SUPREME COURT DECISIONS

Search for www.chanrobles.com

PLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS

DISSENTING OPINION

GONZAGA-REYES, J.: chanrobles virtual law library

I regret to dissent from the ponencia of J. Vicente V. Mendoza. chanrobles virtual law library

At the outset, it must be stressed that the position of Chief Public Attorney in the Public Attorneys Office is part of the Career Executive Service. By law,[1 Career Executive Service Officers, 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, are appointed by the President. The career executive service was created to develop a competent and professional executive work force in the government service. Implicit in the establishment of a career service in the third level of the civil service is the grant of tenurial protection to career executive service officers (CESOs). chanrobles virtual law library

No less than the Constitution guarantees the right of security of tenure of the employees of the civil service.² Specifically, Section 30 of P. D. No. 807, as amended, otherwise known as the Civil Service Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law.³ chanrobles virtual law library

Appointment to a position belonging to the Career Service confers security of tenure on its occupant if he possesses the required qualifications; such right depends on his eligibility or lack of it. 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 required.⁴ chanrobles virtual law library

Respondent Josefina G. Bacal passed the Career Executive Service Examination in 1989. On July 28, 1994, she was conferred CES eligibility, and was appointed Regional Director of the Public Attorneys Office on January 5, 1995. She was appointed by then President Fidel Ramos to the rank of CESO III. On November 5, 1997, she was designated by the Secretary of Justice as Acting Chief Public Attorney. On February 5, 1998, her appointment was confirmed by President Ramos, and on February 20, 1998, she took her oath and assumed office. On July 1, 1998, petitioner Carina J. Demaisip was appointed Chief Public Defender (formerly Chief Public Attorney) by President Joseph Estrada. On July 6, 1998, petitioner was designated Chief Public Defender vice Atty. Josefina C. Bacal effective July 1, 1998. On July 7, 1998 petitioner took her oath of office. On the other hand, respondent Bacal was appointed Regional Director, Public Defenders Office. chanrobles virtual law library

At the time of her appointment by then President Ramos to the position of Chief Public Attorney, respondent Atty. Josefina Bacal possessed the requisite CES eligibility for the position. She had passed the examinations for the Career Executive Service, and had the appropriate CES eligibility for the third level of the career civil service. She had been conferred CESO Rank III. Although the position of Chief Public Attorney carries CESO Rank I (Chief of Office), she was eligible for appointment thereto without the need of passing another CES examination, as indeed there is only one appropriate eligibility, i.e. CESO eligibility, for any of the six levels in the Career Executive Service. By law, no civil service examination is required for promotion to a higher position within the same level⁵ as no other examination for promotion from one level to a higher level in the career executive service has been prescribed. Thus, the Executive Director of the Career Executive Service Board categorically stated in a certification dated April 15, 1999 as follows: chanrobles virtual law library

This is to certify that the Rank equivalent to the position of Chief Public Attorney and Regional Public Attorney are CESO Rank I and CESO Rank III respectively. However, a Career Executive Service Officer (CESO) or a CES eligible need not be a CESO I or a CESO III to qualify for appointment to the position of Chief Public Attorney and Regional Public Attorney respectively. chanrobles virtual law library

x x x. chanrobles virtual law library

ELMOR D. JURIDICO, CESO II chanrobles virtual law library

Executive Director chanrobles virtual law library

Similarly in a letter-reply addressed to respondent Bacal dated August 4, 1998 regarding respondents predicament relative to her appointment as Chief Public Attorney, the Chairman of the Career Executive Service Board, Chairman Corazon Alma G. De Leon, wrote: chanrobles virtual law library

ATTY. JOSEFINA G. BACAL chanrobles virtual law library

Bacal Building chanrobles virtual law library

Vamemta Boulevard chanrobles virtual law library

Carmen, Cagayan de Oro City chanrobles virtual law library

Dear Atty. Bacal: chanrobles virtual law library

xxx chanrobles virtual law library

Please be informed that the CES Boards policy on the security of tenure of Career Executive Service Officers (CESOs) and CES eligibles remains the same. That is, CESOs and eligibles like you are entitled to security of tenure because you have met all the requirements for the position to which you were appointed, including the appropriate eligibility required. This policy of the Board is based on solid constitutional and statutory grounds. Consequently, you and the other CESOs and eligibles can only be removed except for a valid cause and after due notice and hearing. And the phrase for a valid cause in connection with removals of public officers has acquired a well-defined concept. It means for reason which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause and not merely causes which the appointing power in the exercise of discretion may deem sufficient. (De los Santos vs. Mallare, 87 Phil. 280). chanrobles virtual law library

In the event, therefore, that you are removed or ousted without cause, due notice and hearing, the same shall constitute a violation of your constitutional and statutory rights to security of tenure which rightly calls for remedy or redress in the proper body or court of law. chanrobles virtual law library

Very truly yours, chanrobles virtual law library

CORAZON ALMA G. DE LEON chanrobles virtual law library

Chairman chanrobles virtual law library

Again in a letter dated May 17, 1999 Atty. Bacal was assured by the CESB Executive Director that a CES eligible who is a Regional Director and who is subsequently promoted by the president, to a higher position (that of an Undersecretary) in the CES, becomes permanent in the latter position, viz: chanrobles virtual law library

