3rd set of cases - whatever cases (sensya na memory defect hehe)

7/28/2019 3rd Set of Cases - Whatever Cases (Sensya Na Memory Defect Hehe)

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AKLAN COLLEGE vs. RODOLFO GUARINO

Before the Court is a petition for Review on Certiorariunder Rule 45 of the Rules of Court filed by Aklan CollegeIncorporated (ACI) and Msgr. Adolfo P. Depra (Msgr. Depra) assailing the Decision[1] of the Court of Appeals (CAdated March 9, 2001, and its Resolution[2]of April 5, 2002 in CA-G.R. SP No. 54035.The undisputed facts, as summarized by the CA, are as follows:Private respondent Guarino was first hired in 1972 as an instructor by petitioner College. In 1974, privaterespondent was appointed as Acting Dean of the Commerce and Secretarial Department. On November 26, 1990,he was again appointed by the petitioner as Acting Personnel Director, in addition to his duties as acting dean. Hisappointment as Acting Personnel Director was in a temporary basis and until it is revoked by the President orRector of the College. (Annex A,Rollo, 32)

A year after, private respondent went on leave for one year from November 4, 1991 up to November 4, 1992.

On October 20, 1992, private respondent wrote the petitioner through its Rector informing the latter of his intentionof reassuming his positions with the petitioner college.

However, in petitioners response, it informed private respondent that he cannot anymore reassume his formerposition as Acting Dean of the Commerce and Secretarial Department because he is not qualified for the position.

Then, on November 10, 1992, petitioner formally informed private respondent that the Board of Trustees of the

petitioner college has decided not to allow him to reassume his position as Acting Dean for the reason that he hasnot qualified to continue holding the position and that the position of Acting Personnel director has already beenfilled up by a regular incumbent. Hence, on November 11, 1992, private respondent filed the instant case forillegal dismissal against petitioner with the office of the Department of Labor in Kalibo, Aklan.[3]

On May 24, 1994, the Labor Arbiter (LA) handling the case rendered judgment dismissing the complaint for lack of merit.Rodolfo P. Guarino (respondent) filed an appeal with the National Labor Relations Commission (NLRC). On March 91995, the NLRC rendered a Decision reversing the LA, with the following dispositive portion:

WHEREFORE, the respondents are hereby ordered to pay the complainant separation pay for hisdischarge from the position of Dean of Commerce and Secretarial Science, equivalent to one month payfor every year of service, a fraction of six months being considered one year.

The respondents are further ordered to reinstate the complainant in his position as personnel

director with full backwages from the time his salaries were withheld from him until his actualreinstatement, and as instructor without backwages.

The respondents are furthermore ordered to pay the complainant 10% of the monetary awards asattorneys fees.

Other claims are hereby DISMISSED for lack of sufficient evidence.

Complainant's monetary awards up to March 10, 1995 are (sic) P149,955.85 computed as follows:

I Separation Pay as DeanP4,395.50 x 17 years

------

P74,723.50

II Backwages as Personnel Director

(Nov. 10, 1992-March 10, 1995)P2,200 x 28 months

Sub-totalIII 10% ATTORNEYS FEES

Grand total

------------------

P61,600.00P136, 323.50

P13,632.35

P149,955.85
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SO ORDERED.[4]

Aggrieved by the Decision of the NLRC, petitioners filed a special civil action forcertiorariwith the CA. On March 9

2001, the CA rendered judgment denying the petition and affirming the assailed decision of the NLRC. [5] PetitionersMotion for Reconsideration was subsequently denied by the CA in its Resolution dated April 5, 2002.[6]

Hence, herein petition with a sole Assignment of Error, to wit:

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING

THE WELL-SETTLED DOCTRINE LAID DOWN IN LA SALETTE OF SANTIAGO, INC. v. NLRC, 195SCRA 80 [1991] THAT NO EMPLOYEE ATTAINS A SECOND SECURITY OF TENURE TO AN

ADMINISTRATIVE POSITION.[7]

Petitioners contend that it is not a disputed fact that, during his employment with petitioner ACI, respondent heldthree concurrent positions: those of an instructor, Acting Dean of the Commerce Department and Acting PersonneDirector; what petitioners refused to give back to respondent when he was sent a letter dated November 10, 1992 werehis positions as Acting Dean and Acting Personnel Director; respondent was never stripped of his position as aninstructor. Citing the case ofLa Salette of Santiago, Inc. v. National Labor Relations Commission,[8] petitioners assert thawhile an employee attains security of tenure as a member of the teaching staff of a private educational institution fromwhich he could only be removed for cause, he cannot always aspire for a second tenure in an administrative position andcan, therefore, be stripped of this position by the appointing power without the latter being held responsible for illegaldismissal. Petitioners argue that when private respondent was not allowed to re-assume his former administrativepositions as Acting Dean and Acting Personnel Director but was still considered as an instructor and was even prodded toresume his teaching responsibilities, he could not be considered as having been illegally dismissed.

Petitioners further argue that there was no law or agreement which gave respondent additional tenure as dean; that

his appointment as dean in a regular capacity was made dependent on his graduation with a degree of Master in BusinessAdministration (MBA), as this is a requirement imposed by DECS Order No. 5, Series of 1990 as well as the Manual oRegulations for Private Schools; that petitioner was not able to finish his MBA which compelled petitioner ACI to withholdthe position from him.

Petitioners also aver that respondents appointment as Dean and Personnel Director was only in an acting bunever in a regular capacity. Citing various rulings of this Court, petitioners contend that a bona fide appointment in anacting capacity is essentially temporary and revocable in character and the holder of such an appointment may beremoved anytime even without hearing or cause.

On the other hand, respondent argues that petitioners reliance on La Salette is misplaced, as the factua

circumstances obtaining therein are materially different from those in the present case. Respondent contends thain La Salette, the complainant therein was appointed to various administrative positions for a definite or fixed term, while inthe present case respondent was appointed as dean not for a fixed duration but for an indefinite period. In additionrespondent claims that by continuously serving as Dean of ACIs Commerce and Secretarial Department for more than 17years, his assumption of the said office could not be considered as temporary. He claims that while he was not formallyappointed as dean, he has acquired security of tenure as such pursuant to the provisions of Article 280 of the Labor Code[9]

The Court finds the petition meritorious.

Respondents termination as Acting Personnel Director is valid.

