9/23/99 11:15 AM

Petitioner Ismael A. Mathay, Jr. (hereafter MATHAY), Mayor of Quezon City, seeks the nullification of the resolutions of the Civil Service Commission (CSC) recalling his appointment of Olegario S. Tabernilla (hereafter TABERNILLA) as Electrical Engineer V in the city government; and consequently, the reversal of the Resolutions of the Court of Appeals of (1) 16 July 1997 denying due course and dismissing the petition for certiorari docketed as CA-G.R. No. 44431, and (2) 12 August 1997 denying the motion for reconsideration. Spped

The antecedent facts follow:

On 26 November 1992, the Quezon City Council enacted City Ordinance No. SP-33, S. 92, creating an Electrical Division under the Engineering Department with thirty-six new plantilla positions to complement the staffing requirements. One of those newly created positions was Electrical Engineer V, which required a Professional Electrical Engineer to fill it up and which became the subject of a heated competition by two licensed professional electrical engineers, TABERNILLA and Jose I. Enriquez (hereafter ENRIQUEZ). The former was an Engineer II, and the latter was an Electrical Engineer III of the existing Electrical Division under the City Fire Department, which was previously part of the Quezon City Government but which was later transferred to the Bureau of Fire Protection, Quezon City Fire Station. Conformably to the long existing city policy of providing preferential consideration to Quezon City residents in the filling up of positions in the city office, the Personnel Selection Board of the city government recommended the appointment of TABERNILLA, who had in his favor the advantage of being a Quezon City resident.

On 22 August 1994, MATHAY extended to TABERNILLA a permanent appointment, which was approved on 15 September 1994 by the CSC Regional Field Office Acting Director II, Ligaya I. Caya.1 [Rollo, 82.] TABERNILLA thereafter took his oath of office and assumed the duties of his new position.

ENRIQUEZ disputed the "promotional" appointment before the CSC, claiming it was issued in clear violation of CSC MC No. 42, s. 1991, which prescribes a Bachelor’s Degree in Engineering as the educational requirement for the service-wide position of Engineer V. TABERNILLA, a mere Associate Electrical Engineer and not a holder of a Bachelor’s Degree, clearly failed to meet the qualifications of the position and, therefore, could not be validly appointed thereto. Jospped

Requested to comment on the protest, MATHAY maintained that TABERNILLA’s assumption of the position effective 1 October 1994 mooted the protest, adding that his appointee met the minimum requirements of the position as specified in the City Ordinance and existing hiring policies.

In its Resolution No. 95-1218 dated 10 January 19952 [Rollo, 48. Per Ereñeta, Jr., R., Comm., with Sto. Tomas, P., Chairman, and Gaminde, T., Comm., concurring.] the CSC recalled and revoked the appointment of TABERNILLA; thus:

MATHAY moved for the reconsideration3 [Rollo, 50.] of the said Resolution, alleging that the Ordinance which was the law that created the office unequivocally specified a Professional Electrical Engineer as its only requirement; hence, the appointee needed only to comply therewith. While conceding that the appointment in local government units are subject to civil service laws, rules and regulations, MATHAY averred that such truism cannot override the right of the appointing power to choose his appointee, considering that the power of appointment is essentially discretionary.4 [Citing Patagoc v. Civil Service Commission, 185 SCRA 411 (1990)] MATHAY further argued that TABERNILLA’s title to the office became complete with the confirmation by the CSC Regional Field Office of TABERNILLA’s appointment and his subsequent taking of the oath of office and assumption of duties. TABERNILLA then acquired a legal right which could not be taken away from him either by revocation of the appointment or by removal except for cause and with previous notice and hearing.5 [(Citing Aquino v. Civil Service Commission, 208 SCRA 240 (1992)] MATHAY then intimated that TABERNILLA was not notified of the protest, nor was a hearing conducted thereon. Oldmiso

MATHAY thereafter filed a supplemental motion manifesting that under Republic Act. No. 184,6 [Entitled An Act to Regulate the Practice of Electrical Engineering in the Philippines, to Provide for the Licensing and Registration of Electrical Engineers and Electricians and for Other Purposes; approved on 21 June 1947.] the educational requirement for admission to the Electrical Engineering Board Examinations is only two years of resident collegiate engineering training. Since TABERNILLA completed the two-year Associate in Electrical Engineering course and passed the board examinations, he was qualified for the contested position.

