EN BANC [G.R. No. 183337 : April 23, 2010] CIVIL SERVICE COMMISSION, PETITIONER, VS. GREGORIO MAGNAYE, JR.

, RESPONDENT. DECISION MENDOZA, J.: The Civil Service Commission (CSC) assails in this petition for review on certiorari, [1] the February 20, 2008 Decision[2] and the June 11, 2008 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA reversed the July 20, 2004 Decision of the Civil Service Commission Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of respondent Gregorio Magnaye, Jr. (Magnaye)with payment of backwages and other monetary benefits. THE FACTS In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of Market] (OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and Development Office. In the May elections of that year, Mayor Rosales was defeated by Raul L. Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at the Municipal Planning and Development Office to assist in the implementation of a Survey on the Integrated Rural Accessibility Planning Project. On August 13, 2001, the new mayor served him a notice of termination from employment 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 not in a position to effectively evaluate his performance because it was made less than one and onehalf months after his (Mayor Bendaa's) assumption to office. He added that his termination was without basis and was politically motivated. The CSC head office dismissed, without prejudice, Magnaye's complaint because he failed to attach a certificate of non-forum shopping. Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV). The CSCRO-IV dismissed Magnaye's complaint for lack of merit. It upheld his dismissal from the service on the ground that Mayor Bendaa's own assessment, together with the evaluation made by his supervisors, constituted sufficient and reasonable grounds for his termination. Magnaye sought recourse through a petition for review with the Court of Appeals, citing CSCRO-IV's alleged errors of fact and of law, nonobservance of due process, and grave abuse of discretion amounting to lack or excess of jurisdiction. Adopting the stance of the Office of the Solicitor General, the CA ruled in Magnaye's favor, mainly on the ground that he was denied due process since he was not informed of what constituted the alleged unsatisfactory conduct and want of capacity that led to his termination. It summarized the positions of the OSG as follows: On January 18, 2005, the Office of the Solicitor General (OSG) filed its manifestation and motion, in lieu of comment, praying that the assailed decision be set aside. The OSG argued that Petitioner's termination was illegal. The notice of termination did not cite the specific instances indicating Petitioner's alleged unsatisfactory conduct or want of capacity. It was only on July 29, 2003, or almost two years after Petitioner's dismissal on August 13, 2001 that his former Department Heads, Engr. Magsino and Engr. Masongsong, submitted an assessment and evaluation report to Mayor Bendaa, which the latter belatedly solicited when the Petitioner appealed to the CSC Regional Office. Hence, the circumstances behind Petitioner's dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level that Petitioner was informed of his alleged poor performance. There was no evidence that Petitioner was furnished copies of 1) Mayor Bendaa's letter, dated July 29, 2003, addressed to CSC Regional Office praying that Petitioner's termination be sustained; and 2) the performance evaluation report, dated July 29, 2003, prepared by Engr. Magsino and Engr. Masongsong. The OSG claimed that Petitioner was denied due processbecause his dismissal took effect a day after he received the notice of termination. No hearing was conducted to give Petitioner the opportunity to refute the alleged causes of his dismissal. The OSG agreed with Petitioner's claim that there was insufficient time for Mayor Bendaa to determine his fitness or unfitness for the position.[3] [Emphasis supplied] Thus, the fallo of the CA Decision[4] reads: "WHEREFORE, the petition is Granted. The Civil Service Commission Regional Office No. 4's Decision, dated July 20, 2004 is hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATED with full payment of backwages and other monetary benefits. This case is hereby REMANDED to the Civil Service Commission for reception of such evidence necessary for purposes of determining the amount of backwages and other monetary benefits to which Petitioner is entitled. SO ORDERED." THE ISSUES In this petition, the Civil Service Commission submits the following for our consideration: "I. The dropping of respondent from the rolls of the local government unit of Lemery, Batangas was in accord with Civil Service Law, rules and jurisprudence. II. The respondent resorted to a wrong mode of appeal and violated the

rule on exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction." The principal issue, therefore, is whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules. The eligibility of respondent Magnaye has not been put in issue. THE COURT'S RULING The Court upholds the decision of the Court of Appeals. The CSC, in arguing that Magnaye's termination was in accord with the Civil Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on Appointments and Other Personnel Actions which provides that: Sec. 4. Nature of appointment. The nature of appointment shall be as follows: a. Original - refers to the initial entry into the career service of persons who meet all the requirements of the position. xxx It is understood that the first six months of the service following an original appointment will be probationary in nature and the appointee shall undergo a thorough character investigation. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period. Provided that such action is appealable to the Commission. However, if no notice of termination for unsatisfactory conduct is given by the appointing authority to the employee before the expiration of the six-month probationary period, the appointment automatically becomes permanent. Under Civil Service rules, the first six months of service following a permanent appointment shall be probationary in nature, and the probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the

probationary period. [5] The CSC is of the position that a civil service employee does not enjoy security of tenure during his 6-month probationary period. It submits that an employee's security of tenure starts only after the probationary period. Specifically, it argued that "an appointee under an original appointment cannot lawfully invoke right to security of tenure until after the expiration of such period and provided that the appointee has not been notified of the termination of service or found unsatisfactory conduct before the expiration of the same."[6] The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) Article 13 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, humane conditions of work and a living wage but also to security of tenure , and Section 2(3), Article IX-B is emphatic in saying that, "no officer or employee of the civil service shall be removed or suspended except for cause as provided by law." Consistently, Section 46 (a) of the Civil Service Law provides that "no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law after due process." Our Constitution, in using the expressions "all workers" and "no officer or employee," puts no distinction between a probationary and a permanent or regular employee which means that both probationary and permanent employees enjoy security of tenure. Probationary employees enjoy security of tenure in the sense that during their probationary employment, they cannot be dismissed except for cause or for failure to qualify as regular employees. This was clearly stressed in the case ofLand Bank of the Philippines v. Rowena Paden, [7] where it was written: To put the case in its proper perspective, we begin with a discussion on the respondent's right to security of tenure. Article IX (B), Section 2(3) of the 1987 Constitution expressly provides that "[n]o officer or employee of the civil service shall be removed or

suspended except for cause provided by law." At the outset, we emphasize that the aforementionedconstitutional provision does not distinguish between a regular employee and a probationary employee . In the recent case of Daza v. Lugo [8] we ruled that: The Constitution provides that "[N]o officer or employee of the civil service shall be removed or suspended except for cause provided by law." Sec. 26, par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states: All such persons (appointees who meet all the requirements of the position) must serve a probationary period of six months following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period; Provided, That such action is appealable to the Commission. Thus, the services of respondent as a probationary employee may only be terminated for a just cause, that is, unsatisfactory conduct or want of capacity. [Emphasis supplied] x x x. X x x the only difference between regular and probationary employees from the perspective of due process is that the latter's termination can be based on the wider ground of failure to comply with standards made known to them when they became probationary employees." The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended. [9] Further, well-entrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee

assumes a position in the civil service under a completed appointment, he acquires a legal, not merely 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 the appointment, or by removal, except for cause, and with previous notice and hearing.[10] While the CSC contends that a probationary employee does not enjoy security of tenure, its Omnibus Rules recognizes that such an employee cannot be terminated except for cause. Note that in the Omnibus Rules it cited,[11] a decision or order dropping a probationer from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period "is appealable to the Commission." This can only mean that a probationary employee cannot be fired at will. Notably, jurisprudence has it that the right to security of tenure is unavailing in certain instances. InOrcullo Jr. v. Civil Service Commission, [12] it was ruled that the right is not available to those employees whose appointments are contractual and co-terminous in nature. Such employment is characterized by "a tenure which is limited to a period specified by law, or that which is coterminous with the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made."[13] In Amores M.D. v. Civil Service Commission, [14] it was held that a civil executive service appointee who meets all the requirements for the position, except only the appropriate civil service eligibility, holds the office in a temporary capacity and is, thus, not entitled to a security of tenure enjoyed by permanent appointees. Clearly, Magnaye's appointment is entirely different from those situations. From the records, his appointment was never classified as co-terminous or contractual. Neither was his eligibility as a Utility Worker I challenged by anyone. In support of its position that an appointee cannot lawfully invoke the right to a security of tenure during the probationary period, petitioner CSC banked on the case of Lucero v. Court of Appeals and Philippine National Bank. [15] This case is, however, not applicable because it

refers to a private entity where the rules of employment are not exactly similar to those in the government service. Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states: (1) Appointment through certification.--An appointment through certification to a position in the civil service, except as herein otherwise provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles, and who meets all the other requirements of the position. All such persons must serve a probationary period of six months following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period: Provided, That such action is appealable to the Commission. While unsatisfactory conduct and want of capacity are valid causes that may be invoked for dismissal from the service,[16] the CA observed that the Memorandum issued by Mayor Bendaa terminating Magnaye's employment did not specify the acts constituting his want of capacity and unsatisfactory conduct. It merely stated that the character investigation conducted during his probationary period showed that his employment "need not be necessary to be permanent in status."[17] Specifically, the notice of termination partly reads: You are hereby notified that your service as Utility Worker I, this municipality under six (6) month probationary period, is considered terminated for unsatisfactory conduct or want of capacity, effective August 14, 2001. You are further notified that after a thorough character investigation made during your such probationary period under my administration,

your appointment for employmentneed not be necessary to be automatically permanent in status.[18] This notice indisputably lacks the details of Magnaye's unsatisfactory conduct or want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by CSC Memorandum Circular No. 12, Series of 1994), provides: 2.2. Unsatisfactory or Poor Performance xxx b. An official who, for one evaluation period, is rated poor in performance, may be dropped from the rolls after due notice. Due notice shall mean that the officer or employee is informed in writing of the status of his performance not later than the fourth month of that rating period with sufficient warning that failure to improve his performance within the remaining period of the semester shall warrant his separation from the service. Such notice shall also contain sufficient information which shall enable the employee to prepare an explanation. [Emphasis and underscoring supplied] Magnaye asserts that no performance evaluation was made between March 2001 when he was hired by Mayor Rosales until August 14, 2001 when his services were terminated by Mayor Bendaa.[19] It was only on July 29, 2003, at Mayor Bendaa's behest, that his two supervisors prepared and submitted the evaluation report after the CSCRO-IV directed him to file an answer to Magnaye's appeal.[20] This has not been rebutted. It being not disputed, it was an error on the part of the CSCRO-IV to rely on such belated performance appraisal. Common sense dictates that the evaluation report, submitted only in 2003, could not have been the basis for Magnaye's termination. Besides, Mayor Bendaa's own assessment of Magnaye's performance could not have served as a sufficient basis to dismiss him because said mayor was not his immediate superior and did not have daily contacts with him. Additionally, Mayor Bendaa terminated

his employment less than one and one-half months after his assumption to office. This is clearly a short period within which to assess his performance. In the case of Miranda v. Carreon, [21] it was stated: The 1987 Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law." Under the Revised Administrative Code of 1987, a government officer or employee may be removed from the service on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not define and delineate the concepts of these two grounds, however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds for dismissing a government officer or employee from the service. Among these grounds are inefficiency and incompetence in the performance of official duties. In the case at bar, respondents were dismissed on the ground of poor performance. Poor performance falls within the concept of inefficiency and incompetence in the performance of official duties which, as earlier mentioned, are grounds for dismissing a government official or employee from the service. But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary period of six (6) months for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires enough time on the part of his immediate superior within which to observe his performance. This condition, however, was not observed in this case. x x x. [Emphasis and underscoring supplied] The CSC is the central personnel agency of the government exercising quasi-judicial functions.[22] "In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion."[23] The standard of substantial evidence is satisfied when, on the basis of the evidence on record, there is reasonable ground to believe that the person terminated was evidently wanting in capacity and had unsatisfactory conduct. In this case, the evidence against Magnaye was woefully inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman Patricia Sto. Tomas [24]that the prohibition in Article IX (B) (2) (3) of the Constitution against dismissal of a civil service officer or employee "except for cause provided by law" is a guaranty of both procedural and substantive due process. Procedural due process requires that the dismissal comes only after notice and hearing,[25]while substantive due process requires that the dismissal be "for cause."[26] Magnaye was denied procedural due process when he received his notice of termination only a day before he was dismissed from the service. Evidently, he was effectively deprived of the opportunity to defend himself from the charge that he lacked the capacity to do his work and that his conduct was unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa that he could have opposed. He was also denied substantive due process because he was dismissed from the service without a valid cause for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct. Thus, we reject petitioner's argument that the CA erred when it acted upon the erroneous remedy availed of by respondent when he filed a petition for review considering that the assailed decision is not in the nature of "awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasijudicial functions" as prescribed under Rule 43 of the Rules of Court. While Sections 71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil Service [27] provide for the remedy of an appeal from decisions of its regional offices to the Commission proper, Magnaye's petition to the CA comes under the exceptions to the doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v. Lacap, [28] where a violation of due process is listed to be among the noted exceptions to the rule. As discussed above, Magnaye's dismissal was tainted with irregularity because the notice given to him comes short of the notice contemplated by law and jurisprudence. The CA correctly exercised jurisdiction over this case where standards of due process had been patently breached.

