LEONILA S. DEL ROSARIO, PETITIONER, VS. HON. ABELARDO SUBIDO AS COMMISSIONER OF CIVIL SERVICE AND JESUS D. MACROHON, RESPONDENTS.

Petitioner Leonila S. del Rosario, firm
in her belief that under the relevant provision of the Civil Service Law she
was the-officer next in rank, “competent and qualified to hold the
position”, possessed of “an appropriate civil service
eligibility” and thus entitled to be promoted as Assistant Chief
Accountant IV in the Bureau of Public Highways, in which there was a vacancy,^[1]
filed this certiorari and mandamus proceeding on January 27, 1969
against respondent Abelardo Subido,
as Commissioner of Civil Service as well as the other respondent, Jesus D. Macrohon, who was appointed to such a position.  She assailed the validity of the
determination of respondent Commissioner of September 30, 1968, holding that respondent Macrohon was rightfully entitled to such a promotion and
approving the same.  It is the contention
of petitioner that certiorari lies as the act of respondent Commissioner
was in excess of his authority, and that mandamus lies as he refused or
neglected to consider her promotion to the disputed position.

As noted in the above determination of respondent Commissioner of
September 30, 1968,^[2]
there was a protest to the appointment of the other respondent Jesus D. Macrohon by petitioner “on the ground of alleged
violation of the Civil Service Law and rules on promotion.  These papers show that Mrs. del Rosario was
originally proposed for appointment to the position in question but Mr. Macrohon protested the same.  The Department Complaints Commission in its
decision dated March 12, 1968
found the protest of Mr. Macrohon meritorious and
recommended that the appointment of Mrs. del Rosario to the same position be
returned to the Commissioner of Public Highways without action and that
protestant Macrohon be appointed in her instead.  In a letter dated April 1, 1968 the Secretary
of Public Works and Communications furnished Mrs. del Rosario a copy of said
decision and stated further that ‘In view of the findings contained therein,
which the undersigned fully concurs, the Commissioner of Public Highways is
being directed to submit instead the appointment of Mr. Macrohon
to the position concerned and that the residual vacancy of Chief Accountant I
which will be vacated by Mr. Macrohon shall in turn
be given to you, in justice and fairness to all concerned.^[3]

It was there further stated: 
“Records show that Mr. Macrohon now holds
the position of Chief Accountant I in, the BPH while Mrs. del Rosario holds the
position of Accountant III in the same Office. 
Under the proposed Merit Promotion Plan of the BPH the position next in
rank to Assistant Chief Accountant IV is Chief Accountant I.”^[4]
Then it was noted that in a letter of August 4, 1967 the Commissioner of Public
Highways, in connection with a present case of a certain Emigdio
M. Fernandez against the petitioner for the position of Chief Accountant IV,
the organizational chart of the division as approved by the Secretary of Public
Works and Communications would show that she was only next in rank to
respondent Jesus Macrohon, then Chief Accountant I,
“and not to the Chief Accountant IV.” From which, it was the
conclusion of respondent Commissioner: 
“It is clear from the foregoing that Mr. Macrohon
is the employee next in rank who should be promoted to the position of
Assistant Chief Accountant IV and not Mrs. del Rosario who may be considered as
next in rank only to the position of Chief Accountant I, the position to be
vacated by the protestee.”^[5]

In the same communication, respondent Commissioner likewise
answered the contention that determination of the employee next in rank should
be on a division-wide basis.  Thus:  “The allegation that the selection of
the next in rank employee in the instant case should be on a division-wide
basis is without merit because Sec. 3(a) of Civil Service Rule VII provides
that determination of the Officer or employee next in rank should provide for
as wide an area of selection as possible within the Department or Agency.  Moreover, good management requires that the
promotional area should not be artificially restricted by section or division
lines, except when such restriction is demonstrably in the interest of the
service as a whole.  In the instant case
it cannot be gainsaid that Mr. Macrohon who is Chief
Accountant I is the employee next in rank who is competent and qualified and
who possess the appropriate eligibility. 
Suffice it to state that the Mindanao Equipment Depot is still part of
the Accounting Division, which exercises technical supervision over it.”^[6]

As to the respective qualifications of respondent Macrohon, respondent Commissioner had this to say:  “Mr. Macrohon
holds the degrees of Bachelor of Science in Commerce and Bachelor of Laws.  He is an Auditor eligible and was granted CPA
eligibility under RA 1080.  He attended
in-service training and seminars on Bookkeeping and Auditing; Personnel and
Fiscal Administration (BPH-Manila) and Public Administration (Civil Service-Davao).  He was first
employed in the government service as Bookkeeper in the Budget Commission on September 19, 1957 and held such
positions as Accountant I and Chief Accountant I to which position he was
promoted sometime in 1964.  His latest
efficiency rating is 94%.”^[7]
Nor did he fail to take account of the circumstances relied upon by petitioner
to demonstrate her alleged right as the person next in rank.  Thus: 
“On the other hand, Mrs. del Rosario likewise holds the degree of
Bachelor of Science in Commerce and has earned 6 units leading to the degree of
Master of Arts.  She has had in-service
training on Mechanized Accounting (Erlanger & Galenger)
and Accounting Procedures and Techniques (Budget Commission).  She is a Supervisor (First Grade) Promotional
and Auditor eligible.  She was also
granted CPA eligibility under RA 1080. 
She was first employed in the government service as a Teacher in the
City Schools on August 15, 1945.  Sometime in 1959 she was appointed Bookkeeper
II in the Budget Commission and on July
1, 1963 she was appointed Accountant III which position she still
holds up to the present.  Her latest
efficiency rating is 90%.”^[8]

It is in the light of the above considerations that respondent
Commissioner decided the matter adversely to petitioner.  It is now contended that in reaching the
conclusion as to who was entitled to the disputed position, the determination
of respondent Commissioner is infected with the virus of a grave abuse of
discretion.  If it were so, then certiorari
lies.  Such is not the case however.  There being no legal right on the part of
petitioner, neither does mandamus.

