G.R. No.

152574             November 17, 2004 xxx    xxx    xxx

FRANCISCO ABELLA JR., petitioner,  (b) In addition to the above identified positions and other positions of the same category
vs. which had been previously classified and included in the CES, all other third level
CIVIL SERVICE COMMISSION, respondent. positions of equivalent category in all branches and instrumentalities of the national
government, including government owned and controlled corporations with original
charters are embraced within the Career Executive Service provided that they meet the
following criteria:

'1. the position is a career position;

DECISION
'2. the position is above division chief level

'3. the duties and responsibilities of the position require the performance of
executive or managerial functions.

PANGANIBAN, J.:
'4. Status of Appointment of Incumbents of Positions Included Under the
Coverage of the CES. Incumbents of positions which are declared to be Career
Both the appointing authority and the appointee are the real parties in interest, and both have legal Executive Service positions for the first time pursuant to this Resolution who
standing, in a suit assailing a Civil Service Commission (CSC) order disapproving an appointment. hold permanent appointments thereto shall remain under permanent status in
Despite having legal interest and standing, herein petitioner unsuccessfully challenges the their respective positions. However, upon promotion or transfer to other
constitutionality of the CSC circular that classifies certain positions in the career service of the Career Executive Service (CES) positions, these incumbents shall be under
government. In sum, petitioner was appointed to a Career Executive Service (CES) position, but did temporary status in said other CES positions until they qualify.'
not have the corresponding eligibility for it; hence, the CSC correctly disapproved his appointment.
"Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan
The Case Authority (SBMA) on a contractual basis. On January 1, 1999, petitioner was issued by
SBMA a permanent employment as Department Manager III, Labor and Employment
Center. However, when said appointment was submitted to respondent Civil Service
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, challenging the November
Commission Regional Office No. III, it was disapproved on the ground that petitioner's
16, 2001 Decision2 and the March 8, 2002 Resolution 3 of the Court of Appeals (CA) in CA-GR SP No.
eligibility was not appropriate. Petitioner was advised by SBMA of the disapproval of his
58987. The Assailed Decision disposed as follows:
appointment. In view thereof, petitioner was issued a temporary appointment as
Department Manager III, Labor and Employment Center, SBMA on July 9, 1999.
"WHEREFORE, the petition for review is DENIED for lack of merit." 4
"Petitioner appealed the disapproval of his permanent appointment by respondent to the
The challenged Resolution denied petitioner's Motion for Reconsideration. Civil Service Commission, which issued Resolution No. 000059, dated January 10, 2000,
affirming the action taken by respondent. Petitioner's motion for reconsideration thereof
was denied by the CSC in Resolution No. 001143 dated May 11, 2000."
The Facts

"x x x         x x x         x x x
The CA narrates the factual antecedents in this wise:

"Undaunted, petitioner filed with [the CA] a petition for review seeking the reversal of
"Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone the CSC Resolutions dated January 10, 2000 and May 11, 2000 on the ground that CSC
Authority (EPZA), now the Philippine Economic Zone Authority (PEZA), on July 1, 1996 Memorandum Circular No. 21, s. 1994 is unconstitutional as it rendered his earned civil
as Department Manager of the Legal Services Department. He held a civil service service eligibility ineffective or inappropriate for the position of Department Manager
eligibility for the position of Department Manager, having completed the training [III]"5
program for Executive Leadership and Management in 1982 under the Civil Service
Academy, pursuant to CSC Resolution No. 850 dated April 16, 1979, which was then the
required eligibility for said position. Ruling of the Court of Appeals

"It appears, however, that on May 31, 1994, the Civil Service Commission issued
Memorandum Circular No. 21, series of 1994, the pertinent provisions of which read:

'1. Positions Covered by the Career Executive Service

1
The CA shunned the issue of constitutionality, arguing that a constitutional question should not be Approval Required for 
passed upon if there are other grounds upon which the case may be decided. 6 Citing CSC Permanent Appointment
Memorandum Circular 40, s. 1998 and Mathay v. Civil Service Commission, 7 the appellate court
ruled that only the appointing officer may request reconsideration of the action taken by the CSC on
A permanent appointment in the career service is issued to a person who has met the requirements
appointments. Thus, it held that petitioner did not have legal standing to question the disapproval
of the position to which the appointment is made in accordance with the provisions of law, the rules
of his appointment.8
and the standards promulgated pursuant thereto. 13 It implies the civil service eligibility of the
appointee.14 Thus, while the appointing authority has the discretion to choose whom to appoint, the
On reconsideration, the CA added that petitioner was not the real party in interest, as his choice is subject to the caveat that the appointee possesses the required qualifications. 15
appointment was dependent on the CSC's approval. Accordingly, he had no vested right in the
office, since his appointment was disapproved. 9
To make it fully effective, an appointment to a civil service position must comply with all legal
requirements.16 Thus, the law requires the appointment to be submitted to the CSC which will
Unsatisfied, petitioner brought this recourse to this Court. 10 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. 17 The applicable provision of the
Civil Service Law reads:
The Issues

