Quo Warranto, State Litigation Policies, and Law Officer Appointments: Commentary on Sunil Samdaria v. State of Rajasthan

I. Introduction

The Division Bench of the Rajasthan High Court (Jaipur Bench) in Sunil Samdaria v. State of Rajasthan & Anr., D.B. Civil Special Appeal No. 151/2025, decided on 2 December 2025, has laid down an important precedent on three interlinked questions:

the limited scope of a writ of quo warranto under Article 226 of the Constitution;
the legal status of the post of Additional Advocate General and other State law officers; and
the non-enforceable, non-statutory nature of the Rajasthan State Litigation Policy, 2018, including its amendments published in the Gazette.

The appellant, Sunil Samdaria, a practicing advocate who appeared in person, filed a writ petition in the nature of quo warranto challenging the appointment of Respondent No. 2, Shri Padmesh Mishra, as Additional Advocate General (AAG) for the State of Rajasthan to conduct cases before the Supreme Court of India. The challenge was founded entirely on the Rajasthan State Litigation Policy, 2018, particularly:

Clause 14.4 of the Policy, which prescribes a minimum of 10 years’ practice as an advocate to be appointed as AAG; and
the newly inserted Clause 14.8 (by notification dated 23.08.2024), which gives the competent authority power to appoint any counsel to any post, notwithstanding the Policy, after considering his expertise.

The appellant contended:

that Respondent No. 2 did not possess the minimum 10 years’ experience as mandated by the Policy, and
that Clause 14.8 was arbitrary, illegal, colourable, and introduced only to regularise the appointment of Respondent No. 2.

The learned Single Judge rejected the writ petition on 04.02.2025, holding inter alia that:

the post of Additional Advocate General is not a “public office” amenable to a writ of quo warranto; and
the State Litigation Policy is flexible and Clause 14.8 authorises departure from the 10-year experience rule.

In appeal, the Division Bench (Hon’ble the Acting Chief Justice Sanjeev Prakash Sharma and Hon’ble Mr. Justice Baljinder Singh Sandhu) not only affirmed the dismissal, but also elaborated, with considerable doctrinal clarity, on:

why the Rajasthan State Litigation Policy, 2018 is not “enforceable in law”; and
why the appointment of an Additional Advocate General cannot be challenged by quo warranto on the basis of such a policy.

This commentary analyses the judgment’s reasoning, its treatment of precedent, and its implications for public law and the appointment of government law officers.

II. Summary of the Judgment

The Division Bench dismissed the special appeal and upheld the Single Judge's order. The core holdings are:

State Litigation Policy is Non-Statutory and Non-Enforceable:
The Rajasthan State Litigation Policy, 2018 (including Clause 14.4 and the inserted Clause 14.8) is an executive policy document, not framed under any statutory power (e.g., the proviso to Article 309/209 or any specific Act). It does not have “statutory force” merely because it has been notified in the Gazette. It serves as a set of guidelines, not binding rules.
Quo Warranto Lies Only for Violation of Statutory Provisions Governing a Public Office:
A writ of quo warranto under Article 226 can be issued only if:
- the office in question is a “public office” of a public nature; and
- the appointment is contrary to a statutory provision or statutory rule, or the incumbent is statutorily ineligible.
Mere violation of executive policies, circulars or guidelines (such as the State Litigation Policy) is not enough.
Additional Advocate General is Not a “Public Office” for Quo Warranto Purposes:
The Court distinguished between the Advocate General (who holds a constitutional public office under Article 165) and other State law officers such as Additional Advocate Generals, Government Counsel, etc. The Advocate General is a constitutional authority with specific powers and responsibilities; in contrast, AAGs and other counsel are professionally engaged lawyers assisting the Advocate General, with no fixed tenure, no statutory powers, and primarily governed by professional and contractual considerations. They do not hold “public office” in the strict sense for which quo warranto lies.
Gazette Publication Does Not Per Se Confer Statutory Status:
Notifying Clause 14.8 of the State Litigation Policy in the State Gazette does not make it a statutory rule. The Court relied on the structure of the Gazette of India (and by analogy, State Gazettes) to show that many notifications are expressly non-statutory. Policy amendments of this nature fall in the category of non-statutory executive notifications.
No Inquiry into Respondent’s Experience or Eligibility:
Having held that:
- the office of AAG is not a public office for the purpose of quo warranto, and
- the State Litigation Policy is not legally enforceable,
the Court declined to examine whether Respondent No. 2 did or did not possess 10 years’ practice as an advocate. That question was held to lie entirely within the discretion of the State as a litigant in choosing its counsel.
Discretion in Appointment of Law Officers:
The Court underscored that “art of presentation of a case and art of advocacy is not bound by years of experience” and that it would be inappropriate for the court to prescribe hard-and-fast rules on minimum experience for law officers such as AAGs (subject of course to express constitutional or statutory requirements, where they exist). The choice must largely be left to the State.

