Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 79974

December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents,
COMMISSION ON APPOINTMENTS, intervenor.

DECISION
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of
the Philippines and professors of Constitutional Law, seek to enjoin the respondent
Salvador Mison from performing the functions of the Office of Commissioner of the Bureau
of Customs and the respondent Guillermo Carague, as Secretary of the Department of
Budget, from effecting disbursements in payment of Misons salaries and emoluments, on
the ground that Misons appointment as Commissioner of the Bureau of Customs is
unconstitutional by reason of its not having been confirmed by the Commission on
Appointments. The respondents, on the other hand, maintain the constitutionality of
respondent Misons appointment without the confirmation of the Commission on
Appointments.
Because of the demands of public interest, including the need for stability in the public
service, the Court resolved to give due course to the petition and decide, setting aside the
finer procedural questions of whether prohibition is the proper remedy to test respondent

Misons right to the Office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenors reply thereto.
The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict
between two (2) great departments of government, the Executive and Legislative
Departments. It also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of the
framers of the organic law and of the people adopting it. The intention to which force is to be
given is that which is embodied and expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with
how the executive or the legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in the courts, or in the
heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there
are four (4) groups of officers whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the
President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should
they be appointed by the President with or without the consent (confirmation) of the
Commission on Appointments? By following the accepted rule in constitutional and statutory
construction that an express enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions expressly stated in the first group
require the consent (confirmation) of the Commission on Appointments. But we need not
rely solely on this basic rule of constitutional construction. We can refer to historical
background as well as to the records of the 1986 Constitutional Commission to determine,
with more accuracy, if not precision, the intention of the framers of the 1987 Constitution
and the people adopting it, on whether the appointments by the President, under the
second, third and fourth groups, require the consent (confirmation) of the Commission on
Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos
in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be
presumed to have been framed and adopted in the light and understanding of prior and
existing laws and with reference to them. Courts are bound to presume that the people
adopting a constitution are familiar with the previous and existing laws upon the subjects to
which its provisions relate, and upon which they express their judgment and opinion in its
adoption. (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, officers of the army from
the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and
all other officers of the Government whose appointments are not herein otherwise provided
for, and those whom he may be authorized by law to appoint; but the Congress may by law
vest the appointment of inferior officers, in the President alone, in the courts, or in the heads
of departments.
(4) The President shall have the power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) , and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls
Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the
Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all
other officers of The government whose appointments are not herein otherwise provided for,
and those whom he may be authorized by law to appoint. However, the Batasang
Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive
Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political
history that the power of confirmation by the Commission on Appointments, under the 1935
Constitution, transformed that commission, many times, into a venue of horse-trading and
similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which
it was molded and remolded by successive amendments, placed the absolute power of
appointment in the President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution
and the people adopting it, struck a middle ground by requiring the consent (confirmation)
of the Commission on Appointments for the first group of appointments and leaving to the
President, without such confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The
original text of Section 16, Article VII, as proposed by the Committee on the Executive of the
1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain and all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized
by law to appoint. The Congress may by law vest the appointment of inferior officers in the
President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935
Constitution. When the frames discussed on the floor of the Commission the proposed text
of Section 16, Article VII, a feeling was manifestly expressed to make the power of the
Commission on Appointments over presidential appointments more limited than that held by
the Commission in the 1935 Constitution. ThusMr. Rama: May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chairs indulgence, I just want to take a few minutes of our time to lay
the basis for some of the amendments that I would like to propose to the Committee this
morning.
xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments
be limited to the department heads, ambassadors, generals and so on but not to the levels
of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the Commission
on Appointments; and (2) the exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The records of the deliberations of the
Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26
which is to delete the words and bureaus, and on line 28 of the same page, to change the
phrase colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is to put a period (.) after the
word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL
ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first proposed
amendment is to delete the words and bureaus on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the
justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive department,
and to require further confirmation of presidential appointment of heads of bureaus would
subject them to political influence.
MR. REGALADO: The Commissioners proposed amendment by deletion also includes
regional directors as distinguished from merely staff directors, because the regional
directors have quite a plenitude of powers within the regions as distinguished from staff
directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervision of the staff bureau
directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner
proposed an amendment to delete and bureaus on Section 16. Who will then appoint the
bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no longer
be subject to confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de
Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this matter should be
submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first vote on the
deletion of the phrase and bureaus on line 26, such that appointments of bureau directors
no longer need confirmation by the Commission on Appointment.
Section 16, therefore, would read: The President shall nominate, and with the consent of a
Commission on Appointments, shall appoint the heads of the executive departments,
ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase and bureaus on page 7, line
26? (Silence) The Chair hears none; the amendments is approved.
xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1
propose to put a period (.) after captain and on line 29, delete and all and substitute it with
HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that
after captain we insert the following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose
appointments are vested in the President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list
of those appointments which constitutionally require confirmation of the Commission on
Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed amendment?
MR. DAVIDE: After captain, add the following: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE

