luz vs ermita memorandum on appeal final

8/12/2019 Luz vs Ermita Memorandum on Appeal Final

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REPUBLIC OF THE PHILIPPINES

CIVIL SERVICE COMMISSIONConstitution Hills, Quezon City

JUAN MIGUEL LUZ,Appellant,

-versus- Case No.

THE EXECUTIVE SECRETARYEDUARDO ERMITA,Appellee.

x------------------------------------------x

Prefatory Statement

Integrity, competence, love of country and dedication to

public service are qualities expected of all public servants. Yet,

those who possess these are often not only unrewarded, but also

punished for standing up for their principles. In a government

where politics can kill a public servants dedication and

enthusiasm for service, the principles of merit, fitness, and

security of tenure as well as the rules of the Civil Service

Commission are often on a collision course with the demands of

politics and politicians.

This Appeal by Juan Miguel Luz is a classic case of a good

and honest civil servant, a Career Service Executive Officer, who

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suffers the punishment of termination and later, a transfer, from

no less than the Office of the President for refusing to perform an

unlawful act and for doing what he believed was right.

The Appellant files this Appeal in the fervent hope that the

resolution of the issues in this case will enrich law and

jurisprudence, instill belief in justice and fairness and inspire the

few who remain vigilant in their fight against corruption.

The Case

This is an appeal from the Order of the Honorable Executive

Secretary reassigning Appellant Juan Miguel Luz, a Career Service

Executive Officer and Undersecretary, Finance & Administration of

the Department of Education (hereafter called DepED), to the

Department of Labor and Employment (hereafter called DOLE).

Timeliness of the Appeal

The Appellant received a copy of the Memorandum of the

Appellee Executive Secretary Eduardo Ermita (hereafter called

Executive Secretary) on 04 October 2005, hence this Appeal is

being filed on time. A certified true copy of this memorandum is

attached asAnnex A.

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The Parties

APPELLANT Juan Miguel Luz (hereafter called Appellant)

is a Filipino, of legal age, residing at 326 St. Joseph Street, North

Concha Cruz Circle, B.F. Executive Homes, Las Pinas City. He is a

Career Service Officer (CESO) and is fully qualified for the position

of Undersecretary of Education (Finance & Administration) which

he is currently occupying. A certified true copy of his CESO

certification is attached asAnnex B.Appellant may be served

with copies of pleadings, notices, orders and other issuances of

this Honorable Office through undersigned counsel.

APPELLEE Eduardo Ermita (hereafter referred to as the

Appellee) is the Executive Secretary who signed the order

reassigning the Appellant to the DOLE.

Facts of the Case

The AppellantsQualifications

1. Appellant has sterling qualifications for the position of

Undersecretary of the DepED. His previous employment with

Government prior to his position in the DepED was with the

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Presidential Management Staff (Office of the President) during the

Administration of President Corazon C. Aquino. Outside of

government, the Appellant was the associate director of Philippine

Business for Social Progress (hereafter referred to as PBSP), the

largest social development NGO in the country, and in was a

professor at the Asian Institute of Management, one of Asias

leading business schools.

2. As the associate director of PBSP from 1985-87 and

1993-95, he headed training, research and programs development

and organized and led the team that drafted the management plan

for the Third Elementary Education Project (TEEP) of the

Department of Education, Culture and Sports funded by the World

Bank.

3. In 1987, he was appointed Presidential Staff Director of

the Presidential Management Staff in the Office of the Presient

(hereafter referred to as PMS) during the administration of

President Corazon C. Aquino, where he stayed until mid-1991. As

head of the Regional Operations Group and the Political Affairs

Group, he worked on a number of major projects including local

government autonomy and the establishment of the Autonomous

Region in Muslim Mindanao. Because of his experience with

PBSP, he was tasked with setting up the newly created Presidents

Social Fund (PSF), the source of the post-dated checks that figured

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in the events antecedent to the Appellants termination and

subsequent reassignment from the DepED to the Department of

Labor and Employment (DOLE).

4. In January 1991, Appellant became a Career Executive

Service Officer upon the general instruction of President Aquino

that all presidential appointees secure a CESO eligibility and rank

to shield them from the vagaries of political processes and

changes in presidential administrations and their particular

concerns related to appointments. (SeeAnnex Bhereof.)

5. After four years in government, Appellant returned to the

private sector. From 1995-97, he was vice president for corporate

affairs at the Far East Bank and Trust Company. From 1998 to

February 2002, he served as director of operations of the APEC

Business Advisory Council, the private sector advisory body to the

APEC Leaders. Concurrently, he was also an Associate Professor at

the Asian Institute of Management from 1997 to 2002.

