LAPINID V.

CSC (1991)

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.
The Facts:

Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the
position of Terminal Supervisor at the Manila International Container Terminal on
October 1, 1988. This appointment was protested on December 15, 1988, by
private respondent Juanito Junsay, who reiterated his earlier representations with
the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the
Placement Committee dated May 3, 1988. He contended that he should be
designated terminal supervisor, or to any other comparable position, in view of his
preferential right thereto.
After a careful review of the records of the case, the Commission finds the appeal
meritorious. It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have
an edge over that of protestees Lapinid (75) and Dulfo (78).

Foregoing premises considered, it is directed that Appellants Juanito Junsay and

Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees
Renato Lapinid and Antonio Dulfo respectively who may be considered for
appointment to any position commensurate and suitable to their qualifications, and
that the Commission be notified within ten (10) days of the implementation hereof.

Decision:

Only recently, in Gaspar v. Court of Appeals,[2] this Court said:

The only function of the Civil Service Commission in cases of this nature, according to Luego, is to
review the appointment in the light of the requirements of the Civil ServiceLaw, and when it finds the
appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice
but to attest to the appointment. Luego finally points out that the recognition by the Commission that both
the appointee and the protestant are qualified for the position in controversy renders it functus officio in the
case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it
has no authority to revoke the appointment simply because it considers another employee to be better
qualified for that would constitute an encroachment on the discretion vested in the appointing authority.

The determination of who among several candidates for a vacant position has the
best qualifications is vested in the sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission. Every particular job in an office calls for both
 formal and informal qualifications. Formal qualifications such as age, number of academic units in
a certain course, seminars attended, etc., may be valuable but so are such intangibles
as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future,
and best interests of the service. Given the demands of a certain job, who can do it best should be left
to the Head of the Office concerned provided the legal requirements for the office are satisfied.
The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this
regard

Appointment is a highly discretionary act that even this Court cannot compel. While
the act of appointment may in proper cases be the subject of mandamus, the
selection itself of the appointee - taking into account the totality of his qualifications,
including those abstract qualities that define his personality - is the prerogative of
the appointing authority. This is a matter addressed only to the discretion of the
appointing authority. It is a political question that the Civil Service Commission has
no power to review under the Constitution and the applicable laws.
WHEREFORE, the petition is GRANTED. The Resolutions of the
respondent Civil ServiceCommission dated February 14, 1990, May 25, 1990,
August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The
temporary restraining order dated December 13, 1990, is made PERMANENT. No
costs.

SANTIAGO V. CSC (1989)

The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice
as to who is best qualified for the position (Ocampo vs. Subido, L-28344, August 27, 1976, 72 SCRA
443). To apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing
power contrary to the policy of the law that among those qualified and eligible, the appointing
authority is granted discretion and prerogative of choice of the one he deems fit for appointment
(Pineda vs. Claudio, L-29661, May 13, 1969, 28 SCRA 34).

One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy
but it does not necessarily follow that he and no one else can be appointed. The rule neither grants
a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote
such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83-343:

The Facts:

On 18 November 1986, then Customs Commissioner Wigberto E. Tanada extended

a permanent promotional appointment, as Customs Collector III, to petitioner SANTIAGO, Jr. That
appointment was approved by The Civil Service Commission (CSC), National Capital Region
Office. Prior thereto, SANTIAGO held the position of Customs Collector I. On 26 November 1986,
respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board
(the Board, for short) against SANTIAGO's promotional appointment mainly on the ground that he was
next-in-rank to the position of Collector of Customs III.
Decision:
True, the Commission is empowered to approve all appointments, whether original or promotional,
to positions in the civil service and disapprove those where the appointees do not possess the
appropriate eligibility or required qualification (paragraph (h), Section 9, P.D. No. 807). However,
consistent with our ruling in Luego vs. CSC (L-69137, 5 August 1986, 143 SCRA 327), "all
the commission is actually allowed to do is check whether or not the appointee possesses
the appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion is permitted by law to be employed by
the Commission when it acts on, or as the decree says, "approves" or "disapproves" an appointment made
by the proper authorities. x x x To be sure, it has no authority to revoke the said appointment simply
because it believed that the private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely (in the appointing authority)." All told, we fail to see any
reason to disturb SANTIAGO's promotional appointment.

The minimum qualifications and the standard of merit and fitness have been adequately satisfied as found
by the appointing authority. The latter has not been convincingly shown to have committed any grave
abuse of discretion.

Having arrived at the foregoing conclusion, we find no necessity to delve into the other issues raised.

WHEREFORE, Resolution No. 87-554 of the Civil Service Commission is SET ASIDE and petitioner's
promotional appointment as Customs Collector Ill is hereby UPHELD. The Temporary Restraining
Order heretofore issued, enjoining respondents from enforcing CSC Resolution No. 87-554, is hereby made
permanent.

ECRETARY OSCAR ORBOS OF THE DEPARTMENT OF TRANSPORTATION AND

COMMUNICATIONS,petitioner,
vs.
CIVIL SERVICE COMMISSION and NERIO MADARANG, respondents.

The Solicitor General for petitioners.

Jose C. Cimano for private respondent.

GANCAYCO, J:

Once again the extent of the authority of the Civil Service Commission (CSC) to pass upon
contested appointments is brought into focus in this petition. The appearance of the Solicitor General
on behalf of the petitioner is also questioned.

In the course of the reorganization of the Department of Transportation and Communications

(DOTC), Guido C. Agon and Alfonso Magnayon were appointed to the positions of Head
Telecommunications Engineer, range 74.

Nerio Madarang who was also appointed to the position of Supervising Telecommunications
Engineer, range 12, questioned the appointments of Agon and Magnayon by filing an appeal with
the Reorganization Appeals Board of the DOTC composed of Moises S. Tolentino, Jr. of the Office
of the Secretary, as Chairman and Assistant Secretary Rosauro V. Sibal and Graciano L. Sitchon of
the Office of the Secretary, as members. In a resolution dated January 9, 1989 the said
Reorganization Appeals Board dismissed Madarang's appeal for lack of merit. Hence, he appealed
to the public respondent Civil Service Commission (CSC)

In its resolution dated August 29, 1989, respondent CSC revoked the appointments of Agon and
Magnayon for the contested positions and directed the appointment of Madarang to the said position
of Heads Telecommunications Engineer. 1 DOTC Assistant Secretary Sibal sought a reconsideration of
2
the said resolution of the CSC but this was denied in a resolution dated November 2, 1989.

