MODULE 6 WON appointments violate Section 15, Article VII of the
1987 Constitution. (YES)
COMMENCEMENT OF OFFICIAL RELATIONS BY
APPOINTMENT
VELICARIA-GARAFIL VS OFFICE OF THE
PRESIDENT
GR NO. 203372
JUNE 16, 2015
FACTS:
Prior to the conduct of the May 2010 elections, then
President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) issued more than 800 appointments
to various positions in several government offices. This
however falls in the prohibition on midnight appointments
in Section 15, Article VII of the 1987 Constitution.
Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public service
or endanger public safety.
Thus, for purposes of the 2010 elections, 10 March 2010
was the cutoff date for valid appointments and the next
day, 11 March 2010, was the start of the ban on midnight
appointments. Section 15, Article VII of the 1987
Constitution recognizes as an exception to the ban on
midnight appointments only "temporary appointments to
executive positions when continued vacancies therein
will prejudice public service or endanger public safety."
None of the petitioners claim that their appointments fall
under this exception.
President Aquino issued EO 2 recalling, withdrawing,
and revoking appointments issued by President
Macapagal-Arroyo which violated the constitutional ban
on midnight appointments.
The petitioners seeks for reinstatement stating that
appointments were valid and their removal violated the
Civil Service Rules on Appointment.
ISSUE:
WON EO 2 is constitutional. (YES)
RULING:
The petitions have no merit. All of petitioners'
appointments are midnight appointments and are void
for violation of Section 15, Article VII of the 1987
Constitution. EO 2 is constitutional.
all these cases show that "none of the petitioners have
shown that their appointment papers (and transmittal
letters) have been issued (and released) before the
ban." The dates of receipt by the MRO, which in these
cases are the only reliable evidence of actual transmittal
of the appointment papers by President Macapagal-
Arroyo, are dates clearly falling during the appointment
ban. Thus, this ponencia and the dissent both agree that
all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the
1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a
government post is a process that takes several
steps to complete. Any valid appointment, including
one made under the exception provided in Section 15,
Article VII of the 1987 Constitution, must consist of:
1. The President signing an appointee's appointment
paper to a vacant office
2. The official transmittal of the appointment paper
(preferably through the MRO),
3. Receipt of the appointment paper by the appointee,
and
4. Acceptance of the appointment by the appointee
evidenced by his or her oath of office or his or her
assumption to office.
Of course the Court is aware of many precedents to the
effect that once an appointment has been issued, it
cannot be reconsidered, especially where the
appointee has qualified. But none of them refer to
mass ad interim appointments (three hundred and
fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On
the other hand, the authorities admit of exceptional
circumstances justifying revocation and if any
circumstances justify revocation, those described herein
should fit the exception.
The following elements should always concur in the
making of a valid (which should be understood as both
complete and effective) appointment:
(1) Authority to appoint and evidence of the exercise of
the authority;
(2) Transmittal of the appointment paper and evidence of
the transmittal;
(3) A vacant position at the time of appointment; and
(4) Receipt of the appointment paper and acceptance of
the appointment by the appointee who possesses all the
qualifications and none of the disqualifications.
The concurrence of all these elements should always
apply, regardless of when the appointment is made,
whether outside, just before, or during the appointment
ban. These steps in the appointment process should
always concur and operate as a single process. There is
no valid appointment if the process lacks even one step.
And, unlike the dissent's proposal, there is no need to
further distinguish between an effective and an
ineffective appointment when an appointment is valid.
Petitioners have failed to show compliance with all four
elements of a valid appointment. They cannot prove
with certainty that their appointment papers were
transmitted before the appointment ban took effect.
On the other hand, petitioners admit that they took
their oaths of office during the appointment ban.
Petitioners have failed to raise any valid ground for the
Court to declare EO 2, or any part of it, unconstitutional.
Consequently, EO 2 remains valid and constitutional.
LACSON VS ROMERO
84 PHIL 740
FACTS:
This is a quo warranto proceedings filed directly with this
Court is the Office of Provincial Fiscal of Negros, and the
right to said position as between the petitioner Antonio
Lacson and the respondent Honorio Romero.
Petitioner Lacson was on July 25, 1946, appointed by
the President of the Philippines, provincial fiscal of
Negros Oriental. The appointment was confirmed by the
Commission on Appointment on August 6, 1946. He took
his oath of office on August 10, 1946, and thereafter
performed the duties of that office.
Upon recommendation of the Secretary of Justice, on
May 17, 1949, the President nominated petitioner
Lacson to the post of provincial fiscal of Tarlac. On the
same date, the President nominated for the position of
provincial fiscal of Negros Oriental respondent Romero.
Both nominations were simultaneously confirmed by the
Commission on Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed
the office of fiscal of Tarlac. But respondent Romero took
his oath of office (the post of fiscal of Negros Oriental) in
Manila on June 16, 1949, notified the Solicitor General of
the fact, and thereafter proceeded to his station.
When petitioner Lacson requested payment of his salary
for the period from June 16 to June 23, 1949 as
provincial fiscal of Negros Oriental, Angel Paguia,
Provincial Auditor and L. J. Alfabeto, Provincial
Treasurer turned down his claim and instead paid
respondent Romero the salary for the position of
provincial fiscal from June 16, 1949, and continued
paying it to him periodically up to the present time.
The purpose of the present action is to establish the right
of the petitioner to the post of provincial fiscal of Negros
Oriental and to oust the respondent Romero therefrom.
ISSUE:
WON Lacson should hold the office of provincial fiscal of
Negros Oriental.
RULING:
The appointment to a government post like that of
provincial fiscal to be complete involves several steps.
First, comes the nomination by the President.
Then to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to
confirm said nomination.
The last step is the acceptance thereof by the appointee
by his assumption of office.
The first two steps, nomination and confirmation,
constitute a mere offer of a post. They are acts of the
Executive and Legislative departments of the
Government. But the last necessary step to make the
appointment complete and effective rests solely with
the appointee himself. He may or he may not accept
the appointment or nomination.
Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can
compel him to do so, then he continues as provincial
fiscal of Negros Oriental and no vacancy in said office
was created, unless Lacson had been lawfully removed
as Such fiscal of Negros Oriental.
As to the second question, it is obvious that the intended
transfer of Lacson to Tarlac on the basis of his
nomination thereto, if carried out, would be equivalent to
a removal from his office in Negros Oriental. To appoint
and transfer him from one province to another would
mean his removal or separation from the first province.
The reason is that a fiscal is appointed for each province
and Lacson could not well and legally hold and occupy
the two posts of fiscal of Tarlac and Negros Oriental
simultaneously. To be fiscal for Tarlac must mean his
removal from Negros Oriental.
"A transfer of a Justice of the Peace outside of the
municipality of which he is appointed is in legal effect a
combined removal and appointment."
When the transfer is consented to and accepted by the
transferees, then there would be no question; but where
as in the present case, the transfer is involuntary and
objected to, then it is necessary to decide whether the
removal is lawful.
What is the nature of the office of provincial fiscal? Is it
included in the Civil Service? The answer is,
undoubtedly, in the affirmative. Article XII, section 1 of
our Constitution provides that "a Civil Service embracing
all branches and subdivisions of the Government shall
be provided by law." Section 668 of the Administrative
Code as amended by Com. Act No. 177, sec. 6, provides
that "the Philippine Civil Service shall embrace all
branches and subdivisions of the Government;" and
section 670 of the same Code provides that "person in
the Philippine Civil Service pertain either to the classified
or unclassified service." Section 671 of the same code
as amended by Commonwealth Act No. 177, section 8 in
part provides as follows:
Sec. 671. Person embraced in unclassified. —
The following officers and employees constitute
the unclassified service:.lawphi1.nêt
(a) A secretary, a sergeant-at-arm, and such
other officers as may be required and chosen by
the National Assembly in accordance with the
Constitution.
(b) Officers, other than the provincial treasurers
and Assistant Directors of Bureaus or
Offices, appointed by the President of the
Philippines, with the consent of the Commission
on Appointments of the National Assembly, and
all other officers of the Government whose
appointments are by law vested in the President
of the Philippines alone.
(c) Elective officers.
A provincial fiscal who is nominated and appointed by
the President with the consent of the Commission on
Appointments, as was petitioner Lacson, is, under
section 671 (b) above-quoted, included in the
unclassified service of the Civil Service.
The next question arises as to whether the President
even with the concurrence or consent of the Commission
on Appointments may remove a provincial fiscal without
cause. The Constitution itself denies said right. Article
XII, section 4 of said instrument provides that "no officer
or employee in the civil service shall be removed or
suspended except for cause as provided by law."
It is contended on of the respondent that the power of
removal is inherent in the power to appoint and that
consequently, the President had the right to remove the
petitioner as provincial fiscal of Negros Oriental and
transfer him to Tarlac. Ordinarily, where there is no
constitutional limitation the contention of the respondent
would be tenable; but where as in the Philippines and as
already stated the Constitution forbids the removal of a
civil service official or employee like the petitioner except
for cause as provided by law, said right of the Chief
Executive is qualified and limited. That constitutional
prohibition is a limitation to the inherent power of the
Executive to remove those civil service officials whom he
appoints.
Before a civil service official or employee can be
removed, there must first be an investigation at which he
must be given a fair hearing and an opportunity to
defend himself. In the case of petitioner Lacson, the
record fails to show, neither is there any claim that he
has been charged with any violation of law or civil
service regulation, much leas investigated and thereafter
found guilty so as to authorize or warrant removal from
office.
Thus there was no removal of Lacson as provincial fiscal
of Negros Oriental.
In conclusion, we find and declare the petitioner to be
the provincial fiscal of Negros Oriental, and the
