LEAH Y. APURILLO, PETITIONER, VS. CIVIL SERVICE COMMISSION AND VIRGINIA L. TALDE, RESPONDENTS.

This is a petition to annul and set aside Resolution No. 92-555 of
the Civil Service Commission^[1] dated
10 April 1992 which affirmed the decision of the Secretary of Public Works and
Highways dated 25 September 1990 sustaining the protest of private respondent
Virginia L. Talde against the promotional
appointment of petitioner Leah Y. Apurillo and reverting the latter to her
previous position of Public Relations Officer.

On 1 July 1990, Engr. Isidro Mariano, as Officer-in­-Charge (OIC) of Region
VIII, Department of Public Works and Highways (DPWH), appointed petitioner to
the position of Administrative Officer III of the Region. Upon learning of the appointment, private
respondent filed a letter-protest with the DPWH Complaints Committee.

On 25 September 1990, the Committee submitted a memorandum for
then DPWH Secretary Fiorello R. Estuar recommending that the protest of private
respondent be upheld and that petitioner be reverted to her former position of
Public Relations Officer. Secretary
Estuar approved this recommendation.

On 21 November 1990, petitioner filed a motion for
reconsideration of the Secretary’s decision. On 5 March 1991, Undersecretary Teodoro T. Encarnacion,
Officer-in-Charge of DPWH, denied the motion.^[2]

On 19 June 1991, petitioner appealed to the Merit Systems
Protection Board (MSPB). On 27 November
1991, MSPB dismissed the appeal for lack of merit.^[3] It
likewise denied petitioner’s motion for reconsideration. Forthwith, petitioner went to the Civil Service Commission (CSC) for relief.

On 10 April 1992, CSC issued Resolution No. 92-555 dismissing the
appeal. It ruled that protestant
Virginia L. Talde was fully qualified for the contested position; that
petitioner’s appointment was voidable because the OIC DPWH Regional Director
had no power to appoint her without authority of the DPWH Secretary; and, that
pursuant to the Administrative Code of 1987, the Secretary had the power to
nullify the appointment issued by the OIC Regional Director. Hence, the present recourse of petitioner.

Petitioner imputes several errors to CSC, namely: (1) in rating
private respondent higher than she; (2) in holding that an appointment validly extended to one possessing all
the required qualifications and eligibility can be nullified on the ground that
someone else allegedly better qualified should be preferred; and, (3) in
holding that petitioner’s appointment is voidable.^[4]

Considering that this is a petition for certiorari, the
only issue to resolve is whether CSC committed grave abuse of discretion
amounting to excess or lack of jurisdiction in issuing its disputed resolution.

The contested position is Administrative Officer III, Region
VIII, DPWH, a second level position in the career service.^[5]
Under Sec. 7, par. (6), of the Administrative Code of 1987,^[6] the
Department Secretary has the power to appoint employees to position in the
second level in the regional offices
of the Department. The CSC therefore
did not commit any grave abuse of discretion in holding that the DPWH Secretary, not the OIC Regional Director, is
the appointing authority.

Petitioner argues that on 5 January 1990 the DPWH Secretary
issued Department Order No. 10 delegating the power to appoint personnel to the
second level positions to the then OIC, Regional Director, DPWH Region VIII.^[7]
She vigorously insists that the real
appointing authority is the OIC Regional Director otherwise the said delegation
would be meaningless.

Her arguments are without basis. Department Order No. 10 reads:

“DESIGNATION OF ENGR. ISIDRO
MARIANO AS

OFFICER-IN-CHARGE REGIONAL DIRECTOR

OF
REGION VIII, TACLOBAN CITY

“In the interest of the service, you are hereby designated as
Officer-in-Charge Regional Director of Region VIII, Tacloban City, vice Dir.
Abdulbarri Ramos.

“By virtue of this Order, you are hereby authorized to perform
the duties and assume the responsibilities appurtenant to the position of
Regional Director thereat.

“This Order supersedes previous issuances to the contrary and
shall take effect February 1,1990.

FIORELLO R. ESTUAR
Secretary”

Nowhere in the aforequoted Order can we find any support for
petitioner’s allegations. While the law
grants to the Regional Director the authority to appoint personnel in the
Regional Office, such power only covers positions in the first level and casual and seasonal employees.^[8]

Even granting arguendo that a
delegated authority to appoint personnel to positions in the first level was
given, such authority is not absolute. Any promotional appointment made pursuant to this authority is still
subject to review by the DPWH Secretary. Section 28 of the Administrative Code of 1987 provides –

“Sec. 28. Review
of Acts of Regional Director. – Nothing in the
preceding Section shall be construed as a limitation on the power of the
Secretary to review and modify, alter or reverse any action of the Regional
Director, or to initiate promotions and transfers of personnel from one region
to another.”

