EXPIRATION OF TERM OR TENURE
1 Claiming to have the
G.R. No. 93023 March 13, 1991
TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as
Executive Secretary and Secretary of the Department of Labor and
Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents.
Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.
CRUZ, J.:
The petitioner invokes security of tenure against his claimed removal without
legal cause. The respondents assert he is not entitled to the guaranty because he
is not a career official. These are the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator of the Philippine Overseas
Employment Administration on October 16, 1987, and assumed office on
October 27, 1987. On January 2, 1990, in compliance with a request addressed
by the President of the Philippines to "all Department Heads, Undersecretaries,
Assistant Secretaries, Bureau Heads," and other government officials, he filed a
courtesy resignation. This was accepted by the President on April 3, 1990, "with
deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn
over his office to the Deputy Administrator as officer in-charge. In a letter dated
April 19, 1990, he protested his replacement and declared he was not
surrendering his office because his resignation was not voluntary but filed only
in obedience to the President's directive. On the same date, respondent Jose N.
Sarmiento was appointed Administrator of the POEA, vice the petitioner.
Achacoso was informed thereof the following day and was again asked to vacate
his office. He filed a motion for reconsideration on April 23, 1990, but this was
denied on April 30, 1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the
appointment of Sarmiento and to prohibit the respondents from preventing the
petitioner from discharging his duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service
and so enjoys security of tenure, which is one of the characteristics of the Career
Service as distinguished from the Non-Career Service.
rank of undersecretary, he says he comes under Article IV, Section 5 of P.D. 807,
otherwise known as the Civil Service Decree, which includes in the Career
Service:
3. Positions in the Career Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director, Chief of Department
Service and other officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed by the
President.
His argument is that in view of the security of tenure enjoyed by the above-
named officials, it was "beyond the prerogatives of the President" to require
them to submit courtesy resignations. Such courtesy resignations, even if filed,
should be disregarded for having been submitted "under duress," as otherwise
the President would have the power to remove career officials at pleasure, even
for capricious reasons. In support of this contention, he invokes Ortiz vs.
Commission on Elections,2 where we observed that "to constitute a complete and
operative act of resignation, the officer or employee must show a clear intention
to relinquish" and that "a courtesy resignation cannot properly be interpreted
as a resignation in the legal sense for it is not necessarily a reflection of a public
official's intention to surrender his position." He concludes that as his removal
was illegal, there was no vacancy in the disputed office to which respondent
Sarmiento could have been validly appointed.
In his Comment, the Solicitor General concedes that the office of POEA
Administrator is a career executive service position but submits that the
petitioner himself is not a career executive service official entitled to security of
tenure. He offers the following certification from the Civil Service Commission
to show that the petitioner did not possess the necessary qualifications when he
was appointed Administrator of the POEA in 1987:
CERTIFICATION
This is to certify that per records of the Career Executive Service Board (CESB),
Mr. Tomas D. Achacoso III has not participated in a Career Executive Service
Development Program (CESDP) and is not a CES eligible. This is to certify
further that Mr. Achacoso was not appointed to a rank in the CES and is not
therefore a member of the Career Executive Service.
xxx xxx xxx
 (Sgd.) ELMOR D. JURIDICO
Executive Director
Reference is also made to the following rules embodied in Part III, Article IV,
Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336
and P.D. 337, on the career executive service:
c. Appointment. Appointment to appropriate classes in the Career
Service shall be made by the Presidentfrom a list of career executive
eligibles 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 the 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
Career Executive Service eligible, provided that such appointee shall
subsequently take the required Career Executive Service examination and
that he shall not be promoted to a higher class until he qualifies in such
examination. (Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive
service eligible at the time of his appointment, he came under the exception to
the above rule and so was subject to the provision that he "shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher rank until he qualifies in such examination." Not having
taken that examination, he could not claim that his appointment was permanent
and guaranteed him security of tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who
meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed." Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being so,
it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments
of the parties in the petitioner's Reply and the Solicitor-General's Rejoinder,
must find for the respondents.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the nature
of his appointment, which in turn depends on his eligibility or lack of it. A
person who does not have the requisite qualifications for the position cannot be
appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate
eligibles.3
The appointment extended to him cannot be regarded as permanent even if it
may be so designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the
discharge of official functions by authorizing a person to discharge the same
pending the selection of a permanent or another appointee.4 The person named
in an acting capacity accepts the position under the condition that he shall
surrender the office once he is called upon to do so by the appointing authority.