CONFIRMATION UNDER THIS CONSTITUTION?
MR. DAVIDE: Yes, Madam President, that is modified by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those officers which the
Constitution does not require confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification made by
Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and
Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners
Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can be
made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of
Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law and those whom he may be authorized
by law to appoint . . . . (Emphasis supplied)
with particular reference to the word also, implies that the President shall in like manner
appoint the officers mentioned in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the same manner as he appoints

officers mentioned in the first sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiaes reliance on the word also in said second sentence is not necessarily
supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word
also could mean in addition; as well; besides, too (Websters International Dictionary, p.
62, 1981 edition) which meanings could, on the contrary, stress that the word also in said
second sentence means that the President, in addition to nominating and, with the consent
of the Commission on Appointments, appointing the officers enumerated in the first
sentence, can appoint (without such consent (confirmation) the officers mentioned in the
second sentenceRather than limit the area of consideration to the possible meanings of the word also as
used in the context of said second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by the President and appointment
by the President with the consent of the Commission on Appointments, whereas, the
second sentence speaks only of appointment by the President. And, this use of different
language in two (2) sentences proximate to each other underscores a difference in
message conveyed and perceptions established, in line with Judge Learned Hands
observation that words are not pebbles in alien juxtaposition but, more so, because the
recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify
such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution,
there are officers whose appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank, compared to some officers
whose appointments have to be confirmed by the Commission on Appointments under the
first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the
Central Bank Governor requires no confirmation by the Commission on Appointments, even
if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in
the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention
and deliberate judgment of the framers of the 1987 Constitution that, except as to those
officers whose appointments require the consent of the Commission on Appointments by
express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are
left to the President without need of confirmation by the Commission on Appointments. This
conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987

Constitution were knowledgeable of what they were doing and of the foreseeable effects
thereof.
Besides, the power to appoint is fundamentally executive or presidential in character.
Limitations on or qualifications of such power should be strictly construed against them.
Such limitations or qualifications must be clearly stated in order to be recognized. But, it is
only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by
the President to the positions therein enumerated require the consent of the Commission on
Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor
Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the
1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in
the President alone, this implies that, in the absence of such a law, lower-ranked officers
have to be appointed by the President subject to confirmation by the Commission on
Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked
officers should be appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence
abovequoted, merely declares that, as to lower-ranked officers, the
vest their appointment in the President, in the courts, or in the
departments, agencies, commissions, or boards in the government.
submitted for the use of the word alone in said third sentence.

of Sec. 16, Article VII,

Congress may by law
heads of the various
No reason however is

The Court is not impressed by both arguments. It is of the considered opinion, after a
careful study of the deliberations of the 1986 Constitutional Commission, that the use of the
word alone after the word President in said third sentence of Sec. 16, Article VII is, more
than anything else, a slip or lapses in draftsmanship. It will be recalled that, in the 1935
Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII
thereof
; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which
makes practically all presidential appointments subject to confirmation by the Commission
on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and
all other officers of the Government whose appointments are not herein provided for, and
those whom he may be authorized by law to appoint;
In other words, since the 1935 Constitution subjects, as a general rule, presidential
appointments to confirmation by the Commission on Appointments, the same 1935
Constitution saw fit, by way of an exception to such rule, to provide that Congress may,
however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in
rank referred to in the 1987 Constitution) in the President alone, in the courts, or in the
heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of
its framers was to exclude presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly mentioned in the first sentence
of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of
Sec. 16, Article VII the word alone after the word President in providing that Congress
may by law vest the appointment of lower-ranked officers in the President alone, or in the
courts, or in the heads of departments, because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already vested in the President, without
need of confirmation by the Commission on Appointments, in the second sentence of the
same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the
case of lower-ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of various departments of the government. In short,
the word alone in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution,
appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this
redundancy cannot prevail over the clear and positive intent of the framers of the 1987
Constitution that presidential appointments, except those mentioned in the first sentence of
Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on Appointments is required.
As a matter of fact, as already pointed out, while the 1935 Constitution includes heads of
bureaus among those officers whose appointments need the consent of the Commission
on Appointments, the 1987 Constitution on the other hand, deliberately excluded the
position of heads of bureaus from appointments that need the consent (confirmation) of
the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the
Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise
known as the Tariff and Customs Code of the Philippines, which was enacted by the
Congress of the Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as the
Commissioner) and Assistant Commissioner of Customs, who shall each receive an
annual compensation in accordance with the rates prescribed by existing laws. The
Assistant Commissioner of Customs shall be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential
Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus
amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one
chief and one assistant chief, to be known respectively as the Commissioner (hereinafter
known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an
annual compensation in accordance with the rates prescribed by existing law. The
Commissioner and the Deputy Commissioner of Customs shall be appointed by the
President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the
effectivity of the 1935 Constitution, under which the President may nominate and, with the
consent of the Commission on Appointments, appoint the heads of bureaus, like the
Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34
have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment
of the Commissioner of the Bureau of Customs is one that devolves on the President, as an