6. As part of his community work, the Appellant served as

executive director of the Philippine National Museum Foundation,

a private sector foundation that raised funds for the renovation of

the National Museum in time for the countrys Centennial

celebrations in 1998. He also served as trustee of the Heritage

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Conservation Society of the Philippines for two terms and is

currently a trustee ofMuseo Pambata ng Pilipinas.

7. With a Bachelors Degree in Liberal Arts from St. Marys

College of California1, a La Salle Christian Brothers institution,

and a Masters Degree in Public Administration from the John F.

Kennedy School of Government, Harvard University,2Appellant has

expertise in the fields of community development, government

policy, business strategy and administration, and education

management. This is the reason why former DepED Secretary

Edilberto de Jesus invited him to rejoin government as

Undersecretary of Education in late 2002. Appellant accepted the

offer because he wanted to serve his country by contributing to

reforms in the DepED, which in the mid-to-late-1990s had the

reputation of being one of the most corrupt agencies in

government.

8. Appellant reactivated his CESO rank as confirmed by the

Career Executive Service Board. He took charge of the Finance and

Administration of the DepED in November 2002. After Secretary

de Jesus left the DepED in August 2004, the Appellant continued

to serve under former Secretary Florencio B. Abad and OIC

Secretaries Ramon C. Bacani and Fe A. Hidalgo, successively.

1He graduated magna cum laude and garnered two awards for academicexcellence James L. Hagerty Award (School of Liberal Arts) and St. ThomasAuinas Award (!ntegral "rogram).2

He was an #dward S. $ason %ellow in !nternational &e'eloment.

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Appellants contributions

to reform in the DepED

9. Appellant carried out major reforms in the areas of

finance and management systems. Notable among these were:

Providing direct funding releases from the

National Treasury to fiscally-autonomous high

schools and school divisions through the Direct

Release System;

Establishing the DepED Procurement Service;

Drafting of a new textbook policy, as well as

designing and organizing the National Textbook

Delivery Program to ensure the timely delivery of

over 50 million quality textbooks to close to

42,000 elementary schools;

Decentralizing the payroll service of elementary

school teachers;

Fixing the automatic payroll deduction system;

Re-engineering the Departments Provident

Funds3in order to have a professional system

Forming Brigada Eskwela(National Schools

Maintenance Week), a project undertaking minor

repairs of schools involving various school

stakeholders, the local community, local

3The &eartment "ro'ident %und has a nationwide ortfolio of ". *illion in

+ regions)

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government units and the private sector.

Brigada Eskwela significantly minimized

problems encountered during school openings

10. Since 2002, education reforms, both in terms of

financial management and support to academic programs of

schools, have helped establish the image of the Department of

Education as one of the five least corrupt national agencies in the

Social Weather Stations annual Enterprise Survey. This has been

cause for great pride in DepED considering that it was formerly

one of most corrupt agencies in the survey prior to that period.4

11. In sum, the Appellant is a highly-educated, competent,

honest, and dedicated public servant. His knowledge, competence

and integrity enabled him to generate significant financial and

material support from the private sector for schools under the

Departments Adopt-a-School program.

12. Then came a defining moment in the Appellants career

in the DepED. His integrity was put to a test when he was asked

to accept post-dated checks amounting to P 20 Million from the

Office of the President purportedly intended for a scholarship

4 &uring the entire ",$A Administration- no rocurement- ersonnel ornancial scandal has roc/ed the &eartment. The lone scandal attributed tothe &eartment in'ol'ed a contro'ersial error0laden textboo/ rocured adecade ago but which are still in the schools. The &eartment recalled thetextboo/ and ut in lace a tighter textboo/ e'aluation rocess to re'ent

such errors from recurring in ublic school textboo/s in the future.

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program of a congressman. Believing that these were against

government accounting and auditing rules as they were devoid of

documentation, he refused to do what he considered as highly

irregular and contrary to law. On September 9, 2005, the Appellant

decided to do the right thing and returned the checks to

Malacanang. As the events unfolded, Malacanang lost no time in

punishing him.

Terminated by

Malacanang

13. Appellants worries started on 13 September 2005, when

his office received a letter from the Executive Secretary that read:

We wish to thank you for your services as Undersecretary,

Department of Education, effective immediately. A copy of this

letter is attached asAnnexC. Stunned by what was apparently

a termination letter, he sent a query to the Civil Service

Commission on 20 September 2005 asking whether or not he was

terminated and if such was proper.A copy of this letter is attached

asAnnex D.

14. On 21 September 2005 Civil Service Commission

(hereafter referred to as CSC) Chairperson Karina Constantino-

David wrote him a letter stating that:

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For an undersecretary position, the qualifications are:

Bachelors degree, three (3) years supervisory

experience and Career Service Executive Eligibility

(CSEE) or Career Executive Eligibility (CESE).

