EN BANC

[G.R. No. 93023. March 13, 1991.]

TOMAS D. ACHACOSO , petitioner, vs. CATALINO MACARAIG and

RUBEN D. TORRES, in their capacities as Executive Secretary and
Secretary of the Department of Labor and Employment (DOLE),
respectively; and JOSE N. SARMIENTO , respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY OF TENURE;

PERMANENT APPOINTMENT ISSUED ONLY TO PERSONS QUALIFIED. — A permanent
appointment can be issued only "to a person who meets all the requirements for the
position to which he is being appointed, including the appropriate eligibility prescribed."
2. ID.; ID.; ID.; PERSONS APPOINTED WITHOUT THE REQUISITE QUALIFICATION
DEEMED IN ACTING CAPACITY. — The mere fact that a position belongs to the Career
Service does not automatically confer security of tenure on its occupant even if he does
not possess the required quali cations. Such right will have to depend on the nature of
his appointment, which in turn depends on his eligibility or lack of it. A person who does
not have the requisite quali cations for the position cannot be appointed to it in the
rst place or, only as an exception to the rule, may be appointed to it merely in an acting
capacity in the absence of appropriate eligibles.
3. ID.; ID.; ID.; TEMPORARY APPOINTMENT; PURPOSE. — The purpose of an
acting or temporary appointment is to prevent a hiatus in the discharge of o cial
functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee.
4. ID.; ID.; ID.; ID.; CONDITION IMPOSED ON APPOINTEE. — The person named in
an acting capacity accepts the position under the condition that he shall surrender the
office once he is called upon to do so by the appointing authority.
5. ID.; ID.; ID.; EXPIRATION OF TERM; METHOD OF TERMINATING TEMPORARY
EMPLOYMENT. — In these circumstances, the acting appointee is separated by a
method of terminating o cial relations known in the law of public o cers as expiration
of the term. His term is understood at the outset as without any xity and enduring at
the pleasure of the appointing authority. When required to relinquish his o ce, he
cannot complain that he is being removed in violation of his security of tenure because
removal imports the separation of the incumbent before the expiration of his term. This
is allowed by the Constitution only when it is for cause as provided by law. The acting
appointee is separated precisely because his term has expired. Expiration of the term is
not covered by the constitutional provision on security of tenure.
6. ID.; ID.; ID.; LUEGO CASE (143 SCRA 327) NOT APPLICABLE TO CASE AT BAR.
— The case of Luego v. Civil Service Commission is not applicable because the facts of
that case are different. The petitioner in Luego was qualified and was extended a
permanent appointment that could not be withdrawn on the ground that it was merely
temporary. In the case at bar, the petitioner was not eligible and therefore could be
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 appointed at best only in a temporary capacity. The other cases he cites, viz.
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, Palma-Fernandez
v. De la Paz, and Dario v. Mison, are also not pertinent because they also involved
permanent appointees who could not be removed because of their security of tenure.

DECISION

CRUZ , J : p

The petitioner invokes security of tenure against his claimed removal without
legal cause. The respondents assert he is not entitled to the guaranty because he is not
a career official. These are the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator of the Philippine Overseas
Employment Administration on October 16, 1987, and assumed o ce on October 27,
1987. On January 2, 1990, in compliance with a request addressed by the President of
the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries,
Bureau Heads," and other government o cials, he led a courtesy resignation. This was
accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990, the
Secretary of Labor requested him to turn over his o ce to the Deputy Administrator as
o cer-in-charge. In a letter dated April 19, 1990, he protested his replacement and
declared he was not surrendering his o ce because his resignation was not voluntary
but led only in obedience to the President's directive. On the same date, respondent
Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner.
Achacoso was informed thereof the following day and was again asked to vacate his
o ce. He led a motion for reconsideration on April 23, 1990, but this was denied on
April 30, 1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the
appointment of Sarmiento and to prohibit the respondents from preventing the
petitioner from discharging his duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service
and so enjoys security of tenure, which is one of the characteristics of the Career
Service as distinguished from the Non-Career Service. 1 Claiming to have the rank of
undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise
known as the Civil Service Decree, which includes in the Career Service:
3. Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other o cers of equivalent
rank as may be identi ed by the Career Executive Service Board, all of whom are
appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named
o cials, it was "beyond the prerogatives of the President" to require them to submit
courtesy resignations. Such courtesy resignations, even if led, should be disregarded
for having been submitted "under duress," as otherwise the President would have the
power to remove career o cials at pleasure, even for capricious reasons. In support of
this contention, he invokes Ortiz v. Commission on Elections , 2 where we observed that
"to constitute a complete and operative act of resignation, the o cer or employee
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 must show a clear intention to relinquish" and that "a courtesy resignation cannot
properly be interpreted as a resignation in the legal sense for it is not necessarily a
re ection of a public o cial's intention to surrender his position." He concludes that as
his removal was illegal, there was no vacancy in the disputed o ce to which
respondent Sarmiento could have been validly appointed.
In his Comment, the Solicitor General concedes that the o ce of POEA
Administrator is a career executive service position but submits that the petitioner
himself is not a career executive service o cial entitled to security of tenure. He offers
the following certification from the Civil Service Commission to show that the petitioner
did not possess the necessary quali cations when he was appointed Administrator of
the POEA in 1987: prLL

