ARTICLE IX CONSTITUTIONAL COMMISSIONS Independent Constitutional Commissions Art. IX, A, Sec. 1.

. The Constitutional Commissions, which shall be independent, are the: 1) Civil Service Commission (CSC) 2) Commission on Elections (COMELEC) 3) Commission on Audit (COA)

Why Independent? They perform vital functions of government. Their integrity is protected by the fact that they: 1) Are constitutionally created (Sec. 1) 2) Have independent powers of appointment (Sec. 4) 3) Each Commission may promulgate its own procedural rules (Sec. 6) 4) Fiscal autonomy (Sec. 5) 5) Salaries may not be diminished during their office (Sec. 3) 6) Commissioners have a fixed term 7) Commissioners are removable by impeachment only. Civil

Section 2. DISQUALIFICATIONS Members cannot, during their tenure: 1) Hold any other office or employment; 2) Engage in the practice of any profession; 3) Engage in the active management or control of any business, which, in any way, may be affected by the functions of their office; and 4) Be financially interested, direct or indirect, in any contract, franchise, privilege granted by the government, any of its subdivisions, agencies, instrumentalities, including GOCCs and their subsidiaries. Note: The Ombudsman and his deputies are subject to the same qualifications.

Section 3. SALARIES 1) Salaries are fixed by law and shall not be decreased during their TENURE. 2) Decreases in salaries only affect those members appointed AFTER increase. 3) Incumbent members do not lose any salary. 4) Increases take effect IMMEDIATELY.

Section 6. RULES OF PROCEDURE 1) Rules: The Commissions may promulgate its own rules EN BANC. 2) Limitation: It shall not: a) Diminish, b) Increase, or c) Modify substantive rights. 3) Power of SC a). The SC may not, under Art. VIII Sec. 5(5), exercise the power to disapprove rules of special courts and quasi-judicial bodies. b). In proceedings before the Commissions, the rules of the Commission prevail. c). In proceedings before a court, the Rules of Court prevail. d). The SC may, however, in appropriate cases, exercise JUDICIAL REVIEW

Section 7. DECISION MAKING/APPEAL

1) Each commission shall decide matter or cases by a majority vote of all the members within 60 days from submission. COMELEC may sit en banc or in 2 divisions. Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc. The SC has held that a majority decision decided by a division of the COMELEC is a valid decision. 2) As COLLEGIAL BODIES, each commission must act as one, and no one member can decide a case for the entire commission. (i.e. The Chairman cannot ratify a decision which would otherwise have been void). Appeals:

1) Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to the SC under Rule 65. 2) Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43.

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

THE CIVIL SERVICE COMMISSION Section 1. COMPOSITION/QUALIFICATIONS/TERM Composition: 1) Chairman 2) Commissioners (2)

Qualifications: 1) Natural-born citizens of the Philippines; 2) At least 35 years old at the time of their appointments; 3) With proven capacity for public administration; and 4) NOT candidates for any elective position in the elections immediately preceding their appointment. 5) Appointees by the President to the CSC need Commission on Appointments (CA) confirmation Term: 1) Chairman -7 years; Commissioner 1 5 yrs; Commissioner 2 3 yrs 2) Limitation: single term only, no reappointment 3) Appointment to vacancy: only for unexpired term of predecessor 4) No temporary appointments, or appointments in acting capacity.

Section 2. Scope: The Civil Service embraces all: A. branches,

B. subdivisions, C. instrumentalities, D. agencies of the government, E. including GOCCs with original charters. 1.With Original Charter means that the GOCC was created by special law/by Congress 2. If incorporated under the Corporation Code, it does not fall within the Civil Service, and is not subject to the CSC jurisdiction. 3. Even if once government-controlled, then becomes privatized, ceases to fall under CSC. 4. Jurisdiction is determined as of the time of filing the complaint.

Appointments to civil service shall be: A. Competitive positions According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policy-determining, primarily confidential, or highly technical. B. Non-competitive positions 1). No need for competitive examinations. 2). 3 kinds a) Policy-determining formulate a method of action for the govt b) Primarily confidential more than ordinary confidence; close intimacy insures freedom of intercourse without betrayals of personal trust c) Highly technical requires technical skill to a superior degree.

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

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

E. Who may be appointed: 1). RULE: Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein.

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

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

CASE DIGESTS: Security of Tenure: CIVIL SERVICE COMMISSION, Petitioner - versus - GREGORIO MAGNAYE, JR., Respondent Facts: In March 2001, Mayor Roman Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker I at the Office of Economic Enterprise (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. 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 one-half months after his (Mayor Bendaas) assumption to office. He added that his termination was without basis and was politically motivated. Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV) but dismissed Magnayes complaint for lack of merit. It upheld his dismissal from the service on the ground that Mayor Bendaas own assessment, together with the evaluation made by his supervisors, constituted sufficient and reasonable grounds for his termination. 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 employees 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. Magnaye sought recourse through a petition for review with the Court of Appeals. The CA ruled in Magnayes favor, mainly on the ground that he was denied due process since he was not informed of what constituted the alleged unsatisfactory conduct and want of capacity that led to his termination. Issue: Whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules. Ruling: The Court upholds the decision of the Court of Appeals. The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) 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. 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. Further, wellentrenched 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.