"SECTION 9. Powers and Functions of the Commission. — The Commission shall

Petitioner raises the following issues for our consideration:
administer the Civil Service and shall have the following powers and functions:

"A. Whether or not Respondent Court committed grave abuse of discretion amounting to
"x x x         x x x         x x x
lack of jurisdiction in ruling that petitioner lacks the personality to question the
disapproval by respondent office of petitioner's appointment as Department Manager III,
Labor and Employment Center, SBMA. "(h) Approve all appointments, whether original or promotional, to positions in the civil
service, except those of presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and disapprove those where the
"B. Whether or not Respondent Court committed grave abuse of discretion amounting to
appointees do not possess the appropriate eligibility or required qualifications. An
lack of jurisdiction in ruling that petitioner is not the real party in interest to question the
appointment shall take effect immediately upon issue by the appointing authority if the
disapproval by respondent office of petitioner's appointment as Department Manager III,
appointee assumes his duties immediately and shall remain effective until it is
Labor and Employment Center, SBMA.
disapproved by the Commission, if this should take place, without prejudice to the
liability of the appointing authority for appointments issued in violation of existing laws
"C. Whether or not Respondent Court committed grave abuse of discretion amounting to or rules: Provided, finally, That the Commission shall keep a record of appointments of
lack of jurisdiction, in dismissing petitioner's appeal on a mere technicality considering all officers and employees in the civil service. All appointments requiring the approval of
that petitioner is questioning the constitutionality of respondent office' issuance of the Commission as herein provided, shall be submitted to it by the appointing authority
Section 4 of CSC Memorandum Circular No. 21, s. 1994, which deprived petitioner his within thirty days from issuance, otherwise, the appointment becomes ineffective thirty
property right without due process of law." 11 days thereafter."18

The Court's Ruling The appointing officer and the CSC acting together, though not concurrently but consecutively,
make an appointment complete.19 In acting on the appointment, the CSC determines whether the
appointee possesses the appropriate civil service eligibility or the required qualifications. If the
The Petition is partly meritorious. appointee does, the appointment must be approved; if not, it should be disapproved. 20 According to
the appellate court, only the appointing authority had the right to challenge the CSC's disapproval.
First Issue: It relied on Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 (Omnibus Rules on
Appointment and Other Personal Actions), which provides:

Who May File Reconsideration or Appeal

"Section 2. Request for Reconsideration of, or appeal from, the disapproval of an
appointment may be made by the appointing authority and submitted to the
Preliminary Observation Commission within fifteen (15) calendar days from receipt of the disapproved
appointment."
Petitioner imputes to the CA "grave abuse of discretion amounting to lack of jurisdiction" for ruling
that he had no legal standing to contest the disapproval of his appointment. 12 Grave abuse of Appointing Authority's Right to
discretion is a ground for a petition for certiorari under Rule 65 of the Rules of Court. Nevertheless, Challenge CSC Disapproval
this Court resolved to grant due course to the Petition and to treat it appropriately as a petition for
review on certiorari under Rule 45 of the Rules of Court. The grounds shall be deemed "reversible
errors," not "grave abuse of discretion." While petitioner does not challenge the legality of this provision, he now claims that it is merely a
technicality, which does not prevent him from requesting reconsideration.

2
We clarify. The power of appointment necessarily entails the exercise of judgment and depends for illumination of difficult constitutional questions.' (Baker v. Carr, 369 U.S.
discretion.21 Luego v. Civil Service Commission22 declared: 186, 7 L. Ed. 2d 633 (1962))

"Appointment is an essentially discretionary power and must be performed by the officer "x x x         x x x         x x x
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
"On the other hand, the question as to 'real party-in-interest' is whether he is 'the party
appointment cannot be faulted on the ground that there are others better qualified who
who would be [benefited] or injured by the judgment, or the 'party entitled to the avails
should have been preferred. This is a political question involving considerations of
of the suit.' (Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125, 131 [1951])" 32
wisdom which only the appointing authority can decide." 23