Having been illegally dismissed, Magnaye should be reinstated to his former position without loss of seniority and paid backwages and other monetary benefits from the time of his dismissal up to the time of his reinstatement. In our decision in Civil Service Commission v. Gentallan, [29] we ruled that for reasons of justice and fairness, an illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of his illegal dismissal until his reinstatement because he is considered as not having left his office. WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the Court of Appeals and its June 11, 2008 Resolution denying the motion for reconsideration in CA-G.R. No. SP No. 85508 areAFFIRMED. National Housing Corp. v. Juco, 134 SCRA 172 (1985) F: Juco was an employee of the NHA. He filed a complaint for illegal dismissal w/ MOLE but his case was dismissed by the labor arbiter on the ground that the NHA is a govt-owned corp. and jurisdiction over its employees is vested in the CSC. On appeal, the NLRC reversed the decision and remanded the case to the labor arbiter for further proceedings. NHA in turn appealed to the SC ISSUE: Are employees of the National Housing Corporation, a GOCC without original charter, covered by the Labor Code or by laws and regulations governing the civil service? HELD: Sec. 11, Art XII-B of the Constitution specifically provides: "The Civil Service embraces every branch, agency, subdivision and instrumentality of the Government, including every government owned and controlled corporation. The inclusion of GOCC within the embrace of the civil service shows a deliberate effort at the framers to plug an earlier loophole which allowed GOCC to avoid the full consequences of the civil service system. All offices and firms of the government are covered. This consti provision has been implemented by statute PD 807 is unequivocal that personnel of GOCC 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 cases involving private firms taken over by the government in foreclosure or similar proceedings. xxx For purposes of coverage in the Civil Service, employees of govtowned or controlled corps. whether created by special law or formed as subsidiaries are covered by the Civil Service Law, not the Labor Code, and the fact that pvt. corps. owned or controlled by the govt may be created by special charter does not mean that such corps. not created by special law are not covered by the Civil Service. xxx The infirmity of the resp'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 Consti. It would be possible for a regular ministry of govt to create a host of subsidiary corps. under the Corp. Code funded by a willing legislature. A govt-owned corp. could create several subsidiary corps. These subsidiary corps. would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Dec. and the regulations of the COA. Their incomes would not be subject to the competitive restraint in the open market nor to the terms and conditions of civil service employment. Conceivably, all govt-owned or controlled corps. could be created, no longer by special charters, but through incorp. under the general law. The Constitutional amendment including such corps. in the embrace of the civil service would cease to have application. ------------------------------------------------------------------------------------METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), petitioner, vs. HON. BIENVENIDO S. HERNANDEZ, Labor Arbiter, NATIONAL LABOR RELATIONS COMMISSION, LEMUEL B. ALEGADO, DANILO S. LOPEZ, FORTUNATO L. MADRONA, ETC., ET AL., respondents.

Ariel F. Aguirre for petitioner. Celso A. Fernandez for private respondents.

NARVASA, J.: Petitioner Metropolitan Waterworks and Sewerage System (MWSS) was haled before the Arbitration Branch, National Capital Region of the National Labor Relations Commission on charges of willfull failure to pay wage differentials, allowances and other monetary benefits to its contractual employees numbering 2,500 or so. 1 In answer, MWSS assessed that: (1) it "is a government-owned and controlled corporation and therefore ... (the NLRC) has no jurisdiction over the ... case", and (2) assuming the contrary arguendo, "the terms and conditions of the complainants who are all contractual employees are governed by their respective contracts. 2 On June 5, 1985, judgment was rendered by the labor Arbiter to whom the case was assigned, adverse to MWSS. As regards the claim of MWSS of lack of jurisdiction in the NLRC over the case, the Arbiter made the following observations: ... This Commission agree (sic) with the respondent that if the complainants are regular employees of MWSS, it being a government owned and controlled corporation, said employees are within the mantle of the civil service rules and regulations, their salaries are standardized by the National Assembly, then this Commission has no jurisdiction in the case. 3 ... (But an examination of the records shows) ... that complainants are not a regular employee of the respondent MWSS, but one of a hired workers or employees for limited period, that is upon completion of the project for which they were hired, they can be removed by the

respondent, because there is no more work or the contract has already been terminated (Sic). 4 The proferred deduction: while controversies respecting terms and conditions of employment between MWSS and its regular employees are not within the jurisdiction of the NLRC, said controversies do fall within the competence of the NLRC if they involve nonregular or contractual employees of the MWSS. Anent the second argument of MWSS which the Arbiter understands to be "that the contract of employment by the complainants ... is governed by their contract, (and) it is therefore incumbent for the respondent 5 to be governed and to comply with their contract, 6 he has this to say: Respondent (MWSS) is citing Article 277 of the Labor Code to vouchsafe (sic) its contention about the lack of jurisdiction of the NLRC. The provision, however, refers to the governance of the Civil Service Law vis-avis the terms and conditions of government employees, those of government corporations included. The complaint is not such a case as it is for monetary claims about which the Civil Service Decree, PD 807 does not provide. In fact, the last provision of Article 277 shows the ever protection (sic) by the State through the Code of the workers' right to due wages and other benefits by enjoining not to reduce the privileges being enjoyed by workers at the time of the adoption of the Code. 7 The propounded deduction: The Civil Service Decree applies to employees in government corporations in all matters except "monetary claims"; as regards the latter, it is the Labor Code that governs. It is to invalidate the decision of the Labor Arbiter as well as a subsequent order directing execution thereof 8 and all other proceedings in the case 9 that MWSS has come to this Court on certiorari and prohibition.

Evidently, the case turns upon the question: Are employees of the MWSS covered by the Labor Code or by laws and regulations governing the civil service? That question, framed in Identical terms save only that it had reference to another entity, the National Housing Corporation, has already been answered by this Court. In National Housing Corporation vs. Juco, 10 this Court ruled that 1) "The NHC is a one hundred percent (100%) government-owned corporation ...; 11 2) "There should no longer be any question at this time that employees of goverment-owned or controlled corporations are governed by the civil service law and civil service rules and regulation "; 12 and 3) "The decision of the Labor Arbiter dismissing the case (filed against the NHC by an employee) for lack of jurisdiction" was correct. 13 Now, the character of the MWSS as a government-owned or controlled corporation is not contested; it is, in any case, a proposition that cannot be gainsaid. Republic Act No. 6234 created it as a "government corporation to be known as the Metropolitan Waterworks and Sewerage System." As in the case of the National Housing Authority, therefore, employment in the MWSS is governed not by the Labor Code but by the civil service law, rules and regulations; and controversies arising from or connected with that employment are not cognizable by the National Labor Relations Commission. The argument of the Labor Arbiter that it is only disputes between the MWSS and its regular employees that are beyond the jurisdiction of the NLRC, not those between it and its "non-regular or contractual" employees, is sophistical. There is no legal or logical justification for such a distinction. Indeed, it is ruled out by the fact that positions in the civil service are classified into career and non-career service, 14 and that the non-career service includes inter alia-

... Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skin not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency. 15 The Labor Arbiter's other postulation, that the Civil Service Law governs employment in the MWSS in all aspect except "monetary claims," and that as to the latter, it is the Labor Code that applies, is even more patently illogical and deserves no confutation. But even more fallacious, almost unintelligible, is private respondents' contention that they "are not employees of Metropolitan Waterworks and Sewerage System (MWSS)"; 16 and "not being employees of the petitioner ... (MWSS) ... this case therefore lies within the National Labor Relations Commission (NLRC) through Arbiter Bienvenido Hernandez." 17 Such a contention also does not merit refutation As absurd and as undeserving of response, too, is the claim that "Existence of employer-employee relationship (between the MWSS and an individual) is not per se equivalent to being a government employee." 18 Arguments such as these, and the fractured syntax by which they are tendered, should really have no place in a judicial record. They cannot persuade; they do but irritate. What is worse, they produce much waste of valuable time. They are symptomatic of defects in the training and appointing processes which must be remedied. WHEREFORE, the Decision of the Labor Arbiter dated June 5, 1985 and his Order of July 8, 1985, having been rendered without jurisdiction, are hereby declared void and set aside. Said Labor Arbiter is enjoined to take no further action on Case No. NCR-9-3164-84 save to dismiss the same. Costs against private respondents.

Quimpo v. Tanodbayan, 146 SCRA 137 -- Tanodbayan Has Jurisdiction over all Government Owned Firms Regardless of How Organized. F: F. Quimpo filed a complaint w/ the Tanodbayan (TB) charging G. Dimaano and D. Remo, manager and analyst of Petrophil, w/ viol. of RA 3019 for their refusal to pay Quimpo's fees as surveyor. The TB dismissed the complaint, however, on the ground that his jurisdiction extended only to govt owned corps. 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 for certiorari, 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 the jurisdictional 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 a GOCC, PETROPHIL became a subsidiary of PNOC and thus shed-off its private status. It is now funded and owned by the government as in fact, it was acquired to perform functions related to governmental programs and policies on oil. It was acquired not temporarily but as a permanent adjunct to perform essential government related functions. ------------------------------------------------------------------------------------G.R. No. L-41966 January 8, 1987 PHILIPPINE AIR LINES EMPLOYEES' ASSOCIATION, as assignee of the rights and causes of action of the employees of the Philippine Air Lines, Inc., petitioner, vs. THE COURT OF FIRST INSTANCE OF RIZAL, BRANCH XI,

PHILIPPINE AIR LINES, INC., GOVERNMENT SERVICE INSURANCE SYSTEM and SOCIAL SECURITY SYSTEM, respondents.

sue in the Court of First Instance. In view of an adverse judgment against it, petitioner elevated the case before this Court. We find the petition devoid of merit. While it is true that in the case of Philippine Air Lines Employees Association v.