Primarily confidential position: BESA v PNB 33 SCRA 330 Facts: Nature: Original Petition in the Supreme Court. Certiorari, prohibition, and quo warranto Tomas Besa was appointed Chief Legal Counsel with the rank of Vice President of PNB.

By virtue of a resolution by PNB president Roberto Benedicto, he became Consultant on Legal Matters. Conrado Medina took over his position. PNB justified by saying that:

o The position of Chief Legal Counsel carries a special confidential relationship of lawyer and client and thus they have the prerogative to designate or change its lawyer o The transfer was made by the Board in the exercise of its powers, upon recommendation of the PNB president Resolution No. 1053: by BOD: shifted Besa to Office of President as Consultant on Legal Matters, without change in salary and other privileges

Issue: WON Besas transfer was illegal Held: NO Ratio: 1. The position of Chief Legal Counsel was a highly confidential position and such positions term depends upon the will of the appointing power. 2. Removal without just cause as a defense applies only to officers and employees enjoying a fixed term. 3. According to Chief Justice, a primarily confidential officer cannot be removed. His term merely expires according to nature of job. Reyes says tenure of confidential officers ends upon loss of confidence. 4. Court also ruled that the position of Chief Legal Counsel is primarily confidential and secondarily technical.

Petition Dismissed.

NATIONAL HOUSING CORPORATION vs JUCO 134 SCRA 172 Facts: Benjamin C. Juco was a project engineer of the National Housing Corporation from November 16, 1970 to May 14, 1975. Juco's services were terminated by (NHC) for having been implicated in a crime of theft and/or malversation of public funds involving 214 pieces of scrap G.I. pipes owned by the corporation which was allegedly committed on March 5, 1975. His termination was effective as of the close of working hours on May 14, 1975. He filed a complaint for illegal dismissal with the Ministry of Labor and Employment but his case was dismissed by the labor arbiter on the ground that the NHC is a governmentowned corp. and its 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. NHC 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 1973 Constitution (now Article IX-B) 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 constitutional 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. For purposes of coverage in the Civil Service, employees of government- owned 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 private corporations owned or controlled by the government may be created by special charter does not mean that such corporations not created by special law are not covered by the Civil Service. xxx The infirmity of the respondent's position lies in its permitting the circumvention or emasculation of Sec. 1, Art. XII-B [now Art IX, B, Sec. 2 (1)] of the Constitution. It would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation 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. Certainly, such a situation cannot be allowed MWSS VS. HERNANDEZ 143 SCRA 602 Facts: Several contractual employees of the MWSS filed a complaint before the NLRC for willful failure to pay their wage differentials, allowances, and other monetary benefits. The defense of MWSS was that it was a GOCC, and therefore the NLRC had no jurisdiction over the case. Nevertheless, the Labor-Arbiter rendered a decision against MWSS citing that only regular employees are NOT within the NLRC jurisdiction. Since the petitioners were contractual employees, they are still within NLRC jurisdiction. The L-A also stated that the Civil Service Decree applies to employees in government corporation in all matters, except monetary claims, which is a case governed by the Labor Code. Since this is a money case, the NLRC still had jurisdiction. MWSS filed a petition of certiorari to the SC

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

Held: MWSS is a GOCC created under RA 6234. Employment in the MWSS is governed NOT BY THE LABOR CODE, but by civil service law rules and regulations. Thus, controversies arising from or connected with that employement are NOT RECOGNIZABLE BY THE NLRC. The contention of the Labor Arbiter that only regular employees are not covered by NLRC, and that nonregular or contractual employees are still covered by NLRC, 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. (not by regular or contractual). The other contention of the L-A that monetary claims are still governed by the NLRC/ Labor Code, is even more patently illogical, and deserves no confutation. (confutation!?!) Recap: 1. The MWSS is a GOCC and employment is governed by the CSL, not the Labor Code 2. Both regular and contractual employees are covered. There is no distinction. 3. NLRC has no jurisdiction over money claims of contractual employees of GOCCs. They are still governed by the CSL, not the Labor Code.

QUIMPO v TANODBAYAN 146 SCRA 137 December 2, 1986 Tanodbayan Has Jurisdiction over all Government Owned Firms Regardless of How Organized Facts: Quimpo filed a complaint with the Tanodbayan (TB) charging G. Dimaano and D. Remo, manager and analyst of Petrophil, with violation 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 government owned corporations organized under a special law. Petrophil is a corp. organized under the Gen. Corp. Code; it was acquired by the govt to carry out its oil and gasoline programs. Quimpo filed a petition 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.

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 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.

