Supreme Court Upholds Appointment Of Justice PK Mishra's Son As Rajasthan Additional Advocate General

The Bench of Justices Aravind Kumar and Vipul M Pancholi dismissed the Special Leave Petition filed by Advocate Sunil Samdaria, upholding the Rajasthan High Court's judgment that had earlier confirmed Mishra's appointment.

Background of the appointment

According to the plea, Mishra was enrolled as an advocate in August 2019. He was appointed as a panel lawyer at the Supreme Court on August 20, 2024, a post that required a minimum of five years' practice.

Three days later, on August 23, 2024, the Rajasthan government amended its Litigation Policy of 2018 by inserting Clause 14.8, which allows the appropriate authority to appoint any counsel to any post after considering the counsel's expertise in the relevant field, notwithstanding the policy's other conditions.

On the same day, the government withdrew Mishra's appointment as panel lawyer and instead appointed him as AAG for cases before the Supreme Court, a post that otherwise required ten years of practice under the same policy.

Samdaria contended that these events, all occurring within a single day, demonstrated that the amendment had been introduced specifically to benefit Mishra. The plea pointed out that 20 other AAGs appointed by the Rajasthan government held an average of over 25 years of practice, with the least experienced among them having 13 years, making Mishra's appointment, at roughly a fifth of that experience, a marked departure from the norm.

The petition also argued that the appointment had been made without effective consultation with the Advocate General as required under the litigation policy, and without any objective criteria to assess Mishra's claimed "expertise" under the newly inserted clause.

Before the Supreme Court, the petitioner argued that the litigation policy was intended to be binding, since it had itself been framed pursuant to an earlier Supreme Court direction. He further contended that the post of AAG should be treated as a public office, given that its occupant is remunerated by the government and appointed under the Governor's authority, and pointed to Supreme Court precedent holding that such appointments carry a "public element" that cannot be reduced to a private professional engagement.

What the Rajasthan High Court had held

Samdaria had approached the Rajasthan High Court seeking a writ of quo warranto against the August 23, 2024 appointment order and Clause 14.8. The Single Judge dismissed the writ petition on February 4, 2025, holding that the State Government had the power under Clause 14.8 to appoint any counsel to any post after considering the person's experience in the relevant field, and rejected the challenge to Clause 14.8 for want of material establishing arbitrariness.

Samdaria's appeal before the Division Bench was dismissed on December 2, 2025. The Division Bench held that the Rajasthan State Litigation Policy, 2018 was not legally enforceable, describing it as a guideline on how the State should function as a litigant rather than a hard and fast rule. It also rejected the argument that the Gazette publication of Clause 14.8 gave the policy statutory force, holding that the notification merely notified the addition of a clause and was not an amendment to a statutory rule.

The Division Bench further held that a writ of quo warranto would not lie based on an alleged violation of a non-statutory litigation policy. It distinguished between the office of Advocate General, which derives from Article 165 of the Constitution and is a public post, and the office of AAG, holding that AAGs assist the Advocate General, are assigned to different departments by the State Government, and do not have a fixed tenure. Consequently, it also held that AAG was not a "public office" and was not amenable to judicial review.

Having found the Litigation Policy unenforceable and quo warranto inapplicable, the High Court declined to examine Mishra's eligibility for the post, observing that it was not for the Court to examine whom the State Government considered suitable to represent it in court. The Court also observed that "the art of presentation of a case and art of advocacy is not bound by years of experience," and that no hard and fast rule could be laid down for appointing an Advocate General, Additional Advocate General, or other government lawyer.

The Division Bench concluded that Mishra's nomination as AAG, despite departing from the general provisions of the State Litigation Policy, could not be said to be illegal, arbitrary, unjustified or whimsical, and dismissed the appeal.
The bench had 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. A writ of quo warranto would, therefore, not lie.”