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G.R. No. L-65439 November 13, 1985

PAMANTASAN NG LUNGSOD NG MAYNILA, petitionervs.HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR.,

HON. ALBINA MANALODANS as Commissioners of Civil Service Commissionand HERNANI P. ESTEBAN, respondents.

Office of the Legal Officer for petitioner.

GUTIERREZ, JR., J .:

The sole issue raised in this petition is the status of respondent Hernani Esteban'sappointment as Vice-President for Administration of the Pamantasan ng Lungsod ng

Maynila that is, whether or not he holds the position in a permanent capacity as toguarantee as security of tenure.

Respondent Esteban asserts that his appointment is permanent whereas the petitionermaintains its temporary and contractual nature such that the respondent may bedismissed at any time even without cause.

Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee inthe government service for twenty five (25) years. Until May 20, 1973, he was officiallyconnected with the Philippine College of Commerce, a state-owned educationalinstitution as its Vice-President for Academic Affairs. Shortly before that date, the Board

of Trustees of the College in a bold move to streamline the college organization resolveto abolish the position of Vice-President for Academic Affairs. Private respondent wasgiven the option to continue teaching at the Philippine College of Commerce which heaccepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon theinvitation of its president, Dr. Consuelo Blanco.

At the Pamantasan, Dr. Esteban was initially extended an ad interim temporaryappointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Estebanreceived from the Secretary of Pamantasan a 'Notification of Confirmation of Temporary

Appointment' dated June 28, 1973. His appointment was 'effective May 21, 1973 untilJune 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of

Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicatingthat his appointment was renewed 'effective July 1, 1974 until August 31, 1974.'

A month later, on August 30, 1974, he received from the University Secretary another'notification of renewal of temporary appointment' informing him that the Board ofRegents, on recommendation of the President of the University approved the renewal ofhis appointment 'effective September 1, 1974 until June 30, 1975' with an increasedsalary of P17,160per annum.


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On October 15, 1974, incident to a further increase of his salary, Dr. Esteban wasnotified that his appointment as vice-president for administration at a salary of P17,600

per annum had been renewed effective September 1, 1974 until June 30, 1975.

On June 26, 1975, he received another 'Notification of Renewal of Temporary

Appointment' as Vice-President for Administration with at salary of P21,760per annum,'effective July 1, 1975 until June 30, 1976.'

On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list ofemployees recommended for permanent appointments. He wrote Dr. Consuelo Blancorequesting the conversion of his temporary appointment to a permanent one,considering his two and half (2) years service.

On July 26, 1975, Dr. Esteban received an answer to his request from President Blancowho indicated various reasons for her not acting favorably on his request.

On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointmentnotifying him that the president of the university had approved his appointment asProfessor III with a salary of P15,600per annum 'effective August 1, 1975'. He wasfurther designated as Director of the Institute of Continuing Education and CommunityService with an honorarium of P5,676per annum, likewise effective August 1, 1975.

On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminatingDr. Esteban's appointment as Vice-President for Administration effective July 31, 1975.His appointment dated June 26, 1975 and effective until June 30, 1976 had beenwithdrawn before it could be confirmed by the Pamantasan Board of Regents.

On the same date, August 7, 1975, Dr. Esteban appealed to the Civil ServiceCommission for the protection of his tenure in the Pamantasan .

On October 9,1975, the Civil Service Commission ruled that:

The temporary nature of the appointment issued to Dr. Esteban as Vice President forAdministration is conceded. Such being the Case, his services may be terminated at anytime with or without request that he be extended permanent appointment ,or that histemporary appointment be converted into permanent one, it may be stated that theissuance of such appointment is addressed to the sound discretion of the appointingofficial.

Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976,the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that hewas fully qualified for the position of Vice-President for Administration and certified him"for appointment therein under permanent status." The Commission stated:

In view thereof, and in the absence of any apparent justifiable reason why Dr. Estebanshould remian under temporary status for the length of time prior to the withdrawal of hisappointment as Vice President for Administration in that University, and as it furtherappears that he is fully qualified for the position in question in view of his extensive


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experience in the fields of public administration and management, this Commissionhereby certifies him for appointment therein under permanent status.

The Pamantasan, in turn, asked for the reconsideration of that ruling.

The Commission, in an undated Resolution No. 75, Series of 1976, came out with astatement which confused more than it clarified. It stated that its certification should notbe interpreted as directing the reinstatement of Dr. Esteban because 'it was neverintended to be so

On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75,Series of 1976. He also asked for the payment of the salaries and allowances due himas of September 1975, which the Pamantasan had withheld. His request was denied bythe commission in its undated resolution No. 158, Series of 1976.

On September 15, 1976 Esteban reiterated his request for payment of his salaries.

On September 20, 1976, he asked for a review of the Pamantasan's decision toterminate his appointment as Vice-President for Administration.

On December 1, 1976, his request for payment of his salaries was referred by theCommission to the treasurer of the Pamantasan.

On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruledthat Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interimappointment as Vice President for Administration as only the Board of Regents wasempowered to do that under Article 55 of the University Charter (Rep. Act 4196).However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that

position.

Dr. Esteban and the Pamantasan filed motions for reconsideration of that rulingprompting the Commission to order them to submit "all papers and documents pertinentto that case."

On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits SystemBoard in the Civil Service Commission to hear and decide cases brought before it onappeal by officers and employees who feel aggrieved by the determination of officialson personnel matters.

The Board required the Pamantasan to submit its complete records on the appointmentand termination of Dr. Esteban as vice-president for administration.

While the records officer of the Pamantasan submitted copies of the notices sent toEsteban regarding his appointment as vice-president for administration, he did notsubmit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming thead interim appointments of several academic and non-academic personnel of saiduniversity among which was that of Dr. Hernani Esteban "effective May 21, 1973." He


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produced a copy of the memorandum circular dated August 7, 1915 of the President ofthe Pamantasan terminating Dr. Esteban's service as of July 31, 1975.

In Resolution No. 597 dated November 11, 1980, the Commissioner directed thePamantasan to submit any document or documents directly or actually showing that Dr.

Hernani Esteban was appointed vice-president for administration of the Pamantasan ina permanent capacity.

On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence ofBoard Resolution No. 485, replied that "we cannot find any document showing that Dr.Esteban was appointed ... in a permanent capacity.

In view of the Pamantasan's failure to produce the minutes of the regular Board ofRegents meeting on June 20, 1973 when Esteban's appointment was approved theCommission in its Resolution No. 81-279 dated March 5, 1981, concluded that there istruth to the claim of Dr. Esteban that his appointment as Vice-President for

Administration of the Pamantasan was approved as permanent. It cited Government ofthe Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in hispossession or power to produce the best evidence of which the case in its nature issusceptible and withholds it, the fair presumption is that the evidence is withheld forsome sinister motive and that its production would thwart his evil or fraudulent purpose.

The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President forAdministration of Pamantasan with permanent status and that the temporaryappointment issued to him did not alter his permanent status as he had 'alreadyacquired a vested right as well as the right to security of tenure', that he cannotunceremoniously removed therefrom, nor can the status of his appointment be changed

without cause, as provided by law and after due process." The Commission held thatthe termination of his services was obviously illegal. It directed his immediatereinstatement to the position of Vice-President for Administration of Pamantasan andthe payment of his back salaries, allowances and other benefits which he failed toreceive from the time he was separated therefrom.

The Pamantasan filed a motion for reconsideration of that resolution. It also submittedfor the first time a copy of Resolution No. 485.

The Commission, in Resolution No. 71-510 dated April 23, 1981 chided thePamantasan for having suppressed said piece of evidence from which "the intention of,

or the accurate action taken by PLM Board of Regents on Dr. Esteban's appointment inquestion, may be determined." Following the decision of the Supreme Court in the caseofSummers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motionfor reconsideration and ruled that "Upon confirmation of the Board of Regents of the adinterim appointment of Dr. Esteban the same became permanent."

