ARTICLE IX Magnaye to Medenilla.docx

8/14/2019 ARTICLE IX Magnaye to Medenilla.docx

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1) Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to the SC underRule 65.

2) Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43.

Enforcement:

It has been held that the CSC can issue a writ of execution to enforce judgments which are final.

THE CIVIL SERVICE COMMISSION

Section 1. COMPOSITION/QUALIFICATIONS/TERM

Composition:

1) Chairman

2) Commissioners (2)

Qualifications:

1) Natural-born citizens of the Philippines;

2) At least 35 years old at the time of their appointments;

3) With proven capacity for public administration; and

4) NOT candidates for any elective position in the elections immediately preceding theirappointment.

5) Appointees by the President to the CSC need Commission on Appointments (CA)confirmation

Term:

1) Chairman -7 years; Commissioner 1 5 yrs; Commissioner 2 3 yrs

2) Limitation: single term only, no reappointment

3) Appointment to vacancy: only for unexpired term of predecessor

4) No temporary appointments, or appointments in acting capacity.

Section 2. Scope:

The Civil Service embraces all:

A. branches,


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B. subdivisions,

C. instrumentalities,

D. agencies of the government,

E. including GOCCs with original charters.

1.With Original Charter means that the GOC C was created by special law/by Congress

2. If incorporated under the Corporation Code, it does not fall within the Civil Service, and isnot subject to the CSC jurisdiction.

3. Even if once government-controlled, then becomes privatized, ceases to fall under CSC.

4. Jurisdiction is determined as of the time of filing the complaint.

Appointments to civil service shall be:

A. Competitive positions

According to merit and fitness to be determined by competitive examinations, as far as practicableexcept to positions which are policy-determining, primarily confidential, or highly technical.

B. Non-competitive positions

1). No need for competitive examinations.

2). 3 kinds

a) Policy-determining formulate a method of action for the govt

b) Primarily confidential more than ordinary confidence; close intimacy insures freedomof intercourse witho ut betrayals of personal trust

c) Highly technical requires technical skill to a superior degree.

C. The TEST to determine whether non/competitive is the Nature of the responsibilities, NOT theadministrative or legislative description given to it.

D. Both types of positions are entitled to security of tenure. They only differ in the MANNER in

which they are filled.

E. Who may be appointed:

1). RULE: Whoever fulfills all the qualifications prescribed by law for a particular position may beappointed therein.


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2). The CSC cannot disapprove an appointment just because another person is better qualified, aslong as the appointee is himself qualified.

3). The CSC CANNOT add qualifications other than those provided by law.


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CASE DIGESTS:

Security of Tenure:

CIVIL SERVICE COMMISSION, Petitioner - versus - GREGORIO MAGNAYE, JR., Respondent

Facts:

In March 2001, Mayor Roman Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker Iat the Office of Economic Enterprise (OEE). After a few days, Mayor Rosales detailed him to the MunicipalPlanning and Development Office. In the May elections of that year, Mayor Rosales was defeated by Raul L.Bendaa who assumed. On August 13, 2001, the new mayor served him a notice of termination fromemployment effective the following day for unsatisfactory conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground that Mayor Bendaa was notin a position to effectively evaluate his performance because it was made less than one and one-halfmonths after his (Mayor Bendaas) assumption to offic e. He added that his termination was without basisand was politically motivated.

Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV) but dismissedMagnayes complaint for lack of merit. It upheld his dismissal from the service on the ground that MayorBendaas own assessment, together with the evaluation made by his supervisors, constituted sufficientand reasonable grounds for his termination. The CSC is of the position that a civil service employee doesnot enjoy security of tenure during his 6- month probationary period. It submits that an employees securityof tenure starts only after the probationary period. Specifically, it argued that an appointee under anoriginal appointment cannot lawfully invoke right to security of tenure until after the expiration of suchperiod and provided that the appointee has not been notified of the termination of service or foundunsatisfactory conduct before the expiration of the same.

Magnaye sought recourse through a petition for review with the Court of Appeals. The CA ruled in

Magnayes favor, mainly on the ground that he was denied due process since he was not informed of whatconstituted the alleged unsatisfactory conduct and want of capacity that led to his termination.

Issue:

Whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules.

Ruling:

The Court upholds the decision of the Court of Appeals.

The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) Article13 of the Constitution guarantees the rights of all workers not just in terms of self-organization,

collective bargaining, peaceful concerted activities, the right to strike with qualifications, humaneconditions of work and a living wage but also to security of tenure, and Section 2(3), Article IX-B isemphatic in saying that, "no officer or employee of the civil service shall be removed or suspendedexcept for cause as provided by law."

Consistently, Section 46 (a) of the Civil Se rvice Law provides that no officer or employee in the CivilService shall be suspended or dismissed except for cause as prov ided by law after due process.


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Our Constitution, in using the expressions all workers and no officer or employee, puts no distinctionbetween a probationary and a permanent or regular employee which means that both probationary andpermanent employees enjoy security of tenure. Probationary employees enjoy security of tenure in thesense that during their probationary employment, they cannot be dismissed except for cause or for failureto qualify as regular employees.

The constitutional and statutory guarantee of security of tenure is extended to both those in the career andnon-career service positions, and the cause under which an employee may be removed or suspended mustnaturally have some relation to the character or fitness of the officer or employee, for the discharge of thefunctions of his office, or expiration of the project for which the employment was extended. Further, well-entrenched is the rule on security of tenure that such an appointment is issued and the moment theappointee assumes a position in the civil service under a completed appointment, he acquires a legal, notmerely equitable right (to the position), which is protected not only by statute, but also by the Constitution[Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either by revocation of theappointment, or by removal, except for cause, and with previous notice and hearing.


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Primarily confidential position:

BESA v PNB 33 SCRA 330

Facts:

Nature: Original Petition in the Supreme Court. Certiorari, prohibition, and quo warranto

Tomas Besa was appointed Chief Legal Counsel with the rank of Vice President of PNB.

By virtue of a resolution by PNB president Roberto Benedicto, he became Consultant onLegal Matters.

Conrado Medina took over his position.

PNB justified by saying that:

o The position of Chief Legal Counsel carries a special confidential relationship oflawyer and client and thus they have the prerogative to designate or change its lawyer

o The transfer was made by the Board in the exercise of its powers, uponrecommendation of the PNB president

Resolution No. 1053: by BOD: shifted Besa to Office of President as Consultant on Legal Matters,without change in salary and other privileges

Issue:

WON Besas transfer was illegal

Held: NO

Ratio:

1. The position of Chief Legal Counsel was a highly confidential position and such positions term dependsupon the will of the appointing power.

2. Removal without just cause as a defense applies only to officers and employees enjoying a fixed term.

3. According to Chief Justice, a primarily confidential officer cannot be removed. His term merely expiresaccording to nature of job. Reyes says tenure of confidential officers ends upon loss of confidence.

4. Court also ruled that the position of Chief Legal Counsel is primarily confidential and secondarilytechnical.

Petition Dismissed.


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NATIONAL HOUSING CORPORATION vs JUCO 134 SCRA 172

Facts:

Benjamin C. Juco was a project engineer of the National Housing Corporation from November 16,1970 to May 14, 1975. Juco's services were terminated by (NHC) for having been implicated in a crime oftheft and/or malversation of public funds involving 214 pieces of scrap G.I. pipes owned by the corporationwhich was allegedly committed on March 5, 1975. His termination was effective as of the close of workinghours on May 14, 1975. He filed a complaint for illegal dismissal with the Ministry of Labor andEmployment but his case was dismissed by the labor arbiter on the ground that the NHC is a government-owned corp. and its jurisdiction over its employees is vested in the CSC. On appeal, the NLRC reversed thedecision and remanded the case to the labor arbiter for further proceedings. NHC in turn appealed to theSC.

Issue:

Are employees of the National Housing Corporation, a GOCC without original charter, covered by the LaborCode or by laws and regulations governing the civil service?

Held:

Sec. 11, Art XII-B of the 1973 Constitution (now Article IX-B) specifically provides: "The Civil Serviceembraces every branch, agency, subdivision and instrumentality of the Government, including everygovernment owned and controlled corporation.

The inclusion of GOCC within the embrace of the civil service shows a deliberate effort at the framers toplug an earlier loophole which allowed GOCC to avoid the full consequences of the civil service system. Alloffices and firms of the government are covered.