Considering that you have met all the saidrequirements, the status of your appointment is

permanent. As such, you have security of tenure to the

said position.

As a permanent official, you cannot be removed from

your position by virtue of a mere letter. You may only

be removed for cause as provided for by law, and after

due process. Considering that the termination letter

did not mention any cause or reason for yourtermination, it is obvious that the Office of the

President was working under the mistaken assumption

that your appointment was not permanent and thus,

you may be separated from the service anytime or at a

moments notice.

A copy of Chairperson Karina Constantino-Davids letter is

attached asAnnexE.

15. On the same date, also responding to Appellants query,

Career Executive Service Board (hereafter referred to as CESB)

Executive Director Mary Ann Fernandez-Mendoza replied that

since the Appellant did not resign from his position, the letter from

the Office of the President could not be taken to mean termination

from the service, and that the Appellant may continue performing

his functions as Undersecretary of DepED. A copy of this letter is

attached asAnnexF.

16. Appellant immediately prepared a letter informing the

Office of the President that he was going to continue to perform his

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duties and functions as Undersecretary of DepED with no

disrespect intended, and his concerns were focused principally on

continuing and expanding education reforms. A copy of this letter

is attached asAnnexG.

17. Two days later, on 23 September 2005, Malacaang

announced to the media that appellant had been terminated as

undersecretary (of education) but not as a CESO. This was

modified as to be a reassignment to some other government

position of same rank. This was again modified by the Press

Secretary, who stated that Appellant had resigned as

Undersecretary. On the evening of 26 September 2005, the Press

Secretary was heard on radio stating that appellant was being

allowed to stay as Undersecretary of education. Copies of the

newspaper clippings are attached asAnnexesH,H-1, andH-

2.

18. On 4 October 2005, Appellant received a Memorandum

from the Appellee dated that same day that read: In the exigency

of service, you are hereby re-assigned from the Department of

Education (DepED) to the Department of Labor and Employment

(DOLE) to a position at least commensurate to your Career

Executive Service (CES) rank. (SeeAnnex A)

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Malacanangs

post dated checques

19. The termination letter of the Executive Secretary

received on 13 September 2005 and the Memorandum dated 4

October 2005 were no doubt sparked by the refusal of the

Appellant to accept the POST-DATED checks from the Presidents

Social Fund(hereafter referred to as PSF)which were intended for

the scholarship program of Congressman Antonio Diaz (2nd

District, Zambales).

20. On 23 August 2005, the DepED received a letter from

Congressman Diaz stating that President Arroyo had approved P20

Million from the PSF to be used for the congressmans scholarship

fund in the 2nd District of Zambales. Included in the letter was the

first P5 Million as a handwritten check drawn against an

unmarked non-commercial account in the Land Bank branch in

Malacaang. A copy of this letter and the proof that this check

was deposited to the DepED OSEC Trust Account is attached as

AnnexesI and I-1.

21. The DepEDs Chief Accountant, Mrs. Olivia San Pablo,

immediately called the Appellant to ask what to do with the check.

Baffled, he requested her to show him the check signed by Deputy

Executive Secretary (DES) Susana Vargas with the handwritten

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amount and name of the payee, the Department of Education. The

check was dated 21 August 2005, a Sunday.

22. Incredulous that Malacaang would issue such a

handwritten check, Appellant asked the accountant to call the

office of DES Vargas to inquire if this was in fact a genuine check.

After Mrs. San Pablo reported to him that the Office of the

President confirmed the existence of the check, the Appellant then

called Congressman Diazs Chief of Political Affairs staff, Ms. Cora

Maestre, to inquire about the purpose of the amount and the

manner of the disbursement. According to Ms. Maestre, the fund

was to be distributed as scholarship assistance given to each

public high school student in the congressmans district at a rate

of P350 per student, notwithstanding the fact that public

education is free and requires no payment of fees.

23. The Appellant was then told that the P5 Million should

be transferred to the Zambales division office which would, in

turn, release the money to the congressmans office which would

then distribute the same to the student beneficiaries directly. To

liquidate this amount, each student was to have signed a list

similar to a teachers payroll list when the latter receive their

payslips and paychecks from the division.

24. In a telephone conversation, DES Vargas told the

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Appellant that she was not privy to the Presidents decisions on the

PSF but that the Fund was disbursed solely at the discretion of the

President. Hence, she continued, the scholarship project as

discussed by the congressman must have been in accordance with

the Presidents instructions.

25. Upon the request of DES Vargas, Appellant agreed to

have the first P5 Million check deposited into the DepED central

office trust fund but then instructed Ms. San Pablo, DepED chief

accountant, not to transfer any funds to the Division of Zambales

until the Department received in writing a clear program of work

and the process of disbursement and liquidation from the

congressmans office.