respondent not being entitled to said post, is hereby
ordered to surrender to the petitioner all the records or
papers appertaining to said office that may have come
into his possession. The respondent provincial auditor
and provincial treasurer, are hereby ordered to pay to
the herein petitioner his salary from June 16, 1949, and
as long as said petitioner continues to be the legal
incumbent to the office in question.
TOMALI VS CIVIL SERVICE COMMISION
GR NO. 110598
DECEMBER 1, 1994
FACTS:
Petitioner Mona A. Tomali was appointed Development
Management Officer II ("DMO II") in the Office on Muslim
Affairs ("OMA"). The appointment was extended by then
OMA Executive Director Dimasangcay A. Pundato. She
assumed the duties and functions of the office four
months later, or on 01 November 1990, at which time,
the appointment had not yet been transmitted to the Civil
Service Commission ("CSC") for approval.
On 16 July 1991, the new Director of the OMA, Dr. Ali
Basir Lucman, revoking the previous incomplete
appointment of petitioner, appointed private respondent
Rocaina M. Lucman to the position in question (DMO II).
Tomali sent a letter protesting her replacement.
Private respondent took her oath of office and assumed
the duties and functions of DMO II.
Petitioner reiterated her protest. She filed a case to
the Merit Systems Protection Board ("MSPB"), which
dismissed the case. Tomali appealed to the CSC. CSC
affirmed MSPB dismissal.
Thus this petition.
ISSUE:
WON Tomali’s appointment was complete. (NO)
RULING:
An appointment to a position in the civil service is
required to be submitted to the CSC for approval in order
to determine, in main, whether the proposed appointee is
qualified to hold the position and whether or not the rules
pertinent to the process of appointment are followed;
thus:
Sec. 9. Powers and Functions of the Commission.
— The Commission shall administer the Civil
Service and shall have the following powers and
functions:
xxx xxx xxx
(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except
those of presidential appointees, members of the
Armed Forces of the Philippines, police forces,
firemen, and jailguards, and disapprove those
where the appointees do not possess the
appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon
issue by the appointing authority if the appointee
assumes his duties immediately and shall remain
effective until it is disapproved by the Commission,
if this should take place, without prejudice to the
liability of the appointing authority for appointments
issued in violation of existing laws or rules:
Provided, finally, That the Commission shall keep a
record of appointments of all officers and
employees in the civil service. All appointments
requiring the approval of the Commission as herein
provided, shall be submitted to it by the appointing
authority within thirty days from issuance, otherwise
the appointment becomes ineffective thirty days
thereafter.
The Omnibus Rules Implementing Book V of Executive
Order No. 292, also known as the Administrative Code of
1987, among other things, provides:
Sec. 11. 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.
Compliance with the legal requirements for an
appointment to a civil service position is essential in
order to make it fully effective. Without the favorable
certification or approval of the Commission, in cases
when such approval is required, no title to the office
can yet be deemed to be permanently vested in favor
of the appointee, and the appointment can still be
recalled or withdrawn by the appointing authority. Until
an appointment has become a completed act, it would
likewise be precipitate to invoke the rule on security of
tenure.
The rule has always been that an appointment is
essentially a discretionary act, performed by an officer in
whom it is vested according to his best judgment, the
only condition being that the appointee should possess
all the qualifications required therefor. There is nothing
on record to convince us that the new OMA Director has
unjustly favored private respondent nor has exercised
his power of appointment in an arbitrary, whimsical or
despotic manner.
In sum, we see no grave abuse of discretion on the part
of public respondents in their questioned dismissal of
petitioner's protest.
LUEGO VS CSC
143 SCRA 327
FACTS:
The Luego was appointed Administrative Officer 11,
Office of the City Mayor, Cebu City, by Mayor Florentino
Solon on February 18, 1983. The appointment was
described as permanent" but the Civil Service
Commission approved it as "temporary," subject to the
final action taken in the protest filed by the private
respondent and another employee, and provided "there
(was) no pending administrative case against the
appointee, no pending protest against the appointment
nor any decision by competent authority that will
adversely affect the approval of the appointment."
Civil Service Commission found the private respondent
better qualified than the petitioner for the contested
position and, accordingly, directed "that Felicula Tuozo
be appointed to the position of Administrative Officer 11
in the Administrative Division, Cebu City, in place of
Felimon Luego whose appointment as Administrative
Officer II is hereby revoked.
The petitioner, invoking his earlier permanent
appointment, is now before us to question that order and
the private respondent's title.
OSG contends that the petitioner could be validly
replaced in the instant case because his appointment
was temporary and therefore could be withdrawn at will,
with or without cause. Having accepted such an
appointment, it is argued, the petitioner waived his
security of tenure and consequently ran the risk of an
abrupt separation from his office without violation of the
Constitution.
ISSUE:
WON the Civil Service Commission is authorized to
disapprove a permanent appointment on the ground that
another person is better qualified than the appointee
and, on the basis of this finding, order his replacement
by the latter? (NO, Petitioner is entitled to the office)
RULING:
The stamping of the words "APPROVED as
TEMPORARY" did not change the character of the
appointment, which was clearly described as
"Permanent" in the space provided for in Civil Service
Form No. 33, dated February 18, 1983. What was
temporary was the approval of the appointment, not the
appointment it sell And what made
the approval temporary was the fact that it was made to
depend on the condition specified therein and on the
verification of the qualifications of the appointee to the
position.
The Civil Service Commission is not empowered to
determine the kind or nature of the appointment
extended by the appointing officer, its authority being
limited to approving or reviewing the appointment in the
light of the requirements of the Civil Service Law. When
the appointee is qualified and authorizing the other
legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in
accordance with the Civil Service Laws.
Indeed, the approval is more appropriately called an
attestation, that is, of the fact that the appointee is
qualified for the position to which he has been named.
As we have repeatedly held, such attestation is required
of the Commissioner of Civil Service merely as a check
to assure compliance with Civil Service Laws.
All the Commission is actually allowed to do is check
whether or not the appointee possesses the appropriate
civil service eligibility or the required qualifications. If he
does, his appointment is approved; if not, it is
disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on--or as the
Decree says, "approves" or "disapproves" an
appointment made by the proper authorities.
To be sure, it had no authority to revoke the said
appointment simply because it believed that the private
respondent was better qualified for that would have
constituted an encroachment on the discretion vested
solely in the city mayor.
In preferring the private respondent to the petitioner, the
Commission was probably applying its own Rule V,
Section 9, of Civil Service Rules on Personnel Actions
and Policies, which provides that "whenever there are
two or more employees who are next-in-rank, preference
shall be given to the employee who is most competent
and qualified and who has the appropriate civil service
eligibility." This rule is inapplicable, however, because
neither of the claimants is next in rank. Moreover, the
next-in-rank rule is not absolute as the Civil Service
Decree allows vacancies to be filled by transfer of
present employees, reinstatement, re-employment, or
appointment of outsiders who have the appropriate
eligibility.
AQUINO VS CSC
208 SCRA 240
FACTS:
SCOPE OF CIVIL SERVICE AND AUTHORITY OG
THE COMMISSION
LIGHT RAIL TRANSIT AUTHORITY (LRTA) VS
VENUS
GR NO. 163782
MARCH 2006
FACTS:
Petitioner LRTA is a government-owned and controlled
corporation. Petitioner METRO, was a qualified
transportation corporation duly organized in accordance
with the provisions of the Corporation Code, registered
with the Securities and Exchange Commission, and
existing under Philippine laws.
Petitioner LRTA constructed a light rail transit in
Kalookan City to Baclaran in Parañaque, Metro Manila.
Petitioner LRTA, after a bidding process, entered into a
ten (10)-year Agreement for the Management and
Operation of the Metro Manila Light Rail Transit System.
Petitioner METRO hired its own employees, including
herein private respondents. Petitioner METRO thereafter
entered into a collective bargaining agreement with the
employees.
LRTA and METRO executed a Deed of Sale where
petitioner LRTA purchased the shares of stocks in
petitioner METRO. LRTA and METRO continued with
their distinct and separate juridical personalities.
The Union filed a Notice of Strike with the National
Conciliation and Mediation Board – National Capital
Region against petitioner METRO on account of a
deadlock in the collective bargaining negotiation.
Sec. Laguesma issued on that same day an assumption
of jurisdiction order directing all the striking employees
"to return to work immediately.
Despite the issuance workers failed to return to
work. Respondents here were considered dismissed
from employment for failure to follow directives.
Respondents filed a complaint for illegal dismissal before
the NLRC which rendered a judgement in their favour.
On appeal, the NLRC found that the striking workers
failed to heed the return to work order and reversed and
set aside the decision of the labor arbiter.
NLRC denied workers MR hence this petition.
Petitioner LRTA argues that it has no employer-
employee relationship with private respondent workers
as they were hired by petitioner METRO alone pursuant
to its ten (10)-year Agreement for the Management and
Operation of the Metro Manila Light Rail Transit System
with petitioner METRO. Private respondent workers
recognized that their employer was not petitioner LRTA
when their certified exclusive collective bargaining
representative, the Pinag-isang Lakas ng Manggagawa
sa METRO, Inc. – National Federation of Labor,
otherwise known as PIGLAS-METRO, INC. – NFL –
KMU, entered into a collective bargaining agreement
with petitioner METRO. Piercing the corporate veil of
METRO was unwarranted, as there was no competent
and convincing evidence of any wrongful, fraudulent or
unlawful act on the part of METRO, and, more so, on the
part of LRTA.
Petitioner LRTA further contends that it is a government-
owned and controlled corporation with an original
charter, Executive Order No. 603, Series of 1980, as
amended, and thus under the exclusive jurisdiction only
of the Civil Service Commission, not the NLRC.
ISSUE:
WON the NLRC has jurisdiction. (CSC has jurisdiction)
RULING:
Section 2 (1), Article IX – B, 1987 Constitution, expressly
provides that "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters." Corporations with
original charters are those which have been created by