Upon getting this ruling, the Pamantasan filed a petition forcertiorariagainst Dr.Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina


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Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of FirstInstance of Manila, Branch XIII.

On January 8, 1982, the trial court rendered a decision reversing the Commission'sResolution No. 81-279 and adopted the earlier Commission Resolution dated July 6,

1977 holding that Private respondent Dr. Esteban's appointment was invalid, though hemay be considered as a de facto vice-president of the University up to October 9, 1975,the date when the Commission ruled that his appointment was temporary and could beterminated at any time.

The private respondent appealed to the Intermediate Appellate Court.

On September 26, 1983. the respondent Intermediate Appellate Court rendered adecision reversing the trial court's decision. The dispositive portion of the appellatedecision reads:

Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan'spetition forcertiorariis denied. Resolution No 81-279 dated March 5, 1981, as well asResolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission,declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vice-president for administration of the university under the Board of Regents' Resolution No.485 dated June 20, 1973, and ordering his immediate reinstatement to that position withback salaries, allowances and other benefits, is affirmed, provided he has not yetreached the age of compulsory retirement from the government service; otherwise, heshall be entitled to back salaries, allowances and other benefits only up to the time heshould handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion forreconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed

the present petition, now the subject of this review.

We find no error in the pronouncements of the Intermediate Appellate Court. We rule infavor of the respondents.

From the arguments, it is easy to see why the petitioner should experience difficulty inunderstanding the situation. Private respondent had been extended several "ad-interim"appointments which petitioner mistakenly understands as appointments temporary innature. Perhaps, it is the literal translation of the word "ad interim" which creates suchbelief. The term is defined by Black to mean "in the meantime" or for the time being,Thus, an officerad interim is one appointed to fill a vacancy, or to discharge the duties

of the office during the absence or temporary incapacity of its regular incumbent(Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning northe use intended in the context of Philippine law. In referring to Dr. Esteban'sappointments, the term is not descriptive of the nature of the appointments given to him.Rather, it is used to denote the manner in which said appointments were made, that is,done by the President of the Pamantasan in the meantime, while the Board of Regents,which is originally vested by the University Charter with the power of appointment, isunable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):


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... an ad interim appointment is one made in pursuance of paragraph (4), section 10,Article VII of the Constitution, which provides that the President shall have the power tomake appointments during the recess of the Congress, but such appointments shall beeffective only until disapproval by the Commission on Appointments or until the nextadjournment of the Congress.' lt is an appointment permanent in nature, and thecircumstance that it is subject to confirmation by the Commission on Appointments doesnot alter its permanent character. An ad interim appointment is disapproved certainly fora reason other than that its provisional period has expired. Said appointment is of coursedistinguishable from an 'acting' appointment which is merely temporary, good untilanother permanent appointment is issued.

Not only is the appointment in question an ad interim appointment, but the same is alsoa confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973, thePamantasan Board of Regents verified respondent Esteban's appointment withoutcondition nor limitation as to tenure. As of that moment, it became a regular andpermanent appointment.

In other words, if the Board of Regents is in session, the Pamantasan President merely

nominates while the Board issues the appointment. But when the Board is not insession, the President is authorized to issue ad interim appointments. Suchappointments are permanent but their terms are only until the Board disapproves them.If confirmed, the appointee's term is converted into the regular term inherent in theposition.

Petitioner centers its arguments and tries to fix the attention of the court to the fact thatall notices of appointments, renewals, and confirmation thereof all declare the same tobe temporary, carrying fixed commencement and termination dates, "unless soonerterminated." As expressed by public respondent, "... This stubborn insistence isanchored on the notifications of temporary appointment sent to private respondent

Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctlyso argued. "In case of conflict between a notification issued by the Secretary of theUniversity which is supposed to reflect the true content of a Board Resolution and theResolution itself of said Board of Regents of said University, the latter is controlling forobvious reasons. The Secretary of the University has no authority to alter or addsomething which is not provided for in the Resolution of the Board of Regents ...". Thus,respondent Intermediate Appellate Court held:

The permanent nature of appellant's appointment was not altered or diminished by themisleading 'notifications' which were sent to him by the secretary of the universitypresident, referring to his appointment as 'temporary', nor by his uninformed acceptance

thereof without knowledge of the true contents of Resolution No. 485 which the universitypresident appears to have studiously suppressed.

There is nothing in the Pamantasan Board of Regents' Resolution No. 485 whichsuggests that respondent Esteban's appointment was temporary. The Board's actionwas to confirm or reject an existing ad interim appointment. If respondent's appointmentwas intended to be temporary, it should have been expressly stated. It cannot be madeto rest on inconclusive evidence, specially because a temporary appointment divests


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the temporary appointee of the constitutional security of tenure against removal withoutcause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited inCortez v. Bartolome, 100 SCRA 1).

Further supporting private respondent's stand is the list of permanent personnel which

was submitted to the Commission by the university president herself on March 3, 1975for recognition of their permanent status by the Commission. The appellant's name wasthe first in that list (Exhibit 8-B). The permanent status of private respondent'sappointment as Vice-President for Administration at Pamantasan was recognized by theCivil Service Commission in its lst Indorsement dated April 18, 1975 upon the request ofpetitioner. This fact is borne out by the records and the evidence and found as such bythe Intermediate Appellate Court, the Civil Service Commission as well as the Court ofFirst Instance.

From the foregoing, there appears an intention to deprive private respondent of hisrights as a permanent appointee. With strained relations and differences in professional

opinion between the private respondent and the Pamantasan President, Dr. Estebanwas led to believe that his services were terminable at pleasure.

The power to appoint is, in essence, discretionary. The appointing power has the rightof choice which he may exercise freely according to his judgment, deciding for himselfwho is best qualified among those who have the necessary qualifications andeligibilities. lt is a prerogative of the appointing power that may be availed of withoutliability, provided however, that it is exercised in good faith for the advancement of theemployer's interest and not for the purpose of defeating or circumventing the rights ofthe employees under special laws or under valid agreements, and provided further, thatsuch prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or

wanton manner, or out of malice or spite (Government Service and Insurance System v.Ayroso 96 SCRA 213). The general rule is that the power of appointment must remainunhampered by judicial intervention. However, when the law is violated or when there isgrave abuse of discretion, we have to step in. Otherwise the situation aptly described bynewspaperman Jesus Bigornia would exist as he had written:

... With the sword of Damocles hanging over the heads of faculty members, the universityhas spawned a meek, spineless, even subservient corps of professors and instructors.(Newsman's Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private respondent's services by petitioner.With his appointment now settled as permanent., the Civil Service law and the

Constitution guarantee private respondent's security of tenure as 'No officer or employein the Civil Service shall be suspended or dismissed except for cause as provided bylaw" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed tosubstantiate its allegations of incompetence against respondent Esteban whose recordof government service appears quite impressive. Esteban was not dimissed for causeafter proper proceedings. His appointment was terminated on the ground that it wastemporary.


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The intermediate Appellate Court ordered the payment of full back salaries to Dr.Esteban provided he has not reached the age of compulsory retirement from thegovernment service.