In Resolution 95-17437 [Rollo, 54. Per Ereñeta, Jr., R., Comm., with Gaminde, T., Comm., concurring.] dated 9 March 1995, the CSC denied the motion for reconsideration. It elucidated that under Sections 76, 77 and 78 of R.A. No. 7160, otherwise known as the Local Government Code of 1991, the CSC has the power to determine the qualification standards for the various positions in the local government and review whether the appointments meet these standards. The qualification standards for new offices, which local governments have the authority to create, must not be lower than those prescribed by the CSC. Under existing civil service laws and rules, an appointee to Engineer V must possess a Bachelor’s Degree in Engineering. TABERNILLA certainly failed to qualify for the position. The fact that he met all the requirements for admission to Electrical Engineering Board Examination as provided for under R.A. No. 184, and passed the said examination does not mean compliance with the prescribed qualification standards. Miso

On 7 September 1995, TABERNILLA filed his own "petition" praying for the review of, and "second hard look" on, Resolutions Nos. 95-0218 and 95-1743.

On 13 June 1996, the CSC issued Resolution No. 9637798 [Rollo, 60. Per Ereñeta, Jr., R., Comm., with De Leon, A., Chairman, and Gaminde, T., Comm., concurring.] denying the "petition," which it treated as a motion for reconsideration. It ratiocinated that TABERNILLA had no legal personality to file such a pleading because under MC 38, s. 93, Part I(3), a "[r]equest for reconsideration of action taken by the CSC Office on appointments shall always be made by the appointing officer." Besides, the allegations in the said "petition" were not meritorious.

On 25 July 1996, MATHAY filed a "petition" with the CSC praying for the "review and reconsideration" of the three adverse Resolutions thus far issued, and reiterating therein the arguments adduced in the first motion for reconsideration.

The "petition" obtained a similar unpropitious fate with the CSC’s denial of the same per Resolution No. 9725459 [Id., 71. Per De Leon, A., Chairman, with Gaminde, T. and Erestain Jr., J., Comms., concurring.] dated 14 April 1997 on the grounds that (1) the "petition" was in the nature of a second motion for reconsideration, which was not allowed pursuant to Section 9 of the Uniform Rules of Procedures in the Conduct of Administrative Investigations, as "only one motion for reconsideration [could] be entertained"; and (2) it was filed late. Nexold

Undaunted, MATHAY filed before the Court of Appeals on 17 June 1997 a petition for certiorari under Rule 65 of the Revised Rules of Court contending that the CSC acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution Nos. 95-0218, 95-1743, 96-3779, and 97-2545.

The Court of Appeals, however, dismissed the petition in a Resolution10 [Rollo, 35. Per Abad Santos, Jr., Q., J., with Morales, C. and Adefuin-dela Cruz, A., JJ., concurring.] promulgated on 16 July 1997 "for being the wrong remedy and for being time-barred." It ruled that the petition for certiorari filed nineteen days after receipt of Resolution No. 97-2545 could not be a substitute for a lost appeal.

In his motion for reconsideration, MATHAY argued that "what was brought to fore" in his petition for certiorari was an error of jurisdiction in that the CSC had no jurisdiction or authority to revoke or cancel an approved and completed appointment to a civil service position. Hence, Rule 65 of the Rules of Court, not Supreme Court Administrative Circular No. I-95, applied.

