GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), PETITIONER, VS. HON. CIVIL SERVICE COMMISSION AND MARIA ASUNCION SALAZAR, RESPONDENTS.

This petition for certiorari assails Resolution No. 89-031
dated January 17, 1989, of
the Civil Service Commission (CSC) denying the appeal of the Government Service
Insurance System (GSIS) from the order of the Merit Systems Protection Board
(Board) dated September 2, 1988.

As far as the service record of private respondent Salazar filed
with the CSC – National Capital Region (NCR) revealed,
she was employed by GSIS as a casual laborer on September 23, 1968. 
She became a permanent employee in the same office on February 28, 1974 with a designation
of stenographer.  Thereafter, she was
promoted to Confidential Technical Assistant Aide also under permanent status on December
9, 1975 (p. 37, Rollo).

Salazar’s GSIS Service
Record however, revealed that also on December 9, 1975, she was appointed to the position of
Confidential Executive Assistant in the office of then GSIS President
and General Manager Roman A. Cruz, Jr. on a permanent status.  On August
13, 1982, she was promoted to Technical Assistant III, (p. 58, Rollo), the position she held when on May 16, 1986, her services were terminated by the
newly appointed President and General Manager of the GSIS for the reason that
her position was co-terminous with the term of the
appointing authority, Roman A. Cruz, Jr.

Salazar filed a petition
for reconsideration with the GSIS Board of Trustees, but reconsideration was
denied.  Thereafter, she filed a petition
for reconsideration of the denial with the Review Committee created under
Executive Order No. 17.  The said Review
Committee referred the petition both to the Merit Systems Promotion Board and
the Civil Service Commission, stating that Salazar’s removal or separation from
office was not by virtue of the general reorganization program of the
government for which the Review Committee was created.

On July 22, 1987,
the Civil Service Commission, issued Resolution No.
87-230 directing the reinstatement of
Salazar, the dispositive portion of the decision
reads:

“WHEREFORE, the Commission directs the immediate reinstatement
of Ms. Salazar with back salaries and other benefits due her without prejudice
to the final determination of the position, if any, to which she may have been
subsequently appointed.

“x x x.” (p. 38, Rollo)

GSIS, through the Office of the Government Corporate Counsel,
filed a motion for reconsideration dated September 14, 1987 (pp. 39-42).

On the other hand, the Board, acting on the same petition of
Salazar referred to it by the Review Committee, issued an Order on March 9, 1988, finding the petition of
Salazar for reinstatement, without merit and affirmed her termination.  The dispositive portion of the decision is quoted as follows:

“This Board agrees with the contention of the GSIS President
and General Manager that the petitioner was not dismissed but that her
employment ended with the termination of office of the previous GSIS President,
since her position as Technical Assistant III is confidential in nature, hence,
belongs to the non-career service.  x x x.

“x x x.

“WHEREFORE, the Board finds the petition without merit.  The termination of Ms. Ma.
Asuncion S. Salazar as Technical Assistant III is hereby affirmed.

“SO ORDERED.” (pp. 45-46, Rollo)

On April 20, 1988,
Salazar filed a motion for reconsideration of the Board’s order and manifested
that the Commission already resolved her petition on July 22, 1987. 
On June 30, 1988,
the Board set aside its previous Order affirming Salazar’s dismissal in view of
the Commission’s prior resolution of the case. 
The order reads, in part:

“In a position paper dated April 20, 1988, of Ms. Salazar,
addressed to the Commission and transmitted to this Board on June 6, 1988, this
Board was informed that the
Commission has resolved a similar petition in Resolution No. 87-230 dated July
22, 1987; and that the GSIS has filed a motion for reconsideration of the
Resolution of the Commission on September 14, 1987.

“WHEREFORE, considering that the Commission has already acted
on the matter, this Board hereby sets aside its Order dated March 9,
1988.