It is not clear from the records as to when Dr. Esteban actually ceased working for

Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefitsduring the period that he was actually reporting for work and rendering services inwhatever capacity, whether teaching, research or administration. As of backwages, theamount is generally based on the equivalent of three years' earnings (Philippine

Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular LifeAssurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In linewith the policy adopted by this Court to do away with the attendant delay in awardingbackwages because of the extended hearings necessary to prove the earnings,elsewhere of each and every employee (Philippine Airlines, Inc. v. National LaborRelations Commission, supra, citing Mercury Drug Co., Inc. v. Court of IndustrialRelations, 56 SCRA 694), the formula for computing the same calls for fixing the award

of backwages to three years. However, in Dy Keh Beng v. International Labor andMarine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of IndustrialRelations, 56 SCRA 694, 712), we held the amount of backwages to be "subject todeduction whre there are mitigating circumstances in favor of the employer, but subjectto increase whree there are aggravating circumstances. (Tupas Local Chapter No. 979,et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November5,\1985; Progressive Development Corporation v. Progressive Employees' Union, 80SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpasedfrom the date respondent Esteban as to the true nature of his appointment and"studiously suppressing" material data to effectively deprive the latter of his rights as apermanent employee, we find an award of five (5) years backpay to respondent Dr.Esteban just and equitable under the circumstances, assuming he has not reachedretirement age in the meantime.

WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack ofmerit. The decision appealed from is affirmed subject to the modification in the paymentof back salaries as stated above.

SO ORDERED.

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,vs.CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.


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CRUZ, J .:Stripped of irrelevant details and impertinent incidents that have cluttered the

voluminous record, the facts of this case may be briefly narrated as follows:

The petitioner was appointed Administrative Officer 11, Office of the City Mayor, CebuCity, by Mayor Florentino Solon on February 18, 1983. 1 The appointment wasdescribed as permanent" but the Civil Service Commission approved it as "temporary,"subject to the final action taken in the protest filed by the private respondent andanother employee, and provided "there (was) no pending administrative case againstthe appointee, no pending protest against the appointment nor any decision bycompetent authority that will adversely affect the approval of the appointment." 2OnMarch 22, 1984, after protracted hearings the legality of which does not have to bedecided here, the Civil Service Commission found the private respondent better

qualified than the petitioner for the contested position and, accordingly, directed "thatFelicula Tuozo be appointed to the position of Administrative Officer 11 in theAdministrative Division, Cebu City, in place of Felimon Luego whose appointment asAdministrative Officer II is hereby revoked." 3 The private respondent was so appointedon June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invokinghis earlier permanent appointment, is now before us to question that order and theprivate respondent's title.

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove apermanent appointment on the ground that another person is better qualified than theappointee and, on the basis of this finding, order his replacement by the latter?

The Solicitor General, rather than face the question squarely, says the petitioner couldbe validly replaced in the instant case because his appointment was temporary andtherefore could be withdrawn at will, with or without cause. Having accepted such anappointment, it is argued, the petitioner waived his security of tenure and consequentlyran the risk of an abrupt separation from his office without violation of the Constitution. 5While the principle is correct, and we have applied it many times, 6 it is not correctlyapplied in this case. The argument begs the question. The appointment of the petitionerwas not temporary but permanent and was therefore protected by Constitution. Theappointing authority indicated that it was permanent, as he had the right to do so, and it

was not for the respondent Civil Service Commission to reverse him and call ittemporary.

The stamping of the words "APPROVED as TEMPORARY" did not change thecharacter of the appointment, which was clearly described as "Permanent" in the spaceprovided for in Civil Service Form No. 33, dated February 18, 1983. 7 What wastemporary was the approval of the appointment, not the appointment it sell And whatmade the approvaltemporary was the fact that it was made to depend on the condition


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specified therein and on the verification of the qualifications of the appointee to theposition.

The Civil Service Commission is not empowered to determine the kind or nature of theappointment extended by the appointing officer, its authority being limited to approving

or reviewing the appointment in the light of the requirements of the Civil Service Law.When the appointee is qualified and authorizing the other legal requirements aresatisfied, the Commission has no choice but to attest to the appointment in accordancewith the Civil Service Laws.

As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies inthe official vested by law with the appointing power and not the Civil Service Commission.The Commissioner of Civil Service is not empowered to determine the kind or nature ofthe appointment extended by the appointing officer. When the appointee is qualified, asin this case, the Commissioner of Civil Service has no choice but to attest to the

appointment. Under the Civil Service Law, Presidential Decree No. 807, theCommissioner is not authorized to curtail the discretion of the appointing official on thenature or kind of the appointment to be extended.

8

Indeed, the approval is more appropriately called an attestation, that is, of the fact thatthe appointee is qualified for the position to which he has been named. As we haverepeatedly held, such attestation is required of the Commissioner of Civil Service merelyas a check to assure compliance with Civil Service Laws. 9

Appointment is an essentially discretionary power and must be performed by the officerin which it is vested according to his best lights, the only condition being that theappointee should possess the qualifications required by law. If he does, then the

appointment cannot be faulted on the ground that there are others better qualified whoshould have been preferred. This is a political question involving considerations ofwisdom which only the appointing authority can decide.

It is different where the Constitution or the law subjects the appointment to the approvalof another officer or body, like the Commission on Appointments under 1935Constitution. 10 Appointments made by the President of the Philippines had to beconfirmed by that body and could not be issued or were invalidated without suchconfirmation. In fact, confirmation by the Commission on Appointments was thenconsidered part of the appointing process, which was held complete only after suchconfirmation. 11

Moreover, the Commission on Appointments could review the wisdom of theappointment and had the power to refuse to concur with it even if the President's choicepossessed all the qualifications prescribed by law. No similar arrangement is providedfor in the Civil Service Decree. On the contrary, the Civil Service Commission is limitedonly to the non-discretionary authority of determining whether or not the personappointed meets all the required conditions laid down by the law.


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It is understandable if one is likely to be misled by the language of Section 9(h) of ArticleV of the Civil Service Decree because it says the Commission has the power to"approve" and "disapprove" appointments. Thus, it is provided therein that theCommission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional topositions in the civilservice, except those presidential appointees, members of the Armed Forces of thePhilippines, police forces, firemen, and jailguards, and disapprove those where theappointees do not possess appropriate eligibility or required qualifications. (emphasissupplied)

However, a full reading of the provision, especially of the underscored parts, will make itclear that all the Commission is actually allowed to do is check whether or not theappointee possesses the appropriate civil service eligibility or the required qualifications.If he does, his appointment is approved; if not, it is disapproved. No other criterion ispermitted by law to be employed by the Commission when it acts on--or as the Decreesays, "approves" or "disapproves" an appointment made by the proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitionerand the private respondent were qualified for the position in controversy. 12Thatrecognition alone rendered it functus officio in the case and prevented it from actingfurther thereon except to affirm the validity of the petitioner's appointment. To be sure, ithad no authority to revoke the said appointment simply because it believed that theprivate respondent was better qualified for that would have constituted anencroachment on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probablyapplying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and

Policies, which provides that "whenever there are two or more employees who are next-in-rank, preference shall be given to the employee who is most competent and qualifiedand who has the appropriate civil service eligibility." This rule is inapplicable, however,because neither of the claimants is next in rank. Moreover, the next-in-rank rule is notabsolute as the Civil Service Decree allows vacancies to be filled by transfer of presentemployees, reinstatement, re-employment, or appointment of outsiders who have theappropriate eligibility. 13

There are apparently no political overtones in this case, which looks to be an honestcontention between two public functionaries who each sincerely claims to be entitled tothe position in dispute. This is gratifying for politics should never be permitted to

interfere in the apolitical organization of the Civil Service, which is supposed to serve allthe people regardless of partisan considerations. This political detachment will beimpaired if the security of tenure clause in the Constitution is emasculated andappointments in the Civil Service are revoked and changed at will to suit the motivationsand even the fancies of whatever party may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service datedMarch 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the


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office in dispute by virtue of his permanent appointment thereto dated February 18,1983. No costs.

SO ORDERED.

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner,vs.SERGIO OSMEA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OFCEBU, CITY TREASURER AND CITY AUDITOR, respondents.

Basilio E. Duaban for petitioner.

