PEDRO V. AGUILAR, PETITIONER-APPELLANT, VS. PEDRO NIEVA, JR., HON. PEDRO M. GIMENEZ, IN HIS CAPACITY AS AUDITOR GENERAL, AND DEVELOPMENT BANK OF THE PHILIPPINES, RESPONDENTS-APP…

The alleged disregard of the statutory requirement under Section
23 of the Civil Service Act that in case of a vacancy occurring “in any
position in the competitive service in the government or in any
government-owned or controlled corporation or entity, the officer or employee
next in rank preferably in the same office, who is competent and qualified to
hold the position”^[1]
should be appointed thereto, was the basis of an action for quo warranto, prohibition and mandamus which was
dismissed by the lower court.  In this
appeal, petitioner Pedro V. Aguilar would insist on his claim to the contested
position of Auditor of the Development Bank of the Philippines on the above
provision, stressing what he deemed were his superior qualifications, bolstered
by seniority, ignoring that respondent Pedro Nieva,
Jr., the choice of respondent Auditor General, had had experience as Assistant
Auditor for almost ten years in said Bank with a consistent efficiency rating
of not less than 90 percent and that he had discharged the function of Auditor
in such office in an acting capacity during the absence of the incumbent.  In petitioner’s brief as appellant, he would
impress on this Court that the appointing power, in the light of the above
statutory requirement, was well-nigh bereft of discretion, this notwithstanding
that respondent Auditor General is a constitutional official and the vacancy
did occur in a position of responsibility, requiring the exercise of judgment
in which previous experience and training were certainly helpful.  Moreover, petitioner’s stand is opposed to
the principle hitherto followed in past decisions.  Accordingly, we affirm.

The petition for quo warranto,
prohibition and mandamus with preliminary injunction was filed on May 17, 1965,
the prayer being for a revocation of the designation by respondent Auditor
General of respondent Pedro Nieva, Jr. as acting
Auditor of the Development Bank of the Philippines and the withdrawal of the
appointment issued in his favor dated May 15, 1965 as well as for a declaration
that petitioner was the person legally entitled to hold such office of Auditor
in said bank.  After hearing, a decision
was rendered by the lower court on October
3, 1967 dismissing the case.

In the decision now on appeal, the facts bearing on the respective
qualifications of petitioner and respondent Pedro Nieva,
Jr. were set out in some detail.  This is
what was said of petitioner: 
“Petitioner was Auditor and Representative of the Auditor General
in the Philippine Veterans Bank, he having been appointed on February 6, 1964, [and thereafter]
qualified [as such].  He was receiving a
compensation at the rate of P18,000.00 per annum and
allowances and privileges allowed or authorized by Republic Act No. 2260.  Lately, he was appointed Auditor of the National
Waterworks & Sewerage Authority and assumed the office.”^[2]
The antecedents of the case were set forth thus:  “On April 23, 1965, he wrote a letter to
the Auditor General reiterating his ‘often repeated request’ for him ‘to
favorably consider him (petitioner) for the prospective vacancy of Auditor’ of
respondent Development Bank of the Philip­pines upon the retirement of then
incumbent Isidro Bunag on May 14, 1965, when he would
reach the compulsory retire­ment age.  On
May 3, 1965, petitioner wrote a letter to respondent Commissioner of Civil
Service, stating, among other things, that ‘there is a strong possibility that
in filling this position (that of Auditor of DBP), the Auditor General may
abuse the time honored principles of seniority, merit and other factors, as
rumors are going around that Mr. Pedro Nieva, who is
one of the assistant auditors of the DBP, is the probable appointee for the
position.’ He asked respondent Commissioner of Civil Service to consider his
said letter as a protest against the appointment of respondent Pedro Nieva, Jr.  On May 6, 1965, the Auditor General
issued Office Order No. 33691, designating respondent Pedro Nieva,
Jr., as Acting Auditor of respondent Development Bank of the Philip­pines,
effective May 15, 1965.”^[3]

