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[G.R. No. 145895.January 30, 2001]
ALBAO vs. CA, et al.
EN BANC
Gentlemen:
Quoted hereunder, for your information is a resolution of this Court dated JAN 30 2001.
G.R. No. 145895(Alexis C. Albao vs. Hon. Court of Appeals, Hon. Corazon Alma De Leon and Hon Thelma Gaminde, in their capacity as CSC Chairman and Commissioner, respectively, Alberto G. Romualdez, Jr., in his capacity as the Secretary of Health, Former DOH Sec. Carmencita N. Reodica and Jose Daep, Jr., etc., et al .)
Petitioner assails the decision of the Court of Appeals declaring thusly:
WHEREFORE, premises considered, the present petition for review is hereby GIVEN PARTIAL DUE COURSE. Consequently, CSC Resolution Nos. 991498 and 992733 are hereby MODIFIED in the sense that the position of Chief of Hospital III at the Bicol Regional Training and Teaching Hospital (BRTTH) is hereby declared VACANT.
Needless to state, petitioner's prayer for the issuance of a preliminary injunction is hereby DENIED for lack of legal and factual bases.
Also, petitioner's prayer for the issuance of a writ of mandamus is hereby DENIED for lack of merit.
(p. 44, Rollo.)
The instant controversy sprung from the permanent appointment of private respondent Dr. Jose Daep, Jr. to the position of Chief of Hospital III at the Bicol Regional Training and Teaching Hospital. However, said appointment was subject to a condition annotated in his appointment paper to the effect that private respondent shall not have security of tenure until he obtains a Career Executive Service (CES) eligibility.
On March 13, 1998, displeased with the subject appointment, petitioner filed a letter-protest with the Office of the Secretary of Health, arguing that the appointment was issued in violation of the Civil Service Law because private respondent had no CES eligibility, and demanding that the appointment be recalled and another one be issued in petitioner's name as the qualified next-in-rank officer or employee.
In dismissing the protest, the Committee on Evaluation and Protest invoked Department of Justice Opinion No. 16, Series of 1997, which states that only the Career Executive Service (CES) eligibility conferred by the CESB is the appropriate eligibility for third level positions in the career service pursuant to the express mandate of Presidential Decree No. 807 and reiterated in Executive Order No. 292. It was further held that since all candidates for the position lacked the required eligibility, the appointment was based on the outcome of the evaluation conducted by the Department of Health Selection Board wherein privateobtained the highest grade as against petitioner who was placed last among 6 applicants.
Dissatisfied, petitioner appealed to the Civil Service Commission which upheld the Department of Health ratiocinating that: (a) since petitioner is not the next-in-rank employee, the appeal should be dismissed because Section 47 of the Uniform Rules of Procedure in the Conduct of Administrative Investigations provides that a protest can be dismissed if the protestant is not the next-in-rank employee; (b) while petitioner holds the appropriate eligibility for permanent appointment to the contested position, the Commission recognizes the wide latitude of discretion of the appointing authority as to whom to appoint; and (c) at any rate, the appointment of private respondent is only temporary in nature.
In a motion for reconsideration, petitioner contended that because Dr. Daep, Jr.'s appointment is only temporary per CSC declaration, the appointment expired as of February 23, 1999, a year after the appointment was issued. Again, petitioner sought the termination of private respondent's appointment and for him to desist from further performing the duties and responsibilities of Chief of Hospital III of BRTTH.
On December 15, 1999, the CSC affirmed its earlier resolution and further clarified its position on the nature of appointment of the private respondent. Thus, the CSC held that "the appointment does not expire nor does it have to be renewed. What makes it temporary, in a sense, is that the appointee does not have security of tenure and may be removed anytime by the appointing authority depending on his discretion."
Unperturbed, petitioner elevated the matter to the Court of Appeals via a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended, with a prayer for preliminary injunction and mandamus.
The Court of Appeals declared the vacancy of the contested position but denied petitioner's prayers. The Secretary and the Regional Director of the Department of Health reappointed private respondent.
Unfazed, petitioner filed the instant Special Civil Action for Certiorari with Quo Warranto and Prayer to Cite Some Respondent for Indirect Contempt of Court which must likewise fail.
The Court finds no abuse of discretion, much less grave, committed by the Court of Appeals in deciding as it did.
What we have here is another instance of abuse of due process. Pertinent to the case at bar is Section 47 of the Uniform Rules of Procedures in the Conduct of Administrative Investigations in the Civil Service Commission which provides that one of the grounds for dismissal of a protest is when the protestant is not a next-in-rank employee. Perusal of the record reveals that while petitioner claims that he holds a next-in-rank position in Regional Health Office No. 5, the DOH System of Ranking of Positions considers positions with salary grade 25 such as Chief of Hospital II, Chief of Medical Professional Staff I and Chief of Sanitarium II as next-in-rank to the position of Chief of Hospital III. Petitioner was only included in the screening because he specifically applied for the contested position even if he is just a City Health Officer I.
More importantly, Section 6, Rule 66, of the Rules of Court regarding petition for quo warranto provides:
SEC. 5.When an individual may commence such an action.-A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.
For the instant petition to prosper, it is thus imperative that petitioner must be legally entitled to the position of Chief Hospital III which position is allegedly being usurped or unlawfully held by private respondent, which is not so in the case at bar. Petitioner clearly does not even possess the required standing to challenge the Court of Appeals decision via petition for quo warranto. Too, even assuming arguendo that petitioner is next "in rank", which he is not, and "qualified", he is not automatically entitled to hold the position of Chief of Hospital III for there is yet to be considered the discretion of the appointing authority.
At any rate, just to be able to finally write finis to this case, the Court shall delve into the validity of the subject appointment and subsequent reappointment. Section 27, Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, states:
Sec. 27. Employment Status.-Appointment in the career service shall be permanent or temporary.
xxx������ xxx������ xxx
(2)������� Temporary appointment. - In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve (12) months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.
Private respondent's appointment is in accord with the above provision and many are the decisions of this Court on the matter.
An appointment, whether to a vacant or to a newly created position, is essentially within the discretionary power of whomsoever such authority is vested (Panis vs Civil Service Commission, 299 SCRA 589 ) Once a candidate possesses the minimum qualifications required by law, sufficient discretion, if not plenary, is granted to the appointing authority (Medenilla vs Civil Service Commission SCRA, Central Bank vs. Civil Service Commission, 171 SCRA 744 [1989]) After all, the appointing authority is the officer primarily responsible for the administration of the office, and is likewise in the best position to determine who among the qualified candidates can efficiently discharge the functions of the position (Villegas vs Subido, 30 SCRA 498 , Reyes vs Abeleda, 22 SCRA 825 [1968]). Indeed, whom to appoint among those qualified is an administrative question involving considerations of wisdom, for the best interest of the service, which only the appointing authority can decide.
Finally, it appears that private respondent had long since complied with the condition that he shall subsequently obtain the required CES eligibility Hence, there is no longer any hindrance to his reappointment, as he now has all the required qualifications and none of the disqualifications for the position.
WHEREFORE, petition is dismissed.
Puno, J., is on official leave.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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