JOSE CESAR D. SIMPAO, PETITIONER, VS. CIVIL SERVICE COMMISSION, BUREAU OF INTERNAL REVENUE, AND RAUL DE OCERA, RESPONDENTS.

This is a petition for Certiorari with Urgent Prayer for the
Issuance of a Temporary Restraining Order to annul the resolutions^[1]
of the respondent Civil Service Commission in CSC Case No. 31, entitled
“RE:  DE OCERA, RAUL B., Appellant”, the
first dated September 27, 1988, and the second dated November 24, 1988, for
having been issued with grave abuse of discretion
amounting to lack of jurisdiction and in gross violation of the right of
petitioner to due process.

The undisputed facts are
as follows:

On November
1, 1987, petitioner
Jose Cesar D. Simpao was appointed Supervising
Revenue Enforcement Officer of the Bureau of Internal Revenue (BIR), pursuant
to the reorganization of the BIR under Executive Order No. 127 dated January
20, 1987.  The appointment was actually a reappointment
because prior to the reorganization Simpao was
holding the same position of Supervising Revenue Enforcement Officer assigned
to the Manufacturing Division I by virtue of Revenue Travel Assignment Order
No. 166-87 (Rollo, p. 73).

On April
28, 1988, private
respondent Raul de Ocera filed his protest contesting
the appointment of petitioner Jose Cesar D. Simpao as
Supervising Revenue Enforcement Officer on the ground that he has better
qualifications and is more competent than Simpao (Rollo, p. 53; Comment, p. 1).

Evaluating the protest, Assistant
Commissioner of the BIR, Fortunato Aguas, Section Operations Officer, made the following
comment on May 10, 1988:

“In connection with the subject protest, I would like to state for
the record that the Protestee meets the standard of
competence and integrity as will be shown by his performance and his spotless
records as a revenue man.  A consistent outstanding
achiever in terms of assessment and collection for the last two years,
he is superior to Protestant, who has alternately posted on a ‘satisfactory’ or
‘very satisfactory’ adjectival rating during the same period.

“Similarly, my evaluation on the parties as to the moral fitness
relevant to the contested position discloses that the Protestee
has an edge because he has not been linked to any anomaly, irregularity, a fact
which cannot be conceded to the Protestant.

“In sum it is my considered view that between the herein contending
parties, it is the Protestee who can better give
substance and dignity to the position, hence, more deserving than Protestant.

“Accordingly, it is respectfully recommended that the protest be
dismissed for lack of merit.” (Rollo, p. 25;
Petition; Annex “C”).

On May 24,
1988, the Bureau of
Internal Revenue-Reorganization Appeals Board (BIR-RAB) rendered its decision
against Ocera (Rollo, p.
54; Comment, p. 2).

On May 26,
1988, Ocera appealed to the Civil Service Commission.  Simpao was never
notified by the former of the appeal. 
Neither did the respondent Commission give any notice thereof to Simpao (Rollo, p. 6; Petition).  He came to know of it only when the
questioned resolution of September 27, 1988 was promulgated, the dispositive
portion of which reads as follows:

“In view thereof, Mr. Simpao’s
appointment as Supervising Revenue Enforcement Officer is deemed revoked.  Appellant De Ocera
should be appointed thereto instead and appellee Simpao be considered to the Sr. Revenue Enforcement Officer
position vacated by appellant.  The BIR
Commissioner is hereby directed to immediately issue to herein contestants
their respective appointments, in accordance with the new staffing pattern of
the Bureau.” (Rollo, p. 20; Petition; Annex “A”, p.
3).

On October
17, 1988, Simpao filed with the respondent Commission a Motion for
Reconsideration with Urgent Prayer to Stay Execution (Rollo,
p. 26; Petition; Annex “D”).  In its
resolution of November 24, 1988, the CSC found no cogent reason to warrant
reversal and denied reconsideration (Rollo, p. 75).

Hence, this petition for certiorari based on the following grounds:

I

Having itself found that the petitioner is in possession of the
basic and minimum qualifications for the position (under the reorganization
plan) of Supervising Revenue Enforcement Officer, the respondent Commission
gravely abused its discretion when it nullified petitioner’s appointment
thereto in palpable disregard of long established jurisprudence that in such
cases the discretionary choice of the appointing power cannot be supplanted by
that of the Civil Service Commission.

II

The grave abuse of discretion of the respondent Commission is
underscored by the fact that the petitioner, more than having the minimum
qualifications for the position, has been found by the BIR Personnel Evaluator
to be more competent, more qualified and more deserving than private respondent
De Ocera, and yet the Commission without any
justifiable reason disregarded this finding and, instead, resorted to a
distorted application of the Rules on Government Reorganization to come out
with the baseless conclusion that respondent De Ocera
has a ‘preferential right of appointment.’

III

The respondent Commission denied petitioner’s right to due process
and compounding the violation of constitutional rights, brushed aside without
discussion the petitioner’s motion for reconsideration wherein it precisely raised
the issue of violation of the due process clause.  (Rollo, p. 7;
Petition, p. 6).

On December
28, 1988, the Court En Banc issued a
Temporary Restraining Order enjoining the implementation and execution of the
questioned CSC Resolutions dated September 27, 1988 and November 24, 1988 (Rollo, p. 50).

