Sec. Serafin R. Cuevas vs. Atty. Bacal : 139382 : December 6, 2000 : J. Mendoza : En Banc

EN BANC

[G.R. No. 139382. December 6, 2000]

THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE SECRETARY RONALDO B. ZAMORA, and ATTY. CARINA J. DEMAISIP, petitioners, vs. ATTY. JOSEFINA G. BACAL, respondent.

D E C I S I O N

MENDOZA, J.:

This case involves the appointment and transfer of career executive service officers (CESOs). More specifically, it concerns the “appointment” of respondent Josefina G. Bacal, who holds the rank of CESO III, to the position of Chief Public Attorney in the Public Attorney’s Office, which has a CES Rank Level I, and her subsequent transfer, made without her consent, to the Office of the Regional Director of the PAO.

In its decision[1] rendered on March 25, 1999, the Court of Appeals declared respondent Josefina G. Bacal entitled to the position of Chief Public Attorney in the Public Attorney’s Office. Petitioners moved for a reconsideration, but their motion was denied by the appeals court in its resolution dated July 22, 1999. Hence this petition for review on certiorari. Petitioners contend that the transfer of respondent to the Office of the Regional Director of the PAO is appropriate considering her rank as CESO III.

The background of this case is as follows:

Respondent Josefina G. Bacal passed the Career Executive Service Examinations in 1989. On July 28, 1994, she was conferred CES eligibility and appointed Regional Director of the Public Attorney’s Office. On January 5, 1995, she was appointed by then President Fidel V. Ramos to the rank of CESO III. On November 5, 1997, she was designated by the Secretary of Justice as Acting Chief Public Attorney. On February 5, 1998, her appointment was confirmed by President Ramos so that, on February 20, 1998, she took her oath and assumed office.

On July 1, 1998, petitioner Carina J. Demaisip was appointed “chief public defender” by President Joseph Estrada. Apparently because the position was held by respondent, another appointment paper was issued by the President on July 6, 1998 designating petitioner Demaisip as “chief public defender (formerly chief public attorney), PUBLIC DEFENDER'S OFFICE, DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G. BACAL, effective July 1, 1998.”[2] On the other hand, respondent was appointed “Regional Director, Public Defender’s Office” by the President.

On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then issued a memorandum, dated July 10, 1998, to the personnel of the “Public Defender’s Office” announcing the appointment of petitioner Demaisip as “CHIEF PUBLIC DEFENDER.” Petitioner Secretary of Justice was notified of the appointments of petitioner Demaisip and respondent Bacal on July 15, 1998.

On July 17, 1998, respondent filed a petition for quo warranto questioning her replacement as Chief Public Attorney. The petition, which was filed directly with this Court, was dismissed without prejudice to its refiling in the Court of Appeals. Accordingly, respondent brought her case in the Court of Appeals which, on March 25, 1999, ruled in her favor, finding her to be lawfully entitled to the Office of Chief Public Attorney.

Petitioners seek the reversal of the decision of the Court of Appeals on the following grounds ¾

I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT JOSEFINA G. BACAL, A CAREER EXECUTIVE SERVICE OFFICER, HAS A VALID AND VESTED RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY AND, AS SUCH, CANNOT BE REASSIGNED OR TRANSFERRED TO THE POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEY’S OFFICE, DEPARTMENT OF JUSTICE.

II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT BACAL, WHO HOLDS A CES RANK LEVEL III, WAS REASSIGNED OR TRANSFERRED TO A POSITION WHICH DOES NOT CORRESPOND TO HER PRESENT RANK LEVEL INASMUCH AS THE POSITION OF BUREAU REGIONAL DIRECTOR CARRIES A CES RANK LEVEL V ONLY. CONTRARY TO THE CONCLUSIONS OF THE COURT OF APPEALS, SAID POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEY’S OFFICE, THE POSITION TO WHICH RESPONDENT BACAL WAS REASSIGNED OR TRANSFERRED, CARRIES A CES RANK LEVEL III WHICH CORRESPONDS TO HER CES RANK III LEVEL. AS AN OFFICER WITH A RANK III LEVEL, RESPONDENT BACAL IS NOT THEREFORE ELIGIBLE FOR THE POSITION OF CHIEF PUBLIC ATTORNEY WHICH CARRIES A CES RANK LEVEL I.

III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF REGIONAL DIRECTOR, RESPONDENT BACAL DID NOT LOSE HER CES RANK III AND HER RIGHT TO RECEIVE THE SALARY CORRES-PONDING TO HER PRESENT RANK.

IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY.