This constitutional provision has been implemented by statute PD 807 is unequivocal that personnel ofGOCC belong to the civil service and subject to civil service requirements.

"Every" means each one of a group, without exception. This case refers to a GOCC. It does not cover casesinvolving private firms taken over by the government in foreclosure or similar proceedings.

For purposes of coverage in the Civil Service, employees of governmentowned or controlled corps.Whether created by special law or formed as subsidiaries are covered by the Civil Service Law, not theLabor Code, and the fact that private corporations owned or controlled by the government may be createdby special charter does not mean that such corporations not created by special law are not covered by theCivil Service.

xxx

The infirmity of the respondent's position lies in its permitting the circumvention or emasculation of Sec. 1,Art. XII-B [now Art IX, B, Sec. 2 (1)] of the Constitution. It would be possible for a regular ministry ofgovernment to create a host of subsidiary corporations under the Corporation Code funded by a willinglegislature. A govt-owned corp. could create several subsidiary corps. These subsidiary corps. would enjoythe best of two worlds. Their officials and employees would be privileged individuals, free from the strictaccountability required by the Civil Service Dec. and the regulations of the COA. Their incomes would notbe subject to the competitive restraint in the open market nor to the terms and conditions of civil serviceemployment. Conceivably, all govt-owned or controlled corps. could be created, no longer by special


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charters, but through incorp. under the general law. The Constitutional amendment including such corps. inthe embrace of the civil service would cease to have application. Certainly, such a situation cannot beallowed

MWSS VS. HERNANDEZ 143 SCRA 602

Facts:

Several contractual employees of the MWSS filed a complaint before the NLRC for willful failure to paytheir wage differentials, allowances, and other monetary benefits.

The defense of MWSS was that it was a GOCC, and therefore the NLRC had no jurisdiction over the case.

Nevertheless, the Labor-Arbiter rendered a decision against MWSS citing that only regular employees areNOT within the NLRC jurisdiction. Since the petitioners were contractual employees, they are still withinNLRC jurisdiction. The L-A also stated that the Civil Service Decree applies to employees in governmentcorporation in all matters, except monetary claims, which is a case governed by the Labor Code. Since thisis a money case, the NLRC still had jurisdiction.

MWSS filed a petition of certiorari to the SC

Issue:

Are employees of the MWSS covered by the Labor Code or the Civil Service laws?

Held:

MWSS is a GOCC created under RA 6234. Employment in the MWSS is governed NOT BY THE LABOR CODE,but by civil service law rules and regulations. Thus, controversies arising from or connected with thatemployement are NOT RECOGNIZABLE BY THE NLRC.

The contention of the Labor Arbiter that only regular employees are not covered by NLRC, and that non-regular or contractual employees are still covered by NLRC, is sophistical. There is no legal or logicaljustification for such a distinction. Indeed it is ruled out by the fact that positions in the civil service areclassified into career and non-career. (not by regular or contractual).

The other contention of the L-A that monetary claims are still governed by the NLRC/ Labor Code, is evenmore patently illogical, and deserves no confutation. (confutation!?!)

Recap:

1. The MWSS is a GOCC and employment is governed by the CSL, not the Labor Code

2. Both regular and contractual employees are covered. There is no distinction.

3. NLRC has no jurisdiction over money claims of contractual employees of GOCCs. They are still governedby the CSL, not the Labor Code.


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QUIMPO v TANODBAYAN 146 SCRA 137 December 2, 1986

Tanodbayan Has Jurisdiction over all Government Owned Firms Regardless of How Organized

Facts:

Quimpo filed a complaint with the Tanodbayan (TB) charging G. Dimaano and D. Remo, managerand analyst of Petrophil, with violation of RA 3019 for their refusal to pay Quimpo's fees as surveyor. TheTB dismissed the complaint, however, on the ground that his jurisdiction extended only to governmentowned corporations organized under a special law. Petrophil is a corp. organized under the Gen. Corp.Code; it was acquired by the govt to carry out its oil and gasoline programs. Quimpo filed a petition forcertiorari, questioning the decision of the TB. The new TB confessed judgment.

Issue:

WON PETROPHIL is a government owned or controlled corporation whose employees fall within thejurisdictional purview of the Tanodbayan for purposes of the Anti-graft and Corrupt Practices Act?

Held:

YES. Uphold the Tanodbayan jurisdiction. While it may be that PETROPHIL was not originally "created" as aGOCC, PETROPHIL became a subsidiary of PNOC and thus shed-off its private status. It is now funded andowned by the government as in fact, it was acquired to perform functions related to governmentalprograms and policies on oil. It was acquired not temporarily but as a permanent adjunct to performessential government related functions.


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We find the petition devoid of merit. While it is true that in the case of Philippine Air Lines EmployeesAssociation v.

MISSING PARAGRAPH!!!

Philippine Air Lines, Inc., (11 SCRA 387, 396-397), We ruled that PAL is/was a government controlledcorporation, this was only for the purpose indicated in R.A. 1880. For the instant case however, andconsidering the circumstances attendant thereto, it is clear that PAL is not a government controlledcorporation within the contemplation of R.A. 186. Be it noted that PAL during the covered years was amember of the SSS and its employees were recipients of SSS benefits. For petitioners to now claimadditional or similar benefits from the GSIS would be rather inequitable.

WHEREFORE, this petition is hereby DISMISSED for lack of merit, and the appealed decision is herebyAFFIRMED.

SO ORDERED.


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b. Checking Function of the CSC

DE LOS SANTOS vs MALLARE 87 PHIL 289

Facts:

Eduardo de los Santos was appointed City Engineer of Baguio on July 16, 1946 by the President ofthe Philippines. His appointment was confirmed by the Commission on Appointments on August 6, and onthe 23rd, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, GilR. Mallare was extended an ad interim appointment by the President to the same position, after which, onJune 3, the Undersecretary of the Department of Public Works and Communications directed Santos toreport to the Bureau of Public Works for another assignment. Santos refused to vacate the office. The CityMayor and the other city officials ignored him and paid Mallare the salary corresponding to the position.Santos filed this petition for quo warranto to question the legality of the appointment of respondent Gil R.Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and claims to bestill occupying.

Issue:

Whether or not the removal of the petitioner from his present position for assignment to another positionviolates Section 4, Article XII of the 1935 Constitution which provides that "No officer or employee in theCivil Service shall be removed or suspended except for cause as provided by law."

Held:

Yes. Section 1, Article XII of the Constitution ordains: "A Civil Service embracing all branches andsubdivisions of the Government shall be provided by law. Appointments in the Civil Service, except as those

which are policy-determining, primarily confidential or highly technical in nature, shall be made onlyaccording to merit and fitness, to be determined as far as practicable by competitive examination." Section670 of the Revised Administrative Code provided that "Persons in the Philippine civil service pertain eitherto the classified service," and went on to say that "The classified service embraces all not expresslydeclared to be in the unclassified service." Then section 671 described persons in the unclassified service as"officers, other than the provincial treasurers and assistant directors of bureaus or offices, appointed by thePresident of the Philippines, with the consent of the Commission on Appointments of the NationalAssembly, and all other officers of the government whose appointments are by law vested in the Presidentof the Philippines alone."

Three specified classes of positions policy determining, primarily confidential and highlytechnical are excluded from the merit system and dismissal at pleasure of officers and employees

appointed therein is allowed by the Consti. xxxThe office of city engineer is neither primarily confidential, policy determining, nor highly technical.

Primarily confidential . The latter phrase denotes not only confidence in the aptitude of the appointee forthe duties of the office but primarily close intimacy w/c insures freedom of intercourse withoutembarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.


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Policy-determining.-- Nor is the position of city engineer policy determining. A city engineer does notformulate a method of action for the government or any of its subdivisions. His jobis to execute policy, not to make it.

Highly technical.-- Finally, the position of city engineer is technical but not highly so. A city engineeris not required nor is he supposed to possess a technical skill or training in the supreme or

superior degree, w/c is the sense in w/c "highly technical" is, we believe, employed in the Consti.