1.       In the first decision
of this court where the question of who is the person next in rank competent
and qualified to hold the position and who possesses an appropriate civil
service eligibility, thus entitling him to promotion,^[9]
the need for a clear and sufficient showing that the officer seeking the
promotion comes clearly within its terms was stressed by us.  This, petitioner failed to do, contenting
herself with the use of language intended to cast doubt on the challenged
determination of respondent Commissioner whom she would accuse of merely
relying on “the mere designation or nomenclature of the position.”^[10]
This is to ignore the fact, of which respondent Commissioner took note that on
the very face of the organizational chart to which no valid objection had
previously been interposed, petitioner’s position was lower than that of
respondent Macrohon. 
It would follow then that having failed to meet the burden required of
her by the controlling doctrine, her allegation as to the alleged abuse of
discretion cannot be seriously entertained, thus precluding the issuance of a
writ of certiorari.  Nor would mandamus
lie to respect what has been shown to be a non-existent legal right.

2.       It was noted in
discussing the facts that the finding of respondent Commissioner was that
petitioner was of a lower rank than respondent Macrohon.  Even if the situation be considered in the
light most favorable to her and her claim to the position be predicated on her
occupying a position whose rank was equivalent to that of respondent Macrohon, still her petition could not be considered
meritorious.  As shown in the answer of
respondent Commissioner, it was the belief of the department head, after he had
given the matter the most careful attention that the disputed position should
be given to respondent Macrohon.  The fact that petitioner had to dispute,
first before respondent Commissioner and now with this Court, such an
appointment, conclusively argues against the intimation found in the petition
that, were it not for the determination of respondent Commissioner, petitioner
would be the fortunate recipient of such an appointment.

It being clear that the proper department head had concluded that
respondent Macrohon was entitled to the position in
question and had extended the appropriate appointment, petitioner, even on the
assumption that she should have been considered likewise to fill up such
vacancy, had, under the settled doctrines of this Court, no other recourse but
to abide by such a choice.  We had
occasion to so decide in Reyes v. Abeleda.^[11]
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 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 these 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.”

This Court was even more emphatic in its recognition of such
broad discretion in the appointing power in a case of later date,^[12]
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 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.”

As a matter of fact, in the very petition itself, Jimenez v.
Francisco^[13]
was invoked.  Petitioner ought to have
been more cautious in the choice of authority cited, for while not directly in
point, the opinion in this case by former Chief Justice Paras
would sustain the conclusion arrived at by respondent Commissioner in deference
to what was decided by Secretary Raquiza insofar as
it accords explicit recognition to such broad discretionary appointing
authority of the official concerned. 
Thus:  “Petitioners claim
that after becoming a civil service eligible on September 5, 1951, he was entitled to a permanent
appointment to the position from which he was removed, is not sanctioned by any
law or regulation.  The power to appoint
is in essence discretionary on the part of the proper authority, in this case
the head of the department.  The
appointing power has the right of choice which he may exercise freely according
to his judgment, deciding for himself who is best qualified for any competitive
position in the Civil Service.”

The last two decisions cited, while subject to being
distinguished from the present litigation as the facts are different, still
stood for a principle which sustains the determination of respondent
Commissioner.  No grave abuse of
discretion can therefore be imputed to him. 
Nor, as is equally clear, can it be plausibly maintained that petitioner
was deprived thereby of a clear legal right.

WHEREFORE, this petition for certiorari and mandamus
is denied.  With costs against
petitioner.

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

Dizon, J., concurs in the result.

Sanchez and Villamor, JJ., did not part.

^[1]
Sec. 23 of the Civil Service Act of 1959, insofar as pertinent, specifically
provides as follows:  “Whenever a
vacancy occurs in any competitive or classified position in the government or
in any government-owned or controlled corporation or entity, the officer or
employee next in rank who is competent and qualified to hold the position and
who possesses an appropriate civil service eligibility shall be promoted
thereto:  Provided, That should
there be two or more persons under equal circumstances, seniority shall be
given preference:  And provided,
however, That should there be any special reason or reasons why such
officer or employee should not be promoted, such special reason or reasons
shall be stated in writing by the appointing official and the officer or
employee concerned shall be informed thereof and be given an opportunity to be
heard by the Com­missioner of Civil Service, whose decision in such case shall
be final.  If the vacancy is not filled
by promotion as provided herein, then the same shall be filled by transfer of
present employees in the government service, by reinstatement, by reemployment
of persons separated through reduction in force, or by certification from
appropriate registers of eligibles in accordance with
rules promulgated in pursuance of this Act.”

^[2]
Petition, Annex A.

^[3] Ibid,
p. 1.

^[4] Ibid,
p. 2.

^[5] Ibid.

^[6] Ibid,
p. 3.

^[7] Ibid.

^[8] Ibid,
pp. 3-4.

^[9]
Castro v. Del Rosario, 19 SCRA 196, L-17915 (January 31, 1967).

^[10] Petition,
par. 4, p. 6.

^[11]
22 SCRA 825, L-25491 (February 27, 1968).

^[12]
Pineda v. Claudio, 28 SCRA 34, L-29661 (May 13, 1969).

^[13]
100 Phil. 1025 (1957).