DAVIDE, JR., J .:p

This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28December 1965 in Civil Case No. R-8778, dismissing the petition forMandamus filed on9 March 1965 by petitioner to compel respondents to reinstate him to his former positionas driver, Motorized Section of the Cebu City Police Department (CPD), with backsalaries from the date of his ouster until reinstatement, and to pay him moral andexemplary damages and attorney's fees. 2The material operative facts in this case, as admitted by the parties in the stipulation offacts they submitted in the court below and as established by the other evidence

introduced by them pursuant to the reservations they made in the stipulation of facts areas follows:

I. Per stipulation of facts: 31. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, RamonDuterte, as driver, Motorized Division of the Cebu Police Department, with a yearlycompensation of P1,440.00, as shown by a true copy of his appointment hereto attachedand marked Annex "A";

2. On January 8, 1960, petitioner was issued another appointment as "driver" of the CebuPolice Department, at an increased yearly compensation at P1,560.00, a true copy ofwhich is hereto attached and marked Annex "A-1";

3 On December 21, 1961, petitioner was issued another appointment by then Cebu CityMayor Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department atthe increased yearly compensation of P1,920.00 a true copy of which is hereto attachedand marked as Annex "A-2";

4. On November 7, 1963, petitioner was extended an appointment as "driver (RadioPatrol) Civilian Employee" of the Cebu Police Department at the increased yearlycompensation of P2,040.00, true copy of which is marked as Annex "A-3";


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5 On April 14, 1964, petitioner was removed from his position in the Cebu PoliceDepartment without prior investigation or hearing, the termination having been made in aletter of dismissal quoted as follows:

REPUBLIC OF THE PHILIPPINES

CITY OF CEBU

Office of the Mayor

Mr. Deogracias A. Regis, Jr.

Driver, Cebu Police Department

Cebu City

Sir:

There being no more need for your service as Driver in the Cebu Police Department, yourprovisional appointment thereto is hereby terminated effective April 16, 1964. Please turnover any government property that may have been issued to you to the proper propertycustodian and have yourself cleared of any accountability during the period of yourservice.


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6. Petitioner is a civil service eligible, having passed the patrolman and/or detective(qualified) civil service examination on July 20, 1963 with a rating of 76.85% as shown inthe attached copy of "Report of Ratings" marked Annex "B";

7. Petitioner is a fourth year student in the College of Liberal Arts in the University of theVisayas as shown by the attached certification marked Annex "C";

8. The position of the petitioner, after his removal, was filled up by the respondent CityMayor with the appointment of Eduardo Gabiana, a non-civil service eligible as shown inhis appointment hereto attached and marked Annex "D";

9. On August 20, 1964, after his removal, the petitioner addressed similarly wordedletters to the President of the Philippines and the Civil Service Commissioner, heretoattached as Annexes "E" and "E-1", protesting and appealing his unlawful removal anddemanding his reinstatement. Under date of September 4, 1964, the Executive Secretary

to the President indorsed the above-mentioned letter to the Commissioner of CivilService, as shown in the first indorsement hereto attached as Annex "E-2". Since thefiling of the instant action, the petitioner has not been afforded the relief of reinstatementby either the Office of the President of the Philippines or by the Civil ServiceCommissioner.

Parties, however, will submit evidence to establish facts not herein stipulated.

Cebu City, August 20, 1965.

(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN

(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN

Attorney for the Assistant City Fiscal

Petitioner Counsel for the

2nd Floor, Aboitiz Respondents

Building Cebu City


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Magallanes corner

Jakosalem

Cebu City

II. Per additional evidence formally adduced during the hearing:

10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964,a photostatic of which was filed, for record purposes, with the clerk in charge of therecord section of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating is88%, the highest among the drivers of the CPD he is the only civil service eligible amongthe drivers in the CPD; after his ouster, the City of Cebu created positions of drivers; andhe attributed his ouster to politics, alleging that he was being suspected as a supporter ofthe faction of then Congressman Durano, the political rival of respondent Mayor Osmea;4

and11. The records of the Regional Office of the Civil Service Commission in Cebu City donot show that petitioner possesses any civil service eligibility at the time he wasappointed as driver. 5

This Court further observes that the actions of the Civil Service Commission on theappointments of petitioner admitted in the Stipulation of Facts and attached thereto as

Annexes "A", "A-1", "A-2" and "A-3" were as follows:

1. Appointment dated 8 January 1958Noted as temporarypendingreceipt of the required medical certificate, subject to availability of fundsand provided that there is no pending administrative or criminal caseagainst appointee and that the separation of the former incumbent is inorder;

2. Appointment dated 8 January 1960Approved under Section 24(c) orR.A. No. 2260as an exception to Section 256 of the Revised

Administrative Code, and subject to availability of funds;

3. Appointment dated 21 December 1961Approvedunder Section24(c) of R.A. No. 2260, subject to availability of funds and as exceptionalcase under Sec. 256 of the Revised Administrative Code, provided thereis no pending administrative or criminal case against the appointee andprovided that his efficiency rating for the semester ending 6-30-61 is notbelow 85%; and

4. Appointment dated 7 November 1963Approved under Section 24(c)of R.A. No. 2260, subject to availability of funds and subject to Section 20of R.A. No. 2260, provided there is no pending administrative or criminalcase against the appointee.

The last three appointments were for salary adjustments.


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In its Decision of 28 December 1965, the court below dismissed the petition on theground that petitioner's questioned appointment was temporary in nature and, therefore,terminable at the pleasure of the appointing power. Expounding on this, it says:

xxx xxx xxx

As for the first issue the answer is that his status at the time of his ouster on April 16,1964 was that of temporary driver of the CPD. His appointments on January 8, 1958,January 8, 1960, December 21, 1961 and on November 7, 1963 were all temporary innature. It is true that on March 5, 1964 the Civil Service Commission certified to hishaving passed the patrolman/detective civil service examination with a rating of 75.85%,but said examination is not intended for or appropriate to, the position of driver; hence, itdid not convert his temporary status of driver to a permanent one. (Sec. 8, Rule IV, CivilService Rules.) Then again, the mere certification of the Civil Service Commission of hiscivil service eligibility for patrolman/detective did not amount to his appointment. Theappointing power, the City Mayor, has the right of choice which he may exercise freelyaccording to his judgment, deciding for himself who is best qualified for any competitiveposition in the Civil Service. The Civil Service Commission does not ensure anyappointment; it only certifies an eligible to be possessed of the qualification, as required

for a position classified under its rules. (Jimenez vs. General Francisco, etc., et al., G.R.No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.)

The appointment of the petitioner being temporary or provisional in nature, the duration oftemporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After theexpiration of said period, petitioner could have been removed at will by the appointmentpower; his continuance thereafter as a temporary employee was only an extension ofgrace. (Jimenez vs. General Francisco, etc., et al., supra.)

Temporary appointment is similar to one made in an acting capacity, the essence ofwhich lies in its temporary character and its terminability at pleasure by the appointingpower. And one who bears such an appointment cannot complain if it is terminated at amoment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G.Dec. 8, 1958, p. 8063.) 6

Hence, this appeal.

In his Brief petitioner assigns only one error: The court a quo erred in dismissing hispetition. 7In support thereof he argues that his removal on the ground that there was "no moreneed for your service" was not real and true but a mere pretext, for after his ouster oneEduardo Gabiana, a non-civil service eligible, was appointed to the vacated position andin the succeeding budget of the City of Cebu more positions of driver were created; at

the time of his ouster he was already a civil service eligible, having passed thepatrolman-detective (qualifying) civil service examination given in July of 1963, andrespondents knew of this fact. Moreover, said removal was not for cause, and it wasdone without due process in violation of Section 32 of R.A. No. 2260 which providesthat 44 no officer or employee in the civil service shall be removed or suspended exceptfor cause provided by law and after due process."