CERTIFICATION
This is to certify that per records of the Career Executive Service Board (CESB),
Mr. Tomas D. Achacoso III has not participated in a Career Executive Service
Development Program (CESDP) and is not a CES eligible. This is to certify further
that Mr. Achacoso was not appointed to a rank in the CES and is not therefore a
member of the Career Executive Service.

xxx xxx xxx

(Sgd.) ELMOR D. JURIDICO

Executive Director

Reference is also made to the following rules embodied in Part III, Article IV,
Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and
P.D. 337, on the career executive service:
c. Appointment. Appointment to appropriate classes in the Career Service shall be
made by the President from a list of career executive eligibles recommended by
the Board. Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments
as undersecretary and heads of the bureaus and o ces and equivalent positions
shall be with the con rmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible, provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he quali es in such examination. (Emphasis
supplied.).

The respondents contend that as the petitioner was not a career executive
service eligible at the time of his appointment, he came under the exception to the
above rule and so was subject to the provision that he "shall subsequently take the
required Career Executive Service examination and that he shall not be promoted to a
higher rank until he quali es in such examination." Not having taken that examination, he
could not claim that his appointment was permanent and guaranteed him security of
tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who
meets all the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed." Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be withdrawn
at will by the appointing authority and "at a moment's notice," conformably to
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 established jurisprudence.
The Court, having considered these submissions and the additional arguments of
the parties in the petitioner's Reply and the Solicitor-General's Rejoinder, must nd for
the respondents.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not possess the
required quali cations. Such right will have to depend on the nature of his appointment,
which in turn depends on his eligibility or lack of it. A person who does not have the
requisite quali cations for the position cannot be appointed to it in the rst place or,
only as an exception to the rule, may be appointed to it merely in an acting capacity in
the absence of appropriate eligibles. 3 The appointment extended to him cannot be
regarded as permanent even if it may be so designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the

discharge of o cial functions by authorizing a person to discharge the same pending
the selection of a permanent or another appointee. 4 The person named in an acting
capacity accepts the position under the condition that he shall surrender the o ce
once he is called upon to do so by the appointing authority.
In these circumstances, the acting appointee is separated by a method of
terminating o cial relations known in the law of public o cers as expiration of the
term. His term is understood at the outset as without any xity and enduring at the
pleasure of the appointing authority. When required to relinquish his o ce, he cannot
complain that he is being removed in violation of his security of tenure because removal
imports the separation of the incumbent before the expiration of his term. 5 This is
allowed by the Constitution only when it is for cause as provided by law. The acting
appointee is separated precisely because his term has expired. Expiration of the term is
not covered by the constitutional provision on security of tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no xed tenure of o ce; his
employment can be terminated at the pleasure of the appointing power, there
being no need to show that the termination is for cause. 6

The petitioner contends that his appointment was really intended to be

permanent because temporary appointments are not supposed to exceed twelve
months and he was allowed to serve in his position for more than three years. This is
unacceptable. Even if that intention were assumed, it would not by itself alone make his
appointment permanent. Such an appointment did not confer on the petitioner the
appropriate civil service eligibility he did not possess at the time he was appointed, nor
did it vest him with the right to security of tenure that is available only to permanent
appointees.
The case of Luego v. Civil Service Commission 7 is not applicable because the
facts of that case are different. The petitioner in Luego was qualified and was extended
a permanent appointment that could not be withdrawn on the ground that it was merely
temporary. In the case at bar, the petitioner was not eligible and therefore could be
appointed at best only in a temporary capacity. The other cases he cites, viz.
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court , 8 Palma-Fernandez v.
De la Paz, 9 and Dario v. Mison , 1 0 are also not pertinent because they also involved
permanent appointees who could not be removed because of their security of tenure.
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 It should be obvious from all the above observations that the petitioner could
have been validly replaced even if he had not led his courtesy resignation. We
therefore do not have to rule on its legality. Su ce it to say that it could have been a
graceful way of withdrawing him from his o ce with all the formal amenities and no
asperity or discord if only he had not chosen to contest it. But it was his right to do so,
of course, although his challenge has not succeeded.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so
ordered.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Narvasa and Padilla, JJ., took no part.

Footnotes
1. Article IV, Section 5, P.D. 807.

2. 162 SCRA 812.

3. Cuadra v. Cordova, 103 Phil. 391.

4. Austria v. Amante, 79 Phil. 780.

5. Manalang v. Quitoriano, 50 O.G. 2515; Alba v. Evangelista, 100 Phil. 683.

6. Mendez v. Ganzon, 101 Phil. 48; Cuadra v. Cordova, 103 Phil. 391; U.P., et al. v. CIR, 107 Phil.
848; Quitiquit v. Villacorta, 107 Phil. 1060; De la Torre v. Trinidad, et al., 108 Phil. 365;
Madrid v. Auditor General, 108 Phil. 578; Montero v. Castellanes, 108 Phil. 744.

7. 143 SCRA 327.

8. 140 SCRA 22.

9. 160 SCRA 751.

10. 176 SCRA 84.

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