SECRETARY OSCAR ORBOS OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, PETITIONER, VS. CIVIL SERVICE COMMISSION AND NERIO MADARANG, RESPONDENTS.

Once again the extent of the authority of the Civil Service
Commission (CSC) to pass upon contested appointments is brought into focus in
this petition.  The appearance of the
Solicitor General on behalf of the petitioner is also questioned.

In the course of the reorganization of the Department of
Transportation and Communications (DOTC), Guido C. Agon
and Alfonso Magnayon were appointed to the positions
of Head Telecommunications Engineer, range 74.

Nerio Madarang
who was also appointed to the position of Supervising Telecommunications
Engineer, range 12, questioned the appointments of Agon
and Magnayon by filing an appeal with the
Reorganization Appeals Board of the DOTC composed of Moises
S. Tolentino, Jr. of the Office of the Secretary, as
Chairman and Assistant Secretary Rosauro V. Sibal and Graciano L. Sitchon of the Office of the Secretary, as members.  In a resolution dated January 9, 1989 the said Reorganization Appeals
Board dismissed Madarang’s appeal for lack of
merit.  Hence, he appealed to the public
respondent Civil Service Commission (CSC).

In its resolution dated August
29, 1989, respondent CSC revoked the appointments of Agon and Magnayon for the
contested positions and directed the appointment of Madarang
to the said position of Head Telecommunications Engineer.^[1]
DOTC Assistant Secretary Sibal sought a
reconsideration of the said resolution of the CSC but this was denied in a
resolution dated November 2, 1989.^[2]

On November 21, 1989,
Assistant Secretary Sibal filed a manifestation with
the CSC stating:

“The Telecommunications Office through the undersigned, hereby
manifests that we received the CSC resolution in CSC Case No. 393 on November
12, 1989 and in compliance thereto, we will convene our Selection and Promotion
Board to deliberate on the position of Head Telecommunications Engineer
(reclassified to Engineer IV pursuant to National Compensation Circular No. 58
effective July 1, 1989) with qualified candidates including appellant Nerio Madarang.”^[3]

In a letter dated November
27, 1989, respondent Madarang requested
the CSC to take appropriate action by implementing its resolutions dated August 29, 1989 and November 2, 1989.

In an order dated December
19, 1989, the CSC directed the immediate implementation of its
aforementioned resolution insofar as it
concerned the appointment of Madarang.^[4]

Agon and Magnayon
filed their separate motions for reconsideration of the aforestated
resolutions of the CSC but these were denied by the said commission in a
resolution dated January 19, 1990.

Hence, this petition for certiorari with prayer for a writ
of preliminary injunction or restraining order which was filed by the Solicitor
General in behalf of petitioner.  On March 29, 1990, the Court required
the respondents to comment on the petition within ten (10) days from notice and
issued a restraining order enjoining the CSC from enforcing its questioned
resolutions until further orders.

The sole issue in this case is whether or not the CSC acted in
excess of its jurisdiction or with grave abuse of discretion amounting to lack
of jurisdiction when it ordered the appointment of Nerio
Madarang to the contested position.

While petitioner does not question the aforestated resolutions
of the CSC insofar as it disapproved the appointments of Agon
and Magnayon
to the positions of Head Telecommunications Engineer, petitioner maintains that
as the appointing authority, he has
the right of choice and discretion to appoint the persons whom he deems fit to the position to be filled.^[5]
Petitioner emphasizes that when the CSC denied his motion for reconsideration
in resolution dated November 2, 1989, Assistant Secretary Sibal
informed the CSC through a manifestation that the DOTC Selection and Promotions Board will be convened to deliberate on the position of
Head Telecommunications Engineer, taking into consideration qualified candidates including Nerio Madarang.  Nevertheless, the CSC stood pat
on its resolution directing the appointment
of Nerio Madarang to
the contested position.

On the other hand, the CSC contends that it was
properly exercising a constitutional
and legal duty to enforce the
merit and fitness principle in the appointment of civil servants and to uphold their equally guaranteed right to be appointed to similar or comparable positions in
the reorganized agency consistent with applicable law and issuances of competent authorities.^[6]

Invoking the following provisions of the Constitution:

“Section 3 (Article IX [B]). – The Civil Service Commission,
as the central personnel agency of the Government, shall establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service.  It shall strengthen the merit and reward
system, integrate all human resources development programs for all levels and
ranks, and institutionalize a management climate conducive to public
accountability.  It shall submit to
the President and the Congress an annual report on its personnel
programs.” (Emphasis supplied.);

Section 19, Book V of Executive Order No.
292 (The Administrative Code     of 1987)
which provides:

“Section 19. Recruitment and Selection of Employees –
(1) Opportunity for government employment shall be open
to all qualified citizens, and positive efforts shall be exerted to attract the
best qualified to enter the service. 
Employees shall be selected on the basis of the fitness to perform the
duties and assume the responsibilities of the position.”;

and Section 12 of the same Executive
Order:

“Section 12. – The Commission shall administer the Civil
Service and shall have the following powers and functions:

(a) Administer and enforce the constitutional and statutory
provision of the said merit systems…”(Emphasis supplied.)

respondent CSC argues that the primary
objective of the CSC system is to promote and establish professionalism by
ensuring a high level of morale among the employees and officers in the career
civil service.  Pursuant to this
constitutional mandate, the CSC contends it should see to it that the merit system
is applied, enforced and implemented in personnel actions involving
appointments affecting all levels and ranks in the civil service at all times.^[7]

The Court finds the petition to be impressed with merit.

