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SECRETARY
OF EDUCATION, PERSONNEL OFFICER,
G. R. No. L-35236 June 29, 1979 -versus-HON.
MAGNO S. GATMAITAN [ponente]
MELENCIO-HERRERA, J.: This is a Petition for Review on Certiorariof the Decision of the Court of Appeals promulgated on June 14, 1972 in CA-G. R. No. 41078-R, reversing the Decision of the Court of First Instance of Manila, Branch XXIV dated November 9, 1967 in Civil Case No. 60784, entitled Alberto S. Ferrer vs. Secretary of Education, et al., for Injunction with Damages. The present controversy revolves around the Position of Auditor II, Range 41, in the Department of Education claimed by respondent Alberto S. Ferrer to be rightfully his but to which private petitioner Lilia T. Arevalo was appointed by then Secretary of Education Alejandro Roces on May 10, 1965.cralaw:red The records show that, on May 18, 1957, Ferrer was issued an appointment by the Secretary of Education as Clerk, School Finance Division, Department of Education with compensation at the rate of Pl,800.00 per annum, effective April 29, 1957.[1] His educational qualifications were listed as "A.A., 4th Year Commerce; civil service eligibility: 2nd Grade." On March 27, 1958, acting upon Ferrer's request for[2] reclassification, the Wage and Position Classification Office [WAPCO, for short] "allocated" his position to that of Auditing Aide I, Range 28, with a salary adjustment of P1,951.20 per annum, effective July 1, 1957.cralaw:red On December 21, 1960, Ferrer was extended an appointment as Clerk [Chief of Section], School Finance Division, in the Bureau of Public Schools, with compensation at the rate of P2,700.00 per annum, "the appointment to take effect from July 1, 1956 to June 30, 1960." This appointment was approved by the commissioner of Civil Service on the basis of his second grade eligibility and educational qualifications of "A.A., 4th Yr. Comm.".[3] On July 6, 1961, Ferrer received a letter-advice from the Acting Director of the Bureau of Public Schools that for the Plantilla Fiscal Year 1960-61, his position of Auditing Aide I, R-28, had been allocated by WAPCO to the class of Auditor II, R-41, with an adjusted salary of P3,493.00 per annum, effective July 1, 1960.[4] Apparently, WAPCO acted favorably on Ferrer's request for re- classification of position.[5] In the WAPCO Record of Plantilla-Allocation Changes dated November 7, 1960, the position of Auditor II, R-41 was described as new" with the note "converted positions are considered new positions for purposes of classification.[6] No new appointment was extended to Ferrer, however.cralaw:red On August 11, 1961, the Director of Public Schools wrote Ferrer advising him of the "allocation" by WAPCO of his position to the class of Auditor II, R-41, for the Plantilla Fiscal Year 1961-1962, with a salary adjustment of P4,404.00 per annum effective July 1, 1961. It should be noted that this letter-advice contained the statement that "under this WAPCO salary adjustment, your status is provisional.[7] In a letter dated September 6, 1962, Ferrer was asked by the Director of Public Schools to signify whether he was willing to accept appointment under a provisional status at P4,404 per annum, effective July 1, 1961, and at P4,632 per annum, effective July 1, 1962, considering that the records show that he was only a Second Grade civil service eligible, the maximum salary allowable for which was P3,720.00 per annum. In the same letter, Ferrer was informed that "as a provisional employee, you are subject to replacement by an applicant with appropriate educational qualification and civil service eligibility."[8] On September 20, 1962, Ferrer replied by endorsement expressing his willingness to accept appointment under a status.[9] It should be noted, however, that neither was any formal provisional appointment as Auditor II, R-41, extended to Ferrer.cralaw:red In the meantime, Ferrer took the civil service examinations for "Supervisor (lst Grade) Promotional" on March 31, 1962 the results of which were released on May 8, 1964 showing that he had passed the same with a rating of 72.25%.[10] In a 3rd Endorsement dated January 20, 1965 of the Commissioner of Civil Service to the Secretary of Education, the latter was advised that the position occupied by Ferrer was that of Clerk [Chief of Section] at P2,760.00 per annum effective July 1, 1956 to June 30, 1960, and that there was no record of any appointment in due form extended to him as Internal Auditor II, R-41. Further, that under the WAPCO Salary Adjustment his status was provisional. This communication was brought about by Ferrer's opposition to the appointment of Mrs. Lourdes Reyes as Internal Auditor III in the Department of Education.[11] Effective February 1, 1965, Ferrer's salary was ordered reduced to P2,760 per annum.[12] On February 3, 1965, the Acting Director of Public Schools wrote the Secretary of Education, proposing the appointment of Ferrer to the position of Auditor II, R-41, at P3,493.00 per annum to have retroactive effect as of July 1, 1960, the date of termination of the last appointment extended to Ferrer. The letter went on further to state that "thru an oversight, a WAPCO notice of salary adjustment was issued for Mr. Ferrer as Auditor II at P3,493.00 per annum effective July 1, 1960, instead of an appointment.[13] In a lst Endorsement dated February 17, 1965, the Secretary of Education disapproved the appointment proposed, in this tenor: It is noted in the basic communication that no appointments were issued to cover the change of designations of the appointee as Auditing Aide 1, Auditor II, and Internal Auditor II. It is further noted that the appointee does not possess the appropriate civil service eligibility, which prompts this Office to conclude that no appointments were issued, not due to oversight but because of the fact that he was not qualified at the time the position was reclassified by the WAPCO In view thereof, the attached appointment cannot be approved by this Office. It is suggested that a fully qualified employee be appointed to the position.[14] In a 2nd
Endorsement dated March 2, 1965, Ferrer
sought the intercession of the Director of Public Schools and others
for
the approval of his appointment contending that he was not only
qualified
but had actually performed the duties of the position for several years;[15]
but his efforts were unavailing.