PARAS, J.: The principal issue in this petition (submitted for decision in Our Resolution dated February 7, 1977) is whether or not the Philippine Air Lines (PAL) was a government controlled corporation from 1957 to September 7, 1964. If so, the petitioner's assignors (employees of the corporation) would be given the rights of government employees as members of the Government Service Insurance System (GSIS); if not, the PAL would be regarded as a private corporation and its employees would be members of the Social Security System (SSS). The pertinent undisputed facts indicate that PAL was originally organized under the Corporation Law as a private corporation formed for profit; that in 1949 the National Development Corporation (NDC), a government owned and controlled corporation acquired 55% of PAL's capital stock; that on October 25, 1955, the then Department of Justice rendered an opinion declaring PAL NOT to be a government controlled corporation 1 within the purview of Commonwealth Act No. 186; that PAL was then ordered to be a member of the SSS; that PAL paid its contributions (as employer) to the SSS from September, 1957 to September 7, 1964; that its employees likewise paid their contributions for the same period to the SSS, that all the while PAL and its employees entered into collective bargaining agreements with each other; that during this period the PAL employees also enjoyed sickness, disability, retirement and death benefits from the SSS, including salary, educational, and housing loans. In 1968 PAL's employees demanded from PAL and the GSIS payment of sick and vacation leave benefits pursuant to the provisions of Commonwealth Act No. 186, (benefits accruing from September 1957 to September 7, 1964) on the ground that PAL was covered by CA No. 186; that both PAL and the GSIS virtually refused to accede to the demand, prompting petitioner (as assignee of the PAL employees) to

MISSING PARAGRAPH!!! Philippine Air Lines, Inc., (11 SCRA 387, 396-397), We ruled that PAL is/was a government controlled corporation, this was only for the purpose indicated in R.A. 1880. For the instant case however, and considering the circumstances attendant thereto, it is clear that PAL is not a government controlled corporation within the contemplation of R.A. 186. Be it noted that PAL during the covered years was a member of the SSS and its employees were recipients of SSS benefits. For petitioners to now claim additional 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 hereby AFFIRMED. SO ORDERED. Delos Santos v. Mallare G.R. No. L-3881 August 31, 1950 Tuason, J. Facts: Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an ad interimappointment by the President to the same position, after which, on June 3, the Undersecretary of the

Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings. Issue: whether or not the removal of the petitioner from his present position for assignment to another position violates Section 4, Article XII of the 1935 Constitution which provides that "No officer or employee in the Civil 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 and subdivisions 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 only according to merit and fitness, to be determined as far as practicable by competitive examination." Section 670 of the Revised Administrative Code provided that "Persons in the Philippine civil service pertain either to the classified service," and went on to say that "The classified service embraces all not expressly declared 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 the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the

government whose appointments are by law vested in the President of the Philippines alone." Three specified classes of positions policy-determining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. None of these exceptions obtain in the present case. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical. A confidential position denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any of its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by nontechnical men possessing executive ability. Medalla vs Sayo 103 SCRA 587

G.R. No. L-52091 March 29, 1982 TERESO V. MATURAN, petitioner-appellant, vs. Mayor SANTIAGO MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO DUTERTE, Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN LEYTE, respondents-appellees.

Police Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations pursuant to the Letter of Instruction No. 14 of the President of the Philippines. Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on January 19, 1973 and petitioner was accordingly informed thereof. In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that Letter of Instruction No. 14 does not apply to him. In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and November 5, 1973, respectively. In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner that due to the dismissal of the aforesaid criminal cases, the latter's preventive suspension has been lifted and petitioner was directed to report for duty to his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of Police Francisco Duterte refused to accept the former in the police force. Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply letter dated August 13, 1974 the Deputy Executive Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of his suspension as directed in the National Police Commission's letter dated January 12, 1974 is no longer feasible, the same having been rendered moot and academic; that said office had occasion to rule that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to include both local and national officials. Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May 21, 1974 petitioner filed a petition for mandamus with claim for back salaries, traveling expense and

DE CASTRO, J.: This case was certified to this Court by the Court of Appeals pursuant to its resolution dated October 30, 1979, the issue raised herein being purely legal, which is the interpretation of Presidential Decree No. 12A and Letter of Instruction No. 14 in relation to the present case. Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965 with a compensation of P540.00 per annum. On October 1, 1967 he was promoted to the rank of police sergeant at P720.00 per annum. On October 8, 1968 and July 1, 1969 petitioner's salary was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was renewed. Likewise on July 1, 1971 his provisional appointment was renewed with an increase in pay in the amount of P2,640.00 per annum. On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from office because of two pending criminal cases against him, namely Criminal Case No. 236, for falsification of public document by making untruthful statement in the narration of facts, and Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent Vice-Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together with Chief of

damages before the Court of First Instance of Southern Leyte, Branch III. It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of paragraph 7 of Presidential Decree No. 12-A which provides: 7. Members of the police force who have been preventively suspended shall, upon exoneration be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension; that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A which was promulgated on October 4, 1972 and which governs policemen with pending cases; and that Letter of Instruction No. 14 under whose provisions petitioner was made to resign is not applicable to policemen. In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely entered in his duly sworn information sheet that he is a high school graduate of the University of Manila during the school year 1954-55, but in his Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he feloniously alleged and/or entered therein that he is a graduate of the Pana-on Academy in the school year 1950-51 when in truth he was only a second year high school student; that petitioner, who has voluntarily resigned, needs a new appointment and has to meet the qualifications required by law among which, are, that he must be at least a high school graduate and not over 33 years of age; that petitioner falls short of these requirements; and that petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes got drunk while on duty. On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement is not the proper remedy. The

court also said that the evidence of conflicting entries on petitioner's two information sheets have not been denied or rebutted, hence the preponderance of evidence is against the petitioner that he is not a high school graduate, as he could not have graduated in two high schools, one in the University of Manila during the school year 1954-55 and the other at the Pana-on Academy during the school year 1950-51. Lastly, the trial court ruled that since all petitioner's appointment were provisional, he can be removed at any time by the appointing power, Mayor Maglana. On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of respondents to submit their brief, the case was submitted for decision on November 16, 1976. Petitioner made the following assignment of errors: FIRST ERROR THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE LEGAL AND VALID; SECOND ERROR THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR MAGLANA; THIRD ERROR

THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY; and FOURTH ERROR THE COURT BELOW ERRED IN DISMISSING THIS CASE AND DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND TRAVELING EXPENSES. Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the power to dismiss or remove a member of the police force has been transferred from the Mayor to the Police Commission. Hence, the acceptance of petitioner's resignation by respondent Mayor on January 19, 1973 is null and void because the latter is no longer clothed with authority to dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses that Letter of Instruction No. 14 under whose provisions he was made to resign is not applicable to him as said Instruction covers only officials and employees with pending cases excluding policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained on October 10, 1974 to justify his reappointment. Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation Boards in the Police Commission to review and dispose of all administrative cases of city and municipal forces referred to the Commission. On October 4, 1972 Presidential Decree 12-A was promulgated providing for the procedure to be followed in case an administrative charge is filed against any member of the local police agency or when a member of the police force is accused in court of any felony or violation of law. Nowhere in the provisions of said Presidential Decrees show that the power to dismiss or remove has been transferred from the Mayor to the Police Commission as contended by petitioner. It was only on August 8, 1974

when such power was removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal police forces in an the municipalities of the province of Southern Leyte. Presidential Decree No. 531 states: SEC. 6. Power of administrative control and supervision. Administrative control and supervision over the several police and fire departments and jails composing each of the Integrated Police Forces herein constituted shall, prior to the transfer provided for in Section 7 hereof, remain with the offices, agencies and officials in which said power is vested in accordance with existing laws; ... Accordingly, administrative matters, such as appointment promotion suspension separation and other disciplinary action ... and such other matters pertaining to personnel administration which are currently vested in and exercised by other officials pursuant to existing laws, rules and regulations shall remain with said officials, ... SEC. 7. Administrative control and supervision to be transferred to the Philippine Constabulary. After one year, but not later than two years, from the effectivity of this Decree, the power and administrative control and supervision provided for in Section 6 hereof shall be taken over and exercised by the Philippine Constabulary. ... It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on January 19, 1973 the latter still had the power to dismiss or remove the former. Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service eligibility for any position in the government. Such lack of a civil service eligibility makes his appointment temporary 1 and without a definite term and is dependent entirely upon the pleasure of the appointing power. 2 Although

indicated as provisional and approved under Section 24 (c) 3 of Republic Act 2260 the petitioner's appointment did rot acquire the character of provisional appointment because of his lack of appropriate civil service eligibility for the position of municipal policeman. The Civil Service Commission cannot even legally approve his appointment as provisional as this act would constitute an unwarranted invasion of the discretion of the appointing power. 4 If the approval of his appointment as provisional under Section 24 (c) of Republic Act 2260 did not make it so, the fact remains that his appointment was temporary which could be terminated without any need to show that the termination was for cause. 5 The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of no moment. At the time he received his appointment, as aforestated, petitioner had no eligibility. As such what is required is a new appointment, not merely reinstatement. But even then, he cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary and the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position filled. 6

GUTIERREZ, JR., J.: All persons appointed to positions covered by the civil service law are required by regulation to accomplish an information sheet on the prescribed form. The information sheet provides in summary outline the personal date, eligibilities, education, experiences, and other qualifications of the appointee. Included in the information sheet is a query on any criminal records of the applicant, which in later versions of the prescribed form asks if he has ever been arrested, indicted, or convicted of any crime or accused in any administrative proceeding. The issue in this petition for review is whether or not a person otherwise qualified but who admits having violated a city ordinance on jaywalking and another ordinance requiring a cochero to occupy only the seat intended for a cochero in a calesa is disqualified for appointment to the Quezon City Police Force. Petitioner Ernesto M. de Guzman was appointed patrolman in the Quezon City Police Department by Mayor Norberto S. Amoranto on August 16, 1965. He was a civil service eligible having taken and passed the civil service patrolman's examination given on November 24, 1962. He had also passed the usual character investigation conducted before appointment. As a newly appointed patrolman, the petitioner went through and successfully completed the police training course. On March 21, 1966, the petitioner's appointment was forwarded to the Commissioner of Civil Service. On August 18, 1966, or a year after the appointment and with no action on the appointment papers being taken by the respondent commissioner, the respondents city treasurer and city auditor stopped the payment of the petitioner's salaries. On May 12, 1967, the respondent commissioner returned the Petitioner's appointment papers, without action thereon, to the respondent mayor on the ground that Mr. de Guzman was disqualified for appointment under Republic Act No. 4864, the Police Act of 1966, which provides:

G.R. No. L-31683 January 31, 1983 ERNESTO M. DE GUZMAN, petitioner, vs. HON. ABELARDO SUBIDO, as Civil Service Commissioner, HON. NORBERTO AMORANTO, as Mayor of Quezon City, ET AL., respondents. Juan T. David for petitioner. Jose Torcuator for respondents.