special law and not through the general corporation law.
As a rule: under the present state of the law, the test in
determining whether a government-owned or controlled
corporation is subject to the Civil Service Law is the
manner of its creation such that government
corporations created by special charter are subject to its
provisions while those incorporated under the general
Corporation Law are not within its coverage.
Here should be no dispute then that employment in
petitioner LRTA should be governed only by civil service
rules, and not the Labor Code and beyond the reach of
the Department of Labor and Employment, since
petitioner LRTA is a government-owned and controlled
corporation with an original charter
In contrast, petitioner METRO is covered by the Labor
Code despite its later acquisition by petitioner LRTA.
Petitioner METRO was originally organized under the
Corporation Code, and only became a government-
owned and controlled corporation after it was acquired
by petitioner LRTA. Even then, petitioner METRO has no
original charter, hence, it is the Department of Labor and
Employment, and not the Civil Service Commission,
which has jurisdiction over disputes arising from the
employment of its workers. Consequently, the terms and
conditions of such employment are governed by the
Labor Code and not by the Civil Service Rules and
Regulations.
We therefore hold that the employees of petitioner
METRO cannot be considered as employees of
petitioner LRTA. The employees hired by METRO are
covered by the Labor Code and are under the jurisdiction
of the Department of Labor and Employment, whereas
the employees of petitioner LRTA, a government-owned
and controlled corporation with original charter, are
covered by civil service rules.
In sum, petitioner LRTA cannot be held liable to the
employees of petitioner METRO. The contention of the
petitioner that the private respondents abandoned their
position is also not acceptable. An employee who
forthwith takes steps to protest his lay-off cannot by any
logic be said to have abandoned his work.
Metro Transit Organization, Inc. liable for the illegal
dismissal of private respondents and orders it to pay
them their benefits and full back wages and moral
damages.
 CLASSES OF SERVICE
PEZA BOARD OF DIRECTORS VS MERCADO
GR NO. 172144
MARCH 9, 2010
FACTS:
Mercado was appointed as Group Manager for Policy
and Planning of PEZA. Her appointment was temporary
in nature.
Mercado was promoted to the position of Deputy
Director General for Policy and Planning. Her
appointment indicated the same as on permanent basis,
but with the following annotation: NO SECURITY OF
TENURE UNLESS HE/SHE OBTAINS CESO OR CSEE
ELIGIBILITY. CESO is the acronym for Career
Exercutive Service Officer, while CSEE is the acronym
for Career Service Executive Eligibility.
petitioner Lilia B. de Lima, in her capacity as PEZA
Director General, by letter of even date, advised
respondent of the termination of her appointment
effective on the closing hours of the day. They passed a
resolution appointing Otaliz , a CESO eligible, as Deputy
Director General for Policy and Planning effective
immediately.
Mercado filed a case stating that her degree in Master in
National Security Administration (MNSA) automatically
conferred upon her Career Executive Service (CES)
eligibility; that Republic Act No. (R.A.) 8748, which
amended R.A. 7916 or the PEZA Charter, did away with
the CES eligibility requirement for the position of Deputy
Director General; and that the termination of her
appointment was actuated with bad faith to entitle her to
moral and exemplary damages.
Petitioners countered that respondent’s MNSA degree at
best merely granted her a CESO rank, not eligibility, and
since she had not acquired CES eligibility, she had no
security of tenure with respect to her position and could,
therefore, be replaced at any time by Ortaliz who is a
CES eligible.
RTC held that he passage of R.A. 8748 notwithstanding,
the CES eligibility requirement for the position of Deputy
Director General remains.
The trial court, concluding that since respondent did not
have the required eligibility for the position, held that her
appointment was merely temporary and had no security
of tenure thereto, and that, therefore, it was deemed to
have expired upon the appointment of Ortaliz.
ISSUE:
WON Mercado had security of tenure. (NO, she is not
CES eligible)
RULING:
Section 27 (1), of the Civil Service Law provides:
(1) Permanent status. – A permanent appointment shall
be issued to a person who meets all the requirements for
the position to which he is being appointed, including
the appropriate eligibility prescribed, in accordance with
the provisions of law, rules and standards promulgated
in pursuance thereof.
Clearly, for an examinee or an incumbent to be a
member of the CES and be entitled to security of tenure,
she/he must pass the CES examinations, be conferred
CES eligibility, comply with the other requirements
prescribed by the CES Board, and be appointed to a
CES rank by the President.
At present case, admittedly, before and up to the time of
the termination of her appointment, respondent did not
go through the four stages of CES eligibility
examinations.
By respondent’s attainment of an MNSA degree, she
was not conferred automatic CES eligibility. It was, as
above-quoted portions of CESB Resolution No. 204
state, merely accredited as "equivalent to passing the
Management Aptitude Test Battery." For respondent to
acquire CES eligibility and CES rank, she could
"proceed to the second stage of the eligibility
examination process . . . and the other stages of the
examination . . . in accordance with existing policies and
regulations"; and that if respondent as MNSA degree
holder passed the three other stages of the CES
eligibility examinations and is conferred CES eligibility,
she could "qualify for appointment to CES ranks,"
PROVIDED that she meets and complies "with other
requirements of the CES Board and the Office of the
President to qualify for rank appointment."
Mercado did not undergo the second, third and fourth
stages of the CES eligibility examinations prior to her
appointment or during her incumbency as Deputy
Director General up to the time her appointment was
terminated, she was not a CES eligible, as indeed
certified to by the CES Board.
CSC VS CA
GR NO. 185766
NOVEMBER 23, 2010
FACTS:
(This is a 2 consolidated case) The Board of Directors of
PCSO resolved to appoint Josefina A.
Sarsonas (Sarsonas) as Assistant Department Manager
II of the Internal Audit Department (IAD) of PCSO under
temporary status. Thus, on the same day, PCSO
General Manager Rosario Uriarte issued a temporary
appointment to Sarsonas.
CSC-field (CSC-NCR) office however, disapproved the
temporary appointment of Sarsonas as she failed to
meet the eligibility requirement for the position.
PCSO filed an appeal with the CSC-National Capital
Region (CSC-NCR), then to CSC which rendered a
decision of affirming Sarsona’s appointment.
PCSO filed an MR but was denied.
In the second case, PCSO Board of Directors resolved
to appoint Lemuel G. Ortega (Ortega) as Assistant
Department Manager II of its Planning and Production
Department.
CSCFO-OP disapproved the temporary appointment of
Ortega for his failure to meet the eligibility requirement
for the position. CSCFO-OP further reasoned out that
there were other qualified third-level eligibles working in
PCSO who were willing and available to be appointed to
the subject position, namely, Mercedes Hinayon and
Reynaldo Martin.
CSC-NCR affirmed CSCFO-OP's disapproval of
Ortega's temporary appointment on the ground that he
failed to acquire the required eligibility despite the four-
year period within which he could have done so.
CA ruled that in both cases, position of Assistant
Department Manager II requires CSE
eligibility, rendering improper the temporary
appointments of Sarsonas and Ortega, respectively.
ISSUE:
WON Sorsona and Ortega requires third level eligibility
to hold as an Assistant Department Manager II. (NO,
they are not appointed by the president thus CES is NOT
required)
RULING:
The CES covers presidential appointees only. Corollarily,
as the position of Assistant Department Manager II does
not require appointment by the President of the
Philippines, it does not fall under the CES. Therefore, the
temporary appointments of Sarsonas and Ortega as
Assistant Department Manager II do not require third
level eligibility pursuant to the Civil Service Law, rules
and regulations.
Executive Order No. 292 or the Administrative Code of
1987 provides for three (3) classes or levels in the career
service. Book V, Title I, Subsection A, Chapter 2, Section
8 thereof provides:
SEC. 8. Classes of Positions in the Career Service. -
(1) Classes of positions in the career service
appointment to which requires examinations shall be
grouped into three major levels as follows:
(a) The first level shall include clerical, trades, crafts,
and custodial service positions which involve non-
professional or sub professional work in a non-
supervisory or supervisory capacity requiring less than
four years of collegiate studies;
(b) 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; and
(c) The third level shall cover positions in the Career
Executive Service.
(2) Except as herein otherwise provided, entrance to
the first two levels shall be through competitive
examinations, which shall be open to those inside
and outside the service who shall meet the minimum
qualification requirements. Entrance to a higher level
does not require previous qualification in the lower
level. Entrance to the third level shall be prescribed by
the Career Executive Service Board.
(3) Within the same level, no civil service examination
shall be required for promotion to a higher position in
one or more related occupation groups. A candidate for
promotion should, however, have previously passed the
examination for that level. (Emphasis provided.)
Section 7 of the same code specifically delineates the
coverage of the Career Executive Service, thus:
SEC. 7. Career Service. - The Career Service shall be
characterized by (1) entrance based on merit and fitness
to be determined as far as practicable by competitive
examination, or based on highly technical qualifications;
(2) opportunity for advancement to higher career
positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which prior
qualification in an appropriate examination is required;
(2) Closed Career positions which are scientific, or highly
technical in nature; these include the faculty and
academic staff of state colleges and universities, and
scientific and technical positions in scientific or research
institutions which shall establish and maintain their own
merit systems;
(3) Positions in the Career Executive Service; namely,
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and
other officers of equal rank as may be identified by the
Career Executive Service Board, all of whom are
appointed by the President;
(4) Career officers, other than those in the Career
Executive Service, who are appointed by the President,
such as the Foreign Service Officers in the Department
of Foreign Affairs;
(5) Commissioned officers and enlisted men of the
Armed Forces which shall maintain a separate merit
system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental or
proprietary functions, who do not fall under the non-
career service; and
(7) Permanent laborers, whether skilled, semi-skilled or
unskilled. (Emphasis provided.)
Clearly, although the Administrative Code gives the
CESB jurisdiction over entrance to the third level or the
CES, the officers should be all "appointed by the
President."
in order for a position to be covered by the CES, two
elements must concur. First, the position must either be
(1) a position enumerated under Book V, Title I,
Subsection A, Chapter 2, Section 7(3) of the
