JOSE C. LAUREL V, IN HIS OFFICIAL CAPACITY AS PROVINCIAL GOVERNOR OF BATANGAS, PETITIONER, VS. CIVIL SERVICE COMMISSION AND LORENZO SANGALANG, RESPONDENTS.

Is the position of
Provincial Administrator primarily confidential?

Does the rule on nepotism
apply to designation?

May a private citizen who
does not claim any better right to a position file a verified complaint with
the Civil Service Commission to denounce a violation by an appointing authority
of the Civil Service Law and rules?

These are the issues
raised in this petition.

The antecedent facts are
not disputed.

Petitioner, the duly
elected Governor of the Province of Batangas, upon assuming office on 3 March
1980, appointed his
brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the
Governor, a non-career service position which belongs to
the personal and confidential staff of an elective official.^[1]

On 31
December 1980, the
position of Provincial Administrator of Batangas became vacant due to the
resignation of Mr. Felimon C. Salcedo III. 
Allegedly for lack of qualified applicants and so as not to prejudice
the operation of the Provincial Government, petitioner designated
his brother, Benjamin Laurel, as Acting
Provincial Administrator effective 2 January 1981 and to continue until the
appointment of a regular Provincial Administrator, unless the designation is earlier revoked.^[2]

On 28 April
1981, he
issued Benjamin Laurel a promotional appointment as Civil Security Officer, a
position which the Civil Service Commission classifies as “primarily
confidential” pursuant to P.D. No. 868.^[3]

On 10
January 1983,
private respondent Sangalang wrote a letter to the Civil Service Commission^[4] to bring to its attention the
“appointment” of Benjamin Laurel as Provincial Administrator of
Batangas by the Governor, his brother. 
He alleges therein that:  (1) the position in question is a career
position, (2) the appointment
violates civil service rules, and (3) since the Governor authorized said
appointee to receive representation allowance, he violated the Anti-Graft and
Corrupt Practices Act.  He then asks that
the matter be investigated.

In his letter to the
Chairman of the Civil Service Commission dated 18 January 1983,^[5] Jose A. Oliveros, Acting Provincial Attorney
of Batangas, for and in behalf of herein petitioner, asserts that the latter
did not violate the provision prohibiting nepotism under Section 49 of P.D. No.
807 because, with respect to the positions of Senior Executive Assistant and
Civil Security Officer, both are primarily confidential in nature; and, with
respect to the position of Provincial Administrator:

“x x x what is prohibited under Section 49 of P.D. 807 is the appointment
of a relative to a career Civil
Service position, like that of a provincial administrator.  Governor Laurel did not appoint his brother,
Benjamin, as Provincial Administrator. 
He merely designated him ‘Acting Provincial Administrator.’ And
‘appointment’ and ‘designation’ are two entirely different things.  Appointment implies original establishment of
official relation.  Designation is the
imposition of new or additional duties upon an officer to be performed by him
in a special manner.  It presupposes a
previous appointment of the officer in whom the new or additional duties are
imposed.

Appointment is generally permanent, hence the officer appointed
cannot be removed except for cause; designation is merely temporary and the new or
additional powers may be withdrawn with or without cause.

Benjamin C. Laurel had already been appointed Senior Executive
Assistant in the Office of the Governor when Governor Laurel designated him
Acting Provincial Administrator.”

It
is further alleged that there
was no violation of the Anti-Graft and Corrupt Practices Act because:

“As Acting Provincial Administrator, Benjamin is entitled
under Office of the President Memorandum-Circular No. 437, series of 1971, to a
monthly representation allowance of P350.00. 
And said allowance is ‘strictly on reimbursement basis.‘“^[6]

On 12 July
1983, the Civil
Service Commission handed down the aforesaid Resolution No.
83-358^[7] which, inter alia, revokes the
designation of Benjamin as Acting Provincial Administrator on the ground that it is “nepotic”, or in violation of Section 49, P.D. No. 807
on nepotism.  The relevant portion of
said section reads as follows:

“SECTION 49.  Nepotism.  – (a) All appointments in the national,
provincial, city and municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled corporations, made in favor
of a relative of the appointing or recommending authority, or of the chief of
the bureau or office, or of the persons exercising immediate supervision over
him, are hereby prohibited.

As used in this Section, the word ‘relative’ and members of the family referred to are
those related within the third degree either of consanguinity or affinity.

