CSC-CES Cases 1
Public Corporation
G.R. No. 207422
ANGEL ABAD, Petitioner,
vs.
HERMINIO DELA CRUZ, Respondent.
DECISION
LEONEN, J.:
Appointments in the civil service are made
fundamentally on the basis of merit. Both the
Constitution and law ensure that those appointed are
fit for the position. While those who are next in rank to
a vacant position may be given some preference, no
one has a vested right to a government position.
Seniority and salary grades should be given their due
weight but should not trump the public interest.
This resolves the Petition for Review on
Certiorari1 filed by Angel Abad assailing the Court of
Appeals Decision2dated April 11, 2012. The Court of
Appeals affirmed the Civil Service Commission
Resolution3 dated June 22, 2010. This Resolution
affirmed the permanent appointment of Herminio Dela
Cruz as City Government Department Head III.4
Mayor Jaime R. Fresnedi appointed Herminio Dela
Cruz (Dela Cruz) as City Assessor5 of the City
Government of Muntinlupa in a permanent capacity
on December 28, 2006.6 The City Assessor is given
the item of City Government Department Head III.7
In Resolution No. 06-361, majority of the members of
8 Mayors Office the letter-complaint18 reiterating his
the Sangguniang Panlungsod of the City Government
of Muntinlupa concurred in the appointment of Dela
Cruz as City Government Department Head III.9
Pursuant to Civil Service Commission Resolution No.
02-1235 granting the City Government of Muntinlupa
the power to take final action on its appointments, the
appointment of Dela Cruz was considered attested to
by the Civil Service Commission.10
Angel A. Abad (Abad), Local Assessment Operations
Officer V in the Office of the City Assessor, wrote the
Civil Service Commission and requested the
disapproval of Dela Cruzs appointment as City
Government Department Head III.11 Abad alleged that
the position of City Government Department Head III
corresponded to Salary Grade 27, nine (9) salary
grades higher than Dela Cruzs former position as
Local Assessment Operations Officer III with Salary
Grade 18.12 According to Abad, Dela Cruzs
appointment violated Item 15 of Civil Service
Commission Memorandum Circular No. 3, Series of
2001, which prohibits the promotion of an employee
to a position more than three (3) salary grades above
his or her former position:13
15. An employee may be promoted or transferred to a
position which is not more than three (3) salary, pay
or job grades higher than the employees present
position except in very meritorious cases, such as: if
the vacant position is next-in- rank as identified in the
System of Ranking Positions (SRP) approved by the
head of agency, or the lone or entrance position
indicated in the agency staffing pattern.
Abad added that being a qualified next-in-rank, he
applied for the position of City Government
Department Head III. However, he and three (3) other
qualified applicants were allegedly excluded from the
selection process, in violation of Item 10 of Civil
Service Commission Memorandum Circular No. 3,
series of 2001.14 This provides:
10.For vacancies in the first and second levels, all
qualified next-in-rank employees shall be
automatically considered candidates for promotion to
the next higher position.
According to Abad, the appointment of Dela Cruz
caused "demoralization within [their] ranks."15
In the letter16 dated January 26, 2007, the Civil Service
Commission referred Abads letter to the City
Government of Muntinlupas grievance machinery for
proper action.
In the meantime, newly elected Mayor Aldrin San
Pedro (Mayor San Pedro) assumed his office in the
City Government of Muntinlupa on July 1, 2007. On
August 3, 2007, the main building of Muntinlupa City
Hall was gutted by fire, destroying the Office of the
City Personnel. The City Government of Muntinlupa,
therefore, failed to act on Abads Letter.17
Thus, on September 25, 2007, Abad filed with the
request for disapproval of Dela Cruzs permanent
appointment as City Government Department Head
III.
Mayor San Pedro referred Abads letter-complaint to
the City Government of Muntinlupas Personnel
Department.19
Finding that Dela Cruzs promotion violated Civil
Service Commission Memorandum Circular No. 3,
Series of 2001 on the three- salary-grade rule,20 the
Grievance Committee recommended the invalidation
of Dela Cruzs permanent appointment as City
Government Department Head III.21 This
recommendation was approved by Mayor San Pedro.
Mayor San Pedros approval was then referred to the
Civil Service Commission-National Capital Region for
appropriate action.22
In the Decision23 dated August 17, 2009, the Civil
Service Commission-National Capital Region
invalidated Dela Cruzs permanent appointment as
City Government Department Head III and ruled that
he was appointed in violation of the three-salary-
grade rule under Civil Service Commission
Memorandum Circular No. 3, Series of 2001.24
On Dela Cruzs appeal,25 the Civil Service
Commission reversed and set aside the Civil Service
Commission-National Capital Regions Decision in
Resolution No. 101276 dated June 22, 2010.26

The Civil Service Commission found that the City
Government of Muntinlupas Personnel Selection
Board ranked the applicants for City Government
Department Head III based on the following criteria:
performance, work history, awards, education,
training, potential, and physical characteristics and
personality traits. Out of nine (9) applicants, Dela
Cruz ranked first with a grade of 90.67 out of 100
points. Although it conceded that Abad was not
among the nine (9) applicants screened, the
Commission nevertheless ruled that Dela Cruzs
appointment was an exception to the three-salary-
grade rule.27 Dela Cruz underwent a deep selection
process rendering his appointment "very
meritorious[.]"28
The Commission likewise noted that contrary to the
rule that whoever alleges must prove, the Grievance
Committee placed on Dela Cruz the burden of proving
that Abad was not considered for appointment. The
Grievance Committee, therefore, erred. As for Abad,
he failed to prove the allegation that he was not
considered for promotion.29
Abads Motion for Reconsideration was denied by the
Civil Service Commission in the Resolution dated
November 12, 2010.30
A Petition for Review was filed before the Court of
Appeals.31 The Court of Appeals, however, dismissed
the Petition for Review in the Decision dated April 11,
2012.32
The Court of Appeals held that the three-salary-grade
rule "only gives preference to the person occupying
the position next in rank to a vacancy, but does not by
any means give [the employee next in rank] [the]
exclusive right to be appointed to the said
vacancy."33 As long as the employee appointed to the
position possesses the minimum qualifications for the
position, the appointment is valid.34
The Court of Appeals also found that Abad failed to
prove that he was the employee next in rank to the
position of City Government Department Head III.35 On
the other hand, Dela Cruz proved that he possessed
the minimum qualifications for the position and that he
underwent a deep selection process where he ranked
first among nine (9) applicants.36 The Court of
Appeals, thus, affirmed Dela Cruzs appointment.37
Both Motion for Reconsideration38 and Supplemental
Motion for Reconsideration39 filed by Abad were
denied by the Court of Appeals in its
Resolution40 dated June 4, 2013.
On July 25, 2013,41 Abad filed before this court the
Petition for Review on Certiorari. Dela Cruz filed his
Comment,42after which Abad filed his Reply.43
Abad insists that Dela Cruzs promotion was void for
violation of the three-salary-grade rule under Civil
Service Commission Memorandum Circular No. 3,
Series of 2001. Moreover, he and other employees
who were allegedly next in rank to the position of City
Government Department Head III were not
CSC-CES Cases 2
Public Corporation
considered for the position. Contrary to the finding of
the Civil Service Commission and the Court of
Appeals, the City Government of Muntinlupas
Personnel Selection Board did not conduct any deep
selection process in appointing a new City
Government Department Head III.44
Thus, Abad prays that this court invalidate Dela
Cruzs appointment and order the City Government of
Muntinlupa to conduct a new selection process for the
position of City Government Department Head III.45
Dela Cruz refutes Abads claim of lack of deep
selection process. As the Civil Service Commission
and the Court of Appeals found, the City Government
of Muntinlupas Personnel Selection Board conducted
a deep selection process for the position of City
Government Department Head III where he ranked
first out of nine (9) applicants.46Dela Cruz emphasizes
that the factual findings of the Civil Service
Commission, which was sustained by the Court of
Appeals, must be accorded great respect since these
have been made by the "administrative agency which
[has] acquired expertise [in the field of civil service
law.]"47
The issues for this courts resolution are:
First, whether respondent Dela Cruzs promotion to
the position of City Government Department Head III
is void because it violated the next- in-rank rule; and
Second, whether respondent Dela Cruzs promotion
to the position of City Government Department Head
III is void for lack of a deep selection process.
This Petition must be denied.
I
The Civil Service Commission is the "central
personnel agency of the Government[.]"48 Its mandate
is to ensure that appointments in the civil service are
generally made on the basis of merit and fitness.49 The
Commission is tasked to strengthen the merit and
rewards system in the civil service50 by administering
and enforcing the "constitutional and statutory
provisions on the merit system for all levels and ranks
in the Civil Service[.]"51
The Constitution adopts the merit system to ensure
that those appointed in the civil service are
competent.52 This is to "eradicate the system of
appointment to public office based on political
considerations and to eliminate . . . the element of
partisanship and personal favoritism in making
appointments."53
"The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government- owned or
controlled corporations with original charters."54 Thus,
all appointive local government employees are
covered by civil service laws and rules.55 Appointive
local government employees must possess the

qualifications provided by law for the positions they
hold.56
The qualifications the appointee must satisfy depend
on whether the position belongs to the career service
or the non-career service. Entrance in the career
service is based on "merit and fitness to be
determined as far as practicable by competitive
examination, or based on highly technical
qualifications[.]"57 On the other hand, entrance in the
non-career service is based on criteria other than the
"usual tests of merit and fitness[.]"58
Positions in the career service are further grouped
into three (3) levels. The first level includes positions
requiring less than four (4) years of collegiate
studies.59 The second level includes positions with
duties requiring at least four (4) years of college work
up to the Division Chief level.60 The third level includes
positions in the Career Executive Service.61
Candidates for appointment to first and second level
positions are generally screened by the Personnel
Selection Board.62 In local government units, the
Personnel Selection Board is headed by the local
chief executive and is composed of members
appointed by the sanggunian concerned.63 The
Personnel Selection Board of each local government
unit "assist[s] the local chief executive in the judicious
and objective selection of personnel for employment
as well as . . . promotion[.]"64
The appointing authority in local government units,
therefore, is the local chief executive who must
assess the merits of the Personnel Selection Boards
recommendation.65 If heads of offices or departments
in a local government unit are appointed, majority of
the members of the sanggunian concerned must
concur in the appointment.66 Finally, the appointment
must be submitted to the Civil Service Commission for
attestation within 30 days from the appointments
issuance date.67
For local government units, the appointment of an
assessor is mandatory.68 In the City Government of
Muntinlupa, the City Assessor is given the item of City
Government Department Head III under the Citys
2007 Personnel Schedule.69 As provided in Section
472(a) of the Local Government Code of 1991, the
assessor must possess the following qualifications:
SECTION 472. Qualifications, Powers and Duties. -
(a) No person shall be appointed assessor unless he
is a citizen of the Philippines, a resident of the local
government unit concerned, of good moral character,
a holder of a college degree preferably in civil or
mechanical engineering, commerce, or any other
related course from a recognized college or
university, and a first grade civil service eligible or its
equivalent. He must have acquired experience in real
property assessment work or in any related field for at
least five (5) years in the case of the city or provincial
assessor, and three (3) years in the case of the
municipal assessor.
CSC-CES Cases 3
Public Corporation
The 1997 Revised Qualification Standards Manual
reiterates the following minimum qualifications for the
position of assessor:
Education : Bachelors degree preferably in
Mechanical Engineering, Commerce
related course
Experience : Five (5) years experience in real
assessment work or in any related field
Training : None
Eligibility : First grade or its equivalent.70
The Civil Service Commission-National Capital
Region and the Civil Service Commission agree that
respondent possesses the minimum qualifications
under the law for the position of City Government
Department Head III:
A comparative evaluation of the qualifications of Dela
Cruz as indicated in his Personal Data Sheet (PDS)
vis--vis the qualification standards for the position of
City Assessor III shows that he meets all the
requirements for appointment thereto. Likewise, he
satisfies the requirements prescribed by RA 7160.
Hence, Dela Cruz qualifies for the issuance of
permanent appointment as City Assessor III.
Moreover, the appointment of Dela Cruz was
confirmed by the Sangguniang Panlungsod ng
Muntinlupa in Resolution No. 06-361 dated December
7, 2006.71
With its constitutional mandate, the Civil Service
Commission has acquired "specialized knowledge
and expertise"72in the field of civil service law.
Consequently, its findings of fact, if based on
substantial evidence, are "accorded great respect and
even finality"73 by appellate courts, this court included.
Absent grave abuse of discretion, this court will not
disturb the findings of fact of the Civil Service
Commission.74
II
Petitioner contends, however, that he is a qualified
next-in-rank who was bypassed for appointment to
the position of City Government Department Head III.
Thus, respondents appointment is void
notwithstanding his possession of the qualifications
for the position.
In promotions,75 the appointing authority must
automatically consider the employees next in rank as
candidates for appointment. Section 21, paragraphs
(2) and (3) of the Civil Service Law provide for the
next-in-rank rule:
SEC. 21. Recruitment and Selection of Employees.
...
(2)When a vacancy occurs in a position in the
first level of the Career Service as defined in
Section 6, the employees in the department
who occupy 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
competent, qualified and with the appropriate
civil service eligibility shall be considered for
promotion.
(3)When a vacancy occurs in a position in the
second level of the Career Service as defined
in Section 8, the employees in the government
service who occupy 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 competent, qualified and with the
appropriate civil service eligibility shall be
considered for promotion. (Emphasis
supplied)
"Promotion is the advancement of an employee from
one position to another with an increase in duties and
responsibilities as authorized by law, and usually
accompanied by an increase in salary."76 Employees
next in rank are those "who occupy 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 competent,
qualified and with the appropriate civil service
eligibility[.]"77
The reason behind the next-in-rank rule is to maintain
the policy of merit and rewards in the civil
service.78 Since appointments in the civil service are
based on merit and fitness, it is assumed that the
appointments of employees next in rank are equally
meritorious. Appointments that consider rank, salary
grades, and seniority promote progressiveness and
courtesy in the civil service.79
Still, the next-in-rank rule is a rule of preference on
who to consider for promotion.80 The rule does not
give employees next in rank a vested right to the
position next higher to theirs should that position
become vacant.81Appointment is a discretionary power
of the appointing authority.82 So long as the appointee
possesses the qualifications required by law, the
appointment is valid.83
Who to appoint is "a political question involving
considerations of wisdom which only the appointing
authority can decide."84 For the betterment of
government service, the appointing authority may
consider other "abstract criteria[,]"85 aside from the
minimum qualifications set by law in making
appointments. As this court explained in Cortez v.
Civil Service Commission:86
[M]any factors are taken into account in evaluating the
qualifications of prospective appointees and that
formal examinations, work experience and
educational attainment are only some of them. Such
abstract criteria as loyalty, cordiality, initiative,
resourcefulness, discipline, and other personality
traits are also properly considered. When making this
evaluation, the appointing authority should be given
the widest possible leeway and cannot be controlled
by the Commission. . . .
CSC-CES Cases 4
Public Corporation
....
As long as the appointee possesses the minimum
qualifications prescribed by law or regulations, there
is no question that his appointment must be respected
by the Civil Service Commission even if it be proved
that there are others with superior credentials.87
To successfully protest the issuance of an
appointment, the employee next in rank must prove
his or her status as a qualified next-in-rank; otherwise,
the protest shall be dismissed.88 Being next in rank is
a legal conclusion that would be the result of
inference from evidence properly alleged and proven.
The burden of proof rests on the employee alleging
that he or she is next in rank.89
Petitioner failed to discharge his burden of proving
that he was a qualified next-in-rank. He failed to prove
that his position of Local Assessment Operations
Officer V has been previously determined to be next-
in-rank to the position of City Government Department
Head III in the Office of the City Assessor of the City
Government of Muntinlupa.90
Petitioner, therefore, has no right to protest the
appointment of respondent.
III
Petitioner further contends that respondent was
appointed in violation of the three-salary-grade rule
found in Item 15 of Civil Service Commission
Memorandum Circular No. 3, Series of 2001.
Therefore, respondents appointment should be
recalled.
Item 15 of Civil Service Commission Memorandum
Circular, Series of 2001 on the three-salary-grade rule
states that "[a]n employee may be promoted or
transferred to a position which is not more than three
(3) salary, pay or job grades higher than the
employees present position[.]" However, this rule is
subject to the exception of "very meritorious cases."
These "very meritorious cases" are provided in Civil
Service Commission Resolution No. 03-0106 dated
January 24, 2003:
Any or all of the following would constitute a
meritorious case exempted from the 3-salary grade
limitation on promotion:
1.The position occupied by the person is next-
in- rank to the vacant position, as identified in
the Merit Promotion Plan and the System of
Ranking Positions (SRP) of the agency[;]
2.The position is a lone, or entrance position,
as indicated in the agencys staffing pattern;
3.The position belongs to the dearth category,
such as Medical Officer/Specialist positions
and Attorney positions;

4.The position is unique and/or highly
specialized such as Actuarial positions and
Airways Communicator;
5.The candidates passed through a deep
selection process, taking into consideration
the candidates superior qualifications in
regard to:
Educational achievements Highly
specialized trainings Relevant work
experience
Consistent high performance
rating/ranking; and
6.The vacant position belongs to the closed
career system.91 (Emphasis supplied)
Consistent with the next-in-rank rule, the appointing
authority shall consider for promotion qualified next-
in-rank employees. However, there are instances
when the employees next in rank occupy positions
whose salary grades are more than three (3) grades
lower than that corresponding to the vacant position.
These instances should not prevent the appointing
authority from filling the vacancy, but whoever is
appointed must undergo a deep selection process
and demonstrate his or her superior qualifications and
competence.92 This is to maintain the standard of merit
and fitness for appointment in the civil service.
The Civil Service Commission found that
respondents appointment fell under the fifth
exception provided in Civil Service Commission
Resolution No. 03-0106 dated January 24,
2003.93 Contrary to petitioners claim, the Personnel
Selection Board conducted a deep selection process,
ranking the candidates for the position of City
Government Department Head III based on the
following criteria: performance, 25 points; work
history, 25 points; awards, 5 points; education, 5
points; training, 10 points; potential, 10 points; and
physical characteristics and personality traits, 20
points.
The document denominated as Merit Promotion and
System of Ranking Position shows that out of nine (9)
candidates, respondent ranked first with a grade of
90.67 out of 100 points.94 Respondents case,
therefore, is a "very meritorious case." His promotion
from Local Assessment Operations Officer III with
Salary Grade 18 to City Government Department
Head III with Salary Grade 27 is valid.
IV
Even if petitioner were next in rank, he failed to
present evidence conclusively showing that he was
not considered for promotion. The document
denominated as Merit Promotion and System of
Ranking Position contains only nine (9) names;
hence, it appears to be a short list of those ranked for
promotion. To be shortlisted, however, is different
from being considered for promotion. Petitioner might
have been considered for promotion, but he did not
CSC-CES Cases 5
Public Corporation
make it to the short list. Absent contrary evidence, the
presumption that the City Government of Muntinlupas
Personnel Selection Board performed its duties with
regularity applies.95
In any case, we cannot order the invalidation of
respondents appointment in the present proceedings.
To do so would necessarily result in his removal from
an office he has physically possessed for almost nine
(9) years. Respondent has been discharging the
duties of the City Assessor, at the very least, under a
color of title to the position especially since he
possesses the qualifications for it. Analogous to a de
facto officer, respondents title to his office may only
be attacked through a petition for quo warranto filed
by the Government or by the person claiming title to
the office.96
In Tayko v. Capistrano,97 this court held that "[t]he title
of a de facto officer cannot be indirectly questioned....
Having at least colorable right to the office[,] [the de
facto officer's] title can be determined only in a quo
warranto proceeding or information in the nature of a
quo warranto at suit of the sovereign."98
Respondent possesses the minimum qualifications for
the position of City Government Department Head III.
Moreover, his promotion from a Salary Grade 18 to a
Salary Grade 27 position was a "very meritorious
case" since he has gone through a deep selection
process. Respondent Herminio Dela Cruz's
appointment as City Government Department Head
III, therefore, is valid.
WHEREFORE, the Petition for Review on Certiorari is
DENIED. The Court of Appeals' Decision dated April
11, 2012 is AFFIRMED.
SO ORDERED.
G.R. No. 192074 June 10, 2014
LIGHT RAIL TRANSIT AUTHORITY, represented
by its Administrator MELQUIADES A.
ROBLES, Petitioner,
vs.
AURORA A. SALVAA, Respondent.
DECISION
LEONEN, J.:
An administrative agency has standing to appeal the
Civil Service Commission's repeal or modification of
its original decision. In such instances, it is included in
the concept of a "party adversely affected" by a
decision of the Civil Service Commission granted the
statutory right to appeal:
We are asked in this petition for review1 filed by the
Light Rail Transit Authority (LRTA), a government-
owned and -controlled corporation, to modify the Civil
Service Commissions finding that respondent was
guilty only of simple dishonesty.
This case developed as follows:

On May 12, 2006, then Administrator of the Light Rail
Transit Authority, Melquiades Robles, issued Office
Order No. 119, series of 2006.2 The order revoked
Atty. Aurora A. Salvaas designation as Officer-in-
Charge (OIC) of the LRTA Administrative Department.
It "direct[ed] her instead to handle special projects
and perform such other duties and functions as may
be assigned to her"3 by the Administrator.
Atty. Salvaa was directed to comply with this office
order through a memorandum issued on May 22,
2006 by Atty. Elmo Stephen P. Triste, the newly
designated OIC of the administrative department.
Instead of complying, Salvaa questioned the order
with the Office of the President.4
In the interim, Salvaa applied for sick leave of
absence on May 12, 2006 and from May 15 to May
31, 2006.5 In support of her application, she submitted
a medical certificate6 issued by Dr. Grace Marie
Blanco of the Veterans Memorial Medical Center
(VMMC).
LRTA discovered that Dr. Blanco did not issue this
medical certificate. Dr. Blanco also denied having
seen or treated Salvaa on May 15, 2006, the date
stated on her medical certificate.7 On June 23, 2006,
Administrator Robles issued a notice of preliminary
investigation. The notice directed Salvaa to explain
in writing within 72 hours from her receipt of the notice
"why no disciplinary action should be taken against
[her]"8 for not complying with Office Order No. 119 and
for submitting a falsified medical certificate.9
Salvaa filed her explanation on June 30, 2006.10 She
alleged that as a member of the Bids and Awards
Committee, she "refused to sign a that it can be considered a "person adversely
resolution"11 favoring a particular bidder. She alleged
that Office Order No. 119 was issued by Administrator
Robles to express his "ire and vindictiveness"12 over
her refusal to sign.
The LRTAs Fact-finding Committee found her
explanation unsatisfactory. On July 26, 2006, it issued
a formal charge against her for Dishonesty,
Falsification of Official Document, Grave Misconduct,
Gross Insubordination, and Conduct Prejudicial to the
Best Interest of the Service.13
On August 5, 2006, "Salvaa tendered her irrevocable
resignation."14 None of the pleadings alleged that this
irrevocable resignation was accepted, although the
resolution of the Fact-finding Committee alluded to
Administrator Robles acceptance of the resignation
letter.
In the meantime, the investigation against Salvaa
continued, and the prosecution presented its
witnesses.15Salvaa "submitted a manifestation dated
September 6, 2006, stating that the Committee was
biased and that [Administrator] Robles was both the
accuser and the hearing officer."16
On October 31, 2006, the Fact-finding Committee
issued a resolution "finding Salvaa guilty of all the
charges against her and imposed [on] her the penalty
CSC-CES Cases 6
Public Corporation
of dismissal from . . . service with all the accessory
penalties."17 The LRTA Board of Directors approved
the findings of the Fact-finding Committee18
Salvaa appealed with the Civil Service Commission.
"In her appeal, [she] claimed that she was denied due
process and that there [was] no substantial evidence
to support the charges against her."19
On July 18, 2007, the Civil Service Commission
modified the decision and issued Resolution No.
071364.The Civil Service Commission found that
Salvaa was guilty only of simple dishonesty. She
was meted a penalty of suspension for three months.20
LRTA moved for reconsideration21 of the resolution.
This was denied in a resolution dated May 26,
2008.22 LRTA then filed a petition for review with the
Court of Appeals.23
On November 11, 2009, the Court of
Appeals24 dismissed the petition and affirmed the Civil
Service Commissions finding that Salvaa was only
guilty of simple dishonesty. The appellate court also
ruled that Administrator Robles had no standing to file
a motion for reconsideration before the Civil Service
Commission because that right only belonged to
respondent in an administrative case.25 LRTA moved
for reconsideration26 of this decision but was denied.27
Hence, LRTA filed this present petition.
Petitioner argues that it has the legal personality to
appeal the decision of the Civil Service Commission
before the Court of Appeals.28 It cites Philippine
National Bank v. Garcia29 as basis for its argument
affected" under the pertinent rules and regulations on
the appeal of administrative cases.30 It also argues
that respondents falsification of the medical certificate
accompanying her application for sick leave was not
merely simple but serious dishonesty.31
Respondent agrees with the ruling of the Court of
Appeals that petitioner had no legal personality to file
the appeal since it was not the "person adversely
affected" by the decision. She counters that
Administrator Robles had no authority to file the
appeal since he was unable to present a resolution
from the Board of Directors authorizing him to do
so.32 She also agrees with the Civil Service
Commissions finding that she was merely guilty of
simple dishonesty.33
In its reply,34 petitioner points out that it presented a
secretarys certificate35 dated July 17, 2008 and which
it attached to the petitions before the Civil Service
Commission, Court of Appeals, and this court. It
argues that the certificate authorizes the LRTA and its
Administrator to file the necessary motion for
reconsideration or appeal regarding this case, and
this authorization has yet to be revoked.36
Both parties filed their respective memoranda before
this court on May 23, 201237 and December 6, 2012.38

The legal issues that will determine the results of this
case are:
1. Whether the LRTA, as represented by its
Administrator, has the standing to appeal the
modification by the Civil Service Commission
of its decision
2. Whether Salvaa was correctly found guilty
of simple dishonesty only
We grant the petition.
The parties may appeal in administrative cases
involving members of the civil service
It is settled that "[t]he right to appeal is not a natural
right [or] a part of due process; it is merely a statutory
privilege, and may be exercised only in the manner
and in accordance with the provisions of the law."39 If it
is not granted by the Constitution, it can only be
availed of when a statute provides for it.40 When made
available by law or regulation, however, a person
cannot be deprived of that right to appeal. Otherwise,
there will be a violation of the constitutional
requirement of due process of law.
Article IX (B), Section 3 of the Constitution mandates
that the Civil Service Commission shall be "the central
personnel agency of the Government."41 In line with
the constitutionally enshrined policy that a public
office is a public trust, the Commission was tasked
with the duty "to set standards and to enforce the laws
and rules governing the selection, utilization, training,
and discipline of civil servants."42
Civil servants enjoy security of tenure, and "[n]o
officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided
by law and after due process."43 Under Section 12,
Chapter 3, Book V of the Administrative Code, it is the
Civil Service Commission that has the power to
"[h]ear and decide administrative cases instituted by
or brought before it directly or on appeal."
The grant of the right to appeal in administrative
cases is not new. In Republic Act No. 2260 or the
Civil Service Law of 1959, appeals "by the
respondent"44 were allowed on "[t]he decision of the
Commissioner of Civil Service rendered in an
administrative case involving discipline of subordinate
officers and employees."45
Presidential Decree No. 807, while retaining the right
to appeal in administrative cases, amended the
phrasing of the party allowed to appeal. Section 37,
paragraph (a), and Section 39, paragraph (a),of
Presidential Decree No. 807 provide:
Sec. 37. Disciplinary Jurisdiction. - (a) The
Commission shall decide upon appeal all
administrative cases involving the imposition of a
penalty of suspension for more than thirty days, or
fine in an amount exceeding thirty days' salary,
demotion in rank or salary or transfer, removal or
dismissal from office.
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Sec. 39. Appeals. - (a) Appeals, where allowable,
shall be made by the party adversely affected by the
decision within fifteen days from receipt of the
decision unless a petition shall be decided within
fifteen days. (Emphasis supplied)
Additionally, Section 47, paragraph (1), and Section
49, paragraph (1), of the Administrative Code provide:
SECTION 47. Disciplinary Jurisdiction.(1) The
Commission shall decide upon appeal all
administrative disciplinary cases involving the
imposition of a penalty of suspension for more than
thirty days, or fine in an amount exceeding thirty days
salary, demotion in rank or salary or transfer, removal
or dismissal from office.
SECTION 49. Appeals.(1) Appeals, where
allowable, shall be made by the party adversely
affected by the decision within fifteen days from
receipt of the decision unless a petition for
reconsideration is seasonably filed, which petition
shall be decided within fifteen days.(Emphasis
supplied)
The phrase, "person adversely affected," was not
defined in either Presidential Decree No. 807 or the
Administrative Code. This prompted a series of
cases46 providing the interpretation of this phrase.
The first of these cases, Paredes v. Civil Service
Commission,47 declared:
Based on [Sections 37 (a) and 39 (a) of Presidential
Decree No. 807], appeal to the Civil Service
Commission in an administrative case is extended to
the party adversely affected by the decision, that is,
the person or the respondent employee who has been
meted out the penalty of suspension for more than
thirty days; or fine in an amount exceeding thirty days
salary demotion in rank or salary or transfer, removal
or dismissal from office. The decision of the
disciplining authority is even final and not appealable
to the Civil Service Commission in cases where the
penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days
salary.48(Emphasis supplied)
This ruling was repeated in Mendez v. Civil Service
Commission49 where this court stated that:
A cursory reading of P.D. 807, otherwise known as
"The Philippine Civil Service Law" shows that said law
does not contemplate a review of decisions
exonerating officers or employees from administrative
charges.
....
By inference or implication, the remedy of appeal may
be availed of only in a case where the respondent is
found guilty of the charges filed against him. But when
the respondent is exonerated of said charges, as in
this case, there is no occasion for appeal.50 (Emphasis
supplied)

The same ratio would be reiterated and become the
prevailing doctrine on the matter in Magpale, Jr. v.
Civil Service Commission,51 Navarro v. Civil Service
Commission and Export Processing Zone,52 University
of the Philippines v. Civil Service Commission,53 and
Del Castillo v. Civil Service Commission.54
In these cases, this court explained that the right to
appeal being merely a statutory privilege can only be
availed of by the party specified in the law. Since the
law presumes that appeals will only be made in
decisions prescribing a penalty, this court concluded
that the only parties that will be adversely affected are
the respondents that are charged with administrative
offenses. Since the right to appeal is a remedial right
that may only be granted by statute, a government
party cannot by implication assert that right as
incidental to its power, since the right to appeal does
not form part of due process.55
In effect, this court equated exonerations in
administrative cases to acquittals in criminal cases
wherein the State or the complainant would have no
right to appeal.56 When the Civil Service Commission
enacted the Uniform Rules on Administrative Cases in
the Civil Service, or the URACCS, on September 27,
1999, it applied this courts definition. Thus, Section 2,
paragraph (l),Rule I, and Section 38,Rule III of the
URACCS defined "party adversely affected" as
follows:
Section 2. Coverage and Definition of Terms.
....
(l) PARTY ADVERSELY AFFECTED refers to the
respondent against whom a decision in a disciplinary
case has been rendered.
For some time, government parties were, thus, barred
from appealing exonerations of civil servants they had
previously sanctioned. It was not until the
promulgation by this court of Civil Service
Commission v. Dacoycoy57 on April 29, 1999 that the
issue would be revisited.
Civil Service Commission v. Dacoycoyand Philippine
National Bank v. Garcia
In Civil Service Commission v. Dacoycoy,58 an
administrative complaint for habitual drunkenness,
misconduct, and nepotism was filed against the
Vocational School Administrator of Balicuatro College
of Arts and Trade in Allen, Northern Samar. The Civil
Service Commission found Dacoycoy guilty, but the
Court of Appeals overturned this finding and
exonerated Dacoycoy of all charges. The Civil Service
Commission then appealed the ruling of the appellate
court. This court, in addressing the issue of the
Commissions standing, stated that:
Subsequently, the Court of Appeals reversed the
decision of the Civil Service Commission and held
respondent not guilty of nepotism. Who now may
appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who
CSC-CES Cases 8
Public Corporation
was declared not guilty of the charge. Nor the
complainant George P. Suan, who was merely a
witness for the government. Consequently, the Civil
Service Commission has become the party adversely
affected by such ruling, which seriously prejudices the
civil service system. Hence, as an aggrieved party, it
may appeal the decision of the Court of Appeals to
the Supreme Court. By this ruling, we now expressly
abandon and overrule extant jurisprudence that "the
phrase party adversely affected by the decision
refers to the government employee against whom the
administrative case is filed for the purpose of
disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer,
removal or dismissal from office" and not included are
"cases where the penalty imposed is suspension for
not more than thirty (30) days or fine in an amount not
exceeding thirty days salary" or "when the respondent
is exonerated of the charges, there is no occasion for
appeal." In other words, we overrule prior decisions
holding that the Civil Service Law "does not
contemplate a review of decisions exonerating
officers or employees from administrative charges"
enunciated in Paredes v. Civil Service Commission;
Mendez v. Civil Service Commission; Magpale v. Civil
Service Commission; Navarro v. Civil Service
Commission and Export Processing Zone Authority
and more recently Del Castillo v. Civil Service
Commission.59 (Emphasis supplied; citations omitted)
In his concurring opinion, then Chief Justice Puno
summed up the rationale for allowing government
parties to appeal, thus:
In truth, the doctrine barring appeal is not
categorically sanctioned by the Civil Service Law. For
what the law declares as "final" are decisions of
heads of agencies involving suspension for not more
than thirty (30) days or fine in an amount not
exceeding thirty (30) days salary.
But there is a clear policy reason for declaring these
decisions final. These decisions involve minor
offenses. They are numerous for they are the usual
offenses committed by government officials and
employees. To allow their multiple level appeal will
doubtless overburden the quasi-judicial machinery of
our administrative system and defeat the expectation
of fast and efficient action from these administrative
agencies. Nepotism, however, is not a petty offense.
Its deleterious effect on government cannot be over-
emphasized. And it is a stubborn evil. The objective
should be to eliminate nepotic acts, hence, erroneous
decisions allowing nepotism cannot be given
immunity from review, especially judicial review. It is
thus non sequitur to contend that since some
decisions exonerating public officials from minor
offenses cannot be appealed, ergo, even a decision
acquitting a government official from a major offense
like nepotism cannot also be appealed.60 (Emphasis
supplied)
The decision in Dacoycoy would be reiterated in 2002
when this court promulgated Philippine National Bank
v. Garcia.61 Philippine National Bank categorically
allowed the disciplining authority to appeal the
decision exonerating the disciplined employee.

In that case, the bank charged Ricardo V. Garcia, Jr.,
one of its check processors and cash representatives,
with gross neglect of duty when he lost 7 million in
connection with his duties. Both the Civil Service
Commission and the Court of Appeals reversed the
bank and exonerated Garcia from all liability.
This court, however, upheld Philippine National
Banks right to appeal the case. Citing Dacoycoy, this
court ruled:
Indeed, the battles against corruption, malfeasance
and misfeasance will be seriously undermined if we
bar appeals of exoneration. After all, administrative
cases do not partake of the nature of criminal actions,
in which acquittals are final and unappealable based
on the constitutional proscription of double jeopardy.
Furthermore, our new Constitution expressly
expanded the range and scope of judicial review.
Thus, to prevent appeals of administrative decisions
except those initiated by employees will effectively
and pervertedly erode this constitutional grant.
Finally, the Court in Dacoycoy ruled that the CSC had
acted well within its rights in appealing the CAs
exoneration of the respondent public official therein,
because it has been mandated by the Constitution to
preserve and safeguard the integrity of our civil
service system. In the same light, herein Petitioner
PNB has the standing to appeal to the CA the
exoneration of Respondent Garcia. After all, it is the
aggrieved party which has complained of his acts of
dishonesty. Besides, this Court has not lost sight of
the fact that PNB was already privatized on May 27,
1996. Should respondent be finally exonerated
indeed, it might then be incumbent upon petitioner to
take him back into its fold. It should therefore be
allowed to appeal a decision that in its view hampers
its right to select honest and trustworthy employees,
so that it can protect and preserve its name as a
premier banking institution in our country.62(Emphasis
supplied) Thus, the Civil Service Commission issued
Resolution No. 021600 published on December 29,
2002, which amended the URACCS, to allow the
disciplining authority to appeal the decision
exonerating the employee:
Section 2. Coverage and Definition of Terms.
....
(l) PARTY ADVERSELY AFFECTED refers to the
respondent against whom a decision in a disciplinary
case has been rendered or to the disciplining
authority in an appeal from a decision exonerating the
said employee.
Subsequent decisions continued to reiterate the
rulings in Dacoycoy and Philippine National Bank.
In Constantino-David v. Pangandaman-Gania,63 this
court explained the rationale of allowing the Civil
Service Commission to appeal decisions of
exonerations as follows:
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Public Corporation
That the CSC may appeal from an adverse decision
of the Court of Appeals reversing or modifying its
resolutions which may seriously prejudice the civil
service system is beyond doubt. In Civil Service
Commission v. Dacoycoy[,] this Court held that the
CSC may become the party adversely affected by
such ruling and the aggrieved party who may appeal
the decision to this Court.
The situation where the CSCs participation is
beneficial and indispensable often involves
complaints for administrative offenses, such as
neglect of duty, being notoriously undesirable,
inefficiency and incompetence in the performance of
official duties, and the like, where the complainant is
more often than not acting merely as a witness for the
government which is the real party injured by the illicit
act. In cases of this nature, a ruling of the Court of
Appeals favorable to the respondent employee is
understandably adverse to the government, and
unavoidably the CSC as representative of the
government may appeal the decision to this Court to
protect the integrity of the civil service system.
The CSC may also seek a review of the decisions of
the Court of Appeals that are detrimental to its
constitutional mandate as the central personnel
agency of the government tasked to establish a
career service, adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness
and courtesy in the civil service, strengthen the merit
and rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive to
public accountability. Nonetheless, the right of the
CSC to appeal the adverse decision does not
preclude the private complainant in appropriate cases
from similarly elevating the decision for review.64
Then in Civil Service Commission v. Gentallan,65 this
court declared:
At the outset, it should be noted that the Civil Service
Commission, under the Constitution, is the central
personnel agency of the government charged with the
duty of determining questions of qualifications of merit
and fitness of those appointed to the civil service.
Thus, the CSC, as an institution whose primary
concern is the effectiveness of the civil service
system, has the standing to appeal a decision which
adversely affects the civil service. We hold, at this
juncture, that CSC has the standing to appeal and/or
to file its motion for reconsideration.66
The right to appeal by government parties was not
limited to the Civil Service Commission.
In Pastor v. City of Pasig,67 this court ruled that the
City of Pasig had standing to appeal the decision of
the Civil Service Commission reinstating a city
employee to her former position, despite the city
government having reassigned her to another unit.
In Geronga v. Varela,68 this court ruled that the Mayor
of Cadiz City had the right to file a motion for
reconsideration of a decision by the Civil Service
Commission exonerating a city employee on the

ground that "as the appointing and disciplining
authority, [he] is a real party in interest."69
In Department of Education v. Cuanan,70 this court
ruled that the Department of Education "qualifie[d] as
a party adversely affected by the judgment, who can
file an appeal of a judgment of exoneration in an
administrative case."71
There are, however, cases, which sought to qualify
this right to appeal.
In National Appellate Board v. Mamauag,72 an
administrative complaint for grave misconduct was
filed by Quezon City Judge Adoracion G. Angeles
against several members of the Philippine National
Police (PNP). The Central Police District Command
(CPDC) of Quezon City, upon investigation,
dismissed the complaint. Dissatisfied, Judge Angeles
moved for a reinvestigation by then PNP Chief
Recaredo Sarmiento II.
PNP Chief Sarmiento issued a decision finding the
accused police officers guilty of the offenses charged.
Some were meted the penalty of suspension while
others were dismissed from service. Upon motion for
reconsideration by Judge Angeles, Chief Sarmiento
modified his ruling and ordered the dismissal of the
suspended police officers.
One of the officers, Police Inspector John Mamauag,
appealed the decision with the National Appellate
Board of the National Police Commission. The
National Appellate Board, however, denied the
appeal. Mamauag appealed the denial with the Court
of Appeals. The Court of Appeals reversed the
decision of the National Appellate Board and ruled
that it was the Philippine National Police, not Judge
Angeles, which had the right to appeal the decision of
PNP Chief Sarmiento, as it was the party adversely
affected. The National Appellate Board then appealed
this decision with this court.
This court, while citing Dacoycoy, declared that Judge
Angeles, as complainant, had no right to appeal the
dismissal by CPDC of the complaint against
Mamauag. It qualified the right of government
agencies to appeal by specifying the circumstances
by which the right may be given, thus:
However, the government party that can appeal is not
the disciplining authority or tribunal which previously
heard the case and imposed the penalty of demotion
or dismissal from the service. The government party
appealing must be one that is prosecuting the
administrative case against the respondent.
Otherwise, an anomalous situation will result where
the disciplining authority or tribunal hearing the case,
instead of being impartial and detached, becomes an
active participant in prosecuting the respondent.
Thus, in Mathay, Jr. v. Court of Appeals, decided after
Dacoycoy, the Court declared:
To be sure, when the resolutions of the Civil Service
Commission were brought before the Court of
Appeals, the Civil Service Commission was included
CSC-CES Cases 10
Public Corporation
only as a nominal party. As a quasi-judicial body, the
Civil Service Commission can be likened to a judge
who should "detach himself from cases where his
decision is appealed to a higher court for review."
In instituting G.R. No. 126354, the Civil Service
Commission dangerously departed from its role as
adjudicator and became an advocate. Its mandated
function is to "hear and decide administrative cases
instituted by or brought before it directly or on appeal,
including contested appointments and to review
decisions and actions of its offices and agencies," not
to litigate.73 (Emphasis supplied)
The ruling in National Appellate Boardwas applied in
Montoya v. Varilla,74 Pleyto v. PNP-CIDG,75 and
Ombudsman v. Liggayu.76
The present rule is that a government party is a "party
adversely affected" for purposes of appeal provided
that the government party that has a right to appeal
must be the office or agency prosecuting the case.
Despite the limitation on the government partys right
to appeal, this court has consistently upheld that right
in Dacoycoy. In Civil Service Commission v.
Almojuela,77 we stated that:
More than ten years have passed since the Court first
recognized in Dacoycoy the CSCs standing to appeal
the CAs decisions reversing or modifying its
resolutions seriously prejudicial to the civil service
system. Since then, the ruling in Dacoycoy has been
subjected to clarifications and qualifications but the
doctrine has remained the same: the CSC has
standing as a real party in interest and can appeal the
CAs decisions modifying or reversing the CSCs
rulings, when the CA action would have an adverse
impact on the integrity of the civil service. As the
governments central personnel agency, the CSC is
tasked to establish a career service and promote
morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service; it
has a stake in ensuring that the proper disciplinary
action is imposed on an erring public employee, and
this stake would be adversely affected by a ruling
absolving or lightening the CSC-imposed penalty.
Further, a decision that declares a public employee
not guilty of the charge against him would have no
other appellant than the CSC. To be sure, it would not
be appealed by the public employee who has been
absolved of the charge against him; neither would the
complainant appeal the decision, as he acted merely
as a witness for the government. We thus find no
reason to disturb the settled Dacoycoy
doctrine.78 (Citations omitted)
Indeed, recent decisions showed that this court has
allowed appeals by government parties. Notably, the
government parties right to appeal in these cases
was not brought up as an issue by either of the
parties.
In Civil Service Commission v. Yu,79 this court allowed
the Civil Service Commission to appeal the Court of
Appeals decision granting the reinstatement of a

government employee whose appointment had been
revoked by the Commission.
In National Power Corporation v. Civil Service
Commission and Tanfelix,80 the National Power
Corporation had previously filed an administrative
complaint against one of its employees, Rodrigo
Tanfelix, resulting in his dismissal from service. When
the Civil Service Commission exonerated Tanfelix and
the Court of Appeals affirmed the exoneration, the
National Power Corporation was allowed to appeal.
These cases, however, allowed the disciplining
authority to appeal only from a decision exonerating
the said employee. In this case, respondent was not
exonerated; she was found guilty, but the finding was
modified. This court previously stated that:
If the administrative offense found to have been
actually committed is of lesser gravity than the
offense charged, the employee cannot be considered
exonerated if the factual premise for the imposition of
the lesser penalty remains the same.81
Dacoycoy, Philippine National Bank, and the
URACCS failed to contemplate a situation where the
Civil Service Commission modified the penalty from
dismissal to suspension. The erring civil servant was
not exonerated, and the finding of guilt still stood. In
these situations, the disciplinary authority should be
allowed to appeal the modification of the decision.
The LRTA had standing to appeal the modification by
the Civil Service Commission of its decision
The employer has the right "to select honest and
trustworthy employees."82 When the government office
disciplines an employee based on causes and
procedures allowed by law, it exercises its discretion.
This discretion is inherent in the constitutional
principle that "[p]ublic officers and employees must, at
all times, be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead
modest lives."83 This is a principle that can be invoked
by the public as well as the government office
employing the public officer.
Here, petitioner already decided to dismiss
respondent for dishonesty. Dishonesty is a serious
offense that challenges the integrity of the public
servant charged. To bar a government office from
appealing a decision that lowers the penalty of the
disciplined employee prevents it from ensuring its
mandate that the civil service employs only those with
the utmost sense of responsibility, integrity, loyalty,
and efficiency.
Honesty and integrity are important traits required of
those in public service. If all decisions by quasi-
judicial bodies modifying the penalty of dismissal were
allowed to become final and unappealable, it would, in
effect, show tolerance to conduct unbecoming of a
public servant. The quality of civil service would
erode, and the citizens would end up suffering for it.
CSC-CES Cases 11
Public Corporation
During the pendency of this decision, or on November
18, 2011, the Revised Rules on Administrative Cases
in the Civil Service or RACCS was promulgated. The
Civil Service Commission modified the definition of a
"party adversely affected" for purposes of appeal.
Section 4. Definition of Terms.
....
k. PARTY ADVERSELY AFFECTED refers to the
respondent against whom a decision in an
administrative case has been rendered or to the
disciplining authority in an appeal from a decision
reversing or modifying the original decision.
(Emphasis supplied)
Procedural laws have retroactive application. In
Zulueta v. Asia Brewery:84
As a general rule, laws have no retroactive effect. But
there are certain recognized exceptions, such as
when they are remedial or procedural in nature. This
Court explained this exception in the following
language:
It is true that under the Civil Code of the Philippines,
"(l)aws shall have no retroactive effect, unless the
contrary is provided. But there are settled exceptions
to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it
CREATES NEW RIGHTS.
....
On the other hand, remedial or procedural laws, i.e.,
those statutes relating to remedies or modes of
procedure, which do not create new or take away
vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do
not come within the legal meaning of a retrospective
law, nor within the general rule against the
retrospective operation of statutes.
Thus, procedural laws may operate retroactively as to
pending proceedings even without express provision
to that effect. Accordingly, rules of procedure can
apply to cases pending at the time of their enactment.
In fact, statutes regulating the procedure of the courts
will be applied on actions undetermined at the time of
their effectivity. Procedural laws are retrospective in
that sense and to that extent.85 (Emphasis supplied)
Remedial rights are those rights granted by remedial
or procedural laws. These are rights that only operate
to further the rules of procedure or to confirm vested
rights. As such, the retroactive application of remedial
rights will not adversely affect the vested rights of any
person. Considering that the right to appeal is a right
remedial in nature, we find that Section 4, paragraph
(k), Rule I of the RACCS applies in this case.
Petitioner, therefore, had the right to appeal the
decision of the Civil Service Commission that
modified its original decision of dismissal.

Recent decisions implied the retroactive application of
this rule. While the right of government parties to
appeal was not an issue, this court gave due course
to the appeals filed by government agencies before
the promulgation of the Revised Rules on
Administrative Cases in the Civil Service.
In Civil Service Commission v. Clave,86 the
Government Service and Insurance System (GSIS)
found one of its employees, Aurora M. Clave, guilty of
simple neglect of duty. The Civil Service Commission
affirmed the GSISs findings. The Court of Appeals,
however, while affirming the Civil Service
Commission, reduced the penalty. Both the GSIS and
the Civil Service Commission were given standing to
appeal the decision of the Court of Appeals.
In GSIS v. Chua,87 the GSIS dismissed Heidi R. Chua
for grave misconduct, dishonesty, and conduct
prejudicial to the best interest of service. The Civil
Service Commission affirmed the GSIS, but the Court
of Appeals, while affirming the findings of the
Commission, modified the penalty to simple
misconduct. The GSIS was then allowed to bring an
appeal of the modification of the penalty with this
court.
Thus, we now hold that the parties adversely affected
by a decision in an administrative case who may
appeal shall include the disciplining authority whose
decision dismissing the employee was either
overturned or modified by the Civil Service
Commission.
The offense committed was less serious dishonesty,
not simple dishonesty
Dishonesty has been defined "as the disposition to
lie, cheat, deceive, or defraud; untrustworthiness, lack
of integrity . . . ."88 Since the utmost integrity is
expected of public servants, its absence is not only
frowned upon but punished severely.
Section 52, Rule IV of the URACCS provides:
Section 52. Classification of Offenses.
Administrative offenses with corresponding penalties
are classified into grave, less grave or light,
depending on their gravity or depravity and effects on
the government service.
A. The following are grave offenses with their
corresponding penalties:
1. Dishonesty - 1st Offense Dismissal
....
In Remolona v. Civil Service Commission,89 this court
explained the rationale for the severity of the penalty:
It cannot be denied that dishonesty is considered a
grave offense punishable by dismissal for the first
offense under Section 23, Rule XIV of the Rules
Implementing Book V of Executive Order No. 292.
And the rule is that dishonesty, in order to warrant
CSC-CES Cases 12
Public Corporation
dismissal, need not be committed in the course of the
performance of duty by the person charged. The
rationale for the rule is that if a government officer or
employee is dishonest or is guilty of oppression or
grave misconduct, even if said defects of character
are not connected with his office, they affect his right
to continue in office. The Government cannot tolerate
in its service a dishonest official, even if he performs
his duties correctly and well, because by reason of his
government position, he is given more and ample
opportunity to commit acts of dishonesty against his
fellow men, even against offices and entities of the
government other than the office where he is
employed; and by reason of his office, he enjoys and
possesses a certain influence and power which
renders the victims of his grave misconduct,
oppression and dishonesty less disposed and
prepared to resist and to counteract his evil acts and
actuations. The private life of an employee cannot be
segregated from his public life. Dishonesty inevitably
reflects on the fitness of the officer or employee to
continue in office and the discipline and morale of the
service.90 (Emphasis supplied)
However, on April 4, 2006, the Civil Service
Commission issued Resolution No. 06-0538 or the
Rules on the Administrative Offense of Dishonesty.
Resolution No. 06-0538 recognizes that dishonesty is
a grave offense punishable by dismissal from
service.91 It, however, also recognizes that "some acts
of Dishonesty are not constitutive of an offense so
grave as to warrant the imposition of the penalty of
dismissal from the service."92
Recognizing the attendant circumstances in the
offense of dishonesty, the Civil Service Commission
issued parameters "in order to guide the disciplining
authority in charging the proper offense"93 and to
impose the proper penalty.
The resolution classifies dishonesty in three
gradations: (1) serious; (2) less serious; and (3)
simple. Serious dishonesty is punishable by
dismissal.94 Less serious dishonesty is punishable by
suspension for six months and one day to one year
for the first offense and dismissal for the second
offense.95 Simple dishonesty is punishable by
suspension of one month and one day to six months
for the first offense, six months and one day to one
year for the second offense, and dismissal for the
third offense.96
The medical certificate respondent submitted to
support her application for sick leave was falsified.
The question remains as to whether this act could be
considered serious dishonesty, less serious
dishonesty, or simple dishonesty.
According to the Civil Service Commissions finding in
its resolution:
In the instant case, the prosecution was able to
establish that the medical certificate submitted by
Salvaa was spurious or not genuine as the
physician-signatory therein, Dr. Blanco[,] testified that
she did not examine/treat the appellant nor did she

issue a medical certificate on May 15, 2006 since she
was on sick leave of absence on that particular day.
Worthy [of] mention is that the appellant never
bothered to submit any evidence, documentary or
otherwise, to rebut the testimony of Blanco.
Thus, the Commission rules and so holds that the
appellant is liable for Dishonesty but applying the
aforementioned CSC Resolution No. 06-0538, her
dishonest act would be classified only as Simple
Dishonesty as the same did not cause damage or
prejudice to the government and had no direct relation
to or did not involve the duties and responsibilities of
the appellant. The same is true with the falsification
she committed, where the information falsified was
not related to her employment.97 (Emphasis supplied)
In Cuerdo v. Commission on Audit,98 this court
previously ruled that "it is the general policy of this
Court to sustain the decisions of administrative
authorities not only on the basis of the doctrine of
separation of powers but also for their presumed
knowledge ability and even expertise in the laws they
are entrusted to enforce."99 The same case also
stated that:
. . . . we reaffirmed the oft-repeated rule that findings
of administrative agencies are generally accorded not
only respect but also finality when the decision and
order . . . are not tainted with unfairness or
arbitrariness that would amount to abuse of discretion
or lack of jurisdiction. The findings off acts must be
respected, so long as they are supported by
substantial evidence even if not overwhelming or
preponderant.100
Petitioner insists that respondent committed serious
dishonesty when she submitted the falsified medical
certificate. Under Section 3 of Resolution No. 06-
0538, serious dishonesty comprises the following
acts:
Section 3. Serious Dishonesty. The presence of any
one of the following attendant circumstances in the
commission of the dishonest act would constitute the
offense of Serious Dishonesty:
a. The dishonest act causes serious damage
and grave prejudice to the government.
b. The respondent gravely abused his
authority in order to commit the dishonest act.
c. Where the respondent is an accountable
officer, the dishonest act directly involves
property, accountable forms or money for
which he is directly accountable and the
respondent shows an intent to commit
material gain, graft and corruption.
d. The dishonest act exhibits moral depravity
on the part of the respondent.
e. The respondent employed fraud and/or
falsification of official documents in the
CSC-CES Cases 13
Public Corporation
commission of the dishonest act related to
his/her employment.
f. The dishonest act was committed several
times or in various occasions.
g. The dishonest act involves a Civil Service
examination, irregularity or fake Civil Service
eligibility such as, but not limited to,
impersonation, cheating and use of crib
sheets.
h. Other analogous circumstances. (Emphasis
supplied)
Simple dishonesty, on the other hand, comprises the
following offenses:
Section 5. The presence of any of the following
attendant circumstances in the commission of the
dishonest act would constitute the offense of Simple
Dishonesty:
a. The dishonest act did not cause damage or
prejudice to the government.
b. The dishonest act had no direct relation to
or does not involve the duties and
responsibilities of the respondent.
c. In falsification of any official document,
where the information falsified is not related to
his/her employment.
d. That the dishonest act did not result in any
gain or benefit to the offender.
e. Other analogous circumstances. (Emphasis
supplied)
This court previously ruled that "[f]alsification of an
official document, as an administrative offense, is
knowingly making false statements in official or public
documents."101 Respondent, in her defense, states that
she merely relied on her Health Maintenance
Organizations (HMO) advice that it was going to
issue her a medical certificate after she had gone to
the hospital complaining of hypertension.102 She
maintains that she did not know that her medical
certificate was falsified. We do not find this defense
credible.
Respondent knew that she was not examined by Dr.
Blanco, the medical certificates signatory. She knew
that she would not be able to fully attest to the
truthfulness of the information in the certificate.
Despite this, she still submitted the certificate in
support of her application for leave.
The Civil Service Commission, however, found that
the medical certificate was falsified. Dr. Blanco
repudiated the certificate. Respondent did not present
any evidence to defend its validity. Her application for
sick leave, therefore, should not have been granted
since it was unaccompanied by the proper

documents. The Commission correctly found
respondent guilty of dishonesty.
However, it would be wrong to classify this offense as
simple dishonesty.
By law, all employees in the civil service are entitled
to leave of absence for a certain number of days, with
or without pay.103 Under Section 1, Rule XVI of the
Omnibus Rules Implementing Book V of the
Administrative Code, government employees are
entitled to 15 days of sick leave annually with full pay.
The grant of sick leave with pay is an exception to the
principle of "no work, no pay," i.e., entitlement to
compensation only upon actual service rendered. As
such, applications for leave must be properly filled out
and filed accordingly. Section 16, Rule XVI of the
Omnibus Rules Implementing Book V of the
Administrative Code provides the rules for an
application for sick leave:
SECTION 16. All applications for sick leaves of
absence for one full day or more shall be on the
prescribed form and shall be filed immediately upon
the employee's return from such leave. Notice of
absence, however, should be sent to the immediate
supervisor and/or to the office head. Application for
sick leave in excess of five days shall be
accompanied by a proper medical certificate.
Respondents application for sick leave, if approved,
would allow her to be absent from work without any
deductions from her salary. Being a government
employee, respondent would have received her
salaries coming from government funds.
Since her application for sick leave was supported by
a false medical certificate, it would have been
improperly filed, which made all of her absences
during this period unauthorized. The receipt,
therefore, of her salaries during this period would be
tantamount to causing damage or prejudice to the
government since she would have received
compensation she was not entitled to receive.
This act of causing damage or prejudice, however,
cannot be classified as serious since the information
falsified had no direct relation to her employment.
Whether or not she was suffering from hypertension is
a matter that has no relation to the functions of her
office.
Given these circumstances, the offense committed
can be properly identified as less serious dishonesty.
Under Section 4 of Resolution No. 06-0538, less
serious dishonesty is classified by the following acts:
Section 4. The presence of any one of the following
attendant circumstances in the commission of the
dishonest act would constitute the offense of Less
Serious Dishonesty:
a. The dishonest act caused damage and
prejudice to the government which is not so
CSC-CES Cases 14
Public Corporation
serious as to qualify under the immediately
preceding classification.
b. The respondent did not take advantage of
his/her position in committing the dishonest
act.
c. Other analogous circumstances. (Emphasis
supplied)
We hold, therefore, that respondent Atty. Aurora A.
Salvaa is guilty of less serious dishonesty.
A final note
The records showed that respondent tendered her
irrevocable resignation on August 5, 2006. Petitioners
acceptance of respondents resignation was not
mentioned in any of the pleadings. However, the
resolution by the Fact-finding Committee stated that
"[o]n 16 August 2006, the Office of the Administrator
received the resignation."104On the issue of whether
respondents resignation mooted its proceedings, it
concluded that:
[I]n the response of the Administrator to the letter of
resignation filed by Respondent there was no
unconditional acceptance of the same. In fact it was
specified therein that her resignation is "without
prejudice to any appropriate action on any
malfeasance or misfeasance committed during her
tenure[."]There can [sic] be no other conclusion from
the above that her resignation does not prevent the
administration from proceeding with any charge/s
appropriate under the circumstances.105 (Emphasis in
the original)
Resignation from public office, to be effective,
requires the acceptance of the proper government
authority. In Republic v. Singun,106 this court stated:
Resignation implies an expression of the incumbent in
some form, express or implied, of the intention to
surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. To
constitute a complete and operative resignation from
public office, there must be: (a) an intention to
relinquish a part of the term; (b) an act of
relinquishment; and (c) an acceptance by the proper
authority.
....
In our jurisdiction, acceptance is necessary for
resignation of a public officer to be operative and
effective. Without acceptance, resignation is nothing
and the officer remains in office. Resignation to be
effective must be accepted by competent authority,
either in terms or by something tantamount to an
acceptance, such as the appointment of the
successor. A public officer cannot abandon his office
before his resignation is accepted, otherwise the
officer is subject to the penal provisions of Article 238
of the Revised Penal Code. The final or conclusive
act of a resignations acceptance is the notice of
acceptance. The incumbent official would not be in a

position to determine the acceptance of his
resignation unless he had been duly notified
therefor.107 (Emphasis supplied)
If there was evidence to show that petitioner did not,
in fact, accept respondents resignation, her
resignation would have been ineffective.
Respondents continued absence from her post would
have been deemed abandonment from her office, of
which she could be criminally charged.
Although the response of Administrator Robles was
not attached to the record, it can be concluded from
the resolution of the Fact-finding Committee that he
accepted the resignation, albeit with the qualification
that it be "without prejudice to any appropriate action
on any malfeasance or misfeasance committed during
her tenure."108
The qualified acceptance of Administrator Robles,
however, did not affect the validity of respondents
resignation. Section 1, Rule XII of the Civil Service
1wphi1
Commission Memorandum Circular No. 40, series of
1998, as amended by Civil Service Commission
Memorandum Circular No. 15, series of 1999,
requires:
Sec. 1. Resignation. The following documents shall
be submitted to the Commission for record purposes:
a. The voluntary written notice of the
employee informing the appointing authority
that he is relinquishing his position and the
efffectivity date of said resignation; and,
b. The acceptance of resignation in writing by
the agency head or appointing authority which
shall indicate the date of effectivity of the
resignation.
An officer or employee under investigation may be
allowed to resign pending decision of his case without
prejudice to the continuation of the proceedings until
finally terminated.
The qualification placed by Administrator Robles on
his acceptance does not make respondents
resignation any less valid. The rules and regulations
allow the acceptance of resignations while the
administrative case is pending provided that the
proceedings will still continue.
We also note that the unauthorized absences were
incurred after the issuance of Office Order No. 119.
Atrespondents refusal to comply, she was
administratively charged, which prompted her
resignation from office. If there were irregularities in
the issuance of Office Order No. 119, what
respondent should have done would be to occupy the
new position and then file the proper remedies. She
should not have defied the orders of her superiors.
Because of her resignation on August 5, 2006, any
modification as to the service of her suspension
became moot. Her permanent employment record,
however, must reflect the modified penalty.
CSC-CES Cases 15
Public Corporation
Considering that she is also a member of the Bar, this
court furnishes the Office of the Bar Confidant with a
copy of this decision to initiate the proper disciplinary
action against respondent.
WHEREFORE, the petition is GRANTED. The
decision dated November 11, 2009 of the Court of
Appeals in CA-G.R. SP. No. 104225 and Resolution
No. 071364 dated July 18, 2007 of the Civil Service
Commission is AFFIRMED with the MODIFICATION
that respondent, Atty. Aurora A. Salvaa, is found
guilty of Less Serious Dishonesty. The Civil Service
Commission is DIRECTED to attach a copy of this
decision to respondent's permanent employment
record.
Let a copy of this decision be given to the Office of
the Bar Confidant to initiate the proper disciplinary
action against respondent Atty. Aurora A. Salvaa.
SO ORDERED.
G.R. No. 190147 March 5, 2013
CIVIL SERVICE COMMISSION, Petitioner,
vs.
PILILLA WATER DISTRICT, Respondent.
DECISION
VILLARAMA, JR, J.:
Assailed in this petition for review on certiorari under
Rule 45 are the Decision1 dated July 28, 2009 and
Resolution2dated November 9, 2009 of the Court of
Appeals (CA) in CA-G.R. SP No. 106031 which
annulled and set aside Resolution Nos. 0809423 and
0818464 of the Civil Service Commission (CSC).
The factual background of this case is as follows:
Paulino J. Rafanan was first appointed General
Manager on a coterminous status under Resolution
No. 12 issued on August 7, 1998 by the Board of
Directors (BOD) of respondent Pililla Water District
(PWD). His appointment was signed by the BOD
Acting Chairman and attested by the CSC Field
Office-Rizal.5
On October 4, 2001, petitioner issued Resolution No.
0116246 amending and clarifying Section 12, Rule XIII
of CSC Memorandum Circular No. 15, s. 1999, as
follows:
Section 12. a) No person who has reached the
compulsory retirement age of 65 years can be
appointed to any position in the government, subject
only to the exception provided under sub-section (b)
hereof.
However, in meritorious cases, the Commission may
allow the extension of service of a person who has
reached the compulsory retirement age of 65 years,
for a period of six (6) months only unless otherwise
stated. Provided, that, such extension may be for a
maximum period of one (1) year for one who will

complete the fifteen (15) years of service required
under the GSIS Law.
A request for extension shall be made by the head of
office and shall be filed with the Commission not later
than three (3) months prior to the date of the
official/employees compulsory retirement.
Henceforth, the only basis for Heads of Offices to
allow an employee to continue rendering service after
his/her 65th birthday is a Resolution of the
Commission granting the request for extension.
Absent such Resolution, the salaries of the said
employee shall be for the personal account of the
responsible official.
xxxx
b) A person who has already reached the compulsory
retirement age of 65 can still be appointed to a
coterminous/primarily confidential position in the
government.
A person appointed to a coterminous/primarily
confidential position who reaches the age of 65 years
is considered automatically extended in the service
until the expiry date of his/her appointment or until
his/her services are earlier terminated. (Emphasis
supplied)
On April 2, 2004, Republic Act (R.A.) No. 92867 was
approved and signed into law, Section 2 of which
provides:
SEC. 2. Section 23 of Presidential Decree No. 198, as
amended is hereby amended to read as follows:
"SEC. 23. The General Manager.At the first meeting
of the Board, or as soon thereafter as practicable, the
Board shall appoint, by a majority vote, a general
manager and shall define [his] duties and fix his
compensation. Said officer shall not be removed from
office, except for cause and after due process."
(Emphasis supplied)
On June 16, 2004, the BOD approved Resolution No.
19,8 Series of 2004, which reads:
EXTENSION OF SERVICES OF MR. PAULINO J.
RAFANAN AS GENERAL MANAGER OF PILILLA
WATER DISTRICT
WHEREAS, the General Manager, Mr. Paulino J.
Rafanan, is reaching his age 65 this month of this
year the Board, because of his good and honest
performance in faithfully carrying out the policies of
the Board resulting in the success of the Districts
expansion program, unanimously agreed to retain his
services as General Manager at least up to December
31, 2008 co-terminus with the term of the Director last
appointed after which period he may stay at the
pleasure of the other Board.
THEREFORE, THE BOARD RESOLVED, AS IT
HEREBY RESOLVED that the services of Mr. Paulino
J. Rafanan as General Manager of Pililla Water
CSC-CES Cases 16
Public Corporation
District is extended up to December 31, 2008 as a
reward for his honest and efficient services to the
District.
In its Resolution No. 04-1271 dated November 23,
2004, petitioner denied the request of BOD Chairman
Valentin E. Paz for the extension of service of
Rafanan and considered the latter "separated from
the service at the close of office hours on June 25,
2004, his 65th birthday." Petitioner also denied the
motion for reconsideration filed by Chairman Paz
under its Resolution No. 05-0118 dated February 1,
2005.9
On April 8, 2005, the BOD issued Resolution No. 09,
Series of 2005 reappointing Rafanan as General
Manager on coterminous status. Said reappointment
was signed by Chairman Paz and attested by the
CSC Field Office-Rizal.10A year later, the BOD
approved Resolution No. 20 declaring the
appointment of General Manager Rafanan as
permanent11 but this resolution was not implemented.
In a letter dated November 19, 2007, Pililla Mayor
Leandro V. Masikip, Sr. questioned Rafanans
coterminous appointment as defective and void ab
initio considering that he was appointed to a career
position despite having reached the compulsory
retirement age. Said letter-complaint was treated as
an appeal from the appointment made by the BOD
Chairman of respondent.
On May 19, 2008, petitioner issued Resolution No.
080942 invalidating the coterminous appointment
issued to Rafanan as General Manager on April 8,
2005 on the ground that it was made in violation of
Section 2 of R.A. No. 9286. Petitioner further
observed that the appointment was issued to
circumvent the denial of the several requests for
extension of service of Rafanan. Rafanan filed a
motion for reconsideration which was denied by
petitioner under its Resolution No. 081846 dated
September 26, 2008.
Respondent filed in the CA a petition for review with
application for temporary restraining order and/or writ
of preliminary injunction under Rule 43 of the 1997
Rules of Civil Procedure, as amended. Insisting that
Rafanans coterminous appointment was based on
CSC Resolution No. 011624, respondent contended
that petitioner cannot usurp the power of appointment
and removal of the appointing authority, and that
petitioner failed to observe due process.
In the assailed Decision, the CA reversed the CSC
and ruled that the position of General Manager in
water districts remains primarily confidential in nature
and hence respondents BOD may validly appoint
Rafanan to the said position even beyond the
compulsory retirement age.
Petitioner filed a motion for reconsideration which the
CA denied.
Hence, this petition submitting the following issues:

I (4) co-terminous with a specific period -
WHETHER OR NOT THE COURT OF APPEALS
ERRED WHEN IT RULED THAT THE POSITION OF
GENERAL MANAGER OF A LOCAL WATER
DISTRICT IS PRIMARILY CONFIDENTIAL IN
NATURE.
II
WHETHER OR NOT THE COURT OF APPEALS
ERRED WHEN IT RULED THAT THE APRIL 8, 2005
APPOINTMENT OF RAFANAN IN A CO-
TERMINOUS CAPACITY WAS VALID.12
Under Section 13, Rule V of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and
other Pertinent Civil Service Laws and CSC
Resolution No. 91-1631 issued on December 27,
1991, appointments in the civil service may either be
of permanent or temporary status. A permanent
appointment is issued to a person who meets all the
requirements for the position to which he is being
appointed/promoted, including the appropriate
eligibility prescribed, in accordance with the
provisions of law, rules and standards promulgated in
pursuance thereof, while a temporary appointment
may be extended to a person who possesses all the
requirements for the position except the appropriate
civil service eligibility and for a limited period not
exceeding twelve months or until a qualified civil
service eligible becomes available.
Section 14 of the same resolution provides for a
coterminous appointment:
Sec. 14. An appointment may also be co-terminous
which shall be issued to a person whose entrance
and continuity in the service is based on the trust and
confidence of the appointing authority or that which is
subject to his pleasure, or co-existent with his tenure,
or limited by the duration of project or subject to the
availability of funds.
The co-terminous status may be further classified into
the following:
(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
CSC-CES Cases 17
Public Corporation
appointment is for a specific period and upon
expiration thereof, the position is deemed
abolished.
For the purpose of coverage or membership with the
GSIS, or their right to security of tenure, co-terminous
appointees, except those who are co-terminous with
the appointing authority, shall be considered
permanent. (Emphasis supplied)
Section 23 of Presidential Decree (P.D.) No. 198,
otherwise known as "The Provincial Water Utilities Act
of 1973" reads:
SEC. 23. Additional Officers.At the first meeting of
the board, or as soon thereafter as practicable, the
board shall appoint, by a majority vote, a general
manager, an auditor, and an attorney, and shall
define their duties and fix their compensation. Said
officers shall serve at the pleasure of the board.
(Emphasis supplied)
The provision was subsequently amended by P.D.
No. 76813:
SEC. 23. The General Manager.At the first meeting
of the board, or as soon thereafter as practicable, the
board shall appoint, by a majority vote, a general
manager and shall define his duties and fix his
compensation. Said officer shall serve at the pleasure
of the board. (Emphasis supplied)
In the case of Paloma v. Mora,14 we held that the
nature of appointment of General Managers of Water
Districts under Section 23 of P.D. No. 198 falls under
Section 14 of the Omnibus Rules Implementing Book
V of Executive Order No. 292, otherwise known as
the "Administrative Code of 1987", that is, the General
Manager serves at the pleasure of the BOD.
As mentioned, Section 23 of P.D. No. 198 was
already amended by R.A. No. 9286 which now
provides that the General Manager of a water district
shall not be removed from office except for cause and
after due process. Said law, however, cannot be
retroactively applied as to preclude the BOD from
terminating its General Manager at the time the
governing law was still P.D. No. 198, thus:
Unfortunately for petitioner, Rep. Act No. 9286 is
silent as to the retroactivity of the law to pending
cases and must, therefore, be taken to be of
prospective application. The general rule is that in an
amendatory act, every case of doubt must be
resolved against its retroactive effect. Since the
retroactive application of a law usually divests rights
that have already become vested, the rule in statutory
construction is that all statutes are to be construed as
having only a prospective operation unless the
purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is
necessarily implied from the language used.
First, there is nothing in Rep. Act No. 9286 which
provides that it should retroact to the date of effectivity

of P.D. No. 198, the original law. Next, neither is it
necessarily implied from Rep. Act No. 9286 that it or
any of its provisions should apply retroactively. Third,
Rep. Act No. 9286 is a substantive amendment of
P.D. No. 198 inasmuch as it has changed the grounds
for termination of the General Manager of Water
Districts who, under the then Section 23 of P.D. No.
198, "shall serve at the pleasure of the Board." Under
the new law, however, said General Manager shall
not be removed from office, except for cause and
after due process. To apply Rep. Act No. 9286
retroactively to pending cases, such as the case at
bar, will rob the respondents as members of the
Board of the Palompon, Leyte Water District of the
right vested to them by P.D. No. 198 to terminate
petitioner at their pleasure or discretion. Stated
otherwise, the new law can not be applied to make
respondents accountable for actions which were valid
under the law prevailing at the time the questioned act
was committed.
Prescinding from the foregoing premises, at the time
petitioner was terminated by the Board of Directors,
the prevailing law was Section 23 of P.D. No. 198
prior to its amendment by Rep. Act No. 9286.15 (Italics
in the original; emphasis supplied)
In this case, respondents BOD reappointed Rafanan
as General Manager on April 8, 2005 when R.A. No.
9286 was already in force and the BOD no longer had
the authority to terminate the General Manager at its
pleasure or discretion.
Petitioner assails the CA in upholding the April 8,
2005 reappointment of Rafanan as General Manager
on coterminous status, arguing that the change of
phraseology of Section 23 under R.A. No. 9286 ipso
facto reclassified said position from non-career to
career position. Petitioner points out that it issued
CSC Memorandum Circular No. 13, Series of 2006
entitled "Considering the Position of General Manager
Under the Career Service and Prescribing the
Guidelines and Qualification Standards for the said
Position Pursuant to R.A. No. 9286,"16 which applies
to respondent under local water district Medium
Category:
D (SG-24) - Medium
Education : Masters degree
Experience : 4 years in position/s involving
management and supervision
Training : 24 hours of training in management and
supervision
Eligibility : Career Service (Professional)/Second
Level Eligibility17
Respondent contends that the amendment introduced
by R.A. No. 9286 is not in conflict with the
coterminous appointment of Rafanan since the latter
can be removed for "loss of confidence," which is
"cause" for removal. As to the above-cited CSC
Memorandum Circular No. 13, Series of 2006, the
CSC-CES Cases 18
Public Corporation
same should be applied only to appointments made
after its issuance, and not to Rafanan who was
already the incumbent General Manager before
August 17, 2006. Respondent maintains that since
the General Manager of a water district holds a
primarily confidential position, Rafanan can be
appointed to or remain in said position even beyond
the compulsory retirement age of 65 years.
The threshold issue is whether under Section 23 of
P.D. No. 198 as amended by R.A. No. 9286, the
position of General Manager of a water district
remains as primarily confidential.
In the 1950 case of De los Santos v. Mallare18 a
position that is primarily confidential in nature is
defined as follows:
x x x. These positions [policy-determining, primarily
confidential and highly technical positions], involve the
highest degree of confidence, or are closely bound up
with and dependent on other positions to which they
are subordinate, or are temporary in nature. It may
truly be said that the good of the service itself
demands that appointments coming under this
category be terminable at the will of the officer that
makes them.
xxxx
Every appointment implies confidence, but much
more than ordinary confidence is reposed in the
occupant of a position that is primarily confidential.
The latter phrase denotes not only confidence in the
aptitude of the appointee for the duties of the office
but primarily close intimacy which insures freedom of
[discussion, delegation and reporting] without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of
state. x x x.19 (Emphasis supplied)
From the above case the "proximity rule" was derived.
A position is considered to be primarily confidential
when there is a primarily close intimacy between the
appointing authority and the appointee, which ensures
the highest degree of trust and unfettered
communication and discussion on the most
confidential of matters.20 Moreover, in classifying a
position as primarily confidential, its functions must
not be routinary, ordinary and day to day in character.
A position is not necessarily confidential though the
one in office may sometimes hold confidential matters
or documents.21
The case of Piero v. Hechanova22 laid down the
doctrine that it is the nature of the position that finally
determines whether a position is primarily
confidential, policy determining or highly technical and
that executive pronouncements can be no more than
initial determinations that are not conclusive in case of
conflict. As reiterated in subsequent cases, such initial
determination through executive declaration or
legislative fiat does not foreclose judicial review.23
More recently, in Civil Service Commission v.
Javier,24 we categorically declared that even

petitioners classification of confidential positions in
the government is not binding on this Court:
At present, there is no law enacted by the legislature
that defines or sets definite criteria for determining
primarily confidential positions in the civil service.
Neither is there a law that gives an enumeration of
positions classified as primarily confidential.
What is available is only petitioner's own classification
of civil service positions, as well as jurisprudence
which describe or give examples of confidential
positions in government.
Thus, the corollary issue arises: should the Court be
bound by a classification of a position as confidential
already made by an agency or branch of
government?
Jurisprudence establishes that the Court is not bound
by the classification of positions in the civil service
made by the legislative or executive branches, or
even by a constitutional body like the petitioner. The
Court is expected to make its own determination as to
the nature of a particular position, such as whether it
is a primarily confidential position or not, without being
bound by prior classifications made by other bodies.
The findings of the other branches of government are
merely considered initial and not conclusive to the
Court. Moreover, it is well-established that in case the
findings of various agencies of government, such as
the petitioner and the CA in the instant case, are in
conflict, the Court must exercise its constitutional role
as final arbiter of all justiciable controversies and
disputes. (Emphasis supplied)
Applying the proximity rule and considering the nature
of the duties of the office of the Corporate Secretary
of the Government Service Insurance System (GSIS),
we held in the above-cited case that said position in
the GSIS or any government-owned or controlled
corporation (GOCC) for that matter, is a primarily
confidential position.25
In holding that the position of General Manager of a
water district is primarily confidential in nature, the CA
said:
x x x we rule that the position of general manager
remains primarily confidential in nature despite the
amendment of Section 23 of P.D. No. 198 by R.A. No.
9286, which gave the occupant of said position
security of tenure, in that said officer could only be
removed from office for cause and after due process.
The nature of the duties and functions attached to the
position points to its confidential character. First, the
general manager is directly appointed by the board of
directors. Second, the general manager directly
reports to the board of directors. Third, the duties and
responsibilities of a general manager are determined
by the board of directors, which is a clear indication of
a closely intimate relationship that exists between him
and the board. Fourth, the duties and responsibilities
of a general manager are not merely clerical and
routinary in nature. His work involves policy and
decision making. Fifth, the compensation of the
general manager is fixed by the board of directors.
CSC-CES Cases 19
Public Corporation
And last, the general manager is directly accountable
for his actions and omissions to the board of directors.
Under this situation, the general manager is expected
to possess the highest degree of honesty, integrity
and loyalty, which is crucial to maintaining trust and
confidence between him and the board of directors.
The loss of such trust or confidence could easily
result in the termination of the general managers
services by the board of directors. To be sure,
regardless of the security of tenure a general
manager may now enjoy, his term may still be ended
by the board of directors based on the ground of "loss
of confidence."26 (Emphasis in the original)
We sustain the ruling of the CA.
We stress that a primarily confidential position is
characterized by the close proximity of the positions
of the appointer and appointee as well as the high
degree of trust and confidence inherent in their
relationship.27 The tenure of a confidential employee
is coterminous with that of the appointing authority, or
is at the latters pleasure. However, the confidential
employee may be appointed or remain in the position
even beyond the compulsory retirement age of 65
years.28
Among those positions judicially determined as
primarily confidential positions are the following: Chief
Legal Counsel of the Philippine National Bank;
Confidential Agent of the Office of the Auditor, GSIS;
Secretary of the Sangguniang Bayan; Secretary to the
City Mayor; Senior Security and Security Guard in the
Office of the Vice Mayor; Secretary to the Board of a
government corporation; City Legal Counsel, City
Legal Officer or City Attorney; Provincial Attorney;
Private Secretary; and Board Secretary II of the
Philippine State College of Aeronautics.29 The Court in
these instances focused on the nature of the functions
of the office characterized by such "close intimacy"
between the appointee and appointing power which
insures freedom of intercourse without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of
state.30
In the case of the General Manager of a water district,
Section 24 in relation to Section 23 of P.D. No. 198,
as amended, reveals the close proximity of the
positions of the General Manager and BOD.
SEC. 24. Duties.The duties of the General Manager
and other officers shall be determined and specified
from time to time by the Board. The General
Manager, who shall not be a director, shall have full
supervision and control of the maintenance and
operation of water district facilities, with power and
authority to appoint all personnel of the district:
Provided, That the appointment of personnel in the
supervisory level shall be subject to approval by the
Board. (As amended by Sec.10, PD 768) (Emphasis
supplied)
While the BOD appoints by a majority vote the
General Manager and specifies from time to time the
duties he shall perform, it is the General Manager
who exercises full supervision and control of the

maintenance and operation of water district facilities.
The BOD is confined to policy-making and prescribing
a system of business administration and accounting
for the water district patterned upon and in conformity
to the standards established by the Local Water
Utilities Administration (LWUA), and it is the General
Manager who implements the plans and policies
approved by the BOD. And while the BOD may not
engage in the detailed management of the water
district, it is empowered to delegate to such officers or
agents designated by it any executive, administrative
or ministerial power,31 including entering into contracts
under conditions and restrictions it may impose.
Moreover, though the General Manager is vested with
the power to appoint all personnel of the water district,
the appointment of personnel in the supervisory level
shall be subject to the approval of the BOD. It is
likewise evident that the General Manager is directly
accountable to the BOD which has disciplinary
jurisdiction over him. The foregoing working
relationship of the General Manager and BOD under
the governing law of water districts clearly demands a
high degree of trust and confidence between them.
The CA therefore correctly concluded that the position
of General Manager is primarily confidential in nature.
Petitioner contends that the amendment introduced
by R.A. No. 9286 in effect placed the position of
General Manager of a water district in the category of
career service. It posits that this can be inferred from
the removal of the sentence "Said officer shall serve
at the pleasure of the Board," and replaced it with the
sentence "Said officer shall not be removed from
office, except for cause and after due process."
Accordingly, petitioner said it issued CSC MC No. 13,
Series of 2006 prescribing guidelines for the
implementation of the new law and qualification
standards for the position of General Manager of a
water district, whereby all incumbent general
managers who hold appointments under coterminous
status upon the effectivity of R.A. No. 9286 were
given two years to meet all the requirements for
permanent status.
Such interpretation is incorrect.
To our mind, the amendment introduced by R.A. No.
9286 merely tempered the broad discretion of the
BOD. In Paloma v. Mora32 we noted the change
brought about by the said law insofar as the grounds
for terminating the General Manager of a water
district. Whereas previously the General Manager
may be removed at the pleasure or discretion of the
BOD even without prior notice and due hearing, the
amendatory law expressly demands that these be
complied with. Such condition for the exercise of the
power of removal implements the fundamental right of
due process guaranteed by the Constitution. In De los
Santos v. Mallare,33 the Court simply recognized as a
necessity that confidential appointments be
"terminable at the will" of the appointing authority.
It is established that no officer or employee in the Civil
Service shall be removed or suspended except for
cause provided by law. However, this admits of
exceptions for it is likewise settled that the right to
security of tenure is not available to those employees
CSC-CES Cases 20
Public Corporation
whose appointments are contractual and coterminous
in nature.34 Since the position of General Manager of
a water district remains a primarily confidential
position whose term still expires upon loss of trust and
confidence by the BOD provided that prior notice and
due hearing are observed, it cannot therefore be said
that the phrase "shall not be removed except for
cause and after due process" converted such position
into a permanent appointment. Significantly, loss of
confidence may be predicated on other causes for
removal provided in the civil service rules and other
existing laws.
In Tanjay Water District v. Quinit, Jr.,35 we said:
Indeed, no officer or employee in the Civil Service
shall be removed or suspended except for cause
provided by law. The phrase "cause provided by law,"
however, includes "loss of confidence." It is an
established rule that the tenure of those holding
primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as
long as confidence in them endures. Their termination
can be justified on the ground of loss of confidence, in
which case, their cessation from office involves no
removal but the expiration of their term of office.
The Civil Service Law classifies the positions in the
civil service into career and non-career service
positions. Career positions are 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.36
The Career Service shall include37:
(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 equivalent 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 supplied)
On the other hand, non-career positions are defined
by the Administrative Code of 198738 as follows:
SEC. 9. Non-Career Service. The Non-Career
Service shall be 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 which is limited to the
duration of a particular project for which purpose
employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or
confidential staff;
(2) Secretaries and other officials of Cabinet
rank who hold their positions at the pleasure
of the President and their personal or
confidential staff(s);
(3) Chairman and members of commissions
and boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose
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; and
(5) Emergency and seasonal personnel.
(Emphasis supplied)
As can be gleaned, a coterminous employment falls
under the non-career service classification of
positions in the Civil Service,39 its tenure being limited
or specified by law, or coterminous with that of the
appointing authority, or at the latters pleasure. Under
R.A. No. 9286 in relation to
Section 14 of the Omnibus Rules Implementing Book
V of the Administrative Code of 1987,40 the
coterminous appointment of the General Manager of
a water district is based on the majority vote of the
CSC-CES Cases 21
Public Corporation
BOD and whose continuity in the service is based on
the latters trust and confidence or co-existent with its
tenure.
The term of office of the BOD members of water
districts is fixed by P.D. No. 198 as follows:
SEC. 11. Term of Office. -- Of the five initial directors
of each newly-formed district, two shall be appointed
for a maximum term of two years, two for a maximum
term of four years, and one for a maximum term of six
years. Terms of office of all directors in a given district
shall be such that the term of at least one director, but
not more than two, shall expire on December 31 of
each even-numbered year. Regular terms of office
after the initial terms shall be for six years
commencing on January 1 of odd-numbered years.
Directors may be removed for cause only, subject to
review and approval of the Administration. (As
amended by Sec. 5, P.D. No. 768.) (Emphasis
supplied)
On the basis of the foregoing, the logical conclusion is
that the General Manager of a water district who is
appointed on coterminous status may serve or hold
office for a maximum of six years, which is the tenure
of the appointing authority, subject to reappointment
for another six years unless sooner removed by the
BOD for loss of trust and confidence, or for any cause
provided by law and with due process. 1wphi1
It may also be mentioned that under Section 3641 of
P.D. No. 198, as amended, the L WUA is empowered
to take over the operation and management of a
water district which has defaulted on its loan
obligations to L WUA. As the bondholder or creditor,
and in fulfillment of its mandate to regulate water
utilities in the country, LWUA may designate its
employees or any person or organization to assume
all powers or policy-decision and the powers of
management and administration to undertake all such
actions as may be necessary for the water district's
efficient operation. This further reinforces the
conclusion that the position of General Manager of a
water district is a non-career position.
In fine, since the position of General Manager of a
water district remains a primarily confidential position,
Rafanan was validly reappointed to said position by
respondent's BOD on April 8, 2005 under coterminous
status despite having reached the compulsory
retirement age, which is allowed under Section 12 (b),
Rule XIII of CSC Memorandum Circular No. 15, s.
1999, as amended by Resolution No. 011624 dated
October 4, 2001.
WHEREFORE, the petition for review on certiorari is
DENIED. The Decision dated July 28, 2009 and
Resolution dated November 9, 2009 of the Court of
Appeals in CA-G.R. SP No. 106031 are AFFIRMED
and UPHELD. No costs.
SO ORDERED.
G.R. No. 185740 July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES
NORTE, represented by GOVERNOR JESUS O.
TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.
DECISION
BRION, J.:
We resolve the Provincial Government of Camarines
Norte's (petitioner) petition for review on
certiorari1 assailing the Decision2 dated June 25, 2008
and the Resolution3 dated December 2, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 97425,
reinstating respondent Beatriz O. Gonzales as the
Province of Camarines Nortes provincial
administrator, or to an equivalent position.
Factual Antecedents
Gonzales was appointed as the provincial
administrator of the Province of Camarines Norte by
then Governor Roy A. Padilla, Jr. on April 1, 1991.
Her appointment was on a permanent capacity. On
March 8, 1999, 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; this was later on captioned as Administrative
Case No. 001. 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.4 On September 30, 1999,
Governor Pimentel adopted the Ad Hoc Investigation
Committees recommendation and dismissed
Gonzales.5
Proceedings before the Civil Service Commission
Gonzales appealed Governor Pimentels decision to
the Civil Service Commission (CSC). The CSC issued
Resolution No. 0014186 modifying Governor
Pimentels decision, finding Gonzales guilty of
insubordination and suspending her for six months.
This decision was appealed by Governor Pimentel,
which the CSC denied in its Resolution No. 001952.7
Gonzales then filed a motion for execution and
clarification of Resolution No. 001418, in which she
claimed that she had already served her six-month
suspension and asked to be reinstated. The CSC
issued Resolution No. 002245,8which directed
Gonzales reinstatement.
Governor Pimentel reinstated Gonzales as provincial
administrator on October 12, 2000, but terminated her
services the next day for lack of confidence. He then
wrote a letter9 to the CSC reporting his compliance
with its order, and Gonzales subsequent dismissal as
a confidential employee. In his letter, Governor
Pimentel cited Resolution No. 0001158,10 where the
CSC-CES Cases 22
Public Corporation
CSC ruled that the provincial administrator position is
highly confidential and is coterminous in nature.
The CSC responded through Resolution No.
030008,11 which again directed Gonzales
reinstatement as provincial administrator. 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 laws 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 appointees dismissal or discipline under
existing laws.
In a letter12 dated February 17, 2005, Gonzales wrote
the CSC alleging that Governor Jesus O. Typoco, Jr.,
Camarines Nortes incumbent governor, refused to
reinstate her. The CSC responded with Resolution
No. 061988,13 which ordered Gonzales reinstatement
to the provincial administrator position, or to an
equivalent position.Thus, the petitioner, through
Governor Typoco, filed a petition for review before the
CA, seeking to nullify the CSCs Resolution No.
030008 and Resolution No. 061988.
The Appellate Courts Ruling
The CA supported the CSCs ruling that reinstated
Gonzales as provincial administrator or to an
equivalent position.14
Citing Aquino v. Civil Service Commission,15 the CA
emphasized that an appointee acquires a legal right
to his position once he assumes a position in the civil
service under a completed appointment. This legal
right is protected both by statute and the Constitution,
and he cannot be removed from office without cause
and previous notice and hearing. Appointees cannot
be removed at the mere will of those vested with the
power of removal, or without any cause.
The CA then enumerated the list of valid causes for a
public officers removal under Section 46,16 Book V,
Title I, Subtitle A of the Revised Administrative Code
(Administrative Code), and noted that lack of
confidence was not in the list. Thus, the CA
concluded that Gonzales dismissal on the ground of
loss of confidence violated her security of tenure, and
that she has the right to be reinstated with payment of
backwages.
The CA further held that Gonzales dismissal was
illegal because it was done without due process. The
proceedings under Administrative Case No. 001

cannot be the basis for complying with the
requirements of due process because they are
separate and distinct from the proceedings in the
present controversy. Thus, Gonzales was illegally
terminated when she was dismissed for lack of
confidence, without any hearing, the day after she
was reinstated.
Lastly, the CA noted that Resolution No. 002245,
which modified Governor Pimentels decision, has
long been final and executory. The petitioner did not
file any petition for reconsideration against Resolution
No. 002245, and hence, it is no longer alterable.
The petitioner sought a reconsideration17 of the CAs
Decision, which the CA denied in a Resolution18 dated
December 2, 2008.
The Present Petition
In its present petition for review on certiorari, the
petitioner argues that 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 7160s enactment.
In her Comment19 and Memorandum,20 Gonzales
maintained that the provincial administrator remained
a career service position. Section 721 of Presidential
Decree No. 807, which was one of the bases of the
Court in Laurel V v. Civil Service Commission22 to
declare the provincial administrator as a career
service position, is a verbatim copy of Section
7,23 Chapter 2 of the Administrative Code. This
classification, established by law and jurisprudence,
cannot be altered by the mere implementing rules and
regulations of RA 7160. And assuming arguendo that
the provincial administrator position has indeed
become a primarily confidential position, this
reclassification should not apply retroactively to
Gonzales appointment on a permanent capacity prior
to RA 7160s effectivity.
Issues
The parties arguments, properly joined, present to us
the following issues:
1) Whether Congress has re-classified the
provincial administrator position from a career
service to a primarily confidential, non-career
service position; and
2) Whether Gonzales has security of tenure
over her position as provincial administrator of
the Province of Camarines Norte.
The Courts Ruling
We find the petition meritorious.
Congress has reclassified the provincial administrator
position as a primarily confidential, non-career
position
CSC-CES Cases 23
Public Corporation
We support the CSCs conclusion that the provincial
administrator position has been classified into a
primarily confidential, non-career position when
Congress, through RA 7160, made substantial
changes to it. First, prior to RA 7160, Batas
Pambansa Blg. 337, the old Local Government Code
(LGC), did not include a provincial administrator
position among the listing of mandatory provincial
officials,24 but empowered the Sangguniang
Panlalawigan to create such other offices as might
then be necessary to carry out the purposes of the
provincial government.25 RA 7160 made the position
mandatory for every province.26 Thus, the creation of
the provincial administrator position under the old
LGC used to be a prerogative of the Sangguniang
Panlalawigan.
Second, in introducing the mandatory provincial
administrator position, RA 7160 also amended the
qualifications for the provincial administrator position.
While Section 48027 of RA 7160 retained the
requirement of civil service eligibility for a provincial
administrator, together with the educational
requirements, it shortened the six-year work
experience requirement to five years.28 It also
mandated the additional requirements of residence in
the local government concerned, and imposed a good
moral character requirement.
Third, RA 7160 made the provincial administrator
position coterminous with its appointing authority,
reclassifying it as a non-career service position that is
primarily confidential.
Before RA 7160 took effect, Laurel classified the
provincial administrator position as an open career
position which required qualification in an appropriate
examination prior to appointment. Laurel placed the
provincial administrator position under the second
major level of positions in the career service under
Section 7 of Presidential Decree No. 807. This
provision reads:
Section 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:
xxxx
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.
Section 480 of RA 7160 made the provincial
administrators functions closely related to the
prevailing provincial administration by identifying the
incumbent with the provincial governor to ensure the
alignment of the governors direction for the province
with what the provincial administrator would
implement. In contrast with the general direction
provided by the provincial governor under the Manual
of Position Descriptions cited in Laurel, Section

480(b) of RA 7160 now mandates constant interaction
between the provincial administrator and the
provincial governor, to wit:
(b) The administrator shall take charge of the office of
the administrator and shall:
(1) Develop plans and strategies and upon
approval thereof by the governor or mayor, as
the case may be, implement the same
particularly those which have to do with the
management and administration-related
programs and projects which the governor or
mayor is empowered to implement and which
the sanggunian is empowered to provide for
under this Code;
(2) In addition to the foregoing duties and
functions, the administrator shall:
(i) Assist in the coordination of the work of all the
officials of the local government unit, under the
supervision, direction, and control of the governor or
mayor, and for this purpose, he may convene the
chiefs of offices and other officials of the local
government unit;
xxxx
(4) Recommend to the sanggunian and advise the
governor and mayor, as the case may be, on all other
matters relative to the management and
administration of the local government unit.
[emphases and italics ours]
As the CSC correctly noted in Resolution No.
0001158,29 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 administrators
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 governors 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.30 This provision, along with the interrelations
between the provincial administrator and governor
under Section 480, renders clear the intent of
Congress to make the 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
Having established that Congress has changed the
nature of the provincial administrator position to a
primarily confidential employee, the next question to
CSC-CES Cases 24
Public Corporation
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. Both
the CA and the CSC ruled in favor of the latter, and
gave premium to Gonzales original permanent
appointment under the old LGC. They posit that
Gonzales acquired a vested legal right over her
position from the moment she assumed her duties as
provincial administrator. Thus, she cannot be
removed from office except for cause and after due
hearing; otherwise such removal would amount to a
violation of her security of tenure.
The arguments presented by the parties and ruled
upon by the CA reflect a conceptual entanglement
between the nature of the position and an employees
right to hold a position. These two concepts are
different. 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.
Congress has the power and prerogative to introduce
substantial changes in the provincial administrator
position and to reclassify it as a primarily confidential,
non-career service position. Flowing from the
legislative power to create public offices is the power
to abolish and modify them to meet the demands of
society;31 Congress can change the qualifications for
and shorten the term of existing statutory offices.
When done in good faith, these acts would not violate
a public officers security of tenure, even if they result
in his removal from office or the shortening of his
term.32 Modifications in public office, such as changes
in qualifications or shortening of its tenure, are made
in good faith so long as they are aimed at the office
and not at the incumbent.33
In Salcedo and Ignacio v. Carpio and Carreon,34 for
instance, Congress enacted a law modifying the
offices in the Board of Dental Examiners. The new
law, RA 546, raised the qualifications for the board
members, and provided for a different appointment
process. Dr. Alfonso C. Salcedo and Dr. Pascual
Ignacio, who were incumbent board members at the
time RA 546 took effect, filed a special civil action for
quo warranto against their replacements, arguing that
their term of office under the old law had not yet
expired, and neither had they abandoned or been
removed from office for cause. We dismissed their
petition, and held that Congress may, by law,
terminate the term of a public office at any time and
even while it is occupied by the incumbent. Thus,
whether Dr. Salcedo and Dr. Ignacio were removed
for cause or had abandoned their office is immaterial.
More recently, in Dimayuga v. Benedicto II,35 we
upheld the removal of Chona M. Dimayuga, a
permanent appointee to the Executive Director II
position, which was not part of the career executive
service at the time of her appointment. During her
incumbency, the CSC, by authority granted under

Presidential Decree No. 1, classified the Executive
Director II position to be within the career executive
service. Since Dimayuga was not a career executive
service officer, her initially permanent appointment to
the position became temporary; thus, she could be
removed from office at any time.
In the current case, Congress, through RA 7160, did
not abolish the provincial administrator position but
significantly modified many of its aspects. It is now a
primarily confidential position under the non-career
service tranche of the civil service. This change could
not have been aimed at prejudicing Gonzales, as she
was not the only provincial administrator incumbent at
the time RA 7160 was enacted. Rather, this change
was part of the reform measures that RA 7160
introduced to further empower local governments and
decentralize the delivery of public service. Section
3(b) of RA 7160 provides as one of its operative
principles that:
(b) There shall be established in every local
government unit an accountable, efficient, and
dynamic organizational structure and operating
mechanism that will meet the priority needs and
service requirements of its communities.
Thus, Gonzales permanent appointment as provincial
administrator prior to the enactment of RA 7160 is
immaterial to her removal as provincial administrator.
For purposes of determining whether Gonzales
termination violated her right to security of tenure, the
nature of the position she occupied at the time of her
removal should be considered, and not merely the
nature of her appointment at the time she entered
government service.
In echoing the CSC and the CAs conclusion, the
dissenting opinion posits the view that security of
tenure protects the permanent appointment of a
public officer, despite subsequent changes in the
nature of his position.
Citing Gabriel v. Domingo,36 the dissenting opinion
quotes our categorical declaration that "a permanent
employee remains a permanent employee unless he
is validly terminated," and from there attempts to draw
an analogy between Gabriel and the case at hand.
The very first sentence of Gabriel spells out its vast
difference from the present case. The sole and main
issue in Gabriel is whether backwages and other
monetary benefits could be awarded to an illegally
dismissed government employee, who was later
ordered reinstated. From this sentence alone can be
discerned that the issues involved related to the
consequences of illegal dismissal rather than to the
dismissal itself. Nowhere in Gabrielwas there any
mention of a change in the nature of the position held
by the public officer involved.
Further, key factual differences make Gabriel
inapplicable to the present case, even if only by
analogy: first, the public officer in Gabriel received a
Memorandum stating that he would be appointed as
Transportation District Supervisor III under their office
reorganization. Second, the Court in Gabriel clearly
CSC-CES Cases 25
Public Corporation
pointed out that the reason for his eventual
appointment as a casual employee, which led to his
termination from service, was due to a pending
protest he filed before the CSC indicating that there
was no ground for him to not receive the appointment
earlier promised. In contrast, the issue of Gonzales is
whether the appointing authoritys lack of trust and
confidence in the appointee was sufficient cause for
the termination of employment of a primarily
confidential employee. And third, there was a change
in the position held by the public officer in Gabriel. He
was a permanent employee who was extended a
different appointment, which was casual in nature,
because of a protest that he earlier filed. In contrast,
the current case involves a public officer who held the
same position whose nature changed because of the
passage of RA 7160.
The dissent also quotes the penultimate paragraph of
Civil Service Commission v. Javier37 to support its
contention that permanent appointees could expect
protection for their tenure and appointments in the
event that the Court determines that the position is
actually confidential in nature:
The Court is aware that this decision has
repercussions on the tenure of other corporate
secretaries in various GOCCs. The officers likely
assumed their positions on permanent career status,
expecting protection for their tenure and
appointments, but are now re-classified as primarily
confidential appointees. Such concern is unfounded,
however, since the statutes themselves do not
classify the position of corporate secretary as
permanent and career in nature. Moreover, there is
no absolute guarantee that it will not be classified as
confidential when a dispute arises. As earlier stated,
the Court, by legal tradition, has the power to make a
final determination as to which positions in
government are primarily confidential or otherwise. In
the light of the instant controversy, the Court's view is
that the greater public interest is served if the position
of a corporate secretary is classified as primarily
confidential in nature.38
The quoted portion, however, even bolsters our
theory. Read together with its succeeding paragraph,
the quoted portion in Civil Service Commission v.
Javier39 actually stands for the proposition that other
corporate secretaries in government-owned and
controlled corporations cannot expect protection for
their tenure and appointments upon the
reclassification of their position to a primarily
confidential position. There, the Court emphasized
that these officers cannot rely on the statutes
providing for their permanent appointments, if and
when the Court determines these to be primarily
confidential. In the succeeding paragraph after the
portion quoted by the dissent, we even pointed out
that there is no vested right to public office, nor is
public service a property right. Thus:
Moreover, it is a basic tenet in the country's
constitutional system that "public office is a public
trust," and that there is no vested right in public office,
nor an absolute right to hold office. No proprietary title
attaches to a public office, as public service is not a

property right. Excepting constitutional offices which
provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in
an office. The rule is that offices in government,
except those created by the constitution, may be
abolished, altered, or created anytime by statute. And
any issues on the classification for a position in
government may be brought to and determined by the
courts.40(emphases and italics ours)
Executive Order No. 503 does not grant Gonzales
security of tenure in the provincial administrator
position on a permanent capacity
In extending security of tenure to Gonzales
permanent appointment as provincial administrator,
the dissenting opinion cites as authority Executive
Order No. (EO) 503 which provided certain
safeguards against the termination of government
employees affected by the implementation of RA
7160. According to the dissenting opinion, EO 503 is
an obvious indication of the executive departments
intent to protect and uphold both the national
government and the local government employees
security of tenure. It cites Section 2(a), paragraph 8
(providing for the tenure of an administrator) to prove
its point:
8. Incumbents of positions, namely administrator,
legal officer, and information officer declared by the
Code as coterminous, who hold permanent
appointments, shall continue to enjoy their permanent
status until they vacate their positions.
At first glance, EO 503 does seem to extend the
provincial administrators security of tenure in their
permanent appointments even beyond the effectivity
of RA 7160. EO 503, however, does not apply to
employees of the local government affected by RA
7160s enactment. The title of EO 503 clearly
provides for its scope of application, to wit:
Executive Order No. 503. Providing for the Rules and
Regulations Implementing the Transfer of Personnel
and Assets, Liabilities and Records of National
Government Agencies whose Functions are to be
Devolved to the Local Government Units and for other
Related Purposes. [underscore, italics and emphases
ours]
A reading of EO 503s whereas clauses confirms that
it applies only to national government employees
whose functions are to be devolved to local
governments:
WHEREAS, Republic Act No. 7160, otherwise known
as the Local Government Code of 1991, hereinafter
referred to as the Code, transfers the responsibility for
the delivery of basic services and facilities from the
national government agencies (NGAs) concerned to
the local government units (LGUs);
WHEREAS, the Code stipulated that the transfer of
basic services and facilities shall be accompanied by
the transfer of the national personnel concerned and
CSC-CES Cases 26
Public Corporation
assets to ensure continuity in the delivery of such
services and facilities;
WHEREAS, responsive rules and regulations are
needed to affect the required transfer of national
personnel concerned and assets to the LGUs.
[underscores, italics and emphases ours]
Thus, paragraph 8, section 2(a) of EO 503 cannot
apply to Gonzales, a provincial administrator. As
explained earlier, the existence of the provincial
administrator position was a prerogative of the
Sanggunian Panlalawigan, and was not even a
mandatory public office under the old LGC. It is
clearly not a national government position whose
functions are to be devolved to the local governments.
The dissenting opinion, on the other hand, argues that
EO 503 does not apply to national government
employees only. According to the dissent, the phrase
"and for related purposes" in EO 503s title could
encompass personnel not necessarily employed by
national government agencies but by local
government units such as the administrator, the legal
officer and the information officer, as enumerated in
Section 2(a), paragraph 8 thereof. This provision,
according to the dissent, fills the crucial gap left by RA
7160 which did not provide whether the term of an
incumbent provincial administrator would
automatically become coterminous with that of the
appointing authority upon RA 7160s effectivity.
This kind of construction effectively adds to EO 503s
object matters that it did not explicitly provide for. The
phrase "and for other related purposes" can only add
to EO 503 matters related to the devolution of
personnel, basic services and facilities to local
government units. The impact of the change in a local
government positions nature is clearly different from
the implementation of devolution and its ancillary
effects: the former involves a change in a local
government positions functions and concept of
tenure, while the latter involves (among other things)
the transfer of national government employees to
local government units. This difference is highlighted
by the fact that EO 503, as reflected by its whereas
clauses, was issued to implement Section 17 of RA
7160. In contrast, the change in the nature of the
provincial administrator position may be gleaned from
Section 480 of RA 7160. Hence, by no stretch of
reasonable construction can the phrase "and for other
related purposes" in EO 503s title be understood to
encompass the consequences of the change in the
local government positions nature.
Furthermore, construing that the administrator
position in Section 2(a), paragraph 8 pertains to city,
municipal and/or provincial administrators would
result in a legal infirmity. EO 503 was issued pursuant
to the Presidents ordinance powers to provide for
rules that are general or permanent in character for
the purpose of implementing the Presidents
constitutional or statutory powers.41 Exercising her
constitutional duty to ensure that all laws are faithfully
executed, then President Corazon Aquino issued EO
503 to ensure the executives compliance with
paragraph (i), Section 17 of RA 7160, which requires

local government units to absorb the personnel of
national agencies whose functions shall be devolved
to them.42 This is reflected in EO 503s title and
whereas clauses, and its limited application as
discussed earlier.
Thus, the dissenting opinions interpretation would
result in the judicial recognition of an act of the
Executive usurping a legislative power. The grant of
permanent status to incumbent provincial
administrators, despite the clear language and intent
of RA 7160 to make the position coterminous, is an
act outside the Presidents legitimate powers. The
power to create, abolish and modify public offices is
lodged with Congress.43 The President cannot,
through an Executive Order, grant permanent status
to incumbents, when Congress by law has declared
that the positions they occupy are now confidential.
Such act would amount to the Presidents amendment
of an act of Congress an act that the Constitution
prohibits. Allowing this kind of interpretation violates
the separation of powers, a constitutionally enshrined
principle that the Court has the duty to uphold.44
The dissent counters this argument by pointing out
that Section 2(a), paragraph 8 of EO 503 enjoys the
legal presumption of validity. Unless the law or rule is
annulled in a direct proceeding, the legal presumption
of its validity stands. The EOs validity, however, is
not in question in the present case. What is at issue is
a proper interpretation of its application giving due
respect to the principle of separation of powers, and
the dissenting opinions interpretation does violence
to this principle.
Gonzales has security of tenure, but only as a
primarily confidential employee
To be sure, both career and non-career service
employees have a right to security of tenure. All
1wphi 1
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.45 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
employees 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"46 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 Pimentels exercise
of discretion when he decided that he could no longer
entrust his confidence in Gonzales.
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
CSC-CES Cases 27
Public Corporation
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.
WHEREFORE, all premises considered, we hereby
GRANT the petition, and REVERSE and SET ASIDE
the Decision dated June 25, 2008 and the Resolution
dated December 2, 2008 of the Court of Appeals in
CAG.R. SP No. 97425.
SO ORDERED.
G.R. No. 173264 February 22, 2008
CIVIL SERVICE COMMISSION, petitioner,
vs.
NITA P. JAVIER, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court,
seeking to reverse the Decision1 of the Court of
Appeals (CA) dated September 29, 2005, as well as
its Resolution of June 5, 2006, in CA-G.R. SP No.
88568, which set aside the resolutions and orders of
the Civil Service Commission (CSC) invalidating the
appointment of respondent as Corporate Secretary of
the Board of Trustees of the Government Service and
Insurance System (GSIS).
The facts are undisputed.
According to her service record,2 respondent was first
employed as Private Secretary in the GSIS, a
government owned and controlled corporation
(GOCC), on February 23, 1960, on a "confidential"
status. On July 1, 1962, respondent was promoted to
Tabulating Equipment Operator with "permanent"
status. The "permanent" status stayed with
respondent throughout her career. She spent her
entire career with GSIS, earning several more
promotions, until on December 16, 1986, she was
appointed Corporate Secretary of the Board of
Trustees of the corporation.

On July 16, 2001, a month shy of her
64th birthday,3 respondent opted for early retirement
and received the corresponding monetary benefits.4
On April 3, 2002, GSIS President Winston F. Garcia,
with the approval of the Board of Trustees,
reappointed respondent as Corporate Secretary, the
same position she left and retired from barely a year
earlier. Respondent was 64 years old at the time of
her reappointment.5 In its Resolution, the Board of
Trustees classified her appointment as "confidential in
nature and the tenure of office is at the pleasure of
the Board."6
Petitioner alleges that respondent's reappointment on
confidential status was meant to illegally extend her
service and circumvent the laws on compulsory
retirement.7 This is because under Republic Act (R.A.)
No. 8291, or the Government Service Insurance
System Act of 1997, the compulsory retirement age
for government employees is 65 years, thus:
Sec. 13. x x x
(b) Unless the service is extended by
appropriate authorities, retirement shall be
compulsory for an employee at sixty-five (65)
years of age with at least fifteen (15) years of
service: Provided, That if he has less than
fifteen (15) years of service, he may be
allowed to continue in the service in
accordance with existing civil service rules
and regulations.
Under the civil service regulations, those who are in
primarily confidential positions may serve even
beyond the age of 65 years. Rule XIII of the Revised
Omnibus Rules on Appointments and Other
Personnel Actions, as amended, provides that:
Sec. 12. (a) No person who has reached the
compulsory retirement age of 65 years can be
appointed to any position in the government,
subject only to the exception provided under
sub-section (b) hereof.
xxxx
b. A person who has already reached the
compulsory retirement age of 65 can still be
appointed to a coterminous/primarily
confidential position in the government.
A person appointed to a coterminous/primarily
confidential position who reaches the age of
65 is considered automatically extended in the
service until the expiry date of his/her
appointment or until his/her services are
earlier terminated.8
It is for these obvious reasons that respondent's
appointment was characterized as "confidential" by
the GSIS.
On October 10, 2002, petitioner issued Resolution
No. 021314, invalidating the reappointment of
CSC-CES Cases 28
Public Corporation
respondent as Corporate Secretary, on the ground
that the
position is a permanent, career position and not
primarily confidential.9
On November 2, 2002, the CSC, in a letter of even
date, through its Chairperson Karina Constantino-
David, informed GSIS of CSC's invalidation of
respondent's appointment, stating, thus:
Records show that Ms. Javier was formerly
appointed as Corporate Secretary in a
"Permanent" capacity until her retirement in
July 16, 2001. The Plantilla of Positions shows
that said position is a career position.
However, she was re-employed as Corporate
Secretary, a position now declared as
confidential by the Board of Trustees pursuant
to Board Resolution No. 94 dated April 3,
2002.
Since the position was not declared primarily
confidential by the Civil Service Commission
or by any law, the appointment of Ms. Javier
as Corporate Secretary is hereby
invalidated.10
Respondent and GSIS sought to reconsider the ruling
of petitioner. CSC replied that the position of
Corporate Secretary is a permanent (career) position,
and not primarily confidential (non-career); thus, it
was wrong to appoint respondent to this position
since she no longer complies with eligibility
requirements for a permanent career status. More
importantly, as respondent by then has reached
compulsory retirement at age 65, respondent was no
longer qualified for a permanent career
position.11 With the denial of respondent's plea for
reconsideration, she filed a Petition for Review with
the Court of Appeals.
On September 29, 2005, the CA rendered a Decision
setting aside the resolution of petitioner invalidating
respondent's appointment.12 The CA ruled that in
determining whether a position is primarily
confidential or otherwise, the nature of its functions,
duties and responsibilities must be looked into, and
not just its formal classification.13 Examining the
functions, duties and responsibilities of the GSIS
Corporate Secretary, the CA concluded that indeed,
such a position is primarily confidential in nature.
Petitioner filed a motion for reconsideration, which
was denied by the CA on June 5, 2006.
Hence, herein petition.
The petition assails the CA Decision, contending that
the position of Corporate Secretary is a career
position and not primarily confidential in
nature.14 Further, it adds that the power to declare
whether any position in government is primarily
confidential, highly technical or policy determining
rests solely in petitioner by virtue of its constitutional

power as the central personnel agency of the
government.15
Respondent avers otherwise, maintaining that the
position of Corporate Secretary is confidential in
nature and that it is within the powers of the GSIS
Board of Trustees to declare it so.16 She argues that
in determining the proper classification of a position,
one should be guided by the nature of the office or
position, and not by its formal designation.17
Thus, the Court is confronted with the following
issues: whether the courts may determine the proper
classification of a position in government; and
whether the position of corporate secretary in a
GOCC is primarily confidential in nature.
The Court's Ruling
The courts may determine the proper
classification of a position in government.
Under Executive Order No. 292, or the Administrative
Code of 1987, civil service positions are currently
classified into either 1) career service and 2) non-
career service positions.18
Career positions are 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.19
In addition, the Administrative Code, under its Book V,
sub-classifies career positions according to
"appointment status," divided into: 1) permanent -
which is issued to a person who meets all the
requirements for the positions 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; and 2) temporary - which is issued, in the
absence of appropriate eligibles and when it becomes
necessary in the public interest to fill a vacancy, to a
person who meets all the requirements for the
position to which he is being appointed except the
appropriate civil service eligibility; provided, that such
temporary appointment shall not exceed twelve
months, and the appointee may be replaced sooner if
a qualified civil service eligible becomes available.20
Positions that do not fall under the career service are
considered non-career positions, which are
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 co-terminous 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.21
Examples of positions in the non-career service
enumerated in the Administrative Code are:
CSC-CES Cases 29
Public Corporation
Sec. 9. Non-Career Service. - x x x
The Non-Career Service shall include:
(1) Elective officials and their personal or
confidential staff;
(2) Secretaries and other officials of Cabinet
rank who hold their positions at the pleasure
of the President and their personal or
confidential staff(s);
(3) Chairman and members of commissions
and boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose
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; and
(5) Emergency and seasonal personnel.
(Emphasis supplied)
A strict reading of the law reveals that primarily
confidential positions fall under the non-career
service. It is also clear that, unlike career positions,
primarily confidential and other non-career positions
do not have security of tenure. The tenure of a
confidential employee is co-terminous with that of the
appointing authority, or is at the latter's pleasure.
However, the confidential employee may be
appointed or remain in the position even beyond the
compulsory retirement age of 65 years.22
Stated differently, the instant petition raises the
question of whether the position of corporate
secretary in a GOCC, currently classified by the CSC
as belonging to the permanent, career service, should
be classified as primarily confidential, i.e., belonging
to the non-career service. The current GSIS Board
holds the affirmative view, which is ardently opposed
by petitioner. Petitioner maintains that it alone can
classify government positions, and that the
determination it made earlier, classifying the position
of GOCC corporate secretary as a permanent, career
position, should be maintained.
At present, there is no law enacted by the legislature
that defines or sets definite criteria for determining
primarily confidential positions in the civil service.
Neither is there a law that gives an enumeration of
positions classified as primarily confidential.
What is available is only petitioner's own classification
of civil service positions, as well as jurisprudence
which describe or give examples of confidential
positions in government.

Thus, the corollary issue arises: should the Court be
bound by a classification of a position as confidential
already made by an agency or branch of
government?
Jurisprudence establishes that the Court is not bound
by the classification of positions in the civil service
made by the legislative or executive branches, or
even by a constitutional body like the petitioner.23 The
Court is expected to make its own determination as to
the nature of a particular position, such as whether it
is a primarily confidential position or not, without being
bound by prior classifications made by other
bodies.24 The findings of the other branches of
government are merely considered initial and not
conclusive to the Court.25 Moreover, it is well-
established that in case the findings of various
agencies of government, such as the petitioner and
the CA in the instant case, are in conflict, the Court
must exercise its constitutional role as final arbiter of
all justiciable controversies and disputes.26
Piero v. Hechanova,27 interpreting R.A. No. 2260, or
the Civil Service Act of 1959, emphasized how the
legislature refrained from declaring which positions in
the bureaucracy are primarily confidential, policy
determining or highly technical in nature, and
declared that such a determination is better left to the
judgment of the courts. The Court, with
the ponencia of Justice J.B.L. Reyes, expounded,
thus:
The change from the original wording of the
bill (expressly declared by law x x x to be
policy determining, etc.) to that finally
approved and enacted ("or which are policy
determining, etc. in nature") came
about because of the observations of
Senator Taada, that as originally worded
the proposed bill gave Congress power to
declare by fiat of law a certain position as
primarily confidential or policy
determining, which should not be the
case. The Senator urged that since the
Constitution speaks of positions which are
"primarily confidential, policy determining or
highly technical in nature," it is not within the
power of Congress to declare what
positions are primarily confidential or
policy determining. "It is the nature alone
of the position that determines whether it
is policy determining or primarily
confidential."Hence, the Senator further
observed, the matter should be left to the
"proper implementation of the laws,
depending upon the nature of the position to
be filled", and if the position is "highly
confidential" then the President and the Civil
Service Commissioner must implement the
law.
To a question of Senator Tolentino, "But in
positions that involved both confidential
matters and matters which are routine, x x
x who is going to determine whether it is
primarily confidential?" Senator Taada
replied:
CSC-CES Cases 30
Public Corporation
"SENATOR TAADA: Well. at the
first instance, it is the appointing
power that determines that: the
nature of the position. In case of
conflict then it is the Court that
determines whether the position is
primarily confidential or not.
"I remember a case that has been
decided by the Supreme Court
involving the position of a district
engineer in Baguio, and there.
precisely, the nature of the position
was in issue. It was the Supreme
Court that passed upon the nature of
the position, and held that the
President could not transfer the district
engineer in Baguio against his
consent."
Senator Taada, therefore, proposed an
amendment to section 5 of the bill, deleting
the words "to be" and inserting in lieu thereof
the words "Positions which are by their
nature" policy determining, etc., and deleting
the last words "in nature". Subsequently,
Senator Padilla presented an amendment to
the Taada amendment by adopting the very
words of the Constitution, i.e., "those which
are policy determining, primarily confidential
and highly technical in nature". The Padilla
amendment was adopted, and it was this last
wording with which section 5 was passed and
was enacted (Senate Journal, May 10, 1959,
Vol. 11, No. 32, pp. 679-681).
It is plain that, at least since the enactment of
the 1959 Civil Service Act (R. A. 2260), it is
the nature of the position which finally
determines whether a position is primarily
confidential, policy determining or highly
technical. Executive pronouncements can
be no more than initial determinations that
are not conclusive in case of conflict. And
it must be so, or else it would then lie within
the discretion of title Chief Executive to deny
to any officer, by executive fiat, the protection
of section 4, Article XII, of the
Constitution.28(Emphasis and underscoring
supplied)
This doctrine in Piero was reiterated in several
succeeding cases.29
Presently, it is still the rule that executive and
legislative identification or classification of primarily
confidential, policy-determining or highly technical
positions in government is no more than mere
declarations, and does not foreclose judicial review,
especially in the event of conflict. Far from what is
merely declared by executive or legislative fiat, it is
the nature of the position which finally determines
whether it is primarily confidential, policy determining
or highly technical, and no department in government
is better qualified to make such an ultimate finding
than the judicial branch.

Judicial review was also extended to determinations
made by petitioner. In Grio v. Civil Service
Commission,30 the Court held:
The fact that the position of respondent
Arandela as provincial attorney has already
been classified as one under the career
service and certified as permanent by the Civil
Service Commission cannot conceal or alter
its highly confidential nature. As
in Cadiente where the position of the city legal
officer was duly attested as permanent by the
Civil Service Commission before this Court
declared that the same was primarily
confidential, this Court holds that the position
of respondent Arandela as the provincial
attorney of Iloilo is also a primarily confidential
position. To rule otherwise would be
tantamount to classifying two positions with
the same nature and functions in two
incompatible categories.31
The framers of the 1987 Constitution were of the
same disposition. Section 2 (2) Article IX (B) of the
Constitution provides that:
Appointments in the civil service shall be
made only according to merit and fitness to be
determined, as far as practicable, and, except
to positions which are policy-determining,
primarily confidential, or highly technical, by
competitive examination.
The phrase "in nature" after the phrase "policy-
determining, primarily confidential, or highly technical"
was deleted from the 1987 Constitution.32 However,
the intent to lay in the courts the power to determine
the nature of a position is evident in the following
deliberation:
MR. FOZ. Which department of government
has the power or authority to determine
whether a position is policy-determining or
primarily confidential or highly technical?
FR. BERNAS: The initial decision is made
by the legislative body or by the executive
department, but the final decision is done
by the court. 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. For
instance, we might have a case where a
position is created requiring that the holder of
that position should be a member of the Bar
and the law classifies this position as highly
technical. However, the Supreme Court has
said before that a position which requires
mere membership in the Bar is not a highly
technical position. Since the term 'highly
technical' means something beyond the
ordinary requirements of the profession, it is
always a question of fact.
CSC-CES Cases 31
Public Corporation
MR. FOZ. Does not Commissioner Bernas
agree that the general rule should be that the
merit system or the competitive system should
be upheld?
FR. BERNAS. I agree that that it should be
the general rule; that is why we are putting
this as an exception.
MR. FOZ. The declaration that certain
positions are policy-determining, primarily
confidential or highly technical has been the
source of practices which amount to the spoils
system.
FR. BERNAS. The Supreme Court has always
said that, but if the law of the administrative
agency says that a position is primarily
confidential when in fact it is not, we can
always challenge that in court. It is not
enough that the law calls it primarily
confidential to make it such; it is the
nature of the duties which makes a
position primarily confidential.
MR. FOZ. The effect of a declaration that a
position is policy-determining, primarily
confidential or highly technical - as an
exception - is to take it away from the usual
rules and provisions of the Civil Service Law
and to place it in a class by itself so that it can
avail itself of certain privileges not available to
the ordinary run of government employees
and officers.
FR. BERNAS. As I have already said, this
classification does not do away with the
requirement of merit and fitness. All it says is
that there are certain positions which should
not be determined by competitive
examination.
For instance, I have just mentioned a position
in the Atomic Energy Commission. Shall we
require a physicist to undergo a competitive
examination before appointment? Or a
confidential secretary or any position in policy-
determining administrative bodies, for that
matter? There are other ways of determining
merit and fitness than competitive
examination. This is not a denial of the
requirement of merit and fitness.33 (Emphasis
supplied)
This explicit intent of the framers was recognized
in Civil Service Commission v. Salas,34 and Philippine
Amusement and Gaming Corporation v.
Rilloraza,35 which leave no doubt that the question of
whether the position of Corporate Secretary of GSIS
is confidential in nature may be determined by the
Court.
The position of corporate secretary in a
government owned
and controlled corporation, currently classified as

a permanent
career position, is primarily confidential in nature.
First, there is a need to examine how the term
"primarily confidential in nature" is described
in jurisprudence. According to Salas,36
Prior to the passage of the x x x Civil Service
Act of 1959 (R.A. No. 2260), there were two
recognized instances when a position may be
considered primarily confidential: Firstly, when
the President, upon recommendation of the
Commissioner of Civil Service, has declared
the position to be primarily confidential;
and, secondly in the absence of such
declaration, when by the nature of the
functions of the office there exists "close
intimacy" between the appointee and
appointing power which insures freedom of
intercourse without embarrassment or
freedom from misgivings of betrayals of
personal trust or confidential matters of
state.37(Emphasis supplied)
However, Salas declared that since the enactment of
R.A. No. 2260 and Piero,38 it is the nature of the
position which finally determines whether a position is
primarily confidential or not, without regard to existing
executive or legislative pronouncements either way,
since the latter will not bind the courts in case of
conflict.
A position that is primarily confidential in nature is
defined as early as 1950 in De los Santos v.
Mallare,39 through the ponencia of Justice Pedro
Tuason, to wit:
x x x These positions (policy-determining,
primarily confidential and highly technical
positions), involve the highest degree of
confidence, or are closely bound up with and
dependent on other positions to which they
are subordinate, or are temporary in nature. It
may truly be said that the good of the service
itself demands that appointments coming
under this category be terminable at the will of
the officer that makes them.
xxxx
Every appointment implies confidence, but
much more than ordinary confidence is
reposed in the occupant of a position that
is primarily confidential. The latter phrase
denotes not only confidence in the
aptitude of the appointee for the duties of
the office but primarily close intimacy
which insures freedom of [discussion,
delegation and reporting] without
embarrassment or freedom from
misgivings of betrayals of personal trust or
confidential matters of state. x x
x40 (Emphasis supplied)
Since the definition in De los Santos came out, it has
guided numerous other cases.41 Thus, it still stands
CSC-CES Cases 32
Public Corporation
that a position is primarily confidential when by the
nature of the functions of the office there exists "close
intimacy" between the appointee and appointing
power which insures freedom of intercourse without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of
state.
In classifying a position as primarily confidential, its
functions must not be routinary, ordinary and day to
day in character.42 A position is not necessarily
confidential though the one in office may sometimes
handle confidential matters or documents.43 Only
ordinary confidence is required for all positions in the
bureaucracy. But, as held in De los Santos,[44] for
someone holding a primarily confidential position,
more than ordinary confidence is required.
In Ingles v. Mutuc,45 the Court, through Chief Justice
Roberto Concepcion as ponente, stated:
Indeed, physicians handle confidential
matters. Judges, fiscals and court
stenographers generally handle matters of
similar nature. The Presiding and Associate
Justices of the Court of Appeals sometimes
investigate, by designation of the Supreme
Court, administrative complaints against
judges of first instance, which are confidential
in nature. Officers of the Department of
Justice, likewise, investigate charges against
municipal judges. Assistant Solicitors in the
Office of the Solicitor General often
investigate malpractice charges against
members of the Bar. All of these are
"confidential" matters, but such fact does
not warrant the conclusion that the office
or position of all government physicians
and all Judges, as well as the
aforementioned assistant solicitors and
officers of the Department of Justice
are primarilyconfidential in
character.46 (Emphasis supplied)
It is from De los Santos that the so-called "proximity
rule" was derived. A position is considered to be
primarily confidential when there is a primarily close
intimacy between the appointing authority and the
appointee, which ensures the highest degree of trust
and unfettered communication and discussion on the
most confidential of matters.47 This means that where
the position occupied is already remote from that of
the appointing authority, the element of trust between
them is no longer predominant.48 On further
interpretation in Grio, this was clarified to mean that
a confidential nature would be limited to those
positions not separated from the position of the
appointing authority by an intervening public officer, or
series of public officers, in the bureaucratic
hierarchy.49
Consequently, brought upon by their remoteness to
the position of the appointing authority, the following
were declared by the Court to be not primarily
confidential positions: City Engineer;50 Assistant
Secretary to the Mayor;51members of the Customs
Police Force or Port Patrol;52 Special Assistant of the

Governor of the Central Bank, Export
Department;53 Senior Executive Assistant, Clerk I and
Supervising Clerk I and Stenographer in the Office of
the President;54 Management and Audit Analyst I of
the Finance Ministry Intelligence Bureau;55 Provincial
Administrator;56 Internal Security Staff of the
Philippine Amusement and Gaming Corporation
(PAGCOR);57 Casino Operations Manager;58 and Slot
Machine Attendant.59 All positions were declared to be
not primarily confidential despite having been
previously declared such either by their respective
appointing authorities or the legislature.
The following were declared in jurisprudence to be
primarily confidential positions: Chief Legal Counsel
of the Philippine National Bank;60 Confidential Agent
of the Office of the Auditor, GSIS;61 Secretary of
the SangguniangBayan;62 Secretary to the City
Mayor;63 Senior Security and Security Guard in the
Office of the Vice Mayor;64Secretary to the Board of a
government corporation;65 City Legal Counsel, City
Legal Officer or City Attorney;66Provincial
Attorney;67 Private Secretary;68 and Board Secretary II
of the Philippine State College of Aeronautics.69
In fine, a primarily confidential position is
characterized by the close proximity of the positions
of the appointer and appointee as well as the high
degree of trust and confidence inherent in their
relationship.
Ineluctably therefore, the position of Corporate
Secretary of GSIS, or any GOCC, for that matter, is a
primarily confidential position. The position is clearly
in close proximity and intimacy with the appointing
power. It also calls for the highest degree of
confidence between the appointer and appointee.
In classifying the position of Corporate Secretary of
GSIS as primarily
confidential, the Court took into consideration the
proximity rule together with the duties of the corporate
secretary, enumerated as follows:70
1. Performs all duties, and exercises the
power, as defined and enumerated in Section
4, Title IX, P.D. No. 1146;
2. Undertakes research into past Board
resolutions, policies, decisions, directives and
other Board action, and relate these to
present matters under Board consideration;
3. Analyzes and evaluates the impact, effects
and relevance of matters under Board
consideration on existing Board policies and
provide the individual Board members with
these information so as to guide or enlighten
them in their Board decision;
4. Records, documents and reproduces in
sufficient number all proceedings of Board
meetings and disseminate relevant Board
decisions/information to those units
concerned;
CSC-CES Cases 33
Public Corporation
5. Coordinates with all functional areas and
units concerned and monitors the manner of
implementation of approved Board
resolutions, policies and directives;
6. Maintains a permanent, complete,
systematic and secure compilation of all
previous minutes of Board meetings, together
with all their supporting documents;
7. Attends, testifies and produces in Court or
in administrative bodies duly certified copies
of Board resolutions, whenever required;
8. Undertakes the necessary physical
preparations for scheduled Board meetings;
9. Pays honoraria of the members of the
Board who attend Board meetings;
10. Takes custody of the corporate seal and
safeguards against unauthorized use; and
11. Performs such other functions as the
Board may direct and/or require.
The nature of the duties and functions attached to the
position points to its highly confidential
character.71 The secretary reports directly to the board
of directors, without an intervening officer in between
them.72 In such an arrangement, the board expects
from the secretary nothing less than the highest
degree of honesty, integrity and loyalty, which is
crucial to maintaining between them "freedom of
intercourse without embarrassment or freedom from
misgivings or betrayals of personal trust or
confidential matters of state."73
The responsibilities of the corporate secretary are not
merely clerical or routinary in nature. The work
involves constant exposure to sensitive policy matters
and confidential deliberations that are not always
open to the public, as unscrupulous persons may use
them to harm the corporation. Board members must
have the highest confidence in the secretary to
ensure that their honest sentiments are always and
fully expressed, in the interest of the corporation. In
this respect, the nature of the corporate secretary's
work is akin to that of a personal secretary of a public
official, a position long recognized to be primarily
confidential in nature.74 The only distinction is that the
corporate secretary is secretary to the entire board,
composed of a number of persons, but who
essentially act as one body, while the private
secretary works for only one person. However, the
degree of confidence involved is essentially the same.
Not only do the tasks listed point to sensitive and
confidential acts that the corporate secretary must
perform, they also include "such other functions as
the Board may direct and/or require," a clear
indication of a closely intimate relationship that exists
between the secretary and the board. In such a highly
acquainted relation, great trust and confidence
between appointer and appointee is required.

