BILLY MILLARES, PETITIONER-APPELLEE, VS. ABELARDO SUBIDO, ET AL., RESPONDENTS. ABELARDO SUBIDO, IN HIS CAPACITY AS ACTING COMMISSIONER OF CIVIL SERVICE, AND JOSE ERESTAIN, IN HI…

The Commissioner of Civil Service, the Treasurer and Auditor of
the City of Manila, are appealing from the decision of the Court of First
Instance of Manila (in its Civil Case No. 53383), declaring the order of
appellant Civil Service Commissioner, terminating the services of appellee Billy Millares null and
void, and ordering appellants city officials to pay Millares‘
salary from February 15, 1963 and thereafter, at the rate of P6,600.00 per annum.

The facts of this case are not in dispute.

Under date of September
24, 1962, Billy Millares, a lawyer
employed in the office of the City Treasurer of Manila since 1946, was
appointed “Technical Assistant on Fiscal Matters” in the office of
the Mayor of the City of Manila,
with compensation at P6,600.00 per annum, effective July 1, 1962.  The appointment further carried the notation
– “transfer from the office of the City Treasurer, Manila
as Field Supervisor at P3,120.00 p.a.” (Exh. 1).

Submitted to the Civil Service Commission, the appointment was
approved by the Chief, Personnel Transactions Division, signing on behalf of
the then Acting Commissioner of Civil Service (Exh.
1-A).

On February 8, 1963,
Acting Commissioner of Civil Service Abelardo Subido issued an order (sent to the City Mayor of Manila
for compliance) terminating the services of Billy Millares,
on the grounds that although Millares has passed the
bar examinations, the position of Technical Assistant on Fiscal Matters does
not re­quire the knowledge of the law profession and the latter’s bar-elig­ibility
under Republic Act 1080 is only equivalent to second grade, thus, he cannot
receive more than P3,720.00 per annum; that Millares
has not pursued any course in economics, banking or finance; that the approval
of the appointment was not complete, because it was signed by the Chief of the
Personnel Transactions Division who has no authority to approve appointments or
promotions involving com­pensation beyond P4,800.00; that the position in
question should have been filled by certification from the appropriate register
of eligibles; and that the transfer of Millares, from field inspector in the office of the City
Treasurer at P3,120.00 per annum to that of Technical Assistant on Fiscal Matters,
office of the City Mayor, at P6,600.00 per annum, was irregular (Exh. D).

Following the directive
of the Commissioner of Civil Service, further payment of the salary of Millares was discontinued by the City Treasurer.

On March 14, 1963, and after the Civil Service Commissioner had
refused to revoke his order, Millares filed an action
for mandamus against herein appellants in the Court of First Instance of Manila
(Civ. Case No. 53383), asserting that the Civil
Service Commissioner had no authority to terminate his services there having
been no admin­istrative charges filed against him, and that the withholding of
his salaries by the City Treasurer and the City Auditor was made in violation
of Section 4, Article XII of the Constitution and Section 32 of Republic Act
2260.

For his part, respondent Civil Service
Commissioner contended that the action complained of was within the general
powers conferred on him “to enforce, execute and carry out the
constitutional and stat­utory provisions on the merit system” (Sec. 1,
Art. XII, Constitution; Sec. 16-b, Rep. Act 2260), and
“to have exclusive jurisdiction over the approval under the Civil Service
law and rules of all appointments including promotions to positions in the
competitive service.” (Sec. 16-h, Rep. Act 2260)  Respondents
City officials alleged that the
withholding of the salaries of petitioner was made in obedience to the order of
the Commissioner of Civil Service.