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.

b. Checking Function of the CSC DE LOS SANTOS vs MALLARE 87 PHIL 289 Facts: Eduardo de los Santos was appointed City Engineer of Baguio on July 16, 1946 by the President of the Philippines. His appointment was confirmed by the Commission on Appointments on August 6, and on the 23rd, 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 interim appointment 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. The City Mayor and the other city officials ignored him and paid Mallare the salary corresponding to the position. Santos filed this petition for quo warranto to question the legality of the appointment of respondent Gil R. Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. 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 Consti. xxx The office of city engineer is neither primarily confidential, policy-determining, nor highly technical. Primarily confidential.-- The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy w/c insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.

Policy-determining.-- 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. Highly technical.-- 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, w/c is the sense in w/c "highly technical" is, we believe, employed in the Consti.

G.R. No. L-54554

March 30, 1981

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

MELENCIO-HERRERA, J.: In this Petition for "Certiorari, mandamus and Prohibition", seeking the dismissal of Civil Case No. C-7770 below, we have, as factual background, the following: Petitioner, Dr. Eustaquio M. Medalla, Jr., is the Chief of Clinics of the Caloocan City General Hospital, Caloocan City. Private respondent,, Dr. Honorato G. Mackay was the Resident Physician thereat. When the position of Assistant, hospital Administrator of the Caloocan City General Hospital became vacant upon the resignation of the incumbent, former Caloocan City Mayor Alejandro A. Fider designated and subsequently appointed, as Assistant Hospital Administrator private respondent Dr. Mackay, a Resident Physician in said hospital. Petitioner, Dr. Medalla, Jr., protested Dr. Mackay's designation and subsequent appointment alleging among others that, as Chief of Clinics, he (Medalla) was next-in-rank. The then Acting City Mayor Virgilio P. Robles, who succeeded former Mayor, now Assemblyman Alejandro A. Fider, in his 4th Indorsement dated September 20, 1978, sustained Mackay's appointment stating: ... as of April 18, 1978 when Dr. Honorato G. Mackay was promoted to Assistant Hospital Administrator from his previous position of Resident Physician, he was next in rank to the said higher position by reason of his having completed all academic requirements for the Certificate in Hospital Administration ... contrary to the claim of Dr. Eustaquio Medalla, Jr. in his letter of May 2, 1978. xxx xxx xxx

Dissatisfied, Medalla elevated his case to the Civil Service Commission on appeal. On December 29, 1978, the Civil Service Merit Systems Board issued Resolution No. 49 sustaining Medalla's appeal and revoking Mackay's appointment as Assistant Hospital Administrator. The pertinent portion of the aforestated Resolution reads: A perusal of the records shows that appellant Medalla is the Chief of Clinics of the Caloocan City General Hospital; he is a holder of the Degree of Doctor of Medicine; he has completed the requirements in Hospital Administration and is recommended for the title of Certificate in Hospital Administration; he is also a candidate of a Masters degree in Hospital Administration He possesses the First Grade eligibility (BA 1080) and had undergone relevant training in Hospital Administration. His performance rating is 'Very Satisfactory'. On the other hand, appellee Mackay had been a Resident Physician, the position he held prior to his promotion to the contested position. He is a holder of the degree of Doctor of Medicine and is a First Grade

eligible (BA 1080-Medical Board). He is a graduate student in Hospital Administration and as completed all academic requirements for a certificate in Hospital Administration. His performance rating is "Very Satisfactory". A perusal of the organizational chart of the Ospital ng Caloocan approved by the Hospital Administrator would show that the Chief of Clinics is the next lower position to the Assistant Hospital Administrator. The Resident Physician is not a next lower position to the Assistant Hospital Administrator. Therefore, Medalla and not Mackay is the person next in rank who may be promoted to the position involved.

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

Upon automatic review by the Office of the President, pursuant to section 19(6), PD No. 807, Presidential Executive Assistant Jacobo C. Clave rendered a Decision on April 24, 1979 declaring that: WHEREFORE, premises considered, and as recommended by Civil Service Commission, the appointment of Dr. Honorato G. Mackay as Assistant Hospital Administrator in the Caloocan City General Hospital is hereby revoked and the position awarded in favor of appellant Dr. Eustaquio M. Medalla. 2 The Acting City Mayor, on behalf of Mackay, moved for reconsideration. On May 7, 1979, totally disregarding the Decision of the Office of the President, the same Acting City Mayor appointed Mackay, this time as Hospital Administrator, and designated Dr. Tantoco as his Assistant, thereby again completely bypassing Medalla. Mackay took his oath of office on May 7, 1979. On June 27, 1979, however, the Civil Service Commission, acting on Medalla's protest, and besides calling attention to the penal provision of P.D. No. 807, disapproved Mackay's appointment as follows: Wherefore, premises considered and finding the protest of Dr. Medalla in order, the appointment of Dr. Mackay as hospital Administrator at P26,388 per annum effective May 7, 1979 is hereby disapproved. it is hereby ordered that Dr. Medalla be appointed to the position of Hospital Administrator of the Caloocan City General Hospital. 3 On July 20, 1979, Mackay moved for reconsideration asserting 1) denial of due process of law inasmuch as the contested Resolution/Decisions were issued ex-parte, and 2) that the Civil Service Commission can not ignore nor overrule an appointment made by a City Executive. Without awaiting the resolution of his Motion for Consideration- Mackay filed, on July 23, 1979, before tile Court of First Instance of Rizal, Caloocan City, presided by respondent, Judge, a Petition for "Certiorari, Prohibition and mandamus with Preliminary Injunction and Damages" civil Case No. C7770) against Hon. Jacobo Clave, the Civil Service Commission, the Acting City Mayor, the City Treasurer, and Medalla, praying that said respondents be restrained from implementing the Decision of Hon. Jacobo Clave of April 24, 1979, the Resolution No. 49 of the Merit Systems Board dated December 29, 1978, and the Decision of the Civil Service Commission of June 27, 1979. The Court a quo issued the Restraining Order prayed for on July 25, 1979 enjoining implementation of the aforestated Resolution/Decisions.

