NENITA E. DELA CRUZ, PETITIONER, VS. THE HONORABLE CIVIL SERVICE COMMISSION AND CYNTHIA C. CRUZ, RESPONDENTS.

This is a petition for certiorari assailing the decision
of respondent Civil Service Commission dated May 13, 1989, reversing the
decision of the Department of Science and Technology Reorganization Appeals
Board dated March 24, 1988, for having been rendered with grave abuse of discretion.  The dispositive portion of the questioned
decision reads:

“Wherefore,  foregoing
premises considered, the Commission resolved to find as it hereby finds the
appeal meritorious.  The position of
International Science Relations Officer IV should be given to Cynthia Cruz and
the Information (sic) Science Relations Officer
III position to Nenita dela Cruz.”

The antecedent facts of the case are as follows:

The National Science and Technology Institute, including its
agencies, was reorganized into the Department of Science and Technology (DOST,
for short), pursuant to Executive Order No. 128 issued on January 30,
1987.  Several positions were thereby
created and declared vacant, among them the positions to which herein
petitioner and private respondent were appointed.  Petitioner Nenita dela Cruz was promoted and
appointed to the position of International Science Relations Officer IV (ISRO
IV), while private respondent Cynthia Cruz was promoted and appointed to the
position of International Science Relations Officer III (ISRO III).  These ISRO positions were intended primarily
for the Typhoon Committee Secretariat (TCS, for short), a unit of the
Philippine Atmospheric, Geophysical and Astronomical Services Administration
(PAGASA, for short).

Prior to their respective promotional appointments, petitioner
held the position of Meteorological Aide [Rank 2] with an annual salary of
P14,532, while private respondent held the position of Feature Writer [Rank
11], with an annual salary of P30,636, both likewise under PAGASA.

Private respondent Cruz neither accepted nor rejected her
appointment.  Instead, she contested the
appointment of petitioner dela Cruz before the DOST Reorganization Appeals
Board (Appeals board, for
short).  She argued that she is higher in
rank than petitioner, and should therefore have been the one appointed to the
position of ISRO IV under civil service rules and regulations.

The contested position, ISRO IV [Rank 13], carries with it an
annual salary of P39,216, and is under the Public Information and International
Affairs Staff (PIIAS, for short), Office of the PAGASA Director [not PAGASA –
International Science Relations Division, Special Projects Service, as
erroneously stated in the decision of the DOST Reorganization Appeals Board, p.
83 Rollo].  The qualification
requirements therefor are the following:

“1.  Education
and experience – B.S. degree in any of the sciences
supplemented by at least 10 units of graduate academic studies with two (2) years
experience of demonstrated ability to carry out a program aimed at promoting
international scientific cooperation.

2.    Civil
Service Eligibility – relevant Second Level Eligibility; Career Service
(Professional)” [Rollo, p. 28]

The contestants have the following qualifications:

“PETITIONER NENITA DELA CRUZ:

(a)  
Performance for the last two (2) years:

No performance rating
issued by PAGASA

(b)  
Education:

B.S.C. Accounting

(c)  
Work Experience:

Weather Observer Aide
(Contractual, PAGASA)

Weather Observer
(Contractual, PAGASA)

Senior Weather Observer
(Permanent, PAGASA)

(d)  
Training (in-service):

Meteorological Observer
Training Course

Pre-membership Education
Course

Basic Supervision
Training Course

Word Processing and
Spreadsheets Course

(e)  
Civil Service Eligibility:

Career Service
(Professional); Career Service (Sub-Professional); Meteorological Observer (u)

PRIVATE RESPONDENT CYNTHIA CRUZ:

(a)  
Performance for the last two (2) years:

No performance rating
issued by PAGASA

(b)   Education:

A. B. English

(c) Work Experience:

Secretary (Permanent, PAGASA)

Supervising Information Officer I
(Permanent, PAGASA)

(d)  
Training (in-service)

Meteorological Observer
Training Course

Seminar on Security

Seminar-Workshop on
Records Management

Cultural Development
Course for Executives

Effective Communication
Seminar-Workshop

Graphic Arts/Announcer
and Radio Production

Technique

Computer Training Course

Basic Supervisory
Management Course

(e)  
Civil Service Eligibility:

Stenographer; First
Grade” (p. 29, Rollo)

It is evident from the foregoing that both petitioner and private
respondent are qualified for appointment to the contested position.

Nevertheless, private respondent maintained during the
proceedings before the Appeals Board that in effect, she is more entitled to
the contested position because the latter and her currently held item of
Feature Writer are under the same unit of PAGASA, and are in the same hierarchy
line of positions.  In contrast,
petitioner holds a technical
position under another unit of PAGASA, which item is eleven (11) ranks lower
than private respondent’s position. 
Therefore, private respondent concludes, she, and not petitioner, should
have been the logical choice for appointment to the contested position.

