Embed Size (px)
Citation preview
Republic of the PhilippinesSupreme CourtManila EN BANC RUSSEL ULYSSES I.NIEVES, Petitioner, - versus - JOCELYN LB. BLANCO, in her capacity as the Regional Director, Regional Office No. V, Department of Trade and Industry, Respondent.
G.R. No. 190422 Present: CARPIO,VELASCO, JR.,*
LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ,MENDOZA,*
SERENO,REYES, andPERLAS-BERNABE, JJ. Promulgated: June 19, 2012
x----------------------------------------------------------------------------------------x
RESOLUTION
REYES, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules
of Court, seeking to annul and set aside the Decision[1] dated September 10, 2009 issued by
the Court of Appeals (CA) and the Resolution[2] dated November 24, 2009 denying the Motion
for Reconsideration thereof in CA-G.R. SP No. 102174 which reversed and set aside Resolution
Nos. 071693 and 072374 dated August 24, 2007 and December 17, 2007, respectively, of the
Civil Service Commission (CSC).
Petitioner Russel Ulysses I. Nieves (Nieves) is a regular employee of the Department of
Trade and Industry (DTI) with the position of Trade and Industry Development
Specialist. He was formerly assigned to the DTI’s office in Sorsogon (DTI-Sorsogon). On
the other hand, respondent Jocelyn LB. Blanco (Blanco) is the Regional Director of DTI
Regional Office in Region V.
On February 10, 2005, Blanco issued Regional Office Order No. 09 which directed
Nieves’ reassignment from DTI-Sorsogon to DTI’s provincial office in Albay (DTI-
Albay). Nieves appealed his reassignment to the CSC’s Regional Office in Legazpi City (CSC
Regional Office No. V) which, however, dismissed his appeal on March 18, 2005 for his failure
to comply with the requirements of an appeal. Nieves forthwith complied with the reassignment
order and reported for work at DTI-Albay.
A year after his reassignment to DTI-Albay, Nieves requested Blanco for his
reassignment back to DTI-Sorsogon. He asserted that, under Section 6(a) of the Omnibus Rules
on Appointments and other Personnel Actions, as amended by CSC Memorandum Circular No.
02-05 (Revised Rules on Reassignment), reassignment of employees with station-specific place
of work is allowed only for a maximum period of one year. Considering that more than a year
had passed since he was reassigned to DTI-Albay, Nieves claimed that Blanco was duty-bound
to reassign him back to DTI-Sorsogon.
In a letter dated May 12, 2006, Blanco denied Nieves’ request, stating that the latter’s
appointment as Trade and Industry Development Specialist in the DTI is not station specific and,
hence, the one-year period limitation with regard to reassignment of employees does not apply to
his case.
On June 21, 2006, Nieves filed a complaint with the CSC Regional Office No. V against
Blanco, alleging that the latter committed grave abuse of authority, grave misconduct and
oppression when she denied his request for reassignment back to DTI-Sorsogon. Nieves claimed
that Blanco’s refusal to reassign him back to DTI-Sorsogon was but an offshoot of the antipathy
between him and DTI-Sorsogon Provincial Director Leah Pagao (Pagao). Allegedly, Nieves had
previously filed a complaint with the Presidential Anti-Graft Commission against Pagao and, in
reprisal, Blanco reassigned him to DTI-Albay.
On July 12, 2006, Nieves’ complaint against Blanco was referred to the Office of Legal
Affairs of the CSC for appropriate action. On August 24, 2007, the CSC issued Resolution No.
071693,[3] the decretal portion of which reads:
WHEREFORE, the complaint against Jocelyn LB. Blanco, Regional
Director, Department of Trade and Industry Regional Office (DTI-RO) No. V, Legazpi City is herebyDISMISSED for lack of jurisdiction. The letter dated May 12, 2006 of Regional Director Jocelyn LB. Blanco, DTI-RO No. V, is REVERSED AND SET ASIDE. Accordingly, Russel Ulysses I. Nieves, Trade and Industry Development Specialist, DTI-RO No. V, Legazpi City, shall be reinstated to his original station in DTI-Sorsogon.
The Civil Service Commission Regional Office No. V,
Rawis, Legazpi City is directed to monitor the implementation of this Resolution and to submit a report to the Commission within fifteen (15) days from receipt of the Resolution.[4]
The CSC, invoking the provisions of Rule I, Section 5, A(4) of the Uniform Rules on
Administrative Cases, held that it does not have jurisdiction to adjudicate the charge against
Blanco for grave abuse of authority, grave misconduct and oppression, since the latter is a third
level official who is a presidential appointee.
Nevertheless, the CSC proceeded to determine the propriety of the reassignment order
issued by Blanco. The CSC pointed out that Nieves’ appointment as Trade and Industry
Development Specialist is not station-specific. Nevertheless, the CSC averred that this does not
mean that Nieves could be reassigned to DTI-Albay indefinitely. It ruled that under the Revised
Rules on Reassignment, a reassignment outside the geographical location, if without the consent
of the employee concerned, should not exceed the maximum period of one year. The CSC
explained that:
Rule III, Section 6(a) of the Omnibus Rules on Appointments and
Other Personnel Actions (Amended by CSC Memorandum Circular No. 2, series of 2005), states as follows:
x x x x
“6. Reassignment outside geographical location if with consent shall have no limit. However, if it is without consent, reassignment shall be for one (1) year only. Reassignment outside geographical location may be from one regional office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.[“]
x x x x
From the foregoing it is clear that after the lapse of one year from Nieves’ reassignment, he must be reinstated to his original assignment in DTI-Sorsogon. A perusal of his submitted appointment would show that his appointment is not station-specific. However, this shall not prevent the reinstatement of Nieves to his original station in DTI-Sorsogon. Due to the fact that Nieves was reassigned to DTI-Albay which is outside the geographical location of DTI-Sorsogon, said reassignment may only be allowed for a period of one (1) year as it was made without the consent of Nieves. Verily, after the lapse of the period of one (1) year from his reassignment, Nieves must be reinstated to his original station.[5]
Blanco filed a Motion for Partial Reconsideration of the Resolution No. 071693 but the
same was denied by the CSC in its Resolution No. 072374[6] dated December 17, 2007.
Blanco then filed a petition for review with the CA, asserting that the CSC acted without
factual and legal basis in directing the reassignment of Nieves in DTI-Sorsogon. On September
10, 2009, the CA rendered the herein assailed Decision the dispositive portion of which reads:
WHEREFORE, the petition is GRANTED. The assailed Resolutions
No. 071693 and 072374, dated August 24, 2007 and December 17, 2007, respectively, of the Civil Service Commission, with respect to the reinstatement of private respondent Russel Ulysses I. Nieves, Trade and Industry Development Specialist, to his original station in DTI-Sorsogon, are herebyREVERSED and SET ASIDE.
