The present petition for review on certiorari
seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein private respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation (PAGCOR), but without prejudice with the filing of administrative charges against him if warranted. 1
The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence Division of PAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by Respondent
. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesting reinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the decision of the MSPB. 2
Respondent Salas initially went to this Court on a petition for certiorari
assailing the propriety of the questioned CSC resolution. However, in a resolution dated August 15, 1995, 3 the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 which took effect on June 1, 1995.
On September 14, 1995, the Court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a confidential employee, hence he may not dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the "proximity rule" enunciated in the case of Griño, Et. Al. v. Civil Service Commission, Et. Al. 4 It likewise held that Section 16 of Presidential Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for several reasons, viz.:chanrob1es virtual 1aw library
(1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section 16 thereof that all employees of the casinos and related services shall be classified as confidential appointees;
(2) In the case of the Philippine Amusement and Gaming Corporation v. Court of Appeals, Et Al., 5 The Supreme Court has classified PAGCOR employees as confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointees by operation of law; and
(4) Based on his functions as a member of the ISS, private respondent occupies a confidential position.
Hence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. They additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of an employee’s functions, and not his designation or title, which determines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of the classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria v. Sto. Tomas, Et. Al. 6
We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was then in force when Presidential Decree No. 1869 creating the Philippine Amusement and Gaming Corporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as policy-determining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated thereon, with the text thereof providing as follows:jgc:chanrobles.com.ph
"All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors. All employees of the casinos and related services shall be classified as ‘confidential’ appointees."cralaw virtua1aw library
On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a confidential employee’s term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution. 7 This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)." chanroblesvirtuallawlibrary:red
However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as ‘confidential appointees.’" While such executive declaration emanated merely from the provisions of Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the Administrative Code of 1987. 8 This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. 9
At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An in depth analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." In the case of Piñero, Et. Al. v. Hechanova, Et Al., 10 the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law, thus:jgc:chanrobles.com.ph
"The change from the original wording of the bill (expressly declared by law . . . to be policy-determining, etc.) to that finally approved and enacted (’or which are policy-determining, etc. in nature’) came about because of the observations of Senator Tañada, that as originally worded the proposed bill gave Congress power to declare by flat of law a certain position as primarily confidential or policy-determining, which should not be the case. The Senator urged that since the Constitution speaks of positions which are ‘primarily confidential, policy-determining, or highly technical in nature’, it is not within the power of Congress to declare what positions are primarily confidential or policy-determining.’It is the nature alone of the position that determines whether it is policy-determining or primarily confidential.’ Hence, the Senator further observed, the matter should be left to the ‘proper implementation of the laws, depending upon the nature of the position to be filled’, and if the position is ‘highly confidential’ then the President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, ‘But in positions that involved both confidential matters and matters which are routine, . . . who is going to determine whether it is primarily confidential?’ Senator Tañada replied:chanrob1es virtual 1aw library
‘SENATOR TAÑADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not" (Emphasis in the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. And the court in the aforecited case explicitly decreed that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2, Article IX-B) of the Constitution. 11 In other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure.
The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines. 12 It may will be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination. "Corollarily, Section 5 of Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those which are the policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified.
The question that may now be asked is whether the Piñero doctrine — to the effect that notwithstanding any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or highly technical — is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987, 13 Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was deleted. 14
We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit:jgc:chanrobles.com.ph
"MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term ‘highly technical’ means something beyond the ordinary requirements of the profession, it is always a question of fact.
MR. FOZ. Does not commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld?
FR. BERNAS. I agree that it should be the general rule; that is why we are putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of practices which mount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make it such; it is the nature of the duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical — as an exception — is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there are certain positions which should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and fitness" (Emphasis supplied
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position is primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." Accordingly, the Piñero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos v. Mallare, Et Al., 16 which held that:jgc:chanrobles.com.ph
"Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. . . ." (Emphasis supplied
This was reiterated in Piñero, Et. Al. v. Hechanova, Et Al., supra, the facts of which are substantially similar to the case at bar, involving as it did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held that the mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their positions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared:jgc:chanrobles.com.ph
"As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. Certainly, it is extremely improbable that the service demands any such closed trust and intimate relation between the appointing official and, not one or two members alone but the entire Customs patrol (Harbor Police) force, so that every member thereof can be said to hold ‘primarily confidential’ posts." (Emphasis supplied
It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was, to repeat, the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant. 17
Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee, to wit:chanrob1es virtual 1aw library
1. As an Internal Security Staff member, private respondent routinely —
a. performs duty assignments at the gaming/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions and other anomalous activities among the employees and customers,
b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas;
c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanted incidents at the gaming and non-gaming areas;
d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling;
e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during transfer of yields to Treasury. 18
Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such close intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would ensure "freedom from misgivings of betrayals of personal trust." 19
2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their official duties. An ISS members is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debate that private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the ordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the position occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appears nothing to suggest that private respondent’s position was "highly" or much less, "primarily" confidential in nature. The fact that, sometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not suffice to characterize his position as primarily confidential. 20chanrobles
In addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine Amusement and Gaming Corporation v. Court of Appeals, Et Al., ante, is misleading. What was there stated is as follows:jgc:chanrobles.com.ph
"The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides that the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled her to damages under the Civil Code." (Emphasis ours).
