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[G.R. No. 130214.

August 9, 1999] positions was Electrical Engineer V, which required a


Professional Electrical Engineer to fill it up and which
ISMAEL A. MATHAY, JR., petitioner, vs. CIVIL became the subject of a heated competition by two
SERVICE COMMISSION, respondent. licensed professional electrical engineers,
TABERNILLA and Jose I. Enriquez (hereafter
DECISION ENRIQUEZ). The former was an Engineer II, and the
latter was an Electrical Engineer III of the existing
DAVIDE, JR., C.J.:
Electrical Division under the City Fire Department,
Petitioner Ismael A. Mathay, Jr. (hereafter which was previously part of the Quezon City
MATHAY), Mayor of Quezon City, seeks the Government but which was later transferred to the
nullification of the resolutions of the Civil Service Bureau of Fire Protection, Quezon City Fire
Commission (CSC) recalling his appointment of Station. Conformably to the long existing city policy of
Olegario S. Tabernilla (hereafter TABERNILLA) as providing preferential consideration to Quezon City
Electrical Engineer V in the city government; and residents in the filling up of positions in the city office,
consequently, the reversal of the Resolutions of the the Personnel Selection Board of the city government
Court of Appeals of (1) 16 July 1997 denying due recommended the appointment of TABERNILLA, who
course and dismissing the petition had in his favor the advantage of being a Quezon City
for certiorari docketed as CA-G.R. No. 44431, and (2) resident.
12 August 1997 denying the motion for reconsideration.
On 22 August 1994, MATHAY extended to
The antecedent facts follow: TABERNILLA a permanent appointment, which was
approved on 15 September 1994 by the CSC Regional
On 26 November 1992, the Quezon City Council Field Office Acting Director II, Ligaya I. Caya.
enacted City Ordinance No. SP-33, S. 92, creating an [1]
TABERNILLA thereafter took his oath of office and
Electrical Division under the Engineering Department assumed the duties of his new position.
with thirty-six new plantilla positions to complement
the staffing requirements. One of those newly created
ENRIQUEZ disputed the promotional appointment EXPERIENCE: 4 years in position/s involving
before the CSC, claiming it was issued in clear violation management and supervision.
of CSC MC No. 42, s. 1991, which prescribes a
Bachelors Degree in Engineering as the educational The records clearly show that Tabernilla has not
requirement for the service-wide position of Engineer obtained any bachelors degree in engineering. This is
V. TABERNILLA, a mere Associate Electrical Engineer even reflected in the evaluation sheet for the position of
and not a holder of a Bachelors Degree, clearly failed to Engineer V, which was submitted by Mayor Mathay. It
meet the qualifications of the position and, therefore, appears in said evaluation sheet that Tabernilla is only a
could not be validly appointed thereto. graduate of Associate in Electrical Engineering. Thus,
he was not qualified for appointment to the position of
Requested to comment on the protest, MATHAY Electrical Engineer V.
maintained that TABERNILLAs assumption of the
position effective 1 October 1994 mooted the protest, WHEREFORE, the approval of the appointment of
adding that his appointee met the minimum Olegario S. Tabernilla as Engineer V dated August 22,
requirements of the position as specified in the City 1994, is hereby recalled and revoked.
Ordinance and existing hiring policies.
Ligaya Caya, Acting Field Officer is hereby directed to
In its Resolution No. 95-1218 dated 10 January explain in writing within five (5) days from receipt
1995[2] the CSC recalled and revoked the appointment of hereof why she approved Tabernillas appointment under
TABERNILLA; thus: permanent status although he does not meet the
qualification requirements.
After a careful review of the records, the Commission
finds the appointment issued to Tabernilla not in order. MATHAY moved for the reconsideration[3] of the
said Resolution, alleging that the Ordinance which was
The requirements prescribed by the qualification the law that created the office unequivocally specified a
standard for the position of Engineer V are as follows: Professional Electrical Engineer as its only requirement;
hence, the appointee needed only to comply