appointment he is authorized by law to make, such appointment, however, no longer needs

the confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau
of Customs, without submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and functions of the office and
to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are,
hereby DISMISSED. Without costs.
SO ORDERED

G.R. No. 104226 August 12, 1993

CONCHITA ROMUALDEZ-YAP, petitioner,
vs.
THE CIVIL SERVICE COMMISSION and THE PHILIPPINE NATIONAL BANK, respondents.
Estelito P. Mendoza for petitioner.
The Solicitor General for the Civil Service Commission.
Domingo A. Santiago, Jr. for Philippine National Bank.

PADILLA, J.:
This is a special civil action for certiorari under Rule 65 of the Rules of Court, assailing Resolution
No. 92-201 of the respondent Civil Service Commission, which upheld the petitioner's separation

from the Philippine National Bank(PNB) as a result of the abolition of the Fund Transfer Department
pursuant to a reorganization under Executive Order No. 80, dated 3 December 1986.
Petitioner Conchita Romualdez-Yap started working with the Philippine National Bank on 20
September 1972 as special assistant with the rank of Second Assistant Manager assigned to the
office of the PNB President. After several promotions, she was appointed in 1983 Senior Vice
President assigned to the Fund Transfer Department.
Starting 1 April 1986 up to 20 February 1987, petitioner filed several applications for leave of
absence (due to medical reasons) which were duly approved. While she was on leave, Executive
Order No. 80 (Revised Charter of the PNB) was approved on 3 December 1986. Said executive
order authorized the restructure/reorganization and rehabilitation of PNB. Pursuant to the
reorganization plan, the Fund Transfer Department was abolished and its functions transferred to the
International Department.
Consequently, petitioner was notified of her separation from the service in a letter dated 30 January
1987, thus:
Pursuant to the Transitory Provision of the 1986 Revised Charter of the Bank, please
be informed that Management has approved your separation from the
service effective February 16, 1986. You shall be entitled to the regular benefits
allowed under existing law. (emphasis supplied)
Please be informed further that under Sec. 37 of the Bank's 1986 Revised Charter,
any officer or employee who feels aggrieved by any matter treated above may submit
his case to the Civil Service
Commission. 1
This letter was received by petitioner's secretary at the PNB head office on 16 February 1987.
Petitioner's first recorded appeal to the Civil Service Commission questioning her separation is a
letter dated 4 August 1989. Then CSC Chairman Samilo N. Barlongay upheld the validity of her
separation from the service in a letter/opinion dated 30 August 1989 (this was allegedly received by
petitioner only on 26 February 1990) stating thus:
xxx xxx xxx
It may be mentioned in this connection, that inasmuch as you did not avail of the
ERIP/Supplementary Retirement Plans adopted by the PNB in 1986, you have
therefore lost your right thereto. Moreover, since you lack the required number of
years of service to entitle you to retirement benefits under existing laws, you may be
entitled to the return of your GSIS personal contributions. Considering further that
you have exhausted all your accumulated leave credits as you went on leave of
absence for the period from April 1, 1986 to February 20, 1987, there is no legal or
valid basis to entitle you to payment of terminal leave.

Finally, pursuant to Section 16, Article XVIII of the Transitory Provisions of the 1987
Philippine Constitution, you may be entitled to payment of separation subject to
auditing rules and regulations. 2
In her motion for reconsideration with the Civil Service Commission, dated 5 March 1990,
questioning Chairman Barlongay's ruling, petitioner claimed:
1. The opinion/ruling was not fully supported by the evidence on record;
2. Errors of law prejudicial to the interest of the movant have been committed. She argued:
. . . that her separation from the service was illegal and was done in bad faith
considering that her termination on February 16, 1986 was made effective prior to
the effectivity of Executive Order No. 80 on December 3, 1986, which law authorized
the reorganization of the PNB, and even before February 25, 1986, when President
Corazon C. Aquino came into power. She further claims that although the notice of
termination was dated January 30, 1987 it was only served upon her on February 16,
1987 when the new Constitution which guarantees security of tenure to public
employees was already in effect. 3
xxx xxx xxx