On August 2, 1979, Medalla moved to dissolve the Restraining Order and to dismiss the Petition alleging mainly that Mackay had not exhausted his administrative remedies and that the latter's right to a Writ of Preliminary Injunction was not only dubious or debatable but was clearly non-existent. Hon. Jacobo Clave and the Civil Service Commission likewise filed a Motion to Dismiss on the same ground of failure to exhaust administrative remedies. On August 13, 1979, Mackay moved to suspend proceedings pending final resolution by the Civil Service Commission of his Motion for the reconsideration of the Decision of said Commission dated June 27, 1979. On September 24, 1979, the Trial Court denied both Motions to Dismiss filed by Medalla, on the one hand, and Hon. Clave and the Civil Service Commission, on the other, holding that Mackay's failure to await resolution of his Motions for Reconsideration pending before the Office of the President and the Civil Service Commission did not deprive him of a cause of action besides the fact that according to the respective Manifestations of the said Offices, the Motions for Reconsideration had already been resolved adversely against Mackay. Acting on Medalla's Motion for Reconsideration thereof as well as his Motion to Lift Restraining Order, the Court a quo, in its Order of July 15, 1980, denied reconsideration but lifted the Restraining Order "there being no showing that petitioner is entitled to the issuance of a Writ of Preliminary Injunction. " Respondent Judge then set the case for hearing. At this juncture, Medalla instituted this Petition before us praying that the Court a quo be restrained from proceeding with the hearing and that judgment be rendered as follows: 1. Ordering the Honorable Marcelino N. Sayo, Judge of the Court of First Instance of Rizal Branch XXXIII, Caloocan City, to dismiss respondent Mackay's petitions, on the ground of lack of jurisdiction and/or non- exhaustion of administrative remedies resulting to a lack of cause of action; 2. Declaring the decision of the Office of the President (Annex "C") and the Merit Systems Board (Annex "E") as valid and enforceable. 4 We issued a Restraining Order on August 27, 1980 enjoining respondents from proceeding with the case below. On November 7, 1980, we required petitioner Medalla to implead the Mayor of Caloocan City as partyrespondent, and the latter to comment on the Petition and to state whether he is ready to issue an appointment to Medalla as Hospital Administrator, Medalla's rights thereto having been upheld by the Civil Service Merit Systems Board and by the Office of the President. In his Compliance, Medalla included an additional prayer that the City Mayor of Caloocan be ordered to immediately appoint him as Hospital Administrator and to pay him salary differentials. In his Comment, the City Mayor of Caloocan invoked the privilege of an appointing authority to determine who can best fulfill the functions of an office citing the case of Aguilar vs. Nieva, Jr. 5 to that effect. And as to the matter of his readiness to issue an appointment to Medalla, he manifested his preference to withhold action pending Mackay's unresolved Motion for Reconsideration of the Decision of June 27, 1979 of the Civil Service Merit Systems Board. Petitioner Medalla submits that the Trial Court erred in not dismissing Mackay's Petition before it, there being a clear showing of non-exhaustion of administrative remedies, and that said Court was devoid of jurisdiction in reviewing on certiorari decisions of the Office of the President and of the Civil service Commission rendered in the exercise of their quasi-judicial functions.