(d) SEC. 9. General Qualifications of Appointment. No person shall be appointed to a local police agency unless he possesses the following qualifications: xxx xxx xxx (5) He must have no criminal record.'(SEC. 9 (5), Police Act of 1966) The above finding was based solely on the petitioner's own answer to question No. 15 in the information sheet: 15. Have you been accused, indicted, or tried for the violation of any law, ordinance, or regulation, before any court or tribunal? The answer given by the petitioner was: Yes. Jaywalking-paid fine P5.50; Municipal O.d. (Mla.) Sect. 1187 (cochero) paid fine of P5.00. On September 7, 1967, the petitioner filed a petition for certiorari and mandamus with preliminary mandatory injunction with the Court of First Instance of Rizal, Branch V at Quezon city. On May 29, 1969, the lower court rendered a decision dismissing the petition. 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. The issue posed in this petition is presented by Mr. de Guzman, thus: Whether or not violations and/or convictions of municipal ordinances, one, for 'Jaywalking' and the other, Manila Municipal Ordinance No. 1187, prohibiting the cochero from 'occupying any part of the vehicle except the seat reserved for him', constitute

'CRIMINAL RECORD' to disqualify the petitioner under the Police Act of 1966 (Rep. Act No. 4864) from appointment to the Quezon City Police Force. We are constrained to grant the petition. The former Civil Service Act, Republic Act No. 2260, as amended, stated in its Section 23 that opportunity for government employment shag be open to all qualified citizens and positive efforts shall be exerted to attract the best qualified to enter the service. The same policy is reiterated in the Civil Service Decree, Presidential Decree No. 807, at Section 19, which superseded Republic Act No. 2260. The requirements for applicants to a policeman's position may be quite stringent but the basic policy of attracting the best qualified is not served by automatically excluding any person who in an absent minded mood or while hurrying to an urgent appointment may unwittingly have crossed a street or stepped down from the curb in violation of a jaywalking ordinance. The same thing is true of a person who may have worked his way through college as a cochero and, who, pitying his horse struggling up an incline or a bridge, leaves his seat to stand after and forward to balance the calesa load or who, alone on his way home, sits in the seat intended for passengers only to be fined for violating an obscure municipal ordinance. The petitioner cites decisions of American courts in support of his arguments: By weight of authority, the violation of a municipal ordinance, enacted by a city under legislative authority, as in the case of ordinances prohibiting and punishing gaming and the keeping of gaming houses, etc., is not a crime, in the proper sense of the term, for such ordinances are not public laws, and the punishment for their violation is imposed by the state.'(Withers v. State, 36 Ala. 252; City of Greely v. Hamman, 12 Cole., 94, 20 Pac. 1; Williams v. Augusta, 4 Ga. 509) as cited on p. 7, Francisco's Revised Penal Code, Book One, 3rd Edition.

xxx xxx xxx The common-law definition of a 'crime' as given by Blackstone, is 'an act committed or omitted in violation of a public law,' ... giving the accused the right to be heard in all 'criminal prosecutions' relates exclusively to prosecution for violation of public laws of the state, and a city ordinance is not a public law of the state, but a local law of the particular corporation, made for its internal practice and good government. (Castillo [should be Costelo] v. Feagin, 50 South 134, 135, 162 Ala. 191) There are other federal decisions which state that prosecutions to enforce penalties for violations of municipal ordinances are not criminal prosecutions and the offenses against these ordinances are not criminal cases. (City of Mobile v. McCown, Oil Co., 148 So. 402, 405; City of Mankato v. Arnold, 30 N.W. 305, 306; Village of Litchville v. Hanson, 124 N.W. 1119, 1120). We do not go so far as to sustain the arguments that only violations of statutes enacted by the national legislature can give rise to "crimes" or "a criminal record" as these terms are used in our law on local governments or the law of public officers. However, we take cognizance of the distinction in the law of municipal corporations which distinguishes between acts not essentially criminal relating to municipal regulations for the promotion of peace, good order, health, safety, and comfort of residents and acts in, intrinsically punishable as public offenses. (See cases cited in Dillon, A Treatise On The Law of Municipal Corporations, Vol. II, 5th Edition, Sections 745, 746, and 749.) A penalty imposed for the breach of a municipal regulation is not necessarily an exercise of the sovereign authority, to define crimes and provide for their punishment, delegated to a local government. In many cases, the penalty is merely intended not to render the ordinance inoperative or useless. The phrase "criminal record" governing qualifications for appointments could not have been intended by the legislature to automatically cover every violation of a municipal or city ordinance

carrying a sanction of a nominal fine to enforce it. A violation of a municipal ordinance to qualify as a "crime" must involve at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of the public office. Automatic and perpetual disqualification of a person who in one unguarded moment threw a cigarette butt on the street, spat in public, deposited house garbage in a market receptacle for garbage, exceeded the speed limit for vehicles. blew his car horn near a school or hospital, or, as in this case, jaywalked, and who has paid the fine imposed by ordinance as commensurate deterrence for the act, would be unreasonable, if not oppressive. Respondent Subido should have gone deeper into the nature of the petitioner's acts instead of taking every "Yes" answer in Question 15 of the information sheet as an automatic disqualification. Under Rule VI of the Civil Service Rules and Regulations, the respondent commissioner had 180 days from receipt of the appointment papers to act on them. Inaction means the appointment is approved as properly made. The papers were returned more than a year by the commissioner after he received them.1wph1.t The appointment, not having any defect of record except the matter in issue in this case, must be deemed complete and properly made after the 180 days period. The termination of the petitioner's services was, therefore, an illegal and invalid removal. The petitioner should be reinstated, assuming he meets the physical and other requirements of the Integrated National Police under the new legislation and procedures governing police forces. In addition to being paid any salaries for services actually rendered but not paid, the petitioner, following the formula in cases of illegal dismissals is entitled to five years backpay (Cristobal v. Melchor, 78 SCRA 175,187). WHEREFORE, the decision of the court a quo is set aside. The Integrated National Police and the respondent officials are directed to reinstate the petitioner to the Quezon City Police Force provided he meets the age, physical, and other qualifications and eligibilities for patrolman under present legislation and rules. The city government of

Quezon City and the incumbent Mayor, Treasurer, and Auditor of the city are ordered to pay the petitioner any unpaid services and allowances for services actually rendered and five years backpay from the date his services were actually terminates. G.R. No. 80455-56 April 10, 1989 CENTRAL BANK OF THE PHILIPPINES and ANGELA P. JORDAN, petitioners, vs. CIVIL SERVICE COMMISSION and BASILAO E. BORJA, respondents.

certified her for promotion to the position of Assistant Bank Physician and submitted the proposal to the Office of the Governor of the Central Bank. On the other hand, it appears that as early as July, 1984, respondent Borja filed an application for the position of Medical Director in the Central Bank. His papers were acted upon by the Promotions Board and he was considered for the position of Physician (Salary Grade 16). The bank approved the Board's proposal in a Resolution dated October 5, 1984. 3 On October 9, 1984, respondent Borja reported for duty. On October 15, 1984, he was issued his appointment as Physician. On January 2, 1985, the promotion of Dr. Jordan to Assistant Bank Physician was approved by the Senior Deputy Governor of the Central Bank under Personnel Action No. 001, Series of 1985. 4 On January 10, 1985, Dr. Jordan was designated to act as Assistant Bank Physician. On January 30, 1985, she was issued an appointment as Assistant Bank Physician to take effect January 2, 1985. On February 15, 1985, private respondent contested Dr. Jordan's appointment claiming that he was the next-in-rank employee and that he was more qualified than she. On May 16, 1985, the Bank dismissed the protest on the grounds that the protest was filed beyond the reglementary period; that protestant is not the next in-rank employee as regards the contested position and, as such, he was no legal personality to file the protest; and, that the protestee 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 to the Governor, in an undated petition for reconsideration, prayed that the MSB decision be set aside and that 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 to the contested position.

GANCAYCO, J.: May the Civil Service Commission disapprove an appointment and require the appointment of another person whom it believes is more qualified for the position? This is the primordial issue addressed in this petition for certiorari brought to this Court by the petitioners Dr. Angela 0. Jordan ** and the Central Bank of the Philippines under Section 7, Paragraph A, Article IX of the 1987 Constitution. They are questioning Resolution Nos. 87-156 1and 87-375 2 of the Civil Service Commission dated May 26, 1987 and October 16, 1987, respectively. The questioned resolutions directed the immediate revocation of the appointment of Dr. Angela P. Jordan to the position of Assistant Bank Physician of the Central Bank of the Philippines and the issuance of an appointment in favor of herein private respondent, Dr. Basilio E. Borja to the said position. On October 3, 1984, the Promotions Board of the Central Bank, with a representative of the Civil Service Commission in attendance, deliberated on the filling up of the vacant position of Assistant Bank Physician of the Central Bank of the Philippines (Salary Grade 22). It found Dr. Jordan, who then had the rank of Coordinating Assistant (Salary Grade 20) as the only next-in-rank employee. After considering further the qualifications of Dr. Jordan, said Board

On March 5, 1987, private respondent appealed to the Civil Service Commission on the grounds that he was denied due process of law inasmuch as he was not furnished a copy of the motion for reconsideration filed by the Bank, and that the decision of the MSB dated January 28, 1987 is contrary to the merit and fitness principles 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 the Governor of the Central Bank for his comment with the request that his comment be transmitted to the Commission within ten (10) days from receipt. Likewise, Dr. Jordan was furnished a copy of the appeal for her to submit her answer/comment thereon within ten (10) days from receipt with a warning that her failure to do so shall be considered a waiver of her right to submit the same. Instead of submitting her comment, 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 appeal on April 1, 1987. However, the Commission denied the motion of Dr. Jordan on the ground that a protest case 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 dated January 28, 1987 and directing the appointment of private respondent to the contested position. On June 10, 1987, the petitioner Central Bank filed a petition for reconsideration that the department head enjoys wide 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 the Central Bank at the time Dr. Jordan was considered for promotion. However, the petitioner's motion for reconsideration was denied by the Commission in Resolution No. 87- 375 dated October 16, 1987 on the sole ground that its Resolution dated May 26, 1987 had become final and executory on account of the failure 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. Jordan inasmuch as the Central Bank has no personality to file a motion for reconsideration as it does not

stand to be 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 in excess of jurisdiction in revoking the appointment of Dr. Jordan and in directing the issuance of the appointment in favor of Dr. Borja when all the while the qualifications of Dr. Jordan were certified by the Promotions Board and a representative of the Civil Service Commission who was present in the deliberations of the same board. Petitioner Bank added that the power of the Commission is limited to determining whether or not the appointee has the appropriate eligibility and qualification and that once such 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 the Merit Systems Board dated October 28, 1986 had already become final and executory for failure of Dr. Jordan to appeal or seek reconsideration within fifteen (15) days from receipt of the said decision citing Section 2, Board Resolution No. Ill in relation to Section 39, Presidential Decree No. 807. The Solicitor General 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 contest the 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. 811329 of the Commission. 8 It is well-settled principle that the appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions. This is a management prerogative which is generally unhampered by judicial intervention. 9 Within the parameters of this principle, the right to select and appoint employees is the prerogative of the employer which may be exercised without being held liable therefor provided that the exercise thereof is in good faith for the advancement of the employer's interest and not for the purpose of

defeating or circumventing the rights of the employees under special laws or under 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 appointment under Section 14 of Republic Act No. 265, as amended, otherwise known as the Central Bank Act. At issue in this petition is the extent of the power of the Civil Service Commission to approve or disapprove a particular appointment. May the Commission revoke an appointment and direct the issuance of the appointment 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 on appointments.12 But the situation has changed under the new law, Presidential Decree No. 807, 13 otherwise known as the Civil Service Decree, wherein the Commission is not authorized to curtail the discretion of the appointing official on the nature or kind of appointment to be extended. 14 The authority of the Commission is limited to approving or reviewing the appointment in the light of the requirements of the law governing the Civil Service. In the case at bar, the qualifications of Dr. Jordan were never disputed. The fact that she was qualified was attested to by the Promotions Board. A representative of the Commission was present in the deliberation of the said board. Private respondent anchors his protest on the ground that he is more qualified than the appointee. It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Laws. 15 The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to 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 the Commission is empowered to approve or disapprove the same, citing Section 9(h) of Article V of the Civil Service Decree and Section 4 of Civil Service Commission Resolution No. 83-343. This is correct As noted earlier, the appointment is subject to verification by the Commission as to whether or not the appointing authority 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 of the appointing power is certainly not contemplated by the law. Section 9(h) of Article V of the Civil Service Decree provides that the Civil Service Commission is authorized to perform the following functions with respect to appointments in the Civil Service, to wit: Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, 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 appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment must be approved; if not it should be disapproved. No other criterion may be employed by the Commission when it acts on an appointment. Thus, when as in this case, it is not disputed that the appointee, Dr. Jordan, is qualified for the contested position, the Commission exceeded its power in revoking her appointment on the ground that private respondent is more qualified. The Commission cannot substitute its will for that of the appointing authority.