EDUCATION: Bachelors degree in Engineering therewith. While conceding that the appointment in
relevant to the job.
local government units are subject to civil service laws, In Resolution 95-1743[7] dated 9 March 1995, the
rules and regulations, MATHAY averred that such CSC denied the motion for reconsideration. It elucidated
truism cannot override the right of the appointing power that under Sections 76, 77 and 78 of R.A. No. 7160,
to choose his appointee, considering that the power of otherwise known as the Local Government Code of
appointment is essentially discretionary.[4] MATHAY 1991, the CSC has the power to determine the
further argued that TABERNILLAs title to the office qualification standards for the various positions in the
became complete with the confirmation by the CSC local government and review whether the appointments
Regional Field Office of TABERNILLAs appointment meet these standards. The qualification standards for
and his subsequent taking of the oath of office and new offices, which local governments have the authority
assumption of duties. TABERNILLA then acquired a to create, must not be lower than those prescribed by the
legal right which could not be taken away from him CSC. Under existing civil service laws and rules, an
either by revocation of the appointment or by removal appointee to Engineer V must possess a Bachelors
except for cause and with previous notice and hearing. Degree in Engineering. TABERNILLA certainly failed
[5]
MATHAY then intimated that TABERNILLA was not to qualify for the position. The fact that he met all the
notified of the protest, nor was a hearing conducted requirements for admission to Electrical Engineering
thereon. Board Examination as provided for under R.A. No. 184,
and passed the said examination does not mean
MATHAY thereafter filed a supplemental motion compliance with the prescribed qualification standards.
manifesting that under Republic Act. No. 184, [6] the
educational requirement for admission to the Electrical On 7 September 1995, TABERNILLA filed his own
Engineering Board Examinations is only two years of petition praying for the review of, and second hard look
resident collegiate engineering training. Since on, Resolutions Nos. 95-0218 and 95-1743.
TABERNILLA completed the two-year Associate in
Electrical Engineering course and passed the board On 13 June 1996, the CSC issued Resolution No.
examinations, he was qualified for the contested 963779[8] denying the petition, which it treated as a
position. motion for reconsideration. It ratiocinated that
TABERNILLA had no legal personality to file such a
pleading because under MC 38, s. 93, Part I(3), a
[r]equest for reconsideration of action taken by the CSC The Court of Appeals, however, dismissed the
Office on appointments shall always be made by the petition in a Resolution[10] promulgated on 16 July 1997
appointing officer. Besides, the allegations in the said for being the wrong remedy and for being time-barred.
petition were not meritorious. It ruled that the petition for certiorari filed nineteen
days after receipt of Resolution No. 97-2545 could not
On 25 July 1996, MATHAY filed a petition with the be a substitute for a lost appeal.
CSC praying for the review and reconsideration of the
three adverse Resolutions thus far issued, and reiterating In his motion for reconsideration, MATHAY argued
therein the arguments adduced in the first motion for that what was brought to fore in his petition
reconsideration. for certiorari was an error of jurisdiction in that the
CSC had no jurisdiction or authority to revoke or cancel
The petition obtained a similar unpropitious fate an approved and completed appointment to a civil
with the CSCs denial of the same per Resolution No. service position. Hence, Rule 65 of the Rules of Court,
972545[9] dated 14 April 1997 on the grounds that (1) the not Supreme Court Administrative Circular No. I-95,
petition was in the nature of a second motion for applied.
reconsideration, which was not allowed pursuant to
Section 9 of the Uniform Rules of Procedures in the Unimpressed, the Court of Appeals denied the
Conduct of Administrative Investigations, as only one motion for reconsideration in a
motion for reconsideration [could] be entertained; and Resolution promulgated on 12 August 1997, adverting
[11]