26. On 2 September 2005, three similar checks of equal

amount (P5.0 M each) were forwarded to the DepED accounting

office from the Presidential Management Staff for deposit and

transfer to the same division of Zambales. The dates on these post-

dated checks were 3 September 2005, 3 December 2005, and 3

March 2006. A certified true copy of these checks are attached as

AnnexesJ. The Appellant noticed that all three were similarly

handwritten as the first check in August though they now bore two

signatures, those of DES Susana Vargas and Erlinda Bautista de

Leon as head of the PSF.

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27. The DepED accountant reported to the Appellant that

there was no accompanying documentation with the checks,

neither a Special Allotment Release Order (SARO)5nor a Notice of

Cash Allocation (NCA)6. Moreover, upon checking with both the

Department of Budget and Management (DBM) and the

Commission on Audit (COA), she confirmed that the acceptance of

post-dated checks are against government rules on accounting and

auditing procedures. Upon the request of the Appellant in a letter

dated 06 September 2005, COA Assistant Commissioner Arcadio

Cuenco wrote a letter stating that:

Please be informed that the issuance and/or receipt

of post-dated checks by government agencies is

prohibited under GAO Circular No. 68-110 datedOctober 10, 1968 pertinent portion of which states:

Checks presented for payment must be

drawn by the payor himself and made

payable to the agency or head of agency

Under no circumstance shall the following

checks be accepted: (a) checks drawn

payable to the name of the agency head or

any of its officers, (b) indorsed checks,(c)postdated checks, (d) stale checks, and(e) out-of-town checks, except those which

are drawn by the Government or its

instrumentalities. (emphasis supplied)

A certified copy of the letter of the to COA is attached as

Annex K. A certified copy of the letter of the Commission on

Audit to the Appellant is attached asAnnex L.

5 The SARO is the notice from the DBM to a e!artment that informs the "atter that f#ns are no$

a""otte an can %e o%"i&ate' (n effect) the SARO !ro*ies the e!artment $ith the a#thorit+ to

s!en f#ns'

6The ,-A is the notice from the DBM that the cash has %een e!osite or transferre to the

acco#nt of the e!artment an can %e ra$n a&ainst' On"+ at this !oint in time can a chec. %e

!re!are an/or re"ease to the !a+ee'

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28. On 6 September 2005, the Appellant received a letter

from Congressman Antonio Diaz dated 5 September 2005

requesting for the transfer of the two cleared checks (21 August

2005 and 3 September 2005) from the DepED central office trust

account to the DepED Division Office of Iba, Zambales. A certified

true copy of this letter is attached asAnnex M.

29. Appellant called DES Vargas on 7 September 2005 to

inquire about the post-dated checks she signed personally

delivered by the congressmans staff. Her reply was startling. She

sounded perplexed by the Appellants query and asked what the

dates were on the checks. When asked why she did not know the

dates on the checks being the signatory, she told the Appellant

that she usually pre-signed blank checks for the PSF but would

give these directly to the President. She said she was not privy

thereafter to the details of the checks nor of the projects for which

they were intended. Furthermore, she could not understand nor

explain why two of the checks would be post-dated.

30. On the same day the DepED Chief Accountant called

the Appellant with another urgent matter. The Presidential

Management Staff called her and Mr. Mandy Ruiz, the

departments Chief Budget Officer, to inquire if another PSF check

could be deposited directly to the division of Zamboanga del Sur

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for the projects of Congressman Isidro Real, thus by-passing the

central office in an effort to cut down on the overall processing

time for the check.

31. On 08 September 2005, Ms. Maestre of Congressman

Diazs office came to inquire if DepEd had deposited the first two

checks and if these could already be transferred to the division

office. The Appellant, not wanting to veer from the proper

accounting and auditing procedures, decided to return the four

checks to the Presidents Social Fund including the first one (21

August 2005) already deposited into the DepED central office trust

account and called the departments Chief Accountant, Chief

Budget Officer and Cashier to his office. The official receipt for the

second check (3 September 2005) was cancelled since this official

receipt had not yet been given to the Office of the President/PMS

and the check had yet to be deposited into the departments trust

account.

32. Early on 9 September 2005, Friday, a staff of PMS was

in the Appellants office waiting to pick up the three checks. The

appellant called Director Marietta Tamondong of the Presidential

Management Staff and informed her that the amount in the first

check which had already been deposited would likewise be

returned to PSF but through a DepED check. A certified copy of

the letter documenting the return of the checks is attached as

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blog appeared in the Philippine Star. While the Appellant was in

the United States, OIC-Secretary Fe Hidalgo received a letter from

Cong. Antonio Diaz dated 13 September requesting for the release

of the first P5.0 M (date 21 August 2005). This was eventually

released upon the instructions of OIC-Secretary Hidalgo. A

certified true copy of Cong. Diaz letter is attached asAnnexP.

