VICTOR A. AQUINO, PETITIONER, VS. CIVIL SERVICE COMMISSION AND LEONARDA D. DE LA PAZ, RESPONDENTS.

This petition for certiorari with prayer for the issuance of
a restraining order seeks to nullify the resolutions issued by the respondent
Civil Service Commission, namely:  (1)
Resolution No. 88-820 dated November 7, 1988 reversing the decision of the
Merit Systems Protection Board dated February 5, 1988 which sustained the
decision of the Secretary of Education, Culture and Sports dated May 4, 1987
upholding the appointment of Mr. Victor A. Aquino as
Supply Officer I in the DECS, Division of San Pablo City; and (2) Resolution
No. 90-224 dated February 27, 1990 denying the motion for reconsideration with
prayer for issuance of temporary restraining order for lack of merit.

The antecedent facts are as follows:

Petitioner Victor A. Aquino, then
holding the position of Clerk II, Division of City Schools of San
Pablo City, was
designated on July 20, 1984
as Officer-in-Charge of the Division Supply Office by the DECS Regional
Director Saturnino R. Magturo
(Annex “H”, petition, p. 55, Rollo) in view
of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.

Prior to such designation, or from the period February 16, 1984 to June 18, 1984, petitioner was
designated as Property Inspector and In-Charge of the Supply Office performing
the duties and responsibilities of the Supply Officer I (p. 55, Rollo).

Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City
Schools of San Pablo City,
Milagros Tagle, issued a promotional appointment to
private respondent Leonarda D. de la Paz as Supply
Officer I in the DECS Division of San Pablo City.  She assumed and performed the duties and
functions of the position and received the compensation and benefits therefor.

At the time of her
appointment, private respondent was then holding the position of Clerk II,
Division of City Schools of San Pablo
City.  From August
25, 1976 to September 1983, she was designated as Assistant to the
Supply Officer (DECS decision, p. 31, Rollo).  The Civil Service Regional Office IV approved
her appointment as permanent “provided that there is no pending
administrative case against the appointee, no pending protest against the
appointment, nor any decision by competent authority that will adversely affect
the approval of (the) appointment” (Annex “A” Comment of CSC, p.
164, Rollo).

One (1) month after, or on October 20, 1986 petitioner filed a
protest with the DECS Secretary questioning the qualification and competence of
private respondent for the position of Supply Officer I.

In a decision dated May
4, 1987, DECS Secretary Lourdes R. Quisumbing
sustained the protest of petitioner and revoked the appointment of private
respondent as Supply Officer I thus:

“From the foregoing comparative statement of the
qualifications of Mr. Aquino and Mrs. De la Paz,
apparently the former has a decided advantage over the latter in terms of education,
experience and training.  Further
examination of the comparative statement shows that Mrs. de la Paz has had no
relevant in-service training course attended and completed.  Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for appointment as
Supply Officer I.

” x x x                                                x x x                                                x x x

“Based on all the foregoing and as records further show that
Mr. Aquino is competent and qualified to hold the
subject position and possesses the eligibility requirement, this Office finds
the instant protest meritorious and hereby rules and so rules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la
Paz, whose appointment thereto is deemed revoked.” (p. Annex
“C”, pp. 30-31, Rollo)

Private respondent then filed her petition for reconsideration of
the aforequoted DECS decision but the same was denied
by Secretary Quisumbing in a Resolution dated August 11, 1987.

On the bases of the aforementioned rulings of the DECS Secretary,
petitioner Aquino was issued a permanent appointment
dated August 11, 1987 as
Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987.  On the date of effectivity
of his appointment, petitioner assumed the duties and functions of the
position.  The said appointment was
approved by the Civil Service Regional Office IV on October 27, 1987.

For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal
with motion to maintain status quo to the Merit Systems
Protection Board (MSPB) which, on February
5, 1988, rendered a decision upholding the appointment of Aquino as Supply Officer I (Annex “D” petition,
pp. 33-35, Rollo).

From the decision of the MSPB, private respondent appealed to
public respondent Civil Service Commission (CSC).

In Resolution 88-820 dated November 7, 1988, public respondent
CSC found the appeal of private respondent meritorious, thus revoking the
appointment of petitioner Aquino and restoring
private respondent de la Paz to her position as Supply Officer I, DECS, Division
of San Pablo City under her previously approved appointment (Annex
“B”, petition, pp. 26-29, Rollo).

From said decision, petitioner filed a motion for reconsideration
with prayer for issuance of a temporary restraining order.  Finding no merit to the motion for
reconsideration filed by petitioner public respondent CSC issued Resolution No.
90-224 dated February 27, 1990
denying said motion (Annex “A”, petition, pp. 21­-24, Rollo).