In these circumstances, the acting appointee is separated by a method of
terminating official relations known in the law of public officers as expiration of
the term. His term is understood at the outset as without any fixity and
enduring at the pleasure of the appointing authority. When required to
relinquish his office, he cannot complain that he is being removed in violation of
his security of tenure because removal imports the separation of the
incumbent beforethe expiration of his term.5 This is allowed by the Constitution
only when it is for cause as provided by law. The acting appointee is separated
precisely because his term has expired. Expiration of the term is not covered by
the constitutional provision on security of tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no fixed tenure of
office; his employment can be terminated at the pleasure of the
appointing power, there being no need the show that the termination is
for cause.6
The petitioner contends that his appointment was really intended to be
permanent because temporary appointments are not supposed to exceed
twelve months and he was allowed to serve in his position for more than three
years. This is unacceptable. Even if that intention were assumed, it would not by
itself alone make his appointment permanent. Such an appointment did not
confer on the petitioner the appropriate civil service eligibility he did not
possess at the time he was appointed, nor did it vest him with the right to
security of tenure that is available only to permanent appointees.
The case of Luego vs. Civil Service Commission7 is not applicable because the
facts of that case are different. The petitioner in Luego was qualified and was
extended a permanent appointment that could not be withdrawn on the ground
that it was merely temporary. In the case at bar, the petitioner was not
eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs.
Mison,10 are also not pertinent because they also involved permanent appointees
who could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could
have been validly replaced even if he had not filed his courtesy resignation. We
therefore do not have to rule on its legality. Suffice it to say that it could have
been a graceful way of withdrawing him from his office with all the formal
amenities and no asperity or discord if only he had not chosen to contest it. But
it was his right to do so, of course, although his challenge has not succeeded.
CRIMINAL CONVICTION
G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE
MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE
REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the decision of 23
July 1985 of respondent Commission on Audit (COA) denying his claim for
payment of back wages, after he was reinstated to the service pursuant to an
executive clemency. He prays for the extraordinary remedy
of mandamus against public respondents to enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily
dismissed from the service on the ground of dishonesty in accordance with the
decision of the then Ministry of Public Works, Transportation and
Communications in Adm. Case No. 975 for the loss of several telegraph poles
which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon,
telecom lines. Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a criminal case
for qualified theft was filed against petitioner with the then Court of First
Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial
court rendered its decision acquitting petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April
1980, petitioner's request to be reinstated was denied by the Bureau of
Telecommunications. Hence, petitioner pleaded to the President of the
Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of
Transportation and Communications and the Civil Service Commission, Deputy
Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the
President, per Resolution No. O.P. 1800, granted executive clemency to
petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back
salaries effective 1 April 1975, the date of his dismissal from the service. This
was denied by the COA in its 5th Indorsement dated 12 October 1982 on the
ground that the executive clemency granted to him did not provide for the
payment of back salaries and that he has not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March 1984 but the
records do not show whether petitioner's reinstatement was to the same
position of Supervising Lineman.1
Petitioner again filed a claim to recover his back salaries for the period from 1
April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated.
In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985,
respondent COA denied the claim stating that the executive clemency was silent
on the payment of back wages and that he had not rendered service during the
period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of
the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S.
Factoran, Jr., by authority of the President, denied the appeal "due to legal and
constitutional constraint,"2 holding that this Court is the proper forum to take
cognizance of the appeal on certiorari from the decision of the COA, citing Art.
XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the
1987 Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is entitled
to the payment of back wages after having been reinstated pursuant to the grant
of executive clemency.