Paragraph H, Section 9 of Presidential Decree No. 807, otherwise
known as the “Civil Service Decree of the Philippines,”
provides:

“Section 9. Powers and Function of the Commission. — The Commission shall administer the Civil
Service and shall have the following powers and functions:

x x
x              x
x x                 x x x

“(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except those of presidential
appointees, members of the Armed Forces of the Philippines,
police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess the appropriate eligibility or required
qualifications.  An appointment shall
take effect immediately upon issue by the appointing authority if the appointee
assumes his duties immediately and shall remain effective until it is
disapproved by the Commission, if this should take place, without prejudice to
the liability of the appointing authority for appointments issued in violation
of existing laws or rules:  Provided,
finally, That the Commission shall keep a record of appointments of all officers
and employees in the civil service.  All
appointments requiring the approval of the Commission as herein provided, shall
be submitted to it by the appointing authority within thirty days from
issuance, otherwise the appointment becomes ineffective thirty days
thereafter.” (Emphasis supplied.)

From the foregoing provision it is clear that the CSC has the
power to approve or disapprove an appointment and
not the power to make the appointment itself or to direct that such appointment
be made by the appointing authority.  The
CSC can only inquire into the eligibility of the person chosen to fill a vacant
position and if it finds the person qualified it must so attest.  The duty of the CSC is to attest
appointments.^[8]
That function being discharged,
its participation in the appointment process ceases.^[9]

By the same token, should the CSC find that the appointee is not qualified for the position, it
has the duty to disapprove the appointment. 
Thereafter, the responsibility of appointing the qualified person in
lieu of the disqualified appointee rests upon the discretion of the appointing
authority.  The CSC cannot encroach upon
such discretion vested solely in the appointing authority.

This Court has pronounced in no uncertain terms that the CSC has
no authority to revoke an appointment on the ground that another person is more
qualified for a particular position.  The
Court likewise held that the CSC does not have the authority to direct the
appointment of a substitute of its choice.^[10]

Petitioner demonstrated his deference to the resolutions of the
CSC disapproving the appointments of Agon and Magnayon.  However,
in the implementation of said resolutions he decided to convene the DOTC
Selection and Promotions Board to deliberate on the person who should be appointed
as Head Telecommunications Engineer among qualified candidates including
respondent Nerio Madarang.  Instead of acknowledging the authority of
petitioner to exercise its discretion in the appointment of a replacement, the
CSC, in excess of its jurisdiction and with grave abuse of discretion amounting
to lack of jurisdiction, directed the appointment of Madarang
as the substitute of its choice.  This
act of the CSC must be struck down.

Private respondent Madarang, besides
his comment, filed a motion to disqualify the Office of the Solicitor General
from appearing for petitioner and to cite petitioner in contempt of court for
the filing of the petition.

The Solicitor General is the lawyer of the government, its
agencies and instrumentalities, and its officials or agents including
petitioner and public respondent.  This
is so provided under Presidential Decree No. 478:

“SECTION 1. Functions
and Organization.- (1) The Office of the Solicitor General shall
represent the Government of the Philippines,
its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of a
lawyer. xxx.” (Emphasis supplied.)10-A

In the discharge of this task the Solicitor General must see to
it that the best interest of the government is upheld within the limits set by law.  When confronted with a situation where one
government office takes an adverse position against another government agency,
as in this case, the Solicitor General should not refrain from performing his
duty as the lawyer of the government.  It
is incumbent upon him to present to the court what he considers would legally
uphold the best interest of the government although it may run counter to a client’s
position.11 In such an instance the
government office adversely affected by the position taken by the Solicitor
General, if it still believes in the merit of its case, may appear in its own
behalf through its legal personnel or representative.

In the present
case, it appears that after the Solicitor General studied the issues he found
merit in the cause of the petitioner based on the applicable law and
jurisprudence.  Thus, it is his duty to
represent the petitioner as he did by filing this petition.  He cannot be disqualified from appearing for
the petitioner even if in so doing his representation runs against the
interests of the CSC.

This is not the first time that the Office of the Solicitor
General has taken a position adverse to his clients like the CSC, the National
Labor Relations Commission, among
others, and even the People of the Philippines.  In
such instances, the Solicitor General nevertheless manifests his opinion and
recommendation to the Court which is an invaluable aid in the disposition of
the case.  On some occasions he begs
leave to be excused from intervening in the case, more so, when the client had
already filed its own comment different from the stand of the Solicitor General
or in a situation when he finds the contention of a private party tenable as
against that of the government or any of its agencies.  The Solicitor General has recommended the
acquittal of the accused in appealed criminal cases.

