PERFECTO ESPAÑOL, PETITIONER, VS. THE HON. CIVIL SERVICE COMMISSION, HON. FEDERICO N. ALDAY, JR., IN HIS CAPACITY AS ADMINISTRATOR, NATIONAL IRRIGATION ADMINISTRATION, AND ORLAN…

In this special civil action for certiorari, petitioner
seeks the reversal of Resolution No. 88-755,^[1]
issued by public respondent Civil Service Commission on September 21, 1988 in
MSPB Case No. 1564, which reversed the decision of the Merit Systems Protection
Board and confirmed the appointment of private respondent Orlando L. Bulseco.

In September, 1986, the position of Regional Manager of the
National Irrigation Administration, Regional Office No. 2, Cauayan, Isabela,
became vacant. At that time, petitioner
Perfecto Español was Chief of the Engineering Division, while private
respondent Orlando L. Bulseco was Chief Design Engineer. In the organizational chart of the National
Irrigation Administration (NIA), the position of Chief Design Engineer is below
the Chief of the Engineering Division, and the latter is considered
next-in-rank to the position of
Regional Manager.

Private respondent Bulseco was appointed to the vacant position
of Regional Manager effective October 1, 1986, pursuant to Resolution No.
5302-86 which was passed by the Board of Directors of NIA. As a consequence, petitioner Español filed a
letter protest^[2]
with the Merit Systems Protection Board (MSPB), alleging that petitioner is the
employee next?in-rank to the position of Regional Manager and, as such,
he has promotional priority over Bulseco. MSPB referred the protest to the NIA Administrator for appropriate
action. The protest was dismissed by the NIA Administrator for lack of
merit on the ground that “in the evaluation conducted, Mr. Bulseco has
advantage over Mr. Español on the factors of performance and potential.”^[3]

Petitioner appealed the dismissal of his protest to the
MSPB. As a result of the evaluation
made on the qualifications of Español and Bulseco, taking into consideration
such factors as educational attainment, experience, eligibility and training,
the MSPB ruled that the
individual qualifications of the contestants exceed the qualification
requirements, especially those of respondent Bulseco. However, by virtue of petitioner’s ranking in the organizational
chart of NIA and pursuant to the provisions of Sections 2 and 4 of Resolution
No. 83-343 (Rules on Promotion) of the Civil Service Commission, the MSPB
“directed that Engr. Perfecto C. Español be appointed instead to the
position of Regional Manager, NIA Regional Office No. 2.”^[4]

Thereafter, respondent Bulseco appealed to the Civil Service
Commission (CSC). In reversing the
decision of the MSPB, thereby
sustaining the appointment of private respondent, the CSC held in its
Resolution No. 88-755 of September 21, 1988 that:

“x x x the Commission finds that prior to Bulseco’s appointment as Regional Manager of NIA,
Region 2, he was appointed
Project Manager of the Chico River Project in Tabuk, Kalinga-Apayao under a
permanent status in September, 1979. Notably, the position is of job level 22, as compared to that of a
Division Manager (level 20) and Regional Manager (level 23). At that time protestant Español was already
a Chief Regional Engineer (now Division Manager) of Region 2, a position with
job level 20. However, in that same
year Bulseco accepted an offer for a position of Irrigation Consultant in
Indonesia, prompting him to resign from his position as Project Manager. When Bulseco came back from abroad in 1981,
he was offered the only available position of Chief Design Engineer of NIA,
Region 2. This is a clear demotion but
he accepted the same with an assurance from the NIA Administrator that he would
soon be promoted to a higher position in the Region. Shortly thereafter, or on October 8, 1981, he was assigned as
Acting Provincial Irrigation Manager (PIM) for the province of Cagayan. This position is of a job level 20. On October 16, 1983, he was designated
Coordinator of the ‘National Irrigation Systems Improvement Project’ (NISIP), a
foreign-assisted project, at Abulug-Apayao. This position is again of job level 20.

