Republic
of the
Supreme Court
SECOND DIVISION
|
SAMUEL B. ONG, Petitioner,
- versus - OFFICE OF THE PRESIDENT, ET
AL., Respondents. |
G.R.
No. 184219
Present: CARPIO, J., Chairperson, PEREZ, SERENO, REYES, and PERLAS-BERNABE, JJ.* Promulgated: January 30, 2012 |
x------------------------------------------------------------------------------------x
DECISION
REYES, J.:
The Case
Before
us is a petition for review[1]
on certiorari under Rule 45 of the Rules of Court filed by Samuel B. Ong
(Ong) to assail the Decision[2] rendered by the Court of Appeals (CA) on
August 5, 2008 in CA-G.R. SP No. 88673, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing
premises, the petition for quo warranto
filed in this case is hereby DENIED.
SO ORDERED.[3]
Ong
died on May 22, 2009 during the pendency of the instant petition.[4]
Admittedly, Ong's death rendered the prayer for reinstatement in the petition
for quo warranto as moot and academic. However, substitution[5] was sought because in the
event that the Court would rule that Ong was indeed entitled to the position he
claimed, backwages pertaining to him can still be paid to his legal heirs. Per
Resolution[6]issued on January 10, 2011,
we granted the motion for substitution. The deceased petitioner is now herein
substituted by his wife Elizabeth, and children, Samuel Jr., Elizabeth and Carolyn, all surnamed Ong.
Antecedents Facts
The CA aptly summarized
the facts of the case before the filing of the petition for quo warranto
as follows:
The petitioner [Ong]
joined the National Bureau of Investigation (NBI) as a career employee in 1978.
He held the position of NBI Director I from July 14, 1998 to February 23, 1999
and NBI Director II from February 24, 1998 to September 5, 2001. On September
6, 2001, petitioner was appointed Director III by the President. His
appointment paper pertinently reads:
x x x
Pursuant to the
provisions of existing laws, the following are hereby appointed to the NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF JUSTICE co-terminus with the appointing authority:
x x x
SAMUEL B. ONG - DIRECTOR
III
(vice Carlos S. Caabay) [DEPUTY DIRECTOR]
x x x
On June 3, 2004, the
petitioner received from respondent Reynaldo Wycoco Memorandum Circular No.
02-S.2004 informing him that his appointment, being co-terminus with the
appointing authority's tenure, would end effectively at midnight on June 30,
2004 and, unless a new appointment would be issued in his favor by the
President consistent with her new tenure effective July 1, 2004, he would be
occcupying his position in a de facto/hold[-]over status until his
replacement would be appointed.
On December 01, 2004, the
President appointed respondent Victor A. Bessat as NBI Director III as
replacement of the petitioner. Consequently, respondent Wycoco notified the
petitioner that, effective on December 17, 2004, the latter should cease and
desist from performing his functions as NBI Director III in view of the
presidential appointment of respondent Bessat as petitioner's replacement. The
petitioner received the aforementioned notice only on January 27, 2005.[7] (underscoring supplied and citations omitted)
On
February 22, 2005, Ong filed before the CA a petition for quo warranto. He
sought for the declaration as null and void of (a) his removal from the
position of NBI Director III; and (b) his replacement by respondent Victor
Bessat (Bessat). Ong likewise prayed for reinstatement and backwages.
The CA denied Ong's petition on
grounds:
A petition
for quo warranto is a proceeding to
determine the right of a person to the use or exercise of a franchise or office
and to oust the holder from its enjoyment, if his claim is not well-founded, or
if he has forfeited his right to enjoy the privilege.[8] Where
the action is filed by a private person, in his own name, he must prove that he
is entitled to the controverted position, otherwise, respondent has a right to
the undisturbed possession of the office.[9]
Section 27 of the Administrative Code
of 1987, as amended, classifies the appointment status of public officers and
employees in the career service into permanent and temporary. A permanent
appointment shall be issued to a person who meets all the requirements for the
position to which he is being appointed, including appropriate eligibility prescribed,
in accordance with the provisions of law, rules and standards promulgated in
pursuance thereof. In the absence of
appropriate eligibles and it becomes necessary in the public interest to fill a
vacancy, a temporary appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed except the
appropriate civil service eligibility; provided, that such temporary appointment
shall not exceed twelve months, but the appointee may be replaced sooner if a
qualified civil service eligible becomes available.
x x x In Cuadra
v. Cordova,[10]
temporary appointment is defined as one made in an acting capacity, the
essence of which lies in its temporary character and its terminability at
pleasure by the appointing power. Thus, the temporary appointee accepts the
position with the condition that he shall surrender the office when called upon
to do so by the appointing authority. The termination of a temporary
appointment may be with or without a cause since the appointee serves merely at
the pleasure of the appointing authority.
