EN BANC
G.R.
No. 176707 - ARLIN O. OBIASCA, Petitioner, vs. JEANNE O. BASALLOTE, Respondent.
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D I S S E N T
BERSAMIN, J.
I respectfully register my dissent to
the learned and comprehensive majority opinion ably written by an esteemed
colleague, Justice Renato C. Corona, dismissing the petition that would treat
the appointment of the respondent as ineffective on the ground that the
appointment did not carry the attestation by the Civil Service Commission (CSC).
As I write, I find myself in the same
situation of Justice Joseph Story of the United States Supreme Court nearly 200
years ago, when dissenting from his colleagues on an important case became
unavoidable for him. He said then:
It is a matter of regret that in this conclusion I have the misfortune to differ from a majority of the court, for whose superior learning and ability I entertain the most entire respect. But I hold it an indispensable duty not to surrender my own judgment, because a great weight of opinion is against me – a weight which no one can feel more sensibly than myself. Had this been an ordinary case I should have contented myself with silence; but believing that no more important or interesting question ever came before a prize tribunal, and that the national rights suspended on it are of infinite moment to the maritime world, I have thought it not unfit to pronounce my own opinion.[1]
I write this dissent, therefore, in
the awareness that I had taken an individual oath that imposed on me the duty that
I cannot justly satisfy “by an automatic acceptance of the views of others
which have neither convinced, nor created a reasonable doubt in, [my] mind.”[2]
Antecedents
For
purpose of this dissent, the background of this controversy is as follows.
On
In a letter dated
The
respondent assumed as Administrative Officer II on
The respondent sought to obtain
Gonzales’ signature, but the latter refused to sign despite repeated requests.
When the respondent informed Oyardo of the situation, she was instead advised
to return to her former teaching position of Teacher I. The respondent followed the advice.
In the meanwhile, on
The respondent filed a complaint with
the Office of the Deputy Ombudsman for
In its decision, the Ombudsman found
Oyardo and Gonzales administratively liable for withholding information from
the respondent on the status of her appointment, and suspended them from the
service for three months; but Diaz was absolved of any wrongdoing.[6]
The
respondent also filed a protest with the CSC Regional Office V, docketed as
Adm. Case No. ND-ARU 04-290. The protest was dismissed on the ground that it
should first be submitted to the Grievance Committee of the DepEd for
appropriate action. [7]
On motion for reconsideration, the protest was reinstated, but it was
eventually dismissed for lack of merit.[8]
The respondent appealed the dismissal of her protest to the CSC Regional Office,
which dismissed the appeal for failure to show that her appointment had been
received and attested to by the CSC.[9]
The respondent elevated the matter to
the CSC, which granted the appeal by its
Aggrieved, the petitioner filed a
petition for certiorari in the Court
of Appeals (CA), claiming that the CSC thereby acted without factual and legal
bases in recalling his appointment, and praying for the issuance of a temporary
restraining order and a writ of preliminary injunction.
Ruling of the CA
In
its
The CA found that the respondent
possessed all the qualifications and none of the disqualifications for the
position of Administrative Officer II; that due to the respondent’s valid
appointment, no other appointment to the same
position could be made without the position being first vacated; that
the petitioner’s appointment to the
position was thus void; and that contrary to the argument of the
petitioner that he had been deprived of his right to due process by not having
been allowed to participate in the proceedings in the CSC, it was the petitioner
who had himself failed to exercise his right by failing to submit a single
pleading despite being furnished with copies of the pleadings in the
proceedings in the CSC.
The CA opined that Diaz had
unreasonably refused to affix her signature on the respondent’s PDF and to
submit the respondent’s appointment to the CSC on the ground of non-submission
of the respondent’s PDF, because the PDF had not been required to be submitted
and forwarded to the CSC.
The petitioner filed a motion for reconsideration, but his
motion was denied on
Hence,
this appeal by petition for review on certiorari.
