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FIRST DIVISION

[G.R. No. 129049. August 6, 1999]


BALTAZAR G. CAMPOREDONDO, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION (NLRC), Fifth Division, Cagayan de Oro City, THE PHILIPPINE NATIONAL
RED CROSS (PNRC), represented by GOVERNOR ROMEO C. ESPINO and DR. CELSO
SAMSON, respondents.
DECISION
PARDO, J.:
At issue in this case is whether the Philippine National Red Cross (PNRC for short) is
a government owned and controlled corporation or it has been impliedly converted
to a private organization subject to the jurisdiction of labor tribunals in a complaint
filed by petitioner, a former PNRC chapter administrator in Surigao del Norte, for
illegal dismissal and damages, as he was forced to "retire" after he was required to
restitute shortages and unremitted collections in the total sum of P135,927.78.
Having obviously no merit, we dismiss the petition.
All suitors must come to court with clean hands. This is especially true of paid staf
of the Philippine National Red Cross. Like its unpaid volunteers, they must be men of
unquestioned honesty and integrity serving in selfless manner to aid the sick and
wounded of armed forces in time of war, acting in voluntary relief in time of peace
and war, maintaining a system of national and international relief in meeting
emergency relief needs caused by typhoons, floods, fires, earthquakes, and other
natural disasters, and promoting such service in time of peace and war to improve
the health, safety and welfare of the Filipino people. [1] Paid staf of the PNRC are
government employees who are members of the Government Service Insurance
System and covered by the Civil Service Law. Unlike government service in other
agencies, Red Cross service demands of its paid staf uberrima fides, the utmost
good faith and dedication to work.
Since 1980, petitioner was employed with the PNRC, and until his early "retirement"
on December 15, 1995, he was administrator of the Surigao del Norte Chapter,
Philippine National Red Cross. [2]
In July, 1995, a field auditor of the PNRC conducted an audit of the books of account
of the Surigao del Norte Chapter headed by petitioner and found him short in the
total sum of P109,000.00.[3]
On November 21, 1995, Dr. Celso Samson, Secretary General of the PNRC wrote
petitioner requiring him to restitute within seventy two (72) hours from notice, the
total sum of P135,927.78 representing cash shortage, technical shortage and
unremitted collections.[4]

On December 15, 1995, petitioner applied for early retirement from the service, and
later wrote Dr. Samson requesting for a re-audit by an independent auditor of his
accounts. However, Dr. Samson denied the request. [5]
On May 28, 1996, petitioner filed with the National Labor Relations Commission,
Sub-Regional Arbitration Branch X, Butuan City, a complaint for illegal dismissal,
damages and underpayment of wages against the Philippine National Red Cross and
its key officials.[6]
On June 14, 1996, respondent Philippine National Red Cross filed with the Surigao
del Norte provincial office, Department of Labor and Employment, a motion to
dismiss the complaint for lack of jurisdiction over the subject matter of the case
because the PNRC is a government corporation whose employees are members of
the Government Service Insurance System (GSIS), and embraced within the Civil
Service Law and regulations.[7]
On July 25, 1996, petitioner filed an opposition to motion to dismiss arguing that
there was between the PNRC and its duly appointed paid staf, an employeremployee relationship, governed by the Labor Code of the Philippines. [8]
On October 11, 1996, the Labor Arbiter issued an order dismissing the complaint for
lack of jurisdiction, finding that the Philippine National Red Cross is a government
corporation with an original charter, having been created by Republic Act No. 95. [9]
On November 12, 1996, the Labor Arbiter denied petitioner's motion for
reconsideration filed on October 14, 1996.[10]
On November 20, 1996, petitioner filed a notice of appeal and appeal memorandum
with the National Labor Relations Commission. [11]
On March 21, 1997, the National Labor Relations Commission, Fifth Division, issued
a resolution dismissing the appeal and confirming the decision of the Labor Arbiter
that dismissed petitioner's complaint for lack of jurisdiction. [12]
Hence, this recourse.
On July 7, 1997, we resolved to require respondents to comment on the petition
within ten (10) days from notice.[13]
On August 7, 1997, respondent Philippine National Red Cross filed its comment.
[14]
On November 7, 1997, the Solicitor General filed its comment. [15]
Resolving the issue set out in the opening paragraph of this opinion, we rule that
the Philippine National Red Cross (PNRC) is a government owned and controlled
corporation, with an original charter under Republic Act No. 95, as amended. The
test to determine whether a corporation is government owned or controlled, or
private in nature is simple. Is it created by its own charter for the exercise of a

public function, or by incorporation under the general corporation law? Those with
special charters are government corporations subject to its provisions, and its
employees are under the jurisdiction of the Civil Service Commission, and are
compulsory members of the Government Service Insurance System. The PNRC was
not "impliedly converted to a private corporation" simply because its charter was
amended to vest in it the authority to secure loans, be exempted from payment of
all duties, taxes, fees and other charges of all kinds on all importations and
purchases for its exclusive use, on donations for its disaster relief work and other
services and in its benefits and fund raising drives, and be alloted one lottery draw
a year by the Philippine Charity Sweepstakes Office for the support of its disaster
relief operation in addition to its existing lottery draws for blood program.
Having served in the Philippine National Red Cross for a number of years since his
initial employment, he must know that it is a government corporation with its own
charter and that he was covered by compulsory membership in the Government
Service Insurance System, which is why he could apply, as he did, for "early"
retirement from the service under Presidential Decree No. 1146 or Republic Act No.
1616.[16]
WHEREFORE, the Court hereby DISMISSES the petition, and AFFIRMS the ruling of
the National Labor Relations Commission.
Double costs taxed against petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
[1]

Section 3, Rep. Act No. 95.

[2]

Par. 2, Complaint, Annex "A" Petition, Rollo, p. 15.

[3]

Par. 3, idem. Rollo, p. 16.

[4]

Par. 10, idem. Rollo, p. 18.

[5]

Pars. 11-12, idem. Rollo, pp. 18- 19.

[6]

Petition, Rollo, p. 4; Annex "A", Rollo, pp. 15-21.

[7]

Petition, Rollo, p. 4, Annex "B", Rollo, pp. 22-35.

[8]

Petition, Rollo, p. 5; Annex "C", Rollo, pp. 36-39.

[9]

Petition, Rollo, p. 5; Annex "F", pp. 64-69.

[10]

Petition, Rollo, p. 5; Annex "I", Rollo, p. 94.

[11]

Petition, Rollo, p. 5, Annexes "J", "J-1", Rollo, pp. 95-103.

[12]

Petition, Rollo, p. 5; Annex "L", pp. 111-114.

[13]

Rollo, p. 116.

[14]

Rollo, pp. 119-134.

[15]

Rollo, pp. 159-176.

[16]

Republic Act No. 8291, enacted on May 30, 1997, expanded the retirement rights
of government workers.

SECOND DIVISION
[G.R. No. 122327. August 19, 1998]
ARTEMIO J. ROMARES, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and PILMICO FOODS CORPORATION, respondents.
DECISION
MARTINEZ, J.:
This is a case of illegal dismissal. The decision of the Executive Labor
Arbiter[1] einstating petitioner was reversed by the National Labor Relations
Commission. Hence, this appeal.
The antecedent facts as summarized in the decision of the Executive Labor Arbiter
are as follows:
Complainant in his Complaint and Position Paper alleged that he was hired by
respondent in its Maintenance/Projects/Engineering Department during the periods
and at respective rates as follows:
1. Sept. 1, 1989 to Jan. 31, 1990 - P 89.00/day
2. Jan.16, 1991 to Jun. 15, 1991 - 103.00/day
3. Aug. 16, 1992 to Jan. 15, 1993 - 103.00/day
That having rendered a total service of more than one (1) year and by operation of
law, complainant has become a regular employee of respondent; That complainant
has performed tasks and functions which were necessary and desirable in the
operation of respondents business which include painting, maintenance, repair and
other related jobs; That complainant was never reprimanded nor subjected to any
disciplinary action during his engagement with the respondent; That without any
legal cause or justification and in the absence of any time to know of the charge or
notice nor any opportunity to be heard, respondent terminated him; That his
termination is violative to security of tenure clause provided by law; That
complainant be awarded damages and prays that he be reinstated to his former
position, be awarded backwages, moral and exemplary damages and attorneys
fees.
Respondent on the other hand maintains that complainant was a former contractual
employee of respondent and as such his employment was covered by contracts;

That complainant was hired as mason in the Maintenance/Project Department and


that he was engaged only for a specific project under such department; That
complainants services as mason was not continuous, in fact, he was employed with
International Pharmaceuticals, Inc. in Opol, Misamis Oriental from January to April
1992; That when his last contract expired on January 15, 1993, it was no longer
renewed and thereafter, complainant filed this instant complaint; he prays that this
instant petition be dismissed for lack of merit. [2]
In finding that petitioner is a regular employee, the Executive Labor Arbiter said:
The records reveal that complainant has been hired and employed by respondent
PILMICO since September 1, 1989 to January 15, 1993, in a broken tenure but all in
all totalled to over a years service. Complainants period of employment started on
September 1, 1989 up to January 31, 1990 or for a period of five (5) months. Then
on January 16, 1991, he was hired again up to June 15, 1991, or for a period
covering another five (5) months. Then on August 16, 1992, he was hired again up
to January 15, 1993 or for a period of another five (5) months. Thus, from
September 1, 1989 up to January 15, 1993, complainant has worked for fifteen (15)
months more or less and has been hired and terminated three times. But in all his
engagements
by
respondent,
he
was
assigned
at
respondents
Maintenance/Projects/Engineering Department performing maintenance work,
particularly the painting of company buildings, maintenance chores, like cleaning
and sometimes operating company equipment and sometimes assisting the
regulars in the Maintenance/Engineering Department. The fact that complainant
was hired, terminated and rehired again for three times in a span of more than
three (3) years and performing the same functions, only bolstered our findings that
complainant is already considered a regular employee and therefore covered by
security of tenure and cannot be removed except for lawful and valid cause as
provided by law and after due process. There is no dispute that complainant, in the
case at bar, has already served respondent for more than six (6) months, the period
allowable for probationary period and even more than one year service which under
the law shall be considered a regular employee. This finding and conclusion finds
application in the case of Kimberly Independent Labor Union for Solidarity, Activism
and Nationalism - Olalia v. Hon. Franklin M. Drilon, G.R. No. 77629 and 78791,
promulgated last May 9, 1990, wherein the Honorable Supreme Court has classified
the two kinds of regular employees as:
1. those who are engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer; and,
2. those who have rendered at least one (1) year of service whether continuous or
broken with respect to the activity in which they are employed.
While the actual regularization of the employees entails the mechanical act of
issuing regular appointment papers and compliance with such other operating

procedures, as may be adopted by the employer, it is more in keeping with the


intent and spirit of the law to rule that the status of regular employment attaches to
the casual employee on the day immediately after the end of his first year of
service.
Applying the above classification in this particular case, there is no doubt that
herein complainant falls within the second classification and as such, he is a regular
employee of respondent PILMICO. And being a regular employee, he is vested with
his constitutional right to due process before he can be terminated from his work
and only for valid and lawful cause as provided by law. xxx. In the case of National
Service Corporation v. NLRC, 168 SCRA 122, the Court has laid down the guidelines
or requisites to be complied in order that termination of employment can be legally
efected, to wit:
These are:
1. the notice which apprises the employee of the particular acts or omissions for
which his dismissal is sought, and
2. the subsequent notice which informs the employee of the employers decision to
dismiss him.
xxxxxxxxx
In the case at bar, respondent did not comply with the above guidelines for the
dismissal of herein complainant. The procedure prescribed by law is
mandatory. Unless followed, the employees right to due process of law is breached
and vitiates managements decision to terminate the employment.
This ELA having declared herein complainant as a regular employee as above
stated, then his separation or termination from respondent company not being in
consonance with the guidelines enunciated by law, his termination is therefore
illegal.[3]
and thereafter disposed of the case as follows:
WHEREFORE, in the light of the above-discussion, it is hereby declared and ordered
that complainant ARTEMIO J. ROMARES is a regular employee of respondent PILMICO
FOODS CORPORATION since January 16, 1993 and his termination on the same date
is illegal as contrary to law and public policy and therefore, he would be reinstated
to his former position as if he was not terminated and to be entitled to all benefits,
allowances accruing thereto and without loss of seniority rights.
Likewise, respondent PILMICO in consonance with the above-discussion is hereby
ordered to pay complainant the following, to wit:
1. Backwages in the amount of P34,814.00;

2. Attorneys fees representing 5% of the amount awarded for backwages,


allowances and other benefits.
3. All other claims are hereby dismissed for lack of merit.
SO ORDERED.[4]
On appeal, the NLRC [5] set aside the decision of the Executive Labor Arbiter and
ruled:
Respondent argues that even if the employee was performing work which is related
to the business or trade of the employer, the employee cannot be considered a
regular employee if his employment is for a specific project or undertaking and for a
fixed period (Vol. 1, p. 26, supra), hence, the applicable provision is paragraph 1 and
not paragraph 2 of Article 280 of the Labor Code, as amended (Vol. 2, p. 5, supra).
With the given circumstances, we cannot agree with the pronouncement of the
Executive Labor Arbiter that it is the intent and spirit of the law that the status of
regular employment is attached to the worker on the day immediately after the end
of his first year of service (Vol. 1, p. 50, supra).
What is apparently applicable in the case at bar is paragraph 1 of Article 280 of the
Labor Code, as amended. As clearly shown by evidence, complainants employment
contracts (Vol. 1, pp.39-40, supra), were for fixed or temporary periods. Thus, when
complainants employment with respondent was terminated (Vol. 1, p. 41, supra),
such cannot be considered as illegal since the termination was due to the expiration
of the contract.
WHEREFORE, the assailed decision is Vacated and Set Aside. The complaint is
hereby Dismissed for lack of merit.
SO ORDERED.[6]
The motion for reconsideration having been denied, petitioner interposed this
petition for certiorari and prohibition.
We find the petition meritorious.
Petitioner seeks to traverse the NLRC's ruling that the applicable provision in the
case at bar is paragraph 1 of Article 280 of the Labor Code, as amended. In this
regard, the NLRC concluded that since petitioner's employment contracts were for
fixed or temporary periods, as an exception to the general rule, he was validly
terminated due to expiration of the contract of employment.
In determining the status of petitioner as a regular employee, reference is made to
Article 280 of the Labor Code, as amended. [7] Thus, the two kinds of regular
employees are (1) those who are engaged to perform activities which are necessary
or desirable in the usual business or trade of the employer; and (2) those casual

employees who have rendered at least one year of service, whether continuous or
broken, with respect to the activity in which they are employed. [8]
Construing the aforesaid provision, the phrase usually necessary or desirable in the
usual business or trade of the employer should be emphasized as the criterion in
the instant case. Facts show that petitioners work with PILMICO as a mason was
definitely necessary and desirable to its business. PILMICO cannot claim that
petitioners work as a mason was entirely foreign or irrelevant to its line of business
in the production of flour, yeast, feeds and other flour products.
The language of the law evidently manifests the intent to safeguard the tenurial
interest of the worker who may be denied the rights and benefits due a regular
employee by virtue of lopsided agreements with the economically powerful
employer who can maneuver to keep an employee on a casual status for as long as
convenient.[9] It is noteworthy that during each rehiring, the summation of which
exceeded
one
(1)
year,
petitioner
was
assigned
to
PILMICOs
Maintenance/Projects/Engineering Department performing the same kind of
maintenance work such as painting of company buildings, cleaning and operating
company equipment, and assisting the other regular employees in their
maintenance works. Such a continuing need for the services of petitioner is
sufficient evidence of the necessity and indispensability of his services to PILMICOs
business or trade.[10] The fact that petitioner was employed with another company in
the interregnum from January to April, 1992 is of no moment.
To expound further, granting arguendo that petitioner was regarded as a temporary
employee, he had been converted into a regular employee by virtue of the proviso
in the second paragraph of Article 280 for having worked with PILMICO for more
than one (1) year. We held in Baguio Country Club Corporation vs. NLRC [11] that:
x x x if the employee has been performing the job for at least one year, even if the
performance is not continuous or merely intermittent, the law deems the repeated
and continuing need for its performance as sufficient evidence of the necessity if
not indispensability of that activity to the business. Hence, the employment is also
considered regular but only with respect to such activity and while such activity
exists.
Succinctly put, in rehiring petitioner, employment contracts [12] ranging from two (2)
to three (3) months with an express statement that his temporary job/service as
mason shall be terminated at the end of the said period or upon completion of the
project was obtrusively a convenient subterfuge utilized to prevent his
regularization. It was a clear circumvention of the employees right to security of
tenure and to other benefits. [13] It likewise evidenced bad faith on the part of
PILMICO.
The limited period specified in petitioners employment contract having been
imposed precisely to circumvent the constitutional guarantee on security of tenure

should, therefore, be struck down or disregarded as contrary to public policy or


morals.[14] To uphold the contractual arrangement between PILMICO and petitioner
would, in efect, permit the former to avoid hiring permanent or regular employees
by simply hiring them on a temporary or casual basis, thereby violating the
employees security of tenure in their jobs. [15]
Article 280 was emplaced in our statute books to prevent the circumvention of the
employees right to be secure in his tenure by indiscriminately and completely ruling
out all written and oral agreements inconsistent with the concept of regular
employment defined therein.[16] Where an employee has been engaged to perform
activities which are usually necessary or desirable in the usual business of the
employer, such employee is deemed a regular employee and is entitled to security
of tenure notwithstanding the contrary provisions of his contract of employment. [17]
We cannot subscribe to the erroneous ruling of the NLRC that the applicable
provision is paragraph 1 of Article 280 of the Labor Code, as amended, which makes
petitioners employment contracts for fixed or temporary periods. Stated otherwise,
NLRC erred in finding that the contract of employment of petitioner was for a fixed
or specified period.
At this juncture, the leading case of Brent School, Inc. vs . Zamora[18] proves
instructive. As reaffirmed in subsequent cases, [19] this Court has upheld the legality
of fixed-term employment. It ruled that the decisive determinant in term
employment should not be the activities that the employee is called upon to
perform but the day certain agreed upon by the parties for the commencement and
termination of their employment relationship. But this Court went on to say that
where from the circumstances it is apparent that the periods have been imposed to
preclude acquisition of tenurial security by the employee, they should be struck
down or disregarded as contrary to public policy and morals.
The Brent ruling[20] also laid down the criteria under which term employment cannot
be said to be in circumvention of the law on security of tenure:
1. The fixed period of employment was knowingly and voluntarily agreed upon by
the parties without any force, duress, or improper pressure being brought to bear
upon the employee and absent any other circumstances vitiating his consent; or
2) It satisfactorily appears that the employer and the employee dealt with each
other on more or less equal terms with no moral dominance exercised by the former
or the latter.
None of these requisites were complied with.
WHEREFORE, prescinding from the foregoing disquisition, the present petition is
GRANTED. The challenged Resolution dated February 21, 1995 of the NLRC is

REVERSED and SET ASIDE, and the Decision dated February 15, 1994 of the
Executive Labor Arbiter is hereby REINSTATED.
SO ORDERED.
Melo, Puno and Mendoza, JJ., concur.
Regalado (Chairman), J., on official leave.

G.R. No. 112045 May 29, 1995


DANILO
F.C.
RIMONTE, petitioner,
vs.
CIVIL SERVICE COMMISSION, OFFICE OF THE OMBUDSMAN and HENRIETTA
F. ROQUE, respondents.

BELLOSILLO, J.:
Petitioner seeks review on certiorari of CSC Resolution No. 93-2368 dated 29 June
1993 1 which dismissed his appeal from the appointment of respondent Henrietta F.
Roque as Records Officer V, Central Records Division, Office of the Ombudsman, and

CSC Resolution No. 93-3775 dated 10 September 1993 2 denying his motion for
reconsideration.
On 7 November 1989 R.A. No. 6770, "An Act Providing for the Functional and
Structural Organization of the Office of the Ombudsman and for other purposes,"
was enacted into law.
On 13 June 1990 Ombudsman Conrado M. Vasquez issued Office Order No. 90-32
directing the implementation of the "performance appraisal system" as basis for
evaluation of all incumbents. On 14 June 1990, he issued Office Order No. 90-33
providing for the "General Policy and Procedural Guidelines in the Placement of
Personnel for the New Staffing Pattern."
Petitioner was then the incumbent Planning Officer III in the Office of the
Ombudsman. On 27 June 1990, petitioner applied for any of the positions of Records
Officer V of the Central Records Division, Chief of Monitoring and EDP Division, or
Administrative Officer V of the Office of the Deputy Ombudsman for the Armed
Forces.
On 1 October 1990, petitioner was appointed to the position of Associate Graft
Investigation Officer III 3 while respondent Henrietta F. Roque was appointed Records
Officer V or Chief of the Central Records Division, Office of the Ombudsman.
On 19 November 1990 petitioner filed his appeal and protest against the
appointment of respondent Roque. On 21 December 1990, in a letter to petitioner,
Ombudsman Vasquez denied the appeal thus
Reference is made to your letter of appeal/reconsideration dated November 10,
1990 praying that the appointment of Ms. Henrietta F. Roque as Records Officer V,
Central Records Division, be recalled claiming you have better qualification than her
and that you be appointed as such in her place.
Please be informed that as appointing authority, I am given ample discretion to
appoint to any vacant position any person who possesses at least the minimum
qualifications thereof. In your appeal, you failed to show that Ms. Roque is not
qualified to hold the contested position. Accordingly, your appeal is hereby denied. 4
On 4 January 1991 petitioner appealed from the decision of the Ombudsman to the
Civil Service Commission alleging that the Ombudsman erred (a) in holding that
being the appointing authority he was given ample discretion to appoint to any
vacant position any person who possesses at least the minimum qualifications; and,
(b) in holding that petitioner failed to show that respondent Roque was not qualified
to hold the contested position.
On 17 June 1993 respondent Roque submitted to respondent Commission her
personal data and other documents to show that she was qualified for the position
of Records Officer V to which she was appointed.

On 29 June 1993, respondent Commission issued Resolution No. 932368 5 dismissing the appeal of petitioner on the basis of pronouncements of this
Court holding that an appointment is essentially discretionary on the part of the
appointing authority provided the appointee is qualified. Respondent Commission
also found that petitioner did not dispute the qualification of respondent Roque to
the contested position.
Petitioner moved to reconsider the resolution of respondent Commission alleging
that the latter erred: (a) in applying the doctrine laid down in Luego v. Civil Service
Commission 6 to the appeal of petitioner; (b) in admitting the letter and documents
submitted by respondent Roque in support of her claim that she possessed the
experience requirement for the position of Records Officer V; and, (c) in ruling that
respondent Roque was qualified for appointment to the contested position.
On 10 September 1993, respondent Commission issued Resolution No. 933775 7 stating that the grounds raised by petitioner had been thoroughly discussed
and resolved in Resolution No. 93-2368 dated 29 June 1993 and that it had already
been established that respondent Roque met the minimum requirements for the
position.
Petitioner comes to us imputing error to respondent Civil Service Commission in not
finding that the appointment by the Ombudsman of respondent Roque as Records
Officer V was not in accord with the legal requirements of R.A. 6656 and the Rules
on Government Reorganization, and in finding respondent Roque qualified for the
position of Records Officer V.
We shall discuss jointly the issues raised by petitioner as they are interrelated.
Petitioner contends that there were flagrant violations of the reorganization law and
rules attendant to the appointment of respondent Roque to the post of Records
Officer V. Petitioner also submits that the Final Ranking Form 8 for the position of
Records Officer V signed by the members of the Central Placement Committee
shows certain violations, i.e., (a) no incumbent Ombudsman personnel was
considered for the contested position except respondent Roque despite his
application for the position; (b) respondent Roque was considered and assessed for
the contested position on the basis of an "ASSUMED" performance rating given by
the Central Placement Committee; and, (c) the percentage weight of the criteria for
evaluation used by the Central Placement Committee was diferent from those
prescribed under Office Order No. 90-32. 9 Petitioner alleges that respondent Civil
Service Commission failed to take into account these violations when it affirmed the
appointment of respondent Roque. Petitioner insists that he is more qualified than
Roque in terms of performance which is one of the criteria provided by the
reorganization law, and that while the appointing authority has discretion in the
appointment of its personnel such discretion is not absolute but must yield to the
intent and criteria laid down by law.

The arguments of petitioner cannot be sustained.


The Civil Service Commission is the single arbiter of all contests relating to civil
service; as such its judgments are unappealable and subject only to
the certiorari jurisdiction of this Court, 10 at least until 1 June 1995 when Rev. Adm.
Circ. No. 1-95, amending Rev. Circ. No. 1-91, shall take efect. 11 In view thereof this
Court cannot engage in a review of facts found or even of law as interpreted by the
agency concerned unless the supposed errors of fact or law are so serious and
prejudicial as to amount to a grave abuse of discretion. Moreover, erroneous
findings and conclusions do not render the respondent Commission vulnerable to
the corrective writ of certiorari, for where the Commission has jurisdiction over the
case, even if its findings are not correct, they would at most constitute errors of law
and not an abuse of discretion correctible by certiorari.
After a review of the questioned CSC Resolutions Nos. 93-2368 and 93-3775, this
Court fails to find any grave abuse of discretion committed by respondent Civil
Service Commission in the issuance thereof to justify a grant of the writ prayed for.
The qualification standards for the position of Records Officer V are: Education a
Bachelor's degree with training in Records Management; Experience three (3)
years of responsible experience in supervising personnel engaged in records
management activities, developing work standards and efficient methods and
procedures in the maintenance of active continuing program of records disposition
and preservation or other related work; Eligibility CS Professional. 12
In order to comparatively assess the relative fitness and competence of employees
considered for placement, Office Order No. 90-32 13 issued 13 June 1990 by
Ombudsman Vasquez provided for the following criteria: (a) performance for the last
two years or from the date of efectivity of appointment until the present, 65%; (b)
manifested personality attributes, 15%; (c) education and training, 10%; and, (d)
experience and outstanding accomplishments, 10%. Office Order No. 90-33 issued
on 14 June 1990 by the Ombudsman provides that the latter shall be assisted by a
Central Placement Committee created by Office Order 90-27 in the selection of
personnel to be recommended in the Central Office of the Ombudsman. 14 It is
worthy to emphasize at this point that even the internal rules of the Office of the
Ombudsman in the selection and appointment of its personnel confer upon the
Ombudsman the ultimate discretionary power to appoint and that the evaluation or
selection of personnel by the Central Placement Committee is merely
recommendatory.
Respondent Civil Service Commission found from the records that respondent Roque
possessed the minimum qualifications required for the position of Records Officer V
to which she was appointed. She graduated with a degree of Bachelor of Business
Administration. She has the General Clerical, Stenographer and Career Service

Professional eligibilities. Her work experience also shows she is qualified for the
position. 15
These findings are not refuted by petitioner. He claims however that his
performance rating is outstanding being placed at 65/65 16 which is equivalent to
100%, while the performance rating of respondent Roque given by the Central
Administrative Bureau is 2.4/3 17 which is equivalent to .80 or 80%, and was
indicated as an assumed rating only because none was given by her immediate
supervisor. Petitioner banks on this seeming disparity in their performance ratings,
with him obtaining a higher rating, to justify the nullification of the appointment of
respondent Rogue.
The head of an agency who is the appointing power is the one most knowledgeable
to decide who can best perform the functions of the office. Appointment is an
essentially discretionary power and must be performed by the officer vested with
such power according to his best lights, the only condition being that the appointee
should 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 preferred. Indeed, this is a prerogative of the appointing authority which
he alone can decide 18 The choice of appointee from among those who possess the
required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which
can best be made by the head of the office concerned, the person most familiar
with the organizational structure and environmental circumstances within which the
appointee must function. 19 Hence, when Ombudsman Vasquez appointed
respondent Roque to the position of Records Officer V, his act in doing so confirmed
Roque's performance rating which can be understood to be at least very
satisfactory. From the vantage point of the Ombudsman, she is the person who can
best fill the post and discharge its functions. We cannot argue against this
proposition.
Since there is no doubt that Roque possesses the minimum qualifications for the
position, respondent Civil Service Commission acted well within its discretion in the
exercise of its jurisdiction in attesting to the appointment of Roque. As long as the
appointee is qualified the Civil Service Commission has no choice but to attest to
and respect the appointment even if it be proved that there are others with superior
credentials. The law limits the Commission's authority only to whether or not the
appointees possess the legal qualifications and the appropriate civil service
eligibility, nothing else. If they do then the appointments are approved because the
Commission cannot exceed its power by substituting its will for that of the
appointing authority. 20 Neither can we.
WHEREFORE, the petition is DISMISSED and the Resolutions of respondent Civil
Service Commission Nos. 93-2368 dated 29 June 1993 and 93-3775 dated 10
September 1993 are AFFIRMED.

SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.

Torregoza vs. CSC, 211 SCRA 230 (not found)


SECOND DIVISION
[G.R. No. 134990. April 27, 2000]
MANUEL M. LEYSON JR., petitioner, vs. OFFICE OF THE OMBUDSMAN, TIRSO
ANTIPORDA, Chairman, UCPB and CIIF Oil Mills, and OSCAR A. TORRALBA,
President, CIIF Oil Mills, respondents. ALEX
DECISION
BELLOSILLO, J.:
On 7 February 1996 International Towage and Transport Corporation (ITTC), a
domestic corporation engaged in the lighterage or shipping business, entered into a

one (1)-year contract with Legaspi Oil Company, Inc. (LEGASPI OIL), Granexport
Manufacturing Corporation (GRANEXPORT) and United Coconut Chemicals, Inc.
(UNITED COCONUT), comprising the Coconut Industry Investment Fund (CIIF)
companies, for the transport of coconut oil in bulk through MT Transasia. The
majority shareholdings of these CIIF companies are owned by the United Coconut
Planters Bank (UCPB) as administrator of the CIIF. Under the terms of the contract,
either party could terminate the agreement provided a three (3)-month advance
notice was given to the other party. However, in August 1996, or prior to the
expiration of the contract, the CIIF companies with their new President, respondent
Oscar A. Torralba, terminated the contract without the requisite advance notice. The
CIIF companies engaged the services of another vessel, MT Marilag, operated by
Southwest Maritime Corporation. miso
On 11 March 1997 petitioner Manuel M. Leyson Jr., Executive Vice President of ITTC,
filed with public respondent Office of the Ombudsman a grievance case against
respondent Oscar A. Torralba. The following is a summary of the irregularities and
corrupt practices allegedly committed by respondent Torralba: (a) breach of contract
- unilateral cancellation of valid and existing contract; (b) bad faith - falsification of
documents and reports to stop the operation of MT Transasia; (c) manipulation influenced their insurance to disqualify MT Transasia; (d) unreasonable denial of
requirement imposed; (e) double standards and inconsistent in favor of MT
Marilag; (f) engaged and entered into a contract with Southwest Maritime Corp.
which is not the owner of MT Marilag, where liabilities were waived and whose paidup capital is only P250,000.00; and, (g) overpricing in the freight rate causing losses
of millions of pesos to Cocochem.[1]
On 2 January 1998 petitioner charged respondent Tirso Antiporda, Chairman of
UCPB and CIIF Oil Mills, and respondent Oscar A. Torralba with violation of The AntiGraft and Corrupt Practices Act also before the Ombudsman anchored on the
aforementioned alleged irregularities and corrupt practices. spped
On 30 January 1998 public respondent dismissed the complaint based on its finding
that
The case is a simple case of breach of contract with damages which should have
been filed in the regular court. This Office has no jurisdiction to determine the
legality or validity of the termination of the contract entered into by CIIF and ITTC.
Besides the entities involved are private corporations (over) which this Office has no
jurisdiction.[2]
On 4 June 1998 reconsideration of the dismissal of the complaint was denied. The
Ombudsman was unswayed in his finding that the present controversy involved
breach of contract as he also took into account the circumstance that petitioner had
already filed a collection case before the Regional Trial Court of Manila-Br. 15,
docketed as Civil Case No. 97-83354. Moreover, the Ombudsman found that the

filing of the motion for reconsideration on 31 March 1998 was beyond the
inextendible period of five (5) days from notice of the assailed resolution on 19
March 1998.[3] miso
Petitioner now imputes grave abuse of discretion on public respondent in dismissing
his complaint. He submits that inasmuch as Philippine Coconut Producers
Federation, Inc. (COCOFED) v. PCGG [4] and Republic v. Sandiganbayan [5] have
declared that the coconut levy funds are public funds then, conformably
with Quimpo v. Tanodbayan, [6] corporations formed and organized from those funds
or whose controlling stocks are from those funds should be regarded as government
owned and/or controlled corporations. As in the present case, since the funding or
controlling interest of the companies being headed by private respondents was
given or owned by the CIIF as shown in the certification of their Corporate
Secretary,[7] it follows that they are government owned and/or controlled
corporations. Corollarily, petitioner asserts that respondents Antiporda and Torralba
are public officers subject to the jurisdiction of the Ombudsman. Sdaadsc
Petitioner alleges next that public respondent's conclusion that his complaint refers
to a breach of contract is whimsical, capricious and irresponsible amounting to a
total disregard of its main point, i. e., whether private respondents violated The
Anti-Graft and Corrupt Practices Act when they entered into a contract with
Southwest Maritime Corporation which was grossly disadvantageous to the
government in general and to the CIIF in particular. Petitioner admits that his motion
for reconsideration was filed out of time. Nonetheless, he advances that public
respondent should have relaxed its rules in the paramount interest of justice; after
all, the delay was just a matter of days and he, a layman not aware of technicalities,
personally filed the complaint. Rtcspped
Private respondents counter that the CIIF companies were duly organized and are
existing by virtue of the Corporation Code. Their stockholders are private individuals
and entities. In addition, private respondents contend that they are not public
officers as defined under The Anti-Graft and Corrupt Practices Act but are private
executives appointed by the Boards of Directors of the CIIF companies. They
asseverate that petitioner's motion for reconsideration was filed through the expert
assistance of a learned counsel. They then charge petitioner with forum shopping
since he had similarly filed a case for collection of a sum of money plus damages
before the trial court.
The Office of the Solicitor General maintains that the Ombudsman approved the
recommendation of the investigating officer to dismiss the complaint because he
sincerely believed there was no sufficient basis for the criminal indictment of private
respondents. spped
We find no grave abuse of discretion committed by the Ombudsman. COCOFED v.
PCGG referred to in Republic v. Sandiganbayan reviewed the history of the coconut

levy funds. I These funds actually have four (4) general classes: (a) the Coconut
Investment Fund created under R. A. No. 6260; [8] (b) the Coconut Consumers
Stabilization Fund created under P. D. No. 276; [9] (c) the Coconut Industry
Development Fund created under P. D. No. 582; [10] and, (d) the Coconut Industry
Stabilization Fund created under P. D. No. 1841. [11]
The various laws relating to the coconut industry were codified in 1976. On 21
October of that year, P. D. No. 961 [12] was promulgated. On 11 June 1978 it was
amended by P. D. No. 1468[13] by inserting a new provision authorizing the use of the
balance of the Coconut Industry Development Fund for the acquisition of "shares of
stocks in corporations organized for the purpose of engaging in the establishment
and operation of industries x x x commercial activities and other allied business
undertakings relating to coconut and other palm oil indust(ries)." [14]From this fund
thus created, or the CIIF, shares of stock in what have come to be known as the
"CIIF companies" were purchased. miso
We then stated in COCOFED that the coconut levy funds were raised by the State's
police and taxing powers such that the utilization and proper management thereof
were certainly the concern of the Government. These funds have a public character
and are clearly afected with public interest.
Quimpo v. Tanodbayan involved the issue as to whether PETROPHIL was a
government owned or controlled corporation the employees of which fell within the
jurisdictional purview of the Tanodbayan for purposes of The Anti-Graft and Corrupt
Practices Act. We upheld the jurisdiction of the Tanodbayan on the ratiocination that
While it may be that PETROPHIL was not originally "created" as a governmentowned or controlled corporation, after it was acquired by PNOC, which is a
government-owned or controlled corporation, PETROPHIL became a subsidiary of
PNOC and thus shed-of its private status. It is now funded and owned by the
government as, in fact, it was acquired to perform functions related to government
programs and policies on oil, a vital commodity in the economic life of the nation. It
was acquired not temporarily but as a permanent adjunct to perform essential
government or government-related functions, as the marketing arm of the PNOC to
assist the latter in selling and distributing oil and petroleum products to assure and
maintain an adequate and stable domestic supply. Korte
But these jurisprudential rules invoked by petitioner in support of his claim that the
CIIF companies are government owned and/or controlled corporations are
incomplete without resorting to the definition of "government owned or controlled
corporation" contained in par. (13), Sec. 2, Introductory Provisions of the
Administrative Code of 1987, i. e., any agency organized as a stock or non-stock
corporation vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government directly or through its

instrumentalities either wholly, or, where applicable as in the case of stock


corporations, to the extent of at least fifty-one (51) percent of its capital stock. The
definition mentions three (3) requisites, namely, first, any agency organized as a
stock or non-stock corporation; second, vested with functions relating to public
needs whether governmental or proprietary in nature; and, third, owned by the
Government directly or through its instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock. Sclaw
In the present case, all three (3) corporations comprising the CIIF companies were
organized as stock corporations. The UCPB-CIIF owns 44.10% of the shares of
LEGASPI OIL, 91.24% of the shares of GRANEXPORT, and 92.85% of the shares of
UNITED COCONUT.[15] Obviously, the below 51% shares of stock in LEGASPI OIL
removes this firm from the definition of a government owned or controlled
corporation. Our concern has thus been limited to GRANEXPORT and UNITED
COCONUT as we go back to the second requisite. Unfortunately, it is in this regard
that petitioner failed to substantiate his contentions. There is no showing that
GRANEXPORT and/ or UNITED COCONUT was vested with functions relating to public
needs whether governmental or proprietary in nature unlike PETROPHIL
in Quimpo. The Court thus concludes that the CIIF companies are, as found by
public respondent, private corporations not within the scope of its jurisdiction. Sclex
With the foregoing conclusion, we find it unnecessary to resolve the other issues
raised by petitioner.
A brief note on private respondents' charge of forum shopping. Executive Secretary
v. Gordon[16] is instructive that forum shopping consists of filing multiple suits
involving the same parties for the same cause of action, either simultaneously or
successively, for the purpose of obtaining a favorable judgment. It is readily
apparent that the present charge will not prosper because the cause of action
herein, i. e., violation of The Anti-Graft and Corrupt Practices Act, is diferent from
the cause of action in the case pending before the trial court which is collection of a
sum of money plus damages. miso
WHEREFORE, the petition is DISMISSED. The Resolution of public respondent Office
of the Ombudsman of 30 January 1998 which dismissed the complaint of petitioner
Manuel M. Leyson Jr., as well as its Order of 4 June 1998 denying his motion for
reconsideration, is AFFIRMED. Costs against petitioner.
SO ORDERED.apdc
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 144464. November 27, 2001]


GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL SERVICE
COMMISSION, respondent.
DECISION
KAPUNAN, J.:
Assailed in the instant petition is the decision of the Court of Appeals upholding
Resolution No. 981695 of the Civil Service Commission for allegedly being contrary
to law and jurisprudence.
The facts are as follows:
On September 9, 1994, the Chairperson of the Civil Service Commission (CSC),
received a letter from a private individual, Carmelita B. Esteban, claiming that,
during the examinations for non-professional in the career civil service, given by the
Civil Service Commission, on July 30, 1989 in Quezon City, Zenaida C. Paitim, the
Municipal Treasurer of Norzagaray, Bulacan, falsely pretending to be the examinee,
Gilda Cruz, a co-employee in the said office, took the examinations for the latter.
Carmelita Esteban requested the CSC to investigate the matter, appending to said
letter, pictures purporting to be those of Gilda Cruz and Zenaida Paitim.
On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission, issued a
Memorandum to Eliseo Gatchalian, the Director of the Management Information
Office of the Commission, requesting the latter to furnish her with the picture seat
plan of the room where Gilda G. Cruz was during the said examination, to ascertain
the veracity of the letter-complaint. Eliseo S. Gatchalian did furnish Erlinda Rosas

with certified true copies of the picture seat plans of the rooms where Gilda G. Cruz
was assigned not only in the 1989 but also in the 1987 and 1988 career service
(sub-professional) examinations. On November 8, 1994, Erlinda Rosas thereby wrote
a Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated November
8, 1994, declaring that based on the record, she found a prima facie case against
Zenaida Paitim and Gilda G. Cruz.
On the basis of said memorandum, a fact finding investigation was conducted. On
March 31, 1995, a "Formal Charge" for "Dishonesty, Grave Misconduct, and Conduct
Prejudicial to the Best Interest of the Service" signed by Bella Amilhasan, Director IV
of the Civil Service Commission Regional Office No. 3 was filed against Gilda Cruz
and Zenaida C. Paitim, with the Civil Service Commission, docketed as
Administrative Case No. D3-95-052, which reads as follows:
FORMAL CHARGE
MESDAMES:
This Office has found after a fact finding investigation that a prima facie case exists
against you for DISHONESTY, GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO
THE BEST INTEREST OF THE SERVICE, committed as follows:
"That Gilda Cruz applied to take the July 30, 1989 Career Service Subprofessional
examination. A verification of our records revealed that the picture of Cruz pasted in
the Picture Seat Plan of the said examination held at Room 21 of the Ramon
Magsaysay Elementary School, Quezon City, bears no resemblance to the pictures
of Cruz as appearing in the picture seat plans of the previous Career Service
Subprofessional Examinations which she took last July 26, 1987 and July 31, 1988
respectively. It would appear that the purported picture of Cruz pasted in the Picture
Seat Plan of the said July 30, 1989 examination is the picture of a diferent person.
Further verification showed that this picture belongs to a certain Zenaida Paitim,
Municipal Treasurer of Norzagaray, Bulacan who apparently took the said
examination on behalf of Cruz and on the basis of the application bearing the name
and personal circumstances of Cruz."
WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in
writing and under oath within five (5) days from receipt hereof. To support your
Answer, you may submit supporting documents/sworn statements.
In your Answer, you should state whether you elect to have a formal investigation or
waive your right to said investigations should your Answer be found not satisfactory.
You are advised that you are entitled to the assistance of a counsel.
By Authority of the Commission:
(Sgd.) Della A. Amilhasan

Director IV[1]
The petitioners filed their Answer to the charge entering a general denial of the
material averments of the "Formal Charge." They also declared that they were
electing a formal investigation on the matter. The petitioners subsequently filed a
Motion to Dismiss averring that if the investigation will continue, they will be
deprived of their right to due process because the Civil Service Commission was the
complainant, the Prosecutor and the Judge, all at the same time.
On July 17, 1995, Director Bella A. Amilhasan issued an order denying the motion.
[2]
The subsequent motion for reconsideration of said order was likewise dismissed.
Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct the formal
administrative investigation of petitioners' case.
On November 16, 1995, Dulce J. Cochon issued an "Investigation Report and
Recommendation" finding the Petitioners guilty of "Dishonesty" and ordering their
dismissal from the government service, the decretal portion of which reads as
follows:
WHEREFORE, foregoing premises considered, this Office recommends the dismissal
from the service with all its accessory penalties of respondents Zenaida Paitim and
Gilda Cruz, both employees of the Municipality of Norzagary , Bulacan for the
ofenses of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best
Interest of the Service. Furthermore, this Office recommends the filing of criminal
charges against them that shall serve as a deterrent to all possible plans of making
a mockery to the sanctity of Civil Service Law and Rules as well as the constitutional
mandate that 'A public office is a public trust. (Idem. Supra.)[3]
The aforesaid "Investigation Report and Recommendation" was then forwarded, to
the Civil Service Commission for its consideration and resolution.
On July 1, 1998, the Civil Service Commission issued Resolution No. 981695 finding
the petitioners guilty of the charges and ordered their dismissal from the
government service. The decretal portion reads as follows:
WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of
Dishonesty. Accordingly, they are imposed the penalty of dismissal from the service
with all its accessory penalties. The Civil Service (Subprofessional) Eligibility of Gilda
Cruz is also cancelled.
Let a copy of this Resolution, as well as other relevant documents, be furnished the
Office of the Ombudsman for whatever action it may take under the premises." [4]
Petitioners then went up to the Court of Appeals assailing the resolution of the CSC.

On November 29, 1999, the Court of Appeals dismissed the petition before it. The
motion for reconsideration was, likewise, denied on August 9, 2000.
Hence, this petition.
In the instant petition, petitioners raised the following assignment of errors:
I
THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT
PETITIONERS' CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT VIOLATED IN
ADMINISTRATIVE CASE NO. D3-95-052 WHERE RESPONDENT COMMISSION ACTED
AS THE INVESTIGATOR, THE COMPLAINANT, THE PROSECUTOR, AND THE JUDGE, ALL
AT THE SAME TIME, AGAINST PETITIONERS. IN SO DOING, RESPONDENT
COMMISSION COMMITTED A MOCKERY OF ADMINISTRATIVE JUSTICE AND THE COURT
OF APPEALS SANCTIONED IT.
II
THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN RULING THAT
RESPONDENT COMMISSION HAS ORIGINAL JURISDICTION TO HEAR AND DECIDE A
COMPLAINT OR CHARGE WHETHER FILED BY A PRIVATE CITIZEN OR BY THE CIVIL
SERVICE COMMISSION ITSELF. THE LAW VESTS IN RESPONDENT COMMISSION ONLY
APPELLATE, NOT ORIGINAL, JURISDICTION IN ALL ADMINISTRATIVE CASES AGAINST A
PUBLIC OFFICIAL OR EMPLOYEE INVOLVING THE IMPOSITION OF A PENALTY OF
REMOVAL OR DISMISSAL FROM OFFICE WHERE THE COMPLAINT THEREFORE WAS
NOT FILED BY A PRIVATE CITIZEN AS IN ADMINISTRATIVE CASE NO. D3-95-052 OF
RESPONDENT COMMISSION.[5]
We find no merit in the petition.
There is no question that petitioner Zenaida Paitim, masquerading herself as
petitioner Gilda Cruz, took the civil service examinations in her behalf. Gilda Cruz
passed the examinations. On the basis of a tip-of that the two public employees
were involved in an anomalous act, the CSC conducted an investigation and verified
that the two employees were indeed guilty of dishonesty. Thus, in accordance with
the CSC law, the petitioners merited the penalty of dismissal.
Petitioners maintain that the CSC did not have original jurisdiction to hear and
decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter
7, Subtitle A, Title 1, Book V, Administrative Code of 1987, the CSC is vested with
appellate jurisdiction only in all administrative cases where the penalty imposed is
removal or dismissal from the office and where the complaint was filed by a private
citizen against the government employee.[6] It reads:
Sec. 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon
appeal all administrative disciplinary cases involving the imposition of a penalty of

suspension for more than thirty days, or a fine in an amount exceeding thirty days'
salary, demotion in rank or salary or transfer, removal or dismissal from
office. A complaint may be filed directly with the Commission by a private
citizen against a government official or employee in which case it may hear and
decide the case or it may deputize any department or agency or official or group of
officials to conduct the investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to be imposed
or other action to be taken.[7]
(Emphasis supplied.)
Petitioners' invocation of the law is misplaced. The provision is applicable to
instances where administrative cases are filed against erring employees in
connection with their duties and functions of the office. This is, however, not the
scenario contemplated in the case at bar. It must be noted that the acts complained
of arose from a cheating caused by the petitioners in the Civil Service
(Subprofessional) examination. The examinations were under the direct control and
supervision of the Civil Service Commission. The culprits are government employees
over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the
petitioners were duly investigated and ascertained whether they were indeed guilty
of dishonesty , the penalty meted was dismissal from the office.
Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly
provides that the CSC can rightfully take cognizance over any irregularities or
anomalies connected to the examinations, as it reads:
Sec. 28. The Commission shall have original disciplinary jurisdiction over all its
officials and employees and over all cases involving civil service examination
anomalies or irregularities."
Petitioners' contention that they were denied due process of law by the fact that the
CSC acted as investigator, complainant, prosecutor and judge, all at the same time
against the petitioners is untenable.The CA correctly explained that the CSC is
mandated to hear and decide administrative case instituted by it or instituted
before it directly or on appeal including actions of its officers and the agencies
attached to it pursuant to Book V, Title 1, Subtitle A, Chapter 3, Section 12,
paragraph 11 of the Administrative Code of 1987 which states:
(11) Hear and decide administrative cases instituted by or brought before it directly
or on appeal, including contested appointments, and review decisions and actions of
its offices and of the agencies attached to it. Officials and employees who fail to
comply with such decisions, orders, or rulings shall be liable for contempt of the
Commission. Its decisions, orders, or rulings shall be final and executory. Such
decisions, orders, or rulings may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days from receipt of a copy thereof;

The fact that the complaint was filed by the CSC itself does not mean that it could
not be an impartial judge. As an administrative body, its decision was based on
substantial findings. Factual findings of administrative bodies, being considered
experts in their field, are binding on the Supreme Court. [8] The records clearly
disclose that the petitioners were duly investigated by the CSC and found that:
After a careful examination of the records, the Commission finds respondents guilty
as charged.
The photograph pasted over the name Gilda Cruz in the Picture Seat Plan (PSP)
during the July 30, 1989 Career Service Examination is not that of Cruz but
of Paitim. Also, the signature over the name of Gilda Cruz in the said document is
totally diferent from the signature of Gilda Cruz.
It should be stressed that as a matter of procedure, the room examiners assigned to
supervise the conduct of a Civil Service examination closely examine the pictures
submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694,
Obedencio, Jaime A.). The examiners carefully compare the appearance of each of
the examinees with the person in the picture submitted and affixed on the PSP. In
cases where the examinee does not look like the person in the picture submitted
and attached on the PSP, the examiner will not allow the said person to take the
examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa)
The facts, therefore, that Paitim's photograph was attached over the name of Gilda
Cruz in the PSP of the July 30, 1989 Career Service Examination, shows that it was
Paitim who took the examination.
In a similar case, the Commission ruled:
"It should be stressed that the registered examinee's act of asking or allowing
another person to take the examination in her behalf constitutes that the evidence
on record clearly established that another person took the Civil Service Examination
for De Guzman, she should be held liable for the said offense."
At the outset, it is axiomatic that in the offense of impersonation, two persons are
always involved. In the instant case, the offense cannot prosper without the active
participation of both Arada and de Leon.Thus, the logical conclusion is that de Leon
took the examination for and in behalf of Arada. Consequently, they are both
administratively liable. (Arada, Carolina C. and de Leon, Ponciana Anne M.) [9]
It can not be denied that the petitioners were formally charged after a finding that
a prima facie case for dishonesty lies against them. They were properly informed of
the charges. They submitted an Answer and were given the opportunity to defend
themselves. Petitioners can not, therefore, claim that there was a denial of due
process much less the lack of jurisdiction on the part of the CSC to take cognizance

of the case. We do not find reversible error with the decision of the Court of Appeals
in upholding the CSC Resolution.
WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio,
JJ., concur.

EN BANC

[G.R. No. 145401. May 7, 2001]

MANUEL L. ONTIVEROS, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE


COMMISSION, and the DEPARTMENT OF TOURISM, respondents.
DECISION
MENDOZA, J.:
This is a petition seeking review on certiorari of the decision,[1] dated June 30, 2000,
and the resolution,[2] dated October 11, 2000, of the Court of Appeals which affirmed
the dismissal of petitioner Manuel L. Ontiveros from the then Ministry of Tourism.
Petitioner was Security Officer I in the Investigation and Security Division of the
Ministry of tourism, having been appointed to that position on July 27, 1976. On May
26, 1986, he was dismissed from the service for inefficiency, incompetence, and
unauthorized absences. The Memorandum of then Minister of Tourism Jose Antonio
U. Gonzales, dismissing petitioner, read:
Pursuant to the provisions of Section 2, Article III of Proclamation 3, your services as
Security Officer I is hereby terminated efective as of the close of office hours on
May 26, 1986, based on the following grounds:
1. Inefficiency and incompetence in the performance of official duties.
2. Frequent unauthorized absences or tardiness in reporting for duty, loafing, or
frequent unauthorized absences from duty during regular office hours.
You are instructed to secure your money and property accountabilities for your last
salary payment.[3]
On June 10, 1986, petitioner appealed to the CSC, invoking his status as a civil
service eligible and a permanent employee. [4]
Petitioner reiterated his appeal in a letter, dated August 11, 1997, to the CSC. [5] In
response, CSC Director IV Angelito G. Grande informed petitioner that jurisdiction
over his appeal was vested in the Review Committee created under Executive Order
No. 17 of then President Corazon C. Aquino and for that reason his (petitioner's)
appeal could not be given due course by the CSC. [6]
Petitioner filed a motion for reconsideration, but his motion was denied by the CSC
through Chairman Corazon Alma G. de Leon and Commissioners Thelma P. Gaminde
and Jose F. Erestain, Jr. In Resolution No. 982464,[7] the CSC stated:
Pursuant to the Provisional Constitution and the various Executive Orders issued by
then President Aquino when she was the sole law-making authority, the diferent
Departments of Government were authorized to carry on reorganization
programs. No specific causes for removal were given in the Provisional Constitution
because at that time, there was no setting up of clear-cut policies and guidelines on
reorganization to protect the security of tenure of civil servants. This was the

prevailing situation following the issuance on February 25, 1986 of Proclamation


No.1 calling "all appointive public officials to submit their courtesy resignations."
This calling was echoed under Section 16, Art. XVIII of the [1987] Constitution which
explicitly authorizes the removal of career civil service employees not for cause but
as a result of the reorganization pursuant to Proclamation No.3 dated March 25,
1986.
Despite the foregoing circumstances, Ontiveros was removed from the service on
the bases of two administrative ofenses. Therefore, it is with more reason that his
separation from the service under the [Provisional] Constitution was justified,
especially considering that the same is for cause. [8]
Petitioner filed a petition for review to the Court of Appeals. But his petition, as well
as his motion for reconsideration, was denied. The Court of Appeals ruled that the
CSC had no jurisdiction over petitioner's appeal, the proper appellate body being
the Review Committee established under E.O. No.17. In addition, the appeals court
held that review of petitioner's dismissal was barred by laches. Hence this petition.
First. Petitioner argues that his case does not fall under the Review Committee's
jurisdiction because his separation from the service was not in consequence of the
reorganization of the government, as provided in the Provisional Constitution (also
known as the Freedom Constitution), but was for cause; hence, appeal lies with the
CSC.
The contention has no merit. Art. III, 2 of the Provisional Constitution provided that
"All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order
or upon the designation or appointment and qualification of their successors, if such
is made within a period of one year from February 25, 1986"(emphasis added). To
be sure, petitioner was not dismissed by virtue of a proclamation or executive order
of the President of the Philippines nor by reason of the designation or appointment
and qualification of his successor. It must also be noted that E.O. No.120, which
reorganized the then Ministry of Tourism, was issued by then President Corazon C.
Aquino only on January 20, 1987, whereas petitioner was dismissed on May 26,
1986.
However, the memorandum of then Tourism Minister Jose Antonio U. Gonzales,
dismissing petitioner from the service, clearly stated that it was being issued
pursuant to Art. III, 2 of the Provisional Constitution. And indeed, just two days after
petitioner had been dismissed, E.O. No.17 was issued on May 28, 1986, providing in
pertinent part as follows:
SECTION. 1. In the course of implementing Article III, Section 2 of the Freedom
Constitution, the Head of each Ministry shall see to it that the separation or
replacement of officers and employees is made only for justifiable reasons, to
prevent indiscriminate dismissals of personnel in the career civil service whose

qualifications and performance meet the standards of public service of the New
Government.
Any office, agency, instrumentality, or government-owned or controlled corporation,
which is not attached to any ministry, including any of the constitutional
commissions and state colleges and universities, shall be considered a ministry for
purposes of this Order.
The Ministry concerned shall adopt its own rules and procedures for the review and
assessment of its personnel, including the identification of sensitive positions which
require more rigid assessment of the incumbents, and shall complete such
review/assessment as expeditiously as possible but not later than February 24,
1987 to prevent undue demoralization in the public service.
SEC. 2. The Ministry Head concerned, on the basis of such review and assessment,
shall determine who shall be separated from the service. Thereafter, he shall issue
to the official or employee concerned a notice of separation which shall indicate
therein the reason/s or ground/s for such separation and the fact that the separated
official or employee has the right to file a petition for reconsideration pursuant to
this Order. Separation from the service shall be efective upon receipt of such
notice, either personally by the official or employee concerned or on his behalf by a
person of sufficient discretion.
SEC. 3. The following shall be the grounds for separation/replacement of personnel:
1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil
Service Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices
Act as determined by the Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the
service or his separation/replacement is in the interest of the service.
In Radia v. Review Committee under Executive Order No. 17,[9] the retroactive
application of E.O. No.17 to past dismissals was affirmed. It was held:
[E.O. No.17] is a self-limiting act and its provisions are not only non-penal in nature,
but also clearly more favorable than those of Art. III (2) of the Provisional
Constitution. As such, there is no legal nor moral obstacle to the retrospective
application of Executive Order No.17 to "those already separated from the service
on the issuance of this Order, including those whose resignations were accepted or
whose successors have been appointed/designated." (Section 6) [10]

In this case, it is clear that petitioner's dismissal came within the coverage of E.O.
No.17, 3(3) and (5). Pursuant to 2 of the order, the memorandum of dismissal of
Minister Gonzales is considered the act of the then President.
Nor can it be argued that this case is not covered by Art. III, 2 of the Provisional
Constitution since the grounds for petitioner's dismissal are grounds under civil
service laws and regulations. E.O. No.17 provided the grounds for the separation of
employees from the service not to bring their cases under ordinary civil service laws
and regulations but to provide limits on what otherwise would be absolute discretion
and thus prevent an abuse of power. But certainly, it was not the intention to make
such cases subject to processing by regular procedures that could defeat the
summary nature required by government reorganization following the establishment
of a revolutionary government.[11]
Second. Petitioner argues that the Review Committee did not have jurisdiction over
his appeal because it was created only after he had been dismissed on May 26,
1986.
E.O. No. 17, which was issued on May 28, 1986, took efect only on June 2, 1986,
after petitioner had already been dismissed on May 26, 1986. However, 6 of the
said order provides:
A petition for reconsideration may be filed with the [Review] Committee by the
separated official or employee within ten (10) days from receipt of the notice of
separation. In case of those already separated from the service upon issuance of
this Order, including those whose resignations were accepted or whose successors
have been appointed/designated, the petition shall be filed within ten (10) days
from date of publication of this Order in a newspaper of general
circulation. (emphasis added)
It is not disputed that petitioner failed to file such petition for reconsideration with
the Review Committee within 10 days from publication of E.O. No.17. As petitioner
never filed an appeal with the Review Committee, his separation from the service
became final.
Third. Petitioner also contends that the CSC should have dismissed his appeal
outright or indorsed his appeal to the Review Committee as was done in the cases
of Radia[12] and Sto. Domingo v. Ordoez.[13]
In the Radia case, the apparent reason for the indorsement was that at the time the
appeal was filed with the CSC on May 28, 1986, E.O. No. 17 had not yet been
published on June 2, 1986. Here, petitioner appealed to the CSC on June 10, 1986,
when the Review Committee had already been created. He therefore cannot use the
CSCs inaction as an excuse for his mistake in appealing to the wrong forum. One
wrong does not make another wrong right. [14]

In any event, as found by the Court of Appeals, petitioner is also guilty of


laches. Petitioner claims that on many occasions he went to the CSC to follow up his
appeal. But the fact is that it was only on August 11, 1997, more than a decade
from the time he had filed an appeal to the CSC on June 10, 1986, that petitioner
wrote a letter, reiterating his appeal. It is noteworthy that in is letter, petitioner
made no mention of any follow up he allegedly had made of his case in the
CSC. There is no evidence of this claim except petitioners allegations. As the Court
of Appeals correctly observed in its decision, Petitioner as appellant had a duty to
inquire and inform himself on the progress of his appeal. He cannot be allowed to
benefit from his long inaction and lethargy by resurrecting his appeal and reap a
windfall in backwages and other benefits. [15]
In view of the conclusions reached in this case and the fact that this court is not a
trier of facts, there is no further need to discuss whether the grounds stated in the
memorandum of then Minister of Tourism Jose Antonio U. Gonzales dismissing
petitioner really exist.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Panganiban, Pardo, GonzagaReyes, and Sandoval-Gutierrez, JJ., concur.
Puno J., no part. Related to counsel.
Quisumbing, Buena, De Leon, Jr., JJ., on leave.
Ynares-Santiago J., abroad on official time.

EN BANC
[G.R. No. 127182. January 22, 2001]
HON. ALMA G. DE LEON, Chairman, HON. THELMA P. GAMINDE,
Commissioner, and HON. RAMON P. ERENETA, JR., Commissioner, Civil
Service Commission, and SECRETARY RAFAEL M. ALUNAN, III, Department
of Interior and Local Government, petitioners, vs. HON. COURT OF
APPEALS and JACOB F. MONTESA, respondents.
DECISION
YNARES-SANTIAGO, J.:
Can a person who lacks the necessary qualifications for a public position be
appointed to it in a permanent capacity?
Before the Court is a Petition for Review on Certiorari assailing the April 25, 1996
Decision,[1] and November 20, 1996 Resolution [2] of the Court of Appeals in CA-G.R.
SP No. 38664, which set aside Resolution Nos. 953268 [3] and 955201[4] of the Civil
Service Commission; and declared as null and void - (1) Department Order No. 94370,[5] issued by the Department of Interior and Local Government, relieving private
respondent of his duties as Department Legal Counsel/Director III and reassigning
him as Director III (Assistant Regional Director), Region XI; and (2) Administrative
Order No. 235 issued by then President Fidel V. Ramos, dropping private respondent
from the rolls of public service, for serious neglect of duty and absences without
official leave.

On August 28, 1986, private respondent Atty. Jacob F. Montesa, who is not a Career
Executive Service Officer (CESO) or a member of the Career Executive Service, was
appointed as Ministry Legal Counsel - CESO IV in the Ministry of Local Government
(now Department of Interior and Local Government [hereafter referred to as
Department]), by then Minister Aquilino Pimentel, Jr. Private respondents
appointment was approved as permanent by the Civil Service Commission.
On July 25, 1987, then President Corazon C. Aquino promulgated Executive Order
No. 262, reorganizing the Department. On April 8, 1988, then Secretary Luis T.
Santos, who succeeded Minister Pimentel, designated Nicanor M. Patricio as Chief,
Legal Service in place of private respondent who, in turn, was directed to report to
the office of the Secretary to perform special assignments.
Consequently, private respondent filed before this Court a petition for quo warranto,
docketed as G.R. No. 83470,[6] against then Secretary Luis T. Santos and Nicanor
Patricio. On September 26, 1990, we ruled in favor of private respondent Montesa
and ordered his reinstatement to his former position.
Meanwhile, Republic Act No. 6758 (otherwise known as the Salary Standardization
Law) took efect on July 1, 1989. Pursuant thereto, the position of Department
Service Chiefs, which include the Department Legal Counsel, was reclassified and
ranked with Assistant Bureau Directors under the generic position title of Director III.
[7]

Hence, in the execution of the decision of this Court in G.R. No. 83470, respondent
was reinstated to the position: Department Legal Counsel and/or Director III. [8]
On July 26, 1994, then Secretary Rafael M. Alunan III, citing as reasons the interest
of public service and the smooth flow of operations in the concerned offices, issued
Department Order No. 94-370, relieving private respondent of his current duties and
responsibilities and reassigning him as Director III (Assistant Regional Director),
Region XI.[9] Private respondent, however, did not report to his new assigned
position. Instead, he filed a 90-day sick leave, and upon the expiration thereof on
December 5, 1994, he submitted a memorandum for then acting Secretary
Alexander P. Aguirre, signifying his intention to re-assume his position as
Department Legal Counsel/Chief, Legal Services. [10]
Thereupon, Acting Secretary Aguirre, by memorandum dated December 6, 1994,
[11]
reiterated to private respondent that the issuance of Department Order No. 94370, transferring him to Region XI, was in keeping with the interest of the public
service and of the Career Executive Service (CES) provision on assignment,
reassignment, and transfer. Accordingly, private respondent was advised to report
to Region XI immediately.
Private respondent wrote a memorandum dated December 12, 1994, [12] requesting
for a reconsideration of Department Order No. 94-370, but to no avail. Private

respondent appealed to the Civil Service Commission and the latter issued
Resolution No. 95-3268,[13] dated May 23, 1995 which sustained his reassignment to
Region XI, on the grounds that: 1) the subject reassignment was not violative of the
due process clause of the Constitution or of private respondents right to security of
tenure; 2) the reassignment did not entail any reduction in rank or status; 3) private
respondent could be reassigned from one station to another without his consent as
the rule against unconsented transfer applies only to an officer who is appointed to
a particular station, and not merely assigned thereto. Private respondents motion
for reconsideration of the aforesaid Resolution was similarly denied by the
Commission in Resolution No. 955201 dated August 22, 1995. [14]
On October 10, 1995, the Department directed private respondent to report to his
new assigned post in Region XI, stressing that his continued non-compliance with
D.O. No. 94-370 is prejudicial to the interest of public service, particularly in Region
XI. Private respondent was also warned that upon his failure to comply, the
Department shall be constrained to consider him on Absence Without Leave (AWOL)
and as a consequence, drop him from the rolls of public service. [15]
Instead of complying therewith, private respondent, on October 23, 1995, filed with
the Court of Appeals a Petition for Review with prayer for the issuance of a
temporary restraining order and/or preliminary injunction. No restraining order or
preliminary injunction, however, was issued by the court.
On December 13, 1995, then President Fidel V. Ramos, upon the recommendation of
the Department, issued Administrative Order No. 235, dropping private respondent
Atty. Jacob F. Montesa, Director III, Legal Service, from the roster of public servants
for serious neglect of duty and absences without leave (AWOL). [16]
On April 25, 1996, the Court of Appeals rendered its decision in favor of private
respondent, holding as follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it
affects petitioner, Jacob F. Montesa, is hereby declared null and void. Petitioner is
hereby ordered retained in his position as Chief, Legal Service or Department Legal
Counsel in the DILG, without loss of seniority, rank, emolument and privileges. The
DILG Secretary is hereby ordered to release to petitioner his withheld salaries
corresponding to the period July 15-21, 1995 and his back salaries, if also withheld,
corresponding to the period July 22, 1995 to September 27, 1995.
Finding that petitioner has not paid the amount of P500.00 as deposit for costs
(page 1, Rollo), he is hereby ordered to pay the same to the Clerk of this Court
within five (5) days from receipt of this decision.
SO ORDERED.[17]

Both petitioners and private respondent moved for reconsideration. In his Motion for
Clarification and/or Partial Motion for Reconsideration, private respondent prayed for
backwages to cover the period from October 5, 1995 up to his actual reinstatement
to office, the period from August 1, 1994 to July 14, 1995 having been covered by
approved leave of absences with pay, while the period July 15-21, 1995 is the period
where his name was included in the payroll but release of his salary was illegally
withheld by private respondent Alunan on July 21, 1995, and the period of July 22 to
October 4, 1995 is the period where respondent Alunan withheld his salary even
before CSC Resolution No. 95-9201 (should be No. 95-3268) became executory.
[18]
Respondent likewise prayed for the award of RATA during the period of his illegal
dismissal.
Petitioners, on the other hand, posited that the decision of the Court of Appeals is
not confluent with Administrative Order No. 235, issued on December 13, 1995 by
then President Ramos which dropped petitioner from the roster of public
servants. They further argued that until and unless the said Order is declared illegal
and/or invalid, the presumption is in favor of its validity and it is incumbent upon
private respondent to comply therewith so as not to prejudice the public service.
On November 20, 1996, the Court of Appeals issued the assailed resolution
modifying its April 25, 1996 decision, thus:
WHEREFORE, premises considered, the Motion for Reconsideration filed by public
respondents is hereby DENIED for lack of merit. Petitioners Motion for Clarification
and/or Partial Motion for Reconsideration is hereby GRANTED. The dispositive
portion of the decision is hereby modified to read as follows:
WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it
affects petitioner, Jacob Montesa, and Administrative Order No. 235 are hereby
declared null and void. Petitioner is hereby ordered reinstated to his position as
Chief Legal Service or Department Legal Counsel in the DILG, without loss of
seniority, rank, emolument and privileges. The DILG Secretary is hereby ordered to
release
to
petitioner
his
withheld
salaries and backwages,
including allowances (RATA) and other benefits, to which
petitioner would
have been entitled had he not been illegally removed, corresponding to the period
July 15, 1995 up to his actual reinstatement to office.
SO ORDERED.[19]
Dissatisfied, petitioners filed the instant petition with this Court, contending that:
I
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESAS
REASSIGNMENT IS ACTUALLY AN UNCONSENTED TRANSFER.
II

RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESAS


TRANSFER CHANGES HIS APPOINTMENT FROM PERMANENT TO TEMPORARY AND
VIOLATES HIS CONSTITUTIONAL RIGHT TO SECURITY OF TENURE.
III
RESPONDENT COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF
DISCRETION IN ORDERING THE REINSTATEMENT OF RESPONDENT MONTESA IN
OPEN DISREGARD OF ADMINISTRATIVE ORDER NO. 235 ISSUED BY THE PRESIDENT
OF THE PHILIPPINES DROPPING HIM FROM THE ROSTER OF PUBLIC SERVANTS.
IV
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA IS
ENTITLED
TO
BACKWAGES,
INCLUDING
RATA
AND
OTHER
BENEFITS,
CORRESPONDING TO THE PERIOD FROM JULY 15, 1995 UP TO HIS ACTUAL
REINSTATEMENT.[20]
Succinctly put, the pivot of inquiry here boils down to the nature of the appointment
of private respondent Atty. Jacob F. Montesa.
At the outset, it must be stressed that the position of Ministry Legal Counsel - CESO
IV is embraced in the Career Executive Service. Under the Integrated Reorganization
Plan, appointment thereto shall be made as follows:
c. Appointment. Appointment to appropriate classes in the Career Executive Service
shall be made by the President from a list of career executive eligibles
recommended by the Board. Such appointments shall be made on the basis of rank;
provided that appointments to the higher ranks which qualify the incumbents to
assignments as undersecretary and heads of bureaus and offices and equivalent
positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent
appointment to a position embraced in the Career Executive Service shall continue
to hold his position, but may not advance to a higher class of position in the Career
Executive Service unless or until he qualifies for membership in the Career
Executive Service.[21]
Corollarily, the required Career Executive Service eligibility may be then acquired in
the following manner:
Career Executive Service Eligibility

Passing the CES examination entitles the examinee to a conferment of a CES


eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of
CES eligibility is done by the Board through a formal Board Resolution after an
evaluation of the examinees performance in the four stages of the CES eligibility
examinations.[22]
In the case at bar, there is no question that private respondent does not have the
required CES eligibility. As admitted by private respondent in his Comment, he is not
a CESO or a member of the Career Executive Service.
In the case of Achacoso v. Macaraig, et al.,[23] the Court held that:
It is settled that a permanent appointment can be issued only to a person who
meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed.Achacoso did not. At best, therefore,
his appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and at a moments notice, conformably
to established jurisprudence.
The Court, having considered these submissions and the additional arguments of
the parties in the petitioners Reply and the Solicitor-Generals Rejoinder, must find
for the respondents.
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment,
which in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place or,
only as an exception to the rule, may be appointed to it merely in an acting
capacity in the absence of appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so designated.
Evidently, private respondents appointment did not attain permanency. Not having
taken the necessary Career Executive Service examination to obtain the requisite
eligibility, he did not at the time of his appointment and up to the present, possess
the needed eligibility for a position in the Career Executive Service. Consequently,
his appointment as Ministry Legal Counsel - CESO IV/ Department Legal Counsel
and/or Director III, was merely temporary. Such being the case, he could be
transferred or reassigned without violating the constitutionally guaranteed right to
security of tenure.
Private respondent capitalizes on his lack of CES eligibility by adamantly contending
that the mobility and flexibility concepts in the assignment of personnels under the
Career Executive Service[24] do not apply to him because he is not a Career
Executive Service Officer. Obviously, the contention is without merit. As correctly
pointed out by the Solicitor General, non-eligibles holding permanent appointments

to CES positions were never meant to remain immobile in their status. Otherwise,
their lack of eligibility would be a premium vesting them with permanency in the
CES positions, a privilege even their eligible counterparts do not enjoy.
Then too, the cases on unconsented transfer invoked by private respondent find no
application in the present case. To reiterate, private respondents appointment is
merely temporary; hence, he could be transferred or reassigned to other positions
without violating his right to security of tenure.
WHEREFORE, based on the foregoing, the Petition is GRANTED. The April 25, 1996
Decision and the November 20, 1996 Resolution of the Court of Appeals in CA-G.R.
SP No. 38664 are REVERSED and SET ASIDE. Resolution Nos. 953268 and 955201 of
the Civil Service Commission are REINSTATED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.