Petitioner’s Application for the Issuance of Temporary Restraining order
and/or Writ of Preliminary Injunction is now MOOT and ACADEMIC. SO ORDERED.[7]
In reversing the CSC’s disposition with regard to the propriety of Nieves’ reassignment
back to his original station in DTI-Sorsogon, the CA asserted that the phrase “reassignment
outside geographical location” should be confined to reassignments from one regional
office to another or from the central office to a regional office and vice-versa . Accordingly,
the CA held that Nieves’ reassignment to DTI-Albay is not affected by the one-year limitation
set forth under the Revised Rules on Reassignment since the same is within the same regional
office, i.e. from DTI-Sorsogon to DTI-Albay. Thus:
From the foregoing, it is crystal clear that a reassignment outside
geographical location is a reassignment from one regional office to another regional office or from regional office to the central office or vice versa. Since the reassignment of respondent from DTI-Sorsogon to DTI-Albay is within same regional office which is Region V, the same shall have no limit even if without his consent, as long as there is no reduction in rank status and salary.[8]
Nieves sought reconsideration[9] of the Decision dated September 10, 2009 but the same
was denied by the CA in its Resolution[10] dated November 24, 2009.
Unperturbed, Nieves instituted the instant petition for review on certiorari asserting that
a “reassignment outside geographical location” should not be restricted to a reassignment from
one regional office to another or from the regional office to the central office and vice-versa. He
insists that it should include movement from one provincial office to another because one such
office is necessarily outside the geographical location of the other. Further, he avers that the CA
should have accorded respect and finality to the CSC’s interpretation of the provisions of the
Revised Rules on Reassignment.
On the other hand, Blanco, in her Comment,[11] contends that the CA did not err when it
delimited the phrase “reassignment outside geographical location” as referring only to
reassignments from one regional office to another or from the regional office to the central office
and vice-versa. Thus, she asserts that Nieves could be reassigned anywhere within the
geographical location of Region V without his consent even for more than one year, provided
that there is no diminution in his rank, salary or status.
The petition lacks merit.
The CSC, being the central agency mandated to “prescribe, amend, and enforce rules and
regulations for carrying into effect the provisions of the Civil Service Law and other pertinent
laws,” has the power to interpret its own rules and any phrase contained in them, with its
interpretation being accorded great weight and ordinarily controls the construction of the courts.[12]
However, courts will not hesitate to set aside such executive interpretation when it is
clearly erroneous, or when there is no ambiguity in the rule, or when the language or words used
are clear and plain or readily understandable to any ordinary reader.[13] This case falls within the
exceptions.
At the crux of the instant controversy is the proper construction of the provisions of
Section 6 of the Revised Rules on Reassignment which, in part, reads:
Sec. 6. x x x
x x x x Reassignment shall be governed by the following rules:
1. These rules shall apply only to employees appointed to first and second level positions in the career and non-career services. Reassignment of third level appointees is governed by the provisions of Presidential Decree No. 1.
2. Personnel movements involving transfer or detail should not be confused
with reassignment since they are governed by separate rules.
3. Reassignment of employees with station-specific place of work indicated in their respective appointments shall be allowed only for a maximum period of one (1) year. An appointment is considered station-specific when the particular office or station where the position is located is specifically indicated on the face of the appointment paper. Station-specific appointment does not refer to a specified plantilla item number since it is used for purposes of identifying the particular position to be filled or occupied by the employee.
4. If appointment is not station-specific, the one-year maximum period
shall not apply. Thus, reassignment of employees whose appointments do not specifically indicate the particular office or place of work has no definite period unless otherwise revoked or recalled by the Head of Agency, the Civil Service Commission or a competent court.
5. If an appointment is not station-specific, reassignment to an
organizational unit within the same building or from one building to
another or contiguous to each other in one work area or compound is allowed. Organizational unit refers to sections, divisions, and departments within an organization.
6. Reassignment outside geographical location if with consent shall
have no limit. However, if it is without consent, reassignment shall be for one (1) year only. Reassignment outside geographical location may be from one Regional Office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.
7. Reassignment is presumed to be regular and made in the interest of
public service unless proven otherwise or if it constitutes constructive dismissal. x x x (Emphasis supplied)
The language of the Revised Rules on Reassignment is plain and unambiguous. The
reassignment of an employee with a station-specific place of work indicated in their
respective appointments is allowed provided that it would not exceed a maximum period of
one year. On the other hand, the reassignment of an employee whose appointment is not station-
specific has no definite period unless otherwise revoked or recalled by the Head of the Agency,
the CSC or a competent court.
Nevertheless, if the employee without a station-specific place of work is reassigned
outside the geographical location of his/her present place of work, then the following rules
apply: first, if the reassignment is with the consent of the employee concerned, then the period
of the same shall have no limit; second, if the reassignment is without the consent of the
employee concerned, then the same should not exceed the maximum period of one year.
Here, it is undisputed that Nieves’ appointment as a Trade and Industry Development
Specialist is not station-specific. Thus, the period of his reassignment to DTI-Albay is
indefinite, unless otherwise revoked or recalled by the Head of the Agency, the CSC or a
competent court. Further, since the reassignment of Nieves was within the same regional
office, i.e. from DTI-Sorsogon to DTI-Albay, the one-year period limitation does not apply.
Nieves’ insistence that a “reassignment outside geographical location” should likewise
include a reassignment from one provincial office to another provincial office is untenable.
To stress, the Revised Rules on Reassignment has defined, albeit ostensively, what
constitutes a “reassignment outside geographical location”. It states that “[r]eassignment outside
geographical location may be from one [r]egional [o]ffice x x x to another [regional office] or
from the [regional office] to the [c]entral [o]ffice x x x and vice-versa.[14] A perusal of the
foregoing would show that the Revised Rules on Reassignment has clearly confined the coverage
of the phrase “reassignment outside geographical location” to the following: (1) reassignment
from one provincial office to another; (2) reassignment from the regional office to the central
office; and (3) reassignment from the central office to the regional office.
Nieves asserts that the use of the word “may” operates to confer discretion on the part of
the CSC to consider any other reassignments as one which is outside the geographical location
and that the circumstances cited in the said provision are mere examples of reassignments
outside geographical location. We do not agree.
It is true that the use of the word “may” ordinarily operates to confer
discretion. However, this term may be construed, as it is in this case clearly intended to be, in a
mandatory and restrictive sense.[15] The said provision used the word “may” to emphasize that a
“reassignment outside geographical location” is restricted only to either reassignment from
one regional office to another regional office or a reassignment from the central office to a
regional office and vice-versa.
Moreover, if we are to follow Nieves’ assertion that the instances stated in the said
provision are merely examples, then every reassignment effected by the various offices could be
considered as a “reassignment outside geographical location” depending on the discretion of the
CSC. Surely, this is not what the Revised Rules on Reassignment intended.
Thus, Nieves’ insistence that a reassignment from one provincial office to another
provincial office within the same region should likewise be considered as a “reassignment
outside geographical location” is clearly but a foray in the dark.
Further, Nieves’ assertion that his reassignment to DTI-Albay constitutes constructive
dismissal as it caused him significant financial dislocation is also devoid of merit. This is a mere
allegation that Nieves utterly failed to substantiate. It bears stressing that a reassignment is
presumed to be regular and made in the interest of public service.[16]
Anent Nieves’ prayer for an award of moral damages, we deny the same for lack of legal
and factual bases.
All told, we find that the CA did not commit any error in ruling that the one-year
period limitation set forth in the Revised Rules on Reassignment finds no application in the
instant case.
WHEREFORE, in consideration of the foregoing disquisitions, the petition
is DENIED. The assailed Decision dated September 10, 2009 and the Resolution dated
November 24, 2009 issued by the Court of Appeals in CA-G.R. SP No. 102174
are AFFIRMED.