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Petitioner further argues that his last appointment of 7 November 1963 was approvedunder Section 24(c) of R.A. No. 2260; therefore, it was a provisionaland not atemporaryappointment as erroneously classified by the court a quo. Republic Act No.2260 makes a distinction between provisional and temporary appointments. The formeris governed by Section 24(c) while the latter is covered by Section 24(d) thereof.

According to him, his appointment was provisional because at the time it was extendedhe was not yet a civil service eligible. He was still awaiting for the results of theexamination for patrolman-detective (qualifying) given by the Civil Service Commissionin July of 1963; however, he received his report of rating on 8 March 1963 indicatingthat he passed it; consequently, instead of dismissing him, the City Mayor should haveextended to him a permanent appointment inasmuch as he had already become a civilservice eligible. In short, he claims that his patrolman-detective eligibility is appropriateto his position considering the nature of his office prior to his removal which authorizedhim to wear the uniform and badge of a regular member of the Cebu Police Department,carry an official firearm, wear an ID as a regular member of the city police, and to makearrests.

Finally, petitioner submits that as member of the Cebu City Police at the time of hisremoval, his separation from the service could only be done under R.A. No. 557 underwhich the City Mayor can only prefer charges but cannot remove.

Respondents filed their Brief after the expiration of the reglementary period. Uponmotion of petitioner dated 29 March 1967 8 this Court ordered their brief stricken off therecord. 9We agree with the petitioner that the trial court erred in holding that his appointment istemporary in nature. Obviously, the trial court failed to appreciate the clear distinction

between a temporary appointment and a provisional appointment. It had either confusedone for the other or considered one as synonymous with the other as shown in theopening sentence of the first paragraph of the portions of the decision hereinbeforequoted wherein it categorized the appointment of petitioner as "temporary or provisionalin nature."

As correctly stated by petitioner, provisional appointments are governed by paragraph(c) of Section 24 of R.A. No. 2260 while temporary appointments are covered byparagraph (d) of said Section. For convenience We quote both paragraphs:

xxx xxx xxx

(c) Provisional appointments

A provisional appointment may be issued upon priorauthorization of the Commissioner in accordance with the provisions of the Act and therules and standards promulgated in pursuance thereto to a person who has not qualifiedin an appropriate examination but who otherwise meets the requirements for appointmentto a regular position in the competitive service, whenever a vacancy occurs and the fillingthereof is necessary in the interest of the service and there is no appropriate register ofeligibles at the time of appointment.


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(d) Temporary appointment. A person may receive a temporary appointment to aposition needed only for a limited period not exceeding six months, provided that apreference in filling such position be given to persons on appropriate eligible lists.

In Festejovs. Barreras, et al., L-25074, 27 December 1969, 10 We made a distinctionbetween a provisional appointment and temporary appointment thus:

xxx xxx xxx

There is no basis nor logic in appellants' contention that there is no difference between atemporary appointment under Section 24(d) of the Civil Service Act which reads thus:

Temporary Appointment. A person may receive a temporaryappointment to a position needed only for a limited period not exceedingsix months, provided that preference in filing such position be given topersons on appropriate eligible lists.

and a provisional appointment under Section 24(c) which says:

Provincial appointment. A provisional appointment may be issuedupon the prior authorization of the Commissioner in accordance with theprovisions of this Act and the rules and standards promulgated inpursuance thereto to a person who has not qualified in an appropriateexamination but who otherwise meets the requirements for appointmentto a regular position in the competitive service, whenever a vacancyoccurs and the filling thereof is necessary in the interest of the serviceand there is no appropriate register of eligibles at the time ofappointment.

According to appellants, "while they may be different in the degree of permanence, in thattemporary appointments are generally for and within specified periods of time, their

nature as being subject to termination by the appointing power remains the same." Suchcontention petition is untenable.

Even from a cursory reading of these two provisions, one can readily see that each ofthem contemplates an entirely different situation from the other. Indeed, as pointed out byHis Honor, the trial judge, it is contrary to the ordinary rules of legal hermeneutics toassume that the lawmakers intended these two separate provisions in a seemingly singleenumeration of categories of appointments to have the same import or significance.Whereas a temporary appointment is designed to fill "a position needed only for a limitedperiod not exceeding six months, a provisional appointment, on the other hand, isintended for the contingency that "a vacancy occurs and the filling thereof is necessary inthe interest of the service and there is no appropriate register of eligibles at the time ofappointment." In other words, the reason for extending a provisional appointment is not

because there is an occasional work or job to be done which is expected to be finished innot more than six months but because the interest of the service requires that certainwork be done or functions be performed by a regular employee, only that there is no onewith appropriate eligibility, who can be appointed to do it, hence any other eligible may beappointed to perform such work or functions in the meanwhile that a suitable eligible doesnot qualify for the position. This is clearly implied by the mandate of the provision that aprovisional appointment may be extended only to "a person who has not qualified in anappropriate examination but who otherwise meets the requirements for appointment to aregular position in the competitive service," meaning one who must anyway be a civilservice eligible. On the other hand, again, in the case of a temporary appointment, all that


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the law enjoins is that "preference in filling such position be given to persons onappropriate eligible lists." And merely giving preference, of course, presupposes thateven a non-eligible may be appointed. As a matter of fact, under this provision, even ifthe appointee has the required civil service eligibility, his appointment is still temporary,simply because such is the nature of the work to be done. The decisions cited byappellants are not in point. They all refer to temporary appointments as such. None ofthem involves a provisional appointment like the one herein in question.

InAta, et al. vs. Namocatcat, et al., L-39703, 30 October 1972, 11We further elaboratedon the distinction:

. . . A provisional appointment is one which may be issued, upon the prior authorization ofthe Commissioner of Civil Service in accordance with the provisions of the Civil ServiceLaw and the rules and standards promulgated thereunder, to a person who has notqualified in an appropriate examination but who otherwise meets the requirements forappointment to a regular position in the competitive service, whenever a vacancy occursand the filling thereof is necessary in the interest of the service and there is noappropriate register of eligibles at the time of appointment (Sec. 24(c), supra). On theother hand, a temporary appointment given to a non-civil service eligible is without a

definite tenure of office and is dependent upon the pleasure of the appointing power."(CitingCuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate, 104 Phil.131, 135).

As early as Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 We held:. . . Even in the case of those holding provisional or probationary appointments . . . theinvalidity thereof can not be declared unless it is first shown that there were appropriateeligibles at the time they were appointed . . .

In Ferrer vs. Hechanova, L-24416, 25 January 1967, 13We held:. . . A provisional appointment is good only until replacement by a civil service eligible andin no case beyond thirty (30) days from the date of receipt by the appointing officer of thecertificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs. 13 and 14, Revised CivilService Rules; Piero vs. Hechanova, supra).

In Ramos vs. Subido, L-26090, September 6, 1967, 14 We ruled:The position in question is under the classified service; Ramos accepted Ms latestappointment thereto, dated July 1, 1963, without having the requisite appropriate civilservice eligibility for said position. Accordingly, his appointment can only be deemedprovisional and good only until replacement by one holding such appropriate eligibility, inno case to extend more than thirty days from receipt of the appointing officer of the list ofeligibles (Ferrer vs. Hechanova, L-24418, January 25, 1967).

InAguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July1971, 15 We affirmed the decision of the trial court holding that provisional appointmentsunder Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by theappointing power of a list of eligibles from the Civil Service Commission.


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In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972, 16We reiterated our rulingsin Piero vs. Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido.

Accordingly, since there was no certificate of civil service eligibility received byrespondent City Mayor, the provisional appointment of petitioner remained valid and

subsisting. Prior to such receipt petitioner may only be removed for cause as providedby law under Section 32 of R.A. No. 2260. That there was "no more need" for hisservice was not a valid and lawful cause and even if it were so, it could not be availed ofin this case since, as admitted by the parties, immediately after the ouster a non-civilservice eligible was appointed to replace petitioner and more driver positions wereincluded in the succeeding budget of the City of Cebu. These facts negated thepretended basis for the dismissal. The real hidden cause was not that service of thenature and character rendered by petitioner was no longer needed, but that petitionerhad become unacceptable to the appointing authority. Petitioner testified that hisremoval was politically motivated, he was suspected of supporting the faction of Mr.Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith

and credit to this testimony considering that this point was not even alleged in thepetition.