Issues
The
petitioner maintains that the respondent was not validly appointed to the
position of Administrative Officer II, because her appointment was never
attested by the CSC; that without the attestation, the respondent’s appointment
as Administrative Officer II was not completed and did not vest a permanent
title upon the respondent; that for that reason, the appointment might still be
recalled or withdrawn by the appointing authority; that under the Omnibus Rules
Implementing Book V of Executive Order (EO) No. 292 (Administrative Code of 1987), every appointment is required to be
submitted to the CSC within 30 days from
the date of issuance; otherwise, the appointment becomes ineffective;[13]
that the respondent’s appointment issued on 23 May 2003 should have been
transmitted to the CSC not later than 22 June 2003 for proper attestation; and
that because the respondent’s appointment had not been sent to the CSC within
the proper period, her appointment ceased to be effective and the position of
Administrative Officer II was already vacant when the petitioner was appointed
to it.
In
her comment,[14] the respondent, though admitting
that her appointment was not submitted to the CSC for attestation, points out
that the reason given by Oyardo for the non-submission of her appointment
papers to the CSC – the failure of the respondent to have her PDF duly signed by
Gonzales – was not valid because the PDF was not even a requisite for
the submission of her appointment for attestation by the CSC.
Recommendation
The
petition for review should be granted,
because its denial tends to negate the authority of the CSC, the central personnel agency of the
Government,[15] to scrutinize and approve
appointments to the Civil Service.
I
The majority point out that CSC
Resolution dated 29 November 2005 (recalling the petitioner’s appointment and
approving that of the respondent) became final and executory by virtue of the
petitioner’s failure to file a petition
for reconsideration against said resolution before filing the petition for
review in the CA, citing Section 16[16] and Section18 of the Omnibus Rules
of the CSC as basis.
I cannot agree to the majority’s
position.
To
begin with, a dissatisfied employee may avail himself of remedies not limited to
the petition for reconsideration. In
fact, Section 18 of the Omnibus Rules of the CSC expressly recognizes other remedies available to the affected
employee to prevent the disputed “action/decision” from becoming final and
executory, thus:
Section 18. Failure to file a protest, appeal, petition for reconsideration or petition for review within the prescribed period shall be deemed a waiver of such right and shall render the subject action/decision final and executory.
Moreover, such petition for reconsideration was not a prerequisite to the filing
of a petition for review under Rule 43 of the Rules of Court. It was enough that the petition for review was filed
“within fifteen (15) days from notice of the award, judgment, final order or
resolution, or from the date of its last publication, if publication is
required by law for its effectivity, or of the denial of petitioner’s motion
for new trial or reconsideration duly filed in accordance with the governing
law of the court or agency a quo.”[17]
In this regard, the petitioner’s
petition for review was timely filed. After receiving on
And, lastly, a rule of the CSC that
might have intended to render a decision final and executory if no petition for reconsideration is first
brought against the decision or resolution will not stand and prevail over the
Rule 43 of the Rules of Court, which clearly
authorizes appeals from the “awards, judgments, final orders or resolutions of, or authorized by any
quasi-judicial
agency in the exercise of its
quasi-judicial functions.”[18] Rule 43, being issued by the Supreme Court under its
rule-making authority in Section 5(5) of Article VIII of the Constitution, has the force and effect
of law,[19]
and repeals or supersedes any law or enactment on the manner and method of
appealing the decisions and orders of the specific quasi-judicial bodies.[20]
II
The CSC, being the
central personnel agency of the Government, is charged with the duty of
determining questions on the qualifications of merit and fitness of the persons
appointed to the Civil Service. An appointment to a civil service position, to
be fully effective, must comply with all the legal requirements.[21]
Section 9 of Presidential
Decree (P.D.) No. 807 (Civil Service
Decree of the Philippines)[22] relevantly provides:
Section 9. Powers and Functions of the Commission. – The Commission shall administer the Civil Service and shall have the following powers and functions:
xxx xxx xxx
(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
xxx xxx xxx
Thus, the appointment must be
submitted within the required period
to the CSC, which shall then ascertain, in the main, whether the proposed
appointee is qualified to hold the position and whether the rules pertinent to
the process of appointment were observed.[23]
However, the majority contend that
Section 12, Book V of E. O. 292 (The Revised
Administrative Code) already amended Section 9 (h) of P.D. 807 by deleting
the requirement that appointments subject to CSC approval be submitted to CSC within 30 days. Citing Section 12(14)
and (15) of E.O. 292,[24] the
majority state that the amendatory law completely deleted not just a word or
two, but the entire last sentence of the provision.
