Policy bending and Constitutional Democracy

Judgment delivered by the Hon'ble Rajasthan High Court on December 2, 2025, in Sunil Samdaria v. State of Rajasthan & Anr, represents a judicial error to uphold the constitutional principles of non-arbitrariness and institutional probity; furthermore it has highlighted another side of nepotism, where high offices are given to an individual, who is not eligible to hold it, but because his/her links are with someone sitting in “very high office”.

- KISHLAYA MISHRA

Hon'ble High Court has delivered a decision, which sanctioned the appointment of an Additional Advocate General (AAG), who was ineligible in terms of requisite experience.

The main controversy surrounds to clause 14.8 added in Rajasthan State Litigation Policy which 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 challenge, in petition filed by Advocate Sunil Samdaria, prayed for issuance of writ of quo warranto. It was directed against the state government of Rajasthan for appointing the appointee for lacking the requisiteten years of professional experience mandated for an Additional Advocate General under Clause 14.4 of the Rajasthan State Litigation Policy, 2018. The High Court’s ruling is flawed in three aspects: first, its narrow view on the nature of the AAG’s office, second, policy decisions are outside the ambit of judicial review; and third, its failure to recognize colourable exercise of power in the policy’s amendment, which was tweaked to benefit the appointee.

Firstly, significant legal hurdle for appellant lay in convincing the court that the office of the Additional Advocate General, though being contractual has the colour of public office, as he is appointed by Governor. The High Court, in dismissing the petition, appears to have succumbed to the traditional, restrictive interpretation: that the AAG is not a ‘Public Office’ in the strict sense because it is not created by the Constitution (unlike the Advocate General under Article 165) or a specific statute, nor is it of a permanent and substantive character. The AAG receives remuneration from state government, he works on instructions given by state government, hence the office AAG has deep and pervasive control of the state, which makes it is public office.