We agree, however, with the court below that the patrolman-detective civil serviceeligibility of petitioner "is not intended for or appropriate to the position of driver; hence,it did not convert his temporary [should be, correctly,provisional] appointment of driverto a permanent one (Sec. 8, Rule IV, Civil Service Rules)."

Section 8, Rule IV of the Civil Service Rules provides:

xxx xxx xxx

Except as otherwise provided by law, eligibility in a certain examination shall serve asqualification for appointment only to the position or positions for which examination washeld and no horizontal or vertical conversion of eligibility or examination rating shall beallowed.

xxx xxx xxx

In Police Commissionvs. Lood, et al., L-34637, 24 February 1984, 17 We ruled:Under the civil service law then in force, the fact that private respondent subsequentlybecame a civil service eligible did not ipso facto render permanent the nature of histemporary appointment as to make the question moot and academic.

Although this case refers to a temporary appointment, the rule laid down equally appliesto a provisional appointment.

This matter, however, had been subsequently categorically resolved in favor of holdersof provisional appointments by R.A. No. 6040, which took effect on 4 August 1969.Section 18 thereof provides:


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. . . all provisional appointments made or appointments approved by the Civil ServiceCommission under Section 24(C) of Republic Act Numbered Two thousand two hundredsixty prior to the approval of this Act shall automatically be permanent under theprovisions of Section twenty-four (b) thereof as amended by this Act, subject to theprovisions of Section 16(h) of said Act as herein amended. (emphasis supplied).

Pursuant thereto, petitioner's provisional appointment of 7 November 1963automatically became permanent effective 4 August 1969.

We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.

He should also be granted back salaries.

However, the award for back salaries should not be from the date of his dismissal untilreinstatement. In similar cases, We limited the award for a period of five (5) years. 18In Ginson vs. Municipality of Murcia, et al., We ruled:

Considering however, the lapse of time spanning almost twenty yearssince thiscontroversy rose, and considering the probability that the petitioner might have, in theinterim, acquired a new employment, we are constrained to grant her the payment ofback salaries equivalent to five (5) years without deduction or qualification. (CitingLaganapan vs. Asedillo, supra).

We likewise order her reinstatement, subject to the condition that she has not obtainedany other employment in Murcia municipal dentist or any position for which she isqualified by reason of civil service eligibility and subject to the requisites of age andphysical fitness. . . .

As to who of the respondents should pay the back salaries, We rule that only

respondent City of Cebu should be liable therefor. Respondent City of Cebu did notoppose the dismissal of petitioner and the appointment in his stead of another whosesalaries it thereafter paid. All respondents were represented by the Assistant City Fiscalof Cebu City and interposed the same defenses. 19 Moreover, after respondent MayorOsmea vacated his office his successor, Carlos J. Cuizon, without the objection on thepart of the City of Cebu, filed a manifestation in the court below to the effect that headopted the position of his predecessor, Mayor Osmea, in respect to the course ofaction taken against petitioner20 In short, respondent City of Cebu confirmed or ratifiedthe action of the Mayor.IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the

Decision appealed from the ORDERING the respondent City of Cebu to (a) reinstatepetitioner, subject to the condition that he has not obtained any other employment, tohis position under his appointment of 7 November 1963, or to any position of equivalentrank, or for which he is qualified by reason of civil service eligibility and subject to therequisites of age and physical fitness, (b) pay petitioner back salaries, at the rate lastreceived by him, for a period of five (5) years without qualification and deduction andwith interest at the legal rate from the date of his illegal dismissal until the same shallhave been fully paid, and (c) pay the costs.


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SO ORDERED.

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitioner

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

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

CRUZ, J :pThe petitioner invokes security of tenure against his claimed removal without legalcause. The respondents assert he is not entitled to the guaranty because he is not acareer official. These are the legal issues. The facts are as follows:

Tomas D. Achacoso was appointed Administrator of the Philippine OverseasEmployment Administration on October 16, 1987, and assumed office on October 27,1987. On January 2, 1990, in compliance with a request addressed by the President ofthe Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries,Bureau Heads," and other government officials, he filed a courtesy resignation. Thiswas accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990,the Secretary of Labor requested him to turn over his office to the Deputy Administrator

as officer in-charge. In a letter dated April 19, 1990, he protested his replacement anddeclared he was not surrendering his office because his resignation was not voluntarybut filed only in obedience to the President's directive. On the same date, respondentJose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner.

Achacoso was informed thereof the following day and was again asked to vacate hisoffice. He filed a motion for reconsideration on April 23, 1990, but this was denied on

April 30, 1990. He then came to this Court for relief.

In this petition for prohibition and mandamus, this Court is asked to annul theappointment of Sarmiento and to prohibit the respondents from preventing the petitionerfrom discharging his duties as Administrator of the POEA.

Achacoso contends that he is a member of the Career Service of the Civil Service andso enjoys security of tenure, which is one of the characteristics of the Career Service asdistinguished from the Non-Career Service. 1 Claiming to have the rank ofundersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwiseknown as the Civil Service Decree, which includes in the Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary, AssistantSecretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant


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Regional Director, Chief of Department Service and other officers of equivalent rank asmay be identified by the Career Executive Service Board, all of whom are appointed bythe President.

His argument is that in view of the security of tenure enjoyed by the above-namedofficials, it was "beyond the prerogatives of the President" to require them to submit

courtesy resignations. Such courtesy resignations, even if filed, should be disregardedfor having been submitted "under duress," as otherwise the President would have thepower to remove career officials at pleasure, even for capricious reasons. In support ofthis contention, he invokes Ortiz vs. Commission on Elections, 2 where we observed that"to constitute a complete and operative act of resignation, the officer or employee mustshow a clear intention to relinquish" and that "a courtesy resignation cannot properly beinterpreted as a resignation in the legal sense for it is not necessarily a reflection of apublic official's intention to surrender his position." He concludes that as his removalwas illegal, there was no vacancy in the disputed office to which respondent Sarmientocould have been validly appointed.In his Comment, the Solicitor General concedes that the office of POEA Administrator isa career executive service position but submits that the petitioner himself is not a careerexecutive service official entitled to security of tenure. He offers the followingcertification from the Civil Service Commission to show that the petitioner did notpossess the necessary qualifications when he was appointed Administrator of thePOEA in 1987:

C E R T I F I C A T I O N

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

xxx xxx xxx

(Sgd.)ELMOR

D.JURIDI

COExecuti

ve

Director

Reference is also made to the following rules embodied in Part III, Article IV, IntegratedReorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, onthe career executive service:

c.Appointment. Appointment to appropriate classes in the Career Service shall be madeby the President from a list of career executive eligiblesrecommended by the Board.Such appointments shall be made on the basis of rank; provided that appointments to the


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higher ranks which qualify the incumbents to assignments as undersecretary and headsof the bureaus and offices and equivalent positions shall be with the confirmation of theCommission on Appointments. The President may, however, in exceptional cases,appoint any person who is not a Career Executive Service eligible, provided that suchappointee shall subsequently take the required Career Executive Service examinationand that he shall not be promoted to a higher class until he qualifies in such examination .(Emphasis supplied.)

The respondents contend that as the petitioner was not a career executive serviceeligible at the time of his appointment, he came under the exception to the above ruleand so was subject to the provision that he "shall subsequently take the required CareerExecutive Service examination and that he shall not be promoted to a higher rank untilhe qualifies in such examination." Not having taken that examination, he could not claimthat his appointment was permanent and guaranteed him security of tenure in hisposition.