Administrative Code of 1987, i.e. Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant Regional Director,
Chief of Department Service, or (2) a position of equal
rank as those enumerated, and
identified by the Career Executive Service Board to be
such position of equal rank. Second, the holder of the
position must be a presidential appointee. Failing in any
of these requirements, a position cannot be considered
as one covered by the third-level or CES.
In the case at bench, it is undisputed that the position of
Assistant Department Manager II is not one of those
enumerated under the Administrative Code of 1987.
There is also no question that the CESB has not
identified the position to be of equal rank to those
enumerated. Lastly, without a doubt, the holder of the
position of Assistant Department Manager II is appointed
by the PCSO General Manager, and not by the
President of the Philippines. Accordingly, the position of
Assistant Department Manager II in the PCSO is not
covered by the third-level or CES, and does not require
CSE eligibility.
GENERAL VS ROCO
GR NO. 143366 & 143524
JANUARY 29, 2001
FACTS:
Respondent Ramon S. Roco was appointed by then
President Ramos as Regional Director of the land
Transportation Office (LTO) in Region V, a position
equivalent to CES rank level V. He forthwith began to
assume and discharge the duties and responsibilities of
the said office. Subsequently, then President Estrada re-
appointed him to the same position on. At the time of
respondent's appointment in 1996 and 1999, he was not
a CES eligible. However, during his incumbency, or on
August 13, 1999, he was conferred CES eligibility by the
Career Executive Service Board.
On September 7, 1999, petitioner Luis Mario General,
who is not a CES eligible, was appointed by President
Estrada as Regional Director of the LTO in Region V, the
same position being occupied by Roco.
Aggrieved, respondent Roco filed before the Court of
Appeals a petition for quo warranto with prayer for the
issuance of a writ of preliminary injunction and/or
temporary restraining order. The Court of Appeals issued
a TRO enabling respondent Roco to re-assume the
disputed office. After the lapse of 60 days, there being
no writ of preliminary injunction issued, petitioner
General again assumed the said office.
The Court of Appeals rendered a decision affirming the
appointment of respondent Roco to the Office of
Regional Director of the LTO, Region V, nullified the
appointment of petitioner General and ordered him to
vacate the subject post in favor of respondent Roco.
From the decision of the CA, 2 separate cases were
filed. All against Roco.
The thrust of respondent's argument is that a career
executive service (CES) eligibility is all that an employee
needs to acquire security of tenure in the service; and
that appointment to a CES rank is not necessary for the
acquisition of such security of tenure. On the other hand,
petitioners in G.R. No. 143524 and G.R. No. 143366,
claim that CES eligibility alone will not suffice. Petitioners
contended that unless and until an employee in the
career executive service is appointed to the appropriate
CES rank, he acquires no security of tenure.
ISSUE:
WON Roco can be removed from office.
RULING:
Section 27 (1), of the Civil Service Law (Subtitle A, Title
I, Book V of E.O. No. 292), provides:
 (1) Permanent status. – A permanent
appointment shall be issued to a person who
meets all the requirements for the position to
which he is being appointed, including the
appropriate eligibility prescribed, in accordance
with the provisions of law, rules and standards
promulgated in pursuance thereof.
In the career executive service, the acquisition of
security of tenure which presupposes a permanent
appointment is governed by the rules and regulations
promulgated by the CES Board, thus:
Career Executive Service Eligibility
Passing the CES examination entitles the
examinee to a conferment of a CES eligibility
and the inclusion of his name in the roster of
CES eligibles. Conferment of CES eligibility is
done by the Board through a formal Board
Resolution after an evaluation is done of the
examinee's performance in the four stages of
the CES eligibility examinations.
xxx xxx xxx
Appointment to CES Rank
Upon conferment of a CES eligibility and
compliance with the other requirements
prescribed by the Board, an incumbent of a CES
position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the
President upon the recommendation of the
Board. This process completes the official's
membership in the CES and most
importantly, confers on him security of
tenure in the CES.
There are six (6) ranks in the CES ranking
structure. The highest rank is that of a Career
Executive Service Officer I (CESO I), while the
lowest is that of CESO VI.
The appropriate CESO rank to which a CES
eligible may be appointed depends on two major
qualification criteria, namely: (1) level of
managerial responsibility; and, (2) performance.
Performance is determined by the official's
performance rating obtained in the annual
CESPES. On the other hand, managerial
responsibility is based on the level of the general
duties and responsibilities which an eligible is
performing, as follows:
Levels of Duties and Responsibilities Rank
Equivalen
t would complete his membership in the CES, respondent
if level of managerial responsibilities I
are comparable to that of an
Undersecretary
If comparable to that of an Assistant II
Secretary
if comparable to that of a Bureau III
Director, or a Department Regional
Director
if comparable to that of an Assistant IV
Bureau Director, Department
Assistant Regional Director or
Department Service Chief
if comparable to that of Bureau V
Regional Director
if comparable to that of a Bureau VI
Assistant Regional Director
As a general rule, a CES eligible will be
recommended for appointment to the rank
equivalent of the level of his managerial
responsibility if his performance rating is
Satisfactory or higher. If the performance rating
is Outstanding, he will be recommended one
rank higher than his level of managerial
responsibility.
two requisites must concur in order that an employee in
the career executive service may attain security of
tenure, to wit:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure
of employees in the career executive service (except first
and second-level employees in the civil service), pertains
only to rank and not to the office or to the position to
which they may be appointed. Thus, a career executive
service officer may be transferred or reassigned from
one position to another without losing his rank which
follows him wherever he is transferred or reassigned. In
fact, a CESO suffers no diminution of salary even if
assigned to a CES position with lower salary grade, as
he is compensated according to his CES rank and not on
the basis of the position or office he occupies.
In the case at bar, there is no question that respondent
Ramon S. Roco, though a CES eligible, does not
possess the appropriate CES rank, which is – CES rank
level V, for the position of Regional Director of the LTO
(Region V). Falling short of one of the qualifications that
cannot successfully interpose violation of security of
tenure. Accordingly, he could be validly reassigned to
other positions in the career executive service.
It is settled that a permanent appointment can be issued
only "to a person who meet all the requirement for the
position to which he is being appointed, including the
appropriate eligibility prescribed."
At best, therefore, his appointment could be regarded
only as temporary. And being so, it could be withdrawn
at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
Under the mobility and flexibility principles of the
Integrated Reorganization Plan, CES personnel may be
reassigned or transferred from one position to another,
e. Assignments, Reassignments and Transferees …
Any provision of law to the contrary notwithstanding,
members of the Career Executive Service may be
reassigned or transferred from one position to another
and from one department, bureau or office to another;
provided that such reassignment or transfer is made in
the interest of public service and involves no reduction in
rank or salary; provided, further, that no member shall
be reassigned or transferred oftener than every two
years; and provided, furthermore, that if the officer
concerned believes that his reassignment or transfer is
not justified, he may appeal his case to the President.
Respondent capitalizes on the fact that petitioner Luis
Mario M. General is not a CES eligible. The absence,
However, of such CES eligibility is of no moment. As
stated in Part III, Chapter I, Article IV, paragraph 5(c), of
the Integrated Reorganization Plan –
"…the President may, in exceptional cases,
appoint any person who is not a Career
Executive Service eligible; provided that such
appointee shall subsequently take the required
Career Executive Service examination and that
he shall not be promoted to a higher class until
he qualified in such examination."
Evidently, the law allows appointment of those who are
not CES eligible, subject to the obtention of said
eligibility, in the same manner that the appointment of
respondent who does not possess the required CES
rank (CES rank level V) for the position of Regional
Director of the LTO, is permitted in a temporary capacity.
MONTECILLO VS CIVIL SERVICE COMMISSION
GR NO. 131954
JUNE 28, 2001
FACTS:
Petitioners assail the validity of CSC Memorandum
Circular No. 22, on the ground that its issuance
amounted to an abuse of CSC’s power to promulgate
rules and regulations pursuant to the Civil Service Law.
This originated from a case decided by this court in
Davao City Water District vs. CSC, which employee
positions in the Metropolitan Cebu Water District
(MCWD) were re-classified to conform with position
descriptions and corresponding salary grades in the civil
service. The the restructuring was conducted, three of
the petitioners in this case, applied for promotional
appointment to the position of "Secretary to the Assistant
General Manager" or "Private Secretary C", as the
position later came to be known. At the time of their
application, petitioners had been occupying the position
of "Department Secretary".
When their appointments were forwarded to the CSC
field office, they refused to approve petitioners’
appointments as "permanent" on the ground that the
position applied for was a "primarily confidential" and
"co-terminous" position. This is because of the CSC
memo 22 classified private secretary positions as
primarily confidential in nature. The term of office of the
appointees to said positions shall be coterminous with
the official they serve.
In this case, petitioners argue that memo circular 22,
unduly amended and expanded the scope of the non-
career service under Section 6, Article IV of the Civil
Service Decree, P.D. 807, which appears almost
identical to Section 9, Chapter 2, Book V of the 1987
Administrative Code.
They contend that respondent abused its power to
promulgate rules and regulations by issuing the
challenged circular, because the grant of rule-making
power to respondent did not authorize it to amend the
law by adding to the statutory enumeration. Petitioners
conclude that since said memorandum circular was
issued in excess of the powers granted to respondent, it
is null and void and consequently, the assailed CSC
resolution has no leg to stand on.
ISSUE:
WON CSC memo is valid. (YES)
RULING:
In the present case, there is no clear and persuasive
showing that respondent grossly abused its discretion or
exceeded its powers when it issued the assailed circular.
On the contrary, respondent was expressly empowered
to declare positions in the Civil Service as may properly
be classified as primarily confidential under Section 12,
Chapter 3, Book V of the Administrative Code of 1987.

