Rajasthan High Court Clarifies Non-Enforceability of State Litigation Policy, 2018 and Scope of Quo Warranto Against Additional Advocate General

Date of Judgment: 02.12.2025

The Division Bench of the Rajasthan High Court, Jaipur Bench, comprising Hon’ble the Acting Chief Justice Mr. Sanjeev Prakash Sharma and Hon’ble Mr. Justice Baljinder Singh Sandhu, in D.B. Civil Special Appeal No. 151/2025, has dismissed a challenge to the appointment of an Additional Advocate General (AAG) for the State of Rajasthan before the Supreme Court. The judgment, delivered on 2 December 2025, settles two important questions: whether the Rajasthan State Litigation Policy, 2018 is legally enforceable, and whether the office of Additional Advocate General is a “public office” amenable to a writ of quo warranto.

The appeal arose from the dismissal of a writ petition in the nature of quo warranto filed by the appellant, a practising advocate, who questioned the eligibility of respondent No. 2, Shri Padmesh Mishra, to hold the post of Additional Advocate General for cases in the Supreme Court. The main grievance was that the appointee allegedly did not fulfil the minimum 10 years’ practice requirement under the State Litigation Policy, 2018, and that the insertion of Clause 14.8 in the Policy was arbitrary and colourable.

In affirming the learned Single Judge’s order, the Division Bench has delivered a reasoned and doctrinally important judgment which will guide future litigation on appointments of law officers and interpretation of litigation policies in Rajasthan.

Factual Background and Issues Before the Court

The appellant, appearing in person, had initially filed a writ petition seeking a writ of quo warranto against respondent No. 2, challenging his appointment as Additional Advocate General vide order dated 23.08.2024. The challenge was based on two broad grounds. First, that respondent No. 2 did not have the minimum experience of 10 years’ practice as an advocate required for the post of Additional Advocate General under Clause 14.4 of the Rajasthan State Litigation Policy, 2018. Second, that Clause 14.8 – inserted by notification dated 23.08.2024 – conferred unguided powers on the State to appoint “any counsel” to “any post” after considering his expertise, and was therefore arbitrary and colourable.

The learned Single Judge rejected the writ petition, holding that the post of Additional Advocate General is not a “public office” for the purpose of quo warranto and that the Litigation Policy is not a statutory instrument. The Single Judge also relied on earlier Division Bench judgment in Ishwar Prasad v. State of Rajasthan and on the Supreme Court decision in Dr. Abhinav Sharma v. Sunil Samdaria.

In appeal, the appellant reiterated that the State Litigation Policy, 2018 had acquired enforceability, particularly because it was brought in pursuant to observations of the Supreme Court in State of Rajasthan v. Man Sukh Das and because the amendment inserting Clause 14.8 had been notified in the Gazette. The State, on the other hand, argued that the Policy was merely a set of administrative guidelines, without statutory force, and could not be used to ground a writ of quo warranto or invalidate an appointment.

Nature and Scope of Writ of Quo Warranto

The Bench began its legal analysis by revisiting Article 226 of the Constitution and the settled principles governing writs of quo warranto. Relying on B.R. Kapur v. State of T.N., Bharati Reddy v. State of Karnataka and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, the Court reiterated that a writ of quo warranto lies to challenge the authority of a person holding a public office of a substantive character. Such a writ can be issued only when indisputable facts show that either the incumbent did not satisfy the statutory qualifications at the time of appointment, or has incurred a statutory disqualification.

The Court emphasised that the scope of judicial review in a quo warranto proceeding is limited, and cannot be expanded to question matters of subjective satisfaction or executive discretion that are not governed by statutory norms. In particular, it held that a writ of quo warranto cannot be grounded on alleged violation of executive guidelines, circulars or policies that lack statutory character.

Is the Additional Advocate General a “Public Office”?

A substantial portion of the judgment is devoted to the nature of the post of Additional Advocate General and other government counsel. The Bench undertook a detailed survey of Supreme Court precedents, starting from Kumari Shrilekha Vidyarthi v. State of U.P., which recognised a public element in the office of District Government Counsel, and then considering how later decisions refined this position.

The Court noted that in State of U.P. v. Johri Mal and State of U.P. v. Ajay Kumar Sharma, the Supreme Court underlined the distinction between Assistant Public Prosecutors, who are civil servants holding posts under the State, and Public Prosecutors or Government Counsel, who remain practising advocates engaged on tenure basis. Their appointments may have a public element and are subject to fair procedure, but they are not “public offices” in the strict sense, nor are they governed by service rules framed under Article 309.

Building on these authorities, the Division Bench held that the Advocate General, appointed under Article 165 of the Constitution, does hold a public office, with administrative and financial powers, and can be said to be a constitutional functionary. However, Additional Advocate Generals and other Government Counsel do not fall in the same category. They are essentially law officers engaged to assist the Advocate General, with no fixed tenure, no statutory cadre and no independent administrative responsibility for government actions. Their role is case-centric or department-centric, and their arguments are guided by briefs received from the State.

Accordingly, the Court concluded that the post of Additional Advocate General in Rajasthan is not a “public office” of the type for which a writ of quo warranto can be issued. On this ground alone, the petition was held to be not maintainable.

Rajasthan State Litigation Policy, 2018: Guideline or Enforceable Law?

