FLORENCIO P. SALLES, PETITIONER, VS. NICEFORO B. FRANCISCO, CERILO FRANCISCO, HON. JOSE V. ONG AND HON. PATRICIA STO. TOMAS, RESPONDENTS.

This is a petition for quo warranto seeking to recall, cancel and
revoke the appointment of the defendant-appellee Niceforo B. Francisco as Chief
Revenue Officer III.

The instant petition is a result of the Decision promulgated by
the Merit System and Protection Board, Civil Service Commission on June 7, 1990
in MSPB Case No. 589, entitled “Florencio P. Salles vs. Niceforo B.
Francisco”, dismissing petitioner Florencio P. Salles’ appeal from the
decision dated September 25, 1989 of the Committee on Contested Appointments,
Bureau of Internal Revenue, also dismissing his protest on the appointment of
respondent Niceforo Francisco to the position of Chief Revenue Officer III,
Fiscal Operations Branch, Revenue Region 5, Legaspi City.

The undisputed facts of the case are as follows:

Respondent Niceforo Francisco has been working with the Bureau of
Internal Revenue since 1978 as Revenue Collector I. He was subsequently promoted to the position of Revenue Budget
Examiner II effective July 31, 1981; Revenue Budget Officer effective August 1,
1985; and a year later, to the position of Revenue Fiscal Officer effective
October 28, 1986.

Pursuant to Executive Order No. 127^[1]
(Reorganizing the Ministry of Finance), the Bureau of Internal Revenue created
a Fiscal Operations branch in Revenue Region 5, BIR, Legaspi City which
required the appointment of a Chief Revenue Officer.

A certain Fe D. Peralta was appointed by BIR Commissioner
Bienvenido A. Tan to said position. On
being informed of said appointment, petitioner, then a Revenue Enforcement
Officer assigned in the BIR office in Goa, Camarines Sur protested Peralta’s
appointment with the BIR-Reorganization Appeals Board (BIR-RAB) on the ground
that the appointee did not possess the minimum qualification requirements for
the position.

While petitioner’s protest was pending before the BIR-RAB,
defendant Francisco was temporarily appointed to the position of Chief Revenue
Officer III, Fiscal Operations Branch, Revenue Region 5, BIR, Legaspi City by
the then BIR Commissioner Bienvenido A. Tan, Jr. effective November 1, 1987.

Meanwhile, in a letter dated July 1, 1988, the protest of
petitioner over the appointment of Fe D. Peralta was dismissed for having been
filed out of time. Petitioner moved for
reconsideration of the BIR?RAB’s ruling and this time included in his
protest the appointment of defendant Francisco.

On July 25, 1988, the BIR-RAB thru its Chairman, informed
petitioner about the Rules and Regulations embodied in Revenue Memorandum Order
No. 15-88 dated March 7, 1988 and was advised to go to the Civil Service
Commission. Hence, the petitioner, in
his letter dated August 29, 1988 directed his appeal only against the
appointment of defendant Francisco as Chief Revenue Officer III. In his appeal, he advanced the
following: (1) That defendant Francisco
is holding the position in a temporary capacity; (2) That appellee is a mere
college graduate while appellant is a Certified Public Accountant (CPA); (3)
That he has been an Examiner III in the Commission on Audit (COA), and has
attended several seminars on Government Accounting and Auditing and taught the
subject. On two occasions he has been
designated as Officer-in-Charge.

Meanwhile, defendant Francisco’s temporary appointment to the
position of Chief Revenue Officer III was renewed effective November 1, 1988.

On March 6, 1989, the Civil Service Commission dismissed^[2]
petitioner Salles’ appeal for lack of merit. The Commission ruled that –

“After a careful review of the records, in the absence of a
showing or proof to the contrary, this Commission adheres with the BIR-RAB
finding that subject protest was filed beyond the reglementary period. Section 18 of the Rules on Government
Reorganization provides that, ‘Any officer or employee aggrieved by the
appointments made may file an appeal with the appointing authority within ten
(10) days from the last day of posting of the appointments by the Personnel Officer
x x x’

“Assuming however, that the protest was filed within the
period prescribed therefor, it cannot, just the same be given due course. Records show that protestant-appellant is
not an incumbent of the subject position. Neither was he a holder of a higher level position than herein
appellee. His position of Revenue
Enforcement Officer (Grade 16) before the BIR reorganization is of the same
level, rank and salary to the Revenue Fiscal Officer (Grade 16) held by herein
appellee.

“Such being the case, in the absence of a showing that a
holder of a higher level position protested subject appointment in time and/or
abuse of authority or discretion was committed in issuing said appointment, the
choice of the appointing authority is hereby upheld.

“WHEREFORE, the
instant appeal of Mr. Florencio P. Salles is hereby dismissed for lack of
merit.”

Unfazed, petitioner Salles sent a letter dated August 14, 1989 to
BIR Commissioner Jose U. Ong protesting defendant Francisco’s new appointment
as Chief Revenue Officer, Fiscal Operations Branch, BIR Legaspi City effective
November 1, 1988.

While the aforesaid protest of Salles was still unresolved by the
Office of the BIR Commissioner, Commissioner Ong permanently appointed
defendant Francisco to the contested position of Chief Revenue Officer III
effective June 27, 1989.

The Committee on Contested Appointments, Bureau of Internal
Revenue, where the protest of petitioner was indorsed informed plaintiff that
it found no substantial reasons to reconsider the Resolution of the Civil
Service Commission in CSC Case No. 178 promulgated on March 6, 1989.

Petitioner appealed said ruling to the Merit System Protection
Board of the Civil Service Commission, which likewise dismissed his appeal on
the ground of res adjudicata.^[3]

Hence, the instant petition.