The factual milieu in La Salette is similar to the present case insofar as respondents position as Personnel Directo

is concerned. In La Salette, the respondent therein occupied different administrative positions in various capacities everyso often and for a period not exceeding three years. For three years, she was the principal of La Salette Jones HighSchool. For the next three years she worked as teacher and Subject Area Coordinator of a sister school, La Salette oSantiago. Thereafter, for seven years, she was employed as a full-time instructor in still another sister corporationLa Salette College; and for two years of that period, she served as the Head of the Department of Education and Liberal

Arts. After which, for three years, she was assigned as Assistant Principal of the High School Department oLa Salette of Santiago, concurrently with her work as part-time instructor in La SaletteCollege. For the last two years oher connection with the La Salette School System, she was designated as High School Principal of La Salette oSantiago. On this matter, the Court held as follows:

What is immediately apparent from this second look at the material facts is that while ClaritaJaviers work as teacher in the La Salette School System was more or less continuous, or was evidentlyintended to be on a permanent basis, her assignment in one administrative office or another-i.e., as high
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school principal, subject area coordinator, head of a college department, assistant principal- was not. Inthese administrative posts, she served in a non-permanent capacity, either at the pleasure of the schoolor for a fixed term. She could not but have become aware of the pattern in her employment relationshipwith her employer, of the duality in the nature of her employment, particularly of the non-permanentcharacter of her stints in the administrative positions to which she was designated.

There was therefore no cause for her to believe that security of tenure could be obtained by her inany of the administrative positions she held at one time or another. On the contrary, the temporariness ofher occupancy of those administrative offices must have become quite apparent to her, in light of thefacts. x x x[10]

In the present case, it is not disputed that respondent was appointed as Acting Personnel Director on November 26

1990. He went on leave for one year from November 4, 1991 until November 4, 1992, after which he was no longeallowed to re-assume his administrative posts. Having assumed the position of Personnel Director in an acting capacityrespondent could not reasonably have expected that he had acquired security of tenure.

Moreover, in La Salette, the respondents appointment to the various administrative positions she held were noeven in an acting capacity. Yet this Court held that she never attained security of tenure with respect to thesepositions. In the present case,with all the more reason should respondent not expect that he has gained security otenure, considering that his appointment was only in an acting capacity.

This Court has held that an acting appointment is merely temporary, or one which is good until another appointmenis made to take its place.[11]And if another person is appointed, the temporary appointee should step out and cannot even

dispute the validity of his successors appointment.[12] The undisturbed unanimity of cases is that one who holds atemporary appointment has no fixed tenure of office; his employment can be terminated anytime at the pleasure of theappointing power without need to show that it is for cause. [13]

Insofar as the principles governing permanent and temporary appointments are concerned, this Court finds the

ruling in the more recent case ofAchacoso v. Macaraig[14] relevant and instructive. WhileAchacoso served as thejurisprudential basis in cases involving the issue of security of tenure in career executive service positions in thegovernment, this Court finds the rules on permanent and temporary appointments enunciated therein applicable to thepresent case.

This Court held inAchacoso that a permanent appointment can be issued only to a person who meets all therequirements for the position to which he is being appointed; a person who does not have the requisite qualifications fothe position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in

an acting capacity in the absence of persons who are qualified; the purpose of an acting or temporary appointment is toprevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selectionof a permanent or another appointee; the person named in an acting capacity accepts the position under the condition thathe shall surrender the office once he is called upon to do so by the appointing authority.[15]

Consistent with the rulings in La Salette,Achacoso and the other cases cited above, respondent could not have

attained security of tenure with respect to his position as Personnel Director of ACI. His termination as such is valid.

On the other hand, the factual circumstances are different with respect to respondents appointment as Acting Deanof ACIsCommerce Department. In the present case, respondent was allowed to occupy the position of Acting Dean for acontinuous period of 17 years, more or less, beginning in 1974 until he went on leave on November 4, 1991. Unlike theprivate respondent in LaSalette, herein respondents term as acting dean remained uninterrupted. In fact, there was noeven any showing that he was handed any re-appointment paper or made to sign a renewal contract regarding the saidposition.

Nonetheless, the Court finds respondents termination as Acting Dean also valid for the following reasons:

Petitioners assert that under DECS Order No. 5, Series of 1990, as well as Section 41 of the Manual of Regulationsfor Private Schools, the acquisition of a Masters degree has been made a requirement before a person can be appointedas Dean of an undergraduate program.

Article IV (1) (1.2) of DECS Order No. 5, Series of 1990, provides for the following minimum qualifications for theposition of chairman, dean or director of a schools accounting program, to wit:

a. Holder of a CPA certificate issued by the Professional Regulation Commission;
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b. Holder of at least a masters degree in business, accountancy, or business education;c. Teaching experience of at least three (3) years;d. The ability to lead and gain the confidence and respect of the faculty.

However, the Court finds that petitioners erred in relying upon the above-quoted provisions of DECS Order No. 5

Series of 1990, as its basis in dismissing respondent as the Acting Dean of its Commerce Department, because the saidOrder specifically applies only to the position of chairman, dean or director of a schools AccountingDepartment. Moreover, petitioners failed to refute respondents contention in his Position Paper that the Department oCommerce to which he was assigned consists of many fields of study other than accounting.

The Court also notes that the Manual being referred to by petitioners is the 1992 Manual of Regulations for PrivateSchools (8th Edition). The 1992 Manual took effect at the beginning of the summer session of 1993.[16] Prior toits effectivity, what was in force was the 1970 Manual of Regulations (7th Edition). The alleged illegal dismissal orespondent took place on November 10, 1992. At the time of the dismissal, what was in effect was the 1970Manual. Hence, it should have been the 1970 Manual, and not the 1992 Manual, that petitioners cited as their basis indismissing respondent from his position as Acting Dean.

In any case, it must be pointed out that like the 1992 Manual, the 1970 Manual requires that a Dean of anundergraduate program must have acquired an appropriate graduate degree. Paragraph 69 of the 1970 Manual provides

69. Administrative and supervisory officials should have the following minimum qualifications, duly

supported by credentials on file with the school.

a. For principal of primary and/or intermediate schools, a holder of a Bachelor's degree inElementary Education or equivalent with three years of successful teaching experience in theelementary grades.

b. For principal of secondary schools, a holder of a Bachelor of Science in Education degree orequivalent with three years of successful teaching experience in the high school.

c. College dean, a holder of an appropriate graduate degree with at least three years ofsuccessful college teaching experience.

d. Dean of the Graduate School, a holder of an appropriately earned doctorate degree with at least

three years of successful graduate school teaching experience. (emphasis supplied)

Both the 1970 and 1992 Manuals were promulgated by the Department of Education, Culture and Sports (nowDepartment of Education) in the exercise of its rule-making power as provided for under Section70[17] ofBatas Pambansa Blg. 232, otherwise known as the Education Act of 1982. As such, these Manuals have theforce and effect of law.[18]

Since the 1970 Manual imposes minimum requirements that must be complied with before a person can be

appointed as a college dean, petitioner ACI is duty-bound to comply with these requirements. Otherwise, it runs the risk oincurring administrative sanctions from DECS.[19] In the present case, the fact that respondent was retained as an actingdean for 17 years did not give him a vested right to occupy in a permanent capacity the position to which he wasappointed. Neither do his long years of service confer upon him the requisite qualifications which he does nopossess. Not being a masters degree holder, he was never and could never have been appointed in a permanencapacity, as he is not qualified under the law. Thus, pursuant to the 1970 Manual, respondents dismissal as acting deanof ACIs Commerce Department is valid.