. . . the bad faith in her separation from the service in 1987 was evident from the
recent restoration of the Fund Transfer Department as a separate and distinct unit
from the International Department . . .4
Denying the motion for reconsideration, the Civil Service Commission in its aforecited Resolution No.
92-201, dated 30 January, 1992, ruled:
Sec. 33 of EO 80 (1986 Revised Charter of the PNB) provides:
Sec. 33. Authority to Reorganize. In view of reduced operations contemplated
under this charter in pursuance of the national policy expressed in the "Whereas"
clause hereof, a reorganization of the Bank and a reduction in force are hereby
authorized to achieve greater efficiency and economy in operations, including the
adoption of a new staffing pattern to suit the reduced operations envisioned. The
program of reorganization shall begin immediately after the approval of this Order,
and shall be completed within six (6) months and shall be fully implemented within
eighteen (18) months thereafter." Clearly; as aforequoted, PNB was authorized to
undergo reorganization and to effect a reduction in force to "achieve greater
efficiency and economy in operations". It cannot, be disputed that reduction in force
necessitates, among others, the abolition of positions/offices. The records show that
prior to its reorganization, PNB originally had 7,537 positions which were reduced to
5,405 after the reorganization. Indeed, 2,132 positions were abolished, that is, the
original positions in PNB were reduced by 28%. This reduction in force likewise
included the senior officer positions, in PNB, which were reduced, thus:

Positions Incumbents Proposed Position

President 1 1 1
Sr. Exec. VP 1 1 0
Exec. VP 3 2 2
Senior VP 12 11 7
Vice Pres. 33 27 15
The position of movant Yap (SVP) was one among the original twelve (12) SVP
positions. It was one among the five (5) SVP positions which were abolished. In fact,
the FTD of which she was then the incumbent SVP, was merged with the
International Department to which its functions were closedly related.
It should be noted that as ruled by the Supreme Court in Dario vs. Mison (G.R. NO.
81954):
Reorganizations in this jurisdiction have been regarded as valid
provided they are pursued in good faith. As a general rule, a
reorganization is carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no
dismissal or separation actually occurs because the position itself
ceases to exist. And in that case, security of tenure would not be a
Chinese Wall. . . . .
. . . Good faith, as a component of a reorganization under a
constitutional regime is judged from the facts of each case.
In the instant case, therefore, this Commission is inclined to believe that the
reorganization of PNB was done in good faith. For indeed, the reorganization was
pursued to achieve economy. It undertook reduction in force as a means to
streamline the numbers of the workforce. It was incidental that movant Yap's position
was one among those abolished. Movant Yap failed to substantiate her claim by
clear and convincing evidence that the abolition of her position was a result of her
close identification with the previous regime, being a sister of former First Lady
Imelda Romualdez Marcos. This being so, and pursuant to the presumption of
regularity in the performance of official functions, the abolition of movant Yap's
position should be upheld. PNB, in the instant case, has clearly proved by substantial
evidence that its act in terminating the services of some of its employees was done in
good faith. 5
Overruling her imputation of bad faith, i.e. her separation was illegal because it took effect on 16
February 1986 or even before the promulgation of EO No. 80 on 3 December 1986, the CSC noted
that the year "1986" stated in the notice of her separation from the service was a typographical error.
PNB submitted documents (p. 6 of Resolution No. 92-201) supporting its stand that the separation
actually took effect on 16 February 1987.

On the issue of bad faith as related to the later restoration of the Fund Transfer Department, the
subject CSC resolution adds:
xxx xxx xxx
It may be mentioned that the recent restoration of the Fund Transfer Department,
actually was a merger of the Fund Transfer Group, the Foreign Remittance
Development and Coordinating Unit based on board Resolution No. 60 of March 12,
1991, or after the lapse of over four (4) years from the date it was abolished in 1987.
Moreover, the restoration of the Fund Transfer Department and other offices in the
PNB was primarily caused by the improved financial capability and present needs of
the Bank. This improved financial condition of the PNB is evident from the 1990
Annual Report it submitted. It may be further stated that the re-established FTD is
headed by a Vice President, a position much lower in rank than the former
department headed by a Senior Vice President.
Furthermore, it should be noted that granting arguendo that movant Yap's termination
from the service was tainted with bad faith, she however, is now barred from
assailing the same as she did not seasonably assert her right thereto. Records show
that she was separated from PNB on February 16, 1987 and it was only in 1989 or
about 2 years thereafter when she brought this matter to this Commission. By her
inaction in questioning her termination within a period of one year, she is considered
to have acquiesced to her separation from the service and abandoned her right to
the position. 6
In the present petition before the Court, the following issues are raised:
1. Existence of bad faith in the reorganization of the Philippine National Bank resulting in the
separation from the service of petitioner.
2. Erroneous application of the Dario v. Mison doctrine vis-a-vis PNB's reorganization.
3. Erroneous application of the one (1) year prescriptive period for quo warranto proceedings in
petitioner's case.
Dario v. Mison 7 laid down the requirement of good faith in the reorganization of a government bureau
wherein offices are abolished. It says:
. . . Reorganizations in this jurisdiction have been regarded as valid provided they are
pursued in good faith. As a general rule, a reorganization is carried out in "good faith"
if it is for the purpose of economy or to make bureaucracy more efficient. In that
event, no dismissal (in case of dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would not be a
Chinese wall. Be that as it may, if the "abolition," which is nothing else but a
separation or removal, is done for political reasons or purposely to defeat security of
tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever

"abolition" is done, is void ab initio. There is an invalid "abolition" as where there is

merely a change of nomenclature of positions, or where claims of economy are
belied by the existence of ample funds. It is to be stressed that by predisposing a
reorganization to the yardstick of good faith, we are not, as a consequence, imposing
a "cause" for restructuring. Retrenchment in the course of a reorganization in good
faith is still removal "not for cause" if by "cause" we refer to "grounds" or conditions
that call for disciplinary action. Good faith, as a component of a reorganization under
a constitutional regime, is judged from the facts of each case.
In Petitioner's case, the following instances are cited by her as indicia of bad faith:
1. The abolished department was later restored and the number of senior vice
presidents was increased.
2. PNB did not follow the prescribed sequence of separation of employees from the
service contained in Rep. Act No. 6656 which is:
Sec. 3. In the separation of personnel pursuant to reorganization, the
following order of removal shall be followed:
(a) Casual employees with less than five (5) years of
government service;
(b) Casual employees with five (5) years or more of
government service;
(c) Employees holding temporary appointments; and
(d) Employees holding permanent
appointments: Provided, That those in the same
category as enumerated above, who are least
qualified in terms of performance and merit shall be
laid off first, length of service notwithstanding.
3. Petitioner was not extended preference in appointment to the positions in the new
staffing pattern as mandated by Sec. 4 of Rep. Act 6656, her qualification and fitness
for new positions were never evaluated or considered in violation of Sec. 27 of P.D.
807 which was incorporated as Sec. 29 Ch. 5 Subtitle A, Book V of the Administrative
Code of 1987.
4. Lack of notice and bearing before separation from the service.
5. Petitioner was forced to take a leave of absence and prevented from reporting for
work.

6. There is a discrepancy in the date of her separation from the service and the
effectivity thereof.
7. PNB employees in the Fund Transfer Department identified with her were
reassigned or frozen.
8. She is listed as having resigned instead of being separated or dismissed which
was what actually happened.
9. The dismissal was politically motivated, she being a sister of Mrs. Imelda
Romualdez Marcos, wife of deposed President Ferdinand Marcos.
Executive Order No. 80 conferred upon the PNB the authority to reorganize. The order was issued
by then Pres. Corazon Aquino on 3 December 1986 while she was exercising the powers vested in
the President of the Philippines by the Freedom Constitution. After 3 December 1986, what
remained to be done was the implementation of the reorganization. There is no doubt as to the legal
basis for PNB's reorganization. The real question is: was it done in good faith, tested by the Dario
v. Mison doctrine?
To start with it is almost absurd for petitioner to insist that her termination from the service was
antedated to 16 February 1986. At that time, the reorganization of PNB had not even been
conceived. In most of PNB's pleadings, it has documented and supported its stand that the year of
petitioner's separation is 1987 not 1986. The antedating of the termination date, aside from being
clearly a typographical error, is a periphernal issue. The real issue is existence of bad faith consisting
of tangible bureaucratic/management pressures exerted to ease her out of office. Bad faith has been
defined as a state of mind affirmatively operating with furtive design or with some motive of self
interest or ill will or for an ulterior purpose. 8 It is the performance of an act with the knowledge that the
actor is violating the fundamental law or right, even without willful intent to injure or purposive malice to
perpetrate a damnifying harm. 9
PNB's reorganization, to repeat, was by virtue of a valid law. At the time of reorganization, due to the
critical financial situation of the bank, departments, positions and functions were abolished or
merged. The abolition of the Fund Transfer Department (FTD) was deemed necessary. This, to the
Court's mind, was a management prerogative exercised pursuant to a business judgment. At this
point, a distinction can be made in ruling on the validity of a reorganization between a government
bureau or office performing constituent functions (like the Customs) and a government-owned or
controlled corporation performing ministrant functions (like the PNB).
Constituent function are those which constitute the very bonds of society and are compulsory in
nature; ministrant functions are those undertaken by way of advancing the general interests of
society, and are merely optional. Commercial or universal banking is, ideally, not a governmental but
a private sector, endeavor. It is an optional function of government.
. . . The principles determining whether or not a government shall exercise certain of
these optional functions are: (1) that a government should do for the public welfare
those things which private capital would not naturally undertake and (2) that a