SO ORDERED. Republic of the PhilippinesSupreme CourtManila EN BANC VICTOR R. REYES,substituted by his heirs, CLARIBEL G. REYES, CLARISSA G. REYES,and CZARINA G. REYES, Petitioners, - versus - COURT OF APPEALS, CIVIL SERVICE COMMISSION,HON. JOSE L. ATIENZA, JR.,in his capacity as City Mayor ofManila, SENEN D. TOMADA,and HERNANDO B. GARCIA,
G.R. No. 167002 Present: CORONA, C.J.,CARPIO,VELASCO, JR.,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ,MENDOZA, SERENO, REYES, andPERLAS-BERNABE, JJ.
Respondents. Promulgated: December 12, 2011
x ---------------------------------------------------------------------------------------x D E C I S I O N
MENDOZA, J.:
This is a petition for review under Rule 45 of the Rules of Court filed by petitioner Victor
R. Reyes (Reyes) assailing the August 28, 2003 Decision[1] of the Court of Appeals (CA), in CA-
G.R. SP No. 59616, entitled “Hernando B. Garcia, petitioner, v. Senen D. Tomada, Civil Service
Commission Mayor Jose L. Atienza, Jr. in his capacity as the City Mayor of Manila,
respondents” and “Victor R. Reyes, Intervenor,” the dispositive portion of which reads: WHEREFORE, the petition is GRANTED and the assailed resolution of the Civil Service Commission is ANNULLED and SET ASIDE. The appointment of petitioner Hernando B. Garcia as Assistant City Assessor of the City of Manila is UPHELD over the claims of respondent Senen D. Tomada and intervenor Victor R. Reyes to that position. SO ORDERED.[2]
Reyes filed a motion for reconsideration but it was denied by the CA in its Resolution
dated February 2, 2005.
Hence, this petition.
THE FACTUAL ANTECEDENTS
The factual and procedural antecedents have been succinctly recited in the subject
decision of the CA as follows:
On March 26, 1998, or forty-six days before the May 11,
1998 elections, then Mayor Alfredo Lim (or “Lim”) of the City of Manila appointed Senen Tomada (or “Tomada”) as City Government Assistant Department Head III (Assistant City Assessor, or “subject position”). On the same date, Tomada’s appointment, which was indicated as ‘Transfer with Promotion,”
was submitted to the Civil Service Commission Field Office (or “CSCFO”) in Manila for consideration and approval.
Prior to her appointment, Tomada was assigned at the
Office of the City Treasurer of Manila as Local Treasury Operations Officer IV.
In a letter dated March 26, 1998, Tomada sought
clarification from the Commission on Elections (or “COMELEC”) on whether her appointment to the subject position was prohibited under Sec. 261(g) of the Omnibus Election Code. In a reply-letter dated April 2, 1998, the COMELEC opined that her appointment was valid because promotional appointments are only prohibited under said law if issued within forty-five days prior to the May 11, 1998 elections, or between March 27, 1998 and May 11, 1998.
On April 24, 1998, CSCFO head Arturo Panaligan (or
“Panaligan”) wrote to the Civil Service Commission (or “CSC”) office requesting clarification on the validity of Tomada’s appointment given the prohibition against certain personnel actions under Section 261(g) and (h), id., which reads:
“Sec. 261. Prohibited acts.—The following
shall be guilty of an election offense: x x x (g) Appointment of new employees, creation of
new position, promotion, or giving salary increases.—During the period of forty-five days before a regular election and thirty days before a special election. x x x
h) Transfers of officers and employees in the
civil service.— Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.”
The CSC-NCR, in turn, referred Panaligan’s request to the
CSC Central Office for appropriate action.
Pending action on Tomada’s appointment, however, Mayor
Jose L. Atienza, Jr. (or “Mayor Atienza”) assumed Lim’s position
upon the latter’s running for president in the May 11, 1998 elections. On July 1, 1998, Mayor Atienza, who ran for and was elected as mayor of the City of Manila in the same elections, appointed Hernando Garcia (or “Garcia”) to the subject position.
On July 28, 1998, Panaligan cancelled Tomada’s
appointment without awaiting the CSC’s reply to his April 24, 1998 letter, explaining that said appointment constituted a “transfer” which was allegedly a violation of Sec. 261(h), id. Nevertheless, Panaligan stated that his action was without prejudice to the CSC’s resolution on the matter.
Tomada sought reconsideration of the cancellation of her
appointment, per her letter dated July 29, 1998, pointing out that the CSC was yet to reply to Panaligan’s request for clarification.
On September 27, 1999, the CSC issued
Resolution No. 99, 2208 approving Tomada’s promotional appointment. The resolution pertinently reads:
“Considering, therefore, that the promotional
appointment of Tomada was issued prior to the prohibited period as provided for in the Omnibus Election Code; and considering, further, that her movement from one office to another is merely incidental to her promotion, the Commission finds such personnel action not in violation of the Omnibus Election Code and CSC Office Memorandum No. 11, s. 1998.”
On November 19, 1999, Mayor Atienza filed a petition for
reconsideration which was, however, dismissed by the CSC on May 22, 2000.
On June 7, 2000, Panaligan wrote to Mayor Atienza
requesting immediate implementation of CSC Resolution No. 99-2208 and recalling Garcia’s appointment to the subject position.
On July 11, 2000, Garcia filed the instant petition for
certiorari and quo warranto, with an application for temporary restraining order and/or preliminary injunction, ascribing grave abuse of discretion on the CSC for recalling his appointment.
Garcia maintains that he was not notified of Tomada’s appeal to the CSC and that he assumed the subject position by virtue of a valid appointment issued by Mayor Atienza which was approved on August 31, 1998 by Panaligan of the CSCFO. He argues that he cannot be removed from the subject position in the guise of a recall since the ground for his removal is not sanctioned by law.
Garcia also faults the CSC for acting on Tomada’s motion
for reconsideration even as it was not made by the proper appointing authority prescribed in CSC Memorandum Circular No. 38, Series of 1993, and Tomada did not pay the requisite docket fee. He adds that Tomada’s right to claim the subject position is barred by prescription for failure to file an action for quo warranto within one year from his (Garcia) appointment to the subject position (on July 1, 1998).
For her part, Tomada counters that Garcia’s appointment
is null and void because, at that time, the subject position was not yet vacant as the CSCFO disapproved her appointment only on July 27, 1998. In support of her argument, Tomada cites Sec. 10, Rule V of the Omnibus Rules Implementing Book V of Exec. Order No. 292 which provides that “an appointment shall remain effective until disapproved by the Commission.”
Tomada further claims superior right to the subject
position because: (i) her appointment was issued prior to that of Garcia; and (ii) the CSCFO’s disapproval of her appointment is merely conditional as shown in the notation on her appointment letter which reads, “without prejudice to whatever resolution the Commission may issue on this (appointment).”
Anent the issue of prescription, Tomada explains that she
could not immediately institute a quo warranto proceeding against Garcia pending the administrative proceedings before the CSC concerning the validity of her appointment. Tomada also points out that the CSC did not violate Garcia’s right to due process because a hearing is not required in CSC proceedings which are not disciplinary in nature.