At that time, respondent was Assistant Auditor of the Development
Bank of the Philippines.  Thereafter, on May 15, 1965, he was given a permanent appointment to such
a position, the previous incumbent having retired the day previously.  This petition came two days thereafter.  The decision likewise noted the
qualifications of respondent Nieva, Jr. thus:  “Respondent Auditor General alleges as
special and affirmative defenses, among other things, that in designating
respondent Pedro Nieva, Jr., as acting Auditor the
following were taken into consideration, to wit:  (a) he was the Assistant Auditor next in rank
to the Auditor of the respondent Bank; (b) he had been Assistant Auditor of the
respondent Bank for almost ten years, with a consistent efficiency rating of
not less than 90%; (c) as such Assistant Auditor of the respondent Bank for
that length of time, he was familiar and well-versed with the workings of the
Auditing Department; (d) for sometime before he had discharged the function of
Auditor in an acting capacity in the absence of the incumbent; and (e) he had
been in the service of the Govern­ment since 1933 with an unblemished record;
that the Auditor of the respondent Bank, like all other Auditors of government
corporations and entities, is in truth and in fact merely the representative of
the Auditor General between whom fiduciary relation exists, characterized by
the highest degree of mutual trust and confidence, so much so that the Auditor
General himself may validly assume the duties of Auditor of the respondent
Bank; that accordingly, should the answering respondent choose to appoint a
representative, it is but fair and just that he be conceded a reasonable degree
of latitude and discretion in selecting the man of his confidence who, for
obvious reasons, may be the respondent Nieva who is
the Assistant Auditor next in rank to the Auditor of the respondent Bank; * *
*.”^[4]

It was not entirely unexpected,
therefore, that petitioner would be at the losing end, although the decision
appeared to have been based more on procedural deficiencies, including the
failure to exhaust administrative remedies. 
In this appeal, petitioner is even more insistent in his claim that he
ought to have been the choice for the contested position of Auditor under a
mechanistic view of the aforesaid statutory provision, the decisive factors to
be taken into account, according to him, being his seniority in the service
which started in 1923, ten years earlier than that of respondent Nieva, Jr. as well as his having worked as auditor as far
back as 1938 unlike respondent Nieva, Jr., who
started performing such functions only in 1952. 
Even then, there is not enough to justify a reversal of the decision on
appeal, especially so if account be taken, as mentioned in the opening paragraph
of this opinion, of the doctrines thus far handed down by this Court.  To that, we now turn.

1. The first decision where a question involving Section 23 was
passed upon by this Court is the 1967 decision, Castro v. Del Rosario.^[5]
The facts in that case were analogous to this litigation.  The contested position there was that of
Assistant Regional Revenue Director for Manila.  Respondent Tomas Toledo was appointed upon a
vacancy occurring therein with the promotion of its occupant.  He was then Chief Revenue Inspector stationed
in Manila.  He entered the government service only on July 16, 1948.  On the other hand, petitioner Teodoro M. Castro entered the government service in 1931
and as far back as July 1, 1957,
was already an Assistant Revenue Regional Director of another district.  In Manila,
however, Toledo was the next
ranking official.  It was on that basis
that the claim of petitioner was rejected by the Secretary of Finance.  Then came the action
for quo warranto, certiorari and
mandamus, reliance being had on the aforesaid Section 23 of the Civil Service
Act.

The appointment of Toledo
was sustained.  After noting that at the
time of such vacancy, he was stationed precisely in the same district, came
this relevant portion of the opinion of this Court, penned by Justice Makalintal; “Obviously the position of Chief Revenue
Inspector (Examiner) was considered to be of the same rank as the position of
Assistant Revenue Regional Director for regions other than Manila.  And Toledo, who was then Chief Revenue
Inspector (Examiner), was chosen because in the opinion of the Commissioner of
Internal Revenue he was already in the region where the vacancy occurred and
therefore was more familiar with the work there, and both his salary range and
efficiency rating were higher than Castro’s aside from the fact that he was
already performing the functions of the office.”^[6]

