Pub Corp Part 5

PUBLIC OFFICERS and CORPORATIONS (Atty.
Rodolfo Elman) 1
1ST EXAM COVERAGE CASE COMPILATION
INOK v. CIVIL SERVICE COMMISSION
AGYAO v. CIVIL SERVICE COMMISSION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182591
January 18, 2011
MODESTO AGYAO, JR., Petitioner,

vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
MENDOZA, J.:
Assailed in this petition for review on certiorari is the
September 26, 2007 Decision1 of the Court of Appeals (CA),
in CA-G.R. SP No. 92569, which affirmed Resolution No. 050821 dated June 16, 2005, issued by the Civil Service
Commission (CSC). The CSC Resolution, in turn, affirmed
the invalidation by the Civil Service Commission Field OfficeBangko Sentral Ng Pilipinas (CSCFO-BSP) of the
appointment of petitioner Modesto Agyao, Jr. (Agyao) as
Department Manager II of the Philippine Economic Zone
Authority (PEZA).
Records show that on June 16, 2004, Agyao was reappointed as Department Manager II of PEZA. As a matter of
course, the renewal of Agyaos appointment was submitted
by PEZA to the CSC.
On July 16, 2004, however, Agyaos re-appointment was
invalidated by the CSCFO-BSP, through a letter of Director
Mercedes P. Tabao (Director Tabao). The letter stated that
Agyao lacked the prescribed Career Executive Service Office
(CESO)/ Career Service Executive Examination (CSEE)
eligibility, and there were qualified eligibles actually available
for appointment. Section 2 (b), Rule III of CSC Memorandum
Circular No. 40, Series of 1998, provides as follows:
b. Temporary issued to a person who meets the education,
experience and training requirements for the position to
which he is being appointed except for the appropriate
eligibility but only in the absence of a qualified eligible
actually available, as certified to by the Civil Service
Regional Director or Field Officer. xxx
On August 31, 2004, PEZA Director-General Lilia B. De
Lima (Director-General De Lima) sent a letter-appeal to the
CSC seeking a reconsideration of its action on the
appointment of Agyao.
On June 16, 2005, the CSC issued Resolution No. 0508212 denying Director-General De Limas appeal and
affirming the invalidation by the CSCFOBSP of Agyaos
appointment as Department Manager II of PEZA. The CSC
referred to CSC Memorandum Circular (MC) No. 9, Series of
2005 (Limitations on Renewal of Temporary Appointments),
which clearly provides that only one renewal of a temporary
third-level appointment is allowed provided that there are no
qualified applicants actually available and willing to assume
the position. Moreover, although Agyaos temporary
appointment was renewed four (4) times, he failed to acquire
the appropriate third level eligibility. In addition, CSCFO-BSP
Director Tabao certified that there were qualified eligibles
available for appointment to the position of Department
Manager II.
On July 18, 2005, Agyao was informed by PEZA Deputy
Director for Finance and Administration, Justo Porfirio LL.
Yusingco, about his appointment as Division Chief III,
Permanent, effective July 16, 2005.
On August 21, 2005, Agyao filed with the CSC a LetterMotion for Reconsideration of its July 16, 2005 Resolution.
The motion, however, was denied in the cited CSC
Resolution No. 05-1486 dated October 17, 2005.
On appeal, the CA rendered a decision dated September 26,
2007 affirming the resolution of the CSC. It ruled, among
others, that Agyao could not qualify for the position of
Department Manager II because he was not a Career Civil
Service Eligible (CESE). He could not invoke the provisions
of CSC MC No. 9, Series of 2005, issued on March 22, 2005
because the invalidation of his temporary appointment was
made earlier on July 16, 2004. Moreover, CSC Office
Memorandum No. 05, Series of 2005, issued on August 5,
2005 as a clarification on CSC MC No. 9, Series of 2005,
expressly provides that "all renewals issued on or after July
24, 2005 can no longer be renewed after they lapse."
Aggrieved, Agyao filed this petition for review before this
Court raising the following
ISSUES
WHETHER OR NOT THE COURT OF APPEALS ERRED
AND ABUSED ITS DISCRETION IN UPHOLDING THE
FINDINGS OF THE CIVIL SERVICE COMMISSION
DECLARING THE APPOINTMENT OF THE PETITIONER
AS DEPARTMENT MANAGER II OF THE PEZA AS
INVALID.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE POSITION OF THE
PETITIONER AS DEPARTMENT MANAGER II IS NOT
COVERED UNDER THE CAREER EXECUTIVE SERVICE
CONSIDERING THE FACT THAT HE IS NOT A
PRESIDENTIAL APPOINTEE.
MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN
S.Y. 2014-2015
PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 2

Agyao argues that CSC MC No. 9, Series of 2005, is
applicable to him because its provisions are favorable to him.
He claims that CSC Office Memorandum No. 05, Series of
2005, which clarified CSC MC No. 9, Series of 2005, allows
one renewal of temporary third level appointments issued
before July 24, 2005 subject to existing rules and regulations
regardless of previous renewals granted before said date.
Accordingly, he insists that the renewal of his appointment
was valid because it was made on June 16, 2004.
the office. The third level embraces positions of a managerial

character involving the exercise of management functions
such as planning, organizing, directing, coordinating,
controlling, and overseeing the activities of an organization
or of a unit thereof. It also requires some degree of
professional, technical or scientific knowledge and
experience, and application of managerial or supervisory
skills necessary to carry out duties and responsibilities
involving functional guidance, leadership and supervision.
Agyao further points out that there are no qualified applicants

actually available and willing to assume his position as
Director Manager II at the PEZA. Director Tabaos "qualified
eligibles" in her list are from different agencies of the
government and that none of them has applied for the
position. It is the reason why the position is still vacant.
The rank of Department Manager II falls under the coverage

of CES under the aforementioned CSC issuances as the
same is a third level career position above the division chief
level and performing executive or managerial functions.
Pursuant to the merit-and-fitness rule in the Constitution, the
consistent policy is to the effect that non-presidential
appointees to positions with managerial and executive
functions must possess third level eligibility.
Finally, Agyao contends that the position of Department

Manager II of PEZA is not among those covered by the
Career Executive Service (CES) also known as presidential
appointees. The appointment to the position is made by the
PEZA Director-General. Accordingly, he does not need to
possess the required CESO/CSEE to continue acting as
Department Manager II.
The CSC, on the other hand, argues that Agyaos temporary
appointment on June 16, 2004 was properly invalidated
because he lacked the eligibility to qualify as Department
Manager II. Although he was re-appointed several times to
the position, he still failed to acquire third level eligibility
considering that he failed in the November 2004 CSEE.
Moreover, CSC MC No. 9, Series of 2005, and CSC Office
Memorandum No. 05, Series of 2005, cannot apply in
Agyaos favor because they were issued after the
invalidation of his fifth temporary appointment and did not
provide for a retroactive application.
The CSC also regards Agyaos contention that there are no
qualified applicants who are actually willing to assume the
position of Department Manager II as speculative and
hearsay. Actually, Director Tabao certified and furnished
PEZA a list of qualified eligibles for possible appointment as
Department Manager II.
In sum, the core issue to be resolved in this case is whether

or not the position of Department Manager II of PEZA
requires CESO or CSEE eligibility.
RULING OF THE COURT
The issue is not novel. In Office of the Ombudsman v. Civil
Service Commission cases,4 Home Insurance Guarantee
Corporation v. Civil Service Commission5 and National
Transmission Corporation v. Hamoy,6 the Court has
consistently ruled that the CES covers presidential
appointees only. Corollarily, as the position of Department
Manager II of the PEZA does not require appointment by the
President of the Philippines, it does not fall under the CES.
Section 8, Chapter 2, Book V, Title 1 (Subtitle A) of Executive
Order No. 292, otherwise known as The Revised
Administrative Code of 1987, classifies the positions in the
Civil Service as follows:
Section 8. Classes of positions in the Career Service.( 1)
Classes of positions in the career service appointment to
which requires examinations shall be grouped into three
major levels as follows:
Finally, the CSC argues that although the position of

Department Manager II does not require a presidential
appointment, it is a third level position which requires either a
CESO or CSEE eligibility. The list of third level positions in
the Career Executive Service enumerated in the
Administrative Code of 1987, namely: Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent
rank as may be identified by the Career Executive Service
Board, is not strictly limited. Citing jurisprudence,3 the CSC
avers that the classification of a particular position in the
bureaucracy is determined by the nature of the functions of
(a) The first level shall include clerical, trades, crafts

and custodial service positions which involve nonprofessional or sub-professional work in a nonsupervisory or supervisory capacity requiring less
than four years of collegiate studies;
(b) The second level shall include professional,
technical, and scientific positions which involve
professional, technical or scientific work in a nonsupervisory or supervisory capacity requiring at
least four years of college work up to Division Chief
levels; and
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(c) The third level shall cover positions in the Career
Executive Service.
In the Home Insurance case, the Court ruled that "the
position of Vice-President of HIGC does not belong to the3rd
level of the career service. Respondent Cruz has not
satisfactorily shown that his former position as VicePresident in the HIGC belongs to the third level in the career
service as prescribed by law. His former position as Vice
President is not among those enumerated by law as falling
under the third level, nor has he established that it is one of
those identified by the Career Executive Service Board as of
equivalent rank to those listed by law. Neither is it claimed
that he was appointed by the President."
In the Office of the Ombudsman case, the Court wrote:
The CSCs opinion that the Director II positions in the Central
Administrative Service and the Finance and Management
Service of the Office of the Ombudsman are covered by the
CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section
7 of EO7[7] 292, otherwise known as "The Administrative
Code of 1987," provides:
SECTION 7. Career Service. The Career Service shall be
characterized by (1) entrance based on merit and fitness to
be determined as far as practicable by competitive
examination, or based on highly technical qualifications; (2)
opportunity for advancement to higher career positions; and
(3) security of tenure.
Thus, the CES covers presidential appointees only. As this

Court ruled in Office of the Ombudsman v. CSC [G.R. No.
159940, 16 February 2005, 451 SCRA 570]:
From the above-quoted provision of the Administrative Code,
persons occupying positions in the CES are presidential
appointees. x x x (emphasis supplied)
Under the Constitution, the Ombudsman is the appointing
authority for all officials and employees of the Office of the
Ombudsman, except the Deputy Ombudsmen. Thus, a
person occupying the position of Director II in the Central
Administrative Service or Finance and Management Service
of the Office of the Ombudsman is appointed by the
Ombudsman, not by the President. As such, he is neither
embraced in the CES nor does he need to possess CES
eligibility.
To classify the positions of Director II in the Central
Administrative Service and the Finance and Management
Service of the Office of the Ombudsman as covered by the
CES and require appointees thereto to acquire CES or CSE
eligibility before acquiring security of tenure will lead to
unconstitutional and unlawful consequences. It will result
either in (1) vesting the appointing power for said position in
the President, in violation of the Constitution or (2) including
in the CES a position not held by a presidential appointee,
contrary to the Administrative Code.
The same ruling was cited in the National Transmission
Corporation case, where it was further written:
The Career Service shall include:

(1) Open Career positions for appointment to which
prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the faculty
and academic staff of state colleges and
universities, and scientific and technical positions in
scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director, Chief
of Department Service and other officers of
equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed
by the President;
xxx
xxx
x x x (emphasis supplied)
"Positions in the CES under the Administrative Code include

those of Undersecretary, Assistant Secretary, Bureau
Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent
rank as may be identified by the Career Executive Service
Board, all of whom are appointed by the President. Simply
put, third-level positions in the Civil Service are only
those belonging to the Career Executive Service, or
those appointed by the President of the Philippines. This
was the same ruling handed down by the Court in Office of
the Ombudsman v. Civil Service Commission, wherein the
Court declared that the CES covers presidential appointees
only.
xxx
xxx
xxx
Respondent was appointed Vice-President of VisMin

Operations & Maintenance by Transco President and CEO
Alan Ortiz, and not by the President of the Republic. On this
basis alone, respondent cannot be considered as part of the
CES.
Caringal and Erasmo cited by petitioner are not in point.
There, the Court ruled that appointees to CES positions who
do not possess the required CES eligibility do not enjoy
security of tenure. More importantly, far from holding that
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presidential appointment is not required of a position to be
included in the CES, we learn from Caringal that the
appointment by the President completes the attainment of
the CES rank, thus:
appointing power for non-CES positions in the President, in

violation of the Constitution; or, (2) including in the CES a
position not held by presidential appointee, contrary to the
Administrative Code.
Appointment to CES Rank
xxx
Upon conferment of a CES eligibility and compliance with the

other requirements prescribed by the Board, an incumbent of
a CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President
upon the recommendation of the Board. This process
completes the officials membership in the CES and most
importantly, confers on him security of tenure in the CES.
While the above-cited ruling of the Supreme Court refer to

particular positions in the OMB and HIGC, it is clear,
however, that the intention was to make the doctrine
enunciated therein applicable to similar and comparable
positions in the bureaucracy. To reiterate, the Third Level
covers only the positions in the CES as enumerated in the
Administrative Code of 1987 and those identified by the
CESB as of equivalent rank, all of whom are appointed by
the President of the Philippines. Consequently, the doctrine
enshrined in these Supreme Court decisions has ipso facto
nullified
all
resolutions,
qualification
standards,
pronouncements and/or issuances of the Commission
insofar as the requirement of third level eligibility to non-CES
positions is concerned.
To classify other positions not included in the above

enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring
security of tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the
appointing power for non- CES positions in the President, in
violation of the Constitution; or (2) including in the CES a
position not held by presidential appointee, contrary to the
Administrative Code.
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D.
Buenaflor issued Office Memorandum No. 27, s. 2008, which
states in part:
For years, the Commission has promulgated several policies
and issuances identifying positions in the Career Service
above Division Chief Level performing executive and
managerial functions as belonging to the Third Level covered
by the Career Executive Service (CES) and those outside
the CES, thus, requiring third level eligibility for purposes of
permanent appointment and security of tenure.
However, the issue as to whether a particular position
belongs to the Third Level has been settled by jurisprudence
enshrined in Home Insurance and Guaranty Corporation v.
Civil Service Commission, G.R. No. 95450 dated March 19,
1993 and Office of the Ombudsman (OMB) v. Civil Service
Commission; G.R. No. 162215 dated July 30, 2007, where
the Honorable Supreme Court ruled citing the provision of
Section 7(3) Chapter 2, Title I-A, Book V of Administrative
Code of 1987, that the Third Level shall cover positions in
the Career Executive Service (CES). Positions in the Career
Executive Service consists of Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as
may be identified by the Career Executive Service Board
(CESB), all of whom are appointed by the President. To
classify other positions not included in the above
enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring
security of tenure will lead to unconstitutional and unlawful
consequences. It will result either: in (1) vesting the
In view thereof, OM No. 6, series of 2008 and all other

issuances of the Commission inconsistent with the aforestated law and jurisprudence are likewise deemed repealed,
superseded and abandoned. x x x (Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of
Memorandum Circular (MC) No. 21, it being inconsistent with
the afore-quoted Office Memorandum and thus deemed
repealed by no less than the CSC itself.
All three cases were also cited in the recent case of Civil
Service Commission v. Court of Appeals and Philippine
Charity Sweepstakes Office,8 where a similar ruling was
handed down.
Doubtless, the position of Director Manager II at the PEZA is
not among the enumerated positions in the Career Executive
Service, much less, a position that requires presidential
appointment. Even the CSC admits that the position of
Director Manager II does not require presidential
appointment.
For said reason, Agyao only needs the approval of the PEZA
Director-General to validate his appointment or reappointment. As he need not possess a CESO or CSEE
eligibility, the CSC has no valid and legal basis in invalidating
his appointment or re-appointment as Department Manager
II.
WHEREFORE, the September 26, 2007 Decision of the
Court of Appeals is hereby REVERSED and SET ASIDEand
another one entered holding that the appointment of
Modesto Agyao, Jr. as Department Manager II of PEZA was
valid.
S.Y. 2014-2015

SO ORDERED.
PALMERA v. CIVIL SERVICE

COMMISSION
SUPREME COURT
Manila
EN BANC
G.R. No. 110168 August 4, 1994

RODOLFO R. PALMERA, petitioner,
vs.
THE CIVIL SERVICE COMMISSION AND THE
SECRETARY OF PUBLIC WORKS AND
HIGHWAYS, respondents.
Estelito P. Mendoza for petitioner.
CRUZ, J.:
Petitioner started working in the government in 1953 and has
held various positions in the Ministry of Public Works. On
October 1, 1982, upon the merger of the Ministry of Public
Works and the Ministry of Public Highways, he was
appointed Assistant Regional Director of the National Capital
Region (NCR).
On April 24, 1986, Palmera was directed by then DPWH
Minister Rogaciano M. Mercado to turn over his office to
Pacifico Mendoza (who had been assigned thereat as OIC)
and to report to the MPWH Central Office for his new
assignment.
On June 26, 1987, then DPWH Secretary Vicente R. Jayme
charged Palmera, along with several others, with grave
misconduct and dishonesty in two administrative cases
denominated as Adm. Case Nos. 87-28 and 87-29.
Thereafter, all the respondents were placed under 90-day
preventive suspension, which was lifted on November 16,
1987.
On December 1, 1987, another Memorandum was issued by
then DPWH Secretary J. Nery Ferrer charging Palmera,
together with other respondents, with grave misconduct and
dishonesty. In this Adm. Case No. 87-44, Palmera was again
placed under preventive suspension.
All of the above-mentioned administrative cases were based
on the recommendation of the DPWH Fact-Finding
Committee in an investigation of anomalies in the flood

control and related projects in Metro Manila. Its findings were
embodied in a number of separate complaints and
informations filed with the Office of the Tanodbayan
(Ombudsman) and the Sandiganbayan, for malversation,
estafa, falsification and violations of R. A. No. 3019, and P.
D. 1759.
On May 19, 1988, Palmera's second preventive suspension
was lifted but he was no longer ordered reinstated.
The petitioner alleges that it was while he was still under
preventive suspension that he learned of Pacifico Mendoza's
appointment to his position. Palmera said he was repeatedly
assured he would be appointed to another position but no
such appointment was ever extended him.
Instead, the DPWH Assistant Secretary for Legal Services
recommended that Palmera be hired on a contractual basis
for the period from January 1 to December 31, 1987, to
provide a legal basis for the payment of his salaries. After
December 31, 1987, management would decide whether or
not to renew the contract. The petitioner signed the contract
but it was never renewed.
On November 21, 1991, Palmera filed with respondent Civil
Service Commission a letter-appeal for his reinstatement
with full back wages and without loss of seniority rights. He
also prayed for the nullification of the appointment of
Mendoza as Assistant Regional Director.
The DPWH commented on the letter-appeal thus:
His acceptance of a contractual appointment as Technical
Assistant to the Secretary on January 2, 1987 is an
indication of his relinquishment of his former position as Asst.
Regional Director. After the expiration of the Contract of
Employment (contractual), no other appointment was issued
to Mr. Palmera.
In its Resolution No. 92-944 dated July 23, 1992, the
Commission found the contract of employment issued to
Palmera to be violative of the Civil Service Law and Rules.
Nevertheless, it dismissed the appeal mainly on the ground
of laches. According to the Commission, Palmera failed to
contest the issuance of the contract and his nonreinstatement within a reasonable period, thus rendering the
appeal moot and academic.
On August 28, 1992, Palmera filed a motion for
reconsideration of the resolution. He also submitted the
affidavit of a certain Amado Dungca, who claimed to be an
employee of then Executive Secretary Joker P. Arroyo.
Dungca declared that Secretary Arroyo had on several
occasions assured Palmera that he would make
representations with DPWH officials for his reinstatement or
his appointment to a position of equivalent or higher rank.
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The Commission rejected Dungca's affidavit as mere
hearsay and denied the motion for lack of merit in its
Resolution No. 93-944 dated March 12, 1993.
In this petition to annul the resolution, it is alleged that the
respondent Civil Service Commission committed grave
abuse of discretion:
1. In ruling that petitioner's acceptance of a contractual
appointment was an indication of his relinquishment of his
position as Assistant Regional Director and foreclosed his
right to contest his non-reinstatement;
2. In holding that petitioner is guilty of laches; and
3. In arbitrarily disregarding constitutional right of petitioner
to security of tenure.
It is not disputed that the petitioner has the constitutional
right to security of tenure. P. D. 807 specifically includes the
position of Assistant Regional Director in the Career
Executive Service. The career service is characterized by (1)
entrance based on merit and fitness to be determined as far
as practicable by competitive examination, or based on
highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of
tenure.
Security of tenure means that no officer or employee in the
Civil Service shall be suspended or dismissed except for
cause as provided by law and after due process. Together
with the merit and fitness rule, it is a basic feature of the civil
service system.
The public respondent contends that by accepting the
contract and assuming the temporary position of Technical
Assistant to the Secretary, the petitioner effectively
relinquished his position as Assistant Regional Director and
abided by the terms of the contract, including the limitation of
its duration. When he accepted his temporary appointment,
he abandoned his right to security of tenure conformably to
the rulings of this Court, as inRomualdez v. Civil Service
Commission: 1
(W)hen he accepted this temporary appointment, he was
thereby effectively divested of security of tenure. A temporary
appointment does not give the appointee any definite tenure
of office but makes it dependent upon the pleasure of the
appointing power.
The above-cited case is not on all fours with the present
case. The circumstances surrounding the herein petitioner's
acceptance of the temporary appointment are different from
those in Romualdez. In the latter case, Romualdez applied
for the temporary appointment in exchange for his
permanent position and he acted on his own volition, with full
knowledge of the consequences of his act.
Palmera had no intention to abandon his permanent position