G.R. No. L-54554 March 30, 1981

EUSTAQUIO M. MEDALLA, JR., petitioner vs. THE HONORABLE MARCELINO N. SAYO, Judge of the CFI ofRizal, Branch XXXIII and HONORATO G. MACKAY, acting Hospital Administrator of the Caloocan CityGeneral Hospital and the CITY MAYOR OF CALOOCAN, respondents.

MELENCIO-HERRERA, J.:

In this Petition for "Certiorari, mandamus and Prohibition", seeking the dismissal of Civil Case No. C-7770below, we have, as factual background, the following:

Petitioner, Dr. Eustaquio M. Medalla, Jr., is the Chief of Clinics of the Caloocan City General Hospital,Caloocan City. Private respondent,, Dr. Honorato G. Mackay was the Resident Physician thereat.

When the position of Assistant, hospital Administrator of the Caloocan City General Hospital became vacantupon the resignation of the incumbent, former Caloocan City Mayor Alejandro A. Fider designated andsubsequently appointed, as Assistant Hospital Administrator private respondent Dr. Mackay, a ResidentPhysician in said hospital. Petitioner, Dr. Medalla, Jr., protested Dr. Mackay's designation and subsequentappointment alleging among others that, as Chief of Clinics, he (Medalla) was next-in-rank. The then ActingCity Mayor Virgilio P. Robles, who succeeded former Mayor, now Assemblyman Alejandro A. Fider, in his4th Indorsement dated September 20, 1978, sustained Mackay's appointment stating:

... as of April 18, 1978 when Dr. Honorato G. Mackay was promoted to Assistant Hospital Administratorfrom his previous position of Resident Physician, he was next in rank to the said higher position by reasonof his having completed all academic requirements for the Certificate in Hospital Administration ... contraryto the claim of Dr. Eustaquio Medalla, Jr. in his letter of May 2, 1978.

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Dissatisfied, Medalla elevated his case to the Civil Service Commission on appeal. On December 29, 1978,the Civil Service Merit Systems Board issued Resolution No. 49 sustaining Medalla's appeal and revokingMackay's appointment as Assistant Hospital Administrator. The pertinent portion of the aforestatedResolution reads:

A perusal of the records shows that appellant Medalla is the Chief of Clinics of the Caloocan City GeneralHospital; he is a holder of the Degree of Doctor of Medicine; he has completed the requirements in HospitalAdministration and is recommended for the title of Certificate in Hospital Administration; he is also acandidate of a Masters degree in Hospital Administration He possesses the First Grade eligibility (BA 1080)and had undergone relevant training in Hospital Administration. His performance rating is 'VerySatisfactory'.

On the other hand, appellee Mackay had been a Resident Physician, the position he held prior to hispromotion to the contested position. He is a holder of the degree of Doctor of Medicine and is a First Grade


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eligible (BA 1080-Medical Board). He is a graduate student in Hospital Administration and as completed allacademic requirements for a certificate in Hospital Administration. His performance rating is "VerySatisfactory".

A perusal of the organizational chart of the Ospital ng Caloocan approved by the Hospital Administratorwould show that the Chief of Clinics is the next lower position to the Assistant Hospital Administrator. The

Resident Physician is not a next lower position to the Assistant Hospital Administrator. Therefore, Medallaand not Mackay is the person next in rank who may be promoted to the position involved.

Moreover, even on the basis of competence and qualifications to perform the duties of the position, therecords show that Dr. Medalla is more competent and qualified than Dr. Mackay. The qualification reliedupon by the Acting City Mayor in justifying the appointment of Dr. Mackay which is his having completedthe academic requirements for the Certificate in Hospital Administration does not give Dr. Mackay theadvantage inasmuch as Dr. Medalla has also completed the academic requirements for a certificate inHospital Administration and is recommended for a title of Certificate in Hospital Administration apart frombeing also a candidate for a Masters degree in Hospital Administration. 1

xxx xxx xxxUpon automatic review by the Office of the President, pursuant to section 19(6), PD No. 807, PresidentialExecutive Assistant Jacobo C. Clave rendered a Decision on April 24, 1979 declaring that:

WHEREFORE, premises considered, and as recommended by Civil Service Commission, the appointment ofDr. Honorato G. Mackay as Assistant Hospital Administrator in the Caloocan City General Hospital is herebyrevoked and the position awarded in favor of appellant Dr. Eustaquio M. Medalla. 2

The Acting City Mayor, on behalf of Mackay, moved for reconsideration.

On May 7, 1979, totally disregarding the Decision of the Office of the President, the same Acting City Mayorappointed Mackay, this time as Hospital Administrator, and designated Dr. Tantoco as his Assistant,thereby again completely bypassing Medalla. Mackay took his oath of office on May 7, 1979.

On June 27, 1979, however, the Civil Service Commission, acting on Medalla's protest, and besides callingattention to the penal provision of P.D. No. 807, disapproved Mackay's appointment as follows:

Wherefore, premises considered and finding the protest of Dr. Medalla in order, the appointment of Dr.Mackay as hospital Administrator at P26,388 per annum effective May 7, 1979 is hereby disapproved. it ishereby ordered that Dr. Medalla be appointed to the position of Hospital Administrator of the Caloocan CityGeneral Hospital. 3

On July 20, 1979, Mackay moved for reconsideration asserting 1) denial of due process of law inasmuch asthe contested Resolution/Decisions were issued ex-parte, and 2) that the Civil Service Commission can notignore nor overrule an appointment made by a City Executive.

Without awaiting the resolution of his Motion for Consideration- Mackay filed, on July 23, 1979, before tileCourt of First Instance of Rizal, Caloocan City, presided by respondent, Judge, a Petition for "Certiorari,Prohibition and mandamus with Preliminary Injunction and Damages" civil Case No. C7770) against Hon.Jacobo Clave, the Civil Service Commission, the Acting City Mayor, the City Treasurer, and Medalla, prayingthat said respondents be restrained from implementing the Decision of Hon. Jacobo Clave of April 24, 1979,the Resolution No. 49 of the Merit Systems Board dated December 29, 1978, and the Decision of the CivilService Commission of June 27, 1979. The Court a quo issued the Restraining Order prayed for on July 25,1979 enjoining implementation of the aforestated Resolution/Decisions.


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On August 2, 1979, Medalla moved to dissolve the Restraining Order and to dismiss the Petition allegingmainly that Mackay had not exhausted his administrative remedies and that the latter's right to a Writ ofPreliminary Injunction was not only dubious or debatable but was clearly non-existent. Hon. Jacobo Claveand the Civil Service Commission likewise filed a Motion to Dismiss on the same ground of failure toexhaust administrative remedies.

On August 13, 1979, Mackay moved to suspend proceedings pending final resolution by the Civil ServiceCommission of his Motion for the reconsideration of the Decision of said Commission dated June 27, 1979.

On September 24, 1979, the Trial Court denied both Motions to Dismiss filed by Medalla, on the one hand,and Hon. Clave and the Civil Service Commission, on the other, holding that Mackay's failure to awaitresolution of his Motions for Reconsideration pending before the Office of the President and the CivilService Commission did not deprive him of a cause of action besides the fact that according to therespective Manifestations of the said Offices, the Motions for Reconsideration had already been resolvedadversely against Mackay.

Acting on Medalla's Motion for Reconsideration thereof as well as his Motion to Lift Restraining Order, theCourt a quo, in its Order of July 15, 1980, denied reconsideration but lifted the Restraining Order "therebeing no showing that petitioner is entitled to the issuance of a Writ of Preliminary Injunction. "Respondent Judge then set the case for hearing.

At this juncture, Medalla instituted this Petition before us praying that the Court a quo be restrained fromproceeding with the hearing and that judgment be rendered as follows:

1. Ordering the Honorable Marcelino N. Sayo, Judge of the Court of First Instance of Rizal BranchXXXIII, Caloocan City, to dismiss respondent Mackay's petitions, on the ground of lack of jurisdiction and/ornon- exhaustion of administrative remedies resulting to a lack of cause of action;

2. Declaring the decision of the Office of the President (Annex "C") and the Merit Systems Board(Annex "E") as valid and enforceable. 4

We issued a Restraining Order on August 27, 1980 enjoining respondents from proceeding with the case

below.On November 7, 1980, we required petitioner Medalla to implead the Mayor of Caloocan City as party-respondent, and the latter to comment on the Petition and to state whether he is ready to issue anappointment to Medalla as Hospital Administrator, Medalla's rights thereto having been upheld by the CivilService Merit Systems Board and by the Office of the President.

