreme Court..Mishra was appointed as AAG on August 23, 2024 and is the son of a sitting Supreme Court judge Justice Prashant Kumar Mishra.Advocate Sunil Samdaria challenged Mishra's appointment, alleging 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 has only about 5 years of experience in legal profession since he was enrolled only in 2019, the plea alleged..Justice Sudesh Bansal ruled that though the State government is expected to follow the Litigation Policy, the same is only in the nature of executive instructions for guidance, which cannot be claimed to have a statutory force like a legislation/ legal statute before the Court of law.It further said that 10 years experience was not mandatory for the post."Further, this Court finds that perusal of Clause 14.4 itself as a whole indicates that this clause provides power to the State Government to appoint an Advocate on the post of Additional Advocate General, following the criteria prescribed by the State Government or as per law for the time being in force and the requirement of possessing minimum experience of 10 years' practice has not been held as an essential and mandatory pre-requisite for appointment of Addition[al] Advocate Generals," the High Court said. .Samdaria had also challenged the Clause 14.8 of Litigation Policy of 2018 and alleged that the same was incorporated at the eleventh hour to facilitate Mishra's appointment."Clause 14.8 of the Litigation Policy, notwithstanding anything contained in the Litigation Policy, gave an unbridled, untrammelled, unrestricted power to the appropriate authority to appoint any counsel to any post on the specious premise of expertise in respective field, without laying down any objective criteria of expertise, thereby making the Clause 14.8 manifestly arbitrary, illegal and invalid in eye of law thereby violating Article 14 of the Constitution of India," it was argued..However, the Court 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."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."It acknowledged that such allegation has come only because Mishra, after being appointed as a panel lawyer on August 20, 2024, was appointed as AAG on August 23, 2024, with Clause 14.8 being added to the Litigation Policy on the same day. The Court said such sequence of events "may be a coincidence" and cannot be made a basis to draw an assumption of arbitrariness, bias 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, more so when legislative competence to introduce such amendment in the policy, is unquestioned and beyond under challenge," it added..The Bench also rejected the contention that Mishra was appointed as AAG without effective consultation with the Advocate General, observing that the claim is based on assumptions and presumptions.Further, it noted that the petitioner failed to establish that the consultation of the Advocate General was 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," it concluded. .Meanwhile, the Court recorded its appreciation for the petitioner's bona fide attempt and efforts."Before parting with, this Court thinks it proper to record appreciation of the conduct of petitioner and the manner in which he submitted his contentions in a pinpoint way. Although, on merits, petitioner has not succeeded in the present writ petition, yet this Court appreciates the attempt made by the petitioner to challenge the appointment of respondent No.2 as Additional Advocate General," it said.The Court also said it did not find any malicious intention on petitioner's part to place the procedure of Mishra's appointment as AAG under scrutiny of judicial review..Advocate Sunil Samdaria appeared in person.Additional Advocate General Bharat Vyas with advocates Jay Vardhan Joshi, Anima Chaturvedi, Niti Jain, Praveer Sharma and Harshwardhan Katara represented the State.Senior Advocate Gagan Gupta and advocate Shashwat Purohit represented AAG Padmesh Mishra. .[Read Judgment]