“Thus we find merit as to Español’s contention that Bulseco
was under him because insofar as actual plantilla position is concerned, the
position of Bulseco is still Chief Design Engineer, a position really under
Español. However, Bulseco, because of
his designations, performed the duties and functions appurtenant to that of PIM
and Coordinator of NISIP which positions are of equal and next-in-rank,
respectively, to the contested position. So that prior to his appointment to the contested position, he was
actually the Coordinator of NISIP.

“On the other hand, the Organizational Chart of NIA shows that
there are six (6) next-in-rank positions to the contested position of Regional
Manager and that, all these are held by other employees, including Mr. Español.

“On the third ground, we take notice (of) that portion of the
MSPB decision which states:

‘From the above comparative data, it is evident that both
contestants meet the qualification requirements for the position. In fact their individual qualifications
exceed those requirements especially that (sic) of Engr. Bulseco.’

Without further delving into the detailed
comparative qualifications of the contestants, the Commission considers this an
indication or an admission that Engr. Bulseco indeed possesses superior qualifications than Espanol, not
discounting his relevant experience abroad. It is shown, however, that the MSPB accorded more weight to the finding
that Español is the one next-in-rank to the contested position and pursuant to
Section 4 of CSC Resolution No. 83-343, which states:

‘Section 4. An employee who
holds a next-in-rank position who is deemed the most competent and quali­fied x
x x shall be promoted to the position when it becomes vacant.’

Español has an edge and promotional
priority over Engr. Bulseco. But
granting arguendo that Bulseco is not really the person next-in-rank, the MSPB seems to have missed
the second paragraph of the same section which provides:

‘However, the appointing authority may promote an employee who
is not next-in-rank but, who possesses superior qualification and competence
compared to a next-in­rank x x x.’

This Commission, in several occasions, resolved the issue in favor
of employees who were not next-in-rank but were promoted to the contested
position. In the case of Corpuz vs.
Lopez, Jr., March 1, 1982, the then Commission ruled that:

‘Although both may be consi­dered for promotion and that the
next-in-rank should be given preference for promotion, the appointing authority
may appoint an employee who is not next-in-rank so as to choose only the most
competent and best qualified for the position.’

x x x

“WHEREFORE, foregoing premises consi­dered, this Commission
resolved to find as it hereby finds the appeal meritorious. Accordingly, the decision of MSPB dated
April 14, 1988 is therefore set aside and the appointment of Orlando L. Bulseco
as Regional Manager, Cauayan,
Isabela, is thus confirmed.”^[5]

Hence, this petition.

At the outset, we affirm
the fact that the CSC acted correctly in reversing the decision of the MSPB and in confirming the appointment
of private respondent Bulseco as Regional Manager. We shall here rule on the merits of the petition of Español who
insists that the MSPB did not err in setting aside the appointment made by the
NIA Administrator.

Section 19, paragraph 6, Article VIII of Presidential Decree No. 807 defines a qualified
next-in-rank as an employee appointed on a permanent basis to a position
previously determined to be next-in-rank to the vacancy proposed to be filled
and who meets the requisites for appointment thereto as previously determined
by the appointing authority and approved by the respondent commission.

Pursuant to the provisions of Section 9(b) and Section 19 of
Presidential Decree No. 807, the CSC promulgated Resolution No. 83-343 (Rules
on Promotion), Sections 2 and 4 of which provide:

“Section 2. Whenever a
position in the first level becomes vacant, the employees in the ministry or
agency who occupy positions deemed to be next-in-rank to the vacancy, shall be
considered for promotion. In the second
level, those employees in the government service who occupy next-in-rank
position shall be considered for promotion to the vacancy.”

“Section 4. An employee who holds a next-in-rank position who is deemed the most
competent and qualified, possesses an appropriate civil service eligibility,
and meets the other conditions for promotion shall be promoted to the higher
position when it becomes vacant.