Please be informed that under existing law and rules, a Career Executive Service Eligibility is a requirement for a permanent appointment to any Career Executive Service position including those of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director and Department Service Chief. Please refer to the Supreme Court Decisions on Achacoso vs. Macaraig, et al G. R. No. 93023 and Pangilinan vs. Maglaya, et al G.R. No. 104216 for an elucidation on this issue. Thus, a CES eligible appointed to the position of Regional Director becomes permanent to the position more so if he was subsequently appointed to a rank in the CES by the President. The same eligible can also qualify for promotion to higher CES positions and if subsequently extended appointment to a higher CES position by the appointing authority, the CES eligible becomes permanent in that position. It goes without saying therefore, that a CES eligible who is a Regional Director and who subsequently gets appointed Undersecretary by the President becomes permanent in the position of Undersecretary. chanrobles virtual law library

It is accordingly difficult to understand why, despite the absence of any change in the pertinent law, the Career Executive Service Board should renege on its previous official position that respondent has no legal claim to security of tenure as Chief Public Attorney. The position it now espouses is that security of tenure is conferred only if the appointee has been conferred the rank corresponding to the CES position he is holding; otherwise stated, respondent Bacal who holds a CESO Rank III does not enjoy security of tenure in the position of Chief Public Attorney as she does not possess CESO Rank I. chanrobles virtual law library

The position is not tenable and distorts the concept of professionalization and careerism that animated the creation of the career executive service by extending the scope of the career civil service system to the highest managerial levels in the government bureaucracy. The creation of the Career Executive Service was not meant to disturb or disrupt the well-established concept in the Philippine Civil Service that extends tenurial protection to any person holding a permanent appointment in the career civil service who meets all the requirements for the position to which he is appointed, including the appropriate eligibility required. chanrobles virtual law library

The Qualification Standards for the Career Executive Service prescribes the following requirements for the position of Chief Public Attorney.: chanrobles virtual law library

Education -Bachelor of Laws chanrobles virtual law library

Experience- 3 years of supervisory experience chanrobles virtual law library

Training- None required chanrobles virtual law library

Eligibility- Career Service Executive Eligibility (CSEE)/ chanrobles virtual law library

Career Executive Service (CES) chanrobles virtual law library

Notably CES Rank is not one of the prescribed requirements for the position. chanrobles virtual law library

CES eligibility, which is conferred by the CESO Board, is a requisite for appointment to CES positions. On the other hand, CESO Rank is granted by the President based on two criteria: (1) level of managerial responsibility, e.g. Rank I for Chief Public Attorney, Rank III for Regional Director; and (2) performance. Accordingly, a CESO promoted to a higher CES position may obtain the CESO Rank of the higher position only after an evaluation is made of his performance on theb by the CESB, which is the agency that recommends to the President the conferment of the higher CESO rank to the qualified incumbent thereof.[6 chanrobles virtual law library

The evaluation of the performance of a CES eligible in a given position is as a rule required to obtain an appointment to rank equivalent to the level of his managerial responsibility. Thus, respondent Bacal was conferred CESO Rank III after eleven years as PAO Regional Public Attorney (Regional Director). As above pointed out, being a CESO eligible, she possessed the necessary and appropriate eligibility for the position of Chief Public Attorney, a position to which she was regularly appointed by the President on February 5, 1998. Had she not been inordinately replaced, she would be eligible for appointment to CESO Rank I after evaluation of her performance in office. chanrobles virtual law library

The proposition that appointment to a position in the Career Executive Service requires that the appointee has the corresponding rank level of the position appears to be anchored on the following provision of the Integrated Reorganization Plan[7 chanrobles virtual law library

c. Appointment. Appointment to appropriate classes in the Career Executive 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 bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President, may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination. chanrobles virtual law library

At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a position embraced in the Career Executive Service shall continue to hold his position, but may not advance to a higher class of position in the Career Executive Service unless or until he qualifies for membership in the Career Executive Service. chanrobles virtual law library

xxx chanrobles virtual law library

e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of the Service shall be assigned to occupy positions 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 Board on the basis of the members functional expertise chanrobles virtual law library

The foregoing provisions, however, taken in the context of the pertinent provisions of law pertaining to the Career Executive Service, merely highlight or underscore the fact that appointment to a CES rank is entirely different from an appointment to a position embraced in the CES. As pointed out by then CES Executive Director Juridico, a CESO eligible, e.g. one who is a CESO Rank III, is qualified for permanent appointment to any position in the Career Executive Service- including a level I position like that of the Chief Public Attorney. All that is required to enjoy security of tenure in that position is that the appointee possessed the appropriate eligibility and that she was extended a permanent appointment. chanrobles virtual law library