In his comment to the petition, the Solicitor General recommends that the
petition be given due course and the petitioner be awarded back wages to be
determined in the light of existing laws and jurisprudence. The Solicitor General
submits that the award is implicit in the grant of executive clemency, the
ultimate objective of which is to accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the following
reasons: (a) petitioner's acquittal in the criminal case did not necessarily free
him from administrative liability; (b) petitioners unexplained failure to appeal
the decision in the administrative case was tantamount to a waiver or
renunciation of his right to back wages; (c) the executive clemency was granted
to petitioner for the purpose of reinstatement only since it was silent on the
matter of back wages; (d) the award of back wages is allowed only if the
respondent is exonerated from the administrative charge that his suspension or
dismissal is declared illegal or unjustified by the court; and, (e) petitioner did
not render any service during the period before his reinstatement, hence, he is
not entitled to back wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the
pardoning power to be exercised as an act of grace and humanity, in proper
cases. Without such a power of clemency, to be exercised by some department
or functionary of a government, a country would be most imperfect and
deficient in its political morality and in that attribute of Deity whose judgments
are always tempered with money.3
Our Constitution reposes in the President the power and the exclusive
prerogative to extend executive clemency under the following circumstances:
Except in cases of impeachment or as otherwise provided in
this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.4
From among the different acts of executive clemency spelled out above, the
clemency granted to petitioner in the instant case partakes of the nature of an
executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is
enlightening:
In a 3rd Indorsement dated September 5, 1980, the Director of
Telecommunications interposed no objection to the petition,
while the Minister of Transportation and Communications, in
his 4th Indorsement dated November 17, 1980, favorably
recommended the grant of executive clemency to petitioner for
the reason that "while it is a rule that an administrative case is
separate and distinct from a criminal case and an acquittal in
the latter case dos not ipso facto result in the exoneration in
the former case, yet an exception could arise if the basis for the
acquittal was the innocence of the accused as in the case of
petitioner Garcia.
Asked for comment pursuant to Section 43 of Presidential
Decree No. 807, the Civil service Commission recommends the
grant of executive clemency to petitioner in view of the
findings of the court that —
instead of coming forward to the defense of
the accused who actually was authorized to
uproot or recover the poles in question and of
commending the latter for his high sense of
responsibility in preventing losses to the
government, said high officials had even the
temerity to disown and deny the authority
they gave to the accused resulting in his
separation from the service and having him all
alone in defending himself against the
accusation of the very government he tried to
protect.
After a careful study, this Office is inclined to grant executive
clemency to petitioner in the light of this decision of the court
acquitting him of the crime of qualified theft which was based
on the same acts obtaining in Administrative Case No. 975
against him, coupled with the favorable recommendation of the
Minister of Transportation and Communications and the Civil
Service Commission.
In view of the foregoing, petitioner Vicente Garcia is hereby
granted executive clemency.5
Time and again this Court has unfolded the effects of a pardon upon the
individual to whom it is granted. In Monsanto v. Factoran,6 we have firmly
established the general rule that while a pardon has generally been regarded as
blotting out the existence of guilt so that in the eyes of the law the offender is as
innocent as though he never committed the offense, it does not operate for all
purposes. The very essence of a pardon is forgiveness or remission of guilt and
not forgetfulness . It does not erase the fact of the commission of the crime and
the conviction thereof. Pardon frees the individual from all the penalties and
legal disabilities and restores to him all his civil rights. Unless expressly
grounded on the person's innocence, it cannot bring back lost reputation for
honesty, integrity and fair dealing. The pardoned offender regains his eligibility
for appointment to public office which was forfeited by reason of the conviction
of the offense. But since pardon does not generally result in automatic
reinstatement because the offender has to apply for reappointment, he is not
entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the individual,
it affirms this innocence and makes him a new man and as innocent; as if he had
not been found guilty of the offense charged.7 When a person is given pardon
because he did not truly commit the offense, the pardon relieves the party from
all punitive consequences of his criminal act, thereby restoring to him his clean
name, good reputation and unstained character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for dishonesty
and consequently dismissed from the service. However, he was later acquitted
by the trial court of the charge of qualified theft based on the very same acts for
which he was dismissed. The acquittal of petitioner by the trial court was
founded not on lack of proof beyond reasonable doubt but on the fact that
petitioner did not commit the offense imputed to him. Aside from finding him
innocent of the charge, the trial court commended petitioner for his concern
and dedication as a public servant. Verily, petitioner's innocence is the primary
reason behind the grant of executive clemency to him, bolstered by the
favorable recommendations for his reinstatement by the Ministry of
Transportation and Communications and the Civil Service Commission.