The loss of such trust or confidence could easily
result in the board's termination of the secretary's
services and ending of his term. This is
understandably justified, as the board could not be
expected to function freely with a suspicious officer in
its midst. It is for these same reasons that
jurisprudence, as earlier cited, has consistently
characterized personal or private secretaries, and
board secretaries, as positions of a primarily
confidential nature.75
The CA did not err in declaring that the position of
Corporate Secretary of GSIS is primarily confidential
in nature and does not belong to the career service.
The Court is aware that this decision has
repercussions on the tenure of other corporate
secretaries in various GOCCs. The officers likely
assumed their positions on permanent career status,
expecting protection for their tenure and
appointments, but are now re-classified as primarily
confidential appointees. Such concern is unfounded,
however, since the statutes themselves do not
classify the position of corporate secretary as
permanent and career in nature. Moreover, there is
no absolute guarantee that it will not be classified as
confidential when a dispute arises. As earlier stated,
the Court, by legal tradition, has the power to make a
final determination as to which positions in
government are primarily confidential or otherwise. In
the light of the instant controversy, the Court's view is
that the greater public interest is served if the position
of a corporate secretary is classified as primarily
confidential in nature.
Moreover, it is a basic tenet in the country's
constitutional system that "public office is a public
trust,"76 and that there is no vested right in public
office, nor an absolute right to hold office.77 No
proprietary title attaches to a public office, as public
service is not a property right.78 Excepting
constitutional offices which provide for special
immunity as regards salary and tenure, no one
can be said to have any vested right in an
office.79 The rule is that offices in government, except
those created by the constitution, may be abolished,
altered, or created anytime by statute.80 And any
issues on the classification for a position in
government may be brought to and determined by the
courts.81
WHEREFORE, premises considered, the Petition
is DENIED. The Decision of the Court of Appeals
dated September 29, 2005, in CA-G.R. SP No.
88568, as well as its Resolution of June 5, 2006 are
hereby AFFIRMED in toto.
No costs.
SO ORDERED.
G.R. No. 191672 November 25, 2014
DENNIS A. B. FUNA, Petitioner,
vs.
THE CHAIRMAN, CIVIL SERVICE COMMISSION,
CSC-CES Cases 34
Public Corporation
FRANCISCO T. DUQUE III, EXECUTIVE
SECRETARY LEANDRO R. MENDOZA, OFFICE OF
THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
The independence of the Civil Service Commission
(CSC) is explicitly mandated under Section 1,1 Article
IX-A of the 1987 Constitution. Additionally, Section
2,2 Article IX-A of the 1987 Constitution prohibits its
Members, during their tenure, from holding any other
office or employment.
These constitutional provisions3 are central to this
special civil action for certiorari and prohibition
brought to assail the designation of Hon. Francisco T.
Duque III, Chairman of the CSC, as a member of the
Board of Directors or Trustees in an ex officio
capacity of the (a) Government Service Insurance
System (GSIS); (b) Philippine Health Insurance
Corporation (PHILHEALTH), (c) the Employees
Compensation Commission (ECC), and (d) the Home
Development Mutual Fund (HDMF).
Antecedents
On January 11, 2010, then President Gloria
Macapagal-Arroyo appointed Duque as Chairman of
the CSC. The Commission on Appointments
confirmed Duques appointment on February 3, 2010.
On February 22, 2010,President Arroyo issued
Executive Order No. 864 (EO 864), whose complete
text is quoted as follows:
EXECUTIVE ORDER NO. 864
INCLUSION OF THE CHAIRMAN OF THE CIVIL
SERVICE COMMISSION IN THE BOARD OF
TRUSTEES/DIRECTORS OF THE GOVERNMENT
SERVICE INSURANCE SYSTEM, PHILIPPINE
HEALTH INSURANCE CORPORATION,
EMPLOYEES COMPENSATION COMMISSION
AND THE HOME DEVELOPMENT MUTUAL FUND
WHEREAS, Section 2 (1), Article IX-B of the 1987
Philippine Constitution provides that the civil service
embraces all branches, subdivisions,
instrumentalities, and agencies of the Government,
including government-owned or controlled
corporations with original charters;
WHEREAS, Section 3, Article IX-B of the 1987
Constitution mandates, among others, that the Civil
Service Commission (CSC), as the central personnel
agency of the government, shall establish a career
service and adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness,
and courtesy in the civil service, and shall strengthen
the merit and rewards system, integrate all human
resources development programs for all levels and
ranks, and institutionalize a management climate
conducive to public accountability; WHEREAS,
Section 14, Chapter 3, Title I-A, Book V of the

Administrative Code of 1987 (Executive Order No.
292) expressly states that the Chairman of the CSC
shall bea member of the Board of Directors or of other
governing bodies of government entities whose
functions affect the career development, employment,
status, rights, privileges, and welfare of government
officials and employees, such as the Government
Service Insurance System, Foreign Service Board,
Foreign Trade Service Board, National Board for
Teachers, and such other similar boards as may be
created by law;
WHEREAS, Presidential Decree No. 1 dated
September 24, 1972, explicitly empowers the
President of the Republic of the Philippines to
reorganize the entire Executive Branch of the National
Government, as a vital and priority measure to effect
the desired changes and reforms in the social,
economic and political structure of the country;
WHEREAS, Section 18 (a), ArticleIV of Republic Act
No. 7875 (An Act Instituting a National Health
Insurance Program For All Filipinos and Establishing
the Philippine Health Insurance Corporation For The
Purpose) or otherwise known as the "National Health
Insurance Act of 1995", Section 42 (G) of Republic
Act No. 8291 (An Act Amending Presidential Decree
No. 1146, as amended, Expanding and Increasing the
Coverage of Benefits of the Government Service
Insurance System, Instituting Reforms Therein and
For Other Purposes) or otherwise known as "The
Government Service Insurance System Act of 1997,
Article 176, Chapter 3 of Presidential Decree No. 626
(Employees Compensation and State Insurance
Fund), and Presidential Decree No. 1530 (Instituting a
System of Voluntary Contributions for Housing
Purpose[s]) or otherwise known as the "Pag-ibig
Fund" reveal that while the Chairman of the CSC is
not included in the list of those who could sit as a
member of the Board of Directors of the Philhealth or
of the Board of Trustees of the GSIS, ECC and the
Pag-ibig Fund, said laws did not expressly repeal
Section 14, Chapter 3, Title I-A, Book V of the
Administrative Code of 1987 and Presidential Decree
No. 1; WHEREAS, it is settled that repeals by
implication are not favored as laws are presumed to
be passed with deliberation and full knowledge of all
laws existing on the subject;
WHEREAS, a scrutiny of the mandated functions and
duties of the Board of Trustees of the GSIS, ECC and
HDMF and the Board of Directors of the PhilHealth
shows that the same are all geared towards the
advancement of the welfare of government officials
and employees, which functions fall within the
province of the CSC;
NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by
law, do hereby order and direct:
Section 1. The Chairman of the Civil Service
Commission shall sit as an Ex-Officio member of the
Board of Trustees of the Government Service
Insurance System, Employees Compensation
Commission and the Home Development Mutual
CSC-CES Cases 35
Public Corporation
Fund and the Board of Directors of the Philippine
Health Insurance Corporation pursuant to Section 14,
Chapter 3, Title I-A, Book V of Executive Order No.
292 (Administrative Code of 1987).
Section 2. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 22nd day of February,
in the year of Our Lord, Two Thousand and Ten.4
Pursuant to EO 864, Duque was designated as a
member of the Board of Directors or Trustees of the
following government-owned or government-
controlled corporations (GOCCs): (a) GSIS; (b)
PHILHEALTH;(c) ECC; and (d) HDMF.
On April 8, 2010, petitioner Dennis A.B. Funa, in his
capacity as taxpayer, concerned citizen and lawyer,
filed the instant petition challenging the
constitutionality of EO 864, as well as Section 14,
Chapter 3, Title I-A, Book V of Executive Order No.
292 (EO 292), otherwise known as The Administrative
Code of 1987, and the designation of Duque as a
member of the Board of Directors or Trustees of the
GSIS, PHIC, ECC and HDMF for being clear
violations of Section 1 and Section 2, Article IX-A of
the 1987 Constitution.
The Case
The Court is confronted with the proper interpretation
of Section 1 and Section 2, Article IX-A of the 1987
Constitution and Section 14, Chapter 3, Title I-A,
Book V of EO 292 to ascertain the constitutionality of
the designation of Duque, in an ex officio capacity, as
Director or Trustee of the GSIS, PHIC, ECC and
HDMF.
Petitioner asserts that EO 864 and Section 14,
Chapter 3, Title I-A, Book V of EO 292 violate the
independence of the CSC, which was constitutionally
created to be protected from outside influences and
political pressures due to the significance of its
government functions.5 He further asserts that such
independence is violated by the fact that the CSC is
not a part of the Executive Branch of Government
while the concerned GOCCs are considered
instrumentalities of the Executive Branch of the
Government.6 In this situation, the President may
exercise his power of control over the CSC
considering that the GOCCs in which Duque sits as
Board member are attached to the Executive
Department.7
Petitioner argues that Section 14, Chapter 3, Title I-A,
Book V of EO 292 unduly and unconstitutionally
expands the role of the CSC, which is primarily
centered on personnel-related concerns involving
government workers, to include insurance, housing
and health matters of employees in the government
service.8 He observes that the independence of the
CSC will not be compromised if these matters are
instead addressed by entering into a memorandum of
agreement or by issuing joint circulars with the
concerned agencies, rather than allowing a member

of the CSC to sit as a member of the governing
Boards of these agencies.9
Petitioner notes that the charters of the GSIS,
PHILHEALTH, ECC and HDMF do not mention that
the CSC Chairman sits as a member of their
governing Boards in an ex officiocapacity.10 Such
being the case, the President may not amend the
charters, which are enacted by Congress, by the
mere issuance of an executive order.11
Petitioner posits that EO 864 and Section 14, Chapter
3, Title I-A, Book V of EO 292 violate the prohibition
imposed upon members of constitutional
commissions from holding any other office or
employment.12 A conflict of interest may arise in the
event that a Board decision of the GSIS,
PHILHEALTH, ECC and HDMF concerning
personnel-related matters is elevated to the CSC
considering that such GOCCs have original charters,
and their employees are governed by CSC laws, rules
and regulations.13
In their Comment, respondents maintain that Duques
membership in the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF is constitutional. They
explain that EO 864 and Section 14, Chapter 3, Title
IA, Book V of EO 292 preserve the independence of
the CSC considering that GOCCs with original
charters such as the GSIS, PHILHEALTH, ECC and
HDMF are excluded from the supervision and control
that secretaries and heads exercise over the
departments to which these GOCCs are
attached.14 Ultimately, these GOCCs are exempted
from the executive control of the President.15
As to the matter of conflict of interest, respondents
point out that Duque is just one member of the CSC,
or of the Boards of the GSIS, PHILHEALTH, ECC and
HDMF, such that matters resolved by these bodies
may be resolved with or without Duques
participation.16 Respondents submit that the
prohibition against holding any other office or
employment under Section 2, Article IX-A of the 1987
Constitution does not cover positions held without
additional compensation in ex officio capacities.
Relying on the pronouncement in Civil Liberties Union
v. Executive Secretary,17 they assert that since the
1987 Constitution, which provides a stricter prohibition
against the holding of multiple offices by executive
officials, allows them to hold positions in ex officio
capacities, the same rule is applicable to members of
the Constitutional Commissions.18 Moreover, the
mandatory tenor of Section 14, Chapter 3, Title I-A,
Book V of EO 292 clearly indicates that the CSC
Chairmans membership in the governing bodies
mentioned therein merely imposes additional duties
and functions as an incident and necessary
consequence of his appointment as CSC Chairman.19
Respondents insist that EO 864 and Section 14,
Chapter 3, Title I-A, Book V of EO 292, as well as the
charters of the GSIS, PHILHEALTH, ECC and HDMF,
are consistent with each other. While the charters of
these GOCCs do not provide that CSC Chairman
shall be a member of their respective governing
Boards, there islikewise no prohibition mentioned
CSC-CES Cases 36
Public Corporation
under said charters.20 EO 864, issued in conformity
with Section 14, Chapter 3, Title I-A, Book V of EO
292, could not have impliedly amended the charters
of the GSIS, PHILHEALTH, ECC and HDMF because
the former relates to the law on the CSC while the
latter involve the creation and incorporation of the
respective GOCCs.21 As their subject matters differ
from each other, the enactment of the subsequent law
is not deemed to repeal or amend the charters of the
GOCCs, being considered prior laws.22
Issue
Does the designation of Duque as member of the
Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF, in an ex officio
capacity, impair the independence of the CSC and
violate the constitutional prohibition against the
holding of dual or multiple offices for the Members of
the Constitutional Commissions?
Our Ruling
The Court partially grants the petition. The Court
upholds the constitutionality of Section 14, Chapter 3,
Title I-A, Book V of EO 292, but declares
unconstitutional EO 864 and the designation of Duque
in an ex officio capacity as a member of the Board of
Directors or Trustees of the GSIS, PHILHEALTH,
ECC and HDMF.
1.
Requisites of judicial review
Like almost all powers conferred by the Constitution,
the power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to
question the validity of the subject act or issuance;
otherwise stated, he must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must
be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis motaof the
case.23
Here, the Office of the Solicitor General (OSG) only
disputes the locus standi of petitioner who has filed
this suit in his capacity as taxpayer, concerned citizen
and lawyer.24 In view of the earlier dispositions by the
Court in similar public law cases initiated by petitioner,
we again affirm his locus standito bring a suit of this
nature. In Funa v. Agra,25 the Court has recently held:
x x x [T]he locus standi of the petitioner as a taxpayer,
a concerned citizen and a lawyer to bring a suit ofthis
nature has already been settled in his favor in rulings
by the Court on several other public law litigations he
brought. In Funa v. Villar, for one, the Court has held:
To have legal standing, therefore, a suitor must show
that he has sustained or will sustain a "direct injury"
as a result of a government action, or have a "material

interest" in the issue affected by the challenged
official act. However, the Court has time and again
acted liberally on the locus standi requirements and
has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a
Government act, standing to sue provided a
constitutional issue of critical significance is at stake.
The rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena
of cases involving a subject of transcendental import,
has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest,
albeit they may not have been personally injured by
the operation of a law or any other government act. In
David, the Court laid out the bare minimum norm
before the so-called "non-traditional suitors" may be
extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of
obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that
the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance,
since it obviously has "far-reaching implications," and
there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner
to institute the instant petition.20 (Bold emphasis
supplied)
In Funa v. Ermita, the Court recognized the locus
standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer because the issue raised therein
involved a subject of transcendental importance
whose resolution was necessary to promulgate rules
to guide the Bench, Bar, and the public in similar
cases.
The Court notes, however, that during the pendency
of this petition, Duques designation as Director or
Trustee of the GSIS, PHILHEALTH, ECC and PHIC
could have terminated or been rendered invalid by the
enactment of Republic Act No. 10149,26 thus causing
this petition and the main issue tendered herein moot
and academic. Pertinent provisions of Republic Act
No.10149, which took effect on June 6, 2011, state:
SEC. 13. Number of Directors/Trustees.The
present number of Directors/Trustees provided in the
charter of the GOCCs shall be maintained.
CSC-CES Cases 37
Public Corporation
SEC. 14. Ex Officio Alternates.The ex officio
members of the GOCC may designate their
respective alternates who shall be the officials next-in-
rank to them and whose acts shall be considered the
acts of their principals.
SEC. 15. Appointment of the Board of
Directors/Trustees of GOCCs.An Appointive
Director shall be appointed by the President of the
Philippines from a shortlist prepared by the GCG.
The GCG shall formulate its rules and criteria in the
selection and nomination of prospective appointees
and shall cause the creation of search committees to
achieve the same. All nominees included in the list
submitted by the GCG to the President shall meet the
Fit and Proper Rule as defined un this Act and such
other qualifications which the GCG may determine
taking into consideration the unique requirements of
each GOCC. The GCG shall ensure that the shortlist
shall exceed by at least fifty percent (50%) of the
number of directors /trustees tobe appointed. In the
event that the President does not see fit to appoint
any of the nominees included in the shortlist, the
President shall ask the GCG to submit additional
nominees.
xxxx
SEC. 17. Term of Office.Any provision in the
charters of each GOCC to the contrary
notwithstanding, the term of office of each Appointive
Director shall be for one(1) year, unless sooner
removed for cause: Provided, however,That the
Appointive Director shall continue to hold office until
the successor is appointed. An Appointive Director
may be nominated by the GCG for reappointment by
the President only if one obtains a performance score
of above average or its equivalent or higher in the
immediately preceding year of tenure as Appointive
Director based on the performance criteria for
Appointive Directors for the GOCC.
Appointed to any vacancy shall be only for the
unexpired term of the predecessor. The appointment
of a director to fill such vacancy shall be in
accordance with the manner provided in Section 15 of
this Act.
Any provision of law to the contrary notwithstanding,
all incumbent CEOs and appointive members of the
Board of GOCCs shall, upon approval of this Act,
have a term of office until June 30, 2011, unless
sooner replaced by the President: Provided, however,
That the incumbent CEOs and appointive members of
the Board shall continue in office until the successor
have been appointed by the President.
A moot and academic case is one thatceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value.27
2.
Unconstitutionality of Duquesdesignation as member

of the governing boards of the GSIS, PHIC, ECC and
HDMF
Nonetheless, this Court has exercised its power of
judicial review in cases otherwise rendered moot and
academic by supervening events on the basis of
certain recognized exceptions, namely: (1) there is a
grave violation of the Constitution; (2) the case
involves a situation of exceptional character and is of
paramount public interest; (3) the constitutional issue
raised requires the formulation of controlling principles
to guide the Bench, the Bar and the public; and (4)
the case is capable of repetition yet evading review.28
The situation now obtaining definitely falls under the
requirements for the review of a moot and academic
case. For the guidance of and as a restraint upon the
future,29 the Court will not abstain from exercising its
power of judicial review, the cessation of the
controversy notwithstanding. We proceed to resolve
the substantive issue concerning the constitutionality
of Duques ex officio designation as member of the
Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.
The underlying principle for the resolution of the
present controversy rests on the correct application of
Section 1 and Section 2, Article IX-A of the 1987
Constitution, which provide: Section 1. The
Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on
Audit.
Section 2. No Member of a Constitutional
Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the
practice of any profession or in the active
management or control of any business which in any
way may be affected by the functions of his office, nor
shall he be financially interested, directly or indirectly,
in any contract with, or in any franchise or privilege
granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution
expressly describes all the Constitutional
Commissions as "independent."Although their
respective functions are essentially executive in
nature, they are not under the control of the President
of the Philippines in the discharge of such functions.
Each of the Constitutional Commissions conducts its
own proceedings under the applicable laws and its
own rules and in the exercise of its own discretion. Its
decisions, orders and rulings are subject only to
review on certiorariby the Court as provided by
Section 7, Article IX-A of the 1987 Constitution.30 To
safeguard the independence of these Commissions,
the 1987 Constitution, among others,31 imposes under
Section 2, Article IX-A of the Constitution certain
inhibitions and disqualifications upon the Chairmen
and members to strengthen their integrity, to wit:
(a) Holding any other office or employment
during their tenure;
(b) Engaging in the practice of any profession;
CSC-CES Cases 38
Public Corporation
(c) Engaging in the active management or
control of any business which in any way may
be affected by the functions of his office; and
(d) Being financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by the
Government, any of its subdivisions, agencies
or instrumentalities, including government-
owned or controlled corporations or their
subsidiaries.32
The issue herein involves the first disqualification
abovementioned, which is the disqualification from
holding any other office or employment during
Duques tenure as Chairman of the CSC. The Court
finds it imperative to interpret this disqualification in
relation to Section 7, paragraph (2), Article IX-B of the
Constitution and the Courts pronouncement in Civil
Liberties Union v. Executive Secretary.
Section 7, paragraph (2),Article IX-B reads:
Section 7. x x x
Unless otherwise allowed by law or the primary
functions of his position, no appointive official shall
hold any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof,including government-owned
or controlled corporations or their subsidiaries.
In Funa v. Ermita,33 where petitioner challenged the
concurrent appointment of Elena H. Bautista as
Undersecretary of the Department of Transportation
and Communication and as Officer-in-Charge of the
Maritime Industry Authority, the Court reiterated the
pronouncement in Civil Liberties Union v.The
Executive Secretary on the intent of the Framers on
the foregoing provision of the 1987 Constitution, to
wit:
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment
in the government during their tenure when such is
allowed by law orby the primary functions of their
positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public officials
and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President,
the Vice-President, Members of the Cabinet, their
deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding
multiple offices or employment in the government
during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so

that it must be understood as intended to bea positive
and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation. The phrase
"unless otherwise provided in this Constitution" must
be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2),Article VII; or
acting as President in those instances provided under
Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1),
Article VIII.34
Being an appointive public official who does not
occupy a Cabinet position (i.e., President, the Vice-
President, Members of the Cabinet, their deputies and
assistants), Duque was thus covered by the general
rule enunciated under Section 7, paragraph (2),
Article IX-B. He can hold any other office or
employment in the Government during his tenure if
such holding is allowed by law or by the primary
functions of his position.
Respondents insist that Duques ex officio designation
as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF is allowed by the
primary functions of his position as the CSC
Chairman. To support this claim, they cite Section 14,
Chapter 3, Title I-A, Book V of EO 292, to wit:
Section 14. Membership of the Chairman in Boards.
The Chairman shall be a member of the Board of
Directors or of other governing bodies of government
entities whose functions affect the career
development, employment status, rights, privileges,
and welfare of government officials and employees,
such as the Government Service Insurance System,
Foreign Service Board, Foreign Trade Service Board,
National Board for Teachers, and such other similar
boards as may be created by law.
As to the meaning of ex officio, the Court has decreed
in Civil Liberties Union v. Executive Secretary that
x x x x The term ex officiomeans "from office; by virtue
of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position." Ex officio likewise denotes an "act done in
an official character, or as a consequence of office,
and without any other appointment or authority other
than that conferred by the office." An ex officio
member of a board is one who is a member by virtue
of his title to a certain office, and without further
warrant or appointment. x x x
xxxx
The ex officio position being actually and in legal
contemplation part of the principal office, it follows
that the official concerned has no right to receive
additional compensation for his services in the said
position. The reason is that these services are already
CSC-CES Cases 39
Public Corporation
paid for and covered by the compensation attached to
his principal office. x x x35
Section 3, Article IX-B of the 1987 Constitution
describes the CSC as the central personnel agency of
the government and is principally mandated to
establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service; to
strengthen the merit and rewards system; to integrate
all human resources development programs for all
levels and ranks; and to institutionalize a
management climate conducive to public
accountability. Its specific powers and functions are
as follows:
(1) Administer and enforce the constitutional
and statutory provisions on the merit system
for all levels and ranks in the Civil Service;
(2) Prescribe, amend and enforce rules and
regulations for carrying into effect the
provisions of the Civil Service Law and other
pertinent laws;
(3) Promulgate policies, standards and
guidelines for the Civil Service and adopt
plans and programs to promote economical,
efficient and effective personnel administration
in the government;
(4) Formulate policies and regulations for the
administration, maintenance and
implementation of position classification and
compensation and set standards for the
establishment, allocation and reallocation of
pay scales, classes and positions;
(5) Render opinion and rulings on all
personnel and other Civil Service matters
which shall be binding on all heads of
departments, offices and agencies and which
may be brought to the Supreme Court on
certiorari;
(6) Appoint and discipline its officials and
employees in accordance with law and
exercise control and supervision over the
activities of the Commission;
(7) Control, supervise and coordinate Civil
Service examinations. Any entity or official in
government may be called upon by the
Commission to assist in the preparation and
conduct of said examinations including
security, use of buildings and facilities as well
as personnel and
transportation of examination materials which
shall be exempt from inspection regulations;
(8) Prescribe all forms for Civil Service
examinations, appointments, reports and such
other forms as may be required by law, rules
and regulations;

(9) Declare positions in the Civil Service as
may properly be primarily confidential, highly
technical or policy determining;
(10) Formulate, administer and evaluate
programs relative to the development and
retention of qualified and competent work
force in the public service;
(11) Hear and decide administrative cases
instituted by or brought before it directly or on
appeal, including contested appointments,
and review decisions and actions of its offices
and of the agencies attached to it. Officials
and employees who fail to comply with such
decisions, orders, or rulings shall be liable for
contempt of the Commission. Its decisions,
orders, or rulings shall be final and executory.
Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) daysfrom
receipt of a copy thereof;
(12) Issue subpoena and subpoena duces
tecum for the production of documents and
records pertinent to investigation and inquiries
conducted by it in accordance withits authority
conferred by the Constitution and pertinent
laws;
(13) Advise the President on all matters
involving personnel management in the
government service and submit to the
President an annual report on the personnel
programs;
(14) Take appropriate action on all
appointments and other personnel matters in
the Civil Service including extension of
Service beyond retirement age;
(15) Inspect and audit the personnel actions
and programs of the departments, agencies,
bureaus, offices, local government units and
other instrumentalities of the government
including government-owned or controlled
corporations; conduct periodic review of the
decisions and actions of offices or officials to
whom authority has been delegated by the
Commission as well as the conduct of the
officials and the employees in these offices
and apply appropriate sanctions when
necessary;
(16) Delegate authority for the performance of
any functions to departments, agencies and
offices where such functions may be
effectively performed;
(17) Administer the retirement program for
government officials and employees, and
accredit government services and evaluate
qualifications for retirement;
CSC-CES Cases 40
Public Corporation
(18) Keep and maintain personnel records of
all officials and employees in the Civil Service;
and
(19) Perform all functions properly belonging
to a central personnel agency and such other
functions as may be provided by law.36
On the other hand, enumerated below are the specific
duties and responsibilities of the CSC Chairman,
namely:
(1) Direct all operations of the Commission;
(2) Establish procedures for the effective
operations of the Commission;
(3) Transmit to the President rules and
regulations, and other guidelines adopted by
the Chairman which require Presidential
attention including annual and other periodic
reports;
(4) Issue appointments to, and enforce
decisions on administrative discipline involving
officials and employees of the Commission;
(5) Delegate authority for the performance of
any function to officials and employees of the
Commission;
(6) Approve and submit the annual and
supplemental budget of the Commission; and
(7) Perform such other functionsas may be
provided by law.37
Section 14, Chapter 3, Title I-A, Book V of EO 292 is
clear that the CSC Chairmans membership in a
governing body is dependent on the condition that the
functions of the government entity where he will sit as
its Board member must affect the career
development, employment status, rights, privileges,
and welfare of government officials and employees.
Based on this, the Court finds no irregularity in
Section 14, Chapter 3, Title I-A, Book V of EO 292
because matters affecting the career development,
rights and welfare of government employees are
among the primary functions of the CSC and are
consequently exercised through its Chairman. The
CSC Chairmans membership therein must, therefore,
be considered to be derived from his position as such.
Accordingly, the constitutionality of Section 14,
Chapter 3, Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether
Duques designation as Board member of the GSIS,
PHILHEALTH, ECC and HDMF is in accordance with
the 1987 Constitution and the condition laid down in
Section 14, Chapter 3, Title I-A, Book V of EO 292. It
is necessary for this purpose to examine the functions
of these government entities under their respective
charters, to wit:
The GSIS Charter, Republic Act No. 8291

SECTION 41. Powers and Functions of the GSIS.
The GSIS shall exercise the following powers and
functions:
(a) to formulate, adopt, amend and/or rescind
such rules and regulations as may be
necessary to carry out the provisions and
purposes of this Act, as well as the effective
exercise of the powers and functions, and the
discharge of duties and responsibilities of the
GSIS, its officers and employees;
(b) to adopt or approve the annual and
supplemental budget of receipts and
expenditures including salaries and
allowances of the GSIS personnel; to
authorize such capital and operating
expenditures and disbursements of the GSIS
as may be necessary and proper for the
effective management and operation of the
GSIS;
(c) to invest the funds of the GSIS, directly or
indirectly, in accordance with the provisions of
this Act;
(d) to acquire, utilize or dispose of, in any
manner recognized by law, real or personal
property in the Philippines or elsewhere
necessary to carry out the purposes of this
Act;
(e) to conduct continuing actuarialand
statistical studies and valuations to determine
the financial condition of the GSIS and taking
into consideration such studies and valuations
and the limitations herein provided, re-adjust
the benefits, contributions, premium rates,
interest rates or the allocation or re-allocation
of the funds to the contingencies covered;
(f) to have the power of succession;
(g) to sue and be sued;
(h) to enter into, make, perform and carry out
contracts of every kind and description with
any person, firm or association or corporation,
domestic or foreign;
(i) to carry on any other lawful business
whatsoever in pursuance of, or in connection
with the provisions of this Act;
(j) to have one or more offices in and outside
of the Philippines, and to conduct its business
and exercise its powers throughout and in any
part of the Republic of the Philippines and/or
in any or all foreign countries, states and
territories: Provided, That the GSIS shall
maintain a branch office in every province
where there exists a minimum of fifteen
thousand (15,000) membership; (k) to borrow
funds from any source, private or government,
foreign or domestic, only as an incident in the
securitization of housing mortgages of the
CSC-CES Cases 41
Public Corporation
GSIS and on account of its receivables from
any government or private entity;
(l) to invest, own or otherwise participate in
equity in any establishment, firm or entity;
(m) to approve appointments in the GSIS
except appointments to positions which are
policy determining, primarily confidential or
highly technical in nature according to the Civil
Service rules and regulations: Provided, That
all positions in the GSIS shall be governed by
a compensation and position classification
system and qualifications standards approved
bythe GSIS Board of Trustees based on a
comprehensive job analysis and audit of
actual duties and responsibilities: Provided,
further, That the compensation plan shall be
comparable with the prevailing compensation
plans in the private sector and shall be subject
to the periodic review by the Board no more
than once every four (4) years without
prejudice to yearly merit reviews or increases
based on productivity and profitability;
(n) to design and adopt an Early Retirement
Incentive Plan (ERIP) and/or financial
assistance for the purpose of retirement for its
own personnel;
(o) to fix and periodically review and adjust the
rates of interest and other terms and
conditions for loans and credits extended to
members or other persons, whether natural or
juridical;
(p) to enter into agreement with the Social
Security System or any other entity,
enterprise, corporation or partnership for the
benefit of members transferring from one
system to another subject to the provision of
Republic Act No. 7699, otherwise known as
the Portability Law;
(q) to be able to float proper instrument to
liquefy long-term maturity by pooling funds for
short-term secondary market;
(r) to submit annually, not later thanJune 30, a
publicreport to the President of the Philippines
and the Congress of the Philippines regarding
its activities in the administration and
enforcement of this Act during the preceding
year including information and
recommendations on broad policies for the
development and perfection of the programs
of the GSIS;
(s) to maintain a provident fund, which
consists of contributions made by both the
GSIS and its officials and employees and their
earnings, for the payment of benefits to such
officials and employees or their heirs under
such terms and conditions as it may prescribe;

(t) to approve and adopt guidelines affecting
investments, insurance coverage of
government properties, settlement of claims,
disposition of acquired assets, privatization or
expansion of subsidiaries, development of
housing projects, increased benefit and loan
packages to members, and the enforcement
of the provisions of this Act;
(u) any provision of law to the contrary
notwithstanding, to authorize the payment of
extra remuneration to the officials and
employees directly involved in the collection
and/or remittance of contributions, loan
repayments, and other monies due to the
GSIS at such rates and under such conditions
as itmay adopt. Provided, That the best
interest of the GSIS shall be observed
thereby;
(v) to determine, fix and impose interest upon
unpaid premiums due from employers and
employees;
(w) to ensure the collection or recovery of all
indebtedness, liabilities and/or
accountabilities, includingunpaid premiums or
contributions in favor of the GSISarising from
any cause or source whatsoever, due from all
obligors, whether public or private. The Board
shall demand payment or settlement of the
obligations referred to herein within thirty (30)
days from the date the obligation becomes
due, and in the event of failure or refusal of
the obligor or debtor to comply with the
demand, to initiate or institute the necessary
or proper actions or suits, criminal, civil or
administrative or otherwise, before the courts,
tribunals, commissions, boards, or bodies of
proper jurisdiction within thirty (30) days
reckoned from the expiry dateof the period
fixed in the demand within which to pay or
settle the account;
(x) to design and implement programs that will
promote and mobilize savings and provide
additional resources for social security
expansion and at the same time afford
individual members appropriate returns on
their savings/investments. The programs shall
be so designed as to spur socio-economic
take-off and maintain continued growth; and
(y) to exercise such powers and perform such
other acts as may be necessary, useful,
incidental or auxiliary to carry out the
provisions of this Act, or to attain the
purposesand objectives of this Act.
The PHILHEALTH Charter, Republic Act No. 7875
SEC. 16. Powers and Functions The Corporation
shall have the following powers and functions:
(a) to administer the National Health
Insurance Program;
CSC-CES Cases 42
Public Corporation
(b) to formulate and promulgate policies for
the sound administration of the Program;
(c) to set standards, rules, and regulations
necessary to ensure quality of care,
appropriate utilization of services, fund
viability, member satisfaction, and overall
accomplishment of Program objectives;
(d) to formulate and implement guidelines on
contributions and benefits; portability of
benefits, cost containment and quality
assurance; and health care provider
arrangements,payment, methods, and referral
systems;
(e) to establish branch offices as mandated in
Article V of this Act;
(f) to receive and manage grants, donations,
and other forms of assistance;
(g) to sue and be sued in court;
(h) to acquire property, real and personal,
which may be necessary or expedient for the
attainment of the purposes of this Act;
(i) to collect, deposit, invest, administer, and
disburse the National Health Insurance Fund
in accordance with the provisions of this Act;
(j) to negotiate and enter into contracts with
health care institutions, professionals, and
other persons, juridical or natural, regarding
the pricing, payment mechanisms, design and
implementation of administrative and
operating systems and procedures, financing,
and delivery of health services;
(k) to authorize Local Health Insurance Offices
to negotiate and enter into contracts in the
name and on behalf of the Corporation with
any accredited government or private sector
health provider organization, including but not
limited to health maintenance organizations,
cooperatives and medical foundations, for the
provision ofat least the minimum package of
personal health services prescribed by the
Corporation;
(l) to determine requirements and issue
guidelines for the accreditation of health care
providers for the Program in accordance with
this Act;
(m) to supervise the provision of health
benefits with the power to inspect medical and
financial records of health careproviders and
patients who are participants in or members of
the Program, and the power to enter and
inspect accredited health care institutions,
subject to the rules and regulations to be
promulgated by the Corporation;

(n) to organize its office, fix the compensation
of and appoint personnel as may be deemed
necessary and upon the recommendation of
the president of the Corporation;
(o) to submit to the President of the
Philippines and to both Houses of Congress
its Annual Report which shall contain the
status of the National Health Insurance Fund,
its total disbursements, reserves, average
costing to beneficiaries, any request for
additional appropriation, and other data
pertinent to the implementation of the
Program and publish a synopsis of such
report in two (2) newspapers of general
circulation;
(p) to keep records of the operations of the
Corporation and investments of the National
Health Insurance Fund; and
(q) to perform such other acts as it may deem
appropriate for the attainment of the
objectives of the Corporation and for the
proper enforcement of the provisions of this
Act
The HDMF Charter, Republic Act No. 9679
SEC. 13. Powers and Functions of the Fund. The
Fund shall have the powers and functions specified in
this Act and the usual corporate powers:
(a) To formulate, adopt, amend and/or rescind
such rules and regulations as may be
necessary to carry out the provisions and
purposes of this Act, as well as the effective
exercise of the powers and functions, and the
discharge of duties and responsibilities of the
Fund, its officers and employees;
(b) To adopt or approve the annual and
supplemental budget of receipts and
expenditures including salaries and
allowances of the Fund personnel, to
authorize such capital and operating
expenditures and disbursements of the Fund
as may be necessary and proper for the
effective management and operation of the
Fund;
(c) To submit annually to the President of the
Philippines not later than March 15, a report of
its activities and the state of the Fund during
the preceding year, including information and
recommendations for the development and
improvement thereof;
(d) To invest not less than seventy percent
(70%) of its investible funds to housing, in
accordance with this Act;
(e) To acquire, utilize, or dispose of, in any
manner recognized by law, real or personal
properties to carry out the purposes of this
Act;
CSC-CES Cases 43
Public Corporation
(f) To set up its own accounting and computer
systems; to conduct continuing actuarial and
statistical studies and valuations to determine
the financial viability of the Fund and its
project; to require reports, compilations and
analysis of statistical and economic data, as
well as make such other studies and surveys
asmay be needed for the proper
administration and development of the Fund;
(g) To have the power of succession; to sue
and be sued; to adopt and use a corporate
seal;
(h) To enter into and carry out contracts of
every kind and description with any person,
firm or association or corporation, domestic or
foreign;
(i) To borrow funds from any source, private or
government, foreign or domestic;
(j) To invest, own or otherwise participate in
equity in any establishment, or entity; to form,
organize, invest in or establish and maintain a
subsidiary or subsidiaries in relation to any of
its purposes;
(k) To approve appointments in the Fund
except appointments to positions which are
policy determining, primarily confidential or
highly technical in nature according to the civil
service rules and regulations: Provided, That
all positions in the Fund shall be governed by
a compensation and position classification
system and qualification standards approved
by the Fund's Board of Trustees based on a
comprehensive job analysis, wage
compensation study and audit of actual duties
and responsibilities: Provided, further, That
the compensation plan shall be comparable
with prevailing compensation plans in the
private sector and shall be subject to the
periodic review of the Board no more than
once everyfour (4) years without prejudice to
yearly merit reviews or increases based on
productivity and profitability. The Fund shall,
therefore, be exempt from any laws, rules and
regulations on salaries and compensations;
(l) To maintain a provident fund, which shall
consist of contributions made by both the
Fund and its officers and employees and their
earnings, for the payment ofbenefits to such
officials and employees or their heirs under
such terms and conditions as it may prescribe;
(m)To design and adopt an early retirement
incentive plan (ERIP) for its own personnel;
(n) To establish field offices and to conduct its
business and exercise its powers in these
places; (o) To approve restructuring
proposalfor the payment of due but unremitted
contributions and unpaid loan amortizations

under such terms and conditions as the Board
ofTrustees may prescribe;
(p) To determine, fix and impose interest and
penalties upon unpaid contributions due from
employers and employees;
(q) To ensure the collection and recovery of all
indebtedness, liabilities and/or
accountabilities, including unpaid contributions
in favor of the Fund arising from any cause or
source or whatsoever, due from all obligors,
whether public or private; to demand payment
of the obligations referred to herein, and in the
event of failure or refusal of the obligor or
debtor to comply with the demand, to initiate
or institute the necessary or proper actions or
suits, criminal, civil, administrative, or
otherwise, before the courts, tribunals,
commissions, boards or bodies of proper
jurisdiction: Provided, however, That the Fund
may compromise or release, in whole or in
part, any interest, penalty or civil liability to the
Fund in connection with the collection of
contributions and the lending operations of the
Fund, under such terms and conditions as
prescribed by the Board of Trustees:
Provided, further, That the Board may, upon
recommendation of the Chief Executive
Officer, deputize any member of the Fund's
legal staff to act as special sheriff in
foreclosure cases, in the sale or attachment of
the debtor's properties, and in the
enforcement ofcourt writs and processes in
cases involving the Fund. The special sheriff
of the Fund shall make a report to the proper
court after any action taken by him, which
shall treat such action as if it were an act of its
own sheriffs in all respects;
(r) To design and implement other programs
that will further promote and mobilize savings
and provide additional resources for the
mutual benefit of the members with
appropriate returns on the
savings/investments. The program shall be so
designed as to spur socioeconomic take-off
and maintain continued growth;
(s) To conduct continuing actuarialand
statistical studies and valuations to determine
the financial condition of the Fund and taking
into consideration such studies and valuations
and the limitations herein provided, readjust
the benefits, contributions, interest rates of the
allocation or reallocation of the funds to the
contingencies covered; and
(t) To exercise such powers and perform such
acts as may be necessary, useful, incidental
or auxiliary to carry out the provisions of this
Act.
The ECC Charter, Presidential Decree No. 626
ART. 177. Powers and duties. - The Commission
shall have the following powers and duties:
CSC-CES Cases 44
Public Corporation
(a) To assess and fix a rate of contribution
from all employers;
(b) To determine the rate of contribution
payable by an employer whose records show
a high frequency of work accidents or
occupational disease due to failure by the said
employer to observe adequate safety
measures;
(c) To approve rules and regulations
governing the processing of claims and the
settlement of disputes arising therefrom as
prescribed by the System;
(d) To initiate policies and programs toward
adequate occupational health and safety and
accident prevention in the working
environment, rehabilitation other than those
provided for under Art. 190 hereof, and other
related programs and activities, and to
appropriate funds therefor. (As amended by
Sec. 3, P.D. 1368).
(e) To make the necessary actuarial studies
and calculations concerning the grant of
constant help and income benefits for
permanent disability or death, and the
rationalization of the benefits for permanent
disability and death under the Title with
benefits payable by the System for similar
contingencies; Provided; That the
Commission may upgrade benefits and add
new ones subject toapproval of the President;
and Provided, Further, That the actuarial
stabilityof the State Insurance Fund shall be
guaranteed; Provided, Finally, that such
increases in benefits shall not require any
increases in contribution, except as provided
for in paragraph (b) hereof. (As amended by
Sec. 3, P.D. 1641).
(f) To appoint the personnel of its staff, subject
to civil service law and rules, but exempt from
WAPCO law and regulations;
(g) To adopt annually a budget of
expenditures of the Commission and its staff
chargeable against the State Insurance Fund:
Provided, that the SSS and GSIS shall
advance on a quarterly basis the remittances
of allotment of the loading fund for this
Commission's operational expenses based on
its annual budget as duly approved by the
Ministry of Budget and Management. (As
amended by Sec. 3, P.D. 1921).
(h) To have the power to administeroath and
affirmation, and to issue subpoena and
subpoena duces tecum in connection with any
question or issue arising from appealed cases
under this Title.
(i) To sue and be sued in court;

(j) To acquire property, real or personal, which
may be necessary or expedient for the
attainment of the purposes of this Title;
(k) To enter into agreements or contracts for
such services or aid as may be needed for the
proper, efficient and stable administration of
the program;
(l) To perform such other acts as it may deem
appropriate for the attainment of the purposes
of the Commission and proper enforcement of
the provisions of thisTitle. (As amended by
Sec. 18, P.D.850). (Emphasis supplied.)
The GSIS, PHILHEALTH, ECC and HDMF are vested
by their respective charters with various powers and
functions to carry out the purposes for which they
were created. While powers and functions associated
with appointments, compensation and benefits affect
the career development, employment status, rights,
privileges, and welfare of government officials and
employees, the GSIS, PHILHEALTH, ECC and HDMF
are also tasked to perform other corporate powers
and functions that are not personnel-related. All of
these powers and functions, whether personnel-
related or not, are carried out and exercised by the
respective Boards of the GSIS, PHILHEALTH, ECC
and HDMF. Hence, when the CSC Chairman sits as a
member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore
derived from his position as CSC Chairman, such as
imposing intereston unpaid or unremitted
contributions,38 issuing guidelines for the accreditation
of health care providers,39 or approving restructuring
proposals in the payment of unpaid loan
amortizations.40 The Court also notes that Duques
designation as member of the governing Boards of
the GSIS, PHILHEALTH, ECC and HDMF entitles him
to receive per diem,41 a form of additional
compensation that is disallowed by the concept of an
ex officioposition by virtue of its clear contravention of
the proscription set by Section 2, Article IX-A of the
1987 Constitution. This situation goes against the
principle behind an ex officio position, and must,
therefore, be held unconstitutional.
Apart from violating the prohibition against holding
multiple offices, Duques designation as member of
the governing Boards of the GSIS, PHILHEALTH,
ECC and HDMF impairs the independence of the
CSC. Under Section 17,42Article VII of the
Constitution, the President exercises control over all
government offices in the Executive Branch. An office
that is legally not under the control of the President is
not part of the Executive Branch.43 The Court has aptly
explained in Rufino v. Endriga:44
Every government office, entity, or agency must fall
under the Executive, Legislative, or Judicial branches,
or must belong to one of the independent
constitutional bodies, ormust be a quasi-judicial body
or local government unit. Otherwise, such government
office, entity, or agency has no legal and
constitutional basis for its existence.
CSC-CES Cases 45
Public Corporation
The CCP does not fall under the Legislative or
Judicial branches of government. The CCP is also
1wphi 1
not one of the independent constitutional bodies.
Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall underthe
Executive branch. Under the Revised Administrative
Code of 1987, any agency "not placed by law or order
creating them under any specific department" falls
"under the Office of the President."
Since the President exercises control over "all the
executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP
which is an office in the Executive branch. In
mandating that the President "shall have control of all
executive . . . offices," x x x Section 17, Article VII of
the 1987 Constitution does not exempt any executive
office oneperforming executive functions outside of
the independent constitutional bodies from the
Presidents power of control. There is no dispute that
the CCP performs executive, and not legislative,
judicial, or quasi-judicial functions.
The Presidents power of control applies to the acts or
decisions of all officers in the Executive branch. This
is true whether such officers are appointed by the
President or by heads of departments, agencies,
commissions, or boards. The power of control means
the power to revise or reverse the acts or decisions of
a subordinate officer involving the exercise of
discretion.
In short, the President sits at the apex of the
Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There
can be no instance under the Constitution where an
officer of the Executive branch is outside the control
of the President. The Executive branch is unitary
since there is only one President vested with
executive power exercising control over the entire
Executive branch. Any office in the Executive branch
that is not under the control of the President is a lost
command whose existence is withoutany legal or
constitutional basis. (Emphasis supplied)
As provided in their respective charters,
PHILHEALTH and ECC have the status of a
government corporation and are deemed attached to
the Department of Health45 and the Department of
Labor,46 respectively. On the other hand, the GSIS
and HDMF fall under the Office of the President.47 The
corporate powers of the GSIS, PHILHEALTH, ECC
and HDMF are exercised through their governing
Boards, members of which are all appointed by the
President of the Philippines. Undoubtedly, the GSIS,
PHILHEALTH, ECC and HDMF and the members of
their respective governing Boards are under the
control of the President. As such, the CSC Chairman
cannot be a member of a government entity that is
under the control of the President without impairing
the independence vested in the CSC by the 1987
Constitution.
3.
Effect of declaration of unconstitutionality
of Duques designation as member of the

governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine
In view of the application of the prohibition under
Section 2, Article IX-A of the 1987 Constitution,
Duque did not validly hold office as Director or
Trustee of the GSIS, PHILHEALTH, ECC and HDMF
concurrently with his position of CSC Chairman.
Accordingly, he was not to be considered as a de jure
officer while he served his term as Director or Trustee
of these GOCCs. A de jure officer is one who is
deemed, in all respects, legally appointed and
qualified and whose term of office has not expired.48
That notwithstanding, Duque was a de facto officer
during his tenure as a Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF. In Civil Liberties
Union v. Executive Secretary,49 the Court has said:
During their tenure in the questioned positions,
respondents may be considered de facto officers and
as such entitled to emoluments for actual services
rendered. Ithas been held that "in cases where there
is no de jure, officer, a de facto officer, who, in good
faith has had possession of the office and has
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in
an appropriate action recover the salary, fees and
other compensations attached to the office. This
doctrine is, undoubtedly, supported on equitable
grounds since it seems unjust that the public should
benefit by the services of an officer de facto and then
be freed from all liability to pay any one for such
services. Any per diem, allowances or other
emoluments received by the respondents by virtue of
actual services rendered in the questioned positions
may therefore be retained by them.
A de facto officer is one who derives his appointment
from one having colorable authority to appoint, ifthe
office is an appointive office, and whose appointment
is valid on its face.50 He may also be one who is in
possession of an office, and is discharging its duties
under color of authority, by which is meant authority
derived from an appointment, however irregular or
informal, so that the incumbent is not a mere
volunteer.51 Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a
de jure officer, in so far as the public or third persons
who are interested therein are concerned.52
In order to be clear, therefore, the Court holds that all
official actions of Duque as a Director or Trustee of
the GSIS, PHILHEAL TH, ECC and HDMF, were
presumed valid, binding and effective as if he was the
officer legally appointed and qualified for the
office.53 This clarification is necessary in order to
protect the sanctity and integrity of the dealings by the
public with persons whose ostensible authority
emanates from the State. Duque's official actions
covered by this clarification extend but are not limited
to the issuance of Board resolutions and memoranda
approving appointments to positions in the concerned
GOCCs, promulgation of policies and guidelines on
compensation and employee benefits, and adoption
of programs to carry out the corporate powers of the
GSIS, PHILHEAL TH, ECC and HDMF.
CSC-CES Cases 46
Public Corporation
WHEREFORE, the petition is PARTIALLY
GRANTED. The Court UPHOLDS THE
CONSTITUTIONALITY of Section 14, Chapter 3, Title
I-A, Book V of Executive Order No. 292; ANNULS
AND VOIDS Executive Order No. 864 dated February
22, 2010 and the designation of Hon. Francisco T.
Duque III as a Member of the Board of
Directors/Trustees of the Government Service
Insurance System; Philippine Health Insurance
Corporation; Employees Compensation Commission;
and Home Development Mutual Fund in an ex officio
capacity in relation to his appointment as Chairman of
the Civil Service Commission for being
UNCONSTITUTIONAL AND VIOLATIVE of Sections
1 and 2, Article IX-A of the 1987 Constitution; and
DECLARES that Hon. Francisco T. Duque III was a
de facto officer during his tenure as Director/Trustee
of the Government Service Insurance System;
Philippine Health Insurance Corporation; Employees
Compensation Commission; and Home Development
Mutual Fund.
No pronouncement on costs of suit.
SO ORDERED.
G.R. No. 168766 May 22, 2008
THE CIVIL SERVICE
COMMISSION, petitioner,
vs.
HENRY A. SOJOR, respondent.
DECISION
REYES, R.T., J.:
IS the president of a state university outside the
reach of the disciplinary jurisdiction constitutionally
granted to the Civil Service Commission (CSC)
over all civil servants and officials?
Does the assumption by the CSC of jurisdiction
over a president of a state university violate
academic freedom?
The twin questions, among others, are posed in this
petition for review on certiorari of the Decision1 of
the Court of Appeals (CA) which annulled two (2)
CSC Resolutions2 against respondent Henry A.
Sojor.
The Facts
The uncontroverted facts that led to the controversy,
as found by the CSC and the CA, are as follows:
On August 1, 1991, respondent Sojor was appointed
by then President Corazon Aquino as president of
the Central Visayas Polytechnic College (CVPC) in
Dumaguete City. In June 1997, Republic Act (R.A.)
No. 8292, or the "Higher Education Modernization

Act of 1997," was enacted. This law mandated that
a Board of Trustees (BOT) be formed to act as the
governing body in state colleges. The BOT of
CVPC appointed respondent as president, with a
four-year term beginning September 1998 up to
September 2002.3 Upon the expiration of his first
term of office in 2002, he was appointed president
of the institution for a second four-year term,
expiring on September 24, 2006.4
On June 25, 2004, CVPC was converted into the
Negros Oriental State University (NORSU).5 A
Board of Regents (BOR) succeeded the BOT as its
governing body.
Meanwhile, three (3) separate administrative cases
against respondent were filed by CVPC faculty
members before the CSC Regional Office (CSC-
RO) No. VII in Cebu City, to wit:
1. ADMC DC No. 02-20(A) Complaint for
dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service
filed on June 26, 2002 by Jose Rene A. Cepe
and Narciso P. Ragay. It was alleged that
respondent approved the release of salary
differentials despite the absence of the
required Plantilla and Salary Adjustment
Form and valid appointments.6
2. ADM DC No. 02-20 Complaint for
dishonesty, misconduct and falsification of
official documents filed on July 10, 2002 by
Jocelyn Juanon and Carolina Fe Santos. The
complaint averred that respondent
maliciously allowed the antedating and
falsification of the reclassification
differential payroll, to the prejudice of
instructors and professors who have pending
request for adjustment of their academic
ranks.7
3. ADM DC No. 02-21 Complaint for
nepotism filed on August 15, 2002 by Rose
Marie Palomar, a former part-time instructor
of CVPC. It was alleged that respondent
appointed his half-sister, Estrellas Sojor-
Managuilas, as casual clerk, in violation of
the provisions against nepotism under the
Administrative Code.8
Before filing his counter-affidavits, respondent
moved to dismiss the first two complaints on
grounds of lack of jurisdiction, bar by prior
judgment and forum shopping.
He claimed that the CSC had no jurisdiction over
him as a presidential appointee. Being part of the
non-competitive or unclassified service of the
CSC-CES Cases 47
Public Corporation
government, he was exclusively under the
disciplinary jurisdiction of the Office of the
President (OP). He argued that CSC had no
authority to entertain, investigate and resolve
charges against him; that the Civil Service Law
contained no provisions on the investigation,
discipline, and removal of presidential appointees.
He also pointed out that the subject matter of the
complaints had already been resolved by the Office
of the Ombudsman.9
Finding no sufficient basis to sustain respondents
arguments, the CSC-RO denied his motion to
dismiss in its Resolution dated September 4,
2002.10 His motion for reconsideration11 was
likewise denied. Thus, respondent was formally
charged with three administrative cases, namely: (1)
Dishonesty, Misconduct, and Falsification of
Official Document; (2) Dishonesty, Grave
Misconduct, and Conduct Prejudicial to the Best
Interest of the Service; and (3) Nepotism.12
Respondent appealed the actions of the regional
office to the Commission proper (CSC), raising the
same arguments in his motion to dismiss.13 He
argued that since the BOT is headed by the
Committee on Higher Education Chairperson who
was under the OP, the BOT was also under the OP.
Since the president of CVPC was appointed by the
BOT, then he was a presidential appointee. On the
matter of the jurisdiction granted to
CSC by virtue of Presidential Decree (P.D.) No.
80714 enacted in October 1975, respondent
contended that this was superseded by the
provisions of R.A. No. 8292,15 a later law which
granted to the BOT the power to remove university
officials.
CSC Disposition
In a Resolution dated March 30, 2004,16 the CSC
dismissed respondents appeal and authorized its
regional office to proceed with the investigation. He
was also preventively suspended for 90 days.
The fallo of the said resolution states:
WHEREFORE, the appeal of Henry A.
Sojor, President of Central Visayas
Polytechnic College, is hereby DISMISSED.
The Civil Service Commission Regional
Office No. VII, Cebu City, is authorized to
proceed with the formal investigation of the
cases against Sojor and submit the
investigation reports to the Commission
within one hundred five (105) days from
receipt hereof. Finally, Sojor is preventively
suspended for ninety (90) days.17

In decreeing that it had jurisdiction over the
disciplinary case against respondent, the CSC
opined that his claim that he was a presidential
appointee had no basis in fact or in law. CSC
maintained that it had concurrent jurisdiction with
the BOT of the CVPC. We quote:
His appointment dated September 23, 2002
was signed by then Commission on Higher
Education (CHED) Chairman Ester A.
Garcia. Moreover, the said appointment
expressly stated that it was approved and
adopted by the Central Visayas Polytechnic
College Board of Trustees on August 13,
2002 in accordance with Section 6 of
Republic Act No. 8292 (Higher education
Modernization Act of 1997), which
explicitly provides that, "He (the president
of a state college) shall be appointed by the
Board of Regents/Trustees, upon
recommendation of a duly constituted
search committee." Since the President of a
state college is appointed by the Board of
Regents/Trustees of the college
concerned, it is crystal clear that he is not
a presidential appointee. Therefore, it is
without doubt that Sojor, being the
President of a state college (Central
Visayas Polytechnic College), is within the
disciplinary jurisdiction of the
Commission.
The allegation of appellant Sojor that the
Commission is bereft of disciplinary
jurisdiction over him since the same is
exclusively lodged in the CVPC Board of
Trustees, being the appointing authority,
cannot be considered. The Commission and
the CVPC Board of Trustees have
concurrent jurisdiction over cases against
officials and employees of the said agency.
Since the three (3) complaints against Sojor
were filed with the Commission and not
with the CVPC, then the former already
acquired disciplinary jurisdiction over the
appellant to the exclusion of the latter
agency.18 (Emphasis supplied)
The CSC categorized respondent as a third level
official, as defined under its rules, who are under
the jurisdiction of the Commission proper.
Nevertheless, it adopted the formal charges issued
by its regional office and ordered it to proceed with
the investigation:
Pursuant to the Uniform Rules on
Administrative Cases in the Civil Service,
Sojor, being a third level official, is within
the disciplinary jurisdiction of the
CSC-CES Cases 48
Public Corporation
Commission Proper. Thus, strictly speaking,
the Commission has the sole jurisdiction to
issue the formal charge against Sojor. x x x
However, since the CSC RO No. VII
already issued the formal charges against
him and found merit in the said formal
charges, the same is adopted. The CSC RO
No. VII is authorized to proceed with the
formal investigation of the case against
Sojor in accordance with the procedure
outlined in the aforestated Uniform
Rules.19 (Emphasis supplied)
No merit was found by the CSC in respondents
motion for reconsideration and, accordingly, denied
it with finality on July 6, 2004.20
Respondent appealed the CSC resolutions to the
CA via a petition for certiorari and prohibition. He
alleged that the CSC acted without or in excess of
its jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction when it
issued the assailed resolutions; that CSC encroached
upon the academic freedom of CVPC; and that the
power to remove, suspend, and discipline the
president of CVPC was exclusively lodged in the
BOT of CVPC.
CA Disposition
On September 29, 2004, the CA issued a writ of
preliminary injunction directing the CSC to cease
and desist from enforcing its Resolution dated
March 30, 2004 and Resolution dated July 6,
2004.21 Thus, the formal investigation of the
administrative charges against Sojor before the
CSC-RO was suspended.
On June 27, 2005, after giving both parties an
opportunity to air their sides, the CA resolved in
favor of respondent. It annulled the questioned CSC
resolutions and permanently enjoined the CSC from
proceeding with the administrative investigation.
The dispositive part of the CA decision reads:
WHEREFORE, in view of all the foregoing,
and finding that the respondent Civil Service
Commission acted without jurisdiction in
issuing the assailed Resolution Nos. 040321
and 040766 dated March 20, 2004 and July
6, 2004, respectively, the same are hereby
ANNULLED and SET ASIDE. The
preliminary injunction issued by this Court
on September 29, 2004 is hereby made
permanent.
SO ORDERED.22

The CA ruled that the power to appoint carries with
it the power to remove or to discipline. It declared
that the enactment of R.A. No. 929923 in 2004,
which converted CVPC into NORSU, did not divest
the BOT of the power to discipline and remove its
faculty members, administrative officials, and
employees. Respondent was appointed as president
of CVPC by the BOT by virtue of the authority
granted to it under Section 6 of R.A. No.
8292.24 The power of the BOT to remove and
discipline erring employees, faculty members, and
administrative officials as expressly provided for
under Section 4 of R.A. No. 8292 is also granted to
the BOR of NORSU under Section 7 of R.A. No.
9299. The said provision reads:
Power and Duties of Governing Boards.
The governing board shall have the
following specific powers and duties in
addition to its general powers of
administration and exercise of all the powers
granted to the board of directors of a
corporation under Section 36 of Batas
Pambansa Blg. 68, otherwise known as the
Corporation Code of the Philippines:
xxxx
to fix and adjust salaries of faculty members
and administrative officials and employees x
x x; and to remove them for cause in
accordance with the requirements of due
process of law. (Emphasis added)
The CA added that Executive Order (E.O.) No.
292,25 which grants disciplinary jurisdiction to the
CSC over all branches, subdivisions,
instrumentalities, and agencies of the government,
including government-owned or controlled
corporations with original charters, is a general law.
According to the appellate court, E.O. No. 292 does
not prevail over R.A. No. 9299,26 a special law.
Issues
Petitioner CSC comes to Us, seeking to
reverse the decision of the CA on the ground
that THE COURT OF APPEALS
GRAVELY ERRED IN HOLDING THAT
PETITIONER ACTED WITHOUT
JURISDICTION IN ISSUING
RESOLUTION NO. 040321 DATED
MARCH 30, 2004 AND RESOLUTION
NO. 04766 DATED JULY 6, 2004.27
Our Ruling
The petition is meritorious.
CSC-CES Cases 49
Public Corporation
I. Jurisdiction of the CSC
The Constitution grants to the CSC administration
over the entire civil service.28 As defined, the civil
service embraces every branch, agency, subdivision,
and instrumentality of the government, including
every government-owned or controlled
corporation.29 It is further classified into career and
non-career service positions. Career service
positions are those where: (1) entrance is based on
merit and fitness or highly technical qualifications;
(2) there is opportunity for advancement to higher
career positions; and (3) there is security of tenure.
These 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
equivalent 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.30
Career positions are further grouped into three
levels. Entrance to the first two levels is determined
through competitive examinations, while entrance

to the third level is prescribed by the Career
Executive Service Board.31 The positions covered
by each level are:
(a) The first level shall include clerical,
trades, crafts, and custodial service positions
which involve non-professional or
subprofessional 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.32
On the other hand, non-career service positions are
characterized by: (1) entrance not by the usual tests
of merit and fitness; and (2) tenure which is limited
to a period specified by law, coterminous with the
appointing authority or subject to his pleasure, or
limited to the duration of a particular project for
which purpose employment was made.33 The law
states:
The Non-Career Service shall include:
(1) Elective officials and their personal or
confidential staff;
(2) Secretaries and other officials of Cabinet
rank who hold their positions at the pleasure
of the President and their personal or
confidential staff(s);
(3) Chairman and members of commissions
and boards with fixed terms of office and
their personal or confidential staff;
(4) Contractual personnel or those whose
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; and
(5) Emergency and seasonal personnel.34
CSC-CES Cases 50
Public Corporation
It is evident that CSC has been granted by the
Constitution and the Administrative Code
jurisdiction over all civil service positions in the
government service, whether career or non-career.
From this grant of general jurisdiction, the CSC
promulgated the Revised Uniform Rules on
Administrative Cases in the Civil Service.35 We find
that the specific jurisdiction, as spelled out in the
CSC rules, did not depart from the general
jurisdiction granted to it by law. The jurisdiction of
the Regional Office of the CSC and the
Commission central office (Commission Proper) is
specified in the CSC rules as:
Section 4. Jurisdiction of the Civil Service
Commission. The Civil Service
Commission shall hear and decide
administrative cases instituted by, or brought
before it, directly or on appeal, including
contested appointments, and shall review
decisions and actions of its offices and of the
agencies attached to it.
Except as otherwise provided by the
Constitution or by law, the Civil Service
Commission shall have the final authority
to pass upon the removal, separation and
suspension of all officers and employees
in the civil service and upon all matters
relating to the conduct, discipline and
efficiency of such officers and employees.
Section 5. Jurisdiction of the Civil Service
Commission Proper. The Civil Service
Commission Proper shall have jurisdiction
over the following cases:
A. Disciplinary
1. Decisions of Civil Service
Regional Offices brought
before it on petition for
review;
2. Decisions of heads of
departments, agencies,
provinces, cities,
municipalities and other
instrumentalities, imposing
penalties exceeding thirty
days suspension or fine in an
amount exceeding thirty days
salary brought before it on
appeal;
3. Complaints brought
against Civil Service
Commission Proper
personnel;

4. Complaints against third
level officials who are not
presidential appointees;
5. Complaints against Civil
Service officials and
employees which are not
acted upon by the agencies
and such other complaints
requiring direct or
immediate action, in the
interest of justice;
6. Requests for transfer of
venue of hearing on cases
being heard by Civil Service
Regional Offices;
7. Appeals from the Order of
Preventive Suspension; and
8. Such other actions or
requests involving issues
arising out of or in
connection with the
foregoing enumerations.
B. Non-Disciplinary
1. Decisions of Civil Service
Commission Regional
Offices brought before it;
2. Requests for favorable
recommendation on petition
for executive clemency;
3. Protests against the
appointment, or other
personnel actions, involving
third level officials; and
4. Such other analogous
actions or petitions arising
out of or in relation with the
foregoing enumerations.
Section 6. Jurisdiction of Civil Service
Regional Offices. The Civil Service
Commission Regional Offices shall have
jurisdiction over the following cases:
A. Disciplinary
1. Complaints initiated by,
or brought before, the Civil
Service Commission
Regional Offices provided
that the alleged acts or
CSC-CES Cases 51
Public Corporation
omissions were committed
within the jurisdiction of
the Regional Office,
including Civil Service
examination anomalies or
irregularities and the
persons complained of are
employees of agencies, local
or national, within said
geographical areas;
2. Complaints involving Civil
Service Commission
Regional Office personnel
who are appointees of said
office; and
3. Petitions to place
respondent under Preventive
Suspension.
B. Non-Disciplinary
1. Disapproval of
appointments brought before
it on appeal;
2. Protests against the
appointments of first and
second level employees
brought before it directly or
on appeal. (Emphasis
supplied)
Respondent, a state university president with a fixed
term of office appointed by the governing board of
trustees of the university, is a non-career civil
service officer. He was appointed by the chairman
and members of the governing board of CVPC. By
clear provision of law, respondent is a non-career
civil servant who is under the jurisdiction of the
CSC.
II. The power of the BOR to discipline officials
and employees is not exclusive. CSC has
concurrent jurisdiction over a president of a state
university.
Section 4 of R.A. No. 8292, or the Higher
Education Modernization Act of 1997, under which
law respondent was appointed during the time
material to the present case, provides that the
schools governing board shall have the general
powers of administration granted to a corporation.
In addition, Section 4 of the law grants to the board
the power to remove school faculty members,
administrative officials, and employees for cause:

Section 4. Powers and Duties of Governing
Boards. The governing board shall have
the following specific powers and duties
in addition to its general powers of
administration and the exercise of all the
powers granted to the board of directors
of a corporation under Section 36 of Batas
Pambansa Blg. 68, otherwise known as the
Corporation Code of the Philippines:
xxxx
h) to fix and adjust salaries of faculty
members and administrative officials
and employees subject to the
provisions of the revised
compensation and classification
system and other pertinent budget
and compensation laws governing
hours of service, and such other
duties and conditions as it may deem
proper; to grant them, at its
discretion, leaves of absence under
such regulations as it may
promulgate, any provisions of
existing law to the contrary not
withstanding; and to remove them
for cause in accordance with the
requirements of due process of law.
(Emphasis supplied)
The above section was subsequently reproduced as
Section 7(i) of the succeeding law that converted
CVPC into NORSU, R.A. No. 9299. Notably, and
in contrast with the earlier law, R.A. No. 9299 now
provides that the administration of the university
and exercise of corporate powers of the board of the
school shall be exclusive:
Sec. 4. Administration. The University
shall have the general powers of a
corporation set forth in Batas Pambansa Blg.
68, as amended, otherwise known as "The
Corporation Code of the Philippines." The
administration of the University and the
exercise of its corporate powers shall be
vested exclusively in the Board of Regents
and the president of the University
insofar as authorized by the Board.
Measured by the foregoing yardstick, there is no
question that administrative power over the school
exclusively belongs to its BOR. But does this
exclusive administrative power extend to the power
to remove its erring employees and officials?
In light of the other provisions of R.A. No. 9299,
respondents argument that the BOR has exclusive
power to remove its university officials must fail.
CSC-CES Cases 52
Public Corporation
Section 7 of R.A. No. 9299 states that the power to
remove faculty members, employees, and officials
of the university is granted to the BOR "in addition
to its general powers of administration." This
provision is essentially a reproduction of Section 4
of its predecessor, R.A. No. 8292, demonstrating
that the intent of the lawmakers did not change even
with the enactment of the new law. For clarity, the
text of the said section is reproduced below:
Sec. 7. Powers and Duties of the Board of
Regents. The Board shall have the
following specific powers and duties in
addition to its general powers of
administration and the exercise of all the
powers granted to the Board of Directors of
a corporation under existing laws:
xxxx
i. To fix and adjust salaries of faculty
members and administrative officials
and employees, subject to the
provisions of the Revised
Compensation and Position
Classification System and other
pertinent budget and compensation
laws governing hours of service and
such other duties and conditions as it
may deem proper; to grant them, at
its discretion, leaves of absence
under such regulations as it may
promulgate, any provision of
existing law to the contrary
notwithstanding; and to remove
them for cause in accordance with
the requirements of due process of
law.36 (Emphasis supplied)
Verily, the BOR of NORSU has the sole power of
administration over the university. But this power is
not exclusive in the matter of disciplining and
removing its employees and officials.
Although the BOR of NORSU is given the specific
power under R.A. No. 9299 to discipline its
employees and officials, there is no showing that
such power is exclusive. When the law bestows
upon a government body the jurisdiction to hear and
decide cases involving specific matters, it is to be
presumed that such jurisdiction is exclusive unless
it be proved that another body is likewise vested
with the same jurisdiction, in which case, both
bodies have concurrent jurisdiction over the
matter.37
All members of the civil service are under the
jurisdiction of the CSC, unless otherwise provided
by law. Being a non-career civil servant does not

remove respondent from the ambit of the CSC.
Career or non-career, a civil service official or
employee is within the jurisdiction of the CSC.
This is not a case of first impression.
In University of the Philippines v. Regino,38 this
Court struck down the claim of exclusive
jurisdiction of the UP BOR to discipline its
employees. The Court held then:
The Civil Service Law (PD 807) expressly
vests in the Commission appellate
jurisdiction in administrative disciplinary
cases involving members of the Civil
Service. Section 9(j) mandates that the
Commission shall have the power to "hear
and decide administrative disciplinary cases
instituted directly with it in accordance with
Section 37 or brought to it on appeal." And
Section 37(a) provides that, "The
Commission shall decide upon appeal all
administrative disciplinary cases involving
the imposition of a penalty of suspension for
more than thirty (30) days, or fine in an
amount exceeding thirty days salary,
demotion in rank or salary or transfer,
removal or dismissal from office."
(Emphasis supplied)
Under the 1972 Constitution, all
government-owned or controlled
corporations, regardless of the manner of
their creation, were considered part of the
Civil Service. Under the 1987 Constitution,
only government-owned or controlled
corporations with original charters fall
within the scope of the Civil Service
pursuant to Article IX-B, Section 2(1),
which states:
"The Civil Service embraces all
branches, subdivisions,
instrumentalities, and agencies of the
government, including government-
owned or controlled corporations
with original charters."
As a mere government-owned or controlled
corporation, UP was clearly a part of the
Civil Service under the 1973 Constitution
and now continues to be so because it was
created by a special law and has an original
charter. As a component of the Civil
Service, UP is therefore governed by PD
807 and administrative cases involving
the discipline of its employees come under
the appellate jurisdiction of the Civil
Service Commission.39 (Emphasis supplied)
CSC-CES Cases 53
Public Corporation
In the more recent case of Camacho v. Gloria,40 this
Court lent credence to the concurrent jurisdiction of
the CSC when it affirmed that a case against a
university official may be filed either with the
universitys BOR or directly with the CSC. We
quote:
Further, petitioner contends that the creation
of the committee by the respondent
Secretary, as Chairman of the USP Board of
Regents, was contrary to the Civil Service
Rules. However, he cites no specific
provision of the Civil Service Law which
was violated by the respondents in forming
the investigating committee. The Civil
Service Rules embodied in Executive Order
292 recognize the power of the Secretary
and the university, through its governing
board, to investigate and decide matters
involving disciplinary action against officers
and employees under their jurisdiction. Of
course under EO 292, a complaint against
a state university official may be filed
either with the universitys Board of
Regents or directly with the Civil Service
Commission, although the CSC may
delegate the investigation of a complaint
and for that purpose, may deputize any
department, agency, official or group of
officials to conduct such
41
investigation. (Emphasis supplied)
Thus, CSC validly took cognizance of the
administrative complaints directly filed before the
regional office, concerning violations of civil
service rules against respondent.
III. Academic freedom may not be invoked when
there are alleged violations of civil service laws
and rules.
Certainly, academic institutions and personnel are
granted wide latitude of action under the principle
of academic freedom. Academic freedom
encompasses the freedom to determine who may
teach, who may be taught, how it shall be taught,
and who may be admitted to study.42 Following that
doctrine, this Court has recognized that institutions
of higher learning has the freedom to decide for
itself the best methods to achieve their aims and
objectives, free from outside coercion, except when
the welfare of the general public so requires.43 They
have the independence to determine who to accept
to study in their school and they cannot be
compelled by mandamus to enroll a student.44
That principle, however, finds no application to the
facts of the present case. Contrary to the matters
traditionally held to be justified to be within the

bounds of academic freedom, the administrative
complaints filed against Sojor involve violations of
civil service rules. He is facing charges of nepotism,
dishonesty, falsification of official documents,
grave misconduct, and conduct prejudicial to the
best interest of the service. These are classified as
grave offenses under civil service rules, punishable
with suspension or even dismissal.45
This Court has held that the guaranteed academic
freedom does not give an institution the unbridled
authority to perform acts without any statutory
basis.46 For that reason, a school official, who is a
member of the civil service, may not be permitted to
commit violations of civil service rules under the
justification that he was free to do so under the
principle of academic freedom.
Lastly, We do not agree with respondents
contention that his appointment to the position of
president of NORSU, despite the pending
administrative cases against him, served as a
condonation by the BOR of the alleged acts imputed
to him. The doctrine this Court laid down
in Salalima v. Guingona, Jr.47 and Aguinaldo v.
Santos48 are inapplicable to the present
circumstances. Respondents in the mentioned cases
are elective officials, unlike respondent here who is
an appointed official. Indeed, election expresses the
sovereign will of the people.49 Under the principle
of vox populi est suprema lex, the re-election of a
public official may, indeed, supersede a pending
administrative case. The same cannot be said of a
re-appointment to a non-career position. There is no
sovereign will of the people to speak of when the
BOR re-appointed respondent Sojor to the post of
university president.
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals is REVERSED
and SET ASIDE. The assailed Resolutions of the
Civil Service Commission are REINSTATED.
SO ORDERED.
[A.M. NO. 2008-13-SC :
November 19, 2008]
RE: VEHICULAR ACCIDENT
INVOLVING SC SHUTTLE BUS
NO. 3 WITH PLATE NO. SEG-357
DRIVEN BY GERRY B. MORAL,
DRIVER II-CASUAL.
RESOLUTION
AZCUNA, J.:
CSC-CES Cases 54
Public Corporation
This administrative matter arose
from the vehicular accident which
occurred on July 7, 2008 involving
the Court's Shuttle Bus No. 3 driven
by Gerry B. Moral, Driver II-Casual.
Ma. Theresa B. Andal, Legal
Researcher III of the Judicial
Supervision and Monitoring Division,
Office of the Court Administrator and
Shuttle Bus No. 3 designated-
coordinator, alleged in a sworn
statement that at around 5:40 p.m.
of July 7, 2008, she and other
Supreme Court employees were on
board Shuttle Bus No. 3 bound for
Antipolo, Rizal. The bus was then
traveling on the long stretch of the
flyover of Crossing, Shaw Boulevard,
Mandaluyong City. Descending from
the flyover, the bus accidentally
bumped the rear portion of a public
utility jeepney with Plate No. DWA-
853 on a stop on the same lane and
direction. Due to the strong impact,
four passengers riding the jeepney
were thrown out and injured. Three
of those passengers were just
clinging to the sides of the jeepney
because all seats were taken. The
bus' windshield was totally wrecked
and its front portion was severely
damaged.
Traffic Accident Report No. 07-1759
dated July 7, 2008 stated:
Investigation conducted and as
alleged by V1 driver of PUJ Jitney
that he was on stop along Shaw blvd
and facing east direction because of
moderate traffic thereat. At that
instance, a Supreme Court shuttle
bus driven by Gerry Moral (V2)
coming from behind dragged
forward with unknown speed and
narrated that his driven vehicle
brakes malfunction[ed] causing him
V2 to accidentally hit/bump the rear
end portion of V1 by the front end

portion of V2. And due to force of
impact V1 surge forward same
accident tally hit/bumped the rear
end portion of V3 by the front end
portion of V1. And again for the
third time unaware of the incident
the rear end portion of V4 Toyota
Corolla driven by female driver also
hit/bumped by the front end portion
of V3 Toyota Camry, which resulted
damage to all four (4) vehicle. Right
after the said incident three (3)
hitching passengers (male) and one
female passenger inside PUJ Jitney
sustained injuries and [were] rushed
to Polymedic hospital for treatment
by immediate arrival of Rescue
Ambulance.
The Office of Administrative Services
(OAS) stated in its Memorandum
dated September 8, 2008 that one
person died due to the accident.
The matter was referred to the
Shuttle Bus Committee for
documentation purposes of
insurance coverage. Thereafter, Mr.
Moral was directed to make his own
narration of the incident.
In compliance, Mr. Moral submitted
his sworn statement dated July 9,
2008 which reads:
Ako po si Gerry B. Moral, SC Shuttle
Bus Driver II. Pababa po ako ng
Crossing Flyover, Shaw Boulevard,
papuntang Antipolo City nang di ko
inaasahan na biglang nagkaroon ng
problema ang preno ng bus. Pag
apak ko ng preno, ayaw kumapit.
Pag apak ko uli, wala na. . .ayaw na
huminto. Ginawa ko ang lahat para
mapahinto ang bus. Naghandbrake
na ako. Ang pangyayari ay
tumatakbo ako ng humigit kumulang
twenty (20) to twenty-five (25)
k.p.h. Gumapang po ang bus
pababa ng flyover nang
CSC-CES Cases 55
Public Corporation
maghandbrake ako. Sa kasamaang
palad, inabot pa rin ang nakahinto
na jeep na may nakasabit sa kanang
bahagi na tatlong pasahero. Nasira
po ang bumper at salamin sa
harapan ng bus. Hindi ko po
kagustuhan ang aksidente. Kung
hindi lang lumusot ang preno ng
bus, wala sanang namatay at
nasaktan.
The OAS, as the initiatory authority
to discipline shuttle bus drivers,
issued a memorandum directing
some employees who were on board
the bus to submit their respective
statements regarding the incident to
determine the possibility of
recklessness on the part of Mr.
Moral as a ground for disciplinary
action against him.
The OAS summarized their
statements as follows:
Mr. Rolando U. Del Rosario,
Typesetter II of the Printing
Services, simply concurred with the
driver's statements; Mr. Ricardo N.
Lai, Jr., SC Supervising Judicial Staff
Officer of the MISO stated that he
was seated at the second row of the
bus. That he saw Mr. Moral flash the
bus headlights as a warning while
his right foot was stepping heavily
on the break pedal. He stated that
the bus was running at a speed of
approximately 20 kph; Mr. Vicente
L. Macafe, Jr., Chauffeur I of the
Program Management Office, on the
other hand, stated that he was
seated at the back of the bus driver.
That while the bus was on its way
down from the flyover, he noticed
that it had an accelerated speed
when it hit the passenger jeepney.
Some hitching and seated
passengers were injured; Mr.
Joderick R. Gonzalez, Data Entry
Machine Operator, Office of ACA

Villaror, submitted his statement
and alleged that the bus was not in
its normal rate of speed. This was
corroborated by Ms. Estrellita R.
Gonzales, Court Stenographer III,
Office of the Court Administrator,
who recalled that before the
accident happened the bus was
purportedly traversing the flyover at
high speed.
After a thorough evaluation of the
statements submitted and
documents gathered in relation to
the vehicular accident, the OAS, in a
Memorandum dated September 8,
2008, declared that it was convinced
that the accident happened with no
fault or negligence on the part of Mr.
Moral. It attributed the accident to
the malfunctioning of the brake of
the bus which was beyond the
driver's control. It stated:
After a thorough evaluation of the
respective claims, this Office is
convinced that the incident was
purely accidental with no fault or
negligence on our driver so far.
As indicated in the Traffic Accident
Report, the bus with unknown speed
suddenly lost its brakes which
resulted to both damage to
properties and injuries to victims.
This Office would like to emphasize
the roadworthiness of our shuttle
buses, i.e. the said bus from the
time it left the parking area in the
afternoon to pick up its regular
employee-passengers had perfect
functioning brakes and in good
running condition until the accident.
It can assure that a driver of a
Court's Shuttle Bus conducts an
overall check-up on the condition of
the bus he is driving. The
passengers may just have presumed
that the bus was purportedly
traversing at high speed because it
CSC-CES Cases 56
Public Corporation
was descending the flyover making
it difficult for Mr. Moral to control
the bus due to the malfunctioning of
the brakes which is beyond his
control. Neither had they any point
of comparison at hand whether the
speed of the bus at that time it was
descending was greater than what is
reasonable. Besides, as stated in the
police report, there was a moderate
traffic before the accident occurred.
In doing the alleged negligent act or
recklessness, if there was any, on
the part of Mr. Moral, no proof has
yet been submitted to support this
allegation.
In this case, the reasonable care
and caution which an ordinary
prudent person would have used
may be presumed in his favor. In
fact, Mr. Moral applied all means
within his ability to lessen the
degree of damage to the passenger
jeepney which may have resulted
due to the impact of the impending
collision. What clearly happened was
an accident with no fault or
negligence attache[d] to Mr. Moral.
The OAS stated that Mr. Moral is a
casual employee of the Court. He
was hired under pertinent civil
service rules. He assumed the
position of shuttle bus driver on July
1, 2008, after his appointment was
included in the approved list of
casual employees hired for the
period covering July to December
2008.
The OAS recommends the
immediate termination of Mr. Moral
on the ground of loss of trust and
confidence in him by the shuttle bus
riders and that he has no security of
tenure as a casual employee; hence,
his services can be terminated
anytime for cause.