It is settled that a permanent appointment can be issued only "to a person who meets allthe requirements for the position to which he is being appointed, including theappropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointmentcould be regarded only as temporary. And being so, it could be withdrawn at will by theappointing authority and "at a moment's notice," conformably to established

jurisprudence.

The Court, having considered these submissions and the additional arguments of theparties in the petitioner's Reply and the Solicitor-General's Rejoinder, must find for therespondents.

The mere fact that a position belongs to the Career Service does not automaticallyconfer security of tenure on its occupant even if he does not possess the requiredqualifications. Such right will have to depend on the nature of his appointment, which inturn depends on his eligibility or lack of it. A person who does not have the requisitequalifications for the position cannot be appointed to it in the first place or, only as anexception to the rule, may be appointed to it merely in an acting capacity in the absenceof appropriate eligibles. 3The appointment extended to him cannot be regarded aspermanent even if it may be so designated.The purpose of an acting or temporary appointment is to prevent a hiatus in thedischarge of official functions by authorizing a person to discharge the same pendingthe selection of a permanent or another appointee. 4The person named in an actingcapacity accepts the position under the condition that he shall surrender the office oncehe is called upon to do so by the appointing authority. In these circumstances, the acting appointee is separated by a method of terminatingofficial relations known in the law of public officers as expiration of the term. His term isunderstood at the outset as without any fixity and enduring at the pleasure of theappointing authority. When required to relinquish his office, he cannot complain that heis being removed in violation of his security of tenure because removal imports theseparation of the incumbent before the expiration of his term. 5This is allowed by the


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Constitution only when it is for cause as provided by law. The acting appointee isseparated precisely because his term has expired. Expiration of the term is not coveredby the constitutional provision on security of tenure.There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of office; hisemployment can be terminated at the pleasure of the appointing power, there being noneed the show that the termination is for cause.

6The petitioner contends that his appointment was really intended to be permanentbecause temporary appointments are not supposed to exceed twelve months and hewas allowed to serve in his position for more than three years. This is unacceptable.Even if that intention were assumed, it would not by itself alone make his appointmentpermanent. Such an appointment did not confer on the petitioner the appropriate civilservice eligibility he did not possess at the time he was appointed, nor did it vest himwith the right to security of tenure that is available only to permanent appointees.

The case ofLuego vs. Civil Service Commission7 is not applicable because the facts ofthat case are different. The petitioner in Luego was qualifiedand was extended a

permanentappointment that could not be withdrawn on the ground that it was merelytemporary. In the case at bar, the petitioner was not eligible and therefore could beappointed at best only in a temporary capacity. The other cases he cites, viz.Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 8Palma-Fernandez vs. De la Paz, 9and Dario vs. Mison, 10 are also not pertinent because theyalso involvedpermanentappointees who could not be removed because of theirsecurity of tenure.It should be obvious from all the above observations that the petitioner could have beenvalidly replaced even if he had not filed his courtesy resignation. We therefore do nothave to rule on its legality. Suffice it to say that it could have been a graceful way ofwithdrawing him from his office with all the formal amenities and no asperity or discord ifonly he had not chosen to contest it. But it was his right to do so, of course, although hischallenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is soordered.

G.R. No. 93711 February 25, 1991

DR. EMILY M. MAROHOMBSAR, petitioner,vs.AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao StateUniversity, and CORAZON BATARA, respondents.

Pedro Q. Quadra for petitioner.


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Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.

GUTIERREZ, JR., J .:pThe issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who wasappointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University(MSU) Marawi Campus by the respondent President may be removed from office evenwithout cause.

On March 22, 1988, the petitioner was designated as officer-in-charge of the Office ofthe Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity withher position then as Vice-President for External Studies.

On January 2, 1989, the Office of the Vice-President for External Studies was merged

with the OVCAA and, as such, the functions of the former were to be exercised by thelatter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on thesame day. The Board of Regents of the MSU, on May 16, 1989, approved herappointment as acting Vice-Chancellor for Academic Affairs.

On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitionerinforming her that he has decided to tap the petitioner's talent for the MSU system asVice-President for Academic Affairs which position is under the administrative staff ofthe respondent MSU President. The petitioner, on the same date, answered that shecannot accept the position since she has already started several projects in the OVCAAwhich she wants to see through.

The respondent President, on May 16, 1990, designated Professor Macacuna Moslemas Vice-Chancellor for Academic Affairs but the latter did not accept the designation. OnMay 28, 1990, the respondent President issued Special Order No. 158-P designatingProfessor Corazon Batara, the other respondent in this case, as Officer-in-Charge of theOVCAA.

The petitioner now comes to this Court assailing her removal as Vice-Chancellor by therespondent President.

On June 21, 1990, the Court issued a temporary restraining order directing the

respondents to cease and desist from enforcing and/or implementing Special Order No.159-P and from interfering and/or preventing the petitioner from performing her dutiesas Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus.

On November 19, 1990, the petitioner filed a motion to cite respondent Alonto forcontempt, alleging that said respondent, in violation of the temporary restraining orderissued by this Court submitted Special Order No. 158-P to the MSU Board of Regentsfor approval.


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The petitioner asserts that her appointment being permanent, she can be removed onlyafter hearing and for cause.

Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989,reads as follows:

RESOLVED, that upon recommendation of the President of the University of theExecutive Committee of the Board of Regents the following Special Orders asamended/corrected are hereby confirmed:

A. DESIGNATIONS

A.1 Major designations

xxx xxx xxx

9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as ActingVice Chancellor for Academic Affairs, MSU Marawi Campus, with an honorarium in

accordance with the approved policies of the University, subject to accounting andauditing rules and regulations, effective January 2, 1989 and shall remain in force untilrevoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied)

It may be noted that the special order confirmed by the Board of Regents specificallydesignated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fideappointment in an acting capacity is essentially temporary and revocable in characterand the holder of such appointment may be removed anytime even without hearing orcause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955];Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v.

Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who

accepts an appointment in an acting capacity extended and received without anyprotest or reservation and who acts thereunder for a considerable time cannot later beheard to say that the appointment was, in reality, permanent and therefore there can beno removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965])

There are circumstances, however, which rule against the routine or blind application ofthe principle which governs acting appointments to this case.

The essence of an acting appointment is its temporary nature. It is a stop gap measureintended to fill an office for a limited time until a permanent appointment is extended ora new appointee is chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and

Valer v. Briones, supra)

The nature of an acting appointment limits not only the claims of the appointee to alengthy tenure but also defines the authority of the appointing power. A public officerappointed in an acting capacity cannot claim that the appointment shall in time ripen intoa permanent one. However, neither can the appointing power use the principle oftemporary appointments to evade or avoid the security of tenure principle in theConstitution and the Civil Service Law. This is similar to the rule that the head of an


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office cannot arbitrarily convert permanent positions to primarily confidential items sothat he can more freely fire and hire or rehire subordinates at his personal discretion. Itis the nature of the functions attached to a position, not the nomenclature or title givenby the appointing authority which determines its primarily confidential nature. (Piero v.Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the

true nature of an "acting" appointment to determine whether or not it is used as a deviceto circumvent the security of tenure principle.

In this case, the intent to make the petitioner serve at the pleasure of the respondentMSU President is obvious. The petitioner is a career official of MSU for over 27 years.She was Vice-President for External Studies since 1982. On March 22, 1988, she wasgiven an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellorfor Academic Affairs concurrently with the permanent position as Vice-President forExternal Studies.

About nine months later, the Vice-Presidency for External Studies was "merged" with

the Vice-Chancellorship for Academic Affairs. At the same time, the petitioner wasappointed acting Vice-Chancellor for Academic Affairs.