“x x x.” (p. 62, Rollo)

On August 18, 1988,
GSIS filed a motion for reconsideration of the June 30, 1988 Order
of the Board.  On September 2, 1988, the Board denied the motion.  The pertinent portion of the Order states:

“Records show that the Resolution dated April 22, 1987, of the Review Committee created under Executive Order No. 17 relative to
the petition for reconsideration of the termination of the services of Ms.
Salazar as Technical Assistant III in the
GSIS, was forwarded to the Merit Systems Protection Board.  In an Order dated March 9, 1988, this Board
affirmed the termination of the services of Ms. Salazar.  However, in a position paper dated April 20,
1988 of Ms. Salazar,
this Board was informed that the same petition had already been resolved
by the Civil Service Commission in a Resolution dated July 22, 1987, directing
the GSIS to reinstate her in the service. 
So, this Board in an Order dated June 30, 1988, set aside its previous
Order dated March 9, 1988.

“It must be noted that under Section 2 and 8 of Presidential
Decree No. 1409, which created the Merit Systems Board (now Merit Systems
Protection Board) state that:

‘Sec. 2. 
Composition. — The Board shall be composed of a Commissioner (now Chairman) and
two Associate Commissioners (now Board Members) who
shall be appointed by the Civil Service Commission and who may be removed only
for cause as provided by law.

‘Sec. 8. 
Relationship with the Civil
Service Commission. — Decisions of the Merit Systems
Board (now Merit System Protection Board) involving the removal of officers and
employees from the service shall be subject to automatic review by the Civil
Service Commission.  The Commission shall
hear and decide appeals from other decisions of the Board, provided that the
decisions of the Commission shall be subject to review on Certiorari
only by the Supreme Court within thirty (30) days from receipt of a copy thereof by the aggrieved party.’ (as
amended by D.O. 135 dated February 27, 1987)

“Based on the aforequoted
provisions, it is clear that the Civil Service Commission is a higher administrative appellate body
on matters concerning the removal of officers and employees from the
service.  Hence, the Board cannot in any
manner modify or alter the determinations and actions of the Civil Service Commission.  (pp. 66-67, Rollo)

GSIS appealed (pp. 68-76, Rollo) this order of the Board
to the Commission.  However, before it
acted on the appeal, the
Commission issued Resolution No. 88-825 on November 16, 1988 denying the motion for reconsideration filed
by GSIS of the Commission’s Resolution No. 88-230 ordering the reinstatement of
Salazar.  The dispositive
portion of the resolution reads:

“WHEREFORE, foregoing premises considered, and finding no
cogent reason to reverse or modify the CSC Resolution No. 87-230, this
Commission resolved to deny, as it hereby denies the instant motion for
reconsideration.  It is therefore
directed that Ms. Ma. Asuncion Salazar be reinstated
to her former position of Technical Assistant or Aide or to any comparable position.” (p. 79, Rollo)

On January 17, 1989, the Commission issued Resolution No. 89-031
denying the appeal of GSIS from the order of the Board dated September 2,
1988.  The dispositive
portion of the decision states:

“WHEREFORE, foregoing premises considered, and in the interest
of justice and equity, this Commission resolved to rule, as it hereby rules
that its Resolution No. 88-825 dated November 16, 1988 has become final and executory upon receipt of notice thereof, by the GSIS.  Accordingly, this case is considered closed.” (p. 35, Rollo)

GSIS filed the instant petition for certiorari, raising
the following issues for resolution:

“1.  Whether or not the
respondent Civil Service Commission erred in not holding that it was the Merit
Systems Board, not said Commission, which had appellate jurisdiction over the
subject personal action of termination of services of private respondent;

“2.  Whether or not the respondent Civil
Service Commission erred in not holding that Resolutions Nos. 87-230 and
88-825, dated July 22, 1987 and November 6, 1988, respectively, were issued
without jurisdiction;

“3.  Whether or not the
respondent Civil Service Commission erred in not holding that resolutions Nos.
87-230 and 88-825 were void ab initio or legally inexistent;

“4.  Whether or not the respondent Civil Service
Commission erred in not holding that the Order of the Merit Systems Board dated
June 30, 1988 was, likewise, void and legally inexistent, and that the Order
dated March 9, 1988, which it set aside, had, accordingly, become final and executory;

“5.  Whether
or not the respondent Civil Service Commission erred in denying petitioner’s
appeal on the basis of said void resolutions;

“6.  Whether or not the respondent Civil Service
Commission erred in not holding that private respondent’s position as Technical
Assistant III was highly confidential and, therefore, belonged to the
non-career service or co-terminous with the tenure of
the previous appointing authority (the former President and General Manager of
GSIS);