The bestowal of executive clemency on petitioner in effect completely
obliterated the adverse effects of the administrative decision which found him
guilty of dishonesty and ordered his separation from the service. This can be
inferred from the executive clemency itself exculpating petitioner from the
administrative charge and thereby directing his reinstatement, which is
rendered automatic by the grant of the pardon. This signifies that petitioner
need no longer apply to be reinstated to his former employment; he is restored
to his office ipso facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles him to
back wages.8 This is meant to afford relief to petitioner who is innocent from the
start and to make reparation for what he has suffered as a result of his unjust
dismissal from the service. To rule otherwise would defeat the very intention of
the executive clemency, i.e., to give justice to petitioner. Moreover, the right to
back wages is afforded to those with have been illegally dismissed and were
thus ordered reinstated or to those otherwise acquitted of the charges against
them.9 There is no doubt that petitioner's case falls within the situations
aforementioned to entitle him to back wages.
Further, it is worthy to note that the dismissal of petitioner was not the result of
any criminal conviction that carried with it forfeiture of the right to hold public
office, but is the direct consequence of an administrative decision of a branch of
the Executive Department over which the President, as its head, has the power
of control. The President's control has been defined to mean "the power of an
officer to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to the judgment of the former for the
latter." 10 In pardoning petitioner and ordering his reinstatement, the Chief
Executive exercised his power of control and set aside the decision of the
Ministry of Transportation and Communications. The clemency nullified the
dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus
entitled to back wages.
After having been declared innocent of the crime of qualified theft, which also
served as basis for the administrative charge, petitioner should not be
considered to have left his office for all legal purposes, so that he is entitled to
all the rights and privileges that accrued to him by virtue of the office held,
including back wages. 11
Established jurisprudence fixes recovery of back wages to a period of five (5)
years to be paid an illegally dismissed government employee who has been
ordered reinstated. 12 The cases heretofore decided by this Court show that
petitioners therein were employees of local governments who were removed
from office by their local officials. The reasons given for their removal were
abolition of office or position, reduction of work force, or lack of funds on the
part of the local governments concerned, which reasons were found by this
Court to be either devoid of factual basis or not sufficiently proven, otherwise,
their dismissal would have been valid and justified. In contrast, the case before
us is different, involving as it does circumstances that impel us to deviate from
the general rule previously laid down on the recovery of back wages for five
(15) years. Petitioner's reinstatement in the instant case which was ordered
pursuant to a grant of executive clemency was effected not because of lack of
sufficient proof of his commission of the offense but that, more importantly, he
did not commit the offense charged. Verily, law, equity and justice dictate that
petitioner be afforded compassion for the embarrassment, humiliation and,
above all, injustice caused to him and his family by his unfounded dismissal.
This Court cannot help surmising the painful stigma that must have caused
petitioner, the incursion on his dignity and reputation, for having been
adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently,
this Court finds it fair and just to award petitioner full back wages from 1 April
1975 when he was illegally dismissed, to 12 March 1984 when he was
reinstated. The payment shall be without deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent Commission
on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one
entered ordering public respondents, the Chairman of the Commission on Audit,
the Minister (now Secretary) of Land Transportation and Communications, the
Regional Director of Telecom Regional Office No. IV, or whoever may be sitting
in office in their stead, to pay the full amount of petitioner's back salaries from 1
April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.