EVALUACIÓN CUALITATIVA

 Personnel action denotes movement or progress of personnel in the civil service

 Must be done in accordance with such rules, standards, and regulations as may be promulgated by the CSC

a. Promotion

Civil Service Law, Sec. 26(2)

(2) Promotion. A promotion is a movement from one position to another with an increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. The movement may be from one department or agency to another, or from one organizational unit to another in the same department or agency.

Civil Service Law, Sec. 32

Section 32. Merit Promotion Plans. Each department or agency shall establish promotion plans which shall be administered in accordance with the provisions of the Civil Service law and the rules, regulations and standards to be promulgated by the Commission. Such plans shall include provisions for a definite screening process, which may include tests of fitness, in accordance with standards and guidelines set by the Commission. Promotion Boards may be organized subject to criteria drawn by the Commission.

 “Usually accompanied by increase in pay” means that pay hike is not a necessary element of promotion. Pay increase is never determinative of whether or not a promotion has been bestowed on an employee.

 Conversely, the pay of employees may be increased without promoting them.

 Promotion is in the nature of a gift, which may be validly refused and acceptance of which may not be compelled.

 Factors that may be considered in promotion (2007 Omnibus Rules, Rule VI, Sec. 5)

o Performance rating

o Education and training relevant to the vacant position

o Work experience and outstanding accomplishments

o Physical fitness

o Attitudes and personality traits which have a bearing on the vacant position o Potential and capability to perform the

duties of the vacant position and higher positions

Next-in-Rank Rule

Rule VI, Secs. 3 and 4, 2007 Omnibus Rules Implementing EO 292, Book V.

D2016 | Public Officers | Prof. G. Dizon-Reyes 47 which, by reason, of the hierarchical arrangements of

positions in the department or agency or in the government, is determined to be in nearest degree of relationship to a higher position as contained in the agency’s System of Ranking Positions.

Sec. 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and meets the other conditions for promotion may be promoted to the higher position when it becomes vacant. However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for the position.

 This rule applies only to promotion. It presupposes that long-serving employees have gained not only superior skills but also greater dedication to the public service (LOL).

 The rules merely provide for a preference. The appointing authority can appoint someone else.  Mandatory application of the next-in-rank rule

defeats the discretion of the appointing authority.  The reasons for disregarding the rule must be

made known to the next-in-rank.

 The overriding consideration is the fostering of a more efficient public service.

Automatic Reversion Rule

Sec. 13, 2007 Omnibus Rules Implementing EO 292, Book V

Rule VI, Sec. 13. All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments.

 see Divinagracia v. Sto. Tomas Panis v. CSC (1994)

SUMMARY: Panis questions the appointment of Veloso

to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center. The Court held that: 1) the position was validly created; 2) there was a valid screening process; and 3) the “next-in- rank” principle alleged by petitioner to have been disregarded only applied in cases of promotion. In this case, there was a creation of a new position.

DOCTRINE: The “next in rank” rule specifically applies

only in cases of promotion. This case involves a new office and a position created in the course of a valid

reorganization. Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office.

Divinagracia v. Sto. Tomas (1995)

SUMMARY: Mancita was the Municipal Planning and

Dev’t Coordinator of the Mun. of Pili for 5 years when the Mayor of Pili terminated her services allegedly pursuant to a regoranization and subsequently appointed Nacario, who was then holding the position of a Municipal Budget Officer, to the same position. Nacario was replaced in her previous position as MBO by several persons until the appointment of San Luis to the same. When Mancita appealed her case to the Merit Systems and Protection Board, the latter ruled in her favour and further ordered her reinstatement to the position of MPDC then occupied by Nacario. When Nacario asked the CSC on the status of her employment pursuant to the MPSB decision, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination, and that since Nacario was the former Municipal Budget Officer she had the right to return to that position pursuant to Sec. 13, Rule VI of the Rules Implementing EO 292 which mandates the return of an appointee, in a chain of promotions, to his former position once his appointment is subsequently disapproved. HELD: Nacario is entitled to return to her former position as Municipal Budget Office of Pili, despite the present occupation of San Luis of said position, after the RTC directed the reinstatement of Mancita to the position of MPDC. Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On the other hand, Prescilla B. Nacario who is protected by law in her security of tenure should be reinstated thereto.

Before a public official or employee can be automatically restored to her former position, there must be:

1) a series of promotions

2) all appointments are simultaneously submitted to the CSC for approval; and

3) the CSC disapproves the appointment of a person proposed to a higher position.