III. Factual and Procedural Background

1. The Writ Petition

The appellant, a 50-year-old practicing advocate, filed a writ petition (S.B. Civil Writ Petition No. 14130/2024) in the nature of quo warranto against the appointment order dated 23.08.2024 by which Respondent No. 2, Shri Padmesh Mishra, was appointed as Additional Advocate General of Rajasthan “for the cases to be taken up in the Supreme Court.”

His contentions were broadly:

Violation of Clause 14.4 of the State Litigation Policy, 2018:
Clause 14.4 prescribes that an advocate must have a minimum of 10 years’ practice to be eligible for appointment as Additional Advocate General. The appellant alleged that Respondent No. 2 did not satisfy this condition and hence was ineligible to hold the office.
Challenge to Clause 14.8 of the Litigation Policy:
By notification dated 23.08.2024, the State inserted Clause 14.8:
“14.8- 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 appellant argued that this clause:
- was arbitrary and illegal;
- was a colourable exercise of power introduced only to legitimise the appointment of Respondent No. 2; and
- undermined the objective basis (experience requirement) laid down in the Policy.
Absence of Consultation with the Advocate General:
The appellant also contended that the appointment of the Additional Advocate General had been made without effective consultation with the Advocate General, allegedly contrary to Clause 14.2 of the Policy.

2. Decision of the Single Judge

The learned Single Judge:

examined the provisions of the State Litigation Policy, 2018;
relied on earlier Division Bench judgment in Ishwar Prasad v. State of Rajasthan (D.B. Civil Writ Petition No. 5313/2024, dated 03.12.2024);
also referred to the Supreme Court’s order in Dr. Abhinav Sharma v. Sunil Samdaria, Civil Appeal No. 4501/2015; and
held that:
- the post of Additional Advocate General is not a public office for the purposes of quo warranto, and
- the State had power, under Clause 14.8, to appoint any counsel to any post based on expertise; the 10-year experience requirement was not inflexible.

The Single Judge also rejected the argument of arbitrariness and colourable exercise of power in relation to Clause 14.8, holding that:

the Council of Ministers had taken a policy decision to introduce Clause 14.8;
mere sequence of events was insufficient to infer mala fides; and
the court should ordinarily not interfere in policy decisions unless they are demonstrably arbitrary or unconstitutional.

Accordingly, the writ petition was dismissed.

3. The Special Appeal

In the special appeal (D.B. Civil Special Appeal No. 151/2025), the appellant, appearing in person, reiterated the same arguments, especially stressing that:

the Litigation Policy had statutory force because it was framed in response to observations of the Supreme Court in State of Rajasthan v. Man Sukh Das, SLP (Civil) Diary No. 4941/2018 (order dated 03.07.2018), and
Clause 14.8, having been inserted by a Gazette notification, should be treated as a statutory amendment.

The Division Bench, before addressing the merits, specifically asked counsel to address the enforceability of the State Litigation Policy, 2018 in the context of a writ of quo warranto. The core of the judgment lies in the answer to that question.

IV. Key Legal Issues

The Division Bench effectively addressed the following issues:

Whether the Rajasthan State Litigation Policy, 2018 (and its amendment inserting Clause 14.8) has statutory force and is enforceable in law.
Whether the post of Additional Advocate General of the State of Rajasthan is a “public office” of a public nature, amenable to a writ of quo warranto.
If the above were answered affirmatively, whether the appointment of Respondent No. 2 was contrary to the Policy and hence invalid.

The Bench decided Issues (1) and (2) against the appellant and, having done so, considered it unnecessary to go into Issue (3).