As for Mayor Atienza, he merely adopted the arguments
raised by Garcia in his petition before this Court. Meantime, on October 12, 2000, Victor Reyes (or “Reyes”)
filed a motion for intervention in his alleged capacity as the incumbent Assistant City Assessor of Manila, which was denied
per resolution dated February 14, 2001 but later granted pursuant to the resolution dated August 7, 2002. In his answer-in-intervention, Reyes averred that former Manila Mayor Gemiliano Lopez appointed him to the subject position on August 3, 1989; that when Lim assumed office in 1992 as Manila mayor, he (Reyes) was among the officials pressured to resign from office so that Lim could appoint his own people; that those who failed to tender courtesy resignations were physically harassed or subjected to trumped-up criminal and administrative charges; that he (Reyes) himself was charged with falsification and violation of the Anti-Graft and Corrupt Practices Act; and that an administrative complaint was filed against him by a certain Amador Valdeviego.
Reyes also alleged that in light of the abovementioned
circumstances, he wrote Lim on October 1, 1993 requesting for his transfer to the Quezon City Hall and approval of his application for sick leave for two months, which requests were granted by Lim, and manifesting willingness to retire if his transfer could not be effected by December 31, 1993.
Reyes further alleged that the criminal and administrative
charges against him were dismissed but despite this development which could have allowed him to retire from the service, Lim failed to act on his application for retirement; that on March 10, 1999, Reyes wrote Mayor Atienza advising of his desire to re-assume the subject position; and that when Mayor Atienza failed to act on his request, Reyes filed with the CSC a complaint for Assumption of Office against Mayor Atienza, Garcia and the City of Manila.
On October 18, 2000, Garcia filed a reply to Tomada’s
comment alleging that her appointment has not become effective for failure to assume the subject position; that his appointment being “complete, lawful and effective,” he has superior right and title to the subject position vis-à-vis Tomada; and that the recall of his appointment amounted to his removal from office without cause and without due process.
For its part, the Office of the Solicitor General (or “OSG”)
maintains that the CSC correctly upheld the promotional appointment of Tomada. The OSG points out that CSC Resolution No. 99-2208 does not involve the imposition of an administrative disciplinary measure and, therefore, “the appointee need not be previously heard thereon;” and that the
CSC merely recalled Garcia’s appointment inasmuch as the earlier appointment of Tomada is valid.
On August 28, 2003, the CA rendered the assailed decision[3] granting the petition of
Garcia and upholding his appointment over the claims of Tomada and Reyes to the position. In
justifying its ruling, the CA wrote:
At the outset, it should be observed that Tomada’s appointment actually involved two kinds of personnel action, i.e., promotion and transfer. This is clear from the phrase “transfer with promotion” used in her appointment paper by way of describing the nature of her appointment. Tomada’s promotion did not fall within the 45-day period prior to the May 11, 1998 elections (Sec. 261[g], Omnibus Election Code). However, her transfer from the Office of the City Treasurer to the Office of the City Assessor is a different matter. Sec. 261(h) of the Omnibus Election Code prohibits “any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.” Pursuant to this provision, the CSC, through Office Memorandum (OM) No. 11, Series of 1998, issued the following guideline:
“The transfer or detail of officers and employees in the civil service, including public school teachers pursuant to Section 261(h) of the Omnibus Election Code for the period beginning January 11, 1998 (Sunday) to June 10, 1998 (Wednesday), or 120 days before election and 30 days after election, is hereby prohibited. The phrase transfer or detail shall be construed in general terms. Thus any movement of officer or employee in the civil service, including public school teachers, from one agency is prohibited and is considered an election offense.” (Underscoring supplied)
From the foregoing, it is clear that Tomada’s transfer from the Office of the City Treasurer to the Office of the City Assessor on March 26,1998, which was during the election period, contravened the express provisions of the Omnibus
Election Code and its implementing rules and regulations. Consequently, there is no legal basis for the CSC’s stance that “the movement of Tomada from one office to another in the City Government of Manila cannot be considered as ‘transfer’ as contemplated in Sec. 261(h) of the Omnibus Election Code and CSC Office Memorandum No. 11, s. 1998.” To recall, CSC OM No. 11, Series of 1998, explicitly provides that the phrase “transfer or detail” shall be construed in general terms. Hence, a transfer incidental to a promotion, as in Tomada’s case, is within the purview of the prohibition against transfers during the election period. This is as it should be in keeping with the well-entrenched rule that where the law does not distinguish, the courts should not distinguish (Guerrero vs. Commission on Elections, 336 SCRA 458). Ubi lex not distinguit nec nos distinguere debemus. In a long line of cases, it has been held that when a statute is clear and explicit, there is no need for any extended court ratiocination thereon – there is no room for interpretation, vacillation or equivocation, only for application (Caguioa vs. Lavina, 345 SCRA 49). Only when the law is ambiguous or of doubtful meaning may the court interpret or construe its true intent (Rizal Commercial Banking Corporation vs. Intermediate Appellate Court, 320 SCRA 279). Another reason why the instant petition should be granted is Tomada’s lack of standing to appeal the disapproval of her appointment to the CSC. In Mathay, Jr. vs. Civil Service Commission (312 SCRA 91), the Supreme Court ruled that only the appointing officer may ask for reconsideration of actions taken by the CSC on appointments. Thus, the CSC should have refrained from acting on Tomada’s request for reconsideration, the same not having been endorsed by Mayor Atienza, the incumbent mayor of Manila and the appointing authority at the time of disapproval of her appointment. Consequently, CSC Resolution No. 99-2208 is contrary to law and jurisprudence. On the other hand, Reyes’ answer-in-intervention deserves scant consideration. The CSC found that Reyes had effectively vacated the position of Assistant City Assessor of Manila when his application for retirement effective January 1, 1994 was approved by Lim. Having voluntarily caused his separation from the service, he may not make a turnabout and
lay claim to said office just because his retirement benefits were not released to him in due course. His failure to obtain said benefits does not affect the validity of his voluntary retirement. He may avail of remedies available under the law to compel the release of his retirement benefits, but not his reinstatement to the subject position. The only way Reyes can re-assume the subject position is by re-appointment. Having lost his standing to claim the position he previously held, the prayer in his answer-in-intervention must necessarily be denied.
Dissatisfied, Reyes seeks relief via this petition for review praying that the Court
1. set aside the assailed Decision of the Court of Appeals, dated 28 August 2003, the Resolution dated 02 February 2005 and Civil Service Commission Resolution No. 99-2208 dated September 27, 1999;
2. declare the appointments of Senen Tomada and Hernando Garcia null
and void and; 3. declare petitioner Victor [R.] Reyes as the duly constituted Assistant
City Assessor for Operation of the City of Manila; 4. order the reinstatement of Victor [R.] Reyes to the said position of
Assistant City Assessor for Operation of the City of Manila; 5. order the payment of backwages of Victor [R.] Reyes from the time he
sought assumption of his office until he is restored to his position. Other reliefs just and equitable under the premises are also prayed for.[4]
To sway the Court to his position, Reyes posits that the case be decided by resolving the
following
I S S U E S
I. WHETHER OR NOT THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE, NOT THERETOFORE DETERMINED BY THE SUPREME COURT, OR HAS DECIDED IT IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT.
II. WHETHER OR NOT THE COURT OF APPEALS HAS SO
FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS, OR SO FAR COMMITTED SUCH DEPARTURE SO AS TO CALL FOR AN EXERCISE OF THE POWER OF SUPERVISION. [5]
Garcia and the CSC filed their respective comments on the petition. Later, the City
of Manila and its City Mayor also filed their Comment.[6]
Tomada, despite notice through counsel, did not file any comment.
