In August, after being denied a secretary-level position in the Union government, Indian Administrative Services officer Vineet Chawdhary filed a case questioning the legal validity of Prime Minister Narendra Modi’s “360-degree appraisal” system for promoting senior civil servants. Despite his petition, the Union government did not think it fit to grant him the position. But in December, Chawdhary was picked to be the chief secretary of the Bharatiya Janata Party’s new government in Himachal Pradesh, where he heads the state’s bureaucracy.

The appointment has sharpened the focus on the appraisal system introduced by Modi in 2015, which also faced criticism from a Parliamentary Standing Committee last year, for being illegal, arbitrary, non-transparent and susceptible to manipulation.

Chawdhary’s plea to the Central Administrative Tribunal and the views of the parliamentary standing committee stand in stark contrast to a clutch of media articles quoting anonymous government sources that have praised Modi’s appraisal system as the hallmark of better governance.

The 360-degree appraisal system is a process that the prime minister approved in April 2015 to supplement the existing review mechanism to assess whether IAS officers are capable of holding the most senior positions of additional secretary and secretary in the Union government.

When Chawdhary, an officer of the 1982 batch of the IAS, was denied the rank of secretary, he approached the Central Administrative Tribunal – the first port of redressal for civil servants seeking judicial intervention on service-related matters. In his plea, Chawdhary contended that the system is “a tool of discrimination, neither reasonable nor rational, a whimsical exercise of arbitrary executive authority far in excess of any delegated legislation, neither resting on any legislation nor any rules and neither transparent nor fair”.

The tribunal before which Chawdhary filed his case had asked the Union government’s top bureaucrat, the cabinet secretary, to explain the government’s position on the matter by November in a “speaking order”, which requires the government to take a decision and explain the reasons for it.

Speaking orders are not usually made public. Neither Chawdhary nor the cabinet secretary would confirm to whether the orders had been passed. But Chawdhary has not been made secretary in the Union government so far and the appraisal system continues to be applied.

Despite being denied his promotion to secretary, Chawdhary was chosen in December to be Himachal Pradesh chief secretary. In reply to a query from about whether he continued to maintain his harsh views about the 360-degree appraisal system, Chawdhary answered, “These questions you need to pose to the cabinet secretary.”

The cabinet secretary and his office did not reply to’s queries about whether they planned to change the appraisal system in tune with comments of the Parliamentary Standing Committee and Chawdhary’s legal plea.

Picking candidates

In Central ministries, secretaries are vital to the functioning of ministers, who are the department’s elected top executives. Secretaries are assisted by additional secretaries and joint secretaries. These officers are critical in helping the government decide policy.

Till the Modi government changed the system in 2015, there was a clearly laid down procedure to assess if civil servants who had served a specified number of years were capable of assuming the top posts in Union ministries. This process was called empanelment.

Government officers are reviewed every year for their performance against established criteria and parameters. To remove arbitrariness, the Congress-led United Progressive Alliance government in 2011 altered the review process for officers and decided that they should be ranked objectively between 1 to 10 on parameters such as work output, personality traits and functional competency.

To appoint civil servants to the top posts of joint secretaries, additional secretaries and secretaries, an expert panel would review their entire service record and all previous annual reports along with reports from the vigilance department. After being vetted by another group of secretaries, the final call would be taken by the Appointments Committee of the Cabinet, which is headed by the prime minister.

The 360-degree turn

But shortly after he took charge, Prime Minister Narendra Modi added another element to the process of reviewing whether officers are suitable for senior posts. He approved a change in the way civil servants are chosen for the two top rungs – the ranks of secretary and additional secretary. The changes were made through guidelines passed by executive orders that have no legal backing.

The changes required a panel of experts to collect views on the phone from the candidate’s junior and senior colleagues and peers, as well as from people outside the government. These people were described as stakeholders and would remain anonymous. Their panel was to collect their views on a prescribed form.

“Each form is to be filled based on a multi-source feedback (MSF) stakeholder’s opinion of the officer, as sensed by you from your interaction with her/him regarding the same,” the guidelines for the process say. “The MSF stakeholder should be assured of his anonymity and confidentiality, to elicit honest and accurate feedback.”

The form requires the panel of experts to weigh in on, besides other things, whether the candidate publicly enjoys a reputation of complete honesty, if the candidate is proactive, a team leader, well-suited for the role and an effective decision-maker.

In theory, seeking a more comprehensive review of a person’s performance seemed like a good idea. But the Parliamentary Standing Committee on personnel, public grievances, law and justice in August found serious flaws in how it was being applied.

‘Illegal and non-transparent’

The committee contended that the 360-degree appraisal system was “opaque, non-transparent and subjective”. It noted that the feedback in the process was being obtained informally, making the process susceptible to manipulation.

The parliamentary panel heard the government’s point of view, as well as of various associations of civil servants and experts to say, “the feedback received from subordinates and stakeholders may be biased and lack objectivity, particularly if the officer had to discipline his subordinates or he was unable to meet the unjustified demands of stakeholders”.

It added, “Acting on feedbacks so received puts the concerned officer in a disadvantageous position as the remedies available to him in case his annual appraisal report has not been written objectively are not available to him in this process. Acting on such feedback behind the back of the officer may not be legally tenable.”

It noted that the scheme was based entirely on executive instructions – the prime minister’s orders – and not on any regulations or law. The difference they pointed to is significant. Executive instructions are usually used for administrative purposes and not to effect policy changes. Formal regulations under the law, on the other hand, need to go through a period of public consultation before being applied and need to be tabled before Parliament as well for scrutiny.

The committee said that it “impresses upon the Government to take necessary steps to make the process of empanelment more objective, transparent and fair”.

The legal challenge

The complaint from Chawdhary before the Central Administrative Tribunal asking for the 360-degree review process to be quashed quotes extensively from the parliamentary standing committee report.

Earlier, as an officer posted in the Union Ministry of Health and Family Welfare and the All India Institute of Medical Sciences, Delhi, between 2005-’12, Chawdhary faced several allegations of corruption. In one case of alleged corruption in AIIMS he was let off easily after being given a cautionary notice by the health ministry in 2016. He has claimed that no other investigation found any wrongdoing on his part and he had got a clear chit from the vigilance department.

Chawdhary sought reasons from the cabinet secretary as to why he had been denied the post and did not receive a reply. He next sought information under the Right To Information Act about how he could apply for a review of the decision taken through the 360-degree assessment in his case. He was denied information by the cabinet secretariat, which claimed such information was exempt from disclosure. This contention is not true.

His current appointment as chief secretary in Himachal Pradesh is technically possible as regulations permit even those officers who are denied empanelment for senior positions in the Union government to be appointed to top bureaucratic positions in states.