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TOPIC: Power of Congress to Prescribe Qualifications and Disqualifications G.R. No. 137329 August 9, 2000 ROGELIO M. TORAYNO SR.

, et al., petitioners, vs. COMELEC and VICENTE Y. EMANO, respondents FACTS: When Vicente Emano ran for provincial governor of Misamis Oriental, his declared residence under his Certificate of Candidacy was in Tagoloan, Misamis Oriental. While still the governor of said province, Emano registered as voter in Cagayan de Oro City, a highly urbanized city and geographically located within the province. According to his voters registration, he claimed 20 years of residence in Cagayan de Oro City. Subsequently, he ran for mayor of the city. In his Certificate of Candidacy, his residence for the preceding two years and five months was at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City. One of Emanos contenders for mayorship of the city, was Erasmo B. Damasing, counsel of herein petitioners; petitioners, on the other hand, are all residents of Cagayan de Oro City. As residents and taxpayers, petitioners questioned qualifications of Emano as mayoral candidate, on the ground that he had allegedly failed to meet the one-year residential requirement. While said petition was pending, Emano was proclaimed as the duly elected city mayor. In its Resolution, COMELEC First Division denied the Petition for Disqualification. On appeal, the COMELEC en banc upheld the findings and conclusions of the First Division, holding that "the records clearly show that the respondent is an actual resident of Cagayan de Oro City for such a period of time necessary to qualify him to run for mayor therein. This fact is clearly established by the respondent having a house in the city which has been existing therein since 1973 and where his family has been living since then." COMELEC en banc additionally ruled that there is nothing in the law which bars an elected provincial official from residing and/or registering as a voter in a highly urbanized city as long as he has complied with the requirements prescribed by law in the case of a qualified voter. Further, the fact that Emano was previously registerered in Tagoloan, Misamis Oriental does not preclude the respondent from subsequently registering anew in another place. ISSUE: WON, private respondent had duly established his residence in Cagayan de Oro City at least one year prior to the May 11, 1998 elections to qualify him to run for the city mayorship. HELD: YES! - We stress that the residence requirement is rooted in the desire that officials of districts or localities be acquainted not only with the metes and bounds of their constituencies but, more important, with the constituents themselves -- their needs, difficulties, aspirations, potentials for growth and development, and all matters vital to their common welfare. The requisite period of 1-year would give candidates the opportunity to be familiar with their desired constituencies, and likewise for the electorate to evaluate the former's qualifications and fitness for the offices they seek. In the case at bar, the Comelec found that private respondent and his family had actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in 1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he physically lived in that city, where the seat of the provincial government was located. These facts indubitably prove that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient to qualify him to run for public office therein. Moreover, the Comelec did not find any bad faith on the part of Emano in his choice of residence. Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions, however, are simply for the purpose of parity in representation. The classification of an area as a highly urbanized or independent component city, for that matter, does not completely isolate its residents, politics, commerce and other businesses from the entire province -- and vice versa -- especially when the city is located at the very heart of the province itself, as in this case. There is no question that private respondent was the overwhelming choice of the people of Cagayan de Oro City. He won by a margin of about 30,000 votes. Thus, we find it apt to reiterate the principle that the manifest will of the people as expressed through the ballot must be given fullest effect. In case of doubt, political laws must be interpreted to give life and spirit to the popular mandate. In sum, we hold that Respondent COMELEC cannot be faulted with abuse, much less grave abuse, of discretion in upholding private respondent's election. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. L-31683 January 31, 1983 ERNESTO M. DE GUZMAN, petitioner, vs. HON. ABELARDO SUBIDO, as Civil Service Commissioner, HON. NORBERTO AMORANTO, as Mayor of Quezon City, ET AL., respondents. FACTS: Petitioner Ernesto M. de Guzman was appointed patrolman in the Quezon City Police Department by Mayor Norberto S. Amoranto on August 16, 1965. He was a civil service eligible having taken and passed the civil service patrolman's examination. He had also passed the usual character investigation conducted before appointment. As a newly appointed patrolman, the petitioner went through and successfully completed the police training course. On March 21, 1966, the petitioner's appointment was forwarded to the Commissioner of Civil Service. A year after the appointment and with no action on the appointment papers being taken by the respondent commissioner, the respondents city treasurer and city auditor stopped the payment of petitioner's salaries. On May 12, 1967, the respondent commissioner returned the Petitioner's appointment

papers, without action thereon, to the respondent mayor on the ground that Mr. de Guzman was disqualified for appointment under Republic Act No. 4864, the Police Act of 1966, which provides that for a person to be appointed to a local police agency he must have no criminal record. On September 7, 1967, the petitioner filed a petition for certiorari and mandamus with preliminary mandatory injunction with CFI Rizal at Quezon City. On May 29, 1969, the lower court rendered a decision dismissing the petition. According to the court, the requirement of "no criminal record" means without any criminal record and makes no distinction whether an act violates a state law or only a municipal or city ordinance. ISSUE: WON, a person otherwise qualified but who admits having violated a city ordinance on jaywalking and another ordinance requiring a cochero to occupy only the seat intended for a cochero in a calesa is disqualified for appointment to the Quezon City Police Force. HELD: The phrase "criminal record" governing qualifications for appointments could not have been intended by the legislature to automatically cover every violation of a municipal or city ordinance carrying a sanction of a nominal fine to enforce it. A violation of a municipal ordinance to qualify as a "crime" must involve at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of the public office. The requirements for applicants to a policeman's position may be quite stringent but the basic policy of attracting the best qualified is not served by automatically excluding any person who in an absent minded mood or while hurrying to an urgent appointment may unwittingly have crossed a street or stepped down from the curb in violation of a jaywalking ordinance. The same thing is true of a person who may have worked his way through college as a cochero and, who, pitying his horse struggling up an incline or a bri dge, leaves his seat to stand after and forward to balance the calesa load or who, alone on his way home, sits in the seat intended for passengers only to be fined for violating an obscure municipal ordinance. Respondent Subido should have gone deeper into the nature of the petitioner's acts instead of taking every "Yes" answer in Question 15 of the information sheet as an automatic disqualification. Under Rule VI of the Civil Service Rules and Regulations, the respondent commissioner had 180 days from receipt of the appointment papers to act on them. Inaction means the appointment is approved as properly made. The papers were returned more than a year by the commissioner after he received them. The appointment, not having any defect of record except the matter in issue in this case, must be deemed complete and properly made after the 180 days period. The termination of the petitioner's services was, therefore, an illegal and invalid removal. The petitioner should be reinstated, assuming he meets the physical and other requirements of the Integrated National Police under the new legislation and procedures governing police forces. In addition to being paid any salaries for services actually rendered but not paid, the petitioner, following the formula in cases of illegal dismissals is entitled to five years back pay. WHEREFORE, the decision of the court a quo is set aside. The Integrated National Police and the respondent officials are directed to reinstate the petitioner to the Quezon City Police Force provided he meets the age, physical, and other qualifications and eligibilities for patrolman under present legislation and rules. The city government of Quezon City and the incumbent Mayor, Treasurer, and Auditor of the city are ordered to pay the petitioner any unpaid services and allowances for services actually rendered and five years backpay from the date his services were actually terminates. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. 120099 July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents. FACTS: Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected governor. Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC. Marquez revealed that Rodriguez left the United States where a charge is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez. The COMELEC dismissed Marquez' quo warranto petition. Marquez challenged the dismissal before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that, fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence, and it may be so conceded as expressing the general and ordinary connotation of the term. Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that

Rodriguez is a "fugitive from justice." This petition for disqualification was filed by Marquez on April 11, 1995 when Rodriguez' petition for certiorari (112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases 2. the parties, facts and issue involved are identical in both cases 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and 2. an authenticated copy of the felony complaint which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis: The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can 2 hardly rebut whatever presumption of knowledge there is against the respondent. And proceeding therefrom, the COMELEC, in the dispositive portion, declared: WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside. At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor. On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995. The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995. Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively). In a Resolution dated October 24, 1995, the Court

. . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof. The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full: . . . The main opinion's definition of a "fugitive from justice" " include not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence and it may be so conceded as expressing the general and ordinary connotation of the term. But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a "fugitive from justice" as a person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. Specifically, it refers to one who flees to avoid punishment. From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in GR 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice." Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court held: . . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution , but that, having committed a crime within a state or district, he has left and is found in another jurisdiction. Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice. THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE". In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law. ISSUE: WON, Rodriguez is a fugitive from justice.