In the
career executive service, the acquisition of security of tenure presupposes a
permanent appointment. As held in General v. Roco,[11] two
requisites must concur in order that an employee in the career executive
service may attain security of tenure, to wit: 1) CES eligibility[;] and 2)
appointment to the appropriate CES rank.
In the
present case, it is undisputed that the petitioner is a non-CESO eligible. At
best, therefore, his appointment could be regarded only as temporary and,
hence, he has no security of tenure. Such being the case, his appointment can
be withdrawn at will by the President, who is the appointing authority in this
case, and at a moment's notice.[12]
Moreover,
a perusal of the petitioner's appointment will reveal that his appointment as
NBI Director III is co-terminous with the appointing authority. Correlatively,
his appointment falls under Section 14 of the Omnibus Rules Implementing Book V
of the Revised Administrative Code of 1987 which provides that:[13]
Sec. 14.
An appointment may also be co-terminous which shall be issued to a person whose
entrance and continuity in the service is based on the trust and confidence of
the appointing authority or that which is subject to his pleasure, or
co-existent with his tenure, or limited by the duration of project or subject to
the availability of funds.
The
co-terminous status may thus be classified as follows:
x
x x x
(2) Co-terminous with the
appointing authority
when appointment is co-existent with the tenure of the appointing authority or
at his pleasure; x x x
x x x x
Thus,
although petitioner's appointment is co-terminous with the tenure of the
President, he nevertheless serves at the pleasure of the President and his
appointment may be recalled anytime. The case of Mita Pardo de Tavera v.
Philippine Tuberculosis Society, Inc.[14]
delineated the nature of an appointment held at the pleasure of the appointing
power in this wise:
An appointment held at the pleasure
of the appointing power is in essence temporary in nature. It is co-extensive
with the desire of the Board of Directors. Hence, when the Board opts to
replace the incumbent, technically there is no removal but only an expiration
of term and in an expiration of term,
there is no need of prior notice, due hearing or sufficient grounds before the
incumbent can be separated from office. The protection afforded by Section 7.04
of the Code of By-Laws on Removal [o]f Officers and Employees, therefore,
cannot be claimed by petitioner.
All told,
petitioner's appointment as well as its consequent termination falls within the
ambit of the discretion bestowed on the appointing authority, the President.
Simply put, his appointment can be terminated at any time for any cause and
without the need of prior notice or hearing since he can be removed from his
office anytime. His termination cannot be said to be violative of Section 2(3),
Article IX-B of the 1987 Constitution. When a temporary appointee is required
to relinquish his office, he is being separated from office because his term
has expired.[15]
Starkly put, upon the appointment of respondent Bessat as his replacement, his
term of office had already expired.
Likewise,
it is inconsequential that the petitioner was replaced by another non-CESO
eligible, respondent Besat. 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.[16]
Indeed,
appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If
he does, then the appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing authority
can decide.[17]
In sum, quo warranto is unavailing in the instant case, as the
public office in question has not been usurped, intruded into or unlawfully
held by respondent Bessat. The petitioner had no legal right over the disputed
office and his cessation from office involves no removal but an expiration of
his term of office.[18]
Hence, the instant petition ascribing to the CA the following
errors:
I.
THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF THE PETITIONER'S
REMOVAL BY RESPONDENT
II.
THE CA ERRED IN HOLDING THAT SINCE THE PETITIONER HELD
A CO-TERMINOUS APPOINTMENT, HE IS TERMINABLE AT THE PLEASURE OF THE APPOINTING POWER.[20]
Citing
Ambas v. Buenaseda[21]
and Decano v. Edu,[22]
the instant petition emphasizes that the power of removal is lodged in the
appointing authority. Wycoco, and not the President, issued Memorandum Circular
(MC) No. 02-S.2004 informing Ong that his co-terminous appointment as Director
III ended effectively on June 30, 2004.
The issuance of MC No. 02-S.2004 was allegedly motivated by malice and
revenge since Ong led the NBI employees in holding rallies in July 2003 to
publicly denounce Wycoco. Hence, Bessat's assumption of the position was null
and void since it was technically still occupied by Ong at the time of the
former's appointment.