On November 21, 1989, Assistant Secretary Sibal filed a manifestation with the CSC stating:

The Telecommunications Office through the undersigned, hereby manifests that we

received the CSC resolution in CSC Case No. 393 on November 12, 1989 and in
compliance thereto, we will convene our Selection and Promotion Board to deliberate
on the position of Head Telecommunications Engineer (reclassified to Engineer IV
pursuant to National Compensation Circular No. 58 effective July 1, 1989) with
qualified candidates including appellant Nerio Madarang.3

In a letter dated November 27, 1989, respondent Madarang requested the CSC to take appropriate
action by implementing its resolutions dated August 29, 1989 and November 2, 1989.

In an order dated December 19, 1989, the CSC directed the immediate implementation of its
aforementioned resolution insofar as it concerned the appointment of Madarang. 4

Agon and Magnayon filed their separate motions for reconsideration of the aforestated resolutions of
the CSC but these were denied by the said commission in a resolution dated January 19, 1990.

Hence, this petition for certiorari with prayer for a writ of preliminary injunction or restraining order
which was filed by the Solicitor General in behalf of petitioner. On March 29, 1990, the Court
required the respondents to comment on the petition within ten (10) days from notice and issued a
restraining order enjoining the CSC from enforcing its questioned resolutions until further orders.

The sole issue in this case is whether or not the CSC acted in excess of its jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction when it ordered the appointment of Nerio
Madarang to the contested position.

While petitioner does not question the aforestated resolutions of the CSC insofar as it disapproved
the appointments of Agon and Magnayon to the positions of Head Telecommunications Engineer,
petitioner maintains that as the appointing authority, he has the right of choice and discretion to
appoint the persons whom he deems fit to the position to be filled. 5 Petitioner emphasizes that when
the CSC denied his motion for reconsideration in a resolution dated November 2, 1989, Assistant
Secretary Sibal informed the CSC through a manifestation that the DOTC Selection and Promotions
Board will be convened to deliberate on the position of Head Telecommunications Engineer, taking into
consideration qualified candidates including Nerio Madarang. Nevertheless, the CSC stood pat on its
resolution directing the appointment of Nerio Madarang to the contested position.

On the other hand, the CSC contends that it was properly exercising a constitutional and legal duty
to enforce the merit and fitness principle in the appointment of civil servants and to uphold their
equally guaranteed right to be appointed to similar or comparable positions in the reorganized
agency consistent with applicable law and issuances of competent authorities. 6

Invoking the following provisions of the Constitution:

 Section 3 (Article IX [B]). — The Civil Service Commission, as the central personnel
agency of the Government, shall establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy
in the civil service. It shall strengthen the writ and reward system, integrate all human
resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel programs.' (Emphasis
supplied.);

Section 19, Book V of Executive Order No. 292 (The Administrative Code of 1987) which provides:

Section 19. Recruitment and Selection of Employees — (l) Opportunity for

government employment shall be open to all qualified citizens, and positive efforts
shall be exerted to attract the best qualified to enter the service. Employees shall be
selected on the basis of the fitness to perform the duties and assume the
responsibilities of the position.;

and Section 12 of the same Executive Order:

Sec. 12. — The Commission shall administer the Civil Service and shall have the
following powers and functions: (a) Administer and enforce the constitutional and
statutory provision of the said merit systems... (Emphasis supplied.)

respondent CSC argues that the primary objective of the CSC system is to promote and establish
professionalism by ensuring a high level of morale among the employees and officers in the career
civil service. Pursuant to this constitutional mandate, the CSC contends it should see to it that the
merit system is applied, enforced and implemented in personnel actions involving appointments
affecting all levels and ranks in the civil service at all times. 7

The Court finds the petition to be impressed with merit.

Paragraph H, Section 9 of Presidential Decree No. 807, otherwise known as the 'Civil Service
Decree of the Philippines," provides:

Section 9. Powers and Function of the Commission. —The Commission shall

administer the Civil Service and shall have the following powers and functions:

xxx xxx xxx

(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 effect immediately upon issue by the appointing authority if
the appointee assumes his duties immediately and shall remain effective 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 ineffective thirty days thereafter. (Emphasis supplied)
From the foregoing provision it is clear that the CSC has the power to approve or disapprove an
appointment and not the power to make the appointment itself or to direct that such appointment be
made by the appointing authority. The CSC can only inquire into the eligibility of the person chosen
to fill a vacant position and it finds the person qualified it must so attest. The duty of the CSC is to
attest appointments. 8 That function being discharged, its participation in the appointment process
ceases. 9

By the same token, should the CSC find that the appointee is not qualified for the position, it has the
duty to disapprove the appointment. Thereafter, the responsibility of appointing the qualified person
in lieu of the disqualified appointee rests upon the discretion of the appointing authority. The CSC
cannot encroach upon such discretion vested solely in the appointing authority.

This Court has pronounced in no uncertain terms that the CSC has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. The Court
likewise held that the CSC does not have the authority to direct the appointment of a substitute of its
choice. 10

Petitioner demonstrated his deference to the resolutions of the CSC disapproving the appointments
of Agon and Magnayon. However, in the implementation of said resolutions he decided to convene
the DOTC Selection and Promotions Board to deliberate on the person who should be appointed as
Head Telecommunications Engineer among qualified candidates including respondent Nerio
Madarang. Instead of acknowledging the authority of petitioner to exercise its discretion in the
appointment of a replacement, the CSC, in excess of its jurisdiction and with grave abuse of
discretion amounting to lack of jurisdiction, directed the appointment of Madarang as the substitute
of its choice. This act of the CSC must be struck down.

Private respondent Madarang, besides his comment, filed a motion to disqualify the Office of the
Solicitor General from appearing for petitioner and to cite petitioner in contempt of court for the filing
of the petition.

The Solicitor General is the lawyer of the government, its agencies and instrumentalities, and its
officials or agents including petitioner and public respondent. This is so provided under Presidential
Decree No. 478:

SECTION 1. Functions and Organization. — (1) The Office of the Solicitor General
shall represent the Government of the Philippines, its agencies and instrumentalities
and its officials and agents in any litigation, proceeding, investigation or matter
requiring the services of a lawyer. .... (Emphasis supplied.) 10-A

In the discharge of this task the Solicitor General must see to it that the best interest of the
government is upheld within the limits set by law. When confronted with a situation where one
government office takes an adverse position against another government agency, as in this case,
the Solicitor General should not refrain from performing his duty as the lawyer of the government. It
is incumbent upon him to present to the court what he considers would legally uphold the best
interest of the government although it may run counter to a client's position. 11 In such an instance the
government office adversely affected by the position taken by the Solicitor General, if it still believes in the
merit of its case, may appear in its own behalf through its legal personnel or representative.