(b) The following
are exempted from the operation of the rules on nepotism:  (1) persons employed in a confidential
capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of
the Philippines:  Provided, however, That in
each particular instance full report of such appointment shall be made to the
Commission.”

x x x

Although
what was extended to Benjamin was merely a designation
and not an appointment, the Civil Service Commission ruled that “the
prohibitive mantle on nepotism would include designation, because what cannot
be done directly cannot be done indirectly.” It further held that Section
24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career)
shall perform the duties properly belonging to any position in the competitive
service (now career service).  The
petitioner, therefore, could not legally and validly designate Benjamin, who
successively occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the
position of Provincial Administrator, a career position under Section 4 of R.A.
No. 5185.

Petitioner’s motion to
reconsider said Resolution,^[8] based on the claim that the questioned
position is primarily confidential in nature, having been denied in Resolution
No. 85-271 of 3 July 1985^[9] wherein the respondent Civil Service
Commission maintains that said
position is not primarily-confidential in nature since it neither belongs to
the personal staff of the Governor nor are the duties thereof confidential in
nature considering that its principal functions involve general planning,
directive and control of administrative and personnel service in the Provincial
Office, petitioner filed the instant petition invoking the following grounds:

“A.  Respondent
Commission has committed a (sic) grave abuse of discretion amounting to lack or
excess of jurisdiction when it held that the position of provincial
administrator is not a primarily-confidential position because said ruling is
diametrically opposed to, and in utter disregard of rulings of this Honorable
Court as to what is a primarily-confidential position under Article XII-B, Sec.
2 of the Constitution.

B.  Respondent Commission gravely abused its
discretion and acted without jurisdiction when it arrogated unto itself the
power to review a designation made by petitioner by virtue of the powers in him
vested under Section 2077 of the Revised Administrative Code.

C.  Respondent Commission exceeded its
jurisdiction when it gave due course to the complaint of private respondent and
thereafter promulgated the resolutions under question in this petition.

D.  There is no appeal, nor any other plain,
speedy and adequate remedy in the ordinary course of law available to
petitioner to have the questioned resolutions of respondent Commission reviewed
and thereafter nullified, revoked and set aside, other than this recourse to a
petition for certiorari under Rule 65 of the Rules of Court.

In the Comment filed for
the respondent Commission on 7 October 1985, the Solicitor General sustains the
challenged resolutions and contends that the position of Provincial
Administrator is intended to be part of the career system and since it requires
a specific civil service eligibility, it belongs to the career service under
Section 5(1) of P.D. No. 807 and has not been declared primarily confidential
by the President pursuant to Section 1 of P.D. No. 868; that the Commission has
the authority to review, disapprove, and set aside even mere designations,
as distinguished from appointments, for Section 2 of P.D. No. 807 vests in it
the power to enforce the laws and rules governing the selection, utilization,
training and discipline of civil servants; and that it can act on Sangalang’s
complaint pursuant to Section 37 of P.D. No. 807, for what he filed was not an
action for quo warranto, but an administrative complaint to correct a violation of the Civil
Service law and rules which involved
public service and the public interest. 
Per Benitez vs. Paredes,^[10] reiterated
in Tañada vs. Tuvera,^[11] where the question is one of public right, the people are regarded
as the real parties in interest, and the relator at whose instigation the
proceedings are instituted need only show that he is a citizen and as such
interested in the execution of the laws.

On 11 December 1985, petitioner
filed his Reply to the Comment insisting therein that the duties, functions and
responsibilities of the Provincial Administrator render said position primarily
confidential in nature; the requirement of a specific service eligibility and
absence of a presidential declaration
that the position is primarily confidential do not place the said position in
the career service; the position of Provincial Administrator is in the
non-career service; and that the Benitez vs. Paredes
and Tañada vs. Tuvera cases
are not applicable in this case. 
Petitioner insists that the controlling doctrines are those enunciated
in Salazar vs. Mathay,^[12]
where this Court held that there are
two instances when a position may be considered primarily confidential, to
wit:  (a) when the President, upon
recommendation of the Commissioner of Civil Service (now Civil Service
Commission) has declared a position to be primarily confidential; and (2) in
the absence of such declaration, when by the very nature of the functions of
the office, there exists close intimacy between the appointee and the
appointing power which insures freedom of intercourse without embarrassment or
freedom from misgiving or betrayals of personal trust or confidential matters
of state and Piñero vs.  Hechanova,^[13]
where this Court ruled that at least,
since the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the
nature of the position that finally determines whether a position is primarily
confidential, policy determining, or highly technical and that executive
pronouncements can be no more than initial determinations that are not
conclusive in case of conflict, which must be so, or else “it would then
lie within the discretion of the Chief Executive to deny to any officer, by
executive fiat, the protection of section 4, Article XII of the
Constitution.”