I find the contention not well-taken.
The new provision in Section 12(14) of
E.O. 292 – “Take appropriate action on all appointments and other personnel
matters in the Civil Service including extension of Service beyond retirement
age” – is a legal
provision altogether different from Section 9 (h) of P.D. 807. The former is too
broad in scope, for, certainly, the CSC is not to be limited to merely
approving and disapproving appointments.
Even with E.O. 292’s repealing clause (“All laws, decrees, orders, rules
and regulations, or portions thereof, inconsistent with this Code are hereby
repealed or modified accordingly”), the requirement of submission of
appointments within 30 days expressly
stated in the latter is not inconsistent with the authority of the CSC to take
appropriate action on all appointments and other personnel matters.
The Court cannot interpret E.O. 292
as having entirely dispensed with the submission requirement in order to make
an appointment effective. To hold otherwise is to deprive the CSC of the
opportunity to determine whether or not an appointee is qualified for the
position to which he is appointed, which certainly weakens the mandate of the
CSC as the central personnel agency of the Government and negates the
constitutional objective of establishing a career service steeped in
professionalism, integrity, and accountability.
In
fact, despite the issuance of E.O. 292,
the CSC itself has continued to require the submission of appointments within 30 days from the dates of their
issuance. There is no better proof of this than the Omnibus Rules Implementing
Book V of E.O. 292, whose Rule V provides:
Section
11. An appointment not submitted to the
Commission within 30 days from the date of issuance which shall be the date appearing
on the face of the appointment shall be ineffective. The appointing
authority shall be liable for the salaries of the appointee whose appointment
became ineffective. The appointing authority shall likewise be liable for the
payment of the salary of the appointee if the appointment is disapproved
because the appointing authority has issued it in violation of existing laws or
rules, making the appointment unlawful.
III
The CA ruled that the respondent’s
appointment became effective from the moment of its issuance on
I insist that the CA thereby erred.
Its
mere issuance does not render an appointment to the Civil Service complete and
effective. Under the Omnibus Rules Implementing Book V of E.O. 292, an appointment not submitted to the CSC within 30 days from the date of its
issuance shall be ineffective. Compliance with this statutory directive is
essential in order to make an appointment to a civil service position fully
effective. Without the favorable
certification or approval of the CSC, where such approval is required, no title
to the office can yet be deemed permanently vested in the appointee; hence, the
appointment can still be recalled or withdrawn by the appointing authority.[25]
Otherwise put, the appointing officer and
the CSC, acting together, though not concurrently but consecutively, make an
appointment complete.[26] It is from the moment that an appointee assumes a position in the Civil
Service under a completed appointment that he acquires a legal, not merely
equitable, right that is protected not only by statute, but also by the Constitution. Said right cannot then be
taken away from him, either by revocation of the appointment or by removal,
except for cause and with previous notice and hearing.[27]
Herein, there is no dispute that the
respondent’s appointment as Administrative Officer II on
IV
The majority opine that the Court
should not look the other way and allow the respondent to suffer the
consequences of the willful and deliberate acts of Diaz, Oyardo and Gonzales
who conspired not to submit the respondent’s appointment to the CSC.
I cannot subscribe to the majority’s
opinion.
This dissent never intends to appear
as condoning the willful and deliberate acts of Diaz, Oyardo and Gonzales vis-à-vis the respondent’s appointment.
All that I want to put across is that the Court should simply implement the
clear and unambiguous provisions of the applicable law.
The appropriate disciplining
authorities had already held Diaz, Oyardo and Gonzales to account for their
misdeed, with Diaz being sanctioned by the CSC, and Oyardo and Gonzales being
held liable by the Ombudsman. There the issue of their misdeed should end. Indeed,
the Court has made clear in Favis v. Rupisan[28]
that the failure of the responsible official to submit for approval an
employee’s appointment did not negate such requirement, thus:
xxx. The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable. In the circumstances, for the duration of his occupancy of the position in question, the petitioner may be considered merely as a de facto officer, and may consequently be removed from office even without cause.