It may be true that private respondent has an edge over Dr. Jordan in terms of educational attainment inasmuch as the former holds a postgraduate degree in Medicine from a foreign educational institution and 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 attainment and training experience are just among the factors to be considered in the promotion of its employees. The other 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 she outranks the others in point of experience, rank, salary and service in the Bank. Dr. Jordan holds the degree of Doctor of Medicine and is a graduate of the University of the Philippines. She had been with the Central Bank since September 6, 1976. It appears that during this span of time, she had displayed a high degree of efficiency, 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 her knowledge 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. On the 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 his information 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 her appointment, unlike in the case of the private respondent who held the position of bank physician is devoid of merit. The position of coordinating assistant which was held by Dr. Jordan prior to her promotion in the Medical 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 requirements set 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 their fitness to perform the duties and to assume the responsibilities of the position to be filled. 18 As earlier ruled in Reyes vs. Abeleda, 19 at least sufficient discretion, if not plenary, should be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the position to determine who can best fulfill the functions of the office thus vacated. Unless the law speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority. The power of appointment is essentially a political question involving considerations 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 of performance ratings in the case of private respondent, considering his point of service, places the protestee and 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 early as March 23, 1984, which was before the end of the first semester of 1984. Thus, at the time the contested position 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 as Assistant 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 the contested position of Assistant Bank Physician (Salary Grade 22). Private respondent holds the position of Physician (Salary Grade 16) which without doubt is not next in rank to the contested position. As the position of private respondent is not next-in- rank, the Commission should have dismissed his appeal as he had no legal personality to contest the appointment of Dr. Jordan. Only employees who are next-in-rank may protest an appointment. 21 In implementing Section 19 of P.D. No. 807 the Civil Service Commission promulgated 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 is competent and qualified and who feels aggrieved by the promotion of another may file a protest to the ministry or agency head. . . . (Emphasis supplied) The Court takes note that at the time Dr. Jordan was considered and recommended for promotion to the contested position on October 3, 1984, private respondent was not yet an employee of the Central Bank. It was only on October 5, 1984 that he was appointed as physician and he assumed the position only on October 9, 1984. It was, therefore, impossible to consider him for appointment to the contested position before that time. Anent the argument of the respondents that the Central Bank lacks the legal personality to contest the decision of the Commission and hence the decision became final and executory for failure of Dr. Jordan to

file a motion for reconsideration, the Court finds the argument untenable. In an earlier case, 23 this Court held that it is the appointing authority who stands adversely affected where the Civil Service Commission disapproves the appointment made. This rule is acknowledged by the Solicitor General. However, the Solicitor General contradicted himself by insisting that the decision of the MSB dated October 28, 1981 became final and executory for failure of Dr. Jordan to file a motion for reconsideration when all the while the Central Bank filed a timely motion for reconsideration thereof. Petitioner Central Bank, as the appointing authority is the one which can defend its appointment since it knows 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 Commission directed the Central Bank to submit its Comment on the appeal filed by private respondent the Commission must have been aware that the participation of the Central Bank is indispensable. Although the Commission also directed Dr. Jordan to file a separate Comment, it denied the latter's request for an extension of time within which to file the same on the ground that a protest case is not strictly an adversary proceedings where the protestant and the protestee play active roles. The Commission pointed out that a protest case is an action of the protestant against a determination made by the appointing authority, a determination which only the appointing authority could defend inasmuch as it is the latter who knows the reasons for such determination. 24 Thus, for the Commission to say thereafter that the decision became final and executory for failure of Dr. Jordan to appeal is obviously erroneous. As a matter of fact that Commission is now 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 is inconsequential 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. G.R. No. 99391 December 2, 1991 PENDATUN ALIM, petitioner, vs. CIVIL SERVICE COMMISSION, SALVADOR MISON, COMMISSIONER, BUREAU OF CUSTOMS and JESUSA TAGUINOD, respondents. Kamid D. Abdul for petitioner. Albano, Garcia & Diaz Law Offices for private respondent Taguinod.

Customs Appraiser, effective April 15, 1988. Cruz protested her removal and 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 SEPARATEDAS A RESULT OF HIS NOTICES DATED JANUARY 26, 1988. THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW. (Emphasis supplied). Conformably, the Commission issued the following guidelines in its Order dated November 27, 1989: If the reinstatements of some of these officials and employees as indicated in Annex "A" to their old positions are not possible in view of the changes in position title, abolition, upgrading or such other similar changes, the following guidelines shall be observed: xxx xxx xxx 3. Where the position of the appellants have been filled by appointments of new recruits and/or by thepromotion of employees who were retained in the service by the Commissioner of Customs: 3.1. The new recruits so appointed and/or employees who were promoted shall vacate and relinquish said positions and those who were promoted

CRUZ, J.:p This is still another case where the petitioner invokes his security of tenure against what he claims to be an unlawful removal. His contention is that having been granted a permanent promotional appointment, he cannot thereafter be demoted to his original position by the withdrawal of his promotion. The respondents demur, claiming that his appointment was conditional and therefore revocable. There are three employees in this controversy in the Bureau of Customs, namely, Pendatum Alim, the herein 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 and Classification Officer. When the Bureau of Customs was reorganized pursuant to EO 127, Alim was promoted to the position of Principal Customs Examiner, effective March 1, 1988, "subject to the final outcome of the appeal of the adversely affected employees, if any." 1 The position was at the time vacant. Cruz was removed and replaced by Taguinod as Principal

shall be restored to their former or comparable positions. 3.2. The appellants shall be reinstated to their old positions thus vacated. (Emphasis supplied). Cruz was presumably reinstated as Principal Customs Appraiser as we have heard no further complaint from her. But Alim is before us with a grievance. On October 16, 1989, he was returned against his will to his original position of Customs Examiner, retroactive to March 1, 1988. This in effect nullified his earlier promotional appointment as Principal Customs Examiner. Taguinod was not restored to her original position as Valuation and Classification Officer. Instead, she was promoted to Principal Customs Examiner, vice Alim. Alim protested his demolition to Customs Examiner, arguing that this constituted a separation without cause from his permanent position of Principal Customs Examiner. His appeal was dismissed for lack of merit by the respondent Civil Service Commission on June 25, 1990. 3 Reconsideration was denied on April 30, 1991, 4Commission holding as follows: It was explicitly resolved in Our Resolution of June 25, 1990 that the appointment of the Movant as Principal Customs Examiner was conditional and it was made subject to the final outcome of the appeal of those adversely affected employees in the BOC reorganization. Hence, as we stated in the said Resolution, Movant Alim "cannot now question much more refute the decision of the appointing authority demoting him to his former position since the outcome of the case filed by the Customs employees was for them to be reinstated to their former positions". What is involved here is not a simple case of restoring two (2) affected employees to their former respective positions but it involves the issue as to whose promotional appointment, between Alim and Taguinod,

should be upheld in the course of the implementation of the Supreme Court decision in the consolidated BOC cases. Thus, this act of Movant Alim of questioning the appointment of Taguinod to the contested position is tantamount to a protest which has to be resolved in favor of the upholding of the decision of the appointing authority, in the absence of proof that Taguinod is not qualified for the position. The peitioner has come to us for relief. It shall be granted. Alim was appointed to a position that at the time was vacant. There was no other claimant to the position and nobody protested his promotion thereto. Alim was not a party in the Mison cases above referred to, either as petitioner or respondent. The position of Principal Customs Examiner to which he had been promoted was not involved in any way in any of the said cases. The respondents justify Alim's return to his original position as Custom's Examiner on the ground that his promotion as Principal Customs Examiner could be revoked because it was conditional. It is urged that Customs Commissioner was competent to return Alim to his original position as this was only an implementation 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 illegally removed. According to Webster, to reinstate means "to restore to aformer condition or position." This is the ordinary 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 original position of Valuation and Classification Officer, to give way to the reinstatement of Cruz as Principal Customs Appraiser. This was not done, however. Instead,

Taguinod was promoted to the position of Principal 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 her position as Principal Customs Appraiser, and Taguinod, who was promoted to Cruz's position. Yet he became a victim of the reshuffle made by the Customs Commissioner in the implementation of the Mison decision. The respondent Civil Service Commission insists that what is involved in this case is the discretion of the appointing 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, as long as it is exercised properly. 5 However, it must be stressed that this doctrine is applicable only when position in question isvacant. That is not the situation in the case before us. The plain fact is that the petitioner was permanently appointed to the disputed position. The issue facing is not one of discretion. The issue we must resolve is whether the petitioner can be removed as Principal Customs Examiner because the Customs Commissioner now 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 the promotion. It is immaterial that subsequent to the promotion of one employee, the appointing authority has 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 Mison demoted the petitioner from the position of Principal Customs Examiner to which he had been promoted in 1988. No objection to his promotion was raised then; to date in fact no appeal has been made against him by any protesting employee. The condition attached tot he promotion not having occurred and certainly it cannot last for ever that promotion has as a consequence become permanent. The demotion of the petitioner

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 Examiner and cannot now be removed from it to give way to Taguinod's promotion. Even if Commissioner Mison now believes that she is better qualified for that position, that assessment is not reason enough to justify the petitioner's demotion to accommodate her. The injunction of the Constitution is clear and inflexible. The petitioner cannot be removed as Principal Customs Examiner except only for cause as provided by law and as established by preponderant evidence. WHEREFORE, the petition is GRANTED. Petitioner Pendatum Alim is hereby REINSTATED to the position of Principal Customs Examiner in the Bureau of Customs, with back salaries from the date of his removal therefrom until his actual reinstatement. It is so ordered. Marohombsar v. CA 326 SCRA 62 FACTS: Private respondent was first appointed as Technical Assistant. The position was subsequently reclassified and retitled to Executive Assistant II. Since the private respondent did not possess the appropriate civil service eligibility required of the position, she was extended a temporary appointment only. She was later extended a permanent appointment when she acquired a Career Service Professional Eligibility. When petitioner became the President of MSU, private respondent was later dismissed. Petitioner argues that the dismissal was legal since the private respondents appointment lacks the requisite confirmation by the Board of Regents. HELD: Ad interim appointments are permanent but their terms are only until the Board disapproves them. There is absolutely no showing that the Board of Regents disapproved private respondents appointment. Since the private respondent holds an appointment under permanent status, he enjoys security of tenure as guaranteed by law.

G.R. No. 95450. March 19, 1993. HOME INSURANCE AND GUARANTY CORPORATION (HIGC), petitioner, vs. CIVIL SERVICE COMMISSION and DANIEL R. CRUZ, respondents. The Government Corporate Counsel for petitioner. The Solicitor General for public respondents. Jacinto D. Jimenez for private respondents. SYLLABUS 1. CONSTITUTIONAL LAW; CIVIL SERVICE COMMISSION; LEVELS OF POSITIONS IN CAREER SERVICE; POSITIONS IN CAREER EXECUTIVE SERVICE; HOW ENTRANCE TO DIFFERENT LEVELS ACCOMPLISHED; HOW APPOINTMENTS TO CIVIL SERVICE MADE. Presidential Decree No. 807, otherwise known as the "Civil Service Decree of the Philippines," provides the following levels of positions in the career service: (a) the first level which includes clerical, trades, crafts and custodial service positions involving non-professional or sub-professional work in a non-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 and other officers of equivalent ranks as may be identified by the Career Executive Service Board, all of whom are appointed by the President. Entrance to the first two levels shall be through competitive examinations, while entrance to the third level shall 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 fitness to be determined as far as practicable, and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination.