V. Precedents and Authorities Cited

1. Scope of Quo Warranto and Public Office

a. B.R. Kapur v. State of T.N., (2001) 7 SCC 231

The Court relied on the concurring opinion in B.R. Kapur to articulate the nature and purpose of the writ of quo warranto. Paragraph 79 (quoted in the judgment) explains that:

A writ of quo warranto lies against a person alleged to be a usurper of a public office.
The person must show by what authority he/she holds that office.
The challenge may be based either on:
- non-fulfilment of statutory qualifications; or
- existence of statutory disqualifications.

The historical exposition, tracing the evolution from the common law writ to the modern civil remedy, guided the Rajasthan High Court’s understanding that the focus of quo warranto is:

on the legality of the occupancy of a public office, and
on compliance with statutory norms.

b. Bharati Reddy v. State Of Karnataka, (2018) 6 SCC 162

The Supreme Court in Bharati Reddy held that:

“unless the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto.” (para 39)

This authority reinforced two important limitations:

Statutory foundation: Eligibility or disqualification must be traced to statutory provisions—not executive or policy guidelines.
Indisputable factual foundation: The ineligibility must be clear and incontrovertible.

c. Central Electricity Supply Utility Of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161

This case was cited for reiterating that:

Quo warranto can be issued when the holder of public office lacks the eligibility criteria or the appointment is contrary to statutory rules.
Traditional concepts of locus standi do not bar any person from approaching the Court; the focus remains on whether a public office is being usurped.

It is this pairing—public office + statutory violation—that the Division Bench repeatedly emphasised in dismissing the appellant’s case.

2. Nature of the Office of Government Law Officers

a. Kumari Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212

In Shrilekha Vidyarthi, the Supreme Court held that District Government Counsel in Uttar Pradesh:

are treated as law officers of the State, and
hold an “office” or “post” with a clear public element, including remuneration from the public exchequer, limitation on private practice, political neutrality, and statutory functions (e.g., power under Section 321 CrPC to withdraw prosecutions).

The Rajasthan High Court quoted extensively from Shrilekha Vidyarthi to show the notion that government counsel can in some contexts be treated as holding an “office” with public duties. However, the judgment also notes that this aspect has been doubted and refined in subsequent Supreme Court decisions.

b. State of U.P. v. Johri Mal, (2004) 4 SCC 714

Johri Mal is a pivotal precedent. The Supreme Court distinguished between:

Assistant Public Prosecutors: they hold civil posts under the State; their appointment is governed by service rules; Article 309 applies.
Public Prosecutors and District Government Counsel: their appointment is governed by CrPC and executive instructions; they are engaged on tenure basis; they remain legal practitioners; their appointment is more in the nature of a professional engagement rather than employment in a civil post.

Citing Johri Mal, the Rajasthan High Court highlighted:

Public Prosecutors/District Counsel have significant public functions but their conditions of appointment are not governed by statutory rules; and
In particular, paragraph 75 of Johri Mal states:
“In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence.”

Johri Mal thus re-characterises such law officer roles more in terms of professional engagements based on trust and confidence, with limited but not excluded judicial review.

c. State of U.P. v. Ajay Kumar Sharma, (2016) 15 SCC 289

The Supreme Court in Ajay Kumar Sharma reaffirmed Johri Mal, emphasising that:

District Government Counsel do not have a statutory right to renewal or continuation.
The State Government’s discretion in appointing its counsel—based on trust and confidence—is to be respected.
Article 14 review is available only to a limited extent, primarily if:
- mandatory statutory provisions are violated, or
- the State’s own legal policy is departed from in an arbitrary, discriminatory or mala fide manner.

The Rajasthan High Court’s reliance on these authorities underpins its conclusion that while the Advocate General holds a constitutional public office, other law officers like AAGs and Government Counsel in Rajasthan stand on a different footing.

3. Executive Instructions, Policies, and Enforceability

a. Shilpi Bose v. State of Bihar, MANU/SC/0147/1991

In Shilpi Bose, concerning transfer orders of Government servants, the Supreme Court held:

Courts should not interfere with transfers made in public interest and for administrative reasons unless:
- they violate a mandatory statutory rule, or
- they are mala fide.
Even if a transfer order is passed in violation of executive instructions or orders, courts should ordinarily not interfere; the remedy is administrative, not judicial.