Respondents appointment as dean of petitioners Commerce Department was also in an acting capacity. Hencethe Court finds the rulings in La Salette andAchacoso, which were earlier discussed, applicable.

The Court is not persuaded by respondents contention that petitioner ACI is estopped from assailing respondentsqualification since it allowed the latter to continue occupying the position of acting dean for more than 17 years despite thesaid requirement being imposed by the DECS.

In the present case, the employment of respondent as Acting Dean is contrary to the express provisions of the1970 Manual. It is settled that estoppel cannot give validity to an act that is prohibited by law, or one that is against public
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policy.[20] Neither can the defense of illegality be waived. [21] Hence, respondents appointment as Acting Dean can nevebe deemed validated byestoppel.

Moreover, respondent cannot deny that he is aware of the fact that a masters degree in business administration isrequired of a person who is appointed to the position of ACIs Dean of Commerce. He never disputed petitionerscontention in their Answer/Position Paper[22] filed with the Labor Arbiter that he was indeed aware of this requirement. Infact, it was in his Memorandum-Proposal addressed to the Rector of ACI dated May 26, 1972[23] that respondensuggested that ACI grant him financial assistance so that he can go to graduate school and take up MBA. ACI actedfavorably on his suggestion and awarded him a scholarship grant less than a month after the said Memorandum-Proposawas submitted.

In addition, one of the conditions imposed by petitioners upon respondent in their Scholarship and Employmentcontract was for him to serve as Dean of its Commerce Department after he finished his MBA. Despite the opportunitygiven him, respondent still failed to obtain an MBA. Nonetheless, respondent was still allowed to retain his position as

Acting Dean. Under the foregoing circumstances, especially in light of the requirements imposed by lawpetitioners extension of respondents appointment can be considered simply as an act of grace on the part of the formeand may not be interpreted as a change of status from temporary to permanent. If the intention of the petitioners was tomake respondents appointment permanent, they would have done so by executing a different appointment paperconsidering the fact that the original appointment was of a temporary nature.

Moreover, the provisions of Article 280 of the Labor Code are not applicable to the present case especially withrespect to the issue of respondent's acquisition of security of tenure. It is settled that questions respecting a privateschool teachers entitlement to security of tenure are governed by the Manual of Regulations for Private Schools and not

the Labor Code. Paragraph 75[24] of the 1970 Manual (now Section 93[25] of the 1992 Manual) lays down the requisitesbefore a teacher can be considered as having attained a permanent status and therefore entitled to security oftenure. In La Salette, the Court was clear in ruling that, unlike teachers (assistant instructors, instructors, assistanprofessors, associate professors, full professors) who aspire for and expect to acquire permanency, or security oftenure, in their employment as faculty members, teachers who are appointed as department heads or administrativeofficials (e.g., college or department secretaries, principals, directors, assistant deans, deans) do not normally, and shouldnot expect to, acquire a second status of permanency or an additional or second security of tenure as such officer. In theinstant case, it is not disputed that respondent was never removed from his position as instructor. He was only dismissedfrom his capacity as Acting Dean and Acting Personnel Director.

As to respondents right to procedural due process, this Court has held that there is no need of a notice to theacting appointee or any form of hearing. [26] Such procedural requirements apply where the officer is removable only forcause.[27] This Court reiterates the rule that a bona fide appointment in an acting capacity is essentially temporary and

revocable in character and the holder of such appointment may be removed anytime even without hearing or cause.[28]

As to respondents entitlement to separation pay, the settled rule is that separation pay is the amount that an

employee receives at the time of his severance from the service and is designed to provide the employee with thewherewithal during the period that he is seeking another employment. [29] In the present case, while respondent was nolonger allowed to return to his positions as Acting Dean and Acting Personnel Director he was, nonetheless, retained asan instructor. Hence, he could not be deemed as separated from the service because his employment as instructorremains.

On the other hand, if respondent chose to seek another employment as there is no showing in the present case thathe returned to his position as instructor, petitioners should not be faulted and made to suffer the consequence orespondent's decision. In such a case he is deemed to have voluntarily resigned. Settled is the rule that an employee whovoluntarily resigns from employment is not entitled to separation pay unless, however, there is a stipulation for payment ofsuch in the employment contract or Collective Bargaining Agreement, or payment of the amount is sanctioned byestablished employer practice or policy.[30] There is no proof to show that the present case falls under any of the above-enumerated exceptions. Hence, the Court finds no cogent reason to award him separation pay.

WHEREFORE, the instant petition is GRANTED. The Decision of the Court of Appeals dated March 9, 2001 in CA-G.R. SP No. 54035, which affirmed the Decision of the National Labor Relations Commission, Fourth Division, Cebu Cityin NLRC Case No. V-0261-94 is REVERSED and SETASIDE. The Labor Arbiter's Decision dated May 24, 1994 in RABCase No. 0210-AKLAN-92 (06-11-700045-92), dismissing respondents complaint for lack of merit, is REINSTATED.

No costs.

SO ORDERED.
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CIVIL SERVICECOMMISION vs. GREGORIO MAGNAYE

The Civil Service Commission (CSC) assails in this petition for review on certiorari,[1] the February 20, 2008 Decision[2]andthe June 11, 2008 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA reversed the July 202004 Decision of the Civil Service Commission Regional Office No. IV (CSCRO-IV) and ordered the reinstatement orespondent Gregorio Magnaye, Jr. (Magnaye) with payment of backwages and other monetary benefits.

THE FACTS

In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker I at theOffice of Economic Enterprise [Operation of Market] (OEE). After a few days, Mayor Rosales detailed him to the MunicipaPlanning and Development Office.

In the May elections of that year, Mayor Rosales was defeated by Raul L. Bendaa, who assumed office on June30, 2001. Thereafter, Magnaye was returned to his original assignment at the OEE. On July 11, 2001, Bendaa alsoplaced him on detail at the Municipal Planning and Development Office to assist in the implementation of a Survey on theIntegrated Rural Accessibility Planning Project.

On August 13, 2001, the new mayor served him a notice of termination from employment effective the following

day for unsatisfactory conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground that Mayor Bendaa was not in aposition to effectively evaluate his performance because it was made less than one and one-half months after his (Mayor

Bendaas) assumption to office. He added that his termination was without basis and was politically motivated.

The CSC head office dismissed, without prejudice, Magnayes complaint because he failed to attach a certificateof non-forum shopping. Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV).

The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his dismissal from the service on theground that Mayor Bendaas own assessment, together with the evaluation made by his supervisors, constitutedsufficient and reasonable grounds for his termination.