government should do those things which by its very, nature it is better equipped to
administer for the public welfare than is any private individual or group of individuals
(Malcolm, The Government of the Philippine Islands, pp. 19-20)
From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those
which it may exercise to promote merely the welfare, progress and prosperity of the
people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we call
government-owned or controlled corporations which may take on the form of a
private enterprise or one organized with powers and formal characteristics of a
private corporation under the Corporation Law. (Bacani vs. Nacoco, No, L-9657,
November 29, 1956, 100 Phil. 468)
But a reorganization whether in a government bureau performing constituent functions or in a
government-owned or controlled corporation performing ministrant functions must meet a common
test, the test of good faith. In this connection, the philosophy behind PNB's reorganization is spelled
out in the whereas clauses of Executive Order No. 80:
WHEREAS, within the context of the general policy there nevertheless exists a clear
role for direct government-participation in the banking system, particularly in
servicing the requirements of agriculture, small and medium scale industry, export
development, and the government sector.
WHEREAS, in pursuit of this national policy there is need to restructure the
government financial institutions, particularly the Philippine National Bank, to achieve
a more efficient and effective use of available scarce resources, to improve its
viability, and to avoid unfair competition with the private sector, and
WHEREAS, the reorganization and rehabilitation of the Philippine National Bank into
a similar but stronger and more operationally viable bank is an important component
of the nationalization programs for both the financial system and the government
corporation sector; . . . .
Whether there was a hidden political agenda to persecute petitioner due to her consanguinial
relation to Mrs. Imelda Romualdez Marcos, the widow of former President Marcos, is not clearly
shown. On the other hand, it is entirely possible that, precisely because of such consanguinial
relation, petitioner may have been the object of deferential, if not special treatment under the Marcos
regime. It is part of the Filipino culture to extend such deferential, if not special treatment to close
relatives of persons in power. Many times this is carried to unwholesome extremes. But a
discontinuance of such deferential or special treatment in the wake of a change in government or
administration is not bad faith per se. It may be merely putting things in their proper places.

Due to the restructuring and this is empirically verifiable PNB became once more a viable
banking institution. The restoration of the FTD four years after it was abolished and its functions
transferred to the International Department, can be attributed to the bank's growth after
reorganizations, thereby negating malice or bad faith in that reorganization. The essence of good
faith lies in an honest belief in the validity of one's right. 10 It consists of an honest intention to abstain
from taking an unconscionable and unscrupulous advantage of another, its absence should be
established by convincing evidence. 11
The records also clearly indicate that starting April 1986 to February 1987, petitioner went on leave
of absence for medical reasons. While she was not reporting to the office, the bank's reorganization
got underway. She continued, however, receiving her salaries, allowances, emoluments, honoraria
and fees up to March 1987. Employees who were affected by the reorganization had the option to
avail of the bank's Separation Benefits Plan/Early Retirement Plan (SBP/ERIP). Petitioner opted not
to avail of such plan and instead submitted to the result of the bank's ongoing reorganization and
management's discretion. If petitioner had the desire for continued employment with the bank, she
could have asserted it for management's consideration. There is no proof on record that she
affirmatively expressed willingness to be employed. Since she cannot rebut the CSC finding that her
earliest appeal was made on 4 August 1989, there is no reason for this Court to hold that she did not
sleep on her rights. On the contrary, her present argument that bad faith existed at the time of the
abolition of the FTD because it was restored four years later is a little too late. Who could have
predicted in 1986 or 1987 that PNB would be able to rise from its financial crisis and become a
viable commercial bank again? The decision to abolish the FTD at the time it was abolished, to
repeat, was a business judgment made in good faith.
PNB for its part submits that its reorganization was effected in good faith
because
a) There was not only a perceptible but substantial restructuring of the PNB hierarchy
showing reduction of personnel, consolidation of offices and abolition of positions.
b) Two thousand one hundred thirty two (2,132) positions were abolished during the
period from February 16, 1986 to January 14, 1987 leaving a lean workforce of five
thousand four hundred five (5,405) as of latter date per B.R. No. 34 hereto attached
as Annex "R".
c) The number of senior officers, including Senior Vice Presidents, was accordingly
reduced.
Another issue raised by petitioner is PNB's alleged non-compliance with the mandate of Sections 2
and 4 of Rep. Act No. 6656. These Sections provide:
Sec. 2. No officer or employee in the career service shall be removed except for a
valid cause and after due notice and hearing. A valid cause for removal exists when,
pursuant to a bona fide reorganization, a position has been abolished or rendered
redundant or there is a need to merge, divide, or consolidate positions in order to
meet the exigencies of the service, or other lawful causes allowed by the Civil