In the present case, it appears that after the Solicitor General studied the issues he found merit in
the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to
represent the petitioner as he did by filing this petition. He cannot be disqualified from appearing for
the petitioner even if in so doing his representation runs against the interests of the CSC.
This is not the first time that the Office of the Solicitor General has taken a position adverse to his
clients like the CSC, the National Labor Relations Commission, among others, and even the People
of the Philippines. In such instances, the Solicitor General nevertheless manifests his opinion and
recommendation to the Court which is an invaluable aid in the disposition of the case. On some
occasions he begs leave to be excused from intervening in the case, more so, when the client had
already filed its own comment different from the stand of the Solicitor General or in a situation when
he finds the contention of a private party tenable as against that of the government or any of its
agencies. The Solicitor General has recommended the acquittal of the accused in appealed criminal
cases.

There are cases where a government agency declines the services of the Solicitor General or
otherwise fails or refuses to forward the papers of the case to him for appropriate action. The Court
finds and so holds that this practice should be stopped. To repeat, the Solicitor General is the lawyer
of the government, any of its agents and officials in any litigation, proceeding, investigation or matter
requiring the services of a lawyer. The exception is when such officials or agents are being charged
criminally or are being civilly sued for damages arising from a felony. 12 His services cannot be lightly
rejected, much less ignored by the office or officials concerned.

Indeed, the assistance of the Solicitor General should be welcomed by the parties. He should be
given full support and cooperation by any agency or official involved in litigation. He should be
enabled to faithfully discharge his duties and responsibilities as the government advocate. And he
should do no less for his clients. His burden of assisting in the fair and just administration of justice is
clear.

This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter
of fact, the Court appreciates the participation of the Solicitor General in many proceedings and his
continued fealty to his assigned task. He should not therefore desist from appearing before this
Court even in those cases he finds his opinion inconsistent with the Government or any of its agents
he is expected to represent. The Court must be advised of his position just as well.

Private respondent Madarang also seeks to hold petitioner in contempt of court on the ground that
the petition was filed in order to circumvent or obviate the dismissal of a similar petition in this Court
filed by Guido Agon and Alfonso Magnayon. The legal personality of the petitioner to file the petition
is also questioned on the ground it was Assistant Secretary Sibal and not the petitioner who issued
the contested appointments.

The petitioner denies this contention. He asserts that the petition was properly brought in his name
as head of the DOTC as what is in issue is the reorganization of the said department. The petitioner
does not dispute the disapproval of the appointments of Agon and Magnayon; he only disagrees with
the order of the CSC directing the appointment of Madarang to the contested position. The petitioner
also alleges that he was not aware of the existence of a separate petition filed in this Court by Agon
and Magnayon.

The Court finds the arguments and assertions of petitioner to be well taken.

It is true that the records of this Court show that there is such a case docketed as G.R. No. 92064
entitled "Guido Agon, et al., vs. CSC et al." which is a special civil action for certiorari with a prayer
for a writ of preliminary injunction. The petition was dismissed for late filing in a resolution dated
February 27, 1990.

On March 29, 1990 this Court denied with finality the motion for reconsideration filed by the said
petitioners there being no compelling reason to warrant the reversal of the questioned resolution.
Apparently, the disapproval of the appointments of Agon and Magnayon was the issue in said
petition. In the present petition as aforestated, petitioner yields to the disapproval of the appointment
of the two, but questions the authority of the CSC to direct the appointment of Madarang to the
contested position.

WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent CSC
dated August 29, 1989, November 2, 1989 and January 19, 1990 are hereby annulled insofar as
they direct the appointment of Nerio Madarang to the contested position. The petitioner is hereby
authorized to convene the DOTC Selection and Promotion Board to determine who shall replace
Guido Agon and Alfonso Magnayon to the contested position by considering all qualified candidates
including Nerio Madarang. The restraining order dated March 29, 1990 is hereby made permanent.
No costs.

SO ORDERED.

AUGUSTO L. GASPAR, petitioner,

vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and ZENAIDA F. LANTING, respondents.

(recit-ready version)

FACTS:

 Augusto L. Gaspar was revoked from his position as Administrative Officer II pursuant to a
resolution from the Civil Service Commission replacing him with Zenaida F. Lanting.
 Under the resolution, the CSC said that Zenaida F. Lanting has an edge over Gaspar in
education due to her master’s degree in Public Administration as compared to 36 academic units
in Business Administration course earned by Gaspar.

ISSUE:

W/N the Civil Service Commission is authorized to disapprove a permanent appointment on the ground
that another person is better qualified than the appointee and, on the basis of this finding, order his
replacement by the latter

RULING:

NO.

 The CSC has no authority to revoke the appointment simply because it considers another
employee to be better qualified for that would constitute an encroachment on the discretion
vested in the appointing authority.
 The determination of who among several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission
 Given the demands of a certain job, who can do it best should be left to the Head of the office
concerned provided the legal requirements for the office are satisfied. The Civil Service
Commission cannot substitute its judgment for that of the Head of Office in this regard.
  The respondent Commission acted beyond the scope of its authority and with grave abuse of
discretion in revoking the petitioner's appointment.

(longer, more comprehensive version)

FACTS:

 Augusto L. Gaspar seeks the setting aside of the Decision of the Civil Service Commission
(affirmed by the Court of Appeals), which revoked his appointment as Administrative Officer II of
the Parks Development Office, Manila, and directed the appointment of Zenaida F. Lanting as
such, in his stead.
 Gaspar was the Chief of the Security Section of the Parks Development Office of the City of
Manila when Executive Order No. 81-01 was issued by the Governor of the Metro Manila
Commission
 The Executive Order established a comprehensive position classification and pay plan for MMC
officers and employees, and contained a provision reclassifying Gaspar's position of Chief,
Security Section, to Administrative Officer II
 Zenaida F. Lanting, then Senior Accounting Clerk in the same Parks Development Office, filed
with the Merit Systems Board a protest against Gaspar's appointment as Administrative Officer II,
contending that she was better qualified for, and should have been named to, the office
 After due proceedings, the Merit Systems Board (MSB) revoked Gaspar's appointment and
directed Lanting's appointment to the office of Administrative Officer II
 The CSC ultimately affirmed the judgment of the MSB. In its resolution, the CSC said:

A comprehensive evaluation of the qualifications of the parties would show that while both are at
par in experience and training, Lanting has an edge over Gaspar in education. Her master’s
degree in Public Administration as compared to 36 academic units in Business Administration
course earned by Gaspar provide her with the required knowledge in management principles and
techniques as well as substantial preparation to assume higher duties and responsibilities taking
into account the supervisory nature of the position. It can therefore be concluded that Lanting is
better qualified and more competent for appointment as Administrative Officer II. Such being the
case, Lanting has better potentials to assume the duties and responsibilities of this contested
position.