To our mind, this signifies that the enumeration found in
Section 6, Article IV of the Civil Service Decree, which
defines the non-career service, is not an exclusive
list. Respondent could supplement the enumeration, as
it did when it issued Memorandum Circular No. 22, s. of
1991, by specifying positions in the civil service, which
are considered primarily confidential and therefore their
occupants are co-terminous with the official they serve.
The assailed memorandum circular can not be deemed
as an unauthorized amendment of the law. On the
contrary, it was issued pursuant to a power expressly
vested by law upon respondent. As such, it must be
respected by this Court as a valid issuance of a
constitutionally independent body.
ORCULLO VS CSC
GR NO. 138780
MAY 22, 2001
FACTS:
Orcullo, jr. was hired as Project Manager IV by the
Coordinating Council of the Philippine Assistance
Program (CCPAP)-BOT Center effective march 11,
1996. His employment was contractual and co-terminous
with the said project.
Undersecretary Francisco F. del Rosario, Executive
Director of CCPAP, confirmed petitioner's termination as
project manager of CCPAP.
Aggrieved by his dismissal, petitioner appealed the same
to the Civil Service Commission (CSC).
CSC dismissed petitioners appeal since the appointment
is contractual and co-terminous with the Philippine
Assistance Program Support Project and that it carries
the stipulated condition "Unless terminated sooner." The
latter condition has not been qualified by any safeguard.
Appellant Orcullo, when he accepted said contractual-
co-terminous anytime. He is, thus, not protected by the
security of tenure clause of the Constitution. The
contract is the law between the parties. And whatever is
stipulated therein governs the relationship between the
parties.
Orcullo filed and MR but CSC denied said motion. Thus
this petition.
Petitioner argues that, contrary to the findings of the
CSC, the phrase "unless terminated sooner" refers not to
the duration of his employment, but the duration of the
PAPS support project itself. He claims that since the
PAPS project was still ongoing, his services cannot be
terminated without just cause and without the
observance of due process. He asseverates that even
co-terminous employees like himself enjoy security of
tenure as embodied in the Constitution.
ISSUE:
WON employees in the public service, regardless of their
status of employment, are protected by the tenurial
security right embodied in the Constitution. (Petitioner
was validly terminated for cause.)
RULING:
It is undisputed that petitioner's employment with
CCPAP is contractual and co-terminous in nature. Such
a co-terminous employment falls under the non-career
service classification of positions in the Civil Service:
Sec. 9. Non-Career Service. - The Non-Career
Service shall be characterized by (1) entrance
on bases other that those of the usual tests of
merit and fitness utilized for the career service;
and (2) tenure which is limited to a period
specified by law, or which is coterminous with
that of the appointing authority or subject to his
pleasure, or which is limited to the duration of a
particular project for which purpose employment
was made.
The Non-Career Service shall include:
xxx
(4) Contractual personnel or those
whose employment in the government is
in accordance with a employment in the
government is in accordance with a
special contract to undertake a specific
work or job, requiring special or
technical skills not available in the
employing agency, to be accomplished
within a specific period, which in no case
shall exceed one year, and performs or
accomplishes the specific work or job,
under his own responsibility with a
minimum of direction and supervision
from the hiring agency.
The co-terminous status may thus be classified as
follows:
(1) Co-terminous with the project - when the appointment
is co-existent with the duration of a particular project for
which purpose employment was made or subject to the
availability of funds for the same;
(2) Co-terminous with the appointing authority - when
appointment is co-existent with the tenure of the
appointing authority or at his pleasure;
(3) Co-terminous with the incumbent - when the
appointment is co-existent with the appointee, in that
after the resignation, separation or termination of the
services of the incumbent the position shall be deemed
automatically abolished; and
(4) Co-terminous with a specific period - appointment is
for a specific period and upon expiration and upon
thereof, the position is deemed abolished.
A perusal of petitioner's employment contract will reveal
that his employment with CCPAP is qualified by the
phrase "unless terminated sooner." Thus, while such
employment is co-terminous with the PAPS project,
petitioner nevertheless serves at the pleasure of the
appointing authority as this is clearly stipulated in his
employment contract. We agree with the appellate
court's interpretation of the phrase "unless terminated
sooner" to mean "that his contractual job as Project
Manager IV from March 11, 1996 to January 30, 2000
could end anytime before January 30, 2000 if terminated
by the other contracting party-employer CCPAP.
Furthermore, records will show that petitioner garnered
an unsatisfactory rating during the probationary period of
his employment.
PAGCOR VS RILLORAZA
GR NO. 141141
JUNE 25, 2001
FACTS:
Administrative charges for dishonesty, grave
misconduct, conduct prejudicial to the best interest of the
service, and loss of confidence, were brought against
respondent Carlos P. Rilloraza, a casino operations
manager of petitioner PAGCOR.
He failed to stop a top-ranking officer from placing bets
over and above the allowable limit of P5,000.00 per deal,
he failed to stop the same officer from playing in the big
tables and lastly, he allowed the same officer to play
beyond the allowable time limit of 6:00 a.m.
PAGCOR Board handed down a Resolution dismissing
respondent and several others from PAGCOR, on the
grounds of dishonesty, grave misconduct and/or conduct
prejudicial to the best interest of the service and loss of
confidence.
Respondent appealed to the Civil Service Commission.
CSC dismissed Rilloraza. The Commission filed for MR
but was denied.
Court of Appeals affirmed the resolution of the
Commission.4 The appellate court ordered petitioner to
reinstate private respondent with payment of full
backwages plus all tips, bonuses and other benefits
accruing to his position and those received by other
casino operations managers for the period starting
January 5, 1998 until his actual reinstatement. Petitioner
filed a motion for reconsideration, which was denied thus
this petition.
PAGCOR insist that respondent is a primarily
confidential employee. Hence, he holds office at the
pleasure of the appointing power and may be removed
upon the cessation of confidence in him by the latter.
Such would not amount to a removal but only the
expiration of his term.
ISSUE:
WON Whether Rilloraza's position as a casino
operations manager qualifies as primarily confidential,
justifying his dismissal based on loss of confidence. (his
position was not primarily confidential position)
RULING:
The Civil Service Commission did not err in declaring
that Rilloraza was liable only for simple neglect of duty
(good faith was appreciated here). In the first place,
there is no evidence to sustain a charge of dishonesty.
Thus the CA’s decision was proper.
Justice Regalado’s incisive discourse yields three (3)
important points: first, the classification of a particular
position as primarily confidential, policy-determining or
highly technical amounts to no more than an executive
or legislative declaration that is not conclusive upon the
courts, the true test being the nature of the position.
Second, whether primarily confidential, policy-
determining or highly technical, the exemption provided
in the Charter pertains to exemption from competitive
examination to determine merit and fitness to enter the
civil service. Such employees are still protected by the
mantle of security of tenure. Last, and more to the point,
Section 16 of P.D. 1869, insofar as it declares all
positions within PAGCOR as primarily confidential, is
not absolutely binding on the courts.
The Supreme Court has constantly held that whether or
not a position is policy-determining, primarily confidential
or highly technical, it is determined not by the title but by
the nature of the task that is entrusted to it.
As casino operations manager, Rilloraza’s duties and
responsibilities are: controls and supervises the
Operations Division of the branch. He reports directly to
the Branch Manager or to the Branch Manager for
Operations in Metro Manila branches.
Undoubtedly, respondent’s duties and responsibilities
call for a great measure of both ability and dependability.
They can hardly be characterized as routinary, for he is
required to exercise supervisory, recommendatory and
disciplinary powers with a wide latitude of authority. His
duties differ markedly from those we previously ruled as
not primarily confidential.
In this sense, he is a tier above the ordinary rank-and-file
in that his appointment to the position entails faith and
confidence in his competence to perform his assigned
tasks. Lacking, therefore, is that amplitude of
confidence reposed in him by the appointing power
so as to qualify his position as primarily confidential.
PROVINCIAL GOVERNMENT OF CAMARINES
NORTE VS BEATRIZ GONZALES
GR NO. 185740
JULY 23, 2013
FACTS:
Gonzales was appointed as the provincial administrator.
Her appointment was on a permanent capacity.
Governor Jess B. Pimentel sent Gonzales a
memorandum directing her to explain in writing why no
administrative charges should be filed against her for
gross insubordination/gross discourtesy in the course of
official duties, and conduct grossly prejudicial to the best
interest of the service.
After Gonzales submitted her comment, an Ad Hoc
Investigation Committee found her guilty of the charges
against her, and recommended to Governor Pimentel
that she be held administratively liable.
Governor Pimentel adopted the Ad Hoc Investigation
Committee’s recommendation and dismissed Gonzales.
Gonzales appealed Governor Pimentel’s decision to the
Civil Service Commission (CSC). CSC modified and
found Gonzales guilty of insubordination and suspending
her for six months. This decision was appealed by
Governor Pimentel, which the CSC denied.
CSC issued a reinstatement since he had already served
her six-month suspension. Governor Pimentel reinstated
Gonzales as provincial administrator on October 12,
2000, but terminated her services the next day for lack of
confidence. CSC ruled that the provincial administrator
position is highly confidential and is coterminous in
nature.
It clarified that while the Local Government Code of 1991
(Republic Act No. RA 7160) made the provincial