(2) it was filed late. to the same reasons relied upon in dismissing the
petition.Furthermore, it held that MATHAY was
Undaunted, MATHAY filed before the Court of precluded from raising the question of jurisdiction, since
Appeals on 17 June 1997 a petition for certiorari under he failed to submit the same as an issue in the
Rule 65 of the Revised Rules of Court contending that proceedings before the CSC.
the CSC acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or MATHAY now posits in this petition for review
excess of jurisdiction in issuing Resolution Nos. 95- on certiorari under Rule 45 of the 1997 Rules of Civil
0218, 95-1743, 96-3779, and 97-2545. Procedure that the Court of Appeals committed gross
errors of law in holding that (1) his petition revoking the appointment of TABERNILLA.Petitioner
for certiorari was not the proper remedy and could not received a copy of the former Resolution on 4 April
be a substitute for appeal; (2) said petition was time- 1995. At the time, judgments or final orders of the CSC
barred; (3) the CSC had jurisdiction to recall and revoke were unappealable.[12] It was only on 1 June 1995 that
a completed appointment; and (4) petitioner did not Revised Administrative Circular No. 1-95 took
raise the question of jurisdiction in the proceedings effect. That Circular provides that judgments or final
before the CSC such that he was guilty of laches and orders of quasi-judicial agencies, like the CSC, may be
estoppel. appealed to the Court of Appeals within fifteen days
from notice thereof. Hence, before that date, judgments
The CSC, through the Office of the Solicitor or final orders of the CSC were subject only to
General, remains steadfast in its view that it committed the certiorari jurisdiction of this Court.[13] Section 7,
no error of jurisdiction, as it was merely enforcing its Subdivision A, Article IX of the Constitution provides:
revisory power over a subordinate when it reversed the
erroneous determination by the Regional Field Office of Unless otherwise provided by this Constitution or by
TABERNILLAs qualification. The CSC now proposes law, any decision, order, or ruling of each Commission
that the Quezon City ordinance was an ultra vires act, may be brought to the Supreme Court by certiorari by
considering that the same prescribed a qualification the aggrieved party within thirty days from receipt of a
standard lower than that set for the position, and, hence, copy thereof.
fell short of the injunction of Section 78 of R.A. No.
7160 that all matters pertinent to human resources and The remedy, therefore, of petitioner was to file with this
development in local government units should be Court a special civil action for certiorari within thirty
governed by civil service laws. days from 4 April 1995. But he failed to do so; thus, the
challenged resolutions became final.
The instant petition must fail.
Notwithstanding the finality of the aforementioned
It must be recalled that in its Resolution of 9 March resolutions, TABERNILLA filed on 7 September 1995 a
1995 the CSC denied petitioners motion for the petition before the CSC for the review of said
reconsideration of its Resolution of 10 January 1995 resolutions. As correctly held by the CSC, the said
petition, which was in fact a motion for reconsideration, instances, only one petition for reconsideration shall be
would not prosper because under Part I(3) of entertained. Even assuming that a second motion for
Memorandum Circular No. 38, Series of 1993, only the reconsideration was allowed by the Rules, MATHAYs
appointing officer, in this case MATHAY, can request petition would still be met with denial because it was
reconsideration of actions taken by the CSC on filed more than a year after his receipt of the resolution
appointments. Besides, the said petition was filed long denying his first motion for reconsideration.
after the resolutions sought to be reconsidered became
final. As earlier discussed, the Resolutions of 10 January
and 9 March 1995 had already attained finality. This
But still, on 25 July 1996, or more than a month Court, therefore, finds no necessity to pass upon the
after the issuance of the resolution denying timeliness or propriety of the petition forcertiorari filed
TABERNILLAs motion for reconsideration, MATHAY by MATHAY before the Court of Appeals on 17 June
filed with the CSC a petition for the review and 1997, or after more than two years from the date the
reconsideration of the three resolutions thus far said resolutions became final.
issued. This petition was correctly treated by the CSC as
a second motion for reconsideration, it having been filed Nevertheless, even granting for the sake of
with the same body that issued the assailed resolutions, argument that the questioned resolutions were not yet
coupled with the fact that it was a rehash of the final and that MATHAYs second motion for
arguments raised in the first motion for reconsideration was allowed and seasonably filed, the
reconsideration. As such, the same could not be petition for certiorari instituted before the Court of
considered because under Section 9 of the Uniform Appeals had to be dismissed just the same. The special
Rules of Procedure in the Conduct of Administrative civil action for certiorari under Rule 65 of the Rules of
Investigations, which is applicable to protests or Court will lie only if there is no appeal or any plain,
questions involving the issuance of appointments, only speedy or adequate remedy in the ordinary course of
one motion for reconsideration shall be entertained. law.[14] In this case, after the denial of MATHAYs second
Section 17, Rule VI of the Omnibus Rules motion for reconsideration, appeal was available as a
Implementing Book V of Executive Order No. 292 and remedy. As earlier mentioned, Revised Administrative
Other Pertinent Civil Service Laws also provides: In all Circular No. 1-95, which took effect on 1 June 1995,
provides for an appeal to the Court of Appeals from the administrative cases instituted before it directly or on
judgments, final orders or resolutions of the Civil appeal, including contested appointments, and review
Service Commission.And Section 4 thereof mandates decisions and actions of its agencies and of the
that the appeal be taken within fifteen days from notice agencies attached to it. Moreover, Section 20, Rule VI
of the denial of the motion for reconsideration duly filed of the Omnibus Rules Implementing Book V of
in accordance with the governing law of the court or Executive Order No. 292 and Other Pertinent Civil
agency a quo. Here, MATHAY filed his petition before Service Laws provides that notwithstanding the initial
the Court of Appeals on 17 June 1997, or nineteen days approval of an appointment, the same may be recalled
after his receipt of the resolution denying his second for [v]iolation of other existing Civil Service laws, rules
motion for reconsideration. As held in cases too and regulations. As held in Debulgado v. Civil Service
numerous to mention, a special civil action Commission,[16] the CSC is empowered to take
for certiorari cannot be availed of as a substitute for a appropriate action on all appointments and other
lost or lapsed remedy of appeal.[15] personnel actions and that such power includes the
authority to recall an appointment initially approved in
The petitioner asseverates, however, that the said disregard of applicable provisions of Civil Service law
resolutions were void and were issued in violation of and regulations.
due process; hence, they could never become final, and
they could be attacked directly or collaterally even after Accordingly, it cannot be said that the CSC did not
the time of appeal or review has lapsed. According to have jurisdiction or gravely abused its discretion in
him, the CSC had no jurisdiction or authority to revoke recalling the appointment of TABERNILLA, which was
or cancel an appointment to a civil service position after issued in violation of existing civil service rules
its Regional Office had approved the same and the prescribing a Bachelors Degree in Engineering as one of
appointee had assumed the new position. the minimum qualifications for the questioned position.