The Appeals Board disregarded the foregoing argument, and noted that:

“x x x appellant’s
(private respondent’s) former position of feature writer is not comparable or
allied to the contested new position (ISRO IV) in point of title and duties as
to give her preferential right to the latter position under the guidelines on
reorganization placements prescribed by
CSC Memorandum Circular No. 10, Series of 1986. 
What appellant is seeking in effect,
is a promotional appointment in the
reorganization, which nowhere in the CSC
Guidelines is claimable as a matter of
right.  In this regard, this Board
notes that the proposed reappointment of appellant to the position of ISRO III
already represents a promotion in her favor.” (Underscoring supplied, p.
30, Rollo)

Consequently, the Appeals Board rendered a decision in favor of
petitioner Nenita dela Cruz, and dismissed the appeal of private
respondent.  The Appeals Board justified
the selection of petitioner to the contested position by giving total credence
and weight to the evaluation of personnel conducted by the Typhoon Committee
Secretariat (TCS, for short), the unit for which the International Science
Relations Officer positions are intended. 
In said evaluation, private respondent Cruz obtained a total assessment
rating of 57.5 % while petitioner dela Cruz obtained a higher rating of
68.7%.  The Board likewise noted that
while both contestants are just about equal as far as the circumstances of
education, training and relevant experience are concerned, petitioner is ahead
in performance:  30.5 % for petitioner
and 21 % for private respondent.  In
addition, petitioner was observed to have had longer exposure to the work of
the TCS, having been assigned there since 1977. 
On the other hand, private respondent was assigned to the TCS only in
1983.

On appeal to the Civil Service Commission (respondent Commission,
hereafter), the decision of the Appeals Board was reversed and set aside, and
the contested position was awarded to private respondent Cynthia Cruz on the
ground that the latter is better qualified for appointment to the contested
position than petitioner Nenita dela Cruz.

Respondent Commission’s decision is predicated on the following
considerations:  First, based on the 1987
Plantilla of Personnel of the PAGASA, the position of Feature Writer is very
much higher in rank than the Meteorological Aide position held by petitioner
dela Cruz.  Secondly, the position of
Feature Writer held by private respondent Cruz is under the PIIAS Staff, while the position of petitioner dela
Cruz is under another unit of the PAGASA. 
Thus, according to respondent Commission, it cannot be said that the position of Feature Writer
held by private respondent is not fundamentally related to the contested
position.  Thirdly, “x x x protestant
(private respondent) should enjoy preference over protestee (petitioner).  She belongs to a higher salary range than protestee.” (p. 25, Rollo)

In conclusion, respondent Commission ruled, to wit:

“It is noted that in the RAB decision it is indicated that
both the contending parties have no performance ratings for the last two years
which supports the claim of protestant that the performance ratings of
protestant were hurriedly done.  There is however, a certification dated
January 31, 1987 issued by Romeo D. Estrella, Chief, Personnel and Records
Division of PAGASA stating that the last two performance ratings on record of
Ms. Cynthia Cruz were both “Very Satisfactory.” The RAB also
considered the fact that the protestee (petitioner) has longer exposure to the
work of TCS because she was assigned thereat much earlier than protestant
(private respondent).  It is also to be
emphasized that when candidates are evaluated, they are rated in connection
with the duties and responsibilities of the item/position under consideration.  Their TCS assignment is only temporary.  They can be recalled
anytime prior to the dissolution of the TCS which is only an
ad hoc committee.  In the absence of a
showing that Nenita dela Cruz is better qualified than the protestant, there is
no sufficient reason to appoint her to the position of International Science
Officer IV, which is higher than that given to the protestant.” (p. 26, Rollo)

In the instant petition, the decision of respondent Commission is
assailed on several grounds.

Respondent Commission ruled that the position held by private
respondent Cruz (Feature Writer) and the contested position belong to the PIIAS
and are therefore functionally related. 
Petitioner claims that this is not necessarily the case.  The two positions are not comparable nor
allied in point of title and duties.

Petitioner likewise avers that it was erroneous for respondent
Commission to have found that the parties have no performance ratings for the
last two years, according to the Appeals Board decision.  What said decision states is that no performance
rating was issued, but it does not say that no incentive ratings were conducted
by PAGASA four times a year up to December 31, 1987, which reflects the
relative performance of the employees belonging to the same categories.  Based on this performance/incentive ratings,
petitioner was chosen as one of the PAGASA Model Employees of the Year in a
special order dated December 17, 1986 (Annex “I,” p. 62, Rollo).  In the accompanying testimonial, petitioner
is cited for having “consistently topped the rankings among TCS personnel for
the periodic incentive pay award during the last few quarters.” (Annex
“I-1,” p. 63, Rollo)

Similarly, in the assessment ratings made by the TCS (Annex
“G,” p. 57, Rollo), petitioner obtained a higher rating than private
respondent, thereby clearly showing that petitioner is better qualified for
appointment to the contested position than private respondent.  According to petitioner, these ratings should
be accorded great weight since the TCS is the very unit for which the contested
position is intended.  Moreover,
petitioner argues, the fact that the previous rank and salary range of private
respondent is relatively higher than those of petitioner, is no gauge to
conclude that the former is better qualified.