administrator position coterminous and highly
confidential in nature, this conversion cannot operate to
prejudice officials who were already issued permanent
appointments as administrators prior to the new law’s
effectivity. According to the CSC, Gonzales has acquired
a vested right to her permanent appointment as
provincial administrator and is entitled to continue
holding this office despite its subsequent classification as
a coterminous position. The conversion of the provincial
administrator position from a career to a non-career
service should not jeopardize Gonzales’ security of
tenure guaranteed to her by the Constitution. As a
permanent appointee, Gonzales may only be removed
for cause, after due notice and hearing. Loss of trust and
confidence is not among the grounds for a permanent
appointee’s dismissal or discipline under existing laws.
Petitioners contend here in this petition the provincial
administrator position has been converted into a highly
confidential, coterminous position by RA 7160. Hence,
Gonzales no longer enjoyed security of tenure to the
position she held prior to RA 7160’s enactment.
ISSUE:
1. WON Congress has re-classified the provincial
administrator position from a career service to a primarily
confidential, non-career service position. (YES)
2. WON Gonzales has security of tenure over her
position as provincial administrator of the Province of
Camarines Norte. (NO)
RULING:
1. Congress has reclassified the provincial administrator
position as a primarily confidential, non-career position.
As the CSC correctly noted, the administrator position
demands a close intimate relationship with the office of
the governor (its appointing authority) to effectively
develop, implement and administer the different
programs of the province. The administrator’s functions
are to recommend to the Sanggunian and to advise the
governor on all matters regarding the management and
administration of the province, thus requiring that its
occupant enjoy the governor’s full trust and confidence.
To emphasize the close relations that the provincial
administrators’ functions have with the office of the
governor, RA 7160 even made the provincial
administrator position coterminous with its appointing
authority.
Thus provincial administrator position primarily
confidential under the non-career service category of the
civil service.
Congress’ reclassification of the provincial administrator
position in RA 7160 is a valid exercise of legislative
power that does not violate Gonzales’ security of tenure
2. Having established that Congress has changed the
nature of the provincial administrator position to a
primarily confidential employee, the next question to
address would be its impact on Gonzales’ security of
tenure. According to the petitioner, Gonzales lost her
security of tenure when the provincial administrator
position became a primarily confidential position.
Gonzales, on the other hand, retorted that the
conversion of the position should not be retroactively
applied to her, as she is a permanent appointee.
The nature of a position may change by law according to
the dictates of Congress. The right to hold a position, on
the other hand, is a right that enjoys constitutional and
statutory guarantee, but may itself change according to
the nature of the position.
Security of tenure in public office simply means that a
public officer or employee shall not be suspended or
dismissed except for cause, as provided by law and after
due process. It cannot be expanded to grant a right to
public office despite a change in the nature of the office
held. In other words, the CSC might have been legally
correct when it ruled that the petitioner violated
Gonzales’ right to security of tenure when she was
removed without sufficient just cause from her position,
but the situation had since then been changed. In fact,
Gonzales was reinstated as ordered, but her services
were subsequently terminated under the law prevailing
at the time of the termination of her service; i.e., she was
then already occupying a position that was primarily
confidential and had to be dismissed because she no
longer enjoyed the trust and confidence of the appointing
authority. Thus, Gonzales’ termination for lack of
confidence was lawful. She could no longer be reinstated
as provincial administrator of Camarines Norte or to any
other comparable position. This conclusion, however, is
without prejudice to Gonzales’ entitlement to retirement
benefits, leave credits, and future employment in
government service.
To be sure, both career and non-career service
employees have a right to security of tenure.1âwphi1 All
permanent officers and employees in the civil service,
regardless of whether they belong to the career or non-
career service category, are entitled to this guaranty;
they cannot be removed from office except for cause
provided by law and after procedural due process. The
concept of security of tenure, however, labors under a
variation for primarily confidential employees due to the
basic concept of a "primarily confidential" position.
Serving at the confidence of the appointing authority, the
primarily confidential employee’s term of office expires
when the appointing authority loses trust in the
employee. When this happens, the confidential
employee is not "removed" or "dismissed" from office;
his term merely "expires" and the loss of trust and
confidence is the "just cause" provided by law that
results in the termination of employment. In the present
case where the trust and confidence has been
irretrievably eroded, we cannot fault Governor Pimentel’s
exercise of discretion when he decided that he could no
longer entrust his confidence in Gonzales.
PACETE VS CHAIRMAN COA
185 SCRA 1
FACTS:
Petitioner Elias V. Pacete was appointed by the then
Mayor Antonio C. Acharon of General Santos City as
City Attorney of the said city.
Mayor Acharon was charged with murder, and was
detained without bail. A few months later, on Mayor
Acharon ran for and was reelected as City Mayor of
General Santos City pending the criminal case against
him and even while he was in jail. Mayor Acharon issued
Administrative Order No. 1 designating Vice Mayor
Erlindo R. Grafilo as Acting Mayor. Acharon, while still in
prison, issued another memorandum which had the
effect of revoking the AO 1.
Acharon filed two cases with the Supreme Court
challenging the authority of Acting Mayor Grafilo to act
as such, claiming that notwithstanding the fact that he
was confined as a detention prisoner due to the murder
charge against him. Acharon may lawfully discharge the
duties and functions of the Office of the Mayor of
General Santos City. Both were dismissed.
In the meantime, acting Mayor Erlindo Grafilo suspended
petitioner Elias V. Pacete as City Attorney for a period of
ten (10) days. Finally, on July 20, 1972, notice was
served on petitioner that he had been removed as the
City Attorney on the ground of loss of confidence.
Ostensibly, the Acting Mayor's loss of confidence in
petitioner was the result of the legal opinion of the latter
impugning the authority of Acting Mayor Grafilo to act as
such and upholding the authority of Mayor Acharon to
discharge the functions of the Office of the Mayor even
while the latter was in prison.
Petitioner appealed to the Civil Service Commission the
termination of his services as City Attorney. The Acting
Commissioner on Civil Service in an indorsement
directed Acting Mayor Grafilo to allow Atty. Pacete to
continue in service as City Attorney pending resolution of
the merits of his appeal. Acting Mayor Grafilo
disregarded the directive of the Civil Service
Commissioner branding the same as an illegal order and
subsequently appointed Atty. Hilarion Polistico as City
Attorney of General Santos City.
Petitioner filed with the City Treasurer a claim for the
payment of his back salaries in the amount of P2,275.00
invoking in support of his claim the aforementioned
directive of the Commission on Civil Service. Petitioner's
voucher was forwarded by respondent City Treasurer to
respondent City Auditor who in turn referred the same to
the Auditor General in an indorsement for decision. The
Auditor General referred the claim to the Office of the
President for opinion. The respondent Assistant
Executive Secretary, by Authority of the President,
rendered an opinion stating that: (1) the termination of
petitioner's services as City Attorney by Acting Mayor
Grafilo was in accordance with law and; (2) Atty. Pacete
may not rightfully demand payment of back salaries for
the period during which he was out of the service and
was physically and legally not discharging his duties as
City Attorney of General Santos City.
ISSUE:
WON the termination of the services of the petitioner as
City Attorney is legal.
WON the position of City Attorney is confidential, for
which loss of confidence is a valid ground for termination
RULING:
In Besa v. PNB, the Court ruled that the position of Chief
Legal Counsel of the Philippine National Bank is both
confidential and technical in nature. In Claudio v. Subido,
the Court likewise ruled that "[t]he position in question,
that of the City Legal Officer, in one that requires the
utmost confidence on the part of the Mayor."
The tenure of officials holding primarily confidential
positions ends upon loss of confidence, because their
term of office lasts only as long as confidence in them
endures; and thus their cessation involves no removal.
When such confidence is lost and the officer holding
such position is separated from the service, such
cessation entails no removal but an expiration of the
term.
In the case of Hernandez vs. Villegas, it was held: It is to
be understood of course that officials and employees
holding primarily confidential positions continue only for
so long as confidence in them endures. The termination
of their official relation can be justified on the ground of
loss of confidence because in that case their cessation
from office involved no removal but merely the expiration
of the term of office — two different causes for the
termination of official relations recognized in the law of
Public Officers.
The position of Legal Counsel or City Attorney is
confidential in nature, for which loss of confidence is a
valid ground for termination. Hence, the Court must rule
that petitioner is not entitled to the backwages claimed
Hence, the Court must rule that petitioner is not entitled
to the backwages claimed. Moreover, having determined
the legality of petitioner's termination from service as
City Attorney.
CAREER EXECUTIVE SERVICE BOARD VS CIVIL
SERVICE COMMISSION
GR NO. 196890
JANUARY 11, 2018
FACTS:
Respondents Lodevico was appointed by then President
Arroyo as Director III, Recruitment and Career
Development Service, CESB. Lodevico possesses a
Career Service Executive Eligibility since November 29,