[G.R. No. 141141. June 25, 2001]


PHILIPPINE
AMUSEMENT
AND
GAMING
CORPORATION
(PAGCOR), petitioner, vs. CARLOS P. RILLORAZA, respondent.

DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying for the reversal of the
Decision dated August 31, 1999[1] as well as the Resolution dated November 29,
1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803.
The facts are undisputed:
On November 5, 1997, administrative charges for dishonesty, grave misconduct,
conduct prejudicial to the best interest of the service, and loss of confidence, were
brought against respondent Carlos P. Rilloraza, a casino operations manager of
petitioner
PHILIPPINE
AMUSEMENT
AND
GAMING
CORPORATION
(PAGCOR). Respondent allegedly committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations of casino and regulations committed
by co-officers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.2:00 p.m. on October 9, 1997, four (4) personal
checks with a total value of Pesos: Five Million (P5,000,000) were issued by a smalltime financier/player and were facilitated by a COM with the Treasury Division which
enabled the small-time financier/player to withdraw and receive said amount. The
facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or
the Branch Manager for Operations (BMO) and the COM who facilitated the checks
was not on duty then.
2. He even facilitated one (1) of the personal checks with a value of Pesos: Five
Hundred Thousand (P500,000.00).
3. He failed to stop a top-ranking officer from placing bets over and above the
allowable limit of P5,000.00 per deal, he failed to stop the same officer from playing
in the big tables and lastly, he allowed the same officer to play beyond the
allowable time limit of 6:00 a.m.
Respondent duly filed his answer during an investigation conducted by petitioners
Corporate Investigation Unit. He narrated the events that transpired:
When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I
saw BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a cofee table inside
Area 3. While inside the Area 3, GAM RENE QUITO approached me with a check
worth P500,000.00 requested by a customer for endorsement to the Treasury. Since
Ive been out of Manila branch for 2 years and Ive just been recalled to this branch
for only more than 3 weeks, Im not quite familiar with the systems and I dont know
this customer. I immediately approached COM CARLOS GONZALES, who at that time

was still around, to verify regarding the said check and his immediate reply was ITS
OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN. In fact, I
reconfirmed it again with COM GONZALES since he is more familiar with the systems
and customers, he answered me the same. So I gave the approval to GAM QUITO for
endorsement. When I went in the office, I instructed OOS GILBERT CABANA to beep
SBM VIC ADVINCULA and BMO DARIO CORDERO to call office ASAP because I
wanted to relay this matter to them and there were no reply from both of them. I
instructed OOS CABANA to send messages again to SBM & BMO, but still I received
no reply. It was until after noontime that BMO CORDERO returned my call and I
reported the incident to him. When I was at home at around 3:30 p.m. SBM
ADVINCULA returned my call and I reported the incident. I also relayed the incident
to SBM REYES.
While during my rounds, I went down to the New VIP area and there I saw BM
SYHONGPAN sitting at TABLE #3(BB) and he was holding house cards at that time. I
approached and stopped him but he reacted that the bet was not his but to a
CUSTOMERS. I took his words because as a subordinate, I respected him as one of
our superior who very well know all our companys policy esp. that an officer is not
allowed to play at BIG table and are only allowed to bet with a maximum of
P5,000.00 only. So I believe it was not his bet but the said customer. At that time
there was no way for me to stop the game because I saw the said customer, named
MS. CORAZON CASTILLO, whom I dont know her [sic] since I was out of Manila
Branch 2 years, and whom BM SYHONGPAN was referring to as the player, has a lot
of chips worth about P7 Million in front of her and was betting P1.5M on the banker
side which was over the maximum table limit by P500,000.00. I know we are
allowed to authorize approval by raising the betting limits as per request of the
playing customers.
After the game, the chips were encashed and I instructed GAM J. EUGENIO to
accompany BM SYHONGPAN to his room because he was too drunk. When I was
doing my rounds again, thats how I found out from rumors within the gaming areas
that this MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played
[sic] in behalf of them the whole time. And I also learned that there were four
checks endorsed during my shift which I facilitated only one check worth
P500,000.00 after I verified and confirmed it with COM GONZALES. With regards to
the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and
COM GONZALES, kept it a secret from me. When GAM EUGENIO returned from the
room of BM SYHONGPAN he handed me some cash, which according to him, was
given by BM SYHONGPAN as BALATO. I did not accept the money because at that
moment I was so mad that they involved me beyond my innocence since I am new
in the branch. I then instructed GAM EUGENIO to return the money to BM
SYHONGPAN. (sic)
Finding Rillorazas explanation unsatisfactory, the PAGCOR Board handed down a
Resolution on December 2, 1997 dismissing respondent and several others from

PAGCOR, on the grounds of dishonesty, grave misconduct and/or conduct prejudicial


to the best interest of the service and loss of confidence, efective December 5,
1997. The Board also denied respondents motion for reconsideration in a Resolution
dated December 16, 1997.
Respondent appealed to the Civil Service Commission. On November 20, 1998, the
Commission issued Resolution No. 983033,[2] the dispositive portion of which
provides, to wit:
WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the
Commission finds appellant guilty only of Simple Neglect of Duty and metes out
upon him the penalty of one month and one day suspension. The assailed
Resolution of PAGCOR Board of Directors is thus modified.
The Commission denied petitioners motion for reconsideration in Resolution No.
990465 dated February 16, 1999.[3]
On appeal, the Court of Appeals affirmed the resolution of the Commission. [4] The
appellate court ordered petitioner to reinstate private respondent with payment of
full backwages plus all tips, bonuses and other benefits accruing to his position and
those received by other casino operations managers for the period starting January
5, 1998 until his actual reinstatement. Petitioner filed a motion for reconsideration,
[5]
which was denied by the appellate court in the assailed resolution of November
29, 1999.[6]
Hence, the instant petition.
PAGCOR avers that:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO
CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE
WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF CONFIDENCE.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC
RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM
DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR SERIOUSNESS OF THE
OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY
RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF HIS
POSITION.
The wellspring of stability in government service is the constitutional guarantee of
entrance according to merit and fitness and security of tenure, viz:
xxx xxx xxx

(2) Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and, except to positions which are
policy-determining, primarily confidential, or highly technical, by competitive
examination.
(3) No officer or employee of the civil service shall be removed or suspended except
for cause provided by law.[7]
xxx xxx xxx
In the case at bar, we are basically asked to determine if there is sufficient cause to
warrant the dismissal, not merely the suspension, of respondent who, petitioner
maintains, occupies a primarily confidential position. In this connection, Section 16
of Presidential Decree No. 1869[8] provides:
Exemption.All positions in the Corporation, whether technical, administrative,
professional or managerial are exempt from the provisions of the Civil Service Law,
rules and regulations, and shall be governed only by the personnel management
policies set by the Board of Directors. All employees of the casinos and related
services shall be classified as Confidential appointee.
Petitioner argues that pursuant to the aforequoted provision, respondent is a
primarily confidential employee. Hence, he holds office at the pleasure of the
appointing power and may be removed upon the cessation of confidence in him by
the latter. Such would not amount to a removal but only the expiration of his
term. However, there should be no lingering doubt as to the true import of said
Section 16 of P.D. No. 1869. We have already definitively settled the same issue
in Civil Service Commission v. Salas,[9] to wit:
In reversing the decision of the CSC, the Court of Appeals opined that the provisions
of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case
at bar because the same is deemed to have been repealed in its entirety by Section
2(1), Article IX-B of the 1987 Constitution. This is not completely correct. On this
point, we approve the more logical interpretation advanced by the CSC to the efect
that Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the
provisions of Civil Service Law and Rules has been amended, modified or deemed
repealed by the 1987 Constitution and Executive Order No. 292 (Administrative
Code of 1987).
However, the same cannot be said with respect to the last portion of Section 16
which provides that all employees of the casino and related services shall be
classified as confidential appointees. While such executive declaration emanated
merely from the provisions of Section 2, Rule XX of the Implementing Rules of the
Civil Service Act of 1959, the power to declare a position as policy-determining,
primarily confidential or highly technical as defined therein has subsequently been
codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the

Administrative Code of 1987. This later enactment only serves to bolster the validity
of the categorization made under Section 16 of Presidential Decree No. 1869. Be
that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two
recognized instances when a position may be considered primarily
confidential: Firstly, when the President, upon recommendation of the
Commissioner of Civil Service, has declared the position to be primarily confidential;
and, secondly, in the absence of such declaration, when by the nature of the
functions of the office there exists close intimacy between the appointee and
appointing power which insures freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust or confidential matters of
state.
At first glance, it would seem that the instant case falls under the first category by
virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An
in-depth analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof
provided that the non-competitive or unclassified service shall be composed of
positions expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or highly
technical in nature. In the case of Piero, et al. vs. Hechanova, et al., the Court
obliged with a short discourse there on how the phrase in nature came to find its
way into the law, thus:
The change from the original wording of the bill (expressly declared by law x x x to
be policy-determining, etc.) to that finally approved and enacted (or which
are policy determining, etc. in nature) came about because of the observations of
Senator Taada, that as originally worded the proposed bill gave Congress power to
declare by fiat of law a certain position as primarily confidential or policydetermining, which should not be the case. The Senator urged that since the
Constitution speaks of positions which are primarily confidential, policy-determining
or highly technical in nature, it is not within the power of Congress to declare what
positions are primarily confidential or policy-determining. It is the nature alone of
the position that determines whether it is policy-determining or primarily
confidential. Hence, the Senator further observed, the matter should be left to the
proper implementation of the laws, depending upon the nature of the position to be
filled, and if the position is highly confidential then the President and the Civil
Service Commissioner must implement the law.
To a question of Senator Tolentino, But in positions that involved both confidential
matters and matters which are routine, x x x who is going to determine whether it is
primarily confidential? Senator Taada replied:

SENATOR TAADA: Well, at the first instance, it is the appointing power that
determines that: the nature of the position. In case of conflict then it is the
Court that determines whether the position is primarily confidential or not. xxx
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959,
it is the nature of the position which finally determines whether a position is
primarily confidential, policy-determining or highly technical. And the Court in the
aforecited case explicitly decreed that executive pronouncements, such as
Presidential Decree No. 1869, can be no more than initial determinations that are
not conclusive in case of conflict. It must be so, or else it would then lie within the
discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the
Constitution. In other words, Section 16 of Presidential Decree No. 1869 cannot be
given a literally stringent application without compromising the constitutionally
protected right of an employee to security of tenure. [italics supplied]
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and
was reaffirmed in the 1973 Constitution, as well as in the implementing rules of
Presidential Decree No. 807, or the Civil Service Decree of the Philippines. It may
well be observed that both the 1935 and 1973 Constitutions contain the provision,
in Section 2, Article XII-B thereof, that appointments in the Civil Service, except as
to 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. Corollarily, Section 5 of Republic Act No.
2260 states that the non-competitive or unclassified service shall be composed of
positions expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or highly
technical in nature. Likewise, Section 1 of the General Rules in the implementing
rules of Presidential Decree No. 807 states that appointments in the Civil Service,
except as to 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. Let it be here
emphasized, as we have accordingly italicized them, that these fundamental laws
and legislative or executive enactments all utilized the phrase in nature to describe
the character of the positions being classified.
The question that may now be asked is whether the Piero doctrineto the efect that
notwithstanding any statutory classification to the contrary, it is still the nature of
the position, as may be ascertained by the court in case of conflict, which finally
determines whether a position is primarily confidential, policy-determining or highly
technicalis still controlling with the advent of the 1987 Constitution and the
Administrative Code of 1987, Book V of which deals specifically with the Civil
Service Commission, considering that from these later enactments, in defining
positions which are policy-determining, primarily confidential or highly technical, the
phrase in nature was deleted.

We rule in the affirmative. The matter was clarified and extensively discussed
during the deliberations in the plenary session of the 1986 Constitutional
Commission on the Civil Service provisions, to wit:
MR. FOZ: Which department of government has the power or authority to determine
whether a position is policy-determining or primarily confidential or highly
technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive
department, but the final decision is done by the court. The Supreme Court has
constantly held that whether or not a position is policy-determining, primarily
confidential or highly technical, it is determined not by the title but by the nature of
the task that is entrusted to it. For instance, we might have a case where a position
is created requiring that the holder of that position should be a member of the Bar
and the law classifies this position as highly technical. However, the Supreme Court
has said before that a position which requires mere membership in the Bar is not a
highly technical position. Since the term highly technical means something beyond
the ordinary requirements of the profession, it is always a question of fact.
MR. FOZ: Does not Commissioner Bernas agree that the general rule should be that
the merit system or the competitive system should be upheld?
FR. BERNAS: I agree that that should be the general rule; that is why we are putting
this as an exception.
MR. FOZ: The declaration that certain positions are policy-determining, primarily
confidential or highly technical has been the source of practices which amount to
the spoils system.
FR. BERNAS: The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in fact it is
not, we can always challenge that in court. It is not enough that the law calls it
primarily confidential to make it such; it is the nature of the duties which makes a
position primarily confidential.
MR. FOZ: The efect of a declaration that a position is policy-determining, primarily
confidential or highly technicalas an exceptionis to take it away from the usual rules
and provisions of the Civil Service Law and to place it in a class by itself so that it
can avail itself of certain privileges not available to the ordinary run of government
employees and officers.
FR. BERNAS: As I have already said, this classification does not do away with the
requirement of merit and fitness. All it says is that there are certain positions which
should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy
Commission. Shall we require a physicist to undergo a competitive examination

before appointment? Or a confidential secretary or any position in policydetermining administrative bodies, for that matter? There are other ways of
determining merit and fitness than competitive examination. This is not a denial of
the requirement of merit and fitness.
It is thus clearly deducible, if not altogether apparent, that the primary purpose of
the framers of the 1987 Constitution in providing for the declaration of a position as
policy-determining, primarily confidential or highly technical is to exempt these
categories from competitive examination as a means for determining merit and
fitness. It must be stressed further that these positions are covered by security of
tenure, although they are considered non-competitive only in the sense that
appointees thereto do not have to undergo competitive examinations for purposes
of determining merit and fitness. [italics supplied]
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned
resolution wherein it stated that the declaration of a position as primarily
confidential if at all, merely exempts the position from the civil service eligibility
requirement. Accordingly, the Piero doctrine continues to be applicable up to the
present and is hereby maintained. Such being the case, the submission that
PAGCOR employees have been declared confidential appointees by operation of law
under the bare authority of CSC Resolution No. 91-830 must be rejected.
Justice Regalados incisive discourse yields three (3) important points: first, the
classification of a particular position as primarily confidential, policy-determining or
highly technical amounts to no more than an executive or legislative declaration
that is not conclusive upon the courts, the true test being the nature of the
position. Second, whether primarily confidential, policy-determining or highly
technical, the exemption provided in the Charter pertains to exemption from
competitive examination to determine merit and fitness to enter the civil
service. Such employees are still protected by the mantle of security of tenure. Last,
and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions
within PAGCOR as primarily confidential, is not absolutely binding on the courts.
Considerations vary so as to make a position primarily confidential. Private
secretaries are indisputably primarily confidential employees. [10] Those tasked to
provide personal security to certain public officials have also been deemed to hold
primarily confidential positions[11] for obvious reasons: the former literally are
responsible for the life and well-being of the latter. Similar treatment was accorded
to those occupying the posts of city legal officer [12] and provincial attorney,
[13]
inasmuch as the highly privileged nature of the lawyer-client relationship
mandates that complete trust and confidence must exist betwixt them. National
interest has also been adjudged a factor, such that the countrys permanent
representative to the United Nations was deemed to hold her post at the pleasure of
the Chief Executive.[14]

As casino operations manager, Rillorazas duties and responsibilities are:


JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the
Operations Division of the branch. He reports directly to the Branch Manager or to
the Branch Manager for Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs and plans of action for branch gaming operations
in order to optimize revenue.
2. Institutes and maintains a healthy, organized, mentally alert, and highly
motivated human resource for efective and efficient branch gaming operations
performance.
3. Takes measures to maintain and uphold the integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table and slot machine operations
reports, including income performance.
5. Submits periodic reports to the Branch Manager.
6. Directs the opening and closing of gaming table and slot machine areas.
7. Directs the setting-up, closure or suspension of operations of gaming tables and
slot machine units when deemed necessary.
8. Controls the requisition, storage, and issuance of playing cards, gaming
equipment and paraphernalia, operations keys, and accountable receipts and slips.
9. Ensures that gaming operations personnel adhere to the established House Rules,
company policies and procedures.
10. Ensures that quality and efficient service is extended to casino patrons in
accordance with the established House Rules, company policies and procedures.
11. Directs and controls all activities of the Card Shuffling Center and the Card
Distribution Room.
12. Issues directives, memoranda, and other official communications on branch
gaming operations matters.
13. Directs the daily and periodic performance evaluation of operations personnel.
14. Requires written statements from operations personnel regarding disputes,
reported irregularities and violations of House Rules, company policies and
procedures.

15. Issues or recommends disciplinary sanctions against delinquent operations


personnel, as well as commendations to deserving ones.
16. Upon the Branch Managers approval, issues preventive suspension to erring
employees pending investigation.
17. Efects immediate changes in House Rules when deemed necessary, subject to
management review.
18. Approves table refill, chip yield, and dropbox yield transactions, as well as the
payment for progressive link super jackpot awards.
19. Directs the cancellation of progressive link super jackpot combinations.
20. Signs chip checks in behalf of the Branch Manager.
21. Approves complimentary food and beverages to deserving players and
evaluates the same for the possible extension of other amenities.
22. Settles disputes arising from gaming operations that have not been efectively
settled by gaming managers and supervisors, and enforces decisions on the
interpretation of House Rules, company policies, and procedures.
23. Recommends to the Branch Manager the banning of undesirable players.
24. Orders the removal of customers or employees from the table gaming (sic) and
slot machine area for justifiable reasons.
25. Implements contingency plans in case of emergencies to ensure the security
and safety of customers and staf.
26. Acts on customer complaints, suggestions, and observations.
27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad
hoc committees of the Operations Division.
28. Represents the Operations Division in Branch Management panel meetings.
29. Apprises the Branch Manager of any incident of doubtful nature and of
developments that require his immediate attention.
30. Performs other duties as may be designated by the Branch Manager.
Undoubtedly, respondents duties and responsibilities call for a great measure of
both ability and dependability. They can hardly be characterized as routinary, for he
is required to exercise supervisory, recommendatory and disciplinary powers with a
wide latitude of authority. His duties difer markedly from those we previously ruled
as not primarily confidential: for instance, PAGCORs Internal Security Staf;
[15]
Management and Audit Analyst I of the Economic Intelligence and Investigation

Bureau;[16] a Special Assistant to the Governor of the Central Bank; [17] the Legal Staf
of the Provincial Attorney;[18] members of the Customs Police; [19] the Senior
Executive Assistant, Clerk I, Supervising Clerk I and Stenographer; [20] and a
Provincial Administrator.[21] In this sense, he is a tier above the ordinary rank-and-file
in that his appointment to the position entails faith and confidence in his
competence to perform his assigned tasks. Lacking, therefore, is that amplitude of
confidence reposed in him by the appointing power so as to qualify his position as
primarily confidential. Verily, we have observed that:
[i]ndeed, physicians handle confidential matters. Judges, fiscals and court
stenographers generally handle matters of similar nature. The Presiding and
Associate Justices of the Court of Appeals sometimes investigate, by designation of
the Supreme Court, administrative complaints against judges of first instance, which
are confidential in nature. Officers of the Department of Justice, likewise, investigate
charges against municipal judges. Assistant Solicitors in the Office of the Solicitor
General often investigate malpractice charges against members of the Bar. All of
these are confidential matters, but such fact does not warrant the conclusion that
the office or position of all government physicians and all Judges, as well as the
aforementioned assistant solicitors and officers of the Department of Justice are
primarily confidential in character. [22]
We further note that a casino operations manager reports directly to the Branch
Manager or, in Metro Manila branches, to the Branch Manager for Operations. It
does not appear from the record to whom the Branch Manager (or the Branch
Manager for Operations, as the case may be) reports. It becomes unmistakable,
though, that the stratum separating the casino operations manager from reporting
directly to the higher echelons renders remote the proposition of proximity between
respondent and the appointing power. There is no showing of that element of trust
indicative of a primarily confidential position, as we defined it in De los Santos v.
Mallare,[23] to wit:
Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is 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 which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state.
Necessarily, the point of contention now is whether there was cause for the
respondents separation from the service. On this point, having analyzed both
parties arguments, we find that the Civil Service Commission did not err in declaring
that Rilloraza was liable only for simple neglect of duty. In the first place, there is no
evidence to sustain a charge of dishonesty. As the latter term is understood, it
implies a:

Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of


integrity. Lack of honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray. [24]
In the case at bar, respondents explanation fails to evince an inclination to lie or
deceive, or that he is entirely lacking the trait of straightforwardness. We concur
with the appellate courts finding, thus:
Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing
at Table No. 3BB, respondent Rilloraza at once, told him to stop. However,
Syhongpan explained that he was merely playing for a customer, Ms. Corazon
Castillo who was seated also at the table. After observing the large number of chips
in front of Ms. Castillo estimated at around P7M, respondent became convinced of
the clarification given by Branch Manager Syhongpan and he must have relied also
on the word of said top ranking PAGCOR official whose representation must
ordinarily be accepted and accorded respect and credence by a subordinate like
him. xxx
More importantly, the PAGCOR Adjudication Committee concluded that respondent
actually attempted to stop the game where Syhongpan was playing which was even
utilized as basis by the PAGCOR Board in dismissing respondent. xxx
xxx xxx xxx xxx
The allegation that respondent Rilloraza allowed Syhongpan to place bets over and
above the allowable limit of P5,000.00 per deal is not anchored on a correct
premise. Respondent Rilloraza has steadfastly maintained that he is of the belief
that BM Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan
is merely acting for the real casino player, then the policy of not allowing any
PAGCOR official to bet beyond P5,000.00 has no application. Respondent Rilloraza
believed in good faith that the bet was not BM Syhongpans but of Ms. Castillo and
should not be unduly punished for his honest belief. The same reason exists for the
claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is non
sequitur since Rilloraza never entertained the idea that Syhongpan was the
gambler.
Lastly, if only to consummate respondents alleged dishonesty and grave
misconduct by corruptly profiting from said incident, he could have easily pocketed
the balato given by Syhongpan, but he never did, and in fact, returned the
money. xxx
xxx xxx xxx xxx
On the facilitation of the swap of a P500,000.00 personal check for chips, this Court,
after considering the parties involved and the circumstances of the case, believes
that respondent Rilloraza has judiciously performed all the acts necessary to protect

the interests of PAGCOR and has acted as a prudent and reasonable man. It is
evident that respondent had the authority to approve the exchange of checks for
gambling chips. In the exercise of such discretion, We find that the approval by
Rilloraza of the exchange was done with caution and circumspect [sic]. When he
was approached by GAM Quito for endorsement of said personal checks per request
of a customer, he immediately approached COM Gonzales to verify the check who
assured him that the check was good and in fact guaranteed by Mr. Syhongpan,
Davao City Branch Manager of PAGCOR. To be sure, he even reconfirmed the same
with Gonzales as he is more familiar with the systems and the customers since he
has been recalled to the branch for only three (3) weeks. After approving the
endorsement, he immediately tried to contact SBM Advincula and BMO Cordero, to
notify them of his action but none of them called back. In the afternoon, both
returned the call and were informed by respondent of the exchange of the chips for
the check and presumably, the former ratified or acquiesced to the action of
respondent since there was no objection or complaint about the matter. xxx
These same findings negate the conclusion that respondent is guilty of misconduct
or conduct prejudicial to the best interest of the service. In Manuel v. Calimag, Jr.,
[25]
we defined misconduct, thus:
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
Lopez in these words: Misconduct in office has a definite and well-understood legal
meaning. By uniform legal definition, it is a misconduct such as afects his
performance of his duties as an officer and not such only as afects his character as
a private individual. In such cases, it has been said at all times, it is necessary to
separate the character of the man from the character of the officer x x x. It is
settled that misconduct, misfeasance, or malfeasance warranting removal from
office of an officer, must have direct relation to and be connected with the
performance of official duties amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the office x x x.
Diferently propounded in Canson v. Garchitorena, et al.,[26] misconduct is any
unlawful conduct on the part of a person concerned in the administration of justice
prejudicial to the rights of parties or to the right determination of the cause. It
generally means wrongful, improper or unlawful conduct motivated by a
premeditated, obstinate or intentional purpose. The term, however, does not
necessarily imply corruption or criminal intent. On the other hand, the term gross
connotes something out of all measure; beyond allowance; not to be excused;
flagrant; shameful. From the facts given, absent is that element ofintent to do
wrong against petitioner.
CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty
as a less grave ofense punishable as a first ofense by suspension of one (1) month
and one (1) day to six (6) months. [27] In the imposition of the proper penalty, Section
54 thereof provides, as follows: (a) the minimum of the penalty shall be imposed

where only mitigating and no aggravating circumstances are present; (b) the
medium of the penalty shall be imposed where no mitigating and aggravating
circumstances are present; and (c) the maximum of the penalty shall be imposed
where only aggravating and no mitigating circumstances are present. In turn, the
circumstances that may be properly considered are:
Section 53. Extenuating, Mitigating, Aggravating, or Alternative
Circumstances. In the determination of the penalties to be imposed, mitigating,
aggravating and alternative circumstances attendant to the commission of the
ofense shall be considered.
The following circumstances shall be appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official position
d. Taking undue advantage of subordinate
e. Undue disclosure of confidential information
f. Use of government property in the commission of the ofense
g. Habituality
h. Ofense is committed during office hours and within the premises of the office or
building
i. Employment of fraudulent means to commit or conceal the ofense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by
the proper party, otherwise, said circumstances shall not be considered in the
imposition of the proper penalty. The Commission, however, in the interest of
substantial justice may take and consider these circumstances.
We find that the Civil Service Commission, as affirmed by the Court of Appeals,
correctly attributed good faith on the part of respondent. Accordingly, the modified
penalty imposed by the Civil Service Commission on the respondent which was
affirmed by the Court of Appeals, was proper under the premises.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated
August 31, 1999 as well as the Resolution dated November 29, 1999, rendered by
the Court of Appeals in CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

EN BANC
[G.R. No. 152574. November 17, 2004]
FRANCISCO
ABELLA
COMMISSION, respondent.

JR., petitioner,

vs. CIVIL

SERVICE

DECISION
PANGANIBAN, J.:
Both the appointing authority and the appointee are the real parties in interest, and
both have legal standing, in a suit assailing a Civil Service Commission (CSC) order
disapproving an appointment. Despite having legal interest and standing, herein
petitioner unsuccessfully challenges the constitutionality of the CSC circular that
classifies certain positions in the career service of the government. In sum,
petitioner was appointed to a Career Executive Service (CES) position, but did not
have the corresponding eligibility for it; hence, the CSC correctly disapproved his
appointment.
The Case
Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, challenging
the November 16, 2001 Decision [2] and the March 8, 2002 Resolution [3] of the Court
of Appeals (CA) in CA-GR SP No. 58987. The Assailed Decision disposed as follows:
WHEREFORE, the petition for review is DENIED for lack of merit.[4]

The challenged Resolution denied petitioners Motion for Reconsideration.

The Facts
The CA narrates the factual antecedents in this wise:
Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone
Authority (EPZA), now the Philippine Economic Zone Authority (PEZA), on July 1,
1996 as Department Manager of the Legal Services Department. He held a civil
service eligibility for the position of Department Manager, having completed the
training program for Executive Leadership and Management in 1982 under the Civil
Service Academy, pursuant to CSC Resolution No. 850 dated April 16, 1979, which
was then the required eligibility for said position.
It appears, however, that on May 31, 1994, the Civil Service Commission issued
Memorandum Circular No. 21, series of 1994, the pertinent provisions of which read:
1. Positions Covered by the Career Executive Service
xxxxxxxxx
(b) In addition to the above identified positions and other positions of the same
category which had been previously classified and included in the CES, all other
third level positions of equivalent category in all branches and instrumentalities of
the national government, including government owned and controlled corporations
with original charters are embraced within the Career Executive Service provided
that they meet the following criteria:
1. the position is a career position;
2. the position is above division chief level
3. the duties and responsibilities of the position require the performance of
executive or managerial functions.
4. Status of Appointment of Incumbents of Positions Included Under the Coverage of
the CES. Incumbents of positions which are declared to be Career Executive Service
positions for the first time pursuant to this Resolution who hold permanent
appointments thereto shall remain under permanent status in their respective
positions. However, upon promotion or transfer to other Career Executive Service
(CES) positions, these incumbents shall be under temporary status in said other CES
positions until they qualify.
Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan
Authority (SBMA) on a contractual basis. On January 1, 1999, petitioner was issued
by SBMA a permanent employment as Department Manager III, Labor and

Employment Center. However, when said appointment was submitted to respondent


Civil Service Commission Regional Office No. III, it was disapproved on the ground
that petitioners eligibility was not appropriate. Petitioner was advised by SBMA of
the disapproval of his appointment. In view thereof, petitioner was issued a
temporary appointment as Department Manager III, Labor and Employment Center,
SBMA on July 9, 1999.
Petitioner appealed the disapproval of his permanent appointment by respondent to
the Civil Service Commission, which issued Resolution No. 000059, dated January
10, 2000, affirming the action taken by respondent. Petitioners motion for
reconsideration thereof was denied by the CSC in Resolution No. 001143 dated May
11, 2000.
xxxxxxxxx
Undaunted, petitioner filed with [the CA] a petition for review seeking the reversal
of the CSC Resolutions dated January 10, 2000 and May 11, 2000 on the ground that
CSC Memorandum Circular No. 21, s. 1994 is unconstitutional as it rendered his
earned civil service eligibility inefective or inappropriate for the position of
Department Manager [III][5]
Ruling of the Court of Appeals
The CA shunned the issue of constitutionality, arguing that a constitutional question
should not be passed upon if there are other grounds upon which the case may be
decided.[6] Citing CSC Memorandum Circular 40, s. 1998 and Mathay v. Civil Service
Commission,[7] the appellate court ruled that only the appointing officer may request
reconsideration of the action taken by the CSC on appointments. Thus, it held that
petitioner did not have legal standing to question the disapproval of his
appointment.[8]
On reconsideration, the CA added that petitioner was not the real party in interest,
as his appointment was dependent on the CSCs approval. Accordingly, he had no
vested right in the office, since his appointment was disapproved. [9]
Unsatisfied, petitioner brought this recourse to this Court. [10]
The Issues
Petitioner raises the following issues for our consideration:
A. Whether or not Respondent Court committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that petitioner lacks the personality to
question the disapproval by respondent office of petitioners appointment as
Department Manager III, Labor and Employment Center, SBMA.