V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE ADMINISTRATIVE REMEDIES AVAILABLE TO HER BEFORE FILING THE PETITION FOR QUO WARRANTO WITH THE COURT OF APPEALS.[3]

^{I. Exhaustion of
Administrative Remedies}

We first consider petitioners’ contention that respondent’s quo warranto suit should have been dismissed for failure of respondent to exhaust administrative remedies by appealing to the Office of the President.

The contention has no merit. If, as has been held, no appeal need be taken to the Office of the President from the decision of a department head because the latter is in theory the alter ego of the former,[4] there is greater reason for not requiring prior resort to the Office of the President in this case since the administrative decision sought to be reviewed is that of the President himself. Indeed, we have granted review in other cases involving the removal of the Administrator of the Philippine Overseas Employment Administration[5] and the Executive Director of the Land Transportation Office[6] without requiring the petitioners to exhaust administrative remedies considering that the administrative actions in question were those of the President.

In any event, the doctrine of exhaustion of administrative remedies does not apply when the question raised is purely legal.[7] In this case, the question is whether respondent’s transfer to the position of Regional Director of the Public Attorney’s Office, which was made without her consent, amounts to a removal without cause. This brings us to the main issue in this appeal.

^{II. Merits of the
Case}

In holding that respondent’s transfer amounted to a removal without cause, the Court of Appeals said:

. . . Her appointment as Regional Director was in effect a removal in the guise of transfer, to repeat, without her consent. Having been validly appointed Chief Public Defender by the President on February 8, 1998, would naturally entitle her to security of tenure since on the basis of the appointment, she was appointed, not merely assigned, to a particular station. Her involuntary transfer, through appointment, to that of a mere Regional Director, did not either conform to the rules on the constitutional protection of security of tenure. Above all, her supposed appointment as a Regional Director is not only temporary but is on the other hand permanent wherein she lost her position as Chief Public Attorney, or her connection with the previous position being severed.

. . . .

In the case of the petitioner, there is certainly a diminution in duties and responsibilities when she was downgraded through the July 6, 1998 appointment, involuntarily made, from that of Chief Public Attorney to a mere Regional Director. To repeat, the rank equivalent to a Bureau Director is Rank III while that of a mere Bureau Regional Director is Rank V. Diminution in duties and responsibilities, certainly becomes apparent and then in the matter of salary, the basic salary of a Chief Public Attorney together with all the perks, would amount to P575,199.00. In the case of a Regional Director, his basic salary together with all the perks, would only amount to P341,479.96. Admittedly, when a CESO is assigned or made to occupy a position with a lower salary grade, he shall supposedly continue to be paid his salary that attaches to his CES rank. It cannot, on the other hand, be denied that the moment a non-CESO is appointed to a CES position, he shall receive, at the same time, the salary of his CES position. There is merit in the petitioner’s argument that allowing the Regional Director to receive continuously the salary rate of Chief Public Attorney in effect would amount to an illegal consequence since the disbursement of public funds, as budgeted, provides funding for only one Chief Public Attorney. The dilemma arises when both the petitioner and respondent Demaisip would be claiming the salary of a Chief Public Attorney. There is no pretension either in the Brief of the public respondents that there has been a supplemental budget for the petitioner, now downgraded to a mere Regional Director, to be receiving continuously the salary scale of a Chief Public Attorney.

. . . .

Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the recruitment, selection and appointment process of the Career Executive Service. As a matter of fact, as a rule (1997 Revised Edition, Handbook, Career Executive Service), the appointment to most positions in the CES is supposed to be made by the President only from the list of CES eligibles, but recommended by the CES Board. Admittedly, an incumbent of a CES position may qualify for appointment to a CES rank, only upon the confirming of a CES Eligibility and compliance with the other requirements being prescribed by the Board (Ibid. p. 5). Precisely, the CES was created pursuant to PD No. 1 (adopting the Integrated Reorganizational Plan, dated September 24, 1972), if only to form a continuing pool of well-selected and development-oriented career administrators who shall provide competent and faithful service (Ibid. p. 2). We cannot see this from that of the petitioner then being replaced by a non-CESO.[8]

The appealed decision will not bear analysis.

First. What should be emphasized in this case is that respondent Josefina G. Bacal is a CESO III and that the position of Regional Director of the PAO, to which she was transferred, corresponds to her CES Rank Level III and Salary Grade 28. This was her position before her “appointment” on February 5, 1998 to the position of Chief Public Attorney of the PAO, which requires a CES Rank Level I for appointment thereto. Respondent Bacal therefore has no ground to complain. She may have been considered for promotion to Rank I to make her appointment as Chief Public Attorney permanent. The fact, however, is that this did not materialize as petitioner Carina J. Demaisip was appointed in her place. If respondent was paid a salary equivalent to Salary Grade 30 while she was holding that office, it was only because, under the law, if a CESO is assigned to a position with a higher salary grade than that corresponding to his/her rank, he/she will be allowed the salary of the CES position.