If legal standing is granted to challenge the constitutionality or validity of a law or governmental act
Significantly, "the selection of the appointee -- taking into account the totality of his qualifications,
despite the lack of personal injury on the challenger's part, then more so should petitioner be
including those abstract qualities that define his personality -- is the prerogative of the appointing
allowed to contest the CSC Order disapproving his appointment. Clearly, he was prejudiced by the
authority."24 No tribunal, not even this Court,25 may compel the exercise of an appointment for a
disapproval, since he could not continue his office.
favored person.26

Although petitioner had no vested right to the position, 33 it was his eligibility that was being
The CSC's disapproval of an appointment is a challenge to the exercise of the appointing authority's
questioned. Corollary to this point, he should be granted the opportunity to prove his eligibility. He
discretion. The appointing authority must have the right to contest the disapproval. Thus, Section 2
had a personal stake in the outcome of the case, which justifies his challenge to the CSC act that
of Rule VI of CSC Memorandum Circular 40, s. 1998 is justified insofar as it allows the appointing
denied his permanent appointment.
authority to request reconsideration or appeal.

The Appointee a Real

In Central Bank v. Civil Service Commission,27 this Court has affirmed that the appointing authority
Party in Interest
stands to be adversely affected when the CSC disapproves an appointment. Thus, the said authority
can "defend its appointment since it knows the reasons for the same." 28 It is also the act of the
appointing authority that is being questioned when an appointment is disapproved. 29 A real party in interest is one who would be benefited or injured by the judgment, or one entitled to
the avails of the suit. 34 "Interest" within the meaning of the rule means material interest or an interest
in issue and to be affected by the decree, as distinguished from mere interest in the question
Appointee's Legal Standing to
involved or a mere incidental interest. 35 Otherwise stated, the rule refers to a real or present
Challenge the CSC Disapproval
substantial interest as distinguished from a mere expectancy; or from a future, contingent,
subordinate, or consequential interest.36 As a general rule, one who has no right or interest to protect
While there is justification to allow the appointing authority to challenge the CSC disapproval, there cannot invoke the jurisdiction of the court as a party-plaintiff in an action. 37
is none to preclude the appointee from taking the same course of action. Aggrieved parties,
including the Civil Service Commission, should be given the right to file motions for
Although the earlier discussion demonstrates that the appointing authority is adversely affected by
reconsideration or to appeal.30 On this point, the concepts of "legal standing" and "real party in
the CSC's Order and is a real party in interest, the appointee is rightly a real party in interest too. He
interest" become relevant.
is also injured by the CSC disapproval, because he is prevented from assuming the office in a
permanent capacity. Moreover, he would necessarily benefit if a favorable judgment is obtained, as
Although commonly directed towards ensuring that only certain parties can maintain an action, an approved appointment would confer on him all the rights and privileges of a permanent
"legal standing" and "real party in interest" are different concepts. Kilosbayan v. Morato 31 explained: appointee.

"The difference between the rule on standing and real party-in-interest has been noted by Appointee Allowed
authorities thus: 'It is important to note . . . that standing because of its constitutional and Procedural Relief
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party-in-interest or has capacity to sue. Although all three
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to restrict
requirements are directed towards ensuring that only certain parties can maintain an
solely to the appointing authority the right to move for a reconsideration of, or to appeal, the
action, standing restrictions require a partial consideration of the merits, as well as
disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the authority to
broader policy concerns relating to the proper role of the judiciary in certain areas.
promulgate its rules and regulations, are silent on whether appointees have a similar right to file
(FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328 [1985])
motions for reconsideration of, or appeals from, unfavorable decisions involving appointments.
Indeed, there is no legislative intent to bar appointees from challenging the CSC's disapproval.
"Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
The view that only the appointing authority may request reconsideration or appeal is too narrow.
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 38 recognizes the
the public interest. Hence the question in standing is whether such parties have 'alleged
right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a
such a personal stake in the outcome of the controversy to assure that concrete
matter to the CSC Central Office.39 The adversely affected party necessarily includes the appointee.
adverseness which sharpens the presentation of issues upon which the court so largely