On September 20, 2006, Reyes passed away, leaving his heirs – Claribel G. Reyes,
Clarissa G. Reyes and Czarina G. Reyes – as substitute petitioners. Reyes, through his heirs,
filed his reply to the comments of the respondents. Thereafter, the Court directed the parties to
file their respective memoranda. In compliance, petitioner Reyes, substituted by his heirs; and
respondents Garcia, the CSC, the City of Manila and the City Mayor of Manila, filed their
respective memoranda.
THE COURT’S RULING
The CA committed no reversible error in granting the petition of Garcia and upholding the
appointment of Garcia as Assistant City Assessor of the City of Manila over the claims of
Tomada and Reyes to that position. For said reason, Reyes could not be reinstated to the position
of Assistant City Assessor for Operation and, therefore, was not entitled to backwages. Petitioner Victor R. Reyeseffectively vacated his postas of January 1, 1994
Records bear out that petitioner Reyes was the Assistant City Assessor for Operation of the
City of Manila when Mayor Lim assumed office in 1992. He claimed to be one of those
pressured to tender a courtesy resignation so that Mayor Lim could appoint his own people.
Initially, he did not oblige but later, in a letter dated October 1, 1993, he manifested his desire to
be transferred to Quezon City Hall and, if it (transfer) would not be possible, to apply for
retirement. In the meantime, he requested that his sick leave be approved. The said letter reads:HON. ALFREDO S. LIMCity MayorCity of Manila
Sir:
I would like to request for a transfer in Quezon City Hall. In order to facilitate all the necessary documents and clearances, I would like to request for an allowance of three months to process. If ever I could not transfer until December 31, 1993, then eventually, I would be applying for a retirement effective January 1, 1994. Requesting, His Honor, that the sick leave I filed for two months (August & September) be approved on the basis of the medical certificate I had submitted. Hoping for your kind consideration. Thank you very much. Very truly yours, (Signed) VICTOR R. REYES Assistant City Assessor[7]
Mayor Lim approved his request by placing a notation on the latter itself.
Following his manifestation in his October 1, 1993 letter, he never reported for work
from January 1, 1994, never resumed working and never sought reinstatement. Instead, as
averred in his petition, when Mayor Lim resigned, he worked for his retirement benefits. He was
informed, however, by City Hall officials that he had not retired because he had not filed his
formal application for retirement.[8]
Failing to receive his retirement benefits, he filed a petition for mandamus with the
Regional Trial Court of Manila to compel the City Government of Manila to approve his claim
for said benefits.[9]
In his April 8, 1994 letter addressed to Atty. Carlos C. Antonio, City Assessor of Manila,
Reyes stated, among others, that:
I would like to request for Clearances as needed for my retirement. Be informed that last October 1993, upon my request to his Honor Mayor Alfredo S. Lim approved my retirement effective January 1, 1994, including my clearances, but to my surprise the legal department of Manila filed a case which was dismissed by the Ombudsman.[10]
On March 16, 1999, Reyes also wrote to then Presidential Assistant for Appointment and
Legislative Affairs, Hon. Rolando C. Ramirez, requesting, among others, assistance for the
supposed grave injustice that the City of Manila (under Mayor Lim and Mayor Atienza) had
committed against him since 1994, depriving him of benefits due him and his family.[11]
In a letter dated April 12, 1999 addressed to then Executive Secretary Ronaldo Zamora,
Reyes averred: “x x x eventually I applied for (optional) retirement effective Jan. 1, 1994 with the necessary clearance. My letter bears the Mayor’s marginal notation ‘approved’ on October 22, 1993.”[12]
All the foregoing actions and inactions clearly manifest that Reyes voluntarily and
effectively separated himself from the service effective January 1, 1994. As of said date, his
position was deemed vacant. In the earlier case of Reyes v. Hon. Atienza,[13] it was written: Still, the vitality of Reyes’s claim of incumbency, crucial to
the cause of action in his complaint, is severely undercut by his prior statements, which are not disputed and even at times averred under oath, that indicate that starting 1994, he had considered himself as having been separated from service as Assistant City Assessor. To recapitulate, Reyes had informed the City Assessor of Manila as early as 8 April 1994 that Mayor Lim “approved my retirement effective January 1, 1994.” Reyes also averred under oath in his petition for mandamus filed in 1995 that he “retired from the service as City Assessor of Manila.” Reyes had even spent considerable energy since 1994 following up on his clearances for retirement. There is no showing that he has attempted to perform the functions of Assistant City Assessor since 1994. It is extremely disingenuous on the part of Reyes to suddenly claim that all this time, he actually still was the Assistant City Assessor, a position whose functions has since been assumed by three other persons, the appointments
of the first two never having been challenged by him. [Emphases supplied]
As he had vacated his position, the appointing power could, and did, appoint his successors
Considering that his position was deemed vacant, the appointing power could, and did,
appoint his successors. Thus, Mayor Lim made two (2) subsequent appointments to the position
of Assistant City Assessor − Angel R. Purisima (Purisima) and Tomada. Purisima was appointed
to the position on July 26, 1995, and his appointment was approved by the CSC on September
18, 1995. He resigned on October 31, 1996 and, in his stead, Mayor Lim appointed Tomada
on March 26, 1998.
As Tomada’s appointment or transfer appeared to have been made during a prohibitive
period, it was questioned on the ground that it was violative of Section 261(g) of the Omnibus
Election Code.
As there was an unresolved controversy on Tomada’s appointment, on July 1, 1998,
Mayor Atienza, who ran for and was elected as mayor of the City of Manila, appointed Garcia to
the subject position.
On July 28, 1998, Civil Service Commission Field Office (CSCFO) head, Arturo
Panaligan (Panaligan) cancelled Tomada’s appointment stating, however, that his action was
without prejudice to the CSC’s resolution on the matter. On September 27, 1999, the CSC issued
Resolution No. 99-2208 approving Tomada’s promotional appointment. OnNovember 19, 1999,
Mayor Atienza filed a petition for reconsideration which was, however, dismissed by the CSC
on May 22, 2000. On June 7, 2000, Panaligan wrote Mayor Atienza requesting the immediate
implementation of CSC Resolution No. 99-2208 and recalling Garcia’s appointment to the
subject position.
On July 11, 2000, Garcia filed the petition for certiorari and quo warranto before the CA
ascribing grave abuse of discretion on the CSC for recalling his appointment.
Notably, on October 19, 2000, the CSC-NCR issued an order dismissing the complaint of
Reyes for assumption of office, which he subsequently appealed to the CSC. The CSC then
issued Resolution No. 02-0310[14] dated February 28, 2002, wherein it stated that he was
“separated from the service through the mode of retirement effective January 1, 1994, and the
position which he formerly occupied, Assistant City Assessor of Manila, [was] deemed vacant
on said date.”[15]
Due to the unfavorable action of the CSC-NCR, he intervened in the certiorari
proceedings instituted by Garcia against Tomada in the CA.
As earlier recited, the CA upheld the appointment of Garcia as Assistant City Assessor of
the City of Manila over the claims of Tomada and Reyes to that position. In this petition, Reyes
questioned such ruling but, interestingly, Tomada never filed her comment on his petition. Hernando B. Garciaacquired a legal right tothe subject position
At this juncture, the Court resolves the issue of whether or not the CA was correct in
upholding the validity of the appointment of Garcia over the claims of Tomada and Reyes.