There are cases where a government agency declines the services
of the Solicitor General or otherwise fails or refuses to forward the papers of
the case to him for appropriate action. 
The Court finds and so holds that this practice should be stopped.  To repeat, the Solicitor General is the
lawyer of the government, any of its agents and officials in any litigation, proceeding,
investigation or matter requiring the services of a lawyer.  The exception is when such officials or
agents are being charged criminally or are being civilly sued for damages
arising from a felony.12 His
services cannot be lightly rejected, much less ignored by the office or
officials concerned.

Indeed, the assistance of the Solicitor General should be
welcomed by the parties.  He should be
given full support and cooperation by any agency or official involved in
litigation.  He should be enabled to faithfully
discharge his duties and responsibilities as the government advocate.  And he should do no less for his
clients.  His burden assisting in the
fair and just administration of justice is clear.

This Court does not expect the Solicitor General to waver in the
performance of his duty.  As a matter of
fact, the Court appreciates the participation of the Solicitor General in many
proceedings and his continued fealty to his assigned task.  He should not therefore desist from appearing
before this Court even in those cases he finds his opinion inconsistent with
the government or any of its agents he is expected to represent.  The Court must be advised of his position
just as well.

 Private respondent Madarang also seeks to hold petitioner in contempt of court
on the ground that the petition was filed in order to circumvent or obviate the
dismissal of a similar petition in this Court filed by Guido Agon and Alfonso Magnayon.  The legal personality of the petitioner to
file the petition is also questioned on the ground it was Assistant Secretary Sibal and not the petitioner who issued the contested
appointments.

The petitioner denies this contention.  He asserts that the petition was properly
brought in his name as head of the DOTC as what is in issue is the reorganization
of the said department.  The petitioner
does not dispute the disapproval of the appointments of Agon
and Magnayon; he only disagrees with the order of the
CSC directing the appointment of Madarang to the
contested position.  The petitioner also alleges
that he was not aware of the existence of a separate petition filed in this
Court by Agon and Magnayon.

The Court finds   the
arguments and assertions of petitioner to be well taken.

It is true that the records of this Court show that there is such
a case docketed as G.R. No. 92064 entitled “Guido Agon,
et al., vs. CSC, et al.” which is a special civil action for certiorari
with a prayer for a writ of preliminary injunction.  The petition was dismissed for late filing in
a resolution dated February 27, 1990.

On March 29, 1990
this Court denied with finality the motion for reconsideration filed by the
said petitioners there being no compelling reason to warrant the reversal of
the questioned resolution.

Apparently, the disapproval of the appointments of Agon and Magnayon was the issue
in said petition.  In the present
petition as aforestated, petitioner yields to the
disapproval of the appointment of the two, but questions the authority of the
CSC to direct the appointment of Madarang to the
contested position.

WHEREFORE, the petition is GRANTED and the questioned
resolutions of the respondent CSC dated August
29, 1989, November 2, 1989
and January 19, 1990 are
hereby annulled insofar as they direct the appointment of Nerio
Madarang to the contested position.  The petitioner is hereby authorized to
convene the DOTC Selection and Promotion Board to determine who shall replace
Guido Agon and Alfonso Magnayon
to the contested position by considering all qualified candidates including Nerio Madarang.  The restraining order dated March 29, 1990 is hereby made
permanent. No costs.

SO ORDERED.

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

Fernan, C.J., on leave.

^[1]
Annex A, Petition.

^[2]
Annex B, Petition.

^[3]
Annex F, Petition, pages 5 to 6, Rollo.

^[4]
Annex G, Petition.

^[5]
Citing Oliveros Torres vs. Bayot,
58 SCRA 272 (1974) and Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court, 140 SCRA
22 (1985).

^[6]
Citing the Reorganization Law, Republic Act 6656, otherwise known as “An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government
Reorganization,” various executive orders of the Office of the President
and CSC memorandum circular No. 10, series of 1986, all governing the proper
implementation of government reorganization
and other related matters.

^[7]
Citing Samson vs. Court of Appeals, 145 SCRA 654 (1986) and Luego vs. Civil
Service Commission, 143 SCRA 327 (1986).

^[8]
Villanueva vs. Balallo, 9 SCRA 407 (1963).

^[9]
Villegas vs. Subido, 30 SCRA 498 (1969).

^[10]
Luego vs. Civil Service Commission, supra; and Central Bank vs. Civil Service Commission, 171 SCRA
744 (1989).

10-A See also Section 35, Chapter 12 of Executive Order No.
292 instituting the “Administrative Code of 1987” which contains a
similar provision.

11 Ramos vs. Patricia
Sto. Tomas, et al., G.R. No. 83067, March 22, 1990; and Tan, Jr. vs. Gallardo, 73 SCRA 306 (1976).

12 Urbano
vs. Chavez and Co vs. RTC, Pasig, G.R. Nos. 87977 and 88578, March 19, 1990.