2. ID.; ID.; PERMANENT APPOINTMENT; DEFINED; CIVIL SERVICE ELIGIBILITY; WHEN REQUIRED FOR PERMANENT APPOINTMENT. we agree then with petitioner HIGC that the position of Vice President to which Cruz was formerly appointed belongs to the second level position which under the law includes professional, technical or 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. Entrance to this second level is through competitive examination. In other words, a person occupying a position in this level must possess a civil service eligibility, i.e., he must have obtained a passing grade in a civil service examination, or has been granted a civil service eligibility and whose name is accordingly entered in the register of eligibles. Clearly, eligibility then is a sine qua non to acquiring a permanent appointment, except those positions which are not required by law to be filled with civil service eligibles. A permanent appointment is defined as one issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. In the case before Us, it is not disputed that respondent Cruz is without any civil service eligibility as shown by his appointment papers. As such, respondent Cruz cannot be legally conferred a permanent appointment for the law is clear that career positions, particularly the first and second level positions in the service, require civil service eligibility. 3. ID.; ID.; PERMANENT APPOINTMENT OF NON-CIVIL SERVICE ELIGIBLE TO CAREER POSITION A NULLITY; TEMPORARY APPOINTMENT TERMINATED AT PLEASURE OF APPOINTING POWER. "The permanent appointment of a non-civil service eligible to a career position is, from a legal viewpoint, a nullity. Not even the CSC can validate the error, as it cannot rise higher than the law that created it the same law that requires civil service eligibility for a permanent appointment to any of the two positions subject of the present petition." Consequently, respondent Cruz' appointment being merely temporary in the context of the Civil Service Law, it follows that Cruz' appointment can be terminated at the pleasure of the appointing power.

4. ID.; ID.; APPOINTMENT ESSENTIALLY A DISCRETIONARY POWER; FUNDAMENTAL REQUISITE OF APPOINTMENT; NON-ELIGIBLE NOT APPOINTED WHENEVER A CIVIL SERVICE ELIGIBLE IS AVAILABLE AND READY TO ACCEPT APPOINTMENT. respondent Cruz is not a civil service eligible; neither is he a certified public accountant who can be vested with civil service eligibility upon examination under R.A. 1080. After all, a noneligible shall not be appointed to any position in the civil service whenever there is a civil service eligible actually available for and ready to accept appointment. It is certainly erroneous for respondent COMMISSION to direct HIGC to reappoint respondent Cruz, a non civil service eligible, to a position which requires a first grade civil service eligibility. As We have repeatedly held, appointment is an essentially discretionary power and must be exercised by the officer in whom it is vested according to his best lights, the fundamental requisite being that the appointee must possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been appointed. This is a political question involving considerations of wisdom which only the appointing authority can decide. 5. ID.; ID.; REORGANIZATION WHEN VALID; WHEN CARRIED OUT IN GOOD FAITH; NO DISMISSAL OR SEPARATION ACTUALLY OCCURS IN VALID REORGANIZATION; REASON THEREFOR. As We ruled in Dario v. Mison, "[R]eorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall." In sum, We find that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it insisted in holding respondent Cruz eligible for reappointment to a permanent position in a government owned and controlled corporation in derogation of the provision of law categorically proscribing such as conclusion. DECISION

BELLOSILLO, J p: This is a petition for certiorari 1 seeking to set aside the Resolution 2 of respondent Civil Service Commission which directed petitioner Home Insurance and Guaranty Corporation (HIGC) to reappoint private respondent Daniel R. Cruz albeit to a position next lower in rank to Vice-President in petitioner corporation, and to pay him backwages from the date of his dismissal making as basis his old salary rate as Vice-President. Private respondent was the Vice President, Finance and Administrative Group of the Home Financing Corporation, now known as the Home Insurance and Guaranty Corporation (HIGC), from 1 June 1986 to 8 July 1988, when he was not reappointed as a result of the reorganization of petitioner firm. Initially, the appointment of private respondent Cruz was approved as temporary by the Civil Service Commission (COMMISSION for brevity) subject to his completion of the Executive Leadership and Management Program. On a reconsideration, the COMMISSION changed the appointment from temporary to permanent but still subject to his completion of the leadership program within three (3) years from the effectivity date of his 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 duty arising from his inefficient supervision over his subordinates arising from the loss of six (6) Land Bank checks. In July 1988, HIGC underwent a reorganization which resulted among others in the reduction of the number of Vice-President positions from (6) to three (3). Respondent Cruz was one of those not reappointed as he was found to have no civil service eligibility. On appeal to the HIGC Reorganization Appeals Board, Cruz invoked his permanent appointment and insisted 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 to those 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' 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 a position 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 then his application to avail of the Early Separation Incentive Package (ESIP) should be approved. It further ruled that Cruz should be paid all the benefits and privileges due him as Vice President of HIGC in connection 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 18 December 1989 Resolution No. 89973 holding that since Cruz had not received the early retirement benefits he applied for, he should reappointed to the position next lower to the Vice President of the Finance Group, such as Manager of the Comptrollership Department, Treasury or other Department, and that he should be paid his back salaries from the time of his termination on the basis 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 until further orders from the Court, enjoining respondent COMMISSION to cease and desist from

enforcing its Order of 10 October 1990, 3 as well as the resolutions in question. Petitioner now contends that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned Resolutions for being contrary to established principles governing the civil service career system and of the basic constitutional mandate that appointments to the civil service shall be made only according to merit and fitness; and, that the nonreappointment 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 discretion amounting to lack or excess of jurisdiction when it ruled that respondent Cruz was a permanent employee enjoying 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 appointment papers 4 He asserts that it is not necessary for him to pass any competitive civil service examination to become eligible for he belongs to the third level in the career service, which covers positions in the Career Executive Service, and which does not require passing a competitive civil service examination. But law 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 of positions in the career service: (a) the first level which includes clerical, trades, crafts and custodial service positions involving non-professional or sub-professional work in a nonsupervisory 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. 5 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 and other officers of equivalent ranks as may be identified by the Career Executive Service Board, all of whom are appointed by the President. 6 Entrance to the first two levels shall be through competitive examinations, while entrance to the third level shall be prescribed by the Career Executive Service Board. 7 The Constitution clearly mandates that appointments in the civil service shall be made only according to merit and fitness to be determined as far as practicable, and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination. 8 Respondent Cruz has not satisfactorily shown that his former position as Vice President in the HIGC belongs to the third level in the career service as prescribed by law. His former position as Vice President is not among those enumerated by law as falling under the third level, nor has he established that it is one of those identified by the Career Executive Service Board as of equivalent rank to those listed by law. Neither is it claimed that he was appointed by the President. We agree then with petitioner HIGC that the position of Vice President to which Cruz was formerly appointed belongs to the second level position which under the law includes professional, technical or 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. Entrance to this second level is through competitive examination. In other words, a person occupying a position in this level must possess a civil service eligibility, i.e., he must have obtained a passing grade in a civil service examination, or has been granted a civil service eligibility and whose name is accordingly entered in the register of eligibles. 9 Clearly, eligibility then is a sine qua non to acquiring a permanent appointment, except those positions which are not required by law to be filled with civil service eligibles. A permanent appointment is defined as one issued to a person who meets all the requirements for

the position to which he is being appointed, including the appropriate eligibility prescribed in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 10 In the case before Us, it is not disputed that respondent Cruz is without any civil service eligibility as shown by his appointment papers. 11 As such, respondent Cruz cannot be legally conferred a permanent appointment for the law is clear that career positions, particularly the first and second level positions in the service, require civil service eligibility. Thus the attestation by respondent COMMISSION that respondent Cruz' appointment is permanent must be struck down for being contrary to law. As correctly observed by the Solicitor General: "The permanent appointment of a non-civil service eligible to a career position is, from a legal viewpoint, a nullity. Not even the CSC can validate the error, as it cannot rise higher than the law that created it the same law that requires civil service eligibility for a permanent appointment to any of the two positions subject of the present petition." 12 Consequently, respondent Cruz' appointment being merely temporary in the context of the Civil Service Law, it follows that Cruz' appointment can be terminated at the pleasure of the appointing power. 13 There can therefore be no question that petitioner HIGC acted legally when, after effecting a reorganization, it no longer reappointed respondent Cruz. We agree with petitioner HIGC that the qualifications of respondent Cruz are definitely inferior to those of the incumbents of the next-lower-in-rank positions who have civil service eligibilities and are at the same time certified public accountants. As we have noted earlier, respondent Cruz is not a civil service eligible; neither is he a certified public accountant who can be vested with civil service eligibility upon examination under R.A. 1080. 14 After all, a non-eligible shall not be appointed to any position in the civil service whenever there is a civil service eligible actually available for and ready to accept appointment. 15 It is certainly erroneous for respondent COMMISSION to direct HIGC to reappoint respondent Cruz, a non civil service eligible, to a position which requires a first grade civil service eligibility. As We have repeatedly held, appointment is an essentially discretionary power and

must be exercised by the officer in whom it is vested according to his best lights, the fundamental requisite being that the appointee must possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been appointed. This is a political question involving considerations of wisdom which only the appointing authority can decide. 16 We also find reasonable, fair and valid the reorganization carried out by petitioner HIGC which led to the separation from the service of respondent Cruz. Significantly, respondent COMMISSION does not question but appears in fact to concede the validity of the reorganization effected by petitioner HIGC as reflected in the questioned CSC Resolution No. 89-543 It is admitted that this reorganization of the HIGC resulted in the reduction in the number of positions of Vice President from (6) six to three (3) only. And, after due assessment and evaluation, Cruz was found to be one of the least competent and qualified to be reinstated to the same or comparable position as shown by the comparative analysis of the qualifications of the appellant and the reappointed Vice Presidents, Carlo P. Doble, Fernando M. Miranda and Wilfredo F. Hernandez . . ." 17 As We ruled in Dario v. Mison, 18 "[R]eorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall." In sum, We find that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it insisted in holding respondent Cruz eligible for reappointment to a permanent position in a government owned and controlled corporation in derogation of the provision of law categorically proscribing such as conclusion.

WHEREFORE, the petition is GRANTED. The questioned CSC Resolutions Nos. 89-543, 89-973 and 90-823 are REVERSED and SET ASIDE. Accordingly, respondent Daniel R. Cruz is declared ineligible for reappointment in petitioner Home Insurance and Guaranty Corporation for lack of civil service eligibility as required by law. Simpao vs CSC Novermber 1990 G.R. No. 93479 June 25, 1991 TEODORO G. BARROZO, petitioner, vs. THE CIVIL SERVICE COMMISSION and VALENTINO L. JULIAN, respondents. Amado D. Orden and Vicente Millora for petitioner. Evalyn H. Itaas-Fetalino, Normita L. Villanueva and Dante G. Huerta for Civil Service Commission. Sanidad Law Offices & Luiz L. Lardizabal, Marciano E. Concepcion and Benjamin Rillera for private respondent.

CRUZ, J.:p The facts of this case are familiar. They involve the same arrogation of power by the public respondent that we have rejected in earlier cases. On November 10, 1988, David G. Borja retired as City Engineer of Baguio. On that date, petitioner Teodoro G. Barrozo was a Senior Civil Engineer of the Department of Public Works and Highways assigned to the Office of the City Engineer of Baguio. Private respondent Valentino L. Julian was the Assistant City Engineer of Baguio.

On December 27, 1988, Mayor Ramon L. Labo, Jr. extended to the petitioner a permanent appointment as City Engineer of Baguio. This appointment was approved by the Civil Service Regional Office No. 1 on January 2, 1989. On February 16, 1989, after his protest was rejected by Mayor Labo, the private respondent appealed the appointment to the Merit Systems Board of the Civil Service Commission, claiming that as a qualified next-in-rank officer, he had pre-emptive rights over the petitioner. On November 22, 1989, the Civil Service Commission Cordillera Administrative Region (CSCCAR) to which the appeal was referred, declared the petitioner's appointment void for being violative of Civil Service promotion rules. His motion for reconsideration having been denied, the petitioner then appealed to the Civil Service Commission. On March 5, 1990, the public respondent issued the resolution now under challenge. 1 The motion for reconsideration thereof was denied on May 23, 1990.2 The text of the resolution carried the significant statement that "a comparative analysis of the qualifications of the contestants shows that both meet the minimum requirements for the position of City Engineer." The Commission also found. however, that There is no showing that Julian who is next-in-rank to the contested position is barred by law or suffers from any legal disqualification to occupy the position of City Engineer. Neither is there any showing that Barrozo possesses far superior qualifications nor special reasons cited by the appointing authority why Julian cannot be promoted to the higher position. This being so, the Commission finds the appointment of Barrozo not in accordance with Civil Service Law, rules and regulations. At this juncture. it is significant to stress that while the appointing authority enjoys a wide latitude of discretion in the selection of personnel for his agency, nevertheless such discretion must be exercised within the confines of Civil Service Law, rules and regulations.