A CESO Rank is conferred upon the CESO. His appointment to a CESO rank vests security of tenure in the CES, which should be distinguished from security of tenure in the CES position. Although positions embraced in the Career Executive Service are classified according to level of management duties and responsibilities, i.e. Rank Equivalent I if level of managerial responsibilities is comparable to that of an undersecretary, level II to that of an Assistant Secretary, Level III to that of a Bureau Director, etc.,[8 a Career Executive Service Officer (CESO) need not, for purposes of appointment to a CES position, possess a rank corresponding to the Rank level of the position to which he is appointed. This concept is illustrated by the rule that a CESO who obtains a performance rating of outstanding may be recommended to a higher rank than that equivalent to the level of managerial responsibility corresponding to the position he is holding. Similarly, a CESO III occupying a CESO Level III position may be assigned to a position where his special talents as career executive may be most needed or will likely create the greatest impact, which latter position need not belong to Rank Level III of the Career Executive Service, provided that the assignment involves no reduction in rank or salary.[9 Such mobility or flexibility of assignment of CESOs, which is a feature of the career executive service, does not in any way suggest or indicate that the CESO shall lose his security of tenure upon his assignment to a higher position unless he is conferred the CESO rank corresponding to the said higher position. As enunciated in the CES Handbook,¹⁰ appointment to a CES rank which is made by the President upon the recommendation of the Board, completes the official membership in the CES and most importantly, confers on him security of tenure in the CES. No reference is made nor is it intended to equate security of tenure in the Career Executive Service to security of tenure in the position. chanrobles virtual law library

The following features of the Career Executive Service also illustrate the distinction between membership in the CES and appointment to a CES position: chanrobles virtual law library

1) Membership in the Career Executive Service is acquired upon appointment to an appropriate class in the Career Executive Service; the law does not require appointment to a CES position to acquire membership in the CES.¹¹ When the law states that appointments to the CES shall be made on the basis of rank, it refers to appointments to the CES rank not appointments to CES position.[12 chanrobles virtual law library

2) The salary and status of membership of the CESO shall be based on rank not on the position occupied at any given time.¹³ chanrobles virtual law library

3) A CESO who obtains an Outstanding performance rating may qualify for promotion to the next higher rank but still remain in his position.¹⁴ chanrobles virtual law library

4) A CESO may be reassigned or transferred from one position to another, in the interest of the service; such an assignment shall not result in reduction in rank or compensation.[15 chanrobles virtual law library

It is submitted that while appointment to rank confers security of tenure in the CES, it is a permanent appointment to a CES position for which one has the appropriate eligibility which confers on the appointee security of tenure in the said position. A contrary conclusion would disrupt the concept of careerism that is contemplated to pervade the career executive service when this was conceived and put into place in the Integrated Reorganization Plan. Respondent Bacal acquired security of tenure in the CES when she was appointed CESO Rank III. However, she acquired her security of tenure as Chief Public Attorney in 1998 when, possessing the requisite CESO eligibility, she was extended by the President a permanent appointment (not a temporary appointment or temporary designation) as Chief Public Attorney.

[1 PD No. 807, as amended, otherwise known as the Civil Service Decree of the Philippines; E.O. No. 292, otherwise known as the Administrative Code of 1987.

[2 Department of Education, Culture and Sports v. Court of Appeals, 183 SCRA 555; Ibaez v. COMELEC, 19 SCRA 1002; Brillantez v. Guevarra, 27 SCRA 138.

[3 See also Larin v. Executive Secretary, 280 SCRA 713.

[4 Achacoso v. Macaraig, 195 SCRA 235; Chua v. Civil Service Commission, 206 SCRA 65.

⁵ Sec. 8. Paragraphs (2) & (3), Chapter I, Subtitle A (Civil Service Commission) Title I, Book V of Executive Order No. 292, otherwise known as The Administrative Code of 1987, provides: chanrobles virtual law library

(2) xxx Entrance to the third level shall be prescribed by the Career Executive Service Board. (note: The CESB has prescribed CES Examinations for this purpose) chanrobles virtual law library

(3) Within the same level, no civil service examination shall be required for promotion to higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for that level.

[6 Article IV, Chapter I, Part III of the Integrated Reorganization Plan adopted and approved under Presidential Decree No. 1.

[7 Part III, Chapter I, Art. IV, par. 5(c).

[8 CES Handbook, 1997 Revised Ed. Pp. 5-6.

[9 Part III, Chapter I, Art. IV, par. 5(e), I.R.P.

[10 pp. 5-6.

¹¹ 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. chanrobles virtual law library

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. chanrobles virtual law library

There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career Executive Service Officer I (CESO I), while the lowest is that of CESO VI.

[12 As a general rule, a CES eligible will be recommended for appointment to the rank equivalent of the level of his managerial responsibility if his performance rating is Satisfactory or higher. If the performance rating is Outstanding, he will recommended one rank higher than his level of managerial responsibility.

[13 Salary of Career Executive Service Officers. A CESO is compensated according to his CES rank and not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES position with a higher salary grade than that of his CES rank, he is allowed to receive the salary of the CES position.

[14 A member of the CES or CESO may be reassigned from one CES position to another and from one office to another. Such reassignments however, shall not result in any reduction in rank or compensation and shall be made only by the appointing authority.

[15 CES Handbook 1997, Revised Ed., p. 139.