We find merit in the contentions of petitioner.

The decisive issue in this case is whether or not respondent
Commission is empowered to reverse and set aside the appointment extended to
petitioner by the Department of Science and Technology.

Well-settled is the rule that the authority of the Civil Service
Commission is limited to reviewing appointments on the basis of the Civil
Service Law.  When the appointee is
qualified and all the other legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in accordance with the Civil
Service Law.  Thus, in Luego vs. Civil
Service Commission, 143 SCRA 327 [1986], this Court held:

“The Civil Service Commission is not empowered to determine the
kind or nature of the appointment extended by the appointing officer, its
authority being limited to approving or
reviewing the appointment in the light of the Civil Service Law.  When the appointee is qualified and all the
other legal requirements are satisfied, the Commission has no choice but to
attest to the appointment in accordance with the Civil Service Laws.

xxx                   xxx                   xxx

Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his best lights, the only condition being that the
appointee should 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.”

In the case at bar, it is clear that respondent Commission
revoked the appointment of petitioner not because she failed to meet the
qualification requirements for the contested position, but because private respondent
was found to be more qualified than her. 
This clearly runs counter to the aforequoted pronouncements of this
Court.

Private respondent however, contends that the next-in-­rank rule
should be applied to resolve the instant dispute.  This rule is not absolute as the
Civil Service Commission allows vacancies to be filled by transfer of present
employees, reinstatement, reemployment, or appointment of outsiders who have
appropriate eligibility, pursuant to Section 19 (5), Article VIII of P.D. 807
as amended, otherwise known as the Civil Service Law.

Furthermore, the position of Feature Writer held by private
respondent is not the position next lower in rank to the contested position
precisely because the latter item was newly-created and did not even exist in
the plantilla prior to the reorganization. 
Hence, private respondent cannot properly insist that she is
next-in-rank to the contested position.

However, even assuming that private respondent is indeed
next-in-rank, it has already been settled that while preferential consideration
is accorded the next-in-rank employee in the event of a vacancy for a higher
position, such consideration does not serve to ensure appointment in his
favor.  Thus, in Santiago, Jr. vs. Civil
Service Commission, 178 SCRA 433 [1978], this Court ruled:

“One who is next-in-rank is entitled to preferential
consideration for promotion to the higher vacancy but it does not necessarily
follow that he and no one else can be appointed.  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.

xxx                   xxx                   xxx

The power to appoint is a matter of discretion.  The appointing authority has a wide latitude
of choice as to who is best qualified for the position.” (citing Ocampo
vs. Subido, 72 SCRA 443 [1976])

In fine, the exact nature of the power of the Civil Service
Commission to approve or disapprove appointments has already been succinctly
defined in the Luego case (supra.), to wit:

“All the Commission is actually allowed to do is check whether
or not the appointee possesses the appropriate civil service eligibility or the
required qualification.  If he does, his appointment is approved; if not, it is
disapproved.  No other criterion is
permitted by law to be employed by the
Commission when it acts on, or as the decree (P.D. 807, as amended) says,
“approves” or “disapproves”
an appointment made by the proper authorities. 
x x x To be sure, it has no authority to revoke the said appointment
simply because it believed that the private respondent was better qualified for
that would have constituted an
encroachment on the discretion vested solely (in the appointing
authority).” [p. 333]

In the case at bar, respondent Commission concedes that
petitioner possesses the qualifications for the contested position.  It should have stopped there and approved
petitioner’s appointment, in accordance with law and settled jurisprudence.  Nonetheless, respondent Commission opted to
overstep legal boundaries by invoking its constitutionally-mandated duty of
establishing a system of merit and fitness and efficiency in the civil service
as basis for its decision.  Respondent
Commission asserts that to allow the promotion of an employee with a position
ten salary ranges lower to the prejudice of incumbents with higher salary range
positions, simply because the former meets the minimum requirements, is not in
keeping with the spirit and intent of
the law.  This is highly erroneous.

There is no question that the Civil Service Commission is tasked
to ensure that promotions and appointments in the government service shall be
based on merit and fitness.  However, it
cannot lawfully perform such duty if, as an incident thereto, the authority of
the appointing power is subverted.  Time
and again, the power of the Commission in this regard has been defined and
delimited by the Supreme Court.  Neither in the Constitution nor in the Civil
Service Law is there a provision which empowers the Civil Service Commission to
substitute its judgment for that of the appointing authority in the guise of
promoting the merit system in the civil
service.

WHEREFORE, the petition is hereby GRANTED, and the
decision of the Civil Service Commission dated January 13, 1989 and its
Resolution dated May 13, 1989 in
CSC Case No. 108 are hereby REVERSED and SET ASIDE.  The decision of the Department of Science and
Technology Reorganization Appeals Board in DOST-RAB Case No. 41 dated March 24,
1988 is hereby REINSTATED.  No costs.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Grino-Aquino, Medialdea, Regalado, Davide, Jr., and Romero, JJ., concur.

Fernan, C.J., on leave.