Unimpressed, the Court of Appeals denied the motion for reconsideration in a Resolution11 [Id., 40.] promulgated on 12 August 1997, adverting to the same reasons relied upon in dismissing the petition. Furthermore, it held that MATHAY was precluded from raising the question of jurisdiction, since he failed to submit the same as an issue in the proceedings before the CSC. Manikx

MATHAY now posits in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure that the Court of Appeals committed gross errors of law in holding that (1) his petition for certiorari was not the proper remedy and could not be a substitute for appeal; (2) said petition was time-barred; (3) the CSC had jurisdiction to recall and revoke a completed appointment; and (4) petitioner did not raise the question of jurisdiction in the proceedings before the CSC such that he was guilty of laches and estoppel.

The CSC, through the Office of the Solicitor General, remains steadfast in its view that it committed no error of jurisdiction, as it was merely enforcing its revisory power over a subordinate when it reversed the erroneous determination by the Regional Field Office of TABERNILLA’s qualification. The CSC now proposes that the Quezon City ordinance was an ultra vires act, considering that the same prescribed a qualification standard lower than that set for the position, and, hence, fell short of the injunction of Section 78 of R.A. No. 7160 that all matters pertinent to human resources and development in local government units should be governed by civil service laws.

The instant petition must fail. Maniks

It must be recalled that in its Resolution of 9 March 1995 the CSC denied petitioner’s motion for the reconsideration of its Resolution of 10 January 1995 revoking the appointment of TABERNILLA. Petitioner received a copy of the former Resolution on 4 April 1995. At the time, judgments or final orders of the CSC were unappealable.12 [Dario v. Mison, 176 SCRA 84, 111-112 (1989); Lopez v. CSC, 195 SCRA 777, 780 (1991); Mancita v. Barcinas, 216 SCRA 772, 776 (1992); Rimonte v. CSC, 244 SCRA 498, 502-503 (1995)] It was only on 1 June 1995 that Revised Administrative Circular No. 1-95 took effect. That Circular provides that judgments or final orders of quasi-judicial agencies, like the CSC, may be appealed to the Court of Appeals within fifteen days from notice thereof. Hence, before that date, judgments or final orders of the CSC were subject only to the certiorari jurisdiction of this Court.13 [Id.] Section 7, Subdivision A, Article IX of the Constitution provides:

The remedy, therefore, of petitioner was to file with this Court a special civil action for certiorari within thirty days from 4 April 1995. But he failed to do so; thus, the challenged resolutions became final.

Notwithstanding the finality of the aforementioned resolutions, TABERNILLA filed on 7 September 1995 a petition before the CSC for the review of said resolutions. As correctly held by the CSC, the said petition, which was in fact a motion for reconsideration, would not prosper because under Part I(3) of Memorandum Circular No. 38, Series of 1993, only the appointing officer, in this case MATHAY, can request reconsideration of actions taken by the CSC on appointments. Besides, the said petition was filed long after the resolutions sought to be reconsidered became final. Manikan

But still, on 25 July 1996, or more than a month after the issuance of the resolution denying TABERNILLA’s motion for reconsideration, MATHAY filed with the CSC a petition for the review and reconsideration of the three resolutions thus far issued. This petition was correctly treated by the CSC as a second motion for reconsideration, it having been filed with the same body that issued the assailed resolutions, coupled with the fact that it was a rehash of the arguments raised in the first motion for reconsideration. As such, the same could not be considered because under Section 9 of the Uniform Rules of Procedure in the Conduct of Administrative Investigations, which is applicable to protests or questions involving the issuance of appointments, "only one motion for reconsideration shall be entertained." Section 17, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws also provides: "In all instances, only one petition for reconsideration shall be entertained." Even assuming that a second motion for reconsideration was allowed by the Rules, MATHAY’s "petition" would still be met with denial because it was filed more than a year after his receipt of the resolution denying his first motion for reconsideration.