HELD: To reiterate, a "fugitive from justice: includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as 3 4 per certifications issued by the Bureau of Immigrations dated April 27 and June 26 of 1995, preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit: The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him. It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution . Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

Additional Notes: Law of the Case defined as the opinion delivered on a former appeal; it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------TOPIC: Modes of Commencing Official Relations Appointment G.R. No. L-11985 January 28, 1961 MARIANO CONDE, plaintiff-appellant, vs. NATIONAL TOBACCO CORP and BOARD, OF LIQUIDATORS, defendants-appellees FACTS: It appears that on September 6, 1940 appellant was appointed Secretary-Treasurer of the National Tobacco Corporation with an annual compensation of P4,800 effective as of October 15, 1940. On August 22, 1941 he was appointed Secretary and Administrative Officer of the same company with the same annual compensation. On October 23, 1945 he was appointed Acting Secretary and Administrative Officer of the company with an annual compensation of P5,100.00. On March 18, 1946 he was appointed Acting Secretary and Administrative Officer with an increased annual compensation of P6,000.00. On September 16 of the same year he was appointed Treasurer and Chief, Credit Department, with the same annual compensation of P6,000.00. The appointment extended indicated that it was a mere "change of designation". On November 18, 1946 he was appointed Treasurer and Credit Manager with an increased annual compensation of P7,200.00 effective as of November 1st of said year. Finally, on December 21, 1948 he was appointed Treasurer with a reduced annual compensation of P6,000.00 effective as of December 16, of said year. This was in pursuance of Resolution No. 265 passed by the Board of Directors of the company on December 6, 1948, which stated, inter alia, that the reduction of the salary of appellant was for the purpose of making uniform the annual compensation of the Department Chiefs of the company. In this connection the resolution also renewed appellant of his duties as Secretary of the Board of Directors and Administrative Officer, presumably in order that his work as department chief would not be much more than that of other department chiefs. Several petitions for reconsideration filed by appellant in connection with the reduction of his annual compensation were denied by the Board of Directors. By executive order No. 372, the National Tobacco Corporation was dissolved and a Board of Liquidators was created for the purpose of settling and closing its affairs within a period of three years. Appellant also sought twice from the Board of Liquidators a reconsideration of the Board resolution reducing his annual compensation, but his petitions were denied. As a result, after his retirement from the service of the National Tobacco Corporation on January 31, 1952, he commenced the present action to recover from the latter and/or the Board of Liquidators, jointly and severally, the sum of P5,283.33, with legal interest thereon from the filing of the complaint, plus the sum of P1,750.00 for attorney's fees, and the cost of the suit. The first amount represented alleged salaries and gratuity differentials which he failed to receive by reason of the fact that the computations made for the payment of his salaries and gratuity were based on his reduced compensation of P6,000.00 per annum. ISSUE: The question raised by appellant in this instance may be summarized as follows: firstly, that the document Exhibit B constituted an appointment and not a mere notice of the reduction of his salary, and that, therefore, it was not valid without the approval of the Chief Executive; secondly, that the approval of the Operation Budget of the company for the first year July 1, 1948, to June 30, 1949 by the Control Committee of the Government Enterprises Council did not amount to presidential approval of Exhibit B; and lastly, that the court should have judgment in his favor by reason of the prevailing governmental practice of not applying any reduction of salary for any particular position to the incumbent, and on the further ground that the Board of Directors of the National Tobacco Corporation had discriminated against appellant. HELD: It is true that the approval of the President was necessary in the case of appointments to Positions in the National Tobacco Corporation involving a salary of P3,000.00 or more annually. It is likewise a fact that the appointments extended to appellant mentioned heretofore were submitted to and approved by the President of the Philippine, through the Chief of the Executive Officer with the exception of the last which appointed him as Treasurer only and reduced his annual compensation from P7,200.00 to P6,000.00. The rule referred to, however, would apply to appellant's case only if the document marked Exhibit B constituted in fact and in law, a real appointment and not a mere notice advising him of the reduction of his annual salary and of his duties as employee of the company. After a careful consideration of the circumstances that led to the issuance thereof, we are inclined to believe that the document was in the nature of a mere notice and, therefore, needed no presidential approval. Appellant was not given a new job; the so-called "appointment" merely reduced his duties and, as a consequence, made a corresponding reduction states that the change was made in pursuance of Resolution No. 265 which was adopted for the purpose of standardizing the salaries of chiefs of departments, for which reason, "the compensation of the treasurer was reverted to six thousand pesos per annum. In effect, it merely took away from appellant his additional duties as credit manager, and in view of his reduced duties and to accomplish standardization of salaries, his compensation WAS REVERTED to P6,000 per annum. Moreover, the reduction of appellant's duties was not at all arbitrary. It was motivated principally by the fact that there had been created in the corporation a separate position with an annual compensation of P6,000.00, entrusted with the discharge of the duties of which appellant was relieved. From a technical point of view, there would seem to be less reason to uphold appellant's contention. The term" appointment" is in law equivalent to "filling a vacancy". In this case it seems obvious to us that appellant never vacated the position of Treasurer; he did not have to vacate it in order to accept the position to which he was "appointed" on December 21, 1948 (Exhibit B). In point of fact, therefore, the position of Treasurer was not vacated by him by reason of his alleged appointment as Treasurer only.

The fact that the appointments extended in favor of appellant prior to the one in question were submitted to and actually approved by the Office of the President of the Philippines is explained by the fact that the appointment of September 6, 1940 was his original appointment as Secretary-Treasurer and the subsequent ones involved increases in salary or additional duties imposed upon the appointee. Their submission to the Office of the President was in pursuance of a policy in relation to appointments in government controlled corporations involving additional expenditure and disbursement or appropriation of funds. There is no showing in the record that the same policy applied to a case of reduction of salary. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. 92103 November 8, 1990 VIOLETA T. TEOLOGO, petitioner, vs. CSC, DR. PRUDENCIO J. ORTIZ, et al., respondents FACTS: The petitioner questions the appointment of private respondent Ruby G. Gelvezon as Chief Nurse I of the Representative Pedro Trono Memorial Hospital in Guimbal, Iloilo, as approved by the Civil Service Commission. She claims she has a preferential right to be appointed to the said position, which she had held in an acting capacity for more than a year. She stresses that she is next-in-rank and not disqualified; Gelvezon, on the other hand, is not eligible. At the time of the challenged appointment, Gelvezon was no longer in the service, having retired as Senior Nurse of the said hospital on October 26,1986, subsequently collecting the gratuity, terminal leave and other benefits due her. She was therefore being reinstated under CSC Memorandum-Circular No. 5, s-1983, which allows the reinstatement of a retiree only under certain conditions. The required request of the Regional Health Office No. 6 for authority to reinstate her was denied by Civil Service Regional Office No. 6 (CSRO No. 6) on the ground that the vacancy could be filled by promotion of qualified personnel, "attention being invited to the attached copy of the letter protest dated September 15,1988 of Ms. Violeta Teologo," one of two other aspirants for the same position. This denial was appealed to the Civil Service Commission by Dr. Prudencio J. Ortiz, Regional Health Director, who justified the appointment of Gelvezon on grounds of the "exigency of the service" and her superior qualifications compared to those of the other applicants. In the assailed resolution, the CSC set aside the denial of CSRO No. 6 and directed it "to take appropriate action on the appointment of Mrs. Ruby G. Gelvezon, subject to Civil Service Laws and Rules." It declared inter alia that "in the case of Mrs. Gelvezon, who is neither a retiree nor overage (57 or over), the head is not required to secure prior authority." The petitioner filed a motion for reconsideration insisting that the appointment of Gelvezon was violative of law and the pertinent administrative regulations, particularly CSC Memorandum Circular No. 5, s-1982. CSRO No. 6 also reminded the CSC that "grant of authority is a condition precedent before Mrs. Gelvezon can be reinstated in the service, considering that she retired therefrom as may be duly supported" by her application for retirement dated May 23, 1988 and its approval effective October 26, 1988. These representations were denied by the CSC. The petitioner then came to this Court, claiming that the respondent CSC had committed grave abuse of discretion in sustaining the reinstatement of private respondent Gelvezon. Required to comment, the Solicitor General begins with an assertion of his right and duty "to present to the Court the position that will legally uphold the best interest of the Government although it may run counter to a client's position" and his "specific mandate to act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require." He then declares that he cannot agree with the respondent CSC and proceeds to explain why he thinks it is in error. It is the contention of the Solicitor General that the abovementioned resolutions of the CSC should be reversed as contrary to law and regulations. His view is that the CSC cannot direct the appointment of Gelvezon as this would be an encroachment on the prerogative of another department, besides the fact that there is no justification for her appointment in view of her ineligibility and the availability of other candidates. He notes especially her disqualification for the office for having misrepresented that she had merely resigned (and so needed no special authority to return) when the truth was that she had retired. HELD: It is true, as he maintains, that the CSC cannot usurp the appointing power from the appropriate authority and substitute its choice with another on the ground that the latter is better qualified. The discretion to determine this matter belongs to the appointing authority and not respondent CSC. The only function of the CSC in this regard is to ascertain whether the appointee possesses the prescribed qualifications and, if so, to attest to such fact. The only ground upon which the appointment may be disallowed is that the appointee is not qualified, not that he is in its opinion less qualified than others. The presumption is that the appointing authority is the best judge of this matter. 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 CSC denies that it has usurped the appointing power of another department and stresses that all it did was direct CSRO No. 6 to act on the appointment made by the Health authorities. It was not making the appointment itself or ordering it to be made but merely sustaining it under the applicable civil service rules and regulations. Finding that Gelvezon possessed the prescribed qualifications and satisfied the requirements of CSC Memorandum-Circular No. 5, s-1983, it had merely approved her reinstatement as proposed by the Regional Health Director. It is not clear from the records who has appointed Gelvezon as Chief Nurse I. Dr. Jose M. Tupaz, Jr., Director of the Hospital, merely recommended her reinstatement to Dr. Prudencio M. Ortiz as Regional Health Director, who in turn requested from CSRO No. 6 authority to reinstate her. The reinstatement was presumably to be done by him. Under the law, it is the President of the Philippines or