In the resolution of July 25,
1989, the Court
considered the comment as answer and required the parties to file their
respective memoranda (Rollo, p. 104).  Petitioner and respondent having adopted
their respective pleadings as their memoranda, this case was calendared for
deliberation in the resolution of April 24, 1990 (Rollo, p. 122).

The claim of Simpao that he was deprived of his right to due
process has been cured by his filing of a Motion for Reconsideration
subsequently upon having learned of the questioned resolution of September
27, 1988.  In the case of Sumadchat
v. Court of Appeals, January 30, 1982, 111 SCRA 501; this Court held that “in
the application of the principle of due process, what is sought to be safeguarded is not lack of previous notice but the
denial of opportunity to be heard x x x.” (Bermejo v. Barrios, L-23614;
Camorin v. Barrios, L-23615, February 27, 1980, 31
SCRA 764, 775-776 cited in Corjeo v. Secretary of
Justice, June 28, 1974, 57 SCRA 663). 
“Absence of previous notice is not itself a substantial defect; what the
law abhors is the lack of opportunity to be heard x x
x.” (Manuel v. Viilalena,
et al., L-28218, February 27, 1970, 37
SCRA 745, 751).

The records disclose that
petitioner moved for reconsideration of the CSC decision.  In the case of Dominador
L. Galura v. Civil Service Commission, et al., G.R.
No. 85812, June 1, 1989, En Banc, Minute Resolution, this Court held
that “a Motion for Reconsideration constitutes sufficient opportunity for the
party who feels aggrieved to inform the tribunal concerned of his side in the
controversy (Maglasang v. Ople,
63 SCRA 508 [1975]; Dormitorio v. Fernandez, 72 SCRA
388 [1976]; Sumadchat v. Court of Appeals, 111 SCRA
488 [1982]).”

However, there is merit
in Simpao’s contention that the Civil Service
Commission had committed grave abuse of discretion in nullifying his
appointment.  On all fours with the case
at bar, is the ruling of this Court in the case of Pintor
v. Tan, G.R. No. 84022, March 9, 1989,
which is as follows:

“Appointment is an essentially discretionary power and must be
exercised by the officer in which it is vested according to his best lights,
the fundamental requisite being that the appointee must possess the qualifications
required by law.  If he does,
then the appointment cannot be faulted
on the ground that there is another
better qualified who should have appointed instead.  Whom to appoint among those who possess the required
qualifications is a ‘political’ or administrative question involving
considerations of wisdom and the interests of the service which only the appointing authority can decide (Zulueta vs. Mamangun, et al.,
G.R. No. 85941, June 15, 1989; Luego v. CSC, 143 SCRA
327 [1986]; Torres vs. Borja, 56 SCRA 47 [1974]; Meralco
Securities Corp. vs. Savellano, 117 SCRA 804 [1982]).  There is no question that both respondent Santiago
and petitioner Pintor possessed the qualifications
specified for the position involved. 
That being so, the head of the office, the Commissioner of
Internal Revenue, must be accorded ample
leeway in choosing the person
he regards as most suited for the
position and whose appointment is, in
his judgment, called for by the best interests
of the service (Cited in Dominador
L. Galura vs. CSC, G.R. No. 85812, June 1, 1989)
(Underscoring supplied).

Again, in Central Bank of
the Philippines, et al. v. Civil Service Commission, et al.,
G.R. Nos. 80455­-56, April
10, 1989, this Court
held:

“x x x It is
well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but
to attest to the appointment in accordance with the Civil Service Laws (Luego vs. CSC, 143 SCRA 327, 331 [1986]).  The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a
particular position.  It also has no
authority to direct the appointment of a substitute of its choice.  To do so would be an encroachment on the
discretion vested upon the appointing authority.  An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the only condition
that the appointee should possess the qualifications required by law.” (Cited
in Lourdes R. Zulueta vs. Marina O. Mamangun, et al., G.R. No. 85941, June 15, 1989 and Dominador L. Galura vs. CSC, et
al., G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution).

In the case at bar, there is no question that
Simpao possesses the qualifications required for the
contested position.  The appointing
authority had exercised its discretion and had chosen its appointee fully
cognizant of the respective positions previously held by the rival
candidates.  The comment of the Assistant
Commissioner, Section Operations Officer is strongly indicative of the
determination made by the appointing officer of the one most suited for the
position from among the competing candidates, based on standards of competence
and integrity and as required by
the interest of the service.  The right
of choice having been exercised, it cannot now be faulted on the ground that
there is another better qualified. 
Respondent Commission cannot substitute its will for that of the
appointing authority.  In revoking the
appointment thus made, it had encroached on the discretion vested in the latter
(Central Bank, et al. v. CSC, et al.,
supra; Luego v. CSC, No. 69137, August 5,1986,
143 SCRA 327).

PREMISES CONSIDERED, (1) the Resolutions of the Civil Service Commission
dated September 27, 1988 and November 24, 1988 are hereby SET ASIDE; (2)
respondent Civil Service Commission is hereby DIRECTED to attest the
appointment of petitioner Jose Cesar D. Simpao as Supervising
Revenue Enforcement Officer; and (3) the temporary restraining order issued on
December 28, 1988 is hereby MADE permanent.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Grino-Aquino, Medialdea, and Regalado, JJ., concur.

Feliciano, J., on leave.

^[1]
Penned by Patricia Sto. Tomas, Chairman, concurred in
by Sanilo N. Barlongay and Marto D. Yango.