G.R. NO.

L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:

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

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

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

The Solicitor General, rather than face the question squarely, says the petitioner could
be validly replaced in the instant case because his appointment was temporary and
therefore could be withdrawn at will, with or without cause. Having accepted such an
appointment, it is argued, the petitioner waived his security of tenure and consequently
ran the risk of an abrupt separation from his office without violation of the Constitution. 5

While the principle is correct, and we have applied it many times, 6 it is not correctly
applied in this case. The argument begs the question. The appointment of the petitioner
was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and it
was not for the respondent Civil Service Commission to reverse him and call it
temporary.

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

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

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

It is well settled that the determination of the kind of appointment to be

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

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

Appointment is an essentially discretionary power and must be performed by the officer

in which it is vested according to his best lights, the only condition being that the
appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of
wisdom which only the appointing authority can decide.

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

Moreover, the Commission on Appointments could review the wisdom of the

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

It is understandable if one is likely to be misled by the language of Section 9(h) of Article

V of the Civil Service Decree because it says the Commission has the power to
"approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional

to positions in the civil service, except those presidential appointees,
 members of the Armed Forces of the Philippines, police forces, firemen,
and jailguards, and disapprove those where the appointees do not
possess appropriate eligibility or required qualifications. (emphasis
supplied)

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

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

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

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

WHEREFORE, the resolution of the respondent Commission on Civil Service dated

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

SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez,

Jr., and Paras, JJ., concur.