his alter ego, the Secretary of Health, who can make appointments of key personnel in the Department of Health. Yet, in the case at bar, Dr. Ortiz was asking for authority to reinstate Gelvezon as if he himself had the power to do this. It seems to us that Dr. Ortiz's request should at the very least have been coursed through or cleared by the Secretary of Health before being submitted to CSRO No. 6 with his approval. The reinstatement of Gelvezon would require a new appointment and it has not been shown that the Regional Health Director has the power to make such appointment. The presumption of regularity of official functions is not applicable because the power in question clearly belongs not to Dr. Ortiz but his superiors. But even assuming that the Regional Health Director was duly empowered to make the appointment, there were still special conditions that had to be fulfilled under Memorandum-Circular No. 5, s-1983, which, significantly, was promulgated by the Civil Service Commission itself. It must be remembered that we deal here not with the appointment of a newcomer to the public service. Gelvezon is a retiree. Additional requirements are prescribed for her appointment because it involves the reinstatement of a person who, after having left the government, has a change of heart and wishes to return. These requirements are embodied in CSC Memorandum-Circular No. 5, s-1983, reading in full as follows: To insure effective and facilitate action on requests of such nature, the following guidelines are prescribed: 1. All requests shall be made by the appointing authority concerned and directly addressed to the respective Civil Service Regional Office. CSC Regional Offices have been given authority to act on such requests. 2. Requests for authority for such appointment, reinstatement or retention shall meet the following conditions as certified by the appointing authority. a. the exigencies of the service so require; b. the officer or employee concerned possesses special qualification not possessed by other officers or employees in the agency where he is to be appointed or retained; and c. the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned, or by transfer of qualified officers or employees from other government agencies, or there are no eligibles in the appropriate register of the Commission available for certification to the vacancy. 3. No person shall be reinstated if he has been separated from the service through delinquency or misconduct on his part or if he has been separated under LOI Nos. 11, 14, 14-A, and 14-B unless he has been granted executive clemency by the President. 4. Each request must be accompanied by a medical certificate issued by a government physician certified that the person is still physically and mentally healthy to be appointed in the service. 5. Officers or employees who have been recommended for appointment, reinstatement, or retention in the service shall not be allowed to assumed or continue in office pending receipt of authority from the Civil Service Regional Office concerned. The Solicitor General maintains that the appointment of Gelvezon, assuming it has been made by the appropriate authority, nevertheless does not meet the three conditions mentioned in Paragraph 2 of the memorandum-circular. Neither is the authorization to reinstate required in Paragraph 5 sustainable under the proven facts. Like the assessment of the appointee's qualifications, the determination of whether the appointment is demanded by the exigencies of the service should be made by the appointing authorities themselves, at least in the first instance. As it is they who can best understand the needs and operations of their own offices, their findings on this matter are entitled to great respect even from this Court. We note, however, that in meeting the requirement of Paragraph 2(a), Dr. Tupas, as Director of the RPTMH merely said in his 3 recommendation. 1. That the exigency of the service demands that the position should be filled. Problems in the Nursing Service have cropped up, wanting of the attendance of a nursing administrator which may assume, unmanageable magnitude if left unsolved. This same recommendation was reiterated verbatim by Dr. Ortiz in his own letter to CSRO No. 6 requesting authority to reinstate 4 Gelvezon .