Magnaye sought recourse through a petition for review with the Court of Appeals, citing CSCRO-IVs allegederrors of fact and of law, non-observance of due process, and grave abuse of discretion amounting to lack or excess of

jurisdiction. Adopting the stance of the Office of the Solicitor General, the CA ruled in Magnayes favor, mainly on theground that he was denied due process since he was not informed of what constituted the alleged unsatisfactory conduct

and want of capacity that led to his termination. It summarized the positions of the OSG as follows:On January 18, 2005, the Office of the Solicitor General (OSG) filed its manifestation and

motion, in lieu of comment, praying that the assailed decision be set aside. The OSG argued thatPetitioners termination was illegal. The notice of termination did not cite the specific instancesindicating Petitioners alleged unsatisfactory conduct or want of capacity. It was only on July 29, 2003,or almost two years after Petitioners dismissal on August 13, 2001 that his former Department Heads,Engr. Magsino and Engr. Masongsong, submitted an assessment and evaluation report to MayorBendaa, which the latter belatedly solicited when the Petitioner appealed to the CSC RegionalOffice. Hence, the circumstances behind Petitioners dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level that Petitioner was informedof his alleged poor performance. There was no evidence that Petitioner was furnished copies of 1)Mayor Bendaas letter, dated July 29, 2003, addressed to CSC Regional Office praying that Petitionerstermination be sustained; and 2) the performance evaluation report, dated July 29, 2003, prepared byEngr. Magsino and Engr. Masongsong. The OSG claimed that Petitioner was denied due

process because his dismissal took effect a day after he received the notice of termination. No hearingwas conducted to give Petitioner the opportunity to refute the alleged causes of his dismissal. The OSGagreed with Petitioners claim that there was insufficient time for Mayor Bendaa to determine his fitnessor unfitness for the position.[3] [Emphasis supplied]

Thus, the fallo of the CA Decision[4] reads:

WHEREFORE, the petition is Granted. The Civil Service Commission Regional Office No. 4sDecision, dated July 20, 2004 is hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATEDwith full payment of backwages and other monetary benefits. This case is hereby REMANDED to the Civil
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Service Commission for reception of such evidence necessary for purposes of determining the amount ofbackwages and other monetary benefits to which Petitioner is entitled.

SO ORDERED.

THE ISSUES

In this petition, the Civil Service Commission submits the following for our consideration:

I. The dropping of respondent from the rolls of the local government unit of Lemery, Batangaswas in accord with Civil Service Law, rules and jurisprudence.

II. The respondent resorted to a wrong mode of appeal and violated the rule on exhaustion ofadministrative remedies and the corollary doctrine of primary jurisdiction.The principal issue, therefore, is whether or not the termination of Magnaye was in accordance with the

pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

THE COURTS RULING

The Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnayes termination was in accord with the Civil Service law, cited Section 4(a), RuleII of the 1998 CSC Omnibus Rules on Appointments and Other Personnel Actions which provides that:

Sec. 4. Nature of appointment. The nature of appointment shall be as follows:

a. Original refers to the initial entry into the career service of persons who meet all therequirements of the position. xxx

It is understood that the first six months of the service following an original appointment will be

probationary in nature and the appointee shall undergo a thorough character investigation. A probationermay be dropped from the service for unsatisfactory conduct or want of capacity anytime before the

expiration of the probationary period. Provided that such action is appealable to the Commission.

However, if no notice of termination for unsatisfactory conduct is given by the appointing authorityto the employee before the expiration of the six-month probationary period, the appointment automaticallybecomes permanent.

Under Civil Service rules, the first six months of service following a permanent appointment shall be probationary

in nature, and the probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytimebefore the expiration of the probationary period.[5]

The CSC is of the position that a civil service employee does not enjoy security of tenure during his 6-month probationary period. It submits that an employees security of tenure starts only after the probationaryperiod. Specifically, it argued that an appointee under an original appointment cannot lawfully invoke right to security oftenure until after the expiration of such period and provided that the appointee has not been notified of the termination ofservice or found unsatisfactory conduct before the expiration of the same. [6]

The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) Article 13 of theConstitution guarantees the rights ofall workers not just in terms of self-organization, collective bargainingpeaceful concerted activities, the right to strike with qualifications, humane conditions of work and a living wage but alsoto security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no officer or employee of the civilservice shall be removed or suspended except for cause as provided by law."

Consistently, Section 46 (a) of the Civil Service Law provides that no officer or employee in the Civil Serviceshall be suspended or dismissed except for cause as provided by law after due process.
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Our Constitution, in using the expressions all workers and no officer or employee, puts no distinction betweena probationary and a permanent or regular employee which means that both probationary and permanent employeesenjoy security of tenure. Probationary employees enjoy security of tenure in the sense that during theirprobationary employment, they cannot be dismissed except for cause or for failure to qualify as regularemployees. This was clearly stressed in the case ofLand Bank of the Philippines v. Rowena Paden, [7]where it waswritten:

To put the case in its proper perspective, we begin with a discussion on the respondent's right to security oftenure. Article IX (B), Section 2(3) of the 1987 Constitution expressly provides that "[n]o officer or employee of the civiservice shall be removed or suspended except for cause provided by law." At the outset, we emphasize that theaforementioned constitutional provision does not distinguish between a regular employee and a probationaryemployee. In the recent case of Daza v. Lugo[8] we ruled that:

The Constitution provides that "[N]o officer or employee of the civil service shall beremoved or suspended except for cause provided by law." Sec. 26, par. 1, Chapter 5,Book V, Title I-A of the Revised Administrative Code of 1987 states:

All such persons (appointees who meet all the requirements of the position) mustserve a probationary period of six months following their original appointment and shallundergo a thorough character investigation in order to acquire permanent civil servicestatus. A probationer may be dropped from the service for unsatisfactory conduct or wantof capacity any time before the expiration of the probationary period; provided, that suchaction is appealable to the Commission.

Thus, the services of respondent as a probationary employee may onlybe terminated fora just cause, that is, unsatisfactory conduct or want of capacity.

The only difference between regular and probationary employees from the perspective ofdue process is that the latter's termination can be based on the wider ground of failure to complywith standards made known to them when they became probationary employees.

The constitutional and statutory guarantee of security of tenure is extended to both those in the careerand non-career service positions, and the cause under which an employee may be removed or suspended mustnaturally have some relation to the character or fitness of the officer or employee, for the discharge of thefunctions of his office, or expiration of the project for which the employment was extended. [9] Further, well

entrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee assumesa position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to theposition), which is protected not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] andcannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and withprevious notice and hearing.[10]

While the CSC contends that a probationary employee does not enjoy security of tenure, its OmnibusRules recognizes that such an employee cannot be terminated except for cause. Note that in the Omnibus Rulesit cited,[11]a decision or order dropping a probationer from the service for unsatisfactory conduct or want ofcapacity anytime before the expiration of the probationary period is appealable to the Commission. This canonly mean that a probationary employee cannot be fired at will.