It is further alleged that it was
erroneous for the CA to equate an
appointment co-terminous with the tenure of the appointing authority with one
that is at the pleasure of such appointing authority.[23] Citing Alba,
etc.. v. Evangelista, etcl.,[24] Ong's
counsel distinguished a term as the time during which the officer may claim
to hold office as of right from a tenure which represents the term during
which the incumbent actually
holds the office. Ong's appointment, from which he cannot be removed without
just cause, was co-terminous with the President's tenure which ended not on
June 30, 2004, but only on June 30, 2010.
Section 2(b), Article
IX-G of the 1987 Constitution and Jocom v. Regalado[25]
are likewise cited to stress that government employees, holding both career and
non-career service positions, are entitled to protection from arbitrary removal
or suspension. In the case of Ong, who started his employment in 1978 and rose
from the ranks, it is allegedly improper for the CA to impliedly infer that
the President acted in bad faith by converting his
supposed promotional appointment to one removable at the
pleasure of the appointing authority.
In its Comment[26] to the petition, the
Office of the Solicitor General (OSG) maintains that the replacement of Ong by
Bessat was fair, just and in
accord with the doctrine enunciated in Aklan College v. Guarino,[27] and with Sections 13[28]and 14,[29] Rule V, Civil Service
Commission (CSC) Resolution No. 91-1631 issued on December 27, 1991. Section 13
substantially provides that only a temporary appointment can be issued to a
person who
does
not have the appropriate civil service eligibility. Section 14(2), on the other hand, defines a
co-terminous appointment as one co-existent with the tenure of the appointing
authority or at his pleasure. The last paragraph of Section 14 states that
appointments which are co-terminous with the appointing authority shall not be
considered as permanent.
The
OSG also points out that in issuing MC No. 02-S.2004, Wycoco did not remove Ong
as Director III but merely reminded the latter that after June 30, 2004, his
appointment shall lapse into a de facto/hold-over status unless he was
re-appointed. Ong's colleagues applied
for re-appointment. Bessat was in fact re-appointed as Director II on August
13, 2004. Subsequently, on December 1,
2004, the President appointed Bessat as Director III, effectively replacing
Ong.
Further, the OSG claims that
when Ong accepted promotional appointments in the Career Executive Service (CES)
for which he did not have the required eligibility, he became a temporary
employee and had impliedly abandoned his right to security of tenure.
Our Ruling
The petition is bereft
of merit.
MC No. 02-S.2004 did not remove Ong from the position of
Director
III. Assuming arguendo that it did, the defect was cured when the
President, who was the appointing authority herself, in whose hands were lodged
the power to remove,
appointed Bessat, effectively revoking Ong's appointment.
MC No. 02-S.2004,[30] addressed to Ong, Bessat,
Deputy Director Nestor Mantaring, and Regional Director Edward Villarta, in
part reads:
Records indicate your appointment
status as co-terminus with the appointing power's tenure which ends
effectively at midnight of this day, 30 June 2004.
Unless, therefore, a new appointment
is extended to you by Her Excellency GLORIA MACAPAGAL-ARROYO, consistent with
her new tenure effective 01 July 2004, your services shall lapse into a de
facto/hold[-]over status, to ensure
continuity of service, until your replacements are appointed in your stead.[31]
On
December 1, 2004, the President appointed Bessat as Ong's replacement.[32] Bessat was notified on
December 17, 2004. Wycoco
furnished Ong with a Notice,[33] dated December 20, 2004,
informing the latter that he should cease from performing the functions of Director
III, effective December 17, 2004.
It
is argued that in the hands of the appointing authority are lodged the power to
remove. Hence, Wycoco allegedly acted beyond the
scope of his authority when he issued MC No. 02-S.2004.
This
Court notes that MC No. 02-S.2004 did not in effect remove Ong from his post.
It merely informed Ong that records of the NBI showed that his co-terminous
appointment had lapsed into a de facto/hold-over status. It likewise
apprised him of the consequences of the said status.
Be
that as it may, if we were to assume for argument's sake that Wycoco removed
Ong from his position as Director III by virtue of the
former's issuance of MC No. 02-S.2004, still, the defect was cured when the
President herself issued Bessat's appointment on December 1, 2004. The
appointing authority, who in this case was the President, had effectively
revoked Ong's appointment.
Ong
lacked the CES eligibility required for the position of Director III and his
appointment was co-terminus with the appointing authority. His appointment
being both temporary and co-terminous in nature, it can be revoked by the
President even without cause and at a short notice.
This Court likewise finds no error in the CA's ruling
that since Ong held a co-terminous appointment, he was removable at the
pleasure of the
appointing authority.