This case is cited to draw the doctrinal line between:

statutory rules (enforceable in law), and
executive policies/guidelines (non-enforceable unless backed by statute).

b. Union of India v. S.L. Abbas, (1993) 4 SCC 357

In S.L. Abbas, another transfer case, the Supreme Court noted that:

Instructions regarding transfer policy are in the nature of guidelines;
They do not have statutory force and cannot, by themselves, be enforced in a court of law; and
Interference lies only if the order is mala fide or contrary to statutory provisions.

The Division Bench applied this reasoning to the Litigation Policy: even if the Government deviates from its own policy guidelines, that, by itself, does not give rise to an enforceable legal right or ground for judicial interference in the absence of statutory backing.

c. Bridge & Roof Co. (India) Ltd. Executives’ Association v. M.K. Singh, 2015 SCC OnLine Del 6419

The Delhi High Court in this case held that quo warranto lies only against appointments made in violation of statutory provisions. A writ of quo warranto:

cannot be issued merely on the basis of alleged violation of circulars, guidelines or executive directions; and
requires a clear statutory foundation for the eligibility criteria in question.

The Rajasthan High Court relies on this precedent to explicitly hold that a writ of quo warranto cannot be founded upon breach of a non-statutory policy such as the State Litigation Policy.

4. Litigation Policies and Gazette Notifications

a. State of Rajasthan v. Man Sukh Das, SLP (Civil) Diary No. 4941/2018

The appellant argued that the State Litigation Policy, 2018 was framed in response to observations of the Supreme Court in Man Sukh Das, where the Court supposedly suggested that the State develop a comprehensive litigation policy. On this basis, he claimed that the Policy should be treated as having statutory character.

The Rajasthan High Court rejected this, noting that:

the Supreme Court’s observations were in the nature of recommendations/suggestions;
no specific direction was issued to frame rules under any statute; and therefore,
the Policy cannot derive statutory force merely from the fact that it was framed following the Supreme Court’s advice.

b. Gazette Notifications and Their Legal Effect

In a particularly important part of the reasoning, the Court:

referred to the structure of the Gazette of India, demonstrating that:
- Part II Section 1: publishes Acts, Ordinances, Regulations (having statutory force);
- Part II Section 3: publishes statutory rules and orders; but
- Part I Section 1: publishes non-statutory rules, regulations and orders issued by Ministries and other authorities.
explained that, by parity of reasoning, similar notifications in the State Gazette—like the notification inserting Clause 14.8—fall in the category of non-statutory executive notifications.

Hence, publication of Clause 14.8 in the Gazette:

serves to notify and publicise the Policy amendment, but
does not transform the Policy into a statutory rule or regulation enforceable in a court of law.

VI. Legal Reasoning of the Court

1. Scope of Article 226 and Quo Warranto

The Court begins with the text of Article 226, emphasising the High Court’s power to issue, inter alia, a writ of quo warranto “for the enforcement of any of the rights conferred by Part III and for any other purpose.”

Synthesising the Supreme Court precedents, the Bench highlights that:

Quo warranto is a public law remedy aimed at preventing a usurper from holding a public office without legal authority.
The office must be:
- of a public nature; and
- governed by statutory provisions prescribing qualifications, conditions, or disqualifications.
The writ is maintainable only when:
- the appointment contravenes such statutory provisions, or
- the incumbent clearly suffers from a statutory disqualification.

On this framework, the Court’s subsequent inquiries are: (a) Is AAG a public office? (b) Is the governing norm statutory or merely policy?

2. Is the Additional Advocate General a “Public Office”?

The Court draws an important distinction between:

Advocate General (AG):
- appointed under Article 165 of the Constitution;
- a constitutional authority;
- possesses administrative powers, including being a drawing and disbursing officer under financial rules;
- clearly falls within the category of a public office.
Additional Advocate General and other Government Counsel:
- appointed to assist the Advocate General;
- their posts/nomenclatures (Govt. Counsel, Govt. Advocate, Additional Govt. Counsel, Deputy Govt. Counsel, etc.) are created by executive policy, not by statute or the Constitution;
- their tenure is not fixed by statute; departments allotted to them can be changed administratively;
- they are not responsible for government decisions; they merely represent the State in court based on briefs/instructions;
- they retain the character of legal practitioners; their engagement is primarily professional, based on trust and confidence.