Private respondent Mackay takes the contrary view and prays, instead, that the contested Decisions/Resolution be declared null and void and respondent Judge ordered to proceed with the hearing of the case below. Although Mackay's Motions for Reconsideration were, in fact, still pending resolution by Hon. Jacobo C. Clave and the Civil Service Commission, respectively, at the time private respondent Mackay filed the Petition below, dismissal of said Petition can no longer be anchored on the ground of non-exhaustion of administrative remedies, as Medalla prays, considering that Manifestations dated August 17 and 23, 1979 filed by the said parties before the Court a quo show that they had resolved the incidents adversely against Mackay. 6 That issue, therefore, has become moot and academic. In so far as jurisdiction of the Court below to review by certiorari decisions and/or resolutions of the Civil Service Commission and of the Presidential Executive Assistant is concerned, there should be no question but that the power of judicial review should be upheld. The following rulings buttress this conclusion: The objection to a judicial review of a Presidential act arises from a failure to recognize the most important principle in our system of government, i.e., the separation of powers into three coequal departments, the executive, the legislative and the judicial, each supreme within its own assigned powers and duties. When a presidential act is challenged before the courts of justice, it is not to be implied therefrom that the Executive is being made subject and subordinate to the courts. The legality of his acts are under judicial review, not because the Executive is inferior to the courts, but because the law is above the Chief Executive himself, and the courts seek only to interpret, apply or implement it (the law). A judicial review of the President's decision on a case of an employee decided by the Civil Service Board of Appeals should be viewed in this light and the bringing of the case to the Courts should be governed by the same principles as govern the judicial review of all administrative acts of all administrative officers. The courts may always examine into the exercise of power by a ministerial officer to the extent of determining whether the particular power has been granted to the officer, whether it is a legal power that could have been granted to him, and whether it has been exercised in a legal manner. This jurisdiction does not depend upon an act of the legislature authorizing it, but inheres in the courts of general jurisdiction as an essential function of the judicial department (State Racing Commission v. Latonia Agri. Asso. 123 SW 68 1). 8 (emphasis supplied). For the speedy determination of the controversy, however, and considering that the position involved is infused with public interest, rather than remand the case to the Court below for further proceedings, we hold that grave abuse of discretion on the part of Hon. Jacobo C. Clave and the Civil Service Merit Systems Board is absent. To start with, under the Revised Charter of the City of Caloocan RA No. 5502), it is clear that the power of appointment by the City Mayor of heads of offices entirely paid out of city funds is subject to Civil Service law, rules and regulations (ibid., section 19). The Caloocan City General Hospital is one of the city departments provided for in the said law (ibid., sec. 17). The Hospital Administrator is appointed by the City Mayor (ibid., section 66-B). The Hospital Administrator is the head of the City General Hospital empowered to administer, direct, and coordinate all activities of the hospital to carry out its objectives as to the care of the sick and the injured (ibid.). Under section 19 (3) of the Civil Service Decree (PD No. 807, effective on October 6, 1975), the recruitment or selection of employees for promotions is drawn from the next-in-rank. SEC. 19. xxx xxx Recruitment and Selection of Employees. 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 i 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 eligibility shall be considered for promotion. Section 19 (6) of the same Decree provides for the administrative procedure by an aggrieved employee in case of non-observance by the appointing authority of the next-in-rank rule, thus: Sec. 19(6) A qualified next-in-rank employee shall have the right to appeal initially, to the department head and finally to the Office of the President an appointment made ... (2. in favor of one who is not next-in-rank, ... if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment: ... Before deciding a contested appointment the Office of the President shall consult the Civil Service Commission. For purposes of this Section, .qualified next-in-rank' refers to an employee appointed on a permanent basis to a position previously determined to be next-inrank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Commission. The prescribed procedure has been followed by petitioner Medalla He had appealed to the department head and from thence, in view of the latter's unfavorable action, to the Civil Service Commission and thereafter to the Office of the President. Resolution No. 49 of the Civil Service Merit Systems Board its Decision of June 27, 1979, and the Decision of the presidential Executive Assistant dated April 24, 1979, were all rendered in Medalla's favor. The special reason given by the Acting City Mayor for Mackay's appointment, which is, that lie had completed all academic requirements for the Certificate of Hospital Administration, is not tenable, since Medalla himself was found to be in possession of the same qualification. But while the qualifications of both petitioner Medalla and private respondent Mackay are at par, yet, it is clear that the position of Chief of Clinics is the next lower position to I hospital Administrator under the organizational line-up of the hospital. Consequently, at the time of Mackays appointment as Assistant Hospital Administrator and subsequently hospital Administrator, Medalla outranked Mackay who was only a Resident Physician and, therefore, as the next-in rank, Medalla is entitled to appointment as Hospital Administrator. Respondent Mackay's urging that he was denied due process deserves scant consideration considering that subsequent developsments in the case establish that he was heardon his Motions for Reconsideration by both the Civil Service Commission and the office of the President. It is true that, as the respondent City Mayor alleges, a local executive should be allowed the choice of men of his confidence, provided they are qualified and elligible, who in his best estimation are possesses of the requisite reputation, integrity, knowledgeability, energy and judgement. 9 However, as reproduced heretofore, the Decision of the Civil Service Merit Systems Board, upheld by the Office of the President, contains a judicious assessment of the qualifications of both petitioner Medalla and private respondent Mackay for the contested position, revealing a careful study of the controversy between the parties, which cannot be ignored. The revocation of Mackay's appointment reveals no arbitrariness nor grave abuse of discretion. WHEREFORE, 1) the appointment extended to private respondent, Dr. Honorato C. Mackay, as Hospital Administrator is hereby declared null and void; 2) respondent City Mayor of Caloocan City is hereby ordered to extend an appointment to petitioner, Dr. Eustaquio M. Medalla, as Hospital Administrator of the Caloocan City General Hospital immediately upon notice of this Decision; 3) petitioner, Dr. Eustaquio M. Medalla, shall receive all compensation and emoluments appertaining to said position thenceforth, but without entitlement to salary differentials; and 4) respondent Judge is hereby permanently enjoined from further proceeding with Civil Case No. 7770.