 There is no intimation whatever that Gaspar is not qualified for the position of Administrative
Officer II but that, in the Commission's view, "Lanting has an edge over Gaspar in education" and
"has better potentials to assume the duties and responsibilities of .. (the) contested position."

Issue:

W/N the Civil Service Commission is authorized to disapprove a permanent appointment on the ground
that another person is better qualified than the appointee and, on the basis of this finding, order his
replacement by the latter

Ruling:

NO.
  The Court ruled that under the circumstances, and in light of the relevant legal provisions, "all the
Commission is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the
Commission when it acts on-or as the (Civil Service Decree says, 'approves' or 'disapproves' —
an appointment made by the proper authorities."

 The only function of the Civil Service Commission in cases of this nature, according to Luego v.
Civil Service Commission, and Felicula Tuozo, is to review the appointment in the light of the
requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other
legal requirements have been otherwise satisfied, it has no choice but to attest to the
appointment.

 The recognition by the Commission that both the appointee and the protestant are qualified for
the position in controversy renders it functus officio in the case and prevents it from acting further
thereon except to affirm the validity of the former's appointment; it has no authority to revoke
the appointment simply because it considers another employee to be better qualified for
that would constitute an encroachment on the discretion vested in the appointing
authority.

 The determination of who among several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission.

 Given the demands of a certain job, who can do it best should be left to the Head of the office
concerned provided the legal requirements for the office are satisfied. The Civil Service
Commission cannot substitute its judgment for that of the Head of Office in this regard.

 In the case at bar, therefore, the respondent Commission acted beyond the scope of its authority
and with grave abuse of discretion in revoking the petitioner's appointment and directing the
appointment in his stead of the private respondent.

Luego v. Civil Service Commission (G. R. No. L-69137)

Posted: August 10, 2011 in Case Digests, Political Law

FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor
Florentino Solon on 18 February 1983. The appointment was described as “permanent” but the Civil
Service Commission approved it as “temporary.” On 22 March 1984, the Civil Service Commission found
the private respondent better qualified than the petitioner for the contested position and accordingly
directed herein private respondent in place of petitioner’s position. The private respondent was so
appointed on 28 June 1984, by the new mayor; Mayor Ronald Duterte. The petitioner is now invoking
his earlier permanent appointment as well as to question the Civil Service Commission’s order and the
private respondent’s title.
ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the basis
of this finding, order his replacement by the latter?

HELD: The Supreme Court ruled in the negative. The Civil Service Commission is not empowered to
determine the kind or nature of the appointment extended by the appointing officer, its authority being
limited to approving or reviewing the appointment in the light of the requirements of the Civil Service
Law. When the appointee is qualified and the other legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in accordance with the Civil Service Laws. Hence, the Civil
Service Commission’s resolution is set aside.

FELIMON LUEGO, petitioner-appellant,

vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:

Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the
facts of this case may be briefly narrated as follows:

The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by
Mayor Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the
Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed
by the private respondent and another employee, and provided "there (was) no pending administrative
case against the appointee, no pending protest against the appointment nor any decision by competent
authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service Commission found the
private respondent better qualified than the petitioner for the contested position and, accordingly, directed
"that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative
Division, Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby
revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald
Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that
order and the private respondent's title.

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the
basis of this finding, order his replacement by the latter?

The Solicitor General, rather than face the question squarely, says the petitioner could be validly
replaced in the instant case because his appointment was temporary and therefore could be
withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the
petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from
his office without violation of the Constitution. 5
While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this
case. The argument begs the question. The appointment of the petitioner was not temporary but
permanent and was therefore protected by Constitution. The appointing authority indicated that it was
permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to
reverse him and call it temporary.

The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil Service
Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not
the appointment it sell And what made the approval temporary was the fact that it was made to depend
on the condition specified therein and on the verification of the qualifications of the appointee to the
position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing officer, its authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified
and authorizing the other legal requirements are satisfied, the Commission has no choice but to
attest to the appointment in accordance with the Civil Service Laws.

As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies
in the official vested by law with the appointing power and not the Civil Service
Commission. The Commissioner of Civil Service is not empowered to determine the
kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no
choice but to attest to the appointment. Under the Civil Service Law, Presidential
Decree No. 807, the Commissioner is not authorized to curtail the discretion of the
appointing official on the nature or kind of the appointment to be extended. 8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee
is qualified for the position to which he has been named. As we have repeatedly held, such
attestation is required of the Commissioner of Civil Service merely as a check to assure compliance
with Civil Service Laws. 9

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.

It is different where the Constitution or the law subjects the appointment to the approval of another
officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made
by the President of the Philippines had to be confirmed by that body and could not be issued or were
invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then
considered part of the appointing process, which was held complete only after such confirmation. 11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had
the power to refuse to concur with it even if the President's choice possessed all the qualifications
prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the
contrary, the Civil Service Commission is limited only to the non-discretionary authority of
determining whether or not the person appointed meets all the required conditions laid down by the
law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the
Civil Service Decree because it says the Commission has the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional to positions in the civil
service, except those 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)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the
Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment
made by the proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private
respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus
officio in the case and prevented it from acting further thereon except to affirm the validity of the
petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it
believed that the private respondent was better qualified for that would have constituted an encroachment
on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probably applying its own
Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that
"whenever there are two or more employees who are next-in-rank, preference shall be given to the
employee who is most competent and qualified and who has the appropriate civil service eligibility."
This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the
next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer
of present employees, reinstatement, re-employment, or appointment of outsiders who have the
appropriate eligibility. 13

There are apparently no political overtones in this case, which looks to be an honest contention
between two public functionaries who each sincerely claims to be entitled to the position in dispute.
This is gratifying for politics should never be permitted to interfere in the apolitical organization of the
Civil Service, which is supposed to serve all the people regardless of partisan considerations. This
political detachment will be impaired if the security of tenure clause in the Constitution is
emasculated and appointments in the Civil Service are revoked and changed at will to suit the
motivations and even the fancies of whatever party may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984,
is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his
permanent appointment thereto dated February 18, 1983. No costs.

SO ORDERED.
MEDARDO AG. CADIENTE, petitioner,
vs.
LUIS T. SANTOS, City Mayor of Davao City, MAXIMINO ASISTIDO, City Treasurer of Davao
City, FELIX N. PEPITO, City Auditor of Davao City, and ATTY. VICTOR CLAPANO, respondents.