and his security of tenure therein. The petitioner had been
working in the government for about 34 years. It cannot be
reasonably supposed that by signing the contract, he was
knowingly relinquishing his permanent post and all his
concomitant rights, including his accrued leave benefits.
Furthermore, the petitioner was already getting on in years
and could not afford to face an uncertain future without a
regular and steady income.
The memorandum issued by the Legal Officer of the DPWH
explains the rationale for the execution of the contract of
services thus:
I strongly recommend that Mr. Palmera be given a
contractual appointment covering the period from January 1,
1987 to December 31, 1987, to provide legal basis for
payment of salaries for services rendered or during the
period that he has been reporting for duty. After December
31, 1987, management will decide whether or not to renew
his contract. (Annex "D" to the Petition;Rollo, p. 41;
emphasis supplied)
It can be inferred from this statement that Palmera did not
seek to be appointed as Technical Assistant to the Secretary.
He was not informed of the real objective of contract. He was
made to understand that the contract was merely for the
sake of formality, to give some legal basis for his
compensation for 1987.
The public respondents did not categorically deny the
petitioner's allegation that he returned to work immediately
after the lifting of his first preventive suspension. Such
conduct was definitely inconsistent with the imputation that
he intended to surrender his permanent office. In the old but
still valid case of Santiago v. Agustin, 2 this Court said:
A public office may become vacant by abandonment. In
order to constitute abandonment of office, it must be total
and under such circumstances as clearly to indicate an
absolute relinquishment. Temporary absence is not sufficient.
There must be an intention, actual or imputed to abandon
the office. (Emphasis supplied)
The Commission itself has held that the contract of service
entered into by the petitioner and DPWH officials was null
and void for being contrary to law and public policy.
A void or inexistent contract is one which has no force and
effect from the very beginning, as if it had never been
entered into, and which cannot be validated either by time or
by ratification. Hence, the subject contract cannot be used as
basis for the claim that the petitioner abandoned his post as
Assistant Regional Director.
The public respondents further contend that the petitioner is
guilty of laches because he sought to implement the order
dated November 16, 1987, only on November 18, 1991, or
S.Y. 2014-2015

more than 4 years later. Consequently, he is deemed to have
forfeited any remedy to which he may have been entitled
under the law.
The reasonableness of the period within which a claim for
reinstatement may be filed is determined on a case-by-case
basis. There is no absolute rule on what constitutes laches or
staleness of demand, which is to be determined according to
the particular circumstances of each case.
In the instant case, the petitioner's inaction was due to his
reliance on the assurances made to him that he would be
appointed to another position. It is not disputed that he
continued reporting for work in the Office of the Secretary
even after learning that somebody else had been appointed
to replace him. Palmera could not have done so unless he
was assured of his reappointment. Such assurances were
obviously made in recognition of the petitioner's right to
reinstatement upon the lifting of his preventive suspension.
These circumstances justify the application in this case of
the following ruling laid down in Cristobal v. Melchor: 3
Any person who has been permanently appointed to a

position in the career service and who has, through no
delinquency or misconduct, been separated therefrom may
be reinstated to a position in the same level for which he is
qualified.
It follows that the petitioner should be immediately reinstated
to his former position or appointed to another position of
equivalent rank and compensation. However, in view of his
pending cases before the Ombudsman and the
Sandiganbayan, back salaries may not be paid to him at this
time and until he is absolved of all the administrative and
criminal charges against him.
WHEREFORE, judgment is hereby rendered declaring the
petitioner's dismissal from the service to be illegal and
ordering his immediate reinstatement to his former position
or his appointment to another position of equivalent rank,
with payment of back wages only if and when he is
exonerated of the administrative and criminal charges filed
against him. No costs.
SO ORDERED.
The doctrine of laches is an equitable principle applied to

promote but never to defeat justice. Thus, where laches is
invoked against a plaintiff by reason of the latter's failure to
come to court within the statutory period provided in the law,
the doctrine of laches will not be taken against him where the
defendant is shown to have promised from time to time to
grant the relief sought for. Again, We have jurisprudence that
where a defendant or those claiming under him recognized
or directly or impliedly acknowledged existence of the right
asserted by a plaintiff, such recognition may be invoked as a
valid excuse for a plaintiff's delay in seeking to enforce such
right. In brief, it is indeed the better rule that courts, under
the principle of equity, will not be guided or bound strictly by
the statute of limitations or the doctrine of laches when to do
so,manifest wrong and injustice would result. (Emphasis
supplied)
In that case, the petitioner took nine years before filing suit
for his reinstatement, also because of repeated assurances
of his reappointment, which never materialized.
It should also be noted that laches is not concerned merely
with lapse of time, unlike prescription. While the latter deals
with the fact of delay, laches deals with the effect of
unreasonable delay. To constitute laches, it is required that
(1) the complainant must have knowledge of the conduct of
the defendant or of one under whom he claims, and (2) he
must have been afforded an opportunity to institute suit. The
first requirement is lacking in this case. There was no formal
communication to the petitioner that he had already been
dismissed from the service. The contract cannot be
considered a notice of dismissal because it was null and void
and therefore produced no legal effect.
Section 24 (d) of P. D. 807 provides:
ASTRAQUILLO v. MANGLAPUS
SUPREME COURT
Manila
EN BANC
G.R. No. 88183 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
RAUL MANGLAPUS, THE BOARD OF FOREIGN
SERVICE ADMINISTRATION (Manuel T. Yan, Jose D.
Ingles,* Rosalinda V. Tirona Ernesto Garrido, Felipe
Mabilangan, Jorge Coquia, Edgardo Kalaw, Federico
Macaranas, Purificacion Quisumbing, ** Israel Bocobo,
Faustino David, members), and DONATO
FELICIO, respondents.
G.R. No. 88467 October 3, 1990
ALUNAN C. GLANG petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign
Affairs, respondent.
G.R. No. 88672 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs;
Undersecretary of Foreign Affairs and Chairman of the
S.Y. 2014-2015

Board of Foreign Service Administration MANUEL T.
YAN; FELIPE MABILANGAN, Coordinator of the BFSA;
ROSALINDA V. TIRONA, Director General of the Office of
Personnel Administration; ERNESTO GARRIDO, Director
General of Financial Management Services; JORGE
COQUIA, Legal Adviser; all members of BFSA; and
CATALINO MACARAIG, JR., Executive
Secretary, respondents.
G.R. No. 88781 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
FORTUNATO D. OBLENA, respondent.
G.R. No. 88916 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
JUAN SAEZ, respondent.
NARVASA, J.:
As the caption indicates, this decision deals with five cases.
The cases have been consolidated and jointly considered
because they all turn upon a common legal issue, i.e., the
validity of the termination, by authority of the President of the
Philippines, of the petitioners' appointments as "political" or
"non-career" members of the country's Foreign Service.
Stated otherwise, the common issue is whether or not their
service as Philippine diplomats was under the
circumstances, at the pleasure of the president, terminable
without cause or need of investigation.
G.R. Nos. 88183 and 88781: Isabelo Astraquillo
Astraquillo was appointed by the President of the Philippines
on July 22,1986 as Ambassador Extraordinary and
Plenipotentiary and Chief of Mission (II) to the United Arab
Emirates (UAE). 1 After he had occupied the post for two
years or so, a confidential memorandum was filed with the
Home Office by Atty. Roy Seneres, the Philippine Labor
Attache to the United Arab Emirates, accusing Astraquillo,
his wife and cousin-in-law of improper interference with his
(Seneres') functions. 2 On instructions of the Board of
Foreign Service Administration (BFSA) the matter was
investigated by Ambassador Pacifico Castro from March 28,
to 31, 1989. 3 Thereafter, by Memorandum dated April 11,
1989, the Secretary of Foreign Affairs recommended to the
President the termination of Astraquillo's services as
ambassador. The recommendation was "APPROVED by
authority of the President." 4 Astraquillo was then notified (on
April 18, 1989) of the termination of his services effective
immediately, 5 and (on May 8,1989) of the designation of
Counsellor Donato Felicio as Charges D'Affaires effective

May 17, 1989. 6
Astraquillo sought and obtained from the Secretary of
Foreign Affairs an extension of his services up to May 31,
1989. 7 But on the same day that the telex message
extending his services was transmitted, May 12, 1989,
Astraquillo filed the petition for certiorari at bar, challenging
his removal from his post and the designation of Felicio as
Charges D'Affaires. This was docketed as G.R. No. 88183.
After Ambassador Fortunato D. Oblena was appointed to
replace him as the country's Ambassador Extraordinary and
Plenipotentiary to the UAE, Astraquillo filed with this Court a
petition for quo warranto contesting the appointment. This
second case was docketed as G.R. No. 88781.
His basic thesis is that the Foreign Affairs Secretary had no
power qua department head, and without prior authorization
of the President, to terminate his services, he being a
presidential appointee; and under the Foreign Service Code
of 1983, his removal could be predicated only upon good
cause duly established at a hearing of which he was entitled
to notice and an opportunity to defend. Corollarily,
designation of a replacement for him, either in a temporary
or permanent capacity, was also nun and void.
G.R. No. 88467: Alunan C. Glang
Alunan Glang was appointed by President Aquino on
September 11, 1986 as Ambassador Extraordinary and
Plenipotentiary and Chief of Mission (Class I) to
Kuwait, 8 and assumed his post on January 11, 1987. 9
Two years afterwards, or on May 27, 1989, he received a
telex message from the Secretary of Foreign Affairs
informing him that his services as ambassador and chief of
mission to Kuwait had been terminated and directing him to
vacate his post "on or before June 30, 1989." 10 The
message further advised that the termination of his services
was "explicit in a Memorandum dated 18 May 1989" a copy
of which would be furnished him by telefax. The
memorandum referred to was one signed by Secretary Raul
Manglapus recommending the "recall and subsequent
termination of the services of Ambassador Alunan C. Glang
as Ambassador to the State of Kuwait . . . which was
approved by Executive Secretary Catalino Macaraig, Jr. "BY
AUTHORITY OF THE PRESIDENT." 11
On May 30, 1989 Glang sent communications separately
addressed to the Office of the President and the Secretary of
Foreign Affairs stating that he considered his separation from
the service as "illegal and violative of RA No. 704, known as
the Foreign Service Act of 1952," as amended, he being
entitled to security of tenure and removable only for cause
and not at the pleasure of the President. 12 The Foreign
Secretary's reply (sent by telex on June 2, 1989) was prompt
and simple: the notice of termination of Glang's services
"dated 26 May 1989, stands;" he should "accept the
S.Y. 2014-2015

