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*
G.R. No. 85479. March 3, 1992.

PERFECTO ESPAÑOL, petitioner, vs. THE HON. CIVIL

SERVICE COMMISSION, HON. FEDERICO N. ALDAY,
JR., in his capacity as ADMINISTRATOR, NATIONAL
IRRIGATION ADMINISTRATION, and ORLANDO L.
BULSECO, respondents.

Civil Service; Appointments; Appointment is essentially

discretionary.—Fundamental is the rule that appointment is an
essentially discretionary power and must be performed by the
officer in whom it is vested according to his best lights, the only
condition being that the appointee shall 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. Consequently, it was further held that where respondent
commission has acknowledged that both the petitioner and the
private respondent were qualified for the contested position, that
recognition alone rendered it functus officio in the case and
prevented it from acting further thereon except to affirm the
validity of the appointment made by the head of the office.

Same; Same; Same; “Next-in-rank” rule not mandatory.—In a

recent case, we noted further “that even if the vacancy here had
been filled by promotion rather than by lateral transfer, the
concept of

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* EN BANC.

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‘next in rank’ does not import any mandatory or peremptory

requirement that the person next in rank must be appointed to
the vacancy. What Section 19(3) of P.D. No. 807, the Civil Service
Law, provides is that if a vacancy is filled by a promotion, the
person holding the position next in rank thereto ‘shall be
considered for promotion.’ ” The rationale advanced for the
limitation imposed on the next-in-rank rule is because the rule
neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such
person to the next higher position. Hence, to apply the next-
inrank rule peremptorily would impose a rigid formula on the
appointing power contrary to the policy of the law that among
those qualified and eligible, the appointing authority is granted
discretion and prerogative of choice of the one he deems fit for
appointment.

SPECIAL CIVIL ACTION for certiorari to review the

resolution of the Civil Service Commission.

The facts are stated in the opinion of the Court.

     Pedro R. Perez, Jr. for petitioner.
          Urbina & Associates Law Office for private
respondent.

REGALADO, J.:

In this special civil action for certiorari,

1
petitioner seeks
the reversal of Resolution No. 88-755, issued by public
respondent Civil Service Commission on September 21,
1988 in MSPB Case No. 1564, which reversed the decision
of the Merit Systems Protection Board and confirmed the
appointment of private respondent Orlando L. Bulseco.
In September, 1986, the position of Regional Manager of
the National Irrigation Administration, Regional Office No.
2, Cauayan, Isabela, became vacant. At that time,
petitioner Perfecto Español was Chief of the Engineering
Division, while private respondent Orlando L. Bulseco was
Chief Design Engineer. In the organizational chart of the
National Irrigation Administration (NIA), the position of
Chief Design Engineer is below the Chief of the
Engineering Division, and the latter is considered next-in-
rank to the position of Regional Manager.
Private respondent Bulseco was appointed to the vacant
posi-

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1 Annex D. Petition; Rollo, 36.

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Español vs. Civil Service Commission

tion of Regional Manager effective October 1, 1986,

pursuant to Resolution No. 5302-86 which was passed by
the Board of Directors of NIA. As2
a consequence, petitioner
Español filed a letter protest with the Merit Systems
Protection Board (MSPB), alleging that petitioner is the
employee next-in-rank to the position of Regional Manager
and, as such he has promotional priority over Bulseco.
MSPB referred the protest to the NIA Administrator for
appropriate action. The protest was dismissed by the NIA
Administrator for lack of merit on the ground that “in the
evaluation conducted, Mr. Bulseco has advantage over 3
Mr.
Español on the factors of performance and potential.”
Petitioner appealed the dismissal of his protest to the
MSPB. As a result of the evaluation made on the
qualifications of Español and Bulseco, taking into
consideration such factors as educational attainment,
experience, eligibility and training, the MSPB ruled that
the individual qualifications of the contestants exceed the
qualification requirements, especially those of respondent
Bulseco. However, by virtue of petitioner’s ranking in the
organizational chart of NIA and pursuant to the provisions
of Sections 2 and 4 of Resolution No. 83-343 (Rules on
Promotion) of the Civil Service Commission, the MSPB
“directed that Engr. Perfecto C. Español be appointed
instead to the4 position of Regional Manager, NIA Regional
Office No. 2.”
Thereafter, respondent Bulseco appealed to the Civil
Service Commission (CSC). In reversing the decision of the
MSPB, thereby sustaining the appointment of private
respondent, the CSC held in its Resolution No. 88-755 of
September 21, 1988 that:

“x x x the Commission finds that prior to Bulseco’s appointment

as Regional Manager of NIA, Region 2, he was appointed Project
Manager of the Chico River Project in Tabuk, Kalinga-Apayao
under a permanent status in September, 1979. Notably, the
position is of