As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:[9]

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

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. . . .

It is contended, however, that respondent is qualified for the position of Chief Public Attorney because this position has a CES Rank Level III, while that of Regional Director, Public Attorney’s Office, has a CES Rank Level V. This is not so. The position of Chief Public Attorney has a CES Rank Level I and a Salary Grade 30, while that of Regional Director of the PAO has a CES Rank Level III and a Salary Grade 28. This is shown by the following:[10]

1. Certification, dated April 6, 1999, issued by the Secretary of the Department of Budget and Management (DBM), which states that “the position of the head of Public Attorney’s Office (PAO) is classified as Chief Public Attorney at Salary Grade 30” (Annex A of Annex M, Petition).

2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive Director of the CES Board, which states that “the Rank equivalent to the position of Chief Public Attorney and Regional Public Attorney are CESO Rank I and CESO Rank III respectively” (Annex B of Annex M, Petition); and

3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then Executive Director Juridico of the CES Board, stating that the position of Chief Public Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M, Petition). The certification reads:

This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public Attorney’s Office was conferred CES Eligibility on July 28, 1994 per Board Resolution No. 94-4620 and was appointed Career Executive Service Officer (CESO) Rank III by then President Fidel V. Ramos on January 5, 1995. She is yet to fulfill the requirements for an adjustment of her CES rank (from CES Rank III to Rank I) to a level equivalent to her present position.

This certification is issued upon the request of Atty. Bacal for whatever purpose it may serve best.

Second. The Court of Appeals held that respondent Bacal had acquired security of tenure as Chief Public Attorney by the mere fact of her appointment to that position. This is likewise the point of the dissent of Justice Gonzaga-Reyes who contends that a CES eligibility is all that a person needs in order to acquire security of tenure in any position embraced in the Career Executive service; that a CESO rank is only necessary to differentiate a CESO’s general managerial duties/responsibilities, personal qualifications, and demonstrated competence; and that no other CES examination is required for appointment to a higher rank.

Appointments, assignments, reassignments, and transfers in the Career Executive Service are based on rank. On this point, the Integrated Reorganization Plan cannot be any clearer. It provides:[11]

c. Appointment. Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination.

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

. . . .

e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of the Service shall be assigned to occupy positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Board on the basis of the members’ functional expertise. . . .

The rules and regulations promulgated by the CES Board[12] to implement the Integrated Reorganization Plan are equally clear in providing that ¾

Career Executive Service Eligibility

Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation of the examinee’s performance in the four stages of the CES eligibility examinations.

. . . .

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.

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

The appropriate CESO rank to which a CES eligible may be appointed depends on two major qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance.

Performance is determined by the official’s performance rating obtained in the annual CESPES. On the other hand, managerial responsibility is based on the level of the general duties and responsibilities which an eligible is performing, as follows:

Levels of Duties and Rank Equivalent

Responsibilities

if level of managerial responsibilities I

are comparable to that of an Under-

secretary

if comparable to that of an Assistant II

Secretary

if comparable to that of a Bureau III

Director or a Department Regional

Director

if comparable to that of an Assistant IV

Bureau Director, Department

Assistant Regional Director or

Department Service Chief

if comparable to that of a Bureau V

Regional Director

if comparable to that of a Bureau VI

Assistant Regional Director

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

Security of tenure in the career executive service is thus acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed ¾ a concept which is applicable only to first and second-level employees in the civil service ¾ but to the rank to which they are appointed by the President. Accordingly, respondent did not acquire security of tenure by the mere fact that she was appointed to the higher position of Chief Public Attorney since she was not subsequently appointed to the rank of CESO I based on her performance in that position as required by the rules of the CES Board.

Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES eligibility was all that was required to make her appointment to the position of Chief Public Attorney permanent would give rise to an anomalous situation. Following such theory, even if respondent is not appointed CESO I because her performance as Chief Public Attorney does not warrant her appointment to such higher rank, she cannot be transferred to any other office to which her rank (CESO III) qualifies her. This theory of the dissent, i.e., that a CES eligibility gives the appointee security of tenure - not the ruling in this case that it is appointment to the appropriate rank that confers security of tenure - is what will undermine the Career Executive Service.

Third. Within the Career Executive Service, personnel can be shifted from one office or position to another without violation of their right to security of tenure because their status and salaries are based on their ranks and not on their jobs. To understand this, it is necessary to consider the reason for the creation of the Career Executive Service.