ALAMPAY, J.:

Petition for review on certiorari of the decision of the Court of First Instance of Davao City, Branch I,
in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al." promulgated on August
23, 1972, which dismissed the petition for mandamus, quo warranto, with preliminary injunction filed
by herein petitioner.

On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as City
Legal Officer of Davao City. The appointment was duly attested to and/or approved as "permanent"
by the Civil Service Commission under Section 24(b) of R.A. 2260. On January 6, 1972, the new and
then incumbent City Mayor Luis T. Santos, herein respondent, sent a letter (Annex "H" to the
Petition, p. 43, Rollo) to the petitioner advising the latter that his services as City Legal Officer of
Davao City "are dispensed with effective upon receipt of said letter" on the ground that the position
of City Legal Officer was primarily confidential in nature. This was the opinion rendered by the City
Fiscal of Davao City on January 6, 1972, after being requested to submit his legal opinion on said
matter. Respondent City Mayor appointed respondent Atty. Victor Clapano as City Legal Officer on
January 6, 1972 to take effect on said date.

Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its decision
in its lst Indorsement dated March 2, 1972, therein holding that the termination, removal and/or
dismissal of petitioner is "without cause and without due process" and that the position of City Legal
Officer "is not included among those positions enumerated in Sec. 5 of R.A. 2260 as belonging to
the non-competitive service." Subsequently, on April 7, 1972, the City Council of Davao City passed
Resolution No. 210, series of 1972, therein considering and recognizing herein petitioner Atty.
Medardo Ag. Cadiente, as the rightful City Legal Officer of Davao City (Rollo, pp. 54-58). Despite
this resolution, the public respondents in this case who are the City Mayor, the City Treasurer, and
the City Auditor of Davao City, still declined and refused to recognize petitioner as the one entitled to
the disputed position of City Legal Officer of Davao City.

Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the Civil
Service Commission returned the appointment of respondent Clapano to respondent City Mayor with
the information that said office (Civil Service Commission) "overlooked the fact that the appointee
was more than 57 years old at the time of his appointment and, therefore, authority for his
appointment be first secured from the Office of the President pursuant to Section 6 of R.A. 728, as
reinforced by Section 5, Civil Service Rule IV, which states that "no person shall be appointed or
reinstated in the service if he is already 57 years of age, unless the President of the Philippines ...
determines that he possesses special qualifications and his services are needed.

Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No. 7571, for
mandamus, quo warranto with preliminary injunction against the herein respondents, praying therein
that: (a) respondent City Mayor be ordered to reinstate and/or allow him to continue performing his
duties and functions as City Legal Officer of Davao City; (b) the appointment of respondent Clapano
be declared illegal and invalid; and (c) respondents City Mayor, City Treasurer, and City Auditor be
ordered to pay him all his salaries, wages, allowances, emoluments an other benefits due him as
City Legal Officer from the time of his illegal dismissal until the termination of the suit. On August 23,
1972, the trial court rendered its decision dismissing the aforestated case, as it ruled that:

The positions of Municipal Attorney, Provincial Attorney and City Legal Officer are by
their very nature, primarily confidential, and therefore, belong to the non-competetive
service under paragraph 1, section 5, Republic Act 2260, as amended, because the
functions attached to the offices require the highest trust and confidence of the
appointing authority on the appointee....

The approval of, and attestation to the appointment of petitioner Cadiente as

permanent under Section 24(b) of R.A. 2260, as amended, by the Commissioner of
Civil Service did not make the appointment permanent and the position fall under the
competetive service. If, as the Court has found, the position is primarily confidential,
petitioner Cadiente held office at the pleasure of respondent Mayor and the position
belongs to the non-competitive service.

Motion for reconsideration of said decision having been denied in an Order dated September 23,
1972, the present petition to compel reinstatement and payment of back salaries, was filed with this
Court on October 7, 1972. In the Resolution of this Court dated December 28, 1972, said petition
was given due course.

In resolving the merits of the instant case, We find as an undeniable fact that the position of a City
Legal Officer is one which is "primarily confidential". This Court held in the case of Claudio vs.
Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one
requiring that utmost confidence on the part of the mayor be extended to said officer. The
relationship existing between a lawyer and his client, whether a private individual or a public officer,
is one that depends on the highest degree of trust that the latter entertains for the counsel selected.
As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 4176 (citing
De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily confidential' "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 on freedom from misgivings of
betrayals of personal trust on confidential matters of state. (Emphasis supplied).

The tenure of officials holding primarily confidential positions ends upon loss of confidence, because
their term of office lasts only as long as confidence in them endures; and thus their cessation
involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When
such confidence is lost and the officer holding such position is separated from the service, such
cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-
17287, June 30, 1965, 14 SCRA 548, it was held—

It is to be understood of course that officials and employees holding primarily

confidential positions continue only for so long as confidence in them endures. The
termination of their official relation can be justified on the ground of loss of
confidence because in that case their cessation from office involves no removal but
merely the expiration of the term of office-two different causes for the termination of
official relations recognized in the Law of Public Officers.

In the case at bar, when the respondent City Mayor of Davao terminated the services of the
petitioner, he was not removed or dismissed. There being no removal or dismissal it could not,
therefore, be said that there was a violation of the constitutional provision that "no officer or
employee in the civil service shall be suspended or dismissed except for cause as provided by law"
(Article XII-B, Section 1(3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily confidential position, as
distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles
vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:

When an incumbent of a primarily confidential position holds office at the pleasure of

the appointing power, and the pleasure turns into a displeasure, the incumbent is not
removed or dismissed from office-his term merely expires, in much the same way as
an officer, whose right thereto ceases upon expiration of the fixed term for which he
had been appointed or elected, is not and cannot be deemed removed or dismissed
therefrom, upon expiration of said term.

The main difference between the former the primarily confidential officer-and the
latter is that the latter's term is fixed or definite, whereas that of the former is not pre-
fixed, but indefinite, at the time of his appointment or election, and becomes fixed
and determined when the appointing power expresses its decision to put an end to
the services of the incumbent. When this event takes place, the latter is not removed
or dismissed from office-his term merely expired,

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the
case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that:

The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endures, and thus their cessation involves no removal.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

MARCIAL F. SAMSON, City Mayor of Caloocan City, THE CITY TREASURER, THE CITY
AUDITOR, both of Caloocan City, and HERMOGENES LIWAG, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, CFI-RIZAL and FELICIANO C. TALENS, respondents.

Hermenegildo V. Lopez and Amado B. Cresini, Jr. for petitioners.

Dominador G. Magno for private respondent.