The central plank of the appellant’s case was that the Rajasthan State Litigation Policy, 2018 had become enforceable because it was framed in the backdrop of observations of the Supreme Court in State of Rajasthan v. Man Sukh Das, where the Court had suggested that States should have comprehensive litigation policies. It was argued that the Policy, and particularly Clause 14.4 requiring 10 years of minimum experience for an Additional Advocate General, created an enforceable standard, breach of which could be challenged by writ.

The Division Bench firmly rejected this contention. It analysed the text of the Policy in detail, noting that:

• The Policy is intended to guide the State in becoming an “efficient and model litigant”, emphasising responsible conduct of litigation, avoidance of frivolous cases, and resort to ADR mechanisms.

• Clause 3.2 states that all departments shall follow the Policy, but this is framed as an internal administrative direction.

• Clause 14 deals with appointment of counsel and lays down desirable experience thresholds and selection mechanisms through a State Level Empowered Committee.

The Court held that the Policy is clearly in the nature of guidelines and does not by itself create statutory rights or obligations. Importantly, it observed that if the State intended to give statutory force to the appointment norms, it could have framed Rules under the appropriate constitutional or statutory provisions (for example, under the proviso to Article 309 or analogous State rule-making powers) and created a structured cadre of law officers. The fact that this was not done indicates that the Policy was meant to remain an administrative instrument.

Gazette Notification and Clause 14.8: No Statutory Character

A key argument advanced by the appellant was that the insertion of Clause 14.8 in the Litigation Policy, 2018 – through a Gazette notification dated 23.08.2024 – converted the Policy into a statutory document. Clause 14.8 reads:

“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.”

The Court carefully examined the legal effect of publication in the Gazette. Relying on the structure of the Gazette of India and its various Parts and Sections, it held that not every notification published in the Gazette is a “rule” or “statutory order”. Notifications relating to non-statutory rules, resolutions and orders fall in a different category from statutory rules framed under an enabling statute.

Transposing this framework to the State Gazette, the Court held that the notification inserting Clause 14.8 is not a rule made under any statutory provision; it is merely an administrative notification communicating a change in policy. Therefore, neither the Policy nor its amendment acquires statutory force merely because of publication in the Gazette.

The Court also noted that the appellant himself had approached the learned Single Judge by way of a writ petition rather than a vires petition challenging any “rule”. This conduct was seen as consistent with the understanding that the impugned instrument was not a statutory rule. The appellant was therefore estopped from arguing in appeal that the Policy had statutory status.

Policy Directions vs Statutory Mandate: Why Quo Warranto Does Not Lie

Once the Court concluded that the State Litigation Policy, 2018 is not enforceable law and that the post of Additional Advocate General is not a public office, the remaining question was whether alleged breach of the Policy in appointing respondent No. 2 could nevertheless justify judicial interference.

In this context, the Bench relied on precedents like Shilpi Bose v. State of Bihar and Union of India v. S.L. Abbas, where the Supreme Court drew a clear line between statutory rules and executive guidelines. The law is that courts generally do not interfere with administrative decisions merely because there is deviation from internal instructions or policy, unless there is mala fide, violation of fundamental rights, or infringement of statutory provisions.

Applying these principles, the Court held that even if the State departs from the experience requirement mentioned in Clause 14.4, such departure, backed by Clause 14.8, remains an internal administrative choice. No individual acquires a legal right to insist that the State must strictly adhere to non-statutory policy criteria in appointments of law officers.

The Division Bench also approved the reasoning in Bridge and Roof Company (India) Ltd. Executives’ Association v. M.K. Singh of the Delhi High Court, which held that a writ of quo warranto lies only for appointments made in violation of statutory provisions or statutory rules, not for breach of circulars or guidelines.

Executive Discretion in Appointment of Law Officers

In its closing analysis, the Court made an important observation on the nature of advocacy and suitability of law officers. It noted that while years of practice are relevant, they cannot be treated as the sole or inflexible criterion for assessing the capability of a lawyer to represent the State. The art of advocacy and courtcraft is not always directly proportional to length of practice; a person with lesser years but greater expertise in a specialised field may be better suited to argue particular matters, including before the Supreme Court.

The Bench therefore held that it is for the State, as a litigant, to decide whom it considers the best representative for its cases, subject only to broad tests of fairness and absence of mala fide. Courts should be slow to substitute their own views for the State’s satisfaction on such professional choices, especially in the absence of statutory norms.

Conclusion and Impact of the Judgment

Ultimately, the Division Bench dismissed the special appeal, affirming the learned Single Judge’s conclusion that the writ petition in the nature of quo warranto was not maintainable and that there was no illegality or arbitrariness in the appointment of respondent No. 2 as Additional Advocate General for matters before the Supreme Court. All pending applications were also disposed of.

This judgment has significant implications for litigation in Rajasthan relating to appointments of law officers and interpretation of the State Litigation Policy, 2018. First, it clarifies that the Policy is a set of administrative guidelines without statutory force, and therefore cannot be used as a direct basis to challenge appointments by way of quo warranto. Second, it draws a clear doctrinal line between the constitutional office of the Advocate General and other law officers such as Additional Advocate Generals and Government Counsel, holding that the latter do not hold public office in the strict sense required for quo warranto.

For practising lawyers and litigants, the ruling underscores that challenges to appointments of State law officers must be grounded in clear statutory violations or demonstrable mala fides, not merely alleged deviations from policy guidelines. For the State, it preserves necessary flexibility to appoint counsel based on perceived expertise and suitability, while still reminding the Executive that public interest and fairness must remain at the heart of such decisions.

Read complete order here

By Advocate Bhuvnesh Kumar Goyal