President's decision" and seek redress "only through the
proper courts of law" if he felt he had been "unlawfully
treated." 13
Glang thereupon filed the petition for certiorari and
prohibition at bar. For relief, he relies upon substantially the
same arguments as those advanced by Astraquillo, supra. 14
G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr.
Alejandro Melchor, Jr. was also appointed by President
Aquino Ambassador Extraordinary and Plenipotentiary on
June 27, 1986. 15 On July 3, 1986, Vice-President Salvador
H. Laurel, then Foreign Affairs Minister, assigned him to
Moscow, U.S.S.R. 16 This post Melchor assumed on
September 4, 1986, 17 after which he received another
appointment from the President on October 15, 1986 as
Chief of Mission, Class, 1. 18
On July 25, 1988, seven (7) officers and employees of the
Philippine Embassy in Moscow 19 filed a complaint with the
Department of Foreign Affairs against Melchor and two
others 20 for "acts inimical to the Foreign Service, in violation
of the Foreign Service Code (and) blatant disregard of COA
rules and regulations and the Civil Service Code." 21 The
complaint was investigated by Ambassador Ernesto Garrido,
Director General for Financial Management Services of the
Foreign Affairs Department, by direction of the
Secretary. 22 Garrido's report to the Board of Foreign Service
Administration (BSFA) of the Foreign Affairs Department
dealt with ten of the fourteen (14) charges but failed to
resolve four (4) others. 23 Said Board, after deliberating on
the report, directed the filing of a charge sheet against
Melchor relative to the four (4) unresolved accusations as to
which the latter had filed no written answer; 24 and
accordingly, the Director General for Personnel and
Administrative Services formally charged Melchor, under
date of January 2,1989, with the following offenses, to wit: 25
1) establishment of a private restaurant on the third floor of
the Philippine Embassy Building without prior notice and
approval of the Home Office;
2) issuance of visas to persons not qualified to travel to the
Philippines;
3) appointment and accreditation of Hernani Jover and
Donato de Guzman as Counsellors contrary to existing laws;
and
4) leaving his post without permission from the Home Office
from October to December 1987 and January 22-26, 1988.
By letter dated January 10, 1989, Melchor told the Foreign
Affairs Secretary there was "no basis for me to reply under
oath" (to the charges as required) as "said complaint has not
been subscribed and sworn to according to the provisions of
P.D. 807," drawing attention, however, to his reply "to the

complaint on 22 September 1988 Dispatch No. AM-193-88,
Subject: Comments to complaint." 26 He also wrote to
President Aquino on the same date regarding the
"unfounded charges" against him and requesting that the
matter be resolved before his return to his post. 27 He wrote
another letter to President Aquino, dated January 19, 1989,
this time under oath, inter alia submitting his answers to the
four unresolved charges against him since, according to him,
"it is only the President that can decide my case." 28Melchor's
letter was referred to the Secretary 29 who, acting thereon,
issued Memorandum No. 4230 declaring his approval of the
BFSA recommendation that Melchor: (a) be allowed to
forthwith return to his Moscow post to prepare for the
President's state visit, (b) be thereafter transferred to another
post, and (c) be reprimanded on account of the four charges
against him. 30
The affair was, however, far from ended. On February 10,
1989, Melchor advised the Secretary in writing that he would
indeed return to Moscow but protested the reprimand
administered to him and his announced transfer to another
post after the state visit, claiming that as a "presidential
appointee," he was beyond the disciplinary authority of the
BFSA and that, furthermore, he had been denied due
process. 31 On the same day he directed an "APPEAL" to the
President praying that she "nullify, after review by an
impartial body . . . the illegal action of Sec. Manglapus and
the Board and return . . . (him to his) post in Moscow without
the stigma of a reprimand . . . ." 32
It appears that the BFSA re-examined the evidence against
Melchor and came to the conclusion that all charges against
him should be dropped as there was "no basis" therefor and
consequently, his appeal had been rendered moot and
academic. 33 This was communicated to the Foreign Affairs
Secretary on June 9, 1989 and thence to the Office of the
President, with the observation that Melchor's appeal had
indeed become moot and academic. On the basis thereof,
Executive
Secretary
Macaraig
"terminated"
the
administrative case against Melchor, by Order dated June 9,
1989. 34
It appears, however, that about a week earlier, or on May 29,
1989, the Secretary of Foreign Affairs had submitted a
Memorandum to the President recommending the
termination of the services of Melchor described as "a
political (non-career) Ambassador" as Chief of Mission
and as Ambassador" to the U.S.S.R, and that he "should
vacate his post by 30 June 1989." 35 This was "APPROVED
by authority of the President" on June 13, 1989 by Executive
Secretary Macaraig. 36
On June 28, 1989 Melchor presented the petition at bar,
grounded mainly on the proposition that the termination of
his services by Foreign Affairs Secretary Manglapus after he
had been absolved of the charges against him, was
unwarranted and illegal, and that the authority to so
S.Y. 2014-2015

terminate his services was "vested exclusively on the
President herself . . . ."
technical positions in scientific or research institutions which

shall establish and maintain their own merit systems;
Subsequently, Melchor filed a second petition, docketed as

G.R. No. 88916, seeking invalidation of the re-assignment or
transfer of Ambassador Juan V. Saez from Amman, Jordan
to the Philippine Embassy at Moscow. 37
(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;
Against this factual background, the petitioners submit the

following common contentions: 38
1) that the removals from the service were not made by the
President personally and directly;
2) that the removals did not state a cause explicitly
prescribed by the Foreign Service Act or the Civil Service
Law;
3) that the removals were affected without due process;
4) the petitioners were appointed right after the so-called
"EDSA Revolution," and when Vice-President Laurel was
Minister of Foreign Affairs; and
5) all were appointed Chief of Mission Class I (except
Astraquillo, who was named Class II Chief) and came into
Foreign Service "through lateral entry."
The Civil Service Law, Presidential Decree No. 807,
classifies employment in Government into "career" and "noncareer service." It identifies the peculiar characteristics of
each category, and enumerates the positions falling under
each class.
Thus, Section 5 of said PD No. 807 states that the "career
service" is characterized by:
(1) entrance based on merit and fitness, to be determined as
far as practicable by competitive examinations, or based on
highly technical qualifications;
(2) opportunity for advancement to higher career positions;
and
(3) security of tenure.
Section 5 then enumerates the particular positions falling
under the Career Service, including, as will be noted, those
in the Foreign Service. They are the following: 39
(1) Open Career positions for appointment to which prior
qualifications in an appropriate examination is required;
(2) Closed Career positions which are scientific or highly
technical in nature; these includes the faculty and academic
staff of state colleges and universities and scientific and
(4) Career officers, other than those in the Career Executive

Service, who are appointed by the President, such as
the Foreign Service Officers in the Ministry of Foreign
Affairs;
(5) Commissioned officers and enlisted men of the Armed
Forces which shall maintain a separate merit system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental or
proprietary functions, who do not fall under the non-career
service; and
(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or
unskilled.
(8) The "Non-Career Service," on the other hand, according
to Section 6 of the same PD 807, shall be characterized
by: 40
(1) entrance on bases other than those of the usual test of
merit and fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority
or subject to his pleasures, or which is limited to the duration
of a particular project for which purposes employment was
made.
And the officials and employees listed under the Non-Career
Service include:
(1) Elective officials and their personal or confidential staff;
(2) Department Heads and other officials of Cabinet rank
who hold positions at the pleasure of the President and their
personal or confidential staff(s);
(3) Chairman and members of commissions and boards with
fixed terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the
government is in accordance with a special contract to
undertake a specific work or job, requiring special or
technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall
S.Y. 2014-2015

exceed one year, and performs or accomplishes the specific
work or job, under his own responsibility with a minimum of
directions and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.
By these statutory standards, it seems plain that all three (3)
petitioners: Isabelo J. Astraquillo, Alunan C. Glang, and
Alejandro Melchor, Jr., pertained to the Non-Career Service.
Their appointments to the Foreign Service were made on
"bases other than those of the usual test of merit and fitness
utilized for the career service;" their entrance was not 'based
on merit and fitness . . . determined . . . by competitive
examinations, or based on highly technical qualifications."
This being so, their "tenure . . . (was) coterminous with that
of the appointing authority orsubject to his pleasures, . . . ."
It is worthy of note that among the officers categorized in the
Career Service by the Civil Service Law, PD No. 807, are
"Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the
Foreign Service Officers in the Ministry of Foreign Affairs."
Implicit in this reference to "career officers" in the Ministry
(now Department) of Foreign Affairs is the acknowledgement
of non-career officers in that ministry (department).
The same distinction between career and non-career officers
may be derived by implication from the provisions of the
Foreign Service Act of 1952, R.A. No. 708, as amended.
Part B, Title III of said Foreign Service Act deals with the
"Career Service Corps . . . composed of Foreign Service
Officers appointed by the President upon the
recommendation of the Secretary," and declares that "(n)o
person shall be eligible for appointment (in such corps)
unless he has passed such competitive examinations as the
Board of Foreign Service examination may prescribe to
determine his fitness and aptitude for the work of the service
and has demonstrated his loyalty to the Government of the
Republic of the Philippines and his attachment to the
principles of the Constitution." 41 Those who thus qualify are
"certified by the Secretary of Foreign Affairs as eligible for
appointment as Foreign Service Officer(s)," and it is
exclusively from these officers so certified that the President
"shall appoint Foreign Service Officers . . . ." 42
Now, there are those, like the petitioners, who are appointed
to the Foreign Service, without having qualified in the
manner just indicated and consequently without having been
certified by the Foreign Affairs Secretary as eligible for
appointment as Foreign Service Officers. 43 In view of the
provisions of law just cited, they certainly do not and cannot
be deemed embraced in the Career Service Corps. They can
only be regarded then as "non-career officers" or "political
appointees" who, as already pointed out, have a "tenure . . .
coterminous with that of the appointing authority orsubject to
his pleasures, . . . ."
Melchor discusses at length what he feels to be the