ALAMPAY, J.:

The sole issue to be resolved in this case is the legality of Administrative Order No. 3, issued on
January 10, 1972, by the then mayor Marcial F. Samson, of Caloocan City, one of the petitioners
herein, whereby petitioner mayor summarily terminated the services of the private respondent,
Feliciano C. Talens, who held the position of Assistant Secretary to the Mayor, on the ground of
"lack and loss of confidence" and appointing in place of the latter Hermogenes Liwag, a co-petitioner
in this case. Cited in support of the challenged administrative order is section 5(f) of Republic Act
No. 2260, otherwise known as the Civil Service Act of 1959, as amended. The above-cited provision
declares the position of secretaries to city mayors non-competitive and this was interpreted by herein
petitioner Mayor as to include the position of Assistant Secretary to the Mayor.

In a resolution dated October 29, 1982, this Court granted the motion of the widow of private
respondent to substitute the heirs of private respondent Feliciano C. Talens in place of respondent,
in view of the latter's death on August 28, 1982.

There is no dispute as to the factual antecedents of this case. Private respondent Feliciano C.
Talens, a civil service eligible, was appointed on March 16, 1970 by then City Mayor Macario Asistio
of Caloocan City, as Assistant Secretary to the Mayor. His appointment was attested to as a
permanent one under Section 24(b) of Republic Act No. 2260, as amended by the Commissioner of
Civil Service. He performed the duties of Assistant Secretary to the Mayor and even twice received
increases in salary.

On January 11, 1972, City Mayor Marcial F. Samson, who succeeded City Mayor Macario Asistio,
furnished private respondent herein with the questioned Administrative Order No. 3, which is
hereunder reproduced:

TO: Mr. Feliciano C. Talens

Assistant Secretary to the Mayor

Caloocan City

Pursuant to the provision of Sec. 5 (f) of R.A. No.2260, otherwise known as the Civil
Service Act of 1959, as amended, making the positions of Secretaries of City
Mayors, among others, non-competitive, and it being the inherent nature of your
position to be primarily and highly confidential, you are hereby informed and advised
that effective the closing hours of January 10, 1972, your services as Assistant
Secretary to the Mayor are hereby TERMINATED for lack and loss of confidence.

You are therefore directed to turnover all official documents, papers and all other
government records to Atty. Casiano P. Anunciacion, Jr.

(SGD.) MARCIAL F. SAMSON City Mayor (Rollo, p. 20)

Private respondent acknowledging receipt of said order demurred on the ground Sec. 5(f) of the Civil
Service Law, which specifies as non-competitive only the positions of "secretaries of provincial city
and municipal boards and councils." He asked that the administrative order be recalled as he was
permanently appointed to a classified position in the city government and that in accordance with
Section 32 of the Civil hat his position as Assistant Secretary to the Mayor was not covered by Sec.
Service Law, he can be removed only for cause and after due process has been observed.

On January 17, 1972, petitioner Mayor, in a letter-reply sent to private respondent, declined to recall
Administrative Order No. 3, reiterating the reasons set forth in the order. Consequently, a petition for
certiorari, prohibition, mandamus and quo warranto was filed with the then Court of First Instance of
Caloocan City on January 21, 1972 by the private respondent in order to annul the disputed
administrative order, to enjoin the petitioner mayor, treasurer and auditor from enforcing the same,
and to compel all the said public officials to pay to private respondent the salaries and emoluments
due to him as Assistant Secretary to the Mayor. He also sought the, ouster from the disputed
position of Hermogenes Liwag, one of the petitioners herein, who was appointed by Mayor Samson
as Assistant Secretary to the Mayor, in place of private respondent.

The Court of First Instance ruled in favor of the plaintiff Feliciano C. Talens, by declaring
Administrative Order No. 3 null and void, and granting all the aforestated reliefs claimed by Feliciano
C. Talens. On Appeal of the siad judgment to the Court of Appeals, the decision of the trial court was
affirmed. Hence the petition.

According to petitioners, the only issue which this Court has to resolve is the legality of the
termination private respondent Talens' services as assistant secretary to the Mayor of Caloocan City
(Petitioners' Brief, p. 4).

Petitioners' contention is that the termination of private respondent's services is authorized by

Section 5(f) of Republic Act No. 2260, as amended by Republic Act No. 6040 which declares the
position of Secretaries of City Mayors as belonging to the non-competitive service. Petitioners further
aver that termination of the services of private respondent Talens is justified by the fact that the
disputed position of Assistant Secretary to the Mayor is inherently and primarily highly confidential in
nature.

Section 5 of Republic Act No. 2260, as amended by Republic Act No. 6040 provides that "That non-
competitive service shall be composed of positions expressly declared by law to be in the non-
competitive service and those which are policy-determining, primarily confidential or highly technical
in nature" and continues with an enumeration of specific officers and employees embraced within the
scope of non-competitive service. Among those included in the enumeration are heads of
departments created in charters of cities and secretaries of provincial governors, city mayors and
municipal mayors.

Although the position of assistant secretary to the city mayor is not among those expressly
declared in Section 5 of Republic Act No. 2260, as amended, to be within the non-competitive
service, petitioners, however, argue that an assistant secretary is also a secretary, and thus
comprised within the general term "secretaries" as provided for in Section 5(f).

We are not persuaded and find unacceptable such submission of the herein petitioners. As may be
noted, the general purpose of the Civil Service Law (Republic Act No. 2260) is "to insure and
promote the consitutional mandate regarding appointment only according to merit and fitness, and to
provide within the public service a progressive system of personal administration to insure the
maintenance of an honest and efficient progressive and courteous civil service in the Philippines."
(Section 2, R.A. 2260).

As a general rule, position in all branches, subdivisions and instrumentalities of the

governmentalities of the government, including those in government owned or controlled
corporations, belong to the competitive service. The only exceptions are those expressly declared by
law to be in the non-competitive service and those which are policy-determining, primarily
confidential or highly technical in nature. (Section 3, R.A. 2260, as amended by R.A. No. 6040).

Under the rules of statutory construction, exceptions, as a general rule, should be strictly, but
reasonably construed; they extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception. Where a general rule
is established by statute with exceptions, the court will not curtail the former nor add to the latter by
implication ... (Francisco, Statutory Construction, p. 304, citing 69 C.J., Section 643, pp. 1092-1093,
emphasis supplied).

Where a statute enumerates the subjects or things on which it is to operate, it is to be construed as

excluding from its effects all those not expressly mentioned (Martin, Statutory Construction, 1979
ed., p. 71 citing Dave's Place vs. Liquor Control Comm., 269 N.W., p, 504).

