Court Cannot Interfere In State’s Decision To Appoint Additional Advocate Generals Or Law Officers: Rajasthan HC Dismisses Plea Challenging Appointments

The Court held that the appointment of Additional Advocate Generals (AAGs) and Law Officers falls within the discretion of the State Government and does not constitute public employment. It was reiterated that Courts cannot interfere in the State Government's engagement of lawyers and that the State Government may make such appointments, exercising the discretionary power vested in it.

A Division Bench of Justice Shree Chandrashekhar and Justice Rekha Borana observed, “So long as a reasonable and fair procedure is adopted and followed over a period of time by the successive State Governments the Court cannot interfere with the decision of the State Government to engage a particular set of lawyers as the Additional Advocate Generals or Law Officers for representing the State of Rajasthan in the High Court or before the Hon’ble Supreme Court. This cannot be a legal ground to entertain a writ petition labeled as a Public Interest Litigation that claim of every eligible person was not considered in the matter of appointment of Additional Advocate General and other Law Officers.”

The Petitioner appeared in person, while Senior Advocate M.S. Singhvi represented the Respondents.

The Petitioner argued that the appointments were in violation of the Rajasthan State Litigation Policy, 2018, and the Rajasthan Law and Legal Affairs Department Manual, 1999, as the appointments were made without a transparent process, including the absence of advertisements. He further alleged that the State violated the Rajasthan Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes, and Economically Backward Classes Act, 2008, (2008 Act) by not providing reservations for these communities in the appointments.

The High Court observed that the appointments of AAGs and Law Officers are professional engagements and not public employment. Therefore, the provisions of the 2008 Act do not apply, and the process for these appointments is governed by Rule 7 of the Rajasthan Rules of Business.

“There is no master and servant relationship and the Additional Advocate Generals, Government Advocates and Government Counsels are not paid salary by the State government. Their engagements are purely professional and contractual in nature and this has been the practice since decades that the State government makes appointment of the Additional Advocate Generals and Law Officers in consultation with the Advocate General,” the Court clarified.

The Bench referred to the decision in Johri Mal v. State of U.P. (2004), to reiterate that the appointment of law officers was not subject to the same rules as regular employment and cannot be challenged on grounds applicable to public service posts.

“​​In exercise of the jurisdiction under Article 226 of the Constitution of India, this is not the province of the High Court to make a choice of the advocate for appointment as the Law Officer and the choice of the advocate or a set of the advocates must rest with the State Government. The scope of judicial review under Article 226 of the Constitution of India is very limited and it must remain confined to Wednesbury principle of illegality and irrationality in the matters of appointments of the Law Officers,” the Court observed.

Consequently, the Court held, “In our opinion, this is not in the public interest that the power under Article 226 of the Constitution of India is exercised by the writ Court in a matter where the writ petition is founded solely on vague allegations and opinion of the writ petitioner claiming himself as the protector of public interest.”

Accordingly, the High Court dismissed the Writ Petition.

Cause Title: Ishwar Prasad v. The State of Rajasthan & Anr. (Neutral Citation: 2024:RJ-JD:44044-DB)

Appearance:

Respondents: Senior Advocate M.S. Singhvi; Advocate K.S. Lodha

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