After due hearing,
decision was rendered for the petitioner, the court holding that, as two of the
four duties assigned to him involve knowledge of the law profession, petitioner
may be considered a first-grader; that having been employed in the
office of the City Treasurer of Manila for 16 years, he must have received
practical training in finance and economics; that although the appointment
stated that it was a transfer from the position of field inspector in the
office of the City Treasurer with compensation at P3,120.00 per annum, it was
evidently both a transfer and promotion and, consequently, not gov­erned by the
rule on transfers; that the list of eligibles does
not in­clude technical assistant on fiscal matters; that there is no proof that
the approval of petitioner’s appointment by the Chief of the Per­sonnel
Transactions Division of the Civil Service Commission was ultra vires act; and that the summary termination of
petitioner’s ser­vices without observance of due process makes his removal
illegal.  The trial judge, therefore,
rendered judgment as stated at the begin­ning of this opinion.

Herein appellants raise several legal issues which can be re­stated
as follows:  (1) whether or not
petitioner is qualified to occupy the position of Technical Assistant on Fiscal
Matters in the office of the City Mayor of Manila; (2) whether or not the
appointment of petitioner-appellee was made in
pursuance of the Civil Service rules on certification and transfer; (3) whether
or not there was valid approval of appellee’s
appointment by the Civil Service Commission; (4) whether or not the Civil Service
Commissioner has authority to order the revoca­tion or cancellation of
appointments already approved; (5) whether or not appellant Commissioner of
Civil Service has authority to order the termination of the services of appellee; and (6) whether or not the institution of the
present court proceeding was proper.

1. The first issue calls for the resolution of other questions,
namely, whether or not the position of “Technical Assistant on Fiscal
Matters” involves “professional knowledge of law” and, whether or not
to qualify for appointment to that position, it is necessary for petitioner to
have taken subjects in economics and finance.

Section 1 of Republic Act 1080, as amended by Republic Act 1844,
reads:

“SECTION 1. The bar examinations and
the examina­tions given by the various boards of examiners of the Government
are declared as civil service examinations, and shall, for purposes of
appointment to positions in the classified service the duties of which involve
knowl­edge of the respective professions except positions re­quiring highly
specialized knowledge not covered by the ordinary board examinations, be
considered as equivalent to the first grade regular examination given by the
Bureau of Civil Service if the profession requires at least four years of study
in college, and as equi­valent to the second grade regular examination if the
profession requires less than four years of college study:  Provided,  however, That such bar or board
examination shall be equivalent to the next lower grade of civil service examination
when the person is to be employed in a position other than one requir­ing his
professional knowledge:  x x x.” (Underscor­ing
supplied.)

In connection with the
position involved in this case, the Mayor of Manila issued a certification,
dated October 8, 1962, that petitioner was assigned the following duties:

1. Study and check ways and means of increasing collec­tion of
revenues for the City of Manila;

2. To handle and investigate cases pertaining to City Finances and
make reports of his findings to the Mayor;

3. Study and propose ordinances pertaining to revenue measures
affecting the City Government; and

4. To assist in general the Mayor on other matters pertaining to
the City Finance.  (Exh. B)

Explaining the nature and
scope of the foregoing duties, petitioner testified:

“A In connection with my duty, that is, to study and check
ways and means of increasing collection of revenue for the City of Manila, I
know of pending tax cases with the Office of the City Treasurer and Office of
the License Division.  In this respect, I
see to it that pending cases with the Office of the Mayor are acted upon
immediately, and those cases referred to the Office of the Mayor by inspectors
from the Office of the City Treasurer are studied by me and I assist the Office
of the City Fiscal, after which I make my recommendation either for immediate
closure or for collection on the basis of court deci­sions.  The Mayor then signs my recommendation and
the same is approved.

“As regards tax cases that are pending with the Office of the
City Treasurer that I know – because I had been with that office for a number
of years prior to my ap­pointment as technical assistant on fiscal matters in the Office of the Mayor – I recommend to His
Honor, the Mayor, the indorsement of these cases to
the Of­fice of the Mayor (must be the Fiscal) for appropriate action.

“Q With respect to your duty No. 3 in this Exhibit B, what
exactly do you do, regarding your duty to study and propose ordinances
pertaining to revenue measures affecting the city government?

