Friday, September 23, 2011

G.R. No. 71562 October 28, 1991

Is the position of Provincial Administrator primarily confidential?

Does the rule on nepotism apply to designation?


answer:

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:

Education : Bachelor's degree preferably in Law/Public or Business Administration.

Experience : Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor).

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

xxx xxx xxx

2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and local agencies in the province; and general planning, direction and control of the personnel functions and the administrative services of the Governor's Office.

3. DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management, administrative and organizational work in the operation of provincial government with highly complex, involved relationships with considerable delegation of authority and responsibility and a high degree of public contact.

render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination. 17 It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807, which reads:

Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

xxx xxx xxx

(2) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; . . .


x x x x

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:

By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. 24

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty. 25

In Borromeo vs. Mariano, 26 this Court said:

. . . All the authorities unite in saying that the term "appoint" is well-known in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual . . . (emphasis supplied).

In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 28

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