It is established that no
officer or employee in the Civil Service shall be removed or suspended except
for cause provided by law.[34]
However, this admits of exceptions for it is likewise settled that the right to
security of tenure is not available to those employees whose appointments are
contractual and co-terminous in nature.[35]
In the case at bar, Ong's
appointment as Director III falls under the classifications provided in (a)
Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative
Code, to wit, that which is co-
existent with the tenure of the appointing authority or at his pleasure; and
(b) Sections 13(b)[36] and
14(2)[37] of Rule
V, CSC Resolution No. 91-1631, or that which is both a temporary and a
co-terminous appointment. The appointment is temporary as Ong did not have the
required CES eligibility.
The case of Amores v. Civil
Service Commission, et al.[38] is instructive
anent the nature of temporary appointments in the CES to which the position of Director
III held by Ong belonged. The Court declared:
An appointment is permanent
where the appointee meets all the requirements for the position to which he is
being appointed, including the appropriate eligibility prescribed, and it is temporary where the
appointee meets all the requirements for the position except only the
appropriate civil service eligibility.
x x x x
x x x Verily, it is clear that the
possession of the required CES eligibility is that which will make an
appointment in the career executive service a permanent one. x x x
Indeed,
the law permits, on many occasions, the appointment of non-CES eligibles to CES
positions in the government in the absence of appropriate eligibles and when
there is necessity in the interest of public service to fill vacancies in the
government. But in all such cases, the appointment is at best merely
temporary as it is said to be conditioned on the subsequent obtention of
the required CES eligibility. x x x
x
x x
Security
of tenure in the career executive service, which presupposes a permanent
appointment, takes place upon passing the CES examinations administered by the
CES Board. x x x
At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility and therefore had not held the subject office in a permanent capacity, there could not have been any violation of petitioners supposed right to security of tenure inasmuch as he had never been in possession of the said right at least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause and at a moments notice. Not even his own self-serving claim that he was competent to continue serving as Deputy Director may actually and legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed.[45][39] (underscoring supplied and citations omitted)
The Court is categorical in the Amores
case that an appointee without the requisite CES eligibility cannot hold the
position in a permanent capacity. Temporary appointments are made if only to prevent hiatus in the government's
rendition of public service. However, a
temporary appointee can be removed even without cause and at a moment's notice.
As to those with eligibilities, their rights to security of tenure pertain to
ranks but not to the positions to which they were appointed.
Ong never alleged that at any time
during which he held the Director III position, he had acquired the requisite
eligibility. Thus, the right to
security of tenure did not pertain to him at least relative to the
Director III position.
The
next logical query to be resolved then is whether or not Ong, as an appointee
holding a position co-terminus with the appointing authority, was entitled to
remain as Director III until the end of the President's tenure on June 30,
2010.
We
likewise rule in the negative.
Both Section 14 of the
Omnibus Rules Rules Implementing Book V of the Administrative Code and Section
14 (2) of Rule V, CSC Resolution No. 91-1631 define a co-terminous appointment
as one co-existent with the tenure of the appointing authority or at his pleasure.
In Mita
Pardo de Tavera v. Philippine Tuberculosis Society, Inc.[40]
cited by the CA in its decision, we sustained the replacement of an incumbent,
who held an appointment at the pleasure of the appointing authority. Such
appointment was in essence temporary in nature. We categorized the incumbent's
replacement not as removal but rather as an expiration of term and no prior
notice, due hearing or cause were necessary to effect the same. In Decano v.
Edu,[41]
we ruled that the acceptance of a
temporary appointment divests an appointee of the right to security of tenure against
removal without cause. Further, in Carillo vs. CA,[42] we
stated that one who holds a temporary appointment has no fixed tenure of
office; his employment can be terminated at the pleasure of the appointing
authority, there being no need to show that the termination is for cause.
In Ong's case, his appointment
was temporary and co-terminous. The doctrines enunciated in the cases of Mita
Pardo de Tavera, Decano, and Carillo apply. Hence, no legal challenge can
be properly posed against the President's appointment of Bessat as Ong's
replacement. The CA correctly ruled that in quo warranto proceedings,
the petitioner must show that he has a clear right to the office allegedly held
unlawfully by another and in the absence of the said right, the lack of qualification
or eligibility of the supposed usurper is immaterial. Stated differently, where
a non-eligible holds a temporary appointment, his replacement by another
non-eligible is not prohibited.[43]
We note that Ong's counsel
had painstakingly drawn distinctions between a term and a tenure. It is argued
that since Ong's appointment was co-terminous with the appointing authority, it
should not had lapsed into a de facto status but continued until the end
of the President's tenure on June 30, 2010.