B. Whether or not Respondent Court committed grave abuse of discretion


amounting to lack of jurisdiction in ruling that petitioner is not the real party in
interest to question the disapproval by respondent office of petitioners appointment
as Department Manager III, Labor and Employment Center, SBMA.
C. Whether or not Respondent Court committed grave abuse of discretion
amounting to lack of jurisdiction, in dismissing petitioners appeal on a mere
technicality considering that petitioner is questioning the constitutionality of
respondent office issuance of Section 4 of CSC Memorandum Circular No. 21, s.
1994, which deprived petitioner his property right without due process of law. [11]
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Who May File Reconsideration or Appeal
Preliminary Observation
Petitioner imputes to the CA grave abuse of discretion amounting to lack of
jurisdiction for ruling that he had no legal standing to contest the disapproval of his
appointment.[12] Grave abuse of discretion is a ground for a petition for certiorari
under Rule 65 of the Rules of Court. Nevertheless, this Court resolved to grant due
course to the Petition and to treat it appropriately as a petition for review on
certiorari under Rule 45 of the Rules of Court. The grounds shall be deemed
reversible errors, not grave abuse of discretion.
Approval Required for
Permanent Appointment
A permanent appointment in the career service is issued to a person who has met
the requirements of the position to which the appointment is made in accordance
with the provisions of law, the rules and the standards promulgated pursuant
thereto.[13] It implies the civil service eligibility of the appointee. [14] Thus, while the
appointing authority has the discretion to choose whom to appoint, the choice is
subject to the caveat that the appointee possesses the required qualifications. [15]
To make it fully efective, an appointment to a civil service position must comply
with all legal requirements.[16] Thus, the law requires the appointment to be
submitted to the CSC which will ascertain, in the main, whether the proposed
appointee is qualified to hold the position and whether the rules pertinent to the
process of appointment were observed. [17] The applicable provision of the Civil
Service Law reads:

SECTION 9. Powers and Functions of the Commission. The Commission shall


administer the Civil Service and shall have the following powers and functions:
xxxxxxxxx
(h) 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 the appropriate eligibility or required
qualifications. An appointment shall take efect immediately upon issue by the
appointing authority if the appointee assumes his duties immediately and shall
remain efective until it is disapproved by the Commission, if this should take place,
without prejudice to the liability of the appointing authority for appointments issued
in violation of existing laws or rules: Provided, finally, That the Commission shall
keep a record of appointments of all officers and employees in the civil service. All
appointments requiring the approval of the Commission as herein provided, shall be
submitted to it by the appointing authority within thirty days from issuance,
otherwise, the appointment becomes inefective thirty days thereafter. [18]
The appointing officer and the CSC acting together, though not concurrently but
consecutively, make an appointment complete. [19] In acting on the appointment, the
CSC determines whether the appointee possesses the appropriate civil service
eligibility or the required qualifications. If the appointee does, the appointment must
be approved; if not, it should be disapproved. [20] According to the appellate court,
only the appointing authority had the right to challenge the CSCs disapproval. It
relied on Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 (Omnibus
Rules on Appointment and Other Personal Actions), which provides:
Section 2. Request for Reconsideration of, or appeal from, the disapproval of an
appointment may be made by the appointing authority and submitted to the
Commission within fifteen (15) calendar days from receipt of the disapproved
appointment.
Appointing Authoritys Right to
Challenge CSC Disapproval
While petitioner does not challenge the legality of this provision, he now claims that
it is merely a technicality, which does not prevent him from requesting
reconsideration.
We clarify. The power of appointment necessarily entails the exercise of judgment
and discretion.[21] Luego v. Civil Service Commission [22] declared:
Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being that
the appointee should 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 preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide. [23]
Significantly, the selection of the appointee -- taking into account the totality of his
qualifications, including those abstract qualities that define his personality -- is the
prerogative of the appointing authority. [24] No tribunal, not even this Court, [25] may
compel the exercise of an appointment for a favored person. [26]
The CSCs disapproval of an appointment is a challenge to the exercise of the
appointing authoritys discretion. The appointing authority must have the right to
contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum Circular 40,
s. 1998 is justified insofar as it allows the appointing authority to request
reconsideration or appeal.
In Central Bank v. Civil Service Commission,[27] this Court has affirmed that the
appointing authority stands to be adversely afected when the CSC disapproves an
appointment. Thus, the said authority can defend its appointment since it knows the
reasons for the same.[28] It is also the act of the appointing authority that is being
questioned when an appointment is disapproved. [29]
Appointees Legal Standing to
Challenge the CSC Disapproval
While there is justification to allow the appointing authority to challenge the CSC
disapproval, there is none to preclude the appointee from taking the same course of
action. Aggrieved parties, including the Civil Service Commission, should be given
the right to file motions for reconsideration or to appeal. [30] On this point, the
concepts of legal standing and real party in interest become relevant.
Although commonly directed towards ensuring that only certain parties can
maintain an action, legal standing and real party in interest are diferent
concepts. Kilosbayan v. Morato[31]explained:
The diference between the rule on standing and real party-in-interest has been
noted by authorities thus: It is important to note . . . that standing because of its
constitutional and public policy underpinnings, is very diferent from questions
relating to whether a particular plaintif is the real party-in-interest or has capacity
to sue. Although all three requirements are directed towards ensuring that only
certain parties can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating to the proper
role of the judiciary in certain areas. (FRIEDENTHAL, KANE AND MILLER, CIVIL
PROCEDURE 328 [1985])
Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law

or by official action taken, but by concerned citizens, taxpayers or voters who


actually sue in the public interest. Hence the question in standing is whether such
parties have alleged such a personal stake in the outcome of the controversy to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional
questions. (Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633 (1962))
xxxxxxxxx
On the other hand, the question as to real party-in-interest is whether he is the
party who would be [benefited] or injured by the judgment, or the party entitled to
the avails of the suit. (Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125, 131
[1951])[32]
If legal standing is granted to challenge the constitutionality or validity of a law or
governmental act despite the lack of personal injury on the challengers part, then
more so should petitioner be allowed to contest the CSC Order disapproving his
appointment. Clearly, he was prejudiced by the disapproval, since he could not
continue his office.
Although petitioner had no vested right to the position, [33] it was his eligibility that
was being questioned. Corollary to this point, he should be granted the opportunity
to prove his eligibility. He had a personal stake in the outcome of the case, which
justifies his challenge to the CSC act that denied his permanent appointment.
The Appointee a Real
Party in Interest
A real party in interest is one who would be benefited or injured by the judgment, or
one entitled to the avails of the suit. [34] Interest within the meaning of the rule
means material interest or an interest in issue and to be afected by the decree, as
distinguished from mere interest in the question involved or a mere incidental
interest.[35] Otherwise stated, the rule refers to a real or present substantial interest
as distinguished from a mere expectancy; or from a future, contingent, subordinate,
or consequential interest. [36] As a general rule, one who has no right or interest to
protect cannot invoke the jurisdiction of the court as a party-plaintif in an action. [37]
Although the earlier discussion demonstrates that the appointing authority is
adversely afected by the CSCs Order and is a real party in interest, the appointee is
rightly a real party in interest too. He is also injured by the CSC disapproval,
because he is prevented from assuming the office in a permanent capacity.
Moreover, he would necessarily benefit if a favorable judgment is obtained, as an
approved appointment would confer on him all the rights and privileges of a
permanent appointee.
Appointee Allowed

Procedural Relief
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be
interpreted to restrict solely to the appointing authority the right to move for a
reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO
292, from which the CSC derives the authority to promulgate its rules and
regulations, are silent on whether appointees have a similar right to file motions for
reconsideration of, or appeals from, unfavorable decisions involving appointments.
Indeed, there is no legislative intent to bar appointees from challenging the CSCs
disapproval.
The view that only the appointing authority may request reconsideration or appeal
is too narrow. The appointee should have the same right. Parenthetically, CSC
Resolution 99-1936[38]recognizes the right of the adversely afected party to appeal
to the CSC Regional Offices prior to elevating a matter to the CSC Central Office.
[39]
The adversely afected party necessarily includes the appointee.
This judicial pronouncement does not override Mathay v. Civil Service Commission,
[40]
which the CA relied on. The Court merely noted in passing -- by way
of obiter -- that based on a similar provision,[41] only the appointing officer could
request reconsideration of actions taken by the CSC on appointments.
In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC
Resolutions that recalled his appointment of a city government officer. He filed a
Petition assailing the CA Decision, which had previously denied his Petition for
Certiorari for being the wrong remedy and for being filed out of time. We observed
then that the CSC Resolutions were already final and could no longer be elevated to
the CA.[42] Furthermore, Mathays Petition for Certiorari filed with the CA was
improper, because there was an available remedy of appeal. And the CSC could not
have acted without jurisdiction, considering that it was empowered to recall an
appointment initially approved.[43]
The right of the appointee to seek reconsideration or appeal was not the main issue
in Mathay. At any rate, the present case is being decided en banc, and the ruling
may reverse previous doctrines laid down by this Court. [44]
Second Issue:
Constitutionality of
Section 4, CSC Memorandum
Circular 21, Series of 1994
Alleging that his civil service eligibility was rendered inefective and that he was
consequently deprived of a property right without due process, [45] petitioner

challenges the constitutionality of CSC Memorandum Circular 21, s. 1994. [46] The
pertinent part of this Circular reads:
1. Positions Covered by the Career Executive Service.
(a) The Career Executive Service includes the positions of Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director
(department-wide and bureau-wide), Assistant Regional Director (department-wide
and bureau-wide) and Chief of Department Service[.]
(b) In addition to the above identified positions and other positions of the same
category which had been previously classified and included in the CES, all other
third level positions in all branches and instrumentalities of the national
government, including government-owned or controlled corporations with original
charters are embraced within the Career Executive Service provided that they meet
the following criteria:
1. the position is a career position;
2. the position is above division chief level;
3. the duties and responsibilities of the position require the performance of
executive or managerial functions.
xxxxxxxxx
4. Status of Appointment of Incumbents of Positions Under the Coverage of the CES.
Incumbents of positions which are declared to be Career Executive Service positions
for the first time pursuant to this Resolution who hold permanent appointments
thereto shall remain under permanent status in their respective positions. However,
upon promotion or transfer to other Career Executive Service (CES) positions, these
incumbents shall be under temporary status in said other CES positions until they
qualify.
Petitioner argues that his eligibility, through the Executive Leadership and
Management (ELM) training program, could no longer be afected by a new
eligibility requirement. He claims that he was eligible for his previous position as
department manager of the Legal Services Department, PEZA; hence, he should
retain his eligibility for the position of department manager III, Labor and
Employment Center, SBMA, notwithstanding the classification of the latter as a CES
position.
CSC Authorized to Issue
Rules and Regulations
The Constitution mandates that, as the central personnel agency of the
government,[47] the CSC should establish a career service and adopt measures to

promote the morale, efficiency, integrity, responsiveness, progressiveness, and


courtesy in the Civil Service. [48] It further requires that appointments in the civil
service be made only through merit and fitness to be determined by competitive
examination.[49] Civil Service laws have expressly empowered the CSC to issue and
enforce rules and regulations to carry out its mandate.
In the exercise of its authority, the CSC deemed it appropriate to clearly define and
identify positions covered by the Career Executive Service. [50] Logically, the CSC had
to issue guidelines to meet this objective, specifically through the issuance of the
challenged Circular.
Career Service
Classified by Levels
Positions in the career service, for which appointments require examinations, are
grouped into three major levels:
(a) The first level shall include clerical, trades, crafts, and custodial service positions
which involve 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 shall include professional, technical, and scientific positions
which involve professional, technical, or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of college work up to Division
Chief level; and
(c) The third level shall cover positions in the Career Executive Service. [51]
Entrance to the diferent levels requires the corresponding civil service eligibility.
Those in the third level (CES positions) require Career Service Executive Eligibility
(CSEE) as a requirement for permanent appointment. [52]
The challenged Circular did not revoke petitioners ELM eligibility. He was appointed
to a CES position; however, his eligibility was inadequate. Eligibility must
necessarily conform to the requirements of the position, which in petitioners case
was a CSEE.
Rights Protected
The challenged Circular protects the rights of incumbents as long as they remain in
the positions to which they were previously appointed. They are allowed to retain
their positions in a permanent capacity, notwithstanding the lack of CSEE. Clearly,
the Circular recognizes the rule of prospectivity of regulations; [53] hence, there is no
basis to argue that it is an ex post facto law [54] or a bill of attainder. [55] These terms,
which have settled meanings in criminal jurisprudence, are clearly inapplicable
here.

The government service of petitioner ended when he retired in 1996; thus, his right
to remain in a CES position, notwithstanding his lack of eligibility, also ceased. Upon
hisreemployment[56] years later as department manager III at SBMA in 2001, it was
necessary for him to comply with the eligibility prescribed at the time for that
position.
Security of Tenure
Not Impaired
The argument of petitioner that his security of tenure is impaired is
unconvincing. First, security of tenure in the Career Executive Service -- except in
the case of first and second level employees in the civil service -- pertains only to
rank, not to the position to which the employee may be appointed. [57] Second,
petitioner had neither rank nor position prior to his reemployment. One cannot
claim security of tenure if one held no tenure prior to appointment.
Due Process
Not Violated
Petitioner contends that his due process rights, as enunciated in Ang Tibay v. Court
of Appeals,[58] were violated.[59] We are not convinced. He points in particular to the
CSCs alleged failure to notify him of a hearing relating to the issuance of the
challenged Circular.
The classification of positions in career service was a quasi-legislative, not a quasijudicial, issuance. This distinction determines whether prior notice and hearing are
necessary.
In exercising its quasi-judicial function, an administrative body adjudicates the
rights of persons before it, in accordance with the standards laid down by the law.
[60]
The determination of facts and the applicable law, as basis for official action and
the exercise of judicial discretion, are essential for the performance of this function.
[61]
On these considerations, it is elementary that due process requirements, as
enumerated in Ang Tibay, must be observed. These requirements include prior
notice and hearing.[62]
On the other hand, quasi-legislative power is exercised by administrative agencies
through the promulgation of rules and regulations within the confines of the
granting statute and the doctrine of non-delegation of certain powers flowing from
the separation of the great branches of the government. [63] Prior notice to and
hearing of every afected party, as elements of due process, are not required since
there is no determination of past events or facts that have to be established or
ascertained. As a general rule, prior notice and hearing are not essential to the
validity of rules or regulations promulgated to govern future conduct. [64]

Significantly, the challenged Circular was an internal matter addressed to heads of


departments, bureaus and agencies. It needed no prior publication, since it had
been issued as an incident of the administrative bodys power to issue guidelines for
government officials to follow in performing their duties. [65]
Final Issue:
Disapproval of Appointment
Since petitioner had no CES eligibility, the CSC correctly denied his permanent
appointment. The appointee need not have been previously heard, because the
nature of the action did not involve the imposition of an administrative disciplinary
measure.[66] The CSC, in approving or disapproving an appointment, merely
examines the conformity of the appointment with the law and the appointees
possession of all the minimum qualifications and none of the disqualification. [67]
In sum, while petitioner was able to demonstrate his standing to appeal the CSC
Resolutions to the courts, he failed to prove his eligibility to the position he was
appointed to.
WHEREFORE, the Petition is GRANTED insofar as it seeks legal standing for
petitioner, but DENIED insofar as it prays for the reversal of the CSC Resolutions
disapproving his appointment as department manager III of the Labor and
Employment Center, Subic Bay Metropolitan Authority. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Carpio-Morales,
Callejo,
Sr.,
Azcuna,
Tinga,
ChicoNazario, and Garcia, JJ.,concur.
Corona, J., on leave.

UP vs. Regino 221 SCRA 598


DIGESTED
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 88167 May 3, 1993


UNIVERSITY
OF
THE
PHILIPPINES
and
UP
SCHOOL
OF
ECONOMICS, petitioners,
vs.
THE HON. TEODORO P. REGINO, Presiding Judge, RTC, Br. 84 NATIONAL
CAPITAL REGION, Q.C., ANGEL PAMPLINA, and The CIVIL SERVICE
COMMISSION, respondents.
The Solicitor General for petitioner.
Araullo, Zambrano, Gruba, Chua Law Firm for private respondent.

CRUZ, J.:
Private respondent Angel Pamplina, a mimeograph operator at the University of the
Philippines School of Economics, was dismissed on June 22, 1982, after he was
found guilty of dishonesty and grave misconduct for causing the leakage of final
examination questions in Economics 106 under Prof. Solita Monsod. 1

His appeal was denied by the UP Board of Regents, prompting him to seek relief
from the Merit Systems Board (MSB), created under Presidential Decree No. 1409.
Under Section 5(l) thereof, the MSB has the power to "hear and decide
administrative cases involving officers and employees of the civil service."
The University of the Philippines filed a motion to dismiss for lack of jurisdiction on
the part of the MSB. UP relied heavily on the case of University of the Philippines
vs. Court of Appeals, 2 where it was held that administrative matters involving the
discipline of UP employees properly fall under the Jurisdiction of the state university
and the UP Board of Regents.
The motion was denied. Thereafter, in its decision dated July 5, 1985, the MSB
exonerated Pamplina and ordered his reinstatement with back wages. 3 UP,
represented by its Office of Legal Services, moved for reconsideration, but this was
denied on January l0, 1986.
UP then appealed to the Civil Service Commission, which on November 4, 1987,
issued Resolution No. 87-428, sustaining the MSB. 4 The motion for reconsideration
was denied on April 13, 1988.
On June 10, 1988, the petitioners, through their new counsel of record, the Office of
the Solicitor General (OSG), filed a second motion for reconsideration. This was also
denied on August 31, 1988, on the basis of Section 39(b) of PD 807, providing in
part that "only one petition for reconsideration shall be entertained" by the Civil
Service Commission.
Pamplina filed a "Manifestation and Motion for Execution of Judgment" of the
Commission, copy of which was received by the Office of the Solicitor General on
October 4, 1988. 5 This was opposed by the petitioners, but in an order dated
November 7, 1988, the Commission granted the motion. Nevertheless, Pamplina
was still not reinstated. UP claimed that the resolutions of the Commission had not
yet become final and executory.
Pamplina's reaction was to file a petition for a writ of mandamus on November 11,
1988. Judge Teodoro P. Regino of the Regional Trial Court of Quezon City granted the
petition on April 27, 1989. The respondents (herein petitioners) were ordered to
immediately reinstate Pamplina "to his former position as mimeograph operator
without change of status as permanent employee with back wages from June 22,
1982, up to his reinstatement, plus salaries for the period of his preventive
suspension covering December 15, 1981 to March 15, 1982." 6
On June 19, 1989, the present petition for certiorari was filed with this Court to seek
the annulment of the decision of the trial court and the orders of the Commission
directing the reinstatement of Pamplina. The petitioners also pray that the decision
of the UP President and Board of Regents ordering Pamplina's dismissal be upheld.

UP contends that under its charter, to wit, Act 1870, enacted on June 18, 1906, it
enjoys not only academic freedom but also institutional autonomy. Section 6(e) of
the said Act grants the UP Board of Regents the power "to appoint, on
recommendation of the president of the university, professors, instructors, lecturers,
and other employees of the university, to fix their compensation and to remove
them for cause after an investigation and hearing shall have been had." Pamplina
was dismissed by virtue of this provision.
The Civil Service Law (PD 807) expressly vests in the Commission appellate
jurisdiction in administrative disciplinary cases involving members of the Civil
Service. Section 9(j) mandates that the Commission shall have the power to "hear
and decide administrative disciplinary cases instituted directly with it in accordance
with Section 37 or brought to it on appeal." And Section 37(a), provides that, "The
Commission shall decide upon appeal all administrative disciplinary cases involving
the imposititon of a penalty of suspension for more than thirty (30) days, or fine in
an amount exceeding thirty days' salary, demotion in rank or salary or transfer,
removal ordismissal from office." (Emphasis supplied)
Under the 1972 Constitution, all government-owned or controlled corporations,
regardless of the manner of their creation, were considered part of the Civil
Service. 7 Under the 1967 Constitution only government-owned or controlled
corporations with original charters fall within the scope of the Civil Service pursuant
to Article IX-B, Section 2(l), which states:
The Civil Service embraces all branches, subdivisions, instrumentalities, and
agencies of the government, including government-owned or controlled
corporations with original charters.
As a mere government-owned or controlled corporation, UP was clearly a part of the
Civil Service under the 1973 Constitution and now continues to be so because it was
created by a special law and has an original charter. As a component of the Civil
Service, UP is therefore governed by PD 607 and administrative cases involving the
discipline of its employees come under the appellate jurisdiction of the Civil Service
Commission.
Coming now to the petition itself, we note that the petitioners received a copy of
the resolution denying their motion for reconsideration on April 22, 1968.
In Article IX-A, Section 7, of the 1987 Constitution, which was already in efect at
that time, it is provided that:
. . . Unless otherwise provided by this Constitution or by law, any decision, order or
ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.

This provision was reproduced almost verbatim in Section 28 of the Administrative


Code of 1987.
The petitioners therefore had thirty days from April 22, 1988, or until May 22, 1988,
within which to elevate their case to this Court. They did not do so and instead filed
a second motion for reconsideration, which was not allowed under Article IX, Section
39(b) of PD 807. On top of this, the second motion for reconsideration was filed only
on June 10, 1988, or 19 days beyond the 30-day reglementary period. 8
In this connection, it is stressed that where a motion for reconsideration of a
decision, order or ruling of any Constitutional Commission is denied, the 30-day
reglementary period does not begin anew. The petitioner has only the balance of
that period (after deducting the time elapsed before the motion was filed) to come
to this Court on certiorari.
The assailed orders having become final and executory, Pamplina had every right to
seek mandamus to compel their execution. Respondent Judge Regino was quite
correct when he issued the questioned writ.
The case cited repeatedly by the petitioners, viz., University of the Philippines
vs. Court of Appeals, 9 cannot apply to the present controversy. The reason is that at
the time it was promulgated on January 28, 1971, PD 807 had not yet been enacted.
PD 807 took afect only in 1975.
In ruling in that case "that the President and Board of Regents of the University of
the Philippines possess full and final authority in the disciplining, suspension and
removal of the civil service employees of the University, including those of the
Philippine General Hospital, independently of the Commissioner of Civil Service and
the Civil Service Board of Appeals," Justice J.B.L. Reyes relied on the Civil Service
Law of 1959, which then empowered the Civil Service Commission:
Except as otherwise provided by law, to have final authority to pass upon the
removal, separation and suspension of all permanent officers and employees in the
competitive or classified service and upon all matters relating to the conduct,
discipline, and efficiency of such officers and employees; and to prebcribe
standards, guidelines and regulations governing the administration of discipline;
(Emphasis supplied)
Article V, Section 9(j), of PD 807 simply gives the Commission the power to "har and
decide administrative disciplinary cases instituted directly with it in accordance with
Section 37 or brought to it on appeal," without the qualifiying phrase appearing in
the above-quoted provision. The petitioners cannot invoke that phrase to justify the
special power they claim under Act 1870.
WHEREFORE, the instant petition for certiorari is DISMISSED and the assailed
decision of respondent Judge Teodoro P. Regino dated April 27, 1989, and the

challenged orders of the Civil Service Commission, are AFIRMED, with costs against
the petitioners. It is so ordered.
Narvasa, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Nocon,
Bellosillo, Melo and Quiason, JJ., concur.
Romero, J., took no part.

Samson vs. CA 145 SCRA 598


FULL TEXT
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. Nos. L-10364 and L-10376

March 31, 1958

RUFINO
T.
SAMSON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ET AL., respondents.

Baizas,
Macadaeg
and
Baviera
for
petitioner.
Solicitor General Ambrosio Padilla and Solicitor Eriberto D. Ignacio for respondents.
BAUTISTA ANGELO, J.:
Rufino T. Samson was jointly charged with Amado L. Cruz and Bonifacio Vergara and
two others whose names are unknown in two separate informations with the
complex crime of estafa through falsification of two checks of the Philippine National
Bank before the Court of First Instance of Manila (Cases Nos. 12802 and 12803). On
a plea of not guilty, they were tried and found guilty as charged, the court
sentencing each of the three defendants to sufer in each case a penalty of not less
than 6 years and 1 day and not more than 9 years, 4 months and 1 day of prision
mayor, to pay a fine of P2,500 and the costs. In addition, they were sentenced to
indemnify the Philip-pine Ryukyus Command, the payee of the checks, in the sum of
P5,417.11 in each of the two cases.
The trio appealed from the decision and the Court of Appeals affirmed the same but
with a reduced penalty with regard to appellants Cruz and Vergara. Appellant
Samson was only found guilty of committing the crime through gross imprudence
and was accordingly sentenced to 4 months of arresto mayor in each of the two
cases.
Dissatisfied with his conviction, Samson sued out the present petition for review
contending (1) that the acts done by him, as found by the Court of Appeals, do not
constitute gross imprudence; (2) that there is no such ofense as estafa through
(falsification by) negligence; and (3) that the Court of Appeals erred in denying his
motion for new trial.
The facts as found by the Court of Appeals are: "Espiridion Lascao, father of the
late Felipe Lascao, a lieutenant of the USAFFE, who died during the last World War,
and his widow Rosanna Paras, through the latter filed, is Felipe Lascano's only
legitimate surviving heir, their claim papers with the Red Cross Chapter in the
Province of Sorsogon in the early part of 1946.
"On October 2, 1948 Amado L. Cruz asked the help of his former classmate Rufino T.
Samson in getting the checks of the two claimants who were with him at Camp
Murphy by approaching an officer of the Philippine Army who could identify said
persons assuring Samson that he had known said claimants for a long time. Having
been assured twice of the identity of the supposed claimants and after examining
their residence certificates attached to the claim papers, Samson accompanied by
Cruz and the supposed claimants went to talk to Lt. Manuel Valencia and requested
him to act as guarantor to secure the claimants check. Believing in the
representations made by Samson, Lt. Valencia accompanied them to the Deceased
Check Delivery Section, Finance, AFP, and secured the release of PNB Check No754497J, Exhibit C, in favor of Rosalina Paras for the sum of P6,417.11 and the PNB
Check No. 754498J, Exhibit D, in favor of Espiridion Lascao for the sum of

P6,417.10. Thence, the party repaired to the Bureau of Treasury, Finance Building,
where again through the help of Rufino T. Samson on, the two checks abovementioned were cashed by the teller Rosario Mallari who knew Samson. In
accordance with the regulations of the Bureau of Treasury to payee Rosalina Paras,
not knowing how to write or sign her name, was required to thumbmark on the back
of the check, Exhibit C, and below her thumbmark Rufino T. Samson and Francisco
Ordoez signed as witnesses. Espiridion Lascao who knows how to sign his name
was asked to do so on the back of the check, Exhibit D, and below his signature
Samson signed not as a witness but as the last indorser. The accounts called for in
said two checks were delivered to a son and Cruz, who, as will be shown hereafter,
was the person who signed as Francisco Ordoez, counted the money and delivered
it to the supposed claimants. The party then proceeded to the Aristocrat Restaurant
where together with about eleven others took their lunch for which Vergara paid
P60, besides giving Samson P300 sup-posed to be paid to the officers who helped
them in securing the checks plus P10 for Samson's taxi fare. Samson left the party
and went to the movie to meet a friend from Camp Murphy.
"On October 4, or just two days after cashing the checks, while at Camp Murphy
Samson was informed by Severino Anda, one of those who were with the party
which cashed the checks, thus said cheeks were delivered to the wrong parties.
Worried by such news he left for Sorsogon the following day to locate the real
claimants. While on the train he saw an old couple whom he suspected to be the
fake claimants because they had been throwing furtive glances at him. Upon
arriving at Sorsogon he reported the matter to the matter to police and caused to
be taken the couples finger prints names and address. At about 10 a.m., October 6,
he went to look for the house of the Lascao family. He found Espiridion Lascao,
too old and weak to leave the house. He saw Rosalina at the school where she was
teaching and inquired from her whether she had received a check from Camp
Murphy as well as the cheek of the old man and he was answered in the negative.
He returned to Manila the following day and on October 8 reported the matter to
Sgt. Luis Balignasan, G-2 PC, who after taking his affidavit promised to help him and
conduct the necessary investigation. He submitted a copy of the finger prints of the
suspects."
Analyzing the criminal responsibility of appellant Sam-son, the court made the
following comment:
Coming now to appellant Rufino T. Samson, we believe that the following facts are
admitted; that on the strength of the assurances given by Amado L. Cruz that the
supposed claimants were the real ones he requested the help of Lt. Manuel Valencia
to act as guarantor and Valencia, relying on his representations, accompanied him
and the claimants to the Delivery Window and secured the checks for them; that
again Rufino T. Samson helped Amado T. Cruz and the supposed claimants by
signing as witness together with Cruz so that the supposed claimant Rosalina Paras
could cash her check and went to the extent of signing as last indorser on the back

of the check, Exhibit D, in favor of Espiridion Lascao and then later at the
Aristocrat Restaurant accepted from Vergara and Cruz the sum of P300 to be paid to
the officers who helped them and the further sum of P10 for his tax fare. There is no
evidence that he was aware that the supposed claimants were not the real ones and
his subsequent conduct shows it to be true; but although he did not know them
personally he induced another friend of his, Lt. Manuel Valencia, to believe in the
identity of said claimants thus helping his co-accused Amado L. Cruz, Bonifacio
Vergara and John Doe and Maria Doe to perpetrate the crime of estafa through
falsification. It is unbelievable that he would accept as his share the meager amount
of P310 if he were a co-conspirator in the commission of a fraud amounting to over
P12,000. We see nothing strange in his acceptance of P310 as a token of gratitude
on the part of the claimants, but he has undoubtedly acted with reckless
imprudence for having taken no precaution whatsoever in assuring himself that the
supposed claimants were the real ones. The mere assurances given him by Amado
L. Cruz were not sufficient to justify his acting in the manner he did.
We find no error in the conclusion reached by the Court of Appeals that the
appellant herein acted with gross negligence in assuring Lt. Valencia and the
Cashier of the identity of the supposed claimants, as a result of which the
impersonators managed to secure possession of the checks in question and to cash
the same. Appellant was, or must have been aware that the claim was for a sizeable
amount, totalling over twelve thousand pesos, and ordinary prudence required that
he should satisfy himself by all proper and adequate means of the identity of the
persons claiming said amounts, since they we personally unknown to him. The mere
assurance of a former class, mate would certainly not be a satisfactory identification
to justify disbursement of such a large amount if the funds belonged to appellant;
and we see no justification for him treating government fund is with less care and
diligence than if they were his own. Nor does the submission to this appellant of
residence certificates constitute adequate identification, since these certificates are
tax receipts and not means of establishing the identity of persons; and appellant as
a Lieutenant of the Army is sufficiently intelligent and educated to foresee the
possibility that the certificates could be forged or stolen.
There is no question that appellant cooperated in the commission of the complex
ofense of estafa through falsification by reckless imprudence by acts without which
it could not have been accomplished, and this being a fact, there would be no
reason to exculpate him from liability. Even assuming that he had no intention to
defraud the ofended party if his co-defendants succeeded in attaining the purpose
sought by the culprits, appellant's participation together with the participation of his
co-defendant the commission of the ofense completed all the necessary for the
perpetration of the complex crime of estafa through falsification of commercial
document (Article 17, Revised Penal Code). Anyway and for the purposes of the
penalty that was actually imposed upon appellant, it is immaterial that he be
considered only guilty of falsification of a commercial document through reckless

negligence, because the penalty for the crime of falsification of a commercial


document under Article 172, No. 1, of the Revised Penal Code, is prision
correccional in its medium and maximum periods and a fine of not more than
P5,000.00 which under the provisions of Articles 25 and 26 of the same Code is
a correctional penalty. Consequently, if in the cases at bar the crimes of falsification
were due to reckless imprudence, the corresponding penalty would be arresto
mayor in its minimum and medium periods (Art. 365, opening paragraph of the
Revised Penal Code), which comprehends the penalty imposed by the Court of
Appeals upon appellant.
Under the facts found by the Court of Appeals, the acts of appellant constitute in
each case the crime of estafathrough falsification of a mercantile document by
reckless imprudence, because in so far as the falsification is concerned, his acts of
endorsing the respective checks by way of identification of the signatures of the
payees entitled to said checks and their proceeds, constituted a written
representation that the true payees participated in the indorsement and cashing of
the checks aforesaid, when in truth and in fact the true payees had no direct
intervention in the proceedings (Art. 171, Revised Penal Code). Even if such
indorsement and identification were extraneous to the official duties of appellant,
he would be nevertheless liable as a private person under Article 172 of the Revised
Penal Code. Decisions of this Court and of the Supreme Court of Spain assert the
juridical standing of the crime of falsification by imprudence since in falsifying public
or mercantile document, of intent to cause damage is not required because what
the law, seeks to repress is the prejudice to the public confidence in these
documents.
An act executed without malice or criminal purpose, but with carelessness,
negligence, or lack of precaution, which causes harm to society or to an individual,
should be classified as either reckless negligence or simple imprudence; the person
responsible therefor is liable for such results could have been anticipated, and for
acts which no one would commit except through culpable indiference.
The courts heretofore dealing with acts punishable under the Penal Code of Spain
which, with slight modifications, is practically the same as the one in force in these
Islands, have heard and decided cases involving falsification of documents with
reckless negligence. They therein applied the provisions of article 581 of the
Spanish Code, which is identical with article 568 of the Code in force in these
Islands, as may be seen among others, in judgments in cessation of July 8, 1882,
December 21, 1885, November 8 1887, and December 7,1896; also in case No.
2818, United States vs. Mariano Vega, decided by this Court. (U.S. vs.Maleza, 14
Phil., 468).1
It is however contended that appellant Samson cannot be convicted of the crime
of estafa through falsification by imprudence for the reason that the information
filed against him charges only a willful act of falsification and contains no reference

to any act of imprudence on his part. Nor can it be said, counsel argues, that the
alleged imprudent act includes or is necessarily included in the ofense charged in
the information because a deliberate intent to do an unlawful act is inconsistent
with the idea of negligence.
The rule regarding variance between allegation and proof in a criminal case, is:
"When there is variance between the ofense charged in the complaint or
information, and that proved or established by the evidence, and the ofense as
charged, is included in or necessarily includes the ofense proved, the defendant
shall be convicted of the ofense proved included in that which is charged, or of the
ofense charged included in that which is proved" (Section 4, Rule 116. Rules of
Court). As a complement we have also the following rule: "An ofense charged
necessarily includes that which is proved, when some of the essential elements or
ingredients of the former, as this is alleged in the complaint or information,
constitute the latter. And the ofense charged is necessarily included in the ofense
proves, when the essential ingredients of the former constitute or form a part of
those constituting the latter" (Section 5, Rule 116, Idem.).
While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor,* G.R. No. L-6641, July 28, 1955, but a
distinct crime in itself, designated as a quasi ofense in our Penal Code, it may
however be said that conviction for the former can be had under an information
exclusively charging the commission of a willful ofense, upon the theory that the
greater includes the lesser ofense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in efecting the
falsification which made possible the cashing of the checks in question, appellant
did not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an ordinary prudent
man would do. In other words, the information alleges acts which charge willful,
falsification but which turned out to be not willful but negligent. This is a case
covered by the rule when there is a variance between the allegation and proof, and
is similar to some of the cases decided by this Tribunal.
Under a charge of forcible abduction, the defendant may be convicted of illegal
detention if the evidence does not show that the kidnapping was with lewd designs.
(People vs. Crisostomo, 46 Phil., 775.)
The crime of theft is included necessarily in that of robbery and therefore a
defendant can he convicted of the former, notwithstanding that he was charged the
latter ofense. (U.S. vs. Birueda, 4 Phil., 229; Peoplevs. Rivera, 54 Phil., 578 )
The crime of robbery en cuadrilla is necessarily included in that
of bandolerisimo (brigandage),and therefore the defendants can be convicted of the
former on an information charging the latter. (U.S. vs. De la Cruz 4 Phil., 430.)

Where the information charges brigandage, but the evidence fails to show that the
crime was committed by an armed band, the defendants can be convicted of
robbery. (U.S. vs. Mangubat. 3 Phil., 1.)
Under a charge of malversation a public official may be found guilty of estafa.
(U.S. vs. Solis, 7 Phil., 195.)
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the ofense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established
to constitute the crime proved. This conclusion is strengthened by the provisions of
Section 9, Ruled 113, of the Rules of Court under which appellant could no longer be
prosecuted for estafa through falsification of commercial documents by reckless
negligence were we to acquit him in the cases at bar on the obviously technical
theory of the dissenters.
The fact that the information does not allege that the falsification was committed
with imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the result has proven beneficial to
him. Certainly, having alleged that the falsification has been willful, it would be
incongrous to allege at the same time that it was committed with imprudence for a
charge of criminal intent is incompatible with the concept of negligence.
With regard to the motion for new trial filed by appellant for the purpose of
introducing an allegedly newly discovered evidence which consists of an affidavit of
one Emiliano Salangsang-Salazar, it appearing that the same if admitted would only
be corroborative in nature and would not have the efect of altering the result of the
case, the same is denied.
Wherefore, the decision appealed from is affirmed, with costs against appellant.
Paras,
C.J.,
Bengzon,
Padilla,
Reyes, A., J., concurs in the result.

Montemayor

and

Endencia,

JJ., concur.