In his Rejoinder filed on
16 December 1986, the Solicitor General states that the rulings in the Salazar
and Piñero cases have been modified and superseded by
Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No.
868, which provides:

“Any provision of law authorizing any official, other than the
President, to declare positions policy-determining, primarily confidential or
highly technical which are exempt from the Civil Service Law and rules is
hereby repealed, and only the President may declare a position
policy-determining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget Commission and the
Presidential Reorganization Commission.”

The Solicitor General
further asseverates that the Commission’s giving due course to the complaint of
Sangalang is manifestly valid and legal for it is also in accordance with
the declared policies of the State provided for in Section 2 of P.D. No. 807.

In the Resolution of 9
February 1987, this Court gave due course to the petition and required the parties to
submit simultaneous memoranda.

We shall take up the issues in the order they are presented
above.

1. The first issue becomes important because if the questioned
position is primarily confidential,
Section 49 of P.D. No. 807 on nepotism would not apply in the instant
case.  Interestingly, however, petitioner
did not raise it in the letter to the Chairman of the Civil Service Commission
dated 18 January 1983.^[14]

On the contrary, he
submits, or otherwise admits therein, that said position is not primarily
confidential for it belongs to the career service.  He even emphasized this fact with an air of
absolute certainty, thus:

“At this juncture, may I emphasize
that what is prohibited under Sec. 49 of P.D. 807 is the appointment of
a relative to a career Civil Service
position, LIKE THAT OF PROVINCIAL
ADMINISTRATOR x x x.”

(capitalization
supplied for emphasis).

The sole ground invoked
by him for exemption from the rule on nepotism is, as above indicated:  the rule does not apply to designation
— only to appointment.  He changed his mind only after the public respondent, in its Resolution No. 83-358,
ruled that the “prohibitive mantle on nepotism would include designation,
because what cannot be done directly cannot be done indirectly” and, more
specifically, only when he filed his motion to reconsider said resolution.  Strictly speaking, estoppel has bound
petitioner to his prior admission.  Per
Article 1431 of the Civil Code, through estoppel an admission or representation
is rendered conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon.^[15]

But
even if estoppel were not to operate against him, or regardless thereof, his
claim that the position of Provincial Administrator is primarily confidential,
is without merit.

As correctly maintained
by the public respondent and the Solicitor General, the position of Provincial
Administrator is embraced within the Career Service under Section 5 of P.D. No.
807 as evidenced by the qualifications prescribed for it in the Manual of
Position Descriptions,^[16] to wit:

“Education      :    Bachelor’s
degree preferably in Law/Public or Business Administration.

Experience    :    Six
years of progressively responsible experience in  planning, directing and administration
of provincial government operations. 
Experience in private agencies considered are those that have been more
or less similar level of administrative proficiency.

Eligibility        :    RA
1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First
Grade/Supervisor.”

It may be added that the
definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

x x x

“2.  DEFINITION:

Under the direction of
the Provincial Governor, responsible for the overall coordination of the
activities of the various national and local agencies in the province; and
general planning, direction and control of the personnel functions and the
administrative services of the Governor’s Office.

3.    DISTINGUISHING CHARACTERISTICS:

This is the class for
top professional level management, administrative and organizational work in
the operation of provincial government with highly complex, involved
relationships with considerable delegation of authority and responsibility and
a high degree of public contact.”

render
indisputable the above conclusion that the subject position is in the career
service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance
based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications, (b)
opportunity for advancement to higher career positions, and (c) security of
tenure.  More specifically, it is an open
career position, for appointment to it requires prior qualification in an appropriate
examination.^[17] It falls within the second major level of
positions in the career service, per Section 7 of P.D. No. 807, which reads:

“SECTION 7.  Classes of Positions
in the Career Service.  –  (a)
Classes of positions in the career service appointment to which requires
examinations shall be grouped into three major levels as follows:

x x x

(2) The second level shall include
professional, technical, and scientific positions which involve professional,
technical, or scientific work in a
non-supervisory or supervisory capacity requiring at least four years of
college work up to Division Chief level; x x x.”