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

Two (2) interrelated issues on the extent of authority of the
Civil Service Commission to pass upon the contested appointments were raised by
petitioner which could be simplified into whether or not public respondent Civil
Service Commission committed grave abuse of discretion in revoking the
appointment of petitioner Victor A. Aquino as Supply
Officer I in the DECS Division of San Pablo City as it found private respondent
Leonarda de la Paz better qualified.

In assailing the two (2) CSC Resolutions revoking his
appointment, petitioner invokes the ruling of this Court in the case of
Santiago v. Civil Service Commission, G.R. No. 81467, October 27, 1989, 178
SCRA 733 and Galura v. Civil Service Commission, G.R.
85812, June 1, 1989 (En Banc resolution) that the Civil Service Commission has
no authority to revoke an appointment on the ground that another person is more
qualified for a particular position for that would have constituted an
encroachment on the discretion vested solely in the appointing-authority.  The Civil Service Commission cannot exceed
its power by substituting its will for that of the appointing authority.

In support of petitioner’s cause, the Solicitor General stresses
the wide latitude of discretion given to the appointing authority in the
selection and appointment of qualified persons to vacant positions in the civil
service which was emphasized by the Court as rationale for the rule laid down
in Luego v. Civil Service Commission, G.R. No. 69137,
August 5, 1986, 143 SCRA 327, Central Bank v. CSC, G.R. No. 80455-56, April 10,
1989, 171 SCRA 744, Patagoc v. CSC, G.R. No. 90229,
May 14, 1990, 185 SCRA 411, that public respondent CSC, not being the
“appointing power” in contemplation of law, has no authority to
revoke an appointment on the ground that another person is more qualified for a
particular position and that the Commission has no authority to direct the
appointment of a substitute of its choice.

We have consistently applied the above doctrine in many cases
with similar factual circumstances, but We see no
compelling reason to apply the same in the instant case.  In the cases cited above, We
ruled that the Civil Service Commission has no authority to revoke an
appointment simply because it (CSC) believed that another person is better
qualified than the appointee for it would constitute an encroachment on the
discretion solely vested on the appointing authority.  The situation is different, as in the instant
case, where the Civil Service Commission revoked the appointment of the
successful protestant, petitioner herein, principally because the right to
security of tenure of the prior appointee, private respondent herein, to the
contested position had already attached (see CSC decision, pp. 28-29, Rollo).  It must be
noted that public respondent CSC did not direct the appointment of a substitute
of its choice.  It merely restored the
appointment of private respondent who was first appointed to the contested
position.

The records show that private respondent was issued a permanent
appointment on September 19, 1986
as Supply Officer I in the DECS Division of San Pablo City effective September 30, 1986.  On the basis of the of
said appointment which was approved by the Civil Service Regional Office No.
IV, private respondent assumed and performed the duties and functions of the
position as Supply Officer I and received the compensation and benefits of the
said position in accordance with the mandate of Section 9 par. (h) of the Civil Service Law (P.D. 807, as amended).  In consonance with the
doctrine laid down in Villanueva v. Balallo, G.R. No.
L-17745, October 31, 1963, 9 SCRA 407 that an appointment is complete when the
last act required of the appointing power has been performed, but later
qualified in Favis v. Rupisan,
G.R. No. L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a
department or office making the appointment and the Commissioner of Civil
Service acting together, though not concurrently, but consecutively, are
necessary to make an appointment complete, the permanent appointment extended
to private respondent, under the circumstances of the case, is deemed
complete.  As such, she is entitled to
the protection of the law against unjust removal.

The conclusion of respondent Commission in the questioned
decision that private respondent is more qualified than petitioner merely
supports the validity of the restoration of private respondent to her
previously approved appointment considering that she meets the prescribed
qualification standards required of the position of Supply Officer I and the
appropriate civil service eligibility to wit:

EDUCATION:       Bachelor’s degree with training in Supply
Management

EXPERIENCE:     None required

ELIGIBILITY:         Supply Officer; Career Service (Professional)

It is well-settled that once an appointment is issued and the
moment the appointee assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable right (to the position),
which is protected not only by statute, but also by the Constitution, and
cannot be taken away from him either by revocation of the appointment, or by
removal, except for cause, and with previous notice and hearing (Mitra v. Subido, G.R. No. L-21691, September 15, 1967, 21 SCRA
127.

There is also authority for the rule that when the appointing
power has once acted and the appointee has accepted the office and done what is
required of him upon its acceptance, his title to the office becomes complete,
and he can then be removed only in the regular way (Mechem,
Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch
(U.S.) 137).  The appointing power cannot
effect his removal indirectly by rescinding or revoking his appointment after
it is complete.