“A In that regard the Mayor has instructed
me to study the present laws on tax allotments
to local govern­ments.  As we all
know, one of the sources of the city revenue is the aid from the national
government to the local governments.  These
aids are based on tax laws and the Mayor has instructed me to make a thorough
study of these different tax laws with the view of increasing the allotments to
local governments, more particularly to the City of Manila, and also of finding
a way whereby we could formulate or propose a bill which would give an
authority to cities or local governments to retain that which is due them,
because under present laws before the city or local government could get a
revenue it has yet to be passed upon by the national government.  So the Mayor wants a law – if we could make
or propose a bill – which would automatically grant the local government an
author­ity to retain that which is due the local government.” (t.s.n., pp. 4-6, Aug. 24, 1963.)

As thus testified to,
which testimony respondents-appellants failed to rebut, it is evident that the
nature of the duties assigned to and performed by petitioner-appellee requires the use of his knowledge as a lawyer;
that the discharge of the duties attached to the office actually involves the
exercise of the legal profession.  As the
law-course involves more than 4 years of study, the conversion of appellee’s bar-qualification into first grade eligibility
under Republic Act 1080, as amended, was proper.

There is no denying the
laudable purpose of appellant Civil Ser­vice Commissioner in requiring the
appointee to the position of Tech­nical Assistant on Fiscal Matters to have
some knowledge of finance and economics. 
It is really high time that we
adhere, strictly, to the merit
principle embodied in the Civil Service law and the Constitu­tion, and give due
recognition to the desirability of specialization in the public service, the
way it is observed in more progressive coun­tries.  Thus, in the present case, a lawyer with
background in econ­omics and finance certainly would have been preferred.  However, there being no showing that
when the disputed appointment was ex­tended, there were other eligible persons
better prepared, technically, than herein appellee,
or that the latter was not competent to dis­charge the duties attached to said
office, the ruling of the lower court that appellee
is qualified to hold the position must be upheld.

Coming to the second issue, it may be pointed out that, in
connection with the filling of vacant position, the Revised Civil Service law
(Rep. Act 2260) is very specific.  It
provides:

“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.  x x
x.” (Sec. 23; underscor­ing
supplied.)

In other words, a vacant position (be it new or created by the
cessation of an incumbent in office) shall be filled by promotion of the
ranking officer or employee, who is competent and qualified^[1]
to hold the same.  And only where, for
special reason or reasons of which the affected officer or employee will be
notified, this mode of recruitment or selection cannot be observed, that the
position may be filled either by transfer, or re-employment, or by getting from
the certified list of appropriate eligibles, in
that order.

In the case at bar,
however, no evidence was presented that there were ranking employees in
the office of the City Mayor affect­ed by the appointment of appellee to the position involved herein. We have to rule,
therefore, that the appointment in question did not violate the next-in-rank or
seniority rule of the Civil Service Act.

Anent the charge of irregularity in the transfer of appellee, from the position of field supervisor, at
P3,120.00 per annum, to that of Technical Assistant at P6,600.00 per annum, it
may be stated that a transfer is a “movement from one position to another
which is of equivalent rank, level or salary, without break in service.”^[2]
Prom­otion, on the other hand, is the “advancement from one position to
another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary.”^[3]

There is no allegation that the transfer of appellee from the pos­ition of field supervisor in the
office of the City Treasurer to that of Technical Assistant on Fiscal Matters
in the office of the City Mayor in­volves an increase of his duties and
responsibilities.  But assuming this to
be so, such increase of duties would not justify an increase of his salary
simultaneous with his transfer of office. 
For, under the Civil Service rules, promotion and transfer connote two
different personnel movements which cannot take place, in a single instance, at
the same time.  Whereas the first denotes
a scalar ascent of a senior officer or employee to another position, higher
either in rank or salary, the se­cond refers to a lateral movement from one
position to another, of equivalent rank, level or salary.  Evidently, this rule prohibiting an immediate
increase of compensation in cases of transfers was intend­ed to safeguard the
rule on seniority.  Appellee’s
latest appointment, insofar as it involves an immediate increase of
compensation, is violative of Civil Service rules
and, therefore, invalid.^[4]