In Piñero, et al. vs. Hechanova, et. al.,^[18]
this Court had the occasion to rule
that:

“It is plain that, at least since the enactment of the 1959
Civil Service Act (R.A. 2260), it is the nature of the position which
finally determines whether a position is primarily confidential, policy
determining or highly technical. 
Executive pronouncements can be no more than initial determinations that
are not conclusive in case of conflict. 
And it must be so or else it would then lie within the discretion of the
Chief Executive to deny to any officer, by executive fiat, the protection of
Section 4, Article XII^[19]
of the Constitution.”

This rule stands despite
the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:

“x x x and only the President may declare a position
policy-determining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget Commission and the
Presidential Reorganization Commission.”

for the reason
that the latter may be considered merely as the initial determination of the
Executive, which in no case forecloses judicial review.  A rule that exclusively vests upon the
Executive the power to declare what position may be considered
policy-determining, primarily confidential, or highly technical would subvert
the provision on the civil service under the 1973 Constitution which was then
in force at the time the decree was promulgated.  Specifically, Section 2 of Article XII of
said Constitution makes reference to positions which are
policy-determining, primarily confidential, or highly technical in nature,” thereby leaving no room for doubt
that, indeed, it is the nature of the position which finally determines
whether it falls within the above mentioned classification.  The 1987 Constitution retains this rule when
in Section 2 of Article IX-C, it clearly makes reference to “positions which
are policy-determining,
primarily confidential, or highly technical.”

In the light of the
foregoing, We cannot accept the view of the Solicitor
General in his Rejoinder^[20] that Salazar vs. Mathay^[21] and
Piñero, et al. vs. Hechanova,
et al.^[22] have already been modified by Section 6 of
P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

Not being primarily
confidential, appointment thereto must, inter alia, be subject to
the rule on nepotism.

We likewise agree with the public respondent that there is one
further obstacle to the occupation by Benjamin Laurel of the position of
Provincial Administrator.  At the time he
was designated as Acting Provincial Administrator, he was holding the position
of Senior Executive Assistant in the Office of the Governor, a primarily
confidential position.  He was thereafter
promoted as Civil Security Officer, also a primarily confidential
position.  Both positions belong to the
non-career service under Section 6 of P.D. No. 807.  As correctly ruled by the public respondent,
petitioner cannot legally and validly designate Benjamin Laurel as Acting
Provincial Administrator, a career position, because Section 24(f) of R.A. No.
2260 provides that no person appointed to a position in the non-competitive
service (now non-career) shall perform the duties properly belonging to any
position in the competitive service (now career service).

2. Being embraced in the career service, the position of
Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be
filled up by permanent or temporary appointment.  The first shall be issued to a person who
meets all the requirements for the position to which he is appointed, including
the appropriate eligibility prescribed. 
In the absence of appropriate eligibles and it becomes necessary in the
public interest to fill a vacancy, a temporary appointment shall be issued to a
person who meets all the requirements for the position except the appropriate
civil service eligibility, provided, however, that such temporary appointment
shall not exceed twelve months, but the appointee may be replaced sooner if a
qualified civil service eligible becomes available.^[23]

 Petitioner
could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No.
807.  They are related within the third
degree of consanguinity and the case does not fall within any of the exemptions
provided therein.

Petitioner, however,
contends that since what he extended to his brother is not an appointment, but
a DESIGNATION, he is not covered by the prohibition.  Public respondent disagrees, for:

“By legal contemplation, the prohibitive mantle on nepotism
would include designation, because what cannot be done directly cannot be done
indirectly.”^[24]

We cannot accept
petitioner’s view.  His specious and
tenuous distinction between appointment and designation is nothing more than
either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or
a last-ditch maneuver to cushion the impact of its violation.  The rule admits of no distinction between
appointment and designation.  Designation
is also defined as “an appointment
or assignment to a particular office”; and “to designate” means
“to indicate, select, appoint or set apart for a purpose or duty.”^[25]

In Borromeo
vs. Mariano,^[26]
this Court said:

“x x x All the authorities unite in saying that the term ‘appoint’
is well-known in law and whether regarded in its legal or in its ordinary
acceptation, is applied to the nomination or designation of an
individual x x x.” (emphasis supplied).