In his Compliance, Medalla included an additional prayer that the City Mayor of Caloocan be ordered toimmediately appoint him as Hospital Administrator and to pay him salary differentials.

In his Comment, the City Mayor of Caloocan invoked the privilege of an appointing authority to determinewho can best fulfill the functions of an office citing the case of Aguilar vs. Nieva, Jr. 5 to that effect. And as tothe matter of his readiness to issue an appointment to Medalla, he manifested his preference to withhold

action pending Mackay's unresolved Motion for Reconsideration of the Decision of June 27, 1979 of theCivil Service Merit Systems Board.

Petitioner Medalla submits that the Trial Court erred in not dismissing Mackay's Petition before it, therebeing a clear showing of non-exhaustion of administrative remedies, and that said Court was devoid ofjurisdiction in reviewing on certiorari decisions of the Office of the President and of the Civil serviceCommission rendered in the exercise of their quasi-judicial functions.


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Private respondent Mackay takes the contrary view and prays, instead, that the contestedDecisions/Resolution be declared null and void and respondent Judge ordered to proceed with the hearingof the case below.

Although Mackay's Motions for Reconsideration were, in fact, still pending resolution by Hon. Jacobo C.Clave and the Civil Service Commission, respectively, at the time private respondent Mackay filed the

Petition below, dismissal of said Petition can no longer be anchored on the ground of non-exhaustion ofadministrative remedies, as Medalla prays, considering that Manifestations dated August 17 and 23, 1979filed by the said parties before the Court a quo show that they had resolved the incidents adversely againstMackay. 6 That issue, therefore, has become moot and academic.

In so far as jurisdiction of the Court below to review by certiorari decisions and/or resolutions of the CivilService Commission and of the Presidential Executive Assistant is concerned, there should be no questionbut that the power of judicial review should be upheld. The following rulings buttress this conclusion:

The objection to a judicial review of a Presidential act arises from a failure to recognize the most importantprinciple in our system of government, i.e., the separation of powers into three coequal departments, theexecutive, the legislative and the judicial, each supreme within its own assigned powers and duties. When apresidential act is challenged before the courts of justice, it is not to be implied therefrom that theExecutive is being made subject and subordinate to the courts. The legality of his acts are under judicialreview, not because the Executive is inferior to the courts, but because the law is above the Chief Executivehimself, and the courts seek only to interpret, apply or implement it (the law). A judicial review of thePresident's decision on a case of an employee decided by the Civil Service Board of Appeals should beviewed in this light and the bringing of the case to the Courts should be governed by the same principles asgovern the judicial review of all administrative acts of all administrative officers.

The courts may always examine into the exercise of power by a ministerial officer to the extent ofdetermining whether the particular power has been granted to the officer, whether it is a legal power thatcould have been granted to him, and whether it has been exercised in a legal manner. This jurisdiction doesnot depend upon an act of the legislature authorizing it, but inheres in the courts of general jurisdiction asan essential function of the judicial department (State Racing Commission v. Latonia Agri. Asso. 123 SW 68

1). 8 (emphasis supplied).

For the speedy determination of the controversy, however, and considering that the position involved isinfused with public interest, rather than remand the case to the Court below for further proceedings, wehold that grave abuse of discretion on the part of Hon. Jacobo C. Clave and the Civil Service Merit SystemsBoard is absent.

To start with, under the Revised Charter of the City of Caloocan RA No. 5502), it is clear that the power ofappointment by the City Mayor of heads of offices entirely paid out of city funds is subject to Civil Servicelaw, rules and regulations (ibid., section 19). The Caloocan City General Hospital is one of the citydepartments provided for in the said law (ibid., sec. 17). The Hospital Administrator is appointed by theCity Mayor (ibid., section 66-B). The Hospital Administrator is the head of the City General Hospitalempowered to administer, direct, and coordinate all activities of the hospital to carry out its objectives as tothe care of the sick and the injured (ibid.).

Under section 19 (3) of the Civil Service Decree (PD No. 807, effective on October 6, 1975), the recruitmentor selection of employees for promotions is drawn from the next-in-rank.

SEC. 19. Recruitment and Selection of Employees.

xxx xxx xxx


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(3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7,the employees in the government service who occupy the next lower positions i the occupational groupunder which the vacant position is classified and in other functionally related occupational groups and whoare competent, qualified and with the appropriate civil service eligibility shall be considered for promotion.

Section 19 (6) of the same Decree provides for the administrative procedure by an aggrieved employee in

case of non-observance by the appointing authority of the next-in-rank rule, thus:Sec. 19(6) A qualified next-in-rank employee shall have the right to appeal initially, to the department headand finally to the Office of the President an appointment made ... (2. in favor of one who is not next-in-rank,... if the employee making the appeal is not satisfied with the written special reason or reasons given by theappointing authority for such appointment: ... Before deciding a contested appointment the Office of thePresident shall consult the Civil Service Commission. For purposes of this Section, .qualified next-in-rank'refers to an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto aspreviously determined by the appointing authority and approved by the Commission.

The prescribed procedure has been followed by petitioner Medalla He had appealed to the departmenthead and from thence, in view of the latter's unfavorable action, to the Civil Service Commission andthereafter to the Office of the President. Resolution No. 49 of the Civil Service Merit Systems Board itsDecision of June 27, 1979, and the Decision of the presidential Executive Assistant dated April 24, 1979,were all rendered in Medalla's favor. The special reason given by the Acting City Mayor for Mackay'sappointment, which is, that lie had completed all academic requirements for the Certificate of HospitalAdministration, is not tenable, since Medalla himself was found to be in possession of the samequalification. But while the qualifications of both petitioner Medalla and private respondent Mackay are atpar, yet, it is clear that the position of Chief of Clinics is the next lower position to I hospital Administratorunder the organizational line-up of the hospital. Consequently, at the time of Mackays appointment asAssistant Hospital Administrator and subsequently hospital Administrator, Medalla outranked Mackay whowas only a Resident Physician and, therefore, as the next-in rank, Medalla is entitled to appointment asHospital Administrator.

Respondent Mackay's urging that he was denied due process deserves scant consideration considering thatsubsequent developsments in the case establish that he was heardon his Motions for Reconsideration byboth the Civil Service Commission and the office of the President.

It is true that, as the respondent City Mayor alleges, a local executive should be allowed the choice of men ofhis confidence, provided they are qualified and elligible, who in his best estimation are possesses of therequisite reputation, integrity, knowledgeability, energy and judgement. 9 However, as reproducedheretofore, the Decision of the Civil Service Merit Systems Board, upheld by the Office of the President,contains a judicious assessment of the qualifications of both petitioner Medalla and private respondentMackay for the contested position, revealing a careful study of the controversy between the parties, whichcannot be ignored. The revocation of Mackay's appointment reveals no arbitrariness nor grave abuse ofdiscretion.

WHEREFORE, 1) the appointment extended to private respondent, Dr. Honorato C. Mackay, as HospitalAdministrator is hereby declared null and void; 2) respondent City Mayor of Caloocan City is herebyordered to extend an appointment to petitioner, Dr. Eustaquio M. Medalla, as Hospital Administrator of theCaloocan City General Hospital immediately upon notice of this Decision; 3) petitioner, Dr. Eustaquio M.Medalla, shall receive all compensation and emoluments appertaining to said position thenceforth, butwithout entitlement to salary differentials; and 4) respondent Judge is hereby permanently enjoined fromfurther proceeding with Civil Case No. 7770.


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This Decision is immediately executory. No costs.

SO ORDERED.

MATURAN V MAGLANA 113 SCRA 268

Facts:

Petitioner Tereso Maturan was appointed as patrolman of San Francisco, Southern Leyte, then was

promoted as police sergeant. The appointments of petitioner were provisional, which was renewed. Respondent Mayor Santiago Maglana suspended petitioner from office because of two pending

criminal case against him and instructed petitioner to tender his resignation pursuant to Letter ofInstruction No. 14 of the President of the Philippines

Petitioner tendered his letter of resignation and was approved three months later. Petitioner sought the reconsideration of the approval of his resignation for being null and void on

the ground that LOI No. 14 does not apply to him. In the meantime, the two criminal cases were dismissed. Hon. Juan Ponce Enrile then Acting

Chairman of the National Police Commission informed petitioner of the dismissal of the criminalcases, and the preventive suspension has been lifted, and petitioner was directed to report for dutyto his Chief of Police.