Accordingly, that the respondent’s
appointment was not submitted to the CSC because of Diaz’s unjustified refusal
to sign it on the fallacious ground that the respondent’s PDF had not been duly
signed by Gonzales was no reason to validate the respondent’s appointment, or
to grant her any right to the position or to the guarantees provided by law.
Still,
the majority consider as misplaced the petitioner’s reliance on Favis
and Tomali v. Civil Service Commission,[29] because, one, the issue in Favis related to the necessity for the CSC
approval, not to the submission of the appointment within the 30-day period;
and, two, the facts in Tomali were
different from those herein.
I
cannot join the majority’s rejection of the applicability of Favis and Tomali
v. Civil Service Commission to
this case. On the contrary, I urge that the Court take such case law as
authoritative.
Favis,
being of 1966 vintage, does not mention the 30-day submission period
because the case was decided under the old
Civil Service Law, which then required merely the submission of the
appointment, without any prescribed
period. The 30-day submission period was introduced by P.D. 807 only in 1975. Favis
is authoritative and instructive nonetheless, because it establishes the rule
that the approval of the CSC is necessary
to render an appointment effective. With the introduction by P.D. 807 of
the 30-day period within which to submit an appointment for the CSC’s approval,
it should follow that an appointment not submitted within the period does not,
and cannot, be approved.
Tomali
states the prevailing rule that compliance with the legal requirement for an
appointment to a civil service position is essential in order to make the
appointment fully effective. Tomali was decided in 1994, when P.D. 807
and E.O. 202 were already in force. Although the petitioner in Tomali
did not follow up on the status of her appointment, there was a finding that
the appointing authority did not unjustly favor the respondent, thereby
justifying the Court’s declaration that the non-submission of the appointment
rendered the appointment ineffective.
Nothing in Tomali even
remotely implies that the bad faith on the part of the appointing authority,
causing the delay or the non-submission of the appointment paper to the CSC, is
sufficient excuse to do away with the 30-day period for the submission. The Court’s statement in Tomali that
“(t)here is nothing on record to
convince us that the new OMA Director has unjustly favored private respondent
nor has exercised his power of
appointment in an arbitrary, whimsical or despotic manner”[30] is merely part of the finding that there was no grave abuse of discretion
committed by the public respondents. Tomali was, after all, a special
civil action for certiorari, which
necessarily called for a determination of whether the respondent had committed
grave abuse of discretion.
Verily,
in declaring an appointment as ineffective for failure to submit it to the CSC
for approval within the prescribed period, the Court need not distinguish between
deliberate or malicious acts and mere tolerance, acquiescence or mistake of the
officials that lead to the non-submission of the appointment to the CSC. The
mere failure to submit the appointment, regardless
of the reason for non-submission, renders the appointment ineffective.
The
majority argue that the submission of the appointment beyond the prescribed
period is not an impediment to its validity. They cite Civil Service
Commission v. Joson[31]
and Chavez v. Ronidel,[32] in which the Court has ruled that an
appointment remains valid despite the non-compliance of the proper officials
with the pertinent CSC rules.
In
Civil Service Commission v. Joson and Chavez v. Ronidel, the
inaction of certain officials led to the non-compliance with the CSC
requirement that appointments should be included in the monthly report of
personnel action (ROPA), which must be submitted in turn to the CSC. The Court held
that legitimate justifications excused the delayed observance of or the non-compliance
with the requirement. It should be noted, however, that the agencies concerned[33] were
accredited agencies of the CSC; that is, they could take final action on
the appointments without first submitting the appointments to the CSC for
approval.[34]
Accredited agencies are required only to submit a report on appointments issued
(RAI), together with the photocopies of appointments issued during the month,
within 15 days of the succeeding month. The accredited agencies involved in Civil
Service Commission v. Joson and Chavez v. Ronidel could take,
and, in fact, took, final action on the appointments. The submission of the
ROPA was a mere ministerial duty, because the CSC’s approval was no longer
needed for such appointments. Hence,
the leniency extended by the Court to the appointees whose names were not
timely included in the ROPA should not be applied to instances where the
submission of the appointment is necessary to complete an appointment, like
herein.