Separate Opinions
FELIX, J., concurring:
I concur in the majority decision for the reasons therein stated. I, however, desire to
state a few words in answer to the arguments adduced in the dissenting opinion to
the efect that "under the ruling of the majority, each and every charge of a willful
ofense will necessarily imply an alternative charge of criminal negligence" and that
this, is a way of "getting around the established rule that not more than one ofense
should be charged" and of preventing the accused from guarding against such

hidden multiplicity of charges. It is claimed that in such situation the defendant


would be unable to determine whether tie is being tried for committing the crime
or for not preventing its commission, when he could have done so.
This argument is, in my opinion, utterly untenable. In, the first place, there is no
multiplicity of accusations but, a charge that is included in another which is
considered in operative and ceases to have any efect on the defendant for lack of
supporting evidence. In the second place, no one better than the defendant knows
what he has done in connection with the crime he is charged and he must have in
mind that section 4, Rule 116, of the Rules of Court already warned him that he
could be convicted of any crime included in the crime charged in the information if
there were any variance between the latter and the crime establish by the
evidence. So that he cannot now claim that he was caught by surprise or prejudiced
in any way if the crime he was accused in the information degenerated into a case
of criminal negligence. Although I do not deny that in Quizon vs. Justice of the
Peace of Bacolor, (97 Phil., 342), We held that criminal negligence is a distinct crime
established in our Penal Code, I cannot pass unmentioned the more juridical and
more realistic point of view expressed in People vs. Faller, 7 Phil., 529, where it was
held that:
RECKLESS IMPRUDENCE is not a crime in itself. It is simply a way of committing it
and merely determines a lower degree of criminal liability. The information alleges,
that the appellant acted willfully, maliciously, unlawfully and criminally. To this
information no objection was interposed. Negligence being a punishable criminal
act when it results in a crime, the allegation in the information that the appellant
also committed the acts charged unlawfully and criminally includes the charge that
acted with negligence.
For the foregoing considerations, I vote with the majority in affirming the decision
appealed from, with costs against appellant.

REYES, J.B.L., dissenting:


If I regret my inability to agree that under a charge of intentionally committing a
crime, an accused may be convicted of committing such crime through negligence
or imprudence.
We have shown in Quizon vs. Justice of the Peace of Bacolor (97 Phil., 342), July 28,
1955, that criminal negligence is not a mere variant of the intentional misdeed; that
it is a distinct and separate in itself. We also pointed out in that case that while
willful crimes are punished according to their result in crimes of negligence, what
the law punishes is the carelessness itself, the failure to take the precautions that
society has a right to expect will be taken under the circumstances of each case. So

that, while the intentional crime of lesiones is substantially diferent from that
of falsification, lesiones by imprudence and falsification by imprudence are in
themselves substantially identical ofenses, being but two instances of criminal
negligence punishable under one and the same article (365) of the Revised Penal
Code.
It is argued that negligence is not a crime but a way of committing it. That view may
be true from the philosophical standpoint, but not from that of the Penal Code,
withstanding People vs. Faller, 67 Phil., 529, which was questioned in the Quizon
case. The stubborn fact is "Que la culpa es un delito propio como el homicidio, las
lesiones, etc. lo cual tambien es absurdo; on obstante ello en nuestra sistema
legislativo hay que partir de esa base, que por otra parte el Tribunal Supreme
acentua" (Puig Pea Der Penal, Tomo 1, pag. 316). And this is emphasized by the
designation of quasi-offenses by our Penal Code, that the Spanish Penal Code does
not even use.
As a consequence, it must be admitted that intentional falsification and falsification
by negligence not only difer in seriousness, but in essence; they are, by their
nature, two diferent ofenses altogether. Wherefore, an ofender who is accused of
intentional falsification cannot be held to answer for falsification by negligence,
because the essential element of the latter ofense, the ingredient that
characterizes it and separates it from all other ofenses, to wit, the criminal
negligence or carelessness, is not involved in the elements of the crime charged.
Not only is it not included: it is excluded by incompatibility, because malice or intent
cannot co-exist with negligence. Intent presupposes that the ofender actually
visualized or contemplated the act of falsification and determined to realize it;
negligence implies that the ofender should have foreseen or anticipated, but did
not actually anticipate or foresee, the consequences of his act. In the former, the
law punishes the culprit for his decision to breach the law, in the latter, for his
failure to foresee that his action would result in such a breach.
The diference being so radical, I can not see how the appellant can be held as a coprincipal of the crime of estafa with falsification through his reckless imprudence
considering that the negligence negates the appellant's knowledge of, or
participation in, the intent to commit the fraud. It is urged that appellant's
imprudent act wasindispensable and that without it, the estafa could not be
successfully accomplished, hence, he should be deemed a principal by cooperation
under par. 9 of Art. 17, R.P.C. I consider the argument fallacious. Art. 17 says:
ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;

3. Those who cooperate in the commission of the ofense by another act without
which it would not have been accomplished.
Now, to cooperate is to help, to aid; and necessarily presupposes, knowledge of the
ultimate purpose in view. This very Court, in People vs. Aplegido, 76 Phil., 571, has
ruled that
to cooperate means to desire or wish in common a thing. But that common will or
purpose does not necessarily mean a previous understanding.
What common will or purpose can exist between one acts maliciously and another
who acts negligently? If the appellant deliberately omitted to take precautions in
order to facilitate the estafa, he would not be guilty of estafa with falsification
through imprudence, but of intentional estafa with falsification. Such deliberate
intent, however, was expressly declared not to exist by the Court of Appeals, and
that finding is conclusive.
In U.S. vs. Magcomot, 13 Phil., 386, 389, this Court, through Mr. Justice Mapa,
decided that
In view of all the circumstances of the case we are satisfied that the assault was
committed, without the concurrence of the will of Isidro and Clemente Magcomot,
and in the absence of that volition, which is the fundamental source of criminal
liability, these co-defendants can not lawfully be held liable for the agrression and
its consequences. On the other hand, it can not be pleaded that the acts committed
on the body of the body of the deceased by said co-defendants and by Epifanio
were perpetrated at the same time, because this simultaneousness does not of
itself demonstrate the concurrence of wills nor the unity of action and purpose
which are the bases of the responsibility of two or more individuals, and in the
absence of which, it is strictly just, in accordance with the sound principles of law,
that each one should only be held liable for the acts perpetrated by him. (Emphasis
supplied)
Other cases to the same efect are collated in People vs. Tamayo, 44 Phil. 38. Let
me note also that if it is unquestioned doctrine that it is an essential condition of
complicity that the accomplice, "With knowledge of the criminal intent, should
cooperate with the intention of supplying material or moral aid in the execution of
the crime" (People vs. Tamayo, 44 Phil., 49, cit. Dec. May 23, 1905; Viada, 5 Sup.
169; Dec. June 28, 1901; Viada, 4 Sup. 196). If to cooperate as
an accomplice demands knowledge of the criminal intent, how may one cooperate
as principal without it? It seems to me that such ruling would violate the basic
principles of the Revised Penal Code on joint criminal responsibility.
On the procedural side, the objections to appellant's conviction of estafa by
falsification through negligence are much more serious.

Section 5, Rule 116, upon which the majority relies as justifying the conviction,
expresses the following rule:
An ofense charged necessarily includes that which is proved, when some of the
essential elements or ingredients of the former, as this alleged in the complaint or
information, constitute the latter. (Italic mine)
It is not enough, therefore, that the elements of the crime for which an accused is
convicted should be proved, but then must also be charged or alleged. This means,
if it means anything at all, that the crime proved may be constituted by, some, i.e.,
a lesser number, of integrating elements or requisites than the ofense charged,
provided all such constituent elements are alleged. Thus, in the cases cited by the
majority opinion, a charge of robbery includes that of theft, because to constitute
theft, we merely eliminate or subtract the element of violence from the alleged
components of robbery. One accused of forcible abduction can be convicted of
illegal detention, because the elements are common except for the lewd designs;
robbery is included in brigandage (bandolerismo) because their elements are
identical except for the organization of the band for the purpose of committing
highway robbery. And malversation a public official and estafa only difer in that the
former must be committed by taking advantage of public office; by discarding the
latter constituent element, the remainder alleges a crime of estafa. All these cases,
therefore, proceed on the theory that by striking out some of the averments in the
information the remainder charges the crime of which the accused is convicted. But
it has never been held that a crime is included in the ofense charged when not only
must one element alleged be discarded but another one,not alleged, must be
supplied. Illustrative of this case is People vs. Oso, 62 Phil., 271, it where we
quashed a conviction for abduction with rape, because the charge was plain
abduction, carnal knowledge through violence did not appear in the original
accusation.
It is very common to say that an accused may he convicted of any lesser crime than
the one charged, without realizing that by lesser crime is meant one that is
constituted by a number of elements smaller than those alleged; not a crime that
carries a lighter penalty.
Now, let us apply, the rule to the present case. What are the ingredients of the
crime of falsification in the information?
(1) That the accused made a false statement in a narration of facts (certifying that
the impostor's signature was the genuine signature of the true payee);
(2) That he made the, false statement in a commercial paper (check);
(3) That he knew that the signature certified to by him was not that of the payee;
(4) That he acted wilfully, unlawfully, and feloniously.

Clearly these allegations cannot constitute the crime of falsification by negligence


by merely striking out any number of them. And for a plain reason: the averment
of imprudence, which is the distinctive characteristic of the latter crime, is lacking;
it must be supplied from outside the information. Consequently, criminal negligence
is not included in the ofense charged.
That falsification through imprudence does not include intentional falsification is
self-evident. Negligence can not include wilfulness or vice-versa. As pointed out
previously, one excludes the other. It is thus unavoidable to conclude that a charge
of wilful falsification does not charge falsification by negligence; neither does the
latter include the former. Therefore, regardless of the evidence, a conviction for
falsification by imprudence can not be had on a charge of wilful forgery, the two
being incompatible ofenses.
But there is more, and worse. Under the ruling of the majority, each and every
charge of a wilful ofense (except those where malice is indispensable) will
necessarily imply an alternative charge of criminal negligence, since the accused
may be convicted thereof. Is this not getting around the established rule that not
more than one ofense should be charged? And how can the accused guard against
such hidden multiplicity? If the information should expressly allege that the accused
"wilfully, intentionally and/or negligently, by failing to take the requisite
precautions" committed an ofense, unquestionably the accused could object on the
ground that the information on its face charges two ofenses, criminal negligence
and the wilful crime; and he could demand that the prosecution should elect to
stand on one charge alone, and strike out the other. But under the majority ruling,
without any specific charge, the accused must stand trial and risk conviction of
either the intentional ofense or criminal negligence. Is such a procedure at all
compatible with the right of the accused to fair play? The accused can not
determine whether he is being tried for committing the crime or for not
preventing its commission, when he could have done so.
The unfairness to the accused becomes compounded when it is recalled that
negligence under our Penal Code admits two varieties: reckless imprudence
and simple imprudence, the latter involving a lesser penalty. Under the majority
ruling, therefore, a person accused of a wilful ofense is actually compelled to face
three ways and defend himself against three diferent ofenses: the wilful act,
reckless negligence, and simple imprudence. He can not object to any prosecution
evidence tending to establish any or all of these multifarious charges; he must also
see that his own evidence protects him against all three charges, altho I the
information recites only one, the intentional ofense. I submit that to force an
accused to guard against all three possibilities at once is against all fairness, justice
and equity. Pitted against the resources of the state, an accused is already at a
disadvantage; I see no need to make his position worse.

To cap it all, the accused-appellant in the present case was convicted of criminal
negligence on appeal, when he no longer could ask for a reopening of the trial to
introduce evidence against such a charge. The least that he is entitled to, it seems
to me, is a new trial. It has been the practice hitherto that where the evidence
shows the accused to be guilty of a crime diferent from the one charged, to acquit
him of the charge and, without release from custody, remand him to answer for the
proper ofense, see no reason why that rule should not be followed in the present
case.
Concepcion, J., concurs.

EN BANC

[G.R. No. 158737. August 31, 2004]


CIVIL
SERVICE
CRUZ, respondent.

COMMISSION, petitioner, vs. SATURNINO

DE

LA

DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court,
seeking to review and set aside the May 14, 2003 decision [1] and June 17, 2003
resolution[2] of the Court of Appeals in CA-G.R. SP No. 54088, entitled Saturnino de
la Cruz vs. Civil Service Commission. In that decision, the appellate court set aside
CSC Resolution Nos. 98-2970 and 99-1451, consequently approving Saturnino de la
Cruz appointment as Chief of the Aviation Safety Regulation Office.
The pertinent facts,[3] as narrated by the Office of the Solicitor General, follow.
Respondent Saturnino de la Cruz is an employee of the Air Transportation Office,
DOTC, presently holding the position of Chief Aviation Safety Regulation Officer of
the Aviation Safety Division.
Respondent was promotionally appointed to the said position on November 28,
1994, duly attested by the Civil Service Commission (CSC). But prior thereto, he was
a Check Pilot II in the Air Transportation Office (ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security
Division of the ATO formally filed with the Department of Transportation and
Communication (DOTC) her protest against the promotional appointment of
respondent as Chief Aviation Safety Regulation Officer, claiming among others that
respondent did not meet the four-year supervisory requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding
the protest without merit.
Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to
the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested
ATO Executive Director Manuel Gilo to comment on the appeal and to submit to the
CSC-NCR the documents pertinent thereto.
Since the CSC-NCR received no action on said request for comment, the CSC-NCR
again wrote Director Gilo regarding the matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its
request for comment.

On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of
Calamba and recalling the approval of respondents appointment as Chief Aviation
Safety Regulation Officer. Said the CSC-NCR:
After an initial evaluation of the protest, we find that the only issue to be resolved is
whether or not the protestee meets the minimum experience requirements as of the
date of the protestees appointment to the contested position. The contested
position requires four years of work experience in position/s involving management
per Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four
years of experience in planning, organizing, directing, coordinating and supervising
the enforcement of air safety laws, rules and regulations pertaining to licensing,
rating and checking of all airmen and mechanics and regulation of the activities of
flying schools per ATO Qualification Standards xxx.
xxx xxx xxx
Taking into account his previous positions, Mr. dela Cruz could not have exercised
managerial or supervisory functions for the required number of years. x x
x. Moreover, vis--vis the experience requirements of the approved ATO Qualification
Standards, Mr. dela Cruz work experience prior to his appointment to the contested
position did not concur therewith.
We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the
requirements of the contested position as of the date of his appointment thereto.
xxx xxx xxx.
Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for
the suspension of the order recalling respondents appointment, citing several
reasons in support thereof.
Subsequently, a Manifestation with Motion to Admit Addendum dated December 22,
1997 was filed by Director Gilo with the CSC-NCR. Director Gilo argued that Calamba
had no legal personality to file a protest because she is not a qualified next-in-rank
and that the protest was filed out of time. He likewise asserted that respondent had
fully met the qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason
to disturb earlier rulings on the matter. He also denied ATO Director Gilos request,
for lack of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted
Director Gilos request and affirmed the approval of respondents appointment as
Chief Aviation Safety Regulation Officer.He said:
xxx xxx xxx.

We reviewed again the documents including the Office Orders designating


protestant dela Cruz to supervisory position which were obviously issued during the
latter part of 1993. A liberal consideration thereof would come up with a little over
one year of supervisory and managerial experience. Certainly, he was short of the
required number of years of work experience for the contested position as of the
date of the issue of his appointment. Nevertheless, considering that Mr. dela Cruz
has already in his favor at least four years of continuous supervisory/managerial
experience from his designation as Acting Chief of the Aviation Safety Regulation
Division, supervened by his permanent appointment thereto as Chief thereof in
November 28, 1994, up to present, he has substantially satisfied the four years
experience required for appointment to the contested position.
xxx xxx xxx.
In a letter dated January 26, 1998, Calamba requested the CSC to implement the
January 5, 1998 ruling of the CSC-NCR.
When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo
explained that the January 5, 1998 ruling is unofficial and inexistent.
The CSC treated Calambas request as an appeal. On November 13, 1998, the CSC
rendered its Resolution No. 98-2970, the decretal portion of which reads:
WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The
appointment of Saturnino De la Cruz as Chief Aviation Regulation Officer is
disapproved. De la Cruz is hereby reverted to his former position.
xxx xxx xxx.
Acting on the request for reconsideration filed by respondent, the CSC rendered its
Resolution No. 99-1451 on July 6, 1999, the dispositive portion of which reads:
WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby
denied. Accordingly, CSC Resolution No. 98-2970 dated November 13, 1998 stands.
On August 11, 1999, respondent filed a petition for review with the Court of
Appeals, docketed as CA-G.R. SP No. 54088, seeking to nullify CSC Resolution Nos.
98-2970 and 99-1451.
In a decision[4] dated March 14, 2003, the Court of Appeals granted the petition by
setting aside CSC Resolution Nos. 98-2970 and 99-1451 and approving respondents
appointment as Chief of the Aviation Safety Regulation Office.
Petitioners motion for reconsideration was subsequently denied in a resolution
issued on June 17, 2003.
Hence, the instant petition for review.

Petitioner contends that the appellate court erred in approving respondents


appointment as Chief Aviation Safety Regulation Officer despite his failure to meet
the minimum four-year managerial and supervisory qualification for the position. It
further contends that respondents completion of the required experience during the
pendency of the present case cannot be counted in his favor because compliance
with the prescribed mandatory requirements should be as of the date of issuance of
the appointment and not the date of approval by the CSC or the resolution of the
protest against the appointment.
The petition lacks merit.
Contrary to petitioners contention, respondent has sufficiently complied with the
required experience standards.
First, upon the issuance of respondents appointment on November 28, 1994, the
qualification standards of the DOTC for the position of Chief Aviation Safety
Regulation Officer were as follows:
EDUCATION:

Bachelors Degree related to Aviation

EXPERIENCE:

4 years of experience in planning, organizing, directing,


coordinating, and supervising the enforcement of air safety
laws, rules, and regulations pertaining to licensing, rating
and checking of all airmen and mechanics and the
regulation of the activities of flying schools.
License required: Airline Transport Rating / Flight Operations
Officer / Aircraft Maintenance Engineer (A&P) License / Flight
Engineer License

TRAINING:

In-service training in management; specialized course in


aircraft maintenance / air carrier operations/ flight
dispatching/ aircraft accident investigation/ equipment
qualification course / flight training (local & abroad)

ELIGIBILITY:

Relevant RA 1080 Career Service Prof. 1st Grade


Relevant Eligibility for Second Level Position [5]

As noted by the CSC-NCR, [6] the contested position required four years of work
experience in managerial position(s) per the Qualification Standards Manual
prescribed by MC No. 46, s. 1993 and/or four years of experience in planning,
organizing, directing, coordinating and supervising the enforcement of air safety
laws, rules and regulations pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying schools per the above-stated
ATO-DOTC Qualification Standards.

Petitioners insistence that respondent failed to meet the four-year


managerial and supervisory experience requirement is misplaced. It is a well-settled
rule in statutory construction that the use of the term and/or means that the word
and and the word or are to be used interchangeably. [7] The word or is a disjunctive
term signifying dissociation and independence of one thing from another. [8] Thus,
the use of the disjunctive term or in this controversy connotes that either the
standard in the first clause or that in the second clause may be applied in
determining whether a prospective applicant for the position under question may
qualify.
Respondent would indeed lack the required years of work experience to qualify for
the contested position if the managerial standards in the first clause above were to
be strictly followed. At the time of his permanent appointment on November 28,
1994 as Chief Aviation Safety Regulation Officer, respondent had a little over one
year of managerial experience from his designation as Acting Chief of the Aviation
Safety Division during the latter part of 1993. However, the work already rendered
by respondent in the ATO at the time of his appointment was well within the
supervisory standard in the second clause. Planning, organizing, directing,
coordinating and supervising the enforcement of air safety laws, rules and
regulations pertaining to licensing, rating and checking of all airmen and mechanics
and regulation of the activities of flying schools were part of the work performed by
respondent for more than 13 years prior to his appointment.
Before respondent was appointed to the contested position, he had held several
other positions in the ATO, namely:
March 6, 1981 to July 15, 1981

Supply Checker

July 16, 1981 to February 5, 1983

Junior Aeronautical Engineer

February 6, 1983 to February 29, 1984

Air Carrier Safety Inspector

March 1, 1984 to February 28, 1987

Check Pilot I

March 1, 1987 to November 27, 1994

Check Pilot II

November 28, 1994 to date

Chief Aviation
Officer[9]

Safety

Regulation

These positions, spanning more than 13 years, in four of the five sections of the
Aviation Safety Division of the ATO definitely met the minimum supervisory
experience required of respondent for the position.
In Rapisora vs. Civil Service Commission,[10] this Court held that the rule that
appointees must possess the prescribed mandatory requirements cannot be so
strictly interpreted as to curtail an agencys discretionary power to appoint, as long
as the appointee possesses other qualifications required by law. The appellate court

was therefore correct in setting aside the assailed CSC resolutions and considering
the respondents total work experience as sufficient to meet the supervisory
standards under the second clause, thereby finding respondent qualified for
appointment to the contested position.
Second, respondents promotional appointment was issued in accordance with
petitioners selection process. Respondent passed the rigid screening of the ATO
Personnel Selection/Promotion Board as well as the oral and written examinations of
the DOTC Selection Board.
DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:
1. Capt. dela Cruz has been with the Air Transportation Office for more than 13
years already and during such period, he faithfully and efficiently (served in) four of
the five sections of the Aviation Safety Division of which the position under
consideration is the head, thereby gaining more varied experience and working
knowledge of the most important and sensitive functions of the Division over other
applicants;
2. The recommendee always performs his assigned tasks promptly with dedication,
integrity, high sense of responsibility and professionalism which he had
demonstrated when he established and developed the Airport Crash Rescue
Organization (ACRO) procedure to various national airports of the country, and when
he organized the Air Transportation Office (ATO) Operations Center which is now on
a 24-hour operation and serving as the nerve center of this Office;
3. He is a dedicated public servant and is always willing to respond to call of duty
even beyond office hours like when he is flying the ATOs aircraft for navigation aide
check during holidays and weekends, aside from conducting checkride to airmen
prior to issuance of the pilot license;
4. Capt. dela Cruz is an outstanding team worker as well as a leader and promotes
enthusiasm among co-workers. He handles all areas of job with minimal supervision
and accomplishes objectives efficiently. He accepts stress situations and performs
extremely well.[11]
Because of respondents excellent credentials, DOTC Assistant Secretary for
Administrative and Legal Afairs Wilfredo M. Trinidad, chair of the Personnel
Selection Board, strongly recommended his promotional appointment to the
contested position.
Third, respondents multifarious experiences and trainings [12] in air transportation
were taken into account when he was chosen for the subject position. Respondent
not only showed a continuing interest to improve his expertise in the field of air
transportation, he also acquired an Airline Transport Pilots License in 1998. [13] As a
privileged holder of such license, respondent exercised administrative supervision

and control over pilots, cabin and crew members to ensure compliance with air
safety laws, rules and regulations.
In addition, respondents dedication to the service was demonstrated by his
conceptualization and establishment of the Airport Crash Rescue Organization
(ACRO) procedure in various national airports in the country to ensure the security
of both airport personnel and passengers. Respondent also organized the Air
Transportation Office Operations Center which now provides air service assistance
on a 24-hour basis.
Because of respondents commendable performance, he was designated Chief of the
Air Transportation Office Operations Center in 1993 per Office Order No. 178-93,
[14]
in addition to his duties as Check Pilot II. He was also designated Acting Chief,
Aviation Safety Division, of the ATO per Office Order No. 211-93. [15]
In Teologo vs. Civil Service Commission,[16] the Supreme Court ruled:
Promotions in the Civil Service should always be made on the basis of qualifications,
including occupational competence, moral character, devotion to duty, and, not
least important, loyalty to the service. The last trait should always be given
appropriate weight, to reward the civil servant who has chosen to make his
employment in the Government a lifetime career in which he can expect
advancement through the years for work well done. Political patronage should not
be necessary. His record alone should be sufficient assurance that when a higher
position becomes vacant, he shall be seriously considered for the promotion and, if
warranted, preferred to less devoted aspirants.
As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director
Nelson Acebedo, a proven excellent performance of a person is better than just
experience by occupying a position but lacks dedication to duty, strong leadership
and technical know-how.[17]
It is elementary in the law of public officers that the power to appoint is in essence
discretionary on the part of the proper authority. In Salles vs. Francisco, et al., [18] we
had occasion to rule that, in the appointment or promotion of employees, the
appointing authority considers not only their civil service eligibilities but also their
performance, education, work experience, trainings and seminars attended, agency
examinations and seniority. Consequently, the appointing authority has the right of
choice which he may exercise freely according to his best judgment, deciding for
himself who is best qualified among those who have the necessary qualifications
and eligibilities. The final choice of the appointing authority should be respected
and left undisturbed. Judges should not substitute their judgment for that of the
appointing authority.
In the appointment of division chiefs, as in this case, the power to appoint rests on
the head of the department. Sufficient if not plenary discretion should be granted to

those entrusted with the responsibility of administering the offices concerned. They
are in a position to determine who can best fulfill the functions of the office vacated.
[19]
Not only is the appointing authority the officer primarily responsible for the
administration of the office, he is also in the best position to determine who among
the prospective appointees can efficiently discharge the functions of the position. [20]
Respondent was the uncontested choice of the appointing authority. Then DOTC
Secretary Jesus B. Garcia dismissed the protest against respondents appointment.
ATO Executive Director Gilo also noted respondents full compliance with the
qualifications for the position. CSC-NCR Director Acebedo, who previously recalled
respondents appointment, later affirmed it after a re-evaluation of the case and
declared his previous ruling unofficial and inexistent.
Clearly then, there is no reason to disapprove the appointment of respondent as
Chief of the Aviation Safety Regulation Office considering that he is fully qualified
and evidently the choice of the appointing authority. Between the Commission and
the appointing authority, we sustain the latter. [21] Every particular job in an office
calls for both formal and informal qualifications. Formal qualifications such as age,
number of academic units in a certain course, seminars attended, etc., may be
valuable but so are such intangibles as resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the future and best interest of the service.
Given the demands of a certain job, who can do it best should be left to the head of
the office concerned provided the legal requirements for the office are satisfied. [22]
We, however, agree with petitioner that the reckoning point in determining the
qualifications of an appointee is the date of issuance of the appointment and not
the date of its approval by the CSC or the date of resolution of the protest against it.
We need not rule on petitioners assertion that respondents subsequent compliance
with the experience standards during the pendency of the case should not be
counted in his favor since respondent was anyway qualified for the position at the
time of his appointment.
But even assuming for the sake of argument that respondent failed to meet the
experience requirement to qualify for the contested position, we are still inclined to
uphold the appellate courts approval of respondents appointment. Petitioner itself
has, on several occasions, allowed the appointment of personnel who were initially
lacking in experience but subsequently obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled
thus:
A careful evaluation of the qualifications of Josue reveals that he meets the
education, training and eligibility requirements of the position. Considering that
Josue has already in his favor three (3) years and eight (8) months experience as
Senior Inspector up to the present, he has substantially satisfied the four (4) years
experience required for the appointment as Chief Inspector.

Following petitioners line of reasoning, respondent is deemed to have satisfactorily


complied with the experience requirement for the contested position when he was
designated Chief of the ATO Operations Center and Acting Chief of the ATO Aviation
Safety Division. Having held said positions from 1993 to the present, respondent
may be considered to have acquired the necessary experience for the position.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of
Appeals setting aside CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451
is AFFIRMED.The appointment of Saturnino de la Cruz as Chief Aviation Safety
Regulation Officer is APPROVED.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio-Morales,
Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.

FIRST DIVISION
[G.R. No. 143366. January 29, 2001]
LUIS MARIO M. GENERAL, petitioner, vs. RAMON S. ROCO, respondent.
[G.R. No. 143524. January 29, 2001]
THE EXECUTIVE SECRETARY, SECRETARY OF TRANSPORTATION and
COMMUNICATIONS, UNDERSECRETARY FOR STAFF SERVICES of the DOTC

and the ASSISTANT SECRETARY for LAND TRANSPORTATION, petitioners,


vs. RAMON S. ROCO, respondent.
DECISION
YNARES-SANTIAGO, J.:
Respondent Ramon S. Roco was appointed by then President Fidel V. Ramos on
August 26, 1996 as Regional Director of the Land Transportation Office (LTO) in
Region V, a position equivalent to CES rank level V. He forthwith began to assume
and discharge the duties and responsibilities of the said office. Subsequently, then
President Joseph E. Estrada re-appointed him to the same position on February 8,
1999. At the time of respondents appointment in 1996 and 1999, he was not a CES
eligible. However, during his incumbency, or on August 13, 1999, he was conferred
CES eligibility by the Career Executive Service Board.
On September 7, 1999, petitioner Luis Mario General, who is not a CES eligible,
[1]
was appointed by President Estrada as Regional Director of the LTO in Region V,
the same position being occupied by respondent. Pursuant thereto, DOTC
Undersecretary Herminio B. Coloma, Jr., as Officer-in-Charge of the Department,
issued a Memorandum directing petitioner General to assume the said office
immediately and for respondent Roco to report to the Office of the Secretary for
further instructions. Accordingly, petitioner General assumed office on September
16, 1999.
Aggrieved, respondent Roco filed before the Court of Appeals a petition for quo
warranto with prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order. The Court of Appeals issued a TRO enabling respondent
Roco to re-assume the disputed office. After the lapse of 60 days, there being no
writ of preliminary injunction issued, petitioner General again assumed the said
office. On March 10, 2000, the Court of Appeals rendered a decision affirming the
appointment of respondent Roco to the Office of Regional Director of the LTO,
Region V, nullified the appointment of petitioner General and ordered him to vacate
the subject post in favor of respondent Roco. [2] Upon motion of respondent Roco, the
Court of Appeals issued a writ of execution pending appeal. [3]
From the Court of Appeals decision, two separate petitions for review under Rule 45
were filed before this Court. The first one, which was filed by General against Roco,
was docketed as G.R. No. 143366; while the second petition was filed by the
Solicitor General on behalf of the Executive Secretary, the Secretary,
Undersecretary and Assistant Secretary of the DOTC, also against Roco, and was
docketed as G.R. No. 143524. On June 26, 2000, the Court issued a Resolution in
G.R. No. 143366 directing the parties to maintain the status quo ante.[4] Both
petitions were later consolidated.

The thrust of respondents argument is that a career executive service (CES)


eligibility is all that an employee needs to acquire security of tenure in the service;
and that appointment to a CES rank is not necessary for the acquisition of such
security of tenure. On the other hand, petitioners in G.R. No. 143524 and G.R. No.
143366, claim that CES eligibility alone will not suffice. Petitioners contended that
unless and until an employee in the career executive service is appointed to the
appropriate CES rank, he acquires no security of tenure.
The petitions are impressed with merit.
Section 27 (1), of the Civil Service Law (Subtitle A, Tittle I, Book V of E.O. No. 292),
provides:
(1) Permanent status. - A permanent appointment shall be 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 career executive service, the acquisition of security of tenure which
presupposes a permanent appointment is governed by the rules and regulations
promulgated by the CES Board, [5] thus:
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment of a
CES eligibility and the inclusion of his name in the roster of CES
eligibles. Conferment of CES eligibility is done by the Board through a formal
Board Resolution after an evaluation is done of the examinees performance in the
four stages of the CES eligibility examinations.
xxxxxxxxx
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other requirements
prescribed by the Board, an incumbent of a CES position may qualify for
appointment to a CES rank. Appointment to a CES rank is made by the President
upon the recommendation of the Board. This process completes the officials
membership in the CES and most importantly, confers on him security of
tenure in the CES.
There are six (6) ranks in the CES ranking structure. The highest rank is that of a
Career Executive Service Officer I (CESO I), while the lowest is that of CESO VI.
The appropriate CESO rank to which a CES eligible may be appointed depends on
two major qualification criteria, namely: (1) level of managerial responsibility; and,
(2) performance.

Performance is determined by the officials performance rating obtained in the


annual CESPES. On the other hand, managerial responsibility is based on the level
of the general duties and responsibilities which an eligible is performing, as follows:
Levels
of Rank
Duties and Equivale
Responsibili nt
ties
I
if level of
managerial
responsibilit II
ies
are
comparable
to that of an
Undersecret III
ary
if
IV
comparable
to that of an
Assistant
Secretary V
VI
if
comparable
to that of a
Bureau
Director, or
a
Department
Regional
Director
if
comparable
to that of an
Assistant
Bureau
Director,
Department
Assistant
Regional
Director or
Department

Service
Chief
if
comparable
to that of
Bureau
Regional
Director
if
comparable
to that of a
Bureau
Assistant
Regional
Director
As a general rule, a CES eligible will be recommended for appointment to the rank
equivalent of the level of his managerial responsibility if his performance rating is
Satisfactory or higher. If the performance rating is Outstanding, he will be
recommended one rank higher than his level of managerial responsibility.
(Emphasis supplied)
So also, pertinent provisions of the Integrated Reorganization Plan, [6] read:
c. Appointment. Appointment to appropriate classes in the Career Executive Service
shall be made by the President from a list of career executive eligibles
recommended by the Board. Such appointments shall be made on the basis of rank;
provided that appointments to higher ranks which qualify the incumbents to
assignments as undersecretary and heads of bureaus and offices and equivalent
positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he qualifies in such examination.
xxxxxxxxx
e. Assignments Reassignments and Transfers. Depending upon their ranks,
members of the Service shall be assigned to occupy positions 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 Board on the basis of the members
functional expertise.

As clearly set forth in the foregoing provisions, two requisites must concur in order
that an employee in the career executive service may attain security of tenure, to
wit:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of employees in the
career executive service (except first and second-level employees in the civil
service), pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO sufers no diminution of
salary even if assigned to a CES position with lower salary grade, as he is
compensated according to his CES rank and not on the basis of the position or office
he occupies.[7]
In the case at bar, there is no question that respondent Ramon S. Roco, though a
CES eligible, does not possess the appropriate CES rank, which is - CES rank level V,
for the position of Regional Director of the LTO (Region V). Falling short of one of the
qualifications that would complete his membership in the CES, respondent cannot
successfully interpose violation of security of tenure.Accordingly, he could be validly
reassigned to other positions in the career executive service. Thus, in Achacoso v.
Macaraig,[8] the Court held that:
It is settled that a permanent appointment can be issued only to a person who
meets all the requirement for the position to which he is being appointed, including
the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and at a moments notice, conformably
to established jurisprudence.
xxxxxxxxx
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment,
which in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place or,
as an exception to the rule, may be appointed to it merely in an acting capacity in
the absence of appropriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated.