Santiago, Jr. v. CSC (1989)

SUMMARY: Customs Collector I Santiago was

promoted to Customs Collector III, passing over Customs Collector II Jose, who protested to the MSPB. BOC Commissioner defended his choice. MSPB and CSC reversed him and ordered Jose’s promotion because he is the next-in-rank and had better educational qualifications than Santiago. SC reversed the CSC and upheld the discretion and prerogative of

D2016 | Public Officers | Prof. G. Dizon-Reyes 48 appointing authorities over the next-in-rank rule. The

next-in-rank rule only provides for preference in consideration, not preference in appointment; so the appointing authority is still legally allowed to appoint persons other than the official next-in-rank. Here the appointing authority was justified in exercising his discretion and had meritorious reasons to appoint the “more assiduous” Santiago who won accolades for his successful anti-smuggling pursuits over the apparently “more educated” Jose who could not be bothered to assume a post in Bicol. CSC has no authority to reject an appointment on the ground that someone else is better qualified for a position since that would amount to encroachment on the appointing authority’s discretion.

DOCTRINE: The next-in-rank rule does not create a

mandatory preference. What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position.

Abila v. CSC (1991)

SUMMARY: Eleria, Administrative Officer III, protested

Abila’s appointment to Administrative Officer IV. The Merit System Protection Board, after initially dismissing the protest, later on appeal resolved to revoke Abila’s appointment and directed instead the OIC or Mayor to appoint Eleria on the ground that Eleria held a position next in rank to that of the vacancy, thus gave her promotional priority. The CSC affirmed the Board’s decision. SC ruled for Abila, stating that the Next-in- Rank rule relied on does not mean that a right is vested on the next in rank. First, it only applied in cases where a vacancy is filled by promotion, which did not happen in the case at bar. Also, that the rule is not absolute, meaning that even if there be a promotion that occurs, what the rule states is that the next in rank would be one of the first to be considered, thus giving the appointing authority wide discretion is selecting the appointee.

DOCTRINE: The next-in-rank rule invoked by the CSC

applies only where a vacancy is filled by promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law. One who is next-in-rank is entitled to preferential consideration for promotion to

the higher vacancy but it does not necessarily follow that he and no one else can be appointed.

Medenilla v. CSC (1991)

SUMMARY: Medenilla was first a contractual employee

of the DPWH (Public Relations Officer II) who was eventually detailed as Technical Assistant, then she was appointed as Supervising Human Resource Development Officer. Dellosa et al contested her appointment, stating that it should be one of them, since they were next-in-rank. CSC held that Medenilla did not possess the qualifications for the position, but the SC ruled otherwise, and ruled that the next-in rank rule no longer applies, considering her experience as well as other training she underwent (see held).

DOCTRINE: Preference given to permanent employees

assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. This is not always true and the law, moreover, does not preclude the infusion of new blood, younger dynamism, or necessary talents into the government service

Next-in-rank rule must give way to the exigencies of the public service.

Lustero v. IAC (1991)

SUMMARY: Palomar was permanently appointed

Supply Officer III, subject to the final outcome of the protest filed by Lusterio. Such protest questioned Palomar’s qualification to the position since he allegedly lacked the required experience. Palomar’s appointment was rescinded by the CSC which found him unqualified. Lusterio was found qualified and thus assumed the position. The RTC reversed the CSC finding and held that Palomar was qualified. The IAC affirmed. HELD: As correctly found by the trial court and the respondent IAC, Palomar meets all the requirements for the position of Supply Officer III. Thus, even if petitioner is also qualified, the appointing authority had the discretion to determine who of those qualified should be appointed to the contested position. The Merit Systems Board, the Civil Service Commission and the Office of the President committed an error, amounting to grave abuse of discretion, when they rescinded the appointment of the private respondent and directed the appointing authority to appoint the petitioner. Even if assuming the petitioner then occupied a next-in-rank position, that fact alone did not make it mandatory for the appointing power to appoint him to the contested position. The Civil Service Decree merely provides that when a vacancy occurs in a position in the second level of the Career Service, the employee in the government service who occupies the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are

D2016 | Public Officers | Prof. G. Dizon-Reyes 49 competent, qualified and with the appropriate civil

service eligibility, "shall be considered for promotion". It does not say "shall be promoted".

