VIVENCIO B. PATAGOC, PETITIONER, VS. CIVIL SERVICE COMMISSION AND LUIS VICENTE L. DESPALO, RESPONDENTS.

Petitioner was appointed City Engineer by Zamboanga
City Mayor Vitaliano Agan
on December 1, 1988, to
take the place of the deceased city engineer, Dionisio
Esperat.  The
appointment was in the nature of a reinstatement. 
Petitioner was previously employed by the city government, assigned with
the Bureau of Public Works Engineering District
and with the City Engineer’s Office from August 16, 1965 to January 15, 1980, when the Ministry of Public Works was
reorganized and he was phased out.  He
rose from Civil Engineering Aide II to Supervising City Engineer II.  Thereafter, for six (6) years before his
appointment as City Engineer, he
was a consultant with the Department of Public Works and Highways and then with
a private construction firm.

On December 6, 1988,
private respondent, the incumbent Assistant City Engineer, filed a protest
against petitioner’s appointment with the Civil Service Regional Office on the
ground that he was next-in-rank.  The
Civil Service Regional Director, in a decision dated January 6, 1989, ruled against petitioner, to wit:

WHEREFORE, foregoing premises considered, and in the interest of
the service, this Office finds the instant protest meritorious.  Wherefore, the appointment of Engr. Vivencio D. Patagoc as City Engineer of Zamboanga
at P102,643.20 per annum, effective December 1, 1988, is hereby
revoked.  Accordingly, Engr. Luis Vicente L. Despalo
should instead be appointed to the said position.  [Rollo, p. 31.]

Petitioner appealed to the Civil Service Commission.  In Resolution No. 89-470, dated July 12, 1989, the Commission
dismissed the appeal and affirmed the decision of the Regional Director.  Petitioner
moved for reconsideration but this was denied by the Commission in Resolution
No. 89-699, dated September 7, 1989.

Hence, this petition seeking the reversal of the Commission’s
action on petitioner’s appointment.

Private respondent filed his comment, and so did the
Commission.  When asked to comment, the
Solicitor General manifested that he cannot, without disregarding evidence and
jurisprudence, sustain the Commission’s position.

An amended comment was filed by the Commission and its previously
filed comment was withdrawn.  Petitioner
filed a reply to the amended comment. 
Thereafter, the issues having
been joined, the Court gave due course to the petition and considered the case
submitted for decision.

At issue in this case is the extent of the City Mayor’s authority
to appoint the City Engineer.  Thus:  when the appointee and the protestant are
both qualified for the position, may the Civil Service
Commission disapprove the appointment of the former and order the appointment of the protestant?

1.  Petitioner raises as a
preliminary issue the classification of the the
position of city engineer.  According to
petitioner the City Engineer of Zamboanga belongs to
the non-competitive service pursuant to the city charter (Commonwealth Act No.
39) and the old Civil Service Law (Republic Act No. 2260, as amended).  Consequently, he posits, the City Mayor’s
decision to appoint petitioner may not be
reviewed by the Commission.

On the other hand, the Commission points out that under the Local
Government Code (Batas Pambansa Blg.
337) “[t]he city engineer shall be appointed by the city mayor, subject to
civil service law, rules and regulations”
[Sec. 185(1)] and that except as otherwise provided in the Code, all city
charters or parts thereof which are inconsistent with the Code are repealed or
modified accordingly [Sec. 223(1).] Moreover, the position of city engineer
belongs to the career service considering that P.D. No. 807 does not include
the position in the non-career service [vide secs.
5 and 6.] Thus, concludes the Commission, it may review the appointment of
petitioner.

We find the Commission’s position well-taken.  The pertinent provisions of the Local
Government Code are very clear and need not be interpreted.  Petitioner’s appointment is subject to civil
service law, rules and regulations.  And,
under the provisions of P.D. No. 807, the position belongs to the career
service.

2.  Section 185 of the
Local Government Code provides that “[n]o person shall be appointed city
engineer unless he is a citizen of the Philippines,
of good moral character, a licensed
civil engineer, and has been an assistant city engineer or has engaged in the
practice of his profession for at least five years.” It is not disputed that
both petitioner and private respondent are qualified for the position.  But the Commission is of the view that it can
disapprove petitioner’s appointment and direct the appointment of private
respondent to the disputed position, considering that the latter is
next-in-rank.  In support of its action,
the Commission cites Presidential Decree No. 807, to wit:

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.

But then this is not an absolute rule, as aside from stating that
the next-in-rank shall only be considered for promotion, without
mandating a promotion, the same section of the decree also provides the appointing
power with several alternatives:

* * *

(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.

It must again be emphasized that the power of appointment is
essentially discretionary and that the Commission cannot substitute its judgment
for that of the appointing power.  The
Commission, under P.D. No. 807, may only approve or disapprove the appointment
after determining whether or not the appointee possesses the appropriate civil
service eligibility or the required qualifications.  It cannot order or direct the appointment of
a successful protestant.  Thus, in the
leading case of Luego v. Civil Service
Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, the Court
said:

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.

* * *

It is understandable if one is likely to be misled by the language
of Section 9(h) of Article V of
the Civil Service Decree because it says the Commission has the power to
“approve” and “disapprove” appointments. 
Thus, it is provided therein that the Commission shall have inter
alia the power to:

9(h) Approve all appointments,
whether original or promotional, to positions
in the civil service, except those presidential
appointees, members of the Armed Forces of
the Philippines,
police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess
appropriate eligibility or required qualifications.
(italics supplied)

However, a full reading of the provision, especially of
the underscored parts, will make it clear that all the Commission is actually
allowed to do is check whether or not the appointee possesses the appropriate
civil service eligibility or the required qualifications.  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 says,” approves” or “disapproves” – an appointment made
by the proper authorities.

Significantly, the
Commission on Civil Service
acknowledged that both the petitioner and the private respondent were
qualified for the position in controversy.  That recognition alone rendered it functus officio in the case and
prevented it from acting further thereon except to affirm the validity of the
petitioner’s appointment.  To be sure, it
had 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 city mayor.  [At pp. 332-333.]

No less emphatic was the Court in the recent case of Central
Bank v. Civil Service Commission, G.R. Nos.
80455-56, April 10, 1989, where it stated:

. . . 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 Law. 
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.

It may be, as alleged
by the Commission, that Civil Service Circular
No. 5, s. 1983 provides as a condition for appointment by reinstatement that
“the vacancy cannot be filled by promotion of qualified officers and employees
in the agency concerned, by transfer of qualified officers or employees from
other government agencies, or there are no
eligibles in the appropriate register of the Commission available for
certification to the vacancy.” However, this circular cannot be construed so as
to effectively eliminate the appointing power’s discretion.  At best, the circular can be considered as a
guide for the appointing power’s exercise of discretion.  Moreover, we note that the condition stated
in the circular is not even imposed in P.D. No. 807.  Should he choose not to fill the vacant
position by promotion, the decree, as stated earlier, gives the appointing
power several alternatives:  i.e., the
vacancy may be filled by transfer, by reinstatement, by re-employment, or by an
original appointment [Sec. 19(5).]

WHEREFORE, the Civil Service Commission’s Resolution No. 89-470, dated July
12, 1989, and Resolution No. 89-699, dated September 7, 1989, are hereby REVERSED and SET ASIDE.  Respondent
Commission is DIRECTED to approve
petitioner’s appointment as City Engineer of Zamboanga.

SO ORDERED.

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

Gancayco, J., on leave.