NAPOLEON A. TADURAN, PETITIONER, VS. COMMISSIONER OF CIVIL SERVICE AND LIWANAG M. GODINEZ, RESPONDENTS.

A Petition for Review on Certiorari of the decision of the Civil Service Commission upholding that of the Merit Systems Board in its MSB Case No. 50.

In the Regional Health Offices of the Ministry of Health, there are
positions of Supervising Dentist and Senior Dentist, the former being of
higher rank. Sometime in 1977, the position of Supervising Dentist in
Regional Health Office No. 4, Manila, became vacant. At that time,
petitioner TADURAN was the Supervising Dentist of Regional Health Office
(RHO) No. 9, Zamboanga City, while private respondent GODINEZ was
Senior Dentist of Regional Health Office (RHO) No. 4, Manila.

On February 23, 1977, the Secretary of Health (now Minister of Health)
appointed TADURAN as Supervising Dentist of RHO No. 4. It was a
“transfer from a similar position in Regional Health Office No. 9,
without alteration in salary”. On March 7, 1977, GODINEZ protested
TADURAN’s ap­pointment before the Civil Service Commission on the ground
that as Senior Dentist in RHO No. 4, promotion was hers of right since
she was the next-in-rank to Supervising Dentist.

It is admitted that GODINEZ has an edge over TADURAN in terms of
educational attainment as she has a Certificate in Public Health, which
TADURAN does not possess. However, the appointing authority considered
the fact that TADURAN outranks GODINEZ in points of experience, rank and
salary. TADURAN had been a World Health Organization Fellow; had
conducted Dental Epidemiological Survey in Singapore for 3 months, and
had an extensive supervisory field work expe­rience compared to the
experience of GODINEZ in field work supervision, which had started only
on October 25, 1976.

The issue for resolution is whether, under the new Civil Service Decree
(P.D. No. 807), the promotion of a Senior Dentist to a vacant position
of Supervising Dentist in the same region has priority over the transfer
to the vacant position of one who is already a Supervising Dentist in
another region. Respondent Civil Service Commission upheld the Decision
of its Merit Systems Board finding no justification for the appointment
of TADURAN, a transferee, despite the availability of a next-in-rank
employee in the same region in the person of GODINEZ. It declared the
ap­pointment by the Secretary (now Minister) of Health null and void,
directed TADURAN’s return to his former station, and recommended the
promotion of GODINEZ to the contested position.

We are constrained to reverse.

The pertinent provisions of P.D. No. 807 read:

“See. 19 – Recruitment and Selection of Employees.

xxx                   xxx                   xxx                   xxx

(3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions
in the occupational group under which the vacant position is classified
and in other functionally related occupational groups and who are
competent, quali­fied and with the appropriate civil service eligibility
shall be considered for promotion.

xxx                   xxx                   xxx                   xxx

(5) If the vacancy is not filled by promotion as provided herein the same shall be filled by transfer
of present employees in the government service, by reinstatement, by
re-employment of persons separated through reduction in force, or by
appointment of persons with the civil service eligibility appropriate to
the positions.

xxx                   xxx                   xxx                   xxx

(6) A qualified next-in-rank employee shall have the right to appeal initially to the department head and finally to the Office of the President an appointment made (1) in favor of another next-in-rank employee who is not qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who is appointed by transfer and not next-in-rank,
or by reinstatement, or by original appointment if the employee making
the appeal is not satisfied with the written special reason or reasons
given by the appointing authority for such appointment. x x x (Emphasis
ours)

We find no mandatory nor peremptory requirement in the foregoing
provision that persons next-in-rank are entitled to preference in
appointment. What it does provide is that they would be among the first
to be considered for the va­cancy if qualified, and if the vacancy is
not filled by promotion, the same shall be filled by transfer or other
modes of appointment. The latter provision is identical to that in
Section 23 of Republic Act No. 2260.^[1]

The noticeable change introduced by Section 19(6) of P.D. No. 807 lies
in that a qualified next-in-rank employee shall have the right to appeal
an appointment in favor of one who is appointed by transfer and not
next-in-rank if the employee making the appeal is not satisfied with the
written special reason or reasons given by the appointing authority for
such appointment. In other words, “special reason or reasons” are now
required to be given even in case of an appointment by transfer and not
next-in-rank. However, the right of appeal wanted to the next-in-rank
who has not been promoted, cannot be construed as indicative of a
legislative intent to give priority to promotion over transfer as a
means of filling vacant positions. Such restrictive interpretation
would unjustifiably imply that next-in ranks are more fit and
meritorious for appointment than these of higher rank moved by transfer.
It would also impose a rigid formula on the appointing power contrary
to the policy of the law that among those qualified and eligible, an
appointing authority is granted discretion and prerogative of choice of
the one he deems most fit for appointment.^[2]
The cardinal requirement is merit and fitness under Article XII, B,
Section 2, of the 1973 Constitution, and the demands of public service.^[3]

“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 best 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 offices
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
those 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 undisputable. Such is the policy
of the law, a policy reflected with fidelity in the decisions of this
Court. x x x “^[4]

We thus see no reason for disturbing the Minister of Health’s
appointment of TADURAN in the exercise of his admi­nistrative or
executive judgment.

WHEREFORE, we reverse and set aside the appealed Decision of the Merit
Systems Board, which was sustained by respondent Civil Service
Commission and, instead, uphold the appointment of petitioner Dr.
Napoleon A. Taduran as Supervising Dentist of Regional Health Office No.
4-A, Manila. The Temporary Restraining Order heretofore issued is
hereby made permanent. No costs.

SO ORDERED.

Teehankee, (Chairman), Plana, Relova, and De La Fuente, JJ., concur.

Gutierrez, Jr., J., concur. However reserves his views
on the extent of the change introduce by Section 19, Subsections 2 to
6, P. D. 807 on the Pineda v. Claudio doctrine when transfers or other
modes re used instead of next-in-rank promotion.

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^[1] “Sec. 23. Recruitment and Selection of Employees. –

x x x

Whenever a vacancy occurs in any position in the competitive
service in the government x x x the officer or employee next in rank
preferably in the same office, who is competent and qualified to hold
the position and who possesses an appropriate civil service eligibility
shall be appointed thereto: x x x That should there be any special
reason or reasons why such officer or employee should not be appointed
to such vacancy, 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 shall be final, unless
appealed from in the manner provided by law: x x x. If the vacancy is
not filled by promotion as provided herein, then same shall be filled
by transfer or present employees in the government service, by
reinstatement, by re-employment of persons separated through reduction
in force, or by appointment of persons with the Civil Service
eligibility appropriate to the position.” (Republic Act No. 2260).

^[2] Pineda v. Claudio, 28 SCRA 34 (1969).

^[3] Torre vs. Borja, 56 SCRA 47 (1974 ).

^[4] Reyes vs. Abeleda, 22 SCRA 825 (1968).