DE LEON v. CA HON. ALMA DE LEON, Chairman, HON. THELMA GAMINDE, Commissioner, and HON. RAMON ERENETA, JR.

, Commissioner, Civil Service Commission, and SECRETARY RAFAEL ALUNAN, III, Department of Interior and Local Government, Petitioners, vs. HON. COURT OF APPEALS and JACOB MONTESA, Respondents. G.R. No. 127182 January 22, 2001 En Banc

YNARES-SANTIAGO, J.: FACTS: This is a Petition for Review on Certiorari assailing the decision and resolution of the Court of Appeals which set aside the resolutions of the Civil Service Commission and declared as null and void: Department Order No. 94-370 issued by the Department of Interior and Local Government, relieving private respondent of his duties as Department Legal Counsel/Director III and reassigning him as Assistant Regional Director of Region XI; and Administrative Order No. 235 issued by then President Fidel Ramos, dropping private respondent from the rolls of public service on the ground of serious neglect of duty and absences without official leave. Private respondent Atty. Jacob Montesa was appointed as Ministry Legal Counsel CESO IV in the Ministry of Local Government, now Department of Interior and Local Government (DILG) by then Minister Aquilino Pimentel, Jr. Inspite of not being a Career Executive Service Officer (CESO) or a member of the Career Executive Service (CES), private respondent's appointment was approved as permanent by the Civil Service Commission. Subsequently, then President Corazon Aquino promulgated Executive Order No. 262, reorganizing the DILG. Then Secretary Luis Santos, who succeeded Minister Pimentel, designated Nicanor Patricio as Chief of Legal Service in place of private respondent who, in turn, was directed to report to the office of the Secretary to perform special assignments. This prompted private respondent to file before the Supreme Court a petition for quo warranto against Secretary Luis Santos and Nicanor Patricio. On September 26, 1990, the Supreme Court ruled in favor of private respondent and ordered his reinstatement to his former position. Meanwhile, Republic Act No. 6758 or the Salary Standardization Law took effect on July 1, 1989. Pursuant thereto, the position of Department Service Chiefs, which include the Department Legal Counsel, was reclassified and ranked with Assistant Bureau Directors under the generic position title of Director III. Hence, in the execution of the decision of the Supreme Court, respondent was reinstated to the position: Department Legal Counsel and/or Director III. Then Secretary Rafael Alunan III, citing as reasons the interest of public service and the smooth flow of operations in the concerned offices, issued Department Order No. 94-370 on July 26, 1994. This order relieved private respondent of his current duties and responsibilities and

reassigned him as Director III or Assistant Regional Director of Region XI. Private respondent, however, did not report to his new assigned position. Instead, he filed a 90-day sick leave, and upon the expiration thereof, he submitted a memorandum for then acting Secretary Alexander Aguirre, signifying his intention to re-assume his position as Department Legal Counsel/Chief, Legal Services. Acting Secretary Aguirre, by memorandum, reiterated to private respondent that the issuance of said department order transferring him to Region XI, was in keeping with the interest of the public service and of the Career Executive Service provision on assignment, reassignment, and transfer. Accordingly, private respondent was advised to report to Region XI immediately. Private respondent wrote a memorandum requesting for reconsideration of the department order, but to no avail. On appeal to the Civil Service Commission by private respondent, the former issued a resolution which sustained the latters reassignment on the following grounds: (a) the reassignment was not violative of the due process clause of the Constitution or of private respondent's right to security of tenure; (b) the reassignment did not entail any reduction in rank or status; (c) private respondent could be reassigned from one station to another without his consent as the rule against unconsented transfer applies only to an officer who is appointed to a particular station, and not merely assigned thereto. Private respondent filed a motion for reconsideration but was denied by the Civil Service Commission. The DILG directed private respondent to report to his new assigned post in Region XI, stressing that his continued non-compliance with the department order is prejudicial to the interest of public service. Private respondent was also warned that upon his failure to comply, the DILG shall be constrained to consider him on absence without leave and as a consequence, drop him from the rolls of public service. Instead of complying therewith, private respondent filed with the Court of Appeals a Petition for Review with prayer for the issuance of a temporary restraining order and/or preliminary injunction but the issuance of the same was denied by the court. Upon the recommendation of the DILG, President Fidel Ramos, issued Administrative Order No. 235, dropping private respondent from the roster of public servants for serious neglect of duty and absences without leave. Later, the Court of Appeals rendered its decision on the petition in favor of private respondent and rendered as null and void Department Order No. 94370. The Court of Appeals ordered that private respondent be retained in his position as Chief, Legal Service or Department Legal Counsel in the DILG, without loss of seniority, rank, emolument and privileges. The DILG Secretary was ordered to release to petitioner his withheld salaries corresponding to the period July 15-21, 1995 and his back salaries, if also withheld, corresponding to the period July 22, 1995 to September 27, 1995. Both petitioners and private respondent moved for reconsideration. In his Motion for Clarification and/or Partial Motion for Reconsideration, private respondent prayed for backwages and his salary that was illegally withheld from the time the resolution of the Civil Service Commission was issued up to his actual reinstatement to office. Respondent likewise prayed for the award of RATA during the period of his illegal dismissal. Petitioners, on the other hand, posited that the decision of the Court of Appeals is not confluent with Administrative Order No. 235 issued by President Ramos which dropped petitioner from the roster of public

servants. They further argued that until and unless the said order is declared invalid, the presumption is in favor of its validity and it is incumbent upon private respondent to comply therewith so as not to prejudice the public service. The Court of Appeals denied the motion for reconsideration filed by public respondents for lack of merit and granted petitioner's Motion for Clarification and/or Partial Motion for Reconsideration. It modified its earlier decision by ordering the DILG Secretary to release to petitioner his withheld salaries and backwages, including allowances or RATA and other benefits, to which petitioner would have been entitled had he not been illegally removed, corresponding to the period from July 15, 1995 up to his actual reinstatement to office. Dissatisfied, petitioners filed the present petition. ISSUE: Whether or not an individual who lacks the necessary qualifications for a public position can be appointed to it in a permanent capacity. RULING: No. The position of Ministry Legal Counsel CESO IV is embraced in the Career Executive Service. Under the Integrated Reorganization Plan, appointment thereto shall be made by the President from a list of career executive eligible recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a CES eligible; provided that such appointee shall subsequently take the required CES examination and that he shall not be promoted to a higher class until qualifies in such examination. Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligible. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation of the examinee's performance in the four stages of the CES eligibility examinations. In the case of Achacoso v. Macaraig, et al., the Court held that: a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. If not, the appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moment's notice. The mere fact that a position belongs to the Career Service does not automatically confer security or tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligible. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

In the present case, private respondent does not have the required Career Executive Service eligibility as evidenced by his admission in his Comment that he is not a Career Executive Service Officer or a member of the Career Executive Service. Hence, private respondent's appointment did not attain permanency. Not having taken the necessary Career Executive Service examination to obtain requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed eligibility for a position in the Career Executive Service. Consequently, his appointment as Ministry Legal Counsel CESO IV/ Department Legal Counsel and/or Director III, was merely temporary. The cases on unconsented transfer invoked by private respondent find no application in the present case. As his appointment was merely temporary, he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. Private respondents contention, that the mobility and flexibility concepts in the assignment of personnel under the Career Executive Service do not apply to him because he is not a Career Executive Service Officer, is without merit. As correctly pointed out by the Solicitor General, non-eligible holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy. Hence, the assailed decision and resolution of the Court of Appeals were reversed and set aside and the resolutions of the Civil Service Commission were reinstated.