MONA A. TOMALI, PETITIONER, VS. CIVIL SERVICE COMMISSION, OFFICE ON MUSLIM AFFAIRS (OMA) AND ROCAINA M. LUCMAN, RESPONDENTS.

In this special civil action for certiorari, petitioner questions
her “replacement” by private respondent in a contested position in the Office
on Muslim Affairs.

On 01 July 1990, petitioner Mona A. Tomali was appointed
Development Management Officer II (“DMO II”) in the Office on Muslim Affairs
(“OMA”). The appointment was extended
by then OMA Executive Director Dimasangcay
A. Pundato. She assumed the duties and functions
of the office four months later, or on 01
November 1990, at which
time, the appointment had not yet been transmitted to the Civil Service Commission
(“CSC”) for approval.

Prior to her assumption to the new position, petitioner had
worked in different capacities with the Mindanao State University starting as
Records Clerk (01 June 1983 to 31 December 1986), Clerk Typist (02 January 1987
to 30 June 1989), and, finally, as “Budget Assistant” (01 July 1989 to 31
October 1990).^[1]

On 16 July 1991, the new Director of the OMA, Dr. Ali Basir
Lucman, revoking the previous incomplete appointment of petitioner, appointed
private respondent Rocaina M. Lucman to the position in question (DMO II). Petitioner, on 29 July 1991, sent public
respondent OMA a letter protesting her replacement. On 01 August 1991, the Chief of the Human Resources
Management Division of the OMA communicated to petitioner the disapproval/expiration
of her appointment.^[2]
Forthwith, private respondent took her oath of office and assumed the duties
and functions of DMO II.

On 12 August 1991, petitioner reiterated her protest.^[3]
The Merit Systems Protection Board (“MSPB”), acting thereon, rendered a
decision, dated 23 July 1992, dismissing the protest/complaint for lack of
merit. MSPB held:

“Glaring is the fact that protestant’s appointment to the contested
position was not approved by the Civil Service Commission, hence,
incomplete. In this regard, Section 11,
Rule V, of the Omnibus Rules Implementing Book V of Executive Order No. 292,
Administrative Code of 1987 is clear and explicit. Said provision reads, thus:

“‘Section 11. An
appointment not submitted to the Commission, within thirty (30) days from the
date of issuance, which shall be the date appearing on the face of the
instrument, shall be ineffective.’

“As applied to the case of the herein protestant, it appears that
the latter has no basis in law to cling to the contested position. Her prior continuous stay in office was at
most by mere tolerance of the appointing authority. As her appointment is incomplete for lack of the requisite
approval of the Civil Service Commission or its proper Regional or Field
Office, no right to security of tenure as guaranteed by law and the
Constitution attaches thereto or for incumbent to invoke. x x x.

“x x x                         x x x                           x
x x.

“That being so, the proper appointing
authority, in this case, the OMA
Executive Director may, in the exercise of sound discretion, cancel or revoke
the said incomplete appointment and appoint another person.

“The circumstance showing that the non-approval of protestant’s
appointment was due to the belated transmittal thereof to this Commission is of
no consequence nor improve her lot as a holder of an incomplete
appointment. There is no showing that
the non-submission was motivated by bad faith, spite or malice or at least
attributable to the fault of the newly-installed OMA Executive Director.”^[4]

Her request for reconsideration having been denied on 27 November
1992, petitioner appealed to the CSC. In its Resolution No. 93-945, dated 12 March 1993, the Commission
dismissed the appeal for lack of merit.^[5]

Hence, the instant recourse to this Court.

We fail to see any merit in the petition.

An appointment to a position in the civil service is required to
be submitted to the CSC for approval in order to determine, in main, whether
the proposed appointee is qualified to hold the position and whether or not the
rules pertinent to the process of appointment are followed; thus:

“Sec. 9. Powers and
Functions of the Commission. – The Commission shall administer the Civil
Service and shall have the following powers and functions:

“x x x                         x x x                           x
x x

“(h)  Approve all appointments, whether original or
promotional, to positions in the civil service, except those of presidential
appointees, members of the Armed Forces of the Philippines, police forces,
firemen, and jailguards, and disapprove those where the appointees do not
possess the appropriate eligibility or required qualifications. An appointment shall take effect immediately
upon issue by the appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved by the
Commission, if this should take place, without prejudice to the liability of
the appointing authority for appointments issued in violation of existing laws
or rules: Provided, finally, That the
Commission shall keep a record of appointments of all officers and employees in
the civil service. All appointments requiring the
approval of the Commission as herein provided, shall be submitted to it by the
appointing authority within thirty days from issuance, otherwise, the
appointment becomes ineffective thirty days thereafter.”^[6]

The Omnibus Rules Implementing Book V of Executive Order No. 292,
also known as the Administrative Code of 1987, among other things, provides:

“Sec. 11. An appointment
not submitted to the Commission within thirty (30) days from the date of issuance
which shall be the date appearing on the face of the appointment, shall be
ineffective. x x x.”^[7]

Compliance with the legal requirements for an appointment to a civil service position is essential in
order to make it fully effective.^[8]
Without the favorable certification or approval of the Commission, in cases
when such approval is required, no title to the office can yet be deemed to be
permanently vested in favor of the appointee, and the appointment can still be
recalled or withdrawn by the appointing authority.^[9] Until
an appointment has become a completed act, it would likewise be precipitate to
invoke the rule on security of tenure.^[10]

Petitioner faults public respondents for their failure to have her
appointment properly attended to and timely acted upon and for, in effect,
allowing her in the meanwhile to assume the office in question. In Favis vs. Rupisan,^[11]
this Court has said:

“The tolerance, acquiescence or mistake of the proper officials,
resulting in the non-observance of the pertinent rules on the matter does not
render the legal requirement, on the necessity of approval of the Commissioner
of Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not
approved, may only be considered as a de facto officer.”

Petitioner herself would not appear to be all that
blameless. She assumed the position
four months after her appointment was issued or months after that appointment
had already lapsed or had become ineffective by operation of law. Petitioner’s appointment was issued on 01
July 1990, but it was only on 31 May
1991 that it was submitted to the CSC, a fact which she knew, should have known
or should have at least verified considering the relatively long interval of
time between the date of her appointment and the date of her assumption to
office. The CSC, such as to be
expected, disapproved the appointment^[12] in
consonance with Presidential Decree No. 807.

When private respondent Lucman was thus appointed DMO II on 16 July 1991, petitioner could
not be said to have theretofore earned a valid tenure to the same
position. In its resolution of 12 March
1993, the CSC, which dismissed petitioner’s appeal, said:

“The instant case is about the recall of Tomali’s appointment as
Development Management Officer II, Office on Muslim Affairs in favor of Rocaina
Lucman prior to the approval by the Commission. Subsequently, Tomali filed a protest against the appointment of Rocaina
Lucman.

“It may be noted that the issue on the said recall of Tomali’s
appointment had already been the subject matter in CSC Resolution No. 91-1237,
wherein the Commission ruled as follows:

“‘WHEREFORE, foregoing premises considered, this Commission upholds
the power of the appointing authority to recall an appointment. Accordingly, the separation of Mona Tomali is
declared to be in order. (Emphasis supplied.)’

“Further, a motion for reconsideration was denied in CSC Resolution
No. 91-1463, dated December 3, 1991.

“Considering that Tomali had already been separated from the
service upon recall of her appointment, her protest against the appointment of
Rocaina Lucman has no merit. She has no
more personality to file a protest.”^[13]

It was well within the authority and discretion
of the new OMA Director, therefore, to appoint private respondent, and such
prerogative could not be questioned even on a showing that petitioner might
have been better qualified for the position.

The rule has always been that an appointment is essentially a
discretionary act, performed by an officer in whom it is vested according to
his best judgment, the only condition being that the appointee should possess
all the qualifications required therefor.^[14]
There is nothing on record to convince us that the new OMA Director has
unjustly favored private respondent nor has exercised his power of appointment
in an arbitrary, whimsical or despotic manner.

In sum, we see no grave
abuse of discretion on the part of
public respondents in their questioned dismissal of petitioner’s protest.

WHEREFORE, the petition for certiorari is
DISMISSED. No special pronouncement on
costs.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno, Kapunan, and
Mendoza, JJ., concur.

Feliciano, J., on leave.

^[1]
Rollo p. 27.

^[2]
Rollo, p. 32.

^[3]
Rollo, p. 33.

^[4]
Rollo pp. 52-53.

^[5]
Rollo, p. 44.

^[6]
Presidential Decree No. 807, Sec. 9(h).

^[7]
Rule V, Sec. 11, Omnibus Civil Service Rules and Regulations.

^[8]
Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs. Subido, 21
SCRA 127.

^[9]
Grospe vs. Secretary of Public Works and Communications, 105 Phil 129;
Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on
Elections, 20 SCRA 797.

^[10]
See Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra vs.
Subido, 21 SCRA 127.

^[11]
17 SCRA 190, 191.

^[12]
Petitioner’s incomplete appointment was already expressly revoked on 16 July
1991, upon issuance of private respondent’s appointment.

^[13]
Rollo, pp. 43-44.

^[14]
Español vs. Civil Service Commission, 206 SCRA 715; Luego vs.
Civil Service Commission, 143 SCRA 327; Patagoc vs. Civil Service
Commission, 185 SCRA 411; Lapinid vs. Civil Sevice Commission, 197 SCRA
106.