Moreover, under the mobility and flexibility principles [9] of the Integrated
Reorganization Plan, CES personnel may be reassigned or transferred from one
position to another, thus:
e. Assignments, Reassignments and Transferees ...
Any provision of law to the contrary notwithstanding, members of the Career
Executive Service may be reassigned or transferred from one position to another
and from one department, bureau or office to another; provided that such
reassignment or transfer is made in the interest of public service and involves no
reduction in rank or salary; provided, further, that no member shall be reassigned or
transferred oftener than every two years; and provided, furthermore, that if the
officer concerned believes that his reassignment or transfer is not justified, he may
appeal his case to the President.[10]
One last point. Respondent capitalizes on the fact that petitioner Luis Mario M.
General is not a CES eligible. The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated
Reorganization Plan ...the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the
required Career Executive Service examination and that he shall not be promoted
to a higher class until he qualified in such examination.
Evidently, the law allows appointment of those who are not CES eligible, subject to
the obtention of said eligibility, in the same manner that the appointment of
respondent who does not possess the required CES rank (CES rank level V) for the
position of Regional Director of the LTO, is permitted in a temporary capacity.
WHEREFORE, the petition is GRANTED, and the March 10, 2000 Decision and the
June 9, 2000 Resolution of the Court of Appeals in CA-G.R. SP No. 55000, is SET
ASIDE. The petition for quo warranto and prohibition filed by respondent is hereby
DISMISSED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

[1]

[2]

Certification of the Career Executive Service Board, Annex B; Rollo, p. 258.

The Court of Appeals Decision was promulgated March 10, 2000 and penned by
Justice Demetrio G. Demetria with Justices Ramon Mabutas, Jr. and Jose L. Sabio, Jr.

concurring, the dispositive portion of which reads: WHEREFORE, premises


considered, the petition is GRANTED and judgment is hereby rendered declaring
petitioner RAMON S. ROCO as the lawful occupant of the office of the Regional
Director, Land Transportation Office for Region V. Respondents and their successorsin-office are hereby permanently enjoined from removing or causing the removal of
petitioner from office without cause as provided by law, and are hereby ordered to
immediately reinstate or cause the reinstatement of petitioner as Regional Director
Land Transportation Office, Region V, with payment of full back salaries. The
appointment of private respondent Luis M. General is hereby declared NULL and
VOID ab initio. Accordingly, private respondent is hereby ordered to vacate the
position of Regional Director, land Transportation Commission for Region V in favor
of the petitioner. (Rollo in G.R. No. 143366, p. 79; Rollo in G.R. No. 143524, p. 34).

EN BANC
[G.R. No. 131954. June 28, 2001]
ASELA B. MONTECILLO, MARILOU JOAN V. ORTEGA and CHARRISHE
DOSDOS, petitioners, vs. CIVIL SERVICE COMMISSION, respondent.
RESOLUTION
QUISUMBING, J.:
Seeking to nullify Resolution No. 972512 for having been issued by respondent Civil
Service Commission allegedly with grave abuse of discretion, petitioners assail the
validity of CSC Memorandum Circular No. 22, Series of 1991, on the ground that its
issuance amounted to an abuse of respondents power to promulgate rules and
regulations pursuant to the Civil Service Law.
Following our decision in Davao City Water District vs. Civil Service Commission,
[1]
employee positions in the Metropolitan Cebu Water District (MCWD) were reclassified during the latter part of 1995 to conform with position descriptions and
corresponding salary grades in the civil service. Accordingly, while the personnel
structure of the MCWD was being modified, three of its employees -- petitioners
Asela B. Montecillo, Marilou Joan V. Ortega and Charrishe Dosdos -- applied for
promotional appointment to the position of Secretary to the Assistant General
Manager or Private Secretary C, as the position later came to be known. At the time

of their application, petitioners had been occupying the position of Department


Secretary and were employed in the MCWD for six to seven years.
When their appointments were forwarded to the Civil Service Commission Field
Office (CSC FO) by MCWD General Manager Dulce Abanilla, the CSC FO refused to
approve petitioners appointments as permanent on the ground that the position
applied for was a primarily confidential and co-terminous position. This ruling was
upheld by the CSC Regional Office[2] and affirmed on appeal by respondent.[3]
In its Resolution No. 972512, respondent based its
Memorandum Circular No. 22, Series of 1991, which reads:

conclusions

on CSC

To: ALL HEADS OF DEPARTMENTS, BUREAUS AND AGENCIES OF THE


NATIONAL/LOCAL GOVERNMENTS, INCLUDING GOVERNMENT-OWNED AND/OR
CONTROLLED CORPORATIONS
Subject: Classification of Private Secretary Position
The Civil Service Commission issued Memorandum Circular No. 14, s. 1987 which
identified the personal and confidential positions located in the offices of elective
officials, Department heads and other officials of cabinet rank whose tenure is at
the pleasure of the President as well as Chairman and Members of Commissions and
Boards with fixed terms of offices per approved Position Allocation List (PAL) as
primarily confidential in nature. This includes the position of Private Secretary.
However, it is noted that there are also Private Secretary positions found in the
Offices of officials not mentioned in Section 9, Chapter 2, Book V of Executive Order
No. 292 but, whose duties likewise required utmost confidentiality.
For consistency and uniformity, it is hereby declared, pursuant to Resolution No. 91676, that all Private Secretary positions irrespective of their locations are primarily
confidential in nature. The term of office of the appointees to said positions shall be
coterminous with the official they serve.
Incumbents of positions of Private Secretary prior to this declaration whose
appointments are permanent shall retain their permanent status until the positions
are vacated.
Heads of agencies who may want to retain the position of Private Secretary in the
career service should request the Department of Budget and Management for a
change of their position titles to Secretary.
Please be guided accordingly.
Upon denial of their motion for reconsideration [4] by the CSC, petitioners brought
this special civil action under Rule 65 of the Revised Rules of Court.

Before us, petitioners argue that Memorandum Circular No. 22, s. of 1991, unduly
amended and expanded the scope of the non-career service under Section 6, Article
IV of the Civil Service Decree,[5]P.D. 807, which appears almost identical to Section
9, Chapter 2, Book V of the 1987 Administrative Code. They contend that
respondent abused its power to promulgate rules and regulations by issuing the
challenged circular, because the grant of rule-making power to respondent did not
authorize it to amend the law by adding to the statutory enumeration. Petitioners
conclude that since said memorandum circular was issued in excess of the powers
granted to respondent, it is null and void and consequently, the assailed CSC
resolution has no leg to stand on.
After carefully considering petitioners contentions as well as the manifestation of
the Office of the Solicitor General, however, we find no merit in the present petition.
First of all, it must be stressed that in this special civil action for certiorari, the Court
is limited to the determination of whether or not respondent committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing Memorandum
Circular No. 22, s. of 1991. In this regard, it should also be emphasized that the
burden of proving such grave abuse of discretion lies with petitioners. [6] By grave
abuse of discretion is meant such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction; mere abuse of discretion is not enough -- it must
be grave.[7]
The special writ of certiorari is not a remedy for errors of judgment, which are
correctible by appeal.[8] For as long as a court, agency or tribunal acts within its
jurisdiction, any alleged errors committed in the exercise thereof will amount to
nothing more than errors of judgment, which may be corrected by timely appeal but
not by a special civil action of certiorari. [9]
In the present case, there is no clear and persuasive showing that respondent
grossly abused its discretion or exceeded its powers when it issued the assailed
circular. On the contrary, respondent was expressly empowered to declare positions
in the Civil Service as may properly be classified as primarily confidential under
Section 12, Chapter 3, Book V of the Administrative Code of 1987. [10] To our mind,
this signifies that the enumeration found in Section 6, Article IV of the Civil Service
Decree, which defines the non-career service, is not an exclusive list. Respondent
could supplement the enumeration, as it did when it issued Memorandum Circular
No. 22, s. of 1991, by specifying positions in the civil service, which are considered
primarily confidential and therefore their occupants are co-terminous with the
official they serve.
In our view, the assailed memorandum circular can not be deemed as an
unauthorized amendment of the law. On the contrary, it was issued pursuant to a
power expressly vested by law upon respondent.As such, it must be respected by
this Court as a valid issuance of a constitutionally independent body. Moreover,

absent any showing by petitioners that respondent acted on their case in an


arbitrary or whimsical manner, it could not be successfully contended that the
respondent acted with grave abuse of discretion. The cited circular amply provides
valid reason and justification for the Commissions resolution, which affirmed on
appeal the ruling of the CSC Regional Office that earlier upheld the action taken by
its field office. This three-tiered process in the CSC ensured that petitioners plea had
undergone a thorough consideration and found devoid of substantial merit. Given
these circumstances, we see no sufficient ground to disturb respondents resolution.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.

[1]

Promulgated Sept. 13, 1991, 201 SCRA 593. The Court held in this case that local
water districts are government-owned or controlled corporations with original
charter and were placed under the jurisdiction of the Civil Service Commission.
[2]

Rollo, pp. 49-50.

[3]

Id at 54-57.

[4]

Id at 61-63.

[5]

SECTION 6. The Non-Career Service shall be characterized by (1) entrance on


bases other than those of the usual tests of merit and fitness utilized for the career
service; and (2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his pleasure, or
which is limited to the duration of a particular project for which purpose
employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staf;
(2) Department Heads (now Secretaries) and other officials of Cabinet rank who
hold their positions at the pleasure of the President and their personal and
confidential staf (s);

(3) Chairman and members of commissions and boards with fixed terms of office
and their personal or confidential staf;
(4) Contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job, requiring
special or technical skills not available in the employing agency, to be accomplished
within a specific period, which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.

EN BANC
[G.R. No. 123708. June 19, 1997]
CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent.
DECISION
REGALADO, J.:

The present petition for review on certiorari seeks to nullify the decision of the Court
of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside
Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the
reinstatement of herein private respondent Rafael M. Salas with full back wages for
having been illegally dismissed by the Philippine Amusement and Gaming
Corporation (PAGCOR), but without prejudice to the filing of administrative charges
against him if warranted.[1]
The records disclose that on October 7, 1989, respondent Salas was appointed by
the PAGCOR Chairman as Internal Security Staf (ISS) member and assigned to the
casino at the Manila Pavilion Hotel. However, his employment was terminated by
the Board of Directors of PAGCOR on December 3, 1991, allegedly for loss of
confidence, after a covert investigation conducted by the Intelligence Division of
PAGCOR. The summary of intelligence information claimed that respondent was
allegedly engaged in proxy betting as detailed in the affidavits purportedly executed
by two customers of PAGCOR who claimed that they were used as gunners on
diferent occasions by respondent. The two polygraph tests taken by the latter also
yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to the
Chairman and the Board of Directors of PAGCOR, requesting reinvestigation of the
case since he was not given an opportunity to be heard, but the same was
denied. On February 17, 1992, he appealed to the Merit Systems Protection Board
(MSPB) which denied the appeal on the ground that, as a confidential employee,
respondent was not dismissed from the service but his term of office merely
expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the
decision of the MSPB.[2]
Respondent Salas initially went to this Court on a petition for certiorari assailing the
propriety of the questioned CSC resolution. However, in a resolution dated August
15, 1995,[3] the case was referred to the Court of Appeals pursuant to Revised
Administrative Circular No. 1-95 which took efect on June 1, 1995.
On September 14, 1995, the court of Appeals rendered its questioned decision with
the finding that herein respondent Salas is not a confidential employee, hence he
may not be dismissed on the ground of loss of confidence. In so ruling, the appellate
court applied the "proximity rule" enunciated in the case of Grio, et al. vs. Civil
Service Commission, et al.[4]. It likewise held that Section 16 of Presidential Decree
No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the
1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the sole
determinative issue of whether or not respondent Salas is a confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal Security Staf of
PAGCOR, is a confidential employee for several reasons, viz.:

(1) Presidential Decree No. 1869 which created the Philippine Amusement and
Gaming Corporation expressly provides under Section 16 thereof that all employees
of the casinos and related services shall be classified as confidential appointees;
(2) In the case of the Philippine Amusement and Gaming Corporation vs. Court of
Appeals, et al.,[5] The Supreme Court has classified PAGCOR employees as
confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in
casinos and related services as confidential appointees by operation of law; and
(4) Based on his functions as a member of the ISS, private respondent occupies a
confidential position.
Whence, according to petitioners, respondent Salas was not dismissed from the
service but, instead, his term of office had expired. They additionally contend that
the Court of Appeals erred in applying the "proximity rule" because even if Salas
occupied one of the lowest rungs in the organizational ladder of PAGCOR, he
performed the functions of one of the most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of an
employee's functions, and not his designation or title, which determines whether or
not a position is primarily confidential, and that while Presidential Decree No. 1869
may have declared all PAGCOR employees to be confidential appointees, such
executive pronouncement may be considered as a mere initial determination of the
classification of positions which is not conclusive in case of conflict, in light of the
ruling enunciated in Tria vs. Sto. Tomas, et al.[6]
We find no merit in the petition and consequently hold that the same should be, as
it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the
provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959),
which was then in force when Presidential Decree No. 1869 creating the Philippine
Amusement and Gaming Corporation was passed, provided that "upon
recommendation of the Commissioner, the President may declare a position as
policy-determining, primarily confidential, or highly technical in nature." It appears
that Section 16 of Presidential Decree No. 1869 was predicated thereon, with the
text thereof providing as follows:
"All positions in the corporation, whether technical, administrative, professional or
managerial are exempt from the provisions of the Civil Service Law, rules and
regulations, and shall be governed only by the personnel management policies set
by the Board of Directors. All employees of the casinos and related services shall be
classified as 'confidential' appointees."

On the strength of this statutory declaration, petitioner PAGCOR terminated the


services of respondent Salas for lack of confidence after it supposedly found that
the latter was engaged in proxy betting. In upholding the dismissal of respondent
Salas, the CSC ruled that he is considered a confidential employee by operation of
law, hence there is no act of dismissal to speak of but a mere expiration of a
confidential employee's term of office, such that a complaint for illegal dismissal will
not prosper in this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the provisions
of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case
at bar because the same is deemed to have been repealed in its entirety by Section
2(1), Article IX-B of the 1987 Constitution. [7] This is not completely correct. On this
point, we approve the more logical interpretation advanced by the CSC to the efect
that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the
provisions of Civil Service Law and Rules has been amended, modified or deemed
repealed by the 1987 Constitution and Executive Order No. 292 (Administrative
Code of 1987)."
However, the same cannot be said with respect to the last portion of Section 16
which provides that "all employees of the casino and related services shall be
classified as 'confidential appointees.'" While such executive declaration emanated
merely from the provisions of Section 2, Rule XX of the implementing rules of the
Civil Service Act of 1959, the power to declare a position as policy-determining,
primarily confidential or highly technical as defined therein has subsequently been
codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the
Administrative Code of 1987.[8] This later enactment only serves to bolster the
validity of the categorization made under Section 16 of Presidential Decree No.
1869. Be that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two
recognized instances when a position may be considered primarily
confidential: Firstly, when the President, upon recommendation of the
Commissioner of Civil Service, has declared the position to be primarily confidential;
and, secondly in the absence of such declaration, when by the nature of the
functions of the office there exists "close intimacy" between the appointee and
appointing power which insures freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust or confidential matters of
state.[9]
At first glance, it would seem that the instant case falls under the first category by
virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An
in-depth analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof
provided that "the non-competitive or unclassified service shall be composed of

positions expressly declared by law to be in the non-competitive or unclassified


service or those which are policy-determining, primarily confidential, or highly
technical in nature." In the case of Piero, et al. vs. Hechanova, et al., [10] the Court
obliged with a short discourse there on how the phrase "in nature" came to find its
way into the law, thus:
"The change from the original wording of the bill (expressly declared by law x x x to
be policy-determining, etc.) to that finally approved and enacted ('or which
are policy-determining, etc. in nature') came about because of the observations of
Senator Taada, that as originally worded the proposed bill gave Congress power to
declare by fiat of law a certain position as primarily confidential or policydetermining, which should not be the case. The Senator urged that since the
Constitution speaks of positions which are 'primarily confidential, policydetermining, or highly technical in nature', it is not within the power of Congress to
declare what positions are primarily confidential or policy-determining. 'It is
the nature alone of the position that determines whether it is policy-determining or
primarily confidential.' Hence, the Senator further observed, the matter should be
left to the 'proper implementation of the laws, depending upon the nature of the
position to be filled', and if the position is 'highly confidential' then the President
and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, 'But in positions that involved both confidential
matters and matters which are routine, x x x who is going to determine whether it is
primarily confidential?' Senator Taada replied:
'SENATOR TAADA: Well, at the first instance, it is the appointing power that
determines that: the nature of the position. In case of conflict then it is the
Court that determines whether the position is primarily confidential or not" (Italics in
the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959,
it is the nature of the position which finally determines whether a position is
primarily confidential, policy-determining or highly technical. And the court in the
aforecited case explicitly decreed that executive pronouncements, such as
Presidential Decree No. 1869, can be no more than initial determinations that are
not conclusive in case of conflict. It must be so, or else it would then lie within the
discretion of the Chief Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution.
[11]
In other words, Section 16 of Presidential Decree No. 1869 cannot be given a
literally stringent application without compromising the constitutionally protected
right of an employee to security of tenure.
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and
was reaffirmed in the 1973 Constitution, as well as in the implementing rules of
Presidential Decree No. 807, or the Civil Service Decree of the Philippines. [12] It may

well be observed that both the 1935 and 1973 Constitutions contain the provision,
in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as
to 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." Corollarily, Section 5 of Republic Act
No. 2260 states that "the non-competitive or unclassified service shall be composed
of positions expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or highly
technical in nature."Likewise, Section 1 of the General Rules in the implementing
rules of Presidential Decree No. 807 states that "appointments in the Civil Service,
except as to those which are the 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." Let it here be
emphasized, as we have accordingly italicized them, that these fundamental laws
and legislative or executive enactments all utilized the phrase "in nature" to
describe the character of the positions being classified.
The question that may now be asked is whether the Piero doctrine -- to the efect
that notwithstanding any statutory classification to the contrary, it is still the nature
of the position, as may be ascertained by the court in case of conflict, which finally
determines whether a position is primarily confidential, policy-determining or highly
technical -- is still controlling with the advent of the 1987 Constitution and the
Administrative Code of 1987,[13] Book V of which deals specifically with the Civil
Service Commission, considering that from these later enactments, in defining
positions which are policy-determining, primarily confidential or highly technical, the
phrase "in nature" was deleted.[14]
We rule in the affirmative. The matter was clarified and extensively discussed
during the deliberations in the plenary session of the 1986 Constitutional
Commission on the Civil Service provisions, to wit:
"MR. FOZ. Which department of government has the power or authority to
determine whether a position is policy-determining or primarily confidential or
highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive
department, but the final decision is done by the court. The Supreme Court has
constantly held that whether or not a position is policy-determining, primarily
confidential or highly technical, it is determined not by the title but by the nature of
the task that is entrusted to it. For instance, we might have a case where a position
is created requiring that the holder of that position should be a member of the Bar
and the law classifies this position as highly technical. However, the Supreme Court
has said before that a position which requires mere membership in the Bar is not a
highly technical position. Since the term 'highly technical' means something beyond
the ordinary requirements of the profession, it is always a question of fact.

MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that
the merit system or the competitive system should be upheld?
FR. BERNAS. I agree that that it should be the general rule; that is why we are
putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily
confidential or highly technical has been the source of practices which amount to
the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in fact it is
not, we can always challenge that in court. It is not enough that the law calls it
primarily confidential to make it such; it is the nature of the duties which makes a
position primarily confidential.
MR. FOZ. The efect of a declaration that a position is policy-determining, primarily
confidential or highly technical as an exception is to take it away from the usual
rules and provisions of the Civil Service Law and to place it in a class by itself so
that it can avail itself of certain privileges not available to the ordinary run of
government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away with the
requirement of merit and fitness. All it says is that there are certain positions which
should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy
Commission. Shall we require a physicist to undergo a competitive examination
before appointment? Or a confidential secretary or any position in policydetermining administrative bodies, for that matter? There are other ways of
determining merit and fitness than competitive examination. This is not a denial of
the requirement of merit and fitness" (Italics supplied). [15]
It is thus clearly deducible, if not altogether apparent, that the primary purpose of
the framers of the 1987 Constitution in providing for the declaration of a position as
policy-determining, primarily confidential or highly technical is to exempt these
categories from competitive examination as a means for determining merit and
fitness. It must be stressed further that these positions are covered by security of
tenure, although they are considered non-competitive only in the sense that
appointees thereto do not have to undergo competitive examinations for purposes
of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned
resolution wherein it stated that "the declaration of a position is primarily
confidential if at all, merely exempts the position from the civil service eligibility
requirement." Accordingly, the Piero doctrine continues to be applicable up to the

present and is hereby maintained. Such being the case, the submission that
PAGCOR employees have been declared confidential appointees by operation of law
under the bare authority of CSC Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a confidential
employee, respondent Court of Appeals correctly applied the "proximity rule"
enunciated in the early but still authoritative case of De los Santos vs. Mallare, et
al.,[16] which held that:
"Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is 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 which ensures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state. x x x" (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which
are substantially similar to the case at bar, involving as it did employees occupying
positions in various capacities in the Port Patrol Division of the Bureau of
Customs. The Court there held that the mere fact that the members of the Port
Patrol Division are part of the Customs police force is not in itself a sufficient
indication that their positions are primarily confidential. After quoting the foregoing
passage from De los Santos, it trenchantly declared:
"As previously pointed out, there are no proven facts to show that there is any such
close intimacy and trust between the appointing power and the appellees as would
support a finding that confidence was the primary reason for the existence of the
positions held by them or for their appointment thereto. Certainly, it is extremely
improbable that the service demands any such closed trust and intimate relation
between the appointing official and, not one or two members alone but the entire
Customs patrol (Harbor Police) force, so that every member thereof can be said to
hold 'primarily confidential' posts". (Stress supplied).
It can thus be safely determined therefrom that the occupant of a particular position
could be considered a confidential employee if the predominant reason why he was
chosen by the appointing authority was, to repeat, the latter's belief that he can
share a close intimate relationship with the occupant which ensures freedom of
discussion, without fear of embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal, where the position occupied
is remote from that of the appointing authority, the element of trust between them
is no longer predominant.[17]
Several factors lead to the conclusion that private respondent does not enjoy such
"close intimacy" with the appointing authority of PAGCOR which would otherwise
place him in the category of a confidential employee, to wit:

1. As an Internal Security Staf member, private respondent routinely


a. performs duty assignments at the gaming and/or non-gaming areas to prevent
irregularities, misbehavior, illegal transactions and other anomalous activities
among the employees and customers,
b. reports unusual incidents and related observations/information in accordance
with established procedures for infractions/mistakes committed on the table and in
other areas;
c. coordinates with CCTV and/or external security as necessary for the prevention,
documentation or suppression of any unwanted incidents at the gaming and nongaming areas;
d. acts as witness/representative of Security Department during chips inventory,
refills, yields, card shuffling and final shuffling;
e. performs escort functions during the delivery of table capital boxes, refills and
shoe boxes to the respective tables, or during transfer of yields to Treasury. [18]
Based on the nature of such functions of herein private respondent and as found by
respondent Court of Appeals, while it may be said that honesty and integrity are
primary considerations in his appointment as a member of the ISS, his position does
not involve "such close intimacy" between him and the appointing authority, that is,
the Chairman of PAGCOR, as would ensure "freedom from misgivings of betrayals of
personal trust."[19]
2. Although appointed by the Chairman, ISS members do not directly report to the
Office of the Chairman in the performance of their official duties. An ISS members is
subject to the control and supervision of an Area Supervisor who, in turn, only
implements the directives of the Branch Chief Security Officer. The latter is himself
answerable to the Chairman and the Board of Directors. Obviously, as the lowest in
the chain of command, private respondent does not enjoy that "primarily close
intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of
the corporation, being in Pay Class 2 level only, whereas the highest level is Pay
Class 12.
Taking into consideration the nature of his functions, his organizational ranking and
his compensation level, it is obviously beyond debate that private respondent
cannot be considered a confidential employee. As set out in the job description of
his position, one is struck by the ordinary, routinary and quotidian character of his
duties and functions. Moreover, the modest rank and fungible nature of the position
occupied by private respondent is underscored by the fact that the salary attached
to it is a meager P2,200.00 a month. There thus appears nothing to suggest that
private respondents's position was "highly" or much less, "primarily" confidential in

nature. The fact that, sometimes, private respondent may handle ordinarily
"confidential matters" or papers which are somewhat confidential in nature does not
suffice to characterize his position as primarily confidential. [20]
In addition, the allegation of petitioners that PAGCOR employees have been
declared to be confidential appointees in the case of Philippine Amusement and
Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there
stated is as follows:
"The record shows that the separation of the private respondent was done in
accordance with PD 1869, which provides that the employees of the PAGCOR hold
confidential positions. Montoya is not assailing the validity of that law. The act that
he is questioning is what he calls the arbitrary manner of his dismissal thereunder
that he avers entitled her to damages under the Civil Code." (Italics ours).
Thus, the aforecited case was decided on the uncontested assumption that the
private respondent therein was a confidential employee, for the simple reason that
the propriety of Section 16 of Presidential Decree No. 1869 was never controverted
nor raised as an issue therein. That decree was mentioned merely in connection
with its provision that PAGCOR employees hold confidential positions. Evidently,
therefore, it cannot be considered as controlling in the case at bar. Even the fact
that a statute has been accepted as valid in cases where its validity was not
challenged does not preclude the court from later passing upon its constitutionality
in an appropriate cause where that question is squarely and properly raised. Such
circumstances merely reinforce the presumption of constitutionality of the law. [21]
WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby
AFFIRMED in toto.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Melo, Puno, Kapunan, Mendoza,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.
Bellosillo, and Francisco, JJ., on leave.
Vitug, J., see separate opinion.
Vistan vs. Nicolas 201 SCRA 524
FULL TEXT
Republic
SUPREME
Manila
EN BANC

of

the

Philippines
COURT

A.M. No. MTJ-87-79 September 13, 1991


LEONILA
vs.
JUDGE
RUBEN
T.
Bulacan, respondent.

A.
NICOLAS,

VISTAN, complainant,
Municipal

Trial

Court,

Pandi,

A.C. No. 3040 September 13, 1991


LEONILA
ANGELES
VDA.
vs.
ATTY. RUBEN T. NICOLAS, respondent.

DE

VISTAN, complainant,

Victor R. Nicolasora for complainant.

PER CURIAM:p
These consolidated cases were brought by the same complainant, Leonila A. Vistan,
against Respondent Judge Ruben T. Nicolas, Municipal Trial Court (MTC), Pandi,
Bulacan.
AM No. MTJ-87-79, filed on 16 March 1987, charged Respondent with gross
ignorance of the law and grave abuse of authority and immorality. Complainant
alleged that Respondent, as the then MTC Judge of Guiguinto, Bulacan, rendered a
Decision in Criminal Case No. 3073, entitled "People v. Narciso Paloma," for Forcible
Abduction with Consent on 17 February 1987, acquitting the accused therein,
despite the fact that Respondent had not yet ruled on the accused's written offer of
evidence which was filed as early as 14 August 1984. Said Decision, Complainant
contended, manifested Respondent's gross ignorance of the law and grave abuse of
authority and discretion. Further, Complainant stated that Respondent was
maintaining an illicit relationship with a woman not his wife and with whom he has a
child.
AM. No. MTJ-87-79 was initially dismissed on 21 February 1989 for having become
moot and academic, upon Respondent's manifestation and after verification with
the Office of the Court Administrator (OCA) that respondent had resigned from the
service when he became a congressional candidate in the 1987 election. However,
such reconsideration sought by Complainant and again confirmed by the OCA (p.
44, Rollo). Respondent was re-appointed to the service on 9 February 1989 as MTC
Judge, this time, of Pandi, Bulacan. Accordingly, AM No. MTJ-87-79 was reinstated.
On 14 December 1989, this Court referred the immorality charge to the Executive
Judge of the Regional Trial Court (RTC), Malolos, Bulacan, for investigation, report
and recommendation. The charge for gross ignorance of the law and grave abuse of

authority and discretion, on the other hand, was referred to the Office of the Court
Administrator (OCA) for evaluation, report and recommendation.
The other case, AC No. 3040, for disbarment of Respondent, was filed on 15 May
1987. The charges set forth are basically the same as those in AM No. MTJ-87-79,
namely: (1) knowingly rendering an unjust judgment during his tenure as MTC Judge
of Guiguinto, Bulacan, in Criminal Case No. 3073; (2) immorality, for cohabiting with
a paramour; and (3) violation of election laws. Except for the last charge, the
offenses attributed to Respondent are based on the same set of facts.
AC No. 3040 was, at first, referred to the Office of the Solicitor General for
investigation, report and recommendation on 6 July 1987. Hearings were conducted
before said office. However, proceedings therein were not concluded because, on
29 May 1989, the records were brought back to this Court pursuant to a Court
Resolution, dated 29 November 1989, mandating that "all complaints against
justices and judges of the lower courts filed ... should promptly be referred to the
Supreme Court for appropriate action" ("Re: Letter of Acting Presiding Justice
Rodolfo Nocon and Associate Justices Reynato Puno and Alfredo Marigomen, all of
the Court of Appeals").
On 12 February 1991, AM No. MTJ-87-79 and AC No. 3040 were ordered
consolidated.
Re: Charge for Violation of Election Laws:
The charge for violation of election laws was brought up in AC No. 3040.
Complainant narrated that as early as 10 February 1987, prior to 24 March 1987, or
the date set by the Commission on Election (COMELEC) to be the start of the
campaign period, and while still an MTJ Judge of Guiguinto, Bulacan, Respondent
started circulating handbills/letters addressed to electoral constituents in the
second district of Bulacan indicating his intention to run for a congressional seat. A
sample of the letter (Annex "E," Complaint) reads:
Pebrero 10, 1987
Mayor Ranulfo "Maran" David
Bocaue, Bulacan
Mahal kong Kababayan,
Ako po ay napiling kandidato bilang Kongresista o Kinatawan ng ikalawang purok ng
Bulacan na binubuo ng mga bayan ng Bukawe, Balagtas, Pandi, Guiguinto, Plaridel,
Baliwag, at Bustos.
Batid po nating lahat na ang ating minamahal na bayang Bukawe ay minsan pa
lang nakapagpadala ng anak sa bulwagan ng Kongreso, sa katauhan ng yumaong

Kinatawan Erasmo R. Cruz na nanungkulan mula 1950 hanggang 1957. Mula noon,
wala pang anak ng Bukawe na kumatawan sa ating pambansang lehistura.
Ako po ay taos-pusong naniniwala na sa pamamagitan ng ating sama-samang
pagsisikap at pagtutulungan, mayroon tayong napakalaking pagkakataon na
magpadala ng isa pang anak ng Bukawe sa bagong Kongreso sa darating na Mayo
11, 1987.
Dahil dito, kayo po ay malugod kong inaanyayahan na dumalo sa "kaukus-miting"
sa aking tahanan sa 117 Wakas, Bukawe, Bulakan sa Sabado, Pebrero 21, 1987 sa
ganap na ikalawa ng hapon (2:00 p.m.) upang talakayin kung paano nating
makakamit ang layunin nating ito.
Umaasa po ako sa inyong pakikipagtulungan at pagdalo sa nasabing "kaukusmiting."
Maraming salamat po at pag-utusan po ninyo.
Lubos na sumasainyo,
RUBEN T. NIC0LAS
Hukom at naging bokal.
Respondent admitted having circulated such a letter (tsn, 12 November 1987, p.
12). He denies, however, that he was electioneering stating that he was merely
voicing out his intention to run for Congressman as a matter of consultation.
On this score, we find that Respondent had acted improperly when he sent out
letters/handbills, manifesting his intention to run as a congressional candidate,
addressed to electoral constituents of the second district of Bulacan as early as 10
February 1987, while still the incumbent MTC Judge of Guiguinto, Bulacan, and prior
to the commencement of the campaign period on 24 March 1987.
Section 45 of Pres. Decree No. 807 (Civil Service Law) clearly states:
Section 45. No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or
take part in any election except to vote nor shall be use his official authority or
influence to coerce the political activity of any other person or body. Nothing herein
provided shall be understood to prevent any officer or employee from expressing
his views on current political problems or issues, or from mentioning the names of
candidates for public office whom he supports: ...
In addition, Rule 5.10, Canon 5, of the Code of Judicial Conduct provides:
Rule 5.10. A judge is entitled to entertain personal views on political questions. But
to avoid suspicion of political partisanship, a judge shall not make political

speeches, contribute to party funds publicly endorse candidates for political office
or participate in other partisan political activities.
For having held himself out as a congressional candidate while still a member of the
Bench, Respondent took advantage of his position to boost his candidacy,
demeaned the stature of his office, and must be pronounced guilty of gross
misconduct.
Re: Complaint for Gross Ignorance of the Law and Grave Abuse of authority and
Discretion:
The complaint for gross ignorance of the law and grave abuse of discretion and
authority was already resolved by the Court in a Resolution, dated 4 December
1990, holding, among others:
xxx xxx xxx
l) As regards the complaint for gross ignorance of the law and grave abuse of
discretion, it appearing from the records that respondent, who was then hearing
Criminal Case No. 3073 as Presiding Judge of the Municipal Trial Court of Guiguinto,
Bulacan, had rendered a decision on 9 February 1987, acquitting the accused
therein despite the fact that respondent had not yet ruled on the accused's written
offer of evidence, which was filed as early as 14 August 1985, thereby depriving the
prosecution of the opportunity to present rebuttal evidence, deciding the case
prematurely, and exhibiting gross ignorance of the law, the Court Resolved to
impose upon respondent a fine of P3,000.00 payable within thirty (30) days from
notice. ...
The fine, however, was subsequently reduced to P2,000 on 21 February 1991 upon
respondent's Motion for Reconsideration.
Re: Charge of Immorality:
As earlier stated, the immorality charge was referred, on 14 December 1989, to the
RTC Executive Judge of Malolos, Bulacan, for investigation, report and
recommendation.
Hearings were conducted by Executive Judge Natividad Dizon. The gist of
complainant's testimonial and documentary evidence follows;
1. Complainant testified that everytime there was a hearing before respondent's
sala in Criminal Case No. 3073 wherein she was the private complainant,
respondent's mistress, Angelita de Castro was always there. In fact, the latter even
approached her ang asked for P10,000.00 to insure success of the case. The matter
of the respondent and the mistress living together was of public knowledge and
that they have one child.