This Decision is immediately executory. No costs.

SO ORDERED.

MATURAN V MAGLANA 113 SCRA 268 Facts: Petitioner Tereso Maturan was appointed as patrolman of San Francisco, Southern Leyte, then was promoted as police sergeant. The appointments of petitioner were provisional, which was renewed. Respondent Mayor Santiago Maglana suspended petitioner from office because of two pending criminal case against him and instructed petitioner to tender his resignation pursuant to Letter of Instruction No. 14 of the President of the Philippines Petitioner tendered his letter of resignation and was approved three months later. Petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that LOI No. 14 does not apply to him. In the meantime, the two criminal cases were dismissed. Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner of the dismissal of the criminal cases, and the preventive suspension has been lifted, and petitioner was directed to report for duty to his Chief of Police. Maturan reported for duty but Chief of Police Francisco Duterte refused to accept the former in the police force. Respondent Mayor sent a letter to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner was valid. The Deputy Executive Commissioner stated that since petitioner resigned from office, the lifting of his suspension is no longer feasible, the same having been rendered moot and academic. Petitioner filed a Petition for Mandamus with claim for backsalaries, travelling expenses and damages. He alleged that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of Par. 7 of Presidential Decree No. 12-A which provides: Members of the police force who have been preventively suspended shall, upon examination be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension. Respondent court dismissed the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignation submitted by the police force in compliance with the provisions of LOI No. 14 are valid. Lastly, the trial court ruled that since all petitioners appointment were provisional, he can be removed at any time by the appointing power.

Issue:

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

Held: Maturan cannot be reinstated to his former post. He 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 civil service eligibility makes his appointment temporary and without a definite term and is dependent entirely upon the pleasure of the appointing power. The fact that petitioner subsequently obtained a testimonial eligibility is of no moment. At the time he received his appointment, 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 re-appoint him for the power to appoint is in essence discretionary and the appointment 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. DE GUZMAN VS. SUBIDO, 120 SCRA 443

Facts: Petitioner Ernesto De Guzman was appointed patrolman in the Quezon City Police department by Mayor Norberto Amoranto. He was civil service eligible having taken and passed the civil service patrolmans examination. He had also passed the usual character investigation conducted before appointment. Petitioner went through and successfully completed the police training course. Petitioners appointment was forwarded to the CSC. After a year after the appointment and with no action on the appointment papers being taken by respondent commissioner (Abelardo Subido), the respondents City Treasurer and City Auditor stopped the payment of the petitioners salaries. Respondent Commissioner returned the petitioners appointment papers, without action thereon, to the respondent Mayor on the ground that Mr. De Guzman was disqualified for appointment under R.A. No. 4864, the Police Act of 1966. The finding was based solely on petitioners own answer to a question in the information sheet: Have you been accused, indicted, or tried, for the violation of any law, ordinance, or regulation, before any court or tribunal? In said question petitioner answered yes for jaywalking and violation of another ordinance requiring a cochero to occupy only the seat intended for a cochero in a calesa. The CFI dismissed the petition for certiorari and mandamus with preliminary injunction. According to the court, the requirement of no criminal record means without any criminal record and makes no distinction whether an act violates a state law or only a municipal or city ordinance.

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

Held: The requirements for applicants to a policemans position may be quite stringent but the basic policy 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 aft 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 phrase criminal record governing qualifications for appointment could not have been intended by the Legislature e 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 pubic office.

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.

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 1 and 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 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. 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 post-graduate 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. SO ORDERED.

G.R. No. 99391 December 2, 1991 PENDATUN ALIM, petitioner vs. CIVIL SERVICE COMMISSION, SALVADOR MISON, COMMISSIONER, BUREAU OF CUSTOMS and JESUSA TAGUINOD, respondents.

CRUZ, J.:p This is still another case where the petitioner invokes his security of tenure against what he claims to be 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 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 SEPARATED AS 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 the promotion 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 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, 4 Commission 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 is vacant.

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.

G.R. No. 93711 February 25, 1991 DR. EMILY M. MAROHOMBSAR, petitioner vs. AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON BATARA, respondents.

GUTIERREZ, JR., J.:p The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the respondent President may be removed from office even without cause. On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External Studies. On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs. On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that he has decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs which position is under the administrative staff of the respondent MSU President. The petitioner, on the same date, answered that she cannot accept the position since she has already started several projects in the OVCAA which she wants to see through.

