Tomali vs. Civil Service Commission

An appointment to a civil service position becomes ineffective if not submitted to the Civil Service Commission within thirty (30) days from issuance. Without the Commission’s approval, the appointee holds only an incomplete appointment; no permanent title to the office is vested, and the appointee cannot invoke security of tenure. The appointing authority may recall or withdraw the incomplete appointment at any time before it is approved.

On 1 July 1990, Executive Director Dimasangcay A. Pundato of the Office on Muslim Affairs appointed petitioner Mona A. Tomali as Development Management Officer II. Petitioner assumed the position on 1 November 1990. The appointment was not forwarded to the Civil Service Commission for approval until 31 May 1991. In July 1991, a newly installed OMA Director, Dr. Ali Basir Lucman, revoked petitioner’s incomplete appointment and appointed private respondent Rocaina M. Lucman to the same post. Petitioner protested her replacement before the Merit Systems Protection Board and the Civil Service Commission, both of which dismissed her challenge for lack of merit.

• Nature of the Action: A special civil action for certiorari seeking to annul CSC Resolution No. 93-945, which upheld the recall of petitioner’s appointment and the appointment of private respondent to the contested position of Development Management Officer II (DMO II) in the Office on Muslim Affairs.

• Petitioner’s Appointment and Prior Service: On 1 July 1990, then OMA Executive Director Dimasangcay A. Pundato appointed petitioner Mona A. Tomali as DMO II. Before this appointment, petitioner had served the Mindanao State University in various capacities: Records Clerk (1 June 1983 to 31 December 1986), Clerk Typist (2 January 1987 to 30 June 1989), and Budget Assistant (1 July 1989 to 31 October 1990).

• Delayed Assumption and Non-Submission of Appointment: Petitioner assumed the duties of the DMO II position on 1 November 1990, four months after the appointment was issued. At the time of her assumption, the appointment had not yet been transmitted to the Civil Service Commission. The appointment was finally submitted to the CSC on 31 May 1991, nearly eleven months from issuance and well beyond the thirty-day period mandated by law.

• Revocation and Appointment of Private Respondent: On 16 July 1991, the newly installed OMA Executive Director, Dr. Ali Basir Lucman, revoked petitioner’s incomplete appointment and appointed private respondent Rocaina M. Lucman to the same DMO II position. Petitioner protested by letter dated 29 July 1991. On 1 August 1991, the OMA Human Resources Management Division informed petitioner that her appointment had been disapproved or had expired. Private respondent immediately took her oath and assumed the office.

• Administrative Challenge: Petitioner reiterated her protest on 12 August 1991. The Merit Systems Protection Board dismissed the protest on 23 July 1992, finding the appointment incomplete for lack of CSC approval and holding that petitioner had no security of tenure. The Civil Service Commission affirmed, citing its earlier Resolution No. 91-1237, which had upheld the recall of petitioner’s appointment and declared her separation in order.

• Lower Tribunals’ Factual Findings: The MSPB found that petitioner’s prior continuous stay in office was “at most by mere tolerance” and that the belated transmittal was not shown to be motivated by bad faith, spite, or malice on the part of the new OMA Director. The CSC adopted these findings and concluded that petitioner, having been separated by the recall of her appointment, had no personality to protest the subsequent appointment of private respondent.

• Negligence and Estoppel: Petitioner faulted public respondents for failing to timely transmit her appointment to the Civil Service Commission and for allowing her to assume the position in the meantime, arguing that these omissions estopped them from later invalidating her appointment and replacing her.

• Vested Right and Security of Tenure: Petitioner maintained that by assuming the DMO II position and performing its functions, she had acquired a vested right to the office and was entitled to the constitutional guarantee of security of tenure.

• Arbitrariness of Replacement: Petitioner contended that her replacement by private respondent was unwarranted and that she was better qualified, implying that the new OMA Director’s action was arbitrary or unjust.

• Ineffectiveness of Appointment: Respondents, through the Civil Service Commission, argued that petitioner’s appointment became ineffective by operation of law because it was not submitted to the CSC within thirty days from issuance, as required by Section 9(h) of Presidential Decree No. 807 and Section 11, Rule V of the Omnibus Rules Implementing Book V of the Administrative Code of 1987.

• Incomplete Appointment and Absence of Security of Tenure: Respondents maintained that without CSC approval, the appointment remained incomplete; the appointee acquired no permanent title to the office and could not invoke security of tenure. The appointing authority therefore retained the power to recall or withdraw the appointment.

• Valid Exercise of Discretionary Power: The new OMA Director acted well within his discretion in revoking an incomplete appointment and appointing another person, absent any showing of bad faith, malice, or grave abuse of discretion.