After the release of this amount, the DepED received a Deed of

Donation for the same P5.0M signed by Cabinet Secretary Ricardo

Saludo and Undersecretary Ramon Bacani of the DepED,

notarized on 15 September 2005. A certified copy of this Deed of

Donation is attached asAnnexQ.

36. The next day, on 13 September 2005, the DepED

received the letter of termination of the Appellant from the

Executive Secretary. The OIC-Secretary called the Appellant on 16

September 2005 while he was still in New York to relay the news.

It will be noted that the letter of Cong. Diaz (SeeAnnex N) was

received by the DepEd on that same day, 13 September 2005.

37. On 4 October 2006, Appellant received a Memorandum

signed by Executive Secretary Eduardo Ermita reassigning him

to the Department of Labor and Employment (DOLE), without

specifying a position or a definite period. On the same day, the

Appellant received a letter from DOLE Secretary Patricia Santo

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Tomas dated 23 September 2005, stating that since the Appellant

was being moved from the DepED, she was requesting that he be

reassigned to her department. A certified true copy of this letter is

attached asAnnex R.

38. Hence, the Appellant files this Appeal contesting his

reassignment to the DOLE.

Arguments/Issues

I.

APPELLANT WAS CONSTRUCTIVELY

DISMISSED

II.

THE ORDER REASSIGNING THEAPPELLANT TO THE DOLE WAS DONE

WITH GRAVE ABUSE OF DISCRETION,

THEREFORE UNLAWFUL

Appellant, a CESO, may be reassigned

or transferred only if the following

requirements are met: a) the

reassignment or transfer must be in the

interest of public service, b) without

reduction in rank or salary, and c) no

reassignment or transfer may be made

oftener than every two years, d) the

reassignment or transfer must be

effected only upon the availability of a

corresponding position.

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III.

APPELLANTS TRANSFER WAS DONE IN

BAD FAITH, AND OBVIOUSLY FOR

POLITICAL REASONS

D i s c u s s i o n

I. Appellant was constructively dismissed

39. The 4 October 2005 Memorandum mandating the transfer

of Appellant states that :

In the exigency of service, you are hereby re-

assigned from the Department of Education (DepEd) to

the Department of Labor and Employment (DOLE) to a

position at least commensurate to your Career

Executive Service rank. (Emphasis supplied)

40. The Memorandum, although purportedly merely

reassigning the Appellant to the DOLE, was obviously meantto

kick him outof DepED because of his refusal to tow Malacanangs

line. Especially when viewed in the context of the antecedent facts,

this transfer or reassignment is in reality a constructive

dismissal because the Memorandum does not specify what

position the Appellant will occupy in the DOLE and for how long he

would be reassigned there.

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41. Furthermore, there is at present no vacant or available

position of Undersecretary in the DOLE. Without such a position,

the apparent intent of Malacanang is to float the Appellant as a

punishment, which is not allowed by the Civil Service Commission

(See, CSC Resolution No. 548, Aug. 10, 2004). Because the

purpose of the transfer order was to put Appellant on floating

status, the Appellant is deemed to be have been constructively

dismissed. This especially so since the Appellant would then find

his situation in the DOLE intolerable and humiliating such that he

would have to eventually resign from the government service.

42. The Constitution guarantees that no officer or employee

in the Civil Service shall be dismissed except for cause as provided

by law.7This was blatantly violated by the Appellee, and his gross

bad faith, driven by political motive, is clear from the antecedent

facts. Furthermore, the Supreme Court has held in the case of

Pastor vs. Pasig8that an indefinite assignment, such as that of

Appellant, is tantamount to a constructive dismissal. In said case,

petitioner, a budget officer, was assigned to Office of the Municipal

Administrator indefinitely. Her assignment was allegedly pending

the investigation of reports that she issued advice of allotments

without sufficient cash collection. In her ten-year assignment,

however, no investigation therefore was ever conducted. The

Supreme Court found such indefinite assignment as a form of

7Art' (B) Sec' 23) 1987 -onstit#tion'8

382 SCRA 232 (2002).

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constructive dismissal which left petitioner virtually on a floating

status. Moreover, the Supreme Court held that an employees

illegal removal cannot be carried out in the guise of a transfer for

the good of public service, thus:

There is no question that we recognize the

validity and indispensable necessity of the well

established rule that for the good of public service and

whenever public interest demands, [a] public official

may be temporarily assigned or detailed to other dutieseven over his objection without necessarily violating

his fundamental and legal rights to security of tenure

in the civil service. But as we have already stated,

such cannot be undertaken when the transfer of the

employee is with a view to his removal and if the

transfer is resorted to as a scheme to lure the

employee away from his permanent position because

such attitude is improper as it would in effect result

in a circumvention of the prohibition which safeguardsthe tenure of office of those who are in the civil

service.9

43. Similarly, in Gloria vs. Court of Appeals10and Padolino

vs. Fernandez,11the Supreme Court held that an indefinite

assignment, i.e. one which does not indicate a particular duration

or does not appear to be temporary, violates a civil servants

security of tenure.