The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in this case, as Officer-in-Charge of the OVCAA. The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent President. On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus. On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging that said respondent, in violation of the temporary restraining order issued by this Court submitted Special Order No. 158-P to the MSU Board of Regents for approval. The petitioner asserts that her appointment being permanent, she can be removed only after hearing and for cause. Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows: RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the Board of Regents the following Special Orders as amended/corrected are hereby confirmed: A. A.1 xxx DESIGNATIONS Major designations xxx xxx

9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an honorarium in accordance with the approved policies of the University, subject to accounting and auditing rules and regulations, effective January 2, 1989 and shall remain in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied) It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment in an acting capacity extended and received without any protest or reservation and who acts thereunder for a considerable time cannot later be heard to say that the appointment was, in reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965]) There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case. The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)

The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle. In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as VicePresident for External Studies. About nine months later, the Vice-Presidency for External Studies was "merged" with the ViceChancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice-Chancellor for Academic Affairs. The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss by the petitioner of her permanent status. There are reasons which indicate that these maneuverings by the respondent President cannot be characterized as bona fide. Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:

Personnel Matters. In accordance with the policies and rules prescribed by the Board, the specific powers of the President include the following (delegated powers) xxx xxx xxx

22. Designation of any Dean, Director, or Department Chairman in acting capacity or any Officer-inCharge for any of these positions, for a period of less than one year, such designation being made without additional compensation for the position designated except the honorarium attached to said position; PROVIDED, That the President shall report the designation in the next regular meeting after winch the designation shall be null and void unless otherwise renewed. The power to designate is vested in the MSU President. The designation must be less than one year. It must be reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied. On the other hand, the power to appoint is vested in the Board of Regents as follows: Sec. 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of administration and the exercise of the power of the corporation; xxx xxx xxx

(e) To appoint, on the recommendation of the President of the University, professor, instructors, lecturers and other employees of the University. . . . MSU Charter, RA 1387 If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted." When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. An ad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment. The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents. The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting appointments were submitted for approval or confirmation: 1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive VicePresident . . . ; 2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice President for Academic Affairs . . . ; 3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting Assistant Vice-President for Academic Affairs . . . ; 4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning and Development . . . ; 5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant Vice President for Planning and Development . . . ; 6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the Office of the Vice-President for Administration and Finance . . . ; 7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President for Administration and Finance . . . ; 8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting ViceChancellor for Academic Affairs, MSU Marawi Campus . . . ; 10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for Administration and Finance . . . ;

11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor for Research and Extension . . . (Rollo, pp. 117-118) The respondents argue that the permanent item of the petitioner is Professor VI. They state: xxx xxx xxx

Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the reason why petitioner's designation as Acting VCAA can not be deemed a regular or permanent appointment because, if it were so, the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130) This argument has no merit. As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. Deans and Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as ViceChancellor has a fixed term while that of Professor Tapales was until he retired or resigned. The attempt of the respondent to solve the problem by placing the petitioner in his own administrative staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this capacity from 1975 to 1978 after which she became Vice-President for External Studies in 1982. The proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to stay in her present position. She thanked the respondent but stated she would not be effective in the new position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There are transfers which appear to be promotions or lateral movements but are in truth demotions. There is no showing that the interest of the service would be served if the proffered appointment would be forced on her. No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined, and the Court agrees with him, that the petitioner may not be removed from the disputed office by the MSU President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No. 158-P issued by the respondent president designating respondent Batara as officer in-charge of the same office was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp. 119120) The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to the Board of Regents for approval. But such submission was made after the Court already issued its temporary restraining order and consequently, his action constituted contempt of Court. Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too harsh a remedy. The respondent President is, nevertheless, admonished for his action. When this Court issues a restraining order, it must be obeyed.

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

SO ORDERED.

JAIME T. PANIS vs. CIVIL SERVICE COMMISSION and BELLA V. VELOSO Facts: The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local government of Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while private respondent was Administrative Officer of the City Health Department detailed at the said hospital. Ordinance No. 1216 amending the Charter of Cebu changed the name of the hospital to CCMC and under such ordinance, the City Mayor appointed respondent Veloso as of Assistant Chief of Hospital for Administration. Panis assails this appointment saying that: 1) the position of Assistant Chief of Hospital for Administration was not legally created; (2) assuming that it was, there was no qualification standard nor valid screening procedure; and (3) the seniority and next-in-rank rules were disregarded. Panis protested the appointment which was however denied at all levels. Issues: 1. WON the office was validly created 2. WON Veloso was validly appointed to the position taking into consideration qualifications Held: 1. Yes Ratio: 2. Yes

1. Ordinance No. 1216 for the purpose of correcting the deficiencies and improving the performance of said institution amending the Charter of Cebu provided for an Office of Hospital Administrator, granted such powers as were deemed in line with the objectives of the Ordinance. The title of Hospital Administrator was later found to be a misnomer and thus was properly classified by the Joint Commission on Local Government Personnel Administration as one of Assistant Chief of Hospital for Administration. This classification was subsequently approved by the Department of Budget Management. The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, the designation thereof was merely corrected to reflect the proper classification of the position under existing rules. 2. Both candidates possess the minimum qualifications for the position. The determination of among the qualified candidates should be preferred belongs to the appointing authority. The "next in rank" rule specifically applies only in cases of promotion. This case however involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of present employees in the government service, by reinstatement, by reemployment of those separated from the service, and appointment of outsiders who have appropriate civil service eligibility, but not necessarily in this order. It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she was an outsider, the law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service eligibility. The concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall be considered for promotion. One who is "next in rank" to a vacancy is given preferential consideration for promotion to the vacant position, but it does not necessarily follow that he alone and no one else can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant position An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing authority. Whom to appoint among those qualified is an administrative question involving considerations of wisdom for the best interest of the service which only the appointing authority can decide. HOME INSURANCE AND GUARANTY CORPORATION (HIGC), Petitioner vs. CIVIL SERVICE COMMISSION and DANIEL R. CRUZ, Respondents.