distinction between an ambassador and a chief of mission,
and argues that whatever might be said about his serving at
the pleasure of the President as ambassador, his
appointment as chief of mission had undoubtedly given him
security of tenure as regards this latter position. He opines
that the term, "chief of mission," has two meanings in the
Foreign Service Act.
He states that Section 3(i), Title I of the Act defines the term
as "a principal officer appointed by the President of the
Philippines, with the consent of the Commission on
Appointments, to be in charge of the embassy and legation
and other diplomatic mission of the Philippines or any other
person assigned under the terms of this act to be minister
resident, charge d'affaires, commissioner or diplomatic
agent." 44 On the other hand, he says that in other parts of
the law ("Title II, Part B, Section I, Part C, Section 1 , and
Title I, Part B, Section 1") "the use of the term Chief of
Mission is in a different context for it refers to the rank and
class of the Foreign Service Officer in the enumeration of
categories of officers and employees of the foreign service
as well as the salary scale. 45
The discussion fails to demonstrate that, with regard to the
petitioners, a chief of mission is indeed significantly different
from an ambassador. Petitioners Astraquillo, Glang and
Melchor were appointed as ambassadors, respectively, in the
United Arab Emirates (UAE), Kuwait, and Moscow. Their
appointments as chief of missions in their respective posts
simply meant that, as ambassadors extraordinary and
plenipotentiary they were being placed in charge of the
embassy or legation therein. Indeed, it seems evident that
even without being named chief of mission, the fact that they
were the highest ranking official in their respective
embassies would operate to place them in charge thereof as
a matter of course.
Obviously, however, this aspect of their appointments has no
effect on the essential character of their positions as
pertaining to the non-career service. Consequently the
termination of their connection with the Foreign Service was
not dependent on proof of some legally recognized cause
therefor, after due notice and hearing as in the case of
career officers and employees but lay entirely within the
will of the President, in the exercise of her discretion, and her
determination of the wisdom, necessity or convenience of
such a step in the national interest, actually a political
decision. In making this determination, the President may
take account of the recommendation of the Secretary of
Foreign Affairs who, as the President's alter ego, heads and
controls the Department of Foreign Affairs and supervises
and directs all officials and employees assigned abroad. 46
The petitioners' other argument that their separation from the
service is illegal because not effected by the President of the
Philippines who alone has the power to do so, is specious.
The fact is that it was in truth the President who ordered their
S.Y. 2014-2015

removal. The record shows that the President approved the
recommendation of the Secretary of Foreign Affairs for the
termination of their services. This is shown by the pertinent
documents in which the Executive Secretary officially
certified that the recommendation for their separation from
the service had been "APPROVED by Authority of the
President."
Finally, since none of the petitioners has shown any right to
be returned to the office from which they had been separated
by authority of the President, none of them is entitled to the
writ of quo warranto to oust the officials who have since
replaced them in their respective posts.
WHEREFORE, the petitions in the cases embraced in this
opinion, i.e., G.R. Nos. 88183, 88781, 88467, 88672,
888916, are all DENIED, with costs against petitioners.
PAGCOR v. SALAS
FIRST DIVISION
[G.R. No. 138756. August 1, 2002]
PHILIPPINE
AMUSEMENT
CORPORATION, petitioner,
SALAS, respondent.
AND
GAMING
vs. RAFAEL
M.
DECISION
AUSTRIA-MARTINEZ, J.:
In Civil Service Commission and PAGCOR vs. Rafael
M. Salas,[1] we affirmed the decision dated September 14,
1995, issued by the Court of Appeals in CA-G.R. SP No.
38319,[2] which ruled that herein respondent Rafael M. Salas,
not being a confidential employee, cannot be dismissed on
ground of loss of confidence. Consequently, petitioner
Philippine Amusement and Gaming Corporation (PAGCOR)
was ordered to reinstate respondent with full back
wages, but without prejudice to the filing of administrative
charges against him if warranted.[3]
Now before the Court is a petition for review filed by the
Office of the Solicitor General, in behalf of petitioner
PAGCOR, seeking to annul the following:
(1) Resolution dated November 9, 1998, upholding
respondents entitlement to back wages regardless of the
outcome of the administrative case against him;[4]
(2) Resolution dated February 16, 1999, denying petitioners
Motion for Reconsideration dated December 1, 1998;[5] and
(3) Resolution dated May 13, 1999, denying petitioners
Motion for Reconsideration dated February 26, 1999.[6]
all issued by the Court of Appeals in the said CA-G.R. SP

No. 38319.
The facts are as follows:
Respondent Rafael M. Salas was employed as
petitioners Internal Security Staff (ISS) member and
assigned to the casino at the Manila Pavilion Hotel. On
December 3, 1991, petitioners Board of Directors terminated
respondent from employment for loss of confidence because
he engaged in proxy betting. He appealed to the Chairman
and the Board of Directors, requesting reinvestigation of the
case, but was denied. Respondent appealed to the Merit
and System Protection Board (MPSB), but it was denied on
the ground that being a confidential employee, he was not
dismissed from service but his term of office merely
expired. On appeal to the Civil Service Commission (CSC),
the MPSBs decision was affirmed per Resolution No. 921283.
Respondent filed with this Court a petition
for certiorari, docketed as G. R. No. 107586, which we
referred to the Court of Appeals.[7] The appellate court set
aside the CSC resolution in its decision, dated September
14, 1995, ruling that petitioner could be removed only for
cause and after due process. The dispositive portion of said
decision reads:
WHEREFORE, the petition for certiorari is GRANTED. The
assailed Resolution No. 92-1283 of the respondent Civil
Service Commission is REVERSED and SET ASIDE, and a
new one enteredDIRECTING the respondent PAGCOR to
reinstate the petitioner to his position in the Internal Security
Staff with full payment of back wages for the period he was
separated from the service until his reinstatement, without
prejudice to the filing of administrative charges against
him if warranted.
SO ORDERED.[8] (italics supplied)
On petition for review (docketed as G.R. No. 123708)
with this Court, we affirmed the decision of the appellate
court per our Decision dated June 19, 1997 which became
final and executory on August 25, 1997.[9] Respondent filed a
motion for execution with the CSC requesting his
reinstatement with full back wages.
Pending resolution of his motion by the CSC, PAGCOR
effected respondents reinstatement on November 3, 1997[10],
but imposed on him a 90-day preventive suspension pending
investigation of the administrative complaint, docketed as
Admin. Case No. 1-1-98, for grave misconduct, dishonesty,
violation of company rules and regulations, and conduct
grossly prejudicial to the best interests of the service,
PAGCOR filed against him.
In the meantime, the CSC ruled that the proper
authority to issue the writ of execution is this
S.Y. 2014-2015

Court. Accordingly, respondent filed a Motion for
Clarification with us, praying that a resolution be issued
clarifying whether or not he is entitled to payment of full back
wages from the time of his separation up to his reinstatement
on November 3, 1997.[11]
A Resolution was then issued by this Court ordering the
remand of the records of the case to the CSC, through the
Court of Appeals, for it to conduct such hearing as may be
necessary for the issuance of the writ. Respondent then
filed another motion for execution with the CSC. However,
before his motion can be resolved, petitioner rendered a
resolution in Admin. Case No. 1-1-98 ordering respondents
dismissal from service. The dispositive portion of said
Resolution reads:
In view of all the foregoing, the Adjudication Committee is
recommending, as it hereby recommends, to the Board of
Directors of PAGCOR, that the dismissal of respondent
RAFAEL SALAS from the service be confirmed, said
dismissal to retroact to the date of the commission of
the offense. By virtue of respondents serious misdeeds as
established in this case, the respondent is no longer entitled
to backwages from June 1991 to February 1998. This is in
consonance with the following well-established legal
principles; one, that no equitable or legal basis exists for the
payment
of
backwages
as
the
respondent
was not exonerated of the charges against him, and two, that
he did not render any work for the period
stipulated. (emphasis ours)
"Respectfully submitted."[12] (emphasis ours)
The recommendation was approved by the Board of
Directors in its meeting held on February 17, 1998.
[13]
Respondents motion for reconsideration was denied. He
appealed to the CSC on March 25, 1998. On even date,
respondent received a copy of the CSCs resolution of his
motion for execution, which reads in part:
x x x The Commission believes that Administrative Case No.
1-1-98 filed by PAGCOR against Salas is not an obstacle to
the implementation of the decision of the Court of Appeals,
as affirmed by the Supreme Court, unless said case has
already been decided by PAGCOR and the decision is not in
Salas favor.[14]
On October 1, 1998, the CSC dismissed respondents
appeal, hence, the latter filed a petition for review with the
Court of Appeals, docketed as CA-G.R. SP No. 49704, which
was denied for being insufficient in form and substance. The
appellate court likewise denied PAGCORs motion for
reconsideration.
Meanwhile, the Court of Appeals in CA-G.R. SP No.
38319, resolving our referral of respondents motion for
clarification, issued the first assailed Resolution dated
November 9, 1998, portions of which read:
The Civil Service Law and Rules provide that no officer or

employee in the Civil Service shall be removed or
suspended except for cause as provided by law and after
due process. (Pls. see Sec. 36, P.D. 807 and Sec. 1, Rule
XIV of the Omnibus Rules Implementing the Civil Service
Law.)
The filing of an administrative case against the
petitioner is the requisite due process which must
precede his removal if warranted. The phrase after due
process is an indication that any removal or dismissal
may
be
made
only
prospectively
and
not
retrospectively. Hence, if sufficient cause is found
against the petitioner for his dismissal or removal from
the service, the same cannot retroact to a date before
the filing of an administrative case against him.
In view thereof, we believe and so hold that the petitioner is
entitled to backwages before the effectivity of his dismissal -even granting that the same might be upheld with finality.
Let the parties be guided accordingly.
SO ORDERED.[15] (emphasis ours)
Petitioner filed a motion for reconsideration but it was
denied by the appellate court per the second assailed
Resolution dated February 16, 1999 for having been filed out
of time.[16]
Petitioner then filed a motion for reconsideration of the
Resolution dated February 16, 1999, explaining that the
tardiness in the filing of the previous motion was due to
some confusion. The motion was denied by the appellate
court per the third assailed Resolution dated May 13, 1999.
[17]
Hence, herein petition for review on certiorari under

Rule 45 of the Rules of Court, anchored on the following
grounds:
I
THE COURT OF APPEALS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW AND
APPLICABLE DECISIONS OF THIS HONORABLE COURT;
II
THE COURT OF APPEALS DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS AS TO CALL FOR AN EXERCISE OF THIS
HONORABLE COURTS POWER OF SUPERVISION,
BECAUSE:
A.
THE COURT OF APPEALS ERRED