The effect, therefore, was to abolish the petitioner's permanent office and give her atemporary appointment in the supposedly new office which replaced or absorbed theformer office. Another result was the loss by the petitioner of her permanent status.

There are reasons which indicate that these maneuverings by the respondent Presidentcannot be characterized as bona fide.

Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:

Personnel Matters. In accordance with the policies and rules prescribed by the Board, thespecific powers of the President include the following (delegated powers)

xxx xxx xxx

22. Designation of any Dean, Director, or Department Chairman in acting capacity or anyOfficer-in-Charge for any of these positions, for a period of less than one year, suchdesignation being made without additional compensation for the position designatedexcept the honorarium attached to said position; PROVIDED, That the President shallreport the designation in the next regular meeting after winch the designation shall be nulland void unless otherwise renewed.

The power to designate is vested in the MSU President. The designation must be lessthan one year. It must be reported to the Board of Regents at the next regular meeting.

After the meeting, another designation must be issued if no permanent appointmentwas made. The earlier designation becomes void as the Board is expected to fill theitem permanently, not merely leaving it temporarily occupied.

On the other hand, the power to appoint is vested in the Board of Regents as follows:


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Sec. 6. The Board of Regents shall have the following powers and duties, in addition toits general powers of administration and the exercise of the power of the corporation;

xxx xxx xxx

(e) To appoint, on the recommendation of the President of the University, professor,

instructors, lecturers and other employees of the University. . . .

MSU Charter, RA1387

If the President merely designates, the Board of Regents does not confirm thedesignation. Since it is only for the information of the Board, the President's actionshould be merely "noted."

When the Board of Regents confirmedthe appointment of the petitioner on May 16,1989, it was acting on an ad interim appointment effected by the President. No otherinterpretation can be validly made. If it was a mere designation, it needs noconfirmation. The fact that confirmation was needed shows that it is an ad interim one.

An ad interim appointment is one made during the time when the appointing orconfirming body is not in session and there is an existing clear and present urgencycaused by an impending obstruction or paralyzation of the functions assigned to theoffice if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284[1963]) When the Vice-Presidency for External Studies was abolished and its functionswere merged with the Vice-Chancellorship for Academic Affairs, both the security oftenure of the occupant and the needs of the new office called for the ad interimappointment.

The respondent cannot use the device of an ambiguous designation to go around thesecurity of tenure principle. Under the MSU Code, a designation requires a fixed period

of not less than one year. The appointment given to the petitioner was indefinite. Shewould serve at the pleasure of the MSU President who is not even the head of theinstitution because the head is the Board of Regents.

The intent to convert permanent items into temporary ones is apparent. The petitionerstates that the purpose "is to hold the sword of Damocles hanging over the head of allMSU employees and officers." (Rollo, p. 75) The Board of Regents cooperated in theplan. Practically, all top officers below the President were converted into positionswhere the occupants serve at the pleasure of the President and presumably, the Boardof Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and NavyClub alongside the Luneta in Manila, the following acting appointments were submitted

for approval or confirmation:

1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as ActingExecutive Vice-President . . . ;

2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as ActingVice President for Academic Affairs . . . ;


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3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting AssistantVice-President for Academic Affairs . . . ;

4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting VicePresident for Planning and Development . . . ;

5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as ActingAssistant Vice President for Planning and Development . . . ;

6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the Office of the Vice-President for Administration and Finance . . . ;

7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting AssistantVice President for Administration and Finance . . . ;

8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as ActingVice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;

10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting ViceChancellor for Administration and Finance . . . ;

11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting ViceChancellor for Research and Extension . . . (Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. Theystate:

xxx xxx xxx

Finally, petitioner has not refuted the fact that the position she actually occupies is that ofProfessor VI. This is precisely the reason why petitioner's designation as Acting VCAAcan not be deemed a regular or permanent appointment because, if it were so, theanomalous situation of one permanently appointed to two public positions simultaneouslywould arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of theUniversity of the Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoysecurity of tenure and any attempt to remove them by limiting their terms of office frompermanent to a five (5) year term is unconstitutional. Deans and Directors are selectedfrom faculty members. An appointment as Professor is also needed for salary rating

purposes but does not detract from the permanent nature of the administrative position(id., at pp. 554 and 556). The fact that Professor Tapales was given anotherappointment as Director of the U.P. Conservatory of Music does not mean that thesecond appointment is only temporary in nature. In the present case, the fact thatProfessor Marohombsar has a permanent appointment as Professor does not detractfrom the permanent nature of her present appointment as Vice-Chancellor, especiallysince the same was duly confirmed by the MSU Board of Regents. The only difference


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is that her position as Vice-Chancellor has a fixed term while that of Professor Tapaleswas until he retired or resigned.

The attempt of the respondent to solve the problem by placing the petitioner in his ownadministrative staff as Vice-President for Academic Affairs cannot be countenanced.

The petitioner served in this capacity from 1975 to 1978 after which she became Vice-President for External Studies in 1982. The proffered position is not only less desirableto the petitioner but she expressly rejected it, preferring to stay in her present position.She thanked the respondent but stated she would not be effective in the new positionwhile in the OVCAA she could complete a number of projects and programs. (Rollo, p.21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v.Lopez(31 SCRA 673 [1970]). There are transfers which appear to be promotions orlateral movements but are in truth demotions. There is no showing that the interest ofthe service would be served if the proffered appointment would be forced on her.

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario

opined, and the Court agrees with him, that the petitioner may not be removed from thedisputed office by the MSU President without the authority of the Board. And, ascorrectly stated by the Secretary, Special Order No. 158-P issued by the respondentpresident designating respondent Batara as officer in-charge of the same office wasunapproved by the Board, hence, the special order cannot revoke, or could not haverevoked the designation of the petitioner as acting Vice-Chancellor. (Annex A,Petitioner's Memorandum, Rollo, pp. 119-120)

The respondent MSU President, perhaps realizing the vulnerability of his action,submitted Special Order No. 158-P to the Board of Regents for approval. But suchsubmission was made after the Court already issued its temporary restraining order and

consequently, his action constituted contempt of Court. Considering, however, that therespondent appears to have acted in the honest albeit mistaken belief that MSU wouldprogress faster if the executive officers serve at his pleasure and discretion, the Courtrules that declaring him in contempt would be too harsh a remedy. The respondentPresident is, nevertheless, admonished for his action. When this Court issues arestraining order, it must be obeyed.

WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawfuloccupant in a permanent capacity of the position of Vice-Chancellor for Academic

Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwiselawfully terminated. The motion to cite respondent Alonto for contempt is DENIED butthe respondent is admonished to faithfully heed court orders in the future. TheTemporary Restraining Order issued by this Court on June 21, 1990 is madePERMANENT.

SO ORDERED.

G.R. No. 101251 November 5, 1992


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ELISEO A. SINON, petitioner,vs.CIVIL SERVICE COMMISSION, DEPARTMENT OF AGRICULTURE-REORGANIZATION APPEALS BOARD AND JUANA BANAN, respondents.

CAMPOS, JR., J .:This petition forcertiorariseeks to annul the following Resolutions of the publicrespondents Civil Service Commission (the "CSC") * and Department of AgricultureReorganization Appeals Board (the "DARAB"), ** to wit:

1. Resolution No. 97 dated August 23, 1989, issued by respondent DARAB whichrevoked petitioner's permanent appointment as Municipal Agriculture Officer (MAO) andappointed, in his stead, private respondent Juana Banan (Rollo 17);

2. Resolution dated February 8, 1991 issued by the respondent CSC affirming theaforementioned Resolution of respondent DARAB (Rollo 22);

3. Resolution dated July 11, 1991 issued by the respondent CSC which deniedpetitioner's motion for the reconsideration of the respondent Commission's Resolutiondated February 8, 1991.

1The antecedent facts are as follows:

Prior to the reorgani

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