When ‘Policy Flexibility’ Becomes Arbitrariness: What the Rajasthan AAG Appointment Case Tells Us

Fairness in governmental action is the minimum expectation in a constitutional democracy. The legitimacy of the State rests not merely on authority, but on the reasonableness, transparency and impartiality with which that authority is exercised. This principle is tested most severely when State power appears to be bent to favour individuals through selective rule-making. The recent order dated December 2, 2025, of the “Rajasthan High Court” in “Sunil Samdaria v State of Rajasthan & Anr” raises precisely such concerns — not only about one appointment, but about the creeping normalisation of arbitrariness in public legal offices.

The controversy over the Additional Advocate General’s appointment

The case arose from a challenge to the appointment of an Additional Advocate General (AAG) for Rajasthan. The petitioner sought a writ of “quo warranto”, alleging that the appointment violated Clause 14.4 of the Rajasthan State Litigation Policy, which mandates a minimum of ten years’ professional experience for appointment as an AAG.

Crucially, on the very day the appointment was made — August 23, 2024 — a new Clause 14.8 was inserted into the policy. This clause empowered the “authority of the appropriate level” to appoint any counsel to any post “after considering his expertise in the respective field,” notwithstanding other provisions. In effect, this acted as an escape clause, neutralising the experience requirement.

Is an Additional Advocate General a ‘public office’?

The High Court declined to issue a writ of “quo warranto” on the ground that the office of AAG is not a “public office”, since it is neither constitutional nor statutory, unlike the Advocate General under Article 165 of the Constitution.

This reasoning is problematic. An AAG draws remuneration from the public exchequer, functions entirely on State instructions, and performs duties governed by statutory manuals and rules. The appointment circular itself directed AAGs to comply with the Rajasthan Law and Legal Affairs Department Manual, 1999, underscoring the statutory character of their functions. Functionally, the AAG operates as an extension of the Advocate General’s constitutional office.

The Constitution Bench of the “Supreme Court of India” in “State of Mysore v. C.D. Govinda Rao” (1965) held that “quo warranto” lies against anyone holding an independent substantive public office or franchise. A narrow contractual description ignores this settled understanding of public office in constitutional law.

Can litigation policy decisions escape judicial review?

The Rajasthan State Litigation Policy itself owes its origin to judicial directions of the Supreme Court in “State of Rajasthan v. Man Sukh Das” (2018), where framing such a policy was mandated in public interest. An “order” squarely falls within the definition of “law” under Article 13 of the Constitution and is therefore subject to judicial review.

The Supreme Court has repeatedly held — most notably in “Tata Cellular v. Union of India” (1996) — that policy decisions are not immune from scrutiny where they are arbitrary, biased or tainted by mala fides. In the present case, arbitrariness is evident from the chronology: Clause 14.8 was inserted and the appointment made on the same day. Yet, despite this being expressly highlighted, the High Court’s order is conspicuously silent on this timing.

The problem with ‘escape clauses’ in eligibility norms

The most troubling aspect is the insertion of Clause 14.8 itself. It effectively nullifies the mandatory ten-year experience requirement under Clause 14.4. When discretionary provisions override binding eligibility criteria, the policy framework loses coherence and credibility.

Even more concerning is the claim that the candidate’s “expertise” — the sole safeguard accompanying this sweeping discretion — was assessed on the very day the clause was introduced and the appointment finalised. Such compressed decision-making raises serious doubts about whether the exercise was genuine or merely a post-hoc justification.

Why this case matters beyond one appointment

Appointments of law officers are not routine contractual engagements; they directly affect the quality of State representation, institutional independence and public confidence in governance. When eligibility norms are diluted through tailor-made clauses, the message sent is corrosive: rules exist, but only until they inconvenience power.

The larger danger lies in precedent. If courts accept such policy manoeuvres without rigorous scrutiny, arbitrariness risks becoming administratively respectable and judicially tolerable.

Rule of law as restraint, not convenience

At its core, the Rajasthan AAG appointment case is not merely about one individual or one clause. It is about whether the rule of law functions as a meaningful restraint on State power or as a flexible tool of convenience. Constitutional democracy demands that discretion be structured, justified and reviewable — not camouflaged through last-minute policy insertions.

Fairness in governance is not optional. When courts hesitate to enforce it, the legitimacy of both executive action and judicial oversight stands diminished.