2. Judge Tirso Reyes, RTC, Cabanatuan City, testified that he and the respondent
are close friends. He stated that he did not know any of the respondent's children,
except the one who is a lawyer whom he met during the latter's "blowout" upon
passing the bar examination. He narrated that about 10 to 12 years ago, he stood
as a baptismal sponsor to a child who, according to a certain Counselor Chico who
invited him, is allegedly respondent's child. He, however, was not able to verify
whether the child is really of respondent as he did not see the latter during the
baptismal. He remembered asking the respondent about the child to which
respondent answered back What child? Embarrassed, Judge Reyes did not pursue
the matter anymore.
3. Complainant's Exhibit "R" is the "Magkasamang Sinumpaang Salaysay" executed
by Rodelio Agapito and Juan Mendoza' on 21 February 1990 before the Investigating
Judge. The affidavit stated that respondent and Angelita de Castro are their
neighbors; that they are living together as husband and wife though respondent's
legal wife is Pacita Santos. The affiants stated that the affidavit was executed to let
the authorities know of respondent's immorality and want of moral fitness to be a
judge.
However, because the said two (2) witnesses failed to appear for cross examination
and could no longer be located at their given addresses and considering
respondent's manifestation that he was waiving the presentation of evidence, the
Investigating Judge submitted a "Final Report" on 30 March 1990 without any
recommendation on the ground that she "did not set further hearings as they would
be conducted beyond the 30 day period requested in her partial report of 27
February 1990." On 8 May 1990, the Court remanded the case to said Investigating
Judge for "further hearings until final completion," considering that the "Final
Report" so-called was far from final.
On 16 July 1990, Executive Judge Dizon submitted a "Complete and Final Report." It
reiterated the evidence previously submitted before her and added as documentary
evidence the entry in the police blotter (Exhs. M, M-1 to M-2) that Angelita de
Castro, Respondent's alleged paramour was murdered on 14 May 1987. In addition,
respondent's Personal Data Sheet (Exh. L) was presented showing that he is
married to Pacita G. Santos with whom he has nine (9) children. The Report
concluded that the evidence submitted was "not sufficient to hold respondent
administratively liable for immorality," and recommended the dismiss of the charge.
Directed to submit an evaluation, report and recommendation, the OCA came up
with a Memorandum on 29 August 1990, recommending that the proper penalty be
meted against respondent. The Memorandum partly states:
We wish to disagree on the conclusion of the Executive Judge that there was no
sufficient evidence to prove the immorality charge because it can be adduced that
while the respondent was not able to cross-examine the two affiants because of

their sudden and mysterious disappearance from their residential places after
testifying in court and attesting to the truthfulness of their statements which were
not disputed by respondent other than his specific denials, creates an impression in
the mind to form a belief as to the truth of the same; and considering that a judge,
by reason of his office, exercises considerable influence in the community within his
territorial jurisdiction to frustrate the ends of justice if he so desires which he
pledged to uphold in the first place.
Judge Tirso Reyes testified that he was one of the sponsors to a baptism of an
alleged son of respondent judge whose name he recalls to be Richard but does not,
however, remember the church where the same was celebrated other than it was
somewhere in Manila; that he never bothered to ask for the surname of said
Richard after being told that he was the son of the respondent. A closer scrutiny of
said facts will readily reveal that a person with the reputation and status of an RTC
judge will not just act as sponsor to a baptism of any child whose parents he does
not know every well and at the mere invitation of someone who is not even a
relative of said child, because it was very unnatural for him not to have at least
asked for the names of the father and mother of the child; considering further that
it would have been but natural for Judge Reyes to protect the herein respondent
whom he acknowledged to be his close friend and "compadre" by the way he
testified during the investigation.
Moreover, what is required only to prove the charges in administrative cases is
mere preponderance of evidence and not proof beyond reasonable doubt.
Furthermore, we strongly believe that the failure of respondent to cross-examine
the two witnesses cannot be attributed mainly to complainant as there appears a
very strong presumption that their sudden disappearance is but a part of the legal
strategy adopted by respondent for his defense.
Faced with the discrepancy in recommendations, the Court referred the case back
to the OCA on 27 September 1990 for further investigation, this time "with the
assistance of the National Bureau of Investigation (NBI), particularly with respect to
the disappearance of the two material witnesses, Rodelio Agapito and Juan
Mendoza, and the brutal death of respondent's alleged paramour, Angelita de
Castro."
The NBI conducted the investigation requested. On 26 November 1990 it submitted
its report, excerpts from which follow:
a. The two material witnesses, Rodelio Agapito and Juan Mendoza, were located.
They executed sworn statements alleging:
1. that they personally know Judge Nicolas and his paramour, Angelita de Castro,
the two being their neighbors in Bocaue, Bulacan;

2. that respondent and Angelita publicly represented themselves as husband and


wife;
3. that they were subpoenaed to testify against respondent but they did not appear
during hearing because they were harassed and prevented by a certain Benito
Mendoza, a neighborhood toughie and allegedly a henchman of respondent, who
acted under his order.
b. Interviews with the neighbors of respondent and his paramour revealed that the
two had represented themselves to be husband and wife. The neighbors just kept
quiet for respondent wields considerable influence in the community.
c. That respondent's legal wife is Pacita Nicolas. They have their residence in
Bocaue, Bulacan.
d. With respect to the murder of Angelita de Castro, investigation revealed the
latter was picked up by three men Moises Joson, Jr., Ramon Mamangon and
Reynaldo Agapito on the night of 14 May 1987. It was the last time that Angelita
was seen alive. Her decomposing body was found only on 19 May 1987, in
Guiguinto, Bulacan.
It appears that there was a Resolution recommending that an information for
murder against the three men who picked up Angelita be filed. However, it was only
on 3 October 1990, when the NBI started making inquiries that the criminal
information was filed.
The NBI also arrested one of the suspects, Ramon Mamangon. He admitted having
picked-up Angelita on the evening of 14 May 1988 and his participation in her
killing. He said that respondent's legal children, together with Moises Joson, Jr. and
Reynaldo Agapito, were the ones how planned the killing. Ramon, however, claims
that respondent had no participation as he left for Baguio a day before the killing
occurred.
NBI has reason to believe that, on the basis of the following substantial evidence,
respondent and his children orchestrated the death of Angelita de Castro:
1. Judge Nicholas (sic) borrowed the jeep used in the commission of the crime two
weeks before the incident on April 30, 1987.
xxx xxx xxx
3. Conversations of the children of Judge Nicholas with Moises Joson, Jr. and
Reynaldo Agapito before the incident.
xxx xxx xxx

7. Victim is a witness who is scheduled to testify against subject Judge Nicholas who
has pending administrative case for immorality before the Supreme Court.
(Disposition Form pp. 34).
On 4 December 1990, upon the recommendation of OCA, and "there (being) prima
facie proof that the immorality charge is true, that the charge is related to the
death of Angelita de Castro, alleged paramour of respondent Judge, and that there
is reason to believe that with the circumstantial evidence thus far gathered, 'that
respondent together with his children orchestrated her death,' the Court Resolved
to Preventively Suspend from office respondent Judge ..., pending submission of the
final report of the NBI and final resolution of the administrative case against him."
Respondent moved for the lifting of his preventive suspension on the grounds that
the charge of immorality was duly heard, but not proven, before the Executive
Judge of the Regional Trial Court of Malolos, Bulacan, who recommended dismissal;
that to "relate the charge to the death of his alleged paramour is going beyond the
bounds of due process and fair play;" that the Court should not rely on "hearsay
evidence of the NBI; and that in the absence of any criminal charge, there can be
no preventive suspension."
On 21 February 1991, the Court denied the lifting of Respondent's preventive
suspension stating that "preventive suspension may be imposed pending an
investigation if the charge involves grave misconduct, or if there are reasons to
believe that the respondent is guilty of charges which would warrant his removal
from the service (Pres. Decree No. 807, Sec. 41; 1987 Revised Administrative Code,
Book V, Title I, Subtitle A, Chapter 6, Sec. 51). Immorality does involve grave
misconduct, and the NBI finding is that there is prima facie proof that the charge is
true."
On 14 January 1991, the NBI submitted its Final Report recommending that copies
of the case records be furnished the provincial Prosecutor of Bulacan and that six
(6) members of respondent Judge's family, including the latter, be charged with and
prosecuted for Murder.
On 12 February 1991, because material witnesses Rodelio Agapito and Juan
Mendoza had been located by the NBI, the immorality charge was again referred to
Executive Judge Natividad Dizon for continuation of investigation, report and
recommendation. Further, the Provincial Prosecutor of Bulacan was ordered
furnished with a copy of the NBI report finding a prima facie case for Murder.
Hearings were resumed by Executive Judge Dizon, during which witnesses Agapito
and Mendoza recanted their joint affidavit. Respondent Judge appeared either
through counsel or on his own behalf. He did not present any evidence.
On 17 July 1991, Executive Judge Dizon submitted her Report recommending that
the proper penalty be meted against respondent Judge. She found the recantation

of witnesses Agapito and Mendoza unworthy of belief after assessing the other
evidence before her.
We agree with the recommendation.
Even if we were to discard the "Magkasamang Sinumpaang Salaysay" of Rodelio
Agapito and Juan Mendoza, the investigation below revealed that they had also
executed separate Affidavits before the NBI substantially of the same tenor, which
new Affidavits were sworn to before Deputy Court Administrator Reynaldo L.
Suarez. NBI Agent, Atty. Deborah Daquis, who headed a Special Task Force
conducting the investigation, testified that those fresh statements were given
voluntarily and that they had never complained against their "Sinumpaang
Salaysay," which had previously been taken before the Investigating Judge on 21
February 1990.
Significantly, in his Affidavit of 12 October 1990, Rodelio Agapito stated the he was
not able to attend prior hearings conducted by Executive Judge Natividad Dizon
between May to June, 1990, because he was prevented by a certain "Bening," a
neighborhood toughie and respondent's alleged henchman, from attending the
hearings upon respondent's order.
Moreover, the NBI investigation further revealed:
Interviews conducted by the undersigned from Subject Judge Nicolas' neighbors at
Mendoza Street, Barangay Officials of Lolomboy, owner of Zaldy's Funeral Parlor at
Bocaue, Dr. Benito B. Caballero of Municipal Health Unit of Bocaue and policemen of
Bocaue Police Station, all reveal that subject Judge and Angelita de Castro have
indeed openly and publicly represented themselves to be husband and wife. But
because they know him to be a judge with considerable influence in the community,
the residents of Bocaue, Bulacan, just kept silent about it despite their knowledge
that Judge Nicolas is legally and lawfully married to one Pacita S. Nicolas and is
living with the former at Malolos, Bocaue, Bulacan.
To make matters worse, respondent's integrity and reputation is further sullied by
his seeming involvement in the killing of Angelita de Castro. This incident, however,
is now in the hands of the Provincial Prosecutor of Bulacan for such action as he
deems proper to take in the premises.
Upon the evidence before us in this administrative case, where preponderance of
evidence suffices, and considering the exacting and stringent standards exacted of
occupants of the Bench, the supreme sanction is called for.
A Judge's official conduct should be free from impropriety or any appearance
thereof. His personal behavior in the performance of official duty, as well as
everyday life, should be beyond reproach (Paguirigan v. Clavaria, AM No. 537-CJ, 19
December 1974, 61 SCRA 411). High ethical principles and a sense of propriety

should be maintained, without which the faith of the people in the judiciary so
indispensable in an orderly society cannot be preserved (Candia v. Tagabucba, AM
No. 528, MJ, 12 September 1977, 79 SCRA 51). There is no place in the judiciary for
those who cannot meet the exacting standards of judicial conduct and integrity
(Felix Barja v. Judge Bonifacio B. Bercacio, AM No. 561-MJ, 29 December 1976, 74
SCRA 355). In fact, moral integrity is more than a virtue; it is a necessity in the
Judiciary (Dy Teban Hardware and Auto Supply Co. vs. Tapucar, AM No. 1720, 31
January 1981, 102 SCRA 494).
WHEREFORE, 1) in AC No. 3040, the prayer for disbarment is DENIED but
respondent Municipal Trial Court Judge, Ruben T. Nicolas, is SEVERELY CENSURED
for his gross misconduct in holding himself out as a candidate for an elective office
while still a member of the Bench; 2) in A.M. No. MTJ-87-79, respondent Judge is
hereby DISMISSED from the service, with prejudice to re-employment in any branch,
agency or instrumentality of the government including government-owned or
controlled corporations, and with forfeiture of all his accrued retirement benefits
and leave credits, if any.
Let a copy of this Decision be spread in his personal record.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Gutierrez, Jr., Feliciano and Sarmiento, JJ., is on leave.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 93511 June 3, 1993


CORAZON L. CABAGNOT in her capacity as Provincial Governor of
Aklan, petitioner,
vs.
CIVIL SERVICE COMMISSION and RENATO R. BAUTISTA, PEDRO R. SAYON,
EUFEMIA I. MAQUINICA, ARLYN G. BUENSALIDO, TITA A. LUMIO, REBA B.
CONCEPCION, PRISCILLA D. BRIONES, JOYCE C. MARTIREZ, ANNIE T. DALA,
VIVIAN J. RUIZ, ELLEN I. TOLENTINO, EVES B. POBLACION, ANITA S. MEREN,
MARGARETH V. NATAL, MUJANE BEGONIA C. MIROY, ESTELITO C. SILVA, and
EXPEDITO W. OCZON,respondents.
Abad Santos & Associates for petitioner.
Ronquillo C. Tolentino for private respondents.

ROMERO, J.:
The present petition seeks the reversal of Civil Service Commission Resolutions
dated August 23, 1989 and April 10, 1990 ordering the reinstatement of private
respondents to their former positions or positions of comparable or equivalent rank.
On September 21, 1988, the new organizational structure and staffing pattern of the
provincial government of Aklan was approved by the Joint Commission on Local
Government Personnel Administration (JCLGPA) thru the Director of the Bureau of
Local Government Supervision. The reorganization provided three hundred sixty four
(364) regular plantilla positions from the previous three hundred thirty nine (339)
with the Office of the Governor allocated one hundred forty four (144) from the
previous sixty (60) positions. The implementation of the reorganization plan was
subject to several conditions, relevant of which are the following:
xxx xxx xxx
2. that the qualification standards for each position shall be in accordance with the
standards set therefor by the Civil Service Commission;
xxx xxx xxx

5. that there shall be no reduction in actual salary of the employees except in


instances where the salaries of such employees equal or exceed the salary of their
immediate supervisor; in which case, the actual salary of the subordinate
employees shall be reduced by at least one (1) step rate below that of the
immediate supervisor;
6. that all retained personnel shall be issued new appointments except those who
are occupying elective positions and those appointed by national officials;
xxx xxx xxx
9. that the placement of personnel shall be in accordance with Republic Act No.
6656 dated June 10, 1988 and the implementing rules and regulations issued by the
Civil Service Commission;
xxx xxx xxx. 1
Governor Corazon L. Cabagnot, petitioner herein, issued a Memorandum dated
November 2, 1988 inviting all provincial officials and employees to apply for any of
the authorized positions in the new staffing pattern for the evaluation and
assessment of the Provincial Placement Committee which petitioner subsequently
created thru Executive Order No. 0II-88.
On January 5, 1989, the list of employees newly appointed and re-appointed was
posted. Individual letters were sent to all employees in the list directing them to
accomplish and submit the necessary documents to complete their appointment
and to report to their assigned offices. On January 17, 1989, twenty-one (21)
supposedly aggrieved employees jointly appealed to petitioner pursuant to Section
18 of the Rules on Government Reorganization issued by the Civil Service
Commission and Sections 2, 3, 4, 5 and 12 of Republic Act 6656 (1988) entitled An
Act to Protect the Security of Tenure of Civil Officers and Employees in the
Implementation of Government Reorganization. They prayed that they be appointed
to the positions they applied for to which they are eligible, having the required
educational background, training and experience. They likewise sent petitioner
individual letters reiterating their qualifications and praying for reconsideration of
their new appointments to positions lower in rank than their positions prior to the
reorganization.
In denying their appeal, petitioner explained that since reorganization renders all
positions vacant, the employees have no vested right to their original positions.
Moreover, as the appointing authority, she enjoys the prerogative to transfer
employees to offices other than those they previously occupied if such is necessary
to make them function more efectively. Lastly, the appointments of private
respondents did not violate the Civil Service Law on security of tenure as the items
ofered them carried the same rate and salary they were receiving prior to the
reorganization, i.e., there was no diminution or reduction of their salary.

Out of the original twenty-one (21) protestants only seventeen (17), private
respondents herein, instituted a collective appeal dated March 2 and 29, 1989
before the Civil Service Regional Office in the City praying that:
WHEREFORE, it is most respectfully prayed of the Honorable Commission:
1. Declaring the reorganizational structure and new staffing pattern of the province
of Aklan to be a failure it being not in accordance with the provisions of Republic Act
No. 6656 specifically as it is violative of Sec. 2(c), Sec. 2(d), Sec. 2 (e) in relation to
Sec. 3, Sec. 4 and Sec. 5 of the said law;
2. Ordering protestee-appellee to appoint the protestants-appellants rightful and
qualified appointees to the positions they applied for and declaring protesteeappellee's proposed appointees to the positions applied for by protestantsappellants as null and void;
3. Ordering protestee-appellee to reinstate terminated protestants-appellants and/or
appoint them to positions where their qualification, experience, training and civil
service eligibilities may fit them;
4. Ordering protestee-appellee to direct the fiscal authorities of the province of
Aklan to pay the salaries due the protestants-appellants in the meantime that their
appeals are being considered by the Honorable Commission and directing the fiscal
authorities of the province of Aklan to desist from paying the salaries of protesteeappellee's appointees as protestee-appellee's appointees do not have duly attested
or approved appointments from the Civil Service Commission.
Other reliefs deemed just and equitable are likewise prayed for. 2
In the Resolution dated August 23, 1989, respondent Civil Service Commission
found that irregularities attended the election of the two members representing the
first and second level personnel to the Placement Committee based on the affidavit
executed by one Nida E. Melgarejo and the letter appeal of some thirty-seven (37)
employees of the provincial government of Aklan. Furthermore, it found petitioner to
have violated Sec. 7 of the Rules on Reorgnization and Memorandum Circular No. 5,
s. of 1988 providing preference for appointment of employees holding permanent
positions considering that private respondents who were all holding permanent
appointments to regular items prior to the reorganization were proposed to
positions much lower than their former items despite the fact that their old items
were carried over in the new staffing pattern. The Commission found no reason for
displacing the services of private respondents primarily because there are eightyfour (84) additional positions for the Office of the Governor alone. Hence, it directed
that:
1. A new election be conducted within five (5) days from receipt of this decision to
elect the representatives of the first and second level employees to the Placement

Committee in an open election where members of the rank and file will have the
opportunity to cast their vote. A Commission on Election should be constituted for
this purpose to preside during the election. The Director of the Civil Service Regional
Office IV should witness the election proceedings and report to the Chairman of the
Commission on the results thereof. The newly elected representatives will then
replace those allegedly elected in November 1988.
2. The Placement Committee shall immediately convene after the election to reassess and re-evaluate herein qualifications of all appointees including herein
appellants for placement to positions comparable to their former positions which
evaluation shall be completed within fifteen (15) days after the election.
3. Pending completion of the evaluation, the Assistant Provincial Treasurer or Officerin-Charge is hereby directed to pay the salary of the appellants retroactive to the
date payment thereof was stopped, efective immediately, based on the salary rate
of their old items prior to the reorganization if they had reported for work as shown
from their Daily Time Records;
4. That appellants submit all pertinent documents (like Personal Data Sheets,
Performance Ratings for the last two years, etc.) required of them by the Governor,
as bases for the latter to prepare the necessary placement documents; and
5. The Commission be informed of the action take hereon within twenty (20) days
from receipt of this decision. 3
In her Motion for Reconsideration dated September 15, 1989, petitioner questioned
the Commission's finding of irregularities in the election of the two members
representing the first and second level personnel to the Placement Committee and
its order that another election be held anew to elect said representatives. Petitioner
pointed out that private respondents did not contest the conduct of the election of
the two representatives; much less did they pray for the holding of a new election.
In an efort to prove that the election was clean, honest and orderly, petitioner
attached the minutes of the meeting where the two representatives were elected,
the affidavit of all the employees who attended the said meeting and the letter of
Nida E. Melgarejo and Evangelina M. Baladjay informing petitioner that they have
received their salary and that any written complaint signed by any of them should
be considered null and void.
Opposition to the Motion for Reconsideration was filed by private respondents who,
noting that the same focused only on the findings of irregularity in the election of
the two representatives, petitioner was deemed to have accepted the findings of
the Commission regarding the invalidity of the reorganization. As to the
irregularities in the Placement Committee, they questioned the joint affidavit of the
employees who supposedly participated therein, for among the affiants, only
fourteen (14) were permanent employees twelve (12) were temporary employees
and thirty-two (32) were casuals who did not belong to the first and second level

participants. They likewise questioned the import of Melgarejo's and Balajay's letter
which, for them, was not a retraction of the former's affidavit but a mere
clarification on matters relative to their appointments.
Petitioner filed a supplement to the Motion for Reconsideration which, not only
reiterated the absence of factual and legal bases for the Commission to order a new
election but also asserted her wide latitude of choice, as appointing power, in
determining the best qualified for the position. She insisted that Section 7 of the
Rules on Reorganization providing for preference of appointment is directory and
not mandatory.
In their reply to the supplement to the Motion for Reconsideration, private
respondents, while recognizing the appointing power's prerogative based on
assessment and perception of the employee's qualifications, maintained that the
same is subject to existing rules, namely, Rep. Act No. 6656 and the Rules on
Reorganization of the Civil Service Commission.
On April 10, 1990, the Commission promulgated its second Resolution modifying the
Resolution of August 23, 1989 to the extent that the earlier order calling for a new
election and the reconvening of the Placement Committee was deemed
unnecessary in light of the new evidence presented by petitioner and the length of
time the controversy has been raging. However, after a thorough study, it found
that a wide disparity existed between the former positions held by private
respondents (except Oczon) and the positions proposed for them by petitioner even
if equivalent positions were available. With the case of Floreza V. Ongpin 4 as
authority, it declared private respondents to have been demoted. Private
respondent Oczon was found to have been terminated/removed. Moreover,
petitioner was found to have violated Section 4 of Rep. Act No. 6656 providing
preference for appointment of permanent employees to the new positions or if there
are not enough comparable ones, to positions next lower in rank. Thus, the
Commission ordered that:
1. Appellants be immediately appointed and restored to their positions or positions
of comparable or equivalent rank without loss of seniority rights with back salaries
reckoned from the dates they should properly have been appointed thereto
efective the date of the reorganization of said province.
2. Appellants who were demoted in position or proposed to much lower position be
reverted to their position or positions of comparable or equivalent rank with
payment of salary diferentials, if any reckoned from the dates they were demoted.
3. Appellant Oczon who was terminated as Janitor be restored to his former position
if still available, otherwise to the new position of Utility Worker with payment of
back salaries retroactive to the efective date of reorganization.

4. It is further directed that the CSC Region VI Director in Iloilo City coordinate with
the Provincial Governor's Office in the implementation of this Resolution specifically
in the determination of proper comparable position of appellants suitable to their
qualifications. 5
Petitioner, believing that the questioned resolutions were issued with grave abuse of
discretion because they encroached on her power to appoint, filed the present
petition.
On November 22, 1990, the Court resolved to issue a Temporary Restraining Order
ordering respondent Civil Service Commission to cease and desist from
implementing the questioned resolutions.
The principles defining the extent of the power of the appointing authority vis-avis that of the Civil Service Commission are well-settled. 6 The power to appoint is
essentially discretionary. The only condition for its proper exercise by the appointing
authority is that the appointee should posses the qualifications required by law. The
determination of who among several candidates for a position possesses the best
qualifications rests solely on the appointing authority who occupies the ideal
vantage point from which to identify and designate the individual who can best fill
the post and discharge its functions. Once the discretion has been exercised, the
CSC cannot replace the appointee with an employee of its choice whom it believes
to be better qualified because the power of the CSC is merely confined to approving
or disapproving appointments. In other words, it is limited to the determination of
whether the appointee possesses the required qualifications for the post.
Thereafter, its participation in the appointment process ceases. Substituting its
judgment for that of the appointing authority constitutes encroachment on the
latter's discretion. Even this Court cannot control the appointing authority's
discretion as long as it is exercised properly.
Petitioner anchors her case on these established principles which have been
consistently applied in cases of contested appointments where the CSC revokes the
appointment made by the appointing authority and directs the appointment of
another person whom it believes to be better qualified. In these cases, we upheld
the discretion of the appointing authority whenever it is exercised properly. The
situation in the case at bar is diferent. Here, the CSC is not revoking any
appointment made by petitioner. It is merely ordering the reinstatement of private
respondents whom it found to have been demoted or terminated. Thus, the basic
issue in this case is whether, as a result of the reorganization undertaken by the
Provincial Government of Aklan, the security of tenure of private respondents is
impaired.
The CSC found that sixteen (16) of the seventeen (17) private respondents were
demoted because of the wide disparity between the former positions held by them

and the positions to which they were proposed by petitioner. In the succeeding
discussion, those who are similarly situated are grouped accordingly.
A. Renato Bautista, Ma. Mujane Begonia Miroy, Pedro Sayon, Eufemia Maquinica,
Anita Meren, Vivian Ruiz, Arlyn Buensalido and Reba Concepcion.
Mr. Bautista, the Provincial Planning and Development Coordinator of the Provincial
Development Staf (PDS), applied for the same position under the newly-named
Provincial Planning and Development Office (PPDO), formerly PDS. Petitioner gave
him the position of Tax Mapper I in the Provincial Assessor's Office (PASSO), a
position lower by fourteen (14) grades. He claims he was, not only demoted, but his
right of preference was also violated considering his fourteen (14) years of service
with PDS where he has undergone all relevant training and seminars. He believes
that he cannot perform the work of a Tax Mapper for lack of educational
qualifications and experience.
Ms. Miroy, the Development Project Analyst at the PDS, applied for the positions of
Planning Officer I and Project Development Officer I in the same office. She was
given the position of Tax Mapping Aide at the PASSO, a position lower by six (6)
grades.
Mr. Sayon used to be the Executive Assistant in the Office of the Provincial Governor
(OPG). He applied for the positions of Administrative Officer II and Management and
Audit Analyst but was ofered the position of Construction and Maintenance Capataz
at the Provincial Engineers Office (PEO) which is six (6) grades lower.
Ms. Maquinica, Personnel Officer I at the OPG applied for the positions of
Management and Audit Analyst I and II, also at the OPG. The position proposed to
her was that of Security Guard I. She believed she could not very well accept this
position which is five (5) grades lower than the one she previously held and for
which she is not qualified, considering her physical condition.
Mr. Meren, as the incumbent Development Project Assistant at PDS, applied for the
same position though renamed Project Development Assistant in PDDO (formerly
PDS). She was given the position of Community Afairs Worker at the Public Afairs
Information and Assistance Office (PAIAD) of the OPG, a position lower by four (4)
grades.
As Public Information Assistant of the OPG, Ms. Ruiz was the editor of the two
previous provincial newsletters: Tambuli and Inforcen Balita. She applied for the
positions of Information Assistant and Information Officer, both at the OPG. She was
given the position of Security Guard I which is three (3) grades below her previous
position.
As former Senior Personnel Aide, Ms. Buensalido applied for the positions of Clerk II
and Communications Equipment Operator since she was also a holder of a radio

operator eligibility. She was ofered the position of Security Guard which is two (2)
grades lower the her former position.
Ms. Concepcion, former Senior Clerk at the OPG, applied for the positions of Clerk III
and Records Officers II of the OPG but was proposed for the position of Security
Guard I, a position lower by two (2) grades.
These private respondents were given positions which were not only lower, by two
(2) to as much as fourteen (14) grades, but which were diferent in nature from the
ones they previously held.
B. Joyce Martirez, Annie Dala, Ellen Tolentino and Margareth Natal.
As a former Clerical Aide at the Personnel Division of the OPG, Ms. Martirez applied
for the position of Clerk I at the Human Resources Development Office (HRDO), a
new office which performs the functions of the abolished Personnel Division. She
was instead given the position of Utility Worker at the General Services of the OPG
which is not only a grade lower but also caused a change in the nature of her work
from clerk to janitor. She believes this ofer did not take into account her
educational qualification (BS Commerce Major in Business Administration), her more
than five years of service as clerk and the fact that she was a former clerk in the
same office.
Ms. Dala, the former Training Officer of the PDS, applied for the positions of Project
Evaluation Officer and Planning Assistant at the PPDO (former PDS). Instead, she
was ofered the position of Information Writer in the PAIAD, a position lower by one
grade. She claims she lacks the necessary experience to perform the new task.
As the former Personnel Officer III at the Personnel Division of the OPG, Ms.
Tolentino applied for the positions of Human Resource Development Officer II and IV.
She was ofered instead the position of Statistician I at PASSO. She refused to accept
the same, not only because it was a grade lower, but also because she does not
possess the necessary educational qualification, experience, and training for it.
Ms. Natal was the Treasury Accounts Examiner of the Provincial Treasurer's Office
(PTO) when she applied for the position of Local Treasury Operations Officer I. She
was instead appointed as Revenue Collection Clerk which, she says, demoted her by
one grade and changed her status from an examiner to a mere clerk in the same
office.
These private respondents were ofered positions lower by one grade although they
applied for positions which they have shown to be comparable to the ones they
previously held.
C. Estelito Silva, Eves Poblacion and Tita Lumio.

Mr. Silva, a clerk at PASSO, applied for the same position because it was not
abolished. However, he was given the position of Utility Worker I in the General
Services Division (GSD) at OPG. His new position, although belonging to the same
salary grade (SG-3), is actually lower by two steps.
Ms. Poblacion, a clerk at the OPG applied for the same position, as well as the
positions of HRD aide in the same office, and of statistician at PASSO. She was,
however, given the position of security guard, a position of the same salary grade
(SG-3) but a step lower.
Ms. Lumio, the Property Management Officer at the Provincial Treasury Office (PTO)
applied for the position of Local Treasury Operation Officer IV in the same office, as
well as for the position of Administrative Office II at the GSD. Instead, she was given
the position of Records Officer II at the latter's office, a position of the same salary
grade (SG-10) but lower by one step.
It is to be observed that these private respondents were given positions of the same
salary grade but lower by one or two steps. Moreover, there was a change in the
nature of their work and their status. Mr. Silva was demoted from clerk to janitor;
Ms. Poblacion, from clerk also to security guard and Ms. Lumio was reduced to a
mere subordinate from being a former division chief.
D. Priscilla Briones
As former aide at the Personnel Division of the OPG, Ms. Briones applied for the
same position at the same office, now called, HRDO. However, she was given the
position of bindery helper at the PASSO which is of the same grade and step as her
former position.
While there was no actual decrease in the salary grade and step of Ms. Briones,
there was a change in the nature of her work from clerk to bindery helper.
We agree with the CSC when it found that a glaring disparity exists between the
former positions held by private respondents and the positions proposed to them by
petitioner. This is fairly obvious in the case of respondents Bautista, et al. who were
given positions which were, not only lower by two grades to as much as fourteen,
but which also changed the nature of their work. This is also true with respect to
respondents Martirez, et al. who were given positions lower by one grade despite
the showing that comparable positions exist. In the case of respondents Silva, et al.
there were diferences in their proposed positions, by one or two steps. Finally, in
the case of Briones, the disparity consists, not so much in the salary grade and/or
step, but in the nature of the work.
Section I of Rep. Act No. 6656 declares as the policy of the State, the protection of
the security of tenure of civil service officers and employees in the reorganization of
the various agencies of the government. Section 2 requires prior determination of a

valid cause after due notice and hearing before any officer or employee in the
career service can be removed, or demoted, which in efect is a removal.
In order to show that valid cause for which for demotion exists, petitioner submits
an evaluation 7 supposedly made by the Placement Committee showing that private
respondents were recommended to positions to which they are best fitted and
where they would be performing more efectively as demanded by the interest of
public service. However, private respondents raise some serious objections
regarding this evaluation. First, they observe that this supposed evaluation was not
certified by any member of the Placement Committee. Second, the supposed
evaluation is not complete, meaning, not all of private respondents have their
respective evaluation. 8 Third, its validity is dubious because diferent typewriters
were used which could mean that other entries were belatedly entered. Fourth, this
evaluation was not submitted before the CSC and ofered only to this Court for the
first time.
In view of the seriousness of the objections raised against the evaluation which was
the only proof evidencing the existence of valid cause for demotion, it was expected
that petitioner would meet squarely these objections. However, she chose to ignore
the same. Her silence is at once obvious and ominous. The letters sent by petitioner
to private respondents simply informed them of their new assignments and required
them to submit the pertinent documents. These were not accompanied by a copy of
the evaluation allegedly made by the Placement Committee or by any explanation
for their demotion. It was only when private respondents protested their new
assignments that petitioner, in her decisions dated February 7 and 18, 1989,
explained that the new appointments and transfers to offices other than their
original positions were done to enhance their efficiency and efectivity. 9 We find
that petitioner has failed to show satisfactorily that respondent CSC committed
grave abuse of discretion.
We hold that, as a result of the reorganization of the provincial government of
Aklan, these sixteen private respondents have been demoted by their assignment
to positions which are lower than those they previously held, or which, though of
equivalent salary grade and step, drastically changes the nature of their work
without a showing by petitioner of the existence of a valid cause for such demotion,
which in efect is a removal, determined after due notice and hearing. We reiterate
the Court's reminder in Mendoza v. Quisumbing:
. . . If a person is dismissed from his job, he should be informed of the reason. The
reason should be in the Civil Service Law or, at least, in the law authorizing the
removal. The reason must have a reasonable relationship to the employee's merit
and fitness for the job. He must be given, before he is fired, an opportunity to show
that the cause for removal does not apply to him. Elementary principles of fairness
and compassion are essential. Only then can the reconciliation and unity so
earnestly sought today be achieved. 10

Assigning an employee to a lower position in the same service which


has a lower rate of compensation is a clear case of demotion tantamount to removal
when no cause is shown for it or when it is not a part of any disciplinary
action. 11 Thus, petitioner stresses the fact that since private respondents would be
receiving the same rate of salary they were receiving before the reorganization,
therefore they are not demoted. In the case of Floreza, we ruled that there was
demotion even if Floreza was allowed to receive the same salary as his previous
higher position. Similarly, we find that private respondents, notwithstanding nondiminution of their salary, have been demoted. This arbitrariness has no place in a
government than nurtures the constitutional mandates of security of tenure and due
process. 12
In addition to a finding of demotion, the CSC also found petitioner to have violated
the rule on preference for appointment of permanent employees based on Sec. 4 of
Rep. Act No. 6656, 13 Sec. 7 of Rules on Organization 14and Memorandum Circular
No. 5, s. 1988 of the CSC. 15 The rule means that "old employees should considered
first" on the assumption, though not absolutely true, that they have gained "not
only superior skills but also greater dedication to the public service." This is not to
say, however, that they should be automatically appointed because "the law does
not preclude the infusion of new blood, younger dynamism, or necessary talents
into the government service" provided that the acts of the appointing power are
"bonafide for the best interest of the public service and the person chosen has the
needed qualifications." 16 It is less than accurate, however, to conclude that
petitioner violated the rule on preference for appointment of permanent employees
because not all appointees to the positions formerly held by private respondents or
to those comparable positions were new appointees.
In the case of Mr. Oczon who was the only one found by respondent Commission to
have been terminated, he used to be a janitor at the Science Development High
School of Aklan (SDHSA). His salary came from the contribution of the provincial
government of Aklan. When the SDHSA was nationalized, the provincial government
discontinued its contribution so that he now receives his salary from the national
government. Notwithstanding this, Oczon still claims entitled to "back salaries and
salary diferentials reckoned from the time he was terminated as janitor as a result
of the reorganization to the time that he was integrated as a national employee of
the Science Development High School of Aklan." 17
We do not share the opinion of Mr. Oczon that he was terminated as a result of the
reorganization. His supposed "termination" was actually caused when SDHSA was
nationalized. His "termination" merely coincided with the reorganization of Aklan's
provincial government which used to allocate a share or contribution to SDHSA.
When SDHSA was nationalized, the contribution of Aklan's provincial government
consequently ceased. On this score, we rule for petitioner and find respondent
Commission to have committed grave abuse of discretion in ordering that Oczon be
"restored to his former position if still available, otherwise to the new position of

Utility Worker with payment of back salaries retroactive to the efective date of
reorganization." 18
To summarize: with respect to the sixteen private respondents, respondent
Commission committed no grave abuse of discretion in ordering that they be
"immediately appointed and restored to their positions or positions of comparable
or equivalent rank without loss of seniority rights with back salaries reckoned from
dates they should properly have been appointed thereto efective the date of the
reorganization of said province." 19 As explained inGayatao v. Civil Service
Commission:
. . . The CSC, after finding that the demotion was patently illegal, is merely restoring
private respondent to his former position, just as it must restore other employees
similarly afected to their positions before the reorganization.
It is within the power of public respondent to order the reinstatement of government
employees who have been unlawfully dismissed. The CSC, as the central personnel
agency, has the obligation to implement and safeguard the constitutional provisions
on security of tenure and due process. In the present case, the issuance by the CSC
of the questioned resolutions, for the reasons clearly explained therein, is
indubitably in the performance of its constitutional task of protecting and
strengthening the civil service. 20
However, with respect to private respondent Oczon, we hold that respondent
Commission did commit grave abuse of discretion in ordering his reinstatement with
back salary, considering that he was not terminated as a result of the
reorganization.
WHEREFORE, with respect to the abovementioned sixteen (16) private respondents,
the present petition is hereby DISMISSED; with respect to private respondent
Expedito W. Oczon, the same is hereby GRANTED. The temporary retraining order
issued on November 22, 1990 enjoining their reinstatement is accordingly LIFTED in
the case of the sixteen private respondents but made PERMANENT with regard to
private respondent Expedito W. Oczon.
SO ORDERED.
Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo,
Melo and Quiason, JJ., concur.
Narvasa, C.J., took no part.