IN HOLDING THAT RESPONDENT RAFAEL
S.Y. 2014-2015

SALAS IS ENTITLED TO THE PAYMENT OF
BACKWAGES BEFORE THE EFFECTIVITY
OF HIS DISMISSAL REGARDLESS OF THE
FINAL OUTCOME OF THE ADMINISTRATIVE
CASE AGAINST HIM.
B.
THE COURT OF APPEALS ERRED

IN DISMISSING PETITIONER PAGCORS
MOTION FOR RECONSIDERATION WHICH
RAISES
VALID
AND
MERITORIOUS
GROUNDS DUE TO TECHNICALITY OF
DELAY THAT AROSE OUT OF GOOD FAITH
AND HONEST MISTAKE.[18]
Petitioner insists that the appellate courts decision

ordering respondents reinstatement with backwages but
without prejudice to the filing of administrative charges
against him if warranted, connotes that respondent is not
entitled anymore to his backwages because he was
subsequently found to be guilty of the administrative charges
against him[19]; that the appellate courts resolution holding
that respondent should be given his backwages regardless
of the outcome of the administrative case against him
contravenes the principle that backwages are allowed if an
employee is found innocent of the charges[20]; and that the
appellate court should not have applied technical rules of
procedure in dismissing its motion for reconsideration as the
delay in the filing was due to an honest mistake.[21]
The petition is bereft of merit.
It is already a settled rule that back wages may be
granted to those who have been illegally dismissed and
consequently ordered reinstated, or to those acquitted of the
charge against them.[22]
As earlier stated, respondent was found to have been
illegally
dismissed
by
petitioner
inCivil
Service
Commission and PAGCOR vs. Rafael M. Salas,[23] wherein
we ruled that respondent, not being a confidential employee
of petitioner, can only be removed for cause and after due
process. Hence, for all legal intents and purposes, the first
dismissal effected by petitioner had no legal force and effect,
and respondents tenure of office was never interrupted.
[24]
As held in Del Castillo vs. Civil Service Commission:
Respondents subsequent finding of guilt in Admin.

Case No. 1-1-98 bears no consequence as said case is
distinct and separate from the first charge. It must be noted
that the first charge was founded on proxy betting, an
entirely different ground as those involved in Admin. Case
No. 1-1-98,[26] although both cases were based on the same
set of facts. Also, unlike in the cases cited by petitioner, the
proceedings in Admin. Case No. 1-1-98 is not a continuation
or a part of the proceedings in the first charge. In fact, after
respondent was held to have been illegally dismissed
in Civil Service Commission and PAGCOR vs. Rafael M.
Salas, it was as if he was not dismissed from service at all,
and Admin. Case No. 1-1-98 is deemed to be his first
charge. Prior thereto, he is considered to have been in
petitioners continuous service, and entitled to all the rights
and privileges his position enjoys. This is but the natural
consequence of the Courts finding of illegal dismissal.
The Court agrees with the appellate court that the
subsequent dismissal cannot retroact to a date prior to the
filing of an administrative case against respondent. As aptly
stated by the appellate court:
The filing of an administrative case against the petitioner is
the requisite due process which must precede his removal if
warranted. The phrase after due process is an indication
that any removal or dismissal may be made only
prospectively and not retrospectively. Hence, if sufficient
cause is found against the petitioner for his dismissal or
removal from the service, the same cannot retroact to a date
before the filing of an administrative case against him.[27]
Having been illegally dismissed, respondent, therefore,
is entitled to back wages from the time he was illegally
dismissed from service on December 3, 1991 until his
reinstatement on November 3, 1997, but not to exceed five
years pursuant to the pronouncement of this Court in a long
line of cases.[28]
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED for lack of merit and the
Resolutions dated November 9, 1998, February 16, 1999
and May 13, 1999 issued in CA-G.R. SP No. 38319 are
AFFIRMED.
No costs.
When an official or employee was illegally dismissed and his

reinstatement has later been ordered, for all legal purposes
he is considered as not having left his office. Therefore, he
is entitled to all the rights and privileges that accrue to him by
virtue of the office he held. (Taada v. Legaspi, 13 SCRA 566
[1965]).
SO ORDERED.
Back salaries may be ordered paid to said officer or

employee (City Mayor of Zamboanga v. Court of Appeals,
182 SCRA 785 [1990]). [25]
S.Y. 2014-2015

JOCOM v. ROBREDO
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77373 August 22, 1991
EDMUNDO C. JOCOM, petitioner,
vs.
THE HON. ANDRES C. REGALADO, Presiding Judge of
the Regional Court, 5th Judicial Region, Branch XXV,
Naga City and JESSIE M. ROBREDO, respondents.
Romero, Lagman, Torres, Arrieta & Evangelista for
petitioner.
Luis General, Jr. for private respondent.
PADILLA, J.:p
This is a petition for certiorari, prohibition and mandamus,
with prayer for the issuance of a writ of preliminary injunction
and/or temporary restraining order, to annul the temporary
restraining order issued by the Regional Trial Court of Naga
City, Branch XXV contained in its orders dated 3 and 9
February 1987 1 and its orders dated 11 and 18 February
1987 denying petitioner's motion for raffle of the case and
motion to dismiss, respectively. 2 Petitioner also seeks to
enjoin the respondent judge from further enforcing the
disputed orders and from proceeding with the hearing of the
case before the court a quo, and to compel private
respondent Jessie M. Robredo to vacate the Office of Project
Director of the Bicol River Basin Development Program
(hereinafter referred to as BRBDP, for brevity), and to order
him (Robredo) to turn over the said office to herein petitioner
Eduardo C. Jocom. The factual background of the case is as
follows:
On 7 May 1973, the Bicol River Basin Council was created
under PD 412, to oversee, unify and integrate the
administration and implementation of the pilot river basin
development program of the country. The Council was
headed by an Executive Director and four (4) Deputy
Directors.
On 28 April 1978, PD 926 modified the organizational

structure of BRBDP by placing it under the supervision and
direction of the Cabinet Coordinating Committee on
Integrated Rural Development Projects of the National
Economic and Development Authority (NEDA). Under Sec. 5
of said law, the Cabinet Committee Coordinator for the
Program had the power to appoint the "Program Director" as
head of the program office and other heads of major
organizational subdivisions of the program. The "Program
Director" had the following powers and functions:
See. 6. Powers and Functions of the Program Director.
The Program Director shall exercise the following powers
and functions:
a. Execute and administer the policies and decisions of the
Cabinet
Committee;
b. Directly coordinate the activities of all implementing
departments and agencies in the planning and
implementation
of
the
projects;
c. Subject periodic financial and work accomplishment
reports relating to project implementation to the Cabinet
Committee, the Budget Commission and other Agencies
concerned through the Cabinet Committee Coordinator;
d. Consolidate, for the approval of the Cabinet Committee
Coordinator, requests for budget releases of projects of the
implementing departments and agencies in accordance with
consolidated plans, budgets and work programs approved by
the
Cabinet
Committee;
e. Collect and consolidate all project accounts under the
Program maintained by the implementing departments and
agencies;
f. Organize and manage the Program Office and adopt
administrative rules and procedures for its internal
management.
g. Call upon any department, bureau, office, agency,
instrumentality or any political subdivision of the Government
to assist in the Planning and implementation of the Program;
h. Enter into contracts with private or public entities in
connection with the functions of the Program Office, subject
to the approval of the Cabinet Committee Coordinator; and
i. Perform such other functions as may be assigned by the
Cabinet Committee Coordinator. 3
On 17 May 1978, PD 1378 created the National Council on
Integrated Area Development (NACLAD) in lieu of the
Cabinet Coordinating Committee on Integrated Rural
Development Projects, with the President of the Philippines
as Chairman. Despite the abolition of the Cabinet
Coordinating Committee, the "Project Directors" of the
various on-going projects, such as the Mindoro, Bicol, Samar
and Cagayan Projects, retained their respective powers,
functions, tenures and compensation.
On 11 June 1978, PD 1553 amended certain provisions of
PD 926 modifying the organizational structure of BRBDP.
S.Y. 2014-2015

On 4 July 1981, Executive Order No. 708 transferred the
Chairmanship of the National Council on Integrated Area
Development (NACIAD) to the Prime Minister.
On 16 September 1981, Executive Order No. 835 revised
the charter of NACIAD, Sec. 7 thereof authorized the Council
to establish ad hoc support staffs as may be necessary for
particular integrated area development projects, which shall
exist for the duration of said projects. Each project support
staff shall be headed by a "Project Director." The Prime
Minister as Chairman of the Council was vested with power
to appoint the "Project Directors" of the various integrated
area development projects.
After the February 1986 revolution, Vice-President Salvador
H. Laurel was appointed by the President to be the Minister
and he ipso facto became the Chairman of the National
Council on Integrated Area Development (NACIAD), with the
power to appoint the Project Directors of the various
integrated area development projects in the country 4 which
include the Bicol River Basin Development Program
(BRBDP) 5
In the exercise of his powers as Chairman of NACIAD before
the proclamation of the Freedom Constitution, on 25 March
1986, Vice-President Laurel appointed private respondent
Jessie M. Robredo to the position of "Program Director" of
BRBDP vice Carmelo Villacorta. 6
In the late afternoon of that same day (25 March 1986),
President Aquino issued Proc. No. 3 (Freedom Constitution),
Article 1 of which declared that Art. XI of the 1973
Constitution and the amendments thereto dealing with the
Prime Minister and the Cabinet were deemed superseded.
However, on 27 January 1987, Vice-President Laurel
appointed petitioner Jocom to the position of "Project
Director" of BRBDP. 7 Simultaneous with petitioner Jocom's
appointment, private respondent Robredo was informed of
his termination from office without stating the ground for his
dismissal. 8
Armed with his appointment, petitioner attempted to assume
the Office of "Project Director" of BRBDP but private
respondent, allegedly with some armed men, prevented
petitioner from assuming said office by barricading the
building of BRBDP, located at Pili, Camarines Sur.
To compel petitioner Jocom to desist from attempting to
assume the Office of Project Director of BRBDP, private
respondent Robredo filed a petition for injunction with the
RTC of Naga City, Branch XXV, docketed as RTC-87-1131
On 3 February 1987, the trial court issued an order
"enjoining respondent Edmundo C. Jocom, for a period of
twenty (20) days from the date hereof, to desist from
assuming the above-named office such as exercising the
powers and performing the functions thereof," and set the
hearing for issuance of preliminary injunction. 9
Based on the amended petition filed by private respondent