Under
the Omnibus Rules Implementing the Revised Administrative Code and CSC
Resolution No. 91-1631, a co-terminous appointment is defined as one
co-existing with the tenure of the appointing authority or at his pleasure.
Neither law nor jurisprudence draws distinctions between appointments co-existing
with the term of the appointing authority on one hand, and one co-existing
with the appointing authority's tenure on the
other. In the contrary, under the
aforecited rules, tenure and term are used rather loosely and interchangeably.
In Ong's case, the issues needed to be disposed of revolve around
the concepts of temporary and co-terminous appointments. The distinctions
between term and tenure find no materiality in the instant petition. Besides,
whether or not the President's term ended on June 30, 2004 or her tenure ceased
on June 30, 2010, the fact remains that she appointed Bessat as Director III,
in effect revoking Ong's temporary and co-terminous appointment.
This
Court recognizes Ong's lengthy service rendered to the government and deeply
commisserates with his earlier plight.
However, we cannot grant Ong the reliefs he sought as law and
jurisprudence clearly dictate that being a temporary and co-terminous appointee,
he had no vested rights over the position of Director III.
IN VIEW OF
THE FOREGOING,
the petition is DENIED. The Decision rendered by the
Court of Appeals on August 5, 2008 in
CA-G.R. SP No. 88673 is AFFIRMED.
SO
ORDERED.
BIENVENIDO
L. REYES
Associate
Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate
Justice
|
JOSE Associate Justice |
MARIA Associate Justice |
ESTELA M. PERLAS-BERNABE
Associate
Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
ANTONIO
T. CARPIO
Associate
Justice
Chairperson,
Second Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution
and the Division Chairperson's Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
RENATO
C. CORONA
Chief
Justice
* Additional Member in lieu of Associate Justice Arturo D. Brion per Special Order No. 1174 dated January 9, 2012
[1] Rollo, pp. 8-22.
[2] Penned by Associate Justice Isaias Dicdican, with Associate Justice Juan Q. Enriquez, Jr. and Marlene Gonzales-Sison, concurring; id. at 24-32.
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10] 103 Phil 391 (1958).
[11] 403 Phil 455, 462 (2001).
[12] Caringal v. PCSO, 509 Phil 557 (2005).
[13] Cited in Paloma v. Mora, 507 Phil 697, 708 (2005).
[14] 197 Phil 919, 931 (1982).
[15] Achacoso v. Macaraig, G.R. No. 93023, March 13, 1991, 195 SCRA 235, 240.
[16] Carillo v. Court of Appeals, No. L-24554, May 31, 1967, 77 SCRA 170, 177. (citations omitted)
[17] Rimonte v. Civil Service Commission, 314 Phil 421, 430 (1995).
[18] Supra note 2 at 27-31
[19] Rollo, p. 11.
[20]
[21] G.R. No. 95244, September 4, 1991, 201 SCRA 308.
[22] 187 Phil 754 (1980)
[23] Rollo, p. 14.
[24] 100 Phil 683 (1957).
[25] G.R. No. 77373, August 22, 1991, 201 SCRA 73.
[26] Rollo, pp. 53-68
[27] G.R. No. 152949, August 14, 2007, 530 SCRA 40.
[28] Section 13. Appointment in the career service shall be permanent or temporary.
(a) Permanent Status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed/promoted, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.
x x x
(b) Temporary Status. In the absence of appropriate eligibles in the area willing and able to assume the position, as certified by the CSRO Regional Director concerned, and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.
x x x
[29] Section 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds.
The co-terminous status may be further classified into the following:
x x x
(2) Co-terminous with the appointing authority when appointment is co-existent with the tenure of the appointing authority or at his pleasure;
x x x
For purposes of coverage or membership with the GSIS, or their right to security of tenure, co-terminous appointees, except those who are co-terminous with the appointing authority, shall be considered permanent. (underscoring supplied)
[30] Rollo, p. 36.
[31]
[32]
[33]
[34] Supra note 14.
[35] Civil Service Commission v. Magnaye, Jr., G.R. No. 183337, April 23, 2010, 619 SCRA 347, 357.
[36] Supra note 28.
[37] Supra note 29.
[38] G.R. No. 170093, April 29, 2009, 587 SCRA 160.
[39]
[40] Supra note 14.
[41] Supra note 22.
[42] Supra note 16.
[43] Civil Service Commission v. Engineer Ali Darangina, G.R. No. 167472, January 31, 2007, 513 SCRA 654.