VICENTA OLIVEROS-TORRE, ASSISTED BY HER HUSBAND, FEDERICO TORRE, PETITIONERS, VS. FLORES BAYOT, ASSISTANT EXECUTIVE SECRETARY; DR. AMADEO H. CRUZ, DECEASED, SUBSTITUTED BY DR. C…

Oliveros-Torre versus Barros

The Case

This is a petition for certiorari, mandamus and quo warranto, with a prayer for preliminary mandatory injunction, brought by Vicenta Oliveros-Torre against Virginia Barros and the officials who approved the contested appointment. At bottom it is a fight over one position — Chief Drug Inspector of the Food and Drug Administration — and over who may lawfully fill it: the applicant who claims to be better qualified and next in rank, or the one chosen by the appointing authority. The case matters because it draws the boundary between the appointing power of the department head and the reviewing power of the Commissioner of Civil Service, and because it shows how the Supreme Court treats a case that events have partly overtaken.

Procedural History

The dispute began as a protest before the Commissioner of Civil Service. The Commissioner first approved the appointment of Barros as permanent. On reconsideration, after a hearing, he revoked that appointment and suggested Torre in her stead, and he denied Barros's motion for reconsideration. Barros appealed to the Office of the President, which reversed the Commissioner on three main points: that the evidence showed Barros met the experience requirement, that the correct construction of the law placed Barros as the officer next in rank, and that being the choice of the appointing authority she should be preferred. Torre then came to the Supreme Court by this petition for certiorari, mandamus and quo warranto. While the case was pending, the parties filed manifestations and counter-manifestations on the fate of the contested position under the current budget, and the case was deemed submitted for decision in June 1973.

Facts

The position carried three qualifications: a Bachelor of Science in Pharmacy, pharmacy eligibility under Republic Act Number 1080, and five years of experience in drug inspection work, four of them in a supervisory capacity. Both women met the educational and eligibility requirements. Torre had served as a faculty member and later dean of a College of Pharmacy, and entered government service in 1962, becoming a Supervising Drug Inspector and later a Substitute Chief Drug Inspector. Barros entered government service in 1961 as a Food and Drug Supervisor in a regional health office.

When the position of Chief Drug Inspector was filled in 1967, Barros protested. The Commissioner later adjudged that incumbent unqualified and suggested Barros. The Food and Drug Administrator, however, recommended Torre for permanent appointment. The Secretary of Health instead appointed Barros in November 1969, and Torre protested. The Commissioner first approved Barros's appointment as permanent, finding that Torre did not meet the four year specialized experience requirement. Torre relinquished the position in April 1970 and Barros assumed it the next day.

On reconsideration and after hearing, the Commissioner revoked Barros's appointment and suggested Torre, finding that Barros had performed staff functions and had no inspector under her supervision, and that Torre's supervisory experience, including that gained in private firms, satisfied the requirement. The Office of the President reversed. Meanwhile, under the current budget the contested position was designated Head Drug Inspector, and later Barros was appointed Supervising Food and Drug Inspector while Torre was appointed Head Drug Inspector. Torre pressed for a ruling because a decision in her favor would entitle her to back salaries from April 1970 to July 1973.

Issues

• Whether or not the Commissioner of Civil Service may revoke an appointment already extended by the department head and approved by him, and substitute his own choice.
• Whether or not Barros met the required experience in drug inspection and supervisory work.
• Whether or not Barros was the officer next in rank for purposes of the appointment.
• Whether or not the choice of the appointing authority must be preferred over the recommendation of the head of office.
• Whether or not the supervening changes in the position and in the appointments of the parties rendered the case academic.

Applicable Provisions

Section 24 (b) of Republic Act Number 2260, the Civil Service Act, was the provision under which the Commissioner acted in approving and later revoking the appointment. The decision refers to it as the basis of the approval of Barros's appointment as permanent, subject to the condition that no decision by competent authority would adversely affect it. The text of the provision is not set out in the decision, so it is cited here only as the decision cites it.

Ruling

The Court held that the Commissioner of Civil Service is not a mere rubber stamp of the appointing authority. The power to appoint lies in the sound discretion of the appointing official, but the power to review that personnel action is lodged in the Commissioner, who may refuse to attest an appointment on the grounds provided by the Civil Service law and rules. Otherwise, the Court reasoned, the Commissioner's power to finally decide a protest would become meaningless.

On the experience requirement, the Court sustained the findings of the Office of the President that Barros had more than five years of drug inspection experience, more than four years of it in a supervisory capacity, as shown by official reports, travel orders, certifications and directives calling upon her to supervise and evaluate drug inspectors. On next in rank and on the preference for the appointing authority's choice, the Court likewise upheld the Office of the President, which found that the correct construction of the law placed Barros as the officer next in rank and that, being the choice of the appointing authority, she should be preferred.

On the supervening events, the Court noted that the contested position no longer appeared under that name in the current budget, that Barros had been appointed to a different position, and that Torre had been appointed to the position now designated Head Drug Inspector. Torre herself admitted these developments but insisted on a ruling to support her claim for back salaries.

Doctrine

First, the power to appoint is discretionary with the appointing authority, but it is not unreviewable: the Commissioner of Civil Service may refuse to attest an appointment that violates the Civil Service law and rules, and may decide a protest by modifying or rejecting the recommendation of the appointing official. Second, where the appointee is the choice of the appointing authority and meets the qualification standards, including the experience requirement as established by competent evidence, the courts will not substitute their judgment for that of the appointing power. Third, experience gained in the government service or in a private firm may be counted where the civil service form and the rules so provide.

Disposition

The petition was dismissed, and the decision of the Office of the President upholding the appointment of Barros was affirmed.

Remember This

The one line to memorize: the appointing authority chooses, but the Commissioner of Civil Service may review and refuse to attest, and the courts will not disturb the choice of the appointing power when the appointee meets the standards. Examiners use this case to test the limits of the appointing power against the reviewing power of the Civil Service Commission, and to test how courts treat supervening events that render a case partly academic.