The afore-quoted provision underscores the Secretary’s power of
supervision and control of his department. The term “control” implies the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done and to
substitute the judgment of the former for that of the latter.^[9] This power is derived not only from the
Administrative Code of 1987 but also mainly from a provision in the Constitution
explicitly ordaining that the President shall have control of all
the executive departments, bureaus and offices.^[10] As alter egos of the President, the
Department Secretaries exercise direct control and supervision over all bureaus
and offices under their jurisdiction.^[11]

It appears from the records that the DPWH Secretary treated the
appointment issued by the OIC Regional Director as a recommendatory indorsement
of petitioner for the contested position. In view of the protest of private respondent, the Secretary through the
DPWH Complaints Committee made a meticulous review of the qualifications of the
parties involved as they were the next-in-rank employees to the position of
Administrative Officer III.

In its Memorandum to then Secretary Estuar dated 25 September
1990,^[12]
the Committee reported –

“The within papers show that Ms. Talde was first appointed as
a permanent Training Officer on April 1, 1980, in the then MPW, Region
VIII. She was reappointed to the same position
during the MPW and MPH merger in 1982, and again retained the same after the
1987 reorganization effective July 1, 1988. On July 1, 1989, her position was retitled
as Human Resource Management Officer I under the Standardization Law. Her services in other government agencies include: Social Worker (Permanent) 2-1-78 to 3-31-80,
MSSD, Region VIII; and Census Enumerator (Contractual), NCSO, May 2 to October
1975, Tacloban.

“Talde holds the degrees in BSSW, LLB, and a graduate in
BSE. Likewise, she has earned 6 units
in Master Management. In addition, Ms.
Talde is credited
with 12 government trainings attended. Aside from her Career Subprofessional and Professional CSC examinations,
Ms. Talde passed the Social Work Licensure, and Professional Board Examinations
for Teachers. Her performance rating
under MORE for the period concerned is Very Satisfactory.

“Protestee Apurillo, on the other hand, joined the service on
August 1, 1973 as a Secondary School Teacher (permanent) at the Leyte National
High School. She transferred to the
MPW, Region VIII, and was extended the regular position of Public Relations
Officer I, effective April 1, 1980. She
retained the same position in the past two DPWH reorganizations, and was
promoted to Administrative Officer III on July 1, 1990.

“A BSE graduate, Ms. Apurillo has earned as well, 30 units in
MA in Literature; 33 units in English; and 12 units in Public
Administration. Moreover, aside from
her ten (10) relevant seminars attended, Ms. Apurillo is credited with 432
hours of training in Executive Development (DAP), and 648 hours in the Future
Leaders’ Program (NDC-CSC). Protestee
Apurillo is a
Teachers‘ Board Examination eligible and
has been rated Very Satisfactory on her performance for the period concerned.

x x x x

“As HRMO I, protestant Talde belongs to the Training Section
under the Administrative Division. Whereas, protestee Apurillo as a former PRO, is identified with and under
the direct supervision of the Regional
Director. Both positions though being
on the same grade level (11) may be considered next-in-rank to the contested
position for purposes of selection on an agency-wide basis as required by the Civil Service Law and Rules.

“Hence, under the circumstances, both contestants being
qualified and competent next-in-rank employees, the following provision of Rule
V, Section 9, of the CSC Rules on Personnel Actions and Policies is hereby
quoted, ‘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 has the appropriate civil service
eligibility. In cases where all meet
the requisites for the position, preference shall be given to the employee in
the organizational unit where the vacant position is or in the Department or
agency where the vacancy is, in the case of second level positions.”
Hence, protestant Talde being the employee next-in-rank, qualified and
competent, in the Administrative Division where the contested position belongs,
has the better claim of preference for appointment to the position in question,
pursuant to said provision.”

It then recommended that the protest of private respondent be
sustained and petitioner reverted to her former position as Public Relations
Officer.

Further, the Committee, upon petitioner’s motion for reconsideration,
went as far as conducting another system of rating the contenders. However, the same result adverse to petitioner surfaced –

“On the issue of the alleged erroneous ratings given by the
Regional Promotion Board, the Committee in fairness to protestee/appellant
Apurillo re-rated the contestants with the use of the Personnel Evaluation and
Rating System under Department Order No. 30, s. 1987. Under the rating system, Talde got 67.93%, and Apurillo obtained 67.78%.

