EN BANC

[G.R. No. 160791. February 13, 2007.]

PATRICIO E. SALES, ROGER R. SARIMOS, AL B. BUSICO, MARIMEL S.

SAGARIO, CAMILA B. BAGCOR, JONAS C. SALON, LILIBETH O.
OBERES, NOEL E. MAWILI, MARIO C. PAUSAL, JAMES D. TUGAHAN,
MARIBETH C. DANGCALAN, CAMILO P. RECAMARA, ANDRO H.
AGDA, GERALDINE S. CARIN, MYRNA G. SAGARIO, OSCAR E.
MONCOPA, LOURDIRICO E. GUDMALIN, EUFEMIO A.
MONTEDERAMOS, JR., CORNELIO E. JUMAWAN, JR., ELBA R.
CASALANG, MERLA E. CAIDIC, RESTY C. SOCOBOS, JOSE DARRY O.
SAGARION, MARIA LUZ S. SIENES, BOB C. HAYAG, RONIE L.
LABISIG, FRANNIE M. ANTIVO, RONILO B. RUIZ, ANASTACIA A.
PAILAGA, LERNIE S. FREJOLES, ROMILO D. BAJAS, ISIDRA T.
GALLEPOSO, LEAH S. AUSTER, JOIEVELYNN E. HERRERA,
JOELYALLUZ C. DOSIDOS, GLADYS M. ADAZA, NICARATA A.
GALLEPOSO, MARIA LIEZEL S. CUARESMA, ARLO B. CAGATAN,
JOSEPHINE S. CABILIN, LEA C. ALAG, PILAR A. JAMOLOD, and
BENJAMIN M. SUMALPONG, petitioners, vs. HON. RODOLFO H.
CARREON, JR., and THE CITY GOVERNMENT OF DAPITAN CITY,
represented by its Mayor, Hon. RODOLFO H. CARREON, JR.,
respondents.

DECISION

SANDOVAL-GUTIERREZ, J : p

For our resolution is the instant Petition for Review on Certiorari assailing the
Decision 1 of the Court of Appeals dated September 16, 2003 in CA-G.R. SP No. 75515.
During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City,
running for re-election, was defeated by respondent Rodolfo H. Carreon, Jr.
On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz
issued 83 appointments, including those of herein petitioners.
On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein
respondent, assumed office.
On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the
83 appointments signed by his predecessor on the ground that the latter violated Civil
Service Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum
Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service
during the election period. Thereupon, respondent prohibited the release of the salaries
and benefits of the 83 appointees.
On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as
president of the Dapitan City Government Employees Association, wrote the CSC Regional
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 Office No. IX requesting its ruling on the matter.
On July 16 and August 3, 2001, respondent sent the said Office a position paper
justifying his action, contending that the questioned appointments were not only "issued in
bulk" but that there was no urgent need to fill those positions. aSCDcH

On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the
dispositive portion of which reads:
WHEREFORE, all premises considered:

1. The eighty-three (83) appointments issued by then Mayor Joseph Cedrick

O. Ruiz, including those issued by the herein requesting parties, are,
therefore not considered "mass appointments," as defined under CSC
Resolution No. 01-0988 and are thus, VALID and EFFECTIVE.

2. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor

Rodolfo H. Carreon, Jr., are hereby declared NULL and VOID, and
accordingly,

3. The LGU-Dapitan is hereby directed to pay the salaries and other

emoluments to which the 83 appointments are entitled to pursuant to the
appointments issued to them.

On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution
No. 020828 reversing the assailed Omnibus Order of the CSC Regional Office No. IX,
thus:
WHEREFORE, premises considered, the Omnibus Order dated August
17, 2001 of the Civil Service Commission Regional Office No. IX is REVERSED
and SET ASIDE. The Commission hereby rules, as follows:

1. The approval of all 83 appointments issued by then Mayor J.

Cedrick O. Ruiz is revoked for being violative of Republic Act No.
7041, CSC Memorandum Circular No. 18 s. 1988, as amended,
CSC Resolution No. 963332 on its accreditation and CSC
Resolution No. 01-0988.
2. All promoted employees are reverted to their previous position; and

3. Memorandum Order No. 1 and Memorandum Order No. 2 issued by

incumbent Mayor Rodolfo H. Carreon, Jr. are hereby declared null
and void.