Notably, jurisprudence has it that the right to security of tenure is unavailing in certain instances. In Orcullo

Jr. v. Civil Service Commission,[12]it was ruled that the right is not available to those employees whoseappointments are contractual and co-terminus in nature. Such employment is characterized by a tenure which islimited to a period specified by law, or that which is coterminous with the appointing authority or subject to his pleasure, orwhich is limited to the duration of a particular project for which purpose employment was made. [13]InAmores M.D. v. CiviService Commission,[14] it was held that a civil executive service appointee who meets all the requirements for theposition, except only the appropriate civil service eligibility, holds the office in a temporary capacity and is, thus, notentitled to a security of tenure enjoyed by permanent appointees.

Clearly, Magnayes appointment is entirely different from those situations. From the records, his appointmentwas never classified as co-terminus or contractual. Neither was his eligibility as a Utility Worker I challenged byanyone.
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In support of its position that an appointee cannot lawfully invoke the right to a security of tenure during theprobationary period, petitioner CSC banked on the case ofLucero v. Court of Appeals and Philippine National Bank[15] This case is, however, not applicable because it refers to a private entity where the rules of employment are notexactly similar to those in the government service.

Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory conduct. Section 26, paragraph 1,

Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states:

(1) Appointment through certification.An appointment through certification to a position inthe civil service, except as herein otherwise provided, shall be issued to a person who has been selectedfrom a list of qualified persons certified by the Commission from an appropriate register of eligibles, andwho meets all the other requirements of the position.

All such persons must serve a probationary period of six months following their originalappointment and shall undergo a thorough character investigation in order to acquire permanentcivil service status. A probationer may be dropped from the service for unsatisfactory conduct orwant of capacity any time before the expiration of the probationary period: Provided that suchaction is appealable to the Commission.

While unsatisfactory conduct and want of capacity are valid causes that may be invoked for dismissal from the

service,[16]the CA observed that the Memorandum issued by Mayor Bendaa terminating Magnayes employmentdid not specify the acts constituting his want of capacity and unsatisfactory conduct. It merely stated that thecharacter investigation conducted during his probationary period showed that his employment need not be necessary to

be permanent in status.[17]Specifically, the notice of termination partly reads:You are hereby notified that your service as Utility Worker I, this municipality under six (6) month

probationary period, is considered terminated for unsatisfactory conduct or want of capacity,effective August 14, 2001.

You are further notified that after a thorough character investigation made during your suchprobationary period under my administration, your appointment for employment need not be necessary tobe automatically permanent in status.[18]

This notice indisputably lacks the details of Magnayes unsatisfactory conduct or want of capacity. Section VI

2.2(b) of the Omnibus Guidelines on Appointments and other Personnel Actions (CSC Memorandum Circular No. 38,Series of 1993, as amended by CSC Memorandum Circular No. 12, Series of 1994), provides:

2.2. Unsatisfactory or Poor Performance

b. An official who, for one evaluation period, is rated poor in performance, may be dropped fromthe rolls after due notice. Due notice shall mean that the officer or employee is informed in writing of thestatus of his performance not later than the fourth month of that rating period with sufficient warning thatfailure to improve his performance within the remaining period of the semester shall warrant hisseparation from the service. Such notice shall also contain sufficient information which shall enablethe employee to prepare an explanation. [Emphasis and underscoring supplied]

Magnaye asserts that no performance evaluation was made between March 2001 when he was hired by Mayor

Rosales until August 14, 2001 when his services were terminated by Mayor Bendaa. [19] It was only on July 29, 2003, aMayor Bendaas behest, that his two supervisors prepared and submitted the evaluation report after the CSCRO-IVdirected him to file an answer to Magnayes appeal.[20]

This has not been rebutted. It being not disputed, it was an error on the part of the CSCRO-IV to rely on suchbelated performance appraisal. Common sense dictates that the evaluation report, submitted only in 2003, could nothave been the basis for Magnayes termination.

Besides, Mayor Bendaas own assessment of Magnayes performance could not have served as asufficient basis to dismiss him because said mayor was not his immediate superior and did not have dailycontacts with him.Additionally, Mayor Bendaa terminated his employment less than one and one-half months after hisassumption to office. This is clearly a short period within which to assess his performance. In the case ofMiranda vCarreon,[21]it was stated:The 1987 Constitution provides that no officer or employee of the civil service shall be removed or suspendedexcept for cause provided by law. Under the Revised Administrative Code of 1987, a
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government officer or employee may be removed from the service on two (2) grounds: (1) unsatisfactoryconduct and (2) want of capacity. While the Code does not define and delineate the concepts of these two grounds,however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds fordismissing a government officer or employee from the service. Among these grounds are inefficiency andincompetence in the performance of official duties. In the case at bar, respondents were dismissed on the groundof poor performance. Poor performance falls within the concept of inefficiency and incompetence in theperformance of official duties which, as earlier mentioned, are grounds for dismissing a government official oremployee from the service.

But inefficiency or incompetence can only be determined after the passage of sufficienttime, hence, the probationary period of six (6) months for the respondents. Indeed, to be able to gaugewhether a subordinate is inefficient or incompetent requires enough time on the part of hisimmediate superior within which to observe his performance. This condition, however, was notobserved in this case.

The CSC is the central personnel agency of the government exercising quasi-judicial functions. [22] In cases filedbefore administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantialevidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify aconclusion.[23] The standard of substantial evidence is satisfied when, on the basis of the evidence on record,there is reasonable ground to believe that the person terminated was evidently wanting in capacity and hadunsatisfactory conduct. In this case, the evidence against Magnaye was woefully inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman Patricia Sto. Tomas[24]that the

prohibition in Article IX (B) (2) (3) of the Constitution against dismissal of a civil service officer or employee "except forcause provided by law" is a guaranty of both procedural and substantive due process. Proceduraldue processrequires that the dismissal comes only after notice and hearing, [25] while substantive due process requires thatthe dismissal be for cause.[26]

Magnaye was deniedproceduraldue process when he received his notice of termination only a daybefore he was dismissed from the service. Evidently, he was effectively deprived of the opportunity to defendhimself from the charge that he lacked the capacity to do his work and that his conduct was unsatisfactory. Aswell, during his appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa that hecould have opposed. He was also denied substantive due process because he was dismissed from the servicewithout a valid cause for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct.

Thus, we reject petitioners argument that the CA erred when it acted upon the erroneous remedy availed of by

respondent when he filed a petition for review considering that the assailed decision is not in the nature of awards,judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judiciafunctions as prescribed under Rule 43 of the Rules of Court. While Sections 71 and 72 of Rule V(B) of the Uniform Rules on Administrative Cases in the Civil Service [27] provide for the remedy of an appeal fromdecisions of its regional offices to the Commission proper, Magnayes petition to the CA comes under the exceptions tothe doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v. Lacap,[28] where a violation odue process is listed to be among the noted exceptions to the rule. As discussed above, Magnayes dismissal was taintedwith irregularity because the notice given to him comes short of the notice contemplated by law and jurisprudence. TheCA correctly exercised jurisdiction over this case where standards of due process had been patently breached.

