No Quo Warranto Against AAG Appointment: Rajasthan HC

No Quo Warranto Against Additional Advocate General's Appointment; State Litigation Policy Not Enforceable: Rajasthan High Court

Published: 8 October 2026 · NyayVidhan

The Rajasthan High Court dismissed an advocate's special appeal seeking quo warranto against the appointment of respondent No. 2 as Additional Advocate General for Supreme Court cases. The Division Bench held that, unlike the Advocate General under Article 165, an Additional Advocate General does not hold a public office (para 17). The Rajasthan State Litigation Policy, 2018 is only a guideline without statutory force, so a departure from its ten-year experience norm cannot found quo warranto (paras 22-23, 26-28).

Key holdings

Quo warranto lies only where an appointment to a public office violates a statutory provision or rule, not a circular or guideline (paras 13, 23).

The Advocate General under Article 165 holds a public office; Additional Advocate Generals and Government Counsel do not (para 17).

The Rajasthan State Litigation Policy, 2018 is a guideline without statutory force and is not enforceable in law (paras 22, 26-27).

Publishing a policy amendment in the Gazette does not make it an amendment to a statutory rule (para 26).

Whom to engage as counsel is for the State; years of practice are not a hard and fast test of advocacy (para 27).

Brief Facts

The appellant, a practising advocate, filed a writ petition in the nature of quo warranto alleging that respondent No. 2 lacked the ten years' practice required for appointment as an Additional Advocate General (para 2). The challenge rested entirely on the State Litigation Policy, 2018: he sought to set aside the order of 23.08.2024 appointing respondent No. 2 for cases in the Supreme Court and to strike down Clause 14.8 of the Policy (para 3). Clause 14.8, inserted by a notification of 23.08.2024, lets the appropriate authority appoint any counsel to any post after considering expertise, notwithstanding the Policy (para 18). A Single Judge dismissed the petition on 04.02.2025 (paras 1, 4-6).

Court's Findings

Relying on B.R. Kapur, Bharati Reddy and Dhobei Sahoo, the Bench held that quo warranto lies only where the holder of a public office is ineligible under statutory provisions or the appointment is contrary to statutory rules (paras 11-13). Johri Mal and Ajay Kumar Sharma treat a lawyer's engagement by the State as professional (paras 15-16). The Advocate General, appointed under Article 165, holds a public office; Additional Advocate Generals only assist him, have no fixed tenure and are assigned departments by the State (para 17). Citing Shilpi Bose and S.L. Abbas, the Court held the Policy to be a guideline that its framers never intended as a hard and fast rule (paras 20-22). Following Bridge and Roof, a breach of a guideline cannot found quo warranto (para 23). Gazette publication did not turn Clause 14.8 into a rule: such notifications fall in the non-statutory part of the Gazette (paras 25-26). The Court therefore declined to examine respondent No. 2's eligibility (para 27).

Legal Principle

A writ of quo warranto lies only against the holder of a public office whose appointment violates a statutory provision or rule. An Additional Advocate General does not hold such an office, and a departure from a non-statutory litigation policy, even one notified in the Gazette, cannot found the writ (paras 13, 17, 23, 26-28).

Precedents Relied Upon

B.R. Kapur v. State of T.N. and Anr. (2001) 7 SCC 231
Relied Upon Discussed at ¶ 11
Quo warranto lies against a person who is not entitled to hold an office of a public nature; the holder must show by what authority he holds it, and the challenge may be that he lacks the required qualifications.
Bharati Reddy v. State of Karnataka and Ors. (2018) 6 SCC 162
Relied Upon Discussed at ¶ 12
Unless the incumbent was ineligible under the statutory provisions or has incurred a disqualification, founded on indisputable facts, the High Court ought not to entertain a prayer for quo warranto.
Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors.
Relied Upon Discussed at ¶ 13
Quo warranto is a limited jurisdiction, issued only when the holder of a public office lacks the eligibility criteria or the appointment is contrary to statutory rules.

View all precedents (13)

Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. & Ors. (1991) 1 SCC 212
Referred To Discussed at ¶ 14, 15
Quoted on what is a public post (District Government Counsel held to have a public element); the Court noted it was doubted on whether lawyers hold a public post.
State of U.P. v. Johri Mal (2004) 4 SCC 714
Relied Upon Discussed at ¶ 15, 16
The office held by a lawyer vis-a-vis the State is in the nature of a professional engagement; courts are chary to interfere unless an exceptional case is made out.
State of U.P. v. Ajay Kumar Sharma (2016) 15 SCC 289
Relied Upon Discussed at ¶ 16
Reiterating Johri Mal: District Counsel are professionally engaged, have no statutory right to renewal, and the State must be free to choose the advocates it trusts.
State of Punjab v. Brijeshwar Singh Chahal (2016) 6 SCC 1
Referred To Discussed at ¶ 17
Noted that after this judgment posts of law officers were created and rules framed in Punjab and Haryana, whereas Rajasthan has only the State Litigation Policy, 2018.
Shilpi Bose and Ors. v. State of Bihar and Ors. MANU/SC/0147/1991
Relied Upon Discussed at ¶ 20
Courts ordinarily should not interfere with transfer orders even if they are passed in violation of executive instructions.
Union of India and Ors. v. S.L. Abbas (1993) 4 SCC 357
Relied Upon Discussed at ¶ 21
Executive instructions in the nature of guidelines do not have statutory force.
Bridge and Roof Company (India) Ltd. Executives' v. M.K. Singh and Ors. 2015 SCC OnLine Del 6419
Followed Discussed at ¶ 23
Quo warranto lies only against an appointment made in violation of a statutory provision or rule, not merely for violation of a circular, guideline or direction.
State of Rajasthan v. Man Sukh Das Special Leave Petition (Civil) Diary No. 4941/2018, dated 03.07.2018
Referred To Discussed at ¶ 8, 26
Cited by the appellant: the Supreme Court observed that the State should have a comprehensive litigation policy; the argument that the Policy is therefore enforceable was rejected.
Ishwar Prasad v. State of Rajasthan D.B. Civil Writ Petition No. 5313/2024, dated 03.12.2024
Referred To Discussed at ¶ 4, 6
Relied on by the Single Judge in holding that the post of Additional Advocate General is not a public office.
Dr. Abhinav Sharma v. Sunil Samdaria Civil Appeal No. 4501/2015
Referred To Discussed at ¶ 4
Supreme Court order relied on by the Single Judge in holding that the post of Additional Advocate General is not a public office.

No Quo Warranto Against Additional Advocate General's Appointment; State Litigation Policy Not Enforceable: Rajasthan High Court

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Precedents Relied Upon

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