The issue is whether or not Mr.
Moral can be terminated from his
casual employment due to the
vehicular accident.
The pertinent laws applicable in this
case are Sec. 2, Article IX (B) of the
Constitution and Sec. 46 (a),
Chapter 7 of the Civil Service Law,
thus:
Article IX (B) of the Constitution
Sec. 2. x x x
(3) No officer or employee of the
civil service shall be removed or
suspended except for cause
provided by law.
xxx
(6) Temporary employees of the
Government shall be given such
protection as may be provided by
law.
The Civil Service Law
Sec. 46. Discipline: General
Provisions. - (a) No officer or
employee in the Civil Service shall
be suspended or dismissed except
for cause as provided by law after
due process.
Further, Civil Aeronautics
Administration v. IAC1 held that "the
mantle of protection against
arbitrary dismissals is accorded to
an employee even if he is a non-
eligible and holds a temporary
appointment."
Hence, a government employee
holding a casual or temporary
employment cannot be terminated
within the period of his employment
except for cause.
CSC-CES Cases 57
Public Corporation
In this case, Mr. Moral can be
dismissed from employment if he is
found guilty of gross neglect of duty
which is punished with dismissal
under Sec. 22, Rule XIV of the
Omnibus Civil Service Rules and
Regulations.
However, in the Memorandum dated
September 8, 2008, OAS Chief
Administrative Officer Eden T.
Candelaria stated that after a
thorough evaluation of the
statements and documents
regarding the vehicular accident, the
OAS "is convinced that the incident
was purely accidental with no fault
or negligence on our driver so far."
The OAS reported that there was no
proof submitted that Mr. Moral was
negligent or reckless in the
performance of his duty. It
attributed the accident to the
malfunctioning of the brakes which
was beyond the control of Mr. Moral.
Malfunction or loss of brake is not a
fortuitous event.2 Between the
owner and his driver, on the one
hand, and third parties such as
commuters, drivers and pedestrians,
on the other, the former is
presumed to know about the
condition of his vehicle and is duty
bound to take care thereof with the
diligence of a good father of the
family.3
In this case, the OAS averred that it
is the shuttle bus driver who
conducts an overall check-up on the
condition of the bus he is driving. It
pointed out that Shuttle Bus No. 3
was roadworthy because it was in
good running condition and its
brakes functioned perfectly from the
time it left the parking area in the
afternoon of July 7, 2008 to pick up
its regular employee-passengers
until it reached the flyover of

Crossing, Shaw Boulevard,
Mandaluyong City where the
accident happened. According to the
OAS, there was no proof submitted
showing that Mr. Moral was
negligent or reckless in the
performance of his duty.
In view of the lack of evidence
showing gross neglect of duty on the
part of Mr. Moral, the Court cannot
sustain the recommendation of OAS
for the dismissal of Mr. Moral on the
ground that he is merely a casual
employee. Even a casual or
temporary employee enjoys security
of tenure and cannot be dismissed
except for cause enumerated in Sec.
22, Rule XIV of the Omnibus Civil
Service Rules and Regulations and
other pertinent laws. However, Mr.
Moral's services may no longer be
engaged after termination of his
employment contract as a
temporary employee.
Further, the Court cannot uphold the
recommendation of OAS that Mr.
Moral be dismissed for loss of trust
and confidence by the passengers of
the bus because a driver is not a
confidential employee as defined
in Civil Service Commission v.
Salas, 4 thus:
The occupant of a particular position
could be considered a confidential
employee if the predominant reason
why he was chosen by the
appointing authority was the latter's
belief that he can share a close
intimate relationship with the
occupant which ensures freedom of
discussion, without fear of
embarrassment or misgivings of
possible betrayal of personal trust or
confidential matters of state. Withal,
where the position occupied is
remote from that of the appointing
authority, the element of trust
CSC-CES Cases 58
Public Corporation
between them is no longer
predominant.
WHEREFORE, respondent GERRY
B. MORAL is RETAINED as shuttle
bus driver until the end of the term
of his temporary employment in the
Court, i.e., December of 2008,
unless he is earlier dismissed for
cause in another case.
SO ORDERED.
G.R. No. 170021 September 8, 2006
OFFICE OF THE PRESIDENT, petitioner,
vs.
NITA P. BUENAOBRA, respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review under Rule 45 of the Rules of
Court assails the Decision1 of the Court of Appeals
dated May 27, 2005 in CA-G.R. SP No. 78279, which
reversed and set aside petitioner's Resolutions dated
April 11, 20032 and June 26, 20033 dismissing
respondent Nita P. Buenaobra from the service. Also
assailed is the Resolution4 dated October 3, 2005,
denying petitioner's motion for reconsideration.
The following facts are undisputed:
The Office of the Ombudsman's Special Prosecution
Officer filed an information against respondent Nita P.
Buenaobra, Chairman of the Komisyon sa Wikang
Pilipino (KWP), with the Sandiganbayan for violation
of Section 3(e) of Republic Act (R.A.) No. 3019 for
allegedly causing undue injury to the government
through gross inexcusable negligence in connection
with the unauthorized reprinting of the Diksyunaryo ng
Wikang Pilipino. The case was docketed as Criminal
Case No. 26918 ("the Sandiganbayan case").5
Upon respondent's motion, the Sandiganbayan
ordered a reinvestigation. Thereafter, then
Ombudsman Simeon Marcelo approved the
recommendation for the reversal of the probable
cause finding and the withdrawal of the information
filed against respondent. Thus, a motion to withdraw
the information6 was filed which the Sandiganbayan
granted in its Resolution dated April 30, 2003.7
While reinvestigation of the Sandiganbayan case was
on-going, the Presidential Anti-Graft Commission
(PAGC) conducted a parallel administrative
investigation ("the PAGC case") against respondent
charging her with the same acts and omissions
subject of the Sandiganbayan case. Respondent was
charged with causing undue injury to the government
and giving unwarranted benefits to Merylvin

Publishing House, Inc., through gross inexcusable
negligence in not taking legal action to collect the
15% royalty fee of P3,366,250.00 approved by the
KWF Board to be levied against the publisher for its
unauthorized reprinting and selling of the dictionary.8
Instead of filing her counter-affidavit/verified answer,
respondent moved to dismiss the administrative case
on grounds of litis pendentia and forum shopping in
view of the pending Sandiganbayan case. The PAGC
denied respondent's motion to dismiss and
recommended respondent's dismissal from the
service, forfeiture of financial benefits, and
disqualification from joining the government.
On April 11, 2003, petitioner adopted PAGC's
recommendation and dismissed respondent from
office.9 It held as inapplicable the doctrines of litis
pendentia and forum shopping because the
Sandiganbayan case was criminal, while the PAGC
case was administrative, in nature. It also ruled that
respondent was deemed to have admitted the
material averments of PAGC's complaint when she
did not specifically deny them, despite an opportunity
to do so.
Respondent moved for reconsideration10 but was
denied. Hence, she filed a petition for review with the
Court of Appeals, docketed as CA-G.R. SP No.
78279.11
The Court of Appeals granted respondent's petition in
its assailed Decision dated May 27, 2005 holding that
the proceedings before the PAGC were procedurally
and substantially flawed because after denying
respondent's motion to dismiss, the PAGC did not
give respondent the opportunity to present evidence.
Instead, it proceeded to rule on the merits of the case.
The Court of Appeals also found no evidence to prove
respondent's administrative liability in not collecting
the 15% royalty fee. The dispositive portion of the
Decision reads:
WHEREFORE, premises considered, the
petition is GRANTED. The assailed
Resolutions dated April [11], 2003 and June
26, 2003 are SET ASIDE. The
charge/complaint against petitioner Nita P.
Buenaobra is hereby ordered DISMISSED for
complete lack of evidence against the
petitioner.
SO ORDERED.12
Petitioner's motion for reconsideration was denied,
hence, the instant petition.
Petitioner argues that respondent was a presidential
appointee and a holder of a non-career service
position, hence, she could be removed from the
service at the pleasure of the President.
The petition lacks merit.
Republic Act (R.A.) No. 710413 creating the
Commission on the Filipino Language provides for 11
CSC-CES Cases 59
Public Corporation
commissioners to be headed by a chairman and all
appointed by the President.14 The chairman and two
commissioners shall serve full-time for a term of
seven years.
Under Section 4, Article IV, of Presidential Decree
(P.D.) No. 807, or the Civil Service Decree, positions
in the civil service are classified into career service
and non-career service. Section 6 of same article
describes a non-career service employee or officer as
follows:
Sec. 6. The Non-Career Service shall be
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 which is limited to the
duration of a particular project for which
purpose employment was made.
The Non-Career Service shall include:
xxxx
3. Chairman and members of commissions
and boards with fixed terms of office and
their personal or confidential staff;
(Emphasis added)
xxxx
Based on the foregoing, respondent who is the
Chairman of the KWP is a non-career service
personnel whose tenure is limited to seven years as
provided under R.A. No. 7104. Since her tenure is
fixed by law, her removal from office is not at the
pleasure of the appointing authority.
We have consistently ruled that non-career service
personnel enjoy security of tenure. They may not be
removed without just cause and non-observance of
due process. Thus, in Jocom v. Regalado,15 we held:
Regardless of the classification of the position
held by a government employee covered by
civil service rules, be it a career or non-career
position, such employee may not be removed
without just cause. An employee who
belongs to the non-career service is
protected from removal or suspension
without just cause and non-observance of
due process.
xxxx
The constitutional and statutory guarantee of
security of tenure is extended to both those in
the career and non-career service positions,
and the cause under which an employee may
be removed or suspended must naturally have
some relation to the character or fitness of the
officer or employee, for the discharge of the
functions of his office, or expiration of the

project for which the employment was
extended. (Emphasis supplied)
Moreover, there is no showing that respondent's
failure to file suit to collect the royalty fee prejudiced
the government. In its assailed Resolution dated June
26, 2003, petitioner held that there was a PAGC
"categorical finding"16 of violation of Sec. 3(e) of R.A.
No. 3019. However, it was a bare conclusion by the
PAGC in violation of Sec. 5, Rule VII, Part III of the
PAGC New Rules of Procedure,17 that in every case,
the "Commission shall use any and all reasonable
means to ascertain the facts in each case or
complaint speedily and objectively and without regard
to technicalities of law or procedure, in all instances
observing due process."
More important, Sec. 2, Rule VIII, Part IV of the
PAGC rules requires that its report and
recommendation to the President "shall state, among
others, the factual findings and legal conclusions, as
well as the penalty recommended to be imposed or
such other action that may be taken." PAGC
concluded that respondent violated R.A. No. 3019,
without any factual findings at all.
We agree with the findings of the Court of Appeals
that respondent did not give any unwarranted benefits
to Merylvin, to wit:
The act of "not taking legal action to collect" is
not defined by any criminal statute as an
offense by omission per se. If it were so, a
sizeable number of public officials would be
out of the government service by mere
omission to take such action. But could the
same act be the basis for administrative action
against an erring public official? Logically
since such an omission is not a criminal
offense per se, it could be the basis of an
administrative action only if there is a positive
duty to take legal action clearly imposed upon
the petitioner.
In the instant case, insofar as the criminal
aspect of the case is concerned, the office of
the Ombudsman already ruled that the
accused x x x "cannot be faulted if she
instituted no action to collect royalty fee from
the publishing house. In fact, if she instituted
such action, the same would be unauthorized
and without legal basis as there was no
contract between the KWF and the publisher."
It is for this reason that the Motion to
Withdraw Information in Criminal Case No.
26918 entitled People vs. Nita P. Buenaobra
was granted by the Fifth Division of the
Sandiganbayan.
This lack of positive duty to take legal action
on the part of the petitioner is bolstered by the
fact that KWF Board Resolution No. 2002-2
specifically disauthorized her to enter into a
contract with Merylvin Publishing House, thus,
Buenaobra's inaction to collect the 15%
royalty fee from said publisher was only in
accord with the KWF Board of
CSC-CES Cases 60
Public Corporation
Commissioners' decision. KWF is a collegial
body and as such it acts only in accordance
with the Board's directives. In fact, much
earlier, the offer to pay fifteen percent (15%)
royalty fee was referred by the KWF Board to
the State Auditor for his comment and
recommendations under Resolution No. 2000-
1 passed and approved on February 2, 2000.
Petitioner Buenaobra was dismissed from the
service as a result of an illogical conclusion of
an unreasonable mind. Buenaobra was
charged for her omission to collect from
Merylvin Publishing House but the KWF Board
of Commissioners, of which the private
complainant is a member, disauthorized
Buenaobra from entering into a contract with
Merylvin Publishing House (which offered the
15% royalty fee), which would have been the
basis for collection. Clearly then, as pointed
out by the Office of the Ombudsman, without
such contract, there was no basis for
collection. If We have to pinpoint responsibility
for non-collection, it is not because of the
inaction of Buenaobra but because of the
KWF Board Resolution No. 2000-2
disauthorizing Buenaobra from entering into a
contract with Merylvin Publishing House. The
sad thing is that one of the signatories of said
resolution is the private complainant KWF
Commissioner Fe Aldave-Yap, who is herself
the cause of the non-collection. The filing of
this complaint resulting in the resolution of the
administrative body dismissing petitioner
Buenaobra from government service is a sad
commentary of the mentality of public
functionaries who file cases and those who
cursorily give them due course even though
the factual bases clearly show a comedy of
errors. It escapes logic and clear thinking why
this complaint against petitioner was filed and
entertained in the first place. x x x.
xxxx
Buenaobra did not give any unwarranted
benefits, advantage or preference to the
publisher nor had she acted with manifest
partiality, evident bad faith or gross
inexcusable negligence. Such being the case,
it necessarily follows that the
charge/complaint against petitioner must be
dismissed.18 (Italics and emphasis in the
original)
WHEREFORE, based on the foregoing, the petition
is DENIED. The Decision of the Court of Appeals
dated May 27, 2005 in CA-G.R. SP No. 78279, which
reversed and set aside the Resolutions dated April
11, 2003 and June 26, 2003 of the Office of the
President dismissing respondent Nita P. Buenaobra
from the service, and its Resolution dated October 3,
2005 denying petitioner's Motion for Reconsideration,
are AFFIRMED.
SO ORDERED.

G.R. No. 152574 November 17, 2004
FRANCISCO ABELLA JR., petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
DECISION
PANGANIBAN, J.:
Both the appointing authority and the appointee are
the real parties in interest, and both have legal
standing, in a suit assailing a Civil Service
Commission (CSC) order disapproving an
appointment. Despite having legal interest and
standing, herein petitioner unsuccessfully challenges
the constitutionality of the CSC circular that classifies
certain positions in the career service of the
government. In sum, petitioner was appointed to a
Career Executive Service (CES) position, but did not
have the corresponding eligibility for it; hence, the
CSC correctly disapproved his appointment.
The Case
Before us is a Petition for Review1 under Rule 45 of
the Rules of Court, challenging the November 16,
2001 Decision2 and the March 8, 2002 Resolution3 of
the Court of Appeals (CA) in CA-GR SP No. 58987.
The Assailed Decision disposed as follows:
"WHEREFORE, the petition for review is
DENIED for lack of merit."4
The challenged Resolution denied petitioner's Motion
for Reconsideration.
The Facts
The CA narrates the factual antecedents in this wise:
"Petitioner Francisco A. Abella, Jr., a lawyer,
retired from the Export Processing Zone
Authority (EPZA), now the Philippine
Economic Zone Authority (PEZA), on July 1,
1996 as Department Manager of the Legal
Services Department. He held a civil service
eligibility for the position of Department
Manager, having completed the training
program for Executive Leadership and
Management in 1982 under the Civil Service
Academy, pursuant to CSC Resolution No.
850 dated April 16, 1979, which was then the
required eligibility for said position.
"It appears, however, that on May 31, 1994,
the Civil Service Commission issued
Memorandum Circular No. 21, series of 1994,
the pertinent provisions of which read:
CSC-CES Cases 61
Public Corporation
'1. Positions Covered by the Career
Executive Service
xxx xxx xxx
(b) In addition to the above identified positions
and other positions of the same category
which had been previously classified and
included in the CES, all other third level
positions of equivalent category in all
branches and instrumentalities of the national
government, including government owned and
controlled corporations with original charters
are embraced within the Career Executive
Service provided that they meet the following
criteria:
'1. the position is a career position;
'2. the position is above division chief
level
'3. the duties and responsibilities of
the position require the performance
of executive or managerial functions.
'4. Status of Appointment of
Incumbents of Positions Included
Under the Coverage of the CES.
Incumbents of positions which are
declared to be Career Executive
Service positions for the first time
pursuant to this Resolution who hold
permanent appointments thereto shall
remain under permanent status in
their respective positions. However,
upon promotion or transfer to other
Career Executive Service (CES)
positions, these incumbents shall be
under temporary status in said other
CES positions until they qualify.'
"Two years after his retirement, petitioner was
hired by the Subic Bay Metropolitan Authority
(SBMA) on a contractual basis. On January 1,
1999, petitioner was issued by SBMA a
permanent employment as Department
Manager III, Labor and Employment Center.
However, when said appointment was
submitted to respondent Civil Service
Commission Regional Office No. III, it was
disapproved on the ground that petitioner's
eligibility was not appropriate. Petitioner was
advised by SBMA of the disapproval of his
appointment. In view thereof, petitioner was
issued a temporary appointment as
Department Manager III, Labor and
Employment Center, SBMA on July 9, 1999.
"Petitioner appealed the disapproval of his
permanent appointment by respondent to the
Civil Service Commission, which issued
Resolution No. 000059, dated January 10,
2000, affirming the action taken by
respondent. Petitioner's motion for
reconsideration thereof was denied by the

CSC in Resolution No. 001143 dated May 11,
2000."
"x x x xxx xxx
"Undaunted, petitioner filed with [the CA] a
petition for review seeking the reversal of the
CSC Resolutions dated January 10, 2000 and
May 11, 2000 on the ground that CSC
Memorandum Circular No. 21, s. 1994 is
unconstitutional as it rendered his earned civil
service eligibility ineffective or inappropriate
for the position of Department Manager [III]"5
Ruling of the Court of Appeals
The CA shunned the issue of constitutionality, arguing
that a constitutional question should not be passed
upon if there are other grounds upon which the case
may be decided.6 Citing CSC Memorandum Circular
40, s. 1998 and Mathay v. Civil Service
Commission,7 the appellate court ruled that only the
appointing officer may request reconsideration of the
action taken by the CSC on appointments. Thus, it
held that petitioner did not have legal standing to
question the disapproval of his appointment.8
On reconsideration, the CA added that petitioner was
not the real party in interest, as his appointment was
dependent on the CSC's approval. Accordingly, he
had no vested right in the office, since his
appointment was disapproved.9
Unsatisfied, petitioner brought this recourse to this
Court.10
The Issues
Petitioner raises the following issues for our
consideration:
"A. Whether or not Respondent Court
committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that
petitioner lacks the personality to question the
disapproval by respondent office of
petitioner's appointment as Department
Manager III, Labor and Employment Center,
SBMA.
"B. Whether or not Respondent Court
committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that
petitioner is not the real party in interest to
question the disapproval by respondent office
of petitioner's appointment as Department
Manager III, Labor and Employment Center,
SBMA.
"C. Whether or not Respondent Court
committed grave abuse of discretion
amounting to lack of jurisdiction, in dismissing
petitioner's appeal on a mere technicality
considering that petitioner is questioning the
constitutionality of respondent office' issuance
of Section 4 of CSC Memorandum Circular
CSC-CES Cases 62
Public Corporation
No. 21, s. 1994, which deprived petitioner his
property right without due process of law."11
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Who May File Reconsideration or Appeal
Preliminary Observation
Petitioner imputes to the CA "grave abuse of
discretion amounting to lack of jurisdiction" for ruling
that he had no legal standing to contest the
disapproval of his appointment.12 Grave abuse of
discretion is a ground for a petition for certiorari under
Rule 65 of the Rules of Court. Nevertheless, this
Court resolved to grant due course to the Petition and
to treat it appropriately as a petition for review on
certiorari under Rule 45 of the Rules of Court. The
grounds shall be deemed "reversible errors," not
"grave abuse of discretion."
Approval Required for
Permanent Appointment
A permanent appointment in the career service is
issued to a person who has met the requirements of
the position to which the appointment is made in
accordance with the provisions of law, the rules and
the standards promulgated pursuant thereto.13 It
implies the civil service eligibility of the
appointee.14 Thus, while the appointing authority has
the discretion to choose whom to appoint, the choice
is subject to the caveat that the appointee possesses
the required qualifications.15
To make it fully effective, an appointment to a civil
service position must comply with all legal
requirements.16 Thus, the law requires the appointment
to be submitted to the CSC which will ascertain, in the
main, whether the proposed appointee is qualified to
hold the position and whether the rules pertinent to
the process of appointment were observed.17 The
applicable provision of the Civil Service Law reads:
"SECTION 9. Powers and Functions of the
Commission. The Commission shall
administer the Civil Service and shall have the
following powers and functions:
"x x x 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."18
The appointing officer and the CSC acting together,
though not concurrently but consecutively, make an
appointment complete.19 In acting on the appointment,
the CSC determines whether the appointee
possesses the appropriate civil service eligibility or
the required qualifications. If the appointee does, the
appointment must be approved; if not, it should be
disapproved.20 According to the appellate court, only
the appointing authority had the right to challenge the
CSC's disapproval. It relied on Section 2 of Rule VI of
CSC Memorandum Circular 40, s. 1998 (Omnibus
Rules on Appointment and Other Personal Actions),
which provides:
"Section 2. Request for Reconsideration of, or
appeal from, the disapproval of an
appointment may be made by the appointing
authority and submitted to the Commission
within fifteen (15) calendar days from receipt
of the disapproved appointment."
Appointing Authority's Right to
Challenge CSC Disapproval
While petitioner does not challenge the legality of this
provision, he now claims that it is merely a
technicality, which does not prevent him from
requesting reconsideration.
We clarify. The power of appointment necessarily
entails the exercise of judgment and
discretion.21 Luego v. Civil Service
Commission22 declared:
"Appointment is an essentially discretionary
power and must be performed by the officer in
which it is vested according to his best lights,
the only condition being that the appointee
should possess the qualifications required by
law. If he does, then the appointment cannot
be faulted on the ground that there are others
better qualified who should have been
preferred. This is a political question involving
considerations of wisdom which only the
appointing authority can decide."23
Significantly, "the selection of the appointee -- taking
into account the totality of his qualifications, including
those abstract qualities that define his personality -- is
the prerogative of the appointing authority."24 No
tribunal, not even this Court,25 may compel the
exercise of an appointment for a favored person.26
CSC-CES Cases 63
Public Corporation
The CSC's disapproval of an appointment is a
challenge to the exercise of the appointing authority's
discretion. The appointing authority must have the
right to contest the disapproval. Thus, Section 2 of
Rule VI of CSC Memorandum Circular 40, s. 1998 is
justified insofar as it allows the appointing authority to
request reconsideration or appeal.
In Central Bank v. Civil Service Commission,27 this
Court has affirmed that the appointing authority
stands to be adversely affected when the CSC
disapproves an appointment. Thus, the said authority
can "defend its appointment since it knows the
reasons for the same."28 It is also the act of the
appointing authority that is being questioned when an
appointment is disapproved.29
Appointee's Legal Standing to
Challenge the CSC Disapproval
While there is justification to allow the appointing
authority to challenge the CSC disapproval, there is
none to preclude the appointee from taking the same
course of action. Aggrieved parties, including the Civil
Service Commission, should be given the right to file
motions for reconsideration or to appeal.30 On this
point, the concepts of "legal standing" and "real party
in interest" become relevant.
Although commonly directed towards ensuring that
only certain parties can maintain an action, "legal
standing" and "real party in interest" are different
concepts. Kilosbayan v. Morato31 explained:
"The difference between the rule on standing
and real party-in-interest has been noted by
authorities thus: 'It is important to note . . . that
standing because of its constitutional and
public policy underpinnings, is very different
from questions relating to whether a particular
plaintiff is the real party-in-interest or has
capacity to sue. Although all three
requirements are directed towards ensuring
that only certain parties can maintain an
action, standing restrictions require a partial
consideration of the merits, as well as broader
policy concerns relating to the proper role of
the judiciary in certain areas. (FRIEDENTHAL,
KANE AND MILLER, CIVIL PROCEDURE
328 [1985])
"Standing is a special concern in constitutional
law because in some cases suits are brought
not by parties who have been personally
injured by the operation of a law or by official
action taken, but by concerned citizens,
taxpayers or voters who actually sue in the
public interest. Hence the question in standing
is whether such parties have 'alleged such a
personal stake in the outcome of the
controversy to assure that concrete
adverseness which sharpens the presentation
of issues upon which the court so largely
depends for illumination of difficult
constitutional questions.' (Baker v. Carr, 369
U.S. 186, 7 L. Ed. 2d 633 (1962))

"x x x xxx xxx
"On the other hand, the question as to 'real
party-in-interest' is whether he is 'the party
who would be [benefited] or injured by the
judgment, or the 'party entitled to the avails of
the suit.' (Salonga v. Warner Barnes & Co.,
Ltd., 88 Phil. 125, 131 [1951])"32
If legal standing is granted to challenge the
constitutionality or validity of a law or governmental
act despite the lack of personal injury on the
challenger's part, then more so should petitioner be
allowed to contest the CSC Order disapproving his
appointment. Clearly, he was prejudiced by the
disapproval, since he could not continue his office.
Although petitioner had no vested right to the
position,33 it was his eligibility that was being
questioned. Corollary to this point, he should be
granted the opportunity to prove his eligibility. He had
a personal stake in the outcome of the case, which
justifies his challenge to the CSC act that denied his
permanent appointment.
The Appointee a Real
Party in Interest
A real party in interest is one who would be benefited
or injured by the judgment, or one entitled to the
avails of the suit.34 "Interest" within the meaning of the
rule means material interest or an interest in issue
and to be affected by the decree, as distinguished
from mere interest in the question involved or a mere
incidental interest.35 Otherwise stated, the rule refers to
a real or present substantial interest as distinguished
from a mere expectancy; or from a future, contingent,
subordinate, or consequential interest.36 As a general
rule, one who has no right or interest to protect cannot
invoke the jurisdiction of the court as a party-plaintiff
in an action.37
Although the earlier discussion demonstrates that the
appointing authority is adversely affected by the
CSC's Order and is a real party in interest, the
appointee is rightly a real party in interest too. He is
also injured by the CSC disapproval, because he is
prevented from assuming the office in a permanent
capacity. Moreover, he would necessarily benefit if a
favorable judgment is obtained, as an approved
appointment would confer on him all the rights and
privileges of a permanent appointee.
Appointee Allowed
Procedural Relief
Section 2 of Rule VI of CSC Memorandum Circular
40, s. 1998 should not be interpreted to restrict solely
to the appointing authority the right to move for a
reconsideration of, or to appeal, the disapproval of an
appointment. PD 807 and EO 292, from which the
CSC derives the authority to promulgate its rules and
regulations, are silent on whether appointees have a
similar right to file motions for reconsideration of, or
appeals from, unfavorable decisions involving
appointments. Indeed, there is no legislative intent to
CSC-CES Cases 64
Public Corporation
bar appointees from challenging the CSC's
disapproval.
The view that only the appointing authority may
request reconsideration or appeal is too narrow. The
appointee should have the same right.
Parenthetically, CSC Resolution 99-193638 recognizes
the right of the adversely affected party to appeal to
the CSC Regional Offices prior to elevating a matter
to the CSC Central Office.39 The adversely affected
party necessarily includes the appointee.
This judicial pronouncement does not override
Mathay v. Civil Service Commission,40 which the CA
relied on. The Court merely noted in passing -- by
way of obiter -- that based on a similar provision,41 only
the appointing officer could request reconsideration of
actions taken by the CSC on appointments.
In that case, Quezon City Mayor Ismael A. Mathay Jr.
sought the nullification of CSC Resolutions that
recalled his appointment of a city government officer.
He filed a Petition assailing the CA Decision, which
had previously denied his Petition for Certiorari for
being the wrong remedy and for being filed out of
time. We observed then that the CSC Resolutions
were already final and could no longer be elevated to
the CA.42 Furthermore, Mathay's Petition for Certiorari
filed with the CA was improper, because there was an
available remedy of appeal. And the CSC could not
have acted without jurisdiction, considering that it was
empowered to recall an appointment initially
approved.43
The right of the appointee to seek reconsideration or
appeal was not the main issue in Mathay. At any rate,
the present case is being decided en banc, and the
ruling may reverse previous doctrines laid down by
this Court.44
Second Issue:
Constitutionality of Section 4, CSC Memorandum
Circular 21, Series of 1994
Alleging that his civil service eligibility was rendered
ineffective and that he was consequently deprived of
a property right without due process,45 petitioner
challenges the constitutionality of CSC Memorandum
Circular 21, s. 1994.46The pertinent part of this Circular
reads:
"1. Positions Covered by the Career Executive
Service.
"(a) The Career Executive Service
includes the positions of
Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau
Director, Regional Director
(department-wide and bureau-wide),
Assistant Regional Director
(department-wide and bureau-wide)
and Chief of Department Service[.]

"(b) In addition to the above identified
positions and other positions of the
same category which had been
previously classified and included in
the CES, all other third level positions
in all branches and instrumentalities of
the national government, including
government-owned or controlled
corporations with original charters are
embraced within the Career Executive
Service provided that they meet the
following criteria:
"1. the position is a career
position;
"2. the position is above
division chief level;
"3. the duties and
responsibilities of the position
require the performance of
executive or managerial
functions."
xxx xxx xxx
"4. Status of Appointment of Incumbents of
Positions Under the Coverage of the CES.
Incumbents of positions which are declared to
be Career Executive Service positions for the
first time pursuant to this Resolution who hold
permanent appointments thereto shall remain
under permanent status in their respective
positions. However, upon promotion or
transfer to other Career Executive Service
(CES) positions, these incumbents shall be
under temporary status in said other CES
positions until they qualify."
Petitioner argues that his eligibility, through the
Executive Leadership and Management (ELM)
training program, could no longer be affected by a
new eligibility requirement. He claims that he was
eligible for his previous position as department
manager of the Legal Services Department, PEZA;
hence, he should retain his eligibility for the position of
department manager III, Labor and Employment
Center, SBMA, notwithstanding the classification of
the latter as a CES position.
CSC Authorized to Issue
Rules and Regulations
The Constitution mandates that, as "the central
personnel agency of the government,"47 the CSC
should "establish a career service and adopt
measures to promote the morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the
Civil Service."48 It further requires that appointments in
the civil service be made only through merit and
fitness to be determined by competitive
examination.49 Civil Service laws have expressly
empowered the CSC to issue and enforce rules and
regulations to carry out its mandate.
CSC-CES Cases 65
Public Corporation
In the exercise of its authority, the CSC deemed it
appropriate to clearly define and identify positions
covered by the Career Executive Service.50 Logically,
the CSC had to issue guidelines to meet this
objective, specifically through the issuance of the
challenged Circular.
Career Service
Classified by Levels
Positions in the career service, for which
appointments require examinations, are grouped into
three major levels:
"(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."51
Entrance to the different levels requires the
corresponding civil service eligibility. Those in the
third level (CES positions) require Career Service
Executive Eligibility (CSEE) as a requirement for
permanent appointment.52
The challenged Circular did not revoke petitioner's
ELM eligibility. He was appointed to a CES position;
however, his eligibility was inadequate. Eligibility must
necessarily conform to the requirements of the
position, which in petitioner's case was a CSEE.
Rights Protected
The challenged Circular protects the rights of
incumbents as long as they remain in the positions to
which they were previously appointed. They are
allowed to retain their positions in a permanent
capacity, notwithstanding the lack of CSEE. Clearly,
the Circular recognizes the rule of prospectivity of
regulations;53 hence, there is no basis to argue that it is
an ex post facto law54 or a bill of attainder.55 These
terms, which have settled meanings in criminal
jurisprudence, are clearly inapplicable here.
The government service of petitioner ended when he
retired in 1996; thus, his right to remain in a CES
position, notwithstanding his lack of eligibility, also
ceased. Upon his reemployment56 years later as
department manager III at SBMA in 2001, it was
necessary for him to comply with the eligibility
prescribed at the time for that position.

Security of Tenure
Not Impaired
The argument of petitioner that his security of tenure
is impaired is unconvincing. First, security of tenure in
the Career Executive Service -- except in the case of
first and second level employees in the civil service --
pertains only to rank, not to the position to which the
employee may be appointed.57 Second, petitioner had
neither rank nor position prior to his reemployment.
One cannot claim security of tenure if one held no
tenure prior to appointment.
Due Process
Not Violated
Petitioner contends that his due process rights, as
enunciated in Ang Tibay v. Court of Appeals,58 were
violated.59We are not convinced. He points in
particular to the CSC's alleged failure to notify him of
a hearing relating to the issuance of the challenged
Circular.
The classification of positions in career service was a
quasi-legislative, not a quasi-judicial, issuance. This
distinction determines whether prior notice and
hearing are necessary.
In exercising its quasi-judicial function, an
administrative body adjudicates the rights of persons
before it, in accordance with the standards laid down
by the law.60 The determination of facts and the
applicable law, as basis for official action and the
exercise of judicial discretion, are essential for the
performance of this function.61 On these
considerations, it is elementary that due process
requirements, as enumerated in Ang Tibay, must be
observed. These requirements include prior notice
and hearing.62
On the other hand, quasi-legislative power is
exercised by administrative agencies through the
promulgation of rules and regulations within the
confines of the granting statute and the doctrine of
non-delegation of certain powers flowing from the
separation of the great branches of the
government.63 Prior notice to and hearing of every
affected party, as elements of due process, are not
required since there is no determination of past
events or facts that have to be established or
ascertained. As a general rule, prior notice and
hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct.64
Significantly, the challenged Circular was an internal
matter addressed to heads of departments, bureaus
and agencies. It needed no prior publication, since it
had been issued as an incident of the administrative
body's power to issue guidelines for government
officials to follow in performing their duties.65
Final Issue:
Disapproval of Appointment
CSC-CES Cases 66
Public Corporation
Since petitioner had no CES eligibility, the CSC
correctly denied his permanent appointment. The
appointee need not have been previously heard,
because the nature of the action did not involve the
imposition of an administrative disciplinary
measure.66 The CSC, in approving or disapproving an
appointment, merely examines the conformity of the
appointment with the law and the appointee's
possession of all the minimum qualifications and none
of the disqualification.67
In sum, while petitioner was able to demonstrate his
standing to appeal the CSC Resolutions to the courts,
he failed to prove his eligibility to the position he was
appointed to.
WHEREFORE, the Petition is GRANTED insofar as it
seeks legal standing for petitioner, but DENIED
insofar as it prays for the reversal of the CSC
Resolutions disapproving his appointment as
department manager III of the Labor and Employment
Center, Subic Bay Metropolitan Authority. Costs
against petitioner.
SO ORDERED.
G.R. No. 138780 May 22, 2001
NORBERTO ORCULLO, JR., petitioner,
vs.
CIVIL SERVICE COMMISSION and
COORDINATING COUNCIL OF THE PHILIPPINE
ASSITANCE PROGRAM, respondents.
KAPUNAN, J.:
Petitioner Norberto A. 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
which was to end on January 30, 2000.1 On
September 23, 1996 or six (6) months from his
assumption to office, petitioner received a
Memorandum, dated September 20, 1996, from one
Jorge M. Briones, Assistance Director of CCPAP,
terminating petitioner's contractual employment with
said agency effective September 30, 1996.2
In a Letter dated September 20, 1996,
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).
On April 2, 1997, the respondent CSC issued
resolution No. 972309 dismissing petitioner's appeal.
The CSC found that:
xxx the appointment of Orcullo 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. Said stipulations in the
contract may include the mode or manner of
separations. And the cause therefore includes
and is not proscribed to derogatory record,
misbehavior or incompetence or hostile
attitudes. In the instant case, appellant was
separated from the service particularly for
unsatisfactory performance. (Underscoring
ours)
On the issue of the proper official who should
effect such termination, the next lower official
who should effect such termination, the next
lower official of the Center may do so. In this
case, said separation was later validated by
the confirmation of the head office.3
Petitioner filed a motion for reconsideration of the
above resolution. On June 17, 1997, the CSC denied
said motion in its Resolution No. 973099.
On July 30, 1997, petitioner, through counsel, filed a
petition for review with the Court of Appeals.
On August 14, 1998, the Court of Appeals rendered a
decision, the dispositive portion of which reads as
follows:
WHEREFORE, for lack of merit, the petition in
the above entitled case is hereby
DISMISSED. Costs against petitioner.
SO ORDERED.
Hence, this petition. Petitioner raises the sole issue of
whether employees in the public service, regardless
of their status of employment, are protected by the
tenurial security right embodied in the Constitution.
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.
Petitioner's arguments are bereft of merit. 1wphi1.nt
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)
CSC-CES Cases 67
Public Corporation
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.(Underscoring ours)
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.
xxx5
Additionally, Section 14 of the Omnibus Rules
Implementing Book V of Executive Order No. 292
provides:
Sec. 14. An appointment may also be co-
terminous which shall be issued to a person
whose entrance and continuity in the service
is based on the trust and confidence of the
appointing authority or that which is subject to
his pleasure, or co-existent with his tenure, or
limited by the duration of project or subject to
the availability of funds. (Underscoring ours)
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;(Underscoring ours)
(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." We quote with approval said
court's ruling on the matter, thus:
xxx. The employment contract is written in
plain and unambiguous language. With
petitioner's stature, he could not have
misunderstood it. Petitioner cannot now
renege from the stipulation invoking security
of tenure under the Constitution and the Civil
Service Law. The fact is he belongs to the
non-career service whose appointment is co-
terminous, meaning his entrance and
continuity in the service is based on trust and
confidence of the appointing
power.6 (underscoring ours)
Granting arguendo that said disputed phrase refers
not to the duration of petitioner's employment, but to
the project itself, nevertheless, petitioner was validly
terminated for cause. The records will show that
petitioner garnered an unsatisfactory rating during the
probationary period of his employment.7 After due
notice, he was subsequently dismissed because of
his inability to work with the other staff members of
the project and to participate effectively in meetings
regarding the project, resulting in loss of trust in him
by his superiors. The much can be gleaned form the
Memorandum as follows:
This is to confirm my verbal advise to you
made last 4 September 1996 regarding
your unsatisfactory performance during the
probationary period of your contractual
employment with the CCPAP BOT Center.
As advised, your inability to work with the
other staff in the Center as well as participate
in outside meetings are the main reasons for
the rating which have resulted in the loss of
my confidence in your ability to do your job as
a Manager. (Underscoring supplied)
xxx8
Finally, we find petitioner's claim that he was deprived
of due process unavailing. The Court of Appeals
found that petitioner was informed of his
unsatisfactory performance in his job as project
manager about two weeks prior to his termination.
Thereafter, upon receipt of the memorandum
CSC-CES Cases 68
Public Corporation
terminating his services, petitioner filed a complaint-
appeal to the CSC. When the CSC affirmed his
dismissal in its Resolution, dated April 2, 1997,
petitioner filed a motion for reconsideration thereof.
Thus, he cannot now claim that he was not given the
opportunity to be heard.
WHEREFORE, the instant petition for certiorari is
hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 123708 June 19, 1997
CIVIL SERVICE COMMISSION and PHILIPPINE
AMUSEMENT AND GAMING
CORPORATION, petitioners,
vs.
RAFAEL M. SALAS, respondent.
REGALADO, J.:
The present petition for review on certiorari seeks to
nullify the decision of the Court of Appeals, dated
September 14, 1995, in CA-G.R. SP No. 38319 which
set aside Resolution No. 92-1283 of the Civil Service
Commission (CSC) and ordered the reinstatement of
herein private respondent Rafael M. Salas with full
back wages for having been illegally dismissed by the
Philippine Amusement and Gaming Corporation
(PAGCOR), but without prejudice to the filing of
administrative charges against him if warranted. 1
The records disclose that on October 7, 1989,
respondent Salas was appointed by the PAGCOR
Chairman as Internal Security Staff (ISS) member and
assigned to the casino at the Manila Pavilion Hotel.
However, his employment was terminated by the
Board of Directors of PAGCOR on December 3, 1991,
allegedly for loss of confidence, after a covert
investigation conducted by the Intelligence Division of
PAGCOR. The summary of intelligence information
claimed that respondent was allegedly engaged in
proxy betting as detailed in the affidavits purportedly
executed by two customers of PAGCOR who claimed
that they were used as gunners on different occasions
by respondent. The two polygraph tests taken by the
latter also yielded corroborative and unfavorable
results.
On December 23, 1991, respondent Salas submitted
a letter of appeal to the Chairman and the Board of
Directors of PAGCOR, requesting reinvestigation of
the case since he was not given an opportunity to be
heard, but the same was denied. On February 17,
1992, he appealed to the Merit Systems Protection
Board (MSPB) which denied the appeal on the ground
that, as a confidential employee, respondent was not
dismissed from the service but his term of office
merely expired. On appeal, the CSC issued
Resolution No. 92-1283 which affirmed the decision of
the MSPB. 2

Respondent Salas initially went to this Court on a
petition for certiorari assailing the propriety of the
questioned CSC resolution. However, in a resolution
dated August 15, 1995, 3 the case was referred to the
Court of Appeals pursuant to Revised Administrative
Circular No. 1-95 which took effect on June 1, 1995.
On September 14, 1995, the Court of Appeals
rendered its questioned decision with the finding that
herein respondent Salas is not a confidential
employee, hence he may not be dismissed on the
ground of loss of confidence. In so ruling, the
appellate court applied the "proximity rule" enunciated
in the case of Grio, et al. vs.Civil Service
Commission, et al. 4 It likewise held that Section 16 of
Presidential Decree No. 1869 has been superseded
and repealed by Section 2(1), Article IX-B of the 1987
Constitution.
Hence this appeal, which is premised on and calls for
the resolution of the sole determinative issue of
whether or not respondent Salas is a confidential
employee.
Petitioners aver that respondent Salas, as a member
of the Internal Security Staff of PAGCOR, is a
confidential employee for several reasons, viz.:
(1) Presidential Decree No. 1869 which created the
Philippine Amusement and Gaming Corporation
expressly provides under Section 16 thereof that all
employees of the casinos and related services shall
be classified as confidential appointees;
(2) In the case of Philippine Amusement and Gaming
Corporation vs. Court of Appeals, et al., 5 the
Supreme Court has classified PAGCOR employees
as confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991,
has declared employees in casinos and related
services as confidential appointees by operation of
law; and
(4) Based on his functions as a member of the ISS,
private respondent occupies a confidential position.
Whence, according to petitioners, respondent Salas
was not dismissed from the service but, instead, his
term of office had expired. They additionally contend
that the Court of Appeals erred in applying the
"proximity rule" because even if Salas occupied one
of the lowest rungs in the organizational ladder of
PAGCOR, he performed the functions of one of the
most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is
the actual nature of an employee's functions, and not
his designation or title, which determines whether or
not a position is primarily confidential, and that while
Presidential Decree No. 1869 may have declared all
PAGCOR employees to be confidential appointees,
such executive pronouncement may be considered as
a mere initial determination of the classification of
positions which is not conclusive in case of conflict, in
CSC-CES Cases 69
Public Corporation
light of the ruling enunciated in Tria vs. Sto. Tomas, et
al. 6
We find no merit in the petition and consequently hold
that the same should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules,
promulgated pursuant to the provisions of Section
16(e) of Republic Act No. 2260 (Civil Service Act of
1959), which was then in force when Presidential
Decree No 1869 creating the Philippine Amusement
and Gaming Corporation was passed, provided that
"upon recommendation of the Commissioner, the
President may declare a position as policy-
determining, primarily confidential, or highly technical
in nature." It appears that Section 16 of Presidential
Decree No. 1869 was predicated t thereon, with the
text thereof providing as follows:
All positions in the corporation,
whether technical, administrative,
professional or managerial are exempt
from the provisions of the Civil Service
Law, rules and regulations, and shall
be governed only by the personnel
management policies set by the Board
of Directors. All employees of the
casinos and related services shall be
classified as "confidential" appointees.
On the strength of this statutory declaration, petitioner
PAGCOR terminated the services of respondent
Salas for lack of confidence after it supposedly found
that the latter was engaged in proxy betting. In
upholding the dismissal of respondent Salas, the CSC
ruled that he is considered a confidential employee by
operation of law, hence there is no act of dismissal to
speak of but a mere expiration of a confidential
employee's term of office, such that a complaint for
illegal dismissal will not prosper in this case for lack of
legal basis.
In reversing the decision of the CSC, the Court of
Appeals opined that the provisions of Section 16 of
Presidential Decree No. 1869 may no longer be
applied in the case at bar because the same is
deemed to have been repealed in its entirety by
Section 2(1), Article IX-B of the 1987
Constitution.7 This is not completely correct. On this
point, we approve the more logical interpretation
advanced by the CSC to the effect that "Section 16 of
PD 1869 insofar as it exempts PAGCOR positions
from the provisions of Civil Service Law and Rules
has been amended, modified or deemed repealed by
the 1987 Constitution and Executive Order No. 292
(Administrative Code of 1987)."
However, the same cannot be said with respect to the
last portion of Section 16 which provides that "all
employees of the casino and related services shall be
classified as 'confidential' appointees." While such
executive declaration emanated merely from the
provisions of Section 2, Rule XX of the implementing
rules of the Civil Service Act of 1959, the power to
declare a position as policy-determining, primarily
confidential or highly technical as defined therein has
subsequently been codified and incorporated in

Section 12(9), Book V of Executive Order No. 292 or
the administrative Code of
1987.8 This later enactment only serves to bolster the
validity of the categorization made under Section 16
of Presidential Decree No. 1869. Be that as it may,
such classification is not absolute and all-
encompassing.
Prior to the passage of the aforestated Civil Service
Act of 1959, there were two recognized instances
when a position may be considered primarily
confidential: Firstly, when the President, upon
recommendation of the Commissioner of Civil
Service, has declared the position to be primarily
confidential; and, secondly, in the absence of such
declaration, when by the nature of the functions of the
office there exists "close intimacy" between the
appointee and appointing power which insures
freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust
or confidential matters of state.9
At first glance, it would seem that the instant case
falls under the first category by virtue of the express
mandate under Section 16 of Presidential Decree No.
1869. An in-depth analysis, however, of the second
category evinces otherwise.
When Republic Act No. 2260 was enacted on June
19, 1959, Section 5 thereof provided that "the non-
competitive or unclassified service shall be composed
of positions expressly declared by law to be in the
non-competitive or unclassified service or those which
are policy-determining, primarily confidential, or highly
technical in nature." In the case of Piero, et
al. vs. Hechanova, et al., 10 the Court obliged with a
short discourse there on how the phrase "in nature"
came to find its way into the law, thus:
The change from the original wording
of the bill (expressly declared by law .
. . to be policy-determining, etc.) to
that finally approved and enacted
("or which are policy-determining,
etc. in nature") came about because
of the observations of Senator
Taada, that as originally worded the
proposed bill gave Congress power to
declare by fiat of law a certain position
as primarily confidential or policy-
determining, which should not be the
case. The Senator urged that since-
the Constitution speaks of positions
which are "primarily confidential,
policy-determining or highly
technical in nature," it is notwithin the
power of Congress to declare what
positions are primarily confidential or
policy-determining. "It is
the nature alone of the position that
determines whether it is policy-
determining or primarily confidential."
Hence, the Senator further observed,
the matter should be left to the "proper
implementation of the laws, depending
upon the nature of the position to be
filled", and if the position is "highly
CSC-CES Cases 70
Public Corporation
confidential" then the President and
the Civil Service Commissioner must
implement the law.
To a question of Senator Tolentino,
"But in positions that involved both
confidential matters and matters which
are routine, . . . who is going to
determine whether it is primarily
confidential?" Senator Taada replied:
SENATOR TAADA: Well, at the first
instance, it is the appointing
power that determines that: the nature
of the position. In case
of conflict then it is the Court that
determines whether the position is
primarily confidential or not (Emphasis
in the original text).
Hence the dictum that, at least since the enactment of
the Civil Service Act of 1959, it is the nature of the
position which finally determines whether a position is
primarily confidential, policy-determining or highly
technical. And the Court in the aforecited case
explicity decreed that executive pronouncements,
such as Presidential Decree No. 1869, can be no
more than initial determinations that are not
conclusive in case of conflict. It must be so, or else it
would then lie within the discretion of the Chief
Executive to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now Section 2[3],
Article IX-B) of the Constitution. 11 In other words,
Section 16 of Presidential Decree No. 1869 cannot be
given a literally stringent application without
compromising the constitutionally protected right of an
employee to security of tenure.
The doctrinal ruling enunciated in Piero finds support
in the 1935 Constitution and was reaffirmed in the
1973 Constitution, as well as in the implementing
rules of Presidential Decree No. 807, or the Civil
Service Decree of the Philippines. 12 It may well be
observed that both the 1935 and 1973 Constitutions
contain the provision, in Section 2, Article XII-B
thereof, that "appointments in the Civil Service, except
as to those which are policy-determining, primarily
confidential, or highly technical in nature, shall be
made only according to merit and fitness, to be
determined as far as practicable by competitive
examination." Corollarily, Section 5 of Republic Act
No. 2260 states that "the non-competitive or
unclassified service shall be composed of positions
expressly declared by law to be in the non-
competitive or unclassified service or those which are
policy-determining, primarily confidential, or highly
technical in nature." Likewise, Section 1 of the
General Rules in the implementing rules of
Presidential Decree No. 807 states that
"appointments in the Civil Service, except as to those
which are policy-determining, primarily confidential, or
highly technical in nature, shall be made only
according to merit and fitness to be determined as far
as practicable by competitive examination." Let it here
be emphasized, as we have accordingly italicized
them, that these fundamental laws and legislative or
executive enactments all utilized the phrase "in

nature" to describe the character of the positions
being classified.
The question that may now be asked is whether
the Piero doctrine to the effect that
notwithstanding any statutory classification to the
contrary, it is still the nature of the position, as may be
ascertained by the court in case of conflict, which
finally determines whether a position is primarily
confidential, policy-determining or highly technical
is still controlling with the advent of the 1987
Constitution and the Administrative Code of
1987, 13 Book V of which deals specifically with the
Civil Service Commission, considering that from these
later enactments, in defining positions which are
policy-determining, primarily confidential or highly
technical, the phrase "in nature" was deleted. 14
We rule in the affirmative. The matter was clarified
and extensively discussed during the deliberations in
the plenary session of the 1986 Constitutional
Commission on the Civil Service provisions, to wit:
MR. FOZ. Which department of
government has the power or authority
to determine whether a position is
policy-determining or primarily
confidential or highly technical?
FR. BERNAS: The initial decision is
made by the legislative body or by the
executive department, but the final
decision is done by the court. 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. For
instance, we might have a case where
a position is created requiring that the
holder of that position should be a
member of the Bar and the law
classifies this position as highly
technical. However, the Supreme
Court has said before that a position
which requires mere membership in
the Bar is not a highly technical
position. Since the term "highly
technical" means something beyond
the ordinary requirements of the
profession, it is always a question of
fact.
MR. FOZ. Does not Commissioner
Bernas agree that the general rule
should be that the merit system or the
competitive system should be upheld?
FR. BERNAS. I agree that that should
be the general rule; that is why we are
putting this as an exception.
MR. FOZ. The declaration that certain
positions are policy-determining,
primarily confidential or highly
technical has been the source of
CSC-CES Cases 71
Public Corporation
practices which amount to the spoils
system.
FR. BERNAS. The Supreme Court
has always said that, but if the law of
the administrative agency says that a
position is primarily confidential when
in fact it is not, we can always
challenge that in court. It is not
enough that the law calls it primarily
confidential to make it such; it is the
nature of the duties which makes a
position primarily confidential.
MR. FOZ. The effect of a declaration
that a position is policy-determining,
primarily confidential or highly
technical as an exception is to
take it away from the usual rules and
provisions of the Civil Service Law and
to place it in a class by itself so that it
can avail itself of certain privileges not
available to the ordinary run of
government employees and officers.
FR. BERNAS. As I have already said,
this classification does not do away
with the requirement of merit and
fitness. All it says is that there are
certain positions which should not be
determined by competitive
examination.
For instance, I have just mentioned a
position in the Atomic Energy
Commission. Shall we require a
physicist to undergo a competitive
examination before appointment? Or a
confidential secretary or any position
in policy-determining administrative
bodies, for that matter? There are
other ways of determining merit and
fitness than competitive examination.
This is not a denial of the requirement
of merit and fitness (Emphasis
supplied). 15
It is thus clearly deducible, if not altogether apparent,
that the primary purpose of the framers of the 1987
Constitution in providing for the declaration of a
position as policy-determining, primarily confidential
or highly technical is to exempt these categories from
competitive examination as a means for determining
merit and fitness. It must be stressed further that
these positions are covered by security of tenure,
although they are considered non-competitive only in
the sense that appointees thereto do not have to
undergo competitive examinations for purposes of
determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be
gleaned from its questioned resolution wherein it
stated that "the declaration of a position as primarily
confidential if at all, merely exempts the position from
the civil service eligibility requirement." According,
the Piero doctrine continues to be applicable up to
the present and is hereby maintained. Such being the

case, the submission that PAGCOR employees have
been declared confidential appointees by operation of
law under the bare authority of CSC Resolution No.
91-830 must be rejected.
We likewise find that in holding that herein private
respondent is not a confidential employee,
respondent Court of Appeals correctly applied the
"proximity rule" enunciated in the early but still
authoritative case of De los Santos vs. Mallare, et
al., 16 which held that:
Every appointment implies confidence,
but much more than ordinary
confidence is reposed in the occupant
of a position that is primarily
confidential. The latter phrase denotes
not only confidence in the aptitude of
the appointee for the duties of the
office but primarily close intimacy
which insures freedom of intercourse
without embarrassment or freedom
from misgivings of betrayals of
personal trust or confidential matters
of state. . . . (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et
al., supra, the facts of which are substantially similar
to the case at bar, involving as it did employees
occupying positions in various capacities in the Port
Patrol Division of the Bureau of Customs. The Court
there held that the mere fact that the members of the
Port Patrol Division are part of the Customs police
force is not in itself a sufficient indication that their
positions are primarily confidential. After quoting the
foregoing passage from De los Santos, it trenchantly
declared:
As previously pointed out, there are no
proven facts to show that there is any
such close intimacy and trust between
the appointing power and the
appellees as would support a finding
that confidence was the primary
reason for the existence of the
positions held by them or for their
appointment thereto. Certainly, it is
extremely improbable that the service
demands any such close trust and
intimate relation between the
appointing official and, not one or two
members alone but the entire
Customs patrol (Harbor Police) force,
so that every member thereof can be
said to hold "primarily confidential"
posts. (Emphasis supplied).
It can thus be safely determined therefrom that the
occupant of a particular position could be considered
a confidential employee if the predominant reason
why he was chosen by the appointing authority was,
to repeat, the latter's belief that he can share a close
intimate relationship with the occupant which ensures
freedom of discussion, without fear of embarrassment
or misgivings of possible betrayal of personal trust or
confidential matters of state. Withal, where the
position occupied is remote from that of the
CSC-CES Cases 72
Public Corporation
appointing authority, the element of trust between
them is no longer predominant. 17
Several factors lead to the conclusion that private
respondent does not enjoy such "close intimacy" with
the appointing authority of PAGCOR which would
otherwise place him in the category of a confidential
employee, to wit:
1. As an Internal Security Staff member, private
respondent
routinely
a. performs duty assignments at the
gaming and/or non-gaming areas to
prevent irregularities, misbehavior,
illegal transactions and other
anomalous activities among the
employees and customers;
b. reports unusual incidents and
related observations/information in
accordance with established
procedures for infractions/mistakes
committed on the table and in other
areas;
c. coordinates with CCTV and/or
external security as necessary for the
prevention, documentation or
suppression of any unwanted
incidents at the gaming and non-
gaming areas;
d. acts as witness/representative of
Security Department during chips
inventory, refills, yields, card shuffling
and final shuffling;
e. performs escort functions during the
delivery of table capital boxes, refills
and shoe boxes to the respective
tables, or during transfer of yields to
Treasury. 18
Based on the nature of such functions of herein
private respondent and as found by respondent Court
of Appeals, while it may be said that honesty and
integrity are primary considerations in his appointment
as a member of the ISS, his position does not involve
"such close intimacy" between him and the appointing
authority, that is, the Chairman of PAGCOR, as would
insure "freedom from misgivings of betrayals of
personal trust." 19
2. Although appointed by the Chairman, ISS members
do not directly report to the Office of the Chairman in
the performance of their official duties. An ISS
member is subject to the control and supervision of an
Area Supervisor who, in turn, only implements the
directives of the Branch Chief Security Officer. The
latter is himself answerable to the Chairman and the
Board of Directors. Obviously, as the lowest in the
chain of command, private respondent does not enjoy
that "primarily close intimacy" which characterizes a
confidential employee.

3. The position of an ISS member belongs to the
bottom level of the salary scale of the corporation,
being in Pay Class 2 level only, whereas the highest
level is Pay Class 12.
Taking into consideration the nature of his functions,
his organizational ranking and his compensation level,
it is obviously beyond debate that private respondent
cannot be considered a confidential employee. As set
out in the job description of his position, one is struck
by the ordinary, routinary and quotidian character of
his duties and functions. Moreover, the modest rank
and fungible nature of the position occupied by private
respondent is underscored by the fact that the salary
attached to it is a meager P2,200.00 a month. There
thus appears nothing to suggest that private
respondent's position was "highly" or, much less,
"primarily" confidential in nature. The fact that,
sometimes, private respondent may handle ordinarily
"confidential matters" or papers which are somewhat
confidential in nature does not suffice to characterize
his position as primarily confidential. 20
In addition, the allegation of petitioners that PAGCOR
employees have been declared to be confidential
appointees in the case of Philippine Amusement and
Gaming Corporation vs. Court of Appeals, et al., ante,
is misleading. What was there stated is as follows:
The record shows that the separation
of the private respondent was done in
accordance with PD 1869, which
provides that the employees of the
PAGCOR hold confidential positions.
Montoya is not assailing the validity of
that law. The act that he is questioning
is what he calls the arbitrary manner
of his dismissal thereunder that he
avers entitled him to damages under
the Civil Code. (Emphasis ours).
Thus, the aforecited case was decided on the
uncontested assumption that the private respondent
therein was a confidential employee, for the simple
reason that the propriety of Section 16 of Presidential
Decree No. 1869 was never controverted nor raised
as an issue therein. That decree was mentioned
merely in connection with its provision that PAGCOR
employees hold confidential positions. Evidently,
therefore, it cannot be considered as controlling in the
case at bar. Even the fact that a statute has been
accepted as valid in cases where its validity was not
challenged does not preclude the court from later
passing upon its constitutionality in an appropriate
cause where that question is squarely and properly
raised. Such circumstances merely reinforce the
presumption of constitutionality of the law. 21
WHEREFORE, the impugned judgment of respondent
Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 138756 August 1, 2002
CSC-CES Cases 73
Public Corporation
PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, petitioner,
vs.
RAFAEL M. SALAS, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
In Civil Service Commission and PAGCOR vs. Rafael
M. Salas,1 we affirmed the decision dated September
14, 1995, issued by the Court of Appeals in CA-G.R.
SP No. 38319,2 which ruled that herein respondent
Rafael M. Salas, not being a confidential employee,
cannot be dismissed on ground of loss of confidence.
Consequently, petitioner Philippine Amusement and
Gaming Corporation (PAGCOR) was ordered to
reinstate respondent with full back wages, but without
prejudice to the filing of administrative charges
against him if warranted.3
Now before the Court is a petition for review filed by
the Office of the Solicitor General, in behalf of
petitioner PAGCOR, seeking to annul the following:
(1) Resolution dated November 9, 1998, upholding
respondents entitlement to back wages regardless of
the outcome of the administrative case against him;4
(2) Resolution dated February 16, 1999, denying
petitioners Motion for Reconsideration dated
December 1, 1998;5and
(3) Resolution dated May 13, 1999, denying
petitioners Motion for Reconsideration dated
February 26, 1999.6
all issued by the Court of Appeals in the said CA-G.R.
SP No. 38319.
The facts are as follows:
Respondent Rafael M. Salas was employed as
petitioners Internal Security Staff (ISS) member and
assigned to the casino at the Manila Pavilion Hotel.
On December 3, 1991, petitioners Board of Directors
terminated respondent from employment for loss of
confidence because he engaged in proxy betting. He
appealed to the Chairman and the Board of Directors,
requesting reinvestigation of the case, but was
denied. Respondent appealed to the Merit and
System Protection Board (MPSB), but it was denied
on the ground that being a confidential employee, he
was not dismissed from service but his term of office
merely expired. On appeal to the Civil Service
Commission (CSC), the MPSBs decision was
affirmed per Resolution No. 92-1283.
Respondent filed with this Court a petition
for certiorari, docketed as G. R. No. 107586, which
we referred to the Court of Appeals.7 The appellate
court set aside the CSC resolution in its decision,
dated September 14, 1995, ruling that petitioner could
be removed only for cause and after due process.
The dispositive portion of said decision reads:

"WHEREFORE, the petition for certiorari
is GRANTED. The assailed Resolution No. 92-1283
of the respondent Civil Service Commission
is REVERSED and SET ASIDE, and a new one
entered DIRECTING the respondent PAGCOR to
reinstate the petitioner to his position in the Internal
Security Staff with full payment of back wages for the
period he was separated from the service until his
reinstatement, without prejudice to the filing of
administrative charges against him if warranted.
"SO ORDERED."8 (italics supplied)
On petition for review (docketed as G.R. No. 123708)
with this Court, we affirmed the decision of the
appellate court per our Decision dated June 19, 1997
which became final and executory on August 25,
1997.9 Respondent filed a motion for execution with
the CSC requesting his reinstatement with full back
wages.
Pending resolution of his motion by the CSC,
PAGCOR effected respondents reinstatement on
November 3, 199710, but imposed on him a 90-day
preventive suspension pending investigation of the
administrative complaint, docketed as Admin. Case
No. 1-1-98, for "grave misconduct, dishonesty,
violation of company rules and regulations, and
conduct grossly prejudicial to the best interests of the
service", PAGCOR filed against him.
In the meantime, the CSC ruled that the proper
authority to issue the writ of execution is this Court.
Accordingly, respondent filed a Motion for Clarification
with us, praying that a resolution be issued clarifying
whether or not he is entitled to payment of full back
wages from the time of his separation up to his
reinstatement on November 3, 1997.11
A Resolution was then issued by this Court ordering
the remand of the records of the case to the CSC,
through the Court of Appeals, for it to conduct such
hearing as may be necessary for the issuance of the
writ. Respondent then filed another motion for
execution with the CSC. However, before his motion
can be resolved, petitioner rendered a resolution in
Admin. Case No. 1-1-98 ordering respondents
dismissal from service. The dispositive portion of said
Resolution reads:
"In view of all the foregoing, the Adjudication
Committee is recommending, as it hereby
recommends, to the Board of Directors of PAGCOR,
that the dismissal of respondent RAFAEL SALAS
from the service be confirmed, said dismissal to
retroact to the date of the commission of the
offense. By virtue of respondents serious misdeeds
as established in this case, the respondent is no
longer entitled to backwages from June 1991 to
February 1998. This is in consonance with the
following well-established legal principles; one, that
no equitable or legal basis exists for the payment of
backwages as the respondent was not exonerated of
the charges against him, and two, that he did not
render any work for the period stipulated. (emphasis
ours)
CSC-CES Cases 74
Public Corporation
"Respectfully submitted."12 (emphasis ours)
The recommendation was approved by the Board of
Directors in its meeting held on February 17,
1998.13Respondents motion for reconsideration was
denied. He appealed to the CSC on March 25, 1998.
On even date, respondent received a copy of the
CSCs resolution of his motion for execution, which
reads in part:
"x x x The Commission believes that Administrative
Case No. 1-1-98 filed by PAGCOR against Salas is
not an obstacle to the implementation of the decision
of the Court of Appeals, as affirmed by the Supreme
Court, unless said case has already been decided by
PAGCOR and the decision is not in Salas favor."14
On October 1, 1998, the CSC dismissed respondents
appeal, hence, the latter filed a petition for review with
the Court of Appeals, docketed as CA-G.R. SP No.
49704, which was denied for being insufficient in form
and substance. The appellate court likewise denied
PAGCORs motion for reconsideration.
Meanwhile, the Court of Appeals in CA-G.R. SP No.
38319, resolving our referral of respondents motion
for clarification, issued the first assailed Resolution
dated November 9, 1998, portions of which read:
"The Civil Service Law and Rules provide that no
officer or employee in the Civil Service shall be
removed or suspended except for cause as provided
by law and after due process. (Pls. see Sec. 36, P.D.
807 and Sec. 1, Rule XIV of the Omnibus Rules
Implementing the Civil Service Law.)
"The filing of an administrative case against the
petitioner is the requisite due process which
must precede his removal if warranted. The
phrase after due process is an indication that
any removal or dismissal may be made only
prospectively and not retrospectively. Hence, if
sufficient cause is found against the petitioner for
his dismissal or removal from the service, the
same cannot retroact to a date before the filing of
an administrative case against him.
"In view thereof, we believe and so hold that the
petitioner is entitled to backwages before the
effectivity of his dismissal -- even granting that the
same might be upheld with finality.
"Let the parties be guided accordingly.
"SO ORDERED."15 (emphasis ours)
Petitioner filed a motion for reconsideration but it was
denied by the appellate court per the second assailed
Resolution dated February 16, 1999 for having been
filed out of time.16
Petitioner then filed a motion for reconsideration of
the Resolution dated February 16, 1999, explaining
that the tardiness in the filing of the previous motion
was due to "some confusion". The motion was denied

by the appellate court per the third assailed
Resolution dated May 13, 1999.17
Hence, herein petition for review on certiorari under
Rule 45 of the Rules of Court, anchored on the
following grounds:
"I
"THE COURT OF APPEALS DECIDED A QUESTION
OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW AND APPLICABLE DECISIONS OF THIS
HONORABLE COURT;
"II
"THE COURT OF APPEALS DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS AS TO CALL FOR AN EXERCISE
OF THIS HONORABLE COURTS POWER OF
SUPERVISION, BECAUSE:
"A. THE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT RAFAEL
SALAS IS ENTITLED TO THE PAYMENT OF
BACKWAGES BEFORE THE EFFECTIVITY
OF HIS DISMISSAL REGARDLESS OF THE
FINAL OUTCOME OF THE
ADMINISTRATIVE CASE AGAINST HIM.
"B. THE COURT OF APPEALS ERRED IN
DISMISSING PETITIONER PAGCORS
MOTION FOR RECONSIDERATION WHICH
RAISES VALID AND MERITORIOUS
GROUNDS DUE TO TECHNICALITY OF
DELAY THAT AROSE OUT OF GOOD FAITH
AND HONEST MISTAKE."18
Petitioner insists that the appellate courts decision
ordering respondents reinstatement with backwages
but "without prejudice to the filing of administrative
charges against him if warranted," connotes that
respondent is not entitled anymore to his backwages
because he was subsequently found to be guilty of
the administrative charges against him19 ; that the
appellate courts resolution holding that respondent
should be given his backwages regardless of the
outcome of the administrative case against him
contravenes the principle that backwages are allowed
if an employee is found innocent of the charges20 ; and
that the appellate court should not have applied
technical rules of procedure in dismissing its motion
for reconsideration as the delay in the filing was due
to an honest mistake.21
The petition is bereft of merit.
It is already a settled rule that back wages may be
granted to those who have been illegally dismissed
and consequently ordered reinstated, or to those
acquitted of the charge against them.22
As earlier stated, respondent was found to have been
illegally dismissed by petitioner in Civil Service
Commission and PAGCOR vs. Rafael M.
Salas,23 wherein we ruled that respondent, not being a
CSC-CES Cases 75
Public Corporation
confidential employee of petitioner, can only be
removed for cause and after due process. Hence, for
all legal intents and purposes, the first dismissal
effected by petitioner had no legal force and effect,
and respondents tenure of office was never
interrupted.24 As held in Del Castillo vs. Civil Service
Commission:
"When an official or employee was illegally dismissed
and his reinstatement has later been ordered, for all
legal purposes he is considered as not having left his
office. Therefore, he is entitled to all the rights and
privileges that accrue to him by virtue of the office he
held. (Taada v. Legaspi, 13 SCRA 566 [1965]).
"Back salaries may be ordered paid to said officer or
employee (City Mayor of Zamboanga v. Court of
Appeals, 182 SCRA 785 [1990])." 25
Respondents subsequent finding of guilt in Admin.
Case No. 1-1-98 bears no consequence as said case
is distinct and separate from the first charge. It must
be noted that the first charge was founded on proxy
betting, an entirely different ground as those involved
in Admin. Case No. 1-1-98,26 although both cases
were based on the same set of facts. Also, unlike in
the cases cited by petitioner, the proceedings in
Admin. Case No. 1-1-98 is not a continuation or a part
of the proceedings in the first charge. In fact, after
respondent was held to have been illegally dismissed
in Civil Service Commission and PAGCOR
vs. Rafael M. Salas, it was as if he was not dismissed
from service at all, and Admin. Case No. 1-1-98 is
deemed to be his first charge. Prior thereto, he is
considered to have been in petitioners continuous
service, and entitled to all the rights and privileges his
position enjoys. This is but the natural consequence
of the Courts finding of illegal dismissal.
1wphi 1
The Court agrees with the appellate court that the
subsequent dismissal cannot retroact to a date prior
to the filing of an administrative case against
respondent. As aptly stated by the appellate court:
"The filing of an administrative case against the
petitioner is the requisite due process which must
precede his removal if warranted. The phrase after
due process is an indication that any removal or
dismissal may be made only prospectively and not
retrospectively. Hence, if sufficient cause is found
against the petitioner for his dismissal or removal from
the service, the same cannot retroact to a date before
the filing of an administrative case against him."27
Having been illegally dismissed, respondent,
therefore, is entitled to back wages from the time he
was illegally dismissed from service on December 3,
1991 until his reinstatement on November 3, 1997,
but not to exceed five years pursuant to the
pronouncement of this Court in a long line of cases.28
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED for lack of merit and the
Resolutions dated November 9, 1998, February 16,
1999 and May 13, 1999 issued in CA-G.R. SP No.
38319 are AFFIRMED.