The exceptions provided for in Section 5 of Republic Act No. 2260, as amended should be,
therefore, strictly construed. It follows then that on this general governing principle, the position of
assistant secretary to the City Mayor of Caloocan City should be considered as belonging to the
non-competitive service.

The parties are agreed that the nature of the functions attaching to officer position ultimately
determines whether such position is policy-detrermining, primarily confidential or higly technical. It is
the nature of the position which finally determines a position to be primarily confidential (Leon A.
Pinero, et al. vs. Rufino Hechanova, et al., 18 SCRA 421). Stated differently, it is not the powers and
duties exercised and discharged by the Assistant Secretary to the Mayor as may be delegated and
assigned by the Mayor that makes the position of Assistant Secretary primarily confidential. While
duties possibly involving confidential matters are sometimes handled by the Assistant Secretary to
the Mayor, this does not necessarily transform the nature of the position itself as one that is primarily
and highly confidential.

It should be stressed that the position of Secretary to the Mayor and that of Assistant Secretary to
the Mayor are two separate and distinct positions. While both individuals may be called "secretary,"
nevertheless, one is certainly of a higher category and rank than the other with the added distinction
that a Secretary must enjoy the confidence of the Mayor. However, the position of Assistant
Secretary being of a lower rank, need not carry the requisites attaching to the primarily confidential
position of the actual Secretary to the Mayor.

Moreover, if it was the intention of Congress to include the Assistant Secretaries within the purview
of Section 5(f) of R.A. No. 2260, as amended, so that Assistant Secretaries are also embraced in the
non-competitive service, the law could have been easily worded "secretaries and their assistance."

Petitioners also contend that an assistant secretary is also a secretary and thus included in the
general term "secretaries as provided for in Section 5(f) in the above-quoted provision. From this
premise, the conclusion drawn by petitioners is that the position of Assistant Secretary to the Mayor
should be considered as in the non-competitive service and that the tenure of assistant secretary
lasts only as long as the Mayor's confidence in him remains. Petitioners' submission is that the
assistant secretary is no less a secretary to the mayor.

We are not disposed to agree with petitioners. What petitioners fail to consider is that an "assistant
secretary," although described as secretary, technically differs in function from the "Secretaries." An
"assistant" merely helps, aids or serves in a subordinate capacity to the person who is actually
clothed with all the duties and responsibilities of "secretary." Needless to say, the functions strictly
attributable to a "secretary" and which w•uld repose on such person the trust and confidence of the
employer, is not automatically vested or transferred to an "assistant secretary," because the latter
simply assists or aids the former in the accomplishment of his duties.

The rulings of this Court in De Los Santos vs. Mallare, 87 Phil. 289 and Besa vs. PNB, 33 SCRA 330
which have been invoked by the petitioners do not provide support to petitioners' case. The
aforestated cases have no parallel to the case at bar. The case of De los Santos vs. Mallare, relates
to a quo warranto proceeding, questioning the legality of the appointment of the respondent therein
to the office of the City Engineer for the City of Baguio which petitioner De los Santos was then
occupying. Said position was in fact declared to be neither primarily confidential, policy-determining,
nor highly technical and petitioner therein was adjudged to be entitled to remain in office and the
respondent's appointment was declared ineffective. Neither would the other case of Besa vs.
PNB find any application to the instant case because the position therein involved was that of Chief
Legal Counsel which, by its very nature, was rightfully ruled to be both impressed with a highly
technical aspect and confidential character. It can be readily noted that the facts and circumstances
in the present case and even the principal issue involved in the case at bar are distinctly different
from the cases cited by petitioners.

More pertinent and relevant are the pronouncements in Ingles vs. Mutuc, 26 SCRA 177. wherein We
stated:

. . . . On the contrary, the compensation attached and the designation given thereto
suggest the purely, or, at least, mainly clerical nature of their work. The fact that they,
at times, handle 'confidential matters' does not suffice to characterize their 'positions'
as primarily confidential. Indeed, it is admitted that plaintiffs, likewise, handle 'other
routine matters,' and it has not even been shown that their work is, at least,
principally confidential.

WHEREFORE, the decision appealed from is hereby AFFIRMED but considering the notice of death
given to this Court of the death of the herein private respondent Feliciano C. Talens, on August 28,
1982 (Rollo, p. 184), the dispositive portion of the subject decision of the trial court in Civil Case No.
C-2308, is hereby MODIFIED, to now read as follows:

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment in
favor of Petitioner Feliciano C. Talens, and against the Respondents, and

1) Declaring Administrative Order No. 3, dated January 10, 1972, of Respondent City Mayor Marcial
F. Samson, null and void;

2) Ordering Respondents, except private respondent Hermogenes Liwag, to pay Petitioner Feliciano
C. Talens, all the salaries and emoluments appurtenant to and due to the latter as Assistant
Secretary to the Mayor of Caloocan City, but for a limited period of three years. Without costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-3881 August 31, 1950

EDUARDO DE LOS SANTOS, petitioner,

vs.
GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his
capacity as City Treasurer and RAFAEL USON, in his capacity as City Auditor, respondents.
Francisco S. Reyes for petitioner.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano for
respondents.
Jose P. Laurel and Abelardo Subido as amici curiae.

Facts:

that Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16,
1946, by the President, appointment which was confirmed by the Commission on
Appointments on August 6, and on the 23rd of that month, he qualified for and began to
exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended
an ad interim appointment by the President to the same position, after which, on June 3, the
Undersecretary of the Department of Public Works and Communications directed Santos to
report to the Bureau of Public Works for another assignment. Santos refused to vacate the
office, and when the City Mayor and the other officials named as Mallare's co-defendants
ignored him and paid Mallare the salary corresponding to the position, he commenced these
proceedings.

The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No
officer or employee in the Civil Service shall be removed or suspended except for cause as
provided by law."

The respondent in its answer, relied on the provisions of “Section 2545 of the Revised
Administrative Code, which falls under Chapter 61 entitled "City of Baguio," authorizes the
Governor General (now the President) to remove at pleasure any of the officers enumerated
therein, one of whom is the city engineer.”

Issue:
Is whether or not the removal of the petitioner violates the Article XII Section 4 of the
Constitution?

Held:

Particular provision of the Sec 2545 of the Revised Administrative Code, which which gave the
Chief Executive power to remove officers at pleasure has been repealed by the Constitution and
ceased to be operative from the time that instrument went into effect. Unconstitutionally, as
we understand it, denotes life and vigor, and unconstitutional legislation presupposes
posteriority in point of time to the Constitution. It is a statute that "attempts to validate and
legalize a course of conduct the effect of which the Constitution specifically forbids (State ex-
rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is
as good as if it had never been enacted, and can not, in the nature of things, contravene or
pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance
of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity by the court to put it out of
the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the
statute book by the Constitution itself by express mandate before this petitioner was
appointed.