Its tortuous construction aside, the above-quoted statement actually says nothing. It is no more than so many cliches stringed together to satisfy the requirement, without any earnest effort to specify the problems facing the Nursing Service and why they "may assume unmanageable magnitude if left unsolved" because of the non-appointment of the recommendee. The "exigency of the service" is not explained nor is it shown why it "demands" the filling of the position. The necessity for Gelvezon sounds exaggerated. The generalization seeks more to impress than to inform and persuade. If a meaningless justification like this could suffice, the requirement might as well be discarded altogether as a useless formality. Regarding subsection (b), the respondents stress that in the examination given by the Selection, Placement and Promotion Board of the RPTMH, Gelvezon placed first with a rating of 88.25%, followed by Medalla P. Balandra with 87.5% and Violeta T. Teologo with 83.25%. This was probably the main reason for the conclusion that Gelvezon was the best candidate among the three and for the following encomium from Dr. Ortiz (again echoing Dr. Tupaz word for word): 2. Mrs. Ruby G. Gelvezon brings along with her the degree of competence, respectability and dedication to service, qualities very desirable among people in the Civil Service, especially in the Department of Health. 5 These qualities are found wanting in the other applicants. It is not explained why applicants Balandra and Teologo are "wanting" in the qualities of "competence, respectability and dedication to service" that seem to be the exclusive virtues of the private respondent. The statement is itself wanting for not stating what other special qualifications Gelvezon possessed, besides topping the examination, that were not possessed by the other candidates. The qualifications of these aspirants were not discussed at all and were probably simply dismissed as irrelevant. But they are not, of course, for the requirement is that the appointee must possess special qualifications "not possessed" by the other candidates. As we see it, the recommendation is at best an unfair commentary on Balandra and Teologo, at worst an undeserved disparagement of their credentials. These are not so far behind those of Gelvezon, especially in the case of Balandra, or even of Teologo, who had served as acting Chief Nurse and holds the degree of Bachelor of Science in Nursing. Gelvezon finished only the Graduate Nurse course. The discretion given the appointing authority is subject to stricter review where the person appointed is being returned to the government after voluntarily retiring and collecting all the benefits appurtenant to such retirement. The earlier approval of Gelvezon's retirement signifies that her services as Senior Nurse were dispensable in 1986. Suddenly she is needed again. It must take more than the usual explanation to justify her reinstatement now on the ground that her services are after all indispensable. A retiree cannot just resume where he left off without the special qualifications (not possessed by the other candidates) required in Paragraph 2(b). Even assuming that Gelvezon does have these qualifications, her appointment is still not defensible under Paragraph 2(c) because there are other candidates for the office who are eligible and available. The rule expressly allows reinstatement only "if the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned." It is true that the next-in-rank rule admits of 6 exceptions, as we have ruled in many cases. But deviation from that rule requires special justification in the case at bar because a retiree should ordinarily not be allowed to pre-empt incumbent aspirants. The treatment of Paragraph 5 is still another matter that is not easy to understand. Contrary to the original findings of the respondent CSC, there was a need for authority to reinstate Gelvezon because she had retired from the public service four years ago. The reason for the original erroneous finding was her suppression of that material fact. Confronted later with the record, she could not deny that she had indeed not merely resigned but retired. The CSC then retracted its earlier statement and conceded that as a retiree Gelvezon was directly covered by the memorandum-circular. The Court feels that in giving such authority, the CSC was unduly forebearing. Even if Paragraph 2 were disregarded, Gelvezon would still not qualify for the position because she had falsified her application and concealed the fact that she was a retiree. It is plain that she was less than honest. One wonders why, despite this finding, the CSC still approved Gelvezon's appointment, deciding simply to rap her on the wrist with a mere admonition. To use the language of Rule 111, Section 23, of Civil Service Rules and Personnel Actions and Policies, she "had intentionally made a false statement of a material fact or had practiced or attempted to practice a deception or fraud in connection with her appointment." Yet the CSC brushed aside this offense as a minor infraction that deserved no sterner action than a mild reproof. Her reinstatement does not square with the high standards the CSC has itself set for the members of the Civil Service. As the constitutional body charged with the improvement of the quality of the civil service, the CSC should have been the first to question Gelvezon's appointment instead of heartily endorsing it. Parenthetically, we note the Solicitor General's observations that Gelvezon was not really being reinstated as she had never before held the position of Chief Nurse I, having retired only as Senior Nurse, He is correct, strictly speaking, but the word out "reinstatement" was probably used in a generic sense to mean simply returning to the service. At any rate, the point is not really material because the memorandum-circular speaks of "appointment, reinstatement or retention" of the persons covered by its provisions. We hold, in sum, that as a retiree, Gelvezon could not be simply reinstated like any new appointee but had to satisfy the stringent requirements laid down by CSC Memorandum-Circular No. 5, s-1983. While it is true that the appointing authority has wide discretion to determine the need to appoint and to assess the qualifications of the person to be appointed, that discretion may not be exercised ex7 gratia but "in conformity to the spirit of the law and in a manner to subserve the ends of substantial justice." That discretion may be reviewed and reversed in proper cases, especially where extraordinary care is required to attend its exercise, as in the case at bar. Apart from the fact that the Regional Health Director does not appear to be the official authorized to appoint the private respondent, we

are not convinced that Gelvezon was the best choice under the particular circumstances of this case, not the least important of which was the shunting aside of the other candidates, who were eligible and available, besides being incumbent in the service. We also feel that while not the crucial consideration, the private respondent's disqualification should have been taken into serious account in comparing the over-all competence of the candidates instead of being dismissed as a light and forgivable misdeed. Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants. WHEREFORE, certiorari is GRANTED. CSC Resolution Nos. 89-321 and 90-037 are hereby SET ASIDE as NULL AND VOID. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. L-31947 March 21, 1974 ANTONIO P. TORRES, petitioner, vs. OSCAR T. BORJA, ALEJO SANTOS, Acting Director of Prisons, and HON. ABELARDO SUBIDO, Commissioner of Civil Service, respondents FACTS: On July 27, 1968, the position of penal supervisor in the Bureau of Prisons fell vacant. Eight days later, on August 4, 1969, respondent Santos, then its Acting Director, recommended to then Secretary of Justice Ponce Enrile that respondent Borja be the successor. Even before the retirement of the incumbent, however, on April 28, 1969, to be exact, petitioner, then training officer, had already protested the proposed promotion of respondent Borja, with the claim that he was academically better prepared as he had two degrees, Bachelor of Arts and Bachelor of Science and he had five civil service eligibilities. On July 23, 1969, there was a communication of the then Secretary Ponce Enrile to respondent Borja that the objection of petitioner to his proposed promotion as penal supervisor was well taken. Following a second indorsement from respondent Santos, Secretary Ponce Enrile gave "due course to the appointment of Mr. Borja to the position of penal supervisor. After setting forth that neither petitioner nor respondent Borja were next in rank to the contested position, the Secretary made clear why it is the latter who should be preferred. Thus: "A review of the records of the case reveals that the Civil Service Commission had in the past approved the appointments of the following to positions of Penal Supervisor: 1. Gil Ofina (retired) finished only second year high school and a second grade civil service eligible; 2. Jose Gatmaitan (retired) finished only second year high school and first grade civil service eligible; and, 3. Magno Castillo a high school graduate and second grade civil service eligible. Mr. Borja is a high school graduate and a second grade and prison guard eligible. The Complaints Committee of the Department of Justice took cognizance of his outstanding performance as shown in the report of that Bureau. On the basis of the commendations and citations given him and his performance rating of outstanding, it is believed he is fit to perform the duties and responsibilities of penal supervisor. The appointment of respondent Borja was appealed to the Civil Service Commission. However, respondent Subido turned down the appeal and affirmed the appointment of Borja. ISSUE: WON, respondent Borja rather than petitioner Torres should be the appropriate choice for the position of penal supervisor. HELD: The plea that only merit and fitness should be the gauge of promotion the public service finds support, as noted, in both the 1935 Constitution and the present Charter. That such should be the case is self-evident. It is a truism that a public office is a public trust. The test then should be, after being clear what kind of work is to be done, who can do it best. To that over mastering consideration, all else is subordinate. It cannot be too often stressed that the protection accorded a civil servant, while undoubtedly accruing to his benefit, is intended primarily to assure that with the security of tenure and rational basis for promotion, there is an inducement for individuals of the requisite skill and ability to enter public service. The standard in this specific case then should be who as between the two contenders met such criterion. It was the decision of the three administrative officials entrusted with such responsibility that respondent Borja was entitled to the promotion. It came about with the records of both being carefully scrutinized. The very petition with its annexes is indicative that there was not the slightest favoritism or discrimination shown. Respondent Borja appeared to have both experience and seniority on his side. Moreover, he is possessed of the ability to discharge the task incumbent on a penal supervisor. He had earned the promotion then. What is more, there was no disregard of the constitutional principle of merit and fitness. Whatever advantage may inhere in petitioner having finished college work, with respondent Borja merely completing his high school, is more than offset by the latter's seniority of more than nine years and the experience that was his as a junior inspector, overseer and security officer. To repeat, no infringement of the constitutional requirement as to merit and fitness is discernible. The petition must fail. The law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a devi ation therefrom fatal. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless the law speaks in the most mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. 95425 February 26, 1992 FLORENCIO P. SALLES, petitioner, vs. NICEFORO B. FRANCISCO, et al., respondents FACTS:

Respondent Niceforo Francisco has been working with the Bureau of Internal Revenue since 1978 as Revenue Collector I. He was subsequently promoted to the position of Revenue Budget Examiner II effective July 31, 198l; as Revenue Budget Officer effective August 1, 1985; and a year later, to the position of Revenue Fiscal Officer effective October 28, 1986. When the position for Chief Revenue Officer III, Fiscal Operations Branch, Revenue Region 5, BIR, Legaspi City became vacant, defendant Francisco was temporarily appointed by the then BIR Commissioner Bienvenido A. Tan, Jr. effective November 1, 1987. Learning of the appointment, petitioner protested advancing the following: (1) That Defendant Francisco is holding the position in a temporary capacity; (2) That appellee is a mere college graduate while appellant is a Certified Public Accountant (CPA); (3) That he has been an Examiner III in the Commission on Audit (COA), and has attended several seminars on Government Accounting and Auditing and taught the subject. On two occasions he has been designated as Officer-in-Charge. On March 6, 1989, the Civil Service Commission dismissed petitioner Salles' appeal for lack of merit. The Commission ruled that After a careful review of the records, in the absence of a showing or proof to the contrary, this Commission adheres with the BIR-RAB finding that, subject protest was filed beyond the reglementary period. Section 18 of the Rules on Government Reorganization provides that, "Any officer or employee aggrieved by the appointments made may file an appeal with the appointing authority within ten (l0) days from the last day of posting of the appointments by the Personnel Officer . . ." Assuming however, that the protest was filed within the period prescribed therefor, it cannot, just the same be given due course. Records show that protestant-appellant is not an incumbent of the subject position. Neither was he a holder of a higher level position than herein appellee. His position of Revenue Enforcement Officer (Grade 16) before the BIR reorganization is of the same level, rank and salary to the Revenue Fiscal Officer (Grade 16) held by herein appellee. Such being the case, in the absence of a showing that a holder of a higher level position protested subject appointment in time and/or abuse of authority or discretion was committed in issuing said appointment, the choice of the appointing authority is hereby upheld. Unfazed, petitioner Salles sent a protest letter addressed to the Office of the BIR Commissioner. While said protest was unresolved, Commissioner Ong permanently appointed defendant Francisco to the contested position of Chief Revenue Officer III. Subsequently, The Committee on Contested Appointments, Bureau of Internal Revenue, where the protest of petitioner was indorsed denied the protest on the absence of substantial reasons to reconsider. ISSUE: WON, Francisco who is not a CPA may validly be appointed to the position of Chief Revenue Officer III. HELD: Plaintiff, however, questions defendant Francisco's appointment to the said position upon the claim that only CPAs are qualified for appointment to the said position as the functions and duties of such newly created office or position under the Reorganization Act categorically falls under Accountant positions in the Accounting Occupational Group and equivalent positions in allied occupational groups, the duties of which falls squarely within the meaning of the practice of Accountancy, as defined in the Accountancy Board Law and the Revised Accountancy Law, and petitioner being a CPA, is the one qualified and entitled to be appointed to the position in question and not respondent Francisco. However, it is clear under R.A. 1080 that the CPA eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions, the duties of which involve the practice of the accountancy profession and that for accountant position lower than the Chief of the Accounting Division or its equivalent, the career service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, Major in Accounting. In the case at bar, petitioner has not shown that the position of Chief Revenue Officer of the Fiscal Operations Branch of the BIR, Legaspi City falls within the category of Chief of the Accounting Division of the BIR. In the absence thereof, the career service (Professional) eligibility of respondent Francisco may be considered sufficient qualification for the contested position. Moreover, in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings/seminars attended, agency examination and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. The court should not substitute its own judgment to that of the appointing authority. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. CA, CIVIL SERVICE COMMISSION (CSC), EDUARDO A. TAN, LOURDES M. DE GUZMAN, et. al., respondents G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. CA and ISMAEL A. MATHAY, JR., respondents G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., MAYOR OF QUEZON CITY, petitioner, vs. CA, CSC and SANDY C. MARQUEZ, respondents FACTS:

During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents to positions in the Civil Service Unit (CSU) of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law for failure to publish in the Official Gazette. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC140, Series of 1990, which established the Department of Public Order and Safety (DPOS). Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. HELD: G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the 5 provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, and ordering their reinstatement to their former 6 7 positions in the DPOS. Petitioner brought petitions for certiorari to this Court, to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the 10 sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission 11 substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created

DPOS, there is therefore no room left for the exercise of discretion. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. The decision of the CA is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out, the private respondents' appointments in the defunct CSU were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment , subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto," this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest." A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------TOPIC: Modes of Commencing Official Relations Appointments in the Civil Service G.R. No. 99336 June 09, 1992 MELANIO S. TORIO, petitioner, vs. CSC, NATIONAL PRINTING OFFICE, OFFICE OFTHE PRESS SECRETARY and EFREN CAMACHO, respondents FACTS: These two consolidated petitions assail the resolutions of the Civil Service Commission (CSC) revoking the appointment of herein petitioners on the ground that they lacked the necessary civil service eligibility at the time of the issuance of their appointments.

The same series of events gave rise to the controversy in these two petitions. Executive Order No. 285 issued on July 25, 1987 abolished the General Services Administration (GSA) including all offices and agencies under it. The General Printing Office (GPO) which was under the GSA was merged with the relevant printing units of the Philippine Information Agency (PIA) and out of the merger arose the National Printing Office (NPO) which was placed under the control and supervision of the Office of the Press Secretary (OPS). A new plantilla of personnel for the NPO was prepared and approved and the affected officers and employees continued to perform their respective duties and responsibilities in a hold-over capacity pending the implementation of the reorganization. The petitioner in G.R. No. 99336, Melanio Torio, was the Chief of the Production Staff of the Printing Division, PIA, while the petitioner in G.R. No. 100178, Jaime Espanola, was a Bindery Foreman at the PIA. They continued discharging their functions in a hold-over capacity after the PIA was merged with the GSA. On March 1, 1988, in accordance with the new staffing pattern of the NPO, petitioner Torio was temporarily appointed as Assistant Operations Superintendent of Printing while petitioner Espanola was appointed as Temporary Supervising Bookbinder. Both appointments lapsed on February 28, 1989. So on March 1, 1989, petitioner Torio was extended a renewal appointment which was likewise in a temporary capacity while petitioner Espanola was issued another appointment was Supervising Bookbinder with permanent status. On the same date, Espanola was granted a testimonial eligibility. On July 1, 1989, the positions of both petitioners were upgraded the Assistant Operations Superintendent of Printing was changed to Assistant Superintendent of Printing and the Supervising Bookbinder to Bookbinder IV. This time, another appointment was issued to Torio for the upgraded position together with his change of status from temporary to permanent. Espanola, on the other hand, was given only a notice of the upgrading of his position inasmuch as he was already holding it in permanent capacity. Prior to the appointments of the petitioners to the permanent items, protests were lodged with the CSC. The protestants were Efren Camacho and Letty Cangayda, the private respondents in G.R. No. 99336 and G.R. No. 100178, respectively. The CSC referred Camacho's protest to the NPO while Cangayda's protest was referred to the Reorganization Appeals Board of the OPS. The offices concerned did not take any action on the referrals by the CSC so the latter was constrained to resolve the protests based on the available documents or papers before it. Subsequently, the CSC revoked the appointment of Torio and ordered those qualified, including Camacho, to be evaluated for the position. Similarly, the CSC rendered another resolution cancelling Espanola's appointment and ordering the reappointment of Cangayda to the position. The motions for reconsideration filed separately by the present petitioners were denied for lack of merit; hence, the present recourse to this Court. ISSUE: WON, the appointment of Torio and Espanola was valid. HELD: YES! - Petitioner Torio alleges that at the time of his appointment, he was already a civil service eligible having passed the career service professional examination. He further contends that Camacho's protest has become moot and academic inasmuch as the temporary appointment against which the protest was directed has already expired. Consequently, the Commissioner has no authority to withdraw its previous approval which has lapsed. Torio likewise stresses the fact that he has security of tenure as provided under the Constitution such that his removal must only be for cause and after due process. Private respondent Camacho, on the other hand, avers that the Commission has the power to review appointments for the correction of mistakes in the approval or disapproval thereof. Moreover, at the time of Torio's appointment, there were other qualified eligibles who were not given the chance to be considered for the contested position through no fault of their own. The Solicitor General filed an adverse Comment stating that the CSC committed grave abuse of discretion in revoking the permanent appointment of petitioner Torio who was found to possess all the qualifications required of the position. It added that an appointment is essentially within the discretionary power of the appointing authority, subject to the only condition that the appointee should possess the qualifications required by law. Petitioner Espanola, for his part, contends that he possesses the qualifications for the position of Supervising Bookbinder (now Bookbinder IV).He is a Supervising Bookbinder Eligible; he has more than ten years of service very relevant to the duties and functions of Supervising Bookbinder; he is not facing any administrative charge; and he possesses the minimum educational qualifications to the position for all of which his appointment has been approved by the CSC. He further contends that inasmuch as his appointment has already been approved by the CSC, it cannot be withdrawn, recalled or cancelled. He takes the same stand as petitioner Torio with respect to the protest being moot and academic as well as his security of tenure under the Constitution. Private respondent Cangayda, on the other hand, claims that the appointment of petitioner Espanola is a flagrant violation on his security of tenure. She was a Supervising Bookbinder under a permanent status prior to the reorganization and she should, thus, thereafter, be appointed to the same item in the same capacity. She contends that her protest is primarily directed against her demotion and non-reappointment to the position of Supervising Bookbinder as well as the consequential appointment of petitioner in her stead and not petitioner's temporary appointment. More importantly, Espanola is not qualified for appointment to the contested position since at the time of his appointment, he was not a civil service eligible and there was a civil service eligible actually available and ready to accept the appointment in the person of private respondent Cangayda. And since the appointee is not qualified, the CSC, being the central personnel agency of the government, can look into the legality of an appointment and consequently order its revocation and cancellation. The Solicitor General, in his comment for the public respondent, added that the subsequent acquisition of eligibility by the petitioner is of no moment inasmuch as the reckoning point should be the time of appointment and not any time before or after. The CSC, in revoking the appointments of herein petitioners based its resolutions primarily on the fact that the petitioners did not possess the civil service eligibility called for by their respective positions. The CSC ruled further, that their subsequent acquisition of eligibility will not validate the otherwise invalid appointments inasmuch as the material date is the date of appointment. The foregoing pronouncements of the CSC hold true only insofar as the temporary appointment of petitioner Espanola is concerned. However, it must be noted that under Section 25 Presidential Decree 807 otherwise known as the Civil Service Decree of the Philippines, an appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (1) it is necessary in the public interest to fill a vacancy; (2) there are no appropriate eligibles; (3)the temporary appointment shall not exceed twelve months; and (4) he may be replaced sooner if a qualified civil service eligible becomes available. Still, at the time of the temporary appointment of petitioner Espanola, a civil service eligible who was willing to accept the position was