To comply strictly with the Civil Service policy regulations in
force at the time of petitioner-appellee’s transfer,
the same should not have included any immediate increase in salary, but without
pre­judice to a subsequent promotional appointment after a minimum ser­vice of three months in the new position
for the policy established before 1967 was,

“that appointments of employees
transferring from one agency to another at a higher salary rate shall be ap­proved
at the salary last received in the former Office, and that the full rate shall
be allowed only after the employees
concerned shall have completed three months of service in the new agency.  Said policy was designed to protect the
promotional opportun­ities of insiders who, although not next in rank, meet the
requirements for appointment to vacant positions in their respective
offices.” (see par. 1, Civil Service Commission
Memorandum Circular No. 19, series of 1967).

Considering, however, the equities and circumstances of the case,
and particularly that petitioner Millares has been
found qualified for the position of Technical Assistant on Fiscal Matters; that
no evidence was produced that his
services in the new position have not been satisfactory, and that the City
Mayor’s insistence upon his ap­pointment is substantially equivalent to a
promotional appointment, we are of the opinion that petitioner should be
considered entitled to full compensation after three months from his original
transfer from the City Treasurer’s office to that of the City Mayor.  It is thus unnecessary to determine the
authority of the Chief of Personnel Transactions Division to approve the
disputed appointment of peti­tioner herein or the authority of the Commissioner
to revoke such appointment.

The directive of appellant Commissioner of Civil Service
terminating the services of petitioner-appellee on
account of his im­proper transfer, is not in
order.  The Commissioner’s power of
removal, demotion or suspension, it must be remembered, arises from his
authority over all subordinate officers and employees, members of the Civil
Service, in all matters relating to their conduct, dis­cipline, and efficiency,
and this authority may be exercised only for any of the causes provided in
Section 33, Article VII of Republic Act 2260, as implemented by Sections 3 and
19, Rule XVIII, Civil Service Rules, and after due notice and hearing.  As improper transfer from one position in the
government service to another is not one of the grounds for dismissal of an
employee, the order of appellant Civil Service Commissioner has no basis in
law.

On the matter of the propriety of appellee’s
resorting to the courts from the unfavorable decision of the Civil Service
Commissioner, suffice it to state that the action taken by the latter was not
in the exercise of his power to impose disciplinary measures to erring
subordinate officers and employees, which is subject to review by the Civil
Service Board of Appeals and the President, but in pursuance of his power to
approve (or disapprove) appoint­ments. In the exercise of this latter function,
the jurisdiction of the Civil Service Commissioner is exclusive.^[5]
Obviously, appellant’s claim of non-exhaustion of administrative remedies in
this case, is untenable.

For all the foregoing considerations, the decision
appealed from is modified, upholding the authority of the Commissioner of Civil
Service to withhold approval of petitioner’s appointment as Technical Assistant
on Fiscal Matters insofar as it involves an immediate increase of compensation
to P6,600.00 per annum, but declaring invalid the order of said Commissioner
terminating petitioner’s employment.  The
payment of the salaries of petitioner-appellee, for
actual services rendered, at the rate of P3,120.00 per
annum, for the first three (3) months following his transfer and at full rate
thereafter, is also hereby directed.  No
costs.

SO ORDERED.

Makalintal, Bengzon,
Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

Concepcion, C.J., on leave.

Dizon, J., did not take part.

^[1] The qualification and competence of an
employee shall be determined by the extent to which he meets the conditions
spec­ified in Section 4, Rule VII of the Civil Service Rules.

^[2]
Sec. 1, Rule V-P, Civil Service Rules.

^[3]
Sec. 1, Rule VII, Civil Service Rules.

^[4] Carrich vs. Sherman,
288 P. 143; 105 Cal. App. 546;
Couch vs. Stanley, 292 N.W. 482.

^[5] Sec. 16-h, Rep. Act 2260.