No costs.
SO ORDERED.
SECOND DIVISION
G.R. No. 141141 June 25, 2001
PHILIPPINE AMUSEMENT AND GAMING
CORPORATION (PAGCOR), petitioner,
vs.
CARLOS P. RILLORAZA, respondent.
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying
for the reversal of the Decision dated August 31,
19991 as well as the Resolution dated November 29,
1999, rendered by the Court of Appeals in CA-G.R.
SP No. 51803.
The facts are undisputed:
On November 5, 1997, 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 PHILIPPINE AMUSEMENT AND GAMING
CORPORATION (PAGCOR). Respondent allegedly
committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations
of casino and regulations committed by co-
officers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.2:00
p.m. on October 9, 1997, four (4)
personal checks with a total value of
Pesos: Five Million (P5,000,000) were
issued by a small-time financier/player
and were facilitated by a COM with the
Treasury Division which enabled the
small-time financier/player to withdraw
and receive said amount. The
facilitation of the checks was not
authorized by the Senior Branch
Manager (SBM) or the Branch
Manager for Operations (BMO) and
the COM who facilitated the checks
was not on duty then.
2. He even facilitated one (1) of the
personal checks with a value of
Pesos: Five Hundred Thousand
(P500,000.00).
3. 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
CSC-CES Cases 76
Public Corporation
to play beyond the allowable time limit
of 6:00 a.m.
Respondent duly filed his answer during an
investigation conducted by petitioners Corporate
Investigation Unit. He narrated the events that
transpired:
"When I reported for my 6:00 a.m. to 2:00
p.m. shift, on October 9, that morning I saw
BM RICHARD SYHONGPAN beside TABLE
#22 (BB) sitting at a coffee table inside Area
3. While inside the Area 3, GAM RENE
QUITO approached me with a check worth
P500,000.00 requested by a customer for
endorsement to the Treasury. Since Ive been
out of Manila branch for 2 years and Ive just
been recalled to this branch for only more
than 3 weeks, Im not quite familiar with the
systems and I dont know this customer. I
immediately approached COM CARLOS
GONZALES, who at that time was still around,
to verify regarding the said check and his
immediate reply was "ITS OKAY AND GOOD
AND IT WAS GUARANTEED BY BM
SYHONGPAN. In fact, I reconfirmed it again
with COM GONZALES since he is more
familiar with the systems and customers, he
answered me the same. So I gave the
approval to GAM QUITO for endorsement.
When I went in the office, I instructed OOS
GILBERT CABANA to beep SBM VIC
ADVINCULA and BMO DARIO CORDERO to
call office "ASAP" because I wanted to relay
this matter to them and there were no reply
from both of them. I instructed OOS CABANA
to send messages again to SBM & BMO, but
still I received no reply. It was until after
noontime that BMO CORDERO returned my
call and I reported the incident to him. When I
was at home at around 3:30 p.m. SBM
ADVINCULA returned my call and I reported
the incident. I also relayed the incident to SBM
REYES.
While during my rounds, I went down to the
New VIP area and there I saw BM
SYHONGPAN sitting at TABLE #3(BB) and he
was holding house cards at that time. I
approached and stopped him but he reacted
that the bet was not his but to a
CUSTOMERS. I took his words because as a
subordinate, I respected him as one of our
superior who very well know all our companys
policy esp. that an officer is not allowed to
play at BIG table and are only allowed to bet
with a maximum of P5,000.00 only. So I
believe it was not his bet but the said
customer. At that time there was no way for
me to stop the game because I saw the said
customer, named MS. CORAZON CASTILLO,
whom I dont know her [sic] since I was out of
Manila Branch 2 years, and whom BM
SYHONGPAN was referring to as the player,
has a lot of chips worth about P7 Million in
front of her and was betting P1.5M on the
banker side which was over the maximum

table limit by P500,000.00. I know we are
allowed to authorize approval by raising the
betting limits as per request of the playing
customers.
After the game, the chips were encashed and
I instructed GAM J. EUGENIO to accompany
BM SYHONGPAN to his room because he
was too drunk. When I was doing my rounds
again, thats how I found out from rumors
within the gaming areas that this MS.
CASTILLO was used by BM SYHONGPAN
and COM GONZALES to played [sic] in behalf
of them the whole time. And I also learned
that there were four checks endorsed during
my shift which I facilitated only one check
worth P500,000.00 after I verified and
confirmed it with COM GONZALES. With
regards to the other 3 checks, I have no
knowledge about it since they, BM
SYHONGPAN and COM GONZALES, kept it
a secret from me. When GAM EUGENIO
returned from the room of BM SYHONGPAN
he handed me some cash, which according to
him, was given by BM SYHONGPAN as
BALATO. I did not accept the money
because at that moment I was so mad that
they involved me beyond my innocence since
I am new in the branch. I then instructed GAM
EUGENIO to return the money to BM
SYHONGPAN. (sic)
Finding Rillorazas explanation unsatisfactory, the
PAGCOR Board handed down a Resolution on
December 2, 1997 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,
effective December 5, 1997. The Board also denied
respondents motion for reconsideration in a
Resolution dated December 16, 1997.
Respondent appealed to the Civil Service
Commission. On November 20, 1998, the
Commission issued Resolution No. 983033,2 the
dispositive portion of which provides, to wit:
WHEREFORE, the appeal of Carlos P.
Rilloraza is hereby dismissed. However, the
Commission finds appellant guilty only of
Simple Neglect of Duty and metes out upon
him the penalty of one month and one day
suspension. The assailed Resolution of
PAGCOR Board of Directors is thus modified.
The Commission denied petitioners motion for
reconsideration in Resolution No. 990465 dated
February 16, 1999.3
On appeal, the 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
CSC-CES Cases 77
Public Corporation
reconsideration,5 which was denied by the appellate
court in the assailed resolution of November 29,
1999.6
Hence, the instant petition.
PAGCOR avers that:
I
THE COURT OF APPEALS GRAVELY
ERRED WHEN IT FAILED AND REFUSED
TO CONSIDER THAT RESPONDENT WAS A
CONFIDENTIAL APPOINTEE OR
EMPLOYEE WHOSE TERM HAD EXPIRED
BY REASON OF LOSS OF CONFIDENCE.
II
THE COURT OF APPEALS GRAVELY
ERRED WHEN IT AFFIRMED THE CSC
RESOLUTIONS MODIFYING THE PENALTY
METED OUT ON RESPONDENT FROM
DISMISSAL TO SUSPENSION, DESPITE
THE GRAVITY OR SERIOUSNESS OF THE
OFFENSES COMMITTED BY THE LATTER
ON ACCOUNT OF THE EXTRAORDINARY
RESPONSIBILITIES AND DUTIES
REPOSED IN THE RESPONDENT BY
VIRTUE OF HIS POSITION.
The wellspring of stability in government service is the
constitutional guarantee of entrance according to
merit and fitness and security of tenure, viz:
xxx xxx xxx
(2) Appointments in the civil service shall be
made only according to merit and fitness to be
determined, as far as practicable, and, except
to positions which are policy-determining,
primarily confidential, or highly technical, by
competitive examination.
(3) No officer or employee of the civil service
shall be removed or suspended except for
cause provided by law.7
xxx xxx xxx
In the case at bar, we are basically asked to
determine if there is sufficient cause to warrant the
dismissal, not merely the suspension, of respondent
who, petitioner maintains, occupies a primarily
confidential position. In this connection, Section 16 of
Presidential Decree No. 18698 provides:
Exemption.All positions in the Corporation,
whether technical, administrative, professional
or managerial are exempt from the provisions
of the Civil Service Law, rules and regulations,
and shall be governed only by the personnel
management policies set by the Board of
Directors. All employees of the casinos and
related services shall be classified as
"Confidential" appointee.

Petitioner argues that pursuant to the aforequoted
provision, 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. However, there should be no lingering
doubt as to the true import of said Section 16 of P.D.
No. 1869. We have already definitively settled the
same issue in Civil Service Commission v. Salas,9 to
wit:
In reversing the decision of the CSC, the
Court of Appeals opined that the provisions of
Section 16 of Presidential Decree No. 1869
may no longer be applied in the case at bar
because the same is deemed to have been
repealed in its entirety by Section 2(1), Article
IX-B of the 1987 Constitution. This is not
completely correct. On this point, we approve
the more logical interpretation advanced by
the CSC to the effect that "Section 16 of PD
1869 insofar as it exempts PAGCOR positions
from the provisions of Civil Service Law and
Rules has been amended, modified or
deemed repealed by the 1987 Constitution
and Executive Order No. 292 (Administrative
Code of 1987).
However, the same cannot be said with
respect to the last portion of Section 16 which
provides that "all employees of the casino and
related services shall be classified as
confidential appointees." While such
executive declaration emanated merely from
the provisions of Section 2, Rule XX of the
Implementing Rules of the Civil Service Act of
1959, the power to declare a position as
policy-determining, primarily confidential or
highly technical as defined therein has
subsequently been codified and incorporated
in Section 12(9), Book V of Executive Order
No. 292 or the Administrative Code of 1987.
This later enactment only serves to bolster the
validity of the categorization made under
Section 16 of Presidential Decree No. 1869.
Be that as it may, such classification is not
absolute and all-encompassing.
Prior to the passage of the aforestated Civil
Service Act of 1959, there were two
recognized instances when a position may be
considered primarily confidential: Firstly, when
the President, upon recommendation of the
Commissioner of Civil Service, has declared
the position to be primarily confidential;
and, secondly, in the absence of such
declaration, when by the nature of the
functions of the office there exists "close
intimacy" between the appointee and
appointing power which insures freedom of
intercourse without embarrassment or
freedom from misgivings of betrayals of
personal trust or confidential matters of state.
At first glance, it would seem that the instant
case falls under the first category by virtue of
CSC-CES Cases 78
Public Corporation
the express mandate under Section 16 of
Presidential Decree No. 1869. An in-depth
analysis, however, of the second category
evinces otherwise.
When Republic Act No. 2260 was enacted on
June 19, 1959, Section 5 thereof provided that
"the non-competitive or unclassified service
shall be composed of positions expressly
declared by law to be in the non-competitive
or unclassified service or those which are
policy-determining, primarily confidential, or
highly technical in nature." In the case
of Piero, et al. vs. Hechanova, et al., the
Court obliged with a short discourse there on
how the phrase "in nature" came to find its
way into the law, thus:
"The change from the original wording
of the bill (expressly declared by law x
x x to be policy-determining, etc.) to
that finally approved and enacted
(or which are policy determining,
etc. in nature) came about because of
the observations of Senator Taada,
that as originally worded the proposed
bill gave Congress power to declare
by fiat of law a certain position as
primarily confidential or policy-
determining, which should not be the
case. The Senator urged that since
the Constitution speaks of positions
which are primarily confidential,
policy-determining or highly
technical in nature, it is not within the
power of Congress to declare what
positions are primarily confidential or
policy-determining. It is
the nature alone of the position that
determines whether it is policy-
determining or primarily confidential.
Hence, the Senator further observed,
the matter should be left to the proper
implementation of the laws, depending
upon the nature of the position to be
filled, and if the position is highly
confidential then the President and
the Civil Service Commissioner must
implement the law.
To a question of Senator Tolentino,
But in positions that involved both
confidential matters and matters which
are routine, x x x who is going to
determine whether it is primarily
confidential? Senator Taada replied:
SENATOR TAADA: Well, at
the first instance, it is
the appointing power that
determines that: the nature of
the position. In case
of conflict then it is the
Court that determines whether
the position is primarily
confidential or not." xxx

Hence the dictum that, at least since the
enactment of the Civil Service Act of 1959, it
is the nature of the position which finally
determines whether a position is primarily
confidential, policy-determining or highly
technical. And the Court in the aforecited case
explicitly decreed that executive
pronouncements, such as Presidential Decree
No. 1869, can be no more than initial
determinations that are not conclusive in case
of conflict. It must be so, or else it would then
lie within the discretion of the Chief Executive
to deny to any officer, by executive fiat, the
protection of Section 4, Article XII (now
Section 2[3], Article IX-B) of the Constitution.
In other words, Section 16 of Presidential
Decree No. 1869 cannot be given a literally
stringent application without compromising the
constitutionally protected right of an employee
to security of tenure.[italics supplied]
The doctrinal ruling enunciated in Piero finds
support in the 1935 Constitution and was
reaffirmed in the 1973 Constitution, as well as
in the implementing rules of Presidential
Decree No. 807, or the Civil Service Decree of
the Philippines. It may well be observed that
both the 1935 and 1973 Constitutions contain
the provision, in Section 2, Article XII-B
thereof, that "appointments in the Civil
Service, except as to those which are policy-
determining, primarily confidential, or highly
technical in nature, shall be made only
according to merit and fitness, to be
determined as far as practicable by
competitive examination." Corollarily, Section
5 of Republic Act No. 2260 states that "the
non-competitive or unclassified service shall
be composed of positions expressly declared
by law to be in the non-competitive or
unclassified service or those which are policy-
determining, primarily confidential, or highly
technical in nature." Likewise, Section 1 of the
General Rules in the implementing rules of
Presidential Decree No. 807 states that
"appointments in the Civil Service, except as
to those which are policy-determining,
primarily confidential, or highly technical in
nature, shall be made only according to merit
and fitness to be determined as far as
practicable by competitive examination." Let it
be here emphasized, as we have accordingly
italicized them, that these fundamental laws
and legislative or executive enactments all
utilized the phrase "in nature" to describe the
character of the positions being classified.1w phi 1.nt
The question that may now be asked is
whether the Piero doctrineto the effect that
notwithstanding any statutory classification to
the contrary, it is still the nature of the
position, as may be ascertained by the court
in case of conflict, which finally determines
whether a position is primarily confidential,
policy-determining or highly technicalis still
controlling with the advent of the 1987
Constitution and the Administrative Code of
CSC-CES Cases 79
Public Corporation
1987, Book V of which deals specifically with
the Civil Service Commission, considering that
from these later enactments, in defining
positions which are policy-determining,
primarily confidential or highly technical, the
phrase "in nature" was deleted.
We rule in the affirmative. The matter was
clarified and extensively discussed during the
deliberations in the plenary session of the
1986 Constitutional Commission on the Civil
Service provisions, to wit:
"MR. FOZ: Which department of
government has the power or authority
to determine whether a position is
policy-determining or primarily
confidential or highly technical?
FR. BERNAS: The initial decision is
made by the legislative body or by the
executive department, but the final
decision is done by the court. 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. For
instance, we might have a case where
a position is created requiring that the
holder of that position should be a
member of the Bar and the law
classifies this position as highly
technical. However, the Supreme
Court has said before that a position
which requires mere membership in
the Bar is not a highly technical
position. Since the term highly
technical means something beyond
the ordinary requirements of the
profession, it is always a question of
fact.
MR. FOZ: Does not Commissioner
Bernas agree that the general rule
should be that the merit system or the
competitive system should be upheld?
FR. BERNAS: I agree that that should
be the general rule; that is why we are
putting this as an exception.
MR. FOZ: The declaration that certain
positions are policy-determining,
primarily confidential or highly
technical has been the source of
practices which amount to the spoils
system.
FR. BERNAS: The Supreme Court
has always said that, but if the law of
the administrative agency says that a
position is primarily confidential when
in fact it is not, we can always
challenge that in court. It is not
enough that the law calls it primarily

confidential to make it such; it is the
nature of the duties which makes a
position primarily confidential.
MR. FOZ: The effect of a declaration
that a position is policy-determining,
primarily confidential or highly
technicalas an exceptionis to take
it away from the usual rules and
provisions of the Civil Service Law and
to place it in a class by itself so that it
can avail itself of certain privileges not
available to the ordinary run of
government employees and officers.
FR. BERNAS: As I have already said,
this classification does not do away
with the requirement of merit and
fitness. All it says is that there are
certain positions which should not be
determined by competitive
examination.
For instance, I have just mentioned a position
in the Atomic Energy Commission. Shall we
require a physicist to undergo a competitive
examination before appointment? Or a
confidential secretary or any position in policy-
determining administrative bodies, for that
matter? There are other ways of determining
merit and fitness than competitive
examination. This is not a denial of the
requirement of merit and fitness."
It is thus clearly deducible, if not altogether
apparent, that the primary purpose of the
framers of the 1987 Constitution in providing
for the declaration of a position as policy-
determining, primarily confidential or highly
technical is to exempt these categories from
competitive examination as a means for
determining merit and fitness. It must be
stressed further that these positions are
covered by security of tenure, although they
are considered non-competitive only in the
sense that appointees thereto do not have to
undergo competitive examinations for
purposes of determining merit and
fitness. [italics supplied]
In fact, the CSC itself ascribes to this view as
may be gleaned from its questioned resolution
wherein it stated that "the declaration of a
position as primarily confidential if at all,
merely exempts the position from the civil
service eligibility requirement." Accordingly,
the Piero doctrine continues to be applicable
up to the present and is hereby maintained.
Such being the case, the submission that
PAGCOR employees have been declared
confidential appointees by operation of law
under the bare authority of CSC Resolution
No. 91-830 must be rejected.
Justice Regalados incisive discourse yields three (3)
important points: first, the classification of a particular
position as primarily confidential, policy-determining
CSC-CES Cases 80
Public Corporation
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.
Considerations vary so as to make a position primarily
confidential. Private secretaries are indisputably
primarily confidential employees.10 Those tasked to
provide personal security to certain public officials
have also been deemed to hold primarily confidential
positions11 for obvious reasons: the former literally are
responsible for the life and well-being of the latter.
Similar treatment was accorded to those occupying
the posts of city legal officer12 and provincial
attorney,13 inasmuch as the highly privileged nature of
the lawyer-client relationship mandates that complete
trust and confidence must exist betwixt them. National
interest has also been adjudged a factor, such that
the countrys permanent representative to the United
Nations was deemed to hold her post at the pleasure
of the Chief Executive.14
As casino operations manager, Rillorazas duties and
responsibilities are:
JOB SUMMARY: The Casino Operations
Manager directs, 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.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs
and plans of action for branch gaming
operations in order to optimize
revenue.
2. Institutes and maintains a healthy,
organized, mentally alert, and highly
motivated human resource for
effective and efficient branch gaming
operations performance.
3. Takes measures to maintain and
uphold the integrity of the casino
games.
4. Reviews, analyzes, and evaluates
gaming table and slot machine
operations reports, including income
performance.
5. Submits periodic reports to the
Branch Manager.

6. Directs the opening and closing of
gaming table and slot machine areas.
7. Directs the setting-up, closure or
suspension of operations of gaming
tables and slot machine units when
deemed necessary.
8. Controls the requisition, storage,
and issuance of playing cards, gaming
equipment and paraphernalia,
operations keys, and accountable
receipts and slips.
9. Ensures that gaming operations
personnel adhere to the established
House Rules, company policies and
procedures.
10. Ensures that quality and efficient
service is extended to casino patrons
in accordance with the established
House Rules, company policies and
procedures.
11. Directs and controls all activities of
the Card Shuffling Center and the
Card Distribution Room.
12. Issues directives, memoranda,
and other official communications on
branch gaming operations matters.
13. Directs the daily and periodic
performance evaluation of operations
personnel.
14. Requires written statements from
operations personnel regarding
disputes, reported irregularities and
violations of House Rules, company
policies and procedures.
15. Issues or recommends disciplinary
sanctions against delinquent
operations personnel, as well as
commendations to deserving ones.
16. Upon the Branch Managers
approval, issues preventive
suspension to erring employees
pending investigation.
17. Effects immediate changes in
House Rules when deemed
necessary, subject to management
review.
18. Approves table refill, chip yield,
and dropbox yield transactions, as
well as the payment for progressive
link super jackpot awards.
19. Directs the cancellation of
progressive link super jackpot
combinations.
CSC-CES Cases 81
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20. Signs chip checks in behalf of the
Branch Manager.
21. Approves complimentary food and
beverages to deserving players and
evaluates the same for the possible
extension of other amenities.
22. Settles disputes arising from
gaming operations that have not been
effectively settled by gaming
managers and supervisors, and
enforces decisions on the
interpretation of House Rules,
company policies, and procedures.
23. Recommends to the Branch
Manager the banning of undesirable
players.
24. Orders the removal of customers
or employees from the table gaming
(sic) and slot machine area for
justifiable reasons.
25. Implements contingency plans in
case of emergencies to ensure the
security and safety of customers and
staff.
26. Acts on customer complaints,
suggestions, and observations.
27. Chairs the Branch Infractions
Committee, the Variance Committee,
and other ad hoc committees of the
Operations Division.
28. Represents the Operations
Division in Branch Management panel
meetings.
29. Apprises the Branch Manager of
any incident of doubtful nature and of
developments that require his
immediate attention.
30. Performs other duties as may be
designated by the Branch Manager.
Undoubtedly, respondents 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:
for instance, PAGCORs Internal Security
Staff;15 Management and Audit Analyst I of the
Economic Intelligence and Investigation Bureau;16 a
Special Assistant to the Governor of the Central
Bank;17 the Legal Staff of the Provincial
Attorney;18 members of the Customs Police;19 the
Senior Executive Assistant, Clerk I, Supervising Clerk
I and Stenographer;20 and a Provincial
Administrator.21 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. Verily, we have
observed that:
[i]ndeed, physicians handle confidential
matters. Judges, fiscals and court
stenographers generally handle matters of
similar nature. The Presiding and Associate
Justices of the Court of Appeals sometimes
investigate, by designation of the Supreme
Court, administrative complaints against
judges of first instance, which are confidential
in nature. Officers of the Department of
Justice, likewise, investigate charges against
municipal judges. Assistant Solicitors in the
Office of the Solicitor General often
investigate malpractice charges against
members of the Bar. All of these are
"confidential" matters, but such fact does not
warrant the conclusion that the office or
position of all government physicians and all
Judges, as well as the aforementioned
assistant solicitors and officers of the
Department of Justice are primarily
confidential in character.22
We further note that a casino operations manager
reports directly to the Branch Manager or, in Metro
Manila branches, to the Branch Manager for
Operations. It does not appear from the record to
whom the Branch Manager (or the Branch Manager
for Operations, as the case may be) reports. It
becomes unmistakable, though, that the stratum
separating the casino operations manager from
reporting directly to the higher echelons renders
remote the proposition of proximity between
respondent and the appointing power. There is no
showing of that element of trust indicative of a
primarily confidential position, as we defined it in De
los Santos v. Mallare,23 to wit:
Every appointment implies confidence, but
much more than ordinary confidence is
reposed in the occupant of a position that is
primarily confidential. The latter phrase
denotes not only confidence in the aptitude of
the appointee for the duties of the office but
primarily close intimacy which insures
freedom of intercourse without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential
matters of state.
Necessarily, the point of contention now is whether
there was cause for the respondents separation from
the service. On this point, having analyzed both
parties arguments, we find that the Civil Service
Commission did not err in declaring that Rilloraza was
liable only for simple neglect of duty. In the first place,
there is no evidence to sustain a charge of
dishonesty. As the latter term is understood, it implies
a:
CSC-CES Cases 82
Public Corporation
Disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity. Lack of
honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition
to defraud, deceive or betray.24
In the case at bar, respondents explanation fails to
evince an inclination to lie or deceive, or that he is
entirely lacking the trait of straightforwardness. We
concur with the appellate courts finding, thus:
Available proof unmistakably demonstrate that
upon seeing BM Syhongpan playing at Table
No. 3BB, respondent Rilloraza at once, told
him to stop. However, Syhongpan explained
that he was merely playing for a customer,
Ms. Corazon Castillo who was seated also at
the table. After observing the large number of
chips in front of Ms. Castillo estimated at
around P7M, respondent became convinced
of the clarification given by Branch Manager
Syhongpan and he must have relied also on
the word of said top ranking PAGCOR official
whose representation must ordinarily be
accepted and accorded respect and credence
by a subordinate like him. xxx
More importantly, the PAGCOR Adjudication
Committee concluded that respondent actually
attempted to stop the game where Syhongpan
was playing which was even utilized as basis
by the PAGCOR Board in dismissing
respondent. xxx
xxx xxx xxx xxx
The allegation that respondent Rilloraza
allowed Syhongpan to place bets over and
above the allowable limit of P5,000.00 per
deal is not anchored on a correct premise.
Respondent Rilloraza has steadfastly
maintained that he is of the belief that BM
Syhongpan is not playing for himself but for
Ms. Castillo. Thus, if Syhongpan is merely
acting for the real casino player, then the
policy of not allowing any PAGCOR official to
bet beyond P5,000.00 has no application.
Respondent Rilloraza believed in good faith
that the bet was not BM Syhongpans but of
Ms. Castillo and should not be unduly
punished for his honest belief. The same
reason exists for the claim that respondent
allowed BM Syhongpan to play beyond 6:00
a.m. This is non sequitursince Rilloraza never
entertained the idea that Syhongpan was the
gambler.
Lastly, if only to consummate respondents
alleged dishonesty and grave misconduct by
corruptly profiting from said incident, he could
have easily pocketed the balato given by
Syhongpan, but he never did, and in fact,
returned the money. xxx
xxx xxx xxx xxx

On the facilitation of the swap of a
P500,000.00 personal check for chips, this
Court, after considering the parties involved
and the circumstances of the case, believes
that respondent Rilloraza has judiciously
performed all the acts necessary to protect the
interests of PAGCOR and has acted as a
prudent and reasonable man. It is evident that
respondent had the authority to approve the
exchange of checks for gambling chips. In the
exercise of such discretion, We find that the
approval by Rilloraza of the exchange was
done with caution and circumspect [sic]. When
he was approached by GAM Quito for
endorsement of said personal checks per
request of a customer, he immediately
approached COM Gonzales to verify the
check who assured him that the check was
good and in fact guaranteed by Mr.
Syhongpan, Davao City Branch Manager of
PAGCOR. To be sure, he even reconfirmed
the same with Gonzales as he is more familiar
with the systems and the customers since he
has been recalled to the branch for only three
(3) weeks. After approving the endorsement,
he immediately tried to contact SBM
Advincula and BMO Cordero, to notify them of
his action but none of them called back. In the
afternoon, both returned the call and were
informed by respondent of the exchange of
the chips for the check and presumably, the
former ratified or acquiesced to the action of
respondent since there was no objection or
complaint about the matter. xxx
These same findings negate the conclusion that
respondent is guilty of misconduct or conduct
prejudicial to the best interest of the service.
In Manuel v. Calimag, Jr.,25 we defined misconduct,
thus:
Misconduct in office has been authoritatively
defined by Justice Tuazon in Lacson v. Lopez
in these words: "Misconduct in office has a
definite and well-understood legal meaning.
By uniform legal definition, it is a misconduct
such as affects his performance of his duties
as an officer and not such only as affects his
character as a private individual. In such
cases, it has been said at all times, it is
necessary to separate the character of the
man from the character of the officer x x x. It is
settled that misconduct, misfeasance, or
malfeasance warranting removal from office of
an officer, must have direct relation to and be
connected with the performance of official
duties amounting either to maladministration
or willful, intentional neglect and failure to
discharge the duties of the office x x x.
Differently propounded in Canson v. Garchitorena, et
al.,26 misconduct is "any unlawful conduct on the part
of a person concerned in the administration of justice
prejudicial to the rights of parties or to the right
determination of the cause. It generally means
wrongful, improper or unlawful conduct motivated by a
premeditated, obstinate or intentional purpose. The
CSC-CES Cases 83
Public Corporation
term, however, does not necessarily imply corruption
or criminal intent. On the other hand, the term gross
connotes something out of all measure; beyond
allowance; not to be excused; flagrant; shameful."
From the facts given, absent is that element
of intent to do wrong against petitioner.
CSC Resolution No. 991936 dated August 31, 1999
classifies simple neglect of duty as a less grave
offense punishable as a first offense by suspension of
one (1) month and one (1) day to six (6) months.27 In
the imposition of the proper penalty, Section 54
thereof provides, as follows: (a) the minimum of the
penalty shall be imposed where only mitigating and
no aggravating circumstances are present; (b) the
medium of the penalty shall be imposed where no
mitigating and aggravating circumstances are
present; and (c) the maximum of the penalty shall be
imposed where only aggravating and no mitigating
circumstances are present. In turn, the circumstances
that may be properly considered are:
Section 53. Extenuating, Mitigating,
Aggravating, or Alternative Circumstances.
In the determination of the penalties to be
imposed, mitigating, aggravating and
alternative circumstances attendant to the
commission of the offense shall be
considered. 1wphi1.nt
The following circumstances shall be
appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official
position
d. Taking undue advantage of
subordinate
e. Undue disclosure of confidential
information
f. Use of government property in the
commission of the offense
g. Habituality
h. Offense is committed during office
hours and within the premises of the
office or building
i. Employment of fraudulent means to
commit or conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances

Nevertheless, in the appreciation thereof, the
same must be invoked or pleaded by the
proper party, otherwise, said circumstances
shall not be considered in the imposition of the
proper penalty. The Commission, however, in
the interest of substantial justice may take and
consider these circumstances.
We find that the Civil Service Commission, as
affirmed by the Court of Appeals, correctly attributed
good faith on the part of respondent. Accordingly, the
modified penalty imposed by the Civil Service
Commission on the respondent which was affirmed by
the Court of Appeals, was proper under the premises.
WHEREFORE, the petition is hereby DENIED for lack
of merit. The Decision dated August 31, 1999 as well
as the Resolution dated November 29, 1999,
rendered by the Court of Appeals in CA-G.R. SP No.
51803 are hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. 77373 August 22, 1991
EDMUNDO C. JOCOM, petitioner,
vs.
THE HON. ANDRES C. REGALADO, Presiding
Judge of the Regional Court, 5th Judicial Region,
Branch XXV, Naga City and JESSIE M. ROBREDO,
respondents.
Romero, Lagman, Torres, Arrieta & Evangelista for
petitioner.
Luis General, Jr. for private respondent.
PADILLA, J.:
This is a petition for certiorari, prohibition and
mandamus, with prayer for the issuance of a writ of
preliminary injunction and/or temporary restraining
order, to annul the temporary restraining order issued
by the Regional Trial Court of Naga City, Branch XXV
contained in its orders dated 3 and 9 February
19871 and its orders dated 11 and 18 February 1987
denying petitioner's motion for raffle of the case and
motion to dismiss, respectively.2 Petitioner also seeks
to enjoin the respondent judge from further enforcing
the disputed orders and from proceeding with the
hearing of the case before the court a quo, and to
compel private respondent Jessie M. Robredo to
vacate the Office of Project Director of the Bicol River
Basin Development Program (hereinafter referred to
as BRBDP, for brevity), and to order him (Robredo) to
turn over the said office to herein petitioner Eduardo
C. Jocom. The factual background of the case is as
follows:
On 7 May 1973, the Bicol River Basin Council was
created under PD 412, to oversee, unify and integrate
the administration and implementation of the pilot
river basin development program of the country. The
CSC-CES Cases 84
Public Corporation
Council was headed by an Executive Director and
four (4) Deputy Directors.
On 28 April 1978, PD 926 modified the organizational
structure of BRBDP by placing it under the
supervision and direction of the Cabinet Coordinating
Committee on Integrated Rural Development Projects
of the National Economic and Development Authority
(NEDA). Under Sec. 5 of said law, the Cabinet
Committee Coordinator for the Program had the
power to appoint the "Program Director" as head of
the program office and other heads of major
organizational subdivisions of the program. The
"Program Director" had the following powers and
functions:
See. 6. Powers and Functions of the Program
Director. The Program Director shall
exercise the following powers and functions:
a. Execute and administer the policies and
decisions of the Cabinet Committee;
b. Directly coordinate the activities of all
implementing departments and agencies in
the planning and implementation of the
projects;
c. Subject periodic financial and work
accomplishment reports relating to project
implementation to the Cabinet Committee, the
Budget Commission and other Agencies
concerned through the Cabinet Committee
Coordinator;
d. Consolidate, for the approval of the Cabinet
Committee Coordinator, requests for budget
releases of projects of the implementing
departments and agencies in accordance with
consolidated plans, budgets and work
programs approved by the Cabinet
Committee;
e. Collect and consolidate all project accounts
under the Program maintained by the
implementing departments and agencies;
f. Organize and manage the Program Office
and adopt administrative rules and procedures
for its internal management.
g. Call upon any department, bureau, office,
agency, instrumentality or any political
subdivision of the Government to assist in the
Planning and implementation of the Program;
h. Enter into contracts with private or public
entities in connection with the functions of the
Program Office, subject to the approval of the
Cabinet Committee Coordinator; and
i. Perform such other functions as may be
assigned by the Cabinet Committee
Coordinator.3
On 17 May 1978, PD 1378 created the National
Council on Integrated Area Development (NACLAD)
in lieu of the Cabinet Coordinating Committee on
Integrated Rural Development Projects, with the
President of the Philippines as Chairman. Despite the
abolition of the Cabinet Coordinating Committee, the
"Project Directors" of the various on-going projects,
such as the Mindoro, Bicol, Samar and Cagayan
Projects, retained their respective powers, functions,
tenures and compensation.

On 11 June 1978, PD 1553 amended certain
provisions of PD 926 modifying the organizational
structure of BRBDP.
On 4 July 1981, Executive Order No. 708 transferred
the Chairmanship of the National Council on
Integrated Area Development (NACIAD) to the Prime
Minister.
On 16 September 1981, Executive Order No. 835
revised the charter of NACIAD, Sec. 7 thereof
authorized the Council to establish ad hoc support
staffs as may be necessary for particular integrated
area development projects, which shall exist for the
duration of said projects. Each project support staff
shall be headed by a "Project Director." The Prime
Minister as Chairman of the Council was vested with
power to appoint the "Project Directors" of the various
integrated area development projects.
After the February 1986 revolution, Vice-President
Salvador H. Laurel was appointed by the President to
be the Minister and he ipso facto became the
Chairman of the National Council on Integrated Area
Development (NACIAD), with the power to appoint the
Project Directors of the various integrated area
development projects in the country4 which include the
Bicol River Basin Development Program (BRBDP)5
In the exercise of his powers as Chairman of NACIAD
before the proclamation of the Freedom Constitution,
on 25 March 1986, Vice-President Laurel appointed
private respondent Jessie M. Robredo to the position
of "Program Director" of BRBDP vice Carmelo
Villacorta.6
In the late afternoon of that same day (25 March
1986), President Aquino issued Proc. No. 3 (Freedom
Constitution), Article 1 of which declared that Art. XI of
the 1973 Constitution and the amendments thereto
dealing with the Prime Minister and the Cabinet were
deemed superseded.
However, on 27 January 1987, Vice-President Laurel
appointed petitioner Jocom to the position of "Project
Director" of BRBDP.7 Simultaneous with petitioner
Jocom's appointment, private respondent Robredo
was informed of his termination from office without
stating the ground for his dismissal.8
Armed with his appointment, petitioner attempted to
assume the Office of "Project Director" of BRBDP but
private respondent, allegedly with some armed men,
prevented petitioner from assuming said office by
barricading the building of BRBDP, located at Pili,
Camarines Sur.
To compel petitioner Jocom to desist from attempting
to assume the Office of Project Director of BRBDP,
private respondent Robredo filed a petition for
injunction with the RTC of Naga City, Branch XXV,
docketed as RTC-87-1131 On 3 February 1987, the
trial court issued an order "enjoining respondent
Edmundo C. Jocom, for a period of twenty (20) days
from the date hereof, to desist from assuming the
above-named office such as exercising the powers
CSC-CES Cases 85
Public Corporation
and performing the functions thereof," and set the
hearing for issuance of preliminary injunction.9
Based on the amended petition filed by private
respondent Robredo, alleging that the finds of BRBDP
deposited with the Philippine National Bank were
frozen by the bank, which could result in paralyzing
the operations of BRBDP, and in order to give force
and effect to the 3 February 1987 order granting the
temporary restraining order, the trial court issued
another order dated 9 February 1987,10 ordering
Messrs. Vicente B. de la Vina and Ramon Encina, in
their capacities as Branch Manager and Cashier of
PNB, respectively, "to honor all the checks of the
BRBDP under petitioner, Jessie M. Robredo, as
Project Director and until further orders."
On 3 February 1987, petitioner Jocom moved for the
raffle of the case, claiming that there was no raffle
committee which conducted a special raffle of the
case. In an order dated 11 February 1987, the court a
quo denied said motion on the ground that the same
should have been addressed to the Executive Judge
who presided over such special raffle; and that insofar
as the court a quo was concerned, the legal
presumption of regularity of performance of duty in
conducting the raffle holds.11
Petitioner then moved to dismiss the private
respondent's petition, on jurisdictional ground, relying
on Sec. 4 of Executive Order No. 17 which provides
that no restraining order or preliminary injunction can
be issued by any court to enjoin the
separation/replacement of any official or employee in
the government service. On 18 February 1987, the
trial court denied said motion, holding that the
prohibition against the issuance of an injunction
and/or restraining order is not applicable to an
appointee under the Freedom Constitution, who is
actually a replacement to an employee appointed
under the 1973 Constitution. Hence, this petition.
To support his claim as the rightful and legal
appointee to the Office of Project Director of BRBDP,
petitioner argues that private respondent Robredo is
not qualified for the position of "Project Director"
because he was below the required age of thirty (30)
years provided under the law at the time of his
appointment; that a "Project Director" performs an
executive function and the position is without a fixed
term, thus, the appointee may be removed with or
without cause upon the discretion of the appointing
authority; and that Sec. 4 of Executive Order No. 17
does not allow the court to enjoin or restrain the
separation/replacement of government employees in
the course of a reorganization process; that private
respondent's recourse for his alleged removal should
not have been an independent action for injunction
but a petition for reconsideration before the
Committee created by E.O. No. 17.
On the other hand, private respondent Robredo
alleges that petitioner's appointment is void, because
all the executive powers and functions devolving upon
Vice-President Laurel as Prime Minister, including his
power as Chairman of NACIAD to appoint the Project
Director of BRBDP had reverted to the President after

the promulgation of the Freedom Constitution, which
abolished the position of Prime Minister.
In a recent Executive Order (No. 374) promulgated on
30 May 1989, the BRBDP was abolished and its
functions were transferred to the Regional
Development Council and to the Governors of
Camarines Sur and Albay.12 All qualified personnel
affected by such abolition are entitled to receive
retirement benefits.13 The abolition of BRBDP
notwithstanding, we find it necessary to settle the
issue as to who was the proper appointee to the
position of Program/Project Director of BRBDP,
entitled to hold said office prior to said abolition, to
determine the party entitled to receive the separation
benefits provided by law.
We find insufficient merit in the petition.
After a careful study of the various laws affecting the
creation of BRBDP, it appears that the position of
"Program Director" under PD 926 (creating BRBDP)
and the position of "Project Director" under PD 1378
and Executive Order Nos. 731 and 835 (charter of
NACIAD), are one and the same position, with the
main function of heading the BRBDP. The power to
appoint the Program/Project Director to head the
BRBDP originally belonged to the Cabinet Committee
Coordination, but with the subsequent amendments to
the organizational structure of BRBDP and that of
NACIAD, the power was delegated to the Chairman of
NACIAD.
During Vice-President Laurel's short tenure as Prime
Minister, he became the Chairman of NACIAD, with
the power to appoint the Program/Project Directors of
the various integrated area development projects,
including the BRBDP. However, after the
promulgation of the Freedom Constitution, all
provisions regarding the Office of the Prime Minister
were deleted, which indicated the abolition of said
office. The control over all ministries and other
functions and powers pertaining to the Prime Minister
reverted to the President. In view of the abolition of
the Office of Prime Minister, the functions of Vice-
President Laurel as Chairman of NACIAD also
ceased, and the Chairmanship became part of the
executive functions of the President.
As Chairman of NACIAD, the President thru her
Deputy Executive Secretary, exercised the functions
and powers of said office and informed the
Congressmen of the different provinces of the Bicol
Region of the development projects of NACIAD in
their provinces thru BRBDP, as contained in her
letters dated 8 July 1987.14
At the time of petitioner's appointment, Vice-President
Laurel had already ceased to be Chairman of
NACIAD. His appointment of herein petitioner to the
1wphi 1
position of Program/Project Director and the removal
of private respondent from said position, were in the
exercise of power that already belonged to the
President. Hence, such appointment and removal
were null and void, and petitioner cannot claim to
have had a valid right to the position of
Program/Project Director of BRBDP.
CSC-CES Cases 86
Public Corporation
But, even assuming that Vice-President Laurel still
had the power to appoint herein petitioner as
Program/Project Director of BRBDP, private
respondent could not be removed from said position,
without just cause. There was thus no vacancy in the
office justifying the appointment thereto of petitioner
Jocom.
All branches, subdivisions, instrumentalities and
agencies of the government, including government
owned and controlled corporations with original
charters are covered by the civil service and its rules
and regulations. Appointments to the civil service are
based on merit and fitness determined by competitive
examinations, except appointments to positions which
are policy determining, primarily confidential or highly
technical.15 The Civil Service Law classifies the
positions in the civil service into career and non-
career service positions. 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;16 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.17
Regardless of the classification of the position held by
a government employee covered by civil service
rules, be it a career or non-career position, such
employee may not be removed without just cause. An
employee who belongs to the non-career service is
protected from removal or suspension without just
cause and non-observance of due process.
xxx xxx xxx
As an employee in the civil service and as civil
service eligible, respondent is entitled to the
benefits, rights and privileges extended to
those belonging to the service. He cannot be
removed or dismissed without just cause,
much less, without formal charge or prior
notice. The fact that his position falls under
the unclassified service or the non-career
service does not remove him from the
protective mantle of the Civil Service Law.
Persons in the unclassified service are merely
so designated because the nature of their
work and qualifications are not subject to
classification unlike those in the classified
service. ...18
The constitutional and statutory guarantee of security
of tenure is extended to both those in the career and
non-career service positions, and the cause under
which an employee may be removed or suspended
must naturally have some relation to the character or
fitness of the officer or employee, for the discharge of

the functions of his office19 or expiration of the project
for which employment was extended.
The law modifying the organizational structure of
20
BRBDP enumerated the following qualifications of the
appointee to the position of "Project Director," namely:
(a) a natural-born citizen of the Philippines; (b) at
least thirty (30) years of age; and (c) of proven record
of executive competence in the field of public
administration and/or infrastructure projects and/or in
the management of agricultural, industrial or
commercial enterprises. Although petitioner claims
that private respondent was below the age of 30
years at the time of his appointment to qualify to the
position of Program-Project Director, no sufficient
proof was presented to substantiate such claim.
With regard to the tenure of the appointee to the
position of Program/Project Director, PD 926 is silent
on the matter. However, in the Revised Charter of
NACIAD,21 the Council is given the authority to
establish ad hoc support staffs as may be necessary
for particular integrated area development projects to
be headed by a "Project Director," which shall exist
only for the duration of said projects. The Council is
likewise given the power to re-organize or abolish
project support staffs under its supervision and
control.
From the foregoing provisions of law, it would appear
that the position of Program/Project Director falls
under the classification of a non-career position where
the tenure of the appointee is subject to the duration
of the project, while entrance to the position is based
on the fact that the appointee possess all the
qualifications required by law for the position.
However, despite the classification of the position of
Program/Project Director as a non-career position, the
appointee was nonetheless protected by the rules on
security of tenure, and could not be removed from
office at the whim and caprice of the appointing
authorities without just cause and without observing
the rules on due process. The termination of private
respondent from the office of Program/Project
Director failed to state the ground of such removal
from office, thus, his removal from office was without
just cause.
Sec. 4 of Exec. Order No. 17,22 which prohibits the
issuance of any restraining order or writ of preliminary
injunction to enjoin the separation/replacement of any
official or employee in the government service, is
intended to prevent delay in the government
reorganization process provided under the Freedom
Constitution. However, such ban cannot apply in the
case at bar because petitioner Jocom's appointment
was not made pursuant to a valid reorganization. At
the time of his appointment, Vice-President Laurel
was no longer the Chairman of NACIAD and had lost
the power to appoint the Program/Project Director, or
even reorganize the BRBDP.
ACCORDINGLY, petition is hereby DISMISSED.
SO ORDERED.
March 7, 2017
CSC-CES Cases 87
Public Corporation
G.R. No. 197762
CAREER EXECUTIVE SERVICE BOARD represented by
CHAIRPERSON BERNARDO P. ABESAMIS, EXECUTIVE
DIRECTOR MA. ANTHONETTE VELASCO-ALLONES, and
DEPUTY EXECUTIVE DIRECTOR ARTURO M.
LACHICA, Petitioner
vs
CIVIL SERVICE COMMISSION represented by CHAIRMAN
FRANCISCO T. DUQUE III AND PUBLIC ATTORNEY'S
OFFICE, CHIEF PUBLIC ATTORNEY PERSIDA V. RUEDA-
ACOSTA, DEPUTY CHIEF PUBLIC ATTORNEYS
MACAPANGCAT A. MAMA, SYLVESTRE A. MOSING,
REGIONAL PUBLIC ATTORNEYS CYNTHIA M. VARGAS,
FRISCO F. DOMALSIN, TOMAS B. PADILLA, RENATO T.
CABRIDO, SALVADOR S. HIPOLITO, ELPIDIO C.
BACUYAG, DIOSDADO S. SAVELLANO, RAMON N.
GOMEZ, MARIE G-REE R. CALINAWAN, FLORENCIO M.
DILOY, EDGARDO D. GONZALEZ, NUNILA P. GARCIA,
FRANCIS A. CALATRAVA, DATUMANONG A. DUMAMBA,
EDGAR Q. BALANSAG, PUBLIC ATTORNEY IV MARVIN R.
OSIAS, PUBLIC ATTORNEY IV HOWARD B. AREZA,
PUBLIC ATTORNEY IV IMELDA C. ALFORTE-GANANCIAL,
Respondents
DECISION
SERENO, CJ.:
The dispute in this case concerns the classification of certain
positions in the Public Attorney's Office (PAO).The Court is
asked to determine, in particular, whether these positions are
properly included in the Career Executive Service (CES); and
whether the occupants of these positions must obtain third-
level eligibility to qualify for permanent appointment. To resolve
these questions, the Court must also delineate the respective
jurisdictions granted by law to the competing authorities
involved in this case - the Civil Service Commission (CSC) and
the Career Executive Service Board (CESB).
FACTUAL ANTECEDENTS
In this Petition for Certiorari and Prohibition,1 the CESB2 seeks
the reversal of the Decision3 and Resolution4 of the CSC
declaring that (a) it had the jurisdiction to resolve an appeal
from a CESB Resolution5 refusing to declassify certain
positions in PAO; and (b) the PAO positions involved in the
appeal do not require third-level eligibility.
The facts leading to the controversy are not in dispute.
On 24 September 2010, the PAO received a copy of the CESB
Report on the CES Occupancy of the Department of Justice
(DOJ).6 This document stated, among others, that out of 35
filled positions in the PAO, 33 were occupied by persons
without the required CES eligibility.
In response to the report, PAO Deputy Chief Public Attorney
Silvestre A. Mosing (Deputy Chief Mosing) sent a letter7 to
CESB Executive Director Maria Anthonette V. Allones. He
informed her that the positions of Chief Public Attorney, Deputy
Chief Public Attorneys, and Regional Public Attorneys (subject
positions) were already permanent in nature pursuant to
Section 68 of Republic Act No. (R.A.) 9406, which accorded
security of tenure to the occupants thereof.
A second letter dated 9 November 20109 was sent to the
CESB by Deputy Chief Mosing to reiterate its earlier
communication. The letter also contained supplementary
arguments in support of the assertion that the subject positions
were permanent posts; hence, their occupants may only be
removed for cause provided by law. Based on the foregoing
premises, the PAO requested the deletion of its office from the
Data on CES Occupancy for the Department of Justice (DOJ).

On 18 November 2010, the PAO received the reply sent to
Deputy Chief Mosing by the CESB, through Deputy Executive
Director Arturo M. Lachica.10 The latter informed Deputy Chief
Mosing that the CESB would conduct a position classification
study on the specified PAO positions to determine whether
they may still be considered CES positions in the DOJ.
The DOJ Legal Opinion
While the matter was pending, PAO Deputy Chief Mosing
wrote a letter to then DOJ Secretary Leila M. de Lima to inform
her about the communications sent by the PAO to the
CESB.11 He also reiterated the PAO's opinion that the subject
positions must be considered permanent in nature, and not
subject to CES requirements.12
In a letter13 sent to Chief Public Attorney Persida V. Rueda-
Acosta on 3 January 2011, Chief State Counsel Ricardo V.
Paras III elucidated the legal opinion of the DOJ on the matter:
Based on the foregoing, your claim that the appointments of
the top-level officials of the PAO are permanent is without
merit. For one, the positions of the Chief Public Attorney,
Deputy Chief Public Attorney and Regional Public Attorneys
are part of the CES. xxx
xxxx
Secondly, since the Chief Public Attorney, Deputy Chief Public
Attorneys and Regional Public Attorneys are occupying CES
positions, it is required by law that they should be CES
eligibles to become permanent appointees to the said position.
x x x.
xxxx
This leads to the inevitable conclusion that the appointments of
the Chief Public Attorney, Deputy Chief Public Attorneys and
Regional Public Attorneys are not permanent, despite your
claims to the contrary, considering that they do not possess the
required CES eligibility for the said positions. As such, they
cannot invoke their right to security of tenure even if it was
expressly guaranteed to them by the PAO Law.
xxxx
Considering that the appointments of the Chief Public Attorney,
Deputy Chief Public Attorneys and Regional Public Attorneys
are temporary, they are required to subsequently take the CES
examination. In the absence of any evidence that would show
compliance with the said condition, it is presumed that the top-
level officials of the PAO are non-CES eligibles; therefore they
may be removed from office by the appointing authority without
violating their constitutional and statutory rights to security of
tenure.14
The DOJ also noted that the permanent nature of an
appointment does not automatically translate to an exemption
from CES coverage, as it is only the CESB that has the
authority to exempt certain positions from CES
requirements.15 The DOJ further rejected the claim that the
occupants of the subject positions were exercising quasi-
judicial functions. It explained that while the lawyers of the
PAO regularly conduct mediation, conciliation or arbitration of
disputes, their functions do not entail the rendition of
judgments or decisions - an essential element of the exercise
of quasi-judicial functions.16
The CSC Legal Opinion
It appears that while waiting for the CESB to respond to its
letters, the PAO wrote to the CSC to request a legal opinion on
the same matter.17 The PAO thereafter informed the CESB of
the former's decision to seek the opinion and requested the
CSC-CES Cases 88
Public Corporation
latter to issue no further opinion or statement, oral or written,
relative to the qualifications of the PAO officials.18
On 7 January 2011, the CSC issued the requested legal
opinion.19 Citing its mandate as an independent constitutional
commission and its authority under the Administrative Code to
"render opinions and rulings on all personnel and other civil
service matters," the CSC declared that third-level eligibility is
not required for the subject positions in the PAO:
The law is explicit that the positions [of] Chief Public Attorney,
Deputy Chief Public Attorney and Regional Public Attorney in
PAO shall have the same qualifications for appointment,
among other things, as those of the Chief State Prosecutor,
Assistant Chief State Prosecutor and Regional State
Prosecutor, respectively. These, of course include, the
eligibility requirement for these positions. x x x.
xxxx
The Prosecution Service Act of 2010 explicitly provides that the
Prosecutor General (the retitled position of Chief State
Prosecutor) has the same qualifications for appointment,
among other things, as those of the Presiding Justice of the
Court of Appeals (CA). Further, the Senior Deputy State
Prosecutor and the Regional Prosecutor have the same
qualifications as those of an associate justice of the CA. x x x.
xxxx
No less than the Constitution provides that justices and judges
in the judiciary are required, among other things, practice of
law as requirement for appointment thereto. Pointedly, the
Presiding Justice and the Associate Justice of the Court of
Appeals (CA) have the same qualifications as those provided
for in the Constitution for Justices of the Supreme Court[,]
which includes, among other requirements, practice of law.
This means that the Constitution and the Civil Service Law
prescribe RA 1080 (BAR) as the appropriate civil service
eligibility therefor. Accordingly, any imposition of a third-level
eligibility (e.g. CESE, CSEE) is not proper, if not, illegal under
the circumstances. In fact, even in the 1997 Qualification
Standards Manual of the Commission, all of these positions
require RA 1080 BAR eligibility for purposes of appointment.
xxxx
Thus, it is the Commission's op1mon that for purposes of
permanent appointment to the positions of Chief Public
Attorney, Deputy Chief Public Attorney and Regional Public
Attorney, no thirdlevel eligibility is required but only RA 1080
(BAR) civil service eligibility.20
CESB Resolution No. 918
On 12 January 2011, the CESB issued Resolution No.
91821 (CESB Resolution No, 918) denying the PAO's request
to declassify the subject positions. Citing the Position
Classification Study22 submitted by its secretariat, the CESB
noted that the positions in question "require leadership and
managerial competence"23 and were thus part of the CES.
Hence, the appointment of persons without third-level eligibility
for these posts cannot be considered permanent. The CESB
explained:
WHEREAS, pursuant to its mandate to identify positions of
equivalent rank as CES positions, the Secretariat revisited its
previous classification as part of the CES [ ofj the above
positions of PAO and conducted a position classification of the
above positions and arrived at the following findings:
1. The positions of Chief Public Attorney, Deputy Chief Public
Attorneys, Regional Public Attorneys and Assistant Regional
Public Attorneys who are all presidential appointees fall within

the criteria set under CESB Resolution No. 299, s. 2009,
namely:
a. The position is a career position;
b. The position is above division chief level;
c. The duties and responsibilities of the position
require the performance of executive or managerial
functions.
2. While Section 3 of Republic Act 9406 which provides that:
SEC. 3. A new Section 14-A, is hereby inserted in Chapter 5,
Title III, Book IV of Executive Order No. 292, otherwise known
as the "Administrative Code of 1987", to read as follows:
"SEC. 14-A Powers and Functions. - The PAO shall
independently discharge its mandate to render, free of charge,
legal representation, assistance, and counselling to indigent
persons in criminal, civil, labor, administrative and other quasi-
judicial cases. In the exigency of the service, the PAO may be
called upon by proper government authorities to render such
service to other persons, subject to existing laws, rules and
regulations."
The aforecited provision does not limit the mandate of PAO to
perform only non-executive functions. All that the aforecited
provision states is that the PAO is mandated to render legal
representation, assistance and counseling to indigent persons
in criminal, civil, labor, administrative and other quasi-judicial
cases, free of charge. Notably, the positions of Chief Public
Attorney, Deputy Chief Public Attorney, Regional Public
Attorneys and Assistant Regional Public Attorneys evidently
require leadership and managerial competence.
xxxx
WHEREAS, it is undisputed that the subject pos1t10ns are
CES in nature and as such, the eligibility requirement for
appointment thereto is CES eligibility.
With regard to the question of its jurisdiction over the matter as
against that of the CSC, the CESB stated:
WHEREAS, under Section 8, Chapter 2, Book V of EO 292, it
is the Board which has the mandate over Third-level positions
in the Career Service and not the CSC. Section 8, Chapter 2,
Book V of EO 292 provides:
Section 8. Classes of Positions in the Civil Service. - (l)
Classes of positions in the career service, appointment to
which requires examinations shall be grouped into three major
levels as follows:
xxxx
(c) The third-level shall cover positions in the Career Executive
Service.
(2) x x x Entrance to the third-level shall be prescribed by the
Career Executive Service Board.
WHEREAS, in the case of De Jesus v. People, G.R. No.
61998, February 22, 1983, 120 SCRA 760, the Supreme Court
ruled that "where there are two acts, one of which is special
and particular and the other general which, if standing alone,
would include the same matter and thus conflict with the
special act, the special must prevail since it evinces the
legislative intent more clearly than that of a general statute and
must be taken as intended to constitute an exception to the
general act."
CSC-CES Cases 89
Public Corporation
WHEREAS, following the above-cited rule, it is clear that
Section 8, Chapter 2, Book V of EO 292 is the exception to
[the] general act pertaining to the authority of the CSC;
xxxx
WHEREAS, it is clear that the mandate of the Board is in
accordance with existing laws and pertinent jurisprudence on
matters pertaining to the CES[.]24
Aggrieved by the CESB Resolution, the PAO filed a Verified
Notice of Appeal25 and an Urgent Notice of Appeal26with the
CSC.
PROCEEDINGS BEFORE THE CSC
Before the CSC, the PAO assailed CESB Resolution No. 918
on the following grounds: (a) the resolution was rendered
contrary to R.A. 9406 in relation to R.A. 10071,27 the 1987
Constitution and the CSC letter-opinion; and (b) the CESB
usurped the legislative function of Congress when the former
required additional qualifications for appointment to certain
PAO positions. The PAO likewise asserted that its appeal had
been brought to the CSC, because the latter had the power to
review decisions and actions of one of its attached agencies -
the CESB.
In an Order28 dated 17 January 2011, the CSC directed the
CESB to comment on the appeal.
Instead of submitting a comment, however, the CESB filed a
Motion for Clarification29 to assail the authority of the CSC to
review its Decision. It asserted that the CSC had no jurisdiction
to decide the appeal given that (a) the appeal involved a
controversy between two government entities regarding
questions of law;30 and (b) the CESB was an autonomous
agency whose actions were appealable to the Office of the
President.31 In addition, the CESB emphasized the inability of
the CSC to render an unbiased ruling on the case, considering
the latter's previous legal opinion on the appropriate eligibility
for key positions in the PA0.32
In a Decision33 dated 15 February 2011, the CSC granted the
appeal and reversed CESB Resolution No. 918.
As a preliminary matter, the CSC ruled that it could assume
jurisdiction over the appeal, which involved the employment
status and qualification standards of employees belonging to
the civil service. It was supposedly a matter falling within its
broad and plenary authority under the Constitution and the
Administrative Code. The CSC also declared that the authority
of the CESB over third-level employees was limited to the
imposition of entry requirements and "should not be interpreted
as cutting off the reach of the Commission over this particular
class of positions."34 Moreover, the CESB was declared
subject to the revisory power of the CSC, given that an
attached office is not entirely and totally insulated from its
mother agency.35 With respect to the provision in the
Integrated Reorganization Plan36 on appeals from the CESB to
the Office of the President, the CSC construed this
requirement as pertaining only to disciplinary proceedings.37
On the merits, the CSC ruled in favor of the PAO officials. It
declared that the CESB would be in violation of R.A. 9406 if
the latter would require an additional qualification - in this case,
third-level eligibility - for purposes of permanent appointments
to certain PAO positions:
The foregoing elaboration shows the qualifications of the
subject PAO positions under the existing laws. It is gleaned
that nowhere in these laws is there a reference to third-level
eligibility and CESO rank as qualification requirements for
attaining tenurial security. All that the laws uniformly prescribe
for the positions in question is practice of law for certain period
of time, which presupposes a bar license. This being the case,

the CESB cannot, in the guise of enforcing and administering
the policies of the third-level, validly impose qualifications in
addition to what the laws prescribe. It cannot add another layer
of qualification requirement which is not otherwise specified in
the statutes. As an administrative agency, the CESB can only
promulgate rules and regulations which must be consistent
with and in harmony with the provisions of the laws, and it
cannot add or subtract thereto. Most evidently, therefore, in
promulgating the assailed resolution, which sets out additional
qualifications for the subject positions in the PAO, the CESB
has overstepped the bounds of its authority. x x x.
In so saying, the Commission does not lose sight of the power
of the CESB to identify other positions equivalent to those
enumerated in the Administrative Code of 1987 as being part
of the third-level or CES for as long as they come within the
ambit of the appointing prerogative of the President. Yet, such
grant of authority is derived from a general law (the
Administrative Code) and hence, it must be deemed
circumscribed or qualified by the special law governing the
PAO. Reiteratively, the PAO Law, in conjunction with other
laws, merely fixes practice of law as the principal qualification
requirement for the positions of Acosta, et al.
WHEREFORE, foregoing premises considered, the instant
appeal is hereby GRANTED. Accordingly, the CESB
Resolution No. 918 dated Jnaury 12, 2011 is REVERSED and
SET ASIDE for not being in conformity with law and
jurisprudence. It is declared that the following key positions in
the Public Attorney's Office do not require third-level eligibility
and CESO rank for purposes of tenurial security:
1. Chief Public Attorney;
2. Deputy Chief Public Attorneys;
3. Regional Public Attorneys; and
4. Assistant Regional Public Attorneys.38
The CESB sought reconsideration of the Decision, but its
motion was denied.39
PROCEEDINGS BEFORE THIS COURT
On 9 August 2011, the CESB filed the instant
Petition40 imputing grave abuse of discretion to respondent
CSC. It asserts that (a) the CSC has no jurisdiction to review
the Resolution of the CESB, given the latter's autonomy as an
attached agency; (b) CESB Resolution No. 918 should have
been appealed to the Office of the President, and not to the
CSC, in accordance with Article IV, Part III of the Integrated
Reorganization Plan. The subject PAO positions are
supposedly part of the CES, based on criteria established by
the CESB.41 These criteria were set pursuant to the latter's
power to identify positions belonging to the third-level of the
civil service and to prescribe the requirements for entry thereto.
The Petition further reiterates the alleged inability of the CSC
to decide the case with impartiality.
In itsComment,42 the CSC contends that the Petition filed by
the CESB before this Court should be dismissed outright for
being an improper remedy and for violating the hierarchy of
courts. The CSC further asserts its jurisdiction over the PAO's
appeal from the CESB Resolution in this case. Citing its
mandate as the central personnel agency of the government
based on the 1987 Constitution and the Administrative Code,
the CSC insists that it has broad authority to administer and
enforce the constitutional and statutory provisions on the merit
system for all levels and ranks of the civil service. This
authority allegedly encompasses the power to review and
revise the decisions and actions of offices attached to it, such
as the CESB. It also claims that the present dispute involves a
personnel action that is within its jurisdiction.
CSC-CES Cases 90
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Respondents PAO and its officials have also filed their own
Comment43 on the Petition. They assert that (a) the Petition
should be dismissed outright as it is tainted with serious
procedural and jurisdictional flaws; (b) the CSC properly
exercised its jurisdiction when it resolved the appeal in this
case; and (c) CESB Resolution No. 918 contravened R.A.
9406 in relation to the 1987 Constitution, R.A. 10071 and the
CSC letteropinion dated 7 January 2011.
Because the instant case involves the contradictory views of
two government offices, the Court likewise required the Office
of the Solicitor General (OSG) to comment on the matter as
the lawyer of the government tasked to uphold the best interest
of the latter.
On 28 February 2012, the OSG filed the required
Comment.44 On the issue of jurisdiction, it supports the view of
the CSC and the PAO. It cites the Constitution and the
Administrative Code as the sources of the authority of the CSC
to review rulings of the CESB, particularly with regard to
personnel matters such as the reclassification of positions.
As to the merits of the case, the OSG asserts that the subject
positions in the PAO should be declassified from the CES. It
points out that the primary function of these PAO officials -- the
provision of legal assistance to the indigent - is specialized in
nature; in contrast, their managerial functions are merely
incidental to their role. The OSG further contends that the
manifest intent of the law is to require PAO officials to have the
same qualifications as their counterpmis in the National
Prosecution Service (NPS). Consequently, the OSG argued
that the decision of the CESB to declassify certain posts in the
NPS should have likewise resulted in the declassification of the
corresponding positions in the PAO.
In its Reply to the Comment of the OSG,45 the CESB urges the
Court to adhere to the alleged limitations on the general
authority of the CSC over all matters concerning the civil
service. In particular, the CESB asserts its specific and
exclusive mandate to administer all matters pertaining to the
third-level of the career service. Included in these matters is
the power to promulgate rules, standards and procedures for
the selection, classification, compensation and career
development of its members. Moreover, the CESB insists that
it is an agency within the Executive Department under the
Integrated Reorganization Plan; hence, its decisions are
appealable only to the Office of the President. Lastly, the
CESB maintains that the subject positions properly belong to
the CES, considering that executive and managerial functions
must be exercised by the occupants thereof.
ISSUES
The following issues are presented for resolution:
(1) Whether a petition for certiorari and prohibition was the
proper remedy to question the assailed CSC Decision and
Resolution
(2) Whether the CSC had the jurisdiction to resolve the appeal
filed by the PAO and to reverse CESB Resolution No. 918
(3) Whether the CSC acted in accordance with law when it
reversed the CESB and declared that third-level eligibility is not
required for occupants of the subject PAO positions
OUR RULING
We DENY the Petition.
At the outset, we note that the CESB availed itself of an
improper remedy to challenge the ruling of the CSC. In any
event, after a judicious consideration of the case, we find that
the CSC acted within its jurisdiction when it resolved the PAO's
appeal and reversed CESB Resolution No. 918. The CSC also

correctly ruled that third-level eligibility is not required for the
subject positions.
A petition for certiorari and prohibitinn is
not the appropriate remedy to challenge
the ruling of the CSC.
As a preliminary matter, this Court must address the objections
of respondents to the remedy availed of by the CESB to
question the ruling of the CSC.
Respondents contend that the Petition for Certiorari and
Prohibition filed by the CESB before this Court was improper,
because the remedy of appeal was available via a petition for
review under Rule 43. On the other hand, the CESB insists
that a Rule 65 petition is proper, because it is disputing the
authority and jurisdiction of the CSC.
We find in favor of respondents.
It is settled that a resort to the extraordinary remedies
of certiorari and prohibition is proper only in cases where (a) a
tribunal, a board or an officer exercising judicial or quasi-
judicial functions has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess
of jurisdiction; and (b) there is no appeal or any plain, speedy,
and adequate remedy in the ordinary course of law. Rule 65 of
the Rules of Civil Procedure requires the concurrence of both
these requisites:
Section l. Petition for certiorari. - When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board
or officer, and granting such incidental reliefs as law and
justice may require.1wphi1
The petition shall be accompanied by a certified true copy of
the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46.
Section 2. Petition for prohibition. - When the proceedings of
any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment he rendered commanding the respondent to desist
from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and
justice may require.
The petition shall likewise be accompanied by a certified true
copy of the judgment, order or resolution subject thereof copies
of all pleadings and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46. (Emphasis supplied)
In this case, the second requirement is plainly absent. As
respondents correctly observed, there was an appeal available
to the CESB in the form of a petition for review under Rule 43
of the Rules of Civil Procedure. Section 1 of Rule 43
specifically provides for appeals from decisions of the CSC:
CSC-CES Cases 91
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Section 1. Scope. - This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or authorized
by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities
and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Invention
Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized by
law.
xxxx
Section 5. How appeal taken. - Appeal shall be taken by filing a
verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the
adverse party and on the court or agency a quo. The original
copy of the petition intended for the Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of 500.00 for costs.
Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of
Appeals upon a verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the
denial. (Emphasis supplied)
In an attempt to justify its resort to certiorari and prohibition
under Rule 65, the CESB asserts that the allegations in its
Petition - the patent illegality of the assailed Decision and
Resolution of the CSC, as well as the lack of jurisdiction and
the grave abuse of discretion attending the latter's ruling - are
not suitable for an appeal under Rule 43. It argues that since
these grounds properly pertain to a petition for certiorari and
prohibition, this remedy is more appropriate.
We find the CESB's contention untenable. As previously
stated, certiorari and prohibition are proper only if both
requirements are present, that is, if the appropriate grounds
are invoked; and an appeal or any plain, speedy, and adequate
remedy is unavailable. Mere reference to a ground under Rule
65 is not sufficient. This Court has, in fact, dismissed a Petition
for Certiorari assailing another CSC Resolution precisely on
this ground. In Mahinay v. Court of Appeals,46 the Court ruled:
As provided by Rule 43 of the Rules of Court, the proper mode
of appeal from the decision of a quasi-judicial agency, like the
CSC, is a petition for review filed with the CA.
The special civil action of certiorari under Rule 65 of the Rules
of Court may be resorted to only when any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its/his jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law.
In this case, petitioner clearly had the remedy of appeal
provided by Rule 43 of the Rules of Court. Madrigal Tran.\port,
Inc. v. Lapanday Holdings Corporation held:
Where appeal is available to the aggrieved party, the action
for certiorari will not be entertained. Remedies of appeal
(including petitions for review) and certiorari are mutually

exclusive, not alternative or successive. Hence, certiorari is not
and cannot be a substitute for an appeal, especially if one's
own negligence or error in one's choice of remedy occasioned
such loss or lapse. One of the requisites of certiorari is that
there be no available appeal or any plain, speedy and
adequate remedy. Where an appeal is available, certiorari will
not prosper, even if the ground therefor is grave abuse of
discretion. (Emphasis and underscoring supplied)
Here, the CESB could have appealed the CSC Decision and
Resolution to the CA via a petition for review under Rule 43.
Hence, the filing of the instant Petition for Certiorari and
Prohibition is improper regardless of the grounds invoked
therein.
Moreover, we find no reason to allow the CESB to avail itself of
the extraordinary remedies of certiorari and prohibition. Indeed,
the petition itself cites no exceptional circumstance 47 other than
the supposed transcendental importance of the issues raised,
"as the assailed CSC Decision is gravely prejudicial to the
mandate of the Petitioner." Even when confronted by
respondents with regard to the availability of an appeal, the
CESB still failed to cite any special justification for its refusal to
avail itself of an appeal. Instead, it opted to focus on the nature
of the grounds asserted in its Petition. For the reasons stated
above, a mere reference to grave abuse of discretion cannot
justify a resort to a petition under Rule 65.
Considering the failure of the CESB to offer a compelling
explanation for its insistence upon the special remedies
of certiorari and prohibition, the Court finds no justification for a
liberal application of the rules.
In any event, the contentions of the CESB are without merit. As
will be further explained, we find no grave abuse of discretion
on the part of the CSC. In resolving the appeal filed by the
PAO, the CSC merely exercised the authority granted to it by
the Constitution as the central personnel agency of the
government.
The CSC acted within its }urisdiction
when it resolved the PAO's appeal and
reversed CESB Resolution No. 918.
At its core, this case requires the Court to delineate the
respective authorities granted by law to two agencies involved
in the management of government personnel - the CSC and
the CESB. This particular dispute involves not only the
jurisdiction of each office over personnel belonging to the third-
level of the civil service, but also the relationship between the
two offices.
On the one hand, the CESB asserts its jurisdiction over
members of the CES. Specifically, it refers to the identification
and classification of positions belonging to the third-level, as
well as the establishment of the qualifications for appointment
to those posts. The CESB further emphasizes its autonomy
from the CSC on the basis of this Court's ruling that its status
as an attached agency only pertains to policy and program
coordination.
The CSC, on the other hand, defends its authority to review
actions and decisions of its attached agencies, including the
CESB. The CSC further claims original and appellate
jurisdiction over administrative cases involving contested
appointments, pursuant to its constitutional mandate as the
central personnel agency of the government.
In the interest of the effective and efficient organization of the
civil service, this Court must ensure that the respective powers
and functions of the CSC and the CESB are well-defined. After
analyzing and harmonizing the legal provisions pertaining to
each of these two agencies, the Court concludes that the CSC
has the authority to review CESB Resolution No. 918. We have
arrived at this conclusion after a consideration of (a) the broad
mandate of the CSC under the Constitution and the
CSC-CES Cases 92
Public Corporation
Administrative Code; and (b) the specific and narrowly tailored
powers granted to the CESB in the Integrated Reorganization
Plan and the Administrative Code.
As the central personnel agency of the
government, the CSC has broad authority
to pass upon all civil service matters.
Article IX-B of the 1987 Constitution entrusts to the CSC48 the
administration of the civil service, which is comprised of "all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters."49 In particular, Section 3 of
Article IX-B provides for the mandate of this independent
constitutional commission:
SECTION 3. The Civil Service Commission, as the central
personnel agency of the Government, shall establish a career
service and adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness, and courtesy in the
civil service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for all
levels and ranks, and institutionalize a management climate
conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel
programs. (Emphases supplied)
The proceedings of the 1986 Constitutional Commission reveal
the intention to emphasize the status of the CSC as the
"central personnel agency of the Government with all powers
and functions inherent in and incidental to human resources
management."50 As a matter of fact, the original proposed
provision on the functions of the CSC reads:
Sec. 3. The Civil Service Commission, as the central personnel
agency of the government. shall establish a career service,
promulgate and enforce policies on personnel actions,
classif[y] positions, prescribe conditions of employment except
as to compensation and other monetary benefits which shall be
provided by law, and exercise alt powers and functions
inherent in and incidental to human resources management, to
promote morale, efficiency, and integrity in the Civil Service. It
shall submit to the President and the Congress an aimual
report on its personnel programs, and perform such other
functions as may be provided by law.51 (Emphases supplied)
Although the specific powers of the CSC are not enumerated in
the final version of 1987 Constitution,52 it is evident from the
deliberations of the framers that the concept of a "central
personnel agency" was considered all-encompassing. The
concept was understood to be sufficiently broad as to include
the authority to promulgate and enforce policies on personnel
actions, to classify positions, and to exercise all powers and
functions inherent in and incidental to human resources
management:
MR. FOZ. Will the amendment reduce the powers and
functions of the Civil Service as embodied in our original draft?
MS. AQUINO: No, it will not. The proposed deletion of lines 35
to 40 of page 2 until line 1 of page 3 would not in any way
minimize the powers of the Civil Service (Commission]
because they are deemed implicitly included in the all-
embracing definition and concept of "central personnel agency
of the government." I believe that the lines we have mentioned
are but redundant articulation of that same concept,
unnecessary surplusage.
MR. FOZ. For instance, will the power or function to
promulgate policies on personnel actions be encompassed by
the Commissioner's amendment?
MS. AQUINO. It is not an amendment because I am retaining
lines 33 to 35. I proposed an amendment after the words
"career service.'' I am only doing away with unnecessary
redundancy.