The Court also notes:

In the District Courts, posts such as Public Prosecutor and Additional Public Prosecutor are governed by statutory rules framed under the proviso to Article 309/209 (as recorded in the judgment) and State service rules.
Special Public Prosecutors or Special Government Advocates may be appointed on a case-centric or department-centric basis.
In the High Court, some lawyers are appointed to conduct criminal cases, requiring approval under Section 24 CrPC (now Section 18 of BNSS) — another statutory route that confers a distinct status.

Against this background, the Bench concludes:

“while the post of Advocate General... would fall in the category of public post and he would be categorized as holding a public office... the posts of Additional Advocate General and the Government Counsels would not fall in the same category.”

In effect:

The Advocate General is a public office in the constitutional/statutory sense; a writ of quo warranto could, in principle, lie against such an office.
The Additional Advocate General, on the other hand, is not a statutory or constitutional office, but a professional engagement with a public element, insufficient to bring it within the strict domain of quo warranto.

3. Nature and Status of the Rajasthan State Litigation Policy, 2018

The Court sets out key provisions of the Policy:

It was framed pursuant to:
- the 13th Finance Commission’s recommendation; and
- the National Consultation on “Strengthening the Judiciary towards reducing pendency and delay” (24.10.2009), which had led to the National Litigation Policy and then the State Litigation Policy, 2011.
Clause 1.4 continues earlier circulars of the Law Department “to the extent this document is silent”.
Clause 2.4 enumerates broad principles to make the State an efficient and model litigant (responsible conduct, ADR, coordinated management, etc.).
Clause 3.2 says:
“it shall be mandatory for all departments to follow this policy.”
Clause 3.3 declares that the Policy will be the authoritative reference for procedure, norms and interpretation relating to litigation management.
Chapter 14 deals with appointment of counsel for the State, including:
- Appointment of the Advocate General under Article 165;
- Role and appointment of Additional Advocate Generals (Clause 14.2);
- Selection of other counsel by a State Level Empowered Committee (Clause 14.3); and
- Minimum practice experience for various posts (Clause 14.4) – including 10 years for AAG, 7 years for Government Counsel, etc.
Clause 14.8, inserted in 2024:
“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.”

Despite the apparently mandatory language in Clauses 3.2 and 3.3, the Court concludes that:

the Policy is intended as a guideline for how the State should function as a litigant;
the continuation of prior circulars (Clause 1.4) indicates that the Policy was not meant to be a comprehensive, binding code; and
Had the State intended to create statutory rules with enforceable legal consequences, it could and should have used its power under the proviso to Article 309/209 (or appropriate statutory provisions) to frame formal rules and create posts.

Therefore, the Court holds that the State Litigation Policy:

does not create enforceable statutory rights for any individual to compel a particular appointment or adherence to internal criteria; and
does not take away any person’s statutory rights by mere departure from its provisions.

4. Effect of Gazette Notification on Clause 14.8

The appellant argued that because Clause 14.8 was notified in the State Gazette, it acquired statutory character. The Court addressed this in detail, using the Department of Publication’s scheme for the Gazette of India as a reference.

The Court listed the various Parts and Sections of the Gazette, highlighting that:

Only certain Parts/Sections (such as Part II Section 1 & 1A; Part II Section 3) relate to Acts, Ordinances, Regulations, and statutory rules/orders.
Other Parts (especially Part I Section 1) publish non-statutory rules, regulations, orders and resolutions.

By analogy, similar notifications in the State Gazette that simply announce changes in a policy document:

would fall in the non-statutory category (akin to Part I Section 1); and
do not amount to amendments in formal statutory rules framed under an enabling law.

Accordingly, the Court held:

the notification inserting Clause 14.8 into the State Litigation Policy is not an amendment of any statutory rule;
it remains an executive policy decision; and
publication in the Gazette, without more, does not convert it into a statutory instrument.