In this regard, the Court agrees with the CA that Tomada’s transfer from the Office of the
City Treasurer to the Office of the City Assessor was violative of Section 261(h) of the
Omnibus Election Code. Said section prohibits “any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the election period except
upon prior approval of the Commission.” In this regard, the CSC, through Office Memorandum
(OM) No. 11, Series of 1998, issued the following guideline:
The transfer or detail of officers and employees in the civil service, including public school teachers pursuant to Section 261(h) of the Omnibus Election Code for the period beginning January 11, 1998 (Sunday) to June 10, 1998 (Wednesday), or 120 days before election and 30 days after election, is hereby prohibited. The phrase transfer or detail shall be construed in general terms. Thus any movement of officer or employee in
the civil service, including public school teachers, from one agency is prohibited and is considered an election offense. [Emphasis supplied]
Another reason why the CA granted Garcia’s petition was Tomada’s lack of standing to
appeal the disapproval of her appointment to the CSC. It cited the case of Mathay, Jr. v. Civil
Service Commission[16] where it was ruled that only the appointing officer may ask for
reconsideration of actions taken by the CSC on appointments. Thus, the CA stated that CSC
should have refrained from acting on Tomada’s request for reconsideration, the same not having
been endorsed by Mayor Atienza, the incumbent mayor of Manila and the appointing authority at
the time of the disapproval of her appointment.
Moreover, as Garcia qualified, assumed office and became at that moment a government
employee or part of the civil service, he then began to enjoy the constitutional protection that
“No officer or employee in the civil service shall be removed or suspended except for cause
provided by law.”[17] He acquired a legal right to the office which is protected not only by statute
but also by the Constitution. Therefore, he could only be removed for cause, after notice and
hearing, consistent with the requirements of due process.
Here, Garcia was not accorded due process. It was only by a letter to Garcia dated June 7,
2000[18] from the CSC-GSIS Field Office that the CSC officially communicated, through Manila
City Personnel Officer Josefino Reoma, that his appointment as City Government Assistant
Department Head III (Assistant City Assessor) was recalled and that Mayor Atienza was
requested to implement CSC Resolution Nos. 992208 and 001214 approving the appointment of
Tomada. He was never given an opportunity to be heard.
As Garcia’s appointment was valid, there was no vacancy and Reyes could not ask for
reinstatement or even reappointment. A fortiori, he (or his heirs) could not demand backwages. Reyes never formally retired either
Retirement has been defined as a withdrawal from office, public station, business,
occupation, or public duty. It involves bilateral act of the parties, a voluntary agreement between
the employer and the employee whereby the latter, after reaching a certain age, agrees and/or
consents to sever his employment with the former.[19] Retirement plans create a contractual
obligation in which the promise to pay benefits is made in consideration of the continued faithful
service of the employee for the requisite period. Before a right to retirement benefits vests in an
employee, he must have met the stated conditions of eligibility with respect to the nature of
employment, age, and length of service. This is a condition precedent to his acquisition of rights
thereunder.[20]
In his October 1, 1993 letter to Mayor Lim, Reyes manifested his desire to be transferred
to Quezon City Hall and, if it would not be possible, to apply for retirement.
If ever I could not transfer until December 31, 1993, then eventually, I would be applying for a retirement effective January 1, 1994.
Despite pronouncements of the CSC and the CA to the contrary, there is no evidence that
Reyes properly took the required legal steps to effect his intention of retiring.
Reyes might have intended to retire but it is clear that he did not follow the normal
process of retirement. As stated in the letter of Mayor Lim, his intended retirement required
further action on his part to complete. Elaborating, Mayor Lim wrote that he was required to
submit a “formal application and in a prescribed form.”[21] Thus, he could not be considered
retired for all intents and purposes and reap the benefits that flow from it. The July 23,
2001 clarificatory letter of Mayor Lim reads: Dear Mr. Reyes, In respon[se] to your letter-query dated July 17, 2001 and based n your letter dated October 1, 1993 with my marginal note therein, and other related communications shown to me, I recall to have approved your signified intentions to take a vacation leave, transfer to Quezon City and/or to retire. The approval of your vacation leave took effect immediately. However, the same marginal note of approval to my understanding did not automatically result to transfer or retirement. The intended transfer and/or retirement were termed in future tense and requires further action on your part to complete. x x x. Both instance requires formal application and in a prescribed form. Transfer to Quezon City requires formal endorsement to
the Mayor of Quezon City, to which I do not recall having made any. On the other hand, your application for retirement you claim to have filed did not reach my office. I do not recall having signed your formal retirement application. I hope that this clarification will help all concerned in resolving whatever petition you filed with the Civil Service Commission. (Signed) ALFREDO S. LIM Former City Mayor of Manila[22]
Thus, when he tried to work for his retirement benefits, he was advised by City Hall
officials that he was not entitled to them because he had not filed his formal application for
retirement.[23] Despite the same, he did not file any application. Instead, he filed a petition for
mandamus with the RTC to compel the City Government of Manila to grant his application for
retirement.[24] As earlier stated, on March 16, 1999, he also wrote then Presidential Assistant for
Appointment and Legislative Affairs, Hon. Rolando C. Ramirez, requesting assistance. [25]
Interestingly, in the earlier case, Reyes v. Hon. Atienza,[26] the Court refrained from
concluding that the legal processes pertaining to his retirement were observed since there was
uncertainty as to whether Reyes indeed retired. Indeed the record is bereft of any proof that
Reyes had indeed retired. Hence, the Court holds that he was not retired but was considered
separated from service effective January 1, 1994 and that the legal processes pertaining to his
retirement were not complied with. Pertinently, in the earlier Reyes case,[27] it was written:
x x x. Yet it is clear from the letter that the option of retirement was not actually exercised then, but merely mentioned as a possibility, requiring further action on the part of Reyes. What Reyes had sought approval in the said letter was his application for sick leave and it was only such sick leave, and not retirement, which was approved by then Mayor Lim in October of 1993.
In essence, if indeed Reyes had applied for retirement or
submitted his resignation following the normal processes, it
would have been easy for respondents to present the countervailing documents which would have conclusively refuted Reyes’s claims that he still was the incumbent Assistant City Assessor. The fact that no such documents were presented makes us refrain from concluding that the legal processes pertaining to resignation or retirement were observed in this case. [Emphases supplied]
In fine, Reyes had already vacated his post as of January 1, 1994, not by way of
retirement for failure to show compliance with the existing retirement requirements and
procedures, but by voluntary separation from the service. His intended retirement was not duly
processed because he failed to comply with the formal requirements of retirement. Having
voluntarily initiated his separation from the service, he could not be allowed to make a turnabout
and press claim to the subject office just because the supposed benefits due him were not
released to him in due time due to his own neglect.
As he had already passed away, the only remedy left for his heirs is to properly apply for
separation or retirement and claim the benefits from the proper office, if warranted.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. 179255 April 2, 2009
NATIONAL TRANSMISSION CORPORATION, Petitioner, vs.VENUSTO D. HAMOY, JR., Respondent.
D E C I S I O N
TINGA, J.:
This treats of the petition for review of the decision1 and resolution2 of the Court of Appeals dated 30 May 2007 and 7 August 2007, respectively, in CA-G.R. SP No. 96837 entitled, Venusto D. Hamoy, Jr. v. National Transmission Corporation & Civil Service Commission, ordering the immediate return of Venusto Hamoy, Jr. to his original position as Vice-President for VisMin Operations & Maintenance.