The CSC En Banc held that the positions in question were published and declared
vacant prior to the existence of any vacancy.
Petitioners filed a motion for reconsideration but it was denied in Resolution No.
030049 dated January 16, 2003 by the CSC En Banc.
On February 13, 2003, petitioners filed with the Court of Appeals a petition for
review. On September 16, 2003, the appellate court rendered its Decision dismissing the
petition, sustaining the CSC's finding that the positions to which the petitioners were
appointed were already reported and published even before they had been declared
vacant, in violation of Sections 2 and 3 of Republic Act (R.A.) No. 7041; 2 and that there
was no first level representative to the Personnel Section Board who should have
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 participated in the screening of candidates for vacancy in the first level.
Petitioners filed a motion for reconsideration, but this was denied by the Court of
Appeals in its Resolution dated November 17, 2003.
Hence, the instant petition.
This case is a typical example of the practice of outgoing local chief executives to
issue "midnight" appointments, especially after their successors have been proclaimed. It
does not only cause animosities between the outgoing and the incoming officials, but also
affects efficiency in local governance. Those appointed tend to devote their time and
energy in defending their appointments instead of attending to their functions. However,
not all "midnight" appointments are invalid. 3 Each appointment must be judged on the
basis of the nature, character, and merits of the individual appointment and the
circumstances surrounding the same. 4 It is only when the appointments were made en
masse by the outgoing administration and shown to have been made through hurried
maneuvers and under circumstances departing from good faith, morality, and propriety that
this Court has struck down "midnight" appointments. 5
It is State policy that "opportunities for government employment shall be open to all
qualified citizens" and "employees shall be selected on the basis of fitness to perform the
duties and assume the responsibilities of the positions." 6 It was precisely in order to ensure
transparency and equal opportunity in the recruitment and hiring of government personnel,
that Republic Act No. 7041 was enacted. Section 2 provides:

SEC. 2. Duty of Personnel Officers. — It shall be the duty of all Chief

Personnel or Administrative Officers of all branches, subdivisions,
instrumentalities and agencies of the Government, including government-owned
or controlled corporations with original charters, and local government units, to
post in three (3) conspicuous places of their offices for a period ten (10) days a
complete list of all existing vacant positions in their respective offices which are
authorized to be filled, and to transmit a copy of such list and the corresponding
qualification standards to the Civil Service Commission not later than the tenth
day of every month. Vacant positions shall not be filled until after
publication: Provided, however, that vacant and unfilled positions that are:

a) primarily confidential;
b) policy-determining;

c) highly technical;
d) co-terminous with that of the appointing authority; or
e) limited to the duration of a particular project,

shall be excluded from the list required by law.

SEC. 3. Publication of Vacancies. — The Chairman and members of

the Civil Service Commission shall publish once every quarter a complete list of
all the existing vacant positions in the Government throughout the country,
including the qualification standards required for each position and, thereafter,
certify under oath to the completion of publication. Copies of such publication
shall be sold at cost to the public and distributed free of charge to the various
personnel office of the government where they shall be available for inspection
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 by the public: Provided, That said publication shall be posted by the Chief
Personnel or Administrative Officer of all local government units in at least three
(3) public and conspicuous places in their respective municipalities and
provinces: Provided, further, That any vacant position published therein shall be
open to any qualified person who does not necessarily belong to the same office
with the vacancy or who occupies a position next-in-rank to the vacancy:
Provided, finally, That the Civil Service Commission shall not act on any
appointment to fill up a vacant position unless the same has been reported
to and published by the Commission.