• Validity of Appointment: Whether petitioner’s appointment, which was not submitted to the Civil Service Commission within thirty days from issuance, became ineffective by operation of law.

• Security of Tenure: Whether petitioner, having assumed the office and performed its duties for several months, had acquired a security of tenure that prevented her replacement.

• Grave Abuse of Discretion: Whether the OMA Director gravely abused his discretion in revoking petitioner’s incomplete appointment and appointing private respondent.

• Validity of Appointment: The appointment was ineffective. Section 9(h) of Presidential Decree No. 807 and Section 11, Rule V of the Omnibus Civil Service Rules explicitly provide that an appointment not submitted to the Commission within thirty days from issuance becomes ineffective. Petitioner’s appointment was issued on 1 July 1990 but was submitted to the CSC only on 31 May 1991—long after the statutory deadline. Without favorable certification or approval by the CSC, no title to the office can be deemed permanently vested, and the appointment remained incomplete and subject to recall.

• Security of Tenure: No security of tenure attached. Until an appointment becomes a completed act by CSC approval, the rule on security of tenure cannot be invoked. The appointee at best occupies the position as a de facto officer, and the tolerance, acquiescence, or mistake of officials in allowing assumption of the office does not cure the legal defect. Petitioner’s own delay in assuming the position four months after issuance—by which time the appointment had already lapsed—further weakened any claim to a vested right.

• Grave Abuse of Discretion: No grave abuse of discretion was committed. The power to appoint is essentially discretionary; the appointing authority may recall an incomplete appointment and designate another person, provided the appointee possesses the required qualifications. The record contained no evidence that the new OMA Director had acted arbitrarily, whimsically, or in bad faith, or that he had unjustly favored private respondent. The Director’s exercise of discretion was therefore sustained.

• Incomplete Appointment Doctrine — An appointment to a civil service position that has not been submitted to the Civil Service Commission within thirty days from its issuance is incomplete and ineffective. It confers no permanent title to the office upon the appointee, and the appointee cannot invoke security of tenure. The appointing authority may withdraw or revoke the appointment at any time before it is approved by the CSC. For an appointment to be complete, the following must be satisfied: (1) issuance by the appointing authority; (2) acceptance by the appointee; (3) submission to the CSC within thirty days from issuance; and (4) approval by the CSC. Where the appointment is not submitted within the statutory period, it lapses by operation of law.

• De Facto Officer Doctrine as Applied to Incomplete Appointments — An employee who assumes a position under an unapproved or incomplete appointment is regarded as a de facto officer. The acts of such officer are valid as to the public, but the officer possesses no legal right to the office and may be ousted at any time. The tolerance, acquiescence, or mistake of responsible officials does not cure the failure to obtain CSC approval.

• Discretionary Nature of the Appointing Power — The power to appoint is essentially discretionary; the appointing authority exercises it according to his or her best judgment, the only condition being that the appointee possesses the minimum qualifications required by law. Courts will not substitute their judgment for that of the appointing authority absent a clear showing of grave abuse of discretion.

• “An appointment not submitted to the Commission within thirty (30) days from the date of issuance which shall be the date appearing to the face of the appointment, shall be ineffective.” — This restates the controlling statutory rule and formed the ratio for dismissing petitioner’s claim.

• “The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not approved, may only be considered as a de facto officer.” — The Court quoted this from Favis v. Rupisan to underscore that official inaction cannot cure an incomplete appointment.

• “Until an appointment has become a completed act, it would likewise be precipitate to invoke the rule on security of tenure.” — This encapsulates the principle that security of tenure attaches only upon a valid, complete appointment.

• Favis v. Rupisan, 17 SCRA 190 — Followed. Established the rule that an employee under an unapproved appointment is merely a de facto officer and that official tolerance or mistake does not waive the requirement of CSC approval.

• Español v. Civil Service Commission, 206 SCRA 715 — Cited for the principle that an appointment is an essentially discretionary act and that courts will not disturb it absent grave abuse of discretion.

• Section 9(h), Presidential Decree No. 807 (Civil Service Decree) — Mandates that all appointments requiring CSC approval be submitted within thirty days from issuance; otherwise, the appointment becomes ineffective thirty days thereafter. The Court interpreted this provision as making petitioner’s appointment ineffective for non-compliance.

• Section 11, Rule V, Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) — Provides that an appointment not submitted to the Commission within thirty days from issuance shall be ineffective. The Court applied this provision to confirm that petitioner’s appointment lapsed before it was transmitted.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Feliciano, J., on leave.