In addition, the Court observed that the appellant himself had treated the Policy as non-statutory, by:

challenging Clause 14.8 before a Single Judge (as a policy issue), rather than invoking the High Court’s rules for testing the vires of a statutory rule before a Division Bench; and
he was therefore estopped from arguing that it should now be treated as if it were a statutory rule.

5. Consequences for the Appellant’s Quo Warranto Petition

Once the Court found:

that the Additional Advocate General’s post is not a “public office” in the strict sense; and
that the State Litigation Policy, 2018 (including Clause 14.4 & 14.8) is not enforceable law, but only an executive guideline,

the inescapable conclusion was that:

a writ of quo warranto could not lie against Respondent No. 2 based on alleged breach of that Policy; and
the Court would not enter into the factual inquiry whether he had less than 10 years’ experience.

In para 27, the Court expressly states that having reached this conclusion, it is “not within the four corners of this Court” to examine who the State considers an expert suitable to argue its cases. The art of advocacy and suitability for such engagement are primarily a matter between the State as client and the counsel, subject only to express constitutional or statutory constraints.

The Bench also formulates a broader principle, transcending the case:

“we... 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.”

It then concludes that the nomination of Respondent No. 2 as AAG—even if it departs from the general guidelines in the Policy—cannot be said to be illegal, arbitrary, unjustified, or whimsical.

VII. Impact and Significance

1. On Quo Warranto Jurisprudence

The judgment strongly reaffirms and applies the Supreme Court’s line of authority that:

Scope is narrow: Quo warranto will not be used as a general tool to audit executive decisions or to enforce internal policies or guidelines.
Two mandatory elements:
- The office must be a public office in the constitutional/statutory sense; and
- The appointment must be shown to be contrary to a specific statutory provision or rule.

For Rajasthan (and by persuasive value, for other High Courts), this decision closes the door on using quo warranto to challenge appointments of Additional Advocate Generals or Government Counsel merely for alleged non-compliance with experience requirements in litigation policies or similar non-statutory instruments.

2. On the Legal Status of State Litigation Policies

This judgment is also significant in clarifying the nature of State Litigation Policies:

Such policies, even when framed after guidance from the Supreme Court and notified in the Gazette, do not automatically become statutory rules.
They are better understood as internal administrative guidelines designed to:
- improve the State’s conduct as a litigant;
- streamline management of cases; and
- articulate best practices (e.g., preference for ADR, avoiding hyper-technical objections, appointing competent counsel).
Deviation from such policies:
- does not, by itself, give rise to a justiciable cause of action; and
- cannot be the sole basis for a writ of quo warranto or other public law remedy, unless backed by statute or involving a broader constitutional violation (e.g., discrimination under Article 14 in an exceptional case).

This analytical clarity will influence future litigation where parties seek to enforce government policies through writ petitions, not only in the area of law officer appointments but in other domains (e.g., transfer policies, promotion guidelines, etc.).

3. On Appointment and Accountability of Government Law Officers

The decision fortifies the position that:

The State, as a litigant, has wide discretion in choosing its law officers, based on trust, confidence and perceived expertise.
Formal qualifications like “minimum years of practice”—when prescribed only in a policy—are advisory, not binding.
Judicial review of such choices is limited, and courts will not ordinarily substitute their view of who is “more suitable” to represent the State.

At the same time, the Court does not insulate the State from all scrutiny. It remains implicit, following Johri Mal and Ajay Kumar Sharma, that:

appointments cannot violate express constitutional or statutory provisions; and
grossly arbitrary or mala fide appointments in breach of public duty could, theoretically, invite limited Article 14 review—though not necessarily through the vehicle of quo warranto where there is no statutory office or statutory norm involved.

4. On the Distinction Between Advocate General and Additional Advocate General

By explicitly classifying:

Advocate General as a constitutional public office; and
Additional Advocate General as a non-statutory, professional engagement,

the Court clarifies a question that has occasionally caused confusion in litigation. Challenges to appointments as Advocate General (e.g., on age, eligibility as an advocate of a High Court, etc.) will stand on a different legal footing from challenges to appointments of Additional Advocate Generals, Government Counsel, etc.

VIII. Simplifying Key Legal Concepts

1. What is a Writ of Quo Warranto?

A writ of quo warranto literally means “by what authority?”. It is used when:

someone is allegedly usurping a public office; and
the court is asked to direct that person to show by what legal authority he or she holds that office.