It therefore disposed as follows: WHEREFORE, foregoing premises considered, the Commission resolved to dismiss as it hereby dismisses the instant appeal of Teodoro Barrozo for lack of merit. Accordingly, the CSC-CAR decision dated November 22, 1989 is affirmed insofar, as the revocation of the appointment of Barrozo is concerned but sets aside said decision insofar as subjecting the contestants to screening and evaluation by the Personnel Selection Board. It is hereby directed that Valentino L. Julian be appointed to the position of City Engineer of Baguio. We note that the Commission has once again directed the appointment of its own choice contrary to our consistent ruling on this matter. Only recently, in Lapinid v. Civil Service Commission, 3 we again emphasized: We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee taking into account the totality of his qualifications, including those abstract qualities that define his personality is the prerogative of the appointing authority. This is a matter addressed

only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. In his Comment, the Solicitor General has taken a stand against the respondent Commission, relying on the above-stated doctrine as earlier enunciated in the leading case of Luego v. Civil Service Commission 4 and only recently in Gaspar v. Civil Service Commission, 5 Teologo v. Civil Service Commission 6 and Patagoc v. Civil Service Commission. 7 In fairness, however, he also moved that the Commission be given an opportunity to submit its own Comment in defense of its own decision. The public respondent has done so and insists that since the disputed vacancy was being filled by promotion, it was imperative that the next-in-rank rule be observed. Disregard of that rule called for the disapproval of the petitioner's appointment in favor of the private respondent, who was the Assistant City Engineer of Baguio at the time the controversial vacancy occurred. This argument is not well-taken. The law does not absolutely require that the person who is next in rank shall be promoted to fill a vacancy. In fact, the vacancy may be filled not by promotion but "by transfer of present employees in the government service, by reinstatement by reemployment of persons separated through reduction in force, or by appointment of persons with the civil service eligibility appropriate to the position." 8 What the Civil Service Act provides in its Sec. 19(3) is that if a vacancy is filled by promotion, the person holding that position next-in-rank thereto "shall be considered for promotion." The said provision reads in full as follows: Section 19. Recruitment and Selection of Employees. ... xxx xxx xxx (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 in the occupational group under which the vacant position is classified, and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibilityshall be considered for promotion. (Emphasis supplied) Interpreting the next-in-rank rule, we said in Santiago v. Civil Service Commission: 9 One who is next in rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. And, indeed, as we noted in the recent case of Abila v. Civil Service Commission, 10 the Commission itself, in implementing the said law, provides in its Resolution No. 89-779 as follows: B. Rules on Protest Cases xxx xxx xxx Rule III. Procedure in Filling Vacancies xxx xxx xxx Section 2. Positions in the Second Level. When a vacancy occurs in the second level of the career service as herein defined, the employees in the department who occupy the next lower positions in the occupational group under which the vacant position is classified, and in other functionally related occupational groups, who are competent and qualified and with appropriate civil service eligibility shall be considered for appointment to the vacancy. (Emphasis supplied)

It is presumed that, conformably to the above injunctions, Mayor Labo dutifully considered the private respondent for promotion to the position of City Engineer of Baguio City although he ultimately decided in favor of the petitioner. There being no showing that the appointing authority has gravely abused his discretion, even this Court must respect his decision. We find that, as in the many other earlier cases, the Commission has again overstepped its authority, encroached upon the discretion of the appointing authority, and officiously directed the appointment of its own choice. Hence, we must again reverse its action. Lapinid declared that "henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner." No sanctions are imposed at this time as the case at bar arose before the promulgation of Lapinid. WHEREFORE, the petition is GRANTED. The permanent appointment of Teodoro G. Barrozo as City Engineer of Baguio City is declared VALID. Resolution No. 90-247 dated March 5, 1990, and Resolution No. 90-462, dated May 23, 1990, of the respondent Civil Service Commission are hereby SET ASIDE, without any pronouncement as to costs. SO ORDERED. Lapinid vs CSC Orbos Vs CSC G.R. No. 90799 October 18, 1990 AUGUSTO L. GASPAR, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and ZENAIDA F. LANTING, respondents.

The City Legal Officer for petitioner. Thelma Panganiban-Gaminde, Rogelio C. Limare and Dante G. Huerta for Civil Service Commission. RESOLUTION

NARVASA, J.: Augusto L. Gaspar seeks the setting aside of the Decision of the Civil Service Commission dated July 19, 1985 (affirmed by the Court of Appeals), which revoked his appointment as Administrative Officer II of the Parks Development Office, Manila, and directed the appointment of Zenaida F. Lanting as such, in his stead. Gaspar was the Chief of the Security Section of the Parks Development Office of the City of Manila when Executive Order No. 81-01 was issued by the Governor of the Metro Manila Commission on May 24, 1981. The Executive Order established a comprehensive position classification and pay plan for MMC officers and employees, and contained a provision reclassifying Gaspar's position of Chief, Security Section, to Administrative Officer II. On April 25, 1983, Gaspar was appointed to that position of Administrative Officer II, effective on October 1, 1982. Zenaida F. Lanting, then Senior Accounting Clerk in the same Parks Development Office, filed with the Merit Systems Board a protest against Gaspar's appointment as Administrative Officer II, contending that she was better qualified for, and should have been named to, the office. After due proceedings, the Merit Systems Board (MSB) revoked Gaspar's appointment and directed Lanting's appointment to the office of Administrative Officer II, in a decision rendered on November 28, 1984. Gaspar appealed to the Civil Service Commission (CSC) .

After initially sustaining Gaspar (in Resolution No. 85-177, May 21, 1985), the CSC ultimately affirmed the judgment of the MSB by Resolution numbered 85-291 promulgated on July 19, 1985 and, as the MSB had done, directed "the appointment of ... Lanting to the position of Administrative Officer II in the Parks Development Office ..." The CSC said: A comprehensive evaluation of the qualifications of the parties would show that while both are at par in experience and training, Lanting has an edge over Gaspar in education. Her masteral degree in Public Administration as compared to 36 academic units in Business Administration course earned by Gaspar provide her with the required knowledge in management principles and techniques as well as substantial preparation to assume higher duties and responsibilities taking into account the supervisory nature of the position. It can therefore be concluded that Lanting is better qualified and more competent for appointment as Administrative Officer II. Such being the case, Lanting has better potentials to assume the duties and responsibilities of this contested position. There is no intimation whatever that Gaspar is not qualified for the position of Administrative Officer II. On the contrary, it seems quite evident that the Civil Service Commission considers both him and Lanting to possess the minimum qualifications for the office, but that, in the Commission's view, "Lanting has an edge over Gaspar in education" and "has better potentials to assume the duties and responsibilities of .. (the) contested position." The same situation was presented to this Court in a case decided on August 5, 1986, Luego v. Civil Service Commission, and Felicula Tuozo. 1 It will therefore be in accordance with the doctrine therein that the appellate proceeding at bar will be resolved. In Luego, the appointment by the City Mayor of Cebu of Felimon Luego as Administrative Officer II, Administrative Division, Cebu City, was protested by Felicula Tuozo and another employee. The

issue presented was Identical to that posed in the case at bar. It was, according to the Court, "starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?" The Court ruled that under the circumstances, and in light of the relevant legal provisions, "all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts onor as the (Civil Service Decree says, 'approves' or 'disapproves' an appointment made by the proper authorities." The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority. The doctrine has since been subsequently applied, in Central Bank of the Philippines, et al. v. Civil Service Commission, et al., G.R. Nos. 80455-56, April 10, 1989, and Maximo Gabriel v. Hon. Eufemio Domingo, et al., etc., G.R. No. 87420, September 17, 1990. 2 The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age,

number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a certain job, who can do it best should be left to the Head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard. In the case at bar, therefore, the respondent Commission acted beyond the scope of its authority and with grave abuse of discretion in revoking the petitioner's appointment and directing the appointment in his stead of the private respondent. WHEREFORE, Resolution No. 85-291 of the respondent Civil Service Commission, dated July 19, 1985, is SET ASIDE and the petitioner, Augusto L. Gaspar, is hereby declared to be entitled to the office of Administrative Officer II of the Parks Development Office of the City of Manila by virtue of the appointment extended to him on April 25, 1983, effective on October 1, 1982. Luego vs CSC, 143 SCRA 327

Issue: WON the CSC is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement. Held: No. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent CSC to reverse him and call it temporary. Section 9(h), Art V of the Civil Service Decree provides that the Commission shall have inter alia the power to approve all appointments, whether original or promotional, to positions in the civil service .and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. The CSC is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the CSC Law. When the appointee is qualified and all the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the CSC Laws. CSC is without authority to revoke an appointment because of its belief that another person was better qualified, which is an encroachment on the discretion vested solely in the city mayor. Cadiente vs Santos 142 SCRA 280 Samson v. CA, 145 SCRA 654 (1986) Facts: Feliciano Talens was Assistant Secretary to the Mayor of Caloocan. The newly-elected mayor, Marcial Samson, released an Administrative Order qualifying the services of Talens as non-competetive and terminating his employment on the ground of lack and loss of confidence. He appointed Liwas as replacement. Petitioner justifies that as Assistant Secretary, like the Secretary, renders non-competitive

(Public Officer, Appointments, CSC) Facts: Petitioner was appointed Admin Officer II, Office of the City Mayor, Cebu City, by Mayor Solon. The appointment was described as permanent but the CSC approved it as temporary, subject to the final action taken in the protest filed by the private respondent and another employee. Subsequently, the CSC found the private respondent better qualified than the petitioner for the contested position and, accordingly directed that the latter be appointed to said position in place of the petitioner whose appointment is revoked. Hence, the private respondent was so appointed to the position by Mayor Duterte, the new mayor. The petitioner, invoking his earlier permanent appointment, questions the order and the validity of the respondents appointment.

service which is primarily confidential and highly technical in nature where termination may be made due to lack and loss of confidence. However, respondent contends that he is not a non-competitive employee and thus, can only be removed for cause and after due process has been observed. Thus, he filed with the Court of First Instance of Caloocan to annul the disputed administrative order, to enjoin the petitioner mayor, treasurer, and auditor from enforcing the same, and to compel all the said public officials to pay private respondent the salaries and emoluments due to him. The CFI, as well as the CA, ruled in favor of Talens.

position was previously held by Dr Kintanar who recommended Dr Venzon to his position. Dr Venzon contested the position. Dr Afable, the one who appointed Anzaldo, averred that Anzaldos appointment was approved by the NIST evaluation Committee which gave 88 points to Anzalado and 66 points to Venzon. The issue was elevated to the Office of the president by Venzon. Clave was then the Presidential Executive Assistant. Pursuant to PD 807 or the Civil Service Decree, Clave referred the issue to the CSC. Clave was also holding the chairmanship of the CSC. Clave issued Res 1178 appointing Venzon to the contested position. After the denial of her motion for the reconsideration of that resolution, or on January 5, 1980, Anzaldo appealed to the Office of the President of the Philippines. Since Clave was holding the office of PEA he just affirmed his decision as the CSC chairman.

Issue: Is the termination without cause or due process of Talens services as Assistant Secretary to the Mayor legal on the ground of lack or loss of confidence?