As earlier discussed, the Resolutions of 10 January and 9 March 1995 had already attained finality. This Court, therefore, finds no necessity to pass upon the timeliness or propriety of the petition for certiorari filed by MATHAY before the Court of Appeals on 17 June 1997, or after more than two years from the date the said resolutions became final. Ncm

Nevertheless, even granting for the sake of argument that the questioned resolutions were not yet final and that MATHAY’s second motion for reconsideration was allowed and seasonably filed, the petition for certiorari instituted before the Court of Appeals had to be dismissed just the same. The special civil action for certiorari under Rule 65 of the Rules of Court will lie only if there is no appeal or any plain, speedy or adequate remedy in the ordinary course of law.14 [Bernardo v. Court of Appeals, 275 SCRA 413, 426 (1997); Javier v. NLRC, 278 SCRA 632, 645 (1997)] In this case, after the denial of MATHAY’s second motion for reconsideration, appeal was available as a remedy. As earlier mentioned, Revised Administrative Circular No. 1-95, which took effect on 1 June 1995, provides for an appeal to the Court of Appeals from the judgments, final orders or resolutions of the Civil Service Commission. And Section 4 thereof mandates that the appeal be taken within fifteen days from notice of the denial of the motion for reconsideration duly filed in accordance with the governing law of the court or agency a quo. Here, MATHAY filed his petition before the Court of Appeals on 17 June 1997, or nineteen days after his receipt of the resolution denying his second motion for reconsideration. As held in cases too numerous to mention, a special civil action for certiorari cannot be availed of as a substitute for a lost or lapsed remedy of appeal.15 [Fajardo v. Bautista, 232 SCRA 291, 298 (1994); Bernardo v. Court of Appeals, supra note 14; Paa v. Court of Appeals, 282 SCRA 448, 459 (1997)]

The petitioner asseverates, however, that the said resolutions were void and were issued in violation of due process; hence, they could never become final, and they could be attacked directly or collaterally even after the time of appeal or review has lapsed. According to him, the CSC had no jurisdiction or authority to revoke or cancel an appointment to a civil service position after its Regional Office had approved the same and the appointee had assumed the new position. Ncmmis

We cannot subscribe to petitioner’s theory. Under Section 12 (11) of Book V of Executive Order No. 292, otherwise known as the "Administrative Code of 1987," the CSC has the power to "[h]ear and decide administrative cases instituted before it directly or on appeal, including contested appointments, and review decisions and actions of its agencies and of the agencies attached to it." Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws provides that notwithstanding the initial approval of an appointment, the same may be recalled for "[v]iolation of other existing Civil Service laws, rules and regulations." As held in Debulgado v. Civil Service Commission,16 [237 SCRA 184, 200 (1994)] the CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations."

Accordingly, it cannot be said that the CSC did not have jurisdiction or gravely abused its discretion in recalling the appointment of TABERNILLA, which was issued in violation of existing civil service rules prescribing a Bachelor’s Degree in Engineering as one of the minimum qualifications for the questioned position. Scncm

Anent petitioner’s imputation to the CSC of violation of due process, the same does not hold water. What was lodged before the Commission was not a disciplinary case wherein petitioner or TABERNILLA should have been afforded an opportunity to be heard. As ruled in Debulgado,17 [Supra note 16, at 199.] the CSC, in approving or disapproving an appointment, "only examines the conformity of the appointment with applicable provisions of law and whether the appointee possesses the minimum qualifications and none of the disqualifications." At any rate, petitioner was requested to comment on the protest; and he did file comment and, later, a motion for reconsideration of the revocation of the initially approved appointment.

Finally, petitioner fears that if the CSC resolution recalling the appointment made by MATHAY is upheld, it would "throw out of job a civil service employee who had rendered more than forty years of satisfactory service for the Government, all because he relied on the presumption that the Acting Regional Director regularly performed her official duty."

Petitioner’s apprehension is without basis. Section 19, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292, as well as Sections 43 and 48 of the Uniform Rules of Procedure in the Conduct of Administrative Investigations, specifically provides that in case the protest is finally resolved against the protestee, his appointment shall become ineffective and he shall be reverted to his former position.

WHEREFORE, the present petition is DISMISSED. The challenged resolutions of the Civil Service Commission are hereby AFFIRMED. Sdaamiso

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Pardo, J., took no part due to close relation to a party.