Pub Corp Part 5

1ST EXAM COVERAGE CASE COMPILATION

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman)1ST EXAM COVERAGE CASE COMPILATION

1

INOK v. CIVIL SERVICE COMMISSIONAGYAO v. CIVIL SERVICE COMMISSIONRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 182591 January 18, 2011MODESTO AGYAO, JR.,Petitioner,vs.CIVIL SERVICE COMMISSION,Respondent.D E C I S I O NMENDOZA,J.:Assailed in this petition for review on certiorari is the September 26, 2007 Decision1of the Court of Appeals (CA), in CA-G.R. SP No. 92569, which affirmed Resolution No. 05-0821 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 Office-Bangko 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 re-appointed 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. xxxOn 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. 05-08212denying 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 Letter-Motion 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 followingISSUESWHETHER 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.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.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.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.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,3the CSC avers that the classification of a particular position in the bureaucracy is determined by the nature of the functions of 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.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.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 COURTThe issue is not novel. InOffice of the Ombudsman v. Civil Service Commissioncases,4Home Insurance Guarantee Corporation v. Civil Service Commission5and National Transmission Corporation v. Hamoy,6the 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:(a) The first level shall include clerical, trades, crafts and custodial service positions which involve non-professional or sub-professional work in a non-supervisory 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 non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief levels; and(c) The third level shall cover positions in the Career Executive Service.In theHome Insurancecase, the Court ruled that "the position of Vice-President of HIGC does not belong to the3rd levelof the career service. Respondent Cruz has not satisfactorily shown that his former position as Vice-President 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 theOffice of the Ombudsmancase, 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.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;x x x x x x x x x (emphasis supplied)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 theNational Transmission Corporationcase, where it was further written:"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.x x x x x x x x xRespondent 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 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:Appointment to CES RankUpon 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.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 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.x x xWhile 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.In view thereof, OM No. 6, series of 2008 and all other issuances of the Commission inconsistent with the afore-stated 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 ofCivil Service Commission v. Court of AppealsandPhilippine Charity Sweepstakes Office,8where 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 re-appointment. 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 herebyREVERSEDandSET ASIDEand another one entered holding that the appointment of Modesto Agyao, Jr. as Department Manager II of PEZA was valid.SO ORDERED.PALMERA v. CIVIL SERVICE COMMISSIONRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 110168 August 4, 1994RODOLFO 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 non-reinstatement 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.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; and3. 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 ofSantiago v. Agustin,2this 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 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 inCristobal v. Melchor:3The 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: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.ASTRAQUILLO v. MANGLAPUSRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 88183 October 3, 1990ISABELO 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, 1990ALUNAN C. GLANGpetitioner,vs.RAUL S. MANGLAPUS, Secretary of Foreign Affairs,respondent.G.R. No. 88672 October 3, 1990ALEJANDRO MELCHOR, JR.,petitioner,vs.RAUL S. MANGLAPUS, Secretary of Foreign Affairs; Undersecretary of Foreign Affairs and Chairman of the 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, 1990ISABELO J. ASTRAQUILLO,petitioner,vs.FORTUNATO D. OBLENA,respondent.G.R. No. 88916 October 3, 1990ALEJANDRO 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 AstraquilloAstraquillo 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).1After 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.2On instructions of the Board of Foreign Service Administration (BFSA) the matter was investigated by Ambassador Pacifico Castro from March 28, to 31, 1989.3Thereafter, 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."4Astraquillo was then notified (on April 18, 1989) of the termination of his services effective immediately,5and (on May 8,1989) of the designation of Counsellor Donato Felicio as Charges D'Affaires effective May 17, 1989.6Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of his services up to May 31, 1989.7But on the same day that the telex message extending his services was transmitted, May 12, 1989, Astraquillo filed the petition forcertiorariat 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 forquo warrantocontesting the appointment. This second case was docketed as G.R. No. 88781.His basic thesis is that the Foreign Affairs Secretary had no powerquadepartment 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.GlangAlunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador Extraordinary and Plenipotentiary and Chief of Mission (Class I) to Kuwait,8and assumed his post on January 11, 1987.9Two 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."10The 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."11On 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.12The 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 President's decision" and seek redress "only through the proper courts of law" if he felt he had been "unlawfully treated."13Glang thereupon filed the petition forcertiorariand prohibition at bar. For relief, he relies upon substantially the same arguments as those advanced by Astraquillo,supra.14G.R.Nos.88672 and 88916: Alejandro Melchor, Jr.Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary and Plenipotentiary on June 27, 1986.15On July 3, 1986, Vice-President Salvador H. Laurel, then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R.16This post Melchor assumed on September 4, 1986,17after which he received another appointment from the President on October 15, 1986 as Chief of Mission, Class, 1.18On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow19filed a complaint with the Department of Foreign Affairs against Melchor and two others20for "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."21The complaint was investigated by Ambassador Ernesto Garrido, Director General for Financial Management Services of the Foreign Affairs Department, by direction of the Secretary.22Garrido'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.23Said 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;24and accordingly, the Director General for Personnel and Administrative Services formally charged Melchor, under date of January 2,1989, with the following offenses, to wit:251) 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; and4) 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."26He 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.27He wrote another letter to President Aquino, dated January 19, 1989, this time under oath,inter aliasubmitting 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 Secretary29who, 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.30The 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.31On 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 . . . ."32It 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.33This 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, 1989.34It 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."35This was "APPROVED by authority of the President" on June 13, 1989 by Executive Secretary Macaraig.36On 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 terminate his services was "vested exclusively on the President herself . . . ."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.37Against this factual background, the petitioners submit the following common contentions:381) 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; and5) 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 "non-career 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 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;(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as theForeign 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 orsubject 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 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 ofnon-career officersin 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."41Those 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 . . . ."42Now, 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.43In 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 asambassador, 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."44On 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.45The 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'salter ego, heads and controls the Department of Foreign Affairs and supervises and directs all officials and employees assigned abroad.46The 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 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 ofquo warrantoto 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. SALASFIRST DIVISION[G.R. No. 138756.August 1, 2002]PHILIPPINE AMUSEMENT AND GAMING CORPORATION,petitioner, vs.RAFAEL M. SALAS,respondent.DECISIONAUSTRIA-MARTINEZ,J.:InCivil 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. 92-1283.Respondent filed with this Court a petition forcertiorari,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 isGRANTED.The assailed Resolution No. 92-1283 of the respondent Civil Service Commission isREVERSEDandSET ASIDE,and a new one enteredDIRECTINGthe 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 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 wasnotexonerated 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.SOORDERED.[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:ITHE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF THIS HONORABLE COURT;IITHE 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 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 inDel Castillo vs. Civil Service Commission: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]).Back salaries may be ordered paid to said officer or employee (City Mayor of Zamboanga v. Court of Appeals, 182 SCRA 785 [1990]).[25]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 proxybetting, 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 inCivil Service Commissionand 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.SO ORDERED.