Ruling: NO. The position of Assistant Secretary to the Mayor cannot be classified as non-competitive. Since the position is not enumerated nor does it qualify as Secretary or Head of Departments under Section 5 of the Civil Service Law , then the position is classified as competitive. Employees of competitive classification cannot be terminated on the ground of lack or loss of confidence, rather only for cause and agter due process. Felicidad Anzaldo vs Jacobo Clave Due Process Administrative Due Process Dr Anzaldo, 55, had been working in the National Institute of Science and Technology for 28 years. She was holding the position Scientist Research Associate IV when she was appointed as Science Research Supervisor II. Her appointment was approved by the CSC in 1978. The

ISSUE: Whether or not there is due process in the case at bar. HELD: The SC ruled in favor of Anzaldo. When PEA Clave said in his decision that he was inclined to concur in the recommendation of the Civil Service Commission, what he meant was that he was concurring with Chairman Claves recommendation: he was concurring with himself. It is evident that Anzaldo was denied due process of law when Presidential Executive Assistant Clave concurred with the recommendation of (himself) Chairman Clave of the Civil Service Commission. Due process of law means fundamental fairness. It is not fair to Anzaldo that PEA Clave should decide whether his own recommendation as Chairman of the CSC, as to who between Anzaldo and Venzon should be appointed Science Research Supervisor II, should be adopted by the President of the Philippines.

Citation: Ang-Angco v. Castillo, No.L-17169, SUPREME COURT OF THE REPUBLIC OF THE PHILIPPINES, 9 SCRA 619, February 16, 1960, Argued, November 30, 1963, Decided. Facts: The Pepsi-Cola Co. requested for the withdrawal of pepsicola concentrates which were not covered by any Central Bank release certificate. Its counsels approached Collector of Customs Ang- Angco to secure the immediate release of the concentrates, but advised the counsel to secure the release certificate from the NoDollar Import Office. The Non-Dollar Import Office wrote a letter to Ang-Angco which stated that his office had no objection to the release of the concentrates but could not take action on the request as it was not in their jurisdiction. Ang-Angco telephoned the Secretary of Finance who expressed his approval of the release on the basis of said certificate. Collector Ang-Angco finally released the concentrates. When Commissioner of Customs learned of the release he filed an administrative complaint against Collector of Customs Ang-Angco. For three years Ang-Angco had been discharging the duties of his office. Then, Executive Secretary Castillo, by authority of the President, rendered his judgment against the petitioner. Issue: Whether the President is empowered to remove officers and employees in the classified civil service. Previous History: Secretary Castillo asserted that the President virtue of his power of control over all executive departments, bureaus and offices, can take direct action and dispose of the administrative case in subordinate officers of the executive branch of the government. Holding: The President does not have the power to remove officers or employees in the classified civil service. Reasoning: It is clear that under the present provision of the Civil Service Act of 1959, the case of petitioner comes under the exclusive jurisdiction of the Commissioner of Civil Service, and having been deprived of the procedure laid down in connection with the investigation and disposition of his case, it may be said

that he has been deprived of due process as guaranteed by said law. The Power of control of the President may extend to the Power to investigate, suspend or remove officers and employees who belong to the executive department if they are presidential appointees but not with regard to those officers or employees who belong to the classified service for as to them that inherent power cannot be exercised. This is in line with the provision of our Constitution which says that "the Congress may by law vest the appointment of the inferior officers, in the President alone, in the courts, or in heads of department" (Article VII, Section 10 [3], Constitution). With regard to these officers whose appointments are vested on heads of departments, Congress has provided by law for a procedure for their removal precisely in view of this constitutional authority. One such law is the Civil Service Act of 1959. Significance: It well established in this case that it is contrary to law to take direct action on the administrative case of an employee under classified service even with the authority of the President without submitting the case to the Commissioner of Civil Service. Ruben Villaluz vs Calixto Zaldivar Political Law Control Power Removal Power Appointees Villaluz was appointed as the Administrator of the Motor Vehicles Office in 1958. In 1960, Congressman Roces alleged that Villaluz was an ineffective leader and had caused losses to the government. He indorsed the removal of Villaluz. The Exec Sec suspended Villaluz and ordered a committee to investigate the matter. After investigation, it was recommended that she be removed. The president then issued an AO removing Villaluz from his post. Villaluz averred that the president has no jurisdiction to remove him.

ISSUE: Whether or not Villaluz is under the jurisdiction of the President to be removed considering that he is an appointee of the president. HELD: The President of the Philippines has jurisdiction to investigate and remove him since he is a presidential appointee who belongs to the non-competitive or unclassified service under Sec 5 of RA 2260; being a presidential appointee, Villaluz belongs to the non-competitive or unclassified service of the government and as such he can only be investigated and removed from office after due hearing by the President of the Philippines under the principle that the power to remove is inherent in the power to appoint . There is some point in the argument that the power of control of the President may extend to the power to investigate, suspend or remove officers and employees who belong to the executive department if they are presidential appointees or do not belong to the classified service for such can be justified under the principle that the power to remove is inherent in the power to appoint but not with regard to those officers or employees who belong to the classified service for as to them that inherent power cannot be exercised. This is in line with the provision of our Constitution which says that `the Congress may by law vest the appointment of the inferior officers, in the President alone, in the courts, or in heads of department. Hernandez vs Villegas 14 SCRA 544 Briones v. Osmea Fact: An action for mandamus with damages to declare the abolition of the

petitioners position void, and to order the respondent City Mayor to reinstate them to their former positions. Ordinance No. 192 abolished 15 positions in the City Mayors office and 17 positions in the Office of the Municipal Board with an alleged economic and efficient reason for the abolition. Held: The reason given for the abolition of the positions is untrue, and constitutes a mere subterfuge for the removal without cause of the said appellees, in violation of Civil Service tenures as provided by the Constitution. Prior to the abolition of the positions, the office of the City Mayor no less than 35 new positions calling for an outlay of 68,100pesos per annum. A decent respect for the Civil Service provisions of our Constitution dictates that civil service eligibles, who have rendered long and honorable services, should not be sacrificed in favor of non-eligibles given positions of recent creation, nor should be left at the mercy of political changes. Corpus vs. Cuaderno, Sr. FACTS: Petitioner was holding the position of Special Assistant to the Governor of the Central Bank. He was charged in an administrative case resulting in his suspension by the Monetary Board and the creation of a three-man committee to investigate him. After conducting hearings, the committee recommended petitioners reinstatement. The Monetary Board, however, adopted a resolution stating that petitioner is deemed resigned as of the date of his suspension. Subsequently,

respondent Mariano Marcos was appointed to replace petitioner. Petitioner then filed a petition for certiorari, mandamus and quo warranto. After several hearings, the court dismissed the petition on the ground that petitioner did not exhaust all administrative remedies. Petitioner filed a motion for reconsideration but was denied. ISSUE: Whether or not petitioner should have exhausted all administrative remedies HELD: NO. The doctrine of administrative remedies does not apply where, by the terms or implications of the statute authorizing an administrative remedy, such remedy is permissive only, warranting the conclusion that the legislative intended to allow the judicial remedy even though the administrative remedy has not been exhausted.

Cristobal v. Melchor, 78 SCRA 175 A Civil Service Employee is Not Barred by Laches if before Bringing Suit He Continuously Pressed His Claim for Reinstatement. F: Cristobal, a thirdgrade civil service eligible, was employed as a private Secretary in the Office of the President of the Philippines. In January 1962, he and some others were given notice of termination of their services effective January 1, 1962. On March 24, 1962, five of the employees concerned filed an action with the CFI, which culminated in an SC ruling Ordering their reinstatement (Ingles v Mutuc). Cristobal, however, was not a party to the case because during the pendency of such case, he sought reinstatement and in fact, the Exec. Secretary and several other Exec. secretaries promised to look for placement for him. After the Supreme Court rendered the decision in the Mutuc case, Cristobal wrote the President requesting reinstatement. This request was denied in five successive letters from the Office of the President, the last letter declared the matter "definitely closed". Cristobal filed an action in the CFI (now RTC) of Manila. The dismissal was based on Rule 66 of the Rules of Court (Quo Warranto) which provides that an action for quo warranto may not be filed unless commenced within one year after the cause of the ouster. Since Cristobal did not bring the action until after the lapse of nine years, his case was barred by laches. HELD: Cristobal is not guilty of laches. He sought reconsideration of his separ ation from the service and although he did not join in the Ingles court action, he continued to press his request for reinstatement during the pendency of the case. In fact Secretary Mutuc assured him that he would work for his reinstatement. The continued promise not only of Mutuc but of the subsequent Secretaries led Cristobal to wait but depite waiting for such a long time, his reinstatement never came about. It would be the height of inequity if after Cristobal relied and reposed his faith and trust on the word and promises of the former Exec. Secretaries, the court would rule that he had lost his right to seek relief because of the lapse of time Cristobal, just like the Plaintiffs in the Ingles v Mutuc case, was n

Ingles v. Mutuc, 26 SCRA 171 (1968) F: Plaintiffs herein are civil service eligibles, holding positions unde r the Office of the President. About the second week of January, 1962, plaintiffs received a communication from Executive Sec. Mutuc advising them that their services in the government were terminated. They appealed to the President but said appeal was denied. They filed an action against the Exec. Sec. alleging that they had been removed from office wi thout just cause and without due process. Defendant, on the other hand, averred that the positions which plaintiffs were th en occupying were primarily confidential in nature and therefore, their appointments were subject to removal at the pleasure of the appointing power. ISSUE: W/N plaintiffs are occupying positions which are primarily confi dential and therefore are subject to removal at the pleasure of the appointing authority. HELD: NO. The fact that the plaintiffs held office for the "presid ent's Private Office" under subdivision entitled "private secretaries" and that they handled "confidential Matters" even if they only performed clerical work do not make them officers and employees occupying highly confiden tial offices. There is nothing in the items of the plaintiffs (who were clerks and secretaries) to indicate that their r espective positions are "primarily confidential" in nature. The fact that they handled at times "confidential matters" does not suffice to characterize their positions as primarily confidential. No officer or employee in the Civil Service shall be removed or suspended except for cause as provided for by law and since plaintiffs positi ons were protected by this provision, their removal without cause was therefore illegal.

Alliance of Government Workers v Minister of Labor and Employment, 124 SCRA 1 (1983) F: Petitioner is a federation of unions in govtowned corps. and in govt schools. It petitioned the SC for a ruling that PD 851, requiring "all employers... to pay their employees receiving a ba sic salary of not more than P1,000 a month... a 13th month pay," applies to govt employees. VV. HELD: NO. It is an old rule of statutory construction that restrictive st atutes and acts w/c impose burdens on the public treasury or w/c diminish rights and interests, no matter how br oad their terms do not embrace the Sovereign, unless the Sovereign is specifically mentioned. The Republic of the Phil. as a sovereign cannot be covered by a general term like "employer" unless the language used in th e law is clear and specific to that effect. ISSUE 2: May government employees act through a labor federation wh ich uses the collective bargaining power to secure increased compensation for its members? HELD: NO. The terms and conditions of employment in the Governme nt including any political subdivision or instrumentality thereof are governed by law. And this is effected through statutes or administrative circulars, rules and regulations and not through Collective Bargaining agreements. Under the present constitution, (1973), GOCC's are now part of the civil service, thus, not allowed to use concerted activities to get other benefits or higher salaries different from that provided by law and regulation. Adapted.

Santos v. Yatco, 59 0G 548 (1959) F:This is petition for prohibition seeking to enjoin the enf orcement of the order of Judge Yatco disallowing then Secretary of Defense Alejo Santos from campaigning pers onally for Governor Tomas Martin in the province of Bula can. The petition was granted for the ff. reasons: The position of department secretaries is not embraced and included within the terms officers and employees in the Civil Service; When Santos, a Nacionalista campaigned for Gov. Martin, a candidate of the Nacionalista Party, he was acting as a member of the Cabinet in discussing the issues before the electorate and defending the actuations of the Administration to which he belongs; The question of impropriety as distinct from illegality of such campaign because of its deleterious influence upon the members of the armed forces, who are administratively subordinated to the Secretary of National Defense and who are often called upon by the C OMELEC to aid in the conduct of orderly and impartial elections, is not justiciable by the court. Adapted.