3
This judicial pronouncement does not override Mathay v. Civil Service Commission, 40 which the CA the first time pursuant to this Resolution who hold permanent appointments thereto
relied on. The Court merely noted in passing -- by way of obiter -- that based on a similar shall remain under permanent status in their respective positions. However, upon
provision,41 only the appointing officer could request reconsideration of actions taken by the CSC on promotion or transfer to other Career Executive Service (CES) positions, these
appointments. incumbents shall be under temporary status in said other CES positions until they
qualify."
In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions
that recalled his appointment of a city government officer. He filed a Petition assailing the CA Petitioner argues that his eligibility, through the Executive Leadership and Management (ELM)
Decision, which had previously denied his Petition for Certiorari for being the wrong remedy and training program, could no longer be affected by a new eligibility requirement. He claims that he
for being filed out of time. We observed then that the CSC Resolutions were already final and could was eligible for his previous position as department manager of the Legal Services Department,
no longer be elevated to the CA.42 Furthermore, Mathay's Petition for Certiorari filed with the CA PEZA; hence, he should retain his eligibility for the position of department manager III, Labor and
was improper, because there was an available remedy of appeal. And the CSC could not have acted Employment Center, SBMA, notwithstanding the classification of the latter as a CES position.
without jurisdiction, considering that it was empowered to recall an appointment initially
approved.43
CSC Authorized to Issue
Rules and Regulations
The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At
any rate, the present case is being decided en banc, and the ruling may reverse previous doctrines
The Constitution mandates that, as "the central personnel agency of the government," 47 the CSC
laid down by this Court. 44
should "establish a career service and adopt measures to promote the morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the Civil Service." 48 It further requires that
Second Issue: appointments in the civil service be made only through merit and fitness to be determined by
competitive examination.49 Civil Service laws have expressly empowered the CSC to issue and
enforce rules and regulations to carry out its mandate.
Constitutionality of Section 4, CSC Memorandum Circular 21, Series of 1994

In the exercise of its authority, the CSC deemed it appropriate to clearly define and identify
Alleging that his civil service eligibility was rendered ineffective and that he was consequently
positions covered by the Career Executive Service. 50 Logically, the CSC had to issue guidelines to
deprived of a property right without due process, 45 petitioner challenges the constitutionality of CSC
meet this objective, specifically through the issuance of the challenged Circular.
Memorandum Circular 21, s. 1994.46The pertinent part of this Circular reads:

Career Service 
"1. Positions Covered by the Career Executive Service.
Classified by Levels

"(a) The Career Executive Service includes the positions of Undersecretary,

Positions in the career service, for which appointments require examinations, are grouped into three
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
major levels:
Director (department-wide and bureau-wide), Assistant Regional Director
(department-wide and bureau-wide) and Chief of Department Service[.]
"(a) The first level shall include clerical, trades, crafts, and custodial service positions
which involve non-professional or sub[-]professional work in a non-supervisory or
"(b) In addition to the above identified positions and other positions of the
supervisory capacity requiring less than four years of collegiate studies;
same category which had been previously classified and included in the CES,
all other third level positions in all branches and instrumentalities of the
national government, including government-owned or controlled "(b) The second level shall include professional, technical, and scientific positions which
corporations with original charters are embraced within the Career Executive involve professional, technical, or scientific work in a non-supervisory or supervisory
Service provided that they meet the following criteria: capacity requiring at least four years of college work up to Division Chief level; and

"1. the position is a career position; "(c) The third level shall cover positions in the Career Executive Service." 51

"2. the position is above division chief level; Entrance to the different levels requires the corresponding civil service eligibility. Those in the third
level (CES positions) require Career Service Executive Eligibility (CSEE) as a requirement for
permanent appointment.52
"3. the duties and responsibilities of the position require the
performance of executive or managerial functions."
The challenged Circular did not revoke petitioner's ELM eligibility. He was appointed to a CES
position; however, his eligibility was inadequate. Eligibility must necessarily conform to the
xxx    xxx    xxx
requirements of the position, which in petitioner's case was a CSEE.

"4. Status of Appointment of Incumbents of Positions Under the Coverage of the CES.
Rights Protected
Incumbents of positions which are declared to be Career Executive Service positions for
4
The challenged Circular protects the rights of incumbents as long as they remain in the positions to Disapproval of Appointment
which they were previously appointed. They are allowed to retain their positions in a permanent
capacity, notwithstanding the lack of CSEE. Clearly, the Circular recognizes the rule of prospectivity
Since petitioner had no CES eligibility, the CSC correctly denied his permanent appointment. The
of regulations;53 hence, there is no basis to argue that it is an ex post facto law 54 or a bill of
appointee need not have been previously heard, because the nature of the action did not involve the
attainder.55 These terms, which have settled meanings in criminal jurisprudence, are clearly
imposition of an administrative disciplinary measure. 66 The CSC, in approving or disapproving an
inapplicable here.
appointment, merely examines the conformity of the appointment with the law and the appointee's
possession of all the minimum qualifications and none of the disqualification. 67
The government service of petitioner ended when he retired in 1996; thus, his right to remain in a
CES position, notwithstanding his lack of eligibility, also ceased. Upon his reemployment 56 years
In sum, while petitioner was able to demonstrate his standing to appeal the CSC Resolutions to the
later as department manager III at SBMA in 2001, it was necessary for him to comply with the
courts, he failed to prove his eligibility to the position he was appointed to.
eligibility prescribed at the time for that position.