44. In addition, in Bentain vs. Court of Appeals,12the

Supreme Court did not hesitate to declare a transfer motivated by

purposes other than the exigencies of public interest as

tantamount to an illegal dismissal. In the said case, petitioner, the

9Citing Cruz. Vs. Navarro, 66 SCRA 79, 90 (1975).10338 SCRA 5.11342 SCRA 442.12

G.R. No. 89452, June 9, 1992.

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Chief Security Officer of the University of the Philippines was

indefinitely assigned to work full time on the UP Police Force

operationalization project. After completing his work in the said

project and after the university legal counsel recommended that he

be restored to his position as Chief Security Officer, said position

was immediately abolished. Noting the timeliness of the abolition,

the Supreme Court properly concluded that the order was issued

to prevent petitioner from returning to his former position and

ruled:

While a temporary transfer or assignment of

personnel is permissible even without the employees

prior consent, it cannot be done when the transfer is a

preliminary step toward his removal, or is a scheme tolure him away from his permanent position, or

designed to indirectly terminate his service, or force

his resignation. Such transfer would in effect

circumvent the provision which safeguards the tenure

of office of those who are in the Civil Service.13

II. The order reassigning the

Appellant to the DOLE

was done with grave abuse

of discretion, therefore unlawful.

45. Appellee cannot justify his action on the pretext that

Appellants transfer is covered by the mobility principle sanctioned

by this Honorable Commission. While we can grant that CESOs

may be transferred, this can only be done if several requirements

13

Citing Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116.

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are met, and always in good faith. While the Appellee has the

authority to transfer a CESO, he cannot do so in grave abuse of

discretion. The application of the mobility principle to CESOs was

specifically laid down in the Revised Policy on Security of Tenure in

the Career Executive Service (Revised Policy),14to wit:

RESOLVED FURTHER, that notwithstanding thepermanent status of appointment of a third level

official, he/she is covered by the mobility principle

enshrined under Article IV, Part III of the Integrated

Reorganizational Plan, as approved by Presidential

Decree No. 1, as amended, dated September 24, 1972,

quoted herein as follows:

e. Assignments, Reassignments and

Transfers

x x x x x x x x x

Any provision of law to the contrary

notwithstanding, members of the Career

Executive Service may be reassigned or

transferred from one position to another;

provided that such reassignment or

transfer is made in theinterest of public

serviceand involves no reduction in rankor salary; provided, further, that no

member shall be reassigned or transferred

oftener than every two years.

RESOLVED FURTHERMORE, to ensure compliance to

(sic) the above-quoted mobility principle, reassignment

or transfer shall be effected only upon the

availability of the corresponding position, it being

understood that a floating status is not within thecontemplation of this principle. Assignment to a CESO

pool shall not be considered as a floating status.

(Emphasis supplied)

14

Career Executive Service Board Resolution No. 548, August 10, 2004.

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46. Based on the foregoing resolution, the reassignment or

transfer of a CESO must comply with the following requisites:

a. It must be made in the interest of public service;

b. It must involve no reduction in rank or salary;

c. It must not be made within two years from the

employees last transfer or reassignment; and

d. It must be effected only upon the availability of a

corresponding position.

47. The Office of the President, represented by the Appellee,

miserably failed to satisfy the first and the fourth requisite. Worse,

its action reeks of the unmistakable smell of malice. The

Appellees mere invocation of the clause in the exigency of service

does not make the Appellants transfer lawful, in the absence of

any convincing proof thereof. The burden of proof is on the part of

the Appellee who seeks to deprive the Appellant of his work, his

right to property.

48. That Appellant is purportedly needed at the DOLE, as

Secretary Patricia Sto. Tomas claims in her letter to Appellee, is

NOT an exigency of service which warrants Appellants transfer.

Secretary Sto. Tomas letter itself belies any pretense that the

transfer order of the Appellant was in the interest of public service.

On the contrary, said letter acknowledges that Appellee already

sought to remove Appellant from the DepED from the very start,

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and upon knowing the same, Secretary Sto. Tomas requested that

the Appellant be transferred to her department, perhaps intending

to make the transfer less painful for the Appellant, or at least, so

that he has a friendly Secretary to work with, considering that she

and the Appellant are both alumni of the Kennedy School of

Government.