Robredo, alleging that the finds of BRBDP deposited with the
Philippine National Bank were frozen by the bank, which
could result in paralyzing the operations of BRBDP, and in
order to give force and effect to the 3 February 1987 order
granting the temporary restraining order, the trial court
issued another order dated 9 February 1987, 10 ordering
Messrs. Vicente B. de la Vina and Ramon Encina, in their
capacities as Branch Manager and Cashier of PNB,
respectively, "to honor all the checks of the BRBDP under
petitioner, Jessie M. Robredo, as Project Director and until
further orders."
On 3 February 1987, petitioner Jocom moved for the raffle of
the case, claiming that there was no raffle committee which
conducted a special raffle of the case. In an order dated 11
February 1987, the court a quo denied said motion on the
ground that the same should have been addressed to the
Executive Judge who presided over such special raffle; and
that insofar as the court a quo was concerned, the legal
presumption of regularity of performance of duty in
conducting the raffle holds. 11
Petitioner then moved to dismiss the private respondent's
petition, on jurisdictional ground, relying on Sec. 4 of
Executive Order No. 17 which provides that no restraining
order or preliminary injunction can be issued by any court to
enjoin the separation/replacement of any official or employee
in the government service. On 18 February 1987, the trial
court denied said motion, holding that the prohibition against
the issuance of an injunction and/or restraining order is not
applicable to an appointee under the Freedom Constitution,
who is actually a replacement to an employee appointed
under the 1973 Constitution. Hence, this petition.
To support his claim as the rightful and legal appointee to the
Office of Project Director of BRBDP, petitioner argues that
private respondent Robredo is not qualified for the position of
"Project Director" because he was below the required age of
thirty (30) years provided under the law at the time of his
appointment; that a "Project Director" performs an executive
function and the position is without a fixed term, thus, the
appointee may be removed with or without cause upon the
discretion of the appointing authority; and that Sec. 4 of
Executive Order No. 17 does not allow the court to enjoin or
restrain the separation/replacement of government
employees in the course of a reorganization process; that
private respondent's recourse for his alleged removal should
not have been an independent action for injunction but a
petition for reconsideration before the Committee created by
E.O. No. 17.
On the other hand, private respondent Robredo alleges that
petitioner's appointment is void, because all the executive
powers and functions devolving upon Vice-President Laurel
as Prime Minister, including his power as Chairman of
NACIAD to appoint the Project Director of BRBDP had
reverted to the President after the promulgation of the
S.Y. 2014-2015

Freedom Constitution, which abolished the position of Prime
Minister.
cannot claim to have had a valid right to the position of

Program/Project Director of BRBDP.
In a recent Executive Order (No. 374) promulgated on 30

May 1989, the BRBDP was abolished and its functions were
transferred to the Regional Development Council and to the
Governors of Camarines Sur and Albay. 12 All qualified
personnel affected by such abolition are entitled to receive
retirement
benefits. 13 The
abolition
of
BRBDP
notwithstanding, we find it necessary to settle the issue as to
who was the proper appointee to the position of
Program/Project Director of BRBDP, entitled to hold said
office prior to said abolition, to determine the party entitled to
receive the separation benefits provided by law.
But, even assuming that Vice-President Laurel still had the

power to appoint herein petitioner as Program/Project
Director of BRBDP, private respondent could not be removed
from said position, without just cause. There was thus no
vacancy in the office justifying the appointment thereto of
petitioner Jocom.
We find insufficient merit in the petition.

After a careful study of the various laws affecting the creation
of BRBDP, it appears that the position of "Program Director"
under PD 926 (creating BRBDP) and the position of "Project
Director" under PD 1378 and Executive Order Nos. 731 and
835 (charter of NACIAD), are one and the same position,
with the main function of heading the BRBDP. The power to
appoint the Program/Project Director to head the BRBDP
originally belonged to the Cabinet Committee Coordination,
but with the subsequent amendments to the organizational
structure of BRBDP and that of NACIAD, the power was
delegated to the Chairman of NACIAD.
During Vice-President Laurel's short tenure as Prime
Minister, he became the Chairman of NACIAD, with the
power to appoint the Program/Project Directors of the
various integrated area development projects, including the
BRBDP. However, after the promulgation of the Freedom
Constitution, all provisions regarding the Office of the Prime
Minister were deleted, which indicated the abolition of said
office. The control over all ministries and other functions and
powers pertaining to the Prime Minister reverted to the
President. In view of the abolition of the Office of Prime
Minister, the functions of Vice-President Laurel as Chairman
of NACIAD also ceased, and the Chairmanship became part
of the executive functions of the President.
As Chairman of NACIAD, the President thru her Deputy
Executive Secretary, exercised the functions and powers of
said office and informed the Congressmen of the different
provinces of the Bicol Region of the development projects of
NACIAD in their provinces thru BRBDP, as contained in her
letters dated 8 July 1987. 14
At the time of petitioner's appointment, Vice-President Laurel
had already ceased to be Chairman of NACIAD. His
appointment of herein petitioner to the position of
Program/Project Director and the removal of private
respondent from said position, were in the exercise of power
that already belonged to the President. Hence, such
appointment and removal were null and void, and petitioner
All branches, subdivisions, instrumentalities and agencies of

the government, including government owned and controlled
corporations with original charters are covered by the civil
service and its rules and regulations. Appointments to the
civil service are based on merit and fitness determined by
competitive examinations, except appointments to positions
which are policy determining, primarily confidential or highly
technical. 15 The Civil Service Law classifies the positions in
the civil service into career and non-career service positions.
The career service is characterized by (1) entrance based on
merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical
qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure; 16 while a noncareer position is characterized by (1) entrance on bases
other than those of the usual tests of merit and fitness
utilized for the career service; and (2) tenure which is limited
to a period specified by law, or which is coterminous with that
of the appointing authority or subject to his pleasure, or
limited to the duration of a particular project for which
purpose employment was extended. 17
Regardless of the classification of the position held by a
government employee covered by civil service rules, be it a
career or non-career position, such employee may not be
removed without just cause. An employee who belongs to
the non-career service is protected from removal or
suspension without just cause and non-observance of due
process.
xxx xxx xxx
As an employee in the civil service and as civil service
eligible, respondent is entitled to the benefits, rights and
privileges extended to those belonging to the service. He
cannot be removed or dismissed without just cause, much
less, without formal charge or prior notice. The fact that his
position falls under the unclassified service or the non-career
service does not remove him from the protective mantle of
the Civil Service Law. Persons in the unclassified service are
merely so designated because the nature of their work and
qualifications are not subject to classification unlike those in
the classified service. ... 18
The constitutional and statutory guarantee of security of
tenure is extended to both those in the career and noncareer service positions, and the cause under which an
employee may be removed or suspended must naturally
S.Y. 2014-2015

have some relation to the character or fitness of the officer or
employee, for the discharge of the functions of his office 19 or
expiration of the project for which employment was
extended.
The law 20 modifying the organizational structure of BRBDP
enumerated the following qualifications of the appointee to
the position of "Project Director," namely: (a) a natural-born
citizen of the Philippines; (b) at least thirty (30) years of age;
and (c) of proven record of executive competence in the field
of public administration and/or infrastructure projects and/or
in the management of agricultural, industrial or commercial
enterprises. Although petitioner claims that private
respondent was below the age of 30 years at the time of his
appointment to qualify to the position of Program-Project
Director, no sufficient proof was presented to substantiate
such claim.
With regard to the tenure of the appointee to the position of
Program/Project Director, PD 926 is silent on the matter.
However, in the Revised Charter of NACIAD, 21 the Council is
given the authority to establish ad hoc support staffs as may
be necessary for particular integrated area development
projects to be headed by a "Project Director," which shall
exist only for the duration of said projects. The Council is
likewise given the power to re-organize or abolish project
support staffs under its supervision and control.
From the foregoing provisions of law, it would appear that the
position of Program/Project Director falls under the
classification of a non-career position where the tenure of the
appointee is subject to the duration of the project, while
entrance to the position is based on the fact that the
appointee possess all the qualifications required by law for
the position. However, despite the classification of the
position of Program/Project Director as a non-career
position, the appointee was nonetheless protected by the
rules on security of tenure, and could not be removed from
office at the whim and caprice of the appointing authorities
without just cause and without observing the rules on due
process. The termination of private respondent from the
office of Program/Project Director failed to state the ground
of such removal from office, thus, his removal from office
was without just cause.
Sec. 4 of Exec. Order No. 17, 22 which prohibits the issuance
of any restraining order or writ of preliminary injunction to
enjoin the separation/replacement of any official or employee
in the government service, is intended to prevent delay in the
government reorganization process provided under the
Freedom Constitution. However, such ban cannot apply in
the case at bar because petitioner Jocom's appointment was
not made pursuant to a valid reorganization. At the time of
his appointment, Vice-President Laurel was no longer the
Chairman of NACIAD and had lost the power to appoint the
Program/Project Director, or even reorganize the BRBDP.
ACCORDINGLY, petition is hereby DISMISSED.
SO ORDERED.
OFFICE OF THE PRESIDENT v. BUENAOBRA

FIRST DIVISION
OFFICE OF THE PRESIDENT,

Petitioner,
G.R. No. 170021
- versus NITA P. BUENAOBRA,

Respondent.
Promulgated:
September 8, 2006
x -----------------------------------------------------------------------------x
DECISION
YNARES-SANTIAGO, J.:
This petition for review under Rule 45 of the Rules of

Court assails the Decision[1] of the Court of Appeals
dated May 27, 2005 in CA-G.R. SP No. 78279, which
reversed and set aside petitioners Resolutions dated April
11, 2003[2] andJune 26, 2003[3] dismissing respondent Nita P.
Buenaobra from the service. Also assailed is the
Resolution[4] dated October 3, 2005, denying petitioners
motion for reconsideration.
The following facts are undisputed:
The Office of the Ombudsmans Special
Prosecution Officer filed an information against respondent
Nita P. Buenaobra, Chairman of the Komisyon sa Wikang
Pilipino (KWP), with the Sandiganbayan for violation of
Section 3(e) of Republic Act (R.A.) No. 3019 for allegedly
causing undue injury to the government through gross
inexcusable negligence in connection with the unauthorized
reprinting of the Diksyunaryo ng Wikang Pilipino. The case
was docketed as Criminal Case No. 26918 (the
Sandiganbayan case).[5]
Upon respondents motion, the Sandiganbayan
ordered a reinvestigation. Thereafter, then Ombudsman
Simeon Marcelo approved the recommendation for the
reversal of the probable cause finding and the withdrawal of
the information filed against respondent. Thus, a motion to
withdraw
the
information[6] was
filed
which
the
Sandiganbayan granted in its Resolution dated April 30,
2003.[7]
S.Y. 2014-2015