available in the person of private respondent Cangayda. Apparently, there was disregarded of the mandate of the law when Espanola's temporary appointment was issued. Nevertheless, the petitioner has correctly pointed out that the protest lodged by private respondent Cangayda had become moot and academic inasmuch as petitioner Espanola's temporary appointment had already lapsed. It is erroneous for the CSC to treat Cangayda's protest as a continuing one. The same holds true for the protest lodged by Camacho. A permanent appointment is not a continuation of the temporary appointment these are two distinct acts of the appointing authority. The fact that the appointees in the two appointments are one and the same person is purely incidental. Any irregularities in the former appointment are not to be automatically carried over to the latter. If the protest is directed against the temporary appointment, it would be illogical to carry-over the merits of the protest to the subsequent permanent appointment. The preceding ruling should not be construed to mean, however, that by the mere expedient of appointing the temporary appointee to a permanent status, the appointing authority can deprive the protestant of an opportunity to question the appointment. First, the protestant is not precluded from filing another protest directed against the permanent appointment. Second, if it can be shown that the appointment was purposely done to moot the protest or is characterized by malice, then corrective action can be taken and, moreover, the erring officials can be proceeded against administratively. It must be emphasized that if a protest filed against a temporary appointment is carried over to the subsequent permanent appointment to the same position of the same person, an anomalous situation will arise wherein the permanent appointee's security to his position would be jeopardized by considerations outside of his permanent appointment. The chances of the occurrence of the previously described situation would be minimized if the CSC promptly acts upon the protest. After giving the department or agency to which the protest is preferred a reasonable deadline to act, its inaction may be a basis for the CSC to give positive relief. The situation in the present petitions could have been prevented if the CSC did not wait for two years before taking the appropriate action on the protests filed. From the foregoing discussions, it is established that the questioned resolutions of the CSC should be declared inapplicable to the petitioners because they refer to the temporary appointments which had already lapsed when they were issued. With regards the permanent appointments At the time petitioner Espanola was issued a permanent appointment, he was also granted testimonial eligibility such that he is to be considered as possessing the requisite civil service eligibility for his position. The same holds true with petitioner Torio. At the time of his permanent appointment, he was already a career service professional, having passed the civil service examination. In fact, even at the time of Torio's temporary appointment, he already possessed the civil service eligibility called for by the position. The QS established for the contested positions do not only prescribe the eligibility but also the minimum education and experience required of the position. Even if the petitioners possess the required civil service eligibility, there would still be abuse of discretion by the appointing authority if the other qualifications are not satisfied. Based on the QS requirement, the records show that both petitioners possess qualifications required of the contested positions. Private respondent Cangayda, however, questions petitioner Espanola's noncompletion of a secondary course as prescribed by the QS. It would be appropriate to state at the outset that when necessary, education, experience or training may be used interchangeably to offset deficiencies. The necessity exists if the appointee's training or experience is of such a level that the same would more than supplement the deficiency in education considering the demands of the position in question. The converse holds true if the appointee's deficiency is in the required training or experience. The decision as to when the conditions give rise to a necessity to interchange education with experience and vice-versa rests upon the sound discretion of the appointing authority. This is not to be viewed as an unbridled license given to the appointing authority to appoint whomsoever he desires. This is rather a recognition of the fact that the appointing authority is in the best position to determine the needs of his department or agency and how to satisfy those needs. Moreover, it is precisely the province of the QS to provide the gauge by which the appointing authority shall exercise his discretion. The QS has been defined in Section 20, PD 807 as expressing the minimum requirements for a class of position in terms of education, training and experience, civil service eligibility, physical fitness and other qualities required for successful performance. It is, thus, the QS which provides for the considerations upon which the appointing authority decides when the levels of education of experience may be sufficient to offset each other. With respect to petitioner Espanola's case, the necessity to offset the deficiency in education with his training is very apparent from his work-experience. It must be stressed that the contested position belongs to the trades and crafts group wherein the emphasis is necessarily on the skill required by the work. There can be no doubt that fitness for the job is developed through years of actual work. Petitioner Espanola's service record shows that from 1973 until his permanent appointment in 1989, he had continuously engaged in bindery work. It must likewise be pointed out that he was extended a testimonial eligibility which is a confirmation by the appointing authority of his capacity to perform the type of work which his position requires. Worthy of note is the fact that at the time of the grant of testimonial eligibility, the QS was already being enforced such that the appointing authority is presumed to have taken into consideration the standards prescribed. There is, thus, no escaping the conclusion that Jaime Espanola is qualified to handle the demands of the contested position. With respect to petitioner Torio, on the other hand, the records show that he fully qualifies for the position to which he was appointed. Although petitioner Torio majored in Political Science and not in Commerce or Business Administration, the QS provided that the latter two are mere preferences. As to private respondent's claim that Torio had only one year, six months and eight days of experience in printing operations at the time of his, the QS provided that the experience may be another related work. The appointing power may have found Torio's previous work experiences sufficient to tack to the number of years of experience in actual printing operations coupled with the numerous seminars and trainings he had attended. There is thus, no evident violation of the QS. From the foregoing, it is established that petitioners Espanola and Torio are qualified for the positions to which they were appointed. The appointing authority's exercise of discretion in the choice of appointees must be respected even if there are other persons who are likewise qualified for the position such as private respondents Cangayda and Camacho. In fact, the CSC does not have the power to overruled such discretion even if it finds that there are other persons more qualified to the contested position underscoring supplied. 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 and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit,

courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain job, who can do it best should be left to the head of the Office concerned provided the legal requirements for the office are satisfied. Employees or officers holding permanent appointments do not automatically get appointed to the new positions. The appointing authority is still given latitude in making his choice considering the duty resting on his discretion to see to it that the best interest of the public is served with each appointment he makes. In the present case, the reorganization was undertaken to promote economy, efficiency and effectiveness in the delivery of public services. The appointing authority should be given sufficient discretion to be able to ensure that the purposes and objectives are met. It is in this light that the appointments of petitioners Espanola and Torio should be viewed. Petitioners Espanola and Torio were validly appointed to the questioned positions. Only the corollary issue of whether or not private respondent Cangayda's security of tenure was violated by the appointment of petitioner Espanola remains to be settled. Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, are organization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. It is worthy to re-state that the present petitions arose due to the abolition of the GSA and its merger with the relevant printing units of the PIA giving rise to NPO. There is no showing that the reorganization was undertaken for any reason other than its purpose of promoting economy, efficiency and effectiveness in the delivery of public service. In fact, the private respondents did not put in issue the validity of the reorganization but merely questioned their non-appointment to the contested positions. We are constrained to assume that there was in the present case, a bona fide reorganization. Hence, private respondent Cangayda cannot successfully impugn her alleged removal as illegal for under the facts of the case, she was not dismissed; rather, her former position was abolished. There is nothing in this decision which precludes the more appropriate recourse of private respondent Cangayda to appeal to the better judgment of the Department Head to consider her for other vacant positions more commensurate to her qualifications. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. 111471 September 26, 1994 CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners, vs. CSC, respondent FACTS: Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992, petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the Office of General Services of the City Government of San Carlos. Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of General Services Officer. Before her promotion in 1992, she had been in the service of the City Government for about thirty-two (32) years. She joined the City Government as Assistant License Clerk and she then rose from the ranks through the years. On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General Services Officer of San Carlos City and receiving the regular salary attached to that position. On 16 December 1992, public respondent Civil Service Commission received a letter from Congressman Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to the promotional appointment issued by petitioner Mayor in favor of his wife. The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner Victoria. From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that petitioner Mayor was the lawful husband of the appointee, petitioner Victoria, the two having been married sometime in 1964. Director Caberoy also reported that the appointment papers prepared by the Office of the City Mayor of San Carlos were submitted to the Bacolod City CSC-Field Office on 28 October 1992, and that the appointment was thereafter approved by Director Purita H. Escobia of that CSC-Field Office. Acting on the report of Director Caberoy, the Commission recalled the approval issued by Director Escobia and disapproved the promotion of petitioner Victoria to the position of General Services Officer of San Carlos City upon the ground that that promotion violated the statutory prohibition against nepotic appointments. Petitioners moved for reconsideration, contending that the statutory prohibition against nepotism was not applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the Commission had deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment. The motion for reconsideration was denied by the Commission. Petitioners assert that Victoria can no longer be removed from the position of General Services Officer without giving her an opportunity to be heard and to answer the charged of nepotism. Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post. He states that his wife was the most qualified among the candidates for appointment to that position, she having worked for the City Government for thirty-two (32) years and being highly recommended by the OIC-Treasurer of San Carlos City. It is also claimed by petitioner Mayor that his choice of his wife for the position was concurred in by the Sangguniang Panglungsod. He further avers that he had consulted the Field and Regional Officers of the Commission in Bacolod City, and raised the question of applicability of the prohibition against nepotism to the then proposed promotion of his wife and one Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod Office, informed him that the promotional appointment was not covered by the prohibition. The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original appointments and not to promotional appointments. They believe that because petitioner Victoria was already in the service of the City Government before she married petitioner Mayor, the reason behind the prohibition no longer applied to her promotional appointment. Petitioners also

affirm that petitioner Victoria deserves to be promoted to General Services Officer, considering her long and faithful service to the City Government. ISSUE: 1. WON, a promotional appointment is covered by the legal prohibition against nepotism, or whether that prohibition applies only to original appointments to the Civil Service; and 2. WON, the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner Victoria after the Commission, through Director Escobia, had earlier approved that same appointment, without giving an opportunity to petitioner Victoria to explain her side on the matter. HELD: The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised Administrative Code of 1987 (also known as E.O. No. 292). A textual examination of said Section reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it explicitly covers " all appointments", without seeking to make any distinction between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal government, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions, which appears to be a closed one, set out in Section 59 itself, but it is a short list: (a) persons employed in a confidential capacity; (b) teachers; (c) physicians; and (d) members of the Armed Forces of the Philippines. Under the provisions of the Omnibus Implementing Rules, both an original appointment and a promotion are particular species of personnel action. The original appointment of a civil service employee and all subsequent personnel actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc., must comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. To the extent that all personnel actions occurring after an original appointment, require the issuance of a new appointment to another position (or to the original position in case of reinstatement), we believe that such appointment must comply with all applicable rules and prohibitions, including the statutory and regulatory prohibition against nepotism. To limit the thrust of the prohibition against nepotism to the appointment issued at the time of initial entry into the government service, and to insulate from that prohibition appointments subsequently issued when personnel actions are thereafter taken in respect of the same employee, would be basically to render that prohibition meaningless and toothless. Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that prohibition was intended to be a comprehensive one. The basic purpose of which is to ensure that all appointments and other personnel actions in the civil service should be based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power. One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable here because petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is not disputed that the original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof, that the prohibition against nepotism is not applicable to the case of a member of any family who, after his or her appointment to any position in any office or bureau, contracts marriage with someone in the same office or bureau , in which event the employment or retention therein of both husband and wife may be allowed. The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at stake. Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as applicable b oth to original and promotional or subsequent appointments, would be to deprive the government of the services of loyal and faithful employees who would thereby be penalized simply because the appointing or recommending official happens to be related to the employees within the third degree of consanguinity or affinity. A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an original or a promotion appointment, may in fact be quite loyal and efficient and hard-working; yet that circumstance will not prevent the application of the prohibition certainly in respect of the original appointment. The Court is not unaware of the difficulties that the comprehensive prohibition against nepotism would impose upon petitioner Victoria and others who maybe in the same position. It is essential to stress, however, that the prohibition applies quite without regard to the actual merits of the proposed appointee and to the good intentions of the appointing or recommending authority, and that the prohibition against nepotism in appointments whether original or promotional, is not intended by the legislative authority to penalize faithful service. The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has remained for decades, is precisely to take out of the discretion of the appointing and recommending authority the matter of appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the appointing or recommending official by preventing that objectivity from being in fact tested. The importance of this statutory objective is difficult to overstress in the culture in which we live and work in the Philippines, where family bonds remain, in general, compelling and cohesive. The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language: it refers to "all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.

It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the prohibited class of appointments: the prohibited relationship between the appointing authority (petitioner Mayor) and the appointee (wife Victoria) existed at the time the promotional appointment was issued. It is scarcely necessary to add that the reasons which may have moved petitioner 14 Mayor to issue the prohibited appointment are, as a matter of law, not relevant in this connection. II We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria was approved by Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When petitioner Victoria took her oath of office and commenced the discharge of the duties of a General Services Officer, she acquired a vested right to that position and cannot, according to petitioners, be removed from that position without due process of law. This argument misconceives the nature of the action taken by the respondent Commission. That action was not the imposition of an administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There were no administrative charges in respect of which petitioner Victoria would have been entitled to notice and hearing. The Commission, in approving or disapproving an appointment, only examines the conformity of the appointment with applicable provisions of law and whether the appointee possesses all the minimum qualifications and none of the disqualifications. At all events, as the Solicitor General has noted, petitioner Victoria was afforded an opportunity to be heard when she filed a motion for reconsideration with the Commission and there challenged the disapproval by the Commission. The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292 and the relevant Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria was a violation of Section 59, it was null and void as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets out the principal legal consequence of an appointment issued in disregard of the statutory prohibition. A void appointment cannot give rise to security of tenure on the part of the holder of such appointment. The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g., promotions. Such power includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations. The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers, Director Escobia, was accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being void "from the beginning." The approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment. We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion, amounting to lack of excess of jurisdiction on the part of respondent Commission. WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------TOPIC: Modes of Commencing Official Relations Vacancy G.R. No. L-32271 January 27, 1983 MARCIAL COSTIN, et al., petitioners, vs. HON LOPE C. QUIMBO, Judge of CFI Leyte, and HIGINIO VERRA, respondents FACTS: Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte since January 1, 1949. Subsequently, he was promoted to sergeant of police. One year after, the outgoing municipal mayor of Abuyog promoted him to chief of police. This last appointment was not attested and approved as required by law. On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the police department. On the same day, the municipal mayor extended to respondent Higinio Verra a permanent appointment as Chief of Police of Abuyog. Verra immediately took over the position. His appointment was eventually approved as permanent under Section 24 (b) of Republic Act 2260 by the Commissioner of Civil Service. On January 19, 1960, Lajer and the eight members of the police force filed an action for mandamus before the CA against the municipal mayor, municipal treasurer and the municipal council of Abuyog, contesting their separation from the service. While this petition for mandamus was pending, there was again a change in the municipal administration of Abuyog, Leyte as a result of the 1963 local elections. The newly elected municipal mayor dismissed respondent Verra from office on January 16, 1964. Verra was replaced by Victoriano Silleza officer-in-charge, on January 17, 1964 until October, 1964 when petitioner Marcial Costin was appointed chief of police. On December 29, 1964, respondent Verra filed for quo warranto with mandamus before the trial court questioning the legality of his separation alleging that he could not be dismissed because he was a civil service eligible and in possession of an appointment to the position of chief of police of Abuyog, Leyte duly attested "Permanent" by the Civil Service Commission. On January 22, 1966, CA, in deciding the mandamus suit, ruled that Lajer, Tomines and Jervoso "were illegally removed from office and are, therefore entitled to reinstatement to their respective positions. As a result of the CA decision, then mayor Tisado reinstated Lajer as chief of police. Consequently, respondent Verra amended his petition, impleading Lajer as additional respondent therein.