In Binamira vs. Garrucho,^[27]
this Court, per Mr. Justice Isagani M. Cruz, stated:

“Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular person to a specified
public office.  That is the common
understanding of the term.  However,
where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced
at will by the appointing authority.  In
this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person
named.”

It seems clear to Us that Section 49 of
P.D. No. 807 does not suggest that designation should be differentiated from
appointment.  Reading this section with
Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a
person to fill it up because it is vacant, is necessarily included in the term
appointment, for it precisely accomplishes the same purpose.  Moreover, if a designation is not to
be deemed included in the term appointment under Section 49 of P.D. No.
807, then the prohibition on nepotism would be meaningless and toothless.  Any appointing authority may circumvent it by
merely designating, and not appointing, a relative within the prohibited degree
to a vacant position in the career service. 
Indeed, as correctly stated by public respondent, “what cannot be done directly cannot be done
indirectly.”^[28]

3. As regards the last issue, We rule
that the letter-complaint of Sangalang was validly given due course by public
respondent.  Undoubtedly, as shown above, there was a violation of
law committed by petitioner in designating his brother as Acting Provincial
Administrator.  Any citizen of the
Philippines may bring that matter to the attention of the Civil Service
Commission for appropriate action conformably with its role as the central
personnel agency to set standards and to enforce the laws and rules governing
the selection, utilization, training and discipline of civil servants,^[29]
with the power and function to administer and enforce the constitutional and
statutory provisions on the merit system.^[30]
Moreover, Section 37 of the decree expressly allows a private citizen to
directly file with the Civil Service Commission a complaint against a
government official or employee, in which case it may hear and decide the case
or may deputize any department or agency or official or group of officials to
conduct an investigation.  The results of
the investigation shall be submitted to the Commission with recommendation as
to the penalty to be imposed or other action to be taken.  This provision gives teeth to the
constitutional exhortation that a public office is a public trust and public
officers and employees must at all times be, inter alia, accountable to the people.^[31]
An ordinary citizen who brings to the attention of the appropriate office any
act or conduct of a government official or employee which betrays the public
interest deserves nothing less than the praises, support and encouragement of
society.  The vigilance of the citizenry
is vital in a democracy.

WHEREFORE, this petition is DENIED for lack of merit, and
the challenged Resolutions of the Civil Service Commission are AFFIRMED.

Costs against petitioner.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin, and Romero, JJ., concur.

^[1]
Section 6 of P.D. No. 807.

^[2]
Annex “C” of Petition.

^[3]
Annex “B” and
“B-1” of Petition.

^[4]
Loc cit.

^[5]
Annex “D” of Petition.

^[6]
Annex “D” of Petition, 3.

^[7]
Annex “B” of Petition.

^[8]
Annex “E” of Petition.

^[9]
Annex “A” of Petition.

^[10]
52 Phil. 1.

^[11]
136 SCRA 27. G.R. No. 63915, 24 April 1985.

^[12]
73 SCRA 275.

^[13]
18 SCRA 417.

^[14]
Annex “D” of Petition.

^[15]
See Llacer vs. Muñoz, et al., 12 Phil. 328.

^[16]
Annex “G” of Petition; Rollo, 55. This was prepared in 1976
and revised in 1977 under a Joint Program of the Civil Service Commission, the
Provincial Management Project and the USAID Philippine Mission.

^[17]
No. (1) Second paragrah, Section 5, P.D. No. 807.

^[18]
supra.

^[19]
This is Section 4 of Article XII of the 1935 Constitution which provides:

“No
officer or employee in the Civil Service shall be removed or suspended except
for cause as provided by law.”

^[20]
Rollo, 101.

^[21]
supra.

^[22]
supra.

^[23]
Section 25, P.D. No. 807.

^[24]
Annex “B” of Petition.

^[25]
Black’s Law Dictionary, Fifth ed., 402.

^[26]
41 Phil. 322, 326-327.

^[27]
188 SCRA 154, 159.

^[28]
Annex “D” of Petition   .

^[29]
Section 2 (Declaration of Policy), P.D. No. 807.

^[30]
Section 9 (a), P.D. No. 807.

^[31]
Sec. 1, Article XI, 1987 Constitution.  SEE also Sec. 1 Article XIII, 1973
Constitution.