The antecedents follow.
The National Transmission Corporation (petitioner), through Resolution No. TC 2003-0073 dated 5 February 2003, appointed Venusto D. Hamoy, Jr. (respondent) as Vice President under Item No. 700010-CY2003 VisMin Operations & Maintenance. Accordingly, petitioner’s President and Chief Executive Officer (CEO) Alan Ortiz (Ortiz) issued on 1 March 2003 Civil Service Commission (CSC) Form No. 33 which states that respondent has been appointed "(VICE-PRESIDENT JG-18) VICE-PRESIDENT SG-28 with PERMANENT (status) at the National Transmission Corporation."4 Respondent assumed his duties on 1 March 2003.
On 19 January 2004, Ortiz issued Office Order No. 2004-173 detailing respondent to petitioner’s Power Center-Diliman, "under the Office of the President and CEO, to handle Special Projects."5 Office Order No. 2004-173 was later amended by Office Order No. 2004-12296 under which Ortiz assigned respondent additional duties of providing "over-all supervision, monitoring and control of all activities related to the sale of petitioner’s sub-transmission assets and placed under his supervision certain personnel of the Sub-Transmission Divestment Department.
In a memorandum dated 24 January 2005 from petitioner’s Human Resources Department, respondent was notified of the impending expiration of the temporary appointment of some of petitioner’s key officials and the fact that he was being considered for one of the positions to be vacated.7 Yet on 15 February 2005, Office Order No. 2005-0256 was issued designating respondent as Officer-In-Charge (OIC) of the Power Systems Reliability Group (PSRG), concurrent with his duties as Vice President for Special Projects.8
On 16 February 2005, respondent wrote Ortiz, asking that he be returned to his original assignment as Vice President of VisMin Operations & Maintenance. He reasoned that his detail under Office Orders No. 2004-173 and No. 2004-1229 already exceeded one (1) year, and that his designation under Office Order No. 2005-0256 violated Section 2 of CSC Memorandum Circular No. 21, s. 2002 because he did not give his consent thereto.9However, on the same date, Office Order No. 2005-0284 was issued superseding Office Order No. 2004-173 and amending Office Order No. 2005-0256, the
latter order stating that respondent was designated as OIC of the Power Systems Reliability Group (PSRG).10Respondent was thus constrained to write another letter to Ortiz, requesting reconsideration of Office Order No. 2005-0284 and reiterating the reasons he cited in his previous letter.11
On 1 March 2005, Ortiz issued a memorandum informing respondent that his detail to the President’s Office was no longer in effect and, in view of the vacancy created by the expiration of the temporary appointment of the Vice President of the PSRG, respondent was designated as its OIC. He further stated that the matter of reassignment would be formally raised at the Board meeting and, should the Board confirm it, a corresponding Office Order would be issued reassigning respondent as head of the PSRG.12 On 27 April 2005, the Board issued Resolution No. TC 2005-018,13 approving and confirming respondent’s reassignment to PSRG, and announcing the opening of selection for the position of Vice President for VisMin Operations & Maintenance.
Respondent appealed to the CSC, praying for the annulment of Resolution No. TC 2005-018 and Office Order No. 2005-0284 on the ground that the reassignment violated his security of tenure. 14
In Resolution No. 061030 dated 8 June 2006,15 the CSC denied respondent’s appeal. It found that respondent failed to show that his reassignment was tainted with abuse of discretion. According to the CSC, the position to which respondent was appointed was classified as a third-level position, which was not station-specific, and thus he could be reassigned or transferred from one organizational unit to another within the same agency, without violating his right to security of tenure.16 Moreover, the CSC ruled that his detail did not exceed the one-year period, as it was superseded initially by his reassignment; and that his designation and reassignment had both been done to meet the needs of the company, without making him suffer reduction in salary status and rank. Respondent sought reconsideration of the decision, but his motion was denied by the CSC through Resolution No. 061840 promulgated on 16 October 2006.17
Respondent brought the matter to the Court of Appeals (CA) which disagreed with the findings of the CSC. Citing the Administrative Code,18 Home Insurance Guaranty Corporation v. Civil Service Commission,19 and Office of the Ombudsman v. Civil Service Commission,20 the Court of Appeals held that only presidential appointees belong to the third-level or career executive service. Thus, respondent, having been appointed by petitioner’s president and not the President of the Philippines, occupies a second- level position only.21 The appellate court also ruled that respondent’s position was station-specific, despite the absence of a place of assignment in CSC Form No. 33, since the said form specifically referred to petitioner’s Board Resolution No. TC 2003-2007, which indicated that his appointment is to the position of Vice President under "Item No. 700010-VisMin Operations & Maintenance." The position of respondent being station-specific, his reassignment could not exceed one (1) year per Memorandum Circular No. 2.22
The Court of Appeals also discussed the various personnel movements effected on respondent. Thus, when he reported to his new assignment as "Vice President of Special Projects" per Office Order No. 2004-173, as amended by Office Order No. 2004-1229, such movement was a reassignment and not a mere detail, since there was a movement from one organizational unit to another within the same department or agency; that is, from his station at the office of the Vice President VisMin Operations & Maintenance to the Office of the President and CEO. Respondent remained in his place of reassignment beyond 16 February 2005 because he was designated additional duties, virtually extending his reassignment beyond the one-year period. The third personnel movement on 16 February 2005, as OIC of the PSRG, was also a nullity because it extended further his original reassignment, and worse, the appointment was made despite respondent’s vigorous objection, said the Court of Appeals.23 Finally, it concluded that while respondent’s position, rank and salary had remained unchanged throughout the said movements, he suffered much financial deprivation, considering that he had to spend for his own travel expenses to Cebu City to be with his family.24
Petitioner filed a motion for reconsideration, but its motion was denied on 7 August 2007 for lack of merit.25
Before this Court, petitioner imputes the following errors to the Court of Appeals, thus:
a. in classifying the position held by Hamoy, Jr. as TransCo Vice President as a mere second level and not a third level position;
b. in declaring that presidential appointment is a requirement for a position to be classified as belonging to the third level thus disregarding the clear provisions of CSC Memorandum Circular No. 21, series of 1994 and prevailing jurisprudence;
c. in holding that Hamoy, Jr. was appointed to a station-specific position;
d. in classifying the first movement of Hamoy from his original assignment in the VisMin Operations and Maintenance to the office of the president as a "reassignment" and not a ‘detail;"
e. in declaring that Hamoy’s reassignment was not made in accordance with civil service laws, rules, and regulations.26
On the other hand, respondent maintains that he was appointed to a second-level position and, thus, he is not under the Career Executive Service (CES). He adds that he was, in fact, appointed to a station-specific position. Moreover, he claims that his reassignments were made in violation of the rules and constitute constructive dismissal.27
The petition has no merit.
In arguing that respondent belongs to the CES, petitioner invokes Memorandum Circular No. 21, which reads in part:
1. Positions covered by the Career Executive Service
(a) x x x
(b) In addition to the above identified positions and other positions of the same category which had been previously classified and included in the CES, all other third level positions of equivalent category in all branches and instrumentalities of the national government, including government owned and controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria:
,
1. the position is a career position;
2. the position is above division chief level;
3. the duties and responsibilities of the position require the performance of executive and managerial functions.