On May 10, 1965, the Secretary of Education appointed private petitioner Lilia T. Arevalo, a B.S.C.-CPA and, therefore, a First Grade civil service eligible, to the position of Internal Auditor II, Range 41, with compensation at P4,860.00 per annum. "vice Mr. Alberto Ferrer to be shifted to another item." The appointment was approved by the Civil Service Commissioner.[16] On May 5, 1965, Ferrer filed the original Complaint for Injunction and Damages, which was amended three times. After due trial, on November 9, 1967, the trial Court rendered judgment, the dispositive portion of which reads:
Without prejudice to the interested party or parties obtaining similar or other proper provisional relief before the appropriate forum in the event of and in the course of appeal, the writ of preliminary injunction issued on May 15, 1965 and the temporary restraining order reffered to in the order of May 10, 1966 and defined by the Order of July 8, 1966, are hereby set aside. In reaching this conclusion, the trial Court considered Ferrer stopped from claiming any right to the disputed position in view of his 2nd Indorsement dated September 20, 1962,[17] expressing his willingness to accept a provisional appointment as Auditor II.[18] Said the trial court:
Exhibit 19-A manifests an admission by plaintiff not only of the need for a new appointment but of the fact that plaintiff had not yet been given that requisite appointment.[19] Ferrer's Motion for Reconsideration having been denied, he appealed to the Court of Appeals, which on June 14, 1972, promulgated a Decision[*] reversing the trial Court, thus:
In reaching this conclusion, the Court of Appeals opined:
Hence, this Petition for Review on Certiorari filed on June 30, 1972 by petitioner public officials and appointee Lilia T. Arevalo, interposing the following assignments of error: While we differ from respondent Court's conclusion that Ferrer is deemed automatically appointed to the disputed position we hold that he is rightfully entitled to the same.cralaw:red The appointment of Ferrer as Clerk [Chief of Section] dated December 21, 1960, effective July 1, 1956 to June 30, 1960[21] was classified by WAPCO to Auditing Aide I, Range 28, effective July 1, 1957, with a salary adjustment of Pl,951.20 per annum. Under Rep. Act. No. 2700, this re-classification had no effect on the tenure of Ferrer, and he was deemed to have been appointed to that position and class.