_______________

2 Annex B, id.,; ibid., 28.

3 Comment for Public Respondent, 4; Ibid., 74.
4 Annex C, id.; ibid., 54.

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job level 22, as compared to that of a Division Manager (level 20)

and Regional Manager (level 23). At that time protestant Español
was already a Chief Regional Engineer (now Division Manager) of
Region 2, a position with job level 20. However, in that same year
Bulseco accepted an offer for a position of Irrigation Consultant in
Indonesia, prompting him to resign from his position as Project
Manager. When Bulseco came back from abroad in 1981, he was
offered the only available position of Chief Design Engineer of
NIA, Region 2. This is a clear demotion but he accepted the same
with an assurance from the NIA Administrator that he would
soon be promoted to a higher position in the Region. Shortly
thereafter, or on October 8, 1981, he was assigned as Acting
Provincial Irrigation Manager (PIM) for the province of Cagayan.
This position is of a job level 20. On October 16, 1983, he was
designated Coordinator of the ‘National Irrigation Systems
Improvement Project’ (NISIP), a foreign-assisted project, at
Abulug-Apayao. This position is again of job level 20.
“Thus we find merit as to Español’s contention that Bulseco
was under him because insofar as actual plantilla position is
concerned, the position of Bulseco is still Chief Design Engineer, a
position really under Español. However, Bulseco, because of his
designations, performed the duties and functions appurtenant to
that of PIM and Coordinator of NISIP which positions are of equal
and next-in-rank, respectively, to the contested position. So that
prior to his appointment to the contested position, he was actually
the Coordinator of NISIP.
“On the other hand, the Organizational Chart of NIA shows
that there are six (6) next-in-rank positions to the contested
position of Regional Manager and that, all these are held by other
employees, including Mr. Español.
“On the third ground, we take notice (of) that portion of the
MSPB decision which states:

‘From the above comparative data, it is evident that both contestants meet
the qualification requirements for the position. In fact their individual
qualifications exceed those requirements especially that (sic) of Engr.
Bulseco.’

Without further delving into the detailed comparative

qualifications of the contestants, the Commission considers this
an indication or an admission that Engr. Bulseco indeed possesses
superior qualifications than Español, not discounting his relevant
experience abroad. It is shown, however, that the MSPB accorded
more weight to the finding that Español is the one next-in-rank to
the contested position and pursuant to Section 4 of CSC
Resolution No. 83-343, which states:

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‘Section 4. An employee who holds a next-in-rank position who is deemed

the most competent and qualified x x x shall be promoted to the position
when it becomes vacant.’

Español has an edge and promotional priority over Engr. Bulseco.

But granting arguendo that Bulseco is not really the person next-
in-rank, the MSPB seems to have missed the second paragraph of
the same section which provides:

‘However, the appointing authority may promote an employee who is not

next-in-rank but, who possesses superior qualification and competence
compared to a next-in-rank x x x.’

This Commission, in several occasions, resolved the issue in

favor of employees who were not next-in-rank but were promoted
to the contested position. In the case of Corpuz vs. Lopez, Jr.,
March 1, 1982, the then Commission ruled that:

‘Although both may be considered for promotion and that the next-in-
rank should be given preference for promotion, the appointing authority
may appoint an employee who is not next-in-rank so as to choose only the
most competent and best qualified for the position.’
xxx

“WHEREFORE, foregoing premises considered, this

Commission resolved to find as it hereby finds the appeal
meritorious. Accordingly, the decision of MSPB dated April 14,
1988 is therefore set aside and the appointment of Orlando L.
Bulseco as5 Regional Manager, Cauayan, Isabela, is thus
confirmed.”

Hence, this petition.

At the outset, we affirm the fact that the CSC acted
correctly in reversing the decision of the MSPB and in
confirming the appointment of private respondent Bulseco
as Regional Manager. We shall here rule on the merits of
the petition of Español who insists that the MSPB did not
err in setting aside the appointment made by the NIA
Administrator.
Section 19, paragraph 6, Article VIII of Presidential
Decree No. 807 defines a qualified next-in-rank as an
employee appointed on a permanent basis to a position
previously determined to be next-in-rank to the vacancy
proposed to be filled and who meets the requisites for
appointment thereto as previ-

_______________

5 Annex D, id.; ibid., 57.

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Español vs. Civil Service Commission

ously determined by the appointing authority and approved

by the respondent commission.
Pursuant to the provisions of Section 9(b) and Section 19
of Presidential Decree No. 807, the CSC promulgated
Resolution No. 83-343 (Rules on Promotion), Sections 2 and
4 of which provide:

“Section 2. Whenever a position in the first level becomes vacant,

the employees in the ministry or agency who occupy positions
deemed to be next-in-rank to the vacancy, shall be considered for
promotion. In the second level, those employees in the
government service who occupy next-in-rank position shall be
considered for promotion to the vacancy.”
“Section 4. An employee who holds a next-in-rank position who
is deemed the most competent and qualified, possesses an
appropriate civil service eligibility, and meets the other conditions
for promotion shall be promoted to the higher position when it
becomes vacant.
However, the appointing authority may promote an employee
who is not next-in-rank but, who possesses superior qualifications
and competence compared to a next-in-rank 6
employee who merely
meets the requirements for the position.”