Petitioner also cites Caringal v. Philippine Charity Sweepstakes Office (PCSO)28 and Erasmo v. Home Insurance Guaranty Corporation29 to show that a presidential appointment is not required before a position in a government corporation is classified as included in the CES. 30 We are not convinced.
The Administrative Code specifies 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.31
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.32 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,33 wherein the Court declared that the CES covers presidential appointees only.
In the said case, the CSC disapproved the Office of the Ombudsman’s (OMB’s) request for approval of the proposed qualification standards for the Director II position in the Central Administrative Service and Finance Management Service. The OMB proposed that said position required "Career Service Professional/Relevant Eligibility for Second Level position." According to the CSC, the Director II position belonged to third-level eligibility and is thus covered by the Career Executive Service. Settling the issue, this Court ruled thus:
Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC:
"From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. xxx" (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.34
Respondent 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 Rank
Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the
recommendation of the Board. This process completes the official’s 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 Code35
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 x
While 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 if 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 x36 (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.
Having settled the nature of respondent’s position, we now determine the validity of respondent’s reassignment from Vice President for VisMin Operations & Maintenance to Vice President of Special Projects under Office Order No. 2004-173, as amended by Office Order No. 2004-1229.
The Revised Rules on Reassignment37 provides in part:
Sec. 6. x x x. Reassignment shall be governed by the following rules:
1. These rules shall apply only to employees appointed to first and second level positions in the career and non-career services. Reassignment of third level appointees is governed by the provisions of Presidential Decree No. 1.
2. Personnel movements involving transfer or detail should not confused with reassignment since they are governed by separate rules.
3. Reassignment of employees with station-specific place of work indicated in their respective appointments shall be allowed only for a maximum period of one (1) year. An appointment is considered station-specific when the particular office or station where the position is located is specifically indicated on the face of the appointment paper. Station-specific appointment does not refer to a specified plantilla item number since it is used for purposes of identifying the particular position to be filled or occupied by the employee.
4. If appointment is not station-specific, the one-year maximum shall not apply. Thus, reassignment of employees whose appointments do not specifically indicate the particular office or place of work has no definite period unless otherwise revoked or recalled by the Head of Agency, the Civil Service Commission or a competent court.
5. If an appointment is not station-specific, reassignment to an organizational unit within the same building or from one building to another or contiguous to each other in one work area or compound is
allowed. Organizational unit refers to sections, divisions, and departments within an organization.
6. Reassignment outside geographical location if with consent shall have no limit. However, if it is without consent, reassignment shall be for one (1) year only. Reassignment outside of geographical location may be from one Regional Office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.1avvphi1
7. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal x x x
a) Reassignment of an employee to perform duties and responsibilities inconsistent with the duties and responsibilities of his/her position such as from a position of dignity to a more servile or menial job;
b) Reassignment to an office not in the existing organizational structure;
c) Reassignment to an existing office but the employee is not given any definite duties and responsibilities;
d) Reassignment that will cause significant financial dislocation or will cause difficulty or hardship on the part of the employee because of geographical location; and
e) Reassignment that is done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.38 [Emphasis supplied).
Petitioner claims that respondent was not appointed to a station-specific position because his appointment paper, CS Form No. 33, does not indicate any specific work station.39 This being the case, he is entitled to security of tenure with respect only to the position of Vice President, and he may be reassigned from his original assignment in the VisMin Operations & Maintenance to his new assignment in the Power Systems Reliability Group.40 On the other hand, the Court of Appeals, relying on Board Resolution No. TC 2003-2007, which indicated that respondent’s appointment was to the position of Vice President under "Item No. 700010-VisMin Operations and Maintenance," held that his appointment was station-specific.41
We do not agree with petitioner. It is not disputed that an appointment is considered station-specific when the particular office or station where the position is located is
specifically indicated on the face of the letter of appointment (Form No. 33). In this case, the letter of appointment itself makes specific reference to a Board Resolution, by virtue of which respondent was appointed as Vice President for VisMin Operations and Maintenance, thereby rendering the Board Resolution an integral part of the letter of appointment. The letter of appointment states:
Republika ng PilipinasNATIONAL TRANSMISSION CORPORATIONDiliman, Lungsod ng Quezon
MR. VENUSTO D. HAMOY, JR.National Transmission CorporationDiliman, Quezon City
MR. HAMOY:
Kayo ay nahirang na (VICE PRESIDENT JG-18) (VICE PRESIDENT SG-28) na may katayuang PERMANENT sa Pambansang Korporasyon sa Transmisyon sa pasahod na EIGHT HUNDRED FIFTY SIX THOUSAND THREE HUNDRED TWENTY PESOS ( P856,320) piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.
Ang appointment na ito ay REEMPLOYMENT PURSUANT TO TRANSCO BOARD RES. NO. 2003-07 DATED 2/5/03 bilang kapalit ni N/A na N/A at ayon sa Plantilya Item Blg. 7000010 CY2003, Pahina ______.42 (Emphasis supplied)
Sumasainyo,
ALAN T. ORTIZ, Ph.D.President & CEO Puno ng Tanggapan
MAR 01 2003Petsa ng Pagpirma
The pertinent portions of Board Resolution No. TC 2003-007 read, thus:
RESOLUTION NO. TC 2003-007
xxx
WHEREAS, after careful evaluation and deliberation of the qualifications of the applicants consistent with the Board’s Guidelines, the following executives are hereby appointed as follows:
a) x x x
x x x
j). Item No. 700010-VisMin Operations &Maintenance-
Mr. Venusto D. Hamoy, Jr.
APPROVED AND CONFIRMED, February 5, 2003.43 (Emphasis supplied)
In other words, it is clear from the filled-up Form No. 33 or the letter of appointment that the appointment was issued pursuant to Board Resolution No. TC 2003-007. The appointment paper’s explicit reference to the Board Resolution, which in turn cited "Item No. 700010-VisMin Operations & Maintenance," indicated that respondent’s work station was the VisMin Operations & Maintenance. As "VisMin" stands for the Visayas-Mindanao, the Vice-President for VisMin Operations, who is respondent, necessarily has to hold office in Cebu where petitioner has offices for its Visayas-Mindanao Operations.
Having been appointed to a station-specific position, whatever reassignment may be extended to respondent cannot exceed one year.1avvphi1
A reassignment is a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment . A detail, on the other hand, is a movement from one agency to another.44 Respondent’s movement from the Office of the Vice-President Vis-Min Operations & Management in January of 2004 to the Office of the President and CEO in Diliman, Quezon City to handle Special Projects on 16 February 2004 was a reassignment, as he was moved from one department to another within the same agency. Necessarily therefore,
such movement should last only until 16 February 2005, or one year thereafter. However, respondent was designated additional duties on 16 February 2005, which further extended his stay in the Diliman office. When respondent was designated as OIC of the PSRG, his reassignment was extended once more. In addition, the reassignments were made without his consent, nay, despite his objections. These personnel movements are clear violations of the Revised Rules.
All told, the Court finds no reason to overturn the Decision of the Court of Appeals.1avvphi1.zw+
WHEREFORE, the petition is DENIED. The decision and resolution of the Court of Appeals dated 30 May 2007 and 7 August 2007, respectively, are AFFIRMED. Costs against the petitioner.
SO ORDERED