49. In fact, Secretary Sto. Tomas made the request to the

Appellee only because she had been informed of Appellants

removal from the DepEd. Obviously, the DOLE Secretarys alleged

request is a mere afterthought intended to subterfuge Appellees

original plan to get rid of Appellant.

50. The reassignment of the Appellant therefore, can in no

way be seen as in the interest of public service. The truth is, the

public will be better served if Appellant remains as DepEd

Undersecretary. The Office of the President is well aware that until

now, the DepED is without a Secretary. DepED is mandated to

have four (4) undersecretaries and four (4) assistant secretaries.15

However, DepEd presently has only three (3) undersecretaries, only

two (2) of whom are functioning as such since the third is the

officer-in-charge of the department. Of the two functioning

undersecretaries, one is co-terminus or non-career.

51. On the other hand, the DOLE has three (3) career

undersecretaries, one of whom assumed office only last 30

15

Republic Act No. 9155, Governance of Basic Education Act of 2001.

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September 2005. There is no vacant or available Undersecretary

position in the DOLE. In addition, DOLE is allowed three (3)

plantilla Assistant Secretary positions, two (2) of which are already

filled-up.

52. The fourth requisite for a lawful transfer of a CESO was

likewise violated by the Appellee. If the Appellant is transferred to

DOLE, he will be placed in a humiliating situation because he will

not get the same rank and status of Undersecretary. Given the

situation of both departments, how can the DOLEs need for

Appellants services take priority over that of the DepEd?

53. Moreover, the Office of the President could not possibly

be blind to the successful reforms spearheaded by the Appellant in

the DepEd, particularly on fiscal and administrative management.

With Appellants outstanding performance, his transfer to another

department with a completely different and unrelated function for

which he was not trained all the more becomes illogical.

54. It is therefore not difficult to conclude that Appellants

honesty, professionalism and independence in the performance of

his duties as the Undersecretary in charge of the finances of the

government agency with the biggest budget, having P118 Billion as

of 2004, prompted the Office of the President to underhandedly

remove him from the DepEd. And for what purpose? Not only to

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punish him, but to serve also as a lesson to others who may be of

like mind.

55. While the transfer of Career Executive Service Officers is

allowed, this can be lawfully done only if the above-mentioned

requirements are existing, and always in good faith. We can be

guided by a case with similar issues involving the transfer of Atty.

Virgina L. Trinidad, CESO IV, who was an Assistant Commissioner

in the Bureau of Internal Revenue, who was reassigned to a

position that does not exist. In the case of Trinidad, Virginia L. Re

Appeal, Reassignment, the CSC ruled in favor of the Appellant in

its Resolution No. 030669 ( 10 June 2003), stating that:

While it is true that reassignment is a

management prerogative which the Commission does

not normally interfere with, the same is true only, as

held in CSC Resolution No. 96-3651, absent the

showing of grave abuse of discretion. In other words,

grave abuse of discretion must be clearly shown in

order that the Commission may take up the cudgels

for the employee reassigned (MONTIEL, Rolando, CSC

Resolution No. 94-1006, February 17, 1994. The

authority under the law is not intended as a

convenient weapon for the appointing authority to

harass or oppress a subordinate on the pretext of

advancing and promoting public interest (INHAYES,

Oscar J., CSC Resolution No. 98-16-08, June 24,

1998).

III. Appellants transfer was done in

bad faith, and obviously for political

reasons

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56. A careful examination of the events that transpired prior

to Appellants transfer clearly shows that Appellees act was tainted

with bad faith, motivated by purely political reasons. Quite clearly,

the Appellant was removed because he was an obstacle to the

wishes of the President that she distributes the Presidential Social

Fund with no restrictions, and even when funds are not available,

hence the post-dated checks. The Palace demands blind

obedience, and this the Appellant could not give.

57. Appellee very well knew that Appellant is a CESO with a

constitutionally guaranteed right to security of tenure, yet it

sought to dismiss Appellant through a termination letter dated 13

September 2005, only four (4) days after Appellant decided to

transfer back to the PSF the three (3) checks supposedly for

Congressman Diaz. The timing betrays Malacanangs political

motives behind Appellants termination.

58. Both the CSC and the CESB have written the Appellant

that termination of a CESO without cause and due process of law

is illegal. Hence, in a desperate and fraudulent attempt to lend a

semblance of legality to Appellants removal from the DepEd,

Malacanang qualified on 23 September 2005, i.e. ten (10) days

after the issuance of the termination letter, that Appellant was

terminated as undersecretary (of education) but not as CESO

(Annex Ihereof). Malacanang later changed its stance and

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disguised the termination as a reassignment to some other

government position of the same rank.

59. Malacanangs cover-up did not end with its conflicting

declarations. Knowing that the termination (disguised as

reassignment) is patently illegal, Malacanang deviously made it

appear that Appellant resigned and that it merely allowed

Appellant to continue its services as some form of accommodation.