However, the appointing authority may promote an employee who is
not next-in-rank but, who
possesses superior qualifications and competence compared to a next-in-rank employee
who merely meets the requirements for the position.”^[6]

Petitioner contends that on the basis of the organizational chart^[7]
of the NIA, he is considered as next-in-rank to the contested position and, therefore,
he has a promotional priority over respondent Bulseco. He likewise claims that assuming that the
second paragraph of Section 4 of Resolution No. 83-343 provides an exception to
the next-in-rank rule, the same shall apply only when the person who is
next-in-rank merely meets the minimum requirements, but not where, as in the
case of herein petitioner, the qualifications of the next-in-rank far exceed
the requirements for appointment to the contested position. In other words, petitioner is of the opinion
that one who is not next-in-rank may be promoted only if the next-in-rank
merely meets the minimum requirements for the position. However, where the qualifications of the
next-in-rank exceeds the minimum requirements, it is mandatory that the next-in-rank
be promoted to the position.

The contention is devoid of merit.

Fundamental is the rule that appointment is an essentially
discretionary power and must be performed by the officer in whom it is vested
according to his best lights, the only condition being that the appointee shall
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. This is a political question involving considerations
of wisdom which only the appointing authority can decide.^[8]

Consequently, it was further held that where respondent
commission has acknowledged that both the petitioner and the private respondent
were qualified for the contested position, that recognition alone rendered it functus
officio in the case and prevented it from acting further thereon except
to affirm the validity of the appointment made by the head of the office.

In the case at bar, there is no dispute that both petitioner
Español and private respondent Bulseco exceed the qualification standards for
appointment to the position of Regional Manager. It is likewise not denied that, as originally found by the
Administrator, respondent Bulseco is more qualified than petitioner. The fact alone that both contestants meet
the minimum qualifications required by law should have restrained MSPB from
acting on, much less in granting, the appeal of herein petitioner except, of
course, to affirm the appointment of private respondent. Unfortunately, the MSPB opted to disregard
the choice made by the appointing authority and appointed herein petitioner
instead, invoking therein the next-in-rank rule provided for under Section 19
of Presidential Decree No. 807, as well as Sections 2 and 4 of CSC Resolution
No. 83-343.

In the case of Taduran vs. Civil Service Commission, et al.,^[9]
this Court had the opportunity to pass upon the extent of the applicability of
the next-in-rank rule. The pertinent
provisions of Presidential Decree No. 807 state:

“Sec. 19. Recruitment
and Selection of Employees. ?

x x x

(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.

x x x

(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.

x x x

(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.”

which Taduran interpreted in this
wise:

“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. x x x.”

In  Medenilla vs. Civil
Service   Commission, et al.,^[10]
this Court went further by holding that the next-in-rank rule may be
disregarded even in case of promotions. Thus:

“x x x We have already held in cases subsequent to Millares
that the next-in-rank rule is not absolute; it only applies in cases of
promotions x x x. And even in
promotions, it can be disregarded for sound reasons made known to the
next-in-rank. The appointing authority,
under the Civil Service Law, is allowed
to fill vacancies by promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have appropriate civil service
eligibility, not necessarily in that order. x x x There is no legal fiat that a vacancy must be filled only by
promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives
provided for by law.”

In a recent case,^[11] we
noted further “that even if the vacancy here had been filled by promotion
rather than by lateral transfer, the concept of ‘next in rank’ does not import
any mandatory or peremptory requirement that the person next in rank must be
appointed to the vacancy. What Section
19(3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is
filled by a promotion, the person holding the position next in rank thereto ‘shall
be considered for promotion.’”