WHEREFORE, the Petition is GRANTED insofar as it seeks legal standing for petitioner, but
Security of Tenure
DENIED insofar as it prays for the reversal of the CSC Resolutions disapproving his appointment as
Not Impaired
department manager III of the Labor and Employment Center, Subic Bay Metropolitan Authority.
Costs against petitioner.
The argument of petitioner that his security of tenure is impaired is unconvincing. First, security of
tenure in the Career Executive Service -- except in the case of first and second level employees in the
SO ORDERED.
civil service -- pertains only to rank, not to the position to which the employee may be
appointed.57 Second, petitioner had neither rank nor position prior to his reemployment. One cannot
claim security of tenure if one held no tenure prior to appointment. Digest:

Both the appointing authority and the appointee are the real parties in interest, and both have
Due Process 
legal standing, in a suit assailing a Civil Service Commission (CSC) order disapproving an
Not Violated
appointment. Despite having legal interest and standing, herein petitioner unsuccessfully
challenges the constitutionality of the CSC circular that classifies certain positions in the
Petitioner contends that his due process rights, as enunciated in Ang Tibay v. Court of career service of the government. In sum, petitioner was appointed to a Career
Appeals,58 were violated.59We are not convinced. He points in particular to the CSC's alleged failure Executive Service (CES) position, but did not have the corresponding eligibility for it; hence, the
to notify him of a hearing relating to the issuance of the challenged Circular. CSC correctly disapproved his appointment.

The Facts:
The classification of positions in career service was a quasi-legislative, not a quasi-judicial, issuance. “Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone Authority
This distinction determines whether prior notice and hearing are necessary.
(EPZA), now the Philippine Economic Zone Authority (PEZA), on July 1, 1996 as Department
Manager of the Legal Services Department. He held a civil service eligibility for the position of
In exercising its quasi-judicial function, an administrative body adjudicates the rights of persons Department Manager, having completed the training program for Executive Leadership and
before it, in accordance with the standards laid down by the law. 60 The determination of facts and Management in 1982 under the Civil Service Academy, pursuant to CSC Resolution No. 850 dated
the applicable law, as basis for official action and the exercise of judicial discretion, are essential for April 16, 1979, which was then the required eligibility for said position.
the performance of this function.61 On these considerations, it is elementary that due process Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan Authority
requirements, as enumerated in Ang Tibay, must be observed. These requirements include prior (SBMA) on a contractual basis. On January 1, 1999, petitioner was issued by SBMA a permanent
notice and hearing.62 employment as Department Manager III, Labor and Employment Center. However, when said
appointment was submitted to respondent Civil Service Commission Regional Office No. III, it was
disapproved on the ground that petitioner’s eligibility was not appropriate. Petitioner was advised
On the other hand, quasi-legislative power is exercised by administrative agencies through the by SBMA of the disapproval of his appointment. In view thereof, petitioner was issued a temporary
promulgation of rules and regulations within the confines of the granting statute and the doctrine of appointment as Department Manager III, Labor and Employment Center, SBMA on July 9, 1999.
non-delegation of certain powers flowing from the separation of the great branches of the
government.63 Prior notice to and hearing of every affected party, as elements of due process, are not Ruling:
required since there is no determination of past events or facts that have to be established or
ascertained. As a general rule, prior notice and hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct. 64 Approval Required for  Permanent Appointment

Significantly, the challenged Circular was an internal matter addressed to heads of departments, A permanent appointment in the career service is issued to a person who has met the requirements
bureaus and agencies. It needed no prior publication, since it had been issued as an incident of the of the position to which the appointment is made in accordance with the provisions of law, the rules
administrative body's power to issue guidelines for government officials to follow in performing and the standards promulgated pursuant thereto.It implies the civil service eligibility of the
their duties.65 appointee. Thus, while the appointing authority has the discretion to choose whom to appoint, the
choice is subject to the caveat that the appointee possesses the required qualifications.

Final Issue:

5
 To make it fully effective, an appointment to a civil service position must comply with all legal
requirements. Thus, the law requires the appointment to be submitted to the CSC which will
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. The applicable provision of the
Civil Service Law reads:

“SECTION 9.  Powers and Functions of the  Commission. — The Commission shall administer

the Civil Service and shall have the following powers and functions:

 “(h) Approve all appointments, whether original or promotional, to positions in the civil service,

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