R.A. No. 5435,[13] as amended by R.A. Nos. 6076, 6172, and 6175, created a commission charged with the specific function of reorganizing the government “to promote simplicity, economy, and efficiency” in its operations. The result was the preparation of the Integrated Reorganization Plan which was adopted and declared part of the law of the land by P.D. No. 1 on September 24, 1972. A major feature of the Integrated Reorganization Plan was the creation of the Career Executive Service whose justification was explained by the Commission on Reorganization, thus:

The present Civil Service system is not geared to meet the executive manpower needs of the government. The filling of higher administrative positions is often based on considerations other than merit and demonstrated competence. The area of promotion is currently confined to the person or persons “next-in-rank” in the agency. Moreover, personnel classification and compensation are uniformly based on concepts and procedures which are suited to positions in the lower levels but not to managerial posts in the higher levels. To fill this crucial gap, it is recommended that a Career Executive Service be established. This group of senior administrators shall be carefully selected on the basis of high qualifications and competence. Skilled in both techniques and processes of management, these career executives will act as catalysts for administrative efficiency and as agents of administrative innovation.

The status and salary of the career executives will be based on their rank, and not on the job that they occupy at any given time . . . . In this sense, the rank status of the Career Executive Service is similar to that of the commissioned officers in the Armed Forces or members of the Foreign Service. Unlike these latter organizations, however, entrance to the Career Executive Service will not be generally at an early age in a relatively junior level but at a senior management level.

. . . .

The rank classification in the Service will allow for mobility or flexibility of assignments such that the government could utilize the services or special talents of these career executives wherever they are most needed or will likely create the greatest impact. This feature is especially relevant in a developing country which cannot afford to have its scarce executive manpower pegged to particular positions.

Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus the distinguishing feature of the Career Executive Service. To attain this objective, the Integrated Reorganization Plan provides:[14]

e. Assignments, Reassignments and Transferees. . . .

Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another and from one department, bureau or office to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years; and provided, furthermore, that if the officer concerned believes that his reassignment or transfer is not justified, he may appeal his case to the President.

The implementing rules and regulations of the CES Board provide:

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

Should he be assigned or made to occupy a CES position with a lower salary grade, he shall continue to be paid the salary attached to his CES rank.[15]

Petitioners are, therefore, right in arguing that respondent, “as a CESO, can be reassigned from one CES position to another and from one department, bureau or office to another. Further, respondent, as a CESO, can even be assigned or made to occupy a CES position with a lower salary grade. In the instant case, respondent, who holds a CES Rank III, was correctly and properly appointed by the appointing authority to the position of Regional Director, a position which has a corresponding CES Rank Level III.”[16]

Indeed, even in the other branches of the civil service, the rule is that, unless an employee is appointed to a particular office or station, he can claim no security of tenure in respect of any office. This rule has been applied to such appointments as Director III or Director IV or Attorney IV or V in the Civil Service Commission since the appointments are not to specified offices but to particular ranks;[17] Election Registrars;[18] Election Officers, also in the Commission on Elections;[19] and Revenue District Officers in the Bureau of Internal Revenue.[20] Reiterating the principle in Sta. Maria v. Lopez,[21] this Court said:

. . . [T]he rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not proscribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. The use of approved techniques or methods in personnel management to harness the abilities of employees to promote optimum public service cannot be objected to. . . .

For the foregoing reasons, we hold that respondent’s appointment to the position of Chief Public Attorney was merely temporary and that, consequently, her subsequent transfer to the position of Regional Director of the same office, which corresponds to her CESO rank, cannot be considered a demotion, much less a violation of the security of tenure guarantee of the Constitution.

Fourth. On the other hand, Justice Puno makes much of the fact that petitioner Carina J. Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional cases the appointment of non-CES eligibles provided that the appointees subsequently pass the CES Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated Reorganization Plan provides that the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualified in such examination.

For the same reason that the temporary appointment of respondent Josefina G. Bacal as Chief Public Attorney is valid under this provision of the law despite the fact that she does not hold the rank of CESO I, so is the appointment to the same position of petitioner Carina J. Demaisip. The question in this case is not the validity of the appointment to such position but whether the appointee acquires security of tenure even if he does not possess the requisite rank. There is no claim that petitioner Demaisip has a right to remain in the position of Chief Public Attorney permanently.

On the other hand, as respondent herself does not have the requisite qualification for the position of Chief Public Attorney, she cannot raise the lack of qualification of petitioner. As held in Carillo v. Court of Appeals,[22] “in a quo warranto proceeding the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.”[23] Indeed, this has been the “exacting rule”[24] since it was first announced, 95 years ago, in Acosta v. Flor.[25] As at present embodied in Rule 66, §5 of the Rules of Civil Procedure, the rule is that “a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.”

WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition for quo warranto filed by respondent is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Pardo, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur.

Puno J., see separate opinion.

Vitug J., join Justice Puno in his separate opinion.

Panganiban and Quisumbing, JJ., join the dissent of J. Reyes.

Gonzaga-Reyes J., see dissenting opinion.