Petitioners argue that the appointment issued in favor of respondent Verra as chief of police was invalid and ineffective because the said position was not vacant. Respondent Verra on the other hand, contends that the office in question was legally vacant when he was appointed thereto because Lajers appointment was never attested as required by law or incomplete, and, therefore, never becam e effective. It is further contended that Lajers appointment as chief of police was temporary in character and terminable at the pleasure of the appointing authority and when Lajer was separated from the office of chief of police, the position became legally and physically vacant. Verra also claims that since he is a civil service eligible and his appointment as chief of police was attested as permanent, his dismissal is illegal. Subsequently, the trial court in a separate case filed by Verra ruled that Verra was illegally separated and ordered the municipal mayor to reinstate Verra immediately. This decision is now before us for review. ISSUES: WON, the appointment of respondent Higinio Verra to the position of Chief of Police of Abuyog, Leyte, was valid and consequently his removal therefrom illegal. HELD: When respondent Verra was appointed chief of police, Lajer had just been dismissed from office with several other members of the police force. The validity of Verras appointment, therefore, hinges on the legality of Lajers removal. It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be appointed to an office whic h is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated. The lower court's error lies in its looking at the issues primarily from the viewpoint of Verras removal, his qualifications and eligibility for the position, and whether or not his dismissal was valid. In the process, the lower court overlooked the fact that Verra could not have been permanently appointed to the contested position because no less than the Court of Appeals had declared that his predecessor, Estanislao Lajer was illegally terminated from office and must be reinstated to his former position. Respondent Verra argues that Lajers appointment as chief of police was temporary and terminable at the pleasure of the appointing power. The private respondent is correct in asserting that when the promotional appointment of Lajer was made in 1959, it could not be considered final or complete. Under Section 2(a) of Rule VI, the Civil Service Rules implementing Section 16(g) of Republic Act 2260, an appointment extended by an officer duly empowered to make it is not final and complete until after the Commissioner of Civil Service has certified that such an appointment may be made. It is likewise true that under Section 20 of Republic Act 2260 which, in part, provides: SEC. 20. Delegation in the Civil Service Commission and to the Agencies. -... Appointments by municipal mayors shall become effective upon issuance of such appointments and upon attestation by the provincial treasurer in the case of appointments made by municipal mayors. All appointments made by the municipal mayors shall, after being attested to by the respective provincial treasurer be forwarded within ten days to the Commissioner of Civil Service for review pursuant to Civil Service law and rules. If within one hundred eighty days after receipt of said appointments, the Commissioner of Civil Service shall not have made any correction or revision, then such appointments shall be deemed to have been properly made. ... the attestation by the provincial treasurer of Leyte was necessary to make the appointment of petitioner Lajer effective.* However, these requirements could not be complied with because Lajer who had been appointed on November 25, 1959 was replaced on January 14, 1960 by the new mayor of the municipality who appointed Verra in his stead. The incoming mayor should have awaited the action of the provincial treasurer and later, the Commissioner of Civil Service, before appointing his own protege to a position with an incumbent occupying it. Respondent Verra cannot rely on the absence of an attestation from the provincial treasurer and a certification from the Civil Service Commissioner insofar as Lajers appointment is concerned because by the fact of Verras appointment, these requirements could no longer be fulfilled. Mayor Octavio Traya took the appointments away from the office of the Provincial Treasurer before they could be acted upon. The Commissioner could no longer act within 180 days. The insuperable factor, however, which stands in the way of Verras reinstatement with backwages for eighteen (18) years from 1964 to the present is the Court of Appeals decision in Lajer et al. v. Traya et al.. The Court of Appeals was presented squarely with the issue of whether or not Estanislao Lajer and seven other petitioners were illegally separated from the service by Mayor Octavio Traya.In said case, the Court of Appeals ruled that Estanislao Lajer Mariano Tomines, and Melecio Jervoso were illegally removed from office and must be reinstated. The argument of respondent, Verra that Mayor Tisado should have refrained from reinstating Lajer as chief of police notwithstanding the decision of the Court of Appeals because he, Verra had filed a case with the Court of First Instance contesting the same position betrays a lack of understanding of a final and executory decision of an appellate tribunal. The decision of the Court of Appeals superseded any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and the same facts. It was precisely the termination of Lajers promotional appointment as chief of police which the appellate court struck down. Since Lajer was not validly terminated from public office and, as a matter of fact, was ordered reinstated through a warrant of mandamus, it follows that there was no vacancy in the office of chief of police and there was no office to which Higinio Verra could have been appointed. The discussions in the decision of the respondent judge on whether or not Higinio Vera was validly removed from office are all beside the point. Never having been validly appointed, there was no office from which he was -illegally dismissed. At most,

he was a de facto officer during the years when Lajer was litigating his action for reinstatement in the court of first instance and in the court of appeals. And as earlier stated, the certification by the Commissioner of Civil Service that Mr. Verra possessed the qualifications and the eligibility, doubtful though the latter may be, for the position of chief of police could not have made the proceedings in court moot and academic much less rendered inutile the decision of the Court of Appeals in Lajers favor. Moreover, the equities of the case do not lean towards respondent Verra Estanislao Lajer had been a member of the Abuyog police force since January 1, 1949. He had passed the patrolman's examination, was promoted to corporal, later to sergeant, and finally to chief of police in his tenth year of service. On the other hand, Higinio Verra was a school teacher with apparently no police experience whatsoever when he was appointed chief of police. It is too late in the day now to debate the correctness of the Court of Appeals decision that non- attestation was not sufficient cause for outright removal. The decision has long been final and was implemented in 1966. There is similarly no point in resolving the issue as to who has better qualifications and more nearly appropriate eligibility for the position of chief of police - a police sergeant with ten years experience and patrolman's eligibility or a school teacher with a senior teacher's eligibility. -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------G.R. No. L-20370 November 29, 1963 CONRADO ESPINOSA SIGUIENTE, petitioner, vs. SEC OF JUSTICE, et al., respondents FACTS: On December 26, 1961, days before the expiration of the term of his office, then President Carlos P. Garcia, sent a letter to the Commission on Appointments for the confirmation of certain ad-interim appointments, among them is that of petitioner Siguiente as justice of the peace of Balimbing, Sulu. On December 30, 1961, the newly elected president Diosdado Macapagal assumed office. The following day, on December 31, President Macapagal issued Order No. 2 revoking and cancelling all appointments extended or released by President Garcia after December 13, 1961. Notwithstanding the administrative order, on May 3, 1962, such appointment was confirmed by the Commission on Appointments. On May 18, 1962, petitioner Siguiente took his oath as justice of the peace of the said town. Respondents now question the appointment of petitioner of Siguiente as being one of those midnight appointments of former president Garcia. ISSUE: WON, the appointment of petitioner Siguiente as justice of the peace was valid. HELD: NO! At most, the letter of President Garcia to the Commission of December 26, 1961 was a nomination which can be recalled and was in fact recalled by its successor. Further, President Garcia could not validly appoint petitioner Siguiente for the reason that as the Commission on Appointments would meet in January 1962 after he had left the Presidency he would thereby be making an appointment to take effect after he has ceased to be President (his term having expired on December 30, 1961). It is settled that "an officer has no right to forestall the rights and prerogatives of his successor by making a prospective appointment to fill an office, the term of which is not to begin until his own term and power have expired."