JOCOM v. ROBREDORepublic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 77373 August 22, 1991EDMUNDO 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.:pThis is a petition forcertiorari,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 19871and its orders dated 11 and 18 February 1987 denying petitioner's motion for raffle of the case and motion to dismiss, respectively.2Petitioner also seeks to enjoin the respondent judge from further enforcing the disputed orders and from proceeding with the hearing of the case before the courta 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; andi. Perform such other functions as may be assigned by the Cabinet Committee Coordinator.3On 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.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 establishad hocsupport 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 heipso factobecame 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 country4which include the Bicol River Basin Development Program (BRBDP)5In 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.6In 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.7Simultaneous with petitioner Jocom's appointment, private respondent Robredo was informed of his termination from office without stating the ground for his dismissal.8Armed 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.9Based 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 1987,10ordering 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 courta quowas concerned, the legal presumption of regularity of performance of duty in conducting the raffle holds.11Petitioner 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 Freedom Constitution, which abolished the position of Prime Minister.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.12All qualified personnel affected by such abolition are entitled to receive retirement benefits.13The 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.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 1987.14At 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 cannot claim to have had a valid right to the position of Program/Project Director of BRBDP.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.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.15The 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;16while a non-career 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.17Regardless 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 xxxAs 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. ...18The 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 office19or expiration of the project for which employment was extended.The law20modifying 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,21the Council is given the authority to establishad hocsupport 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. 17,22which 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. BUENAOBRAFIRST DIVISIONOFFICE OF THE PRESIDENT,G.R. No. 170021Petitioner,- versus -

NITA P. BUENAOBRA,Respondent. Promulgated:September 8, 2006x -----------------------------------------------------------------------------xDECISIONYNARES-SANTIAGO,J.:This petition for review under Rule 45 of the Rules of Court assails the Decision[1]of the Court of Appeals datedMay 27, 2005in CA-G.R. SP No. 78279, which reversed and set aside petitioners Resolutions datedApril 11, 2003[2]andJune 26, 2003[3]dismissing respondent Nita P. Buenaobra from the service.Also assailed is the Resolution[4]datedOctober 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 datedApril 30, 2003.[7]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 oflitis pendentiaand 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.OnApril 11, 2003, petitioner adopted PAGCs recommendation and dismissed respondent from office.[9]It held as inapplicable the doctrines oflitis pendentiaand 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.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 Court of Appeals granted respondents petition in its a