DOCTRINE: the rule is that if both persons competing

for a position are qualified for the position then neither the Merit Systems Board, the Civil Service Commission, or the Office of the President, nor the courts below or this Court, can substitute the judgment of the appointing authority in appointing private respondent to said position.

b. Transfer

Civil Service Law, Sec. 26(3)

(3) Transfer. A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment.

It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency: Provided, however, That any movement from the non-career service to the career service shall not be considered a transfer.

Rule VII, Sec. 5, 2007 Omnibus Rules Implementing Book V of EO 292

Sec. 5. A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment.

The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency: Provided, however, That any movement from the non-career service to the career service shall not be considered a transfer.

Transfer shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission.

Heads of oversight agencies and their staff are prohibited from transferring or being appointed to any position in the department/agency/office/local government unit which his unit is assigned or designated to oversee within one year after the termination of such assignment/designation.

The prohibition contemplates only transfer of officials of those offices/units who are in a position to exert

pressure or influence on the new or accepting agency but not to cover those occupying clerical and skilled positions such as clerks and drivers.

An employee who seeks appointment by transfer or promotion to another office shall first secure permission from the head of the department or agency where he is employed.

The permission to seek transfer to another office shall be valid for 30 days from the date it was granted but it may be renewed for another 30 days upon the request of the employee.

A head of a department or agency shall not propose or make an appointment for the transfer or promotion of an employee to his department or agency until the written consent of the head of the department or agency where the employee is employed is obtained.

 Transfer may be imposed as an administrative remedy/penalty.

 GR: Unconsented transfers are tantamount to illegal removals, being violations of security of tenure.

 EXCEPTIONS

o Temporary appointees

o CES personnel appointed to specific ranks (not positions)

o Periodical reassignment of officers by the agency head to improve service (provided that the officers may be legally transferred)

o Transfer pending investigation

 This rule presupposes that the officer is appointed to particular station. An officer merely assigned to a station can be transferred or reassigned to any station without violating security of tenure.

o Where the appointment does not indicate a specific station, the appointee may be transferred or assigned provided the transfer does not affect a substantial change in title, rank, or salary (e.g., Revenue Officers under the BIR and Election Officers under RA 8189).  A transfer which results in a demotion,

promotion, advancement, or reduction; or a transfer which is aimed at luring the employee away from his permanent position, must be done with the employee’s consent

 Temporary transfer is permissible even without employee’s consent.

People v. Reyes (1995)

SUMMARY: Maniego transferred Ebio to a position that

was effected on January 14, 1992. Ebio filed with the COMELEC a complaint regarding the transfer as it

D2016 | Public Officers | Prof. G. Dizon-Reyes 50 violated BP 881, which prohibits the transfer of any

employee in the civil service 120 days before the May 11, 1992 synchronized national and local elections. The Court, however, agreed with the RTC that no offense was committed since the Resolution enforcing the penal provision only took effect on January 15, 1992.

Vinzons-Chato v. Natividad (1995)

SUMMARY: Pursuant to E.O. 132 which approved the

streamlining of the BIR, Commissioner of Internal Revenue Vinzons-Chato transferred Salvador Blas, a Revenue District Officer, from his post in San Fernando, Pampanga under District 21 to Tuguegarao, Cagayan under District 14. In turn, a Solon Alcantara was ordered to report to Blas’ former post. Blas contested said transfer arguing that it was made without his consent

and would cause his dislocation and demotion or a

diminution in rank, status, and span of duties and responsibilities since the revenue district in Tuguegarao has a smaller pool of personnel and only ¼ of the revenue capacity of Pampanga. HELD: Transfer was valid. His transfer was part of a nationwide reshuffle or reassignment of revenue district officers designed to improve revenue collection and was made in the exigencies of the service. Similar to the case in DECS v. CA, such policy may have been based on the experience that when officials have stayed long enough in one station, there is a tendency for them to become stale and unchallenged by new situations and conditions, and that some administrative problems accumulate for a good number of years. Moreover, his transfer to the Tuguegarao revenue district did not entail any diminution in rank, salary, status and responsibilities. That the Tuguegarao revenue district is smaller than that in San Fernando, Pampanga has no basis because the classification of RDOs into Class A-1, A, B, C and D has been abolished and all RDOs are now considered to be of the same class.

Vinzons-Chato v. Zenorosa (2000)

SUMMARY: Rigodon in the BIR. Martinez was Assistant

RDO in BIR’s Paco-Pandacan district office. The retiring RDO recommended her as replacement, but BIR Commissioner LVC appointed someone else. Martinez