G.R. No. 129616

THIRD DIVISION

G.R. No. 129616 April 17, 2002

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners,
vs.
JULIETA MONSERATE, respondent.

SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari1 seeks to set aside the Decision dated June 20, 1997 of the Court of Appeals in CA-G.R. No. 39670,2 declaring null and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo City.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980.3

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data Sheet4 accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position, thus:

"COMPARATIVE DATA SHEET

OFFICE:

PMO ILOILO

DIVISION:

RES. MANAGEMENT DIVISION

POSITION:

DIVISION MANAGER

REQUIRED CS ELIG.:

CS PROF / RA 1080

CANDIDATES

ELIGIBILITY

xxx

TOTAL

1. MONSERATE, JULIETA

CS Prof.

xxx

79.5

2. ANINO, RAMON

1^st grade

xxx

70

3. TEODOSIO, APRIL

PD 907 (CPA)

xxx

67

4. MORTOLA, DARIO

CS Prof.

xxx

67

5. ESPINOSA, AMALIK

Bar

xxx

63.5

6. PERFECTO, BASCOS

RA 1080

xxx

59.5"

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed5 respondent to the position of Manager II (Resource Management Division). On even date, respondent assumed office and discharged the functions thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved her appointment.

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting against respondent's appointment. The PPA Appeals Board, in a Resolution6 dated August 11, 1988, sustained the protest and rendered ineffective respondent's appointment based on "(1) CSC MC No. 5, s. 1988, Par. 3;7 (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;8 and (3) Civil Service Eligibility." These grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:

"WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources Management Division Manager of the Port Management Office of Iloilo."

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-889 (entitled "Creation of the PPA Manager's Pool"), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager II, Resource Management Division. In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board. 1âwphi1.nêt

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2, 1988.10 She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino;11 (3) she was not informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of PPA Special Order No. 492-8812 dated October 21, 1988, also issued by General Manager Dayan. This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager.

Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988 a "precautionary appeal"13 with the CSC. She manifested that as of said date (November 25), she has not yet been furnished a certified copy of the PPA Appeals Board Resolution.

On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated October 1, 1988.14 It was also during this time when she learned that PPA General Manager Dayan had just issued petitioner's appointment dated October 21, 1988 as Manager II in the Resource Management Division effective February 1, 1988.

On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Anino's appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution. In the meantime, she assumed the position of Administrative Officer.

Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995, dismissed respondent's appeal, thus:

"It is well-established rule that an appointment, although approved by this Commission, does not become final until the protest filed against it is decided by the agency or by the Commission. Although Monserate had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x.

"Monserate's claim that she is more qualified than Anino is not relevant to the issue before this Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question."

Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-6640 dated October 24, 1995.

In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General Manager and petitioner Anino.

On June 20, 1997, the Court of Appeals rendered a Decision16 nullifying the twin Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly issued due to lack of proper notice to respondent with respect to the Board's proceedings. It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. The dispositive portion of the Court of Appeals' Decision reads:

"THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and directing the reinstatement of the petitioner to the position of Resource Management Division Manager II.

"SO ORDERED."

Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On November 30, 1997, petitioner Anino retired from the government service.17

Petitioners ascribe to the Court of Appeals the following errors:

I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATE'S APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC.

III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.18

The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted as Administrative Officer.

Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not charged of any administrative case. Rather, she was displaced from her position as an "aftermath of the PPA reorganization, authorized by law, the implementation of which having been carried out with utmost good faith."

Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA Appeals Board which sustained petitioner Anino's timely protest against respondent's appointment. Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not become final until the protest filed against her was favorably decided in her favor by the CSC. In support of this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), which provides inter alia:

"SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position. However, the appointment, together with the decision of the department head, shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance, otherwise the appointment becomes ineffective thereafter. Likewise, such appointment shall become ineffective in case the protest is finally resolved against the protestee, in which case, he shall be reverted to his former position."

Petitioners also contend that the head of an agency, being the appointing authority, is the one most knowledgeable to decide who can best perform the functions of the office. The appointing authority has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law. Consequently, "the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation of the Civil Service Law and Rules."

The petition is unmeritorious.

In the first place, the PPA reorganization in 1988 has nothing to do with respondent's demotion from the contested position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative Officer (SG-15). Antithetically, it was precisely because of the said reorganization that respondent applied to the higher position of Division Manager II. In fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) contenders to the said post. Respondent was eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions. This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA.

Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is further shown by the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan:

1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent Monserate from the PPA Managers' pool-list;

2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;

3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent to the position of Administrative Officer; and

4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource Management Division, effective February 1, 1988.

Therefore, contrary to petitioners' claim, respondent was demoted, not by reason of the PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Anino's protest against respondent's appointment.

Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA Appeals Board which "upholds the appointment of Ramon A. Anino as Resource Management Division Manager." But how can it uphold his appointment when he was not yet appointed then? It bears stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated differently, the PPA Appeals Board could not uphold an appointment which was not yet existing.

Equally questionable are the grounds for respondent's demotion stated in the August 11, 1998 Resolution: "(1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility." These grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion.

We uphold the Court of Appeals' finding that the August 11, 1998 PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent. As aptly held by the Appellate Court:

"In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.

"x x x

"To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as Manager. x x x.

"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and recommendation of her appointment as Manager II, passed several committees created by the PPA. x x x. Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03. x x x.

"On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility.

"She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private respondent's appointment as Division Manager even if on August 11, 1988, he was not yet extended any appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).

"Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void. She was never notified of any proceeding; she was not furnished either a copy of the resolution. What she received instead was a Special Order dated September 29, 1988 already ordering her demotion. She was not at all given the opportunity of defending herself before the Appeals Board.

"x x x.

"In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988 Resolution of the Appeals Board. She did not even know that she was demoted until after she received a copy of the of the Special Order No. 479-88."19

From all indications, it is indubitable that substantial and procedural irregularities attended respondent's demotion from the position of Manager II, Resource Management Division, to the lower position of Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil Service Commission,20 this Court emphasized that "once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing."

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service.21 However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her. Respondent's security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.22

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio."23

We now delve on the backwages in favor of respondent.

The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino's appointment to the contested position. Also, petitioner Anino retired from the service on November 30, 1997.

In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency.24 A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.25 In Monroy vs. Court of Appeals,26 this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary,27 this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus:

"x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office."

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.1âwphi1.nêt

WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of Manager II up to his retirement on November 30, 1997.

SO ORDERED.

Panganiban, and Carpio, JJ., concur.
Melo, J., On official leave.
Vitug, J., Acting Chairman.

Footnotes

1 Filed under Rule 45 of the 1997 Rules of Civil Procedure, as amended.

2 Entitled "Julieta Monserate vs. The General Manager, Philippine Ports Authority and Ramon Anino."

3 Annex "F," Court of Appeals (CA) records, p. 231.

4 Annex "C," CA Rollo, p. 28.

5 Annex "F," ibid., p. 35.

6 Annex "K-1," ibid., p. 46.

7 CSC MC No. 5, s. 1988 (Supplemental Guidelines on Placement of Personnel in Reorganizing Agencies), Par. 3, provides:

"x x x

"3. All officials and employees, including those who have pending administrative charges, shall be evaluated on the basis of standards for retention/termination enumerated under MC 10, s. 1986. However, those with pending administrative cases shall not be placed in or appointed to positions higher than the positions held by them at the start of the reorganization, and the administrative cases against them shall be pursued until decided. Persons with derogatory information or prejudicial reports against them shall be given reasonable opportunity to rebut the same or present their side."

8 CSC MC No. 10, s. 1986 (Guidelines on Placement of Personnel Affected by the 1986 Government Reorganization) Par. A, 1.2 and Par. B, provide:

"x x x

"A. 1. Permanent Employee

"x x x

"1.2 Those presently occupying position with the same or comparable titles and duties and responsibilities as those in the approved staffing pattern;

"x x x

"B. Relative Fitness

Where the number of incumbents to be replaced exceed the number of positions in the new staffing pattern, they shall be compared in terms of relative fitness and the most qualified and competent shall be preferred. In this respect, the following factors shall be considered:

1. Performance for the last two (2) years;

2. Education and training;

3. Experience and outstanding accomplishment; and

4. Physical characteristics and personality traits.

"x x x"

9 Annex "G," ibid., pp. 36-38.

10 Annex "J," ibid., pp. 42-43.

11 CA record, p. 219.

12 Annex "H," CA Rollo pp. 39-40.

13 Annex "M," ibid., pp. 49-50.

14 Annex "S," CA records, p. 264.

15 Annex "A," CA Rollo, pp. 22-24.

16 Rollo. pp. 44-56.

17 SC Resolution dated July 13, 1998, Rollo, p. 132.

18 Rollo, p. 23.

19 Rollo pp. 51-52.

20 208 SCRA 240 (1992).

21 Mathay, Jr. vs. Court of Appeals, 320 SCRA 703 (1999) citing Apurillo vs. Civil Service Commission, 227 SCRA 230 (1993).

22 See Aquino vs. Civil Service Commission, supra.

23 Morata vs. Court of Appeals, 11 SCRA 42 (1964), cited in Aquino vs. Civil Service Commission, supra.

24 See Corpuz vs. Court of Appeals, 285 SCRA 23 (1998).

25 Dimaandal vs. Commission on Audit, 291 SCRA 322 (1998).

26 20 SCRA 620 (1967).

27 194 SCRA 317 (1991).

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