2001, as evidenced by the Certificate of Eligibility issued
by the CSC.
OP promulgated the Implementing Guidelines of MC 1,
which states that all non-Career Executive Service
Officers (non CESO) in all agencies of the Executive
Branch shall remain in office and continue to perform
their duties until July 31, 2010 or until their resignations
have been accepted and/or their replacements have
been appointed or designated, whichever comes first.
Acting pursuant to MC 1 and its implementing guidelines,
Chairman Abesamis of the CESB issued a Memorandum
which informed Lodevico that she shall only remain in
office and continue to perform her duties and
responsibilities until July 31, 2010.
Meanwhile, Memorandum Circular No.2 (MC 2), which
extended the term stated under MC 1 to October 31,
2010, was issued on July 29, 2010. The same circular
provides that all non-CESO occupying Career Executive
Service (CBS) positions in all agencies of the Executive
Branch shall remain in office and continue to perform
their duties and discharge their responsibilities until
October 31, 2010 or until their resignations have been
accepted and/or until their respective replacements have
been appointed or designated, whichever comes first,
unless they are re-appointed in the meantime. However,
any official whose service has been terminated or whose
resignation has been accepted on/or before July 31,
2010, but whose replacement has not yet been
appointed or designated shall be deemed separated
from service as of the date of termination or acceptance
of resignation.
Lodevico filed her appeal on the Memorandum issued by
Chairperson Abesamis before the CSC.
CSC rendered the assailed Decision which granted the
appeal of Lodevico and declared null and void the
termination of her services.
The CSC ruled that CESB Chairman Abesamis has no
power to terminate the services of Lodevico. As the latter
was a presidential appointee, only the President has the
authority to do so.
CESB filed for MR, was denied thus this petition.
ISSUE:
WON dismissal of Lodevico as Director III, Recruitment
and Career Development Services from the CESB,
proper. (YES, he had no security of tenure, removal was
proper)
RULING:
The Civil Service Law classifies the positions in the civil
service into career and non-career, to wit:
The career service is characterized by (1) entrance
based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on
highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security
of tenure; while a non-career position is characterized
by (1) entrance on bases other than those of the usual
tests of merit and fitness utilized for the career service;
and (2) tenure which is limited to a period specified by
law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or limited to the
duration of a particular project for which purpose
employment was extended.
There are also three levels of positions in the career
service, namely:
(a) the first level shall include clerical, trades, crafts and
custodial service positions which involve non-
professional or sub-professional work in a non-
supervisory or supervisory capacity requiring less than
four years of collegiate studies;
(b) 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; and
(c) the third level shall cover positions in the Career
Executive Service.
Under the third level, such positions in the Career
Executive Service are further classified into
Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service
and other officers of equivalent rank as may be identified
by the Career Executive Service Board, all of whom are
appointed by the President.
As to employment status and security of tenure,
appointment in the career service shall be either
permanent or temporary.
Lack of civil service eligibility makes an appointment a
temporary one and without a fixed and definite term and
dependent entirely upon the pleasure of the appointing
power.
On the other hand, the acquisition of security of tenure is
governed by the rules and regulations promulgated by
the CESB.
In sum, for an employee to attain a permanent status in
his employment, he must first be a CES eligible. Such
eligibility can be acquired by passing the requisite civil
service examinations and obtaining passing grade to the
same. "At present, the CES eligibility examination
process has four stages, namely:
(1) Written Examination;
(2) Assessment Center;
(3) Performance Validation; and
(4) Board Interview."
After completing and passing the examination process,
said employee is entitled to conferment of a CES
eligibility and the inclusion of his name in the roster of
CES eligibles. Such conferment of eligibility is done by
the CESB through a formal Board Resolution after an
evaluation is done of the employee's performance in the
four stages of the CES eligibility examinations.
Conferment of a CES eligibility does not complete
one's membership in the CES nor does it confer
security of tenure. It is also necessary that an
individual who was conferred CES eligibility be
appointed to a CES rank. Such appointment is made
by the President upon the recommendation of the
CESB. Only after such process will the employee’s
appointment in the service be considered as a
permanent one, entitling him to security of tenure.
The position of Director III, equivalent to Assistant
Bureau Director, is considered as a Career Executive
Service position, belonging to the third-level. Lodevico
met the first requisite as she is a CES eligible, evidenced
by a Certificate of Eligibility. However, the second
requisite is wanting because there was no evidence
which proves that Lodevico was appointed to a CES
rank.
Being CES eligible alone does not qualify her
appointment as a permanent one, for there is a
necessity for her appointment to an appropriate CES
rank to attain security of tenure.
That being said, We consider Lodevico's appointment as
mere temporary. Such being the case, her services may
be terminated with or without cause as she merely
serves at the pleasure of the appointing authority.
 GSIS FAMILY BANK VS VILLANUEVA
GR NO. 210773
FACTS:
Royal Bank was incorporated as a thrift bank. They
applied for appointment of conservator with Central Bank
but was denied. They were placed under receivership.
Ultimately there was a amicable settlement between
Royal bank and Central bank that led to transferring of
all its shares to Commercial Bank of Manila (subsidiary
of GSIS). Royal savings Bank was renamed Comsavings
bank. Later on Comsavings Bank and the GSIS
executed a Memorandum of Agreement where the latter
committed to infuse an additional capital of P2.5 billion
into Comsavings Bank. After the infusion of funds, the
GSIS effectively owned 99.55% of Comsavings Bank's
outstanding shares of stock.
Comsavings Bank changed its name to GSIS Family
Bank.
Acting on a request for opinion from GSIS Family Bank,
the General Counsel of Bangko Sentral ng Pilipinas
opined that GSIS Family Bank could not be categorized
as a government bank. One of the reasons is because at
its inception, the bank was set up for private needs.
Later on, then President Aquino issued an EO which
placed an indefinite moratorium on increases in salaries
and benefits of employees in government-owned or
controlled corporations and government financial
institutions (this was in RA 10149).
Benitez, GSIS Family Bank's president, sought opinion
from the Bangko Sentral ng Pilipinas as to whether GSIS
Family Bank may be considered as a government-owned
or controlled corporation or government bank under
Republic Act No. 10149.
Governance Commission clarified that GSIS Family
Bank was classified as a government financial institution
under Republic Act No. 10149. But GC as a government
financial institution, GSIS Family Bank was
unauthorized to enter into a collective bargaining
agreement with its employees "based on the
principle that the compensation and position
classification system is provided for by law and not
subject to private bargaining.
GSIS Union alleged that Republic Act No. 10149 does
not apply to GSIS Family Bank, as it was a private bank
created and established under the Corporation Code. It
asserted that even if the Government Service Insurance
System owned a majority of GSIS Family Bank's
outstanding capital stock, the change in ownership of
shares did not automatically place the bank under the
operation of Republic Act No. 10149.
GSIS Family Bank's refusal to negotiate a new collective
bargaining agreement, the GSIS Union filed a Complaint
before the National Conciliation and Mediation Board,
later on they strike. They aimed to compel GSIS Family
Bank to abide by the provisions of their existing
Collective Bargaining Agreement.
Petitioner contends that GSIS Family Bank does not
perform functions for public needs since it was created
"by private individuals in their own private capacities
pursuant to the provisions of the Corporation Code, to
advance their own private, personal and economic or
financial and business needs or interests.
Petitioners argued that GSIS owning the majority of
GSIS Family Bank's shares of stock, the bank did not
automatically fall within the ambit of Republic Act No.
10149. Further, the law's enactment did not
automatically convert it into a government-owned or
controlled corporation or a government financial
institution.
Finally, petitioner stresses that as a private corporation
established under the Corporation Code, GSIS Family
Bank and its employees are covered by the applicable
provisions of the Labor Code, not the Civil Service Law.
Thus, the Collective Bargaining Agreement between
petitioner and GSIS Family Bank cannot be impaired by
Republic Act No. 10149.
ISSUE:
WON GSIS Family Bank, a non-chartered government-
owned or controlled corporation, can enter into a
collective bargaining agreement with its employees.
RULING:
To clarify which of the government entities could be
classified as a government-owned or controlled
corporation.
A government-owned or controlled corporation is:
(1) established by original charter or through the general
corporation law;
(2) vested with functions relating to public need whether
governmental or proprietary in nature; and
(3) directly owned by the government or by its
instrumentality, or where the government owns a
majority of the outstanding capital stock.
Possessing all three (3) attributes is necessary to be terms with its employees. Unless directly challenged in
classified as a government-owned or controlled the appropriate case and with a proper actual
corporation. controversy, the constitutionality and validity of Republic
Act No. 10149, as it applies to fully government-owned
There is no doubt that GSIS Family Bank is a and controlled non-chartered corporations, prevail.
government-owned or controlled corporation since
99.55% of its outstanding capital stock is owned and
controlled by the Government Service Insurance
System.