Service Law. The existence of any or some of the following circumstances may be
considered as evidence of bad faith in the removals made as a result of
reorganization, giving to a claim for reinstatement or reappointment by an aggrieved
party.
(a) Where there is a significant increase in the number of positions in the new staffing
pattern of the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same
functions is created;
(c) Where incumbents are replaced by those less qualified in terms of status of
appointment, performance and merit;
(d) Where there is a reclassification of offices in the department or agency concerned
and the reclassified offices perform substantially the same functions as the original
offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof.
xxx xxx xxx
Sec. 4. Officers and employees holding permanent, appointments shall be given
preference for appointment to the new position in the approved staffing pattern
comparable to their former positions or in case there are not enough comparable
positions, to positions next lower in rank.
No new employees shall be taken in until all permanent officers and employees have
been appointed, including temporary and casual employees who possess the
necessary qualification requirements, among which is the appropriate civil service
eligibility, for permanent appointment to positions in the approved staffing pattern, in
case there are still positions to be filled, unless such positions are policy-determining,
primarily confidential or highly technical in nature.
In the first place, Rep. Act No. 6656 cannot be invoked by petitioner because it took effect on 15
June 1987, or after PNB's reorganization had already been implemented. But assuming, ex gratia
argumenti, that it is applicable here and petitioner must be accorded preferential right to appointment
in the bank, PNB in its rejoinder impressively asserts:
Needless to say, there were various committees that were created in the
implementation of the organizational restructuring of the Bank based on the
foregoing policy guidelines. Each personnel to be retained was evaluated in terms of
relative fitness and merit along with the other personnel of the Bank. Thus, when
then SVP Federico Pascual was chosen to head the International Department from
among other officers of the Bank, including Ms. Yap, his qualifications far exceeded
those of the other candidates for the position.

We attach hereto as Annexes "G-1" and "G-2" the service records of Mr. Federico
Pascual and Petitioner Ms. Yap, respectively, which clearly show that the
qualifications of Mr. Pascual far exceed those of Petitioner Yap. Aside from being a
lawyer having been a law graduate from the University of the Philippines, he is also a
Bachelor of Arts degree holder from Ateneo de Manila and a Master of Laws
graduate o Columbia Law School. He had studied Masteral Arts in Public
Administration at the London School of Economics and had undergone extensive
seminars since 1974 at the International Department and had been assigned in
several foreign branches of the Bank. Before he resigned from the Bank, he held the
second highest position of Executive Vice President and served as Acting President
of the Bank before the incumbent president, President Gabriel Singson assumed his
position.
On the other hand, the service record of Petitioner Yap will show that she only holds
a Bachelor of Science in Commerce Degree from Assumption Convent and has
undergone only one seminar on Management and Leadersbip Training Program. She
entered the Bank service in 1972. (Rollo at pp. 312 to 313)
xxx xxx xxx
The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as
senior vice president and head of the Fund Transfer Department, or reappointment to a position of
comparable or equivalent rank without loss of seniority rights and pay, etc., under the bank's new
staffing pattern.
A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised
by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court). The petitioner
therein must show a clear legal right to the office allegedly held unlawfully by another. 12
An action for quo warranto should be brought within one (1) year after ouster from office; 13 the failure
to institute the same within the reglementary period constitutes more than a sufficient basis for its
dismissal 14 since it is not proper that the title to a public office be subjected to continued
uncertainty . . . 15 An exception to this prescriptive period lies only if the failure to file the action can be
attributed to the acts of a responsible government officer and not of the dismissed employee. 16
Measured by the above jurisprudence, petitioner's action may be said to be one for quo warranto,
seeking reinstatement to her former position which at present is occupied by another. She cannot
invoke De Tavera v.Phil. Tuberculosis Society, Inc., et. al. 17 and contend that there is no claim of
usurpation of office, and that quo warrantomay be availed of to assert one's right to an office in the
situation obtaining in the case at bar.
Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19 are invoked by petitioner to illustrate that this action
is one for separation without just cause, hence, the prescriptive period is allegedly four (4) years in
accordance with Article 1146 of the Civil Code. 20 We do not agree. Petitioner's separation from the
service was due to the abolition of her office in implementation of a valid reorganization. This is not the
unjustifiable cause which results in injury to the rights of a person contemplated by Article 1146. The
abolition of the office was not a whimsical, thoughtless move. It was a thoroughly evaluated action for

streamlining functions based on a rehabilitation plan. 21 At the time of the abolition of the Fund Transfer
Department in 1986, foreign exchange losses of the bank amounted to P81.1 Million. 22 The head of office
was a Senior Vice President. At the time of restoration of the department in 1991, it was headed by a vice
president (lower in rank) and showed earnings of P2,620.0 Million. 23 Other departments abolished in
1986 were also subsequently restored.