The foregoing provisions are clear and need no interpretation. The CSC is required
to publish the lists of vacant positions and such publication shall be posted by the chief
personnel or administrative officer of all local government units in the designated places.
The vacant positions may only be filled by the appointing authority after they have been
reported to the CSC as vacant and only after publication. SEHaDI

Here, the publication of vacancies was made even before the positions involved
actually became vacant. Clearly, respondent's action violated Section 2 of R.A. No. 7041
cited earlier.
Moreover, the CSC found that there was no first-level representative appointed to
the Personnel Selection Board, which deliberated on the appointments to first-level
positions.
CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the
Personnel Selection Board shall be composed of the following:
a. Official of department/agency directly responsible for personnel
management;

b. Representative of management;
c. Representative of organizational unit which may be an office, department,
or division where the vacancy is;
d. Representative of rank-and-file employees, one (1) for the first-level
and one (1) for the second-level, who shall both be chosen by duly
registered/accredited employees' association in the department or agency.
The former shall sit during the screening of candidates for vacancy
in the first-level, while the latter shall participate in the screening of
candidates for vacancy in the second level. In case where there is no
employees' association in the department or agency, the representative
shall be chosen at large by the employees through a general election to
be called for the purpose.

Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete,
the first-level representative to the Personnel Selection Board, no other first-level
representative to replace him was chosen by the Dapitan City Government Employees
Association. Yet, the city government Personnel Selection Board proceeded to deliberate
and recommend the appointments of applicants to the 43 first-level positions. Petitioners
contend, however, that although there was no such representative, the action of the Board
is still valid.
Petitioners' contention lacks merit.

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 Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the
Administrative Code of 1987 (also known as the Civil Service Law), provides:
SEC. 20. Notwithstanding the initial approval of an appointment, the
same may be recalled on any of the following grounds:
a) non-compliance with the procedures/criteria provided in the
agency's Merit Promotion Plan;
b) failure to pass through the agency's Selection/Promotion Board;

c) violation of the existing collective bargaining agreement between

management and employees relative to promotion; or
d) violation of other existing civil service laws, rules and
regulations.

Verily, in deliberating and recommending to former Mayor Ruiz the appointments of

herein petitioners to the vacant positions sans the required representation, the Board
violated the above CSC Rules. Hence, the appointments he issued are not valid. They may
be recalled. In Mathay, Jr. v. Civil Service Commission , 7 this Court upheld the authority of
the CSC to take appropriate action on all appointments, including its authority to recall
appointments made in disregard of the applicable provisions of Civil Service Law
and regulations. DAETHc

In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum
Circular No. 18, as amended, and Section 20, Rule VI of the Omnibus Rules Implementing
Book V-A of the Administrative Code of 1987, the appointments of the above-named
petitioners are declared void.
WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision
of the Court of Appeals in CA-G.R. SP No. 755151.
SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-

Morales, Callejo, Sr., Azcuna, Chico-Nazario, Tinga, Garcia and Velasco, Jr., JJ., concur.

Corona and Nachura, JJ., are on leave.

Footnotes

1. Rollo, pp. 37-42. Per Associate Justice Roberto A. Barrios with Associate Justice Juan
O. Enriquez, Jr. and Associate Justice Hakim S. Abdulwahid, concurring. CSTEHI

2. Entitled "Act Requiring Regular Publication of Existing Vacant Positions in Government

Offices, Appropriating Funds Therefor, and for other Purposes," which took effect on
June 5, 1991.

3. Quisumbing v. Tajanglangit, G.R. No. 19981, February 29, 1964, 10 SCRA 446.

4. Davide v. Roces, G.R. No. 21754, October 13, 1975, 67 SCRA 279.

5. Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1;Rodriguez, Jr. v.
Quirino, G.R. No. 19800, October 28, 1963, 9 SCRA 284.
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 6. Sec. 2, Chapter 5, Subtitle A. Title I, Book V, Administrative Code of 1987.
7. G.R. No. 130214, August 9, 1999, 312 SCRA 91.

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