“7.  Whether or not the
respondent GSIS erred in not holding that the termination of private
respondent’s services entailed no removal or dismissal but an expiration term and, therefore, not violative of the constitutional prohibition against
suspension or dismissal without cause of civil service officers or employees;
and

“8.  Whether or not the
respondent Civil Service Commission erred in not affirming the subject personal
action of termination of services of private respondent.” (pp. 219-220, Rollo)

The questions presented in this petition may be summarized into
two:  (1) which body has jurisdiction
over appeals from decisions of government officers on personnel matters? ; and (2) was the position last held by private respondent
primarily confidential in nature?

It is the contention of GSIS that it is the Merit Systems
Protection Board, not the respondent Civil Service Commission that is vested
with jurisdiction to hear and decide cases appealed to it by those aggrieved by
personnel actions of appointing authorities. 
It is not disputed that “x x x, the Civil Service Commission,
under the Constitution is the single arbiter of all contest relating to the
Civil Service x x x”
(Lopez vs. CSC, et al., G.R. No. 87119, April 19, 1991, citing Dario v. Miso, G.R. Nos. 81954, 81967, 82023, 88737, 85310, 85335
and 86241, August 8, 1989).  There is
however, a need to clarify the jurisdiction of the Commission in relation to
the Merit Systems Board.

One of the relevant laws issued during the past regime is
Presidential Decree No. 1409, creating the Merit Systems Board.  Under Sec. 5 of P.D. 1409           the Merit Systems Board has, inter
alia, the following powers and functions:

“(1) x x x

“(2) Hear and decide
cases brought before it by officers and employees who feel aggrieved by the
determination of appointing authorities involving appointment, promotion,
transfer, detail, reassignment and other personnel actions, as well as complaints against any
officers in the
government arising from abuses arising from personnel actions of these officers
or from violations of the merit system.

“(3) x x x.” (underlining ours)

The public respondent Civil Service Commission had long
recognized and implemented said provision of P.D. 1409.  In 1978, it issued Memorandum Circular No. 6 where it expressly stated:

“As provided in Presidential Decree No. 1409, which amended
Presidential Decree No. 807, the heads of ministries and agencies, on the one
hand, and the Merit Systems Board on the other, have concurrent original
jurisdiction over disciplinary and non?disciplinary cases and, where the
heads of ministries and agencies assume jurisdiction first, their decisions and
determinations are appealable to the Merit Systems
Board.  The Civil Service Commission,
however, remains the final administrative appellate body in these matters, as
provided in Section 8 of Presidential Decree No. 1409 x x
x“.

When the law bestows upon a government body the jurisdiction to
hear and decide cases involving specific matters, it is to be presumed that
such jurisdiction is exclusive unless
it be proved that another body is likewise vested with the same jurisdiction,
in which case, both bodies have concurrent jurisdiction over the matter.  Presidential Decree No. 1409 clearly provides
that the Merit Systems Board shall take cognizance of appeals from parties
aggrieved by decisions of appointing officers involving personnel action.  The Commission therefore cannot take original
cognizance of the cases specified under Section 5 of P.D. 1409, except in the
case specified under Section 9 (j) of the Civil Service Decree which directly
gives it such power, to wit:

SECTION 9. 
Powers and Functions of the Commission.  The Commission shall administer the Civil
Service Commission and shall have the following powers and functions:

” x x x

“j) Hear and
decide administrative disciplinary cases instituted directly with it in
accordance with Section 37 or brought to it on appeal;

” x x x

If the Commission were vested with the authority to take original
cognizance of all matters involving government personnel, P.D. 1409 would
appear to be a mere surplusage as the rationale for
the existence of the Merit Systems Protection Board would be rendered
meaningless and inutile.  This is not the
intention of the law creating the Board. 
In the “whereas” clauses of P.D. 1409, the need for the creation of the
Board was distinctly
outlined, thus:

“WHEREAS, the need for a stable and responsive Civil Service
has become especially critical with the institution in the country of a
Parliamentary form of government that stresses accountability to the people;

“WHEREAS, while the present civil service system, by reason of
its new structure, has shown itself to have dynamic flexibility and adaptiveness, there remains the need to further promote a
more positive approach to personnel growth and development;