While reinvestigation of the Sandiganbayan case was
on-going, the Presidential Anti-Graft Commission (PAGC)
conducted a parallel administrative investigation (the PAGC
case) against respondent charging her with the same acts
and
omissions
subject
of
the
Sandiganbayan
case. Respondent was charged with causing undue injury to
the government and giving unwarranted benefits to Merylvin
Publishing House, Inc., through gross inexcusable
negligence in not taking legal action to collect the 15%
royalty fee of P3,366,250.00 approved by the KWF Board to
be levied against the publisher for its unauthorized reprinting
and selling of the dictionary.[8]
Instead of filing her counter-affidavit/verified answer,
respondent moved to dismiss the administrative case on
grounds of litis pendentia and forum shopping in view of the
pending
Sandiganbayan
case. The
PAGC
denied
respondents motion to dismiss and recommended
respondents dismissal from the service, forfeiture of financial
benefits, and disqualification from joining the government.
Petitioner argues that respondent was a

presidential appointee and a holder of a non-career service
position, hence, she could be removed from the service at
the pleasure of the President.
The petition lacks merit.
Republic Act (R.A.) No. 7104[13] creating the
Commission on the Filipino Language provides for 11
commissioners to be headed by a chairman and all
appointed by the President.[14] The chairman and two
commissioners shall serve full-time for a term of seven
years.
Under Section 4, Article IV, of Presidential Decree
(P.D.) No. 807, or the Civil Service Decree, positions in the
civil service are classified into career service and non-career
service. Section 6 of same article describes a non-career
service employee or officer as follows:
On April 11, 2003, petitioner adopted PAGCs

recommendation and dismissed respondent from office.[9] It
held as inapplicable the doctrines of litis pendentia and
forum shopping because the Sandiganbayan case was
criminal, while the PAGC case was administrative, in
nature. It also ruled that respondent was deemed to have
admitted the material averments of PAGCs complaint when
she did not specifically deny them, despite an opportunity to
do so.
Sec. 6. The Non-Career Service

shall be characterized by (1) entrance on
bases other than those of the usual tests
of merit and fitness utilized for the career
service; and (2) tenure which is limited
to a period specified by law, or which is
coterminous with that of the appointing
authority or subject to his pleasure, or
which is limited to the duration of a
particular project for which purpose
employment was made.
Respondent moved for reconsideration[10] but was

denied. Hence, she filed a petition for review with the Court
of Appeals, docketed as CA-G.R. SP No. 78279.[11]
The Non-Career Service shall

include:
The Court of Appeals granted respondents petition

in its assailed Decision dated May 27, 2005 holding that the
proceedings before the PAGC were procedurally and
substantially flawed because after denying respondents
motion to dismiss, the PAGC did not give respondent the
opportunity to present evidence. Instead, it proceeded to
rule on the merits of the case. The Court of Appeals also
found no evidence to prove respondents administrative
liability in not collecting the 15% royalty fee. The dispositive
portion of the Decision reads:
WHEREFORE,
premises
considered, the petition is GRANTED. The
assailed Resolutions dated April [11], 2003
and June 26, 2003 are SET ASIDE. The
charge/complaint against petitioner Nita P.
Buenaobra is hereby ordered DISMISSED
for complete lack of evidence against the
petitioner.
xxxx
3.
Chairman and members
of commissions and boards with fixed
terms of office and their personal or
confidential staff; (Emphasis added)
xxxx
Based on the foregoing, respondent who is the
Chairman of the KWP is a non-career service personnel
whose tenure is limited to seven years as provided under
R.A. No. 7104. Since her tenure is fixed by law, her removal
from office is not at the pleasure of the appointing authority.
We have consistently ruled that non-career service
personnel enjoy security of tenure. They may not be
removed without just cause and non-observance of due
process. Thus, in Jocom v. Regalado,[15] we held:
SO ORDERED.[12]
Petitioners motion for reconsideration was denied,
hence, the instant petition.
Regardless of the classification of

the position held by a government
employee covered by civil service rules, be
S.Y. 2014-2015

it a career or non-career position, such
employee may not be removed without just
cause. An employee who belongs to
the non-career service is protected
from removal or suspension without
just cause and non-observance of due
process.
xxxx
The constitutional and statutory
guarantee of security of tenure is extended
to both those in the career and non-career
service positions, and the cause under
which an employee may be removed or
suspended must naturally have some
relation to the character or fitness of the
officer or employee, for the discharge of
the functions of his office, or expiration of
the project for which the employment was
extended. (Emphasis supplied)
Moreover, there is no showing that respondents
failure to file suit to collect the royalty fee prejudiced the
government. In its assailed Resolution dated June 26, 2003,
petitioner held that there was a PAGC categorical
finding[16] of violation of Sec. 3(e) of R.A. No.
3019. However, it was a bare conclusion by the PAGC in
violation of Sec. 5, Rule VII, Part III of the PAGC New Rules
of Procedure,[17] that in every case, the Commission shall
use any and all reasonable means to ascertain the facts in
each case or complaint speedily and objectively and without
regard to technicalities of law or procedure, in all instances
observing due process.
More important, Sec. 2, Rule VIII, Part IV of the
PAGC rules requires that its report and recommendation to
the President shall state, among others, the factual findings
and legal conclusions, as well as the penalty recommended
to be imposed or such other action that may be
taken. PAGC concluded that respondent violated R.A. No.
3019, without any factual findings at all.
We agree with the findings of the Court of Appeals that
respondent did not give any unwarranted benefits to
Merylvin, to wit:
The act of not taking legal action
to collect is not defined by any criminal
statute as an offense by omission per
se. If it were so, a sizeable number of
public officials would be out of the
government service by mere omission to
take such action. But could the same act
be the basis for administrative action
against an erring public official? Logically
since such an omission is not a criminal
offense per se, it could be the basis of an
administrative action only if there is a
positive duty to take legal action clearly

imposed upon the petitioner.
In the instant case, insofar as the
criminal aspect of the case is concerned,
the office of the Ombudsman already ruled
that the accused x x x cannot be faulted if
she instituted no action to collect royalty
fee from the publishing house. In fact, if
she instituted such action, the same would
be unauthorized and without legal basis as
there was no contract between the KWF
and the publisher. It is for this reason
that the Motion to Withdraw Information in
Criminal Case No. 26918 entitled People
vs. Nita P. Buenaobra was granted by the
Fifth Division of the Sandiganbayan.
This lack of positive duty to take
legal action on the part of the petitioner is
bolstered by the fact that KWF Board
Resolution
No.
2002-2
specifically disauthorizedher to enter into
a contract with Merylvin Publishing House,
thus, Buenaobras inaction to collect the
15% royalty fee from said publisher was
only in accord with the KWF Board of
Commissioners decision. KWF is a
collegial body and as such it acts only in
accordance with the Boards directives. In
fact, much earlier, the offer to pay fifteen
percent (15%) royalty fee was referred by
the KWF Board to the State Auditor for his
comment and recommendations under
Resolution No. 2000-1 passed and
approved onFebruary 2, 2000.
Petitioner
Buenaobra
was
dismissed from the service as a result of
an illogical conclusion of an unreasonable
mind. Buenaobra was charged for her
omission to collect from Merylvin
Publishing House but the KWF Board of
Commissioners, of which the private
complainant is a member, disauthorized
Buenaobra from entering into a contract
with Merylvin Publishing House (which
offered the 15% royalty fee), which would
have been the basis for collection. Clearly
then, as pointed out by the Office of the
Ombudsman, without such contract, there
was no basis for collection. If We have to
pinpoint responsibility for non-collection, it
is not because of the inaction of
Buenaobra but because of the KWF Board
Resolution No. 2000-2 disauthorizing
Buenaobra from entering into a contract
with Merylvin Publishing House. The sad
thing is that one of the signatories of said
S.Y. 2014-2015

resolution is the private complainant KWF
Commissioner Fe Aldave-Yap, who is
herself
the
cause
of
the
noncollection. The filing of this complaint
resulting in the resolution of the
administrative body dismissing petitioner
Buenaobra from government service is a
sad commentary of the mentality of public
functionaries who file cases and those who
cursorily give them due course even
though the factual bases clearly show a
comedy of errors. It escapes logic and
clear thinking why this complaint against
petitioner was filed and entertained in the
first place. x x x.
xxxx
preference to the publisher nor had she

acted with manifest partiality, evident bad
faith
or
gross
inexcusable
negligence. Such being the case, it
necessarily
follows
that
the
charge/complaint against petitioner must
be dismissed.[18] (Italics and emphasis in
the original)
WHEREFORE, based on the foregoing, the petition
is DENIED. The Decision of the Court of Appeals dated May
27, 2005 in CA-G.R. SP No. 78279, which reversed and set
aside the Resolutions dated April 11, 2003 and June 26,
2003 of the Office of the President dismissing respondent
Nita P. Buenaobra from the service, and its Resolution dated
October 3, 2005 denying petitioners Motion for
Reconsideration, are AFFIRMED.
Buenaobra did not give any

unwarranted benefits, advantage or
SO ORDERED.
S.Y. 2014-2015

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PUBLIC OFFICERS and CORPORATIONS (Atty.

January 18, 2011

MODESTO AGYAO, JR., Petitioner,

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 2

the office. The third level embraces positions of a managerial

Agyao further points out that there are no qualified applicants

The rank of Department Manager II falls under the coverage

Finally, Agyao contends that the position of Department

In sum, the core issue to be resolved in this case is whether

Finally, the CSC argues that although the position of

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

(a) The first level shall include clerical, trades, crafts

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 3

Thus, the CES covers presidential appointees only. As this

The Career Service shall include:

"Positions in the CES under the Administrative Code include

Respondent was appointed Vice-President of VisMin

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 4

appointing power for non-CES positions in the President, in

Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the

While the above-cited ruling of the Supreme Court refer to

To classify other positions not included in the above

In view thereof, OM No. 6, series of 2008 and all other

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 5

PALMERA v. CIVIL SERVICE

G.R. No. 110168 August 4, 1994

Committee in an investigation of anomalies in the flood

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 6

Palmera had no intention to abandon his permanent position

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 7

Any person who has been permanently appointed to a

The doctrine of laches is an equitable principle applied to

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 8

Counsellor Donato Felicio as Charges D'Affaires effective

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 9

P.D. 807," drawing attention, however, to his reply "to the

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 10

technical positions in scientific or research institutions which

Subsequently, Melchor filed a second petition, docketed as

(3) Positions in the Career Executive Service, namely:

Against this factual background, the petitioners submit the

(4) Career officers, other than those in the Career Executive

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 11

Melchor discusses at length what he feels to be the

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 12

all issued by the Court of Appeals in the said CA-G.R. SP

MIRANDA, MEL CATHERINE C. 2 SANCHEZ ROMAN

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman) 13