We cannot subscribe to petitioners theory. Under Anent petitioners imputation to the CSC of violation
Section 12 (11) of Book V of Executive Order No. 292, of due process, the same does not hold water. What was
otherwise known as the Administrative Code of 1987, lodged before the Commission was not a disciplinary
the CSC has the power to [h]ear and decide case wherein petitioner or TABERNILLA should have
been afforded an opportunity to be heard. As ruled WHEREFORE, the present petition is
in Debulgado,[17] the CSC, in approving or disapproving DISMISSED. The challenged resolutions of the Civil
an appointment, only examines the conformity of the Service Commission are hereby AFFIRMED.
appointment with applicable provisions of law and
whether the appointee possesses the minimum SO ORDERED.
qualifications and none of the disqualifications. At any
rate, petitioner was requested to comment on the Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
protest; and he did file comment and, later, a motion for Kapunan, Mendoza, Panganiban, Quisumbing,
reconsideration of the revocation of the initially Purisima, Buena, Gonzaga-Reyes, and Ynares-
approved appointment. Santiago, JJ., concur.

Finally, petitioner fears that if the CSC resolution Pardo, J., no part. Close relation to a party.
recalling the appointment made by MATHAY is upheld,
it would throw out of job a civil service employee who
had rendered more than forty years of satisfactory
service for the Government, all because he relied on the
presumption that the Acting Regional Director regularly
performed her official duty.