Thus the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee, for the simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therein. That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidently, therefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases where its validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law. 21
WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto.
, Padilla, Davide, Jr., Romero, Melo, Puno, Kapunan, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.
Bellosillo and Francisco, JJ.
, are on leave.
, concurring:chanrob1es virtual 1aw library
The appeal in this case appears to confine itself to the issue, in main, of whether or not respondent Rafael Salas, an Internal Security Staff member of Philippine Amusement and Gaming Corporation ("PAGCOR") assigned to the casino at the Manila Pavilion Hotel, is a confidential employee.
The Civil Service Commission ("CSC") which upheld the dismissal of Salas ruled that the latter was a confidential employee by operation of law and that, consequently, there was no act of dismissal to speak of but, rather, a mere expiration of an employee’s term of office. The Court of Appeals held otherwise and ordered the reinstatement of Salas with full backwages for having been illegally dismissed by PAGCOR albeit without prejudice to the filing of administrative charges against him such as may be warranted.
I agree with the thorough and exhaustive ponencia of Mr. Justice Florenz D. Regalado supporting the theory of the appellate court that Salas, not being a confidential employee, may not be dismissed for mere lack of trust or confidence, nevertheless, I should like to bring into focus the phrase, "without prejudice to the filing of administrative charges against (Salas) if warranted," found in the dispositive portion of the decision of the appellate court. It would seem to me that the adverse findings arrived at by the Intelligence Division of PAGCOR which the Board of Directors relied upon to terminate the services of Salas on ground of loss of confidence could well be constitutive of the administrative infractions that the appellate court must have had in mind. The ponencia itself states:jgc:chanrobles.com.ph
"The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by Respondent
. The polygraph tests taken by the latter also yielded corroborative and unfavorable results."cralaw virtua1aw library
In my view, the case should, instead, be remanded to the CSC to specifically meet head-on PAGCOR’s foregoing findings and to thereby fully ventilate, as well as pass upon, the appeal to it (CSC) on the basis with an opportunity for a hearing adequately accorded to Salas.
I vote, therefore, for remanding the case to the Civil Service Commission for further proceedings.
1. Penned by Associate Justice Delilah Vidallon-Magtolis, with Associate Justices Gloria C. Paras and Quirino D. Abad Santos, Jr., concurring: Annex A, Petition, Rollo, 26.
2. Original Record, 22.
3. Ibid., 148.
4. G.R. No. 91602, February 26, 1991, 194 SCRA 548.
5. G.R. No. 93396, September 30, 1991, 202 SCRA 191.
6. Infra, fn. 20.
7. This provision reads as follows: "The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters."cralaw virtua1aw library
8. Sec. 12. Powers and functions. — The Commission shall have the following powers and functions:chanrob1es virtual 1aw library
x x x
(9) Declare positions in the Civil Service as may be primarily confidential, highly technical or policy-determining; . . .
9. Salazar v. Mathay, Sr., Et Al., L-44061, September 20, 1976, 73 SCRA 275.
10. L-22562, October 22, 1966, 18 SCRA 417.
11. "No officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Sec. 2, Art. IX-B, 1987 Constitution).
12. Approved, October 6, 1975.
13. Executive Order No. 292 took effect on November 23, 1989 pursuant to Proclamation No. 495 of the Office of the President of even date.
14. "Appointments in the civil service shall be made only according to merit and fitness to be determined as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical by competitive examination." (Sec. 2, Art. IX-B, 1987 Constitution).
"The Commission shall have the following powers and functions: . . . Declare positions in the Civil Service as may properly be primarily confidential, highly technical or policy-determining." (Sec. 12 Book V. E.O. No. 292).
15. Record of the Constitutional Commission, Vol. I, 571-572.
16. 87 Phil. 289 (1950).
17. Griño, Et. Al. v. Civil Service Commission, Et Al., supra., fn. 4.
18. Petition, 12-13, Rollo, 19-20.
19. Borres, Et. Al. v. Court of Appeals, Et Al., L-36845, August 21, 1987, 153 SCRA 120.
20. Tria v. Sto. Tomas, Et Al., G.R. No. 85670 July 31, 1991, 199 SCRA 833.
21. Pamil v. Teleron, L-34854, November 20, 1978, 86 SCRA 413.