EN BANC
G.R. No. 95861 April 19, 1991
FRANCISCO L. ABALOS, petitioner, vs. CIVIL SERVICE COMMISSION, SERGIO
VILLABONA and EDUARDO YAP, JR., respondents.
Voltaire L Rovira for petitioner. Moises G. Dalisay, Jr. for private respondents.
CRUZ, J.:
In its resolution dated January 11, 1990, the Civil Service Commission affirmed the
order of Civil Service Regional Office No. 12 directing the reinstatement in the
Provincial Engineer's Office, Lanao del Sur, of Sergio Villabona and Eduardo Yap, Jr.
on the ground that they had been illegally dismissed. Petitioner Francisco A. Abalos
is now before us and prays that the resolution be reversed because it was issued
with grave abuse of discretion.
Shortly after assuming office as Provincial Governor of Lanao del Norte, the
petitioner, by resolution of the provincial board, filed with the Tanodbayan a
complaint for malversation against his predecessor, Arsenio A. Quibranza, for
having used for personal purposes several bulldozers belonging to the province.
Cited as witnesses were the operators of the bulldozers, private respondents
Villabona and Yap, who allegedly executed on September 6, 1986, affidavits in
support of the complaint.
These sworn statements were disowned in a joint affidavit executed on September
25, 1986, by the private respondents, who claimed that the earlier statements were
spurious. As a consequence, identical memoranda were issued by the petitioner to
Villabona and Yap on September 24, 1987, reading as follows:

You are hereby ordered to explain in writing within 72 hours from receipt hereof why
no disciplinary action be taken against you for having recanted your Sworn
Statement which was made the basis for the filing of a criminal complaint against
the late Governor Arsenio A. Quibranza, thereby causing embarrassment to the
Office of the Provincial Governor.
In the meantime you are hereby suspended from work efective upon receipt
thereof, until after the termination of the investigation to be conducted in
accordance with law.
On October 14, 1987, the private respondents were informed in another
memorandum that formal charges for "dishonesty and intentionally making false
statements in material facts" had been filed against them which they should answer
within 72 hours. Curiously, however, they were informed in a separate
memorandum issued on that same date that their services as equipment operators
had been terminated.
The resolution of CSRO No. 12 declaring their dismissal illegal having been
sustained by the Civil Service Commission, the petitioner now pleads to this Court
on certiorari that:
1. The charge against the private respondents did not have to be investigated
because they had themselves already admitted their guilt; and
2. They could be summarily dismissed under Section 40 of the Civil Service Decree.
The petitioner stresses that on September 28, 1987, the private respondents
admitted their guilt in affidavits which he said he submitted later to the Civil Service
Commission as an annex to his formal appeal. Such sworn confessions rendered the
usual investigation unnecessary as, according to him, "it will just be a waste of
government time and money to investigate a charge that has already been
admitted by the respondents. By pleading guilty, respondents waived whatever
rights to a formal investigation they had."
The problem with this argument is that the private respondents have rejected their
supposed confession as having been extracted from them without benefit of legal
assistance. They invoke Article III, Section 17, of the Constitution, which, together
with Section 12(l), might have been the reason for the dismissal by the Ombudsman
on February 1, 1990, of the complaint for people filed against them by the
petitioner.
The results of the proceedings before the Ombudsman are, of course, not decisive
of the administrative charges. Nevertheless, the private respondents should have
been given a chance to prove in an investigation duly called that they did not
execute the affidavits against former Governor Quibranza and that they were
tricked into admitting the ofense imputed to them. They were not accorded this

opportunity. Instead they were simply informed that, in view of the charge and their
supposed admission thereof, they were being summarily dismissed from the
service.
The petitioner also invokes Section 40 of P.D. No. 807 and argues that in view of the
private respondents' admission of the charge against them, they could be
summarily dismissed under this section.
Section 40 read:
Sec. 40. Summary Proceedings. No formal investigation is necessary and the
respondent may be immediately removed or dismissed if any of the following
circumstances is present:
(a) When the charge is serious and the evidence of guilt is strong.
(b) When the respondent is a recidivist or has been repeatedly charged and there is
reasonable ground to believe that he is guilty of the present charge.
(c) When the respondent is notoriously undesirable.
Resort to summary proceedings by the disciplining authority shall be done with
utmost objectivity and impartiality to the end that no injustice is committed.
Provided, That removal or dismissal except those by the President, himself, or upon
his order, may be appealed to the Commission.
It is the petitioner's contention that the private respondents come under Item (a)
because the charge against them was serious and the evidence of their guilt was
strong, being no less than their own sworn confessions. There was therefore no
need of a formal investigation and no hindrance to their summary dismissal.
We do not have to rule at this time on the degree of the ofense imputed to the
private respondents. But we will say here that, in view of their rejection of the
confessions supposedly made by them, the evidence of their guilt cannot by any
standard be regarded as strong. Indeed, that guilt had yet to be established by
preponderant evidence, especially against the dismissal by the Ombudsman of the
perjury charge against them. Consequently, we cannot find that Item (a) of Section
40 could be validly applied against the private respondents to justify their summary
dismissal.
The Court had earlier entertained serious misgivings about the constitutionality of
Section 40 as against strong protests that it was violative of due process in so far as
it deprived the civil servant of the right to defend himself against the ex parte
decision to dismiss him. While it is true that this section had been upheld in earlier
decisions (albeit not very categorically), there was a growing sentiment that the law
should be re-examined more closely in deference to the right to a hearing that it
was foreclosing.

Fortunately, the question has been rendered moot and academic by the Congress of
the Philippines, which has itself seen fit to remove it from our statute books. The
Court is happy to note the little-known fact that at the instance of Senator Neptali A.
Gonzales, a recognized constitutionalist with a vigilant regard for due process, and
Representative Narciso D. Monfort, himself an avowed advocate of fair play, Section
40 was repealed by Republic Act No. 6654, which was approved on May 20, 1988,
and published in the Official Gazette on May 30, 1988.
The private respondents were dismissed on October 14, 1987, when Section 40 was
still in force.1wphi1 But as already explained, it was not applicable even then in
the case at bar.
There is no question that the repeal of Section 40 will further bolster the
independence and integrity of the Civil Service and protect its members from the
arbitrary exercise of authority by officials with less than the proper respect for due
process of law.
The right to be heard is one of the brightest hallmarks of the free society. We should
be proud that in this jurisdiction every person who may be involved in controversy is
entitled to present his side, no less than his adversary, at a hearing duly called for
that purpose. This right is available to citizen and alien alike, from the humblest to
the most exalted, and covers with its protection the ofer of arguments and
evidence, from the profound to the absurd, in defense of one's life, liberty and
property. That is a right we must all cherish.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so
ordered.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., took no part.

EN BANC
[G.R. No. 124540. November 14, 1997]
MERLINDA JACINTO, ADELINA AGUSTIN, SUSAN AGUSTIN, EVELYN ATIENZA,
NIDA BALANE, ANICIA CARLOS, CELEDONIA CARLOS, LIWANAG CASTILLO,
JOSEFINA DE GUZMAN, MINERVA GARCIA, MARIA GATDULA, ALICIA GUNDA,
AURORA LOPEZ, CARMENCITA MANANSALA, ERLINDA MARTINEZ, LOLITA
NAVARRETE, GUADALUPE PANERGO, MARIA PULGA, PAZ SERRA and
VIRGINIA ZAMORA, petitioners, vs.HON. COURT OF APPEALS; THE CIVIL
SERVICE COMMISSION; and THE SECRETARY OF EDUCATION, CULTURE AND
SPORTS,respondents.

DECISION
PANGANIBAN, J.:
While we recognize and appreciate the toil and hardship of our public
schoolteachers in fulfilling the states responsibility of educating our children, and
realize their inadequately addressed plight as compared to other professionals, we
have the equal task of promoting the larger public interest which withholds from
them and other similarly situated government workers the right to engage in mass
actions resulting in work stoppages for any purpose. Although the Constitution vests
in them the right to organize, to assemble peaceably and to petition the
government for a redress of grievances, there is no like express provision granting
them the right to strike. Rather, the constitutional grant of the right to strike is
restrained by the proviso that its exercise shall be done in accordance with law.
The Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking to set
aside the November 27, 1995 Decision [1] of the Court of Appeals[2] in CA-G.R. SP No.
37596, which found no grave abuse of discretion on the part of the Civil Service
Commission (CSC) in issuing its resolutions [3] disposing of the separate appeals and
motions for reconsideration of herein petitioners.The dispositive portions of most of
the CSC resolutions, with the exception of the name of the appellant concerned,
uniformly read:
WHEREFORE, foregoing premises considered, the Commission hereby resolves to
find Susan Agustin guilty of Conduct Prejudicial to the Best Interest of the
Service. She is meted out the penalty of six (6) months suspension without
pay. Agustin is now automatically reinstated in the service without payment of back
salaries.[4]
As regards Petitioner Merlinda Jacinto, the decretal portion of the resolution
pertaining to her case reads:
WHEREFORE, foregoing premises considered, the Commission hereby resolves to
find Merlinda Jacinto guilty of Violation of Reasonable Office Rules and
Regulations. She is hereby meted out the penalty of reprimand.She is automatically
reinstated in the service without payment of back salaries. [5]
In a Resolution[6] dated March 29, 1996, Respondent Court of Appeals denied the
petitioners motion for reconsideration.
The Facts
The following are the antecedents of the case as narrated by the Court of Appeals,
which we find substantiated by the records:

Petitioners are public school teachers from various schools in Metropolitan


Manila. Between the period September 17 to 21, 1990, they incurred unauthorized
absences in connection with the mass actions then staged; and on September 17,
1990, DECS Secretary Isidro Cario immediately issued a return-to-work order
worded as follows:
TO: ALL PUBLIC SCHOOL TEACHERS AND OTHER DECS PERSONNEL
SUBJECT: RETURN TO WORK ORDER
Under Civil service law and rules, strikes, unauthorized mass leaves and other forms
of mass actions by civil servants which disrupt public services are strictly prohibited.
Those of you who are engaged in the above-mentioned prohibited acts are therefore
ordered, in the interest of public service, to return to work within 24 hours from your
walkout otherwise
dismissal
proceedings
shall
be
instituted
against
you. (Underscoring supplied).
The directive was ignored by petitioners. Consequently, on separate dates,
Secretary Cario issued formal charges and preventive suspension orders against
them. They were administratively charged with gross misconduct; gross neglect of
duty, etc. for joining unauthorized mass actions; ignoring report-to-work directives;
unjustified abandonment of teaching posts; non-observance of Civil Service law,
rules and regulations; non-compliance with reasonable office rules and regulations;
and incurring unauthorized absences without leave, etc. An investigation committee
was then created by Sec. Cario to look into the matter. However, during the
investigation, petitioners did not file their answers or controvert the charges against
them. As a consequence, Sec. Cario, in his decisions found them guilty as charged
and imposed the penalty of dismissal, except with respect to petitioners Merlinda
Jacinto and Adelina Agustin who were meted only six (6) months suspension.
The decisions were appealed to the Merit Systems Protection Board (MSPB) which
dismissed the appeals for lack of merit and then to the Civil Service Commission
which set aside the Orders of the MSPB in the contested resolutions. The Civil
Service Commission, in separate resolutions, found the petitioners (except Merlinda
Jacinto) guilty of Conduct Prejudicial to the Best Interest of the Service; imposed
upon them the penalty of six (6) months suspension without pay; and automatically
reinstated them to the service without payment of back salaries x x x. In the case of
Petitioner Merlinda Jacinto, the CSC found her guilty of Violation of Reasonable
Office Rules and Regulations; imposed upon her the penalty of reprimand; and
automatically reinstated her in the service without payment of back salaries x x x.
Acting on the motions for reconsideration, the CSC rendered the assailed resolutions
denying the motions for lack of merit.[7]

Petitioners initially questioned the CSC resolutions directly before this Court in
petitions docketed as G.R. Nos. 118252 to 118271. In accordance with Revised
Administrative Circular 1-95, we referred them to the Court of Appeals.
Respondent Court found that the petitioners absented themselves from their classes
in furtherance of or in connection with the mass action for the purpose of pressuring
the government to grant their demands. Citing the resolution of this Court in MPSTA
vs. Laguio[8] that the mass actions staged by the public schoolteachers from
September 17 to September 19, 1990, were to all intents and purposes a strike, it
denied the petition, since the right to strike did not extend to civil service
employees. In the case of Merlinda Jacinto, Respondent Court found no error on the
part of the CSC in finding her guilty of violation of reasonable office rules and
regulations. Neither did it find the petitioners entitled to backwages for the period of
their preventive suspension, as they were not exonerated of the charges against
them.
Hence, this petition.[9]
Issues
Petitioners raise the following grounds for their appeal:
I. The Respondent Court of Appeals committed grave abuse of discretion when it
upheld the resolutions of the Civil Service Commission that penalized all the
petitioners whose only ofense (except Jacinto) was to exercise their constitutional
right peaceably to assemble and petition the government for redress of grievances.
II. The Respondent Court of Appeals committed grave abuse of discretion when it
upheld the resolutions of the Civil Service Commission that penalized Petitioner
Jacinto for an alleged ofense which has no basis whatsoever thereby violating her
right to security of tenure.
III. The Respondent Court of Appeals committed grave abuse of discretion when it
upheld the resolutions of the Civil Service Commission that denied petitioners their
right to backwages covering the period when they were illegally not allowed to
teach.[10]
Preliminarily, we note that the remedy resorted to by petitioners is a petition for
review under Rule 45 of the Rules of Court which, however, allows only questions of
law.[11] Jurisprudence has extended this remedy to questions of fact in exceptional
cases.[12] Where the issues raised involve lack of jurisdiction or grave abuse of
discretion as in this case, the Rules provide for a diferent remedy -- Rule 65. In the
interest of substantial justice, however, we hereby decide to deal with this petition
as one filed under Rule 45, as denominated in its prefatory paragraph, and treat the
grave abuse of discretion on the part of Respondent Court of Appeals as allegations
of reversible errors.

The Courts Ruling


The petition, which fails to convince us, merits only dismissal.
First Issue: Improper Exercise of the Right to Peaceful Assembly and to
Petition for a Redress of Grievances
There is no question as to the petitioners rights to peaceful assembly to petition the
government for a redress of grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to engage in peaceful
concerted activities. These rights are guaranteed by no less than the Constitution,
particularly Sections 4[13] and 8[14] of the Bill of Rights, Section 2(5)[15] of Article IX,
and
Section
3[16] of
Article
XIII. Jurisprudence
abounds
with
hallowed
pronouncements defending and promoting the peoples exercise of these rights. As
early as the onset of this century, this Court, in U.S. vs. Apurado,[17] already upheld
the right to assembly and petition and even went as far as to acknowledge:
It is rather to be expected that more or less disorder will mark the public assembly
of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the
greater the grievance and the more intense the feeling, the less perfect, as a rule,
will be the disciplinary control of the leaders over their irresponsible followers. But if
the prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right
to assemble and to petition for redress of grievances would become a delusion and
a snare and the attempt to exercise it on the most righteous occasion and in the
most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals should be sought
out and punished therefor, but the utmost discretion must be exercised in drawing
the line between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising. [18]
Primicias vs. Fugoso[19] further sustained the supremacy of the freedoms of speech
and of assembly over comfort and convenience in the use of streets or
parks. Although the Court opined that the exercise of the rights of free speech and
of peaceful assembly to petition the government for redress of grievances is not
absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the
community or society, regulation was limited to the mayors reasonable discretion in
issuing a permit to determine or specify only the streets or public places to be used
for the purpose and to provide adequate and proper policing to minimize the risk of

disorder. Quoting Justice Brandeis in his concurring opinion in Whitney vs. California,
the Court said:[20]
Fear of serious injury cannot alone justify suppression of free speech and
assembly. x x x To justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is practiced.There must be
reasonable ground to believe that the danger apprehended is imminent. There must
be reasonable ground to believe that the evil to be prevented is a serious one x x x.
xxxxxxxxx
x x x The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probability of
serious injury to the state. x x x
This limitation was strictly applied in Reyes vs. Bagatsing,[21] in which the Court
[was] called upon to protect the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit. In that case, retired Justice
J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the mayor
of Manila to hold a march and a rally starting from Luneta, proceeding through
Roxas Boulevard to the gates of the U.S. Embassy, to be attended by local and
foreign participants to the International Conference for General Disarmament, World
Peace and the Removal of All Foreign Military Bases. The Manila mayor denied them
the permit due to police intelligence reports which strongly militate against the
advisability of issuing such permit at this time and at the place applied for. In
reversing the mayor, this Court stated that to justify limitations on freedom of
assembly, there must be proof of sufficient weight to satisfy the clear and present
danger[22] test. Thereafter, the Court proceeded to summarize the rules on assembly
and petition,[23] making the clear-and-present danger rule the standard for refusing
or modifying the grant of a permit. But it stressed that the presumption must be to
incline the weight of the scales of justice on the side of such rights [of free speech
and peaceable assembly], enjoying as they do precedence and primacy.
Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co.,
Inc.,[24] which was promulgated after the proclamation of martial law, further
underscored the supremacy of these basic constitutional rights, this time over
property rights. Speaking through Mr. Justice Makasiar, the Court explained:
x x x the primacy of human rights -- freedom of expression, of peaceful assembly
and of petition for redress of grievances -- over property rights has been
sustained. Emphatic reiteration of this basic tenet as a coveted boon -- at once the
shield and armor of the dignity and worth of the human personality, the allconsuming ideal of our enlightened civilization -- becomes [o]ur duty, if freedom
and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad

faith in collective bargaining and hence a violation of the collective bargaining


agreement and a cause for the dismissal from employment of the demonstrating
employees, stretches unduly the compass of the collective bargaining agreement, is
a potent means of inhibiting speech and therefore inflicts a moral as well as mortal
wound on the constitutional guarantees of free expression, of peaceful assembly
and of petition.[25]
Specifically, the right of civil servants to organize themselves was positively
recognized in Association of Court of Appeals Employees (ACAE) vs. Ferrer-Calleja.
[26]
But, as in the exercise of the rights of free expression and of assembly, there are
standards for allowable limitations such as the legitimacy of the purposes of the
association,[27] the overriding considerations of national security and the
preservation of democratic institutions.[28]
As regards the right to strike, the Constitution itself qualifies its exercise with the
proviso in accordance with law. This is a clear manifestation that the state may, by
law, regulate the use of this right, or even deny certain sectors such right. Executive
Order 180[29] which provides guidelines for the exercise of the right of government
workers to organize, for instance, implicitly endorsed an earlier CSC circular which
enjoins under pain of administrative sanctions, all government officers and
employees from staging strikes, demonstrations, mass leaves, walkouts and other
forms of mass action which will result in temporary stoppage or disruption of public
service,[30] by stating that the Civil Service law and rules governing concerted
activities and strikes in the government service shall be observed. [31]
It is also settled in jurisprudence that, in general, workers in the public sector do not
enjoy the right to strike. Alliance of Government Workers vs. Minister of Labor and
Employment[32]rationalized the proscription thus:
The general rule in the past and up to the present is that the terms and conditions
of employment in the Government, including any political subdivision or
instrumentality thereof are governed by law. x x x. Since the terms and conditions
of government employment are fixed by law, government workers cannot use the
same weapons employed by the workers in the private sector to secure concessions
from their employers. The principle behind labor unionism in private industry is that
industrial peace cannot be secured through compulsion by law. Relations between
private employers and their employees rest on an essentially voluntary
basis. Subject to the minimum requirements of wage laws and other labor and
welfare legislation, the terms and conditions of employment in the unionized private
sector are settled through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given delegated
power, the administrative heads of government which fix the terms and conditions
of employment. And this is efected through statutes or administrative circulars,
rules, and regulations, not through collective bargaining agreements. [33]

After delving into the intent of the framers of the Constitution, the Court affirmed
the above rule in Social Security System Employees Association (SSSEA) vs. Court of
Appeals[34] and explained:
Government employees may, therefore, through their unions or associations, either
petition the Congress for the betterment of the terms and conditions of employment
which are within the ambit of legislation or negotiate with the appropriate
government agencies for the improvement of those which are not fixed by law. If
there be any unresolved grievances, the dispute may be referred to the Public
Sector Labor-Management Council for appropriate action. But employees in the civil
service may not resort to strikes, walkouts and other temporary work stoppages,
like workers in the private sector, to pressure the Government to accede to their
demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to
Govern the Exercise of the Right of Government Employees to Self-Organization,
which took efect after the instant dispute arose, [t]he terms and conditions of
employment in the government, including any political subdivision or
instrumentality thereof and government-owned and controlled corporations with
original charters are governed by law and employees therein shall not strike for the
purpose of securing changes [thereto]. [35]
We now come to the case before us. Petitioners, who are public schoolteachers and
thus government employees, do not seek to establish that they have a right to
strike. Rather, they tenaciously insist that their absences during certain dates in
September 1990 were a valid exercise of their constitutional right to engage in
peaceful assembly to petition the government for a redress of grievances. They
claim that their gathering was not a strike; therefore, their participation therein did
not constitute any ofense. MPSTA vs. Laguio[36] and ACT vs. Cario,[37] in which this
Court declared that these mass actions were to all intents and purposes a strike;
they constituted a concerted and unauthorized stoppage of, or absence from, work
which it was the teachers duty to perform, undertaken for essentially economic
reasons, should not principally resolve the present case, as the underlying facts are
allegedly not identical.
Strike, as defined by law, means any temporary stoppage of work by the concerted
action of employees as a result of an industrial or labor dispute. [38] A labor dispute
includes any controversy or matter concerning terms and conditions of
employment; or the association or representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate relation of employers
and employees.[39] With these premises, we now evaluate the circumstances of the
instant petition.
It cannot be denied that the mass action or assembly staged by the petitioners
resulted in the non-holding of classes in several public schools during the
corresponding period. Petitioners do not dispute that the grievances for which they

sought redress concerned the alleged failure of public authorities -- essentially, their
employers -- to fully and justly implement certain laws and measures intended to
benefit them materially, such as:
1. Immediate release of P680 million Secondary Education Fund (SEF) fringe
benefits of teachers under Section 17 of Republic Act 6758.
2. Clothing allowance at P500 to P1,000 per teachers [sic] under the General
Appropriations Act of 1990
3. DMB Circular 904
4. Increase in minimum wage to P5,000 for teachers.[40]
And probably to clothe their action with permissible character, [41] they also raised
national issues such as the removal of the U.S. bases and the repudiation of foreign
debt. In Balingasan vs. Court of Appeals,[42] however, this Court said that the fact
that the conventional term strike was not used by the participants to describe their
common course of action was insignificant, since the substance of the situation, and
not its appearance, was deemed controlling. [43]
Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the
exercise of their right to assemble peacefully and to petition the government for a
redress of grievances. Rather, the Civil Service Commission found them guilty of
conduct prejudicial to the best interest of the service for having absented
themselves without proper authority, from their schools during regular school days,
in order to participate in the mass protest, their absence ineluctably resulting in the
non-holding of classes and in the deprivation of students of education, for which
they were responsible. Had petitioners availed themselves of their free time -recess, after classes, weekends or holidays -- to dramatize their grievances and to
dialogue with the proper authorities within the bounds of law, no one -- not the
DECS, the CSC or even this Court -- could have held them liable for the valid
exercise of their constitutionally guaranteed rights. As it was, the temporary
stoppage of classes resulting from their activity necessarily disrupted public
services, the very evil sought to be forestalled by the prohibition against strikes by
government workers. Their act by its nature was enjoined by the Civil Service law,
rules and regulations, for which they must, therefore, be made answerable.
Second Issue: Violation by Petitioner Jacinto of Reasonable Office Rules
and Regulations
Petitioner Jacinto, for her part, pleads for exoneration. She asks the Court to
reexamine and give due weight to the certification [44] issued by her school principal
that she met her class on September 20, 1990 but failed to sign in the attendance
logbook. Stated elsewise, Jacinto wants us to scrutinize firsthand a document
already ruled upon by the Civil Service Commission and the Court of Appeals to be

of doubtful credibility. Time and again, we have held that findings of administrative
agencies, which have acquired expertise because their jurisdiction is confined to
specific matters, are accorded not only respect but even finality [45] particularly when
affirmed by the appellate tribunal. It is not a function of this Court to examine and
evaluate the probative value of the evidence profered in the concerned forum,
which formed the basis of the latters impugned decision, resolution or order,
[46]
absent a clear showing of arbitrariness and want of any rational basis therefor.
[47]
In the instant case, we find no sufficient reason to reverse the findings of the
CSC.
In any event, as observed by the Commission, said certification, dated December
19, 1990, was belatedly submitted by Petitioner Jacinto only with her motion for
reconsideration of the CSC resolution promulgated September 21, 1993; thus it was
correctly rejected as a newly discovered evidence. Additionally, the Commission
explained:
x x x such certification contradicts the allegation that she filed an application for
leave. If she was really present on September 20, 1990, there would have been no
need for her to file an application for leave. Apparently, this is a vain efort to
present documents of doubtful credibility just to have Jacinto exonerated of the
charges against her.[48]
The futility of the tactics of Petitioner Jacinto to evade culpability is further
exemplified by her contradictory assertions. In a sworn explanation submitted to
Secretary Cario, she claimed that she left the school premises on the day in
question, because she was emotionally and mentally depressed, and went to see a
physician.[49] In her motion for reconsideration before the CSC, she submitted the
above certification to the efect that she was not absent. Now, in assailing the
Commissions decision to reprimand her for violation of reasonable office rules and
regulations in not filing an application for leave of absence, she invokes Sec. 15,
Rule XVI of the Civil Service rules, which provides:
Sec. 15. Applications for vacation leave of absence for one full day or more shall be
submitted on the prescribed form for action by the proper chief of agency in
advance, whenever possible, of the efective date of such leave.
She contends that the filing of an application for vacation leave need not always be
in advance of the efective date thereof. [50] Clearly, her present stance is diametric
to her illness justification before the DECS. In the latter case, it is Section 16 of said
rules that is pertinent:
Sec. 16. All applications for sick leaves of absence for one full day or more shall be
on the prescribed form and shall be filed immediately upon the employees return
from such leave. Notice of absence, however, should be sent to the immediate
supervisor and/or to the office head. x x x

The regulation requires (1) the filing of the application for sick leave on the
prescribed form immediately upon the employees return from such leave and (2) a
notice of absence to be sent to the immediate supervisor and/or office head. But the
Commission found that the records are bereft of any showing that Jacinto asked
permission from school authorities to go out of school premises and seek medical
attention outside nor did she file an application for sick leave x x x. [51] Hence, its
conclusion that petitioner violated reasonable office rules and regulations.
The totality of the evidence on record sustains the findings and conclusions of the
Commission, as affirmed by the Court of Appeals. We have no reason to reverse
them. The Civil Service rules clearly provide that violation of reasonable office rules
and regulations, on first ofense, carries the penalty of reprimand. [52]
Third Issue: No Right to Backwages
Petitioners anchor their claim for backwages on the supposed illegality of (1) their
preventive suspension upon the filing of the charges against them and (2) the
immediate execution of the DECS Secretarys decisions ordering their dismissal.
The charges against petitioners consisted of the following: (1) grave misconduct; (2)
gross neglect of duty; (3) gross violation of Civil Service law, rules and regulations
and reasonable office regulations; (4) refusal to perform official duty; (5) gross
insubordination; (6) conduct prejudicial to the best interest of the service; and (7)
absence without approved leave. These were based on their alleged unauthorized
participation in the mass actions in September 1990, disregard of report-to-work
directives, unjustified abandonment of teaching posts, unauthorized absences
without leave, and other similar violations reported to the DECS Secretary by their
respective school supervisors.[53]
We find that the charges filed against petitioners warranted their preventive
suspension from the service, as provided under Section 51, Chapter 7 (on
Discipline) of the Administrative Code, which reads:
Sec. 51. Preventive Suspension. -- The proper disciplining authority may
preventively suspend any subordinate officer or employee under his authority
pending an investigation, if the charge against such officer or employee involves
dishonesty, oppression or grave misconduct, or neglect in the performance of duty,
or if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.
The petitioners alleged lapses, initially found substantiated by the DECS, qualify as
grave misconduct or neglect in the performance of duty under the above rule. Thus,
former Education Secretary Cario had the legal authority to suspend them pending
further investigation.

The Secretarys immediate execution of his decisions imposing the penalty of


dismissal finds legal basis in Sec. 47 (2) of the Civil Service law [54] which provides:
Sec. 47. Disciplinary Jurisdiction. -- x x x.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities
and municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days salary. In case the
decision rendered by a bureau or office head is appealable to the Commission, the
same may be initially appealed to the department and finally to the Commission
and pending appeal, the same shall be executory except when the penalty is
removal, in which case the same shall be executory only after confirmation by the
Secretary concerned.
As can be gleaned from the above, the department secretarys decision confirming
the removal of an officer or employee under his jurisdiction is executory in
character, i.e. such decision may be immediately executed even pending further
remedy, such as an appeal,[55] by the dismissed officer or employee. In the case at
bar, it was already the final judgments of Secretary Cario which were forthwith
carried out. The aforequoted statutory provision rules out the alleged illegality of
the actions of the DECS Secretary.
In any event, the rule is settled that backwages may be granted only to those who
have been illegally dismissed and thenceforth ordered reinstated, or to those
acquitted of the charge against them. [56] Even a pardoned convicted employee is not
automatically entitled to backpay. Monsanto vs. Factoran Jr.[57] established the
general rule that -- while pardon has been commonly regarded as eliminating the
existence of guilt so that in the eyes of the law the ofender is as innocent as
though he never committed the ofense -- such exoneration does not operate for all
purposes. It does not erase the fact of the commission of the ofense and the
conviction therefor. It frees the convict from all penalties and legal disabilities and
restores to him all his civil rights; but unless expressly grounded on the persons
innocence, it does not ipso facto restore him to public office necessarily relinquished
or forfeited by reason of the conviction. Pardon does not generally result in
automatic reinstatement because the ofender has to apply for reappointment;
neither is he entitled to backpay. [58]
Thus, in Sabello vs. DECS,[59] although we reinstated the petitioner-pardonee to his
previous position in the interest of justice and equity, we did not grant him
backwages since he was lawfully separated from the government service upon his
conviction for an ofense. We reiterated that the right to backwages was aforded
only to those who were illegally dismissed but thereafter ordered reinstated, or to
those otherwise acquitted of the charge against them.

Again, in City Mayor of Zamboanga vs. Court of Appeals,[60] we said that back
salaries may be ordered paid to an officer or employee only if he is exonerated of
the charge against him and his suspension or dismissal is found and declared to be
illegal. Hence, in Garcia vs. Chairman, Commission on Audit,[61] we said that if the
pardon is based on the innocence of the individual, it affirms this innocence and
makes him a new man and as innocent as if he had not been found guilty of the
ofense charged.[62] In that case, Garcia was found administratively liable for
dishonesty.He was, however, acquitted by the trial court of the complaint for
qualified theft based on the very same acts. The acquittal was founded not on lack
of proof beyond reasonable doubt but on the fact that he did not commit the ofense
imputed to him. This Court said that after having been declared innocent of the
criminal complaint, which had the same basis as the administrative charge, for all
legal purposes the petitioner should not be considered to have left his office, so that
he was entitled to all the rights and privileges that accrued to him by virtue of the
office held, including backwages. He was restored to his office ipso facto upon the
issuance of the clemency. The grant of backwages was justified to aford relief to
[the] petitioner who [was] innocent from the start and to make reparation for what
he [had] sufered as a result of his unjust dismissal from the service. [63]
However, in Balingasan, finding that petitioners therein indeed participated in the
unlawful mass actions for which they were similarly meted suspension, the Court
opined that they were not completely exonerated of the charges against them. They
were denied back salaries because they had given ground for their suspension. This
means that being found liable for a lesser ofense is not equivalent to exoneration
from the original complaint against the concerned public officer or
employee. Balingasan referred to the earlier case of Yacia vs. City of Baguio,[64] in
which this Court denied the claim of an employee for backwages for the period
during which he was not allowed to work because of the execution of the CSC
decision dismissing him for dishonesty, even though, on appeal, his penalty was
reduced to a fine equivalent to six months pay.
Based on the above premises, petitioners demand for backwages cannot be
granted, for they had given cause for their suspension -- their unjustified
abandonment of classes to the prejudice of their students. Although they were
eventually found guilty only of conduct prejudicial to the best interest of the service,
and not grave misconduct or other ofense warranting their dismissal from the
service, they were not fully innocent of the charges against them.
We find the case of Petitioner Jacinto diferent, however. The Civil Service
Commission found her culpable only of violation of reasonable office rules and
regulations, for not having asked permission from school authorities to leave the
school premises and seek medical attention and for not filing an application for sick
leave for approval by the school authorities. There was no proof that she joined the
mass actions which caused prejudice to the school system. In Balingasan, this
Court, after finding that Rodolfo Mariano was not involved in the mass actions but

was absent because he attended the wake and burial of his grandmother in Ilocos
Sur without however the benefit of an approved leave of absence, held that [t]o
deny petitioner Mariano his back wages during his suspension would be tantamount
to punishing him after his exoneration from the charges which caused his dismissal
from the service, i.e. participation in the unlawful mass actions.Therefore, in line
with Balingasan, we likewise grant back salaries to Petitioner Jacinto who did not
join the illegal activity.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED and the
assailed Decision of the Court of Appeals is hereby AFFIRMED with the modification
that Petitioner Merlinda Jacinto is granted backwages, without deduction or
qualification, from the time she was suspended until her actual reinstatement, the
total of which, consistent with prevailing jurisprudence, [65]should not exceed five
years.
SO ORDERED.
Regalado, Davide, Jr., Romero,
Mendoza, and Francisco, JJ., concur.
Narvasa, C.J., on official leave.

Bellosillo,

Melo,

Puno,

Vitug,

Kapunan,

EN BANC
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 efect 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-inrank 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 afected 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 afected 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
9
intervention. 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 afected 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.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Narvasa, J., took no part.