2. Then came Reyes v. Abeleda,^[7]
decided in 1968.  The question in that
case was who between petitioner Reyes and respondent Abeleda
was entitled to be promoted as the officer next in rank to the position of
Budget Officer IV of the Bureau of Public Schools.  Petitioner Reyes had been employed in the
government, particularly in the School Finance Division of the Bureau of Public
Schools, since July 25, 1940,
while respondent Abeleda began his career in the
government service on August 16, 1937
and was already the Acting Budget Officer III of such School Finance
Division.  He was thus the officer next
in rank in such division and was there­fore, in the opinion of respondent
Secretary of Education, entitled to the promotion.  Petitioner filed an action with the Court of
First Instance for certiorari and mandamus. 
It was dismissed, and he appealed. 
On appeal, the decision was sustained, the opinion of the Court
stressing the discretion that is vested in the appointing official.  Thus: 
“It would seem fairly obvious then that the law does not impose a
rigid or mechanistic formula on the appointing power, compliance with which is
inexorable and a deviation therefrom fatal.  Far from it.  If there be adherence to the concept that
public office is a public trust, as there ought to be, the criterion should be
what public welfare demands, what satisfies public interest.  For it is axiomatic that public needs could best
be attended to by officials, about whose competency and ability there is no
question.  To that overmastering
requirement, personal ambition must of necessity yield.  Discretion if not plenary, at least
sufficient, should thus be granted to those entrusted with the responsibility
of administering the officers 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, therefore, the law
speaks in the most mandatory and peremptory tone, considering all the
circumstances, there should be, as there has been, 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.”^[8]
The later case of Del Rosario v.
Subido^[9]
quoted with approval the above excerpt.

3.  The Del
Rosario opinion even went
further.  Thus:  “This Court was even more emphatic in
its recognition of such broad discretion in the appointing power in a case of
later date, where, in the opinion penned by Justice Castro, it was stated:  ‘For it is not enough that an aspirant is
qualified and eligible or that he is next in rank or in line for promotion,
albeit by passive prescription.  It is
just as necessary, in order for public administration to be dynamic and
responsive to the needs of the times, that the local executive be allowed the
choice of men of his confidence, provided they are qualified and eligible, who
in his best estimation are possessed of the requisite reputation, integrity, knowledgeability, energy and judgment.  After all, it is the local executive, more
than anyone else, who is primarily responsible for efficient governmental
administration in the locality and the effective maintenance of peace and order
therein, and is directly answerable to the people who elected him.'”^[10]

4.  Nothing can be clearer,
therefore, than that the dismissal of this petition was in accordance with
law.  Whatever sympathy might be elicited
for public officials who had stayed long in the public service and who, for
some reason or another, did not receive the promotion to which they felt they
should be entitled, cannot obscure the discretion that the law leaves in the
hands of the appointing official.  The
statutory requirement under Section 23 of the Civil Service Act does not lend
itself to any other interpretation.  The
basic intent of the law itself is to foster a more efficient public
service.  It is ever timely to keep in
mind the public trust character of any governmental office.  Its creation is justifiable only if it serves
to assure that the functions of government, whether through the traditional
public offices or government-owned or controlled corpo­rations, be attended to
with dispatch and competence.  Neces­sarily
then, the appointing official, especially so where his position is a
constitutional creation, as in this case, must be left that necessary latitude
of choice as to who can best discharge the responsibilities of the office where
the vacancy occurs.  This is what
happened here, and no legal infirmity can validly be said to have vitiated such
an appointment.  The impassioned plea of
counsel for petitioner, while not without its plausibility, if the individual
welfare of those in the ranks of government personnel were considered,
certainly cannot merit our approval in the light of the greater and more
exigent public interest which has to be served.

WHEREFORE, the lower court decision of October 3, 1967 is affirmed.  With costs against
petitioner-appellant.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Ruiz
Castro, and Teehankee,
JJ., concur.

Barredo, Villamor,
and Makasiar, JJ., no part.

Dizon, J., on official leave.

^[1]
Section 23 of Republic Act No. 2260, the Civil Service Act of 1959, insofar as
pertinent, reads as follows: 
“Whenever a vacancy occurs in any position in the competitive
service in the government or in any government-owned or controlled corporation
or entity, the officer or employee next in rank preferably in the same office,
who is competent and qualified to hold the position and who possesses an
appropriate civil service eligibility shall be appointed thereto:  Provided, That should there be two or
more persons under equal circumstances, seniority shall be given preference; *
* *.”

^[2]
Decision, Appendix to the Brief for the Petitioner-Appellant, p. 38.

^[3]
Ibid, p. 39.

^[4]
Ibid, pp. 44-45.

^[5]
L-17915, January 31, 1967, 19 SCRA 196.

^[6]
Ibid, pp. 202-203.

^[7]
L-25491, February 27, 1968, 22 SCRA
825.

^[8]
Ibid, pp. 830-831.

^[9]
L-30091, Jan. 30, 1970, 31 SCRA 382.

^[10]
Ibid, p. 389, citing Pineda v. Claudio,
L-29661, May
13, 1969, 28 SCRA 34.