That position was re-classified to Auditor II, Range 41 [the disputed position], with an adjusted salary of P3,493.00 per annum, effective July 1, 1962.[23] The Record of Plantilla Allocation Changes dated November 7, 1960 of the WAPCO considered the position as "new" with the note that converted positions are considered new positions for purposes of classification.[24] Accordingly, a new appointment was necessary Budget Circular No. 120, dated June 28, 1961, the pertinent section of which is quoted hereunder:
Having occupied the position before upgrading, the question posed is whether Ferrer was qualified for that position. Petitioners contend that he was not. arguing that on November 7,1960, when the position was up-graded, he was only a second grade eligible. This submission is not well taken. Under the Qualification Standards Section of the Civil Service Commission, the requirements for the disputed position are:
EXPERIENCE Six [6] years experience in Accounting or Auditing work, 2 years of which must have been in supervisory capacity. APPROPRIATE CIVIL SERVICE ELIGIBILITY Auditor, however, pending the establishment of the Auditor register, the following may be considered most nearly appropriate: RA 1080 (CPA); RA 1080 (BAR); FIRST GRADE[26] ln respect of education, Ferrer graduated from the University of the East as of October, 1956 with the degree of Bachelor in Business Administration, major in Accounting.[27] Therefore, he meets the educational requirements. As to experience, Ferrer had been performing auditing functions even before July, 1960. Thus, on January 24, 1957, the acting Director of Public Schools designated Ferrer as Audit clerk in the Office of the Cashier and Disbursing Officer of the ,Bureau of Public Schools. In the same communication, Ferrer was also instructed to report to the Auditor of that Bureau for training until "thoroughly acquainted with the process of auditing.[28] On September 8, 1959, Auditor General Gimenez wrote the Director of Public Schools stating that "after screening your nominees only Mr. Alberto S. Ferrer has been selected" for the Fifth Classroom Training Course on Internal Auditing.[29] A Certification from the General Auditing Office dated November 6, 1959 indicates that Ferrer had satisfactorily completed the in-service training course in Internal Auditing.[30] Another Certification, dated August, 1960, attests that Ferrer had completed a course of instruction in Government Auditing from January, 1960 to August, 1960 under the Technical Cooperation Scheme of the Colombo Plan.[31] OnDecember 9, 1964, the Acting Asst. Director of Public Schools wrote a letter to the Division Superintendent of Schools, Cebu City, introducing Ferrer as Chief Internal Auditor of the Bureau and authorizing him "to visit your division and look into the fiscal and management phases of school accounts" and whose "services may be availed of on problems regarding handling of school funds and property, if any.[32] With respect to Ferrer's supervisory experience, suffice it to state that since the positions involved are classified as Chiefs of Section,[33] necessarily the incumbents would perform supervisory functions. It will have to be concluded then that Ferrer also possessed the required experience.cralaw:red Coming now to Ferrer's civil service eligibility - it is true that when Ferrer's position was upgraded by WAPCO to Auditor I I, R-41, effective July 1, 1960[34] his eligibility was that of 2nd Grade. But considering that pursuant to Budget Circular No. 120, dated June 28, 1961, supra, employees occupying before July 1, 1961 the positions and items which have been upgraded shall be the ones issued such appointments, if qualified, and as pointed out in the Commissioner's Report submitted for the trial Court on January 10, 1966 by Atty. Celerina Gotladera Chief, Qualification Standard Section, Recruitment and Examining Division of the Civil Service Commission, Ferrer could have been issued a provisional appointment from July 1, 1960 to March 31, 1962 since the Civil Service Commission did not have then an appropriate register of auditors. On March 31, 1962, Ferrer passed the "Supervisor (First Grade) Promotional examination," and while he was notified thereof only on May 8, 1964, the same retroacts to the day after the date of examination. So that from April 1, 1962, Ferrer's status could have been changed to permanent, as[35] To all intents andpurposes, therefore, from April 1, 1962 to February 1, 1965 when Ferrer was relieved of his duties and functions as Auditor II, he was the de facto Auditor II lacking only a formal appointment to the same. At this juncture, it may also be pointed out that when Ferrer signified his willingness to accept a provisional appointment to the disputed position on September 20, 1962, he was already actually qualified for the disputed position. Likewise, when petitioner Arevalo was appointed in May, 1965, Ferrer was himself also fully qualified.cralaw:red In fine, it has to be held that Ferrer is entitled to a formal appointment to the position of Auditor II, R-41 of the Bureau of Public Schools, effective April 1, 1962. This conclusion is further bolstered by considerations of justice and equity considering that official documents proceeding from the Department of Education itself,[36] the yearly Plantilla of Personnel of the Bureau of Public Schools,[37] School Finance Division, an referred to Ferrer as Auditor II, besides the fact that he had been discharging the functions of that office.cralaw:red Having arrived at the foregoing conclusion, a discussion on whether the notation on petitioner Arevalo's appointment "vice Mr. Alberto S. Ferrer to be shifted to another item" should be considered a condition precedent or a condition subsequent, would already be surplusage.cralaw:red WHEREFORE, modifying the appealed Decision of the appellate Court, We declare that Alberto S. Ferrer is entitled to a formal appointment to the position of Auditor II, R-41, Bureau of Public Schools, Department of Education, effective April 1, 1962, and to collect his salary as such from February 1, 1965, but with no entitlement to damages from petitioners. The annulment of the appointment of petitioner Lilia T. Arevalo, dated May 10, 1965, is hereby affirmed. Without pronouncement as to costs.cralaw:red SO ORDERED.cralaw:red Teehankee, Makasiar, Fernandez, Guerrero, and De Castro, JJ., concur.cralaw:red ___________________________________
[1]
Exh. 23, p. 160, Folder of Exhibits.
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