Maturan reported for duty but Chief of Police Francisco Duterte refused to accept the former in thepolice force.

Respondent Mayor sent a letter to the Chairman of the National Police Commission requestingadvice as to whether the resignation tendered by petitioner was valid.

The Deputy Executive Commissioner stated that since petitioner resigned from office, the lifting ofhis suspension is no longer feasible, the same having been rendered moot and academic.

Petitioner filed a Petition for Mandamus with claim for backsalaries, travelling expenses anddamages. He alleged that the refusal of respondents Mayor and Chief of Police to reinstate him is aviolation of Par. 7 of Presidential Decree No. 12- A which provides: Members of the police forcewho have been preventively suspended shall, upon examination be entitled to immediatereinstatement and payment of the entire salary they failed to receive during the period ofsuspension.

Respondent court dismissed the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignation

submitted by the police force in compliance with the provisions of LOI No. 14 are valid. Last ly, the trial court ruled that since all petitioners appointment were provisional, he can be

removed at any time by the appointing power.

Issue:

Whether or not petitioner shall be reinstated to his position as police sergeant


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Held:

Maturan cannot be reinstated to his former post. He did not dispute that at the time he was appointedmember of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriateexamination for the position of policeman nor was he possessed with any civil service eligibility for anyposition in the government. Such lack of civil service eligibility makes his appointment temporary and

without a definite term and is dependent entirely upon the pleasure of the appointing power.The fact that petitioner subsequently obtained a testimonial eligibility is of no moment. At the time hereceived his appointment, petitioner had no eligibility. As such what is required is a new appointment, notmerely reinstatement. But even then, he cannot compel the Mayor to re-appoint him for the power toappoint is in essence discretionary and the appointment power enjoys sufficient discretion to select andappoint employees on the basis of their fitness to perform the duties and assume the responsibilities of theposition filled.

DE GUZMAN VS. SUBIDO, 120 SCRA 443

Facts:

Petitioner Ernesto De Guzman was appointed patrolman in the Quezon City Police department byMayor Norberto Amoranto.

He was civil service eligible having taken and passed the civil service patrolmans examination. He had also passed the usual character investigation conducted before appointment. Petitioner went through and successfully completed the police training course. Petitioners appointment was forwarded to the CSC. After a year after the appointment and with no action on the appointment papers being taken by

respondent commissioner (Abelardo Subido), the respondents City Treasurer and City Auditorstopped the payment of the petitioners salaries.

Respondent Commissioner returned the petitioners appointment papers, without action thereon,

to the respondent Mayor on the ground that Mr. De Guzman was disqualified for appointmentunder R.A. No. 4864, the Police Act of 1966. The finding was based solely on petitioners own answer to a question in the information sheet:

Have you been accused, indicted, or tried, for the violation of any law, ordinance, or regulation,before any court or tribunal?

In said question petitioner answered yes for jaywalking and violation of another ordinancerequiring a cochero to occupy only the seat intended for a cochero in a calesa.

The CFI dismissed the petition for certiorari and mandamus with preliminary injunction. According to the court, the requirement of no criminal record means without any criminal record

and makes no distinction whether an act violates a state law or only a municipal or city ordinance.

Issue:

Should petitioner be disqualified from appointment to the Quezon City Police Force?

Held:

The requirements for applicants to a policemans position may be quite stringent but the basic policy ofattracting the best qualified is not served by automatically excluding any person who in an absent minded


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protest was filed beyond the reglementary period; that protestant is not the next in-rank employee asregards the contested position and, as such, he was no legal personality to file the protest; and, that theprotestee aside from being the next-in-rank employee, met the requirements for promotion.

Private respondent appealed to the Merit Systems Board (MSB for short). In its decision dated October 28,1986, the MSB found the appeal meritorious and ruled that private respondent should have been the one

appointed as Assistant Bank Physician. The Bank, through Mr. Sebastian V. Palanca, Jr., Special Assistant tothe Governor, in an undated petition for reconsideration, prayed that the MSB decision be set aside andthat the Bank's decision upholding the appointment of Dr. Jordan be left undisturbed. On January 28, 1987,e set aside its decision of October 28, 1986 and confirmed the approval of the appointment of Dr. Jordan tothe contested position.

On March 5, 1987, private respondent appealed to the Civil Service Commission on the grounds that he wasdenied due process of law inasmuch as he was not furnished a copy of the motion for reconsideration filedby the Bank, and that the decision of the MSB dated January 28, 1987 is contrary to the merit and fitnessprinciples enshrined in the Civil Service Law and the Constitution.

In the first indorsement dated March 19, 1987, the Commission forwarded the appeal to the Office of theGovernor of the Central Bank for his comment with the request that his comment be transmitted to theCommission within ten (10) days from receipt. Likewise, Dr. Jordan was furnished a copy of the appeal forher to submit her answer/comment thereon within ten (10) days from receipt with a warning that herfailure to do so shall be considered a waiver of her right to submit the same. Instead of submitting hercomment, Dr. Jordan filed an Ex-Parte Motion for Extension of Time to File Comment. The Central Bank,through Mr. Sebastian Palanca, Jr. filed a similar motion alleging that the Bank received notice of the appealon April 1, 1987. However, the Commission denied the motion of Dr. Jordan on the ground that a protestcase is not strictly an adversary proceeding where protestant and protestee play active participation. 5

On May 26, 1987, the Commission issued Resolution No. 87156 setting aside the decision of the MSB datedJanuary 28, 1987 and directing the appointment of private respondent to the contested position. On June10, 1987, the petitioner Central Bank filed a petition for reconsideration that the department head enjoyswide latitude of discretion as regards the appointment of department personnel and that the question all to

who is more competent is of no consequence since private respondent was not yet an employee of theCentral Bank at the time Dr. Jordan was considered for promotion. However, the petitioner's motion forreconsideration was denied by the Commission in Resolution No. 87- 375 dated October 16, 1987 on thesole ground that its Resolution dated May 26, 1987 had become final and executory on account of thefailure of Dr. Jordan to file a motion for reconsideration and that the motion for reconsideration filed by Mr.Palanca, Jr. for and in behalf of the Central Bank cannot be said to have been filed in behalf of Dr. Jordaninasmuch as the Central Bank has no personality to file a motion for reconsideration as it does not stand tobe adversely affected or personally aggrieved by the decision of the Commission.

Hence, the present petition.

It is the contention of the petitioner Central Bank that the Civil Service Commission acted without or inexcess of jurisdiction in revoking the appointment of Dr. Jordan and in directing the issuance of theappointment in favor of Dr. Borja when all the while the qualifications of Dr. Jordan were certified by thePromotions Board and a representative of the Civil Service Commission who was present in thedeliberations of the same board. Petitioner Bank added that the power of the Commission is limited todetermining whether or not the appointee has the appropriate eligibility and qualification and that oncesuch qualification was certified, the Commission is duty bound to attest to the appointment. 6

The Solicitor General prays for the dismissal of the instant petition on the ground that the decision of theMerit Systems Board dated October 28, 1986 had already become final and executory for failure of Dr.


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Jordan to appeal or seek reconsideration within fifteen (15) days from receipt of the said decision citingSection 2, Board Resolution No. Ill in relation to Section 39, Presidential Decree No. 807. The SolicitorGeneral also stressed that the petition is devoid of merit. 7

On the other hand, private respondent contends that the Central Bank lacks the legal personality to contestthe validity of Resolution Nos. 87-375 and 87-156 as it does not stand to be adversely affected or

personally aggrieved by the decision of the Commission, citing Sections 7 and 10 of Resolution No. 811329of the Commission. 8

It is well-settled principle that the appointing authority is given ample discretion in the selection andappointment of qualified persons to vacant positions. This is a management prerogative which is generallyunhampered by judicial intervention. 9 Within the parameters of this principle, the right to select andappoint employees is the prerogative of the employer which may be exercised without being held liabletherefor provided that the exercise thereof is in good faith for the advancement of the employer's interestand not for the purpose of defeating or circumventing the rights of the employees under special laws orunder valid agreements and provided further that such prerogatives are not exercised in a malicious, harsh,oppressive, vindictive or wanton manner, or out of malice or spite. 10

There is no question that the Central Bank of the Philippines is vested with the power of appointmentunder Section 14 of Republic Act No. 265, as amended, otherwise known as the Central Bank Act. At issue inthis petition is the extent of the power of the Civil Service Commission to approve or disapprove aparticular appointment. May the Commission revoke an appointment and direct the issuance of theappointment to somebody else whom it believes is more qualified for the position?