Petitioners apprehension is without basis. Section


19, Rule VI of the Omnibus Rules Implementing Book
G.R. Nos. 79690-707 April 27, 1988
V of E.O. No. 292, as well as Sections 43 and 48 of the
Uniform Rules of Procedure in the Conduct of ENRIQUE A. ZALDIVAR, petitioner,
Administrative Investigations, specifically provides that vs.
in case the protest is finally resolved against the THE HONORABLE SANDIGANBAYAN AND HONORABLE
RAUL M. GONZALEZ, CLAIMING TO BE AND ACTING AS
protestee, his appointment shall become ineffective and TANODBAYAN-OMBUDSMAN UNDER THE 1987
he shall be reverted to his former position. CONSTITUTION, respondents.
G.R. No. L-80578 April 27, 1988 Cases Nos. 12159 to 12161, and 12163 to 12177
insofar as petitioner Enrique A. Zaldivar is
ENRIQUE A. ZALDIVAR, petitioner, concerned and from hearing and resolving the
vs. special prosecutor's motion to suspend (Annex J)
HON. RAUL M. GONZALEZ, claiming to be and acting as and thereafter, final judgment be rendered:
Tanodbayan-Ombudsman under the 1987
Constitution, respondent. (1) ordering that the amended informations in the
above-mentioned crimininal cases be or issuing a
Francisco Carreon and Nestor C. Lumba for petitioner. writ of mandamus commanding and ordering the
respondent Sandiganbayan to do so and, in
The Solicitor General for respondent. consequence, prohibiting and restraining the
respondent Sandigan-bayan from proceeding to
hear and try the abovementioned criminal cases
or making the temporary preliminary injunction
PER CURIAM: permanent;

In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and (2) declaring the acts of respondent Gonzalez as
mandamus under Rule 65," petitioner Enrique A. Zaldivar, "Tanodbayan-Ombudsman" after 2 February 1987
governor of the province of Antique, sought to restrain the relating to these cases as anullity and without
Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding legal effect, particularly, the promulgation of
with the prosecution and hearing of Criminal Cases Nos. 12159 to Tanodbayan resolution of 5 February 1987, the
12161 and 12163-12177 on the ground thatsaid cases were filed filing of the original informations on 3 March 1987
by said Tanodbayan without legal and constitutional authority, and the amended ones on 4 June 1987, and the
since under the 1987 Constitution which took effect on February filing of the Motion for Suspension Pendente Lite.
2, 1987, it is only the Ombudsman (not the present or incumbent
Tanodbayan) who has the authority to file cases with the PETITIONER prays for such other and further
Sandiganbayan. The complete prayer of the petition reads: relief as may be deemed proper in the premises,
with costs against the respondents.
WHEREFORE, it is respectfully prayed that
pending the final disposition of this petition or until Manila, Philippines, September 9, 1987.
further orders of the Honorable Court, a writ of
preliminary injunction issue upon the filing of a (pp. 45-47, Rollo)
bond in such amount as may be fixed by the
Honorable Court, restraining the Honorable In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially
Sandiganbayan from hearing and trying Criminal the same ground as the first petition, prays that Tanodbayan
Gonzalez be restrained from conducting preliminary he conducted in TBP CASE NO. 87-01304, or
investigations and similar cases with the Sandiganbayan. The annulling the criminal Information in the said case
prayer reads: which may, in the meantime, have already been
filed;
WHEREFORE, it is respectfully prayed that
pending the final disposition of this petition or until (3) Prohibiting and restraining the respondent
further orders of this Honorable court, a writ of from conducting preliminary investigations in, and
preliminary injunction issue restraining the filing criminal informations for, such other
respondent from further acting in TBP CASE NO. complaints/cases now pending or which may
87-01304 and, particularly, from filing the criminal hereafter be filed against petitioner with the Office
Information consequent thereof-, and from of the respondent.
conducting preliminary investigations in, and filing
criminal informations for, such other complaints/ PETITIONER further prays for such other and
cases now pending or which may hereafter be further reliefs as may be deemed proper in the
filed against petitioner with the Office of the proper with costs against the respondent.
respondent.
Manila, Philippines, November 18,1987
It is likewise prayed that the present petition be
consolidated with G.R.L-Nos. 79690-79707. (pp. 24-25, Rollo)