For such a writ:

The office must be public (created by the Constitution or statute, or recognised by law as a public office).
The person’s appointment must violate statutory qualifications or be hit by statutory disqualifications.
Any person (not just a rival or affected individual) can ordinarily file it—locus standi requirements are relaxed.

2. What is a “Public Office”?

A public office is an office:

created or recognised by the Constitution or a statute;
with duties that are public in nature; and
where the holder exercises some degree of authority or responsibility on behalf of the State.

Examples:

Chief Minister, Minister, Advocate General, statutory board member.

In contrast, a professional engagement—such as a private lawyer hired by the State on contract—while performing public functions, may not amount to a “public office” in the strict sense if:

it is not created by law;
is based on contract and trust; and
does not carry statutory powers or tenure protections.

3. What is “Statutory Force” or “Enforceable in Law”?

A rule, policy or direction has statutory force or is enforceable in law if:

it is made under an authority granted by a statute (Act, Ordinance) or the Constitution (e.g., proviso to Article 309); and
it is notified or brought into force in the manner contemplated by that law.

If a policy is:

an internal administrative document;
not framed under a specific statute;
even if described as “mandatory” internally;

then, in the absence of statutory backing, it is generally treated as a guideline or executive instruction, not giving rise to justiciable rights by itself.

4. What is a Gazette Notification and Does It Always Create Law?

A Gazette notification is an official publication by the Government used to:

publish Acts and Ordinances;
announce rules, regulations, and statutory orders; and
also publish many non-statutory orders, circulars, and notices.

Not every entry in the Gazette is law. Its legal effect depends on:

the Part/Section under which it is published (e.g., Acts in Part II Section 1; statutory rules in Part II Section 3; non-statutory orders in Part I Section 1); and
whether it is issued under a statutory power.

Thus, publication of a policy amendment in the Gazette often:

serves to give it publicity and official recognition, but
does not, by itself, make it a binding law enforceable in court, unless the content is clearly a statutory rule framed under an enabling law.

5. Litigation Policy vs. Statutory Rules

A Litigation Policy is essentially:

the Government’s internal roadmap on how it will conduct litigation;
sets out principles (e.g., avoid unnecessary appeals, promote ADR, appoint competent counsel);
may use strong language like “shall” and “mandatory” but is typically an executive decision, not a law.

A Statutory Rule is:

made under a specific law (e.g., CrPC, a Service Rules Act, or under the proviso to Article 309);
has legal force; and
can be enforced by courts; violation can invalidate actions taken contrary to it.

This case firmly places the Rajasthan State Litigation Policy, 2018 in the first category—policy/guideline, not statutory rule.

IX. Conclusion

The judgment in Sunil Samdaria v. State of Rajasthan is a significant addition to Indian public law jurisprudence in at least three respects:

It reasserts the narrow, statutory foundation of the writ of quo warranto, making clear that:
- the office must be a public office in the constitutional/statutory sense; and
- only violation of statutory eligibility or disqualification provisions will justify the writ—not departure from executive policies.
It clarifies the legal status of State law officers in Rajasthan, drawing a sharp distinction:
- the Advocate General is a constitutional public officeholder; but
- Additional Advocate Generals and Government Counsel are professional engagements, not public offices for quo warranto purposes.
It settles the nature of the Rajasthan State Litigation Policy, 2018 as an executive, non-statutory guideline:
- it is not enforceable as law; and
- its amendment by Gazette notification does not alter that character.

Consequently, the appointment of Respondent No. 2 as Additional Advocate General, even assuming departure from the Policy’s “10 years’ practice” guideline, cannot be invalidated through a writ of quo warranto. The Court emphasises that criteria like years of experience are at best policy preferences, and the ultimate choice of counsel is largely the prerogative of the State as a litigant, conditioned only by express constitutional or statutory constraints and, to a limited extent, by the requirement of non-arbitrariness under Article 14.

In the broader legal landscape, this judgment will likely discourage attempts to use writ jurisdiction to challenge government counsel appointments on the basis of litigation policies alone, and it offers a clear doctrinal framework for distinguishing between policy and law—a distinction fundamental to the rule of law and separation of powers.