Worse, Malacanang declared all these through press releases,

obviously to humiliate Appellant before the public.

60. This Honorable Commission should not and cannot

sanction such dismissal tainted by bad faith. Just like any other

employer, the government cannot transfer an employee as a result

of discrimination, in bad faith or as a form of punishment without

sufficient cause.16As this Honorable Commission has consistently

ruled, (t)he authority (to transfer employees) under the law is not

intended to harass or oppress a subordinate on the pretext of

advancing and promoting public interest17.

61. The Supreme Court has protected government employees

from political vendetta. In Pangilinan vs. Maglaya,18the Acting

Executive Director of the Land Transportation Office was separated

from service the day after his public exposes on the anomalies

16hi"i!!ine American ife an enera" (ns#rance -o' *s' ramae) 'R' ,o' 156963) ,o*em%er

11) 2004'17-i*i" Ser*ice -ommission Reso"#tion ,o' 030669) #ne 10) 2003 citin& -S- Reso"#tion ,o'

981608) #ne 24) 1998'18

'R' ,o' 104216) A#st 20) 1993'

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involving his superiors and his threat to file cases against them.

Although the Supreme Court admitted that it was constrained by

law to uphold the termination of a temporary employee, it did not

hesitate to express its disapproval of the real political motives

behind dismissals and declare that the removal, in fact, constitutes

grave abuse of discretion:

It is not difficult to see that the petitioner wasreplaced because of his expos and his threat to bring

charges against his superiors.His relief was clearly

an act of punishment if not personal vengeance.This is not denied. The respondents, while invoking

the law to justify his separation, have made no effort

whatsoever to justify their motives.

x x x x x x x x x

It would be a sorry day, indeed, if a civil

servant could be summarily removed from his

position for the "sin" of complaining about the

irregularities of his superiors. This would not only

impair the integrity of the civil service but also

undermine the campaign to encourage the public,

including those in the civil service, to expose anddenounce venality in government.

Pangilinan's denunciation of the non-reflective

license plates was not the act of a rabble-rouser or a

publicity-seeker. The record shows that he quietly

brought the matter to the attention of his superiors,

giving reasons for his misgivings. They took no action.

Feeling frustrated, he sought the attention of the

media and told them of his objection to the non-

reflective license plates. He cited the laws that he

claimed had been violated. He narrated his efforts to

prevent their violation. He spoke of the indifference of

his superiors. In doing all these, he was exercising his

right as a citizen, and especially as a civil servant, to

denounce official misconduct and improve the public

service.

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x x x x x x x x x

Pangilinan was separated the day

immediately following his press conference. The

Court sees the action as a retaliation. The publicrespondents say they were merely terminating his

incumbency in accordance with existing law. The

Court sees that termination as a punishment.

Under the expanded definition of judicial

power in Article VIII, Section 1, of the

Constitution, the Court can declare the acts of the

public respondents as tainted with grave abuse ofdiscretion and therefore invalid. (Emphasissupplied)

62. In this case, Appellant faces a formidable opponent, and

powerless, he can only take refuge in the arms of the law. Under a

Rule of Law not even the highest officer of the land should be

allowed to disregard the Constitution, the law and the rights of

civil servants. No amount of political power nor threat of

punishment should be able to intimidate civil servants into loyal

submission, blind obedience, and conspiracy to commit unlawful

acts.

Prayer

WHEREFORE, in view of the foregoing, it is respectfully

prayed that the Order dated 4 October 2005 signed by the

Appellee, ordering Appellants transfer to the DOLE be nullified as

illegal and that Appellant be retained as Undersecretary for

Finance and Administration of the Department of Education.

The Appellant prays for other relief that are just and

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equitable in the premises.

Quezon City, 14 October 2005.

Counsel for Appellant:

ROWENA V. GUANZON

PTR No. 01321430 1-17-04 Cadiz CityIBP Lifetime Member 1020636 8-20-04

Bacolod City

Roll of Attorney No. 33534

DAMCELLE S. TORRES

PTR NO. 9437561/1-05-2005/ Makati

IBP NO. 631983/1-05-2005 LagunaRoll of Attorney No. 49400

MAE NIA REYES

Suite 311 Centro Plaza

Scout Torillo corner Scout Madrinan

South Triangle, Quezon City 1103

Copy furnished: Registered Mail No. ___Secretary Eduardo Ermita Date __________________

Office of the Executive Secretary

Malacanang Palace

Manila City

EXPLANATION ON MODE OF SERVICE

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For lack of personnel, a copy of foregoing Memorandum on

Appeal was served by registered mail, rather than by the preferred

mode of personal service.

DAMCELLE S. TORRES

luz vs ermita memorandum on appeal final

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