“WHEREAS, the two major functions of the Commission are the strengthening of the merit
system and the development of viable careers among civil service employees;

“WHEREAS, these two
goals can be better achieved through a
redefinition of the functions of the Civil
Service Commission so that its
career development concerns may be separated from the
protective character of its responsibilities;

“x x x.” (underlining ours)

The
Commission, however, is not without power.  As the final arbiter on any matter concerning
personnel action in the government, the Commission is empowered by P.D. 1409,
to review the decisions of the Board, as follows:

“Section 8.  Relationship with the Civil
Service Commission. — Decisions of the Board involving the removal of
officers and employees from the service shall be subject to automatic review by
the Commission.  The Commission shall
likewise hear and decide appeals from other decisions of the Board, provided
that the decisions of the Commission shall be subject to review only by the
Courts.

In the case at bar, We note that the appeal of Salazar was
endorsed by the Review Committee created under Executive Order No. 17 to both
the Merit Systems Board and the Civil Service Commission.  In the absence of a decision from the Merit Systems Board, the
Commission cannot legally assume jurisdiction over the appeal.  Hence, its decision (Resolution No. 87-230)
in favor of Salazar dated July 22, 1987 and all subsequent resolutions of the
Commission in this case are void.  Likewise,
the Order of the Board dated June 30,
1988, setting aside its previous order upholding the termination of
Salazar in deference to the Commission’s final appellate jurisdiction over the
matter, is null and void.  Jurisdiction
is vested by law and is not lost nor be legally transferred by voluntary
surrender in favor of a body not vested by law with such jurisdiction.

There is a disparity between the service record of private
respondent on file with the GSIS and that on file with the CSC.  In the latter, her last two promotional
appointments in the GSIS were not reflected. 
The fact remains however, and this is admitted by both the petitioner
and private respondent Salazar, that before her termination in May 1986, she was occupying the last higher
position of Technical Assistant 111 and not of Technical Assistant Aide as
appears in the Commission’s records.

The petitioner contends that the position of Technical Assistant
111 belongs to the non-career service category and remains co-terminous.  However,
it also contends that even if the said position belongs to the career service,
the appointment of Salazar as Technical Assistant 111 is still not valid
because it requires a first grade civil service eligible of which Salazar was
not at the time of her appointment.

The resolution of the nature of the appointment of Salazar as
Technical Assistant 111, i.e., whether or not the position is primarily
confidential is necessary in the resolution of the legality of her
termination.  Whether the position of
Technical Assistant 111 belongs to the career service where the incumbent
enjoys a security of tenure or primarily confidential where her tenure is co-terminous with that of the appointing authority or endures
only as long as confidence in her exists (See Pacete
v. Acting Chairman of COA, et al., G. R. No. 39456, 7 May 1990) depends upon
the nature of the functions of the office (Borres v.
Court of Appeals, L-36845, August
21, 1987).  Not even the fact that the
position had already been classified as one under the career service and
certified as permanent by the Civil Service Commission, can conceal or alter a
positions’ being confidential in nature (See Hon. Simplicio
Grino, et al. v. CSC, et al., G.R. No. 91602,
February 26, 1991).

However, the records with the court are not sufficient for a
substantial determination of the matter. 
There is no copy
of the job description of the position nor any showing by the parties as
regards the nature of the position.  The
Board initially ruled that the position is primarily confidential and upheld
the legality of Salazar’s termination. 
Its decision however, is only a conclusion not supported by
evidence.  The respondent Civil Service
Commission, on the other hand, did not make any finding on this matter after concluding that based on its
records, Salazar’s last position is only that of a Technical Aide, a permanent
position and very much lower than that of Technical Assistant 111.  For his part, the Solicitor General admits
that the position is confidential in nature but did not bother to explain
why.  The GSIS, the other hand states
that the position is confidential but inconsistently contends also that Salazar
had no first grade civil service eligibility required of the position.

ACCORDINGLY, the petition is granted.  The questioned Resolution of the Civil
Service Commission is annulled.  The
Order of the Merit Systems Board dated March
9, 1988 is
reinstated subject to the right of Salazar to appeal to the Civil Service
Commission.

SO ORDERED.

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

Nocon, J., no part.