BELLOSILLO, J.: This is a petition for certiorari 1 seeking to set aside the Resolutions 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 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's appeal. On 2 August 1989, however, the COMMISSION issued Resolution No. 89-543 finding Cruz to be a holder of a permanent career position at HIGC, hence, may be reappointed to 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. 89-973 holding that since Cruz had not received the early retirement benefits he applied for, he should be 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 his old salary rate as Vice-President. On 5 September 1990, the COMMISSION issued Resolution No. 90-823 denying petitioner's motion for reconsideration 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 and jurisprudence do not support the contention of private respondent. Presidential Decree No. 807, otherwise known as the "Civil Service Decree of the Philippines," provides the following levels 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 or supervisory capacity requiring less than four years of collegiate studies; (b) the second level, which includes professional, technical and scientific positions involving professional, technical, or scientific work in a nonsupervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and, (c) the third level, which includes positions in the Career Executive Service. Positions in the Career Executive Service consist of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank 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 policydetermining, primarily confidential or highly technical, by competitive examination. 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 and scientific positions involving professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level. 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.

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's 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's appointment being merely temporary in the context of the Civil Service Law, it follows that Cruz's appointment can be terminated at the pleasure of the appointing power. 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. It is certainly erroneous for respondent COMMISSION to direct HIGC to reappoint respondent Cruz, a noncivil 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. 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 six (6) 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 re-appointed Vice Presidents, Carlo P. Doble, Fernando M. Miranda and Wilfredo F. Hernandez . . . .

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 a 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. SO ORDERED.

Medenilla v. Civil Service Commission Facts: Petitioner Ardeliza Medenilla was a contractual employee of the DPWH occupying the position of PRO II.He was detailed as Technical Assistant in the Office of Secretary for Administration and Manpower Management .Pursuant to E.O. 124, a reorganization ensued within the DPWH and all the positions were abolished. He wasappointed to the position of Supervising Human Resource Development Officer. Section 4. An employee who holds a next in rank position who is competent and qualified, possesses an appropriate civil service eligibility and meets the other conditions for promotion shall be promoted to the higher position, when it becomes vacant . (Emphasis supplied) Respondents who are employees in the Human Resource Training and Material Development Division contested theappointment saying that being next-in-rank employees, one of them shouldve been appointed to the position. TheCSC sustained the protest saying that the next in rank should as far as

practicable be appointed. It also noted that while Medenilla is a contractual employee, the others are permanent. The MR by Medenilla was denied. Issues: 1. WON CSC acted with grave abuse of discretion in disapproving appointment of Medenilla 2. WON Medenilla was validly appointed by the appointing authority based on qualifications Held: 1. Yes Ratio: 1. When the appointee is qualified, CSC has no choice but to attest to the appointment. It is not within its prerogative to revoke an appointee on the ground that another person is better qualified for the job. Once the function is discharged, the CSCs participation in the appointment process ceases.3. Petitioner wasnt only a cum laude graduate from the UP, she has also acquired plenty of experience in the field of HRD. She was ranked No.1 in the Trainor's Training Program, was a recipient of a special commendation given by Executive Director of the National Commission in the Role of Filipino Woman, She obtained in her on-going MBA studies at the DLUS, which she pursued as an entrance scholar. CSC failed to consider that the petitioner, in her 1 year7 months experience with Guthrie-Jensen was engaged in research relating to performance appraisal systems and merit promotion systems which duties are all related to Human Resource Development. The disputed position requires of the holder of the office, skills in human resource developmental planning, research and statistics. The petitioner possesses these skills in more than appropriate quantities. Old employees should be considered first but it doesnt follow that they should automatically be appointed. The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. This is not always true and the law does not preclude the infusion of new blood, younger dynamism, or necessary talents into the government service. If, after considering all the current employees, the Department Secretary cannot find among them the person he needs, theres nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona fide for the best interest of the public service and the person chosen has the needed qualifications. The reason behind P.D. No. 907 of attracting honor graduates into the public service would be negated if they always have to start as Clerk I and wait for hundreds of deadwood above them to first go into retirement before they can hope for significant and fulfilling assignments. In this case, the contested position was created in the course of reorganization. The position appears to be a new one. The applicability, therefore, of the next-in-rank rule does not come in clearly. Besides, as earlier stated, said rule is not absolute. There are valid exceptions. Granting for the sake of argument that the case involves a promotional appointment, the next-in-rank rule must give way to the exigencies of the public service. The intent of the Civil Service Laws not merely to bestow upon permanent employees the advantage arising from their long employment but most specially, it is to foster a more efficient public service. 2. Yes