MR. FOZ. Can we say that all of the powers enumerated in the
original provision are still being granted by the Civil Service
Commission despite the elimination of the listing of these
powers and functions?
MS. AQUINO. Yes, Mr. Presiding Officer, in the nature of a
central personnel agency, it would have to necessarily execute
all of these functions.
MR. FOZ. And will the elimination of all these specific functions
be a source of ambiguity and controversies later on as to the
extent of the powers and functions of the commission?
MS. AQUINO. I submit that this would not be susceptible of
ambiguity because the concept of a central personnel agency
is a generally accepted concept and as experience would bear
out, this function is actually being carried out already by the
Civil Service Commission, except that we are integrating this
concept. I do not think that it would be susceptible of any
ambiguity.
MR. REGALADO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treas). Yes, Commissioner
Regalado is recognized.
MR. REGALADO. This is more for clarification.
The original Section 3 states, among others, the functions of
the Civil Service Commission - to promulgate and enforce
policies on personnel actions. Will Commissioner Aquino kindly
indicate to us the corresponding provisions and her proposed
amendment which would encompass the powers to promulgate
and enforce policies on personnel actions?
MS. AQUINO. It is my submission that the same functions are
already subsumed under the concept of a central personnel
agency.
MR. REGALADO. In other words, all those functions
enumerated from line 35 on page 2 to line I of page 3 inclusive,
are understood to be encompassed in the phrase "central
personnel agency of the government."
MS. AQUINO. Yes, Mr. Presiding Officer, except that on line
40 of page 2 and line 1 of the subsequent page, it was only
subjected to a little modification.
MR. REGALADO. May we, therefore, make it of record that the
phrase"... promulgate and enforce policies on personnel
actions, classify positions, prescribe conditions of employment
except as to compensation and other monetary benefits which
shall be provided by law" is understood to be subsumed under
and included in the concept of a central personnel agency.
MS. AQUINO. I would have no objection to that. 53 (Emphases
and underscoring supplied)
In accordance with the foregoing deliberations, the mandate of
the CSC should therefore be read as the comprehensive
authority to perform all functions necessary to ensure the
efficient administration of the entire civil service, including the
CES.
The Administrative Code of 1987 further reinforces this view.
Book V, Title I, Subtitle A, Chapter 3, Section 12 thereof
enumerates the specific powers and functions of the CSC
while recognizing its comprehensive authority over all civil
service matters. Section 12, Items (1) to (5), (11), (14), and
(19), are of particular relevance to this dispute:
SECTION 12. Powers and Functions.-The Commission shall
have the following powers and functions:
CSC-CES Cases 93
Public Corporation
(1) Administer and enforce the constitutional and statutory
provisions on the merit system for all levels and ranks in the
Civil Service;
(2) Prescribe, amend and enforce rules and regulations for
carrying into effect the provisions of the Civil Service Law and
other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil
Service and adopt plans and programs to promote economical,
efficient and effective personnel administration in the
government;
(4) Formulate policies and regulations for the administration,
maintenance and implementation of position classification and
compensation and set standards for the establishment,
allocation and reallocation of pay scales, classes and
positions;
(5) Render opinion and rulings on all personnel and other Civil
Service matters which shall be binding on all heads of
departments, offices and agencies and which may be brought
to the Supreme Court on certiorari;
xxxx
(11) Hear and decide administrative cases instituted by or
brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices
and of the agencies attached to it. Officials and employees
who fail to comply with such decisions, orders, or rulings shall
be liable for contempt of the Commission. Its decisions, orders,
or rulings shall be final and executory. Such decisions, orders,
or rulings may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty (30) days from
receipt of a copy thereof;
xxxx
(14) Take appropriate action on all appointments and other
personnel matters in the Civil Service including extension of
Service beyond retirement age;
xxxx
(19) Perform all functions properly belonging to a central
personnel agency and such other functions as may be
provided by law.
It is evident from the foregoing constitutional and statutory
provisions that the CSC, as the central personnel agency of
the government, has been granted the broad authority and the
specific powers to pass upon all civil service matters. The
question before the Court today is whether this broad authority
encompasses matters pertaining to the CES and are, as such,
recognized to be within the jurisdiction of the CESB.
To allow us to understand the legal framework governing the
two agencies and to harmonize the provisions of law, it is now
necessary for the Court to examine the history and the
mandate of the CESB. It may thereby determine the proper
relation between the CSC and the CESB.
The CESB has been granted specific and limited powers under
the law.
On 9 September 1968, Congress enacted R.A. 5435
authorizing the President to reorganize different executive
departments, bureaus, offices, agencies, and instrumentalities
of the government. The statute also created a Commission on
Reorganization with the mandate to study and investigate the
status of all offices in the executive branch. This commission
was also tasked to submit an integrated reorganization plan to
the President, and later on to Congress, for approval. The

Commission was given until 31 December 1970 to present its
plan to the President.54
After the conduct of hearings and intensive studies, a proposed
Integrated Reorganization Plan55 was submitted to then
President Ferdinand E. Marcos on 31 December 1970. The
plan included a proposal to develop a professionalized and
competent civil service through the establishment of the CES -
a group of senior administrators carefully selected for
managerial posts in the higher levels. 56To promulgate
standards for the CES, the Commission on Reorganization
recommended the creation of the CESB:
To promulgate standards, rules and procedures regarding the
selection, classification, compensation and career
development of members of the Career Executive Service, a
Board is proposed to be established. The Board shall be
composed of high-level officials to provide a government-wide
view and to ensure effective support for the establishment and
development of a corps of highly competent, professional
administrators.57
The plan was referred to a presidential commission for review,
but Martial Law was declared before the proposal could be
acted upon. Four days after the declaration of Martial Law,
however, the Integrated Reorganization Plan was approved by
former President Marcos through Presidential Decree No.
1.58 This approved plan included the creation of the CES and
the CESB.
The CES was created to "form a continuing pool of well-
selected and development-oriented career administrators who
shall provide competent and faithful service."59 The CESB was
likewise established to serve as the governing body of the
CES60 with the following functions: (a) to promulgate rules,
standards and procedures for the selection, classification,
compensation and career development of members of the
CES;61 (b) to set up the organization and operation of the civil
service in accordance with the guidelines provided in the
plan;62 (c) to prepare a program of training and career
development for members of the CES;63 (d) to investigate and
adjudicate administrative complaints against members of the
CES.64
When the Administrative Code was enacted in 1987, the CESB
was given the additional authority to (a) identify other officers
belonging to the CES in keeping with the conditions imposed
by law;65 and (b) prescribe requirements for entrance to the
third-level.66
Based on the foregoing provisions, it is clear that the powers
granted to the CESB are specific and limited. This Court must
now determine whether it is possible to interpret these powers
in harmony with the broad constitutional mandate of the CSC.
The specific powers of the CESB must be
narrowly interpreted as exceptions to the
comprehensive authority granted to the
CSC by the Constitution and relevant
statutes.
As we have earlier observed, the interplay between the broad
mandate of the CSC and the specific authority granted to the
CESB is at the root of this controversy. The question we must
resolve, in particular, is whether the CSC had the authority to
review and ultimately reverse CESB Resolution No. 918, upon
the appeal of the PAO.
For its part, the CESB contends that the Integrated
Reorganization Plan and the Administrative Code have granted
it the exclusive authority to identify the positions belonging to
the third-level of the civil service and to prescribe the eligibility
requirements for appointments thereto.67 It thus asserts that
the foregoing matters are beyond the revisory jurisdiction of the
CSC, and must instead be appealed to the Office of the
President in accordance with the specific provisions of the
CSC-CES Cases 94
Public Corporation
aforementioned laws. This special mandate must allegedly
prevail over the general authority granted to the CSC.
As to its status as an attached agency, the CESB cites this
Court's pronouncement in Eugenio v. CSC68 on its autonomy
from its mother agency. The CESB contends that its
attachment to the CSC is only for the purpose of "policy and
program coordination."69 Allegedly, this attachment does not
mean that the former's decisions, particularly CESB Resolution
No. 918, are subject to the CSC's review.
On the other hand, the CSC asserts its jurisdiction to act upon
the appeal from CESB Resolution No. 918 by virtue of its
status as the central personnel agency of the government. It
contends that the CESB 's authority to prescribe entrance
requirements for the third-level of the civil service does not
mean that the CSC no longer has jurisdiction over that class of
positions. It also points out that the case involves a personnel
action that is within the jurisdiction conferred upon it by law.
We uphold the position of the CSC.
It is a basic principle in statutory construction that statutes
must be interpreted in harmony with the Constitution and other
laws.70 In this case, the specific powers of the CESB over
members of the CES must be interpreted in a manner that
takes into account the comprehensive mandate of the CSC
under the Constitution and other statutes.
The present case involves the classification of positions
belonging to the CES and the qualifications for these posts.
These are matters clearly within the scope of the powers
granted to the CESB under the Administrative Code and the
Integrated Reorganization Plan. However, this fact alone does
not push the matter beyond the reach of the CSC.
As previously discussed, the CSC, as the central personnel
agency of the government, is given the comprehensive
mandate to administer the civil service under Article IX-B,
Section 3 of the 1987 Constitution; and Section 12, Items (4),
(5), and (14) of the Administrative Code. It has also been
expressly granted the power to promulgate policies, standards,
and guidelines for the civil service; and to render opinions and
rulings on all personne1 and other civilservice matters.71
Here, the question of whether the subject PAO positions
belong to the CES is clearly a civil service matter falling within
the comprehensive jurisdiction of the CSC. Further,
considering the repercussions of the issue concerning the
appointments of those occupying the posts in question, the
jurisdiction of the CSC over personnel actions is implicated.
It must likewise be emphasized that the CSC has been granted
the authority to review the decisions of agencies attached to it
under Section 12(11), Chapter 3, Subtitle A, Title I, Book V of
the Administrative Code:
SECTION 12. Powers and Functions.--The Commission shall
have the following powers and functions:
(11) Hear and decide administrative cases instituted by or
brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices
and of the agencies attached to it. Officials and employees
who fail to comply with such decisions, orders, or rulings shall
be liable for contempt of the Commission. Its decisions, orders,
or rulings shall be final and executory. Such decisions, orders,
or rulings may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty (30) days from
receipt of a copy thereof;
Since the CESB is an attached agency of the CSC, 72 the
former's decisions are expressly subject to the CSC's review
on appeal.

Against the express mandate given to the CSC in the foregoing
provision, the contention of the CESB that its decisions may
only be appealed to the Office of the President must fail. We
note that the supporting provision73 cited by the CESB in
support of its argument refers only to administrative cases
involving the discipline of members of the CES:
5. The Board shall promulgate rules, standards and
procedures on the selection, classification, compensation and
career development of members of the Career Executive
Service. The Board shall set up the organization and operation
of the Service in accordance with the following guidelines:
xxxx
h. Discipline. Investigation and adjudication of administrative
complaints against members of the Career Executive Service
shall be governed by Article VI, Chapter II and Paragraph I (d)
of Article II, Chapter III of this Part; provided that appeals shall
be made to the Career Executive Service Board instead of the
Civil Service Commission. Administrative cases involving
members of the Service on assignment with the Board shall be
investigated and adjudicated by the Board with the right to
appeal to the Office of the President. (Emphasis supplied)
In our view, the foregoing rule on appeals to the Office of the
President only covers disciplinary cases involving members of
the CES. It is evident that this special rule was created for that
particular type of case, because members of the CES arc all
presidential appointees. Given that the power to appoint
generally carries with it the power to discipline,74 it is only
reasonable for the president to be given the ultimate authority
to discipline presidential appointees. But this special rule
cannot apply to the matter at hand, because CESB Resolution
No. 918 did not involve a disciplinary case. Since it was clearly
outside the scope of the foregoing provision, the Resolution did
not come within the jurisdiction of the Office of the President. It
was therefore correctly appealed to the CSC.
From the above discussion, it is evident that the CSC acted
within its jurisdiction when it resolved the PAO's appeal. The
arguments of the CESB on this point must perforce be
rejected.
The CSC correctly ruled that third level
eligibility is not required for the subject
positions.
The Court now comes to the final issue for resolution - whether
the CSC ruled in accordance with law when the latter declared
that it was not necessary for occupants of the subject PAO
posts to possess third-level eligibility.
On this point, the CESB argues that third-level eligibility is
required for the positions pursuant to R.A. 9406 in relation to
R.A. 10071. It avers that R.A. 9406 requires the Chief Public
Attorney, Deputy Chief Public Attorneys, Regional Public
Attorneys and Assistant Regional Public Attorneys to have the
same qualifications for appointment, rank, salaries, allowances
and retirement privileges as the Chief State Prosecutor,
Assistant Chief State Prosecutor, Regional State Prosecutor
and Assistant Regional State Prosecutor of the NPS under
P.D. 1275. The latter law is the old one that governs the NPS
and requires third-level eligibility for senior prosecutorial posts.
According to the CESB, R.A. 10071 cannot apply, because
R.A. 9406 could not have referred to a law that had not yet
been enacted at the time. It also asserts that the subsequent
declassification of prosecutors cannot benefit members of the
PAO, because the prosecutors exercise quasi-judicial functions
while the PAO members do not.
On the other hand, the CSC argues that nowhere in R.A. 9406,
P.D. 1275, R.A. 10071 or Batas Pambansa Blg. (B.P.) 129 is
there a reference to third-level eligibility and CESO rank as
qualification requirements. It emphasizes that the CESB
cannot add to the provisions of these laws, which only require
CSC-CES Cases 95
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the practice of law for a certain period of time and presuppose
a bar license. The PAO, for its part, maintains that the posts
concerned are highly technical in nature because they primarily
involve legal practice, and any managerial functions performed
are merely incidental to their principal roles. It also claims that
the legislature could never have intended to require third-level
eligibility for occupants of the subject posts when it enacted
R.A. 9406.
After a careful consideration of the relevant statutes and rules,
this Court agrees with the conclusion of the CSC. To require
the occupants of the subject PAO positions to possess third-
level eligibility would be to amend the law and defeat its spirit
and intent.
The CESB effectively amended the
law when it required the occupants
of the subject PAO positions to
obtain third-level eligibility.
The authority to prescribe qualifications for pos1t10ns in the
government is lodged in Congress75 as part of its plenary
legislative power to create, abolish and modify public offices to
meet societal demands.76 From this authority emanates the
right to change the qualifications for existing statutory offices. 77
It was in the exercise of this power that the legislature enacted
Section 5 of R.A. 9406, which provides for the qualifications for
the Chief Public Attorney, Deputy Chief Public Attorneys,
Regional Public Attorneys and Assistant Regional Public
Attorneys:
SEC. 5. Section 16, Chapter 5, Title III, Book IV of Executive
Order No. 292, as amended, is hereby further amended to
read as follows:
SEC. 16. The Chief Public Attorney and Other PAO Officials. -
The PAO shall be headed by a Chief Public Attorney and shall
be assisted by two (2) Deputy Chief Public Attorneys. Each
PAO Regional Office established in each of the administrative
regions of the country shall be headed by a Regional Public
Attorney who shall be assisted by an Assistant Regional Public
Attorney. The authority and responsibility for the exercise of
the mandate of the PAO and for the discharge of its powers
and functions shall be vested in the Chief Public Attorney.
xxxx
The Chief Public Attorney shall have the same qualifications
for appointment, rank, salaries, allowances, and retirement
privileges as those of the Chief State Prosecutor of the
National Prosecution Service. The Deputy Chief Public
Attorneys shall have the same qualifications for appointment,
rank, salaries, allowances, and retirement privileges as those
of the Assistant Chief State Prosecutor of the National
Prosecution Service.
xxxx
The Regional Public Attorney and the Assistant Regional
Public Attorney shall have the same qualifications for
appointment, rank, salaries, allowances, and retirement
privileges as those of a Regional State Prosecutor and the
Assistant Regional State Prosecutor of the National
Prosecution Service respectively.
At the time of the enactment of R.A. 9406, the qualifications of
officials of the NPS, to which the foregoing provision referred,
were provided by Section 3 of P.D. 1275:
Section 3. Prosecution Staff; Organization, Qualifications,
Appointment. The Prosecution Staff shall be composed of

prosecuting officers in such number as hereinbelow
determined. It shall be headed by a Chief State Prosecutor
who shall be assisted by three Assistants Chief State
Prosecutors.
The Chief State Prosecutor, the three Assistants Chief State
Prosecutors; and the members of the Prosecution Staff shall
be selected from among qualified and professionally trained
members of the legal profession who arc of proven integrity
and competence and have been in the actual practice of the
legal profession for at least five (5) years prior to their
appointment or have held during like period, any position
requiring the qualifications of a lawyer. (Emphases
supplied)
Soon after, R.A. 10071 or the Prosecution Service Act of
201078 was passed. In updating the qualifications for senior
positions in the NPS, Congress again opted to refer to another
set of positions, this time in the judiciary:
SECTION 14. Qualifications, Rank and Appointment of the
Prosecutor General. - The Prosecutor General shall have the
same qualifications for appointment, rank, category,
prerogatives, salary grade and salaries, allowances,
emoluments and other privileges, shall be subject to the same
inhibitions and disqualifications, and shall enjoy the same
retirement and other benefits as those of the Presiding Justice
of the Court of Appeals and shall be appointed by the
President.
SECTION 15. Ranks of Prosecutors. - The Prosecutors m the
National Prosecution Service shall have the following ranks:
Rank Position/Title
Prosecutor V (I) Senior Deputy State Prosecutors;
(2) Regional Prosecutors; and
(3) Provincial Prosecutors or City Prosecutors of provinces or
cities with at least twenty-five
(25) prosecutors and City Prosecutors of cities within a
metropolitan area established by law Prosecutor IV (1) Deputy
State Prosecutors;
(2) Deputy Regional Prosecutors
(3) Provincial Prosecutors or City Prosecutors of provinces or
cities with less than twenty-five (25) prosecutors; and
(4) Deputy Provincial Prosecutors or Deputy City Prosecutors
of provinces or cities with at least twenty- five (25) prosecutors;
and Deputy City Prosecutors of cities within a metropolitan
area established by law.
xxxx
SECTION 16. Qualifications, Ranks and Appointments of
Prosecutors and Other Prosecution Officers. - Prosecutors with
the rank of Prosecutor V shall have the same qualifications for
appointment, rank, category, prerogatives, salary grade and
salaries, allowances, emoluments and other privileges, shall be
subject to the same inhibitions and disqualifications, and shall
enjoy the same retirement and other benefits as those of
an Associate Justice of the Court of Appeals.
Prosecutors with the rank of Prosecutor IV shall have the same
qualifications for appointment, rank, category, prerogatives,
salary grade and salaries, allowances, emoluments and other
privileges, shall be subject to the same inhibitions and
disqualifications, and shall enjoy the same retirement and other
benefits as those of a Judge of the
CSC-CES Cases 96
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Regional Trial Court.
A reading of B.P. 129 reveals, in turn, that the Presiding
Justice and the Associate Justices of the Court of
Appeals79 are required to have the same qualifications as the
members of this Court. 80 On the other hand, judges of the
regional trial courts are governed by a separate provision.81
Based on the foregoing, it is clear that occupants of the subject
PAO positions are only mandated to comply with requirements
as to age, citizenship, education, and experience. Since third-
level eligibility is not at all mentioned in the law, it would be
improper for the CESB to impose this additional qualification as
a prerequisite to permanent appointments.82 To do so would be
to amend the law and to overrule Congress.
While the CESB has been granted the power to prescribe
entrance requirements for the third-level of the civil service,
this power cannot be construed as the authority to modify the
qualifications specifically set by law for certain positions.
Hence, even granting that the occupants of the subject
positions indeed exercise managerial and executive functions
as incidents of their primary roles, the CESB has no power to
impose additional qualifications for them. It cannot use the
authority granted to it by Congress itself to defeat the express
provisions of statutes enacted by the latter.
It is also beyond the power of the CESB to question or overrule
the specific qualifications imposed by Congress for the subject
positions. The legislature must be deemed to have considered
the entirety of the functions attendant to these posts when it
enacted R.A. 9406 and prescribed the relevant qualifications
for each position. The choice not to require third level eligibility
in this instance must be respected - not only by the CESB but
also by this Court - as a matter that goes into the wisdom and
the policy of a statute.83
The intent of R.A. 9406 to establish
and maintain the parity in
qualifications between the senior
officials of the PAO and the NPS
must he respected.
This Court must likewise reject the CESB's contention that the
declassification of positions in the NPS (as a result of the
enactment of R.A. 10071) cannot benefit the PAO because of
a supposed difference in their functions. This argument goes
against the express terms and the clear intent of R.A. 9406
and is therefore untenable.
As stated previously, Section 5 of R.A. 9406 amended the
Administrative Code of 1987. The amendment was done to
provide for "the same qualifications for appointment, rank,
salaries, allowances, and retirement privileges" of senior
officials of both the PAO and the NPS. The deliberations of
Congress on R.A. 9406 reveal its intention to establish parity
between the two offices. The lawmakers clearly viewed these
officers as counterparts in the administration of justice:
Senator Enrile. Well, I agree with the gentleman. As I said, we
should equalize the prosecution and the defense. The PAO
Office is actually an arm of the same government to protect
those who need protection.
Senator Pimentel. That is right.
Senator Enrile. At the same time, the Prosecution Service is
the arm of the government to punish those who would need
punishment. So, these two perform the same class of service
for the nation and they should be equalized.
Senator Pimentel. Yes, I totally agree with that, that is why
precisely I made this observation that talking alone of starting
pay, the level of starting pay of a PAO lawyer should not be
lower than the starting pay of a prosecutor.

Now maybe at the proper time we can insert that amendment.
Senator Enrile. I will be glad to receive the proposed
amendment.84 (Emphases supplied)
During the bicameral conference on the proposed bill, Senator
Franklin M. Drilon explained that equal treatment of the two
offices was essential:
SEN. DRILON. Yes, this is our amendment that the PAO chief
should have the same salary as the Chief State Prosecutor
and down the line, the Assistant Chief State Prosecutor,
etcetera. And I want to put this on record because there are
PAO lawyers here. There are PAO lawyers here before us and
we want to explain why we have placed this.
xxxx
SEN. DRILON. All right. As I said - you know, I want to put on
record why we had tried to streamline the salary structure and
place it at the same level as the Chief State Prosecutor.
Because we do not want a salary distortion in the Department
of Justice where you have the PAO higher than the
prosecutors. That's why we want to put them on equal footing
rather than mag - you know, there'll be whipsawing. You place
the prosecutors below the PAO. I can assure you that
tomorrow the PAO will come to us - the prosecutors will come
to us and say, "Put us higher than the PAO lawyers." So you
will have whipsawing here.85
Although these statements were made to address the specific
issue of salary, this Court considers them as manifestations of
the intent to create and maintain parity between prosecutors
and public attorneys. In Re: Vicente S. E. Veloso,86 this Court
considered similar provisions in other laws as confirmations of
the legislative intent to grant equal treatment to certain classes
of public officers:
Nonetheless, there are existing laws which expressly require
the qualifications for appointment, confer the rank, and grant
the salaries, privileges, and benefits of members of the
Judiciary on other public officers in the Executive Department,
such as the following:
(a) the Solicitor General and Assistant Solicitor Generals of the
Office of the Solicitor General (OSG); and
(b) the Chief Legal Counsel and the Assistant Chief Legal
Counsel, the Chief State Prosecutor, and the members of the
National Prosecution Service (NPS) in the Department of
Justice.
The intention of the above laws is to establish a parity in
qualifications required, the rank conferred, and the salaries and
benefits given to members of the Judiciary and the public
officers covered by the said laws. The said laws seek to give
equal treatment to the specific public officers in the executive
department and the Judges and Justices who are covered by
Batas Pambansa Blg. 129, as amended, and other relevant
laws. In effect, these laws recognize that public officers who
are expressly identified in the laws by the special nature of
their official functions render services which are as important
as the services rendered by the Judges and Justices. They
acknowledge the respective roles of those public officers and
of the members of the Judiciary in the promotion of justice and
the proper functioning of our legal and judicial systems.
To fulfill the legislative intent to accord equal treatment to
senior officials of the PAO and the NPS, parity in their
qualifications for appointment must be maintained.
Accordingly, the revised qualifications of those in the NPS
must also be considered applicable to those in the PAO. The
declassification of positions in the NPS should thus benefit
their counterpart positions in the PAO. There is no justification
CSC-CES Cases 97
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for treating the two offices differently, given the plain provisions
and the rationale of the law.
This Court would render nugatory both the terms and the intent
of the law if it sustains the view of the CESB. We cannot
construe R.A. 9046 in relation to P.D. 1275 only, while
disregarding the amendments brought about by R.A. 10071.
To do so would defeat the legislature's very purpose, which is
to equalize the qualifications of the NPS and the PAO.
Based on the foregoing discussion, it is evident that the CSC
acted within its jurisdiction and authority as the central
personnel agency of the government when it passed upon the
appeal filed by the PAO from CESB Resolution No. 918.
Further, there was no grave abuse of discretion on the part of
the CSC when it reversed the said resolution, which refused to
declassify the subject PAO positions. As the CSC noted, the
third-level eligibility required by the CESB as an additional
qualification for these posts contravened not only the express
terms, but also the clear intent of R.A. 9406.
For the reasons stated above, and as a consequence of the
improper remedy the CESB has resorted to, this Court must
dismiss the instant petition.
WHEREFORE, the Petition for Certiorari and Prohibition
is DISMISSED for lack of merit. CSC Decision No. 110067 and
Resolution No. 1100719 dated 15 February 2011 and 1 June
2011, respectively, are hereby AFFIRMED.
SO ORDERED.
July 12, 2016
G. R. No. 193584
HAMBRE J. MOHAMMAD, Petitioner,
vs.
GRACE BELGADO-SAQUETON, in her capacity as Director
IV, Civil Service Commission, Regional Office No.
XVI, Respondent.
DECISION
SERENO, CJ:
We resolve the Petition for Review filed by Hambre J.
Mohammad (petitioner) assailing the Court of Appeals (CA)
Decision1 dated 27 January 2010 and Resolution 2 dated 16
August 2010 in CA-G.R. SP No. 02392-MIN. The CA reversed
the Orders3 dated 26 July 2006 and 7 August 2006 issued by
the Regional Trial Court Branch 14 in Cotabato City (RTC) in
Special Civil Action No. 2006-096.
The issue before this Court is whether the filing of a petition
for mandamus with the RTC was proper despite the availability
of an administrative remedy against the unfavorable Decision
of Civil Service Commission Regional Office No. XVI (CSCRO
No. XVI).
We affirm the CA Decision. The failure of petitioner to exhaust
available administrative remedies was fatal to his
cause.1wphi1
THE FACTS OF THE CASE
On 8 September 2004, petitioner was appointed as Provincial
Agrarian Reform Officer II (PARO II) of the Department of
Agrarian Reform in the Autonomous Region in Muslim
Mindanao (DAR-ARMM) with Salary Grade 26.4 His
appointment was temporary as he had no Career Service
Executive Eligibility (CSEE) or eligibility in the Career
Executive Service (CES).5 On 8 September 2005, his
temporary appointment was renewed.6

On 24 October 2005, petitioner requested the regional
secretary of DAR-ARMM to change his appointment status
from temporary to permanent. His request was pursuant to an
RTC decision in Special Civil Action No. 2005-0857concerning
the change in status of division superintendents.8 He opined
that his position was the same as that of petitioners therein,
whose petition for mandamus had been granted by the trial
court.9 His request was endorsed10to the regional governor,
who then submitted the matter for favorable consideration of
CSCRO No. XVI.11
Respondent Grace Belgado-Saqueton (respondent), Director
IV of CSCRO No. XVI, denied the request on the ground of the
inapplicability of the RTC Decision, which was binding only on
the parties to that case.12 Moreover, she informed petitioner
that the trial court's decision had been submitted by the CSC to
the courts for review.13
Petitioner did not elevate the case to the Civil Service
Commission proper. Instead, he filed a special civil action
for mandamus before the RTC. He invoked an exception to the
doctrine of exhaustion of administrative remedies: when the
question is purely legal. He argued that because the PARO II
position did not require CES eligibility and was not declared to
be a CES position, respondent can be compelled
through mandamus to change his status from temporary to
permanent.14 Respondent filed a Motion to Dismiss on the
ground of failure to exhaust administrative remedies.
On 22 June 2006, during the pendency of the case, the Office
of the Regional Governor appointed petitioner to the same
position with a permanent status.15
THE RTC RULING
On 26 July 2006, the RTC ordered respondent to approve and
attest to the appointment status of petitioner as pennanent. 16 It
ruled that he was able to establish that respondent had
unlawfully neglected or refused to approve his appointment
even if the law, the facts, and the evidence mandated her to
approve the request.17
As regards the Motion to Dismiss, the RTC maintained that it
had jurisdiction over the case which presented a pure question
of law. The court further held that had petitioner taken the route
of appealing to the CSC proper, it would have been an
exercise in futility, since issues of law cannot be decided with
finality by the commission.18
Respondent moved for reconsideration, calling the attention of
the court to CSC Resolution No. 02-1011,19 which states:
2. Permanent appointment issued after the effectivity of [this
Resolution] to appointees who do not possess the required
CSEE or CES eligibility shall be disapproved.1wphi1 This is
without prejudice to their appointments under temporary status
provided there are no qualified eligibles who are willing to
assume the position.20
Respondent also argued that the approval or disapproval of an
appointment is not a ministerial but a discretionary duty;
hence, mandamus does not lie.21
On 7 August 2006, the R TC denied the Motion for
Reconsideration for being a mere rehash of arguments already
raised.22 After respondent filed a Notice of Appeal on 15
August 2006, the trial court, on 30 August 2006, granted
petitioner's motion for execution pending appeal. 23
THE CA RULING
On intermediate appellate review, the CA reversed the RTC
Orders dated 26 July 2006 and 7 August 2006. It agreed with
respondent that petitioner had prematurely brought the case to
the RTC without exhausting all the remedies available to him.24
CSC-CES Cases 98
Public Corporation
The CA traced the jurisdiction of the CSC proper over
decisions of CSCROs to Sections 425 and 526 of the Revised
Uniform Rules on Administrative Cases in the Civil Service.
These rules were promulgated pursuant to the
Constitution27 and the CSC Law.28 Also cited were other
administrative issuances categorically providing remedies for
disapproved appointments, such as CSC Memorandum
Circular No. 40, series of 1998;29 and CSC Memorandum
Circular No. 15, series of 2002.30
The CA denied the Motion for Reconsideration of petitioner for
being a mere rehash of arguments already passed upon. He
then elevated the case to this Court for review.
OUR RULING
We deny the Petition.
Before parties are allowed to seek the intervention of the court,
it is a precondition that they must have availed themselves of
all the means of administrative processes afforded to
them.31 Where the enabling statute indicates a procedure for
administrative review and provides a system of administrative
appeal or reconsideration, the courts - for reasons of law,
comity, and convenience - will not entertain a case unless the
available administrative remedies have been resorted to and
the appropriate authorities have been given an opportunity to
act and correct the errors committed in the administrative
forum.32
Petitioner admits that while administrative remedies were
available to him, he had invoked an exception to the doctrine of
exhaustion of administrative remedies.33 On the contrary, We
find that the dismissal of the petition for mandamus was
warranted by the doctrine because the issue raised by
petitioner is not a purely legal question.
The Court has laid down tests to distinguish questions of fact
from questions of law: when doubt arises as to the truth or
falsity of the alleged facts, or when it becomes clear that the
issue invites a review of the evidence presented, the question
is one of fact.34
It was grave error for the trial com1 to have ignored the red
flags raised by both parties. Respondent has repeatedly
asserted that the PARO II position is a third-level position
requiring CES or CSEE.35 Petitioner himself raised an issue of
fact when he posited that there was no position in the ARMM
that had been declared to be a CES position.36 To disprove this
allegation, respondent presented the Qualification Standards
prescribed for the position which shows that it is a third-level
position requiring CES or CSEE.37 Since doubt has risen as to
the truth or falsity of the alleged fact, it cannot be said that the
case presents a purely legal question.
We are aware of our pronouncement in Buena, Jr. v.
Benito38that the issue of whether the position for which the
respondent therein was appointed required career service
eligibility was a purely legal question. In that case, We held
that the direct recourse to the courts from the Decision of the
CSCRO fell under an exception to the doctrine. Nevertheless,
We set aside the RTC order, because we found that the
Assistant Schools Division Superintendent is a position in the
CES.
There are at least three material differences between this case
and Buena.
First, in Buena, the question was whether the position is in the
CES. In this case, the question is whether petitioner was
eligible for a permanent appointment to the PARO II position,
which had already been classified as a third-level position
requiring CSEE or CES.39 The issue is therefore not one of
law, but of the merit and fitness of the appointee, which is a
question of fact.

Second, in Buena, no evidence was presented to the trial court
that could have created doubt as to the truth or falsity of the
allegation. In this case, the qualification standards for the
position were presented, but were unacknowledged as a
matter of fact by the trial court.
Third, in Buena, the petition for mandamus was filed after the
appointment had been issued by the regional
governor.1wphi1 The element of a clear legal right was met
in Buena because Section 19, Art. VII of Republic Act No. 9054
(Organic Act for the ARMM) designated the regional governor
as the appointing authority in the ARMM. In this case,
petitioner had no clear legal right to compel respondent to
attest to his appointment, because at the time of filing, he had
no appointment to a permanent position. Hence, the Petition
should have been dismissed outright.
We have recognized the CSC as the sole arbiter of
controversies relating to the civil service.40 The doctrine of
exhaustion of administrative remedies, which is "a cornerstone
of our judicial system,"41 impels Us to allow administrative
agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective
competencies.42 We refrain from the overarching use of judicial
power in matters of policy infused with administrative
character.43 Hence, the doctrine has been set aside only for
exceptional circumstances.
Petitioner pleads for a liberal construction of the rules owing to
the nature of the case as one of first impression involving a
position in the ARMM vis-a-vis the application of CSC
rules.44 His plea has been mooted, however, by the
promulgation of Buena, in which We highlighted Section 4, Art.
XVI of the Organic Act for the ARMM which states that "until
the Regional Assembly shall have enacted a civil service law,
the civil service eligibilities required by the central government
or national government for appointments to public positions
shall likewise be required for appointments to government
positions in the Regional Government."
WHEREFORE, the Petition for Review is DENIED. The Court
of Appeals Decision dated 27 January 2010 in CA-G.R. SP No.
02392-MIN is hereby AFFIRMED.
SO ORDERED.
G.R. No. 181760 October 14, 2014
ATTY. ANACLETO B. BUENA, JR., MNSA, in his capacity
as Regional Director of Regional Office No. XVI, Civil
Service Commission, Autonomous Region in Muslim
Mindanao, Cotabato City, Petitioner,
vs.
DR. SANGCAD D. BENITO, Respondent.
DECISION
LEONEN, J.:
The Regional Governor of the Autonomous Region in Muslim
Mindanao has the power to appoint officers in the region's civil
service. However, if there is no regional law providing for the
qualifications for the position at the time of appointment, the
appointee must satisfy the civil service eligibilities required for
the position in the national government to be appointed in a
permanent capacity.
This is a petition for review on certiorari 1 of the Court of
Appeals resolution,2 dismissing the appeal of the Civil Service
Commission Regional Office for the Autonomous Region in
Muslim Mindanao (Regional Office) for failure to file a
memorandum. The Regional Office appealed the Regional
Trial Courts decision,3 ruling that the position of Assistant
CSC-CES Cases 99
Public Corporation
Schools Division Superintendent of the Department of
Education, Division of Lanao del Sur-I, does not require career
executive service eligibility.
On August 27, 2004, Dr. Parouk S. Hussin (Regional Governor
Hussin), then Regional Governor of the Autonomous Region in
Muslim Mindanao, appointed Dr. Sangcad D. Benito (Dr.
Benito) as Assistant Schools Division Superintendent of the
Department of Education, Division of Lanao del Sur-I, ina
temporary capacity.4 On June 20, 2005, Regional Governor
Hussin reappointed Dr. Benito as Assistant Schools Division
Superintendent, this time in a permanent capacity. 5 To change
the status of Dr. Benitos appointment from temporary to
permanent, Regional Governor Hussin requested the Civil
Service Commission Regional Office for the Autonomous
Region in Muslim Mindanao to attest to Dr. Benitos permanent
appointment.6 However, the Regional Office, through Regional
Director Anacleto B. Buena, Jr. (Regional Director Buena),
returnedthe appointment to the Regional Governor. According
to the Regional Office, Dr. Benito did not possess the career
executive service eligibility required for the position of Assistant
Schools Division Superintendent.7
On August 24, 2005, Dr. Benito filed a petition for
mandamus8 with the Regional Trial Court, Branch 9, Lanao del
Sur, to compel the Regional Office to attest to his permanent
appointment as Assistant Schools Division Superintendent. He
argued that the position does not belong to the Career
Executive Service under Book V, Title I, Subtitle A, Chapter 2,
Section 7(3) of the Administrative Code of
1987.9 Consequently, the position of Assistant Schools Division
Superintendent does not require career executive service
eligibility.10
Dr. Benito claimed that it was the Regional Offices ministerial
duty to attest to his appointment.11 Under Article VII, Section
19 of Republic Act No. 9054,12 the Regional Governor of the
Autonomous Region in Muslim Mindanao is the appointing
authority for positions in the civil service in the region. Since
the appointing authority already exercised his discretion, the
Regional Office allegedly had no choicebut to attest to Dr.
Benitos appointment.13
In his answer,14 Regional Director Buena claimed that the
position of Assistant Schools Division Superintendent meets
the following criteria for positions in the Career Executive
Service: The position is career, ranks higher than Division
Chief, has a salary grade of 25, and entails performance of
executive and managerial functions and supervisory
responsibility over a division.15 The permanent appointee to the
position must, therefore, have career executive service
eligibility.16
According to Regional Director Buena, the Regional Office
recognizes the autonomy of the Autonomous Region in Muslim
Mindanao. However, until the region enacts its own regional
civil service law, the Regional Office shall carry on with the
Civil Service Commissions mandate under the Constitution to
promote and enforce civil service laws and rules.17
For Dr. Benitos failure to exhaust administrative remedies
before filing a petition for mandamus, Regional Director Buena
prayed that the trial court dismiss the petition for mandamus.18
The trial court noted that Dr. Benito did not appeal to the Civil
Service Commission proper the Regional Offices refusal to
attest to his appointment. Nevertheless, the trial court found
that the petition for mandamus raised a purely legal question.
The case, therefore, falls within the exceptions to the rule on
exhaustion of administrative remedies.19
As to whether the position of Assistant Schools Division
Superintendent requires career executive service eligibility, the
trial court held that it did not. Under Civil Service Commission
Resolution No. 021011 dated August 1,2002, only "director
positions" in the Autonomous Region in Muslim Mindanao

require career executive service eligibility. Considering that the
Career Executive Service Board had not declared the position
of Assistant Schools Division Superintendent a director
position, the trial court ruled that the position does not require
career executive service eligibility.20 The Regional Office "ha[d]
no choice but to attest to [Dr. Benitos] appointment in
accordance with Civil Service Laws."21
Thus, in the decision22 dated September 12, 2005, the trial
court granted Dr. Benitos petition for mandamus. It ordered
the Civil Service Commission Regional Office for the
Autonomous Region in Muslim Mindanao to attest to the
permanent appointment of Dr. Benito as Assistant Schools
Division Superintendent of the Department of Education,
Division of Lanao del Sur-I.23
In the meantime, Regional Director Buena retired.24 The
Regional Office, through Regional Director Grace R. Belgado-
Saqueton, thus, filed a motion for reconsideration, which the
trial court denied in its order25 dated May 19, 2006. The notice
of appeal26 filed was initially denied due course in the
order27 dated August 16, 2006. On reconsideration, the trial
court reversed itself and granted the Regional Offices notice of
appeal.28
The Court of Appeals took cognizance of the appeal. On
November 8, 2006, the Court of Appeals directed the parties to
file their respective memoranda.29
Dr. Benito filed his memorandum30 on December 27, 2006. As
for the Regional Office, it filed a manifestation, requesting
representation by the Office of the Solicitor General and an
additional 30 days to file a memorandum.31
The 30th day within which to filea memorandum lapsed without
the Regional Office filing the required memorandum. Thus, in
the resolution32 dated June 8, 2007, the Court of Appeals
declared the Regional Offices appeal abandoned and
dismissed:
While We could have granted CSCs prayer for an additional
period, per JRD Report dated April 12, 2007 however, no
Memorandum for the appellant was filed as per docket book
entry. Consequently, considering that appellant is the initiator
of the instant appeal, We are constrained to dismiss the same
pursuant to Section 3, Rule 17; Section 10, Rule 44; and
Section 1(e), Rule 50 of the 1997 Rules of Civil Procedure.
WHEREFORE, in view of the foregoing, the instant appeal is
hereby deemed ABANDONED and DISMISSED pursuant to
Section 3, Rule 17; Section 10, Rule 44; and Section 1(e), Rule
50 of the 1997 Rules of Civil Procedure.33
The Regional Office, through the Office of the Solicitor
General, filed a motion for reconsideration. The Associate
Solicitor handling the case assumed responsibility for the non-
filing of the memorandum, citing her alleged heavy workload as
an excuse. She subsequently filed the required memorandum
on behalf of the Regional Office.34
In his comment on the motion for reconsideration, Dr. Benito
argued that the delay of seven (7) months and 22 days in the
filing of the memorandum was inexcusable negligence.35
In the resolution36 dated January 14, 2008,the Court of
Appeals denied the Regional Offices motion for
reconsideration.
On April 1, 2008, the Regional Office filed a petition for review
on Certiorari37 on which Dr. Benito commented.38 A reply39 to
the comment was filed. Afterwards, this court considered this
case submitted for deliberation in the resolution 40 dated
December 1, 2009.
CSC-CES Cases 100
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On March 6, 2012, this court resolvedto require the parties to
move in the premises.41 On June 19, 2012, this court clarified
its March 6, 2012 resolution and required the parties to notify
the court of new or intervening significant developments
relevant to the case, if any. The parties were likewise required
to signify their interest in resolving the legal matters in this
case.42
Dr. Benito filed the compliance43 dated August 20, 2012, on
which the Regional Office commented.44
In the petition for review on certiorari for the Regional Office,
the Associate Solicitor handling the casepleads for this courts
"kind understanding on her human limitations as a government
lawyer handling numerous cases."45She contends that "[the
Regional Office] should not be made to bear the prejudice on
account of [her] failure to submit the required memorandum." 46
The Regional Office argues that the trial court erred in taking
cognizance of respondent Dr. Benitospetition for mandamus.
A petition for mandamus, according tothe Regional Office, is
filed only when there is no other plain, speedy, and adequate
remedy in the ordinary course of law. In this case, appeal to
the Civil Service Commission proper was still available. Worse,
the petition for mandamus was allegedly filed as a substitute
for a lost appeal. Consequently, the Regional Offices action on
the attestation had already become final and executory,
"bar[ring] . . . resort to any judicial action." 47 The trial court
should not have entertained the petition for mandamus.48
On the merits, petitioner Regional Director Buena maintains
that the position of Assistant Schools Division Superintendent
requires career executive service eligibility, citing Civil Service
Commission Resolution No. 02101149 dated August 1, 2002.
Since the resolution does not distinguish between a holder of a
government position in the Autonomous Region in Muslim
Mindanao and one ina regular agency of the national
government, the qualifications for positions in the national
government must apply to positions in the Autonomous Region
in Muslim Mindanao.50
In his comment, respondent Dr. Benito emphasizes that the
Regional Office took seven (7) months and 22 days to file a
memorandum with the Court of Appeals.51 He argues that the
failure of petitioner Regional Director Buenas counsel to file
the memorandum is inexcusable negligence. Consequently,
the negligence of petitioner Regional Director Buenas counsel
binds the Regional Office.
In his compliance52 dated August 20, 2012, respondent Dr.
Benito added that the issuance of Civil Service Commission
Resolution No. 100623 and, subsequently, the Regional
Assemblys enactment of the Muslim Mindanao Autonomy Act
No. 279 or the ARMM Basic Education Act of 2010 confirm that
the position of Assistant Schools Division Superintendent does
not require career executive service eligibility.53
The issues for our resolution are the following:
I. Whether the Court of Appeals erred in dismissing
the Civil Service Commission Regional Office for the
Autonomous Region in Muslim Mindanaos appealfor
its failure to file the required memorandum;
II. Whether respondent Dr. Benito correctly availed
himself of a petition for mandamus against the Civil
Service Commissions refusal to attest to his
appointment; and
III. Whether the position of Assistant Schools Division
Superintendent requires careerexecutive service
eligibility.
We rule for the Civil Service Commission Regional Office.

I manner, in obedience to the mandate of a legal authority,
The Court of Appeals did not err in dismissing the Civil Service
Commissions appeal for failure to file the required
memorandum
Failure to comply with the Rules orwith any order of the court is
a ground to dismiss the action.54 Specifically on the appellants
failure to file a memorandum with the Court of Appeals, Rule
44, Section 10 of the Rules of Civil Procedure provides:
SEC. 10. Time for filing memoranda in special cases. In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file, in lieu of briefs, their
respective memoranda within a non-extendible period of thirty
(30) days from receipt of the notice issued by the clerk that all
evidence, oral and documentary, is already attached to the
record.
The failure of the appellant tofile his memorandum within the
period therefor may be a ground for dismissal of the appeal.
Rule 50, Section 1 reiterates that the appellants failure to file
the required memorandum within the reglementary period is a
ground for the Court of Appeals to dismiss the appeal:
SECTION 1. Grounds for dismissal of appeal. An appeal
may be dismissed by the Court of Appeals,on its motion or on
that of the appellee, on the following grounds:
....
(e) Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within the time
provided by these Rules[.]
In this case, the Court of Appeals ordered the parties to file
their respective memoranda. Instead of filing the
memorandum, the Regional Office requested additional 30
days to file the pleading. The additional period requested
lapsed without the Regional Office filing the required
memorandum. The Court of Appeals, therefore, correctly
dismissed the appeal.
That "the case was not properly calendared in the list of due
dates of the . . . Associate Solicitor [handling the case]" 55 and
the Associate Solicitors "overwhelming workload" 56 do not
justify counsels failure to file the memorandum on behalf of the
Regional Office. We have ruled that heavy workload is no
excuse for failure to comply with the reglementary periods
under the Rules.57
Nevertheless, considering the important question before us, we
take cognizance of the petition and resolve the case on the
merits.58
II
A petition for mandamus is the proper remedy to compel the
Civil Service Commission to attest to the appointment of
respondent
Under Rule 65, Section 3 of the Rules of Civil Procedure, a
petition for mandamus may be filed when any tribunal,
corporation, board, officer, or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting froman office, trust, or station. It may also be
filed when any tribunal, corporation, board, officer, or person
unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled.
For mandamus to lie, the act sought to be enjoined must be a
ministerial act or duty.59 An act is ministerial if the act should
be performed "[under] a given state of facts, in a prescribed
CSC-CES Cases 101
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without regard to or the exercise of [the tribunal or
corporations] own judgment upon the propriety or impropriety
of the act done."60 The tribunal, corporation, board, officer, or
person must have no choice but to perform the act specifically
enjoined by law.61 This is opposed to a discretionary act
wherein the officer has the choice to decide how or when to
perform the duty.62
In the context of attestation of appointments in the civil service,
this court has ruled that the Civil Service Commissions
attestation is a ministerial duty once it finds the appointee
eligible for the position. The Commission "is limited only to the
non-discretionary authority of determining whether or not the
person appointed meets all the required conditions laid down
by the law."63 If the appointee possesses the required civil
service eligibility, the Commission has "no choice but to attest
to the appointment."64 As this court explained in Luego v. Civil
Service Commission:65
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
orreviewing the appointment in the light of the requirements of
the Civil Service Law. When the appointee is qualified and all
the other legal requirements are satisfied, the Commission has
no choice but to attest to the appointment in accordance with
the Civil Service Laws.66 Mandamus, therefore, is the proper
remedy to compel the Civil Service Commission to attest to a
valid appointment as this court ruled in Villegas v. Subido.67
In Villegas, Manila Mayor Antonio J. Villegas appointed
Gregorio A. Ejercito as City Legal Officer pursuant to Republic
Act No. 5185. Mayor Villegas then sent the appointment of
Atty. Ejercito to the Civil Service Commission for attestation.68
The Commission disapproved the appointment, reasoning that
Atty. Ejercito did not meet the required trial work experience.
Arguing that Atty. Ejercito possessed the requirements under
the civil service law, Mayor Villegas filed a petition for
mandamus to compel the Commission to attest to Atty.
Ejercitos appointment.69
Finding that Atty. Ejercito possessed the required civil service
eligibility, this court granted the petition for mandamus. The
Civil Service Commission was ordered to approve the
appointment of Atty. Ejercito as City Legal Officer of Manila.70
In this case, respondent Dr. Benito availed himself of the
correct remedy. Given his claim that he possesses the required
civil service eligibility for the position of Assistant Schools
Division Superintendent, he correctly filed a petition for
mandamus to compel the Civil Service Commission to approve
his appointment.
The Regional Office argues that respondent Dr. Benito availed
himself of the wrong remedy considering that the plain,
speedy, and adequate remedy of appeal to the Civil Service
Commission proper was still available. The trial court should
have dismissed respondent Dr. Benitos petition for
mandamus.
True, the general rule is that there be no other plain, speedy,
and adequate remedy in the ordinary course of law when filing
a petition for mandamus.71 Moreover, the rule on exhaustion of
administrative remedies requires that a party "exhaust all
administrative remedies to give the administrative agency an
opportunity to decide the matter and to prevent unnecessary
and premature resort to the courts."72 The Revised Uniform
Rules on Administrative Casesin the Civil Service, 73 then
effective when Dr. Benito was appointed, states:
Section 71. Complaint or Appeal to the Commission. Other
personnel actions, such as, but not limited to, separation from
the service due to unsatisfactory conduct or wantof capacity
during probationary period, dropping from the rolls due

toAbsence Without Official Leave (AWOL), physically and
mentally unfit, and unsatisfactory or poor performance, action
on appointments (disapproval, invalidation, recall, and
revocation), reassignment, transfer, detail, secondment,
demotion, or termination of services, may be brought to the
Commission, by way of an appeal.
Section 72. When and Where to File. A decision or ruling of a
department or agency may be appealed within fifteen (15) days
from receipt thereof by the party adversely affected to the Civil
Service Regional Office and finally, to the Commission Proper
within the same period.
A motion for reconsideration may be filed with the same office
which rendered the decision or ruling within fifteen (15) days
from receipt thereof. (Emphasis supplied)
Nevertheless, there are exceptionsto the rule on exhaustion of
administrative remedies. A party may directly resort to judicial
remedies if any of the following is present:
1. when there is a violation of due process;
2. when the issue involved ispurely a legal question;
3. when the administrative action is patently illegal
amounting to lack or excess ofjurisdiction;
4. when there is estoppel on the part of the
administrative agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary
whose acts as an alter ego of the President bear the
implied and assumed approval of the latter;
7. when to require exhaustion of administrative
remedies would be unreasonable;
8. when it would amount to a nullification of a claim;
9. when the subject matter is a private land in land
case proceedings;
10. when the rule does not providea plain, speedy
and adequate remedy; and
11. when there are circumstances indicating the
urgency of judicial intervention.74
In this case, the facts are undisputed. Respondent Dr. Benito is
not career executive service eligible. The question is whether
the position for which he was appointed requires career
executive service eligibility. This is a purely legal question
which is an exception to the rule on exhaustion of
administrative remedies.
All told, respondent Dr. Benito did not err in filing a petition for
mandamus with the trial court.
III
The position of Assistant Schools Division Superintendent is a
position in the Career Executive Service
Under the civil service law, positions in the Career Executive
Service are: "Under secretary, 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
CSC-CES Cases 102
Public Corporation
Career Executive Service Board, all of whom are appointed by
the President."75
In the exercise of its legal mandate, the Career Executive
Service Board issued Resolution No. 945 dated June 14, 2011,
where it set the following criteria to determine whether a
position belongs to the Career Executive Service:
1. The position is career;
2. The position is above division chief; and
3. The position entails performance of executive and
managerial functions.
Aside from satisfying the criteriaset by the Career Executive
Service Board, the holder of the position must also be a
presidential appointee.76
Applying these principles in thiscase, we rule that the position
of Assistant Schools Division Superintendent belongs to the
Career Executive Service.
The position of Assistant Schools Division Superintendent is a
career position. Appointment to the position is based on merit
and fitness and gives the appointee an opportunity for
advancement to higher career positions,77such as Schools
Division Superintendent. If permanently appointed, the
appointee is guaranteed security of tenure.78
The position is above Division Chief. An Assistant Schools
Division Superintendent has a salary grade of 25.79
As to functions and responsibilities, the Assistant Schools
Division Superintendent assists the Schools Division
Superintendent in performing the following executive and
managerial functions under Republic Act No. 9155 or the
Governance of Basic Education Act of 2001:
1. Developing and implementing division education
development plans;
2. Planning and managing the effective and efficient
use of all personnel, physical and fiscal resources of
the division, including professional staff development;
3. Hiring, placing and evaluating all division
supervisors and schools district supervisors as well as
all employees in the division, both teaching and non-
teaching personnel, including school heads, except
for the assistant division superintendent;
4. Monitoring the utilization of funds provided by the
national government and the local government units
to the schools and learning centers;
5. Ensuring compliance of quality standards for basic
education programs and for this purpose
strengthening the role of division supervisors as
subject area specialists;
6. Promoting awareness of and adherence by all
schools and learning centers to accreditation
standards prescribed by the Secretary of Education;
7. Supervising the operations of all public and private
elementary, secondary and integrated schools, and
learning centers; and
8. Performing such other functions as may be
assigned by proper authorities.80

In fact, the law recognizes that the position of Assistant
Schools Division Superintendent belongs to the Career
Executive Service. Section 7 of Republic Act No. 9155
explicitly provides that an appointee to the position must be a
career executive service officer:
SEC. 7. Powers, Duties and Functions.
....
No appointment to the positions of regional directors, assistant
regional directors, schools division superintendents and
assistant schools division superintendents shall be made
unless the appointee is a career executive service officer who
preferably shall have risen from the ranks. (Emphasis supplied)
In Osea v. Malaya,81 this court took judicial notice of the Career
Executive Service Boards Memorandum Circular No. 21,
Series of 1994, where the Board identified the position of
Assistant Schools Division Superintendent as a Career
Executive Service position.82
Even Regional Governor Hussin admitted that the President
appoints the Assistant Schools Division
Superintendent.1wphi1 In his letter-request for attestation of
respondent Dr. Benitos appointment, he said:
Our stand is that Dr. Benito, Assistant Schools Division
Superintendent being an appointee of the ARMM Regional
Governor need not possess the said eligibility. More
importantly, if the agencies of the National Government who
have fiscal autonomy enjoys the exemption, then the more for
an appointee of the ARMM for the reason that in the ARMM we
do not only exercise fiscal autonomy but weare an
Autononmous [sic] Local Government Unit with unique
structure. We emphasize that the other Assistant Schools
Superintendents in the ARMM were appointed by the President
thus, they were required to have the 3rd level eligibility
pursuant to Presidential Decree 1.
In view of this, we are submitting the herein appointment for
the approval of your Office.83 (Emphasis supplied)
It is settled, therefore, that the position of Assistant Schools
Division Superintendent belongs to the Career Executive
Service. The appointee to the position must be career
executive service eligible.
Permanent appointment to positionsin the Career Executive
Service presupposes that the appointee has passed the
Career Executive Service examinations.84 In this case,
respondent Dr. Benito does not possess the required career
executive service eligibility. He, therefore, cannot be appointed
to the position of Assistant Schools Division Superintendent in
a permanent capacity. The Civil Service Commission cannot
be compelled to attest to the permanent appointment of
respondent Dr. Benito.
The Regional Governor has the power to appoint civil servants
in the Autonomous Region in Muslim Mindanao under Article
VII, Section 19 of Republic Act No. 9054.85 In Muslim
Mindanao Autonomy Act No. 279 or the ARMM Basic
Education Act of 2010, the Regional Assembly set the
qualification standards of Assistant Schools Division
Superintendents of Divisions of the Department of Education in
the Autonomous Region:
Sec. 45. Qualification Standards of Schools Division
Superintendent and Assistant Schools Division
Superintendent.1wphi1 No person maybe appointed Schools
Division Superintendent or Assistant Schools Division
Superintendent unless he is natural born citizen of the
Philippines; a native inhabitant of the Autonomous Region; a
registered voter in any province or cityin the region for at least
five years prior to his appointment.
CSC-CES Cases 103
Public Corporation
. . . The Assistant Schools Division Superintendent, at the time
of his appointment, shall at least be a Masters Degree holder;
five years of supervisory and administrative experiences; with
relevant trainings; and possesses appropriate civil service
eligibility.
....
Nevertheless, when respondent Dr. Benito was appointed
Assistant Schools Division Superintendent in 2005, there was
yet no regional law providing for the qualifications for the
Assistant Schools Division Superintendents of Divisions of the
Department of Education in the Autonomous Region.
Consequently, the civil service eligibilities required for positions
in the national government shall likewise be required for
appointments to positions in the Autonomous Region. Article
XVI, Section 4 of Republic Act No. 9054 provides:
SEC. 4. Civil Service Eligibility. Until the Regional Assembly
shall have enacted a civil service law, the civil service
eligibilities required by the central government or national
government for appointments to public positions shall likewise
be required for appointments to government positions in the
Regional Government. As may be necessary, the Civil Service
Commission shall hold special civil service examinations in the
autonomous region. For a period not longer more than six (6)
years from the approval of this Organic Act, the central
government or national government shall endeavor to provide
appropriate civil service eligibility to applicants coming from the
autonomous region for government positions therein. The
minimum qualifications prescribed by law shall, however, be
met.
All told, respondent Dr. Benito did not possess the required
civil service eligibility at the time he was appointed Assistant
Schools Division Superintendent. Consequently, he cannot be
appointed in a permanent capacity to the position. The Civil
Service Commission cannot be compelled through a writ of
mandamus to attest to the permanent appointment of
respondent Dr. Benito.
WHEREFORE, the petition for review on certiorari is
GRANTED. The Regional Trial court, Branch 9, Lanao del
Sur's September 12, 2005 decision in Special Civil Action Case
No. 1538-05 is SET ASIDE.
SO ORDERED.
G.R. No. 194994 April 16, 2013
EMMANUEL A. DE CASTRO, Petitioner,
vs.
EMERSON S. CARLOS, Respondent.
DECISION
SERENO, CJ.:
Before us is a Petition for the issuance of a writ of quo
warranto under Rule 66 filed by Emmanuel A. de Castro
(petitioner) seeking to oust respondent Emerson S. Carlos
(respondent) from the position of assistant general manager for
operations (AGMO) of the Metropolitan Manila Development
Authority (MMDA).
On 29 July 2009, then President Gloria Macapagal Arroyo
appointed petitioner as AGM0.1 His appointment was
concurred in by the members of the Metro Manila Council in
MMDA Resolution No. 09-10, Series of 2009.2 He took his oath
on 17 August 2009 before then Chairperson Bayani F.
Fernando.3
Meanwhile, on 29 July 2010, Executive Secretary Paquito
Ochoa issued Office of the President (OP) Memorandum

Circular No. 2, Series of 2010, amending OP Memorandum
Circular No. 1, Series of 2010.
OP Memorandum Circular No. 2 states:
2. All non-Career Executive Service Officials (non-CESO)
occupying Career Executive Service (CES) positions in all
agencies of the executive branch shall remain in office and
continue to perform their duties and discharge their
responsibility 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 reappointed in the meantime.4
On 30 July 2010, Atty. Francis N. Tolentino, chairperson of the
MMDA, issued Office Order No. 106,5 designating Corazon B.
Cruz as officer-in-charge (OIC) of the Office of the AGMO.
Petitioner was then reassigned to the Legal and Legislative
Affairs Office, Office of the General Manager. The service
vehicle and the office space previously assigned to him were
withdrawn and assigned to other employees.
Subsequently, on 2 November 2010, Chairperson Tolentino
designated respondent as OIC of the Office of the AGMO by
virtue of Memorandum Order No. 24,6 which in turn cited OP
Memorandum Circular No. 2 as basis. Thereafter, the name of
petitioner was stricken off the MMDA payroll, and he was no
longer paid his salary beginning November 2010.
Petitioner sought a clarification7 from the Career Executive
Service Board (CESB) as to the proper classification of the
position of AGMO. In her reply,8 Executive Director Maria
Anthonette Allones (Executive Director Allones), CESO I,
stated that the position of AGMO had not yet been classified
and could not be considered as belonging to the Career
Executive Service (CES). She further stated that a perusal of
the appointment papers of petitioner showed that he was not
holding a coterminous position. In sum, she said, he was not
covered by OP Memorandum Circular Nos. 1 and 2.
Petitioner was later offered the position of Director IV of MMDA
Public Health and Safety Services and/or MMDA consultant.
He turned down the offer, claiming that it was a demotion in
rank.
Demanding payment of his salary and reinstatement in the
monthly payroll,9 petitioner sent a letter on 5 December 2010 to
Edenison Faisan, assistant general manager (AGM) for
Finance and Administration; and Lydia Domingo, Director III,
Administrative Services. For his failure to obtain an action or a
response from MMDA, he then made a formal demand for his
reinstatement as AGMO through a letter addressed to the
Office of the President on 17 December 2010.10
However, on 4 January 2011, President Benigno S. Aquino III
(President Aquino) appointed respondent as the new AGMO of
the MMDA.11 On 10 January 2011, the latter took his oath of
office.
Hence, the instant Petition.
The Office of the Solicitor General (OSG), representing
respondent, filed its Comment on 19 August 2011.12However,
upon motion of petitioner, it was disqualified from representing
respondent. Thus, a private law firm13entered an appearance
as counsel for respondent and adopted the Comment filed by
the OSG.14
Petitioner filed his Reply on 17 November 2011.
ISSUES
Petitioner raises the following issues15 for the consideration of
this Court:
CSC-CES Cases 104
Public Corporation
(1) Whether respondent Emerson S. Carlos was validly
appointed by President Aquino to the position of AGMO of the
MMDA;
(2) Whether petitioner Emmanuel A. de Castro is entitled to the
position of AGMO; and
(3) Whether or not respondent should pay petitioner the
salaries and financial benefits he received during his illegal
tenure as AGMO of the MMDA.
THE COURTS RULING
Petitioner contends that Section 2(3), Article IX(B) of the 1987
Constitution guarantees the security of tenure of employees in
the civil service. He further argues that his appointment as
AGMO is not covered by OP Memorandum Circular No. 2,
since it is not a CES position as determined by the CESB.
On the other hand, respondent posits that the AGMO position
belongs to the CES; thus, in order to have security of tenure,
petitioner, must be a Career Executive Service official (CESO).
Respondent maintains that the function of an AGM is executive
and managerial in nature. Thus, considering that petitioner is a
non-CESO occupying a CES position, he is covered by OP
Memorandum Circular Nos. 1 and 2. Respondent likewise
raises the issue of procedural infirmity in the direct recourse to
the Supreme Court by petitioner, who thereby failed to adhere
to the doctrine of hierarchy of courts.
Hierarchy of Courts
As to the procedural issue, petitioner submits that a direct
recourse to this Court is warranted by the urgent demands of
public interest, particularly the veritable need for stability in the
civil service and the protection of the rights of civil servants.
Moreover, considering that no other than the President of the
Philippines is the appointing authority, petitioner doubts if a trial
court judge or an appellate court justice, with a prospect of
promotion in the judiciary would be willing to go against a
presidential appointment.
Although Section 5(1) of Article VIII of the 1987 Constitution
explicitly provides that the Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus, the jurisdiction of this Court
is not exclusive but is concurrent with that of the Court of
Appeals and regional trial court and does not give petitioner
unrestricted freedom of choice of court forum.16 The hierarchy
of courts must be strictly observed.
Settled is the rule that "the Supreme Court is a court of last
resort and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and
immemorial tradition."17 A disregard of the doctrine of hierarchy
of courts warrants, as a rule, the outright dismissal of a
petition.18
A direct invocation of this Courts jurisdiction is allowed only
when there are special and important reasons that are clearly
and specifically set forth in a petition.19 The rationale behind
this policy arises from the necessity of preventing (1) inordinate
demands upon the time and attention of the Court, which is
better devoted to those matters within its exclusive jurisdiction;
and (2) further overcrowding of the Courts docket.20
In this case, petitioner justified his act of directly filing with this
Court only when he filed his Reply and after respondent had
already raised the procedural infirmity that may cause the
outright dismissal of the present Petition. Petitioner likewise
cites stability in the civil service and protection of the rights of
civil servants as rationale for disregarding the hierarchy of
courts.