EUSTAQUIO M. MEDALLA, JR., petitioner,

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

MELENCIO-HERRERA, J.:

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

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

When the position of Assistant, hospital Administrator of the Caloocan City General Hospital became
vacant upon the resignation of the incumbent, former Caloocan City Mayor Alejandro A. Fider
designated and subsequently appointed, as Assistant Hospital Administrator private respondent Dr.
Mackay, a Resident Physician in said hospital. Petitioner, Dr. Medalla, Jr., protested Dr. Mackay's
designation and subsequent appointment alleging among others that, as Chief of Clinics, he
(Medalla) was next-in-rank. The then Acting City Mayor Virgilio P. Robles, who succeeded former
Mayor, now Assemblyman Alejandro A. Fider, in his 4th Indorsement dated September 20, 1978,
sustained Mackay's appointment stating:

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

xxx xxx xxx

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

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

On the other hand, appellee Mackay had been a Resident Physician, the position he
held prior to his promotion to the contested position. He is a holder of the degree of
Doctor of Medicine and is a First Grade eligible (BA 1080-Medical Board). He is a
graduate student in Hospital Administration and as completed all academic
requirements for a certificate in Hospital Administration. His performance rating is
"Very Satisfactory".

A perusal of the organizational chart of the Ospital ng Caloocan approved by the

Hospital Administrator would show that the Chief of Clinics is the next lower position
to the Assistant Hospital Administrator. The Resident Physician is not a next lower
position to the Assistant Hospital Administrator. Therefore, Medalla and not Mackay
is the person next in rank who may be promoted to the position involved.

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

xxx xxx xxx

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

WHEREFORE, premises considered, and as recommended by Civil Service

Commission, the appointment of Dr. Honorato G. Mackay as Assistant Hospital
Administrator in the Caloocan City General Hospital is hereby revoked and the
position awarded in favor of appellant Dr. Eustaquio M. Medalla. 2

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

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

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

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

On July 20, 1979, Mackay moved for reconsideration asserting 1) denial of due process of law
inasmuch as the contested Resolution/Decisions were issued ex-parte, and 2) that the Civil Service
Commission can not ignore nor overrule an appointment made by a City Executive.

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

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

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

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

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

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

1. Ordering the Honorable Marcelino N. Sayo, Judge of the Court of

First Instance of Rizal Branch XXXIII, Caloocan City, to dismiss
respondent Mackay's petitions, on the ground of lack of jurisdiction
and/or non- exhaustion of administrative remedies resulting to a lack
of cause of action;

2. Declaring the decision of the Office of the President (Annex "C")

and the Merit Systems Board (Annex "E") as valid and enforceable. 4
We issued a Restraining Order on August 27, 1980 enjoining respondents from proceeding with the
case below.

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

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

In his Comment, the City Mayor of Caloocan invoked the privilege of an appointing authority to
determine who can best fulfill the functions of an office citing the case of Aguilar vs. Nieva, Jr. 5 to
that effect. And as to the matter of his readiness to issue an appointment to Medalla, he manifested his
preference to withhold action pending Mackay's unresolved Motion for Reconsideration of the Decision of
June 27, 1979 of the Civil Service Merit Systems Board.

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

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

Although Mackay's Motions for Reconsideration were, in fact, still pending resolution by Hon. Jacobo
C. Clave and the Civil Service Commission, respectively, at the time private respondent Mackay filed
the Petition below, dismissal of said Petition can no longer be anchored on the ground of non-
exhaustion of administrative remedies, as Medalla prays, considering that Manifestations dated
August 17 and 23, 1979 filed by the said parties before the Court a quo show that they had resolved
the incidents adversely against Mackay. 6 That issue, therefore, has become moot and academic.

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

The objection to a judicial review of a Presidential act arises from a failure to

recognize the most important principle in our system of government, i.e., the
separation of powers into three coequal departments, the executive, the legislative
and the judicial, each supreme within its own assigned powers and duties. When a
presidential act is challenged before the courts of justice, it is not to be implied
therefrom that the Executive is being made subject and subordinate to the courts.
The legality of his acts are under judicial review, not because the Executive is inferior
to the courts, but because the law is above the Chief Executive himself, and the
courts seek only to interpret, apply or implement it (the law). A judicial review of the
President's decision on a case of an employee decided by the Civil Service Board of
Appeals should be viewed in this light and the bringing of the case to the Courts
should be governed by the same principles as govern the judicial review of all
administrative acts of all administrative officers. 7
 The courts may always examine into the exercise of power by a ministerial officer to
the extent of determining whether the particular power has been granted to the
officer, whether it is a legal power that could have been granted to him, and whether
it has been exercised in a legal manner. This jurisdiction does not depend upon an
act of the legislature authorizing it, but inheres in the courts of general jurisdiction as
an essential function of the judicial department (State Racing Commission v. Latonia
Agri. Asso. 123 SW 68 1). 8 (emphasis supplied).

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

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

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

SEC. 19. Recruitment and Selection of Employees. —

xxx xxx xxx

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

Section 19 (6) of the same Decree provides for the administrative procedure by an aggrieved
employee in case of non-observance by the appointing authority of the next-in-rank rule, thus:

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

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

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

It is true that, as the respondent City Mayor alleges, a local executive should be allowed the choice
of men of his confidence, provided they are qualified and elligible, who in his best estimation are
possesses of the requisite reputation, integrity, knowledgeability, energy and judgement. 9 However,
as reproduced heretofore, the Decision of the Civil Service Merit Systems Board, upheld by the Office of
the President, contains a judicious assessment of the qualifications of both petitioner Medalla and private
respondent Mackay for the contested position, revealing a careful study of the controversy between the
parties, which cannot be ignored. The revocation of Mackay's appointment reveals no arbitrariness nor
grave abuse of discretion.

WHEREFORE, 1) the appointment extended to private respondent, Dr. Honorato C. Mackay, as

Hospital Administrator is hereby declared null and void; 2) respondent City Mayor of Caloocan City is
hereby ordered to extend an appointment to petitioner, Dr. Eustaquio M. Medalla, as Hospital
Administrator of the Caloocan City General Hospital immediately upon notice of this Decision; 3)
petitioner, Dr. Eustaquio M. Medalla, shall receive all compensation and emoluments appertaining to
said position thenceforth, but without entitlement to salary differentials; and 4) respondent Judge is
hereby permanently enjoined from further proceeding with Civil Case No. 7770.

This Decision is immediately executory. No costs.

SO ORDERED.