There is thus reasonable ground for the rule that the moment the
discretionary power of appointment has been exercised and the appointee assumed
the duties and functions of the position, the said appointment cannot be
revoked by the appointing authority on the ground merely that the protestant is
more qualified than the first appointee, subject however to the condition that
the first appointee should possess the minimum qualifications required by
law.   Otherwise, the security of tenure
guaranteed by Article IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if
the appointing authority is allowed to flip-flop in exercising its
discretionary power of appointment.

 While a protest is a mode
of action that may be availed of by the aggrieved party to contest the
appointment made, the protest must be “for cause” or predicated on
those grounds provided for under Section 19 par. (6) of the Civil Service Law
(P.D. 807), namely:  (1) that the
appointee is not qualified; (2) that the appointee is not the next-in-rank; (3)
and in case of appointment by transfer, reinstatement, or by original
appointment, that the protestant is not satisfied with the written special
reason or reasons given by the appointing authority.

We have defined the concept of “for cause” in
connection with removal of public officers in the case of De los Santos v. Mallare, G.R. No. L-3881, August 31, 1950, 87 Phil. 289, as
follows:  “It means for reasons
which the law and sound public policy recognized as sufficient warrant for
removal, that is, legal cause, and not merely causes which the appointing power
in the exercise of discretion may deem sufficient.  It is implied that officers may not be
removed at the mere will of those vested with the power of removal, or without
any cause.  Moreover, the cause must
relate to and affect the administration of the office, and must be restricted
to something of a substantial nature directly affecting the rights and
interests of the public.”

The ground relied upon by petitioner in his protest that he is
more qualified than private respondent in terms of education, experience and
training does not fall within the meaning of “for cause” contemplated
by Article IX-B, Section 2 par. (3) of the 1987
Constitution which would warrant the revocation, if not removal, of the
appointment of private respondent. 
Neither does it fall under the grounds of appeal contemplated under
Section 19 par. (6) of the Civil Service Law (P.D.
807).  Therefore, the protest of
petitioner did not adversely affect the approval of the appointment of private
respondent.

Even on the assumption that the revocation of private
respondent’s appointment was validly exercised by DECS Secretary Quisumbing, still the appointment extended to petitioner
was tainted with irregularity as it was issued before the finality of the
decision on the protest in violation of CSC Resolution No. 83-343 which
prohibits the issuance of an appointment to protestant (petitioner) if the
protest case is not yet finally resolved, since there is no vacancy in the
position pending resolution of the protest case.  There can be no appointment to a non-vacant
position.  The incumbent must first be
legally removed or his appointment validly terminated (Costin
v. Quimbo, G.R. No. L-32271, January 27, 1983 120 SCRA 159.  An
appointment to an office which is not vacant is null and void ab initio (Morata Court of Appeals, G.R. No. L-18975,
May 25, 1964, 11 SCRA 42.

CSC Resolution No. 83-343 provides thus:

“An appointment though contested shall take effect immediately
upon issuance if the appointee assumes the duties of the position and (the)
appointee is entitled to receive the salary attached to the position.  Likewise such appointment shall become
ineffective in case the protest is finally resolved in favor of the protestant,
in which case the protestee shall be reverted to his
former position.” (p. 223, Rollo)

Records reveal that the decision of the DECS Secretary revoking
the appointment of private respondent was rendered on May 4, 1987 and the motion for reconsideration
filed by private respondent was denied on August 11, 1987. 
The appointment issued to petitioner as Supply Officer I was dated
August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity of his appointment) as reported by the Schools
Division Superintendent of San Pablo City (pp. 77-78, Rollo).  From all indications, the appointment of
petitioner dated August 11, 1987
was issued with undue haste before the finality of the denial of the motion for
reconsieration.

While it is true that the appointing authority has a wide
latitude of discretion in making his choice in the selection and appointment of
qualified persons to vacant positions in the civil service, We cannot, however,
give a stamp of approval to such a procedural irregularity in extending
appointments, as in the instant case, to the prejudice of the right to security
of tenure of the incumbent to the position.

ACCORDINGLY, the petition is DENIED.  The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the respondent
Civil Service Commission are hereby AFFIRMED. 
The Secretary of the Department of Education, Culture and Sports is
hereby directed to restore private respondent Leonarda
de la Paz to her previously approved appointment as Supply Officer I, DECS, Division of San Pablo City.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Grino-Aquino, Regalado, Davide, Jr., Romero and
Nocon, JJ., concur.

J. Melencio-Herrera, J., please see dissent.

Feliciano, J., I join Herrera,
J. in her dissent.

Bellosillo, J., no part. Did not take part in
deliberations.