Under the Civil Service Act of 1959, 11 the Commissioner of Civil Service has the final authority onappointments. 12 But the situation has changed under the new law, Presidential Decree No. 807, 13otherwise known as the Civil Service Decree, wherein the Commission is not authorized to curtail thediscretion of the appointing official on the nature or kind of appointment to be extended. 14 The authorityof the Commission is limited to approving or reviewing the appointment in the light of the requirements ofthe law governing the Civil Service.

In the case at bar, the qualifications of Dr. Jordan were never disputed. The fact that she was qualified wasattested to by the Promotions Board. A representative of the Commission was present in the deliberation ofthe said board.

Private respondent anchors his protest on the ground that he is more qualified than the appointee. It iswell-settled that when the appointee is qualified, as in this case, and all the other legal requirements aresatisfied, the Commission has no alternative but to attest to the appointment in accordance with the CivilService Laws. 15 The Commission has no authority to revoke an appointment on the ground that anotherperson is more qualified for a particular position. It also has no authority to direct the appointment of asubstitute of its choice. To do so would be an encroachment on the discretion vested upon the appointingauthority. An appointment is essentially within the discretionary power of whomsoever it is vested, subjectto the only condition that the appointee should possess the qualifications required by law.

Private respondent alleges, however, that the power of appointment is not absolute and that theCommission is empowered to approve or disapprove the same, citing Section 9(h) of Article V of the CivilService Decree and Section 4 of Civil Service Commission Resolution No. 83-343. This is correct As notedearlier, the appointment is subject to verification by the Commission as to whether or not the appointingauthority complied with the requirements of the law, otherwise, it may revoke the appointment. However,to conclude that the Commissioner may also direct the appointment of individuals other than the choice ofthe appointing power is certainly not contemplated by the law. Section 9(h) of Article V of the Civil Service


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Decree provides that the Civil Service Commission is authorized to perform the following functions withrespect to appointments in the Civil Service, to wit:

Approve all appointments, whether original or promotional, to positions in the civil service, except those ofpresidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, andjailguards, and disapprove those where the appointees do not possess appropriate eligibility or required

qualifications. . . . (Emphasis supplied.)From the foregoing, it is clear that the Commission has the authority to check whether or not the appointeepossesses the appropriate civil service eligibility or the required qualifications. If he does, his appointmentmust be approved; if not it should be disapproved. No other criterion may be employed by the Commissionwhen it acts on an appointment.

Thus, when as in this case, it is not disputed that the appointee, Dr. Jordan, is qualified for the contestedposition, the Commission exceeded its power in revoking her appointment on the ground that privaterespondent is more qualified. The Commission cannot substitute its will for that of the appointingauthority.

It may be true that private respondent has an edge over Dr. Jordan in terms of educational attainment

inasmuch as the former holds a post-graduate degree in Medicine from a foreign educational institutionand considering that he has had experience and training in reputable institutions here and abroad.However, under the pertinent rules on promotion obtaining in the Central Bank, 16 educational attainmentand training experience are just among the factors to be considered in the promotion of its employees. Theother factors to be considered are performance rating, experience and outstanding accomplishments,physical characteristics and personality traits and potential.

After evaluating the qualifications of Dr. Jordan, the Central Bank arrived at the conclusion that sheoutranks the others in point of experience, rank, salary and service in the Bank. Dr. Jordan holds the degreeof Doctor of Medicine and is a graduate of the University of the Philippines. She had been with the CentralBank since September 6, 1976. It appears that during this span of time, she had displayed a high degree ofefficiency, dedication and initiative in discharging the duties and responsibilities of her position. She also

attended various seminars, conferences, symposia and other special training courses that enriched herknowledge in the field of medicine.

Prior to her promotion to the contested position, she held the position of bank physician from September 6,1976 to July 9, 1981. On July 9, 1981, Dr. Jordan was promoted to the position of coordinating assistant. Onthe other hand, the private respondent was appointed to the position of bank physician only on October 9,1984. On one occasion private respondent was found guilty of dishonesty for failing to reveal in hisinformation sheet that he has a sister-in-law employed in the Central Bank. 17

The stand of the Commission that the appointee did not hold a special medical position prior to herappointment, unlike in the case of the private respondent who held the position of bank physician is devoidof merit. The position of coordinating assistant which was held by Dr. Jordan prior to her promotion in theMedical and Dental Unit where she belongs is filled up only by qualified and competent physicians.

On the basis of the foregoing, the appointing authority found that Dr. Jordan satisfied all the requirementsset by the Central Bank on promotion the wisdom of which cannot be questioned.

It must be stressed that the law does not impose a rigid or mechanical standard on the appointing power.The appointing person enjoys sufficient discretion to select and appoint employees on the basis of theirfitness to perform the duties and to assume the responsibilities of the position to be filled. 18 As earlierruled in Reyes vs. Abeleda, 19 at least sufficient discretion, if not plenary, should be granted to thoseentrusted with the responsibility of administering the offices concerned, primarily the department heads.


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They are in the position to determine who can best fulfill the functions of the office thus vacated. Unless thelaw speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of suchdiscretionary authority. The power of appointment is essentially a political question involvingconsiderations of wisdom which only the appointing authority can decide. 19a

The Commission disregarded the performance ratings of Dr. Jordan submitted by the Central Bank on the

ground that the same were not signed by Dr. Jordan's immediate superior. It ruled that the absence ofperformance ratings in the case of private respondent, considering his point of service, places the protesteeand the protestant on equal footing.

We disagree. As pointed out by the Central Bank, it was not possible to require Dr. Ricarte Reyes, Dr.Jordan's immediate superior to sign her performance ratings since the former had already retired as earlyas March 23, 1984, which was before the end of the first semester of 1984. Thus, at the time the contestedposition was filled up it was Mr. Sebastian Palanca, Jr. who served as the immediate supervisor of Dr.Jordan in the unit where she belongs and hence her performance ratings were signed by the latter.

The relation of the position of Dr. Jordan and private respondent is as follows:

Physician -position to which private (Salary Grade 16) respondent was appointed on October 5, 1984

Coordinating Assistant - position of Dr. Jordan as of (Salary Grade 20) 1984 and before her appointment asAssistant Bank Physician

Assistant Bank Physician - position to which Dr. Jordan was (Salary Grade 22) considered on October 3,1984 and to which she was appointed on January 2, 1985. 20

Dr. Jordan holds the position of coordinating assistant (Salary Grade 20) which is next in rank to thecontested position of Assistant Bank Physician (Salary Grade 22). Private respondent holds the position ofPhysician (Salary Grade 16) which without doubt is not next in rank to the contested position. As theposition of private respondent is not next-in- rank, the Commission should have dismissed his appeal as hehad no legal personality to contest the appointment of Dr. Jordan. Only employees who are next-in-rankmay protest an appointment. 21 In implementing Section 19 of P.D. No. 807 the Civil Service Commissionpromulgated Resolution No. 83-343 22 which provides as follows:

Within fifteen (15) days from notice of issuance of an appointment, a next in-rank employee who iscompetent and qualified and who feels aggrieved by the promotion of another may file a protest to theministry or agency head. . . . (Emphasis supplied)

The Court takes note that at the time Dr. Jordan was considered and recommended for promotion to thecontested position on October 3, 1984, private respondent was not yet an employee of the Central Bank. Itwas only on October 5, 1984 that he was appointed as physician and he assumed the position only onOctober 9, 1984. It was, therefore, impossible to consider him for appointment to the contested positionbefore that time.