Having been illegally dismissed, Magnaye should be reinstated to his former position without loss of seniority andpaid backwages and other monetary benefits from the time of his dismissal up to the time of his reinstatement. In ourdecision in Civil Service Commission v. Gentallan,[29] we ruled that for reasons of justice and fairness, an illegallydismissed government employee who is later ordered reinstated is entitled to backwages and other monetarybenefits from the time of his illegal dismissal until his reinstatement because he is considered as not having lefthis office.

WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the Court of Appeals and its June 11

2008 Resolution denying the motion for reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.SO ORDERED.
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PEZA vs. MERCADO

Being assailed is the Court of Appeals 1) Decision [1]of December 14, 2005 which reversed [2] that of the RegionaTrial Court (RTC) of Pasay City, Branch 108, 2) Amended Decision [3] dated March 31, 2006 by awarding back salariesto Gloria J. Mercado (respondent) computed from the time of her alleged dismissal until her reinstatement asPhilippine Economic Zone Authority (PEZA) Deputy Director General for Policy and Planning, and 3) Resolution[4] oMarch 31, 2006 which denied petitioners motion for reconsideration of the December 14, 2005 Decision.

The antecedent facts of the present controversy are as follows:

Respondent was appointed as Group Manager for Policy and Planning of PEZA on September 16, 1998. Heappointment was temporary in nature.

On May 16, 1999, respondent was promoted to the position of Deputy Director General for Policy andPlanning. Her appointment indicated the same as on permanent basis, but with the following annotation: NOSECURITY OF TENURE UNLESS HE/SHE OBTAINS CESO OR CSEE ELIGIBILITY. CESO is the acronym for CareerExecutive Service Officer, while CSEE is the acronym for Career Service Executive Eligibility.

On June 1, 2000, petitioner Lilia B. de Lima, in her capacity as PEZA Director General, by letter of even date,advised respondent of the termination of her appointment effective on the closing hours of the day. On evendate, petitioner PEZA Board convened in an executive session and passed a Resolution appointing Wilhelm G. Ortaliz(Ortaliz), a CESO eligible, as Deputy Director General for Policy and Planning effective immediately.

Respondent thereupon filed on June 7, 2000 with the RTC of Pasay City a petition for prohibition, quo warranto anddamages with preliminary prohibitory /mandatory injunction and/or temporary restraining order against herein petitionersand Ortaliz, docketed as Civil Case No. 00-0172, questioning the June 1, 2000 PEZA Board Resolution appointingOrtaliz as Deputy Director General for Policy and Planning.

In the main, respondent alleged in her complaint that her degree in Master in National Security Administration(MNSA) automatically conferred upon her Career Executive Service (CES) eligibility; that Republic Act No. (R.A.) 8748,which amended R.A. 7916 or the PEZA Charter, did away with the CES eligibility requirement for the position of DeputyDirector General; and that the termination of her appointment was actuated with bad faith to entitle her to moraland exemplary damages.

Petitioners countered that respondents MNSA degree at best merely granted her a CESO rank, not

eligibility, and since she had not acquired CES eligibility, she had no security of tenure with respect to her

position and could, therefore, be replaced at any time by Ortaliz who is a CES eligible.

Respecting respondents contention that R.A. 8748 removed the CES eligibility requirement, petitioners assertedthat based on the records of the deliberations on Senate Bill No. 1136 which eventually became R.A. 8748, thelawmakers never really intended to do away with the CES eligibility requirement for the position of Deputy DirectorGeneral; and that assuming arguendo that that was the intention, R.A. 8748 took effect only on June 20, 1999 after theappointment of respondent on May 16, 1999.

By Decision of December 4, 2001, the trial court dismissed respondents petition. It held that the passage of R.A8748 notwithstanding, the CES eligibility requirement for the position of Deputy Director General remains, in light of 1) thecertification from the CES Board that respondent was not a CES eligible, 2) R.A. 7916 (AN ACT PROVIDING FOR THELEGAL FRAMEWORK AND MECHANISMS FOR THE CREATION, OPERATION, ADMINISTRATION, ANDCOORDINATION OF SPECIAL ECONOMIC ZONES IN THE PHILIPPINES, CREATING FOR THIS PURPOSE, THEPHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA), AND FOR OTHER PURPOSES) which provides that appointmento the three PEZA Deputy Director General positions requires CES eligibility, and 3) the Senate deliberations on the bilwhich eventually became R.A. 8748.

The trial court further held that, contrary to respondents contention, her MNSA degree did not automaticallyconfer on her CES eligibility for, under Executive Order No. 771(AMENDING EXECUTIVE ORDER NO. 696 GRANTINGCAREER EXECUTIVE SERVICE OFFICER RANK TO GRADUATES OF THE NATIONAL DEFENSE COLLEGE OF THEPHILIPPINES AND OTHER RELATED PURPOSES), the recommendation of the Ministry or Agency concerned and theevaluation of the Career Executive Service Board (CESB) were still needed; and that absent these additionarequirements, what was granted to MNSA degree holders was merely the salary corresponding to the CESO rank and notthe rank itself.
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The trial court went on to state that per CESB Resolution No. 204 dated December 21, 1998, MNSA graduatesare deemed only to have passed the Management Aptitude Test Battery which is merely the first stage in the four-stageCES eligibility conferment process.

The trial court, concluding that since respondent did not have the required eligibility for the position, held that herappointment was merely temporary and had no security of tenure thereto, and that, therefore, it was deemed to haveexpired upon the appointment of Ortaliz.

The trial court denied respondents claim for damages, it finding that she failed to substantiate the same and, inany event, petitioners acted in accordance with law.

Respondent appealed to the Court of Appeals, raising substantially the same arguments she raised before thetrial court.

As stated early on, the appellate court, by the assailed Decision of December 14, 2005, reversedthe trial courtsdecision. It held that since respondent was promoted to the position of Deputy Director General for Policy and Planningon a permanent status, she cannot be summarily removed; and that respondents MNSA degree obtained on July 12,1993 automatically conferred on her a CES eligibility pursuant to Executive Order No. 696, as amended by ExecutiveOrder No. 771.

The appellate court went on to hold that even if respondent was not a CES eligible, she is still qualified for theposition as the requirement under Sec. 11 of Republic Act No. 7916 that appointees to Deputy Director General positionsmust have career executive service eligibility is no longer found under Sec. 11 of Republic Act No. 8748. It ratiocinated

that the deletion of such requirement indicated that the legislature intended to do away with the eligibility requirement.

At all events, the appellate court held that respondent subsequently qualified to the position as she was conferreda CES eligibility by the Civil Service Commission in December 2000.