Petitioners excuses are not special and important
circumstances that would allow a direct recourse to this Court.
More so, mere speculation and doubt to the exercise of judicial
discretion of the lower courts are not and cannot be valid
justifications to hurdle the hierarchy of courts. Thus, the
Petition must be dismissed.
Nature of the AGMO Position
Even assuming that petitioners direct resort to this Court is
permissible, the Petition must still be dismissed for lack of
merit.
"A petition for quo warranto is a proceeding to determine the
right of a person to use or exercise a franchise or an office and
to oust the holder from the enjoyment, thereof, if the claim is
not well-founded, or if his right to enjoy the privilege has been
forfeited."21 Where the action is filed by a private person, in his
own name, he must prove that he is entitled to the controverted
position, otherwise, respondent has a right to the undisturbed
possession of the office.22
The controversy arose from the issuance of OP Memorandum
Circular Nos. 1 and 2, which applies to all non-CESOs
occupying CES positions in all agencies of the executive
branch. Petitioner, being a non-CESO, avers that he is not
covered by these OP memoranda considering that the AGMO
of the MMDA is a non-CES position.
In order to settle the controversy, there is a need to determine
the nature of the contentious position of AGMO of the MMDA.
Career vs. non-career
Section 4 of Republic Act No. (R.A.) 7924,23 otherwise known
as the MMDA Charter, specifically created the position of
AGMO. It reads as follows:
Sec. 4 Metro Manila Council. x x x.
xxxx
The Council shall be headed by a Chairman, who shall be
appointed by the President and who shall continue to hold
office at the discretion of the appointing authority. He shall be
vested with the rank, rights, privileges, disqualifications, and
prohibitions of a Cabinet member.
The Chairman shall be assisted by a General Manager, an
Assistant General Manager for Finance and Administration, an
Assistant General Manager for Planning and an Assistant
General Manager for Operations, all of whom shall be
appointed by the President with the consent and concurrence
of the majority of the Council, subject to civil service laws and
regulations. They shall enjoy security of tenure and may be
removed for cause in accordance with law. (Emphasis
supplied)
Executive Order No. (E.O.) 292, otherwise known as The
Revised Administrative Code of 1987, provides for two
classifications of positions in the civil service: career and non-
career.24
Career service is characterized by the existence of security of
tenure,25 as contradistinguished from non-career service
whose tenure is coterminous with that of the appointing
authority; or subject to the latters pleasure; or limited to a
period specified by law or to the duration of a particular project
for which purpose the appointment was made.26
Applying the foregoing distinction to the instant case, this Court
finds that an AGMO holds a career position, considering that
the MMDA Charter specifically provides that AGMs enjoy
CSC-CES Cases 105
Public Corporation
security of tenure the core characteristic of a career service,
as distinguished from a non-career service position.
CES vs. non-CES
Career service includes the following:
(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 equivalent 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.27 (Emphasis supplied)
In Civil Service Commission v. Court of Appeals and
PCSO,28 the Court clarified the positions covered by the CES:
Thus, from the long line of cases cited above, 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. (Emphasis supplied)
In sum, there are two elements required for a position to be
considered as CES:
1) The position is among those enumerated under Book V,
Title I, Subtitle A, Chapter 2, Section 7(3) of the Administrative
Code of 1987 OR a position of equal rank as those
enumerated and identified by the CESB to be such position of
equal rank; AND
2) The holder of the position is a presidential appointee.
Records show that in reply29 to Chairperson Tolentinos query
on whether the positions of general manager and AGM of the
MMDA are covered by the CES,30 the CESB thru Executive
Director Allones categorically stated that these positions are
not among those covered by the CES.
Upon petitioners separate inquiry on the matter, 31 the CESB
similarly responded that the AGMOs position could not be
considered as belonging to the CES.32 Additionally, Executive

Director Allones said that petitioner was not covered by OP
Memorandum Circular Nos. 1 and 2, to wit:
A cursory perusal of your appointment papers would show that
it does not bear any indication that you are holding a
coterminous appointment. Neither your position as AGMO can
be considered as created in excess of the authorized staffing
pattern since RA 7924, the law that created the MMDA clearly
provided for such position. As further stated above, your
position will not fall under paragraph No. 2 of OP MC 1
because it is not yet considered as belonging to the CES.
Hence, we posit that you are not covered by OP MC 1 and 2.33
However, contrary to Executive Director Allones statement,
the CESB, through Resolution No. 799 already declared
certain positions meeting the criteria set therein as embraced
within the CES.
It is worthy of note that CESB Resolution No. 799 was issued
on 19 May 2009, even prior to petitioners appointment on 29
July 2009. Moreover, as early as 31 May 1994, the above
classification was already embodied in CSC Resolution No. 34-
2925, circularized in CSC Memorandum Circular 21, Series of
1994.
Resolution No. 799 classified the following positions as falling
within the coverage of the CES:
a. The Career Executive Service includes the positions of
Undersecretary, Assistant Secretary, Bureau director,
Assistant Bureau Director, regional Director (department-wide
and bureau-wide), Assistant Regional Director (department-
wide and bureau-wide), and Chief of Department Service;
b. Unless provided otherwise, all other managerial or executive
positions in the government, including government-owned or
controlled corporations with original charters are embraced
within the CES provided that they meet the following criteria:
i.) The position is a career position;
ii.) The position is above division chief level; and,
iii.) The duties and responsibilities of the position require
performance of executive and managerial functions.
Without a doubt, the AGMO position is not one of those
enumerated in the above-cited paragraph(a) but it clearly falls
under paragraph(b) considering that it belongs to a
government-owned and controlled corporation with an original
charter. The nature of AGMO is clear from the provisions of the
MMDA Charter.
First, we have already determined that an AGMO is a career
position that enjoys security of tenure by virtue of the MMDA
Charter.
Second, it is undisputed that the position of AGMO is above
the division chief level, which is equivalent to the rank of
assistant secretary with Salary Grade 29.34
Third, a perusal of the MMDA Charter readily reveals that the
duties and responsibilities of the position require the
performance of executive and managerial functions.
Section 12.4, Rule IV of the Rules and Regulations
Implementing R.A. 7924 provides the powers, functions, duties
and responsibilities of an AGMO, as follows:
12.4 Assistant General Manager for Operations
The Assistant General Manager for Operations shall perform
the following functions:
CSC-CES Cases 106
Public Corporation
a. Establish a mechanism for coordinating and operationalizing
the delivery of metro-wide basic services;
b. Maintain a monitoring system for the effective evaluation of
the implementation of approved policies, plans and programs
for the development of Metropolitan Manila;
c. Mobilize the participation of local government units,
executive departments or agencies of the national government,
and the private sector in the delivery of metro-wide services;
and
d. Operate a central radio communication system.
He shall perform such other duties as are incidental or related
to the above functions or as may be assigned from time to
time.
An AGMO performs functions that are managerial in character;
exercises management over people, resource, and/or policy;
and assumes functions like planning, organizing, directing,
coordinating, controlling, and overseeing the activities of
MMDA. The position requires the application of managerial or
supervisory skills necessary to carry out duties and
responsibilities involving functional guidance, leadership, and
supervision.
For the foregoing reasons, the position of AGMO is within the
coverage of the CES.
In relation thereto, positions in the career service, for which
appointments require examinations, are grouped into three
major levels:35
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
levels; and
(c) The third level shall cover positions in the Career Executive
Service. (Emphasis supplied)
Entrance to different levels requires corresponding civil service
eligibilities.36 Those at the third level (CES positions) require
career service executive eligibility (CSEE) as a requirement for
permanent appointment.37
Evidently, an AGMO should possess all the qualifications
required by third-level career service within the CES. In this
case, petitioner does not have the required eligibility.
Therefore, we find that his appointment to the position of
AGMO was merely temporary.
Amores v. Civil Service Commission38 is instructive as to the
nature of temporary appointments in the CES. The Court held
therein that an appointee cannot hold a position in a
permanent capacity without the required CES eligibility:
We begin with the precept, firmly established by law and
jurisprudence that a permanent appointment in the civil service
is issued to a person who has met the requirements of the
position to which the appointment is made in accordance with
law and the rules issued pursuant thereto. An appointment is

permanent where the appointee meets all the requirements for
the position to which he is being appointed, including the
appropriate eligibility prescribed, and it is temporary where the
appointee meets all the requirements for the position except
only the appropriate civil service eligibility.
xxxx
With particular reference to positions in the career executive
service (CES), the requisite civil service eligibility is acquired
upon passing the CES examinations administered by the CES
Board and the subsequent conferment of such eligibility upon
passing the examinations. Once a person acquires eligibility,
he either earns the status of a permanent appointee to the
CES position to which he has previously been appointed, or he
becomes qualified for a permanent appointment to that position
provided only that he also possesses all the other qualifications
for the position. Verily, it is clear that the possession of the
required CES eligibility is that which will make an appointment
in the career executive service a permanent one. Petitioner
does not possess such eligibility, however, it cannot be said
that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment
of non-CES eligibles to CES positions in the government in the
absence of appropriate eligibles and when there is necessity in
the interest of public service to fill vacancies in the
government. But in all such cases, the appointment is at best
merely temporary as it is said to be conditioned on the
subsequent obtention of the required CES eligibility. This rule,
according to De Leon v. Court of Appeals, Dimayuga v.
Benedicto, Caringal v. Philippine Charity Sweepstakes Office,
and Achacoso v. Macaraig, is invariable even though the given
appointment may have been designated as permanent by the
appointing authority.
xxxx
Security of tenure in the career executive service, which
presupposes a permanent appointment, takes place upon
passing the CES examinations administered by the CES Board
x x x.
Petitioner undisputedly lacked CES eligibility. Thus, he did not
hold the position of AGMO in a permanent capacity or acquire
security of tenure in that position. Otherwise stated, his
appointment was temporary and "co-terminus with the
appointing authority."39 In Carillo v. CA,40 this Court ruled that
"one who holds a temporary appointment has no fixed tenure
of office; his employment can be terminated at the pleasure of
the appointing power, there being no need to show that the
termination is for cause." Therefore, we find no violation of
security of tenure when petitioner was replaced by respondent
upon the latters appointment to the position of AGMO by
President Aquino.
Even granting for the sake of argument that the position of
AGMO is yet to be classified by the CESB, petitioners
appointment is still deemed coterminous pursuant to CESB
Resolution No. 945 issued on 14 June 2011, which reads:
WHEREAS, on November 23, 2010, the Supreme Court in the
case of PCSO v. CSC, G.R. NO. 185766 and G.R. No. 185767
limited the coverage of positions belonging to the CES to
positions requiring Presidential appointments.
WHEREAS, in the same vein, CES positions have now
become synonymous to third level positions by virtue of the
said ruling.
WHEREFORE, foregoing premises considered, the Board
RESOLVES, as it is hereby RESOLVED, to issue the following
guidelines to clarify the policy on the coverage of CES and its
classification:
CSC-CES Cases 107
Public Corporation
1. For career service positions requiring Presidential
appointments expressly enumerated under Section 7(3),
Chapter 2, Subtitle A, Title 1, Book V of the Administrative
Code of 1987 namely:
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant
Regional Director, and Chief of Department Service, no
classification of position is necessary to place them under the
coverage of the CES, except if they belong to Project Offices,
in which case a position classification is required, in
consultation with the Department of Budget and Management
(DBM).
2. For positions requiring Presidential appointments other than
those enumerated above, a classification of positions is
necessary which shall be conducted by the Board, upon
request of the head of office of the government
department/agency concerned, to place them under the
coverage of the CES provided they comply with the following
criteria:
i.) The position is a career position;
ii.) The position is above division chief level; and,
iii.)The duties and responsibilities of the position require the
performance of executive and managerial functions.
All appointments to positions which have not been previously
classified as part of the CES would be deemed co-terminus
with the appointing authority. (Emphasis supplied)
Therefore, considering that petitioner is an appointee of then
President Arroyo whose term ended on 30 June 2010,
petitioners term of office was also deemed terminated upon
the assumption of President Aquino.
Likewise, it is inconsequential that petitioner was allegedly
replaced by another non-CESO eligible. In a quo warranto
proceeding, the person suing must show that he has a clear
right to the office allegedly held unlawfully by another. Absent a
showing of that right, the lack of qualification or eligibility of the
supposed usurper is immaterial.41
All the foregoing considered, the petition merits an outright
dismissal for disregarding the hierarchy of courts and
petitioners lack of cause of action against respondent for
failure to sufficiently show that he has undisturbed rights to the
position of AGMO of the MMDA.
WHEREFORE, premises considered, the Petition is DENIED.
SO ORDERED.
G.R. No. 182591 January 18, 2011
MODESTO AGYAO, JR., Petitioner,
vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
MENDOZA, J.:
Assailed in this petition for review on certiorari is the
September 26, 2007 Decision1 of the Court of Appeals (CA), in
CA-G.R. SP No. 92569, which affirmed Resolution No. 05-
0821 dated June 16, 2005, issued by the Civil Service
Commission (CSC). The CSC Resolution, in turn, affirmed the
invalidation by the Civil Service Commission Field Office-
Bangko Sentral Ng Pilipinas (CSCFO-BSP) of the appointment

of petitioner Modesto Agyao, Jr. (Agyao) as Department
Manager II of the Philippine Economic Zone Authority (PEZA).
Records show that on June 16, 2004, Agyao was re-appointed
as Department Manager II of PEZA. As a matter of course, the
renewal of Agyaos appointment was submitted by PEZA to the
CSC.
On July 16, 2004, however, Agyaos re-appointment was
invalidated by the CSCFO-BSP, through a letter of Director
Mercedes P. Tabao (Director Tabao). The letter stated that
Agyao lacked the prescribed Career Executive Service Office
(CESO)/ Career Service Executive Examination (CSEE)
eligibility, and there were qualified eligibles actually available
for appointment. Section 2 (b), Rule III of CSC Memorandum
Circular No. 40, Series of 1998, provides as follows:
b. Temporary issued to a person who meets the education,
experience and training requirements for the position to which
he is being appointed except for the appropriate eligibility but
only in the absence of a qualified eligible actually available, as
certified to by the Civil Service Regional Director or Field
Officer. xxx
On August 31, 2004, PEZA Director-General Lilia B. De
Lima (Director-General De Lima) sent a letter-appeal to the
CSC seeking a reconsideration of its action on the appointment
of Agyao.
On June 16, 2005, the CSC issued Resolution No. 05-
08212 denying Director-General De Limas appeal and
affirming the invalidation by the CSCFOBSP of Agyaos
appointment as Department Manager II of PEZA. The CSC
referred to CSC Memorandum Circular (MC) No. 9, Series of
2005 (Limitations on Renewal of Temporary Appointments),
which clearly provides that only one renewal of a temporary
third-level appointment is allowed provided that there are no
qualified applicants actually available and willing to assume the
position. Moreover, although Agyaos temporary appointment
was renewed four (4) times, he failed to acquire the
appropriate third level eligibility. In addition, CSCFO-BSP
Director Tabao certified that there were qualified eligibles
available for appointment to the position of Department
Manager II.
On July 18, 2005, Agyao was informed by PEZA Deputy
Director for Finance and Administration, Justo Porfirio LL.
Yusingco, about his appointment as Division Chief III,
Permanent, effective July 16, 2005.
On August 21, 2005, Agyao filed with the CSC a Letter-Motion
for Reconsideration of its July 16, 2005 Resolution. The
motion, however, was denied in the cited CSC Resolution No.
05-1486 dated October 17, 2005.
On appeal, the CA rendered a decision dated September 26,
2007 affirming the resolution of the CSC. It ruled, among
others, that Agyao could not qualify for the position of
Department Manager II because he was not a Career Civil
Service Eligible (CESE). He could not invoke the provisions of
CSC MC No. 9, Series of 2005, issued on March 22, 2005
because the invalidation of his temporary appointment was
made earlier on July 16, 2004. Moreover, CSC Office
Memorandum No. 05, Series of 2005, issued on August 5,
2005 as a clarification on CSC MC No. 9, Series of 2005,
expressly provides that "all renewals issued on or after July 24,
2005 can no longer be renewed after they lapse."
Aggrieved, Agyao filed this petition for review before this Court
raising the following
ISSUES
WHETHER OR NOT THE COURT OF APPEALS ERRED
AND ABUSED ITS DISCRETION IN UPHOLDING THE
CSC-CES Cases 108
Public Corporation
FINDINGS OF THE CIVIL SERVICE COMMISSION
DECLARING THE APPOINTMENT OF THE PETITIONER AS
DEPARTMENT MANAGER II OF THE PEZA AS INVALID.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE POSITION OF THE PETITIONER
AS DEPARTMENT MANAGER II IS NOT COVERED UNDER
THE CAREER EXECUTIVE SERVICE CONSIDERING THE
FACT THAT HE IS NOT A PRESIDENTIAL APPOINTEE.
Agyao argues that CSC MC No. 9, Series of 2005, is
applicable to him because its provisions are favorable to him.
He claims that CSC Office Memorandum No. 05, Series of
2005, which clarified CSC MC No. 9, Series of 2005, allows
one renewal of temporary third level appointments issued
before July 24, 2005 subject to existing rules and regulations
regardless of previous renewals granted before said date.
Accordingly, he insists that the renewal of his appointment was
valid because it was made on June 16, 2004.
Agyao further points out that there are no qualified applicants
actually available and willing to assume his position as Director
Manager II at the PEZA. Director Tabaos "qualified eligibles"
in her list are from different agencies of the government and
that none of them has applied for the position. It is the reason
why the position is still vacant.
Finally, Agyao contends that the position of Department
Manager II of PEZA is not among those covered by the Career
Executive Service (CES) also known as presidential
appointees. The appointment to the position is made by the
PEZA Director-General. Accordingly, he does not need to
possess the required CESO/CSEE to continue acting as
Department Manager II.
The CSC, on the other hand, argues that Agyaos temporary
appointment on June 16, 2004 was properly invalidated
because he lacked the eligibility to qualify as Department
Manager II. Although he was re-appointed several times to the
position, he still failed to acquire third level eligibility
considering that he failed in the November 2004 CSEE.
Moreover, CSC MC No. 9, Series of 2005, and CSC Office
Memorandum No. 05, Series of 2005, cannot apply in Agyaos
favor because they were issued after the invalidation of his fifth
temporary appointment and did not provide for a retroactive
application.
The CSC also regards Agyaos contention that there are no
qualified applicants who are actually willing to assume the
position of Department Manager II as speculative and hearsay.
Actually, Director Tabao certified and furnished PEZA a list of
qualified eligibles for possible appointment as Department
Manager II.
Finally, the CSC argues that although the position of
Department Manager II does not require a presidential
appointment, it is a third level position which requires either a
CESO or CSEE eligibility. The list of third level positions in the
Career Executive Service enumerated in the Administrative
Code of 1987, namely: 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, is not strictly limited. Citing
jurisprudence,3 the CSC avers that the classification of a
particular position in the bureaucracy is determined by the
nature of the functions of the office. The third level embraces
positions of a managerial character involving the exercise of
management functions such as planning, organizing, directing,
coordinating, controlling, and overseeing the activities of an
organization or of a unit thereof. It also requires some degree
of professional, technical or scientific knowledge and
experience, and application of managerial or supervisory skills
necessary to carry out duties and responsibilities involving
functional guidance, leadership and supervision.

The rank of Department Manager II falls under the coverage of
CES under the aforementioned CSC issuances as the same is
a third level career position above the division chief level and
performing executive or managerial functions. Pursuant to the
merit-and-fitness rule in the Constitution, the consistent policy
is to the effect that non-presidential appointees to positions
with managerial and executive functions must possess third
level eligibility.
In sum, the core issue to be resolved in this case is whether or
not the position of Department Manager II of PEZA requires
CESO or CSEE eligibility.
RULING OF THE COURT
The issue is not novel. In Office of the Ombudsman v. Civil
Service Commission cases,4 Home Insurance Guarantee
Corporation v. Civil Service Commission5 and National
Transmission Corporation v. Hamoy,6 the Court has
consistently ruled that the CES covers presidential appointees
only. Corollarily, as the position of Department Manager II of
the PEZA does not require appointment by the President of the
Philippines, it does not fall under the CES.
Section 8, Chapter 2, Book V, Title 1 (Subtitle A) of Executive
Order No. 292, otherwise known as The Revised
Administrative Code of 1987, classifies the positions in the Civil
Service as follows:
Section 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 levels;
and
(c) The third level shall cover positions in the Career
Executive Service.
In the Home Insurance case, the Court ruled that "the position
of Vice-President of HIGC does not belong to the 3rd level of
the career service. Respondent Cruz has not satisfactorily
shown that his former position as Vice-President in the HIGC
belongs to the third level in the career service as prescribed by
law. His former position as Vice President is not among those
enumerated by law as falling under the third level, nor has he
established that it is one of those identified by the Career
Executive Service Board as of equivalent rank to those listed
by law. Neither is it claimed that he was appointed by the
President."
In the Office of the Ombudsman case, the Court wrote:
The CSCs opinion that the Director II positions in the Central
Administrative Service and the Finance and Management
Service of the Office of the Ombudsman are covered by the
CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7
of EO7[7] 292, otherwise known as "The Administrative Code
of 1987," provides:
SECTION 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
CSC-CES Cases 109
Public Corporation
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 equivalent rank as may
be identified by the Career Executive Service Board,
all of whom are appointed by the President;
xxx xxx x x x (emphasis supplied)
Thus, the CES covers presidential appointees only. As this
Court ruled in Office of the Ombudsman v. CSC [G.R. No.
159940, 16 February 2005, 451 SCRA 570]:
From the above-quoted provision of the Administrative Code,
persons occupying positions in the CES are presidential
appointees. x x x (emphasis supplied)
Under the Constitution, the Ombudsman is the appointing
authority for all officials and employees of the Office of the
Ombudsman, except the Deputy Ombudsmen. Thus, a person
occupying the position of Director II in the Central
Administrative Service or Finance and Management Service of
the Office of the Ombudsman is appointed by the
Ombudsman, not by the President. As such, he is neither
embraced in the CES nor does he need to possess CES
eligibility.
To classify the positions of Director II in the Central
Administrative Service and the Finance and Management
Service of the Office of the Ombudsman as covered by the
CES and require appointees thereto to acquire CES or CSE
eligibility before acquiring security of tenure will lead to
unconstitutional and unlawful consequences. It will result either
in (1) vesting the appointing power for said position in the
President, in violation of the Constitution or (2) including in the
CES a position not held by a presidential appointee, contrary to
the Administrative Code.
The same ruling was cited in the National Transmission
Corporation case, where it was further written:
"Positions in the CES under the Administrative Code include
those of Undersecretary, Assistant Secretary, 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. Simply put, third-level
positions in the Civil Service are only those belonging to
the Career Executive Service, or those appointed by the
President of the Philippines. This was the same ruling
handed down by the Court in Office of the Ombudsman v. Civil
Service Commission, wherein the Court declared that the CES
covers presidential appointees only.
xxx xxx xxx
Respondent was appointed Vice-President of VisMin
Operations & Maintenance by Transco President and CEO

Alan Ortiz, and not by the President of the Republic. On this
basis alone, respondent cannot be considered as part of the
CES.
Caringal and Erasmo cited by petitioner are not in point. There,
the Court ruled that appointees to CES positions who do not
possess the required CES eligibility do not enjoy security of
tenure. More importantly, far from holding that presidential
appointment is not required of a position to be included in the
CES, we learn from Caringal that the appointment by the
President completes the attainment of the CES rank, thus:
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 officials membership in the CES and most
importantly, confers on him security of tenure in the CES.
To classify other positions not included in the above
enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring
security of tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the appointing
power for non- CES positions in the President, in violation of
the Constitution; or (2) including in the CES a position not held
by presidential appointee, contrary to the Administrative Code.
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D.
Buenaflor issued Office Memorandum No. 27, s. 2008, which
states in part:
For years, the Commission has promulgated several policies
and issuances identifying positions in the Career Service
above Division Chief Level performing executive and
managerial functions as belonging to the Third Level covered
by the Career Executive Service (CES) and those outside the
CES, thus, requiring third level eligibility for purposes of
permanent appointment and security of tenure.
However, the issue as to whether a particular position belongs
to the Third Level has been settled by jurisprudence enshrined
in Home Insurance and Guaranty Corporation v. Civil Service
Commission, G.R. No. 95450 dated March 19, 1993 and Office
of the Ombudsman (OMB) v. Civil Service Commission; G.R.
No. 162215 dated July 30, 2007, where the Honorable
Supreme Court ruled citing the provision of Section 7(3)
Chapter 2, Title I-A, Book V of Administrative Code of 1987,
that the Third Level shall cover positions in the Career
Executive Service (CES). Positions in the Career Executive
Service consists of 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 (CESB), all of whom are
appointed by the President. To classify other positions not
included in the above enumeration as covered by the CES and
require appointees thereto to acquire CES or CSE eligibility
before acquiring security of tenure will lead to unconstitutional
and unlawful consequences. It will result either: in (1) vesting
the appointing power for non-CES positions in the President, in
violation of the Constitution; or, (2) including in the CES a
position not held by presidential appointee, contrary to the
Administrative Code.
xxx
While the above-cited ruling of the Supreme Court refer to
particular positions in the OMB and HIGC, it is clear, however,
that the intention was to make the doctrine enunciated therein
applicable to similar and comparable positions in the
bureaucracy. To reiterate, the Third Level covers only the
positions in the CES as enumerated in the Administrative Code
CSC-CES Cases 110
Public Corporation
of 1987 and those identified by the CESB as of equivalent
rank, all of whom are appointed by the President of the
Philippines. Consequently, the doctrine enshrined in these
Supreme Court decisions has ipso facto nullified all
resolutions, qualification standards, pronouncements and/or
issuances of the Commission insofar as the requirement of
third level eligibility to non-CES positions is concerned.
In view thereof, OM No. 6, series of 2008 and all other
issuances of the Commission inconsistent with the afore-stated
law and jurisprudence are likewise deemed repealed,
superseded and abandoned. x x x (Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of
Memorandum Circular (MC) No. 21, it being inconsistent with
the afore-quoted Office Memorandum and thus deemed
repealed by no less than the CSC itself.
All three cases were also cited in the recent case of Civil
Service Commission v. Court of Appeals and Philippine Charity
Sweepstakes Office,8 where a similar ruling was handed down.
Doubtless, the position of Director Manager II at the PEZA is
not among the enumerated positions in the Career Executive
Service, much less, a position that requires presidential
appointment. Even the CSC admits that the position of Director
Manager II does not require presidential appointment.
For said reason, Agyao only needs the approval of the PEZA
Director-General to validate his appointment or re-
appointment. As he need not possess a CESO or CSEE
eligibility, the CSC has no valid and legal basis in invalidating
his appointment or re-appointment as Department Manager II.
WHEREFORE, the September 26, 2007 Decision of the Court
of Appeals is hereby REVERSED and SET ASIDEand another
one entered holding that the appointment of Modesto Agyao,
Jr. as Department Manager II of PEZA was valid.
SO ORDERED.
G.R. No. 159940 February 16, 2005
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for certiorari under Rule 65 of the
1997 Revised Rules of Court seeking to set aside and nullify
Resolution No. 030919 of the Civil Service Commission (CSC)
dated August 28, 2003.
The antecedents of the case are as follows:
By letter1 dated March 7, 1994 addressed to then Ombudsman
Conrado M. Vasquez, the CSC approved the Qualification
Standards for several positions in the Office of the
Ombudsman (petitioner) including that for Graft Investigation
Officer III. The Qualification Standards for said position are:
EDUCATION: Bachelor of Laws
EXPERIENCE: 5 years of experience in the practice of law,
counseling, investigation/ prosecution of cases, hearings of
administrative/ criminal cases, legal research or other related
work.
TRAINING: 24 hours of relevant training

ELIGIBILITY: RA 1080 (Bar)
The Career Executive Service Board (CESB) subsequently
advised the Ombudsman, by letter of May 29, 1996, 2that
pursuant to CSC Memorandum Circular No. 21, s.1994, the
position of Graft Investigation Officer III, among other positions
in petitioner therein mentioned, was classified as a Career
Executive Service (CES) position, hence, governed by the
rules of the CES pertaining to eligibility, appointment to CES
ranks, and performance evaluation, among other
things.1awphi1.nt
On September 29, 1999, the members of the Constitutional
Fiscal Autonomy Group (CFAG), namely: the Commission on
Elections (COMELEC), CSC, Commission on Audit (COA),
Commission on Human Rights (CHR), petitioner and this Court
adopted Joint Resolution No. 623 reading:
JOINT RESOLUTION NO. 62
WHEREAS, the independence of the members of the
Constitutional Fiscal Autonomy Group (CFAG) is guaranteed
by the Constitution;
WHEREAS, the Constitution has several provisions that
guarantee and protect such independence, among which are
Sections 4 and 5 of Article IX, A thereof, which respectively
grant them Fiscal Autonomy and authorize them to appoint
their own officials and employees in accordance with law;
WHEREAS, Section 7(3), Title I, Book V of the
Administrative Code of 1987 enumerates exclusively and
restrictively the specific positions under the Career
Executive Service, all the holders of which are appointed
by the President and are required to have CES eligibility;
WHEREAS, in case of Home Insurance Guaranty Corporation
vs. Civil Service Commission and Daniel Cruz, G.R. No.
95450, dated 19 March 1993, the Supreme Court nullified the
classification by the CSC of the position of Corporate Vice
President as belonging to the third level of the Career
Executive Services;
WHEREAS, the Court declared in the above cited case that
said position is not among those enumerated by law as falling
under the third level, nor one of those identified by the CES
Board as equivalent rank to those listed by law, nor was the
incumbent appointed by the President;
WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T.
Yorac, G.R. No. 93867, dated 18 December 1990, the
Supreme Court ruled that "Article IX-A, Sec. 1 of the
Constitution expressly describes all Constitutional
Commissions as Independent. Although essentially executive
in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions."
WHEREAS, only the Chairmen and Commissioners of the
Constitutional Commissions, the Commission on Human
Rights, Justices and Judges, as well as the Ombudsman and
his Deputies, are appointed by the President;
WHEREAS, the Constitutional Commissions, the Supreme
Court, the Commission on Human Rights, and the Office
of the Ombudsman are empowered to appoint officials and
employees to positions belonging to first level up to third
level of their respective agencies, and that they
are not presidential appointees;
WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I,
Book V, of the Administrative Code of 1987, provides in part
that "[t]he degree of qualifications of an officer or employee
shall be determined by the appointing authority on the basis of
the qualification standard for the particular positions[,]" and par.
2 thereof provides that [t]he establishment, administration and
CSC-CES Cases 111
Public Corporation
maintenance of qualification standards shall be the
responsibility of the department or agency, with the assistance
and approval of the Civil Service Commission;"
NOW, THEREFORE, the CFAG jointly resolves:
1. That all third level positions under each
member agency are career positions;
2. That, where appropriate and proper, taking into
consideration the organizational set-up of the agency
concerned, the overall screening and selection
process for these positions shall be a collegial
undertaking, provided that the appointment paper
shall be signed only by the Head of the member
agency;
3. That all career third level positions identified
and classified by each of the member agency
are not embraced within the Career Executive
Service (CES) and as such shall not require
Career Service Executive Eligibility (CSEE) or
Career Executive Service (CES) Eligibility for
purposes of permanent appointment;
4. That should CFAG member agencies develop their
respective eligibility requirements for the third level
positions, the test of fitness shall be jointly undertaken
by the CFAG member agencies in coordination with
the CSC;
5. That in case the test of fitness shall be in written
form, the CSC shall prepare the questionnaires and
conduct the examinations designed to ascertain the
general aptitude of the examinees while the member
agency shall likewise prepare the questionnaires and
conduct in conjunction with the CSC, the
examinations to determine the technical capabilities
and expertise of the examinees suited to its functions;
6. That the resulting eligibility acquired after passing
the aforementioned examination shall appropriate for
permanent appointment only to third level positions in
the CFAG member agencies;
7. That the member agencies shall regularly
coordinate with the CSC for the conferment of the
desired eligibility in accordance with this Resolution;
However this is without prejudice to those incumbents
who wish to take the Career Service Executive
Examination given by the Civil Service Commission or
the Management Aptitude Test Battery given by the
Career Executive Service Board. (Underscoring in the
original omitted; emphasis, italics and underscoring
supplied)1awphi1.nt
On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer
M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed
Graft Investigation Officers III of petitioner by the Ombudsman.
The CSC approved the appointments on the condition that for
the appointees to acquire security of tenure, they must obtain
CES or Civil Service Executive (CSE) eligibility which is
governed by the CESB.
By January 2, 2003 letter to the CSC, the Ombudsman
requested for the change of status, from temporary to
permanent, of the appointments of Carandang, Clemente and
De Jesus effective December 18, 2002. Invoking the Court of
Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon,
et al. (CA-G.R. SP No. 49699), "as affirmed by the Supreme
Court," the Ombudsman wrote:
xxx

In the Decision of the Court of Appeals dated January 28,
2001 on CA G.R. SP No. 49699 as affirmed by the Supreme
Court with finality on July 2, 2002 in G.R. No.
148782 entitled Khem N. Inok vs. Civil Service
Commission, it stated in said Decision that the letter and
intent of the law is to circumscribe the Career Executive
Service (CES) to CES positions in the Executive Branch of
Government, and that the Judiciary, the Constitutional
Commissions, the Office of the Ombudsman and the
Commission on Human Rights are not covered by the
CES governed by the Career Executive Service Board.
Said Decision thereby effectively granted the petition of
Mr. Inok for security of tenure as Director II of the
Commission on Audit despite the absence of a CES
eligibility.4 (Emphasis and italics supplied)
The relevant portions of the cited CA decision read:
Presidential Decree No. 807, otherwise known as the Civil
Service Decree of the Philippines, provides the following levels
of position in the career service, viz:
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:
(1) The first level shall include clerical,
trades, crafts, and custodial service positions
which involve non-professional or
subprofessional work in a non-supervisory or
supervisory capacity requiring less than four
years of collegiate studies;
(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; and
(3) The third level shall cover positions in
the Career Executive Service.
(b) 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 meet the minimum
qualification requirements. Entrance to a higher
level does not require previous qualification in a
lower level. Entrance to the third level shall be
prescribed by the Career Executive Service
Board.
(c) Within the same level, no civil service examination
shall be required for promotion to a higher position in
one or more related occupational groups. A candidate
for promotion should however, have previously
passed the examination for that level.
The last sentence of Section 7(b) of P.D. No. 807 is similar to
the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit:
(a) Membership. A person who meets such managerial
experience and other requirements and passes such
examinations as may be prescribed by the Board shall be
included in the register of career service eligibles and, upon
appointment to an appropriate class in the Career Executive
Service, become an active member in the Service. In
exceptional cases, the Board may give unassembled
examinations for eligibility. The area of recruitment shall be
government-wide, with provisions to allow qualified or
CSC-CES Cases 112
Public Corporation
outstanding men from outside the government to enter the
service.
Thus, it could be gleaned from P.D. No. 1 of the Career
Executive Service (CES), which has been [d]rafted into
Executive Order No. 292, that the letter and intent of the law is
to circumscribe the Career Executive Service to CES positions
in the Executive Branch of government. Verily, consistent with
the principle of the ejusdem generisin legal hermeneutics, the
phrase "other officers of equivalent rank" could encompass
only such persons occupying positions in the Executive
Department. In the contemporaneous case of the The
Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty.
Josefina G. Bacal, the Supreme Court lent credence to this
postulate, viz:
Security of tenure in the career executive service is acquired
with respect to rank and not to position. The guarantee of
security of tenure to members of the CES does not extend
to the particular positions to which they may be appointed a
concept which is applicable only to frst and second level
employees in the civil service but to the rank to which they
are appointed by the President. x x x
Prescinding from the foregoing disquisition, We are loathe to
stamp our imprimatur to the Commissions stance that the
"positions of Director III, including that of the COA, belong to
the third level. Hence, appointees thereto should possess the x
x x Career Executive Service (CES) Eligibility in accordance
with the Qualification Standard of the said position."
Ineluctably, the judiciary, the Constitutional Commissions, the
Office of the Ombudsman, and the Commission on Human
Rights are not covered by the CES governed by the CESB.
The power of these constitutional offices to appoint their own
officers and employees is mainly intended to safeguard their
independence, which is the same power of appointment of all
officials and employees of the judiciary granted to the Supreme
Court.l^vvphi1.net As commented by a noted constitutionalist:
The authority of the Supreme Court to appoint its own officials
and employees is another measure intended to safeguard the
independence of the judiciary. However, the Courts appointing
authority must be exercised in accordance with the Civil
Service Law.
Irrefragrably, inherent in the power to appoint is the power to
administratively supervise the officials and employees in the
constitutional offices in the same manner that the express
power to appoint carries with it the implied power to remove
the personnel appointed in said offices. x x x
xxx
Parenthetically, the power to administratively supervise is
designed to strengthen the independence of the constitutional
offices. A respected authority on political law underscored the
multifarious factors that are integral to the independence of the
constitutional offices, scilicet:
There are several factors that preserve the independence of
the three Commissions:
xxx
(3) Their appointment must be in a permanent capacity.
(4) The Commissions enjoy their own fiscal autonomy.
The independence of these constitutional offices serves to
exempt their respective officials and employees from the
coverage of the CES under the administrative authority of the
CESB. to be sure, they are embraced by the civil service
system. However, the administrative functions belong to the
constitutional offices, instead of the CESB in the same

manner that the Supreme Court administers the judiciarys civil
service.
x x x5 (Italics and emphasis in the original;
underscoring partly in the original and partly supplied;
citations omitted)
It appears that Carandang and Clemente were in the meantime
conferred with CSE Eligibility pursuant to CSC Resolution No.
03-0665 dated June 6, 2003.6
Petitioner subsequently reclassified several positions by
Resolution No. 02-03 dated August 18, 2003 including Graft
Investigation Officer III which was reclassified to Graft
Investigation and Prosecution Officer III. The Ombudsman
thereupon requested the approval of the proposed
Qualification Standards for the reclassified positions. With
respect to the reclassified Graft Investigation and Prosecution
Officer III position, the Qualification Standards were the same
as those for Graft Investigation Officer III.
Subsequently, the CSC, by the challenged Resolution of
August 28, 2003, changed the status of Carandangs and
Clementes appointments to permanent effective June 6, 2003,
but not with respect to De Jesus on the ground that he "has not
met the eligibility requirements." The pertinent portion of the
questioned Resolution reads:
Relevant to the matter are Sections 4 and 6, Rule III and Rule
VI, respectively, of the Omnibus Rules on Appointments and
Other Personnel Action, which state:
SEC. 4. Nature of Appointment. The nature of appointment
shall be as follows:
xxx
i. Change of status:
1. temporary to permanent the appointment issued to a
temporary employee when he acquires the appropriate
eligibility or becomes fully qualified for the position to which he
is appointed.
xxx
SEC. 6. In cases where the appointee fully qualifies for the
position to which he is temporarily appointed, the appointing
authority shall no longer issue an appointment for change of
status from temporary to permanent. Upon the appointees
presentation of the required document/s, such change may be
effected as a footnote on the temporary appointment issued,
copy furnished the Commission.
It is explicitly provided therein that the change of status from
temporary to permanent can be effected only once the
appointee becomes fully qualified to the position to which
he is appointed.
xxx
The pronouncement of the Court of Appeals in the Inok case
cannot be made the basis for changing the employment status
of De Jesus. Let it be stressed that nowhere in the aforesaid
decision states that the Office of the Ombudsman or the other
constitutional agencies mentioned therein are exempt or are
not covered by the Civil Service Law and Rules. On the
contrary, the same decision declares that these bodies are
covered by the civil service system. Basic is the rule that all
appointments in the government service, particularly the career
service, must be in accordance with the qualification
CSC-CES Cases 113
Public Corporation
requirements as laid down under existing civil service rules and
regulations. Such policy is in line with the Commissions
mandate to professionalize the civil service. The requirements
spelled out in the Qualification Standards (QS) Manual are
designed to determine the fitness of the appointee in a
certain position. These requirements are indispensable in
order to satisfy the Constitutional mandate that
appointment in the civil service shall be made according
to merit and fitness.
While it is true that constitutional agencies such as the Office
of the Ombudsman has the authority to appoint its officials in
accordance with law, such law does not necessarily imply that
their appointment will not be subject to Civil Service Law and
Rules; otherwise, these independent bodies will arrogate upon
themselves a power that properly belongs to the Civil Service
Commission. Had the intention of the framers of the
Constitution been to isolate and grant full independence to
Constitutional Commissions in the matter of appointments, it
would have been so provided. But that is not the case. the
Philippine Constitution provides: "The Constitutional
Commissions shall appoint their officials and employees
in accordance with law" (Article IX-A, Section 4). Specifically,
Section 6, Article XI of the Constitution states that "The
officials, shall be appointed by the Ombudsman according to
the Civil Service Law." And since all matters pertaining to
appointments are within the realm of expertise to the CSC, all
laws, rules and regulations it issues on appointments must be
complied with.
The Constitution speaks of only one civil service, to
encompass the first, second, and third levels. It is subject to
the same set of laws, rules and regulations in the manner of
observing and ensuring that the merit and fitness principle,
unless otherwise exempted therefrom by the Constitution or
law, is the guiding factor in issuing appointments. Hence, until
and unless there is a law or rule exempting one category of
public officials from the test in determining merit and fitness, all
levels in the government are deemed subject to it. Simply put,
the third level eligibility requirement for third level officials in all
agencies is mandatory.
Further, let it be clarified that the ruling enunciated in Inok case
was with regard to the authority of the Career Executive
Service Board to prescribe and to administer the Career
Executive Service Eligibility and it did not specifically nor
particularly take away the functions of the Civil Service
Commission. This is evident from the aforequoted decision in
the Inok case, to wit:
The independence of these constitutional offices serves to
exempt their respective officials and employees from the
coverage of the CES under the administrative authority of the
CESB. To be sure, they are embraced by the civil service
system. However, the administrative functions belong to the
constitutional offices, instead of the CESB in the manner that
the Supreme Court administers the judiciarys civil service.
Pursuant to the QS Manual, a Graft Investigation Officer III
position is a career service position requiring a Career
Service Eligibility or Career Service Executive Eligibility.
Considering that De Jesus has not met the eligibility
requirement, the change of status of his appointment from
temporary to permanent cannot be effected. As held in
Achacoso vs. Macaraig, 195 SCRA 235:
It is settled that a permanent appointment can be issued only
to a person who meets all the requirements for the position to
which he is appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary.
x x x (Underscoring partly in the original and partly supplied;
emphasis supplied)
Hence, the present petition anchored on the following ground:

THE GENERAL POWER OF RESPONDENT CIVIL SERVICE
COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE
CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL
THE SPECIFIC DISCRETIONARY POWER OF
APPOINTMENT, INCLUDING THE GRANT OF SECURITY
OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT
CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS
OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE
RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION
NO. 030919 DATED 26 AUGUST 2003, IS
CONSTITUTIONALLY AND LEGALLY INFIRM.
Petitioner contends that the CSC misreads the ratio of the
appellate court decision in Inok. It contends that the
Ombudsman, as an appointing authority, "is specifically tasked
by the Constitution to choose his own qualified personnel,
which includes the lesser power of granting security of tenure
to his appointees once the basic qualification requirements are
satisfied."7
Petitioner likewise contends that its constitutional discretion as
an independent appointing authority cannot be curtailed by the
CSC which "has no authority to review the appointments made
by other offices except only to ascertain if the appointee
possesses the required qualifications."8
Petitioner further contends that the CES Eligibility, as
administered by the respondent CESB, cannot be validly made
a requisite for the attainment of security of tenure on qualified
career officials of petitioner who are not legally part of the CES.
Finally, petitioner argues that its officials which are appointed
by the Ombudsman are technically classified as belonging to
the Closed Career Service, the positions being unique and
highly technical as they involve investigatorial, quasi-judicial
and prosecutorial functions, in much the same way as judges
are involved in judicial functions. Hence, petitioner concludes,
appointment to such positions is likewise characterized by
security of tenure.
During the pendency of the case before this Court, the CSC,
by Resolution9 No. 040738 dated July 6, 2004, approved the
proposed Qualification Standards for Graft Investigation and
Prosecution Officer I, II and III. As proposed, the following
Qualification Standards for Graft Investigation and Prosecution
Officer III were approved:
Education : Bachelor of Laws
Experience : Five (5) years of experience in the
practice of law, counseling, investigation/ prosecution
of cases, hearings of administrative/criminal cases,
legal research or other related works
Training : 24 hours of relevant training
Eligibility : RA 1080 (BAR)
The petition is impressed with merit.
That the positions subject of the present case are unique and
highly technical in nature, as are those of the Judiciary, is
recognized by the constitutional offices under the earlier
quoted Joint Resolution No. 62 of the CFAG of which CSC is a
member.10
Inok cannot be invoked as precedent in arriving at the question
raised in this petition.l^vvphi1.net This Court dismissed the
petition of the CSC in the Inok case on a technicality therein
petitioner CSCs failure to file a reply within the required period
and not on the merits.
Book V, Title I, Subtitle A of the Administrative Code of 1987
provides:
CSC-CES Cases 114
Public Corporation
SECTION 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 equivalent rank as
may be identified by the Career Executive Service
Board, all of whom are appointed by the
President;
x x x (Emphasis and underscoring supplied)
From the above-quoted provision of the Administrative Code,
persons occupying positions in the CES are presidential
appointees. A person occupying the position of Graft
Investigation Officer III is not, however, appointed by the
President but by the Ombudsman as provided in Article IX of
the Constitution, to wit:
SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE
OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE
APPOINTED BY THE OMBUDSMAN ACCORDING TO THE
CIVIL SERVICE LAW.
To classify the position of Graft Investigation Officer III as
belonging to the CES and require an appointee thereto to
acquire CES or CSE eligibility before acquiring security of
tenure would be absurd as it would result either in 1) vesting
the appointing power for said position in the President, in
violation of the Constitution; or 2) including in the CES a
position not occupied by a presidential appointee, contrary to
the Administrative Code.
It bears emphasis that that under P.D. No 807, Sec. 9(h) which
authorizes the CSC to approve appointments to positions in
the civil service, except those specified therein, its authority is
limited "only to [determine] whether or not the appointees
possess the legal qualifications and the appropriate eligibility,
nothing else."11
It is not disputed that, except for his lack of CES or CSE
eligibility, De Jesus possesses the basic qualifications of a
Graft Investigation Officer III, as provided in the earlier quoted
Qualification Standards. Such being the case, the CSC has the
ministerial duty to grant the request of the Ombudsman that
appointment be made permanent effective December 18,
2002. To refuse to heed the request is a clear encroachment
on the discretion vested solely on the Ombudsman as
appointing authority.12 It goes without saying that the status of
the appointments of Carandang and Clemente, who were
conferred CSE eligibility pursuant to CSC Resolution No. 03-
0665 dated June 6, 2003, should be changed to permanent
effective December 18, 2002 too.
In a Supplemental Memorandum13 received by this Court on
January 5, 2005, the CSC alleged that, inter alia:

. . . the reclassified G[raft] I[nvestigation and] P[rosecution]
O[fficer] III position is the same position which is the subject of
the herein case. Suffice it to state that the eligibility
requirement under the new QS is no longer third level eligibility
but RA 1080 (BAR) instead. However, notwithstanding the said
approval of the new QS for GIPO III, CSC prays that the issues
raised by the Office of Ombudsman relative to the authority of
the CSC to administer the Civil Service Executive Examination
for third level positions and to prescribe third level eligibility to
third level positions in the Office of the Ombudsman be
resolved.
As the Court takes note of the information of the CSC in its
Supplemental Memorandum, it holds that third level eligibility is
not required for third level officials of petitioner appointed by
the Ombudsman in light of the provisions of the Constitution vis
a vis the Administrative Code of 1987 as discussed above.
WHEREFORE, the petition is hereby GRANTED. Resolution
No. 030919 of the Civil Service Commission dated August 28,
2003 is hereby SET ASIDE. The appointment of Jose Tereso
U. de Jesus, Jr., as well as those of Melchor Arthur H.
Carandang, Paul Elmer M. Clemente, is hereby ordered made
permanent effective December 18, 2002.
SO ORDERED.
G.R. No. 174237 February 18, 2010
TERESITA L. ARAOS, CORAZON L. BALAGBIS, ROBERTO
B. BAUTISTA, MARITA S. BELTRAN, RAUL A. CASIANO,
HIDELZA B. CASTILLO, ELEONORA CINCO, MAY
CATHERINE C. CIRIACO, ERLINDA G. DEL ROSARIO,
AMELITA C. DELA TORRE, ALMA R. FAUSTO,
ANTONETTE L. FERNANDEZ, CORITA M. GADUANG,
VIRGINIA E. GALLARDE, MA. LUZ C. GENEROSO, MA.
TERESA C. IGNACIO, EDDIE A. JARA, JOSIE MAGANA,
ANTONIO G. MARALIT, NANCIANCINO L. MONREAL,
MARIBEL D. ORTIZ, ALAN GENE O. PADILLA, JESUS C.
PAJARILLO, MIGUEL E. ROCA JR., EDGAR M. SANDALO,
AGNES E. SAN JOSE, EVELYN P. SAAYON, JUDY
FRANCES A. SEE, MARIO R. SIBUCAO, CARMEN O.
SORIANO, and ARNOLD A. TOLENTINO, Petitioners,
vs.
HON. LEA REGALA, Presiding Judge, RTC, Branch 226,
Quezon City and SOCIAL SECURITY SYSTEM
(SSS), Respondents.
DECISION
CARPIO MORALES, J.:
On December 16, 1975, Presidential Decree No. 847,
"ADOPTING A COMPENSATION SCHEME FOR THE
CAREER EXECUTIVE SERVICE AND RELATED MATTERS,"
was issued, its provision pertinent to the case at bar reads:
SECTION 3. As a general rule, the salaries of Career
Executive Service Officers shall start at Grade 2 of the
corresponding rank in this Compensation Scheme and those of
incumbents of and new appointees to Career Executive
Service positions who are not Career Executive Service
Officers shall start at Grade 1 of the corresponding rank:
Provided, That in the case of said incumbents who are not
members of the Career Executive Service, subsequent salary
increases and/or rank promotions may be granted only after
satisfactory completion of the Career Executive Service
Development Program and compliance with such requirements
as the Board shall set: Provided, further, That nothing herein
stated shall reduce any salary received by any incumbent of
any Career Executive Service position as a consequence of
the implementation of the herein Compensation Scheme,
except that the salary of his successor shall be in conformity
with this Scheme. (emphasis and underscoring supplied)
CSC-CES Cases 115
Public Corporation
On July 3, 1991, the Office of the President issued
Memorandum Order No. 372, "MODIFYING THE RANKING
STRUCTURE AND SALARY SCHEDULE IN THE CAREER
EXECUTIVE SERVICE (CES)," the relevant sections of which
provide:
SECTION 1. The ranking structure and salary schedule in the
Career Executive Service (CES) are hereby modified to read
as follows:
CES Rank Salary Grade
CESO I SG 30
CESO II SG 29
CESO III SG 28
CESO IV SG 27
CESO V SG 26
CESO VI SG 25
SECTION 2. The Career Executive Service Board shall
establish the mechanics for the classification of members of
the CES in accordance with the above ranking structure and
shall issue the corresponding rules and regulations.
SECTION 3. All issuances, rules and regulations or parts
thereof inconsistent with the provisions of this Memorandum
Order are hereby repealed. (underscoring supplied)
On October 21, 1994, the Civil Service Commission (CSC)
issued Resolution No. 94-5840 providing that a Career
Executive Service Officer (CESO) is entitled to the second step
of the salary grade of his rank.1
The Career Executive Service Board (CESB) later issued, on
April 12, 1996, Resolution No. 129 stating that:
x x x Career Executive Service Officers (CESOs), who
were already receiving at least the second step of the
salary grades of their ranks due to merit or longevity prior to
the issuance of CSC Resolution No. 5840, otherwise known as
"Rules on Compensation in the CES including those of
Graduates of NDCP and CESDP", are entitled to a one-step
adjustment as provided for in the Paragraph 3.1.4 of subject
Resolution, the spirit of which is to set apart the CESOs and
non-CESOs;
x x x [E]ntitlement is made retroactive to November 1994, the
effectivity date of Resolution No. 5840.2 (emphasis and
underscoring supplied)
Still later, the CESB issued, on May 29, 1996, Circular No. 12
laying down guidelines on the grant of a one-step adjustment
in the salary of CESOs. The applicable provisions of the
Circular state:
x x x [A] CESO whose salary at the time of the issuance of
CSC Resolution No. 94-5840 is already on the second or
higher step of the salary grade of his rank by virtue of step
increments earlier granted based either on merit or length of
service, shall be entitled to a one-step adjustment in the salary
grade of his rank effective 26 November 1994; provided that
where the rank of a CESO has a salary grade lower than that
of the CES position to which he is assigned/appointed to, the

one-step salary adjustment shall be based on the salary grade
of the higher position; provided, finally, that where the salary of
the CESO is already at the eighth step of the salary grade of
his rank or position, this one-step entitlement shall no longer
apply;
This benefit shall likewise apply to those appointed to the CES
ranks after the issuance of the said CSC resolution who are
already receiving the second or higher step of the salary
grades of their ranks subject to the conditions set forth herein;
Career Executive Service Officers (CESOs) are officials who
have CES eligibility and have been duly appointed by the
president to ranks in the CES;
This Circular shall take effect immediately.3 (italics and
underscoring supplied)
Republic Act (RA) No. 8282, otherwise known as the Social
Security Act of 1997, was then enacted, Section 3(c)4of which
exempted respondent Social Security System (SSS) from the
application of RA No. 6758, "The Compensation and Position
Classification Act of 1989" or the Salary Standardization Law.
The Social Security Commission (SSC) thus issued, on July
24, 1997, Resolution No. 523 prescribing the new SSS Salary
Structure and Benefits Package.1awph!1
In 1999, petitioners-SSS employees were appointed and/or
promoted to CESO ranks.
On June 20, 2001, the SSC approved Resolution No. 483
appropriating funds for the grant of a one-step salary increment
to nine SSS CESOs. Shortly thereafter, however, or on June
25, 2001, the Office of the President issued Memorandum
Order No. 20, which reads in relevant part:
x x x I, Gloria Macapagal-Arroyo, President of the Republic of
the Philippines xxx do hereby order and direct all heads of
GOCCs, GFIs and subsidiaries exempt from or not following
the SSL to
SECTION 1. Immediately suspend the grant of any salary
increases and new or increased benefits such as, but not
limited to, allowances; incentives; reimbursement of expenses;
intelligence, confidential or discretionary funds; extraordinary
expenses, and such other benefits not in accordance with
those granted under SSL. This suspension shall cover
senior officer level positions, including Members of the
Board of Directors or Trustees.
xxxx
SECTION 3. Any increase in salary or compensation of
GOCCs/GFIs that are not in accordance with the SSL shall
be subject to the approval of the President. (emphasis and
underscoring supplied)
The corporate auditor of the Commission on Audit thus advised
the President of the SSS, by Memorandum dated June 29,
2001, against the implementation of a one-step salary
increment for SSS CESOs in view of Memorandum Order No.
20 of the President. The Office of the Government Corporate
Counsel (OGCC) likewise issued, on August 13, 2001, an
opinion, that unless approved by the Office of the President, a
one-step salary increment for SSS CESOs may not be
implemented.5
Acting under the OGCCs advice, the SSS recommended, on
April 9, 2002, to the Office of the President the approval of a
one-step salary adjustment for SSS CESOs. On even date, the
Department of Budget and Management, to which the Office of
the President referred the SSS recommendation, declared:
The CES Charter under Presidential Decree No. 1 provides the
grant of attractive and better compensation and benefits to
CSC-CES Cases 116
Public Corporation
CESOs to reward and motivate them in their pursuit of
personal and career excellence. Along this line, CSC
Resolution No. 94-5840 provides higher salary through an
automatic step adjustment as reward and to set them apart
from other government executives through pay.
xxxx
. . . [T]he CES pay under CSC Resolution No. 94-5840 is
based on SSL. The S[alary] G[rade] equivalence for each
CESO rank and the automatic 2nd step adjustment are all
based on the salary schedule and position classification and
compensation system prescribed under SSL. Since SSS is
exempt from the SSL, we believe that CSC Resolution No.
94-5840 does not apply to SSS and other SSL-exempt
agencies, but only to agencies following the SSL. 6 (emphasis,
italics and underscoring supplied)
Petitioners, however, made repeated requests to the SSS
management for the release of the one-step salary adjustment,
but to no avail, drawing them to file, on January 9, 2004, a
petition7 for mandamus before the Regional Trial Court (RTC)
of Quezon City, praying that the SSS be ordered to implement
the one-step salary increment due them by virtue of their
CESO rank.
By Decision of August 30, 2004,8 Branch 226 of the Quezon
City RTC dismissed the petition. The Court of Appeals, by
Decision of December 29, 2005,9 affirmed the dismissal,
hence, the present Petition for Review on Certiorari.10
The petition is bereft of merit.
For mandamus to issue, it is essential that the person
petitioning for it has a clear legal right to the claim sought. 11It
will not issue to enforce a right, or to compel compliance with a
duty, which is questionable or over which a substantial doubt
exists.12 Thus, unless the right to the relief sought is
unclouded, it will be denied.
The Court gathers that the intention of the law is to maintain,
under the Modified Ranking Structure and Salary Schedule in
the CES, the distinction between CESOs and non-CESOs
established by Section 3 of Presidential Decree No. 847.
The maintenance of the distinct status given to CESOs who,
prior to the issuance of CSC Resolution No. 94-5840 on
October 21, 1994, were already receiving at least the second
step of the salary grade of their rank due to longevity or merit is
the rationale behind the one-step salary increment granted by
Resolution No. 129.13
Without the increment, a CESO who, due to longevity or merit,
is already receiving the second step of the salary grade of his
rank as of the effectivity of CSC Resolution No. 94-5840, would
be no different from a similarly situated non-CESO within the
same salary grade. Thus, even if the one-step salary increment
granted by CESB Circular No. 12 were not covered by the
suspension of the grant in Memorandum Order No. 20,
petitioners must nevertheless satisfy the conditions established
by CESB Circular No. 12 to entitle them to the one-step salary
increment.
Petitioners must thus establish that when they were appointed
or promoted to CESO ranks in 1999, they were already
receiving the second step of the salary grade of their ranks.
Petitioners failed to do so, however.1avvphi1
Besides, as the SSS points out,14 CESB Circular No. 12 is
unenforceable. Per the certification issued by the Office of the
National Register (ONAR) of the University of the Philippines
Law Center dated March 30, 2004,15 the CESB failed to file
three copies of CESB Circular No. 12 with the ONAR. Sections
3 and 4 of Chapter 2, Book VII of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, provide:

Sec. 3. Filing. (1) Every agency shall file with the University
of the Philippines Law Center three (3) certified copies of every
rule adopted by it. Rules in force on the date of effectivity of
this Code which are not filed within three (3) months from that
date shall not thereafter be the basis of sanction against any
party or persons.
xxxx
Sec. 4. Effectivity. In addition to other rule-making
requirements provided by law not inconsistent with this Book,
each rule shall become effective fifteen (15) days from the date
of filing as above provided unless a different date is fixed by
law, or specified in the rule in cases of imminent danger to
public health, safety and welfare, the existence of which must
be expressed in a statement accompanying the rule. The
agency shall take appropriate measures to make emergency
rules known to persons who may be affected by them.
(underscoring supplied)
As CESB Circular No. 12 has not been filed with the ONAR, it
has yet to take effect. It is, therefore, unenforceable. 16
WHEREFORE, the petition is DENIED.
SO ORDERED.
G.R. No. 185766 November 23, 2010
CIVIL SERVICE COMMISSION, Petitioner,
vs.
COURT OF APPEALS and PHILIPPINE CHARITY
SWEEPSTAKES OFFICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 185767
CIVIL SERVICE COMMISSION, Petitioner,
vs.
COURT OF APPEALS and PHILIPPINE CHARITY
SWEEPSTAKES OFFICE, Respondents.
DECISION
MENDOZA, J.:
These are two consolidated petitions for review
on certiorari under Rule 45 of the Rules of Court filed by the
Civil Service Commission (CSC) questioning two separate
decisions of the Court of Appeals (CA) regarding appointments
in the Philippine Charity Sweepstakes Office (PCSO).
In G.R. No. 185766, petitioner CSC seeks to set aside the
August 12, 2008 Decision1 of the CA in CA-G.R. SP No. 98800
and its November 28, 2008 Resolution denying petitioners
motion for reconsideration thereof.
In G.R. No. 185767, petitioner CSC seeks to set aside the
June 26, 2008 Decision2 of the CA in CA-G.R. SP No. 99119
and its November 17, 2008 Resolution denying petitioners
motion for reconsideration.
THE FACTS
(A) G.R. No. 185766
On March 16, 2005, 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 as Assistant Department Manager II. 3
CSC-CES Cases 117
Public Corporation
On April 26, 2005, the Civil Service Commission Field Office
Office of the President (CSCFO-OP) disapproved the
temporary appointment of Sarsonas as she failed to meet the
eligibility requirement for the position.4 CSCFO-OP certified
that there were qualified individuals who signified their interest
to be appointed to the position, namely, Mercedes Hinayon
and Reynaldo Martin.5
On May 10, 2005, PCSO filed an appeal with the CSC-National
Capital Region (CSC-NCR).6 In a letter dated June 21, 2005,
the CSC-NCR affirmed the disapproval by CSCFO-OP of the
temporary appointment of Sarsonas on the following grounds:
(a) that she failed to meet the eligibility requirement; and (b)
that there were two qualified eligibles who signified their
interest to be appointed to the said position, as certified by
CSCFO-OP.7
PCSO filed an appeal with CSC on August 15, 2005.8 On
March 15, 2006, the CSC dismissed the appeal in CSC
Resolution No. 06-0466, the dispositive portion of which states:
WHEREFORE, the appeal of General Manager Rosario C.
Uriarte, Philippine Charity Sweepstakes Office (PCSO),
is DISMISSED. Accordingly, the disapproval by the Civil
Service Commission National Capital Region (CSC-NCR),
Quezon City, of the temporary appointment of Josefina A.
Sarsonas as Assistant Department Manager II, Internal Audit
Department (IAD), PCSO is AFFIRMED.9
PCSO filed a motion for reconsideration but it was denied in
CSC Resolution No. 070572.10
Convinced of its position, PCSO elevated the case to the CA,
which reversed the assailed CSC resolutions in its August 12,
2008 decision.11 CSCs motion for reconsideration was denied
in a Resolution dated November 28, 2008.12
(B) G.R. No. 185767
On November 25, 2004, the PCSO Board of Directors resolved
to appoint Lemuel G. Ortega (Ortega) as Assistant Department
Manager II of its Planning and Production Department. 13 The
PCSO General Manager, thus, issued a fourth renewal of his
temporary appointment.14
On December 7, 2004, CSCFO-OP disapproved the temporary
appointment of Ortega for his failure to meet the eligibility
requirement for the position.15 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.16
On March 4, 2005, CSCFO-OP returned the said appointment
to PCSO.17
On March 18, 2005, PCSO wrote to CSC-NCR seeking
reconsideration of CSCFO-OPs disapproval of Ortegas
temporary appointment.18 The letter cited Ortegas thirty nine
(39) years of experience in planning and production and his
competence in his assigned tasks.19 The letter also stated that
PCSO management had the utmost trust and confidence in
Ortega with regard to carrying out the duties and
responsibilities attached to the subject position.20
On June 21, 2005, CSC-NCR affirmed CSCFO-OPs
disapproval of Ortegas temporary appointment21 on the
ground that he failed to acquire the required eligibility despite
the four-year period within which he could have done so.22
PCSO appealed to the CSC alleging that Ortega possessed all
the requirements necessary for the subject position except the
needed eligibility.23 PCSO also claimed that the qualified
eligibles who had indicated their interest to be appointed to the

position did not possess the same training for such highly
technical positions.24
PCSO further reasoned out that Section 7(3), Title I, Book V of
the Administrative Code of 1987 provides an exclusive
enumeration of the specific positions covered by the Career
Executive Service (CES), all of whom are appointed by the
President and are required to have Career Service Executive
(CSE) eligibility.25 PCSO argued that since the position of
Assistant Department Manager II does not require presidential
appointment, then it does not require CSE eligibility.26
On March 28, 2006, CSC issued Resolution No. 06-0528
disapproving Ortegas fourth temporary appointment. 27PCSOs
motion for reconsideration was denied in Resolution No. 07-
0821 dated April 30, 2007.28
When PCSO appealed before the CA, the appellate court set
aside the above resolutions in its June 26, 2008
Decision.29 CSCs motion for reconsideration was denied in a
Resolution dated November 17, 2008.30
RULING OF THE COURT OF APPEALS
In both G.R. Nos. 185766 and 185767, the CA ruled that CSC
erred in finding that the position of Assistant Department
Manager II requires CSE eligibility,31 rendering improper the
temporary appointments of Sarsonas and Ortega, respectively.
In G.R. No. 185766, the CA held that the resolution of the
PCSO Board to appoint Sarsonas as Assistant Department
Manager II was a policy decision and an exercise of
management prerogative over which the CSC has no power of
review.32 Since the position of Assistant Department Manager
II was not one of those enumerated under the Administrative
Code, and was not identified by the Career Executive Service
Board (CESB)as equivalent to those listed under the law, then
"the position of Assistant Department Manager II does not fall
under the category pertaining to the Career Executive
Service."33
In G.R. No. 185767, the CA similarly ruled that the Career
Executive Service does not cover the position of Assistant
Department Manager II in the Planning and Production
Department of the PCSO.34 Therefore, it follows that CSE
eligibility is not required for the said position, and the CSC
should have affirmed Ortegas temporary appointment to the
said position.35
In resolving both cases, the CA cited Book V, Title I, Subtitle A
of Executive Order (E.O.) No. 292 or the Administrative Code
of 1987, and stated that the position of Assistant Department
Manager II of the PCSO was not one of those specific
positions under the CES enumerated under Section 7(3), Title
I, Book V, all the holders of which must be presidential
appointees, thus, requiring CSE eligibility.36 The said provision
states:
SECTION 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:
xxx
(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 equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the
President;
CSC-CES Cases 118
Public Corporation
xxx.
Citing Office of the Ombudsman v. Civil Service
Commission,37 the CA concluded that since the Assistant
Department Manager II was appointed not by the President of
the Philippines but by the PCSO General Manager, subject to
approval or confirmation of the PCSO Board of Directors, as
provided for under its Charter, then Sarsonas was not a
presidential appointee, and her position should not have been
included by the CSC in the list of positions requiring CSE
eligibility.38 In the case of Ortega, the CA cited the same case
but fell short of making a similar categorical pronouncement.39
Moreover, in the case of Sarsonas, the CA noted and agreed
with the dissenting opinion of CSC Commissioner Cesar D.
Buenaflor (Commissioner Buenaflor) in Resolution No.
070572.40 Commissioner Buenaflor opined that the position of
Assistant Department Manager II and other similar positions in
government financial institutions and government-owned and
controlled corporations were erroneously classified by the CSC
as belonging to the third level position in the civil service. 41
Regarding the two qualified eligibles who signified their interest
to be permanently appointed to any third level position, the CA
stated that Mercedes J. Hinayon (Hinayon) was designated as
Officer-in-Charge, Assistant Department Manager of the Draw
and Races Department, and would, according to the PCSO, be
eventually considered for promotion in the said
department.42 On the other hand, Reynaldo Martin (Martin), the
OIC-Regional Manager of the Northern and Central Luzon
Online Lottery Section, was likewise being considered by
PCSO management for promotion to a position which would
suit his experience and expertise.43 The CA also stressed that
there was no showing in the records that either Hinayon or
Martin ever protested Sarsonas appointment as Assistant
Department Manager II.44
In the case of Ortega, the CA wrote that the responsibility for
the establishment, administration and maintenance of
qualification standards lies with the department or agency
concerned. CSCs role is limited to (1) assisting the department
or agency with respect to those qualification standards, and (2)
approving them.45 Therefore, the CSC cannot substitute its
own standards for those of the department or agency
concerned.46
Lastly, the CA held that under Presidential Decree No. 807,
Section 9(h), which authorized the CSC to approve
appointments to positions in the civil service, except those
specified therein, the CSCs authority was limited to the
determination of whether the appointees possess the legal
qualifications and the appropriate eligibility. 47 In this case, the
CA stated, except for her lack of CSE eligibility, Sarsonas
possessed the basic qualifications of an Assistant Department
Manager II, as determined by the PCSO General Manager and
Board of Directors. Such being the case, the CSC had the
ministerial duty to approve the temporary appointment of
Sarsonas to the said position.48 The refusal to approve the
appointment was a clear encroachment on the discretion
vested solely in the PCSO General Manager and Board of
Directors as appointing authority.491awphil
CSC, in its petitions for review before this Court, raises this
ISSUE
WHETHER THE COURT OF APPEALS ERRED IN SETTING
ASIDE THE CSC RESOLUTIONS DISAPPROVING THE
TEMPORARY APPOINTMENTS OF SARSONAS AND
ORTEGA AS ASSISTANT DEPARTMENT MANAGER II FOR
LACK OF THE REQUIRED THIRD LEVEL ELIGIBILITY.
Stated otherwise, the core issue to be resolved in this case is
whether or not the position of Assistant Department Manager II
falls under the CES.