V
When
the petitioner was appointed as Administrative Officer II on
The majority’s argument, that
it is the CSC, not the appointing authority, that can revoke the respondent’s
appointment, because the respondent had meanwhile accepted her appointment,
citing Section 9, Rule V of the Omnibus Rules[35]
and De Rama v. Court of Appeals,[36] is unacceptable to me.
In
my view, De Rama v. Court of Appeals actually bolsters the conclusion that the petitioner’s appointment
effectively revoked that of the respondent.
Indeed, De Rama states:
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that “an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission.” Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations.[37]
As interpreted in De Rama, the
prohibition against the revocation of an appointment under Section 9
presupposes that the appointment was already initially approved by the CSC
itself. It is not disputed that the respondent’s appointment was never
submitted to the CSC; hence, there was never any chance for the CSC to
initially approve her appointment, prior to the petitioner’s appointment.
The rule has always been that an
appointment is essentially a discretionary act, performed by an officer in whom
it is vested according to his best judgment, the only condition being that the
appointee should possess all the qualifications required therefor. In the absence of any showing that the
respondent is not qualified for the position of Administrative Officer II, the
Court will not interfere with the prerogative of the appointing officer in this
case.
ACCORDINGLY, I vote to grant the petition for
review on certiorari.
The decision and resolution of the
Court of Appeals dated
LUCAS P.
BERSAMIN
Associate Justice
[1] The Nereide, 9 Cranch 388, 455 (1815)
[2] Justice Sutherland, in West Coast Hotel Co. v. Parrish, 300
[3] Rollo, p. 70
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13] Sec. 11. of the Omnibus Rules reads:
Sec. 11. An appointment not submitted to the Commission within thirty (30) days from the date of issuance which shall be the date appearing to the face of the appointment, shall be ineffective.xxx
[14] Rollo, pp. 150-160.
[15] Article IX, B, Section 3, Constitution.
[16] Section 16.
An employee who is still not satisfied with the decision of the Board may
appeal to the Commission within 15 days
from receipt of the decision.
The decision of the Commission is final and executory if no petition for reconsideration is filed within 15 days from receipt thereof.
[17] Section 4. Period of appeal. — The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n)
[18] Section 1. Scope. — This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (n)
[19] Inciong
v. de Guia, AM R-249-RTJ,
[20] First Lepanto Ceramics, Inc. v. Court of Appeals, G.R. No. 110571, 10 March 1994, 231 SCRA 30, 38-40.
[21] Civil Service Commission v. Tinaya G.R.
No. 154898,
[22] Promulgated
on
[23] Abella, Jr. v. Civil Service Commission, G.R. No. 152574, 17 November 2004, 442 SCRA 507, 515.
[24] Section 12. Powers and Functions. – The Commission shall have the following powers and functions:
xxx xxx xxx
(14) Take appropriate action on all appointments and other personnel matters in the Civil Service including extension of Service beyond retirement age.
(15) Inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government including government-owned or controlled corporations; conduct periodic review of the decisions and actions of offices or officials to whom authority has been delegated by the Commission as well as the conduct of the officials and the employees in these offices and apply appropriate sanctions whenever necessary.
[25] Tomali
v. Civil Service Commission, G.R. No. 110598,
[26] Abella, Jr. Civil Service Commission, supra, at note 20, p. 516, citing Aquino v. Civil Service Commission, 208 SCRA 240.
[27] Mitra v. Subido, No. L-21691,
[28] No. L-22823,
[29] Supra, at note 22.
[30] Supra, at note 25.
[31] G.R. No. 154674,
[32] G.R. No. 180941,
[33] Philippine Overseas Employment Administration (POEA) in Civil Service Commission v. Joson, and the Presidential Commission for the Urban Poor (PCUP) in Chavez v. Ronidel.
[34] http://www.csc.gov.ph/cscweb/acc_prog.html,
last visited
[35] Section 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and effect until disapproved by the Commission.xxx
[36] G.R. No. 131136,
[37] Supra, at page 107.