Albeit the appellate court held that respondent was illegally removed from and ordered her reinstatement to her

position, it did not find her entitled to damages as there was no proof that the termination of her services was tainted withbad faith on the part of petitioners. Thus, the appellate court disposed:

WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated 04

December 2001 of the Regional Trial Court of Pasay City, Branch 108 in Civil Case No. 00-172is REVERSEDand SET ASIDE. PEZA Board Resolution No. 00-187 isdeclared NULL and VOID; appellee WILHELM G. ORTALIZ is OUSTED and

altogetherEXCLUDED from exercising, holding or occupying the position of PEZA Deputy DirectorGeneral for Policy and Planning; and appellant GLORIA J. MERCADO is hereby REINSTATED to herposition as PEZA Deputy Director General for Policy and Planning. Costs against appellees.

SO ORDERED.[5] (emphasis in the original)

Petitioners moved for reconsideration of the appellate courts decision. Respondent too moved for a partial motionfor reconsideration of the decision.

The appellate court, by the Amended Decision of March 31, 2006, acting on respondents motion foreconsideration, denied her claim for damages and attorneys fees but granted her claim for back salaries, computed fromthe time of her removal until her reinstatement to the position as PEZA Deputy Director General for Policy and Planning.

By Resolution also dated March 31, 2006, the appellate court denied petitioners motion for reconsideration,hence, their present recourse, they raising the same defenses and arguments proffered during the proceedings before thetrial and appellate courts.

The petition is impressed with merit.

Section 27 (1), of the Civil Service Law provides:(1) Permanent status. A permanent appointment shall be issued to a person who meets all therequirements for the position to which he is being appointed, including the appropriate eligibilityprescribed, in accordance with the provisions of law, rules and standards promulgated in pursuancethereof. (emphasis and underscoring supplied)
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In the CES under which the position of PEZA Deputy Director General for Policy and Planning is classified, the

acquisition of security of tenure which presupposes a permanent appointment is governed by the Rules and Regulationspromulgated by the CES Board. As the recent case ofAmores vs. Civil Service Commission explains:[6]

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 whichentitles the examinee to conferment of CES eligibility and the inclusion of his name in the roster of CESeligibles. Under the rules and regulations promulgated by the CES Board, conferment of the CESeligibility is done by the CES Board through a formal board resolution after an evaluation has beendone of the examinees performance in the four stages of the CES eligibility examinations. Uponconferment 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 CESrank is made by the President upon the Boards recommendation. It is this process whichcompletes the officials membership in the CES and confers on him security of tenure in theCES. Petitioner does not seem to have gone through this definitive process. (emphasis, italics andunderscoring supplied)

Clearly, for an examinee or an incumbent to be a member of the CES and be entitled to security of tenure, she/hemust pass the CES examinations, be conferred CES eligibility, comply with the other requirements prescribed by the CESBoard, and be appointed to a CES rank by the President.

Admittedly, before and up to the time of the termination of her appointment, respondent did not go through thefour stages of CES eligibility examinations.

The appellate courts ruling that respondent became CES eligible upon earning the MNSA degree, purportedly in

accordance with Executive Order No. 696, as amended by Executive Order No. 771, does not lie.

The pertinent portions of Executive Order No. 696 issued on May 27, 1981 which granted CESO rank tograduates of the National Defense College of the Philippines read:

x x x xWHEREAS, Article IV, Chapter I, Part III of the Integrated Reorganization Plan provides for a CareerExecutive Service to constitute a continuing pool of well-selected and development-oriented careeradministrators of the government;

WHEREAS, the pre-qualification requirements for admission at NDCP as well as the trainingobtained there fully satisfy the training and pre-qualification requirements for appointment to theCareer Executive Service; andx x x xNOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powersvested in me by law, do hereby order that:Sec. 1. holders of the degree of Master of National Security Administration shall be givenpreference in promotion to existing vacant positions, as well as assignments to higherresponsibility, particularly those involving policy formulation in their respective units, ministries,agencies, offices or entities.Sec. 2. Initially, NDCP graduates belonging to the government service shall be granted the rank ofCESO III with corresponding compensation and other privileges in the Career Executive Service.x x x x (emphasis and underscoring supplied)

Upon the other hand, the pertinent portions ofExecutive Order No. 771 issued more than eight months later or

on February 4, 1982, which amended Executive Order No. 696, read:

WHEREAS, Section 2 of the Executive Order No. 696 dated May 27, 1981, provides that graduates of theNational Defense College of the Philippines belonging to the government service shall be granted therank of CESO III with corresponding compensation and other privileges in the Career Executive Service;WHEREAS, graduates of the Career Executive Service Development Program who are equally deservinghave not been extended the same or similar benefits;WHEREAS, the automatic grant of CESO Rank III with corresponding compensation and privileges toNDCP graduates has caused salary inequities in some agencies; and
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WHEREAS, there is a need to harmonize the conferment of ranks, compensation and other benefits tograduates of both institutions or programs in order to maintain a high level or morale in the CareerExecutive Service.NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powersvested in me by law, do hereby order that:Sec. 1. Section 2 of Executive Order No. 696 is hereby amended, to read as follows:

Sec. 2. Graduates of the National Defense College of the Philippines belonging tothe civil service, and graduates of the Career Executive Service DevelopmentProgram who have not yet been appointed to a CESO rank shall be granted initiallyCESO Rank, V, or higher, depending on the recommendation of the Ministry orAgency head concerned and the evaluation of the Career Executive Service Board,with corresponding compensation and other benefits.The Career ExecutiveService Board, in consultation with the National Defense College of thePhilippines shall promulgate rules and regulations to implement this Order.

x x x x (emphasis and underscoring supplied)Pursuant to this amendatory Executive Order, the CESB issued on December 21, 1998 Resolution No204, ACCREDITING THE MASTER OF NATIONAL SECURITY ADMINISTRATION (MNSA) DEGREE CONFERRED BYTHE NATIONAL DEFENSE COLLEGE OF THE PHILIPPINES AND MASTER OF PUBLIC SAFETY ADMINISTRATION(MPSA) DEGREE CONFERRED BY THE PHILIPPINE PUBLIC SAFETY COLLEGE AS EQUIVALENT TO THEMANAGEMENT APTITUDE TEST BATTERY FOR POSSIBLE CONFERMENT OF CES ELIGIBILITY,the pertinenportions of which read:

x x x x

WHEREAS, the Board evaluated the curriculum and screening requirements of the two masteral

programs and found these to approximate the rigid requirements and standards of the ManagementAptitude Test Battery;

NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the Master of NationalSecurity Administration (MNSA) degree conferred by NDCP and the Master of Public Safety

Administration (MPSA) degree conferred by PPSC be accredited as equivalent to passing theManagement Aptitude Test Battery (MATB) and that graduates of both programs interested to acquireCES eligibility and CES rank be allowed to proceed to the second stage of the CES eligibilityexamination process which is the Assessment Centerand the other stages of the

examination thereafter in accordance with existing policies and regulations; PROVIDED, however, thatall expenses that will be incurred in participating in the Assessment Center shall be shouldered by theagency and/or the graduates.