RULING OF THE COURT
Following the ruling in Office of the Ombudsman v. Civil
Service Commission cases50 and Home Insurance Guarantee
Corporation v. Civil Service Commission,51 the Court is of the
position that 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
subprofessional 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
CSC-CES Cases 119
Public Corporation
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."
Also worthy of note are CSC Resolution No. 100623 dated
March 29, 2010 and CSC Memorandum Circular No. 7, S.
2010, both of which provide for clarificatory guidelines on the
scope of the third level in the civil service:
1. The third level or Career Executive Service (CES)
shall only cover the positions of 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;
2. Executive and managerial positions in the career
service other than the foregoing shall belong to the
second level; and
3. All policies and issuances of the Commission which
are not in conformity with these guidelines are
superceded, repealed, amended or modified
accordingly.
As earlier stated, the Court interpreted Section 7(3) to mean
that the CES covers presidential appointees only.
In Home Insurance Guarantee Corporation v. Civil Service
Commission, the Court stated that the position of HIGC Vice
President is not covered by the CES52 as (1) the position is not
enumerated by law as falling under the third level; 53 (2)
respondent Cruz has not established that the position is one of
those identified by the CESB as being of equivalent rank to
those listed by law;54 and (3) the holder thereof is not
appointed by the President.55
In the 2005 case of Office of the Ombudsman v. Civil Service
Commission,56 the Court used a similar process of deduction to
arrive at the conclusion that the position of Graft Investigation
Officer III was not a CES position. In the said case, the Court
wrote:

From the above-quoted provision of the Administrative
Code,57 persons occupying positions in the CES are
presidential appointees. A person occupying the position of
Graft Investigation Officer III is not, however, appointed by the
President but by the Ombudsman as provided in Article IX of
the Constitution, to wit:
xxx
To classify the position of Graft Investigation Officer III as
belonging to the CES and require an appointee thereto to
acquire CES or CSE eligibility before acquiring security of
tenure would be absurd as it would result either in 1) vesting
the appointing power for said position in the President, in
violation of the Constitution; or 2) including in the CES a
position not occupied by a presidential appointee, contrary to
the Administrative Code. [Reference and emphasis provided.] 58
Two years later, the Court was again confronted with the same
issue in an identically named case. It held that as the position
of Director II in the Central Administrative Service or Finance
and Management Office of the Office of the Ombudsman was
appointed by the Ombudsman, and not by the President, "he is
neither embraced in the CES nor does he need to possess
CSE eligibility."59 In the 2007 Office of the Ombudsman v. Civil
Service Commissioncase, the Court, citing the 2005 case,
said:
The CSCs opinion that the Director II positions in the Central
Administrative Service and the Finance and Management
Service of the Office of the Ombudsman are covered by the
CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7
of EO 292, otherwise known as "The Administrative Code of
1987," provides:
xxx
Thus, the CES covers presidential appointees only. As this
Court ruled in Office of the Ombudsman v. CSC:
"From the above-quoted provision of the Administrative
Code, persons occupying positions in the CES are
presidential appointees. x x x" (Underscoring supplied.
Emphasis authors own.)60
The above 2007 case was, in turn, cited by the Court two years
later in National Transmission Corporation v. Hamoy,61 where
again, it was categorically stated that the CES covers only
presidential appointees:
Petitioner also cites Caringal v. Philippine Charity
Sweepstakes Office (PCSO) and Erasmo v. Home Insurance
Guaranty Corporation, to show that a presidential appointment
is not required before a position in a government corporation is
classified as included in the CES. We are not convinced.
xxx
Positions in the CES under the Administrative Code include
those of Undersecretary, Assistant Secretary, 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. Simply put, third-level
positions in the Civil Service are only those belonging to the
Career Executive Service, or those appointed by the President
of the Philippines. This was the same ruling handed down by
the Court in Office of the Ombudsman v. Civil Service
Commission, wherein the Court declared that the CES covers
presidential appointees only.
xxx
Respondent was appointed Vice-President of VisMin
Operations and Maintenance by Transco President and CEO
CSC-CES Cases 120
Public Corporation
Alan Ortiz, and not by the President of the Republic. On this
basis alone, respondent cannot be considered as part of the
CES.62 [Underscoring and emphases supplied]
In said case, the Court clarified that the cases cited by
the National Transmission Corporation case, to wit: Caringal v.
Philippine Charity Sweepstakes Office (PCSO) and Erasmo v.
Home Insurance Guaranty Corporation, which, incidentally,
were also cited by CSC in this petition, were not in point with
respect to the question of whether a position is covered by the
CES:
Caringal and Erasmo cited by petitioner are not in point. There,
the Court ruled that appointees to CES positions who do not
possess the required CES eligibility do not enjoy security of
tenure. More importantly, far from holding that presidential
appointment is not required of a position to be included in the
CES, we learn from Caringal that the appointment by the
President completes the attainment of the CES rank, thus:
"Appointment to a CES Rank
Upon conferment of a CES eligibility and compliance with the
other requirements prescribed by the Board, and 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
officials membership in the CES, and most importantly,
confers on him security of tenure in the CES.
To classify other positions not included in the above
enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring
security of tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the appointing
power for non-CES positions in the President, in violation of
the Constitution; or (2) including in the CES a position not held
by a presidential appointee, contrary to the Administrative
Code."63 [Italics authors own]
Thus, from the long line of cases cited above, 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.
WHEREFORE, the petitions are DENIED.
SO ORDERED.
G.R. No. 161942 October 13, 2005

JOSE M. CARINGAL, Petitioner,
vs.
PHILIPPINE CHARITY SWEEPSTAKES OFFICE
(PCSO), Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
A permanent appointment in the career service is issued to a
person who has met the requirements of the position to which
the appointment is made in accordance with the provisions of
law, the rules and the standards promulgated pursuant
thereto.1 It implies that the appointee is a civil service
eligible.2 Thus, while the appointing authority has the discretion
to choose whom to appoint, the choice is subject to the caveat
that the appointee possesses the required qualifications. 3
For our resolution is the instant petition for review
on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, filed by Atty. Jose M. Caringal,
petitioner, assailing the January 27, 2004 Decision4 of the
Court of Appeals in CA-G.R. SP No. 66695, entitled "JOSE M.
CARINGAL vs. PHILIPPINE CHARITY SWEEPSTAKES
OFFICE, ET AL."
On December 9, 1998, petitioner was appointed Assistant
Department Manager II in the Philippine Charity Sweepstakes
Office (PCSO), respondent. On December 18, 1998, then
PCSO Chairman, Justice Cecilia Munoz-Palma, instructed him
to assume the duties and responsibilities of Assistant Manager
in the Legal Department.
Subsequently, Chairman Ricardo Golpeo replaced Justice
Munoz-Palma. On May 16, 2000, he issued Special Order No.
2000-139 re-assigning petitioner to the Assets and Investment
Department.
On May 18, 2000, petitioner sent a Memorandum to Chairman
Golpeo and Ms. Maripaz Magsalin, Assistant General Manager
for Administration, protesting his re-assignment, the same
being a constructive dismissal.
On May 19, 2000, Director Arnel Del Monte of the Civil Service
Commission (CSC) wrote Manager Francisco Swin of the
PCSO Administrative Department, stating that his office
inadvertently omitted to stamp on petitioners appointment
the collatilla that "the appointee does not have security of
tenure until he obtains a CES eligibility."
However, Director Del Monte could not effect the necessary
correction since petitioner has the original copy of his
appointment.
On June 16, 2000, petitioner filed with the CSC an
administrative complaint for constructive dismissal and
culpable violation of the Constitution on civil service
appointments against Chairman Golpeo and Assistant General
Manager Magsalin.
On June 22, 2000, the PCSO Board of Directors issued
Resolution No. 793 terminating the employment of petitioner
on the ground that he does not have security of tenure as he
does not possess a Career Executive Service (CES) eligibility.
On June 28, 2000, Chairman Golpeo issued a Memorandum to
petitioner informing him that his temporary appointment as
Assistant Department Manager II of the Legal Department is
terminated effective June 30, 2000, in accordance with
Sections 4 and 13 of Rule 5 on Appointments under the
Omnibus Rules Implementing Book 5 of Executive Order No.
292.5
Meantime, on February 15, 2001, the CSC issued Resolution
No. 01-0444 dismissing petitioners administrative complaint
CSC-CES Cases 121
Public Corporation
against Chairman Golpeo and Assistant General Manager
Magsalin for lack of merit. The CSC held:
"The sole issue to be resolved in the case at bar is whether or
not the separation of Jose Caringal from the service as
Assistant Department Manager II, Legal Department, PCSO,
was unlawful.
After a careful evaluation of the records, the Commission rules
in the negative.
It must be stressed that Jose Caringals position is a third level
position. As such, the qualifications for the position are as
follows:
POSITION : Assistant Department Manager II
LEVEL : 3
EDUCATION : Bachelors Degree
EXPERIENCE : 3 years of supervisory experience
TRAINING : None
ELIGIBILITY : Career Service Executive Eligibility
(CSEE)/Career Executive Service (CES)
Records show that Caringal does not possess the
required eligibility for the position. Thus, he does not have
security of tenure and his employment may be terminated
at any given time by the appointing authority and be
replaced by a CES eligible.
The appointment of Atty. Lauro Patiag, a CES eligible, vice
Atty. Jose Caringal, the herein appellant, was more in accord
with the existing law and jurisprudence.
In particular, the pertinent provision that is applicable to the
present case is Rule V specifically Section 4 thereof of the
Omnibus Rules Implementing Book V of Executive Order
No. 292 which provides, that:
Section 4. Except as otherwise provided herein, a person who
meets all the requirements of the position including the
appropriate civil service eligibility shall be appointed to a
position in the first and second levels. However, when the
immediate filing of a vacancy becomes necessary, taking into
account the public interest, and a person with an appropriate
civil service eligibility but who meets the other requirements of
the position may be appointed. His appointments shall be
temporary for a period of not more than 12 months and he may
be replaced at any time with one who has an appropriate civil
service eligibility.
xxx xxx xxx
It must be emphasized that if an appointment to a third level
position is issued to one who does not meet the eligibility
requirement, the appointment shall be approved but the
appointee is not entitled to the mantle of security of tenure.
Hence, albeit there were variation in the wordings of the
attestation of the Commission, the absence of the appropriate
eligibility makes the appointment temporary in nature.
xxx xxx xxx
In brief, the termination of appointment of Caringal was
precipitated by the appointment of Atty. Lauro Patiag, a CES
eligible, to the position temporarily held by Caringal. Such
termination was valid and lawful."6

On July 16, 2001, the CSC denied petitioners motion for
reconsideration.7
Petitioner then filed with the Court of Appeals a petition
for certiorari8 under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, docketed as CA-G.R. SP. No. 66695.
On January 27, 2004, the Appellate Court issued the assailed
Decision dismissing the petition and affirming the Resolutions
of the CSC, thus:
"Undisputably, the original appointment of Atty. Caringal to the
position of Assistant Department manager II was permanent in
status. On this basis, he asserts security of tenure and argues
that he can only be replaced for just cause.
In this regard, the established law provides that security of
tenure can only be enjoyed when a person has complied with
all the requirements of the position to which he is being
appointed and civil service eligibility necessary for a permanent
appointment. Section 2 (a) of the Omnibus Rules On
Appointments and Other Personnel Actions states:
a. Permanent Issued to a person who meets all the minimum
qualification requirements of the position to which he is being
appointed, including the appropriate eligibility required, in
accordance with the provisions of law, rules and standards
promulgated in pursuance thereof.
In applying the provision of law cited above, it must be
stressed that the position of Assistant Department Manager II
requires Career Executive Service eligibility, which is conferred
after passing the CES examination. Afterwards, and provided
the examinee complies with the other requirements prescribed
by the Board, the holder of the CES position may qualify for
appointment to a CES rank, made by the President upon
recommendation of the CES Board. This process completes
membership in the CES and most importantly, confers on him
security of tenure in the CES.
xxxxxxxxx
Nevertheless, the failure to notify Atty. Caringal does not entitle
him to reinstatement to his position with back salaries. On July
3, 2000, a few days after the termination of his employment,
the PCSO appointed Atty. Lauro A. Patiag to the position he
vacated. The status of Mr. Patiags appointment was
permanent since he possessed all the requirements of the
position, including the appropriate CES eligibility. With Atty.
Caringals appointment being merely temporary, he could be
replaced at any time by a more qualified appointee, who, in this
case, was Atty. Patiag. In this regard, Section 2(b) of the
Omnibus Rules on Appointments And Other Personnel Actions
(Memorandum Circular No. 40, S. 1998) provides:
Temporary issued to a person who meets the education,
experience and training requirements for the position to which
he is being appointed except for the appropriate eligibility but
only in the absence of a qualified eligible actually available, as
certified to by the Civil Service Regional Director or Field
Officer. The appointment shall not exceed twelve months,
reckoned from the date it was issued but the appointee may be
replaced sooner if a qualified eligible who is willing to accept
the appointment becomes actually available.
xxxxxxxxx
The fact that the correction in the appointment of Atty. Caringal
was made a year and four months after its issuance cannot in
any manner mean that a replacement beyond this period is
barred by laches. Although lacking CES eligibility, he may
continue to serve beyond a one-year period provided no one
has qualified. This is obvious from the directive of the Office of
the President, which holds:
CSC-CES Cases 122
Public Corporation
Pursuant to existing laws and jurisprudence, all non-Carrer
Executive Service Officials (non CESO) occupying Career
Executive Service (CES) Positions, shall continue on hold-over
capacity. To perform their duties and discharge their
responsibilities until their successors have been appointed and
have qualified. (Memorandum Circular No. 35 dated June 30,
1999)
xxxxxxxxxx
WHEREFORE, the petition is DENIED (sic). Resolution No.
010444 dated Febraury 15, 2001 and Resolution No. 011268
dated July 26, 2001 of the Civil Service Commission
are AFFIRMED. No costs.
SO ORDERED."
Hence, the present petition. Petitioner contends that: (1) he
was denied his day in court; (2) the CSC did not follow its own
rules; and (3) the Court of Appeals erred in not finding that
there was discrimination on the part of the PCSO against him.
Respondent PCSO, on the other hand, maintains inter alia that
petitioner was separated from the service because he does not
possess the CES eligibility required by law; that his successor,
Atty. Lauro Patiag, is qualified for the position because he is a
CES eligible; and the CSC followed its own rules.
The issues boil down to whether petitioners separation from
the service is in accordance with the Civil Service law and
rules.
The petition must fail.
Section 27 (1), of the Civil Service Law9 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,10 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 examinees performance in the four
stages of the CES eligibility examinations.
xxxxxxxxx
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
officials membership in the CES and most importantly,
confers on him security of tenure in the CES.
As clearly set forth in the foregoing provisions, what entitles an
examinee to a conferment of a CES eligibility is his passing the
CES examination. Upon conferment of a CES eligibility, an
incumbent of a CES position may qualify for appointment to a

CES rank. After such appointment, the appointee is
entitled to a security of tenure.
There is no question that petitioner does not possess the
required CES eligibility. Hence, he has no security of tenure as
his appointment is merely temporary. To be sure, his
appointment did not attain permanency. Such being the case, it
can be withdrawn from him anytime without violating the
constitutionally guaranteed right to security of tenure.11
In Achacoso v. Macaraig,12 we held:
"It is settled that a permanent appointment can be issued only
"to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. 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 moments notice," conformably to established
jurisprudence.
xxxxxxxxx
The mere fact that a position belongs to the Career Service
does not automatically confer security of tenure on its occupant
even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment,
which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, as an exception
to the rule, may be appointed to it merely in an acting capacity
in the absence of appropriate eligibles. The appointment
extended to him cannot be regarded as permanent even if it
may be so designated."
Considering that petitioner is not a CES eligible, he has no
security of tenure. Consequently, the PCSO could terminate
his employment at any time and could be replaced by a CES
eligible. In approving or disapproving an appointment, the CSC
merely examines the conformity of the appointment with the
law and the appointees possession of the required
qualification and none of the disqualification. 13
WHEREFORE, the petition is DENIED. The assailed Decision
of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 169604 March 6, 2007
NELSON P. COLLANTES, Petitioner,
vs.
HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION
and DEPARTMENT OF NATIONAL DEFENSE,Respondents.
DECISION
CHICO-NAZARIO, J.:
A decision that has acquired finality becomes immutable and
unalterable. A final judgment may no longer be modified in any
respect, even if the modification is meant to correct erroneous
conclusions of fact and law; and whether it be made by the
court that rendered it or by the highest court in the land.1
What would happen, however, if two separate decisions,
irreconcilably conflicting with each other, both attained finality?
Quite clearly, to hold that both decisions are immutable and
unalterable would cause not only confusion and uncertainty,
but utter bewilderment upon the persons tasked to execute
these judgments.
This is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, seeking to set aside the Decision2dated 10
CSC-CES Cases 123
Public Corporation
March 2005 and the Resolution3 dated 31 August 2005 of the
Court of Appeals in CA-G.R. SP No. 78092.
The undisputed facts of this case are summarized by the Court
of Appeals:
Petitioner Nelson Collantes (hereafter, Collantes) was
conferred Career Executive Service Eligibility on 29 February
1996. Then President Fidel V. Ramos accorded him the rank of
Career Executive Service Officer (CESO) II on 10 February
1997. More than a year later, he was appointed as
Undersecretary for Peace and Order of the Department of
Interior and Local Government (DILG).
With the change of administration, Collantes allegedly received
word from persons close to then President Ejercito Estrada to
give up his position so that the President could unreservedly
appoint his key officials. As such, Collantes relinquished his
post at the DILG.
Thereafter, on 1 July 1998, President Estrada appointed
Collantes to the controversial post Undersecretary for Civilian
Relations of the Department of National Defense (DND). As it
happened, his stint in the DND was short lived. Collantes was
supposedly ordered by then Secretary Orlando Mercado to
renounce his post in favor of another presidential appointee,
General Orlando Soriano. In deference to the Presidents
prerogative, he resigned from office believing that he will soon
be given a new assignment.
Unfortunately, Collantes was not given any other post in the
government, as in fact, he received a letter from President
Estrada terminating his services effective 8 February 1999.
Consequently, on 24 March 1999, Collantes requested the
assistance of the Career Executive Service Board relative to
the termination of his services as Undersecretary for Civilian
Relations of the DND invoking his right to security of tenure as
a CESO.
The termination of Collantes services, notwithstanding,
President Estrada accorded Collantes the highest rank in the
CES ranking structure, CESO Rank I, on 17 July 1999. But
then, despite this promotion in rank, Collantes did not receive
new appointment, and worse, the President appointed Mr.
Edgardo Batenga to the much coveted position of
Undersecretary for Civilian Relations of the DND.
Taking definite action on the matter, Collantes instituted a
Petition for Quo Warranto and Mandamus before Us on 29
January 2001, docketed as C.A. G.R. SP NO. 62874.
Collantes maintained that he was constructively dismissed
from work, without any cause and due process of law, and
thus, his position in the DND was never vacated at all.
Accordingly, he prayed that the appointment of Mr. Edgardo
Batenga be nullified, and that he be reinstated to his former
position with full back salaries. Notably, Collantes also sought
for appointment to a position of equivalent rank commensurate
to his CESO Rank I if reinstatement to his former position is no
longer legally feasible.
Meanwhile, on 13 August 2001, the CSC favorably acted on
Collantes letter-request issuing Resolution No. 011364, and
thereby holding that Collantes relief as Undersecretary of DND
amounted to illegal dismissal as he was not given another post
concomitant to his eligibility.
Then, on 30 August 2001, We rendered Our Decision in C.A.
G.R. SP No. 62874 dismissing the Petition for Quo Warranto
and Mandamus filed by Collantes. Significantly, We
pronounced:
"By such actuations of the petitioner, the Court finds that he
has (sic) effectively resigned from his position as
Undersecretary of the DND, and the public respondents are
under no compulsion to reinstate him to his old position.

xxxx
"In this case, petitioner has undoubtedly shown his intention to
relinquish his public office, and has in fact surrendered such
post to the Chief Executive, who, on the other hand, has
shown his acceptance of the same by appointing a new person
to the position relinquished by the petitioner.
xxxx
Quo warranto, it must be pointed out, is unavailing in the
instatnt case, as the public office in question has not been
usurped, intruded into or unlawfully held by the present
occupant. Nor does the incumbent undersecretary appear to
have done or suffered an act which forfeits his assumption.
(Section 1, Rule 66, 1997 Rules of Civil Procedure).
Furthermore, it appears that the action for quo warranto,
assuming it is available, has already lapsed by prescription,
pursuant to Section 11 of the pertinent Rule ...
xxxx
WHEREFORE, premises considered, the instant petition for
Quo Warranto and Mandamus is hereby DISMISSED."
The controversy reached the Supreme Court as G.R. No.
149883. Nevertheless, the case was considered closed and
terminated when Collantes manifested his desire not to pursue
his appeal and withdraw his Petition for Review on Certiorari.
Thereafter, Collantes moved for the execution of CSC
Resolution No. 011364, which was accordingly granted
through CSC Resolution No. 020084 dated 15 January 2002
"directing the DND to give Collantes a position where his
eligibility is appropriate and to pay his backwages and other
benefits from the time of his termination up to his actual
reinstatement."
In a Letter dated 7 February 2002, the Legal Affairs Division of
the DND, through Atty. Leticia A. Gloria, urged the CSC to
revisit its Resolutions which were entirely in conflict with Our
30 August 2001 Decision in C.A. G.R. SP NO. 62874, which
has attained finality pursuant to the Supreme Courts
Resolution in G.R. No. 149883.
Consequently, in complete turnabout from its previous stance,
the CSC issued Resolution No. 021482 dated 12 November
2002 declaring that had it been properly informed that a
Petition for Quo Warranto and Mandamus was then pending
before Us, it would have refrained from ruling on Collantes
quandary, thus:
"WHEREFORE, the Motion for Reconsideration of Assistant
Secretary for Legal Affairs Leticia A. Gloria of the department
of National Defense (DND) is hereby GRANTED and CSC
Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084
dated January 15, 2002 are reversed. Accordingly, pursuant to
the decision of the Court of Appeals, Nelson P. Collantes is
deemed effectively resigned from his position as
Undersecretary of the DND."
Forthwith, Collantes moved for a reconsideration of this
Resolution, but was denied by the CSC in the second assailed
Resolution No. 030542 dated 5 May 2003.4
On 18 July 2003, herein petitioner Collantes then filed a
Petition for Certiorari with the Court of Appeals praying for the
reversal of the Civil Service Commission (CSC) Resolutions
No. 021482 and No. 030542. Before the Court of Appeals can
decide this case, however, petitioner was appointed as
General Manager of the Philippine Retirement Authority on 5
August 2004. The Court of Appeals dismissed the Petition for
Certiorari in the assailed 10 March 2005 Decision:
WHEREFORE, the Petition for Certiorari is hereby
DISMISSED. No grave abuse of discretion may be imputed
CSC-CES Cases 124
Public Corporation
against the Civil Service Commission for rendering Resolution
Nos. 021482 and 030542, dated 12 November 2002 and 5
May 2003, respectively. No pronouncement as to costs.5
The Motion for Reconsideration filed by petitioner was denied
in the assailed 31 August 2005 Resolution.6
Petitioner filed the present Petition for Review, seeking the
reversal of the foregoing Decision and Resolution of the Court
of Appeals. In view of his 5 August 2004 appointment,
however, petitioners prayer is now limited to seeking the
payment of backwages and other benefits that may have been
due him from the time of his alleged dismissal on 8 February
1999 to his appointment on 5 August 2004. Petitioner submits
the following issues for our consideration:
A.
WHETHER THE COURT OF APPEALS COMMITTED A
GRAVE AND REVERSIBLE ERROR WHEN IT HELD THAT
THE DECISION IN CA-G.R. NO. 62874 IN THE COURT OF
APPEALS IS A BAR TO IMPLEMENT THE FINAL AND
EXECUTORY JUDGMENT OF THE CIVIL SERVICE
COMMISSION DATED AUGUST 14, 2001.
B.
WHETHER THE COURT OF APPEALS COMMITTED A
GRAVE AND REVERSIBLE ERROR WHEN IT DID NOT FIND
THAT THE CIVIL SERVICE COMMISSION COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS
VERY OWN DECISION WHICH HAS LONG BECOME FINAL
AND EXECUTORY AND IN FLAGRANT VIOLATION OF
PETITIONERS RIGHT TO DUE PROCESS.
C.
WHETHER THE COURT OF APPEALS COMMITTED A
GRAVE AND REVERSIBLE ERROR WHEN IT UPHELD THE
RESOLUTION OF THE CIVIL SERVICE COMMISSION
WHICH HELD THAT PETITIONER MAY BE REMOVED
FROM HIS POSITION AS UNDERSECRETARY OF THE
DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE
CONCOMITANT TRANSFER TO A POSITION EQUIVALENT
IN RANK OR BE REMOVED THEN, BE FLOATED
PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT
TO SECURITY OF TENURE AS A CAREER EXECUTIVE
SERVICE ELIGIBLE.7
Both petitioner and herein respondents CSC and Department
of National Defense (DND) invoke the doctrine of immutability
of final judgments.
Petitioner claims that the 13 August 2001 Resolution of the
CSC, which held that petitioner "was illegally removed as
Undersecretary of the Department of National Defense and
therefore x x x should be given a position where his eligibility is
appropriate or sufficient," has attained finality. Petitioner adds
that, not only has there been no appeal or motion for
reconsideration filed within the allowable periods, the CSC
even granted the Motion for Execution filed by petitioner in its
Order dated 15 January 2002. Petitioner thereby invokes our
ruling that, before a writ of execution may issue, there must
necessarily be a final judgment or order that disposes of the
action or proceeding.8 Petitioner also faults the CSC for ruling
on a mere letter filed by Atty. Leticia Gloria of the DND, which
petitioner claims is fatally defective for failure to comply with
the procedural due process clause of the Constitution, the
Rules of Court, and the Uniform Rules in Administrative Cases
in the Civil Service which require notice to adverse parties.9
Respondents, on the other hand, invoke the same doctrine of
immutability of final judgments, this time with respect to the 30

August 2001 Decision of the Court of Appeals dismissing the
Petition for Quo Warranto and Mandamus filed by petitioner.
This Court of Appeals Decision became final and executory
when petitioner withdrew the Motion for Extension to File a
Petition for Review on Certiorari he filed with this Court. 10
Forum Shopping, Res Judicata, and Litis Pendentia
Our rules on forum shopping are meant to prevent such
eventualities as conflicting final decisions as in the case at bar.
We have ruled that what is important in determining whether
forum shopping exists or not is the vexation caused the courts
and parties-litigants by a party who asks different courts and/or
administrative agencies to rule on the same or related causes
and/or grant the same or substantially the same reliefs, in the
process creating the possibility of conflicting decisions being
rendered by the different fora upon the same issues. 11
More particularly, the elements of forum shopping are: (a)
identity of parties or at least such parties as represent the
same interests in both actions; (b) identity of the rights
asserted and the reliefs prayed for, the relief being founded on
the same facts; and (c) the identity of the two preceding
particulars, such that any judgment rendered in the other
action will, regardless of which party is successful, amount to
res judicata in the action under consideration. 12
Forum shopping can be committed in three ways: (1) filing
multiple cases based on the same cause of action and with the
same prayer, the previous case not having been resolved yet
(where the ground for dismissal is litis pendentia); (2) filing
multiple cases based on the same cause of action and the
same prayer, the previous case having been finally resolved
(where the ground for dismissal is res judicata); and (3) filing
multiple cases based on the same cause of action but with
different prayers (splitting of causes of action, where the
ground for dismissal is also either litis pendentia or res
judicata).13 If the forum shopping is not considered willful and
deliberate, the subsequent cases shall be dismissed without
prejudice on one of the two grounds mentioned above.
However, if the forum shopping is willful and deliberate, both
(or all, if there are more than two) actions shall be dismissed
with prejudice.14
Petitioner disputes respondents claim, and the CSCs
ruling,15 that he had lodged two separate actions. Petitioner
explains that he never filed a case before the CSC. He merely
sought the assistance of the Career Executive Service Board
(CESB) in a letter-request dated 24 March 1999. Said letter-
request, petitioner claims, did not ask for any ruling.
Petitioner claims that, considering that two years had already
lapsed without any response from the CESB, he filed on 23
January 2001 his Petition for Quo Warranto and Mandamus
with the Court of Appeals. Petitioner was surprised when he
learned through the 8 February 2001 letter of the CESB that,
on 29 November 2000, it referred petitioners request to the
CSC for appropriate action.16 Petitioner was not required to
submit any pleading in support of his request. Apparently, the
CSC treated the letter-request as a complaint or petition over
which it could exercise its adjudicative powers, as it issued its
13 August 2001 Resolution declaring petitioner to have been
illegally removed as Undersecretary of the DND, and should
therefore be given a position appropriate or sufficient for his
eligibility.17 As stated above, the Court of Appeals Decision
dismissing the Petition for Quo Warranto and Mandamus was
rendered 17 days later, on 30 August 2001. Petitioner filed with
this Court a motion for an extension of time within which to file
a Petition for Review on Certiorari, but he later submitted a
Manifestation for the withdrawal of this motion as he decided
not to pursue his appeal.18 Instead, petitioner filed with the
CSC on 25 October 2001 a Motion for the Issuance of a Writ of
Execution,19 which the CSC granted on 15 January 2002.20
In repeatedly asserting that he did not file two separate
actions, petitioner is arguing, without stating it categorically,
that he cannot be held liable for forum shopping. However,
CSC-CES Cases 125
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what one cannot do directly cannot be done indirectly.
Petitioner had been aware, through the 8 February 2001 letter
of the CESB, that his request for assistance was referred to the
CSC on 29 November 2000 for appropriate action. From that
point on, he knew that two government agencies the CSC
and the Court of Appeals were simultaneously in the process
of reaching their respective decisions on whether petitioner
was entitled to reinstatement or to a position appropriate to his
eligibility. Therefore, it cannot be denied that petitioner knew,
from the moment of receipt of the 8 February 2001 letter of the
CESB, that he had effectively instituted two separate cases,
and whatever original intention he had for his letter-request is,
by then, forgotten. Petitioner subsequently proceeded to act
like a true forum shopper he abandoned the forum where he
could not get a favorable judgment, and moved to execute the
Resolution of the forum where he succeeded.
Petitioners above actuation is, in fact, a violation of his
certification against forum shopping with the Court of Appeals,
a ground for dismissal of actions distinct from forum shopping
itself. As petitioner knew from the receipt of the CESB letter
that another claim was pending in a quasi-judicial agency
concerning these issues, he was bound by his certification with
the Court of Appeals to report such fact within five days from
his knowledge thereof. This circumstance of being surprised
by the discovery of another pending claim with another court or
quasi-judicial agency is the very situation contemplated by
letter (c) in the first paragraph of Section 5, Rule 7 of the Rules
of Court:
Section 5. Certification against forum shopping. The plaintiff
or principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously filed
therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed. (Emphases supplied.)
Petitioner, however, further asserts that the issues brought in
the Petition for Certiorari filed with the Court of Appeals on 18
July 2003 and the Petition for Quo Warranto and Mandamus
filed on 29 January 2001 are distinct, and that the Decision of
the Court of Appeals in the latter cannot constitute res judicata
with respect to the former.21 Petitioner claims that the issues,
remedies and reliefs in the two cases are different, citing as
basis the textbook definitions of quo warranto, certiorari and
mandamus. Petitioner further claims that:
There is a clear distinction between the right of petitioner to the
position of Undersecretary for Civilian Relations and his right to
be re-appointed to another position of equivalent rank, in view
of his CESO I status. The former issue may have been
resolved by the Court of Appeals when it ruled that petitioner
Collantes had "effectively resigned from his position as
Undersecretary of the DND, and the public respondents are
under no compulsion to reinstate him to his old position." The
latter issue, or the right of petitioner Collantes to be given a
new assignment fitting to his CESO I rank, arises from his right
to security of tenure as a Career Executive Service Eligible,
and not from his appointment to the DND.22
This allegedly clear distinction springs from petitioners claim
that he resigned from his position, but not from his rank as a
Career Executive Service Officer (CESO). Petitioner claims
that, as a CESO, there is a "great difference between (1)
resigning from ones position and (2) resigning or relinquishing
ones rank, as position is different from ones rank. POSITION
refers to the particular or specific office from which one may be
appointed. RANK, on the other hand, refers not to a particular
position but to the class to which one belongs in the hierarchy

of authority in an organization or bureaucracy." 23 Petitioner
cites Cuevas v. Bacal24:
[S]ecurity of tenure to members of the CES does not extend to
the particular positions to which they may be appointed --- a
concept which is applicable only to the first and second-level
employees in the civil service --- but to the rank to which they
are appointed by the President.
xxxx
Mobility and flexibility in the assignment of personnel, the
better to cope with the exigencies of public service, is thus the
distinguishing feature of the Career Executive Service. x x x.
and General v. Roco25:
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.
While there is indeed a distinction between position and rank,
such that a CESO may be transferred or reassigned from one
position to another without losing his rank, there can be no
distinction between resigning from a position and resigning
from a rank. The rank of a CESO is deactivated upon
separation from the government service, which includes the
resignation of a CESO from his position. The CESB has
clarified this concept of being in the inactive status in its
Resolution No. 554, series of 2002:
Rule II
xxxx
7. CESO in Inactive Status - is a CESO who no longer
occupies a position in the CES as a result of any of the modes
of separation from the government service, provided that such
separation is not due to dismissal from the service for cause.
xxxx
Rule IV
Section 1. Modes of Deactivating a CES Rank. There are
three (3) modes by which the CES Rank of a CESO may be
deactivated from the CES:
1. Acceptance of a position by virtue of an
appointment outside the coverage of the CES;
2. Dropping from the rolls of government officials and
employees; and
3. Other modes of separation from the CES, provided
that separation from the CES resulting from dismissal
from the service for cause and after due process shall
result in the loss of CES rank and shall not be
considered as a mode of deactivation.
xxxx
Sec. 2. Effect of Deactivation of CES Rank. A CESO whose
CES rank has been deactivated by the Board loses all the
CSC-CES Cases 126
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rights and privileges accorded to him/her by law on account of
his/her CES rank.
Likewise, it would be absurd for us to rule that a civil servant
who resigns from his position can compel the President to
appoint him to another position. Such a ruling would effectively
derogate the discretion of the appointing authority, 26 as it will
give the CESO the option to choose which position he or she
wants, by the simple expediency of resigning from the position
he or she does not want.
In sum, there is an identity of issues in the two cases which
resulted in the two conflicting final and executory decisions.
But while, as stated above, the second petition can be
dismissed on the ground of either res judicata or non-
compliance with the undertakings in petitioners certification
against forum shopping, these grounds can only be invoked
when the case is still pending. As petitioner points out, the
Resolution of the CSC had already become final and
executory.
The 30 August 2001 Decision of the Court of Appeals,
however, has also attained finality. Hence, we go back to the
main issue in this petition: which of the two final and executory
decisions should be given effect, the 30 August 2001 Court of
Appeals Decision dismissing the petitioners Petition for Quo
Warranto, or the 13 August 2001 CSC Resolution declaring
petitioner Collantes to be illegally removed as Undersecretary
of the DND?
Two Conflicting Final and Executory Decisions
Jurisprudence in the United States offers different solutions to
this problem:
Where there have been two former actions in which the claim
or demand, fact or matter sought to be religated has been
decided contrarily, the rule that, where there is an estoppel
against an estoppel, it "setteth the matter at large" has been
applied by some authorities, and in such case both parties may
assert their claims anew. Other authorities have held that, of
two conflicting judgments on the same rights of the same
parties, the one which is later in time will prevail, although it
has also been held that the judgment prior in time will prevail. It
has been held that a decision of a court of last resort is binding
on the parties, although afterward, in another cause, a different
principle was declared.27
There are thus three solutions which we can adopt in resolving
the case at bar: the first is for the parties to assert their claims
anew, the second is to determine which judgment came first,
and the third is to determine which of the judgments had been
rendered by a court of last resort.
As there are conflicting jurisprudence on the second solution, it
is appropriate for this Court to adopt either the first or the third
solution. The first solution involves disregarding the finality of
the two previous judgments and allowing the parties to argue
on the basis of the merits of the case anew. The third solution
merely involves the determination of which judgment has been
rendered by this Court, the court of last resort in this
jurisdiction.
Adopting the third solution will result in the denial of this
Petition for Certiorari. Whereas the finality of the 13 August
2001 CSC Resolution came about by the failure to file a motion
for reconsideration or an appeal within the proper reglementary
periods, the finality of the 30 August 2001 Court of Appeals
Decision was by virtue of the 12 November 2001
Resolution28 of this Court which declared the case closed and
terminated upon the manifestation of petitioner that he decided
not to pursue his appeal and was thus withdrawing the motion
for extension of time to file a petition for review on certiorari.
The better solution, however, is to let the parties argue the
merits of the case anew, and decide the case on the basis

thereof. We can do this either by remanding the case to a
lower court, or by resolving the issues in this disposition. The
latter recourse is more appropriate, for three reasons: (1) all
the facts, arguments, and pleadings in support of the parties
contentions are now before us, with the parties advancing the
very same contentions as those in this Petition; (2) a remand to
the Court of Appeals would entail asking the latter to resolve
the very same issues it had passed upon twice; and (3) a
remand to the Court of Appeals would only entail another
unnecessary delay in the termination of the case when the
case is now ripe for adjudication before us.
The merits of the case are the focus of petitioners third
assignment of error in the present petition. Petitioner claims
that the Court of Appeals committed a grave and reversible
error when it upheld the resolution of the CSC which allegedly
effectively held "that petitioner may be removed from his
position as Undersecretary of the Department of National
Defense without the concomitant transfer to a position
equivalent in rank or be removed then, be floated perpetually,
which is tantamount to a constructive dismissal, in violation of
his right to security of tenure as a career executive service
eligible."29
Petitioners arguments presuppose that he had been removed
from his position as Undersecretary of the DND. He, however,
did not present any evidence to that effect, whether in this
Petition or in his earlier Petition for Quo Warranto and
Mandamus with the Court of Appeals. If he is implying that he
was removed from office by virtue of his account that he was
approached by persons close to President Joseph Estrada
who asked him to relinquish his post, which he did, then this
Petition must fail, for, by his own deliberate deed, he resigned
from his position.
There are no special legal effects when a resignation is one of
a courtesy resignation. The mere fact that the President, by
himself or through another, requested for someones
resignation does not give the President the obligation to
appoint such person to another position. A courtesy resignation
is just as effectual as any other resignation. There can be no
implied promises of another position just because the
resignation was made out of courtesy. Any express promise of
another position, on the other hand, would be void, because
there can be no derogation of the discretion of the appointing
power,30 and because its object is outside the commerce of
man.31As held by the Court of Appeals in its 30 August 2001
Decision:
In the first place, petitioner has not established by any
quantum of certainty the veracity of his claim that he was
promised an equivalent position in the government. Assuming,
however, that such promise was true, petitioner, as a ranking
member of the bureaucracy, ought to have known that such
promise offers no assurance in law that the same would be
complied with. The time-honored rule is that public office is a
public trust, and as such, the same is governed by law, and
cannot be made the subject of personal promises or
negotiations by private persons.32
WHEREFORE, the present Petition for Review on Certiorari is
DENIED. No costs.
SO ORDERED.
G.R. No. 170093 April 29, 2009
JOSE PEPITO M. AMORES, M.D., Petitioner,
vs.
CIVIL SERVICE COMMISSION, BOARD OF TRUSTEES OF
THE LUNG CENTER OF THE PHILIPPINES, as represented
by Hon. MANUEL M. DAYRIT, and FERNANDO A.
MELENDRES, M.D., Respondents.
DECISION
CSC-CES Cases 127
Public Corporation
PERALTA, J.:
In this petition for review under Rule 45 of the Rules of Court,
petitioner Jose Pepito M. Amores assails the Decision 1 of the
Court of Appeals in CA-G.R. SP No. 80971, dated September
23, 2004, as well as its Resolution2dated September 20, 2005
which denied reconsideration. The assailed Decision affirmed
the October 14, 2003 Resolution3 of the Civil Service
Commission which, in turn, ordered petitioners separation
from service as Deputy Director for Hospital Support Services
at the Lung Center of the Philippines on account of his lack of
the necessary civil service eligibility.
Well established are the facts of the case.
Petitioner Jose Pepito M. Amores was the Deputy Director for
Hospital Support Services at the Lung Center of the Philippines
(LCP). His civil service career began in 1982 when he was
initially engaged at the LCP as a resident physician. 4 In the
course of his service, he had been promoted to the position of
Medical Specialist,5 then to Department Manager,6 and finally
to Deputy Director. Dr. Calixto Zaldivar was then the Executive
Director of the LCP and when he retired from service in 1999,
petitioner was designated as officer-in-charge of the LCP by
the Department of Health (DOH) Secretary Alberto Romualdez,
Jr.7
Petitioner had taken charge of the LCP in the interim that the
DOH selection board was in the process of selecting a new
executive director. In the meantime, Dr. Fernando Melendres
(Melendres), one of the respondents in this case, was
appointed by then President Joseph Estrada as Executive
Director of the LCP. Melendres was holding the office of the
Deputy Director for Medical Support Services before his
appointment as Executive Director, and although petitioner
claims that he was not challenging Melendres right to the
office, he nevertheless believed that he himself was the rightful
person to be appointed as executive director inasmuch as he
had top-billed the evaluation results of the DOH Selection
Board, with Melendres tailing behind in second place. 8
It seems that the controversy started when petitioner and the
other doctors and rank-and-file employees at the LCP drafted a
manifesto9 which supposedly ventilated their collective dismay
and demoralization at Melendres appointment and leadership,
and at some of his "unjustified and questionable acts" as
Executive Director of the LCP. In a nutshell, the said manifesto
boldly exposed the alleged anomalous circumstances
surrounding Melendres appointment; the reassignment of
some of the members of the LCP personnel which amounted
to demotion in their rank and status; the anomalies in the
procurement of property and supplies; his abusive conduct in
publicly accusing some of the doctors of having caused the fire
that gutted the center in May 1998; in accusing Zaldivar of
having entered into anomalous contracts and negotiations with
the DPWH relative to certain projects; and in practicing
favoritism and nepotism. The tenor of the manifesto even went
as far as to be deeply personal as it likewise questioned
Melendres fitness to act as executive director on the ground of
his previous brush with substance abuse and the fact that he
could no longer keep his marriage from failing.10
The seriousness of these allegations led the DOH to create a
Fact-finding Committee to conduct an investigation.11 But at
the proceedings before the said Committee, Melendres filed
charges of dishonesty and double compensation against
petitioner alleging that the latter had been engaging in the
private practice of medicine within the LCPs premises during
official hours.12 At the close of the investigation, the Fact-
finding Committee issued a report declaring Melendres guilty of
the charges against him.13 As for petitioner, the Committee
absolved him of the charge of receiving double compensation,
but nevertheless found him guilty of having committed
dishonesty by engaging in the private practice of his profession
during the hours that he should be engaging in public service
in violation of the Civil Service Law.141avvphil.net

Petitioner was caught by surprise when, on August 27, 2002,
he received a letter from the LCP Board of Trustees informing
him of his separation from service as Deputy Director effective
September 30, 2002.15 To the said letter was attached a copy
of the Boards Resolution16 dated August 23, 2002, principally
directing petitioners termination from service after consultation
with the Career Executive Service Board (CES
Board).17 Petitioner brought an appeal from the resolution to
the Civil Service Commission (CSC).18
Resolving the appeal, the CSC declared that the LCP Board of
Trustees had properly and validly separated petitioner from his
post as Deputy Director. In its Resolution No. 031050, 19 the
CSC declined to pass upon the charge of dishonesty on the
ground of pre-maturity as the issue had not yet been finally
determined in a proper proceeding and the Board had not yet
in fact made a definite finding of guilt from which petitioner
might as a matter of course appeal.20 However, it pointed out
that petitioners separation from service was anchored on his
lack of a CES eligibility which is required for the position of
deputy director and, as such, he enjoyed no security in his
tenure.21
Petitioner lodged an Appeal22 with the Court of Appeals.
However, it was dismissed and CSC Resolution No. 031050
was affirmed.23
This present petition for review imputes error to the Court of
Appeals. First, in missing the fact that petitioner had been
denied due process when his separation from office was
ordered on a ground not raised before the DOH Fact-finding
Committee24 and, second, in failing to appreciate the fact that
his rights to equal protection had likewise been violated
inasmuch as he was similarly situated with other department
managers in the LCP who had no CES eligibility but who,
however, had not been separated from service. 25 He theorizes
that his right to security of tenure had been breached and that
he was entitled to remain as deputy director because his
promotion to the said position supposedly issued by Zaldivar
which was a recognition of his competence was
permanent in character.26
The LCP, the CSC and the DOH, all represented by the Office
of the Solicitor General, and Melendres, are one in asserting
that there can be no question as to the validity of petitioners
removal from office for the basic fact that he enjoyed no
security of tenure on account of his lack of eligibility. In his
Comment27 on the petition, Melendres capitalizes on the fact
that the LCP Board of Trustees arrived at the resolution to
separate petitioner from service upon consultation with the
CES Board and the CSC; thus, concludes Melendres, it can
only be surmised that the cause for the removal of petitioner
from office is actually his lack of eligibility and not his
commission of dishonesty. The LCP, for its part, is more to the
point. It posits that petitioners separation from office did not
result from an administrative disciplinary action, but rather from
his failure to qualify for the office of Deputy Director on account
of lack of eligibility. For their part, the CSC and the DOH
characterizes petitioner as a third-level appointee who, again,
must be in possession of the corresponding third-level
eligibility; but since petitioner has none, then he enjoys no
security of tenure and may thus be removed at a moments
notice even without cause.
There is merit in the arguments of respondents.
What at the outset weighs heavily on petitioners case is the
fact that the position of Deputy Director for Hospital Support
Services at the LCP belongs to the career executive service
appointments to which by law require that the appointees
possess the corresponding CES eligibility. Petitioner, however,
does not profess that at any time he was holding the said
position he was able to acquire the required eligibility therefor
by taking the CES examinations and, subsequently, conferred
such eligibility upon passing the said examinations. In fact, no
slightest suggestion can be derived from the records of this
case which would tend to show that in his entire tenure at the
CSC-CES Cases 128
Public Corporation
LCP he, at any given point, had been conferred a CES
eligibility. It is thus as much surprising as it is absurd why
petitioner, despite the limitations in his qualifications known to
him, would insist that he had served as Deputy Director at the
LCP in a permanent capacity.
We begin with the precept, firmly established by law and
jurisprudence, that a permanent appointment in the civil
service is issued to a person who has met the requirements of
the position to which the appointment is made in accordance
with law and the rules issued pursuant thereto. 28 An
appointment is permanent where the appointee meets all the
requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed, and it is
temporary where the appointee meets all the requirements for
the position except only the appropriate civil service eligibility.29
Under Section 730 of the Civil Service Law,31 positions in the
civil service are classified into open career positions, closed
career positions and positions in the career service. In turn,
positions in the career service are tiered in three levels as
follows:
SECTION 8. Classes of Positions in the Career Service. - (1)
Classes of positions in the career service appointment to which
requires examinations which shall be grouped into three major
levels as follows:
(a) The first level shall include the clerical, trades,
crafts and custodial service positions which involve
non-professional or subprofessional 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 the Division Chief
level; and
(c) The third level shall cover positions in the Career
Executive Service.
With particular reference to positions in the career executive
service (CES), the requisite civil service eligibility is acquired
upon passing the CES examinations administered by the CES
Board and the subsequent conferment of such eligibility upon
passing the examinations.32 Once a person acquires eligibility,
he either earns the status of a permanent appointee to the
CES position to which he has previously been appointed, or he
becomes qualified for a permanent appointment to that position
provided only that he also possesses all the other qualifications
for the position.33 Verily, it is clear that the possession of the
required CES eligibility is that which will make an appointment
in the career executive service a permanent one. Petitioner
does not possess such eligibility, however, it cannot be said
that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment
of non-CES eligibles to CES positions in the government 34 in
the absence of appropriate eligibles and when there is
necessity in the interest of public service to fill vacancies in the
government.35 But in all such cases, the appointment is at best
merely temporary36 as it is said to be conditioned on the
subsequent obtention of the required CES eligibility. 37 This
rule, according to De Leon v. Court of Appeals,38 Dimayuga v.
Benedicto,39 Caringal v. Philippine Charity Sweepstakes
Office,40 and Achacoso v. Macaraig,41 is invariable even
though the given appointment may have been designated as
permanent by the appointing authority.
We now come to address the issue of whether petitioners
separation from service violated his right to security of tenure.

Security of tenure in the career executive service, which
presupposes a permanent appointment, takes place upon
passing the CES examinations administered by the CES
Board. It is that which entitles the examinee to conferment of
CES eligibility and the inclusion of his name in the roster of
CES eligibles.42 Under the rules and regulations promulgated
by the CES Board, conferment of the CES eligibility is done by
the CES Board through a formal board resolution after an
evaluation has been done of the examinees performance in
the four stages of the CES eligibility examinations. Upon
conferment of 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
Boards recommendation. It is this process which completes
the officials membership in the CES and confers on him
security of tenure in the CES.43 Petitioner does not seem to
have gone through this definitive process.
At this juncture, what comes unmistakably clear is the fact that
because petitioner lacked the proper CES eligibility and
therefore had not held the subject office in a permanent
capacity, there could not have been any violation of petitioners
supposed right to security of tenure inasmuch as he had never
been in possession of the said right at least during his tenure
as Deputy Director for Hospital Support Services. Hence, no
challenge may be offered against his separation from office
even if it be for no cause and at a moments notice.44 Not even
his own self-serving claim that he was competent to continue
serving as Deputy Director may actually and legally give even
the slightest semblance of authority to his thesis that he should
remain in office. Be that as it may, it bears emphasis that, in
any case, the mere fact that an employee is a CES eligible
does not automatically operate to vest security of tenure on the
appointee inasmuch as the security of tenure of employees in
the career executive service, except first and second-level
employees, pertains only to rank and not to the office or
position to which they may be appointed.45
Anent the other issues raised in this petition, we find the same
to be merely petitioners last-ditch attempts, futile as they are,
to remain in office. Suffice it to say that no further good may be
served in needlessly expounding on them.
All told, we reiterate the long-standing rule that the mere fact
that a particular position belongs to the career service does not
automatically confer security of tenure on its occupant. Such
right will have to depend on the nature of his appointment,
which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an
exception to the rule, may be appointed to it in an acting
capacity in the absence of appropriate eligibles. 46
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals in CA-G.R. SP No. 80971, dated September
23, 2004, affirming Resolution No. 031050 of the Civil Service
Commission, dated October 14, 2003, is AFFIRMED.
SO ORDERED.
G.R. No. 179255 April 2, 2009
NATIONAL TRANSMISSION CORPORATION, Petitioner,
vs.
VENUSTO D. HAMOY, JR., Respondent.
DECISION
TINGA, J.:
This treats of the petition for review of the decision1 and
resolution2 of the Court of Appeals dated 30 May 2007 and 7
August 2007, respectively, in CA-G.R. SP No. 96837 entitled,
Venusto D. Hamoy, Jr. v. National Transmission Corporation &
Civil Service Commission, ordering the immediate return of
CSC-CES Cases 129
Public Corporation
Venusto Hamoy, Jr. to his original position as Vice-President
for VisMin Operations & Maintenance.
The antecedents follow.
The National Transmission Corporation (petitioner), through
Resolution No. TC 2003-0073 dated 5 February 2003,
appointed Venusto D. Hamoy, Jr. (respondent) as Vice
President under Item No. 700010-CY2003 VisMin Operations
& Maintenance. Accordingly, petitioners President and Chief
Executive Officer (CEO) Alan Ortiz (Ortiz) issued on 1 March
2003 Civil Service Commission (CSC) Form No. 33 which
states that respondent has been appointed "(VICE-
PRESIDENT JG-18) VICE-PRESIDENT SG-28 with
PERMANENT (status) at the National Transmission
Corporation."4 Respondent assumed his duties on 1 March
2003.
On 19 January 2004, Ortiz issued Office Order No. 2004-173
detailing respondent to petitioners Power Center-Diliman,
"under the Office of the President and CEO, to handle Special
Projects."5 Office Order No. 2004-173 was later amended by
Office Order No. 2004-12296 under which Ortiz assigned
respondent additional duties of providing "over-all supervision,
monitoring and control of all activities related to the sale of
petitioners sub-transmission assets and placed under his
supervision certain personnel of the Sub-Transmission
Divestment Department.
In a memorandum dated 24 January 2005 from petitioners
Human Resources Department, respondent was notified of the
impending expiration of the temporary appointment of some of
petitioners key officials and the fact that he was being
considered for one of the positions to be vacated.7 Yet on 15
February 2005, Office Order No. 2005-0256 was issued
designating respondent as Officer-In-Charge (OIC) of the
Power Systems Reliability Group (PSRG), concurrent with his
duties as Vice President for Special Projects.8
On 16 February 2005, respondent wrote Ortiz, asking that he
be returned to his original assignment as Vice President of
VisMin Operations & Maintenance. He reasoned that his detail
under Office Orders No. 2004-173 and No. 2004-1229 already
exceeded one (1) year, and that his designation under Office
Order No. 2005-0256 violated Section 2 of CSC Memorandum
Circular No. 21, s. 2002 because he did not give his consent
thereto.9However, on the same date, Office Order No. 2005-
0284 was issued superseding Office Order No. 2004-173 and
amending Office Order No. 2005-0256, the
latter order stating that respondent was designated as OIC of
the Power Systems Reliability Group (PSRG).10Respondent
was thus constrained to write another letter to Ortiz, requesting
reconsideration of Office Order No. 2005-0284 and reiterating
the reasons he cited in his previous letter.11
On 1 March 2005, Ortiz issued a memorandum informing
respondent that his detail to the Presidents Office was no
longer in effect and, in view of the vacancy created by the
expiration of the temporary appointment of the Vice President
of the PSRG, respondent was designated as its OIC. He
further stated that the matter of reassignment would be
formally raised at the Board meeting and, should the Board
confirm it, a corresponding Office Order would be issued
reassigning respondent as head of the PSRG.12 On 27 April
2005, the Board issued Resolution No. TC 2005-
018,13 approving and confirming respondents reassignment to
PSRG, and announcing the opening of selection for the
position of Vice President for VisMin Operations &
Maintenance.
Respondent appealed to the CSC, praying for the annulment of
Resolution No. TC 2005-018 and Office Order No. 2005-0284
on the ground that the reassignment violated his security of
tenure. 14

In Resolution No. 061030 dated 8 June 2006, 15 the CSC
denied respondents appeal. It found that respondent failed to
show that his reassignment was tainted with abuse of
discretion. According to the CSC, the position to which
respondent was appointed was classified as a third-level
position, which was not station-specific, and thus he could be
reassigned or transferred from one organizational unit to
another within the same agency, without violating his right to
security of tenure.16 Moreover, the CSC ruled that his detail did
not exceed the one-year period, as it was superseded initially
by his reassignment; and that his designation and
reassignment had both been done to meet the needs of the
company, without making him suffer reduction in salary status
and rank. Respondent sought reconsideration of the decision,
but his motion was denied by the CSC through Resolution No.
061840 promulgated on 16 October 2006.17
Respondent brought the matter to the Court of Appeals (CA)
which disagreed with the findings of the CSC. Citing the
Administrative Code,18 Home Insurance Guaranty Corporation
v. Civil Service Commission,19 and Office of the Ombudsman
v. Civil Service Commission,20 the Court of Appeals held that
only presidential appointees belong to the third-level or career
executive service. Thus, respondent, having been appointed
by petitioners president and not the President of the
Philippines, occupies a second- level position only.21 The
appellate court also ruled that respondents position was
station-specific, despite the absence of a place of assignment
in CSC Form No. 33, since the said form specifically referred to
petitioners Board Resolution No. TC 2003-2007, which
indicated that his appointment is to the position of Vice
President under "Item No. 700010-VisMin Operations &
Maintenance." The position of respondent being station-
specific, his reassignment could not exceed one (1) year per
Memorandum Circular No. 2.22
The Court of Appeals also discussed the various personnel
movements effected on respondent. Thus, when he reported to
his new assignment as "Vice President of Special Projects" per
Office Order No. 2004-173, as amended by Office Order No.
2004-1229, such movement was a reassignment and not a
mere detail, since there was a movement from one
organizational unit to another within the same department or
agency; that is, from his station at the office of the Vice
President VisMin Operations & Maintenance to the Office of
the President and CEO. Respondent remained in his place of
reassignment beyond 16 February 2005 because he was
designated additional duties, virtually extending his
reassignment beyond the one-year period. The third personnel
movement on 16 February 2005, as OIC of the PSRG, was
also a nullity because it extended further his original
reassignment, and worse, the appointment was made despite
respondents vigorous objection, said the Court of
Appeals.23 Finally, it concluded that while respondents
position, rank and salary had remained unchanged throughout
the said movements, he suffered much financial deprivation,
considering that he had to spend for his own travel expenses
to Cebu City to be with his family.24
Petitioner filed a motion for reconsideration, but its motion was
denied on 7 August 2007 for lack of merit.25
Before this Court, petitioner imputes the following errors to the
Court of Appeals, thus:
a. in classifying the position held by Hamoy, Jr. as
TransCo Vice President as a mere second level and
not a third level position;
b. in declaring that presidential appointment is a
requirement for a position to be classified as
belonging to the third level thus disregarding the clear
provisions of CSC Memorandum Circular No. 21,
series of 1994 and prevailing jurisprudence;
c. in holding that Hamoy, Jr. was appointed to a
station-specific position;
CSC-CES Cases 130
Public Corporation
d. in classifying the first movement of Hamoy from his
original assignment in the VisMin Operations and
Maintenance to the office of the president as a
"reassignment" and not a detail;"
e. in declaring that Hamoys reassignment was not
made in accordance with civil service laws, rules, and
regulations.26
On the other hand, respondent maintains that he was
appointed to a second-level position and, thus, he is not under
the Career Executive Service (CES). He adds that he was, in
fact, appointed to a station-specific position. Moreover, he
claims that his reassignments were made in violation of the
rules and constitute constructive dismissal.27
The petition has no merit.
In arguing that respondent belongs to the CES, petitioner
invokes Memorandum Circular No. 21, which reads in part:
1. Positions covered by the Career Executive Service
(a) x x x
(b) In addition to the above identified positions and
other positions of the same category which had been
previously classified and included in the CES, all
other third level positions of equivalent category in all
branches and instrumentalities of the national
government, including government owned and
controlled corporations with original charters are
embraced within the Career Executive Service
provided that they meet the following criteria:
,
1. the position is a career position;
2. the position is above division chief level;
3. the duties and responsibilities of the
position require the performance of
executive and managerial functions.
Petitioner also cites Caringal v. Philippine Charity
Sweepstakes Office (PCSO)28 and Erasmo v. Home Insurance
Guaranty Corporation29 to show that a presidential
appointment is not required before a position in a government
corporation is classified as included in the CES. 30 We are not
convinced.
The Administrative Code specifies the positions in the Civil
Service as follows:
Section 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 levels;
and

(c) The third level shall cover positions in the Career
Executive Service.31
Positions in the CES under the Administrative Code include
those of Undersecretary, Assistant Secretary, 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.32 Simply put, third-level
positions in the Civil Service are only those belonging to the
Career Executive Service, or those appointed by the President
of the Philippines. This was the same ruling handed down by
the Court in Office of the Ombudsman v. Civil Service
Commission,33 wherein the Court declared that the CES covers
presidential appointees only.
In the said case, the CSC disapproved the Office of the
Ombudsmans (OMBs) request for approval of the proposed
qualification standards for the Director II position in the Central
Administrative Service and Finance Management Service. The
OMB proposed that said position required "Career Service
Professional/Relevant Eligibility for Second Level position."
According to the CSC, the Director II position belonged to third-
level eligibility and is thus covered by the Career Executive
Service. Settling the issue, this Court ruled thus:
Thus, the CES covers presidential appointees only. As this
Court ruled in Office of the Ombudsman v. CSC:
"From the above-quoted provision of the Administrative Code,
persons occupying positions in the CES are presidential
appointees. xxx" (emphasis supplied)
Under the Constitution, the Ombudsman is the appointing
authority for all officials and employees of the Office of the
Ombudsman, except the Deputy Ombudsmen. Thus, a person
occupying the Position of Director II in the Central
Administrative Service or Finance and Management Service of
the Office of the Ombudsman is appointed by the
Ombudsman, not by the President. As such, he is neither
embraced in the CES nor does he need to possess CES
eligibility.34
Respondent was appointed Vice-President of VisMin
Operations & Maintenance by Transco President and CEO
Alan Ortiz, and not by the President of the Republic. On this
basis alone, respondent cannot be considered as part of the
CES.
Caringal and Erasmo cited by petitioner are not in point. There,
the Court ruled that appointees to CES positions who do not
possess the required CES eligibility do not enjoy security of
tenure. More importantly, far from holding that presidential
appointment is not required of a position to be included in the
CES, we learn from Caringal that the appointment by the
President completes the attainment of the CES rank, thus:
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 officials membership in the CES and most
importantly, confers on him security of tenure in the CES.
To classify other positions not included in the above
enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring
security of tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the appointing
power for non- CES positions in the President, in violation of
the Constitution; or (2) including in the CES a position not held
by presidential appointee, contrary to the Administrative
Code35
CSC-CES Cases 131
Public Corporation
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D.
Buenaflor issued Office Memorandum No. 27, s. 2008, which
states in part:
For years, the Commission has promulgated several policies
and issuances identifying positions in the Career Service
above Division Chief Level performing executive and
managerial functions as belonging to the Third Level covered
by the Career Executive Service (CES) and those outside the
CES, thus, requiring third level eligibility for purposes of
permanent appointment and security of tenure.
However, the issue as to whether a particular position belongs
to the Third Level has been settled by jurisprudence enshrined
in Home Insurance and Guaranty Corporation v. Civil Service
Commission, G.R. No. 95450 dated March 19, 1993 and Office
of the Ombudsman (OMB) v. Civil Service Commission; G.R.
No. 162215 dated July 30, 2007, where the Honorable
Supreme Court ruled citing the provision of Section 7(3)
Chapter 2, Title I-A, Book V of Administrative Code of 1987,
that the Third Level shall cover positions in the Career
Executive Service (CES). Positions in the Career Executive
Service consists of 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 (CESB), all of whom are
appointed by the President. To classify other positions not
included in the above enumeration as covered by the CES and
require appointees thereto to acquire CES or CSE eligibility
before acquiring security of tenure will lead to unconstitutional
and unlawful consequences. It will result either: in (1) vesting
the appointing power for non-CES positions in the President, in
violation of the Constitution; or, (2) including in the CES a
position not held by presidential appointee, contrary to the
Administrative Code.
xxx
While the above-cited ruling of the Supreme Court refer to
particular positions in the OMB and HIGC, it is clear, however,
that the intention was to make the doctrine enunciated therein
applicable to similar and comparable positions in the
bureaucracy. To reiterate, the Third Level covers only the
positions in the CES as enumerated in the Administrative Code
of 1987 and those identified by the CESB as of equivalent
rank, all of whom are appointed by the President of the
Philippines. Consequently, the doctrine enshrined in these
Supreme Court decisions has ipso facto nullified all
resolutions, qualification standards, pronouncements and/or
issuances of the Commission insofar as the requirement if third
level eligibility to non-CES positions is concerned.
In view thereof, OM No. 6, series of 2008 and all other
issuances of the Commission inconsistent with the afore-stated
law and jurisprudence are likewise deemed repealed,
superseded and abandoned. x x x36 (Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of
Memorandum Circular (MC) No. 21, it being inconsistent with
the afore-quoted Office Memorandum and thus deemed
repealed by no less than the CSC itself.
Having settled the nature of respondents position, we now
determine the validity of respondents reassignment from Vice
President for VisMin Operations & Maintenance to Vice
President of Special Projects under Office Order No. 2004-173,
as amended by Office Order No. 2004-1229.
The Revised Rules on Reassignment37 provides in part:
Sec. 6. x x x. Reassignment shall be governed by the following
rules:
1. These rules shall apply only to employees
appointed to first and second level positions in the
 CSC-CES Cases 132
Public Corporation

career and non-career services. Reassignment of
third level appointees is governed by the provisions of
Presidential Decree No. 1.
2. Personnel movements involving transfer or detail
should not confused with reassignment since they are
governed by separate rules.
3. Reassignment of employees with station-specific
place of work indicated in their respective
appointments shall be allowed only for a maximum
period of one (1) year. An appointment is considered
station-specific when the particular office or station
where the position is located is specifically indicated
on the face of the appointment paper. Station-specific
appointment does not refer to a specified plantilla item
number since it is used for purposes of identifying the
particular position to be filled or occupied by the
employee.
4. If appointment is not station-specific, the one-year
maximum shall not apply. Thus, reassignment of
employees whose appointments do not specifically
indicate the particular office or place of work has no
definite period unless otherwise revoked or recalled
by the Head of Agency, the Civil Service Commission
or a competent court.
5. If an appointment is not station-specific,
reassignment to an organizational unit within the
same building or from one building to another or
contiguous to each other in one work area or
compound is allowed. Organizational unit refers to
sections, divisions, and departments within an
organization.
6. Reassignment outside geographical location if with
consent shall have no limit. However, if it is without
consent, reassignment shall be for one (1) year only.
Reassignment outside of geographical location may
be from one Regional Office (RO) to another RO or
from the RO to the Central Office (CO) and vice-
versa.1avvphi1
Petitioner claims that respondent was not appointed to a
station-specific position because his appointment paper, CS
Form No. 33, does not indicate any specific work station. 39 This
being the case, he is entitled to security of tenure with respect
only to the position of Vice President, and he may be
reassigned from his original assignment in the VisMin
Operations & Maintenance to his new assignment in the Power
Systems Reliability Group.40 On the other hand, the Court of
Appeals, relying on Board Resolution No. TC 2003-2007,
which indicated that respondents appointment was to the
position of Vice President under "Item No. 700010-VisMin
Operations and Maintenance," held that his appointment was
station-specific.41
We do not agree with petitioner. It is not disputed that an
appointment is considered station-specific when the particular
office or station where the position is located is specifically
indicated on the face of the letter of appointment (Form No.
33). In this case, the letter of appointment itself makes specific
reference to a Board Resolution, by virtue of which respondent
was appointed as Vice President for VisMin Operations and
Maintenance, thereby rendering the Board Resolution an
integral part of the letter of appointment. The letter of
appointment states:
Republika ng Pilipinas
NATIONAL TRANSMISSION CORPORATION
Diliman, Lungsod ng Quezon
MR. VENUSTO D. HAMOY, JR.
National Transmission Corporation
Diliman, Quezon City
MR. HAMOY:
Kayo ay nahirang na (VICE PRESIDENT JG-18) (VICE
PRESIDENT SG-28) na may katayuang PERMANENT sa
Pambansang Korporasyon sa Transmisyon sa pasahod na
EIGHT HUNDRED FIFTY SIX THOUSAND THREE
HUNDRED TWENTY PESOS ( 856,320) piso. Ito ay
magkakabisa sa petsa ng pagganap ng tungkulin subalit di
aaga sa petsa ng pagpirma ng puno ng tanggapan o
appointing authority.

7. Reassignment is presumed to be regular and made Ang appointment na ito ay REEMPLOYMENT PURSUANT TO
in the interest of public service unless proven TRANSCO BOARD RES. NO. 2003-07 DATED 2/5/03 bilang
otherwise or if it constitutes constructive dismissal x x kapalit ni N/A na N/A at ayon sa Plantilya Item Blg. 7000010
x CY2003, Pahina ______.42 (Emphasis supplied)

a) Reassignment of an employee to perform Sumasainyo,

duties and responsibilities inconsistent with
the duties and responsibilities of his/her ALAN T. ORTIZ, Ph.D.
position such as from a position of dignity to President & CEO Puno ng Tanggapan
a more servile or menial job;
MAR 01 2003
b) Reassignment to an office not in the Petsa ng Pagpirma
existing organizational structure;
The pertinent portions of Board Resolution No. TC 2003-007
c) Reassignment to an existing office but the read, thus:
employee is not given any definite duties and
responsibilities;
RESOLUTION NO. TC 2003-007
d) Reassignment that will cause significant
financial dislocation or will cause difficulty or xxx
hardship on the part of the employee
because of geographical location; and WHEREAS, after careful evaluation and deliberation of the
qualifications of the applicants consistent with the Boards
e) Reassignment that is done Guidelines, the following executives are hereby appointed as
indiscriminately or whimsically because the follows:
law is not intended as a convenient shield for
the appointing/disciplining authority to harass a) x x x
or oppress a subordinate on the pretext of
advancing and promoting public xxx
interest.38 [Emphasis supplied).
 CSC-CES Cases 133
Public Corporation

j). Item No. 700010-VisMin Operations &Maintenance-

Mr. Venusto D. Hamoy, Jr.

APPROVED AND CONFIRMED, February 5,

2003.43 (Emphasis supplied)

In other words, it is clear from the filled-up Form No. 33 or the

letter of appointment that the appointment was issued pursuant
to Board Resolution No. TC 2003-007. The appointment
papers explicit reference to the Board Resolution, which in
turn cited "Item No. 700010-VisMin Operations &
Maintenance," indicated that respondents work station was the
VisMin Operations & Maintenance. As "VisMin" stands for the
Visayas-Mindanao, the Vice-President for VisMin Operations,
who is respondent, necessarily has to hold office in Cebu
where petitioner has offices for its Visayas-Mindanao
Operations.

Having been appointed to a station-specific position, whatever

reassignment may be extended to respondent cannot exceed
one year.1avvphi1

A reassignment is a movement of an employee from one

organizational unit to another in the same department or
agency which does not involve a reduction in rank, status or
salary and does not require the issuance of an appointment. A
detail, on the other hand, is a movement from one agency to
another.44 Respondents movement from the Office of the Vice-
President Vis-Min Operations & Management in January of
2004 to the Office of the President and CEO in Diliman,
Quezon City to handle Special Projects on 16 February 2004
was a reassignment, as he was moved from one department to
another within the same agency. Necessarily therefore,

such movement should last only until 16 February 2005, or one

year thereafter. However, respondent was designated
additional duties on 16 February 2005, which further extended
his stay in the Diliman office. When respondent was
designated as OIC of the PSRG, his reassignment was
extended once more. In addition, the reassignments were
made without his consent, nay, despite his objections. These
personnel movements are clear violations of the Revised
Rules.

All told, the Court finds no reason to overturn the Decision of

the Court of Appeals.

WHEREFORE, the petition is DENIED. The decision and

resolution of the Court of Appeals dated 30 May 2007 and 7
August 2007, respectively, are AFFIRMED. Costs against the
petitioner.

SO ORDERED.