The rationale advanced for the limitation imposed on the
next-in-rank rule is because the rule neither grants a vested right to the
holder nor imposes a ministerial duty on the appointing authority to promote
such person to the next higher position. Hence, to apply the next-in-rank rule peremptorily would impose a rigid
formula on the appointing power contrary to the policy of the law that among those
qualified and eligible, the appointing authority is granted discretion and
prerogative of choice of the one he deems fit for appointment.^[12]

Time and again we have held on to the principle that the
determination of who among several candidates for a vacant position has the
best qualifications is vested in the sound discretion of the department head or
appointing authority and not in the Civil Service Commission. Every particular job in an office calls for
both formal and informal qualifications. Formal qualifications such as age,
number of academic units in a certain
course, seminars attended, and so forth, may
be valuable but so are such intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the future, and best
interests of the service. Given the
demands of a certain job, who can do it best should be left to the head of the
office concerned provided the legal requirements
for the office are satisfied. The Civil
Service Commission cannot substitute its judgment for that of the head of
office in this regard.^[13]

Elucidating further, we held in Abila vs. Civil Service
Commission, et al., supra, that “(t)he head of the office is
the person on the spot. He occupies the
ideal vantage point from which to identify and designate the individual who can
best fill the post and discharge its functions in the government agency he
heads. The choice of an appointee from
among those who possess the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience,
utility and the interests of the service which can best be made by the head of
the office concerned, the person most
familiar with the organizational structure and environmental circumstances
within which the appointee must function.”

We deem it necessary, under the circumstances herein obtaining,
to declare that Section 4 of CSC Resolution No. 83-343 has been superseded by
Section 2 of Rule 3 of CSC Resolution No. 89-799 which reads:

“Section 2. Positions
in the Second Level. – When a
vacancy occurs in the second level of the career service as herein defined, the
employees in the department who occupy the next lower positions in the
occupational group under which the vacant position is classified, and in other
functionally related occupational groups, who are competent and qualified and and
with appropriate civil service
eligibility shall be considered for appointment to the vacancy.”

In the aforestated case of Abila, we made a categorical
pronouncement that “(w)hen, in the exercise of its rule-making power, it
promulgated Section 4 of its earlier Resolution No. 83-343, the Commission
clearly exceeded the scope of its statutory authority since the Civil Service
Law itself, in Section 19(3) of P.D. No. 807, had simply provided that persons
next in rank who are qualified ‘shall be considered for promotion.’ The current
regulation found in Section 2 of Rule III of the Commission’s Resolution No.
89-779 is, fortunately, more consistent with the Commission’s enabling
statute.”

Parenthetically, anent the observation of respondent commission
and private respondent that Section 19 (6) of Presidential Decree No. 807 has
been repealed by Section 8 of Presidential Decree No. 1409, suffice it to say
that it is the power of review by the President, not the next-in-rank rule,
which has been repealed by the latter decree.

FOR ALL THE FOREGOING CONSIDERATIONS, no abuse of
discretion being imputable to public respondents in this case, the petition at
bar is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Davide, Jr., Romero, and Nocon, JJ.,
concur.

^[1]
Annex D, Petition; Rollo, 36.

^[2]
Annex B, id.,; ibid., 28.

^[3]
Comment for Public Respondent, 4; Ibid., 74.

^[4]
Annex C, id.; ibid., 54.

^[5]
Annex D, id.; ibid., 57.

^[6]
Comment of Public Respondent, 10; ibid., 80.

^[7]
Annex E, Petition; ibid., 62.

^[8]
Luego vs. Civil Service Commission, et al., 143 SCRA 327 (1986); Patagoc
vs. Civil Service Commission, et al., 185 SCRA 411 (1990); Lapinid vs.
Civil Ser­vice Commission, et al., G.R. No. 96298, May 14, 1991.

^[9]
131 SCRA 66 (1984).

^[10]
194 SCRA 278 (1991).

^[11]
Abila vs. Civil Service Commission, et, al., G.R. No. 92573, June 3,
1991.

^[12]
Santiago, Jr. vs. Civil Service Commission, et. al., 178 SCRA 733
(1989).

^[13]
Gaspar vs. Court of Appeals, et al., 190 SCRA 774 (1990); Chang vs.
Civil Service Commission, et al., 191
SCRA 663 (1990).