Anent the argument of the respondents that the Central Bank lacks the legal personality to contest thedecision of the Commission and hence the decision became final and executory for failure of Dr. Jordan tofile a motion for reconsideration, the Court finds the argument untenable. In an earlier case, 23 this Courtheld that it is the appointing authority who stands adversely affected where the Civil Service Commissiondisapproves the appointment made. This rule is acknowledged by the Solicitor General. However, theSolicitor General contradicted himself by insisting that the decision of the MSB dated October 28, 1981became final and executory for failure of Dr. Jordan to file a motion for reconsideration when all the whilethe Central Bank filed a timely motion for reconsideration thereof.


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Petitioner Central Bank, as the appointing authority is the one which can defend its appointment since itknows the reasons for the same. Any final determination of the issue can only be enforced through it.Moreover, it is the act of the appointing authority that is being questioned. Indeed, when the Commissiondirected the Central Bank to submit its Comment on the appeal filed by private respondent the Commissionmust have been aware that the participation of the Central Bank is indispensable. Although the Commissionalso directed Dr. Jordan to file a separate Comment, it denied the latter's request for an extension of timewithin which to file the same on the ground that a protest case is not strictly an adversary proceedingswhere the protestant and the protestee play active roles. The Commission pointed out that a protest case isan action of the protestant against a determination made by the appointing authority, a determinationwhich only the appointing authority could defend inasmuch as it is the latter who knows the reasons forsuch determination. 24 Thus, for the Commission to say thereafter that the decision became final andexecutory for failure of Dr. Jordan to appeal is obviously erroneous. As a matter of fact that Commission isnow in estoppel. After making the parties believe that the Central Bank may participate in the controversy,the Commission cannot later make a total tum about by alleging that the participation of the Central Bank isinconsequential as it lacks the requisite legal personality.

IN VIEW OF THE FOREGOING, the questioned Resolutions of the Civil Service Commission dated May 26,1987 and October 16, 1987, respectively, are hereby declared null and void and the Commission is directed

to attest the appointment of Dr. Angela Jordan as Assistant Bank Physician. No costs.

This Decision is immediately executory.

SO ORDERED.


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G.R. No. 99391 December 2, 1991

PENDATUN ALIM, petitioner vs. CIVIL SERVICE COMMISSION, SALVADOR MISON, COMMISSIONER,BUREAU OF CUSTOMS and JESUSA TAGUINOD, respondents.

CRUZ, J.:p

This is still another case where the petitioner invokes his security of tenure against what he claims to be anunlawful removal. His contention is that having been granted a permanent promotional appointment, hecannot thereafter be demoted to his original position by the withdrawal of his promotion. The respondentsdemur, claiming that his appointment was conditional and therefore revocable.

There are three employees in this controversy in the Bureau of Customs, namely, Pendatum Alim, theherein petitioner, who was originally holding the permanent position of Customs Examiner; Efigenia A.Cruz, was originally holding the permanent position of Principal Customs Appraiser; and Jesusa Taguinod,the herein private respondent, who was originally holding the permanent position of Valuation andClassification Officer.

When the Bureau of Customs was reorganized pursuant to EO 127, Alim was promoted to the position ofPrincipal Customs Examiner, effective March 1, 1988, "subject to the final outcome of the appeal of theadversely affected employees, if any." 1 The position was at the time vacant. Cruz was removed andreplaced by Taguinod as Principal Customs Appraiser, effective April 15, 1988. Cruz protested her removaland was among the employees sustained by the Court in Dario v. Mison and the other related cases. 2

In these cases, the Court directed inter alia as follows:

THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS ARESULT OF HIS NOTICES DATED JANUARY 26, 1988.


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The respondents justify Alim's return to his original position as Custom's Examiner on the ground that hispromotion as Principal Customs Examiner could be revoked because it was conditional. It is urged thatCustoms Commissioner was competent to return Alim to his original position as this was only animplementation of the directive of the Court in the said Mison cases.

The directive of the Court and indeed the guidelines of the Civil Service Commission in implementation

thereof clearly call for the reinstatement of those declared in the Mison cases to have been illegallyremoved. According to Webster, to reinstate means "to restore to aformer condition or position." This is theordinary and generally understood meaning that should be given to that word as used in the decision.

Following the Court directive, the Customs Commissioner should have returned Taguinod to her originalposition of Valuation and Classification Officer, to give way to the reinstatement of Cruz as PrincipalCustoms Appraiser. This was not done, however. Instead, Taguinod was promoted to the position ofPrincipal Customs Examiner, which was already permanently held by the herein petitioner.

It bears repeating that Alim was a stranger to the conflict between Cruz, who was removed from herposition as Principal Customs Appraiser, and Taguinod, who was promoted to Cruz's position. Yet hebecame a victim of the reshuffle made by the Customs Commissioner in the implementation of the Misondecision.

The respondent Civil Service Commission insists that what is involved in this case is the discretion of theappointing authority in deciding who among several candidates for the same position should be appointed.To be sure, we have consistently held that such discretion cannot be controlled, not even by this court, aslong as it is exercised properly. 5 However, it must be stressed that this doctrine is applicable only whenposition in question is vacant.

That is not the situation in the case before us. The plain fact is that the petitioner was permanentlyappointed to the disputed position. The issue facing is not one of discretion. The issue we must resolve iswhether the petitioner can be removed as Principal Customs Examiner because the Customs Commissionernow believes that another person has superior credentials.

It is noted that when Alim was promoted in 1988, he was considered eligible for and deserving of thepromotion. It is immaterial that subsequent to the promotion of one employee, the appointing authorityhas a change of mind and decides that another employee should have been chosen.

By returning Alim against his will to his original position as Customs Examiner, Commissioner Misondemoted the petitioner from the position of Principal Customs Examiner to which he had been promoted in1988. No objection to his promotion was raised then; to date in fact no appeal has been made against himby any protesting employee. The condition attached tot he promotion not having occurred and certainlyit cannot last for ever that promotion has as a consequence become permanent. The demotion of thepetitioner was a revocation of that promotion and in effect a prohibited removal without cause.

We hold that the petitioner has gained security of tenure on his position as Principal Customs Examinerand cannot now be removed from it to give way to Taguinod's promotion. Even if Commissioner Mison nowbelieves that she is better qualified for that position, that assessment is not reason enough to justify thepetitioner's demotion to accommodate her. The injunction of the Constitution is clear and inflexible. Thepetitioner cannot be removed as Principal Customs Examiner except only for cause as provided by law andas established by preponderant evidence.

WHEREFORE, the petition is GRANTED. Petitioner Pendatum Alim is hereby REINSTATED to the position ofPrincipal Customs Examiner in the Bureau of Customs, with back salaries from the date of his removaltherefrom until his actual reinstatement. It is so ordered.


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G.R. No. 93711 February 25, 1991

DR. EMILY M. MAROHOMBSAR, petitioner vs. AHMAD E. ALONTO, JR., in his capacity as President of theMindanao State University, and CORAZON BATARA, respondents.

GUTIERREZ, JR., J.:p

The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed ActingVice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by therespondent President may be removed from office even without cause.

On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellorfor Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President forExternal Studies.

On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and,as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting

Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989,approved her appointment as acting Vice-Chancellor for Academic Affairs.

On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that hehas decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs whichposition is under the administrative staff of the respondent MSU President. The petitioner, on the samedate, answered that she cannot accept the position since she has already started several projects in theOVCAA which she wants to see through.


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(e) To appoint, on the recommendation of the President of the University, professor, instructors,lecturers and other employees of the University. . . . MSU Charter, RA 1387

If the President merely designates, the Board of Regents does not confirm the designation. Since it is onlyfor the information of the Board, the President's action should be merely "noted."

When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting onan ad interim appointment effected by the President. No other interpretation can be validly made. If it wasa mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an adinterim one. An ad interim appointment is one made during the time when the appointing or confirmingbody is not in session and there is an existing clear and present urgency caused by an impendingobstruction or paralyzation of the functions assigned to the office if no immediate appointment is made.(Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolishedand its functions were merged with the Vice-Chancellorship for Academic Affairs, both the security oftenure of the occupant and the needs of the new office called for the ad interim appointment.

The respondent cannot use the device of an ambiguous designation to go around the security of tenureprinciple. Under the MSU Code, a designation requires a fixed period of not less than one year. Theappointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU Presidentwho is not even the head of the institution because the head is the Board of Regents.