Restoring petitioner to her previous position with backwages would be unjust enrichment to her,
considering that she had abandoned or showed lack of interest in reclaiming the same position when
the bank was not yet fully rehabilitated and she only insisted on reinstatement in August 1989 or two
(2) years after her alleged unjustified separation.
To those who feel that their unjustified separation from the service is for a cause beyond their
control, the aforecited Magno case teaches:
. . . while We fully recognize the special protection which the Constitution, labor laws,
and social legislation accord the workingman, We cannot, however, alter or amend
the law on prescription to relieve him of the consequences of his inaction.
Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the
vigilant, not of the sleeping). His explanation that he could not have filed the
complaint earlier because "he was prevented to do so beyond his control for the
simple reason that private respondent have (sic) tried to circumvent the law by
merely floating" him is very flimsy and does not even evoke sympathetic
consideration, if at all it is proper and necessary. We note that petitioner herein is not
an unlettered man; he seems to be educated and assertive of his rights and appears
to be familiar with judicial procedures. He filed a motion for extension of time to file
the petition and the petition itself without the assistance of counsel. We cannot
believe that if indeed he had a valid grievance against PNCC he would not have
taken immediate positive steps for its redress.
WHEREFORE, premises considered, the assailed CSC resolution is AFFIRMED. The petition is
DISMISSED for failure to show grave abuse of discretion on the part of said CSC in rendering the
questioned resolution. No pronouncement as to costs.
SO ORDERED.

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the
facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor
Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil
Service Commission approved it as "temporary," subject to the final action taken in the protest filed by the
private respondent and another employee, and provided "there (was) 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." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service Commission found the
private respondent better qualified than the petitioner for the contested position and, accordingly, directed
"that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division,
Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby
revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald
Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that
order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the
basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly
replaced in the instant case because his appointment was temporary and therefore could be
withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the
petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from
his office without violation of the Constitution. 5
While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this
case. The argument begs the question. The appointment of the petitioner was not temporary but
permanent and was therefore protected by Constitution. The appointing authority indicated that it was
permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to
reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil Service
Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not
the appointment it sell And what made the approval temporary was the fact that it was made to depend on
the condition specified therein and on the verification of the qualifications of the appointee to the position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing officer, its authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified
and authorizing the other legal requirements are satisfied, the Commission has no choice but to
attest to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies
in the official vested by law with the appointing power and not the Civil Service
Commission. The Commissioner of Civil Service is not empowered to determine the
kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no
choice but to attest to the appointment. Under the Civil Service Law, Presidential
Decree No. 807, the Commissioner is not authorized to curtail the discretion of the
appointing official on the nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee
is qualified for the position to which he has been named. As we have repeatedly held, such
attestation is required of the Commissioner of Civil Service merely as a check to assure compliance
with Civil Service Laws. 9
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 different where the Constitution or the law subjects the appointment to the approval of another
officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made
by the President of the Philippines had to be confirmed by that body and could not be issued or were
invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then
considered part of the appointing process, which was held complete only after such confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had
the power to refuse to concur with it even if the President's choice possessed all the qualifications
prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the
contrary, the Civil Service Commission is limited only to the non-discretionary authority of
determining whether or not the person appointed meets all the required conditions laid down by the
law.
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 shag 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. (emphasis
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. 12 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.
In preferring the private respondent to the petitioner, the Commission was probably applying its own
Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that
"whenever there are two or more employees who are next-in-rank, preference shall be given to the
employee who is most competent and qualified and who has the appropriate civil service eligibility."
This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the
next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer
of present employees, reinstatement, re-employment, or appointment of outsiders who have the
appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest contention
between two public functionaries who each sincerely claims to be entitled to the position in dispute.
This is gratifying for politics should never be permitted to interfere in the apolitical organization of the
Civil Service, which is supposed to serve all the people regardless of partisan considerations. This
political detachment will be impaired if the security of tenure clause in the Constitution is
emasculated and appointments in the Civil Service are revoked and changed at will to suit the
motivations and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984,
is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his
permanent appointment thereto dated February 18, 1983. No costs.
SO ORDERED.