Incomplete appointment

While the appointing authority has the prerogative and discretion to choose an appointee according to his best lights – taking into consideration the totality of his qualifications, including those abstract qualities that define his personality – and that no tribunal may compel the exercise of an appointment for a favored person, the appointee should however possess the qualifications required by law. If he does, the appointment cannot be faulted on the ground that there are others more qualified who should have been preferred. This is a political question involving consideration of wisdom which only the appointing authority can decide. In the case of appointment in the career civil service, it is the Civil Service Commission (CSC) which determines whether the appointee possesses the required qualifications. So, to make the appointment complete the appointing officer and the CSC act together, though not concurrently but consecutively. This is illustrated in this case of Fernando, a lawyer.

Fernando was first employed at the Export Processing Zone Authority (EPZA, now PEZA) as Department Manager of the Legal Services Department. He had the civil service eligibility for such position, having completed the training program for Executive Leadership and Management (ELM) in 1982 under Civil Service Academy pursuant to CSC Resolution 850 dated April 16, 1979.

On May 31, 1994, the CSC issued Memorandum Circular 21 Series of 1994 requiring that persons holding positions in the Career Executive Service (CES) must have Career Service Executive Eligibility (CSEE). But the incumbents who hold permanent appointments thereto like Fernando shall remain under permanent status in the respective positions to which they were previously appointed.

On July 1, 1996, Fernando retired as PEZA Legal Services Department Manager. Two years after his retirement, he was hired by the Subic Bay Metropolitan Authority (SBMA) on a contractual basis. On January 1, 1999, SBMA permanently appointed him as Department Manager III, Labor and Employment Center. However, when his appointment was submitted to the CSC Regional Office III, it was disapproved because his eligibility was not appropriate under CSC Circular 21 s. 1994.

Fernando assailed the constitutionality of this circular. He argued that his eligibility, through the ELM training program could no longer be affected by a new eligibility requirement. He claimed that he was eligible for his previous position as department manager of the PEZA Legal Services Department; hence he should retain his eligibility for the position of Department Manager III, Labor and Employment Center, notwithstanding the classification of the latter as a CES position. Was he correct?

No. The Constitution mandates that as the "central personnel agency of the government" the CSC should "establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the Civil Service. Logically the CSC had to issue guidelines to meet this objective, specifically through the issuance of the challenged Circular.

The challenged circular protects the rights of the incumbents as long as they remain in the positions to which they were appointed. They are allowed to retain their positions in a permanent capacity notwithstanding the lack of CSEE. In this case, the government service of Fernando ended when he retired on July 1, 1996; thus his right to remain in a CES position, notwithstanding his lack of eligibility, also ceased. Upon his reemployment years later as department manager III at SMBA in 2001, it was necessary for him to comply with the eligibility prescribed at the time for that position. The security of tenure in the CES pertains only to rank, not to position to which the employee may be appointed. Fernando had neither rank nor position prior to his reemployment. So he cannot claim that his security tenure has been impaired since he holds no tenure prior to reemployment.

Since Fernando had no CES eligibility, the CSC correctly denied his permanent appointment. In approving or disapproving appointments, the CSC merely examines the conformity of the appointment with the law and the appointee’s possession of all the minimum qualifications and none of the disqualifications. So the appointee need not have been previously heard as the action did not involve the imposition of administrative disciplinary measure (Abella, Jr. vs CSC, GR 152674, November 17, 2005).

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