RESOLVEDFURTHER that MNSA and MPSA graduates who pass the three other stages ofthe CES eligibility examinations andare conferred CES eligibility and who are incumbents of CESpositions may qualify for appointment to CES ranks; PROVIDED that they meet and comply with theother requirements prescribed by the CES Board and the Office of the President to qualify for rankappointment. (emphasis, italics and underscoring supplied)

By respondents attainment of an MNSA degree, she was not conferred automatic CES eligibility. It was, asabove-quoted portions of CESB Resolution No. 204 state, merely accredited as equivalent to passing the Management

Aptitude Test Battery. For respondent to acquire CES eligibility and CES rank, she could proceed to the second stageof the eligibility examination process . . . and the other stages of the examination . . . in accordance with existing policiesand regulations; and that if respondent as MNSA degree holder passed the three other stages of the CES eligibilityexaminations and is conferred CES eligibility, she could qualify for appointment to CES ranks, PROVIDED that shemeets and complies with other requirements of the CES Board and the Office of the President to qualify for rankappointment.

Since, it is admitted that respondent, who acquired an MNSA degree in 1993, had not undergone the second,thirdand fourth stages of the CES eligibility examinations prior to her appointment or during her incumbency as DeputyDirector General up to the time her appointment was terminated, she was not a CES eligible, as indeed certified to by theCES Board. Not being a CES eligible, she had no security of tenure, hence, the termination by the PEZA Board on June1, 2000 of her appointment, as well as the appointment in her stead of CES eligible by Ortaliz, were not illegal.


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Respecting the contention that the promulgation of R.A. 8748 on June 1, 1999 removed the CES eligibilityqualification for the position of Deputy Director General, hence, respondent, albeit not a CES-eligible, could only beterminated for cause, the same is untenable. The relevant portion of said law reads:

Section 1. Chapter II, Section 11 ofRepublic Act No. 7916 is hereby amended to read as follows:

Section 11. The Philippine Economic Zone Authority (PEZA) Board. There ishereby created a body corporate to be known as the Philippine Economic Zone Authority(PEZA) attached to the Department of Trade and Industry. The Board shall have adirector general with the rank of department undersecretary who shall be appointed bythe President. The director general shall be at least forty (40) years of age, of provenprobity and integrity, and a degree holder in any of the following fields: economics,business, public administration, law, management or their equivalent, and with at leastten (10) years relevant working experience preferably in the field of management orpublic administration.The director general, shall be assisted by three (3) deputy directors general eachfor policy and planning, administration and operations, who shall be appointed bythe PEZA Board, upon the recommendation of the director general. The deputydirectors general shall be at least thirty-five (35) years old, with proven probity andintegrity and a degree holder in any of the following fields: economics, business,public administration, law, management or their equivalent. (emphasis supplied)

As correctly held by the trial court, removing the CES eligibility requirement for the Deputy Director Genera

position could not have been the intention of the framers of the law. It bears noting that the position is a high-ranking one

which requires specialized knowledge and experience in certain areas including law, economics, public administration andsimilar fields, hence, to remove it from the CES would be absurd.

The Civil Service Commission CESB in fact has certified that the position requires the appropriate CESeligibility. It is settled that the construction given to a statute by an administrative agency charged with the interpretationand application of that statute is entitled to great respect and should be accorded great weight by the courts.[7]

Respondents subsequentpassing in late 2000 of the CES examinations did not retroact to consider her a CESO

at the time her appointment was terminated on June 1, 2000.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of December 14, 2005, AmendedDecision of March 31, 2006 and Resolution of March 31, 2006 areREVERSED AND SET ASIDE. The December 42001 Decision of the Regional Trial Court of Pasay City, Branch 108 is REINSTATED.

SO ORDERED.
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CIVIL SERVICE COMMISSION vs. NENITA JAVIER

Before the Court is a Petition for Review on Certiorariunder Rule 45 of the Rules of Court, seeking to reverse the Decision [1]othe 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 seaside the resolutions and orders of the Civil Service Commission (CSC) invalidating the appointment of respondent as CorporateSecretary 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 andcontrolled corporation (GOCC), on February 23, 1960, on a confidential status. On July 1, 1962, respondent was promoted toTabulating Equipment Operator with permanent status. The permanent status stayed with respondent throughout her career. Shespent her entire career with GSIS, earning several more promotions, until on December 16, 1986, she was appointed CorporateSecretary of the Board of Trustees of the corporation.

On July 16, 2001, a month shy of her 64 th 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 asCorporate Secretary, the same position she left and retired from barely a year earlier. Respondent was 64 years old at the time of hereappointment.[5] In its Resolution, the Board of Trustees classified her appointment as confidential in nature and the tenure of office is atthe pleasure of the Board.[6]

Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her service andcircumvent the laws on compulsory retirement. [7] This is because under Republic Act (R.A.) No. 8291, or the Government ServiceInsurance 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 andregulations.

Under the civil service regulations, those who are in primarily confidential positions may serve even beyond the age of 65 years. RuleXIII 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.

x x x xb. 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 consideredautomatically extended in the service until the expiry date of his/her appointment or until his/her services are earlierterminated.[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 respondent as CorporateSecretary, on the ground that theposition 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 GSISof 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, shewas re-employed as Corporate Secretary, a position now declared as confidential by the Board of Trustees pursuant toBoard Resolution No. 94 dated April 3, 2002.
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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 apermanent (career) position, and not primarily confidential (non-career); thus, it was wrong to appoint respondent to this position sinceshe no longer complies with eligibility requirements for a permanent career status. More importantly, as respondent by then has reachedcompulsory retirement at age 65, respondent was no longer qualified for a permanent career position. [11] With the denial of respondent'splea 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'sappointment.[12] The CA ruled that in determining whether a position is primarily confidential or otherwise, the nature of its functionsduties and responsibilities must be looked into, and not just its formal classification. [13] Examining the functions, duties and responsibilitiesof 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 primarilyconfidential in nature.[14] Further, it adds that the power to declare whether any position in government is primarily confidential, highlytechnical or policy determining rests solely in petitioner by virtue of its constitutional power as the central personnel agency of thegovernment.[15]

Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature and that it is within thepowers of the GSIS Board of Trustees to declare it so.[16] She argues that in determining the proper classification of a position, oneshould 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 ingovernment; and whether the position of corporate secretary in a GOCC is primarily confidential in nature.

The Court's Ruling

The courts may determine the properclassification 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 bycompetitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher careepositions; and (3) security of tenure.[19]

In addition, the Administrative Code, under its Book V, sub-classifies career positions according to appointment status, dividedinto: 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 pursuancethereof; and 2) temporary which is issued, in the absence of appropriate eligibles and when it becomes necessary in the publicinterest to fill a vacancy, to a person who meets all the requirements for the position to which he is being appointed except the appropriatecivil service eligibility; provided, that such temporary appointment shall not exceed twelve months, and the appointee may bereplaced sooner if aqualified civil service eligible becomes available.[20]

Positions that do n

3rd set of cases - whatever cases (sensya na memory defect hehe)

Documents