The intent to convert permanent items into temporary ones is apparent. The petitioner states that thepurpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers."(Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the Presidentwere converted into positions where the occupants serve at the pleasure of the President and presumably,the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Clubalongside the Luneta in Manila, the following acting appointments were submitted for approval orconfirmation:

1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive Vice-President . . . ;

2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice Presidentfor Academic Affairs . . . ;

3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting Assistant Vice-Presidentfor Academic Affairs . . . ;

4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President forPlanning and Development . . . ;

5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant VicePresident for Planning and Development . . . ;

6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the

Office of the Vice-President for Administration and Finance . . . ;7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President forAdministration and Finance . . . ;

8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;

10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor forAdministration and Finance . . . ;


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11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor forResearch and Extension . . . (Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. They state:

xxx xxx xxx

Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. Thisis precisely the reason why petitioner's designation as Acting VCAA can not be deemed a regular orpermanent appointment because, if it were so, the anomalous situation of one permanently appointed totwo public positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of thePhilippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt toremove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional.Deans and Directors are selected from faculty members. An appointment as Professor is also needed forsalary rating purposes but does not detract from the permanent nature of the administrative position (id.,at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P.Conservatory of Music does not mean that the second appointment is only temporary in nature. In thepresent case, the fact that Professor Marohombsar has a permanent appointment as Professor does notdetract from the permanent nature of her present appointment as Vice-Chancellor, especially since thesame was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned.

The attempt of the respondent to solve the problem by placing the petitioner in his own administrativestaff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this capacityfrom 1975 to 1978 after which she became Vice-President for External Studies in 1982. The profferedposition is not only less desirable to the petitioner but she expressly rejected it, preferring to stay in herpresent position. She thanked the respondent but stated she would not be effective in the new positionwhile in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) The correctnessof the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There aretransfers which appear to be promotions or lateral movements but are in truth demotions. There is noshowing that the interest of the service would be served if the proffered appointment would be forced onher.

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined, and theCourt agrees with him, that the petitioner may not be removed from the disputed office by the MSUPresident without the authority of the Board. And, as correctly stated by the Secretary, Special Order No.158-P issued by the respondent president designating respondent Batara as officer in-charge of the sameoffice was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked thedesignation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp. 119-120)

The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special OrderNo. 158-P to the Board of Regents for approval. But such submission was made after the Court alreadyissued its temporary restraining order and consequently, his action constituted contempt of Court.Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief thatMSU would progress faster if the executive officers serve at his pleasure and discretion, the Court rules thatdeclaring him in contempt would be too harsh a remedy. The respondent President is, nevertheless,admonished for his action. When this Court issues a restraining order, it must be obeyed.


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WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanentcapacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent Alonto forcontempt is DENIED but the respondent is admonished to faithfully heed court orders in the future. TheTemporary Restraining Order issued by this Court on June 21, 1990 is made PERMANENT.

SO ORDERED.

JAIME T. PANIS vs. CIVIL SERVICE COMMISSION and BELLA V. VELOSO

Facts: The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the localgovernment of Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while privaterespondent was Administrative Officer of the City Health Department detailed at the said hospital.Ordinance No. 1216 amending the Charter of Cebu changed the name of the hospital to CCMC and undersuch ordinance, the City Mayor appointed respondent Veloso as of Assistant Chief of Hospital forAdministration. Panis assails this appointment saying that: 1) the position of Assistant Chief of Hospital forAdministration was not legally created; (2) assuming that it was, there was no qualification standard norvalid screening procedure; and (3) the seniority and next-in-rank rules were disregarded. Panis protested

the appointment which was however denied at all levels.Issues: 1. WON the office was validly created

2. WON Veloso was validly appointed to the position taking into consideration qualifications

Held: 1. Yes 2. Yes

Ratio:


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Initially, the appointment of private respondent Cruz was approved as temporary by the Civil ServiceCommission(COMMISSION for brevity) subject to his completion of the Executive Leadership andManagement Program. On a reconsideration, the COMMISSION changed the appointment from temporaryto permanent but still subject to his completion of the leadership program within three (3) years from theeffectivity date of his appointment, otherwise he would be reverted to temporary status.

Sometime in 1987, Cruz was found responsible by an investigating committee for simple neglect of dutyarising from his inefficient supervision over his subordinates arising from the loss of six (6) Land Bankchecks.

In July 1988, HIGC underwent a reorganization which resulted among others in the reduction of thenumber of Vice President positions from (6) to three (3). Respondent Cruz was one of those notreappointed as he was found to have no civil service eligibility.

On appeal to the HIGC Reorganization Appeals Board, Cruz invoked his permanent appointment andinsisted that the question of his eligibility should be left for determination by the COMMISSION.

In the meantime, Cruz sought to avail of the Early Separation Incentive Package (ESIP) granted by HIGC tothose who were not reappointed and then withdrew his appeal.

On 7 December 1988, Cruz refiled his appeal after he was not granted ESIP benefits by HIGC.

On 8 December 1988, Cruz elevated his appeal for reinstatement with the COMMISSION.

On 20 February 1989, the HIGC Reorganization Appeals Board dismissed Cruz's appeal.

On 2 August 1989, however, the COMMISSION issued Resolution No.

89-543 finding Cruz to be a holder of a permanent career position at HIGC, hence, may be reappointed to aposition next lower in rank to Vice President under the Finance Group without reduction in salary,pursuant to CSC Memorandum Circular No. 10, s. 1986, and that in case Cruz could not be reappointed thenhis application to avail of the Early Separation Incentive Package (ESIP) should be approved. It furtherruled that Cruz should be paid all the benefits and privileges due him as Vice President of HIGC inconnection with his reassignment to the Office of the President and Bliss Development Corporation.

Resolving petitioner's Motion for Reconsideration of the Resolution, the COMMISSION issued on 18December 1989 Resolution No. 89-973 holding that since Cruz had not received the early retirementbenefits he applied for, he should be reappointed to the position next lower to the Vice President of theFinance Group, such as Manager of the Comptrollership Department, Treasury or other Department, andthat he should be paid his back salaries from the time of his termination on the basis of his old salary rateas Vice-President.

On 5 September 1990, the COMMISSION issued Resolution No. 90-823 denying petitioner's motion forreconsideration of modified Resolution No.

89-973. Hence, this petition for certiorari.

On 6 November 1990, We issued a temporary restraining order, effective immediately and to continue untilfurther orders from the Court, enjoining respondent COMMISSION to cease and desist from enforcing itsOrder of 10 October 1990, 3 as well as the resolutions in question.

Petitioner now contends that respondent COMMISSION committed grave abuse of discretion amounting tolack or excess of jurisdiction when it issued the questioned Resolutions for being contrary to establishedprinciples governing the civil service career system and of the basic constitutional mandate that


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appointments to the civil service shall be made only according to merit and fitness; and, that the non-reappointment of Cruz was the result of a valid reorganization.

We grant the petition.

The principal issue to be resolved is whether the COMMISSION committed grave abuse of discretionamounting to lack or excess of jurisdiction when it ruled that respondent Cruz was a permanent employeeenjoying security of tenure and thus may be removed from office only for cause.

Respondent Cruz contends that he was extended a permanent appointment as indicated in his appointmentpapers. 4 He asserts that it is not necessary for him to pass any competitive civil service examination tobecome eligible for he belongs to the third level in the career service, which covers positions in the CareerExecutive Service, and which does not require passing a competitive civil service examination.

But law and jurisprudence do not support the contention of private respondent. Presidential Decree No.807, otherwise known as the "Civil Service Decree of the Philippines," provides the following levels ofpositions in the career service: (a) the first level, which includes clerical, trades, crafts and custodial servicepositions involving non-professional or sub-professional work in a non-supervisory or supervisorycapacity requiring less than four years of collegiate studies; (b) the second level, which includes

professional, technical and scientific positions involving professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level;and, (c) the third level, which includes positions in the Career Executive Service.

Positions in the Career Executive Service consist of Undersecretary, Assistant Secretary, Bureau Director,Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service andother officers of equivalent rank as may be identified by the Career Executive Service Board, all of whomare appointed by the President.

Entrance to the first two levels shall be through competitive examinations, while entrance to the third levelshall be prescribed by the Career Executive Service Board.

The Constitution clearly mandates that appointments in the civil service shall be made only according to

merit and fi

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