Litigation Policy is Not Law, Can’t Enforce Guidelines Through Courts: Rajasthan High Court Refuses to Entertain Quo Warranto Against Additional Advocate General’s Appointment

“A Writ of Quo Warranto Lies Only When Appointment Violates Statutory Rules – Litigation Policy is Merely a Guideline” –  In a constitutionally significant verdict delivered  Rajasthan High Court (Jaipur Bench), led by Acting Chief Justice Sanjeev Prakash Sharma and Justice Baljinder Singh Sandhu, dismissed a special appeal challenging the appointment of an Additional Advocate General (AAG) for the State of Rajasthan. The Court held that a writ of quo warranto is not maintainable where the appointment in question is not contrary to any statutory provision, and reaffirmed that the Rajasthan State Litigation Policy, 2018 lacks statutory force and is not legally enforceable.

The ruling, in Sunil Samdaria v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 14130 of 2024), reinforces the limits of judicial review in policy-based appointments, particularly in cases where the government’s discretion in professional legal appointments is challenged without demonstrating a violation of law.

“Art of Advocacy Not Bound by Years of Experience – It's the Litigant’s Right to Choose Their Counsel”

The petitioner, Sunil Samdaria, a practicing advocate, sought a writ of quo warranto under Article 226 of the Constitution, challenging the appointment of the respondent as Additional Advocate General. The challenge was based on the claim that the appointee lacked the mandatory 10 years of legal practice as allegedly required under Clause 14.4 of the Rajasthan State Litigation Policy, 2018. He also contended that the State’s deviation from the policy by invoking a newly added Clause 14.8 was arbitrary and illegal.

However, the Division Bench upheld the earlier decision of the Single Judge, rejecting the petition outright and affirming that:

“Appointment of government counsel is a matter of professional engagement and cannot be treated at par with public offices governed by statutory service rules.”

“Litigation Policy Is Not Statutory – Cannot Be Basis for Quo Warranto”

The High Court meticulously examined the character of the State Litigation Policy, 2018. The petitioner argued that the policy, being notified in the Gazette and formulated pursuant to Supreme Court observations in State of Rajasthan v. Man Sukh Das, had acquired statutory force. The Court firmly rejected this contention, stating:

“Gazette notification under Part I Section 1 relates to non-statutory instruments. The State Litigation Policy is a policy document, not a rule framed under Article 309 or Article 209, and hence does not possess enforceability as law.”

Even Clause 14.8 of the policy, which permits the State to appoint any counsel based on expertise regardless of minimum experience, was held valid. The Court clarified that such a clause is a matter of executive discretion, not amenable to judicial review unless shown to be arbitrary or mala fide.

Quoting directly from the judgment, the Bench said: “For the reasons stated hereinabove, we therefore reject the contention of the petitioner that the State Litigation Policy is enforceable in law.”

“Additional Advocate General is Not a Public Office Under Law”

Crucially, the Court clarified that the post of Additional Advocate General does not qualify as a ‘public office’ in the constitutional sense. While the Advocate General is a constitutional post under Article 165, an AAG’s position is contractual and professional in nature.

“They are lawyers appointed to assist the Advocate General. Their tenure is not fixed. They do not possess administrative powers and act solely on the brief received from the State,” the Court noted.

Relying on Supreme Court precedents in Bharati Reddy v. State of Karnataka, Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, and State of U.P. v. Johri Mal, the Bench reiterated that a writ of quo warranto lies only against holders of public office whose appointment violates statutory rules.

“It is not within the four corners of this Court to examine whom the State Government thinks it proper to be an expert to argue their cases. A hard and fast rule cannot be laid down for such professional engagements,” the Court emphasized.

“Policy is an Executive Guideline, Not a Statute – Courts Must Respect the Line”

The petitioner heavily relied on Clause 14.4 of the Litigation Policy, which prescribed ten years of legal experience for the post of AAG. However, the State justified its appointment by invoking Clause 14.8, introduced via Gazette Notification dated 23.08.2024, which empowered the competent authority to appoint “any counsel to any post after considering his expertise.”

The Court declined to interfere with such discretion: “Clause 14.8 merely reinforces what has always been the law – that expertise, not just experience, guides such appointments. Judicial review cannot micromanage professional discretion in State’s legal representation.”

The Court further noted that, even assuming a deviation from the Policy, a writ cannot be issued since the Policy is not a law. Citing the Delhi High Court decision in Bridge and Roof Co. (India) Ltd. Executives’ Assn. v. M.K. Singh, it reiterated:

“A petition seeking quo warranto lies only where appointment is in violation of statutory provision or statutory rule – not for mere departure from circulars or policy guidelines.”

“Experience Alone Does Not Make a Lawyer Suitable – State Has the Right to Choose”

In a significant observation, the Court addressed the wider assumption that experience alone is determinative of merit. It stated:

“Art of presentation of a case and art of advocacy is not bound by years of experience. A person may possess vast knowledge but may still be unsuited to court advocacy.”

Thus, selection based on demonstrated ability and suitability, even in the absence of a decade-long practice, cannot be faulted, particularly when backed by a discretionary clause such as 14.8.

The Bench concluded: “The nomination of respondent No.2 as Additional Advocate General cannot be said, in any manner, to be illegal, arbitrary or unjustified. A writ of quo warranto, based on an unenforceable policy, does not lie.”

The Rajasthan High Court has once again underlined the boundaries of judicial review in appointments that involve executive discretion and professional engagement. By affirming that Litigation Policy is not statutory law, and that AAG appointments are not amenable to quo warranto absent statutory violations, the Court has upheld the State’s prerogative in managing its legal representation.

In a system where public expectations often blur the lines between policy, law, and discretion, this decision is a clear reiteration of the legal principle that courts cannot enforce executive guidelines as binding mandates. It also restores balance in understanding the limited scope of quo warranto, which remains a remedy against usurpation of lawful office — not a tool for enforcing policy preferences.

Date of Decision: 02/12/2025