We find no merit in the petition.

Section 19(3) of P.D. No. 807 provides:

“that 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.”

Paragraph 4 of the same section likewise provides:

“that each department or agency shall
evolve its own screening process, which may include tests of fitness, in
accordance with the standards and guidelines set by the Commission and that
promotion boards shall be formed to formulate criteria for evaluation, conduct
tests and/or interviews, and make systematic assessment of training and
experience.”

The position of Chief Revenue Officer III to which Francisco was
appointed on June 27, 1989 falls under the second level of the career service
(Sections 5 and 7, Civil Service Law). Plaintiff, however, questions defendant Francisco’s appointment to the
said position upon the claim that only CPAs are qualified for appointment to
the said position as the functions and duties of such newly created office or
position under the Reorganization Act categorically falls under Accountant
positions in the Accounting Occupational Group and equivalent positions in
allied occupational groups, the duties of which falls squarely within the
meaning of the practice of Accountancy, as defined in the Accountancy Board Law
and the Revised Accountancy Law, and petitioner being a CPA, is the one
qualified and entitled to be appointed to the position in question and not
respondent Francisco.

The law in point is Civil Service Memorandum Circular No. 17 S.
1987 which deals specifically on the subject “Requirements of RA 1080
(CPA) Eligibility for Appointment to Accountant and Equivalent Positions in
Allied Occupational Groups in the Government” which reads as follows:

“Pursuant
to CSC Resolution No. 87-388 dated October 20, 1987 and the pertinent
provisions of Presidential Decree No. 692, otherwise known as the Revised
Accountancy Law of 1976 which regulates the practice of Accountancy, the
following policies relative to the appropriate civil service eligibility
requirement for appointment/to Accountant positions and other allied second
level positions the duties of which involve practice of the accountancy
profession as defined under said Decree, are hereby adopted, to wit:

‘1. RA 1080 (CPA)
eligibility shall be required for appointment to the position of Accountant,
and equivalent positions in allied occupational groups the duties of which
involve the practice of Accountancy in the following government agencies:

‘a). Executive Departments, including their
bureaus/offices/regional offices/ attached agencies;

“- x x x –

‘2. For Second Class
or lower class cities, provinces, and municipalities, RA 1080 (CPA)
eligibility shall only be required for permanent appointment to the position of
Chief of the Accounting Division or other Chiefs of Divisions the duties of
which involve the practice of the accountancy profession. For Accountant positions lower than the
Chief of the Accounting Division or its equivalent. Career Service (Professional) eligibility may be considered,
provided that the appointee is a graduate of Bachelor of Science in Commerce or
Business Administration, major in Accounting.

‘3. Incumbents of
positions mentioned above who have been appointed under PERMANENT STATUS before
the effectivity of this Memorandum Circular on the basis of their civil service
eligibilities previously considered appropriate for those positions, shall
retain their permanent status. However,
they may no longer be promoted to higher positions in these occupational groups
requiring RA 1080 (CPA) eligibility as mentioned above until they meet such
eligibility requirement.

‘4. In the absence
of an RA 1080 (CPA) eligible and it becomes necessary in the public interest to
fill a vacancy of an Accountant position and/or other positions in allied
occupational groups, a non-CPA may be appointed as Temporary to the position
involved provided that the appointee is a graduate of Bachelor of Science in
Commerce or Business Administration, major in Accounting, and provided further
that such temporary appointment shall not exceed twelve (12) months and that
the appointee may be replaced sooner if a qualified RA 1080 (CPA) eligible
becomes actually and immediately available for employment.'”

It is clear that R.A. 1080 (CPA) eligibility shall only be
required for permanent appointment to the position of Chief of the Accounting
Division or other Chiefs of Divisions, the duties of which involve the practice
of the accountancy profession and that for accountant position lower than the
Chief of the Accounting Division or its equivalent, the career service
(Professional) eligibility may be considered, provided that the appointee is a
graduate of Bachelor of Science in Commerce or Business Administration, Major
in Accounting.

In the case at bar, petitioner has not shown that the position of
Chief Revenue Officer of the Fiscal Operations Branch of the BIR, Legaspi City
falls within the category of Chief of the Accounting Division of the BIR. In the absence thereof, the career service
(Professional) eligibility of respondent Francisco may be considered sufficient
qualification for the contested position.

Moreover, in the appointment or promotion of employees, the
appointing authority considers not only their civil service eligibilities but
also their performance, education, work experience, trainings and seminars
attended, agency examinations and seniority. Consequently, the appointing authority has the right of choice which he
may exercise freely according to his best judgment, deciding for himself who is
best qualified among those who have the necessary qualifications and
eligibilities.^[4]

The final choice of the appointing authority should be respected
and left undisturbed. The court should
not substitute its own judgment to that of the appointing authority.

WHEREFORE, the petition is dismissed for lack of
merit. Costs against petitioner.

SO ORDERED.

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

^[1]
83 O.G. 17, p. 2009, April 27, 1987.

^[2]
Salles vs. Niceforo Francisco, CSC Case No. 178, March 6, 1989.

^[3]
The pertinent portions of the decision reads, as follows:

“Upon careful evaluation of
the records of the case, this Board found that the instant appeal of Mr. Salles
is but a reiteration of his previous appeal with the CSC against the same
appointment. Following the principle of
res adjudicata this instant appeal must fail.

“WHEREFORE, for lack of merit,
the appeal of Florencio P. Salles is hereby dismissed.”

^[4]
Pamantasan ng Lunsod ng Maynila v. CA, G.R. No. L-65439, 140 SCRA 22
(1985).