After proper proceedings, it is prayed that final We issued the restraining orders prayed for.
judgment be rendered annulling the acts of
respondent Gonzalez as "Tanodbayan- After a study of the petitions, We have decided to give due course
Ombudsman" after 2 February 1987 relating to to the same; to consider the comments of the Solicitor-General
the investigation of complaints against petitioner, and of Tanodbayan Gonzalez as their Answers thereto; and to
particularly: forthwith decide the petitions.

(1) Annulling, for absolute want of jurisdiction, the We find the petitions impressed with merit.
preliminary investigation conducted, and the
Resolution rendered, by respondent in TBP CASE Under the 1987 Constitution, the Ombudsman (as distinguished
NO. 87-01304; from theincumbent Tanodbayan) is charged with the duty to:

(2) Prohibiting and restraining the respondent Investigate on its own, or on complaint by any
from filing any criminal Information as a person, any act or omission of any public official,
consequence of the void preliminary investigation employee, office or agency, when such act or
commission appears to be illegal, unjust, It is not correct either to suppose that the Special Prosecutor
improper, or inefficient (Sec. 13, par. 1) remains the Ombudsman as long as he has not been replaced,
for the fact is that he has never been the Ombudsman. The Office
The Constitution likewise provides that: of the Ombudsman is a new creation under Article XI of the
Constitution different from the Office of the Tanodbayan created
The existing Tanodbayan shall hereafter be known under PD 1607 although concededly some of the powers of the
as the office of the Special Prosecutor. It shall two offices are Identical or similar. The Special Prosecutor cannot
continue to function and exercise its powers as plead that he has a right to hold over the position of Ombudsman
now or hereafter may be provided by law, as he has never held it in the first place.
contemptexcept those conferred on the office of
the Ombudsman created under this Constitution. WHEREFORE, We hereby:
(Art. XI, Section 7) (Emphasis ours).
(1) GRANT the consolidated petitions filed by
Now then, inasmuch as the aforementioned duty is given to the petitioner Zaldivar and hereby NULLIFY the
Ombudsman, the incumbent Tanodbayan (caged Special criminal informations filed against him in the
Prosecutor under the 1987 constitution and who is supposed to Sandiganbayan; and
retain powers and duties NOT GIVEN to the Ombudsman) is
clearly without authority to conduct preliminary investigations and (2) ORDER respondent Raul Gonzalez to cease
to direct the filing of criminal cases with the Sandiganbayan, and desist from conducting investigations and
except upon orders of the Ombudsman. This right to do so was filing criminal cases with the Sandiganbayan or
lost effective February 2, 1987. From that time, he has been otherwise exercising the powers and function of
divested of such authority. the Ombudsman.

Under the present Constitution, the Special Prosecutor (Raul SO ORDERED.


Gonzalez) is a mere subordinate of the Tanodbayan
Ombudsman) and can investigate and prosecute cases only upon Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
the latter's authority or orders. The Special Prosecutor cannot Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, and
initiate the prosecution of cases but can only conduct the same if Grio-Aquino, JJ., concur.
instructed to do so by the Ombudsman. Even his original power
to issue subpoena, which he still claims under Section 10(d) of
PD 1630, is now deemed transferred to the Ombudsman, who
may, however, retain it in the Spedal Prosecutor in connection
with the cases he is ordered to investigate.
Separate Opinions
SARMIENTO, J., concurring:

SARMIENTO, J., concurring: I maintain, however, consistent with my dissent in De Leon vs.
Esguerra, G.R. No. 78059, that the 1987 Constitution took effect
I maintain, however, consistent with my dissent in De Leon vs. on February 11, 1987.
Esguerra, G.R. No. 78059, that the 1987 Constitution took effect
on February 11, 1987.

Separate Opinions