“Moreover, a review of the system of ranking positions in this
Department, shows the following positions as next in rank to Administrative
Officer III in DPWH Regional Office No. VIII:

– HRMO I         –
Regional Office

– HRMO II        – District Office/RES

“Hence, Ms. Talde being the employee considered next-in-rank
to the contested position, may claim preference for appointment thereto
pursuant to the CS Law and Rules.”^[13]

Acting upon all these findings, the DPWH Secretary approved the
above recommendations.

We find no evidence of irregularity or arbitrariness in the
action taken by the then DPWH Secretary. The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the office.^[14]
The Secretary’s decision therefore must be respected.

Petitioner however contends that she is better qualified than
private respondent because she readily meets the minimum qualification requirements without
resorting to the process of substitution. She adds that the process of offsetting deficiencies has been disallowed
by no less than the CSC in its Memorandum Circular No. 42, Series of 1991,
which states that “Effective January 1, 1993: a. No substitution shall be allowed for the education and experience
requirements of specific positions in government. If graduation from a college course is necessary for appointment
to positions in the second level (Professional), deficiencies in college education may no longer be substituted with
experience or vice-versa.”^[15]

We note that the effectivity date of Memorandum Circular No. 42,
Series of 1991, is 1 January 1993. This
case came up in 1990 yet. Consequently, the rule on substitution could still be availed of by the
DPWH Secretary. He alone has the
discretion to decide when to resort to the
necessity of interchanging education with experience and vice versa
since he is in the best position to determine the needs of his department and
how to satisfy those needs.^[16]

Finally, petitioner submits that her appointment was already
approved by the CSC and that, in view thereof, she already assumed office and
discharged the duties and responsibilities of the position. She then concludes that the CSC could no
longer disturb her appointment since to do so would violate the security of tenure
provision in the Constitution.^[17]

While petitioner asserts that her appointment was already
approved by CSC, and by virtue of which she had already assumed the contested
position, she has not presented any copy of such appointment to support the
meat of her contention. We have
searched the records and not even a machine copy thereof can be found. Under the circumstances, we cannot help
being drawn to the conclusion that if presented it would negate her cause. As adverted to earlier, petitioner’s
appointment was irregular and inefficacious as the same was not issued or
approved by the DPWH Secretary. As a
result, she cannot claim the right to a security of tenure for want of legal
basis.

In fine, we find no valid
reason to reverse the CSC resolution dated 10 April 1992, it being shown that the same is
in full accord with our ruling enunciated in
Luego v. Civil Service Commission,^[18] penned by Senior Associate Justice Isagani A. Cruz, that
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. Indeed, this is a prerogative of the
appointing authority which he alone can decide, absent any grave abuse in the
exercise thereof.

WHEREFORE, finding no grave abuse of discretion, the
petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Romero, Nocon, Melo, Quiason, Puno, and
Vitug, JJ., concur.

Griño-Aquino, J., on official
leave.

^[1] Rollo, p. 22.

^[2]
Rollo, p. 51.

^[3]
Ibid., p. 60.

^[4]
Ibid., p. 7.

^[5]
Sec. 7, Art. IV, PD 807, otherwise
known as the “Civil Service Decree of the Philippines.”

^[6]
Bk. IV, Chap. 2, E.O. 292.

^[7]
Rollo, p. 78.

^[8]
Bk. IV, Chap.
5, Sec. 27, par. (4), E.O. 292.

^[9]
Uichanco v.
Secretary of Agriculture and Natural Resources, L-17328, 30 March 1963, 7 SCRA
547, 551.

^[10]
Ibid.; See
Sec. 17, Art. VII, 1987 Constitution.

^[11]Ibid.

^[12]
Rollo, pp. 29-31.

^[13]
Rollo, p. 51.

^[14]
Lopez v.
Civil Service Commission, G.R. No. 92140, 19 February 1991, 194 SCRA 269, 276, citing Ocampo v. Subido, 72 SCRA 433 (1976); Torres v. Borja,
56 SCRA 47 (1974); Santiago v. Civil Service Commission, 178 SCRA 733 (1989).

^[15]
Rollo, p. 77.

^[16]
See Torio v. Civil Service
Commission, G.R. No. 99336, and Espanola v. Civil Service
Commission, et al., G.R. No. 100178, both prom. 9 June 1992, 209 SCRA 677,
688-689.

^[17]
Sec. 2, par. (3), Art. IX-B, 1987
Constitution, and Sec. 46, par. (a), Chap. 6, Bk. V, E.O. 292.

^[18]
G.R. No. 69137, 5 August 1986, 143 SCRA 327, 332.