Petitioner
7
contends that on the basis of the organizational
chart of the NIA, he is considered as next-in-rank to the
contested position and, therefore, he has a promotional
priority over respondent Bulseco. He likewise claims that
assuming that the second paragraph of Section 4 of
Resolution No. 83-343 provides an exception to the next-in-
rank rule, the same shall apply only when the person who
is next-in-rank merely meets the minimum requirements,
but not where, as in the case of herein petitioner, the
qualifications of the next-in-rank far exceed the
requirements for appointment to the contested position. In
other words, petitioner is of the opinion that one who is not
next-in-rank may be promoted only if the next-in-rank
merely meets the minimum requirements for the position.
However, where the qualifications of the next-in-rank
exceeds the minimum requirements, it is mandatory that
the next-in-

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6 Comment of Public Respondent, 10; ibid., 80.

7 Annex E, Petition; ibid., 62.

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rank be promoted to the position.

The contention is devoid of merit.
Fundamental is the rule that appointment is an
essentially discretionary power and must be performed by
the officer in whom it is vested according to his best lights,
the only condition being that the appointee shall 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 considerations8 of
wisdom which only the appointing authority can decide.
Consequently, it was further held that where respondent
commission has acknowledged that both the petitioner and
the private respondent were qualified for the contested
position, that recognition alone rendered it functus officio
in the case and prevented it from acting further thereon
except to affirm the validity of the appointment made by
the head of the office.
In the case at bar, there is no dispute that both
petitioner Español and private respondent Bulseco exceed
the qualification standards for appointment to the position
of Regional Manager. It is likewise not denied that, as
originally found by the Administrator, respondent Bulseco
is more qualified than petitioner. The fact alone that both
contestants meet the minimum qualifications required by
law should have restrained MSPB from acting on, much
less in granting, the appeal of herein petitioner except, of
course, to affirm the appointment of private respondent.
Unfortunately, the MSPB opted to disregard the choice
made by the appointing authority and appointed herein
petitioner instead, invoking therein the next-in-rank rule
provided for under Section 19 of Presidential Decree No.
807, as well as Sections 2 and 4 of CSC Resolution No. 83-
343.
In
9
the case of Taduran vs. Civil Service Commission, et
al.,

_______________

8 Luego vs. Civil Service Commission, et al., 143 SCRA 327 (1986);
Patagoc vs. Civil Service Commission, et al., 185 SCRA 411 (1990);
Lapinid vs. Civil Service Commission, et al., G.R. No. 96298, May 14,
1991.
9 131 SCRA 66 (1984).

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this Court had the opportunity to pass upon the extent of

the applicability of the next-in-rank rule. The pertinent
provisions of Presidential Decree No. 807 state:

“Sec. 19. Recruitment and Selection of Employees.—

xxx

(3) When a vacancy occurs in a position in the second level of

the Career Service as defined in Section 7, the employees
in the government service who occupy the next lower
positions in the occupational group under which the
vacant position is classified and in other functionally
related occupational groups and who are competent,
qualified and with the appropriate civil service eligibility
shall be considered for promotion.
xxx
(5) If the vacancy is not filled by promotion as provided herein
the same shall be filled by transfer of present employees
in the government service, by reinstatement, by re-
employment of persons separated through reduction in
force, or by appointment of persons with the civil service
eligibility appropriate to the positions.
xxx
(6) A qualified next-in-rank employee shall have the right to
appeal initially to the department head and finally to the
Office of the President an appointment made (1) in favor
of another next-in-rank employee who is not qualified, or
(2) in favor of one who is not next-in-rank, or (3) in favor of
one who is appointed by transfer and not next-in-rank, or
by reinstatement, or by original appointment if the
employee making the appeal is not satisfied with the
written special reason or reasons given by the appointing
authority for such appointment: x x x.”

which Taduran interpreted in this wise:

“We find no mandatory nor peremptory requirement in the

foregoing provision that persons next-in-rank are entitled to
preference in appointment. What it does provide is that they
would be among the first to be considered for the vacancy if
qualified, and if the vacancy is not filled by promotion, the same
shall be filled by transfer or other modes of appointment. x x x.”
10
In Medenilla vs. Civil Service Commission, et al., this
Court

_______________

10 194 SCRA 278 (1991)

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went further by holding that the next-in-rank rule may be

disregarded even in case of promotions. Thus:

“x x x We have already held in cases subsequent to Millares that

the next-in-rank rule is not absolute; it only applies in cases of
promotions x x x. And even in promotions, it can be disregarded
for sound reasons made known to the next-in-rank. The
appointing authority, under the Civil Service Law, is allowed to
fill vacancies by promotion, transfer of present employees,
reinstatement, reemployment, and appointment of outsiders who
have appropriate civil ser-vice eligibility, not necessarily in that
order. x x x There is no legal fiat that a vacancy must be filled
only by promotion; the appointing authority is given wide
discretion to fill a vacancy from among the several alternatives
provided for by law.”
11
In a recent case, we noted further “that even if the
vacancy here had been filled by promotion rather than by
lateral transfer, the concept of ‘next in rank’ does not
import any mandatory or peremptory requirement that the
person next in rank must be appointed to the vacancy.
What Section 19(3) of P.D. No. 807, the Civil Service Law,
provides is that if a vacancy is filled by a promotion, the
person holding the position next in rank thereto ‘shall be
considered for promotion.’ ”
The rationale advanced for the limitation imposed on
the next-in-rank rule is because the rule neither grants a
vested right to the holder nor imposes a ministerial duty on
the appointing authority to promote such person to the
next higher position. Hence, to apply the next-in-rank rule
peremptorily would impose a rigid formula on the
appointing power contrary to the policy of the law that
among those qualified and eligible, the appointing
authority is granted discretion and prerogative
12
of choice of
the one he deems fit for appointment.
Time and again we have held on to the principle that the
determination of who among several candidates for a
vacant position has the best qualifications is vested in the
sound

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11 Abila vs. Civil Service Commission, et al., G.R. No. 92573, June 3,
1991.
12 Santiago, Jr. vs. Civil Service Commission, et al., 178 SCRA 733
(1989).

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discretion of the department head or appointing authority

and not in the Civil Service Commission. Every particular
job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of
academic units in a certain course, seminars attended, and
so forth, may be valuable but so are such intangibles as
resourcefulness, team spirit, courtesy, initiative, loyalty,
ambition, prospects for the future, and best interests of the
service. Given the demands of a certain job, who can do it
best should be left to the head of the office concerned
provided the legal requirements for the office are satisfied.
The Civil Service Commission cannot substitute 13
its
judgment for that of the head of office in this regard.
Elucidating further, we held in Abila vs. Civil Service
Commission, et al., supra, that “(t)he head of the office is
the person on the spot. He occupies the ideal vantage point
from which to identify and designate the individual who
can best fill the post and discharge its functions in the
government agency he heads. The choice of an appointee
from among those who possess the required qualifications
is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the head
of the office concerned, the person most familiar with the
organizational structure and environmental circumstances
within which the appointee must function.”
We deem it necessary, under the circumstances herein
obtaining, to declare that Section 4 of CSC Resolution No.
83-343 has been superseded by Section 2 of Rule 3 of CSC
Resolution No. 89-799 which reads:

“Section 2. Positions in the Second Level.—When a vacancy occurs

in the second level of the career service as herein defined, the
employees in the department who occupy the next lower positions
in the occupational group under which the vacant position is
classified, and in other functionally related occupational groups,
who are competent and qualified and with appropriate civil
service eligibility shall be considered for appointment to the
vacancy.”

_______________

13 Gaspar vs. Court of Appeals, et al., 190 SCRA 774 (1990); Chang vs.
Civil Service Commission, et al., 191 SCRA 663 (1990).

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In the aforestated case of Abila, we made a categorical

pronouncement that “(w)hen, in the exercise of its rule-
making power, it promulgated Section 4 of its earlier
Resolution No. 83-343, the Commission clearly exceeded
the scope of its statutory authority since the Civil Service
Law itself, in Section 19(3) of P.D. No. 807, had simply
provided that persons next in rank who are qualified ‘shall
be considered for promotion.’ The current regulation found
in Section 2 of Rule III of the Commission’s Resolution No.
89-779 is, fortunately, more consistent with the
Commission’s enabling statute.”
Parenthetically, anent the observation of respondent
commission and private respondent that Section 19(6) of
Presidential Decree No. 807 has been repealed by Section 8
of Presidential Decree No. 1409, suffice it to say that it is
the power of review by the President, not the next-in-rank
rule, which has been repealed by the latter decree.
FOR ALL THE FOREGOING CONSIDERATIONS, no
abuse of discretion being imputable to public respondents
in this case, the petition at bar is hereby DISMISSED.
SO ORDERED.

          Narvasa (C.J.), Melencio-Herrera, Gutierrez, Jr.,

Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Davide, Jr., Romero and Nocon, JJ., concur.

Petition dismissed.

Note.—Power of appointment is essentially

discretionary and the Commission cannot substitute its
judgment for that of the appointing power. (Patagoc vs.
Civil Service Commission, 185 SCRA 411.)

——o0o——

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