In National Housing Corporation vs. Juco (L-64313,

January 17, 1985, 134 SCRA 172), we laid down the
doctrine that employees of government-owned and/or
controlled corporations, whether created by special law
or formed as subsidiaries under the general Corporation
Law, are governed by the Civil Service Law and not by
the Labor Code.

Thus, under the present state of the law, the test in

determining whether a government-owned or
controlled corporation is subject to the Civil Service
Law is the manner of its creation such that
government corporations created by special charter
are subject to its provisions while those
incorporated under the general Corporation Law are
not within its coverage.

While the right to self-organization is absolute, the right

of government employees to collective bargaining and
negotiation is subject to limitations.

Collective bargaining is a series of negotiations between

an employer and a representative of the employees to
regulate the various aspects of the employer-employee
relationship such as working hours, working conditions,
benefits, economic provisions, and others.

Relations between private employers and their

employees are subject to the minimum requirements of
wage laws, labor, and welfare legislation. Beyond these
requirements, private employers and their employees
are at liberty to establish the terms and conditions of
their employment relationship. In contrast with the
private sector, the terms and conditions of employment
of government workers are fixed by the legislature; thus,
the negotiable matters in the public sector are limited to
terms and conditions of employment that are not fixed by
law

Government employees may, therefore, through their

unions or associations, either petition the Congress for
the betterment of the terms and conditions of
employment which are within the ambit of legislation or
negotiate with the appropriate government agencies for
the improvement of those which are not fixed by law.

GSIS Family Bank could not be faulted for refusing to

enter into a new collective bargaining agreement with
petitioner as it lacked the authority to negotiate economic